Exhibit 10.2


 


CREDIT AGREEMENT


 


between


 


CONSONUS ACQUISITION CORP.,

a Delaware corporation,

as Borrower


 


and


 


U.S. BANK NATIONAL ASSOCIATION,

as Lender


 


Entered into as of May 31, 2005


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
  ARTICLE 1.
  DEFINITIONS

  	
   

  	
  1

  
	
  1.1

  	
   

  	
  DEFINED TERMS

  	
   

  	
  1

  
	
  1.2

  	
   

  	
  EXHIBITS INCORPORATED

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2. LOANS

  	
   

  	
  7

  
	
  2.1

  	
   

  	
  LINE OF CREDIT

  	
   

  	
  7

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Line of Credit

  	
   

  	
  7

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Restriction on
  Availability

  	
   

  	
  7

  
	
   

  	
   

  	
  (c)

  	
   

  	
  Use of Proceeds

  	
   

  	
  7

  
	
  2.2

  	
   

  	
  LINE OF CREDIT COMMITMENT
  FEE; UNUSED COMMITMENT FEE

  	
   

  	
  7

  
	
  2.3

  	
   

  	
  LINE OF CREDIT MATURITY
  DATE

  	
   

  	
  8

  
	
  2.4

  	
   

  	
  TERM LOAN

  	
   

  	
  8

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Term Loan

  	
   

  	
  8

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Use of Proceeds

  	
   

  	
  8

  
	
  2.5

  	
   

  	
  TERM LOAN COMMITMENT FEE

  	
   

  	
  8

  
	
  2.6

  	
   

  	
  TERM LOAN PRINCIPAL
  PAYMENTS

  	
   

  	
  8

  
	
  2.7

  	
   

  	
  TERM LOAN MATURITY DATE

  	
   

  	
  8

  
	
  2.8

  	
   

  	
  LOAN DOCUMENTS

  	
   

  	
  8

  
	
  2.9

  	
   

  	
  REQUESTS FOR ADVANCES

  	
   

  	
  8

  
	
  2.10

  	
   

  	
  INTEREST ON THE LOANS

  	
   

  	
  8

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Interest Payments

  	
   

  	
  8

  
	
   

  	
   

  	
  (b)

  	
   

  	
  LIBOR Spread

  	
   

  	
  9

  
	
   

  	
   

  	
  (c)

  	
   

  	
  Default Interest

  	
   

  	
  9

  
	
   

  	
   

  	
  (d)

  	
   

  	
  Computation of Interest

  	
   

  	
  9

  
	
   

  	
   

  	
  (e)

  	
   

  	
  Effective Rate

  	
   

  	
  9

  
	
  2.11

  	
   

  	
  PAYMENTS

  	
   

  	
  9

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Credit for Principal
  Payments

  	
   

  	
  9

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Collection of Payments

  	
   

  	
  10

  
	
   

  	
   

  	
  (c)

  	
   

  	
  Taxes Generally

  	
   

  	
  10

  
	
   

  	
   

  	
  (d)

  	
   

  	
  Tax Indemnification

  	
   

  	
  10

  
	
  2.12

  	
   

  	
  LENDER’S ACCOUNTING

  	
   

  	
  10

  
	
  2.13

  	
   

  	
  APPRAISAL LIMITATION

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3. CONDITIONS
  PRECEDENT

  	
   

  	
  11

  
	
  3.1

  	
   

  	
  CONDITIONS PRECEDENT TO
  INITIAL EXTENSION OF CREDIT

  	
   

  	
  11

  
	
  3 2

  	
   

  	
  CONDITIONS PRECEDENT TO
  EACH ADVANCE

  	
   

  	
  11

  
	
  3.3

  	
   

  	
  ACCOUNT, PLEDGE AND
  ASSIGNMENT

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4.
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  11

  
	
  4.1

  	
   

  	
  LEGAL STATUS

  	
   

  	
  11

  
	
  4.2

  	
   

  	
  AUTHORIZATION AND VALIDITY

  	
   

  	
  12

  
	
  4.3

  	
   

  	
  BORROWER SOLVENCY

  	
   

  	
  12

  
	
  4.4

  	
   

  	
  NO VIOLATION

  	
   

  	
  12

  
	
  4.5

  	
   

  	
  LITIGATION

  	
   

  	
  12

  
	
  4.6

  	
   

  	
  CORRECTNESS OF FINANCIAL
  STATEMENT

  	
   

  	
  12

  
	
  4.7

  	
   

  	
  NO SUBORDINATION

  	
   

  	
  12

  
	
  4.8

  	
   

  	
  ERISA

  	
   

  	
  12

  
	
  4.9

  	
   

  	
  OTHER OBLIGATIONS

  	
   

  	
  12

  
	
  4.10

  	
   

  	
  NO MATERIAL ADVERSE CHANGE

  	
   

  	
  12

  
	
  4.11

  	
   

  	
  ACCURACY

  	
   

  	
  13

  
										



 


I

















 


	
  4.12

  	
   

  	
  BUSINESS LOAN

  	
   

  	
  13

  	 

	
  4.13

  	
   

  	
  SPECIAL REPRESENTATIONS
  AND WARRANTIES REGARDING HAZARDOUS MATERIALS

  	
   

  	
  13

  	 

	
   

  	
   

  	
  (a)

  	
   

  	
  Hazardous Materials

  	
   

  	
  13

  	 

	
   

  	
   

  	
  (b)

  	
   

  	
  Hazardous Materials Laws

  	
   

  	
  13

  	 

	
   

  	
   

  	
  (c)

  	
   

  	
  Hazardous Materials Claims

  	
   

  	
  13

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	 

	
  ARTICLE 5.COLLATERAL

  	
   

  	
  13

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	 

	
  ARTICLE 6. COVENANTS
  OF BORROWER

  	
   

  	
  13

  	 

	
  6.1

  	
   

  	
  PUNCTUAL PAYMENTS

  	
   

  	
  13

  	 

	
  6.2

  	
   

  	
  ACCOUNTING RECORDS

  	
   

  	
  13

  	 

	
  6.3

  	
   

  	
  FINANCIAL STATEMENTS

  	
   

  	
  14

  	 

	
  6.4

  	
   

  	
  COMPLIANCE

  	
   

  	
  14

  	 

	
  6.5

  	
   

  	
  INSURANCE

  	
   

  	
  14

  	 

	
  6.6

  	
   

  	
  TAXES AND OTHER
  LIABILITIES

  	
   

  	
  14

  	 

	
  6.7

  	
   

  	
  LITIGATION

  	
   

  	
  14

  	 

	
  6.8

  	
   

  	
  NOTICE TO LENDER

  	
   

  	
  14

  	 

	
  6.9

  	
   

  	
  SUBORDINATION OF OTHER
  LOANS

  	
   

  	
  14

  	 

	
  6.10

  	
   

  	
  FURTHER ASSURANCES

  	
   

  	
  15

  	 

	
  6.11

  	
   

  	
  ASSIGNMENT

  	
   

  	
  15

  	 

	
  6.12

  	
   

  	
  INSPECTIONS

  	
   

  	
  15

  	 

	
  6.13

  	
   

  	
  HAZARDOUS MATERIALS
  COVENANTS

  	
   

  	
  15

  	 

	
   

  	
   

  	
  (a)

  	
   

  	
  No Hazardous Activities

  	
   

  	
  15

  	 

	
   

  	
   

  	
  (b)

  	
   

  	
  Compliance

  	
   

  	
  15

  	 

	
   

  	
   

  	
  (c)

  	
   

  	
  Notices

  	
   

  	
  15

  	 

	
   

  	
   

  	
  (d)

  	
   

  	
  Remedial Action

  	
   

  	
  15

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	 

	
  ARTICLE 7. FINANCIAL
  COVENANTS

  	
   

  	
  15

  	 

	
  7.1

  	
   

  	
  MINIMUM FIXED CHARGE
  COVERAGE RATIO

  	
   

  	
  15

  	 

	
  7.2

  	
   

  	
  TOTAL FUNDED DEBT

  	
   

  	
  16

  	 

	
  7.3

  	
   

  	
  NET WORTH

  	
   

  	
  16

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8. NEGATIVE
  COVENANTS

  	
   

  	
  16

  	 

	
  8.1

  	
   

  	
  USE OF FUNDS

  	
   

  	
  16

  	 

	
  8.2

  	
   

  	
  MATERIAL AGREEMENTS

  	
   

  	
  16

  	 

	
  8.3

  	
   

  	
  ACCOUNTING METHOD

  	
   

  	
  16

  	 

	
  8.4

  	
   

  	
  OTHER INDEBTEDNESS

  	
   

  	
  16

  	 

	
  8.5

  	
   

  	
  MERGER, CONSOLIDATION,
  TRANSFER OF ASSETS

  	
   

  	
  17

  	 

	
  8.6

  	
   

  	
  GUARANTIES

  	
   

  	
  17

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	 

	
  ARTICLE 9. DEFAULTS
  AND REMEDIES

  	
   

  	
  17

  	 

	
  9.1

  	
   

  	
  DEFAULT

  	
   

  	
  17

  	 

	
  9.2

  	
   

  	
  ACCELERATION UPON DEFAULT;
  REMEDIES

  	
   

  	
  18

  	 

	
  9.3

  	
   

  	
  RIGHT OF LENDER TO TAKE
  CERTAIN ACTIONS; POWER OF ATTORNEY

  	
   

  	
  19

  	 

	
  9.4

  	
   

  	
  APPLICATION OF PAYMENTS
  AFTER DEFAULT

  	
   

  	
  19

  	 

	
  9.5

  	
   

  	
  REPAYMENT OF FUNDS
  ADVANCED

  	
   

  	
  20

  	 

	
  9.6

  	
   

  	
  RIGHTS CUMULATIVE, NO
  WAIVER

  	
   

  	
  20

  	 

	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	 

	
  ARTICLE 10.
  MISCELLANEOUS PROVISIONS

  	
   

  	
  20

  	 

	
  10.1

  	
   

  	
  AMENDMENTS AND WAIVERS

  	
   

  	
  20

  	 

	
  10.2

  	
   

  	
  INDEMNITY

  	
   

  	
  20

  	 

	
  10.3

  	
   

  	
  FORM OF DOCUMENTS

  	
   

  	
  20

  	 

	
  10.4

  	
   

  	
  NO THIRD PARTIES BENEFITED

  	
   

  	
  20

  	 

	
  10.5

  	
   

  	
  NOTICES

  	
   

  	
  20

  	 

	
  10.6

  	
   

  	
  ACTIONS

  	
   

  	
  21

  	 

																					



 


II

















 


	
  10.7

  	
   

  	
  RELATIONSHIP OF PARTIES

  	
   

