**Exhibit10.52**

 

 

**CREDITAGREEMENT**

Dated as of May 2, 2007

between

**NIC INC.,**as Borrower,

**BANK OFAMERICA, N.A.,**as Lender and L/C Issuer

 

 

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**TABLE OF CONTENTS**
| Section          | ** ** | ** **                                                                   | ** ** | **Page** |
|------------------|------------|------------------------------------------------------------------------------|------------|----------|
| ** **       | ** ** | ** **                                                                   |       |     |
| **ARTICLE I.**   | ** ** | **DEFINITIONS AND ACCOUNTING TERMS**                                         |       | 1        |
| ** **       | ** ** | ** **                                                                   |       |     |
| **1.01**         |       | Defined Terms                                                                |       | 1        |
| **1.02**         |       | Other Interpretive Provisions                                                |       | 17       |
| **1.03**         |       | Accounting Terms                                                             |       | 18       |
| **1.04**         |       | Rounding                                                                     |       | 18       |
| **1.05**         |       | Times of Day                                                                 |       | 18       |
| **1.06**         |       | Letter of Credit Amounts                                                     |       | 19       |
|             |       |                                                                         |       |     |
| **ARTICLE II.**  | ** ** | **THE COMMITMENTS AND CREDIT EXTENSIONS**                                    |       | 19       |
| ** **       | ** ** | ** **                                                                   |       |     |
| **2.01**         |       | Committed Loans                                                              |       | 19       |
| **2.02**         |       | Committed Borrowings, Conversions and Continuations  of Committed Loans      |       | 19       |
| **2.03**         |       | Letters of Credit                                                            |       | 20       |
| **2.04**         |       | Prepayments                                                                  |       | 28       |
| **2.05**         |       | Termination or Reduction of Commitments                                      |       | 28       |
| **2.06**         |       | Repayment of Loans                                                           |       | 28       |
| **2.07**         |       | Interest                                                                     |       | 28       |
| **2.08**         |       | Fees                                                                         |       | 29       |
| **2.09**         |       | Computation of Interest and Fees                                             |       | 29       |
| **2.10**         |       | Evidence of Debt                                                             |       | 30       |
| **2.11**         |       | Payments Generally                                                           |       | 30       |
|             |       |                                                                         |       |     |
| **ARTICLE III.** | ** ** | **TAXES, YIELD PROTECTION AND ILLEGALITY**                                   |       | 31       |
| ** **       | ** ** | ** **                                                                   |       |     |
| **3.01**         |       | Taxes                                                                        |       | 31       |
| **3.02**         |       | Illegality                                                                   |       | 32       |
| **3.03**         |       | Inability to Determine Rates                                                 |       | 32       |
| **3.04**         |       | Increased Costs                                                              |       | 32       |
| **3.05**         |       | Compensation for Losses                                                      |       | 34       |
| **3.06**         |       | Mitigation Obligations                                                       |       | 34       |
| **3.07**         |       | Survival                                                                     |       | 35       |
|             |       |                                                                         |       |     |
| **ARTICLE IV.**  | ** ** | **CONDITIONS PRECEDENT TO CREDIT EXTENSIONS**                                |       | 35       |
| ** **       | ** ** | ** **                                                                   |       |     |
| **4.01**         |       | Conditions of Initial Credit Extension                                       |       | 35       |
| **4.02**         |       | Conditions to all Credit Extensions                                          |       | 36       |
|             |       |                                                                         |       |     |
| **ARTICLE V.**   | ** ** | **REPRESENTATIONS AND WARRANTIES**                                           |       | 37       |
| ** **       | ** ** | ** **                                                                   |       |     |
| **5.01**         |       | Existence, Qualification and Power                                           |       | 37       |
| **5.02**         |       | Authorization; No Contravention                                              |       | 37       |
| **5.03**         |       | Governmental Authorization; Other Consents                                   |       | 37       |
| **5.04**         |       | Binding Effect                                                               |       | 37       |
| **5.05**         |       | Financial Statements; No Material Adverse Effect; No  Internal Control Event |       | 38       |

 

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| **5.06**         |       | Litigation                                                                      |   | 38     |
|------------------|------------|---------------------------------------------------------------------------------|--------|--------|
| **5.07**         |       | No Default                                                                      |   | 39     |
| **5.08**         |       | Ownership of Property; Liens                                                    |   | 39     |
| **5.09**         |       | Environmental Compliance                                                        |   | 39     |
| **5.10**         |       | Insurance                                                                       |   | 39     |
| **5.11**         |       | Taxes                                                                           |   | 39     |
| **5.12**         |       | ERISA Compliance                                                                |   | 39     |
| **5.13**         |       | Subsidiaries                                                                    |   | 40     |
| **5.14**         |       | Margin Regulations; Investment Company Act; Public  Utility Holding Company Act |   | 40     |
| **5.15**         |       | Disclosure                                                                      |   | 41     |
| **5.16**         |       | Compliance with Laws                                                            |   | 41     |
| **5.17**         |       | Taxpayer Identification Number                                                  |   | 41     |
| **5.18**         |       | Intellectual Property; Licenses, Etc                                            |   | 41     |
|             |       |                                                                            |   |   |
| **ARTICLE VI.**  | ** ** | **AFFIRMATIVE COVENANTS**                                                       |   | 41     |
| ** **       | ** ** | ** **                                                                      |   |   |
| **6.01**         |       | Financial Statements                                                            |   | 41     |
| **6.02**         |       | Certificates; Other Information                                                 |   | 42     |
| **6.03**         |       | Notices                                                                         |   | 43     |
| **6.04**         |       | Payment of Obligations                                                          |   | 44     |
| **6.05**         |       | Preservation of Existence, Etc                                                  |   | 44     |
| **6.06**         |       | Maintenance of Properties                                                       |   | 44     |
| **6.07**         |       | Maintenance of Insurance                                                        |   | 44     |
| **6.08**         |       | Compliance with Laws                                                            |   | 44     |
| **6.09**         |       | Books and Records                                                               |   | 45     |
| **6.10**         |       | Inspection Rights                                                               |   | 45     |
| **6.11**         |       | Use of Proceeds                                                                 |   | 45     |
| **6.12**         |       | Financial Covenants.                                                            |   | 45     |
| **6.13**         |       | Additional Guarantors                                                           |   | 46     |
| **6.14**         |       | Acquisitions                                                                    |   | 46     |
|             |       |                                                                            |   |   |
| **ARTICLE VII.** | ** ** | **NEGATIVE COVENANTS**                                                          |   | 46     |
| ** **       | ** ** | ** **                                                                      |   |   |
| **7.01**         |       | Liens                                                                           |   | 46     |
| **7.02**         |       | Investments                                                                     |   | 48     |
| **7.03**         |       | Indebtedness                                                                    |   | 48     |
| **7.04**         |       | Fundamental Changes                                                             |   | 49     |
| **7.05**         |       | Dispositions                                                                    |   | 50     |
| **7.06**         |       | Restricted Payments                                                             |   | 50     |
| **7.07**         |       | Change in Nature of Business                                                    |   | 51     |
| **7.08**         |       | Transactions with Affiliates                                                    |   | 51     |
| **7.09**         |       | Burdensome Agreements                                                           |   | 51     |
| **7.10**         |       | Use of Proceeds                                                                 |   | 51     |
|             |       |                                                                            |   |   |
| **ARTICLE VIII** | ** ** | **EVENTS OF DEFAULT AND REMEDIES**                                              |   | 51     |
| ** **       | ** ** | ** **                                                                      |   |   |
| **8.01**         |       | Events of Default                                                               |   | 51     |
| **8.02**         |       | Remedies Upon Event of Default                                                  |   | 53     |
| **8.03**         |       | Application of Funds                                                            |   | 54     |

 

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| **ARTICLE IX.** | ** ** | **MISCELLANEOUS**                                 |   | 55     |
|-----------------|------------|---------------------------------------------------|--------|--------|
| ** **      | ** ** | ** **                                        |   |   |
| **9.01**        |       | Amendments, Etc                                   |   | 55     |
| **9.02**        |       | Notices; Effectiveness; Electronic Communications |   | 55     |
| **9.03**        |       | No Waiver; Cumulative Remedies                    |   | 57     |
| **9.04**        |       | Expenses; Indemnity; Damage Waiver                |   | 57     |
| **9.05**        |       | Successors and Assigns                            |   | 58     |
| **9.06**        |       | Treatment of Certain Information; Confidentiality |   | 61     |
| **9.07**        |       | Right of Setoff                                   |   | 62     |
| **9.08**        |       | Interest Rate Limitation                          |   | 62     |
| **9.09**        |       | Counterparts; Integration; Effectiveness          |   | 63     |
| **9.10**        |       | Survival of Representations and Warranties        |   | 63     |
| **9.11**        |       | Severability                                      |   | 63     |
| **9.12**        |       | Governing Law; Jurisdiction; Etc                  |   | 63     |
| **9.13**        |       | Waiver of Jury Trial                              |   | 64     |
| **9.14**        |       | No Advisory or Fiduciary Responsibility           |   | 65     |
| **9.15**        |       | USA PATRIOT Act Notice                            |   | 65     |
| **9.16**        |       | Time of the Essence                               |   | 65     |
| **9.17**        |       | No Oral Agreements                                |   | 65     |

 

**SCHEDULES**
| **1.01** |   | Initial Guarantors                                      |   |   |
|----------|--------|---------------------------------------------------------|--------|--------|
| **2.01** |   | Commitment                                              |   |   |
| **5.06** |   | Litigation                                              |   |   |
| **5.09** |   | Environmental Matters                                   |   |   |
| **5.13** |   | Subsidiaries and Other Equity Investments               |   |   |
| **7.01** |   | Existing Liens                                          |   |   |
| **7.03** |   | Existing Indebtedness                                   |   |   |
| **9.02** |   | The Lender’s Office, Certain Addresses for Notices |   |   |

 

**EXHIBITS**
| ***Form of*** |   |                   |   |   |
|---------------|--------|------------------------|--------|--------|
| **A**         |   | Committed Loan Notice  |   |   |
| **B**         |   | Note                   |   |   |
| **C**         |   | Compliance Certificate |   |   |

 

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**CREDIT AGREEMENT**

**CREDIT AGREEMENT**(this “**Agreement**”) is entered into as of May2, 2007, between **NIC INC.**, a Colorado corporation (“**Borrower**”) and **BANK OF AMERICA, N.A.**,as the Lender (in such capacity, the “**Lender**”) andL/C Issuer.

Borrower has requested that the Lender provide arevolving credit facility, and the Lender is willing to do so on the terms andconditions set forth herein.

In consideration of the mutual covenants andagreements herein contained, the parties hereto covenant and agree as follows:

# **ARTICLEI.**

# **DEFINITIONSAND ACCOUNTING TERMS**

## **1.01****        Defined Terms**.  As used in this Agreement, the followingterms shall have the meanings set forth below:

“**Acquisition**”  means any transaction or series of relatedtransactions for the purpose of or resulting, directly or indirectly, in (a)the  acquisition by  a Loan Party of all or substantially all ofthe assets of a Person, or of any line of business or division of a Person, or(b) the acquisition by a Loan Party of amore than of 50% of the Equity Interestsof any Person (other  than a Person thatis already a Subsidiary of such Loan Party), or otherwise causing any Person tobecome a Subsidiary of such Loan Party, or (c) a merger or consolidation or anyother combination by a Loan Party with another Person (other than a Person thatis a Loan Party); provided that (i) the Loan Party is the survivingentity or (ii) after giving effect to such merger or consolidation, such otherPerson has become a Loan Party; providedfurther that in no eventshall the formation or establishment of a Subsidiary that becomes a Loan Partyor the capitalization of or transfer to such Subsidiary that becomes a LoanParty of any existing assets or business of any Loan Party constitute anAcquisition.

“**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 undercommon Control with the Person specified.

“**Agreement**”means this Credit Agreement.

“**Applicable****Rate**” means, from time to time, the following percentagesper annum, based upon the Leverage Ratio as set forth in the most recentCompliance Certificate received by the Lender pursuant to **Section6.02(b)**:

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**ApplicableRate**
| ** **         | ** ** | ** **          | ** ** | ** **          | ** ** | **Eurodollar  Rate +** | ** ** | **Base**    | ** ** |
|--------------------|------------|---------------------|------------|---------------------|------------|-----------------------------|------------|-------------|------------|
| **Pricing  Level** | ** ** | **Leverage  Ratio** | ** ** | **Commitment  Fee** | ** ** | **Letters of  Credit** | ** ** | **Rate  +** | ** ** |
|               |       |                |       |                |       |                        |       |        |       |
| 1                  |       | ≤1.25:1.00    |       | 0.10                | %          | 1.00                        | %          | 0           |       |
|               |       |                |       |                |       |                        |       |        |       |
| 2                  |       | >1.25:1.00       |       | 0.15                | %          | 1.25                        | %          | 0           |       |

Any increase or decreasein the Applicable Rate resulting from a change in the Leverage Ratio shallbecome effective commencing on the 5th Business Day immediately following thedate a Compliance Certificate is delivered pursuant to **Section6.02(b)**; provided, however, that if a ComplianceCertificate is not delivered when due in accordance with such Section, thenPricing Level 2 shall apply commencing on the 5th Business Day following thedate such Compliance Certificate was required to have been delivered.  The Applicable Rate in effect from theClosing Date through June 30, 2007 shall be determined based upon Pricing Level1.

“**Attributable****Indebtedness**” means, on any date, (a) in respect of anycapital lease of any Person, the capitalized amount thereof that would appearon a balance sheet of such Person prepared as of such date in accordance withGAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalizedamount of the remaining lease payments under the relevant lease that wouldappear on a balance sheet of such Person prepared as of such date in accordancewith GAAP if such lease were accounted for as a capital lease.

“**Audited****Financial****Statements**”means the audited consolidated balance sheet of Borrower and its Subsidiariesfor the fiscal year ended December 31, 2005, and the related consolidatedstatements of income or operations, shareholders’ equity and cash flows forsuch fiscal year of Borrower and its Subsidiaries, including the notes thereto.

“**Availability****Period**” means the period from and including the Closing Dateto the earliest of (a) the Maturity Date, (b) the date of termination of theCommitments pursuant to **Section 2.05**,and (c) the date of termination of the commitment of the Lender to make Loansand of the obligation of the L/C Issuer to make L/C Credit Extensions pursuantto **Section 8.02**.

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

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

“**Base Rate Committed Loan**”means a Committed Loan that is a Base Rate Loan.

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

“**Borrower**” hasthe meaning specified in the introductory paragraph hereto.

“**Borrower****Materials**” has the means information provided by or onbehalf of Borrower hereunder.

“**Business****Day**” means any day other than a Saturday, Sunday or otherday on which commercial banks are authorized to close under the Laws of, or arein fact closed in, the state where Lender’s Office is located and, if such dayrelates to any Eurodollar Rate Loan, means any such day on which dealings inDollar deposits are conducted by and between banks in the London interbankeurodollar market.

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

“**Change****in****Law**” means theoccurrence, after the date of this Agreement, of any of the following: (a) theadoption or taking effect of any law, rule, regulation or treaty, (b) anychange in any law, rule, regulation or treaty or in the administration,interpretation or application thereof by any Governmental Authority or (c) themaking or issuance of any request, guideline or directive (whether or nothaving the force of law) by any Governmental Authority.

“**Change of Control**”means, with respect to any Person, 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 ExchangeAct of 1934, but excluding any employee benefit plan of such person or itssubsidiaries, and any person or entity acting in its capacity as trustee, agentor other fiduciary or administrator of any such plan) becomes the “beneficialowner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Actof 1934, except that a person or group shall be deemed to have “beneficialownership” of all securities that such person or group has the right toacquire, whether such right is exercisable immediately or only after thepassage of time (such right, an “option right”)), directly or indirectly, of50% or more of the equity securities of such Person entitled to vote formembers of the board of directors or equivalent governing body of such Personon a fully-diluted basis (and taking into account all such securities that suchperson or group has the right to acquire pursuant to any option right);

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### (b)           during any period of 24consecutive months, a majority of the members of the board of directors orother equivalent governing body of such Person cease to be composed ofindividuals (i) who were members of that board or equivalent governing body onthe first day of such period, (ii) whose election or nomination to that boardor equivalent governing body was approved by individuals referred to in clause(i) above constituting at the time of such election or nomination at least amajority of that board or equivalent governing body or (iii) whose election ornomination to that board or other equivalent governing body was approved byindividuals referred to in clauses (i) and (ii) above constituting at the timeof such election or nomination at least a majority of that board or equivalentgoverning body (excluding, in the case of both clause (ii) and clause (iii),any individual whose initial nomination for, or assumption of office as, amember of that board or equivalent governing body occurs as a result of anactual or threatened solicitation of proxies or consents for the election orremoval of one or more directors by any person or group other than asolicitation for the election of one or more directors by or on behalf of theboard of directors); or

### (c)           any individual(s) orentity(s) acting in concert shall have acquired by contract or otherwise, orshall have entered into a contract or arrangement that, upon consummationthereof, will result in its or their acquisition of the power to exercise,directly or indirectly, a controlling influence over the management or policiesof such Person, or control over the equity securities of such Person entitledto vote for members of the board of directors or equivalent governing body ofsuch Person on a fully-diluted basis (and taking into account all such securitiesthat such individual(s) or entity(s)  orgroup has the right to acquire pursuant to any option right) representing 50%or more of the combined voting power of such securities.

“**Closing****Date**” means the first date all the conditions precedent in **Section 4.01** are satisfied or waived in accordance with **Section 9.01**.

“**Code**” means theInternal Revenue Code of 1986.

“**Commitment**”means the Lender’s obligation to (a) make Committed Loans to Borrower pursuantto **Section 2.01**, and (b) purchaseparticipations in L/C Obligations, in an aggregate principal amount at any onetime outstanding not to exceed the amount set forth opposite the Lender’s nameon **Schedule 2.01**, as such amount may beadjusted from time to time in accordance with this Agreement.

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

“**Committed****Loan**” has the meaning specified in **Section 2.01**.

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

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

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

“**Control**” meansthe possession, directly or indirectly, of the power to direct or cause thedirection of the management or policies of a Person, whether through theability to exercise voting power, by contract or otherwise.  “**Controlling**”and “**Controlled**” have meanings correlativethereto.

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

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

“**Default**” meansany event or condition that constitutes an Event of Default or that, with thegiving of any notice, the passage of time, or both, would be an Event ofDefault.

“**Default****Rate**” means (a) when used with respect to Obligations otherthan L/C Fees an interest rate equal to (i) the Base Rate *plus*(ii) the Applicable Rate, if any, applicable to Base Rate Loans *plus* (iii) 2% per annum; provided, however,that with respect to a Eurodollar Rate Loan, the Default Rate shall be aninterest rate equal to the interest rate (including any Applicable Rate)otherwise applicable to such Loan plus 2% per annum, and (b) when used with respectto L/C Fees, a rate equal to the Applicable Rate plus 2% per annum.

“**Disposition**” or“**Dispose**” means the sale, transfer,license, lease or other disposition (including any sale and leasebacktransaction) of any property by any Person, including any sale, assignment,transfer or other disposal, with or without recourse, of any notes or accountsreceivable or any rights and claims associated therewith.

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

“**EBITDA**” means,for any period, an amount equal to net income for such period (less income orplus loss for such period from discontinued operations and extraordinary items)*plus* (i) amounts deducted in thecomputation thereof for (a) income taxes, (b) interest expense, (c)depreciation, depletion or amortization and (d) other non-cash expenses, lossesor charges (including, without limitation, non-cash expenses for recognizedpursuant to Financial Accounting Standards Board Statement No. 123(R)(Share-Based Payments), but excluding any accounts receivable or inventorywrite-offs); provided that if any such non-cash expense becomes a cash chargein a future period, EBITDA will be adjusted by the amount of such cash charge,and *minus* (ii) all non-cash items added inthe computation thereof.

“**Environmental****Laws**” means any and all Federal, state, local, and foreignstatutes, laws, regulations, ordinances, rules, judgments, orders, decrees,permits, concessions, grants, franchises, licenses, agreements or governmentalrestrictions relating to pollution and the

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protection of theenvironment or the release of any materials into the environment, includingthose related to hazardous substances or wastes, air emissions and dischargesto 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 oftheir respective Subsidiaries directly or indirectly resulting from or basedupon (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 ofany Hazardous Materials into the environment or (e) any contract, agreement orother consensual arrangement pursuant to which liability is assumed or imposedwith respect to any of the foregoing.

“**Equity****Interests**” means, with respect to any Person, all of theshares of capital stock of (or other ownership or profit interests in) suchPerson, all of the warrants, options or other rights for the purchase oracquisition from such Person of shares of capital stock of (or other ownershipor profit interests in) such Person, all of the securities convertible into orexchangeable for shares of capital stock of (or other ownership or profitinterests in) such Person or warrants, rights or options for the purchase oracquisition from such Person of such shares (or such other interests), and allof the other ownership or profit interests in such Person (includingpartnership, member or trust interests therein), whether voting or nonvoting,and whether or not such shares, warrants, options, rights or other interestsare outstanding on any date of determination.

“**ERISA**” meansthe Employee Retirement Income Security Act of 1974.

“**ERISA****Affiliate**” means any trade or business (whether or notincorporated) under common control with Borrower within the meaning of Section414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposesof provisions relating to Section 412 of the Code).

“**ERISA****Event**” means (a) a Reportable Event with respect to aPension Plan; (b) a withdrawal by Borrower or any ERISA Affiliate from aPension Plan subject to Section 4063 of ERISA during a plan year in which itwas a substantial employer (as defined in Section 4001(a)(2) of ERISA) or acessation of operations that is treated as such a withdrawal under Section4062(e) of ERISA; (c) a complete or partial withdrawal by Borrower or any ERISAAffiliate from a Multiemployer Plan or notification that a Multiemployer Planis in reorganization; (d) the filing of a notice of intent to terminate, thetreatment of a Plan amendment as a termination under Section 4041 or 4041A ofERISA, or the commencement of proceedings by the PBGC to terminate a PensionPlan or Multiemployer Plan; (e) an event or condition which constitutes groundsunder Section 4042 of ERISA for the termination of, or the appointment of atrustee to administer, any Pension Plan or Multiemployer Plan; or (f) theimposition of any liability under Title IV of ERISA, other than for PBGCpremiums due but not delinquent under Section 4007 of ERISA, upon Borrower orany ERISA Affiliate.

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

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

| Eurodollar   |   | Eurodollar Base  Rate                       |
|--------------|--------|---------------------------------------------|
| Rate  = |   | 1.00 –  Eurodollar Reserve  Percentage |

Where,

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

“Eurodollar Reserve Percentage” means, for any day during anyInterest Period, the reserve percentage (expressed as a decimal, carried out tofive decimal places) in effect on such day, whether or not applicable to the Lender,under regulations issued from time to time by the Board of Governors of theFederal Reserve System of the United States for determining the maximum reserverequirement (including any emergency, supplemental or other marginal reserverequirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrencyliabilities”).  The Eurodollar Rate foreach outstanding Eurodollar Rate Loan shall be adjusted automatically as of theeffective date of any change in the Eurodollar Reserve Percentage.

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

“**Event****of****Default**” hasthe meaning specified in **Section 8.01**.

“**Excluded****Taxes**” means, with respect to the Lender, the L/C Issuer orany other recipient of any payment to be made by or on account of anyobligation of Borrower hereunder, (a) taxes imposed on or measured by itsoverall net income (however denominated), and franchise taxes imposed on it (inlieu of net income taxes), by the jurisdiction (or any political subdivisionthereof) under the laws of which such recipient is organized or in which itsprincipal office is located or, in the case of the Lender, in which itsapplicable Lending Office is located,

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and (b) any branchprofits taxes imposed by the United States or any similar tax imposed by anyother jurisdiction in which Borrower is located.

“**Federal****Funds****Rate**” means,for any day, the rate per annum equal to the weighted average of the rates onovernight Federal funds transactions with members of the Federal Reserve Systemarranged by Federal funds brokers on such day, as published by the FederalReserve Bank of New York on the Business Day next succeeding such day; providedthat (a) if such day is not a Business Day, the Federal Funds Rate for such dayshall be such rate on such transactions on the next preceding Business Day asso published on the next succeeding Business Day, and (b) if no such rate is sopublished on such next succeeding Business Day, the Federal Funds Rate for suchday shall be the average rate (rounded upward, if necessary, to a wholemultiple of 1/100 of 1%) charged to Bank of America on such day on suchtransactions as determined by the Lender.

“**Foreign Lender**”means any bank that is organized under the laws of a jurisdiction other thanthat in which the Borrower is resident for tax purposes.  For purposes of this definition, the UnitedStates, each State thereof and the District of Columbia shall be deemed toconstitute a single jurisdiction.