  	
  21

  
	
  10.8

  	
   

  	
  DELAY OUTSIDE LENDER’S
  CONTROL

  	
   

  	
  21

  
	
  10.9

  	
   

  	
  ATTORNEYS’ FEES AND
  EXPENSES; ENFORCEMENT

  	
   

  	
  21

  
	
  10.10

  	
   

  	
  IMMEDIATELY AVAILABLE
  FUNDS

  	
   

  	
  22

  
	
  10.11

  	
   

  	
  SUCCESSORS AND ASSIGNS

  	
   

  	
  22

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Generally

  	
   

  	
  22

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Lender Assignments,
  Participations

  	
   

  	
  22

  
	
  10.12

  	
   

  	
  SETOFF

  	
   

  	
  22

  
	
  10.13

  	
   

  	
  CAPITAL ADEQUACY

  	
   

  	
  22

  
	
  10.14

  	
   

  	
  LENDER’S AGENTS

  	
   

  	
  23

  
	
  10.15

  	
   

  	
  WAIVER OF RIGHT TO TRIAL
  BY JURY

  	
   

  	
  23

  
	
  10.16

  	
   

  	
  SEVERABILITY

  	
   

  	
  23

  
	
  10.17

  	
   

  	
  HEIRS, SUCCESSORS AND
  ASSIGNS

  	
   

  	
  23

  
	
  10.18

  	
   

  	
  TIME

  	
   

  	
  23

  
	
  10.19

  	
   

  	
  HEADINGS

  	
   

  	
  23

  
	
  10.20

  	
   

  	
  GOVERNING LAW

  	
   

  	
  23

  
	
  10.21

  	
   

  	
  INTEGRATION;
  INTERPRETATION

  	
   

  	
  23

  
	
  10.22

  	
   

  	
  JOINT AND SEVERAL
  LIABILITY OF BORROWING PARTIES

  	
   

  	
  24

  
	
  10.23

  	
   

  	
  COUNTERPARTS

  	
   

  	
  24

  
	
  10.24

  	
   

  	
  CONFIDENTIALITY PROVISION

  	
   

  	
  24

  
	
  10.25

  	
   

  	
  SURVIVAL OF
  REPRESENTATIONS

  	
   

  	
  24

  
	
  10.26

  	
   

  	
  NO BORROWER SET-OFF

  	
   

  	
  24

  
	
  10.27

  	
   

  	
  STATUTE OF FRAUDS

  	
   

  	
  24

  
	
  10.28

  	
   

  	
  BROKERS

  	
   

  	
  24

  
	
  10.29

  	
   

  	
  INCONSISTENCIES WITH THE
  LOAN DOCUMENTS

  	
   

  	
  25

  
	
  10.30

  	
   

  	
  INTERPRETATION

  	
   

  	
  25

  
	
  10.31

  	
   

  	
  ACTIONS BY LENDER

  	
   

  	
  25

  
	
  10.32

  	
   

  	
  PATRIOT ACT NOTIFICATION

  	
   

  	
  25

  



 


III

















 


CREDIT AGREEMENT


 


THIS CREDIT AGREEMENT (“Agreement”)
is entered into as of May 31, 2005, by and between CONSONUS ACQUISITION
CORP., a Delaware corporation (“Borrower”), and U.S. BANK NATIONAL ASSOCIATION
(“Lender”).


 


RECITALS


 


A.                      Borrower intends to acquire certain operating
assets (the “Assets”) from Consonus, Inc. pursuant to the terms and
conditions of that certain Asset Purchase Agreement dated May 31, 2005,
between Borrower and Consonus, Inc..


 


B.                        Borrower desires to obtain from Lender credit
accommodations in a principal amount not to exceed Thirteen Million Dollars
($13,000,000.00) to assist Borrower in making acquiring the Assets and in
conducting future business operations with the Assets.


 


NOW, THEREFORE, Borrower and
Lender agree as follows:


 


ARTICLE 1. DEFINITIONS


 


1.1                    DEFINED TERMS. The following capitalized terms generally
used in this Agreement shall have the meanings defined or referenced below.
Certain other capitalized terms used only in specific sections of this
Agreement are defined in such sections.


 


“Accommodation
Obligations” – means any Indebtedness or other contractual obligation or
liability, contingent or otherwise, of another Person in respect of which
Borrower is liable, including, without limitation, any such Indebtedness,
obligation or liability directly or indirectly guaranteed, endorsed (otherwise
than for collection or deposit in the ordinary course of business), co-made or
discounted or sold with recourse by Borrower, or in respect of which Borrower
is otherwise directly or indirectly liable (including each partnership in which
Borrower has a general partnership interest), contractual obligations (contingent
or otherwise) arising through any agreement to purchase, repurchase or
otherwise acquire such indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other
financial condition, or to make payment other than for value received.


 


“Account”
– means an account with Lender, account number                                                      ,
in the name of Borrower or Borrower’s designee into which proceeds of Advances
under the Line of Credit will be deposited.


 


“Advance”
– means any advance under the Term Loan or the Line of Credit made or to be
made to Borrower as provided in this Agreement.


 


“Affiliate”
– means, with respect to any Person, means any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. For purposes of this definition, “control” (including, with correlative
meanings, the terms “controlling,” “controlled by” and “under common control
with”), as applied to any Person, means (a) the possession, directly or
indirectly, of the power to vote fifty percent (50%) or more of the Securities
having voting power for the election of directors of such Person or otherwise
to direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting Securities or by contract or otherwise,
or (b) the ownership of fifty percent (50%) or more of the outstanding
general partnership or other ownership interests of such Person.


 


1

















 


“Agreement”
– shall have the meaning ascribed to such term in the preamble hereto.


 


“Applicable
LIBOR Rate” – is the rate of interest, rounded upward to the nearest whole
one-thousandth of one percent, equal to the sum of: (a) the LIBOR Spread plus
(b) the LIBOR Rate.


 


“Bankruptcy
Code” – means the Bankruptcy Reform Act of 1978 (11 U.S.C. § 101-1330)
as now or hereafter amended or recodified.


 


“Borrower”
– means CONSONUS ACQUISITION CORP., a Delaware corporation.


 


“Business
Day” – means any day except a Saturday, Sunday or any other day on which
commercial banks in Utah are authorized or required by law to close. Unless
specifically referenced in this Agreement as a Business Day, all references to “days”
shall be to calendar days.


 


“Calendar
Month” – means the 12 calendar months of the year.


 


“Code”
– means the United States Internal Revenue Code of 1986, as amended from time
to time.


 


“Collateral”
– means the Personal Property and the Real Property.


 


“Commitment”
– means Lender’s obligation to make the Loans, in an amount up to, but not
exceeding the amount of the Line of Credit and the Term Loan.


 


“Default”
– shall have the meaning ascribed to such term in Section 9.1.


 


“Default
Rate” – shall mean a rate of interest per annum two percent (2%) in excess
of the Applicable LIBOR Rate in effect from time to time.


 


“Dollars;
$” – means United States dollars.


 


“EBITDA”
– means net profit before tax plus interest expense (net of capitalized
interest expense), depreciation expense and amortization expense.


 


“Effective
Date” – means the date of this Agreement first set forth above provided
that this Agreement has been executed by Borrower, and Lender has received
signature pages delivered by Borrower and Lender.


 


“Effective
Rate” – shall have the meaning given such term in Section 2.10(e).


 


“ERISA”
– means the Employee Retirement Income Security Act of 1974, as amended or
recodified from time to time.


 


“GAAP”
– means generally accepted accounting principles as consistently applied
through all relevant periods.


 


“Governmental
Authority” – means any nation or government, any federal, state, local,
municipal or other political subdivision thereof or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.


 


“Hazardous
Materials” – means any oil, flammable explosives, asbestos, urea
formaldehyde insulation, radioactive materials, hazardous wastes, toxic or
contaminated substances or similar materials, including, without limitation,
any substances which are “hazardous substances,” “hazardous wastes,” “hazardous
materials,” “toxic substances,” “wastes,” “regulated substances,”


 


2

















 


“industrial
solid wastes,” or “pollutants” under the Hazardous Materials Laws, and/or other
applicable environmental laws, ordinances and regulations. “Hazardous Materials”
shall not include commercially reasonable amounts of such materials used in the
ordinary course of operation of real property which are used and stored in
accordance with all applicable environmental laws, ordinances and regulations.


 


“Hazardous
Materials Claims” – means all claims or actions by any governmental entity
or agency or by any other person or entity relating to Hazardous Materials or
pursuant to the Hazardous Materials Laws.


 


“Hazardous
Materials Laws” – means all applicable laws, ordinances and regulations
relating to Hazardous Materials, including, without limitation: the Clean Air
Act, as amended, 42 U.S.C. Section 7401 et
seq.;  the Federal
Water Pollution Control Act, as amended, 33 U.S.C. Section 1251 et  seq.;  the Resource Conservation and Recovery
Act of 1976, as amended, 42 U.S.C. Section 6901 et  seq.;  the Comprehensive Environment Response,
Compensation and Liability Act of 1980, as amended (including the Superfund
Amendments and Reauthorization Act of 1986, “CERCLA”), 42 U.S.C. Section 9601
et  seq:,  the
Toxic Substances Control Act, as amended, 15 U.S.C. Section 2601 et  seq.;  the Occupational Safety and Health Act,
as amended, 29 U.S.C. Section 651, the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of
1977, as amended, 30 U.S.C. Section 801 et
seq.;  the Safe
Drinking Water Act, as amended, 42 U.S.C. Section 300f et seq.;
and all comparable state and local laws, laws of other jurisdictions
or orders and regulations.


 


“Impositions”
means all (a) real estate and personal property taxes and other taxes and
assessments, water and sewer rates and charges and all other governmental
charges and any interest or costs or penalties with respect thereto and charges
for any restrictive covenants or any other easement or agreement maintained for
the benefit of any Real Property, general and special, ordinary and
extraordinary, foreseen and unforeseen, of any kind and nature whatsoever which
at any time may be assessed, levied or imposed upon any land or
improvements, or the rent or income received therefrom, or any use or occupancy
thereof, and (b) other Taxes levied, imposed or assessed upon or against
the Borrower or any of its properties.