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

“**GAAP**” meansgenerally accepted accounting principles in the United States set forth in theopinions and pronouncements of the Accounting Principles Board and the AmericanInstitute of Certified Public Accountants and statements and pronouncements ofthe Financial Accounting Standards Board or such other principles as may beapproved by a significant segment of the accounting profession in the UnitedStates, that are applicable to the circumstances as of the date ofdetermination, consistently applied.

“**Governmental****Authority**” means the government of the United States or anyother nation, or of any political subdivision thereof, whether state or local,and any agency, authority, instrumentality, regulatory body, court, centralbank 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 EuropeanCentral Bank).

“**Guarantee**”means, as to any Person, any (a) any obligation, contingent or otherwise, ofsuch Person guaranteeing or having the economic effect of guaranteeing anyIndebtedness or other obligation payable or performable by another Person (the “primaryobligor”) in any manner, whether directly or indirectly, and including anyobligation of such Person, direct or indirect, (i) to purchase or pay (oradvance or supply funds for the purchase or payment of) such Indebtedness orother obligation, (ii) to purchase or lease property, securities or servicesfor the purpose of assuring the obligee in respect of such Indebtedness orother obligation of the payment or performance of such Indebtedness or otherobligation, (iii) to maintain working capital, equity capital or any otherfinancial statement condition or liquidity or level of income or cash flow ofthe primary obligor so as to enable the primary obligor to pay suchIndebtedness or other obligation, or (iv) entered into for the purpose ofassuring in any other manner the obligee

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in respect of suchIndebtedness or other obligation of the payment or performance thereof or toprotect 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 otherobligation of any other Person, whether or not such Indebtedness or otherobligation is assumed by such Person (or any right, contingent or otherwise, ofany holder of such Indebtedness to obtain any such Lien); provided, that “Guarantee”shall not include obligations relating to the endorsement of checks, drafts orother items for collection in the ordinary course of business.  The amount of any Guarantee shall be deemedto be an amount equal to the stated or determinable amount of the relatedprimary obligation, or portion thereof, in respect of which such Guarantee ismade or, if not stated or determinable, the maximum reasonably anticipatedliability in respect thereof as determined by the guaranteeing Person in goodfaith.  The term “Guarantee” as a verbhas a corresponding meaning.

“**Guarantor**”means, collectively, collectively, (a)the initial Guarantors listed on Schedule1.01; (b) each Material Subsidiary that hereafter becomes a party to theGuaranty in accordance with **Section 6.13**;and (c) each Non-Material Subsidiary that now or hereafter elects to become aparty to the Guaranty provided that such Non-Material Subsidiary delivers tothe Lender documents of the types referred to in clauses (iii) and (iv) of **Section 4.01(a)** and favorable opinions of counsel to suchNon-Material Subsidiary (which shall cover, among other things, the legality,validity, binding effect and enforceability of the Guaranty), all in form,content and scope reasonably satisfactory to the Lender.

“**Guaranty**” meansthe Guaranty made by the Guarantors in favor of the Lender, in form andsubstance satisfactory to the Lender.

“**Hazardous****Materials**” means all explosive or radioactive substances orwastes and all hazardous or toxic substances, wastes or other pollutants,including petroleum or petroleum distillates, asbestos or asbestos-containingmaterials, polychlorinated biphenyls, radon gas, infectious or medical wastesand all other substances or wastes of any nature regulated pursuant to anyEnvironmental Law.

“**Indebtedness**”means, as to any Person at a particular time, without duplication, all of thefollowing, whether or not included as indebtedness or liabilities in accordancewith GAAP:

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

### (b)           all direct orcontingent 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 suchPerson under any Swap Contract;

### (d)           all obligations of suchPerson to pay the deferred purchase price of property or services (other than(i) trade accounts payable in the ordinary course of business and, in eachcase, not past due for more than 60 days after the due date that was set whensuch trade payable or account payable was created or (ii) expenses accrued inthe ordinary course of business);

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### (e)           indebtedness (excludingprepaid interest thereon) secured by a Lien on property owned or beingpurchased by such Person (including indebtedness arising under conditionalsales or other title retention agreements), whether or not such indebtednessshall have been assumed by such Person or is limited in recourse;

### (f)            capital leases andSynthetic Lease Obligations;

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

### (h)           all Guarantees of suchPerson in respect of any of the foregoing.

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

“**Indemnified Taxes**”means Taxes other than Excluded Taxes.

“**Indemnitees**”has the meaning specified in **Section 9.04(b)**.

“**Information**”has the meaning specified in **Section 9.07**.

“**Interest****Payment****Date**” means,(a) as to any Loan other than a Base Rate Loan, the last day of each InterestPeriod applicable to such Loan and the Maturity Date; and (b) as to any Base RateLoan, the last Business Day of each March, June, September and December and theMaturity Date.

“**Interest****Period**” means, as to each Eurodollar Rate Loan, the periodcommencing on the date such Eurodollar Rate Loan is disbursed or converted toor continued as a Eurodollar Rate Loan and ending on the date one, two or threemonths thereafter, as selected by Borrower in its Committed Loan Notice; providedthat:

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

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

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(iii)                               noInterest Period shall extend beyond the Maturity Date.

“**Internal****Control****Event**” means amaterial weakness in, or fraud that involves management or other employees whohave a significant role in, Borrower’s internal controls over financialreporting, in each case as described in the Securities Laws.

“**Investment**”means, as to any Person, any direct or indirect acquisition or investment bysuch Person, whether by means of (a) the purchase or other acquisition ofcapital stock or other securities of another Person, (b) a loan, advance orcapital contribution to, Guarantee or assumption of debt of, or purchase orother acquisition of any other debt or equity participation or interest in,another Person, including any partnership or joint venture interest in suchother Person and any arrangement pursuant to which the investor GuaranteesIndebtedness of such other Person, or (c) the purchase or other acquisition (inone transaction or a series of transactions) of assets of another Person thatconstitute a business unit.  For purposesof covenant compliance, the amount of any Investment shall be the amountactually invested, without adjustment for subsequent increases or decreases inthe value of such Investment.

“**IRS**” means theUnited States Internal Revenue Service.

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

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

“**Laws**” means,collectively, all international, foreign, Federal, state and local statutes,treaties, rules, guidelines, regulations, ordinances, codes and administrativeor judicial precedents or authorities, including the interpretation oradministration thereof by any Governmental Authority charged with theenforcement, interpretation or administration thereof, and all applicableadministrative orders, directed duties, requests, licenses, authorizations andpermits of, and agreements with, any Governmental Authority, in each case whetheror not having the force of law.

“**L/C Advance**”means the Lender’s funding of its participation in any L/C Borrowing.

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

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

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

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“**L/C Expiration Date**”means the day that is 365 days after the Maturity Date then in effect (or, ifsuch day is not a Business Day, the next preceding Business Day).

“**L/C Fee**” hasthe meaning specified in **Section 2.03(i)**.

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

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

“**L/C Sublimit**”means an amount equal to $5,000,000.00. The L/C Sublimit is part of, and not in addition to, the Commitments.

“**Lender**” has themeaning specified in the introductory paragraph hereto.

“**Lending****Office**” means the office or offices of the Lender describedas such in **Schedule 10.2**, or such otheroffice or offices as the Lender may from time to time notify Borrower.

“**Letter****of****Credit**” meansany standby letter of credit issued hereunder.

“**Leverage Ratio**”means, as of any date of determination, the ratio of (a) Total Funded Debt asof such date to (b) EBITDA for the period of the 12 months then ended.

“**Lien**” means anymortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,lien (statutory or other), charge, or preference, priority or other securityinterest or preferential arrangement in the nature of a security interest ofany kind or nature whatsoever (including any conditional sale or other titleretention agreement, any easement, right of way or other encumbrance on titleto real property, and any financing lease having substantially the sameeconomic effect as any of the foregoing).

“**Loan**” means anextension of credit by the Lender to Borrower under **Article II**in the form of a Committed Loan.

“**Loan****Documents**” means this Agreement, the Note, each IssuerDocument and the Guaranty.

“**Loan****Parties**” means, collectively, Borrower and each Person(other than the Lender or the L/C Issuer) executing a Loan Document including,without limitation, each Guarantor.

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“**Material****Adverse****Effect**” means(a) a material adverse change in, or a material adverse effect upon, theoperations, business, properties, liabilities (actual or contingent) orcondition (financial or otherwise) or prospects of Borrower and itsSubsidiaries taken as a whole; (b) a material impairment of the ability of theBorrower or any Material Subsidiary to perform its obligations under any LoanDocument to which it is a party; or (c) a material adverse effect upon thelegality, validity, binding effect or enforceability against any Loan Party ofany Loan Document to which it is a party.

“**Material Subsidiary**”means a Subsidiary other than a Non-Material Subsidiary.

“**Maturity****Date**” means May 1, 2009; provided, however, that if suchdate is not a Business Day, the Maturity Date shall be the next precedingBusiness Day.

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

“**Non-Material Subsidiary**”means a Subsidiary that (a) at no time during the then current fiscal year orthe two then preceding fiscal years of the Borrower, constituted more thanthree percent (3%) of consolidated total assets (as shown on the Borrower’sconsolidated balance sheet) or (b) accounted for no more than three percent(3%) of the gross revenues of the Borrower and its Subsidiaries, determined ona consolidated basis, in respect of any one or more of the then precedingtwelve (12) fiscal quarters of the Borrower or (c) accounted for no more thanthree percent (3%) of the EBITDA of the Borrower and its Subsidiaries,determined on a consolidated basis, in respect of any one or more of the thenpreceding twelve (12) fiscal quarters of the Borrower or (d) accounted for nomore than three percent (3%) of the net income of the Borrower and itsSubsidiaries, determined on a consolidated basis, in respect of any one or moreof the then preceding twelve (12) fiscal quarters of the Borrower.

“**Note**” means apromissory note made by Borrower in favor of the Lender evidencing Loans madeby the Lender, substantially in the form of **Exhibit B**.

“**Obligations**”means all advances to, and debts, liabilities, obligations, covenants andduties of, any Loan Party arising under any Loan Document or otherwise withrespect to any Loan or Letter of Credit, whether direct or indirect (includingthose acquired by assumption), absolute or contingent, due or to become due,now existing or hereafter arising and including interest and fees that accrueafter the commencement by or against any Loan Party or any Affiliate thereof ofany proceeding under any Debtor Relief Laws naming such Person as the debtor insuch proceeding, regardless of whether such interest and fees are allowedclaims in such proceeding.

“**Organization****Documents**” means, (a) with respect to any corporation, thecertificate or articles of incorporation and the bylaws (or equivalent orcomparable constitutive documents with respect to any non-U.S. jurisdiction);(b) with respect to any limited liability company, the certificate or articlesof formation or organization and operating agreement; (c) with respect to anyseries of a limited liability company the certificate of designation andoperating agreement

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and (d) with respect toany partnership, joint venture, trust or other form of business entity, thepartnership, joint venture or other applicable agreement of formation ororganization and any agreement, instrument, filing or notice with respectthereto filed in connection with its formation or organization with theapplicable Governmental Authority in the jurisdiction of its formation ororganization and, if applicable, any certificate or articles of formation ororganization of such entity.

“**Other****Taxes**” means all present or future stamp, intangible ordocumentary taxes or any other excise or property taxes, charges or similarlevies arising from any payment made hereunder or under any other Loan Documentor from the execution, delivery or enforcement of, or otherwise with respectto, this Agreement or any other Loan Document.

“**Outstanding****Amount**” means (i) with respect to Committed Loans on anydate, the aggregate outstanding principal amount thereof after giving effect toany borrowings and prepayments or repayments of Committed Loans, as the casemay be, occurring on such date; and (ii) with respect to any L/C Obligations onany date, the amount of such L/C Obligations on such date after giving effectto any L/C Credit Extension occurring on such date and any other changes in theaggregate amount of the L/C Obligations as of such date, including as a resultof any reimbursements by Borrower of Unreimbursed Amounts.

“**Participant**”has the meaning specified in **Section 9.06(d)**.

“**PBGC**” means thePension Benefit Guaranty Corporation.

“**PCAOB**” meansthe Public Company Accounting Oversight Board.

“**Pension****Plan**” means any “employee pension benefit plan” (as suchterm 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 Borroweror any ERISA Affiliate or to which Borrower or any ERISA Affiliate contributesor has an obligation to contribute, or in the case of a multiple employer orother plan described in Section 4064(a) of ERISA, has made contributions at anytime during the immediately preceding five plan years.

“**Permitted Acquisition**”means an Acquisition by the Borrower or any other Loan Party of Persons and/ orassets where (i) no Default or Event of Default exists either before or afterthe proposed Permitted Acquisition, and (ii) the Persons or assets to beacquired are in (or used in) a business substantially related or incidental tothose lines of business conducted by the Borrower and its Subsidiaries and theprior, effective written consent or approval of such Acquisition by the boardof directors, executive committee or equivalent governing body, or thestockholders, as appropriate, of the other party or parties has been obtained,and would not be perceived by the Person or assets to be acquired as hostile innature; provided, that, without the prior written consent of the Lender, thepurchase price of any Acquisition (including assumed liabilities in connectionwith such Acquisition) will not exceed $3,000,000, and the aggregate purchaseprice of all Acquisitions until the Maturity Date (including assumedliabilities in connection with such Acquisitions) will not exceed $10,000,000.

“**Person**” meansany natural person, corporation, limited liability company, trust, jointventure, association, company, partnership, Governmental Authority or otherentity.

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“**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 toSection 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

“**Platform**” meansIntraLinks or another similar electronic system.

“**Register**” hasthe meaning specified in **Section 9.06(c)**.

“**Registered PublicAccounting Firm**” has the meaning specified in the Securities Lawsand shall be independent of Borrower as prescribed by the Securities Laws.

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

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

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

“**Responsible****Officer**” means the chief executive officer, president, chieffinancial officer, treasurer  and, solelyfor purposes of notices given pursuant to **Article II**, anyother officer or employee of the applicable Loan Party so designated by any ofthe foregoing officers in a notice to the Lender.  Any document delivered hereunder that issigned by a Responsible Officer of a Loan Party shall be conclusively presumedto have been authorized by all necessary corporate, partnership and/or otheraction on the part of such Loan Party and such Responsible Officer shall beconclusively presumed to have acted on behalf of such Loan Party.

“**Restricted****Payment**” means any dividend or other distribution (whetherin cash, securities or other property) with respect to any capital stock orother Equity Interest of Borrower or any Subsidiary, or any payment (whether incash, securities or other property), including any sinking fund or similardeposit, on account of the purchase, redemption, retirement, acquisition,cancellation or termination of any such capital stock or other Equity Interestor on account of any return of capital to Borrower’s stockholders, partners ormembers (or the equivalent Person thereof).

“**RestrictedSubsidiary**” means a Subsidiary that is not a Guarantor.

“**Sarbanes-Oxley**”means the Sarbanes-Oxley Act of 2002.

“**SEC**” means theSecurities and Exchange Commission, or any Governmental Authority succeeding toany of its principal functions.

“**Securities Laws**”means the Securities Act of 1933, the Securities Exchange Act of 1934,Sarbanes-Oxley and the applicable accounting and auditing principles, rules,standards and practices promulgated, approved or incorporated by the SEC or thePCAOB.

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“**Subordinated Liabilities**”means liabilities subordinated to the Obligations in a manner reasonablyacceptable to the Lender.

“**Subsidiary**” ofa Person means a corporation, partnership, joint venture, limited liabilitycompany, series of a limited liability company or other business entity ofwhich a majority of the shares of securities or other interests having ordinaryvoting power for the election of directors or other governing body (other thansecurities or interests having such power only by reason of the happening of acontingency) are at the time beneficially owned, or the management of which isotherwise controlled, directly, or indirectly through one or moreintermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” orto “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 orequity index swaps or options, bond or bond price or bond index swaps oroptions or forward bond or forward bond price or forward bond indextransactions, interest rate options, forward foreign exchange transactions, captransactions, floor transactions, collar transactions, currency swaptransactions, cross-currency rate swap transactions, currency options, spotcontracts, or any other similar transactions or any combination of any of theforegoing (including any options to enter into any of the foregoing), whetheror 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 ofmaster agreement published by the International Swaps and DerivativesAssociation, Inc., any International Foreign Exchange Master Agreement, or anyother master agreement (any such master agreement, together with any relatedschedules, a “Master Agreement”), including any such obligations orliabilities under any Master Agreement.

“**Swap****Termination****Value**” means,in respect of any one or more Swap Contracts, after taking into account theeffect of any legally enforceable netting agreement relating to such SwapContracts, (a) for any date on or after the date such Swap Contracts have beenclosed out and termination value(s) determined in accordance therewith, suchtermination value(s), and (b) for any date prior to the date referenced inclause (a), the amount(s) determined as the mark-to-market value(s) for suchSwap Contracts, as determined based upon one or more mid-market or otherreadily available quotations provided by any recognized dealer in such SwapContracts (which may include the Lender or any Affiliate of the 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 orpossession of property creating obligations that do not appear on the balancesheet of such Person but which, upon the insolvency or bankruptcy of suchPerson, would be characterized as the indebtedness of such Person (withoutregard to accounting treatment).

“**Tangible Net Worth**”means the value of total assets (including leaseholds and leaseholdimprovements and reserves against assets but excluding goodwill, patents,trademarks, trade names, organization expense, unamortized debt discount andexpense, capitalized or deferred research and development costs, deferredmarketing expenses, and other like

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intangibles, and moniesdue from Affiliates, officers, directors, employees, shareholders, members or managers)less Total Liabilities, including but not limited to accrued and deferredincome taxes, but excluding the non-current portion of SubordinatedLiabilities.

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

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

“**Total Funded****Debt**” means all outstanding Indebtedness.

“**Total****Liabilities**” means the sum of current liabilities plus longterm liabilities.

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

“**Type**” means,with respect to a Committed Loan, its character as a Base Rate Loan or aEurodollar Rate Loan.

“**Unfunded****Pension****Liability**”means the excess of a Pension Plan’s benefit liabilities under Section4001(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 Planpursuant to Section 412 of the Code for the applicable plan year.

“**United****States**” and “**U.S.**” mean theUnited States of America.

“**Unreimbursed****Amount**” has the meaning specified in **Section2.03(c)(i)**.

## **1.02****        Other InterpretiveProvisions**.  With reference to thisAgreement and each other Loan Document, unless otherwise specified herein or insuch other Loan Document:

### (a)           Thedefinitions of terms herein shall apply equally to the singular and pluralforms of the terms defined.  Whenever thecontext 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 thephrase “without limitation.”  The word “will”shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i)any definition of or reference to any agreement, instrument or other document(including any Organization Document) shall be construed as referring to suchagreement, instrument or other document as from time to time amended,supplemented or otherwise modified (subject to any restrictions on suchamendments, supplements or modifications set forth herein or in any other LoanDocument), (ii) any reference herein to any Person shall be construed toinclude such Person’s successors and assigns, (iii) the words “herein,” “hereof”and “hereunder,” and words of similar import when used in any LoanDocument, shall be construed to refer to such Loan Document in its entirety andnot to any particular provision thereof, (iv) all references in a Loan Documentto Articles, Sections, Exhibits and Schedules shall be construed to refer toArticles and Sections of, and Exhibits and Schedules to, the Loan Document inwhich such references appear, (v) any reference to any law shall include allstatutory and regulatory provisions

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### consolidating, amending, replacing or interpreting such law and anyreference to any law or regulation shall, unless otherwise specified, refer tosuch law or regulation as amended, modified or supplemented from time to time,and (vi) the words “asset” and “property” shall be construed tohave the same meaning and effect and to refer to any and all tangible andintangible assets and properties, including cash, securities, accounts andcontract rights.

### (b)           Inthe computation of periods of time from a specified date to a later specifieddate, 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)           Sectionheadings herein and in the other Loan Documents are included for convenience ofreference only and shall not affect the interpretation of this Agreement or anyother Loan Document.

## **1.03****        Accounting Terms**.  (a)  Generally.  All accounting terms not specifically orcompletely defined herein shall be construed in conformity with, and allfinancial data (including financial ratios and other financial calculations)required to be submitted pursuant to this Agreement shall be prepared inconformity with, GAAP applied on a consistent basis, as in effect from time totime, applied in a manner consistent with that used in preparing the AuditedFinancial Statements, except as otherwise specifically prescribed herein.

### (b)           Changesin GAAP.  If at any time any changein GAAP would affect the computation of any financial ratio or requirement setforth in any Loan Document, and either Borrower or the Lender shall so request,the Lender and Borrower shall negotiate in good faith to amend such ratio orrequirement to preserve the original intent thereof in light of such change inGAAP; providedthat, until so amended, (i) such ratio orrequirement shall continue to be computed in accordance with GAAP prior to suchchange therein and (ii) Borrower shall provide to the Lender financialstatements and other documents required under this Agreement or as reasonablyrequested hereunder setting forth a reconciliation between calculations of suchratio or requirement made before and after giving effect to such change inGAAP.

### (c)           Consolidationof Variable Interest Entities.  Allreferences herein to consolidated financial statements of Borrower and itsSubsidiaries or to the determination of any amount for Borrower and itsSubsidiaries on a consolidated basis or any similar reference shall, in eachcase, be deemed to include each variable interest entity that Borrower isrequired to consolidate pursuant to FASB Interpretation No. 46 — Consolidationof 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 bemaintained by Borrower pursuant to this Agreement shall be calculated bydividing the appropriate component by the other component, carrying the resultto one place more than the number of places by which such ratio is expressedherein and rounding the result up or down to the nearest number (with arounding-up if there is no nearest number).

## **1.05****        Times of Day**.  Unless otherwise specified, all referencesherein to times of day shall be references to Central time (daylight saving orstandard, as applicable).

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## **1.06****        Letter of Credit Amounts**.  Unless otherwise specified herein the amountof a Letter of Credit at any time shall be deemed to be the stated amount ofsuch Letter of Credit in effect at such time; provided, however,that with respect to any Letter of Credit that, by its terms or the terms ofany Issuer Document related thereto, provides for one or more automaticincreases in the stated amount thereof, the amount of such Letter of Creditshall be deemed to be the maximum stated amount of such Letter of Credit aftergiving effect to all such increases, whether or not such maximum stated amountis in effect at such time.

# **ARTICLEII.THE COMMITMENTS AND CREDIT EXTENSIONS**

## **2.01****        Committed Loans**.  Subject to the terms and conditions set forthherein, the Lender agrees to make loans (each such loan, a “**Committed****Loan**”)to Borrower from time to time, on any Business Day during the AvailabilityPeriod, in an aggregate amount not to exceed at any time outstanding the amountof the Commitment; provided, however, that after giving effect to any CommittedBorrowing, the Total Outstandings shall not exceed the Commitment.  Within the limits of the Commitment, andsubject to the other terms and conditions hereof, Borrower may borrow underthis **Section 2.01**, prepay under **Section 2.04** and reborrow under this **Section 2.01**.  Committed Loans may be Base Rate Loans orEurodollar Rate Loans, as further provided herein.

## **2.02****        Committed Borrowings,Conversions and Continuations of Committed Loans**.  (a)  Each Committed Borrowing, eachconversion of Committed Loans from one Type to the other, and each continuationof Eurodollar Rate Loans shall be made upon Borrower’s irrevocable notice tothe Lender, which may be given by telephone. Each such notice must be received by the Lender not later than 11:00a.m. (i) three Business Days prior to the requested date of any CommittedBorrowing of, conversion to or continuation of Eurodollar Rate Loans or of anyconversion of Eurodollar Rate Loans to Base Rate Committed Loans, and (ii) onthe requested date of any Committed Borrowing of Base Rate CommittedLoans.  Each telephonic notice byBorrower pursuant to this **Section 2.02(a)**must be confirmed promptly by delivery to the Lender of a written CommittedLoan Notice, appropriately completed and signed by a Responsible Officer ofBorrower.  Each Committed Borrowing of,conversion to or continuation of Eurodollar Rate Loans shall be in a principalamount of $1,000,000 or a whole multiple of $250,000 in excess thereof.  Except as provided in **Section 2.03(c)**, each Committed Borrowingof or conversion to Base Rate Committed Loans shall be in a principal amount of$500,000 or a whole multiple of $100,000 in excess thereof.  Each Committed Loan Notice (whethertelephonic or written) shall specify (i) whether Borrower is requesting aCommitted Borrowing, a conversion of Committed Loans from one Type to theother, or a continuation of Eurodollar Rate Loans, (ii) the requested date ofthe Committed Borrowing, conversion or continuation, as the case may be (whichshall be a Business Day), (iii) the principal amount of Committed Loans to beborrowed, converted or continued, (iv) the Type of Committed Loans to beborrowed or to which existing Committed Loans are to be converted, and (v) ifapplicable, the duration of the Interest Period with respect thereto.  If Borrower fails to specify a Type ofCommitted Loan in a Committed Loan Notice or if Borrower fails to give a timelynotice requesting a conversion or continuation, then the applicable CommittedLoans shall be made as, or converted to, Base Rate Loans.  Any such automatic conversion to Base RateLoans shall be effective as of the last day of

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## the InterestPeriod then in effect with respect to the applicable Eurodollar RateLoans.  If Borrower requests a CommittedBorrowing of, conversion to, or continuation of Eurodollar Rate Loans in anysuch Committed Loan Notice, but fails to specify an Interest Period, it will bedeemed to have specified an Interest Period of one month.