 


“Indebtedness”
– means (after consolidation adjustments, if necessary, to avoid redundancy) (a) all
indebtedness, obligations or other liabilities for borrowed money, whether or
not subordinated and whether with or without recourse beyond any collateral
security; (b) all indebtedness, obligations or other liabilities evidenced
by securities or other similar instruments; (c) all reimbursement
obligations and other liabilities with respect to letters of credit (except for
those undrawn letters of credit which support future ordinary course,
non-indebtedness obligations) or banker’s acceptances; (d) all obligations
to pay the purchase price of real or personal property or services (offset by
the fair value of such property or services); (e) all obligations in
respect of both operating and capital leases; (f) all Accommodation
Obligations; (g) all indebtedness, obligations or other liabilities of any
Person secured by a Lien on any asset of Borrower, whether or not such
indebtedness, obligations or liabilities are assumed by, or are a personal
liability of, Borrower (including, without limitation, the principal amount of
any assessment or similar indebtedness encumbering any property); (h) all
indebtedness, obligations or other liabilities (other than interest expense
liability) in respect of interest rate hedge, swap or similar contracts and
foreign currency exchange agreements; and (i) without duplication or
limitation, all liabilities and other obligations included in the financial
statements (or notes thereto) of Borrower as prepared in accordance with GAAP.


 


“Lender”
– means U.S. Bank National Association.


 


“LIBOR
Rate” – is the rate of interest equal to the one-month LIBOR rate quoted by
Lender from Telerate Page 3750 or any successor thereto, which shall be
that one-month LIBOR rate in effect two (2) New York Banking Days prior to
the beginning of each calendar month, adjusted for any reserve requirement and
any subsequent costs arising from a change in government regulation,


 


3

















 


such
rate to be reset at the beginning of each succeeding month. If the initial
Advance occurs other than on the first day of the month, the initial one-month
LIBOR Rate shall be that one-month LIBOR Rate in effect two (2) New York
Banking Days prior to the date of the initial Advance, which rate plus the
percentage described above shall be in effect the remaining days of the month
of the initial Advance, such one-month LIBOR rate to be reset at the beginning
of each succeeding month. Lender’s internal records of applicable interest
rates shall be determinative in the absence of manifest error.


 


“LIBOR
Spread” – shall be as defined in Section 2.10(b) below.


 


“Involuntary
Lien” – means any Lien securing the payment of money or the performance of
any other obligation created involuntarily under any law, ordinance,
regulation, or rule, or otherwise and any claim of any such Lien.


 


“Lien”
– means, except for Permitted Exceptions and tenant leases entered into by
Borrower upon commercially reasonable terms, each and all of the following:


 


(a)             Any lease or other right to occupy or use;


 


(b)            Any assignment as security, mortgage, deed of
trust, conditional sale for security purposes, grant in trust, lien, mortgage,
pledge, security interest, security agreement, title retention arrangement,
other encumbrance, or other interest or right securing the payment of money or
the performance of any other liability or obligation, whether voluntarily or
involuntarily created (including, without limitation, Involuntary Liens) and whether
arising by agreement, document, or instrument, under any law, ordinance,
regulation, or rule (federal, state, or local), or otherwise; and


 


(c)             Any option, right of first refusal, or other
interest or right.


 


“Line
of Credit” – means the principal sum that Lenders agree to make available
to Borrower on a revolving line of credit basis and Borrower agrees to borrow
pursuant to the terms and conditions of this Agreement: TWO MILLION FIVE
HUNDRED THOUSAND AND 00/100THS DOLLARS ($2,500,000.00).


 


“Line
of Credit Availability” – shall mean the principal amount under the Line of
Credit available to be Advanced to Borrower from time to time as determined by Section 2.1(b) of
this Agreement.


 


“Line
of Credit Maturity Date” – means May 31, 2010.


 


“Line
of Credit Note” – means a revolving line of credit promissory note of the
Borrower payable to the order of Lender in a principal amount equal to the Line
of Credit as originally in effect and otherwise duly completed, as hereafter
amended, supplemented, replaced or modified.


 


“Loans”
– means the Line of Credit and the Term Loan.


 


“Loan
Documents” – means
those documents, as hereafter amended, supplemented, replaced or modified,
properly executed and in recordable form, if necessary, listed in Exhibit A
as Loan Documents,


 


“Net
Worth” – means: (a) the total assets of Borrower as determined in
accordance with GAAP and as reflected on the most recent financial statements
for Borrower as delivered to Lender in accordance with Section 6.3,
less, (b) all assets of
Borrower which are either (i) non-qualified deferred compensation plan
assets contributed under Section 401(k) of the Code and related provisions
and regulations or (ii) non-qualified deferred compensation plan assets
contributed under Section 457 the Code and related provisions and
regulations, and less (c) the
total liabilities of Borrower, excluding Borrower’s liabilities under the
Questar Note, as determined in


 


4

















 


accordance
with GAAP, and as reflected on the most recent financial statements for
Borrower as delivered to Lender in accordance with Section 6.3.


 


“New
York Banking Day” – means any day (other than a Saturday or Sunday) on
which commercial banks are open for business in New York, New York.


 


“Obligations”
– means all present and future obligations and liabilities of Borrower of every
type and description arising under or in connection with this Agreement, the
Note and the other Loan Documents due or to become due to the Lenders or any
Person entitled to indemnification, or any of their respective successors,
transferees or assigns, whether for principal, interest, fees, expenses,
indemnities or other amounts (including reasonable attorneys’ fees and
expenses) and whether due or not due, direct or indirect, joint and/or several,
absolute or contingent, voluntary or involuntary, liquidated or unliquidated,
determined or undetermined, and whether now or hereafter existing, renewed or
restructured, whether or not from time to time decreased or extinguished and later
increased, created or incurred, whether or not arising after the commencement
of a proceeding under the Bankruptcy Code (including post-petition interest)
and whether or not allowed or allowable as a claim in any such proceeding, and
whether or not recovery of any such obligation or liability may be barred
by a statute of limitations or such obligation or liability may otherwise
be unenforceable.


 


“Other
Related Documents” – means those documents, as hereafter amended,
supplemented, replaced or modified from time to time, properly executed and in
recordable form, if necessary, listed in Exhibit A as Other Related
Documents.


 


“Permitted
Exceptions” – means: (a) Liens
for Impositions that are not delinquent; (b) Involuntary Liens (other than
for Impositions) with respect to which Borrower satisfies each of the following
requirements: (i) Borrower contests the validity of such Involuntary Lien
in good faith by appropriate legal proceedings, (ii) Borrower gives
written notice to Lender of Borrower’s intent to contest or object to the same,
(iii) Borrower demonstrates to Lender’s satisfaction that the procedures
will conclusively operate to prevent the sale of any property owned by Borrower
to satisfy the Involuntary Lien prior to final determination of such proceedings,
and (iv) Borrower takes any and all other reasonable actions (including,
without limitation, obtaining bonds, title insurance endorsements, or other
security) as Lender may deem necessary or appropriate in order to prevent
the sale of any of the properties within the Real Property Portfolio to satisfy
the Involuntary Lien and prevent any impairment of any properties within the
Real Property Portfolio; (c) the sale, transfer, or other disposition of
any personal property that is consumed or worn out in ordinary usage and that
is promptly replaced with similar items of equal or greater value; (d) any
Lien in favor of Lender for the benefit of the Lenders; (e) matters
customarily shown as standard, pre-printed exceptions in a title insurance
policy in the jurisdiction where any property in the Real Estate Portfolio is
located; (f) all covenants, conditions, easements, right-of-ways,
reservations and restrictions now of record any property in the Real Estate
Portfolio; (g) any Lien arising after the date hereof and approved by
Lender in writing; (h) Liens arising in the ordinary course of Borrower’s
business in amounts not to exceed $50,000.00 for any single Lien and
$150,000.00 for all such Liens in the aggregate; and (i) any other Liens
consented to by Lender in advance in writing from time to time in its sole and
absolute discretion.


 


“Person”
– means any natural person, corporation, limited partnership, general
partnership, joint stock company, limited liability company, limited liability
partnership, joint venture, association, company, trust, bank, trust company,
land trust, business trust or other organization, whether or not a legal
entity, or any other non-governmental entity, or any Governmental Authority.


 


“Personal
Property” – means the personal property owned by Borrower and pledged to
Lender as security for the Loans, as more particularly described in the
Security Agreement.


 


“Questar”
– means Questar Corporation and its Affiliates.


 


5

















 


“Questar
Note” – means the
subordinated promissory note dated May 31, 2005, payable from Borrower to
the order of Questar in a principal amount not in excess of Three Million Five
Hundred Fifty Thousand Dollars ($3,550,000.00).


 


“Rate
Management Obligations” means any and all obligations of the Borrower,
whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications
thereof and substitutions therefor), under (i) any and all Rate Management
Transactions, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Management Transactions.


 


“Rate
Management Transaction”
means any transaction (including an agreement with respect thereto) now existing
or hereafter entered into by the Borrower which is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity or equity
index swap, equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction, cross-currency
rate swap transaction, currency option or any other similar transaction
(including any option with respect to any of these transactions) or any
combination thereof, whether linked to one or more interest rates, foreign
currencies, commodity prices, equity prices or other financial measures.


 


“Real
Estate” – means the real property and improvements owned or leased by
Borrower and pledged to Lender as security for the Loan pursuant to the Real
Estate Security Instruments, as such real property and improvements are more
particularly described in the Real Estate Security Instruments.


 


“Real
Estate Security Instruments” – means the deeds of trust, assignment of
leases and other documents or instruments executed by Borrower in favor of
Lender with respect to the Real Estate and referenced as Loan Documents on Exhibit A.


 


“Security
Agreement” – means the Security Agreement of even date herewith, executed
by Borrower in favor of Lender and granting to Lender a first priority security
interest in the collateral described therein.


 


“Security
Instruments” – means (i) the Security Agreement; (ii) the Real
Estate Security Instruments, and (iii) any other documents or instrument,
including without limitation UCC-1 Financing Statements granted Lender a
security interest in Borrower’s property as collateral for repayment of the
Loans, each of even date herewith.


 


‘Taxes”
– are, collectively, all withholdings, interest equalization taxes, stamp taxes
or other taxes (except income and franchise taxes) imposed by any domestic or
foreign Governmental Authority.


 


“Term
Loan” – means the principal sum that Lenders agree to make available to
Borrower on a term loan basis and Borrower agrees to borrow pursuant to the
terms and conditions of this Agreement: TEN MILLION FIVE HUNDRED THOUSAND AND
00/100THS DOLLARS ($10,500,000.00).


 


“Term
Loan Maturity Date” – means May 31, 2012.


 


“Term
Note” – means a promissory note of the Borrower payable to the order of
Lender in a principal amount equal to the Term Loan as originally in effect and
otherwise duly completed, as hereafter amended, supplemented, replaced or
modified.


 


“Unmatured
Default” – means any event, omission or failure of a condition which would
constitute a Default after notice or lapse of time, or both.


 


6

















 


1.2                  EXHIBITS INCORPORATED. Exhibits A and B, all attached
hereto, are hereby incorporated into this Agreement.


 


ARTICLE 2. LOANS


 


2.1                  LINE OF CREDIT


 


(a)                    Line of Credit. By and subject to the terms of this
Agreement, Lender agrees to make Advances to Borrower during the period from
and including the Effective Date to but excluding the Maturity Date, and
Borrower agrees to borrow from Lender, an aggregate principal sum up to, but
not exceeding, the Line of Credit, said sum to be evidenced by the Line of
Credit Note of even date herewith. Borrower may from time to time prior to
the Line of Credit Maturity Date borrow and partially or wholly repay its
outstanding borrowings on a revolving basis, and reborrow, subject to all the
limitations, terms and conditions contained herein; provided however, that the
total outstanding borrowings under the Line of Credit shall not at any time
exceed the maximum principal amount available under the Line of Credit.
Although the outstanding principal balance of the Line of Credit Note may be
zero from time to time, the Loan Documents will remain in full force and effect
with respect to the Line of Credit until the Line of Credit Maturity Date or
all Obligations relating to the Line of Credit are paid and performed in full.
Upon the occurrence of any Default or Unmatured Default, Lender may suspend
or terminate its Commitment to make Advances of the proceeds of the Line of
Credit in accordance with this Agreement without further action or notice to
Borrower. Advances under the Line of Credit shall be evidenced by the Line of
Credit Note.


 


(b)                   Restriction on Availability. Notwithstanding anything to the contrary,
as of the Effective Date, the Line of Credit Availability under the Line of
Credit shall be restricted to One Million Five Hundred Thousand Dollars
($1,500,000.00). From and after the period ending December 31, 2005, the
Line of Credit Availability during each fiscal quarter of Borrower shall be
determined as set forth in the this Section (with changes to the Line of
Credit Availability being effective the next fiscal quarter). As used in this
Agreement, the term “Total Leverage” shall be the Minimum Fixed Charge Coverage
Ratio as determined in Section 7.1 below, so if the Minimum Fixed Charge
Coverage Ratio is 4.0 to 1, the “Total Leverage” for purposes of this Section is
4.0. In addition, if the Total Leverage in a succeeding fiscal quarter of
Borrower exceeds the Total Leverage in a prior fiscal quarter of Borrower, the
Line of Credit Availability will be reduced in accordance with the formula set
forth in this Section (so, for example, if Borrower’s Total Leverage in the
first fiscal quarter of 2006 is 3.6, and the Line of Credit Availability during
the next fiscal quarter is $1,750,000. If Borrower’s Total Leverage increases
to 4.0 in the second fiscal quarter of 2006, the Line of Credit Availability
during the next fiscal quarter shall be reduced to $1,500,000).


 


	
  Total Leverage

  	
   

  	
  Line of Credit Availability

  	
   

  
	
  >4.0

  	
   

  	
   

  	
  $

  	
  1,500,000

  	
   

  
	
  >3.5
  < 4.0

  	
   

  	
   

  	
  $

  	
  1,750,000

  	
   

  
	
  > 3.0
  < 3.5

  	
   

  	
   

  	
  $

  	
  2,000,000

  	
   

  
	
  <3.0

  	
   

  	
   

  	
  $

  	
  2,500,000

  	
   

  



 


(c)                    Use of Proceeds. The proceeds under the Line of Credit shall
be used to acquire the Assets and for the working capital needs of Borrower.


 


2.2                  LINE OF CREDIT COMMITMENT
FEE: UNUSED COMMITMENT FEE.
Borrower shall pay to Lender on the Effective Date a non-refundable commitment
fee for the Line of Credit equal to one half of one percent (.5%) of the amount
of the Line of Credit, namely Twelve Thousand Five Hundred Dollars
($12,500.00). In addition, Borrower shall pay to Lender a fee equal to the
percent


 


7

















 


amount
per annum (computed on the basis of a 360-day year, actual days elapsed)
specified in Section 2.10(b) below on the average daily unused amount
of the Line of Credit Availability, which fee shall be calculated on a
quarterly basis by Lender and shall be debited by Lender from the Account on
the first day of each calendar quarter, commencing on October 1, 2005.


 


2.3                  LINE OF CREDIT MATURITY DATE. All sums then outstanding under the Line of
Credit shall be repaid in full on the Line of Credit Maturity Date.


 


2.4                  TERM LOAN


 


(a)                    Term Loan. By and subject to the terms of this
Agreement, upon the Effective Date, Lender agrees to lend to Borrower and
Borrower agrees to borrow from Lender, an aggregate principal sum up to, but
not exceeding, the Term Loan, said sum to be evidenced by the Term Loan Note of
even date herewith.


 


(b)                   Use of Proceeds. The proceeds under the Term Loan shall be
used solely by Borrower to acquire the Assets and for the working capital needs
of Borrower.


 


2.5                  TERM LOAN COMMITMENT FEE. Borrower shall pay to Lender on the
Effective Date a non-refundable commitment fee for the Term Loan equal to one
half of one percent (.5%) of the amount of the Term Loan, namely Fifty-Two
Thousand Five Hundred Dollars ($52,500.00).


 


2.6                  TERM LOAN PRINCIPAL PAYMENTS. Borrower shall make payments to reduce the
outstanding principal outstanding on the Term Loan commencing on the first
Business Day in July, 2005, through the Term Loan Maturity Date, at which time
all outstanding principal and interest under the Term Loan shall be due and
payable in full, and any principal repaid under the Term Loan may not be
reborrowed. Commencing on the Effective Date and continuing until July 1,
2007, Borrower shall make principal payments (as determined by Lender)
sufficient to amortize the outstanding principal under the Term Loan in
twenty-five (25) years. Commencing on August 1, 2007 and continuing
through the Term Loan Maturity Date, Borrower shall make principal payments (as
determined by Lender) sufficient to amortize the outstanding principal under
the Term Loan in twenty (20) years.


 


2.7                  TERM LOAN MATURITY DATE. All sums then outstanding under the Term
Loan or otherwise due and owing under this Agreement and the other Loan
Documents shall be repaid in full on the Term Loan Maturity Date.


 


2.8                  LOAN DOCUMENTS. Borrower shall deliver to Lender concurrently with this Agreement
each of the documents, properly executed and in recordable form, as applicable,
described in Exhibit A as Loan Documents, together with those
documents described in Exhibit A as Other Related Documents.


 


2.9                  REQUESTS FOR ADVANCES. All requests for Advances shall be pursuant
to the draw request form attached hereto as Exhibit B (a “Draw
Request”). For purposes of requesting Advances pursuant to this Section, Lender
is authorized to rely upon the telephonic request and acceptance of Nana
Baffour as Borrower’s duly authorized agent, or such additional authorized
agents as Borrower shall designate in writing to Lender. Borrower’s telephonic
notices, requests and acceptances shall be directed to such officers of Lender
as Lender may from time to time designate.


 


2.10           INTEREST ON THE LOANS.


 


(a)                    Interest Payments. Interest accrued on the Line of Credit and
the Term Loan shall be due and payable on the first Business Day of each
calendar month commencing on the first Business Day of July, 2005.


 


8

















 


(b)                   LIBOR Spread. The LIBOR Spread to be used in calculating
the Applicable LIBOR Rate with respect to interest accruing on the Line of
Credit and the Term Loan shall be determined as follows:


 


	
  Total Leverage

  	
   

  	
  LIBOR Spread

  	
   

  	
  Line of Credit

  Unused

  Commitment

  Fee

  	
   

  
	
  >3.0

  	
   

  	
   

  	
  2.60

  	
  %

  	
  0.500

  	
  %

  
	
  >2.5
  < 3.0

  	
   

  	
   

  	
  2.25

  	
  %

  	
  0.500

  	
  %

  
	
  >2.0
  <2.5

  	
   

  	
   

  	
  2.00

  	
  %

  	
  0.375

  	
  %

  
	
  >1.5
  <2.0

  	
   

  	
   

  	
  1.75

  	
  %

  	
  0.375

  	
  %

  
	
  <1.5

  	
   

  	
   

  	
  1.50

  	
  %

  	
  0.250

  	
  %

  



 


(c)                    Default Interest. Notwithstanding the rates of interest
specified in Sections 2.10(e) below, effective immediately upon the
occurrence and during the continuance of any Default, the principal balance of
the Loans then outstanding and, to the extent permitted by applicable law, any
interest payments on the Loans not paid when due, shall, at the option of
Lender, bear interest payable upon demand at the Default Rate. All other
amounts due Lender (whether directly or for reimbursement) under this Agreement
or any of the other Loan Documents if not paid when due, or if no time period
is expressed, If not paid within ten (10) days after demand, shall
likewise, at the option of Lender, bear interest from and after demand at the
Default Rate.


 


(d)                   Computation of Interest. Interest shall be computed on the basis of
the actual number of days elapsed in the period during which interest or fees
accrue and a year of three hundred sixty (360) days. In computing interest on
the Loans, the date of the making of an Advance under the Loans shall be
included and the date of payment shall be excluded. Notwithstanding any
provision in this Section 2.10, interest in respect of the Loans
shall not exceed the maximum rate permitted by applicable law.


 


(e)                    Effective Rate. The “Effective Rate” upon which interest
shall be calculated for the Loans shall be one or more of the following:


 


(i)                        Provided no Default exists under this
Agreement, the Effective Rate shall be the Applicable LIBOR Rate.


 


(ii)                     During such time as a Default exists under
this Agreement, or from and after the date on which all sums owing under the
Loans become due and payable by acceleration or otherwise, then at the option
of Lender, the interest rate applicable to the then outstanding principal
balance of the Loans shall be the Default Rate.


 


2.11           PAYMENTS.


 


(a)                    Credit for Principal
Payments. Any payment
made upon the outstanding principal balance of the Loans shall be credited as
of the Business Day received, provided such payment is received by Lender no
later than noon (Mountain Standard Time or Mountain Daylight Time, as
applicable) and constitutes immediately available funds. All payments due to
Lender under this Agreement, whether at the Maturity Date or otherwise, shall
be paid in immediately available funds. Any principal payment received after
said time or which does not constitute immediately available funds shall be
credited upon such funds having become unconditionally and immediately
available to Lender.


 


(b)                             Collection of Payments. Borrower authorizes Lender to collect all
principal, interest, fees and other charges due under the Loan Documents by
charging the Account, or any other deposit account maintained by Borrower with
Lender, for the full amount thereof. Should


 


9

















 


there
be insufficient funds in the Account to pay all such sums when due, the full
amount of such deficiency shall be immediately due and payable by Borrower.