### (b)           Following receipt of aCommitted Loan Notice for a Committed Borrowing and upon satisfaction of theapplicable conditions set forth in **Section4.02** (and, if such Committed Borrowing is the initial CreditExtension, **Section 4.01**), theLender shall make the funds so requested available to Borrower either by (i)crediting the account of Borrower on the books of Bank of America with theamount of such funds or (ii) wire transfer of such funds, in each case inaccordance with instructions provided to (and reasonably acceptable to) theLender by Borrower; provided, however, that if, on the date theCommitted Loan Notice with respect to such Committed Borrowing is given byBorrower, there are L/C Borrowings outstanding, then the proceeds of suchCommitted Borrowing first, shall be applied, to the payment in full ofany such L/C Borrowings, and second, shall be made available to Borroweras provided above.

### (c)           Except as otherwiseprovided herein, a Eurodollar Rate Loan may be continued or converted only onthe last day of an Interest Period for such Eurodollar Rate Loan.  During the existence of a Default, no Loansmay be requested as, converted to or continued as Eurodollar Rate Loans, andduring the existence of an Event of Default the Lender may demand that any orall of the then outstanding Eurodollar Rate Loans be converted immediately toBase Rate Committed Loans and Borrower agrees to pay all amounts due under S**ection 3.05** in accordance with the termsthereof due to any such conversion.

### (d)           The Lender shallpromptly notify Borrower of the interest rate applicable to any Interest Periodfor Eurodollar Rate Loans upon determination of such interest rate.

### (e)           After giving effect toall Committed Borrowings, all conversions of Committed Loans from one Type tothe other, and all continuations of Committed Loans as the same Type, thereshall not be more than six Interest Periods in effect with respect to CommittedLoans.

## **2.03****        Letters of Credit**.  (a)  TheLetter of Credit Commitment.

#### (i)            Subjectto the terms and conditions set forth herein, (A) the L/C Issuer agrees, inreliance upon the agreements of the Lender set forth in this**Section 2.03**, (1) from time to time on anyBusiness Day during the period from the Closing Date until the L/C ExpirationDate, to issue Letters of Credit for the account of Borrower or itsSubsidiaries, and to amend or extend Letters of Credit previously issued by it,in accordance with subsection (b) below, and (2) to honor drawings under theLetters of Credit; and (B) the Lender agrees to participate in Letters ofCredit issued for the account of Borrower or its Subsidiaries and any drawingsthereunder; provided that after giving effect to any L/C CreditExtension with respect to any Letter of Credit, (x) the Total Outstandingsshall not exceed the Commitment, or (y) the Outstanding Amount of the L/CObligations shall not exceed the L/C Sublimit. Each request by Borrower for the issuance or amendment of a Letter ofCredit shall be deemed to be a representation by Borrower that the L/C CreditExtension so requested complies with the conditions set forth in the proviso tothe preceding sentence.  Within theforegoing limits, and subject to the terms and conditions hereof, Borrower’sability to obtain Letters of Credit shall be fully revolving,  and accordingly

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#### Borrower may,during the foregoing period, obtain Letters of Credit to replace Letters ofCredit that have expired or that have been drawn upon and reimbursed.

#### (ii)           TheL/C Issuer shall not issue any Letter of Credit, if:

##### (A)          the expiry date of suchrequested Letter of Credit would occur more than twelve months after the dateof issuance or last extension, unless the Lender has approved such expiry date;or

##### (B)           the expiry date of suchrequested Letter of Credit would occur after the L/C Expiration Date, unlessall the Lenders have approved such expiry date.

#### (iii)          TheL/C Issuer shall be under no obligation to issue any Letter of Credit if:

##### (A)          any order, judgment ordecree of any Governmental Authority or arbitrator shall by its terms purportto enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or anyLaw applicable to the L/C Issuer or any request or directive (whether or nothaving the force of law) from any Governmental Authority with jurisdiction overthe L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, theissuance of letters of credit generally or such Letter of Credit in particularor shall impose upon the L/C Issuer with respect to such Letter of Credit anyrestriction, reserve or capital requirement (for which the L/C Issuer is nototherwise compensated hereunder) not in effect on the Closing Date, or shallimpose upon the L/C Issuer any unreimbursed loss, cost or expense which was notapplicable on the Closing Date and which the L/C Issuer in good faith deemsmaterial to it;

##### (B)           the issuance of suchLetter of Credit would violate one or more policies of the L/C Issuerapplicable to letters of credit generally;

##### (C)           except as otherwiseagreed by the Lender and the L/C Issuer, such Letter of Credit is in an initialstated amount less than $10,000;

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

##### (E)           a default of the Lender’sobligations to fund under **Section 2.03(c)**exists, unless the L/C Issuer has entered into satisfactory arrangements withBorrower or the Lender to eliminate the L/C Issuer’s risk with respect to theLender; or

##### (F)           **UNLESS SPECIFICALLY PROVIDED FOR IN THIS AGREEMENT,SUCH LETTER OF CREDIT CONTAINS ANY PROVISIONS FOR AUTOMATIC REINSTATEMENT OFTHE STATED AMOUNT AFTER ANY DRAWING THEREUNDER.**

#### (iv)          TheL/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not bepermitted at such time to issue such Letter of Credit in its amended form underthe terms hereof.

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

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#### (vi)          TheL/C Issuer shall act on behalf of the Lender with respect to any Letters ofCredit issued by it and the documents associated therewith, and the L/C Issuershall have all of the benefits and immunities as additionally provided hereinwith respect to the L/C Issuer.

### (b)           Procedures forIssuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.

#### (i)            EachLetter of Credit shall be issued or amended, as the case may be, upon therequest of Borrower delivered to the L/C Issuer (with a copy to the Lender) inthe form of a L/C Application, appropriately completed and signed by aResponsible Officer of Borrower.  SuchL/C Application must be received by the L/C Issuer and the Lender not later than11:00 a.m. at least two Business Days (or such later date and time as theLender and the L/C Issuer may agree in a particular instance in their solediscretion) prior to the proposed issuance date or date of amendment, as thecase may be.  In the case of a requestfor an initial issuance of a Letter of Credit, such L/C Application shallspecify in form and detail satisfactory to the L/C Issuer: (A) the proposedissuance date of the requested Letter of Credit (which shall be a BusinessDay); (B) the amount thereof; (C) the expiry date thereof; (D) the name andaddress of the beneficiary thereof; (E) the documents to be presented by suchbeneficiary in case of any drawing thereunder; (F) the full text of anycertificate to be presented by such beneficiary in case of any drawingthereunder; and (G) such other matters as the L/C Issuer may require.  In the case of a request for an amendment ofany outstanding Letter of Credit, such L/C Application shall specify in formand detail satisfactory to the L/C Issuer (A) the Letter of Credit to beamended; (B) the proposed date of amendment thereof (which shall be a BusinessDay); (C) the nature of the proposed amendment; and (D) such other matters asthe L/C Issuer may require. Additionally, Borrower shall furnish to the L/C Issuer and the Lendersuch other documents and information pertaining to such requested Letter ofCredit issuance or amendment, including any Issuer Documents, as the L/C Issueror the Lender may require.

#### (ii)           Promptlyafter receipt of any L/C Application at the address set forth in **Section 9.02** for receiving L/C Applicationsand related correspondence, the L/C Issuer will confirm with the Lender (bytelephone or in writing) that the Lender has received a copy of such L/CApplication from Borrower and, if not, the L/C Issuer will provide the Lenderwith a copy thereof.  Unless the L/CIssuer has received written notice from the Lender or any Loan Party, at leastone Business Day prior to the requested date of issuance or amendment of theapplicable Letter of Credit, that one or more applicable conditions in **Article IV** shall not then be satisfied,then, subject to the terms and conditions hereof, the L/C Issuer shall, on therequested date, issue a Letter of Credit for the account of Borrower (or theapplicable Subsidiary) or enter into the applicable amendment, as the case maybe, in each case in accordance with the L/C Issuer’s usual and customarybusiness practices.  Immediately upon theissuance of each Letter of Credit, the Lender shall be deemed to, and herebyirrevocably and unconditionally agrees to, purchase from the L/C Issuer a riskparticipation in such Letter of Credit in the amount of such Letter of Credit.

#### (iii)          Promptlyafter its delivery of any Letter of Credit or any amendment to a Letter ofCredit to an advising bank with respect thereto or to the beneficiary thereof,the L/C Issuer will also deliver to Borrower and the Lender a true and completecopy of such Letter of Credit or amendment.

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#### (iv)          IfBorrower so requests in any applicable L/C Application, the L/C Issuer may, inits sole and absolute discretion, agree to issue a Letter of Credit that hasautomatic extension provisions (each, an “**Auto-ExtensionLetter of Credit**”); provided that any such Auto-Extension Letter ofCredit must permit the L/C Issuer to prevent any such extension at least oncein each twelve-month period (commencing with the date of issuance of suchLetter of Credit) by giving prior notice to the beneficiary thereof not laterthan a day (the “**Non-Extension Notice Date**”)in each such twelve-month period to be agreed upon at the time such Letter ofCredit is issued.  Unless otherwisedirected by the L/C Issuer, Borrower shall not be required to make a specificrequest to the L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has beenissued, the Lender shall be deemed to have authorized (but may not require) theL/C Issuer to permit the extension of such Letter of Credit at any time to anexpiry date not later than the L/C Expiration Date; provided, however, that theL/C Issuer shall not permit any such extension if (A) the L/C Issuer hasdetermined that it would not be permitted, or would have no obligation, at suchtime to issue such Letter of Credit in its revised form (as extended) under theterms hereof (by reason of the provisions of clause (ii) or (iii) of **Section 2.03(a)** or otherwise), or (B) ithas received notice (which may be by telephone or in writing) on or before theday that is five Business Days before the Non-Extension Notice Date (1) fromthe Lender that the Lender has elected not to permit such extension, (2) fromthe Lender or Borrower that one or more of the applicable conditions specifiedin **Section 4.02** is not thensatisfied or (3) from the Borrower that the Borrower does not desire suchextension (without the need to provide any reason for such desire), and in eachsuch case directing the L/C Issuer not to permit such extension.

#### (v)           IfBorrower so requests in any applicable Letter of Credit Application, the L/CIssuer may, in its sole and absolute discretion, agree to issue a Letter ofCredit that permits the automatic reinstatement of all or a portion of thestated amount thereof after any drawing thereunder (each, an “**Auto-Reinstatement Letter of Credit**”).  Unless otherwise directed by the L/C Issuer,Borrower shall not be required to make a specific request to the L/C Issuer topermit such reinstatement.  Once anAuto-Reinstatement Letter of Credit has been issued, except as provided in thefollowing sentence, the Lender shall be deemed to have authorized (but may notrequire) the L/C Issuer to reinstate all or a portion of the stated amountthereof in accordance with the provisions of such Letter of Credit.  Notwithstanding the foregoing, if suchAuto-Reinstatement Letter of Credit permits the L/C Issuer to decline toreinstate all or any portion of the stated amount thereof after a drawingthereunder by giving notice of such non-reinstatement within a specified numberof days after such drawing (the “**Non-ReinstatementDeadline**”), the L/C Issuer shall not permit such reinstatement if ithas received a notice (which may be by telephone or in writing) on or beforethe day that is five Business Days before the Non-Reinstatement Deadline (A)from the Lender that the Lender has elected not to permit such reinstatement,(B) from the Lender or Borrower that one or more of the applicable conditionsspecified in **Section 4.02** is notthen satisfied (treating such reinstatement as an L/C Credit Extension forpurposes of this clause), or (C) from the Borrower that the Borrower does notdesire such reinstatement (without the need to provide any reason for suchdesire) and, in each case, directing the L/C Issuer not to permit suchreinstatement.

### (c)           Drawings andReimbursements; Funding of Participations.

#### (i)            Uponreceipt from the beneficiary of any Letter of Credit of any notice of a drawingunder such Letter of Credit, the L/C Issuer shall notify Borrower and theLender thereof.

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#### Not later than11:00 a.m. on the date of any payment by the L/C Issuer under a Letter ofCredit (each such date, an “**Honor Date**”),Borrower shall reimburse the L/C Issuer through the Lender in an amount equalto the amount of such drawing.  IfBorrower fails to so reimburse the L/C Issuer by such time, Borrower shall bedeemed to have requested a Committed Borrowing of Base Rate Loans to bedisbursed on the Honor Date in an amount equal to the amount of theunreimbursed drawing (the “**UnreimbursedAmount**”), without regard to the minimum and multiples specified in **Section 2.02** for the principal amount of BaseRate Loans, but subject to the amount of the unutilized portion of theCommitment and the conditions set forth in **Section4.02** (other than the delivery of a Committed Loan Notice).  Any notice given by the L/C Issuer or theLender pursuant to this **Section 2.03(c)(i)**may be given by telephone if promptly confirmed in writing; provided that thelack of such a prompt confirmation shall not affect the conclusiveness orbinding effect of such notice.

#### (ii)           TheLender shall upon any notice pursuant to **Section2.03(c)(i)** make funds available for the account of the L/C Issuer inan amount equal to the Unreimbursed Amount, whereupon, subject to theprovisions of **Section 2.03(c)(iii)**,the Lender shall be deemed to have made a Base Rate Committed Loan to Borrowerin such amount and the Lender shall remit such funds to the L/C Issuer.

#### (iii)          Withrespect to any Unreimbursed Amount that is not fully refinanced by a CommittedBorrowing of Base Rate Loans because the conditions set forth in **Section 4.02** cannot be satisfied or for anyother reason, Borrower shall be deemed to have incurred from the L/C Issuer anL/C Borrowing in the amount of the Unreimbursed Amount that is not sorefinanced, which L/C Borrowing shall be due and payable on demand (togetherwith interest) and shall bear interest at the Default Rate.  In such event, the Lender’s payment to theL/C Issuer pursuant to **Section 2.03(c)(ii)**shall be deemed payment in respect of its participation in such L/C Borrowingand shall constitute an L/C Advance from the Lender in satisfaction of itsparticipation obligation under this **Section2.03**.

#### (iv)          Untilthe Lender funds its Committed Loan or L/C Advance pursuant to this **Section 2.03(c)** to reimburse the L/C Issuerfor any amount drawn under any Letter of Credit, interest in respect of suchamount shall be solely for the account of the L/C Issuer.

#### (v)           TheLender’s obligation to make Committed Loans or L/C Advances to reimburse theL/C Issuer for amounts drawn under Letters of Credit, as contemplated by this **Section 2.03(c)**, shall be absolute andunconditional and shall not be affected by any circumstance, including (A) anysetoff, counterclaim, recoupment, defense or other right which the Lender mayhave against the L/C Issuer, Borrower or any other Person for any reason whatsoever;(B) the occurrence or continuance of a Default, or (C) any other occurrence,event or condition, whether or not similar to any of the foregoing; provided,however, that the Lender’s obligation to make Committed Loans pursuantto this **Section 2.03(c)** is subjectto the conditions set forth in **Section 4.02**(other than delivery by Borrower of a Committed Loan Notice).  No such making of an L/C Advance shallrelieve or otherwise impair the obligation of Borrower to reimburse the L/CIssuer for the amount of any payment made by the L/C Issuer under any Letter ofCredit, together with interest as provided herein.

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#### (vi)          Ifthe Lender fails to make available to the L/C Issuer any amount required to bepaid by the Lender pursuant to the foregoing provisions of this **Section 2.03(c)**, the L/C Issuer shall beentitled to recover from the Lender, on demand, such amount with interestthereon for the period from the date such payment is required to the date onwhich such payment is immediately available to the L/C Issuer at a rate perannum equal to the greater of the Federal Funds Rate and a rate determined bythe L/C issuer in accordance with banking industry rules on interbankcompensation, plus any administrative, processing or similar feescustomarily charged by the LC/ Issuer in connection with the foregoing.  If the Lender pays such amount (with interestand fees as aforesaid), the amount so paid shall constitute the Lender’sCommitted Loan included in the relevant Committed Borrowing or L/C Advance inrespect of the relevant L/C Borrowing, as the case may be.  A certificate of the L/C Issuer submitted tothe Lender with respect to any amounts owing under this clause (vi) shall beconclusive absent manifest error.

### (d)           Repayment ofParticipations.

#### (i)            Atany time after the L/C Issuer has made a payment under any Letter of Credit andhas received from the Lender the L/C Advance in respect of such payment inaccordance with **Section 2.03(c)**,if the Lender receives for the account of the L/C Issuer any payment in respectof the related Unreimbursed Amount or interest thereon (whether directly fromBorrower or otherwise, including proceeds of Cash Collateral applied thereto bythe Lender), the Lender will use such funds to repay the L/C Advance.

#### (ii)           Ifany payment received by the Lender for the account of the L/C Issuer pursuantto **Section 2.03(c)(i)** is requiredto be returned under any of the circumstances described in **Section 9.05** (including pursuant to anysettlement entered into by the L/C Issuer in its discretion), the Lender shallpay to the L/C Issuer the amount thereof. The obligations of the Lender under this clause shall survive thepayment in full of the Obligations and the termination of this Agreement.

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

#### (i)            anylack of validity or enforceability of such Letter of Credit, this Agreement, orany other Loan Document;

#### (ii)           theexistence of any claim, counterclaim, setoff, defense or other right thatBorrower or any Subsidiary may have at any time against any beneficiary or anytransferee of such Letter of Credit (or any Person for whom any suchbeneficiary or any such transferee may be acting), the L/C Issuer or any otherPerson, whether in connection with this Agreement, the transactionscontemplated hereby or by such Letter of Credit or any agreement or instrumentrelating thereto, or any unrelated transaction;

#### (iii)          anydraft, demand, certificate or other document presented under such Letter ofCredit proving to be forged, fraudulent, invalid or insufficient in any respector any statement

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#### therein beinguntrue or inaccurate in any respect; or any loss or delay in the transmissionor otherwise of any document required in order to make a drawing under suchLetter of Credit;

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

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

Borrower shall promptly examine a copy of each Letterof Credit and each amendment thereto that is delivered to it and, in the eventof any claim of noncompliance with Borrower’s instructions or otherirregularity, Borrower will immediately notify the L/C Issuer.  Borrower shall be conclusively deemed to havewaived any such claim against the L/C Issuer and its correspondents unless suchnotice is given as aforesaid.

### (f)            Role of L/C Issuer.  The Lender and Borrower agree that, in payingany drawing under a Letter of Credit, the L/C Issuer shall not have anyresponsibility to obtain any document (other than any sight draft, certificatesand documents expressly required by the Letter of Credit) or to ascertain orinquire as to the validity or accuracy of any such document or the authority ofthe Person executing or delivering any such document.  None of the L/C Issuer, any of its RelatedParties nor any correspondent, participant or assignee of the L/C Issuer shallbe liable to the Lender for (i) any action taken or omitted in connectionherewith at the request or with the approval of the Lender; (ii) any actiontaken or omitted in the absence of gross negligence or willful misconduct; or(iii) the due execution, effectiveness, validity or enforceability of anydocument or instrument related to any Letter of Credit or Issuer Document.  Borrower hereby assumes all risks of the actsor omissions of any beneficiary or transferee with respect to its use of anyLetter of Credit; provided, however, that this assumption is notintended to, and shall not, preclude Borrower’s pursuing such rights andremedies as it may have against the beneficiary or transferee at law or underany other agreement.  None of the L/CIssuer, any of its Related Parties nor any correspondent, participant orassignee of the L/C Issuer, shall be liable or responsible for any of thematters described in clauses (i) through (v) of **Section 2.03(e)**; provided, however, thatanything in such clauses to the contrary notwithstanding, Borrower may have aclaim against the L/C Issuer, and the L/C Issuer may be liable to Borrower, tothe extent, but only to the extent, of any direct, as opposed to consequentialor exemplary, damages suffered by Borrower which Borrower proves were caused bythe L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’swillful failure to pay under any Letter of Credit after the presentation to itby the beneficiary of a sight draft and certificate(s) strictly complying withthe terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuermay accept documents that appear on their face to be in order, withoutresponsibility for further investigation, regardless of any notice or informationto the contrary, and the L/C Issuer shall not be responsible for the validityor sufficiency of any instrument

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### transferringor assigning or purporting to transfer or assign a Letter of Credit or therights or benefits thereunder or proceeds thereof, in whole or in part, whichmay prove to be invalid or ineffective for any reason.

### (g)           Cash Collateral.  Upon the request of the Lender, (i) if theL/C Issuer has honored any full or partial drawing request under any Letter ofCredit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of theL/C Expiration Date, any L/C Obligation for any reason remains outstanding,Borrower shall, in each case, immediately Cash Collateralize the thenOutstanding Amount of all L/C Obligations. **Sections 2.05** and **8.02(c)** set forth certain additionalrequirements to deliver Cash Collateral hereunder.  For purposes hereof, “**Cash****Collateralize**”means to pledge and deposit with or deliver to the Lender, for the benefit ofitself and the L/C Issuer, as collateral for the L/C Obligations, cash ordeposit account balances pursuant to documentation in form and substancesatisfactory to the Lender and the L/C Issuer. Derivatives of such term have corresponding meanings.  Borrower hereby grants to the Lender, for thebenefit of itself and the L/C Issuer, a security interest in all such cash,deposit accounts and all balances therein and all proceeds of theforegoing.  Cash collateral shall bemaintained in blocked, non-interest bearing deposit accounts at Bank ofAmerica.

### (h)           Applicability of ISP.  Unless otherwise expressly agreed by the L/CIssuer and Borrower when a Letter of Credit is issued, the rules of the ISPshall apply to standby Letter of Credit.

### (i)            L/C Fees.  Borrower shall pay to the Lender a L/C fee(the “**L/C Fee**”) for each Letter ofCredit equal to the Applicable Rate times the daily  amount available to be drawn under suchLetter of Credit.  For purposes ofcomputing the daily amount available to be drawn under any Letter of Credit,the amount of such Letter of Credit shall be determined in accordance with **Section 1.06**.  L/C Fees shall be (i) due and payable on thefirst Business Day after the end of each March, June, September and December,commencing with the first such date to occur after the issuance of such Letterof Credit, on the L/C Expiration Date and thereafter on demand and (ii)computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any quarter, thedaily amount available to be drawn under each standby Letter of Credit shall becomputed and multiplied by the Applicable Rate separately for each periodduring such quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrarycontained herein, upon the request of the Lender, while any Event of Defaultexists, all L/C Fees shall accrue at the Default Rate.

### (j)            Processing ChargesPayable to L/C Issuer. Borrower shall pay directly to the L/C Issuer forits own account the customary issuance, presentation, amendment and otherprocessing fees, and other standard costs and charges, of the L/C Issuerrelating to letters of credit as from time to time in effect.  Such individual customary fees and standardcosts and charges are due and payable on demand and are nonrefundable.

### (k)           Conflict with IssuerDocuments.  In the event of anyconflict between the terms hereof and the terms of any Issuer Documents, theterms hereof shall control.

### (l)            Letters of CreditIssued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunderis in support of any obligations of, or is for the account of, a Subsidiary,Borrower shall be obligated to reimburse the L/C Issuer hereunder for any andall

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### drawings undersuch Letter of Credit.  Borrower herebyacknowledges that the issuance of Letters of Credit for the account ofSubsidiaries inures to the benefit of Borrower, and that Borrower’s businessderives substantial benefits from the businesses of such Subsidiaries.

## **2.04****        Prepayments**.  (a) Borrower may, upon notice to the Lender, at any time or from time totime voluntarily prepay Committed Loans in whole or in part without premium orpenalty; provided that (i) such notice must be received by the Lendernot later than 11:00 a.m. (A) three Business Days prior to any date ofprepayment of Eurodollar Rate Loans and (B) on the date of prepayment of BaseRate Committed Loans; (ii) any prepayment of Eurodollar Rate Loans shall be ina principal amount of $1,000,000 or a whole multiple of $250,000 in excessthereof; and (iii) any prepayment of Base Rate Committed Loans shall be in aprincipal amount of $500,000 or a whole multiple of $100,000 in excess thereofor, in each case, if less, the entire principal amount thereof thenoutstanding.  Each such notice shallspecify the date and amount of such prepayment and the Type(s) of CommittedLoans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, theInterest Period(s) of such Loans.  Ifsuch notice is given by Borrower, Borrower shall make such prepayment and thepayment amount specified in such notice shall be due and payable on the datespecified therein.  Any prepayment of aEurodollar Rate Loan shall be accompanied by all accrued interest on the amountprepaid, together with any additional amounts required pursuant to **Section 3.05**.  Each such prepayment shall be applied to theCommitted Loans of the Lender.

### (b)           If for any reason theTotal Outstandings at any time exceed the Commitment then in effect, Borrowershall immediately prepay Loans and/or Cash Collateralize the L/C Obligations inan aggregate amount equal to such excess; provided, however, thatBorrower shall not be required to Cash Collateralize the L/C Obligationspursuant to this **Section 2.04(c)**unless after the prepayment in full of the Loans the Total Outstandings exceedthe Commitment then in effect.

## **2.05****        Termination or Reductionof Commitments**.  Borrower may, uponnotice to the Lender, terminate the Commitment, or from time to timepermanently reduce the Commitment; provided that (i) any such noticeshall be received by the Lender not later than 11:00 a.m. five Business Daysprior to the date of termination or reduction, (ii) any such partial reductionshall be in an aggregate amount of $2,000,000 or any whole multiple of$1,000,000 in excess thereof, (iii) Borrower shall not terminate or reduce theCommitment if, after giving effect thereto and to any concurrent prepaymentshereunder, the Total Outstandings would exceed the Commitment, and (iv) if,after giving effect to any reduction of the Commitment, the L/C Sublimit exceedsthe amount of the Commitment, such Sublimit shall be automatically reduced bythe amount of such excess.  All feesaccrued until the effective date of any termination of the Commitment shall bepaid on the effective date of such termination.

## **2.06****        Repayment of Loans**.  Borrower shall repay to the Lender on theMaturity Date the aggregate principal amount of Committed Loans outstanding onsuch date.

## **2.07****        Interest**.  (a) Subject to the provisions of subsection (b) below, (i) each EurodollarRate Loan shall bear interest on the outstanding principal amount thereof foreach Interest Period at a rate per annum equal to the Eurodollar Rate for suchInterest Period plus the Applicable Rate; and (ii) each Base RateCommitted Loan shall bear interest on the outstanding

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## principalamount thereof from the applicable borrowing date at a rate per annum equal tothe Base Rate plus the Applicable Rate.

### (b)           (i)            If any amount of principal of any Loan isnot paid when due (without regard to any applicable grace periods), whether atstated maturity, by acceleration or otherwise, such amount shall thereafterbear interest at a fluctuating interest rate per annum at all times equal tothe Default Rate to the fullest extent permitted by applicable Laws.

#### (ii)           Ifany amount (other than principal of any Loan) payable by Borrower under anyLoan Document is not paid when due (without regard to any applicable graceperiods), whether at stated maturity, by acceleration or otherwise, then uponthe Lender, such amount shall thereafter bear interest at a fluctuatinginterest rate per annum at all times equal to the Default Rate to the fullestextent permitted by applicable Laws.

#### (iii)          Uponthe request of the Lender, while any Event of Default exists, Borrower shallpay interest on the principal amount of all outstanding Obligations hereunderat a fluctuating interest rate per annum at all times equal to the Default Rateto the fullest extent permitted by applicable Laws.

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

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

## **2.08****        Fees**.  In addition to certain fees described insubsections (i) and (j) of **Section 2.03**:

### (a)           Commitment Fee.  Borrower shall pay to the Lender, acommitment fee equal to the Applicable Rate times the actual dailyamount by which the Commitment exceeds the sum of (i) the Outstanding Amount ofCommitted Loans and (ii) the Outstanding Amount of L/C Obligations.  The commitment fee shall accrue at all timesduring the Availability Period, including at any time during which one or moreof the conditions in **Article IV** isnot met, and shall be due and payable quarterly in arrears on the last BusinessDay of each March, June, September and December, commencing with the first suchdate to occur after the Closing Date, and on the last day of the AvailabilityPeriod.  The commitment fee shall becalculated quarterly in arrears, and if there is any change in the ApplicableRate during any quarter, the actual daily amount shall be computed andmultiplied by the Applicable Rate separately for each period during suchquarter that such Applicable Rate was in effect.

## **2.09****        Computation of Interestand Fees**.  All computations ofinterest for Base Rate Loans when the Base Rate is determined by Bank ofAmerica’s “prime rate” shall be made on the basis of a year of 365 or 366 days,as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basisof a 360-day year and actual days elapsed (which results in more fees orinterest, as applicable, being paid than if computed on the basis of a 365-dayyear).  Interest shall accrue on eachLoan for the day on which the Loan is

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## made, andshall not accrue on a Loan, or any portion thereof, for the day on which theLoan or such portion is paid, provided that any Loan that is repaid onthe same day on which it is made shall, subject to **Section 2.11(a)**, bear interest for one day.  Each determination by the Lender of aninterest rate or fee hereunder shall be conclusive and binding for allpurposes, absent manifest error.

## **2.10****        Evidence of Debt**.  (a) The Credit Extensions made by the Lender shall be evidenced by one ormore accounts or records maintained by the Lender in the ordinary course ofbusiness.  The accounts or recordsmaintained by the Lender shall be conclusive absent manifest error of theamount of the Credit Extensions made by the Lender to Borrower and the interestand payments thereon.  Any failure to sorecord or any error in doing so shall not, however, limit or otherwise affectthe obligation of Borrower hereunder to pay any amount owing with respect tothe Obligations.  Upon the request of theLender, Borrower shall execute and deliver to the Lender a Note, which shallevidence the Lender’s Loans in addition to such accounts or records.  The Lender may attach schedules to its Noteand endorse thereon the date, Type (if applicable), amount and maturity of itsLoans and payments with respect thereto.

### (b)           In addition to theaccounts and records referred to in subsection (a), the Lender shall maintainin accordance with its usual practice accounts or records evidencing thepurchases and sales by the Lender of participations in Letters of Credit.

## **2.11****        Payments****Generally**. (a)(i)  General.  All payments to be made by Borrower shall bemade without condition or deduction for any counterclaim, defense, recoupmentor setoff.  Except as otherwise expresslyprovided herein, all payments by Borrower hereunder shall be made to theLender, at the Lender’s Office in Dollars and in immediately available fundsnot later than 12:00 noon on the date specified herein.  All payments received by the Lender after12:00 noon shall be deemed received on the next succeeding Business Day and anyapplicable interest or fee shall continue to accrue.  If any payment to be made by Borrower shallcome due on a day other than a Business Day, payment shall be made on the nextfollowing Business Day, and such extension of time shall be reflected incomputing interest or fees, as the case may be.

(ii)           Oneach date when the payment of any principal, interest or fees are due hereunderor under any Note, Borrower agrees to maintain on deposit in an ordinary checkingaccount maintained by Borrower with the Lender (as such account shall bedesignated by Borrower in a written notice to the Lender from time to time, the“**Borrower Account**”) an amount sufficientto pay such principal, interest or  feesin full on such date.  Borrower herebyauthorizes the Lender (A) to deduct automatically all principal, interest orfees when due hereunder or under any Note from the Borrower Account, and (B) ifand to the extent any payment of principal, interest or fees under this Agreementor any Note is not made when due to deduct any such amount from any or all of the accounts of Borrower maintainedat the Lender.  The Lender agrees toprovide written notice to Borrower of any automatic deduction made pursuant tothis **Section 2.11(a)(ii)** showing inreasonable detail the amounts of such deduction.  The Lender agrees to reimburse Borrower forany amounts deducted from such accounts in excess of amount due hereunder andunder any other Loan Documents.

### (b)           FundingSource.  Nothing herein shall bedeemed to obligate the Lender to obtain the funds for any Loan in anyparticular place or manner or to constitute a representation by the

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### Lender that it has obtained or will obtain the funds for any Loan inany particular place or manner.

# **ARTICLEIII.TAXES, YIELD PROTECTION AND ILLEGALITY**

## **3.01****        Taxes**.  (a)  PaymentsFree of Taxes.  Any and all paymentsby Borrower to or on account of any obligation of Borrower hereunder or underany other Loan Document shall be made free and clear of and without reductionor withholding for any Indemnified Taxes or Other Taxes, provided that ifBorrower shall be required by any applicable law to deduct any IndemnifiedTaxes (including any Other Taxes) from such payments, then, (i) the sum payableshall be increased as necessary so that after making all required deductions(including deductions applicable to additional sums payable under thisSection), the Lender or L/C Issuer, as the case may be, receives an amountequal to the sum it would have received had no such deductions been made, (ii)Borrower shall make such deductions, and (iii) Borrower shall timely pay thefull amount deducted to the relevant Governmental Authority in accordance withapplicable law.

### (b)           Paymentof Other Taxes by Borrower.  Withoutlimiting the provisions of subsection (a) above, Borrower shall timely pay anyOther Taxes to the relevant Governmental Authority in accordance withapplicable law.

### (c)           Indemnificationby Borrower.  Borrower shallindemnify the Lender and the L/C Issuer, within 10 days after demand therefor,for the full amount of any Indemnified Taxes or Other Taxes (includingIndemnified Taxes or Other Taxes imposed or asserted on or attributable toamounts payable under this Section) paid by the Lender or the L/C Issuer, as thecase may be, and any penalties, interest and reasonable expenses arisingtherefrom or with respect thereto, whether or not such Indemnified Taxes orOther Taxes were correctly or legally imposed or asserted by the relevantGovernmental Authority; provided, that if the Borrower reasonably believes thatsuch Taxes were not correctly or legally asserted, the Lender or the L/CIssuer, as the case may be, will use reasonable efforts to cooperate with theBorrower to obtain a refund of such Taxes so long as such efforts would not, inthe reasonable determination of the Lender or the L/C Issuer, as the case maybe, result in any additional costs, expenses or risks or otherwise bedisadvantageous to it.  A certificate asto the amount of such payment or liability delivered to Borrower by the Lenderor the L/C Issuer shall be conclusive absent manifest error.

### (d)           Evidenceof Payments.  As soon as practicableafter any payment of Indemnified Taxes or Other Taxes by Borrower to aGovernmental Authority, Borrower shall deliver to the Lender the original or acertified copy of a receipt issued by such Governmental Authority evidencingsuch payment, a copy of the return reporting such payment or other evidence ofsuch payment reasonably satisfactory to the Lender.

### (e)           Statusof Lender.  The Lender, if requestedby Borrower, shall deliver such documentation prescribed by applicable law orreasonably requested by Borrower as will enable Borrower to determine whetheror not the Lender is subject to backup withholding or information reportingrequirements and, if so subject, to give effect to any exemption from orreduction in the rate of withholding.

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### (f)            Treatmentof Certain Refunds.  If the Lender orthe L/C Issuer determines, in its sole discretion, that it has received a refundof any Taxes or Other Taxes as to which it has been indemnified by Borrower orwith respect to which Borrower has paid additional amounts pursuant to thisSection, it shall pay to Borrower an amount equal to such refund (but only tothe extent of indemnity payments made, or additional amounts paid, by Borrowerunder this Section with respect to the Taxes or Other Taxes giving rise to suchrefund), net of all out-of-pocket expenses of the Lender or the L/C Issuer, asthe case may be, and without interest (other than any interest paid by therelevant Governmental Authority with respect to such refund), providedthat Borrower, upon the request of the Lender or the L/C Issuer, agrees torepay the amount paid over to Borrower (plus any penalties, interest or othercharges imposed by the relevant Governmental Authority) to the Lender or theL/C Issuer in the event the Lender or the L/C Issuer is required to repay suchrefund to such Governmental Authority. This subsection shall not be construed to require the Lender or the L/CIssuer to make available its tax returns (or any other information relating toits taxes that it deems confidential) to Borrower or any other Person.

## **3.02****        Illegality**.  If the Lender determines that any Law hasmade it unlawful, or that any Governmental Authority has asserted that it isunlawful, for the Lender or its applicable Lending Office to make, maintain orfund Eurodollar Rate Loans, or to determine or charge interest rates based uponthe Eurodollar Rate, or any Governmental Authority has imposed materialrestrictions on the authority of the Lender to purchase or sell, or to takedeposits of, Dollars in the London interbank market, then, on notice thereof bythe Lender to Borrower, any obligation of the Lender to make or continue EurodollarRate Loans or to convert Base Rate Committed Loans to Eurodollar Rate Loansshall be suspended until the Lender notifies Borrower that the circumstancesgiving rise to such determination no longer exist.  Upon receipt of such notice, Borrower shall,upon demand from the Lender, prepay or, if applicable, convert all EurodollarRate Loans to Base Rate Loans, either on the last day of the Interest Periodtherefor, if the Lender may lawfully continue to maintain such Eurodollar RateLoans to such day, or immediately, if the Lender may not lawfully continue tomaintain such Eurodollar Rate Loans. Upon any such prepayment or conversion, Borrower shall also pay accruedinterest on the amount so prepaid or converted and all amounts due under **Section 3.05** in accordance with the termsthereof due to such prepayment or conversion.

## **3.03****        Inability to DetermineRates**.  If the Lender determines inconnection with any request for a Eurodollar Rate Loan or a conversion to orcontinuation thereof that (a) Dollar deposits are not being offered to banks inthe London interbank eurodollar market for the applicable amount and InterestPeriod of such Eurodollar Rate Loan, (b) adequate and reasonable means do notexist for determining the Eurodollar Base Rate for any requested InterestPeriod with respect to a proposed Eurodollar Rate Loan, or (c) the EurodollarBase Rate for any requested Interest Period with respect to a proposedEurodollar Rate Loan does not adequately and fairly reflect the cost to theLender of funding such Loan, the Lender will promptly so notify Borrower.  Thereafter, the obligation of the Lender tomake or maintain Eurodollar Rate Loans shall be suspended until the Lenderrevokes such notice.  Upon receipt ofsuch notice, Borrower may revoke any pending request for a Committed Borrowingof, conversion to or continuation of Eurodollar Rate Loans or, failing that,will be deemed to have converted such request into a request for a CommittedBorrowing of Base Rate Loans in the amount specified therein.

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## **3.04****        Increased Costs**.  (a)  IncreasedCosts Generally.  If any Change inLaw shall:

#### (i)            impose, modify or deem applicable anyreserve, special deposit, compulsory loan, insurance charge or similarrequirement against assets of, deposits with or for the account of, or creditextended or participated in by, the Lender (except any reserve requirementreflected in the Eurodollar Rate) or the L/C Issuer;

#### (ii)           subject the Lender or the L/C Issuer to anytax of any kind whatsoever with respect to this Agreement, any Letter ofCredit, any participation in a Letter of Credit or any Eurodollar Rate Loanmade by it, or change the basis of taxation of payments to the Lender or theL/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxescovered by Section 3.01 and the imposition of, or any change in the rate of,any Excluded Tax payable by the Lender or the L/C Issuer); or

#### (iii)          impose on the Lender or the L/C Issuer or theLondon interbank market any other condition, cost or expense affecting thisAgreement or Eurodollar Rate Loans made by the Lender or any Letter of Creditor participation therein;

and the result of any of the foregoing shall be toincrease the cost to the Lender of making or maintaining any Eurodollar RateLoan (or of maintaining its obligation to make any such Loan), or to increasethe cost to the Lender or the L/C Issuer of participating in, issuing ormaintaining any Letter of Credit (or of maintaining its obligation toparticipate in or to issue any Letter of Credit), or to reduce the amount ofany sum received or receivable by the Lender or the L/C Issuer hereunder(whether of principal, interest or any other amount) then, upon request of theLender or the L/C Issuer, Borrower will pay to the Lender or the L/C Issuer, asthe case may be, such additional amount or amounts as will compensate theLender or the L/C Issuer, as the case may be, for such additional costsincurred or reduction suffered.

### (b)           CapitalRequirements.  If the Lender or theL/C Issuer determines that any Change in Law affecting the Lender or the L/CIssuer or any Lending Office of the Lender or the Lender’s or the L/C Issuer’sholding company, if any, regarding capital requirements has or would have theeffect of reducing the rate of return on the Lender’s or the L/C Issuer’scapital or on the capital of the Lender’s or the L/C Issuer’s holding company,if any, as a consequence of this Agreement, the Commitment of the Lender or theLoans made by, or participations in Letters of Credit held by, the Lender, orthe Letters of Credit issued by the L/C Issuer, to a level below that which theLender or the L/C Issuer or the Lender’s or the L/C Issuer’s holding companycould have achieved but for such Change in Law (taking into consideration theLender’s or the L/C Issuer’s policies and the policies of the Lender’s or theL/C Issuer’s holding company with respect to capital adequacy), then from timeto time Borrower will pay to the Lender or the L/C Issuer, as the case may be,such additional amount or amounts as will compensate the Lender or the L/CIssuer or the Lender’s or the L/C Issuer’s holding company for any suchreduction suffered.

### (c)           Certificatesfor Reimbursement.  A certificate ofthe Lender or the L/C Issuer setting forth in reasonable detail the amount oramounts necessary to compensate the Lender or the L/C Issuer or its holdingcompany, as the case may be, as specified in subsection (a) or (b) of thisSection and the manner of determining such amount or amounts and delivered toBorrower shall be conclusive absent manifest error.  Borrower shall pay the Lender or the L/CIssuer, as the case may be, the amount shown as due on any such certificatewithin 10 days after receipt thereof.

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### (d)           Delayin Requests.  Failure or delay on thepart of the Lender or the L/C Issuer to demand compensation pursuant to theforegoing provisions of this Section shall not constitute a waiver of theLender’s or the L/C Issuer’s right to demand such compensation, providedthat Borrower shall not be required to compensate the Lender or the L/C Issuerpursuant to the foregoing provisions of this Section for any increased costsincurred or reductions suffered more than nine months prior to the date thatthe Lender or the L/C Issuer, as the case may be, notifies Borrower of theChange in Law giving rise to such increased costs or reductions and of theLender’s or the L/C Issuer’s intention to claim compensation therefor (exceptthat, if the Change in Law giving rise to such increased costs or reductions isretroactive, then the nine-month period referred to above shall be extended toinclude the period of retroactive effect thereof).

## **3.05****        Compensation for Losses**.  Upon demand of the Lender from time to time,Borrower shall promptly compensate the Lender for and hold the Lender harmlessfrom any loss, cost or expense incurred by it as a result of:

### (a)           anycontinuation, conversion, payment or prepayment of any Loan other than a BaseRate Loan on a day other than the last day of the Interest Period for such Loan(whether voluntary, mandatory, automatic, by reason of acceleration, orotherwise); or

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

including any loss of anticipated profits and any lossor expense arising from the liquidation or reemployment of funds obtained by itto maintain such Loan or from fees payable to terminate the deposits from whichsuch funds were obtained.  Borrower shallalso pay any customary administrative fees charged by the Lender in connectionwith the foregoing.  For purposes ofcalculating amounts payable by Borrower to the Lender under this **Section 3.05**, the Lender shall be deemed to have funded eachEurodollar Rate Loan made by it at the Eurodollar Base Rate used in determiningthe Eurodollar Rate for such Loan by a matching deposit or other borrowing inthe London interbank eurodollar market for a comparable amount and for acomparable period, whether or not such Eurodollar Rate Loan was in fact sofunded.  Any demand for compensationshall set forth in reasonable detail the amount and method of determining theloss, cost or expenses claimed.

## **3.06****        Mitigation Obligations**.  If the Lender requests compensation under **Section 3.04**, or Borrower is required topay any additional amount to the Lender or any Governmental Authority for theaccount of the Lender pursuant to **Section3.01**, or if the Lender gives a notice pursuant to**Section 3.02**, then the Lender shall usereasonable efforts to designate a different Lending Office for funding orbooking its Loans hereunder or to assign its rights and obligations hereunderto another of its offices, branches or affiliates, if, in the judgment of theLender, such designation or assignment (i) would eliminate or reduce amountspayable pursuant to **Section****3.01** or **3.04**,as the case may be, in the future, or eliminate the need for the noticepursuant to **Section 3.02**, asapplicable, and (ii) in each case, would not subject the Lender to anyunreimbursed cost or expense and would not otherwise be disadvantageous to theLender.  Borrower hereby agrees to payall reasonable costs and expenses incurred by the Lender in connection with anysuch designation or assignment.

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## **3.07****        Survival**.  All of Borrower’s obligations under this **Article III** shall survive termination ofthe Commitment and repayment of all other Obligations hereunder.

# **ARTICLEIV.**

# **CONDITIONSPRECEDENT TO CREDIT EXTENSIONS**

## **4.01****        Conditions of InitialCredit Extension**.  The obligation ofthe L/C Issuer and the Lender to make its initial Credit Extension hereunder issubject to satisfaction of the following conditions precedent:

### (a)           TheLender’s receipt of the following, each of which shall be originals ortelecopies (followed promptly by originals) unless otherwise specified, eachproperly executed by a Responsible Officer of the signing Loan Party, eachdated the Closing Date (or, in the case of certificates of governmentalofficials, a recent date before the Closing Date) and each in form andsubstance reasonably satisfactory to the Lender:

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

#### (ii)           counterparts of the Guaranty executed byeach Guarantor, sufficient in number for distribution to the Lender andBorrower;

#### (iii)          a Note executed by Borrower in favor of theLender;

#### (iv)          such certificates of resolutions or otheraction, incumbency certificates and/or other certificates of Responsible Officersof each Loan Party as the Lender may reasonably require evidencing theidentity, authority and capacity of each Responsible Officer thereof authorizedto act as a Responsible Officer in connection with this Agreement and the otherLoan Documents to which such Loan Party is a party;

#### (v)           such documents and certifications as theLender may reasonably require to evidence that each Loan Party is dulyorganized or formed, and that each Loan Party is validly existing, in goodstanding and qualified to engage in business in each jurisdiction where itsownership, lease or operation of properties or the conduct of its businessrequires such qualification, except to the extent that failure to do so couldnot reasonably be expected to have a Material Adverse Effect;

#### (vi)          a favorable opinion of counsel to the LoanParties reasonably acceptable to the Lender addressed to the Lender, as to thematters set forth concerning the Loan Parties and the Loan Documents in formand substance reasonably satisfactory to the Lender;

#### (vii)         a certificate of a Responsible Officer of eachLoan Party either (A) attaching copies of all consents, licenses and approvalsrequired in connection with the execution, delivery and performance by suchLoan Party and the validity against such Loan Party of the Loan Documents towhich it is a party, and such consents, licenses and approvals shall be in fullforce and effect, or (B) stating that no such consents, licenses or approvalsare so required;

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#### (viii)        a certificate signed by a Responsible Officerof Borrower certifying (A) that the conditions specified in **Sections 4.02(a)** and **(b)** have been satisfied, and (B) that therehas been no event or circumstance since the date of the Audited FinancialStatements that has had or could be reasonably expected to have, eitherindividually or in the aggregate, a Material Adverse Effect;

#### (ix)           evidence that all insurance required to bemaintained pursuant to the Loan Documents has been obtained and is in effect;

#### (x)            a duly completed Compliance Certificate as ofthe last day of the fiscal quarter of Borrower most recently ended prior to theClosing Date, signed by a Responsible Officer of Borrower; and

#### (xi)           such other assurances, certificates,documents, consents or opinions as the Lender or the L/C Issuer reasonably mayrequire.

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

### (c)           Unlesswaived by the Lender, Borrower shall have paid all fees, charges anddisbursements of counsel to the Lender (directly to such counsel if requestedby the Lender) to the extent invoiced prior to or on the Closing Date, plussuch additional amounts of such fees, charges and disbursements as shallconstitute its reasonable estimate of such fees, charges and disbursementsincurred or to be incurred by it through the closing proceedings (provided thatsuch estimate shall not thereafter preclude a final settling of accountsbetween Borrower and the Lender).

### (d)           TheClosing Date shall have occurred on or before May 2, 2007.

## **4.02****        Conditions to all CreditExtensions**.  The obligation of theLender to honor any Request for Credit Extension is subject to the followingconditions precedent:

### (a)           Therepresentations and warranties of each Loan Party contained in **Article V** or any other Loan Document, orwhich are contained in any document furnished at any time under or inconnection herewith or therewith, shall be true and correct in all materialrespects on and as of the date of such Credit Extension, except to the extentthat such representations and warranties specifically refer to an earlier date,in which case they shall be true and correct in all material respects as ofsuch earlier date, and except that for purposes of this **Section 4.02**, the representations andwarranties contained in subsections **(a)**and **(b)** of **Section 5.05** shall be deemed to refer tothe most recent statements furnished pursuant to clauses (a) and (b),respectively, of **Section 6.01**.

### (b)           NoDefault shall exist, or would result from such proposed Credit Extension orfrom the application of the proceeds thereof.

### (c)           TheLender and, if applicable, the L/C Issuer shall have received a Request forCredit Extension in accordance with the requirements hereof.

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### (d)           TheLender shall have received, in form and substance reasonably satisfactory toit, such other assurances, certificates, documents or consents related to theforegoing as the Lender reasonably may require.

Each Request for Credit Extension submitted byBorrower shall be deemed to be a representation and warranty that theconditions specified in **Sections 4.02(a)**and **(b)** have been satisfied on and as ofthe date of the applicable Credit Extension.