 


(c)                    Taxes Generally. All payments by the Borrower of principal
of, and interest on, the Loans and all other Obligations shall be made free and
clear of and without deduction for any present or future excise, stamp or other
Taxes, fees, duties, levies, imposts, charges, deductions, withholdings or
other charges of any nature whatsoever imposed by any Governmental Authority,
but excluding (i) franchise Taxes, (ii) any Taxes (other than
withholding taxes) that would not be imposed but for a connection between
Lender and the jurisdiction imposing such Taxes (other than a connection
arising solely by virtue of the activities of Lender pursuant to or in respect
of this Agreement or any other Loan Document), (iii) any Taxes imposed on
or measured by any Lender’s assets, net income, receipts or branch profits, and
(iv) any Taxes arising after the Effective Date solely as a result of or
attributable to a Lender changing its designated lending office after the date
such Lender becomes a party hereto. If any withholding or deduction from any
payment to be made by the Borrower hereunder is required in respect of any
Taxes pursuant to any applicable law, then the Borrower will:


 


(i)                        pay directly to the relevant Governmental
Authority the full amount required to be so withheld or deducted;


 


(ii)                     promptly forward to the Lender an official
receipt or other documentation satisfactory to the Lender evidencing such
payment to such Governmental Authority; and


 


(iii)                  pay to Lender for its account or the account
of the applicable Lender, as the case may be, such additional amount or
amounts as is necessary to ensure that the net amount actually received by
Lender will equal the full amount that Lender would have received had no such
withholding or deduction been required.


 


(d)                    Tax Indemnification. If the Borrower fails to pay any Taxes when
due to the appropriate Governmental Authority or fails to remit to Lender for
its account the required receipts or other required documentary evidence, the
Borrower shall indemnify Lender for any incremental Taxes, interest or
penalties that may become payable by Lender as a result of any such
failure. For purposes of this Section, a distribution hereunder by Lender shall
be deemed a payment by the Borrower.


 


2.12           LENDER’S ACCOUNTING. Lender shall maintain a loan account (the “Loan
Account”) on its books in which shall be recorded all Advances and repayments
of principal and payments of accrued interest, as well as payments of fees
required to be paid pursuant to this Agreement. All entries in the Loan Account
shall be made in accordance with Lender’s customary accounting practices as in
effect from time to time. Monthly or at such other interval as is customary
with Lender’s practice, Lender will render a statement of the Loan Account to
Borrower. Each such statement shall be deemed final, binding and conclusive
upon Borrower in all respects as to all matters reflected therein (absent
manifest error).


 


2.13           APPRAISAL LIMITATION. The aggregate amount of the Loans is
subject to a the following appraisal limitation: 85% of the appraised value of
the Real Property; 85% of the book value Borrower’s accounts receivable, 50% of
the book value of any equipment owned by Borrower and 50% of the book value of
any generators owned or acquired by Borrower (the “Appraised Value Limitation”).
Lender, from time to time while the Loan remains outstanding, may determine
the Appraised Value Limitation, and if the outstanding principal of the Loans
exceeds such Appraised Value Limitation, require Borrower to reduce the
outstanding principal of the Loans to comply with the Appraised Value Limitation
within one (1) year of Lenders’ request.


 


10

















 


Failure
of Borrower to so reduce the outstanding principal of the Loans within such one
(1) year period shall be deemed a Default.


 


ARTICLE 3. CONDITIONS PRECEDENT


 


3.1                    CONDITIONS PRECEDENT TO
INITIAL EXTENSION OF CREDIT.
The obligation of Lender to extend any credit contemplated by this Agreement is
subject to the fulfillment to Lender’s satisfaction of all of the following
conditions:


 


(a)                    There shall exist no Default, as defined in
this Agreement, or Default as defined in any of the other Loan Documents or in
the Other Related Documents, or Unmatured Default; and


 


(b)                   Lender shall have received all Loan
Documents, other documents, instruments, policies, and forms of evidence or
other materials reasonably requested by Lender under the terms of this
Agreement or any of the other Loan Documents; and


 


(c)                    There shall have been no material adverse
change, as reasonably determined by Lender, in the financial condition or
business of Borrower, nor any material decline, as reasonably determined by
Lender, in the market value of a substantial or material portion of the assets
of Borrower; and


 


(d)                   Borrower shall have delivered to Lender
evidence of insurance coverage on all Borrower’s property, in form, substance,
amounts, covering risks and issued by companies reasonably satisfactory to
Lender, with loss payable endorsements in favor of Lender.


 


3.2                  CONDITIONS PRECEDENT TO EACH
ADVANCE. Lender’s
obligation to make each Advance or take any other action under the Loan
Documents shall be subject at all times to satisfaction of each of the
following conditions precedent:


 


(a)                    The representations and warranties contained
herein and in each of the other Loan Documents shall be true on and as of the
date of the signing of this Agreement and on the date of each Advance by Lender
pursuant hereto, with the same effect as though such representations and
warranties had been made on and as of each such date, and on each such date, no
Default or Unmatured Default, shall have occurred and be continuing or shall
exist; and


 


(b)                   Lender shall have received all additional
documents which may be required in connection with such Advance.


 


3.3                  ACCOUNT, PLEDGE AND ASSIGNMENT. All Advances under the Line of Credit and
Term Loan shall be deposited into the Account or otherwise disbursed to or for
the benefit or account of Borrower under the terms of this Agreement. As
additional security for Borrower’s performance under the Loan Documents, Borrower
hereby irrevocably pledges and assigns to Lender all monies at any time
deposited in the Account.


 


ARTICLE 4. REPRESENTATIONS AND WARRANTIES


 


As a material inducement to Lender’s entry into this Agreement,
Borrower represents and warrants to Lender as of the Effective Date and
continuing thereafter that:


 


4.1                  LEGAL STATUS. Borrower is a profit corporation, duly organized and existing and in
good standing under the laws of the State of Delaware, and is qualified or
licensed to do business (and is


 


11

















 


in good standing as a foreign corporation, if applicable) in the State
of Utah and in all other jurisdictions in which such qualification or licensing
is required or in which the failure to so qualify or to be so licensed could
have a material adverse effect on Borrower.


 


4.2                  AUTHORIZATION AND VALIDITY.  This
Agreement and each Loan Document and Other Related Document have been duly
authorized, and upon their execution and delivery in accordance with the
provisions hereof will constitute legal, valid and binding agreements and
obligations of Borrower or the party which executes the same, enforceable in
accordance with their respective terms.


 


4.3                  BORROWER SOLVENCY. Upon acquisition of the Assets, Borrower
shall be solvent under GAAP.


 


4.4                  NO VIOLATION. The execution, delivery and performance by
Borrower of each of the Loan Documents do not violate any provision of Borrower’s
statutory charter or any law or regulation binding upon Borrower, or result in
any breach of or default under any contract, obligation, indenture or other
instrument to which Borrower is a party or by which Borrower may be bound.


 


4.5                  LITIGATION. There are no pending, or to the best of
Borrower’s knowledge threatened, actions, claims, investigations, suits or
proceedings by or before any Governmental Authority, arbitrator, court or
administrative agency which could have a material adverse effect on the
financial condition or operation of Borrower other than those disclosed by
Borrower to Lender in writing prior to the date hereof.


 


4.6                  CORRECTNESS OF FINANCIAL
STATEMENT.  The financial statement of Consonus, Inc.,
a Utah corporation, a true copy of which has been delivered by Borrower to
Lender prior to the date hereof, (a) is complete and correct and presents
fairly the financial condition of Consonus, Inc., (b) discloses all
liabilities of Consonus, Inc. that are required to be reflected or
reserved against under GAAP, whether liquidated or unliquidated, fixed or
contingent, and (c) has been prepared in accordance with GAAP. Since the
date of such financial statement there has been no material adverse change in
the financial condition of Consonus, Inc., nor has Consonus, Inc.
mortgaged, pledged, granted a security interest in or otherwise encumbered any
of its assets or properties except in favor of Lender or as otherwise permitted
by Lender in writing.


 


4.7                  NO SUBORDINATION. There is no agreement, indenture, contract
or instrument to which Borrower is a party or by which Borrower may be
bound that requires the subordination in right of payment of any of Borrower’s
obligations subject to this Agreement to any other obligation of Borrower.


 


4.8                  ERISA. Borrower is in compliance in all material
respects with all applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended or recodified from time to time (“ERISA”);
Borrower has not violated in any material respect any provision of any defined
employee pension benefit plan (as defined in ERISA) maintained or contributed
to by Borrower (each, a “Plan”); no Reportable Event as defined in ERISA has
occurred and is continuing with respect to any Plan initiated by Borrower;
Borrower has met its minimum funding requirements under ERISA with respect to
each Plan; and each Plan will be able to fulfill its benefit obligations as
they come due in accordance with the Plan documents and under GAAP.


 


4.9                  OTHER OBLIGATIONS. Borrower is not in default on any
obligation for borrowed money, any purchase money obligation or any other
material lease, commitment, contract, instrument or obligation.


 


4.10           NO MATERIAL ADVERSE CHANGE.  There
has been no material adverse change in the financial condition of Borrower
since the dates of the latest financial statements furnished to Lender


 


12

















 


and,
except as otherwise disclosed to Lender in writing, Borrower has not entered
into any material transaction which is not disclosed in such financial
statements.


 


4.11           ACCURACY. All reports, documents, instruments, information
and forms of evidence delivered to Lender concerning the Loans or security for
the Loans or required by the Loan Documents are accurate, correct and
sufficiently complete to give Lender true and accurate knowledge of their
subject matter, and do not contain any material misrepresentation or omission.


 


4.12           BUSINESS LOAN. The Loans are a business loan transaction in
the stated amount solely for the purpose of carrying on the business of
Borrower and none of the proceeds of the Loans will be used for the personal,
family or agricultural purposes of the Borrower.


 


4.13           SPECIAL REPRESENTATIONS AND
WARRANTIES REGARDING HAZARDOUS MATERIALS. Without in any way limiting the other
representations and warranties set forth in this Agreement and after reasonable
investigation and inquiry, Borrower hereby specially represents and warrants to
the best of Borrower’s knowledge as of the date of this Agreement as follows:


 


(a)                    Hazardous Materials. The Real Property is not a site for the use,
generation, manufacture, storage, treatment, release, threatened release,
discharge, disposal, transportation or presence of any Hazardous Materials.


 


(b)                   Hazardous Materials Laws. The Real Property is in compliance with all
Hazardous Materials Laws.


 


(c)                    Hazardous Materials Claims. There are no Hazardous Materials Claims
pending or threatened against Borrower or the Real Property.


 


ARTICLE 5. COLLATERAL


 


As security for all
Obligations of Borrower to Lender, Borrower hereby grants to Lender security
interests of first priority in all of the Collateral as more specifically set
forth in the Security Instruments. All of the foregoing shall be evidenced by
and subject to the terms of the Security Instruments and such other such
security agreements, financing statements, pledges, collateral assignments and
other documents as Lender shall reasonably require, all in form and
substance satisfactory to Lender. Borrower shall reimburse Lender immediately
upon demand for all reasonable costs and expenses incurred by Lender in
connection with any of the foregoing security, including without limitation,
any filing fees.


 


ARTICLE 6. COVENANTS OF BORROWER


 


Borrower covenants that so
long as any Lender remains committed to extend credit to Borrower pursuant
hereto, or any Obligations of Borrower to Lender under any of the Loan
Documents remain outstanding, and until payment in full of all Obligations of
Borrower subject hereto, Borrower shall, unless Lender otherwise consents in
writing:


 


6.1                  PUNCTUAL PAYMENTS. Punctually pay all principal, interest, fees
or other liabilities due under any of the Loan Documents at the times and place
and in the manner specified therein, and immediately upon demand by Lender, the
amount by which the outstanding principal balance of the Line of Credit at any
time exceeds any limitation on borrowings applicable thereto.


 


6.2                  ACCOUNTING RECORDS. Maintain adequate books and records in
accordance with GAAP, and permit any representative of Lender, at any
reasonable time, to inspect, audit and examine such books and records, upon
prior reasonable notice and without unreasonable interference with Borrower’s
business to make copies of the same, and to inspect the properties of Borrower.


 


13

















 


6.3                  FINANCIAL STATEMENTS. Provide to Lender all of the following, in form and
detail satisfactory to Lender:


 


(a)         not later than one hundred twenty (120) days
after and as of the end of each fiscal year, an audited, unqualified,
consolidated financial statement of Borrower, which shall include, without
limitation, an income statement, balance sheet and statement of cash flows,
which shall have been audited by an accounting firm mutually acceptable to
Lender and Borrower, and which shall be accompanied by the unqualified report
of such accounting firm thereon;


 


(b)        not later than forty-five (45) days after the
end of each fiscal quarter, a company-prepared consolidated financial statement
of Borrower, which shall include, without limitation, an income statement,
balance sheet, and statement of cash flows;


 


(c)         contemporaneously with each annual and
quarterly financial statement of Borrower required hereby, a certificate of the
executive director or president or chief financial officer of Borrower that
said financial statements fairly present in all material respects the financial
condition of Borrower as of the date thereof and that there exists no Default
nor any Unmatured Default; and


 


(d)        from time to time such other information as
Lender may reasonably request.


 


6.4                  COMPLIANCE. Preserve and maintain all licenses, permits,
governmental approvals, rights, privileges and franchises necessary for the
conduct of Borrower’s business; and comply with the provisions of all other
documents pursuant to which Borrower is and/or which govern Borrower’s continued
existence and with the requirements of all laws, rules, regulations and orders
of any Governmental Authority applicable to Borrower and/or its business.


 


6.5                  INSURANCE. Maintain and keep in force insurance of the
types and in amounts customarily carried in lines of business similar to that
of Borrower, including but not limited to fire, extended coverage, public
liability, flood, property damage and workers’ compensation, with all such
insurance carried with companies and in amounts reasonably satisfactory to
Lender, and deliver to Lender from time to time at Lender’s request schedules
setting forth all insurance then in effect.


 


6.6                  TAXES AND OTHER LIABILITIES. Pay and discharge when due any and all
indebtedness, obligations, assessments and taxes, both real or personal,
including without limitation federal and state income taxes and state and local
property taxes and assessments, except (a) such as Borrower may in
good faith contest or as to which a bona fide dispute may arise, and (b) for
which Borrower has made provision, to Lender’s satisfaction, for eventual
payment thereof in the event Borrower is obligated to make such payment.


 


6.7                  LITIGATION. Promptly give notice in writing to Lender of
any litigation pending or threatened against Borrower with a claim in excess of
Twenty-Five Thousand Dollars ($25,000).


 


6.8                  NOTICE TO LENDER. Promptly (but in no event more than five (5) days
after the occurrence of each such event or matter) give written notice to
Lender in reasonable detail of: (a) the occurrence  of any Default, or any condition, event or
act which with the giving of notice or the passage of time or both would
constitute a Default; (b) any change in the name or the organizational
structure of Borrower; or (c) the occurrence and nature of any Reportable
Event or Prohibited Transaction, each as defined in ERISA, or any funding
deficiency with respect to any Plan.


 


6.9                  SUBORDINATION OF OTHER LOANS. All notes and loans from shareholders of
Borrower (including, without limitation, the Questar Note) shall be subordinate
to the Obligations. Except with the respect to the Questar Note (the repayment
of which shall be governed by the terms and conditions of the Subordination and
Standstill Agreement executed among Lender, Borrower and


 


14

















 


Questar),
Lender will permit Borrower to make payments thereunder provided that no
Default or Unmatured Default, shall have occurred and be continuing or shall
exist.


 


6.10           FURTHER ASSURANCES. Upon Lender’s reasonable request and at
Borrower’s sole cost and expense, Borrower shall execute, acknowledge and
deliver any other instruments and perform any other acts necessary,
desirable or proper, as reasonably determined by Lender, to carry out the
purposes of this Agreement and the other Loan Documents or to perfect and
preserve any liens created by the Loan Documents.


 


6.11           ASSIGNMENT. Borrower shall not assign Borrower’s
interest under any of the Loan Documents, or in any monies due or to become due
thereunder, and any assignment without such consent shall be void. In this
regard, Borrower acknowledges that Lender would not extend the Loans except in
reliance on Borrower’s expertise, reputation, and prior experience.


 


6.12           INSPECTIONS. Permit representatives of Lender during
business hours, upon prior reasonable notice, without unreasonable interference
to Borrower’s business, and to the extent reasonably requested to (a) visit
and inspect the properties (including but not limited to the Real Estate),
books and records of the Borrower, and (b) discuss with its principal
officers and its independent certified accountants its affairs, finances and
accounts.


 


6.13           HAZARDOUS MATERIALS
COVENANTS. Borrower agrees as
follows:


 


(a)                    No Hazardous Activities. Borrower shall not cause or permit Borrower’s
real property (including but not limited to the Real Estate) to be used as a
site for the use, generation, manufacture, storage, treatment, release,
discharge, disposal, transportation or presence of any Hazardous Materials.


 


(b)                   Compliance. Borrower shaft comply and cause Borrower’s
real property (including but not limited to the Real Estate) to comply with all
Hazardous Materials Laws.


 


(c)                    Notices. Borrower shall promptly notify Lender in
writing of: (i) the discovery of any Hazardous Materials on, under or
about Borrower’s real property (including but not limited to the Real Estate); (ii) any
knowledge by Borrower that Borrower’s real property does not comply with any
Hazardous Materials Laws; and (iii) any Hazardous Materials Claims.


 


(d)                   Remedial Action. In response to the presence of any Hazardous
Materials on, under or about Borrower’s real property (including but not
limited to the Real Estate), Borrower shall promptly take, at Borrower’s sole
expense, all remedial action required by any Hazardous Materials Laws or any
judgment, consent decree, settlement or compromise in respect to any Hazardous
Materials Claims.


 


ARTICLE 7. FINANCIAL COVENANTS


 


Borrower covenants that so
long as any Lender remains committed to extend credit to Borrower pursuant
hereto; or any Obligation of Borrower to Lender under any of the Loan Documents
remains outstanding, and until indefeasible payment in full of all Obligations
of Borrower subject hereto, Borrower shall maintain Borrower’s financial
condition as follows in accordance with GAAP (except to the extent modified by
the definitions herein), with compliance determined commencing with Borrower’s
financial statements for the period ending June 30, 2004:


 


7.1                  MINIMUM FIXED CHARGE
COVERAGE RATIO. Borrower
shall maintain at all times a “Minimum Fixed Charge Coverage Ratio” which shall
be no less than 1.15 to 1 for the last two (2) quarters of Borrower’s
fiscal year ending December 31, 2005; 1.20 to 1 for Borrower’s fiscal year
ending December 31, 2006; and 1.25 to 1 thereafter. The Minimum Fixed
Charge Coverage Ratio shall be calculated utilizing a ratio wherein (a) the
numerator shall be: EBITDA plus operating lease


 


15

















 


expense
minus (i) maintenance capital expenditures of $300,000 during each
fiscal year period, (ii) income taxes paid or payable, (iii) dividends
and distributions and (b) the denominator shall be (i) interest paid
or payable, plus (ii) operating lease expense, plus (iii) scheduled
amortization of long term debt (all as calculated in accordance with GAAP).
This covenant will be measured on a quarterly basis, beginning with the first
full quarter of operation for 4 quarters, thereafter on a rolling 4-quarter
basis.


 


7.2                  TOTAL FUNDED DEBT. Borrower shall maintain at all times the
ratio of total funded debt (excluding the Questar Note and as calculated in
accordance with GAAP) to EBITDA, measured as of the last day of each fiscal
quarter of Borrower using EBITDA for the four quarters then ended, of not more
than 4.25 to 1 last two (2) quarters of Borrower’s fiscal year ending December 31,
2005 and Borrower’s fiscal year ending December 31, 2006; 4.0 to 1 for
Borrower’s fiscal year ending December 31, 2007, and first two (2) quarters
of Borrower’s fiscal year ending December 31, 2008; and 3.5 to 1 for the
last two (2) quarters of Borrower’s fiscal year ending December 31,
2008, and thereafter. The first measurement of Borrower’s compliance with this
covenant will be for Borrower’s fiscal quarter ending December 31, 2005.


 


7.3                  NET WORTH. Borrower shall maintain at all times a Net
Worth not less than the sum of (i) Six Million Dollars ($6,000,000.00)
plus (ii) fifty percent (50%) of the cumulative quarterly net income
subsequent to the Closing, with no deduction for any quarterly net loss,
measured on as of the last day of each fiscal quarter of Borrower (all as
calculated in accordance with GAAP).


 


ARTICLE 8. NEGATIVE COVENANTS


 


Borrower further covenants
that so long as Lender remains committed to extend credit to Borrower pursuant
hereto, or any Obligations (liquidated or unliquidated) of Borrower to Lender
under any of the Loan Documents remain outstanding, and until payment in full
of all Obligations of Borrower subject hereto, Borrower will not without Lender’s
prior written consent:


 


8.1                  USE OF FUNDS. Use any of the proceeds of the Line of Credit
hereunder except for the purposes stated in Section 2.1 (d) hereof.


 


8.2                  MATERIAL AGREEMENTS. (a) Enter into, surrender or terminate
any material agreement to which it is a party (unless the other party thereto
is in material default and the termination of such agreement would be
commercially reasonable), (b) significantly increase or consent to the
significant increase of the amount of any charges under any material agreement
to which it is a party, except as provided therein or on an arms’-length basis
and commercially reasonable terms; or (c) otherwise modify, change,
supplement, alter or amend, or waive or release any of its rights and remedies
under any material agreement to which it is a party in any material respect,
except on an arms’-length basis and commercially reasonable terms.