# **ARTICLEV.REPRESENTATIONS AND WARRANTIES**

Borrower represents and warrants to the Lender that:

## **5.01****        Existence, Qualificationand Power**.  Each Loan Party (a) isduly organized or formed, validly existing and, as applicable, in good standingunder the Laws of the jurisdiction of its incorporation, organization ordesignation, (b) has all requisite power and authority and all requisitegovernmental licenses, authorizations, consents and approvals to (i) own orlease its assets and carry on its business and (ii) execute, deliver andperform 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 standingunder the Laws of each jurisdiction where its ownership, lease or operation ofproperties or the conduct of its business requires such qualification orlicense; except in each case referred to in clause (b)(i), or (c), to theextent that failure to do so could not reasonably be expected to have aMaterial Adverse Effect.

## **5.02****        Authorization; NoContravention**.  The execution,delivery and performance by each Loan Party of each Loan Document to which suchPerson is party, have been duly authorized by all necessary corporate or otherorganizational action, and do not and will not (a) contravene the terms of anyof such Person’s Organization Documents; (b) conflict with or result in anybreach or contravention of, or the creation of any Lien under, or require anypayment to be made under (i) any Contractual Obligation to which such Person isa party or affecting such Person or the properties of such Person or any of itsSubsidiaries or (ii) any order, injunction, writ or decree of any GovernmentalAuthority or any arbitral award to which such Person or its property issubject; or (c) violate any Law.

## **5.03****        GovernmentalAuthorization; Other Consents**.  Noapproval, consent, exemption, authorization, or other action by, or notice to,or filing with, any Governmental Authority or any other Person is necessary orrequired in connection with the execution, delivery or performance by, orenforcement against, any Loan Party of this Agreement or any other LoanDocument.

## **5.04****        Binding Effect**.  This Agreement has been, and each other LoanDocument, when delivered hereunder, will have been, duly executed and deliveredby each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when sodelivered will constitute, a legal, valid and binding obligation of such LoanParty, enforceable against each Loan Party that is party thereto in accordancewith its terms, except as enforceability may be limited by Debtor Relief Lawsand subject to equitable remedies.

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## **5.05****        Financial Statements; NoMaterial Adverse Effect; No Internal Control Event**.  (a)              TheAudited Financial Statements (i) were prepared in accordance with GAAPconsistently applied throughout the period covered thereby, except as otherwiseexpressly noted therein; (ii) fairly present in all material respects theconsolidated financial condition of Borrower and its Subsidiaries as of thedate thereof and their consolidated results of operations for the periodcovered thereby in accordance with GAAP consistently applied throughout theperiod covered thereby, except as otherwise expressly noted therein; and (iii)show all material indebtedness and other liabilities, direct or contingent, ofBorrower and its Subsidiaries as of the date thereof, including liabilities fortaxes, material commitments and Indebtedness.

### (b)           Theunaudited consolidated balance sheets of Borrower and its Subsidiaries dated****December 31, 2006, and the related consolidatedstatements of income or operations, shareholders’ equity and cash flows for thefiscal quarter ended on that date (i) were prepared in accordance with GAAPconsistently applied throughout the period covered thereby, except as otherwiseexpressly noted therein, and (ii) fairly present in all material respects theconsolidated financial condition of Borrower and its Subsidiaries as of thedate thereof and their consolidated results of operations for the periodcovered thereby, subject, in the case of clauses (i) and (ii), to the absenceof footnotes and to normal year-end audit adjustments.

### (c)           Sincethe date of the Audited Financial Statements, there has been no event orcircumstance, either individually or in the aggregate, that has had or could reasonablybe expected to have a Material Adverse Effect.

### (d)           Tothe best knowledge of Borrower, no Internal Control Event exists or hasoccurred since the date of the Audited Financial Statements that has resultedin or could reasonably be expected to result in a misstatement in any materialrespect, in any financial information delivered or to be delivered to theLender, of (i) covenant compliance calculations provided hereunder or (ii) theassets, liabilities, financial condition or results of operations of Borrowerand its Subsidiaries on a consolidated basis.

### (e)           Theconsolidated pro forma balance sheets of Borrower and its Subsidiaries as atDecember 31, 2006, and the related consolidated pro forma statements of incomeand cash flows of Borrower and its Subsidiaries for the 12 months then ended,certified by the chief financial officer or treasurer of Borrower, copies ofwhich have been furnished to the Lender, fairly present in all materialrespects the consolidated pro forma financial condition of Borrower and itsSubsidiaries as at such date and the consolidated pro forma results ofoperations of Borrower and its Subsidiaries for the period ended on such date,all in accordance with GAAP, subject to the absence of footnotes and to normalyear-end audit adjustments.

### (f)            Theforecasts delivered pursuant to **Section6.01(c)** were prepared in good faith on the basis of the assumptionsstated therein, which assumptions were believed to be fair in light of theconditions existing at the time of delivery of such forecasts, and represented,at the time of delivery, Borrower’s best estimate of its future financialcondition and  performance.

## **5.06****        Litigation**.  There are no actions, suits, proceedings,claims or disputes pending or, to the knowledge of Borrower after due anddiligent investigation, threatened or contemplated, at law, in equity, inarbitration or before any Governmental Authority, by or

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## against any Loan Party or their Subsidiaries or against any of itsrespective properties or revenues that (a) purport to affect or pertain to thisAgreement or any other Loan Document, or any of the transactions contemplatedhereby, or (b) except as specifically disclosed in **Schedule 5.06**, either individually or in the aggregate, ifdetermined adversely, could reasonably be expected to have a Material AdverseEffect, and there has been no adverse change in the status, or financial effecton any Loan Party, of the matters described on **Schedule 5.06**.

## **5.07****        No****Default**. Neither any Loan Party nor any Subsidiary thereof is in default under orwith respect to any Contractual Obligation that could, either individually orin the aggregate, reasonably be expected to have a Material AdverseEffect.  No Default has occurred and iscontinuing or would result from the consummation of the transactionscontemplated by this Agreement or any other Loan Document.

## **5.08****        Ownership of Property;Liens**.  Each Loan Party and eachSubsidiary thereof has good record and marketable title in fee simple to, orvalid leasehold interests in, all real property necessary or used in theordinary conduct of its business, except for such defects in title as couldnot, individually or in the aggregate, reasonably be expected to have aMaterial Adverse Effect.  The property ofeach Loan Party is subject to no Liens, other than Liens permitted by Section7.01.

## **5.09****        Environmental Compliance**.  The Loan Parties and the Subsidiaries thereofconduct in the ordinary course of business a review of the effect of existingEnvironmental Laws and claims alleging potential liability or responsibilityfor violation of any Environmental Law on their respective businesses,operations and properties, and as a result thereof Borrower has reasonablyconcluded that, except as specifically disclosed in **Schedule 5.09**, such Environmental Laws and claims could not,individually or in the aggregate, reasonably be expected to have a MaterialAdverse Effect.

## **5.10****        Insurance**.  The properties of each Loan Party are insuredwith financially sound and reputable insurance companies not Affiliates ofBorrower, in such amounts (after giving effect to any self-insurance compatiblewith the following standards), with such deductibles and covering such risks asare customarily carried by companies engaged in similar businesses and owningsimilar properties in localities where such Loan Party operates.

## **5.11****        Taxes**.  The Loan Parties have filed all Federal,state and other material tax returns and reports required to be filed, and havepaid all Federal, state and other material taxes, assessments, fees and othergovernmental charges levied or imposed upon them or their properties, income orassets otherwise due and payable, except those which are being contested ingood faith by appropriate proceedings diligently conducted and for whichadequate reserves have been provided in accordance with GAAP.  There is no proposed tax assessment againstany Loan Party or any Subsidiary thereof that would, if made, have a MaterialAdverse Effect.

## **5.12****        ERISA****Compliance**. (a)  Each Plan is in compliance inall material respects with the applicable provisions of ERISA, the Code andother Federal or state Laws.  Each Planthat is intended to qualify under Section 401(a) of the Code has received afavorable determination letter from the IRS or an application for such a letteris currently being processed by the IRS with respect thereto and, to the bestknowledge of Borrower, nothing has occurred which could

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## reasonably be expected to prevent, or cause the loss of, suchqualification.  Borrower and each ERISAAffiliate have made all required contributions to each Plan subject to Section412 of the Code, and no application for a funding waiver or an extension of anyamortization period pursuant to Section 412 of the Code has been made withrespect to any Plan.

### (b)           Thereare no pending or, to the best knowledge of Borrower, threatened claims,actions or lawsuits, or action by any Governmental Authority, with respect toany Plan that could be reasonably be expected to have a Material AdverseEffect.  There has been no prohibitedtransaction or violation of the fiduciary responsibility rules with respect toany Plan that has resulted or could reasonably be expected to result in aMaterial Adverse Effect.

### (c)           (i)No ERISA Event has occurred or is reasonably expected to occur; (ii) no PensionPlan has any Unfunded Pension Liability; (iii) neither Borrower nor any ERISAAffiliate has incurred, or reasonably expects to incur, any liability underTitle IV of ERISA with respect to any Pension Plan (other than premiums due andnot delinquent under Section 4007 of ERISA); (iv) neither Borrower nor anyERISA Affiliate has incurred, or reasonably expects to incur, any liability(and no event has occurred which, with the giving of notice under Section 4219of ERISA, would result in such liability) under Section 4201 or 4243 of ERISAwith respect to a Multiemployer Plan; and (v) neither Borrower nor any ERISAAffiliate has engaged in a transaction that could be subject to Section 4069 or4212(c) of ERISA.

## **5.13****        Subsidiaries**.  As of the Closing Date, Borrower has noSubsidiaries other than those specifically disclosed in **Part (a)** of **Schedule 5.13**, and all of the outstanding Equity Interests insuch Subsidiaries have been validly issued, are fully paid and nonassessableand are owned by a Loan Party in the amounts specified on **Part (a)** of **Schedule 5.13** free and clear of all Liens.  Borrower has no equity investments in anyother corporation or entity other than those specifically disclosed in **Part(b)** of **Schedule 5.13**.  All ofthe outstanding Equity Interests in Borrower have been validly issued and arefully paid and nonassessable.

## **5.14****        Margin Regulations;Investment Company Act; Public Utility Holding Company Act**.  (a) Borrower is not engaged and will not engage, principally or as one ofits important activities, in the business of purchasing or carrying marginstock (within the meaning of Regulation U issued by the FRB), or extendingcredit for the purpose of purchasing or carrying margin stock.  Following the application of the proceeds ofeach Committed Borrowing or drawing under each Letter of Credit, not more than25% of the value of the assets (either of Borrower only or of Borrower and itsSubsidiaries on a consolidated basis) subject to the provisions of **Section 7.01** or **Section 7.05** or subject to any restriction contained in anyagreement or instrument between Borrower and the Lender or any Affiliate of theLender relating to Indebtedness and within the scope of **Section 8.01(e)** will be margin stock.

### (b)           Noneof Borrower, any Person Controlling Borrower, or any Subsidiary (i) is a “holdingcompany,” or a “subsidiary company” of a “holding company,” or an “affiliate”of a “holding company” or of a “subsidiary company” of a “holding company,”within the meaning of the Public Utility Holding Company Act of 1935, or (ii)is or is required to be registered as an “investment company” under theInvestment Company Act of 1940.

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## **5.15****        Disclosure**.  Borrower has disclosed to the Lender allagreements, instruments and corporate or other restrictions to which any LoanParty or any Subsidiary thereof is subject, and all other matters known to it,that, individually or in the aggregate, could reasonably be expected to resultin a Material Adverse Effect.  No report,financial statement, certificate or other information furnished (whether inwriting or orally) by or on behalf of any Loan Party to the Lender inconnection with the transactions contemplated hereby and the negotiation ofthis Agreement or delivered hereunder or under any other Loan Document (in eachcase, as modified or supplemented by other information so furnished) containsany material misstatement of fact or omits to state any material fact necessaryto make the statements therein, in the light of the circumstances under whichthey were made, not misleading; provided that, with respect to projectedfinancial information, Borrower represents only that such information wasprepared in good faith based upon assumptions believed to be reasonable at thetime.

## **5.16****        Compliance****with****Laws**.  Each Loan Party and each Subsidiary thereofis in compliance in all material respects with the requirements of all Laws andall orders, writs, injunctions and decrees applicable to it or to itsproperties, except in such instances in which (a) such requirement of Law ororder, writ, injunction or decree is being contested in good faith byappropriate proceedings diligently conducted or (b) the failure to complytherewith, either individually or in the aggregate, could not reasonably beexpected to have a Material Adverse Effect.

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

## **5.18****        Intellectual Property;Licenses, Etc.**  The Loan Parties own,or possess the right to use, all of the trademarks, service marks, trade names,copyrights, patents, patent rights, franchises, licenses and other intellectualproperty rights that are reasonably necessary for the operation of theirrespective businesses, without conflict with the rights of any other Person.  To the best knowledge of Borrower, no sloganor other advertising device, product, process, method, substance, part or othermaterial now employed, or now contemplated to be employed, by any Loan Partyinfringes upon any rights held by any other Person.  No claim or litigation regarding any of theforegoing is pending or, to the best knowledge of Borrower, threatened, which,either individually or in the aggregate, could reasonably be expected to have aMaterial Adverse Effect.

# **ARTICLEVI.AFFIRMATIVE COVENANTS**

So long as the Lender shall have any Commitmenthereunder, any Loan or other Obligation hereunder shall remain unpaid orunsatisfied, or any Letter of Credit shall remain outstanding, Borrower shall,and shall (except in the case of the covenants set forth in **Sections 6.01**, **6.02**, and **6.03**) cause each Loan Party to:

## **6.01****        Financial****Statements**. Deliver to the Lender in form and detail satisfactory to the Lender:

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### (a)           assoon as available, but in any event within 90 days after the end of each fiscalyear of Borrower, a consolidated balance sheet of Borrower and its Subsidiariesas at the end of such fiscal year, and the related consolidated statements ofincome or operations, shareholders’ equity and cash flows for such fiscal year,setting forth in each case in comparative form the figures for the previousfiscal year, all in reasonable detail and prepared in accordance with GAAP,such consolidated statements to be audited and accompanied by (i) a report andopinion of an independent certified public accounting firm of nationallyrecognized standing reasonably acceptable to the Lender, which report andopinion shall be prepared in accordance with generally accepted auditingstandards and applicable Securities Laws and shall not be subject to any “goingconcern” or like qualification or exception or any qualification or exceptionas to the scope of such audit or with respect to the absence of any materialmisstatement and (ii) an opinion of such Registered Public Accounting Firmindependently assessing Borrower’s internal controls over financial reportingin accordance with Item 308 of SEC Regulation S-K, PCAOB Auditing Standard No.2, and Section 404 of Sarbanes-Oxley expressing a conclusion that contains nostatement that there is a material weakness in such internal controls, exceptfor such material weaknesses as to which the Lender does not object; and

### (b)           assoon as available, but in any event within 45 days after the end of each of thefirst three fiscal quarters of each fiscal year of Borrower, a consolidatedbalance sheet of Borrower and its Subsidiaries as at the end of such fiscalquarter, and the related consolidated statements of income or operations,shareholders’ equity and cash flows for such fiscal quarter and for the portionof Borrower’s fiscal year then ended, setting forth in each case in comparativeform the figures for the corresponding fiscal quarter of the previous fiscalyear and the corresponding portion of the previous fiscal year, all inreasonable detail, such consolidated statements to be certified by the chiefexecutive officer, chief financial officer, treasurer or controller of Borroweras fairly presenting in all material respects the consolidated financialcondition, results of operations, shareholders’ equity and cash flows of Borrowerand its Subsidiaries in accordance with GAAP, subject only to normal year-endaudit adjustments and the absence of footnotes; and

### (c)           assoon as available, but in any event at least 15 days before the end of eachfiscal year of Borrower, forecasts prepared by management of Borrower, in formreasonably satisfactory to the Lender, of consolidated statements of income oroperations and cash flow estimates of Borrower and its Subsidiaries on anannual basis for the immediately following fiscal year (including the fiscalyear in which the Maturity Date occurs).

## **6.02****        Certificates; OtherInformation**.  Deliver to the Lenderin form and detail satisfactory to the Lender:

### (a)           concurrentlywith the delivery of the financial statements referred to in **Sections 6.01(a)** and (b), a duly completedCompliance Certificate signed by the chief executive officer, chief financialofficer, treasurer or controller of Borrower;

### (b)           promptlyafter any request by the Lender, copies of any detailed audit reports,management letters or recommendations submitted to the board of directors (orthe audit committee of the board of directors) of Borrower by independentaccountants in connection with the accounts or books of Borrower or anySubsidiary, or any audit of any of them;

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### (c)           promptlyafter the same are available, copies of each annual report, proxy or financialstatement or other report or communication sent to the stockholders ofBorrower, and copies of all annual, regular, periodic and special reports andregistration statements which Borrower may file or be required to file with theSecurities and Exchange Commission under Section 13 or 15(d) of the SecuritiesExchange Act of 1934, and not otherwise required to be delivered to the Lenderpursuant hereto;

### (d)           promptlyafter the furnishing thereof, copies of any statement or report furnished toany holder of debt securities of any Loan Party pursuant to the terms of anyindenture, loan or credit or similar agreement and not otherwise required to befurnished to the Lender pursuant to Section 6.01 or any other clause of thisSection 6.02;

### (e)           promptly,and in any event within five Business Days after receipt thereof by any LoanParty or any Subsidiary thereof, copies of each notice or other correspondencereceived from the Securities and Exchange Commission  (or comparable agency in any applicablenon-U.S. jurisdiction) concerning any investigation or possible investigationor other inquiry by such agency regarding financial or other operationalresults of any Loan Party or any Subsidiary thereof; and

### (f)            promptly,such additional information regarding the business, financial or corporateaffairs of any Loan Party, or compliance with the terms of the Loan Documents,as the Lender may from time to time reasonably request.

## **6.03****        Notices**.  Promptly notify the Lender:

### (a)           ofthe occurrence of any Default;

### (b)           ofany matter that has resulted or could reasonably be expected to result in aMaterial Adverse Effect, including (i) breach or non-performance of, or anydefault under, a Contractual Obligation of any Loan Party or any Subsidiarythereof; (ii) any dispute, litigation, investigation, proceeding or suspensionbetween any Loan Party or any Subsidiary thereof and any GovernmentalAuthority; or (iii) the commencement of, or any material development in, anylitigation or proceeding affecting any Loan Party or any Subsidiary thereof,including pursuant to any applicable Environmental Laws;

### (c)           ofthe occurrence of any ERISA Event;

### (d)           ofany material change in accounting policies or financial reporting practices byany Loan Party, and

### (e)           ofthe determination by the Registered Public Accounting Firm providing theopinion required under Section 6.01(a)(ii) (in connection with its preparationof such opinion) or Borrower’s determination at any time of the occurrence orexistence of any Internal Control Event.

Each notice pursuant to this Section shall beaccompanied by a statement of a Responsible Officer of Borrower setting forthdetails of the occurrence referred to therein and stating what action Borrowerhas taken and proposes to take with respect thereto.  Each notice pursuant to

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**Section 6.03(a)** shall describewith particularity any and all provisions of this Agreement and any other LoanDocument that have been breached.

## **6.04****        Payment of Obligations**.  Pay and discharge as the same shall becomedue and payable, all its obligations and liabilities, including (a) all taxliabilities, assessments and governmental charges or levies upon it or itsproperties or assets, unless the same are being contested in good faith byappropriate proceedings diligently conducted and adequate reserves inaccordance with GAAP are being maintained by the applicable Loan Party; (b) alllawful claims which, if unpaid, would by law become a Lien upon its property**,**unless the same are being contested ingood faith by appropriate proceedings diligently conducted and adequatereserves in accordance with GAAP are being maintained by the applicable LoanParty; and (c) all Indebtedness, as and when due and payable, but subject toany subordination provisions contained in any instrument or agreementevidencing or relating to such Indebtedness except to the extent that failureto pay or discharge any such Indebtedness could not reasonably be expected toresult in a Material Adverse Effect.

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

## **6.06****        Maintenance****of****Properties**.  (a) Maintain, preserve and protect all of itsmaterial properties and equipment necessary in the operation of its business ingood working order and condition, ordinary wear, tear and obsolescenceexcepted; (b) make all necessary repairs thereto and renewals and replacementsthereof except where the failure to do so could not reasonably be expected tohave a Material Adverse Effect; and (c) use the standard of care typical in theindustry in the operation and maintenance of its facilities.

## **6.07****        Maintenance****of****Insurance**.  Maintain with financially sound and reputableinsurance companies not Affiliates of Borrower, insurance with respect to itsproperties and business against loss or damage of the kinds customarily insuredagainst by Persons engaged in the same or similar business, of such types andin such amounts (after giving effect to any self-insurance compatible with thefollowing standards) as are customarily carried under similar circumstances bysuch other Persons; provided that in any event Borrower will provide the Lendernot less than 30 days’ prior written notice of any termination, lapse,cancellation or material change in the types and amounts of such insurance.

## **6.08****        Compliance****with****Laws**.  Comply in all material respects with therequirements of all Laws and all orders, writs, injunctions and decreesapplicable to it or to its business or property, except in such instances inwhich (a) such requirement of Law or order, writ, injunction or decree is beingcontested in good faith by appropriate proceedings diligently conducted; or (b)the failure to comply therewith could not reasonably be expected to have aMaterial Adverse Effect.

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## **6.09****        Books****and****Records**.  (a) Maintain proper books of record and account, in which full, true andcorrect entries in conformity with GAAP consistently applied shall be made ofall financial transactions and matters involving the assets and business ofBorrower or such Subsidiary, as the case may be; and (b) maintain such books ofrecord and account in material conformity with all applicable requirements ofany Governmental Authority having regulatory jurisdiction over such Loan Party.

## **6.10****        Inspection****Rights**. Permit representatives and independent contractors of the Lender tovisit and inspect any of its properties, to examine its corporate, financialand operating records, and make copies thereof or abstracts therefrom, and todiscuss its affairs, finances and accounts with its directors, officers, andindependent public accountants, all at the expense of Borrower and at such reasonabletimes during normal business hours and as often as may be reasonably desired,upon reasonable advance notice to Borrower; provided, however,that so long as no Event of Default has occurred and is continuing Borrower’sobligation to pay the expenses of any of the foregoing will be limited to (i)one inspection per year (measured from the date of the Agreement and eachanniversary thereof) at Lender’s discretion and (B) any further inspectionsresulting from the Lender’s good faith belief that conditions exist that couldresult in a Material Adverse Effect; provided, further, that whenan Event of Default exists the Lender (or any of their respectiverepresentatives or independent contractors) may do any of the foregoing at theexpense of Borrower at any time during normal business hours and withoutadvance notice.

## **6.11****        Use of Proceeds**.  Use the proceeds of the Credit Extensions forfinancing working capital, the issuance of letters of credit and generalcorporate purposes not in contravention of any Law or of any Loan Document.

## **6.12****        Financial Covenants**.

### (a)           MinimumEBITDA.  Maintain on a consolidatedbasis EBITDA equal to at least $12,000,000. This amount will be calculated at the end of each reporting period forwhich this Agreement requires Borrower to deliver financial statements, usingthe results of the twelve-month period ending with that reporting period.

### (b)           TangibleNet Worth.  Maintain on aconsolidated basis Tangible Net Worth equal to at least the sum of thefollowing:

#### (i)            $36,000,000; *plus*

#### (ii)           the net proceeds from any equity securitiesissued after the date of this Agreement; *plus*

#### (iii)          any increase in stockholders’ equityresulting from the conversion of debt securities to equity securities after thedate of this Agreement.

### (c)           MaximumLeverage Ratio.  Maintain on aconsolidated basis a Leverage Ratio not exceeding 1.5 to 1.0.  This ratio will be calculated at the end ofeach reporting period for which this Agreement requires Borrower to deliverfinancial statements, using the results of the twelve-month period ending withthat reporting period.

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## **6.13****        Additional Guarantors**.  Notify the Lender at the time that any Personbecomes a Material Subsidiary, and promptly thereafter (and in any event within30 days), cause such Person to (a) become a Guarantor by executing anddelivering to the Lender a counterpart of the Guaranty or such other documentas the Lender shall deem appropriate for such purpose, and (b) deliver to theLender documents of the types referred to in clauses (iii) and (iv) of **Section 4.01(a)** and favorable opinions ofcounsel to such Person (which shall cover, among other things, the legality,validity, binding effect and enforceability of the documentation referred to inclause (a)), all in form, content and scope reasonably satisfactory to theLender.

## **6.14****        Acquisitions**.  Prior to consummating any Acquisition theBorrower shall have delivered to the Lender (in form and detail reasonablysatisfactory to the Lender) the following:

**(i)**            Simultaneously with, or as soon as practicable after,the first public announcement of the intention the Borrower or a Subsidiary ofthe Borrower to consummate an Acquisition, a brief summary of the substantiveterms thereof, or if available, a copy of the executed purchase or mergeragreement, together with a copy of such announcement;

**(ii)**           At least 10 days prior to the consummation of such Acquisition, a copy,certified by a Responsible Officer of the Borrower, of the executed purchasecontract or merger agreement relating to such Acquisition, if available, or ifnot available at such time as soon as practicable after entering into any suchpurchase contract or merger agreement; and

(iii)          A certificate, executedby a Responsible Officer of the Borrower, dated the date of consummation ofsuch Acquisition, certifying that immediately before and after giving effect tosuch Acquisition (A) no Event of Default has occurred and is continuing or willexist, (B) that the Borrower and its Subsidiaries will be in compliance on apro forma basis with each of the financial covenants specified in **Section 6.12** as of the end of the fiscal quarter immediatelypreceding such Acquisition for which financial statements have been deliveredpursuant to **Section 6.01** for the four fiscalquarter period preceding such fiscal quarter end, together with a reasonablydetailed worksheet setting forth the calculation of such ratios and (C) thatthe Acquisition is a Permitted Acquisition.

# **ARTICLEVII.NEGATIVE COVENANTS**

So long as the Lender shall have any Commitmenthereunder, any Loan or other Obligation hereunder shall remain unpaid orunsatisfied, or any Letter of Credit shall remain outstanding, Borrower shallnot, nor shall it permit any Loan Party to, directly or indirectly:

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

### (a)           Lienspursuant to any Loan Document;

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### (b)           Liensexisting on the date hereof and listed on **Schedule7.01** and any refinancing, refunding, renewal or extension thereof, providedthat (i) the property covered thereby is not changed, (ii) the amount securedor benefited thereby is not increased except as contemplated by **Section 7.03(b)**, (iii) the direct or anycontingent obligor with respect thereto is not changed, and (iv) and anyrefinancing, refunding, renewal or extension of the obligations secured orbenefited thereby is permitted by **Section7.03(b)**;

### (c)           Liensfor taxes not yet due or which are being contested in good faith and by appropriateproceedings diligently conducted, if adequate reserves with respect thereto aremaintained on the books of the applicable Person in accordance with GAAP;

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

### (e)           pledgesor 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)            depositsto secure the performance of bids, trade contracts and leases (other thanIndebtedness), statutory obligations, surety and appeal bonds, performancebonds and other obligations of a like nature incurred in the ordinary course ofbusiness;

### (g)           easements,rights-of-way, restrictions and other similar encumbrances affecting realproperty which, in the aggregate, are not substantial in amount, and which donot in any case materially detract from the value of the property subjectthereto or materially interfere with the ordinary conduct of the business ofthe applicable Person;

### (h)           Lienssecuring judgments for the payment of money not constituting an Event ofDefault under **Section 8.01(h)**;

### (i)            Lienssecuring Indebtedness permitted under **Section7.03(e)**; provided that (i) such Liens do not at any timeencumber any property other than the property financed by such Indebtedness and(ii) the Indebtedness secured thereby does not exceed the cost or fair marketvalue, whichever is lower, of the property being acquired on the date ofacquisition;

### (j)            Lienssecuring Indebtedness (and any refinancing, refunding, renewal or extensionthereof) on property in existence at the time such property is acquired by aLoan Party in connection with an Acquisition not prohibited by this Agreement;provided, that (i) such Liens do not at any time encumber any property otherthan the property so acquired, (ii) the amount secured or benefited thereby isnot increased, and (iii) the direct or any contingent obligor with respectthereto is not changed;

### (k)           Liensunder UCC § 4-210 and Liens in deposit accounts created under the standarddeposit agreement of any financial institution at which such Loan Partymaintains a deposit account;

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### (l)            Liensnot otherwise permitted by this **Section 7.01**;provided, that the aggregate amount of Indebtedness secured by Liens permittedby this clause (l) shall not at any time exceed $1,000,000.

## **7.02****        Investments**.  Make any Investments, except:

### (a)           Investmentsheld by Borrower or any Loan Party in the form of cash equivalents ormarketable debt securities;

### (b)           Investmentsexisting on the date hereof set forth on **Schedule5.13**.

### (c)           Investmentsof Borrower or any other Loan Party in any Borrower or any other Loan Party;

### (d)           Inaddition to any Investments in Restricted Subsidiaries set forth on **Schedule 5.13**, Investments of Borrower orany other Loan Party in any wholly owned Restricted  Subsidiary up to $1,000,000 in the aggregatefrom the date hereof through the Maturity Date; provided that intercompanyloans and advances shall count against the limitation in this subsection (d)only to the extent such loans and advances have not been repaid;

### (e)           Investmentsconsisting of extensions of credit in the nature of accounts receivable ornotes receivable arising from the grant of trade credit in the ordinary courseof business, and Investments received in satisfaction or partial satisfactionthereof from financially troubled account debtors to the extent reasonablynecessary in order to prevent or limit loss;

### (f)            Guaranteespermitted by **Section 7.03**;

### (g)           Loansand advances to officers, directors and employees of the Borrower or any LoanParty that in an aggregate amount not to exceed $100,000 at any timeoutstanding for travel, entertainment, relocation and analogous ordinarybusiness purposes and would not be prohibited by Sarbanes-Oxley;

### (h)           Investmentsincurred in order to consummate Acquisitions not prohibited by this Agreement;

### (i)            Investmentsin seller “take-back” notes arising in connection with a Disposition of assetsnot prohibited by this Agreement; provided that the principal amount of anysuch note does not exceed the fair market value of the assets so Disposed; and

### (j)            otherInvestments not permitted by this Section 7.02; provided, that the aggregatevalue of all such other Investments made in any fiscal year shall not exceed$1,000,000.

## **7.03****        Indebtedness**.  Create, incur, assume or suffer to exist anyIndebtedness, except:

### (a)           Indebtednessunder the Loan Documents;

### (b)           Indebtednessoutstanding on the date hereof and listed on **Schedule7.03** and any refinancing, refunding, renewal or extension thereof; providedthat (i) the amount of such

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### Indebtedness is not increased at the time of such refinancing,refunding, renewal or extension except by an amount equal to a reasonable premiumor other reasonable amount paid, and fees and expenses reasonably incurred, inconnection with such refinancing and by an amount equal to any existingcommitments unutilized thereunder and (ii) the terms relating to principalamount, 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 ofany instrument issued in connection therewith, are no less favorable in anymaterial respect to the Loan Parties or Lenders than the terms of any agreementor instrument governing the Indebtedness being refinanced, refunded, renewed orextended and the interest rate applicable to any such refinancing, refunding,renewing or extending Indebtedness does not exceed the then applicable marketinterest rate;

### (c)           Guaranteesgiven by any Loan Party in respect of Indebtedness of any other Loan Partyotherwise not prohibited by this Agreement;

### (d)           obligations(contingent or otherwise) of a Loan Party existing or arising under any SwapContract, provided that (i) such obligations are (or were) entered intoby such Person in the ordinary course of business for the purpose of directlymitigating risks associated with liabilities, commitments, investments, assets,or property held or reasonably anticipated by such Person, or changes in thevalue of securities issued by such Person, and not for purposes of speculationor taking a “market view;” and (ii) such Swap Contract does not contain anyprovision exonerating the non-defaulting party from its obligation to makepayments on outstanding transactions to the defaulting party;

### (e)           Indebtednessin respect of capital leases, Synthetic Lease Obligations and purchase moneyobligations for fixed or capital assets within the limitations set forth in Section7.01(i); provided, however, that the aggregate amount of allsuch Indebtedness at any one time outstanding shall not exceed****$1,000,000;

### (f)            Indebtednesssecured by Liens permitted by **Section 7.01(j)**;

### (g)           Indebtednessowing to the Borrower or any of its Subsidiaries; and

### (h)           otherIndebtedness not permitted by this Section 7.03; provided, that the aggregateoutstanding amount of all such other Indebtedness shall not exceed $1,000,000at any time.

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

### (a)           anyLoan Party may consummate a Permitted Acquisition;

### (b)           anyLoan Party other than the Borrower may merge with (i) Borrower, providedthat Borrower shall be the continuing or surviving Person, or (ii) anySubsidiary of the Borrower, provided that when any wholly-ownedSubsidiary of the Borrower is merging with another Subsidiary of the Borrower,the wholly-owned Subsidiary shall be the continuing or surviving

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### Person, and, provided further that if a Guarantor is mergingwith a Subsidiary of the Borrower that has not given a Guaranty, the Guarantorshall be the surviving Person; and

### (c)           anyLoan Party may Dispose of all or substantially all of its assets (uponvoluntary liquidation or otherwise) to Borrower or to any Subsidiary of theBorrower; provided that if the transferor in such a transaction is awholly-owned Subsidiary of the Borrower, then the transferee must either beBorrower or a wholly-owned Subsidiary of the Borrower and, provided furtherthat if the transferor of such assets is a Guarantor, the transferee musteither be Borrower or a Guarantor.

## **7.05****        Dispositions**.  Make any Disposition or enter into anyagreement to make any Disposition, except:

### (a)           Dispositionsof obsolete or worn out property, whether now owned or hereafter acquired, inthe ordinary course of business;

### (b)           Dispositionsof inventory in the ordinary course of business;

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

### (d)           Dispositionsof property or equipment to the extent that such Loan Party has determined itis desirable in the conduct of its business to discontinue the operation andmaintenance of such property and equipment; provided that such Dispositions(individually or in the aggregate) could not reasonably be expected to have aMaterial Adverse Effect;

### (e)           Dispositionsof property by any Subsidiary of the Borrower to Borrower or to a wholly-ownedSubsidiary of the Borrower; provided that if the transferor of such propertyis a Guarantor, the transferee thereof must either be Borrower or a Guarantor;

### (f)            Dispositionspermitted by **Section 7.04**;

### (g)           Dispositionsof cash to satisfy obligations not prohibited by this Agreement; and

### (h)           Dispositionsof cash in connection with Restricted Payments not prohibited by thisAgreement.

provided, however, that anyDisposition pursuant to clauses (a) through (g) shall be for fair market value.

## **7.06****        Restricted****Payments**. Declare or make, directly or indirectly, any Restricted Payment, orincur any obligation (contingent or otherwise) to do so, or issue or sell anyEquity Interests, except that, so long as no Default shall have occurred and becontinuing at the time of any action described below or would result therefrom:

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### (a)           eachLoan Party may make Restricted Payments to any Person that owns an EquityInterest in such Loan Party, ratably according to their respective holdings ofthe type of Equity Interest in respect of which such Restricted Payment isbeing made;

### (b)           eachLoan Party may declare and make dividend payments or other distributionspayable solely in the common stock or other common Equity Interests of suchPerson; and

### (c)           eachLoan Party may purchase, redeem or otherwise acquire Equity Interests issued byit with the proceeds received from the substantially concurrent issue of newshares of its common stock or other common Equity Interests.

## **7.07****        Change****in****Nature****of****Business**.  Engage in anymaterial line of business substantially different from those lines of businessconducted by the Loan Parties on the date hereof or any business substantiallyrelated or incidental thereto.

## **7.08****        Transactions****with****Affiliates**.  Enter into any transaction of any kind withany Affiliate of Borrower, whether or not in the ordinary course of business,other than on fair and reasonable terms substantially as favorable to such LoanParty as would be obtainable by such Loan Party at the time in a comparable arm’slength transaction with a Person other than an Affiliate, provided that theforegoing restriction shall not apply to transactions between or among Borrowerand any Loan Party or between or among any Loan Party other than the Borrowerand any other Loan Party.

## **7.09****        Burdensome****Agreements**. Enter into any Contractual Obligation (other than this Agreement or anyother Loan Document) that (a) limits the ability (i) of any Loan Party to makeRestricted Payments to the Borrower or its Subsidiaries or to otherwisetransfer property to the Borrower or its Subsidiaries, (ii) of any Loan Partyto Guarantee the Indebtedness of Borrower or its Subsidiaries or (iii) of anyLoan Party to create, incur, assume or suffer to exist Liens on property ofsuch Person; provided, however, that this clause (iii) shall notprohibit any negative pledge incurred or provided in favor of any holder ofIndebtedness permitted under **Section 7.03(e)**solely to the extent any such negative pledge relates to the property financedby or the subject of such Indebtedness; or (b) requires the grant of a Lien tosecure an obligation of such Person if a Lien is granted to secure anotherobligation of such Person.

## **7.10****        Use of Proceeds**.  Use the proceeds of any Credit Extension,whether directly or indirectly, and whether immediately, incidentally orultimately, to purchase or carry margin stock (within the meaning of RegulationU of the FRB) or to extend credit to others for the purpose of purchasing orcarrying margin stock or to refund indebtedness originally incurred for suchpurpose.

# **ARTICLEVIII.EVENTS OF DEFAULT AND REMEDIES**

## **8.01****        Events of Default**.  Any of the following shall constitute an “**Event of Default**”:

### (a)           Non-Payment.  Any Loan Party fails to pay (i) when and asrequired to be paid herein, any amount of principal of any Loan or any L/CObligation, or (ii) within three days after the

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### same becomes due, any interest on any Loan or on any L/C Obligation, orany 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)           SpecificCovenants.  Borrower fails to performor observe any term, covenant or agreement contained in any of **Section 6.01, 6.02, 6.03, 6.05, 6.10, 6.11, 6.12**,**6.13, 6.14** or **Article VII**, or any Guarantor fails toperform or observe any term, covenant or agreement contained in the Guaranty;or

### (c)           OtherDefaults.  Any Loan Party fails toperform 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 orobserved and such failure continues for 30 days after the Borrower or any otherLoan Party has knowledge thereof; or

### (d)           Representationsand Warranties.  Any representation,warranty, certification or statement of fact made or deemed made by or onbehalf of any Loan Party herein, in any other Loan Document, or in any documentdelivered in connection herewith or therewith shall be incorrect or misleadingin any material respect when made or deemed made; or

### (e)           Cross-Default.  (i) Any Loan Party (A) fails to make anypayment when due (whether by scheduled maturity, required prepayment,acceleration, demand, or otherwise, but giving effect to any applicable graceor cure period) in respect of any Indebtedness or Guarantee (other thanIndebtedness hereunder and Indebtedness under Swap Contracts) having anaggregate principal amount (including undrawn committed or available amountsand including amounts owing to all creditors under any combined or syndicatedcredit arrangement) of more than the Threshold Amount, or (B) fails to observeor perform any other agreement or condition relating to any such Indebtednessor Guarantee or contained in any instrument or agreement evidencing, securingor relating thereto, or any other event occurs, the effect of which default orother event is to cause, or to permit the holder or holders of suchIndebtedness or the beneficiary or beneficiaries of such Guarantee (or atrustee or agent on behalf of such holder or holders or beneficiary orbeneficiaries) to cause, with the giving of notice if required, such Indebtednessto be demanded or to become due or to be repurchased, prepaid, defeased orredeemed (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 bedemanded; or (ii) there occurs under any Swap Contract an Early TerminationDate (as defined in such Swap Contract) resulting from (A) any event of defaultunder such Swap Contract as to which any Loan Party is the Defaulting Party (asdefined in such Swap Contract) or (B) any Termination Event (as so defined)under such Swap Contract as to which any Loan Party is an Affected Party (as sodefined) and, in either event, the Swap Termination Value owed by such LoanParty as a result thereof is greater than the Threshold Amount; or

### (f)            InsolvencyProceedings, Etc.  Any Loan Partyinstitutes or consents to the institution of any proceeding under any DebtorRelief Law, or makes an assignment for the benefit of creditors; or applies foror consents to the appointment of any receiver, trustee, custodian,conservator, liquidator, rehabilitator or similar officer for it or for all orany material part of its property; or any receiver, trustee, custodian, conservator,liquidator, rehabilitator or similar officer is appointed without theapplication or consent of such Person and the appointment

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### continues undischarged or unstayed for 60 calendar days; or anyproceeding under any Debtor Relief Law relating to any such Person or to all orany material part of its property is instituted without the consent of suchPerson and continues undismissed or unstayed for 60 calendar days, or an orderfor relief is entered in any such proceeding; or

### (g)           Inabilityto Pay Debts; Attachment.  (i) AnyLoan Party becomes unable or admits in writing its inability or fails generallyto pay its debts as they become due, or (ii) any writ or warrant of attachmentor execution or similar process is issued or levied against all or any materialpart of the property of any such Person and is not released, vacated or fullybonded within 30 days after its issue or levy; or

### (h)           Judgments.  There is entered against any Loan Party (i)one or more final judgments or orders for the payment of money in an aggregateamount (as to all such judgments or orders) exceeding the Threshold Amount (tothe extent not covered by independent third-party insurance as to which theinsurer does not dispute coverage), or (ii) any one or more non-monetary finaljudgments that have, or could reasonably be expected to have, individually orin the aggregate, a Material Adverse Effect and, in either case, (A)enforcement proceedings are commenced by any creditor upon such judgment ororder, or (B) there is a period of 30 consecutive days during which a stay ofenforcement of such judgment, by reason of a pending appeal or otherwise, isnot in effect; or

### (i)            ERISA.  (i) An ERISA Event occurs with respect to aPension Plan or Multiemployer Plan which has resulted or could reasonably beexpected to result in liability of Borrower under Title IV of ERISA to thePension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excessof the Threshold Amount, or (ii) Borrower or any ERISA Affiliate fails to paywhen due, after the expiration of any applicable grace period, any installmentpayment with respect to its withdrawal liability under Section 4201 of ERISAunder a Multiemployer Plan in an aggregate amount in excess of the ThresholdAmount; or

### (j)            Invalidityof Loan Documents.  Any LoanDocument  or any provision thereof, atany time after its execution and delivery and for any reason other than asexpressly permitted hereunder or thereunder or satisfaction in full of all theObligations, ceases to be in full force and effect; or any Loan Party or anyother Person contests in any manner the validity or enforceability of any LoanDocument or any provision thereof; or any Loan Party denies that it has any orfurther liability or obligation under any Loan Document, or purports to revoke,terminate or rescind any Loan Document or any provision thereof; or

### (k)           Changeof Control.  There occurs any Changeof Control with respect to any Loan Party; or

### (l)            MaterialAdverse Effect.  There occurs anyevent or circumstance that has a Material Adverse Effect.

## **8.02****        Remedies Upon Event ofDefault**.  If any Event of Defaultoccurs and is continuing the Lender may take any or all of the followingactions:

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### (a)           declarethe commitment of the Lender to make Loans and any obligation of the L/C Issuerto make L/C Credit Extensions to be terminated, whereupon such commitment andobligation shall be terminated;

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

### (c)           requirethat Borrower Cash Collateralize the L/C Obligations (in an amount equal to thethen Outstanding Amount thereof); and

### (d)           exerciseon behalf of itself and the L/C Issuer all rights and remedies available to itand the L/C Issuer under the Loan Documents;

provided, however, that uponthe occurrence of an actual or deemed entry of an order for relief with respectto Borrower under the Bankruptcy Code of the United States, the obligation ofthe Lender to make Loans and any obligation of the L/C Issuer to make L/CCredit Extensions shall automatically terminate, the unpaid principal amount ofall outstanding Loans and all interest and other amounts as aforesaid shallautomatically become due and payable, and the obligation of Borrower to CashCollateralize the L/C Obligations as aforesaid shall automatically becomeeffective, in each case without further act of the Lender.

## **8.03****        Application of Funds**.  After the exercise of remedies provided forin **Section 8.02** (or after theLoans have automatically become immediately due and payable and the L/CObligations have automatically been required to be Cash Collateralized as setforth in the proviso to **Section 8.02**),any amounts received on account of the Obligations shall be applied by theLender in the following order:

First, to payment of that portion ofthe Obligations constituting fees, indemnities, expenses and other amounts(including fees, charges and disbursements of counsel to the Lender (includingfees and time charges for attorneys who may be employees of the Lender) andamounts payable under **Article III**)payable to the Lender in its capacity as such;

Second, to payment of that portionof the Obligations constituting fees, indemnities and other amounts (other thanprincipal, interest and L/C Fees) payable to the L/C Issuer (including fees,charges and disbursements of counsel to the L/C Issuer (including fees and timecharges for attorneys who may be employees of the L/C  Issuer) and amounts payable under **Article III**);

Third, to payment of that portion ofthe Obligations constituting accrued and unpaid L/C Fees and interest on theLoans, L/C Borrowings and other Obligations, ratably among the Lender and theL/C Issuer in proportion to the respective amounts described in this clause Thirdpayable to them;

Fourth, to payment of that portionof the Obligations constituting unpaid principal of the Loans and L/CBorrowings, ratably among the Lender and the L/C Issuer in proportion to therespective amounts described in this clause Fourth held by them;

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Fifth, to Lender for the account ofthe L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprisedof the aggregate undrawn amount of Letters of Credit; and

Last, the balance, if any, after allof the Obligations have been indefeasibly paid in full, to Borrower or asotherwise required by Law.

Subject to Section 2.03(c), amounts used to CashCollateralize the aggregate undrawn amount of Letters of Credit pursuant toclause Fifth above shall be applied to satisfy drawings under suchLetters of Credit as they occur.  If anyamount remains on deposit as Cash Collateral after all Letters of Credit haveeither been fully drawn or expired, such remaining amount shall be applied tothe other Obligations, if any, in the order set forth above.

# **ARTICLEIX.**

# **MISCELLANEOUS**

## **9.01****        Amendments, Etc.**  No amendment or waiver of any provision ofthis Agreement or any other Loan Document, and no consent to any departure byBorrower or any other Loan Party therefrom, shall be effective unless inwriting signed by the Lender and Borrower or the applicable Loan Party, as thecase may be, and each such waiver or consent shall be effective only in thespecific instance and for the specific purpose for which given; provided,however, that no amendment, waiver or consent shall, unless in writingand signed by the L/C Issuer in addition to the Lender, affect the rights orduties of the L/C Issuer under this Agreement or any Issuer Document relatingto any Letter of Credit issued or to be issued by it.

## **9.02****        Notices; Effectiveness;Electronic Communications**.  (a)  Notices Generally.  Except in the case of notices and othercommunications expressly permitted to be given by telephone (and except asprovided in subsection (b) below), all notices and other communicationsprovided for herein shall be in writing and shall be delivered by hand orovernight courier service, mailed by certified or registered mail or sent bytelecopier to, and all notices and other communications expressly permittedhereunder to be given by telephone shall be made to, the address, telecopiernumber, electronic mail address or telephone number specified for such Personon **Schedule 9.02**; and

Notices sent by hand or overnight courier service, ormailed by certified or registered mail, shall be deemed to have been given whenreceived; notices sent by telecopier shall be deemed to have been given whensent (except that, if not given during normal business hours for the recipient,shall be deemed to have been given at the opening of business on the nextbusiness day for the recipient).  Noticesdelivered through electronic communications to the extent provided insubsection (b) below, shall be effective as provided in such subsection (b).

### (b)           ElectronicCommunications.  Notices and othercommunications to the Lender and the L/C Issuer hereunder may be delivered orfurnished by electronic communication (including e-mail and Internet orintranet websites), provided that the foregoing shall not apply to notices tothe L/C Issuer pursuant to**Article II**if the L/C Issuer, has notified the Lender that it is incapable of receivingnotices under such Article by electronic communication.  The Lender or Borrower may, in itsdiscretion, agree to accept notices and other communications to it hereunder by

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### electronic communications pursuant to procedures approved by it,provided that approval of such procedures may be limited to particular noticesor communications.  Unless the Lenderotherwise prescribes, (i) notices and other communications sent to an e-mailaddress shall be deemed received upon the sender’s receipt of an acknowledgementfrom the intended recipient (such as by the “return receipt requested”function, as available, return e-mail or other written acknowledgement), providedthat if such notice or other communication is not sent during the normalbusiness hours of the recipient, such notice or communication shall be deemedto have been sent at the opening of business on the next business day for therecipient, and (ii) notices or communications posted to an Internet or intranetwebsite shall be deemed received upon the deemed receipt by the intendedrecipient at its e-mail address as described in the foregoing clause (i) ofnotification that such notice or communication is available and identifying thewebsite address therefor.

### (c)           ThePlatform.  THE PLATFORM IS PROVIDED “ASIS” AND “AS AVAILABLE.”  THE LENDERPARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OFBORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIMLIABILITY FOR ERRORS IN OR OMISSIONS FROM BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED ORSTATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OROTHER CODE DEFECTS, IS MADE BY ANY LENDER PARTY IN CONNECTION WITH BORROWERMATERIALS OR THE PLATFORM.  In no eventshall Lender or any of its Related Parties (collectively, the “**Lender****Parties**”)have any liability to Borrower, the L/C Issuer or any other Person for losses,claims, damages, liabilities or expenses of any kind (whether in tort, contractor otherwise) arising out of Borrower’s or Lender’s transmission of BorrowerMaterials through the Internet, except to the extent that such losses, claims,damages, liabilities or expenses are determined by a court of competentjurisdiction by a final and nonappealable judgment to have resulted from thegross negligence or willful misconduct of such Lender Party; provided, however,that in no event shall any Lender Party have any liability to Borrower, the L/CIssuer or any other Person for indirect, special, incidental, consequential orpunitive damages (as opposed to direct or actual damages).