 


8.3                  ACCOUNTING METHOD. Modify or change its method of accounting or
enter into, modify, or terminate any agreement currently existing, or at any
time hereafter entered into with any third party accounting firm or service
bureau for the preparation or storage of Borrower’s accounting records without
said accounting firm or service bureau agreeing to provide Lender information
regarding Borrower’s financial condition.


 


8.4                  OTHER INDEBTEDNESS. Create, incur, assume or permit to exist any
Indebtedness resulting from borrowings, loans or advances, whether secured or
unsecured, matured or unmatured, liquidated or unliquidated, joint or several,
except (a) the Obligations of Borrower to Lender, (b) the Questar
Note, (c) any Indebtedness resulting from borrowings in the ordinary
course of Borrower’s business, in an amount not to exceed $50,000.00 for any
single borrowing and $150,000.00 for all such borrowings in the aggregate; and (d) any
other Indebtedness of Borrower existing as of, and disclosed to Lender prior
to, the date hereof.


 


16

















 


8.5                  MERGER, CONSOLIDATION,
TRANSFER OF ASSETS. Merge
into or consolidate with any other entity; make any substantial change in the
nature of Borrower’s business as conducted as of the date hereof; acquire all
or substantially all of the assets of any other entity; nor sell, lease,
transfer or otherwise dispose of all or a substantial or material portion of
Borrower’s assets except in the ordinary course of its business.


 


8.6                  GUARANTIES. Guarantee or become liable in any way as
surety, endorser (other than as endorser of negotiable instruments for deposit
or collection in the ordinary course of business), accommodation endorser or
otherwise for, nor pledge or hypothecate any assets of Borrower as security
for, any liabilities or obligations of any other person or entity, except any
of the foregoing in favor of Lender.


 


ARTICLE 9. DEFAULTS AND REMEDIES


 


9.1                  DEFAULT. The occurrence of any one or more of the
following shall constitute an event of default (“Default”) under this Agreement
and the other Loan Documents:


 


(a)                    Borrower shall fail to pay when due any
principal, interest, fees or other amounts payable under any of the Loan
Documents; or


 


(b)                   Any financial statement or certificate
furnished to Lender in connection with, or any representation or warranty made
by Borrower or any other party under this Agreement or any other Loan Document,
shall prove to be incorrect, false or misleading in any material respect when
furnished or made; or


 


(c)                    Any default in the performance of or
compliance with any obligation, agreement or other provision contained herein
or in any other Loan Document (other than those referred to in subsections (a) and
(b) above), and with respect to any such default which by its nature can
be cured, such default shall continue for a period of twenty (20) days from its
occurrence; or


 


(d)                   Any default in the payment or performance of
any obligation, or the occurrence of any defined event of default, under the
terms of any contract or instrument (other than any of the Loan Documents)
pursuant to which Borrower has incurred any debt or other liability to any
person or entity, including any Lender; or


 


(e)                    The filing of a notice of judgment lien
against Borrower; or the recording of any abstract of judgment against Borrower
in any county in which Borrower has an interest in real property; or the
service of a notice of levy and/or of a writ of attachment or execution, or
other like process, against the assets of Borrower; or the entry of a judgment
against Borrower; or


 


(f)                      Borrower shall become insolvent, or shall
suffer or consent to or apply for the appointment of a receiver, trustee,
custodian or liquidator of itself or any of its property, or shall make a
general assignment for the benefit of creditors; Borrower shall file a
voluntary petition in bankruptcy, or seeking reorganization, in order to effect
a plan or other arrangement with creditors or any other relief under the
Bankruptcy Code, or under any state or federal law granting relief to debtors,
whether now or hereafter in effect; or any involuntary petition or proceeding
pursuant to the Bankruptcy Code or any other applicable state or federal law
relating to bankruptcy, reorganization or other relief for debtors is filed or
commenced against Borrower, or Borrower shall file an answer admitting the
jurisdiction of the court and the material allegations of any involuntary
petition; or Borrower shall be adjudicated a bankrupt, or an order for relief
shall be entered against Borrower by any court of competent jurisdiction under
the Bankruptcy


 


17

















 


Code
or any other applicable state or federal law relating to bankruptcy,
reorganization or other relief for debtors; or


 


(g)                   Any court, government or governmental agency
shall condemn, seize or otherwise appropriate, or take custody or control of,
all or any portion of the property of Borrower which; when taken together with
all other property of Borrower so condemned, seized, appropriated, or taken
custody or control of, during the twelve-month period ending with the month in
which any such action occurs, constitutes a substantial portion of such
property; or


 


(h)                   Borrower, or any Person on behalf of
Borrower, shall claim or assert that the Loan Documents are not legal, valid
and binding agreements enforceable against Borrower in accordance with their
respective terms; or the Loan Documents shall in any way be terminated (except
in accordance with their terms) or become or be judicially declared ineffective
or inoperative or shall in any way cease to give or provide the respective
liens, security interests, rights, titles, interests, remedies, powers or
privileges intended to be created thereby; or


 


(i)                       Any material litigation or proceeding is
commenced before any Governmental Authority against or affecting the Borrower
or any other property of the Borrower or any part thereof and such
litigation or proceeding is not defended diligently and in good faith by the
Borrower; or


 


(j)                       Commencement of any action or proceeding
which seeks as one of its remedies the dissolution of Borrower and such action
or proceeding is not defended diligently and in good faith by Borrower, or a
final judgment is entered against Borrower decreeing the dissolution of
Borrower; or


 


(k)                    Any Person shall obtain an order or decree in
any court of competent jurisdiction enjoining or prohibiting Lender, or
Borrower from carrying out the terms and conditions of any of the Loan
Documents; in either case, if such order or decree is not vacated or stayed
within ten (10) days after Borrower receives written notice of the filing
thereof; or


 


(l)                       Borrower assigns this Agreement, any of the
other Loan Documents, any Advance or any right to receive an Advance under this
Agreement in violation of Section 10.11; or


 


(m)                 Borrower fails to pay any Rate Management
Obligation when due or the breach by the Borrower of any term, provision or
condition contained in any Rate Management Transaction or any transaction of
the type described in the definition of “Rate Management Transactions,” whether
or not any Lender or Affiliate of a Lender is a party thereto; or


 


(n)                   Any default shall occur under the Questar
Note; or


 


(o)                   There shall exist or occur any event or
condition which impairs, or is substantially likely to impair, the prospect of
payment or performance by Borrower of its obligations under any of the Loan
Documents.


 


9.2                  ACCELERATION UPON DEFAULT;
REMEDIES


 


(a)                    Upon the occurrence of any Default described
in Section 9.1(f) with respect to Borrower, the obligation, if
any, of Lender to make Advances hereunder or extend any further credit under
any of the Loan Documents shall automatically terminate and the Obligations
shall immediately become due and payable without presentment, demand, protect
or notice of dishonor, all of which are hereby expressly waived by Borrower,
without any election or


 


18

















 


action
on the part of Lender. Upon the occurrence of any other Default, (i) Lender
may declare all Obligations of Borrower under each of the Loan Documents,
any term thereof to the contrary notwithstanding, and without notice to be
immediately due and payable without presentment, demand, protest or notice of
dishonor, all of which are hereby expressly waived by Borrower; (ii) the
obligation, if any, of Lender to make Advances hereunder or extend any further
credit under any of the Loan Documents shall immediately cease and terminate;
and (iii) Lender shall have all rights, powers and remedies available
under each of the Loan Documents, or accorded by law, including without
limitation the right to appoint a receiver, resort to any or all security for
any credit subject hereto and to exercise any or all of the rights of a
beneficiary or secured party pursuant to applicable law. All rights, powers and
remedies of Lender may be exercised at any time by Lender and from time to
time after the occurrence of a Default, are cumulative and not exclusive, and
shall be in addition to any other rights, powers or remedies provided by law or
equity.


 


(b)                   In addition to the actions set forth in
clause (a) above, upon the occurrence of a Default, Lender may exercise
any and all of the rights and remedies provided under any and all of the Loan
Documents as specified therein, including (i) the right to appoint a
receiver; (ii) the right of Lender to apply any of Borrower’s funds in
their possession to the outstanding Obligations, whether or not such
Obligations are then due and payable; (iii) the right of Lender to perform Borrower’s
obligations under this Agreement; (iv) to the extent permitted by law, the
right of Lender to add any accrued but unpaid interest on the Obligations from
time to time to principal and charge interest on such capitalized interest from
the date it is added to principal until it is paid in full; and (v) the
right of Lender to charge interest on any or all of the Obligations at the
Default Rate, provided the Default Rate will not exceed the maximum rate
permitted by applicable law under any circumstances. All sums expended by
Lender for the foregoing purposes, or in the exercise of the foregoing rights
and remedies (including attorneys’ fees and costs) shall be deemed to have been
disbursed to and borrowed by Borrower and shall be evidenced by the Loan
Documents.


 


9.3                  RIGHT OF LENDER TO TAKE
CERTAIN ACTIONS; POWER OF ATTORNEY. Without in any way limiting Lender’s other rights and remedies under
this Agreement and the other Loan Documents, in the event of a Default,
Borrower hereby constitutes and appoints Lender, or independent contractors
selected by Lender, as its true and lawful attorney-in-fact with full power of
substitution, for the purposes of performing Borrower’s obligations under this
Agreement and the other Loan Documents, in the name of Borrower. It is
understood and agreed that the foregoing power of attorney shall be deemed to
be a power coupled with an interest which cannot be revoked until the repayment
in full in cash of the Obligations and the termination of the Commitment.
Borrower acknowledges that Lender may (but is not obligated to) exercise
any of the foregoing powers. All sums expended by Lender for the foregoing
purposes, or in the exercise of the foregoing rights and remedies (including
attorneys’ fees and costs), shall be deemed to have been disbursed to and
borrowed by Borrower and shall be evidenced by the Loan Documents.


 


9.4                  APPLICATION OF PAYMENTS AFTER
DEFAULT. From and after
the date on which Lender has taken any action pursuant to this Article 9
and until all of the Obligations have been paid in full, any and all proceeds
or other funds received by Lender from (i) Borrower or any other Person,
or (ii) the exercise of any other right or remedy by Lender, shall, in
each case, be applied as follows:


 


(a)                    first, to pay late charges and to pay or
reimburse Lender for out-of-pocket costs, expenses and disbursements (including
(i) reasonable attorneys’ fees and legal expenses actually incurred by
Lender in connection with exercising their rights and remedies and collecting
any Obligations and (ii) Advances or disbursements made subsequent to a
Default by Lender pursuant to the terms of this Agreement or any of the other
Loan Documents);


 


(b)                   second, to the repayment of all of the
Obligations in any order determined by Lender; and


 


(c)                    the balance, if any, as required by law.