### (d)           Changeof Address, Etc.  Each of Borrower,the Lender and the L/C Issuer may change its address, telecopier or telephonenumber for notices and other communications hereunder by notice to the otherparties hereto.

### (e)           Relianceby the Lender and L/C Issuer.  TheLender and the L/C Issuer shall be entitled to rely and act upon any notices(including telephonic Committed Loan Notices) purportedly given by or on behalfof Borrower even if (i) such notices were not made in a manner specifiedherein, were incomplete or were not preceded or followed by any other form ofnotice specified herein, or (ii) the terms thereof, as understood by therecipient, varied from any confirmation thereof.  Borrower shall indemnify The Lender, the L/CIssuer and the Related Parties of each of them from all losses, costs, expensesand liabilities resulting from the reliance by such Person on each notice purportedlygiven by or on behalf of Borrower.  Alltelephonic notices to and other telephonic communications with the Lender maybe recorded by the Lender, and each of the parties hereto hereby consents tosuch recording.

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## **9.03****        No Waiver; CumulativeRemedies**.  No failure by the Lenderor the L/C Issuer to exercise, and no delay by any such Person in exercising,any right, remedy, power or privilege hereunder shall operate as a waiverthereof; nor shall any single or partial exercise of any right, remedy, poweror privilege hereunder preclude any other or further exercise thereof or theexercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges hereinprovided are cumulative and not exclusive of any rights, remedies, powers andprivileges provided by law.

## **9.04****        Expenses; Indemnity;Damage Waiver**.  (a)  Costs and Expenses.  Borrower shall pay (i) all reasonable out ofpocket expenses incurred by the Lender and its Affiliates (including thereasonable fees, charges and disbursements of counsel for the Lender), inconnection with the preparation, negotiation, execution, delivery andadministration of this Agreement and the other Loan Documents or anyamendments, modifications or waivers of the provisions hereof or thereof(whether or not the transactions contemplated hereby or thereby shall beconsummated), (ii) all reasonable out of pocket expenses incurred by the L/CIssuer in connection with the issuance, amendment, renewal or extension of anyLetter of Credit or any demand for payment thereunder and (iii) all out ofpocket expenses incurred by the Lender or the L/C Issuer (including the fees,charges and disbursements of any counsel for the Lender or the L/C Issuer), andshall pay all fees and time charges for attorneys who may be employees of theLender or the L/C Issuer, in connection with the enforcement or protection ofits rights (A) in connection with this Agreement and the other Loan Documents,including its rights under this Section, or (B) in connection with the Loansmade or Letters of Credit issued hereunder, including all such out of pocketexpenses incurred during any workout, restructuring or negotiations in respectof such Loans or Letters of Credit.

### (b)           Indemnificationby Borrower.  Borrower shallindemnify the Lender and the L/C Issuer, and each Related Party of any of theforegoing 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 and disbursements of any counsel for anyIndemnitee), and shall indemnify and hold harmless each Indemnitee from allfees and time charges and disbursements for attorneys who may be employees of anyIndemnitee, incurred by any Indemnitee or asserted against any Indemnitee byany third party or by Borrower or any other Loan Party arising out of, inconnection with, or as a result of (i) the execution or delivery of thisAgreement, any other Loan Document or any agreement or instrument contemplatedhereby or thereby, the performance by the parties hereto of their respectiveobligations hereunder or thereunder, or the consummation of the transactionscontemplated hereby or thereby, or the administration of this Agreement and theother Loan Documents, (ii) any Loan or Letter of Credit or the use or proposeduse of the proceeds therefrom (including any refusal by the L/C Issuer to honora demand for payment under a Letter of Credit if the documents presented inconnection with such demand do not strictly comply with the terms of suchLetter of Credit), (iii) any actual or alleged presence or release of HazardousMaterials on or from any property owned or operated by Borrower or any of itsSubsidiaries, or any Environmental Liability related in any way to Borrower orany of its Subsidiaries, or (iv) any actual or prospective claim, litigation,investigation or proceeding relating to any of the foregoing, whether based oncontract, tort or any other theory, whether brought by a third party or byBorrower or any other Loan Party, and regardless of whether any Indemnitee is aparty thereto, in all cases, whether or not caused by or arising, in whole orin part, out of the

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### comparative, contributory or sole negligence of the Indemnitee; providedthat such indemnity shall not, as to any Indemnitee, be available to the extentthat such losses, claims, damages, liabilities or related expenses (x) aredetermined by a court of competent jurisdiction by final and nonappealablejudgment to have resulted from the gross negligence or willful misconduct ofsuch Indemnitee or (y) result from a claim brought by Borrower or any otherLoan Party against an Indemnitee for breach in bad faith of such Indemnitee’sobligations hereunder or under any other Loan Document, if Borrower or suchLoan Party has obtained a final and nonappealable judgment in its favor on suchclaim as determined by a court of competent jurisdiction.

### (c)           Waiverof Consequential Damages, Etc.  Tothe fullest extent permitted by applicable law, Borrower shall not assert, andhereby waives, any claim against any Indemnitee, on any theory of liability,for special, indirect, consequential or punitive damages (as opposed to director actual damages) arising out of, in connection with, or as a result of, thisAgreement, any other Loan Document or any agreement or instrument contemplatedhereby, the transactions contemplated hereby or thereby, any Loan or Letter ofCredit or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable forany damages arising from the use by unintended recipients of any information orother materials distributed to such unintended recipients by such Indemniteethrough telecommunications, electronic or other information transmissionsystems in connection with this Agreement or the other Loan Documents or thetransactions contemplated hereby or thereby other than for direct or actualdamages resulting from the gross negligence or willful misconduct of suchIndemnitee as determined by a final and nonappealable judgment of a court ofcompetent jurisdiction.

### (d)           Payments.  All amounts due under this Section shall bepayable not later than ten Business Days after demand therefor.

### (e)           Survival.  The agreements in this Section shall survivethe resignation of the L/C Issuer, the replacement of the Lender, thetermination of the Commitment and the repayment, satisfaction or discharge ofall the other Obligations.

## **9.05****       ****PaymentsSet Aside.**  To the extent thatany payment by or on behalf of Borrower is made to the Lender or the L/CIssuer, or the Lender or the L/C Issuer exercises its right of setoff, and suchpayment or the proceeds of such setoff or any part thereof is subsequentlyinvalidated, declared to be fraudulent or preferential, set aside or required(including pursuant to any settlement entered into by the Lender or the L/CIssuer in its discretion) to be repaid to a trustee, receiver or any otherparty, in connection with any proceeding under any Debtor Relief Law orotherwise, then to the extent of such recovery, the obligation or part thereoforiginally intended to be satisfied shall be revived and continued in fullforce and effect as if such payment had not been made or such setoff had notoccurred.

## **9.06****        Successors and Assigns**.  (a)  Successorsand Assigns Generally.  Theprovisions of this Agreement shall be binding upon and inure to the benefit ofthe parties hereto and their respective successors and assigns permittedhereby, except that neither Borrower nor any other Loan Party may assign orotherwise transfer any of its rights or obligations hereunder without the priorwritten consent of the Lender and the L/C Issuer, and the Lender and the L/CIssuer may not assign or otherwise transfer any of its rights or obligationshereunder except (i) to an assignee in accordance with the provisions ofsubsection (b) of this Section, (ii) by way of participation in

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## accordance with the provisions of subsection (d) of this Section, or(iii) by way of pledge or assignment of a security interest subject to therestrictions of subsection (f) of this Section (and any other attemptedassignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed orimplied, shall be construed to confer upon any Person (other than the partieshereto, their respective successors and assigns permitted hereby, Participantsto the extent provided in subsection (d) of this Section and, to the extentexpressly contemplated hereby, the Related Parties of the Lender and the L/CIssuer) any legal or equitable right, remedy or claim under or by reason ofthis Agreement.

### (b)           Assignmentsby Lender.  The Lender may at anytime assign to one or more assignees all or a portion of its rights andobligations under this Agreement (including all or a portion of its Commitmentand the Loans (including for purposes of this subsection (b), participations inL/C Obligations) at the time owing to it); provided that any suchassignment shall be subject to the following conditions:

#### (i)            Proportionate Amounts.  Each partial assignment shall be made as anassignment of a proportionate part of all the assigning Lender’s rights andobligations under this Agreement with respect to the Loans or the Commitmentassigned;

#### (ii)           Required Consents.  No consent shall be required for anyassignment except:

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

(B)           the consent of the L/CIssuer (such consent not to be unreasonably withheld or delayed) shall berequired for any assignment that increases the obligation of the assignee toparticipate in exposure under one or more Letters of Credit (whether or notthen outstanding); and

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

#### (iv)          No Assignment to Foreign Lenders orNatural Persons.  No such assignmentshall be made to a Foreign Lender or a natural person.

From and after the effective date of an assignment,the assignee thereunder shall be a party to this Agreement and, to the extentof the interest assigned, have the rights and obligations of the Lender underthis Agreement, and the assigning Lender thereunder shall, to the extent of theinterest assigned, be released from its obligations under this Agreement (and,in the case of an assignment of all of the Lender’s rights and obligationsunder this Agreement, the Lender shall cease to be a party hereto) but shallcontinue to be entitled to the benefits of **Sections 3.01, 3.04, 3.05**,and **9.04** with respect to facts andcircumstances occurring prior to the effective date of such assignment.  Upon request, Borrower (at its expense) shallexecute and deliver a Note to the assignee Lender.  Any assignment or transfer by the Lender ofrights or obligations under this Agreement that does not comply with thissubsection shall be treated for purposes of this

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Agreement as a sale by the Lender of a participationin such rights and obligations in accordance with subsection (d) of thisSection.

### (c)           Register.  The Lender, acting solely for this purpose asan agent of the Borrower, shall maintain at the Lender’s Office a copy of eachassignment delivered to it and a register for the recordation of the names andaddresses of the assignee Lenders, and the Commitments of, and principalamounts of the Loans and L/C Obligations owing to, each assignee Lenderpursuant to the terms hereof from time to time (the “**Register**”).  The entriesin the Register shall be conclusive, and Borrower, the Lender and the assigneeLenders may treat each Person whose name is recorded in the Register pursuantto 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 anyassignee Lender, at any reasonable time and from time to time upon reasonableprior notice.

### (d)           Participations.  The Lender may at any time, without theconsent of, or notice to, Borrower, sell participations to any Person (otherthan a Foreign Lender, a natural person or Borrower or any of Borrower’sAffiliates or Subsidiaries) (each, a “**Participant**”)in all or a portion of the Lender’s rights and/or obligations under thisAgreement (including all or a portion of its Commitment and/or the Loans(including the Lender’s participations in L/C Obligations) owing to it); providedthat (i) the Lender’s obligations under this Agreement shall remain unchanged,(ii) the Lender shall remain solely responsible to the other parties hereto forthe performance of such obligations and (iii) Borrower and the L/C Issuer shallcontinue to deal solely and directly with the Lender in connection with theLender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to whichthe Lender sells such a participation shall provide that the Lender shallretain the sole right to enforce this Agreement and to approve any amendment,modification or waiver of any  provisionof this Agreement; provided that such agreement or instrument mayprovide that the Lender will not, without the consent of the Participant, agreeto any amendment, waiver or other modification described in the first provisoto **Section 9.01** that affects suchParticipant.  Subject to subsection (e)of this Section, Borrower agrees that each Participant shall be entitled to thebenefits of **Sections 3.01, 3.04** and**3.05** to the same extent as if itwere the Lender and had acquired its interest by assignment pursuant tosubsection (b) of this Section.  To theextent permitted by law, each Participant also shall be entitled to the benefitsof **Section 9.08** as though it werethe Lender, provided such Participant agrees to be subject to **Section 2.12** as though it were a Lender.

### (e)           Limitationsupon Participant Rights.  AParticipant shall not be entitled to receive any greater payment under **Section 3.01** or **3.04** than the Lender would have been entitled to receive withrespect to the participation sold to such Participant, unless the sale of theparticipation to such Participant is made with Borrower’s prior writtenconsent.

### (f)            CertainPledges.  The Lender may at any timepledge or assign a security interest in all or any portion of its rights underthis Agreement (including under its Note, if any) to secure obligations of theLender, including any pledge or assignment to secure obligations to a FederalReserve Bank; provided that no such pledge or assignment shall releasethe Lender from any of its obligations hereunder or substitute any such pledgeeor assignee for the Lender as a party hereto.

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### (g)           ElectronicExecution of Assignments.  The words “execution,”“signed,” “signature,” and words of like import in any assignment shall bedeemed to include electronic signatures or the keeping of records in electronicform, each of which shall be of the same legal effect, validity orenforceability as a manually executed signature or the use of a paper-basedrecordkeeping system, as the case may be, to the extent and as provided for inany applicable law, including the Federal Electronic Signatures in Global andNational Commerce Act, the Missouri Uniform Electronic Transactions Act, or anyother similar state laws based on the Uniform Electronic Transactions Act.

### (h)           DeemedConsent of Borrower.  If the consentof Borrower to an assignment is required hereunder, Borrower shall be deemed tohave given its consent five Business Days after the date notice thereof hasbeen delivered to Borrower by the Lender unless such consent is expresslyrefused by Borrower prior to such fifth Business Day.

### (i)            Resignationas L/C Issuer.  Notwithstandinganything to the contrary contained herein, if at any time Bank of Americaassigns all of its Commitment and Loans pursuant to subsection (b) above, Bankof America may, upon 30 days’ notice to Borrower, resign as L/C Issuer.  In the event of any such resignation as L/CIssuer, Borrower shall be entitled to appoint from among the assignee Lenders asuccessor L/C Issuer hereunder; provided, however, that nofailure by Borrower to appoint any such successor shall affect the resignationof Bank of America as L/C Issuer.  IfBank of America resigns as L/C Issuer, it shall retain all the rights, powers,privileges and duties of the L/C Issuer hereunder with respect to all Lettersof Credit outstanding as of the effective date of its resignation as L/C Issuerand all L/C Obligations with respect thereto (including the right to requirethe Lender to make Base Rate Committed Loans or fund risk participations inUnreimbursed Amounts pursuant to **Section2.03(c)**).  Upon theappointment of a successor L/C Issuer, (a) such successor shall succeed to andbecome vested with all of the rights, powers, privileges and duties of theretiring L/C Issuer, as the case may be, and (b) the successor L/C Issuer shallissue letters of credit in substitution for the Letters of Credit, if any,outstanding at the time of such succession or make other arrangementssatisfactory to Bank of America to effectively assume the obligations of Bankof America with respect to such Letters of Credit.

## **9.07****        Treatment of CertainInformation; Confidentiality**.  Eachof the Lender and the L/C Issuer agrees to maintain the confidentiality of theInformation (as defined below), except that Information may be disclosed (a) toits Affiliates and to its and its Affiliates’ respective partners, directors,officers, employees, agents, advisors and representatives (it being understoodthat the Persons to whom such disclosure is made will be informed of theconfidential nature of such Information and instructed to keep such Informationconfidential), (b) to the extent requested by any regulatory authority, purportingto have jurisdiction over it  (includingany self-regulatory authority, such as the National Association of InsuranceCommissioners), (c) to the extent required by applicable laws or regulations orby any subpoena or similar legal process, (d) to any other party hereto, (e) inconnection with the exercise of any remedies hereunder or under any other LoanDocument or any action or proceeding relating to this Agreement or any otherLoan Document or the enforcement of rights hereunder or thereunder, (f) subjectto an agreement containing provisions substantially the same as those of thisSection, to (i) any assignee of or Participant in, or any prospective assigneeof or Participant in, any of its rights or obligations under this Agreement or(ii) any actual or prospective

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## counterparty (or its advisors) to any swap or derivative transactionrelating to Borrower and its obligations, (g) with the consent of Borrower or(h) to the extent such Information (x) becomes publicly available other than asa result of a breach of this Section or (y) becomes available to the Lender,the L/C Issuer or any of their respective Affiliates on a nonconfidential basisfrom a source other than Borrower.  Forpurposes of this Section, “**Information**”means all information received from Borrower or any Subsidiary relating toBorrower or any Subsidiary or any of their respective businesses, other thanany such information that is available to the Lender or the L/C Issuer on anonconfidential basis prior to disclosure by Borrower or any Subsidiary, providedthat, in the case of information received from Borrower or any Subsidiary afterthe date hereof, such information is clearly identified at the time of deliveryas confidential.  Any Person required tomaintain the confidentiality of Information as provided in this Section shallbe considered to have complied with its obligation to do so if such Person hasexercised the same degree of care to maintain the confidentiality of suchInformation as such Person would accord to its own confidentialinformation.  Each of the Lender and theL/C Issuer acknowledges that (a) the Information may include materialnon-public information concerning Borrower or a Subsidiary, as the case may be,(b) it has developed compliance procedures regarding the use of materialnon-public information and (c) it will handle such material non-publicinformation in accordance with applicable Law, including Federal and statesecurities Laws.

## **9.08****        Right of Setoff**.  If an Event of Default shall have occurredand be continuing, the Lender, the L/C Issuer and each of their respectiveAffiliates is hereby authorized at any time and from time to time, to thefullest extent permitted by applicable law, to set off and apply any and alldeposits (general or special, time or demand, provisional or final, in whatevercurrency) at any time held and other obligations (in whatever currency) at anytime owing by the Lender, the L/C Issuer or any such Affiliate****to or for the credit or the account ofBorrower or any other Loan Party against any and all of the obligations ofBorrower or such Loan Party now or hereafter existing under this Agreement orany other Loan Document to the Lender or the L/C Issuer or any such Affiliate,irrespective of whether or not the Lender or the L/C Issuer shall have made anydemand under this Agreement or any other Loan Document and although suchobligations of Borrower or such Loan Party may be contingent or unmatured orare owed to a branch or office of the Lender or the L/C Issuer different fromthe branch or office holding such deposit or obligated on such indebtedness;provided, however that the Lender, the L/C Issuer and each of their respectiveAffiliates may not setoff and apply such deposits or other obligations to theextent such deposits or obligations consist of any fees set pursuant to statestatute or regulation, county resolution, or municipal ordinance, or similarofficial governmental action, and any tax receipts collected for anygovernmental entity.  The rights of theLender, the L/C Issuer and their respective Affiliates under this Section arein addition to other rights and remedies (including other rights of setoff)that the Lender, the L/C Issuer or their respective Affiliates may have.  The Lender and the L/C Issuer agrees tonotify Borrower and the Lender promptly after any such setoff and application, providedthat the failure to give such notice shall not affect the validity of suchsetoff and application.

## **9.09****        Interest Rate Limitation**.  Notwithstanding anything to the contrarycontained in any Loan Document, the interest paid or agreed to be paid underthe Loan Documents shall not exceed the maximum rate of non-usurious interestpermitted by applicable Law (the “**Maximum****Rate**”).  If the Lender shall receive interest in anamount that exceeds the Maximum Rate, the excess interest shall be applied tothe principal of the Loans or, if it exceeds such unpaid

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## principal, refunded to Borrower. In determining whether the interest contracted for, charged, or receivedby the Lender exceeds the Maximum Rate, such Person may, to the extentpermitted by applicable Law, (a) characterize any payment that is not principalas an expense, fee, or premium rather than interest, (b) exclude voluntaryprepayments and the effects thereof, and (c) amortize, prorate, allocate, andspread in equal or unequal parts the total amount of interest throughout thecontemplated term of the Obligations hereunder.

## **9.10****        Counterparts; Integration;Effectiveness**.  This Agreement may beexecuted in counterparts (and by different parties hereto in differentcounterparts), each of which shall constitute an original, but all of whichwhen taken together shall constitute a single contract.  This Agreement and the other Loan Documentsconstitute the entire contract among the parties relating to the subject matterhereof and supersede any and all previous agreements and understandings, oralor written, relating to the subject matter hereof.  Except as provided in **Section 4.01**, this Agreement shall becomeeffective when it shall have been executed by the Lender and when the Lendershall have received counterparts hereof that, when taken together, bear thesignatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of thisAgreement by telecopy shall be effective as delivery of a manually executedcounterpart of this Agreement.

## **9.11****        Survival ofRepresentations and Warranties**.  Allrepresentations and warranties made hereunder and in any other Loan Document orother document delivered pursuant hereto or thereto or in connection herewithor therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have beenor will be relied upon by the Lender, regardless of any investigation made bythe Lender or on their behalf and notwithstanding that the Lender may have hadnotice or knowledge of any Default at the time of any Credit Extension, andshall continue in full force and effect as long as any Loan or any otherObligation hereunder shall remain unpaid or unsatisfied or any Letter of Creditshall remain outstanding.

## **9.12****        Severability**.  If any provision of this Agreement or theother Loan Documents is held to be illegal, invalid or unenforceable, (a) thelegality, validity and enforceability of the remaining provisions of thisAgreement and the other Loan Documents shall not be affected or impairedthereby and (b) the parties shall endeavor in good faith negotiations toreplace the illegal, invalid or unenforceable provisions with valid provisionsthe economic effect of which comes as close as possible to that of the illegal,invalid or unenforceable provisions.  Theinvalidity of a provision in a particular jurisdiction shall not invalidate orrender unenforceable such provision in any other jurisdiction.

## **9.13****        Governing Law;Jurisdiction; Etc.**  (a)  GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, ANDCONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF MISSOURI.

### (b)           SUBMISSIONTO JURISDICTION.  BORROWER AND EACHOTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITSPROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OFMISSOURI SITTING IN JACKSON COUNTY AND OF THE UNITED STATES DISTRICT COURT OFTHE WESTERN DISTRICT OF MISSOURI, AND ANY

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### APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISINGOUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FORRECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETOIRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCHACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH MISSOURI STATE COURTOR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERALCOURT.  EACH OF THE PARTIES HERETO AGREESTHAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE ANDMAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHERMANNER PROVIDED BY LAW.  NOTHING IN THISAGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE LENDEROR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATINGTO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWER OR ANY OTHER LOANPARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

### (c)           WAIVEROF VENUE.  BORROWER AND EACH OTHERLOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENTPERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TOTHE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TOTHIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH(B) OF THIS SECTION.  EACH OF THE PARTIESHERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLELAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION ORPROCEEDING IN ANY SUCH COURT.

### (d)           SERVICEOF PROCESS.  EACH PARTY HERETOIRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICESIN **SECTION 9.02**.  NOTHING IN THIS AGREEMENT WILL AFFECT THERIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BYAPPLICABLE LAW.

## **9.14****        Waiver of Jury Trial**.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO ATRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF ORRELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONSCONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHERTHEORY).  EACH PARTY HERETO (A) CERTIFIESTHAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OFLITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT ITAND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT ANDTHE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS ANDCERTIFICATIONS IN THIS SECTION.

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## **9.15****        No Advisory or FiduciaryResponsibility**.  In connection withall aspects of each transaction contemplated hereby, Borrower and each otherLoan Party acknowledges and agrees, and acknowledges its Affiliates’understanding, that: (i) the credit facilities provided for hereunder and anyrelated arranging or other services in connection therewith (including inconnection with any amendment, waiver or other modification hereof or of anyother Loan Document) are an arm’s-length commercial transaction betweenBorrower, each other Loan Party and their respective Affiliates, on the onehand, and the Lender, on the other hand, and Borrower and each other Loan Partyis capable of evaluating and understanding and understands and accepts theterms, risks and conditions of the transactions contemplated hereby and by theother Loan Documents (including any amendment, waiver or other modificationhereof or thereof); (ii) in connection with the process leading to suchtransaction, the Lender is and has been acting solely as a principal and is notthe financial advisor, agent or fiduciary, for Borrower, any other Loan Partyor any of their respective Affiliates, stockholders, creditors or employees orany other Person; (iii) the Lender has not assumed and will not assume anadvisory, agency or fiduciary responsibility in favor of Borrower or any otherLoan Party with respect to any of the transactions contemplated hereby or theprocess leading thereto, including with respect to any amendment, waiver orother modification hereof or of any other Loan Document (irrespective ofwhether the Lender has advised or is currently advising Borrower, any otherLoan Party or any of their respective Affiliates on other matters) and theLender has no obligation to Borrower, any other Loan Party or any of theirrespective Affiliates with respect to the transactions contemplated herebyexcept those obligations expressly set forth herein and in the other LoanDocuments; (iv) the Lender and its Affiliates may be engaged in a broad rangeof transactions that involve interests that differ from those of Borrower, theother Loan Parties and their respective Affiliates, and the Lender has noobligation to disclose any of such interests by virtue of any advisory, agencyor fiduciary relationship; and (v) the Lender has not provided and will notprovide any legal, accounting, regulatory or tax advice with respect to any ofthe transactions contemplated hereby (including any amendment, waiver or othermodification hereof or of any other Loan Document) and each of Borrower and theother Loan Parties has consulted its own legal, accounting, regulatory and taxadvisors to the extent it has deemed appropriate.  Each of Borrower and the other Loan Partieshereby waives and releases, to the fullest extent permitted by law, any claimsthat it may have against the Lender with respect to any breach or allegedbreach of agency or fiduciary duty.

## **9.16****        USA PATRIOT Act Notice**.  The Lender hereby notifies Borrower thatpursuant 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 informationthat identifies Borrower, which information includes the name and address ofBorrower and other information that will allow the Lender to identify Borrowerin accordance with the Act.

## **9.17****        Time of the Essence**.  Time is of the essence of the Loan Documents.

## **9.18****        No Oral Agreements**.  The following notice is given to comply with§ 432.045 of the Revised Statutes of Missouri:

**Oralagreements or commitments to loan money, extend credit or to forbear fromenforcing repayment of a debt including promises to extend or renew such debtare not enforceable,**

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**regardlessof the legal theory upon which it is based that is in any way related to thecredit agreement. To protect you (borrower(s)) and us (creditor) frommisunderstanding or disappointment, any agreements we reach covering such mattersare contained in this writing, which is the complete and exclusive statement ofthe agreement between us, except as we may later agree in writing to modify it.**

As used in this section, the term “this writing” isdeemed to include all Loan Documents.

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IN WITNESS WHEREOF, the parties hereto have causedthis Agreement to be duly executed as of the date first above written.
|            | **NIC INC.** |
|------------|--------------|
| ** ** | ** **   |
| ** ** | ** **   |
|       | By:          |   |
|       |         |
|       | Name:        |   |
|       |         |
|       | Title:       |   |
|            |              |  |  |  |

 

S-1

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|            | **BANK OF AMERICA, N.A., as** |
|------------|-------------------------------|
| ** ** | the Lender and L/C Issuer     |
| ** ** |                          |
| ** ** | ** **                    |
|       | By:                           |   |
|       |                          |
|       | Name: John P. Mills           |
|       |                          |
|       | Title: Senior Vice President  |

 

S-2

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***SCHEDULE1.01***

**INITIAL GUARANTORS**
| **COMPANY**                                                  | ** ** | **Jurisdiction** |
|--------------------------------------------------------------|------------|------------------|
| Alabama  Interactive, LLC                                    |       | Alabama          |
| Arkansas  Information Consortium, LLC                        |       | Arkansas         |
| Colorado  Interactive, LLC                                   |       | Colorado         |
| Hawaii  Information Consortium, LLC                          |       | Hawaii           |
| Idaho  Information Consortium, LLC                           |       | Idaho            |
| Indiana  Interactive, LLC                                    |       | Indiana          |
| Iowa  Interactive, LLC                                       |       | Iowa             |
| Kansas  Information Consortium, Inc.                         |       | Kansas           |
| Kentucky  Interactive LLC                                    |       | Kentucky         |
| Local Government  Online Indiana, LLC                        |       | Indiana          |
| Maine  Information Network, LLC                              |       | Maine            |
| Montana  Interactive, LLC                                    |       | Montana          |
| NICUSA, Inc.  (Formerly, National Information Con USA, Inc.) |       | Kansas           |
| National  Information Consortium Technologies, LLC           |       | California       |
| Nebraska  Interactive, LLC                                   |       | Nebraska         |
| Rhode Island  Interactive, LLC                               |       | Rhode Island     |
| South Carolina  Interactive, LLC                             |       | South Carolina   |
| Utah  Interactive, LLC                                       |       | Utah             |
| Vermont  Information Consortium, LLC                         |       | Vermont          |
| Virginia  Interactive, LLC                                   |       | Virginia         |

 

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***SCHEDULE2.01***

**COMMITMENT**
| **Lender**             | ** ** | **Commitment** |
|------------------------|------------|----------------|
|                   |       |           |
| Bank of America,  N.A. |       | $              | 10,000,000.00 |

 

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***SCHEDULE5.06***

**LITIGATION**

**NONE**

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***SCHEDULE5.09***

**ENVIRONMENTAL MATTERS**

**NONE**

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***SCHEDULE5.13***

**SUBSIDIARIES**

**AND OTHER EQUITY INVESTMENTS**

Part (a).             Subsidiaries.
| **Company**                                       | ** ** | **Jurisdiction**  | ** ** |
|---------------------------------------------------|------------|-------------------|------------|
| Alabama Interactive, LLC                          |       | Alabama ******    | ** ** |
| Arizona Interactive, LLC                          |       | Arizona ******    | ** ** |
| Arkansas Information Consortium, LLC              |       | Arkansas ******   | ** ** |
| Bay Interactive, LLC                              |       | California ****** | ** ** |
| Colorado Interactive, LLC                         |       | Colorado ******   | ** ** |
| Construction Registry Services, LLC               |       | Utah ******       | ** ** |
| eGov Service Corporation                          |       | Colorado ******   | ** ** |
| Florida Information Consortium, Inc.              |       | Florida ******    | ** ** |
| Florida Interactive, LLC                          |       | Florida ******    | ** ** |
| Hawaii Information Consortium, LLC                |       | Hawaii ******     | ** ** |
| Idaho Information Consortium, LLC                 |       | Idaho ******      | ** ** |
| Indiana Interactive, LLC                          |       | Indiana******     | ** ** |
| Intelligent Decision Technologies, LLC            |       | Colorado ******   | ** ** |
| Iowa Interactive, LLC                             |       | Iowa ******       | ** ** |
| Kansas Information Consortium Merger Company, LLC |       | Kansas ******     | ** ** |
| Kansas Information Consortium, Inc.               |       | Kansas ******     | ** ** |
| Kentucky Interactive, LLC                         |       | Kentucky ******   | ** ** |
| Local Government Online Indiana, LLC              |       | Kansas ******     | ** ** |
| Maine Information Network, LLC                    |       | Maine ******      | ** ** |
| Michigan Local Interactive, LLC                   |       | Michigan ******   | ** ** |
| Montana Interactive, LLC                          |       | Montana ******    | ** ** |
| National Information Consortium Technologies, LLC |       | California ****** | ** ** |
| National Online Registries, LLC                   |       | Colorado ******   | ** ** |
| National Retail Registries LLC                    |       | Colorado ******   | ** ** |
| Nebraska Interactive, LLC                         |       | Nebraska ******   | ** ** |
| New York Information Consortium, LLC              |       | New York ******   | ** ** |
| NIC Commerce, LLC                                 |       | Colorado ******   | ** ** |

 

----

 
| NIC Conquest, LLC                                                  |   | Colorado ******       | ** ** |
|--------------------------------------------------------------------|--------|-----------------------|------------|
| NIC Solutions, LLC                                                 |   | Colorado ******       | ** ** |
| NICUSA, Inc. (formerly National Information  Consortium USA, Inc.) |   | Kansas *              |       |
| Oklahoma Interactive, LLC                                          |   | Oklahoma ******       | ** ** |
| Rhode Island Interactive, LLC                                      |   | Rhode Island ******   | ** ** |
| South Carolina Interactive, LLC                                    |   | South Carolina ****** | ** ** |
| Tennessee Information Consortium, Inc.                             |   | Tennessee ******      | ** ** |
| Texas Local Interactive, LLC                                       |   | Texas ******          | ** ** |
| Utah Interactive, LLC                                              |   | Utah ******           | ** ** |
| Vermont Information Consortium, LLC                                |   | Vermont ******        | ** ** |
| Virginia Interactive, LLC                                          |   | Virginia ******       | ** ** |
| West Virginia Interactive, LLC                                     |   | West Virginia ******  | ** ** |

 

----

* Wholly owned subsidiaryof NIC Inc.

** Wholly ownedsubsidiary of NICUSA, Inc

Part (b).             Other Equity Investments.

eGovernment SolutionsLimited - Private joint venture (less than 15% passive ownership interest)

In October 2000,NIC made an initial $0.5 million cash investment in e-Government SolutionsLimited (“eGS”), a private joint venture giving NIC initial ownership of 40% ofthe ordinary shares of eGS.  The purposeof the eGS joint venture, based in London, England, was to deliver eGovernmentservices throughout Western Europe, with initial efforts to focus on the UnitedKingdom.  In September 2001, the jointventure agreement was modified and reduced NIC’s obligation to make future cashcontributions to the joint venture and gave NIC ownership of 47% of theordinary shares of eGS.  In December2002, the joint venture agreement was again modified and, among other changes,eliminated NIC’s obligation to make future cash contributions to the jointventure, reduced NIC’s ownership to 20% and eliminated NIC’s participation onthe board of directors.  The investmenthad been accounted for under the equity method. As a result of the modification to the joint venture agreement inDecember 2002, the Company began to account for its investment in eGS under thecost method and had no investment balance remaining in eGS after themodification.  NIC’s cash contributions sincethe inception of the joint venture have totaled approximately $1.0million.  At December 31, 2006, theCompany’s ownership interest in eGS was approximately 14%.

----

***SCHEDULE 7.01***

**EXISTING LIENS**

**NONE**

----

***SCHEDULE7.03***

**EXISTING INDEBTEDNESS**

**NIC Credit Summary**

**As of: 4/30/07**

 
| ** **                                                     | ** ** | ** **              | ** ** | ** ** | ** **       | ** **  | ** ** | ** ** | ** ** | ** **  | ** ** | ** ** | ** ** | **Current**      | ** ** | **Silverlake**         | ** ** | ** **     | ** ** |
|----------------------------------------------------------------|------------|-------------------------|------------|------------|------------------|-------------|------------|------------|------------|-------------|------------|------------|------------|------------------|------------|------------------------|------------|----------------|------------|
| ** **                                                     | ** ** | **In Support**          | ** ** | **L/C**    | ** **       | **Bank**    | ** ** | ** ** | ** ** | ** **  | ** ** | ** ** | ** ** | **Availability** | ** ** | **Demand**             | ** ** | ** **     | ** ** |
| **Beneficiary**                                                | ** ** | **of Portal**           | ** ** | **Amount** | ** **       | **Issuing** | ** ** | **L/C #**  | ** ** | **Expires** | ** ** | **Note #** | ** ** | **under Note**   | ** ** | **Note Maturity** | ** ** | **Collateral** | ** ** |
| RLI*                                                           |       | Tennessee               |       | $          | 1,000,000.00     |        | LaSalle    |       | S546103    |        | 10/3/2007  |       | 5113768    |             | $          | 1,000,000.00           |       | 10/3/2007      |       | Unsecured |   |
|                                                           |       |                    |       |       |             |        |       |       |       |        |       |       |       |             |       |                   |       |           |       |
| ME                                                             |       | New England Interactive |       | $          | 158,148.00       |        | GWB        |       | 5113741    |        | 7/14/2007  |       | 5113741    |             | $          | 158,148.00             |       | 7/14/2007      |       | Unsecured |   |
| LOC increased to  $158,148 in May 2007 - same expiration terms |       |                    |       |       |             |        |       |       |       |        |       |       |       |             |       |                   |       |           |       |
|                                                           |       |                    |       |       |             |        |       |       |       |        |       |       |       |             |       |                   |       |           |       |
| Parkway Properties                                             |       | South Carolina lease    |       | $          | 57,862.42        |        | GWB        |       | 5E+06      |        | 5/27/2007  |       | 5167366    |             | $          | 57,862.42              |       | 5/27/2007      |       | Unsecured |   |
|                                                           |       |                    |       |       |             |        |       |       |       |        |       |       |       |             |       |                   |       |           |       |
| NNN One Nashville Place, LLC                                   |       | Nashville Lease         |       | $          | 100,000.00       |        | GWB        |       | 5E+06      |        | 10/14/2007 |       | 5166681    |             | $          | 100,000.00             |       | 10/14/2007     |       | Unsecured |   |
| **Letter of Credit Totals**                                    | ** ** | ** **              | ** ** | **$**      | **1,316,010.42** |        |       | ** ** | ** ** |        |       |       |       |             | **$**      | **1,316,010.42**       |       |           |       |   |   |

 

----

***SCHEDULE9.02***

**THE LENDER’S OFFICE,CERTAIN ADDRESSES FOR NOTICES**

**NIC INC.:**

10540 South RidgeviewRoad

Olathe, KS 66061

Attention: Stephen M.Kovzan

Telephone: 913-498-3468

Telecopier: 913-498-3472

Electronic Mail:stevek@nicusa.com

Website Address:                www.nicusa.com

U.S. TaxpayerIdentification Number: 52-2077581

**LENDER:**

*The Lender’s Office(for payments and Requests for Credit Extensions):*

Bank of America, N.A.

Street Address

Mail Code:City, State ZIP Code

Attention:  Joe Healy

Telephone:  816.292.4253

Telecopier:  214.530.2922

Electronic Mail:  joe.b.healy@bankofamerica.com

ABA# 026009593

1

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**L/C ISSUER:**

*Standby Letters of Credit:*

Bank of America, N.A.Trade Operations-Los Angeles #226211000 W. Temple Street, 7th FloorCA9-705-07-05Los Angeles, CA 90012-1514

Attention:                                         Tai Anh LuOfficerTelephone:  213.481.7840Telecopier:  213.580.8442Electronic Mail:tai_anh.lu@bankofamerica.com]

Bank of America, N.A.

Trade Operations

One Fleet Way

Mail Code: PA6-580-02-30

Scranton, PA  18507

Attention:                                         Alfonso (Al)MalaveTelephone:  570.330.4212Telecopier:  570.330.4186Electronic Mail:alfonso.malave@bankofamerica.com]

Bankers Acceptance

Bank of America, N.A.Trade Operations-Los Angeles1000 W. Temple Street, 7th FloorCA9-705-07-05Los Angeles, CA 90012-1514

Attention:                                         FrantzBellevueVice PresidentTelephone:  213.580.8476Telecopier:  213.580.8444Electronic Mail:frantz.bellevue@bankofamerica.com]

2

----

***EXHIBIT A***

**FORM OF COMMITTED LOAN NOTICE**

Date:                        ,          

To:          Bankof America, N.A., as the Lender

Ladies and Gentlemen:

Reference is made to that certain Credit Agreement,dated as of May 2, 2007 (as amended, restated, extended, supplemented orotherwise modified in writing from time to time, the “**Agreement**;”the terms defined therein being used herein as therein defined), between **NIC Inc.**, **a Colorado corporation**(the “**Borrower**”) and Bank of America, N.A.,as the Lender and L/C Issuer.

The undersigned hereby requests (select one):

A Committed Borrowing ofCommitted Loans                Aconversion or continuation of Committed Loans

1.             On                                                                (a Business Day).

2.             Inthe amount of $                                        .

3.             Comprised of                                                                       .

[Typeof Committed Loan requested]

4.             ForEurodollar Rate Loans:  with an InterestPeriod of          months.

The Committed Borrowing, if any, requested hereincomplies with the provisos to the first sentence of Section 2.01 of theAgreement.
|            | **NIC INC.** |
|------------|--------------|
| ** ** | ** **   |
| ** ** | ** **   |
|       | By:          |   |
|       |         |
|       | Name:        |   |
|       |         |
|       | Title:       |   |
|            |              |  |  |  |

 

A-1

----

***EXHIBIT B***

**FORM OF NOTE**
| **$10,000,000.00** |   | May 2, 2007 |
|--------------------|--------|-----------------------|

 

FOR VALUE RECEIVED, the undersigned (“**Borrower**”), hereby promises to pay to BANK OF AMERICA, N.A.or registered assigns (“**Lender**”), inaccordance with the provisions of the Agreement (as hereinafter defined), theprincipal amount of each Loan from time to time made by the Lender to Borrowerunder that certain Credit Agreement, dated as of **May 2, 2007**(as amended, restated, extended, supplemented or otherwise modified in writingfrom time to time, the “**Agreement**;” theterms defined therein being used herein as therein defined), among Borrower andBank of America, N.A., as the Lender and the L/C Issuer.

Borrower promises to pay interest on the unpaidprincipal amount of each Loan from the date of such Loan until such principalamount is paid in full, at such interest rates and at such times as provided inthe Agreement.  All payments of principaland interest shall be made to the Lender in Dollars in immediately availablefunds at the Lender’s Office.  If anyamount is not paid in full when due hereunder, such unpaid amount shall bearinterest, to be paid upon demand, from the due date thereof until the date ofactual payment (and before as well as after judgment) computed at the per annumrate set forth in the Agreement.

This Note is the Note referred to in the Agreement, isentitled to the benefits thereof and may be prepaid in whole or in part subjectto the terms and conditions provided therein. This Note is also entitled to the benefits of the Guaranty.  Upon the occurrence and continuation of oneor more of the Events of Default specified in the Agreement, all amounts thenremaining 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 evidencedby one or more loan accounts or records maintained by the Lender in theordinary course of business. The Lender may also attach schedules to this Noteand endorse thereon the date, amount and maturity of its Loans and paymentswith 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 INACCORDANCE WITH THE LAWS OF THE STATE OF MISSOURI.
|            | **NIC INC.** |
|------------|--------------|
| ** ** | ** **   |
| ** ** | ** **   |
|       | By:          |   |
|       |         |
|       | Name:        |   |
|       |         |
|       | Title:       |   |
|            |              |  |  |  |

 

B-1

----

**LOANS AND PAYMENTS WITH RESPECT THERETO**
| **Date** | ** ** | **Type of  Loan  Made** | ** ** | **Amount  of Loan  Made** | ** ** | **End of  Interest  Period** | ** ** | **Amount  of  Principal  or  Interest  Paid  This  Date** | ** ** | **Outstanding  Principal  Balance  This Date** | ** ** | **Notation  Made By** | ** ** |
|----------|------------|------------------------------|------------|--------------------------------|------------|-----------------------------------|------------|-----------------------------------------------------------|------------|-----------------------------------------------------|------------|----------------------------|------------|
|     |       |                         |       |                           |       |                              |       |                                                      |       |                                                |       |                       |       |
|     |       |                         |       |                           |       |                              |       |                                                      |       |                                                |       |                       |       |
|     |       |                         |       |                           |       |                              |       |                                                      |       |                                                |       |                       |       |

 

B-2

----

***EXHIBIT C***

**FORM OF COMPLIANCE CERTIFICATE**

FinancialStatement Date:                                  ,

To:          Bank of America, N.A., as the Lender

Ladies and Gentlemen:

Reference is made to that certain Credit Agreement,dated as of **May 2, 2007** (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), between **NIC Inc.**, a Colorado corporation (“**Borrower**”)and Bank of America, N.A., as the Lender and the L/C Issuer.

The undersigned Responsible Officer hereby certifiesas of the date hereof that he/she is the                                                   of Borrower, and that, as such, he/she is authorized to execute and deliverthis Certificate to the Lender on the behalf of Borrower, and that:

*[Usefollowing paragraph 1 for fiscal **year-en**dfinancial statements]*

1.             Attachedhereto as**Schedule 1** are the year-end auditedfinancial statements required by Section 6.01(a) of the Agreement for thefiscal year of Borrower ended as of the above date, together with the reportand opinion of an independent certified public accountant required by suchsection.

*[Usefollowing paragraph 1 for fiscal **quarter-end**financial statements]*

1.             Attachedhereto as **Schedule 1** are the unaudited financialstatements required by Section 6.01(b) of the Agreement for the fiscal quarterof Borrower ended as of the above date. Such financial statements fairly present in all material respects thefinancial condition, results of operations and cash flows of Borrower and itsSubsidiaries in accordance with GAAP as at such date and for such period,subject only to normal year-end audit adjustments and the absence of footnotes.

2.             Theundersigned has reviewed and is familiar with the terms of the Agreement andhas made, or has caused to be made under his/her supervision, a detailed reviewof the transactions and condition (financial or otherwise) of Borrower duringthe accounting period covered by the attached financial statements.

3.             Areview of the activities of Borrower during such fiscal period has been madeunder the supervision of the undersigned with a view to determining whetherduring such fiscal period Borrower performed and observed all its Obligationsunder the Loan Documents, and

C-1

----

***[selectone:]***

**[to the best knowledge of the undersigned duringsuch fiscal period, Borrower performed and observed each covenant and conditionof the Loan Documents applicable to it, and no Default has occurred and iscontinuing.]**

**—*or—***

**[the following covenants or conditions have notbeen performed or observed and the following is a list of each such Default andits nature and status:]**

4.             Therepresentations and warranties of Borrower contained in Article V of theAgreement, and/or any representations and warranties of Borrower or any otherLoan Party that are contained in any document furnished at any time under or inconnection with the Loan Documents, are true and correct in all materialrespects on and as of the date hereof, except to the extent that suchrepresentations and warranties specifically refer to an earlier date, in whichcase they are true and correct in all material respects as of such earlierdate, and except that for purposes of this Compliance Certificate, therepresentations and warranties contained in subsections (a) and (b) of Section5.05 of the Agreement shall be deemed to refer to the most recent statementsfurnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of theAgreement, including the statements in connection with which this ComplianceCertificate is delivered.

5.             Thefinancial covenant analyses and information set forth on **Schedules 2**and **3** attached hereto are true and accuratein all material respects on and as of the date of this Certificate.

*IN WITNESS WHEREOF*, theundersigned has executed this Certificate as of                                         ,                  .
|            | **NIC INC.** |
|------------|--------------|
| ** ** | ** **   |
| ** ** | ** **   |
|       | By:          |   |
|       |         |
|       | Name:        |   |
|       |         |
|       | Title:       |   |
|            |              |  |  |  |

 

C-2

----

For the Quarter/Yearended                                       (“**Statement Date**”)

**SCHEDULE 2**to theCompliance Certificate($ in 000’s)
| **I.              Section  6.12(a) – Minimum EBITDA.**                                                                                                                                                                                                                                            | ** ** | ** ** | ** ** |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|------------|------------|
|                 A.            net income:                                                                                                                                                                                             |       | $          |       |   |
|                 B.            *less* income  or *plus* loss from discontinued operations  and extraordinary items:                                                                                                                    |       | $          |       |   |
|                 C.            *plus* income  taxes:                                                                                                                                                                                   |       | $          |       |   |
|                 D.            *plus* interest  expense:                                                                                                                                                                               |       | $          |       |   |
|                 E.             *plus*  depreciation, depletion and amortization:                                                                                                                                                 |       | $          |       |   |
|                 F.             *plus* non-cash  expenses, losses or charges deducted from net income:                                                                                                                            |       | $          |       |   |
|                 G.            *minus*  non-cash items included in income                                                                                                                                                              |       | $          |       |   |
|                 H.            Total EBITDA:                                                                                                                                                                                           |       | $          |       |   |
|                 I.              Excess (deficient) for covenant compliance (Line I.H.  less $12,000,000):                                                                                                                   |       | $          |       |   |
| **II.Section 6.12(b) –Tangible Net Worth.**                                                                                                                                                                                                                                                                                                                        | ** ** | ** ** | ** ** |
|                 A.            Tangible Net Worth at Statement Date:                                                                                                                                                                   |       |       |       |
|                                 1.   Total  Tangible Assets:                                                                                                                                  |       | $          |       |   |
|                                 2.   Total  Liabilities (minus non-current portion of Subordinated Liabilities):                                                                              |       | $          |       |   |
|                                 3.   Tangible  Net Worth (Line II.A.1 less Line II.A.2):                                                                                                      |       | $          |       |   |
|                 B.            1.   $36,000,000:                                                                                                                                                                        |       | $          |       |   |
|                                 2.   *plus* the net proceeds from any equity securities issued  after the date of the Agreement:                                                              |       | $          |       |   |
|                                 3.   *plus* any increase in stockholder’s equity resulting from  the conversion of debt securities to equity security after the date of this  Agreement: |       | $          |       |   |

 

C-3

----

 
|                                 4.             *Minimum  Required Tangible Net Worth* (II.B.1 plus II.B.2 plus II.B.3): |       | $          |       |   |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|------------|------------|--------|
|                                                                                                                                                                                                                                                                                                                                           |       |       |       |
|                 C.            Excess (deficient) for covenant compliance (Line II.A.3  less II.B.4):                                                                                                         |       | $          |       |   |
| **III.           Section  6.12(h) – Total Funded Debt to EBITDA Ratio.**                                                                                                                                                                                                                | ** ** | ** ** | ** ** |
|                 A.            Total Funded Debt                                                                                                                                                              |       | $          |       |   |
|                 B.            EBITDA (from I.H)                                                                                                                                                              |       | $          |       |   |
|                 C.            Ratio (Line III.A. ÷ Line III.B):                                                                                                                                         |       | to 1.0     |       |
| Minimum Required:                                                                                                                                                                                                                                                                                                                              |       | 1.5 to 1.0 |       |

 

C-4

----