 


19

















 


9.5                  REPAYMENT OF FUNDS ADVANCED. Any funds expended by Lender in the
exercise of its rights or remedies under this Agreement and the other Loan
Documents shall be payable to Lender upon demand, together with interest at the
rate applicable to the principal balance of the Note from the date the funds
were expended.


 


9.6                  RIGHTS CUMULATIVE, NO WAIVER. All Lender’s rights and remedies provided
in this Agreement and the other Loan Documents, together with those granted by
law or at equity, are cumulative and may be exercised by Lender at any
time. Lender’s exercise of any right or remedy shall not constitute a cure of
any Default unless all sums then due and payable to Lender under the Loan
Documents are repaid and Borrower has cured all other Defaults. No waiver shall
be implied from any failure of Lender to take, or any delay by Lender in
taking, action concerning any Default or failure of condition under the Loan
Documents, or from any previous waiver of any similar or unrelated Default or
failure of condition. Any waiver or approval under any of the Loan Documents
must be in writing and shall be limited to its specific terms.


 


ARTICLE 10. MISCELLANEOUS PROVISIONS


 


10.1           AMENDMENTS AND WAIVERS. Except as otherwise expressly provided in
this Agreement, (i) any consent or approval required or permitted by this
Agreement or in any Loan Document to be given by Lender may be given, (ii) any
term of this Agreement or of any other Loan Document may be amended, (iii) the
performance or observance by the Borrower or any other Lender of any terms of
this Agreement or such other Loan Document, and (iv) the continuance of
any Default may be waived with, but only with, the written consent of
Lender.


 


10.2           INDEMNITY. BORROWER
HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS LENDER, ITS DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (THE “INDEMNIFIED PARTIES”)
FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS,
JUDGMENTS, COURT COSTS AND LEGAL OR OTHER EXPENSES (INCLUDING, WITHOUT
LIMITATION, REASONABLE ATTORNEYS’ FEES AND EXPENSES) WHICH ANY OF THE
INDEMNIFIED PARTIES MAY INCUR AS A DIRECT OR INDIRECT CONSEQUENCE OF: (a) THE
PURPOSE TO WHICH BORROWER APPLIES THE LINE OF CREDIT PROCEEDS; (b)THE FAILURE
OF BORROWER TO PERFORM ANY OBLIGATIONS AS AND WHEN REQUIRED BY THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS; OR (c) ANY FAILURE AT ANY
TIME OF ANY OF BORROWER’S REPRESENTATIONS OR WARRANTIES TO BE TRUE AND CORRECT.
BORROWER SHALL IMMEDIATELY PAY TO ANY OF THE INDEMNIFIED PARTIES UPON DEMAND
ANY AMOUNTS OWING UNDER THIS INDEMNITY, TOGETHER WITH INTEREST FROM THE DATE
THE INDEBTEDNESS ARISES UNTIL PAID AT THE RATE OF INTEREST APPLICABLE TO THE
PRINCIPAL BALANCE OF THE NOTE. BORROWER’S DUTY AND OBLIGATIONS TO DEFEND,
INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTIES SHALL SURVIVE CANCELLATION
OF THE NOTE.


 


10.3           FORM OF DOCUMENTS. The form and substance of all
documents, instruments, and forms of evidence to be delivered to Lender under
the terms of this Agreement and any of the other Loan Documents shall be
subject to Lender’s approval and shall not be modified, superseded or
terminated in any respect without Lender’s prior written approval.


 


10.4           NO THIRD PARTIES BENEFITED. No person other than Lender and Borrower
and their permitted successors and assigns shall have any right of action under
any of the Loan Documents. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.


 


10.5           NOTICES. Except as otherwise stated in this
Agreement, all notices, requests and demands which any party is required or may desire
to give to any other party under any provision of this Agreement must be in
writing delivered to each party at the following address or facsimile number:


 


20

















 


	
  BORROWER:

  	
   

  	
  Consonus Acquisition Corp.
  

  245 Park Avenue, 39th Floor 

  New York, New York 10167 

  Attn: Nana Baffour 

  Facsimile No. (212) 792-4001

  
	
   

  	
   

  	
   

  
	
  LENDER:

  	
   

  	
  U.S. Bank National
  Association 

  PD-UT-GT6 

  15 W. South Temple, 6th Floor 

  Salt Lake City, Utah 84101 

  Attn: Terry L. Grant 

  Facsimile No. (801) 534-6008

  



 


or
to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if
sent by mail, upon the earlier of the date of receipt or three (3) days
after deposit in the U.S. mail, first class and postage prepaid; and (c) if
sent by facsimile, upon receipt.


 


10.6           ACTIONS.  Borrower
agrees that Lender, in exercising the rights, duties or liabilities of Lender
or Borrower under the Loan Documents, may commence, appear in or defend
any action or proceeding purporting to affect the Loan Documents and Borrower
shall immediately reimburse Lender upon demand for all such expenses so
incurred or paid by Lender, including, without limitation, reasonable attorneys’
fees and expenses and court costs.


 


10.7           RELATIONSHIP OF PARTIES. The relationship of Borrower and Lender
under the Loan Documents is, and shall at all times remain, solely that of
borrower and lender, and Lender does not undertake nor assume any
responsibility or duty to Borrower or to any third party, except as expressly
provided in this Agreement and the other Loan Documents. Lender shall not have
any fiduciary responsibilities to Borrower. Lender undertakes no responsibility
to Borrower to review or inform Borrower of any matter in connection with
any phase of Borrower’s business or operations. Borrower agrees that Lender
shall not have liability to Borrower (whether sounding in tort, contract or
otherwise) for losses suffered by Borrower in connection with, arising out of,
or in any way related to, the transactions contemplated and the relationship established
by the Loan Documents, or any act, omission or event occurring in connection
therewith, unless it is determined in a final non-appealable judgment by a
court of competent jurisdiction that such losses resulted from the gross
negligence or willful misconduct of Lender. Lender shall not have any liability
with respect to, and Borrower hereby waives, releases and agrees not to sue
for, any special, indirect, consequential or punitive damages suffered by
Borrower in connection with, arising out of, or in any way related to the Loan
Documents or the transactions contemplated thereby.


 


10.8           DELAY OUTSIDE LENDER’S
CONTROL. Lender shall
not be liable in any way to Borrower or any third party for Lender’s failure to
perform or delay in performing under the Loan Documents (and Lender may suspend
or terminate all or any portion of Lender’s obligations under the Loan
Documents) if such failure to perform or delay in performing results
directly or indirectly from, or is based upon, the action, inaction, or purported
action, of any Governmental Authority, or because of war, rebellion,
insurrection, strike, lock-out, boycott or blockade (whether presently in
effect, announced or in the sole judgment of Lender deemed probable), or from
any Act of God or other cause or event beyond Lender’s control.


 


10.9           ATTORNEYS’ FEES AND
EXPENSES; ENFORCEMENT.
If any attorney is engaged by Lender to enforce or defend any provision of this
Agreement, any of the other Loan Documents or Other Related Documents, or as a
consequence of any Default under the Loan Documents, with or without the filing
of any legal action or proceeding, and including, without limitation, any fees
and expenses incurred in any bankruptcy proceeding of the Borrower, then
Borrower shall immediately pay to Lender, upon demand, the amount of all
reasonable attorneys’ fees and expenses and all


 


21

















 


costs
incurred by Lender in connection therewith, together with interest thereon from
the date of such demand until paid at the rate of interest applicable to the
principal balance of the Note as specified therein.


 


10.10       IMMEDIATELY AVAILABLE FUNDS. Unless otherwise expressly provided for in
this Agreement, all amounts payable by Borrower to Lender shall be payable only
in United States currency, immediately available funds.


 


10.11       SUCCESSORS AND ASSIGNS.


 


(a)                         Generally.
The terms and provisions of the Loan Documents shall be binding upon and inure
to the benefit of Borrower and Lender and their respective successors and assigns
permitted hereby, except that Borrower may not assign or otherwise
transfer any of is rights or obligations under the Loan Documents without the
prior written consent of Lender (and any such assignment or transfer to which
Lender has not consented shall be void).


 


(b)                         Lender Assignments, Participations. Lender reserves the right to sell, assign,
transfer, negotiate or grant participations in all or any part of, or any
interest in, Lender’s rights and benefits under each of the Loan Documents. In
connection therewith, Lender may disclose all documents and information
which Lender now has or may hereafter acquire relating to any credit
subject hereto, Borrower or its business, or any Collateral required hereunder.


 


10.12       SETOFF. In addition to any rights now or hereafter
granted under applicable law but subject to any limitations that may be
imposed by applicable law and not by way of limitation of any such rights,
Lender is hereby authorized by Borrower, at any time or from time to time while
a Default exists, without notice to the Borrower or to any other Person, any
such notice being hereby expressly waived, to set off and to appropriate and to
apply any and all deposits (general or special, including, but not limited to,
indebtedness evidenced by certificates of deposit, whether matured or
unmatured) and any other indebtedness at any time held or owing by Lender, to
or for the credit or the account of the Borrower against and on account of any
of the Obligations, irrespective of whether or not the Line of Credit, the Term
Loan and all other Obligations have been declared to be, or have otherwise
become, due and payable as permitted by Section 9.2, and although
such Obligations shall be contingent or unmatured.


 


10.13       CAPITAL ADEQUACY. If Lender reasonably determines that
compliance with any law or regulation or with any guideline or request from any
central bank or other governmental or quasi- governmental agency (whether or
not having the force of law), including, without limitation, the Risk Based Capital
Guidelines, affects or would affect the amount of capital required or expected
to be maintained by Lender, or any corporation controlling Lender, as a
consequence of, or with reference to, such Lender’s or such corporation’s
commitments or its making or maintaining Advances below the rate which Lender
or such corporation controlling Lender could have achieved but for such
compliance (taking into account the policies of Lender or corporation with
regard to capital), then Borrower shall, from time to time, within fifteen (15)
calendar days after written demand by Lender, pay to Lender additional amounts
sufficient to compensate Lender or such corporation controlling Lender to the
extent that Lender reasonably determines such increase in capital is allocable
to Lender’s obligations hereunder. A certificate as to such amounts, submitted
to Borrower by Lender shall be conclusive and binding for all purposes, absent
manifest error. As used herein, “Risk-Based Capital Guidelines” means (i) the
risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding
capital regulations promulgated by regulatory authorities outside the United
States implementing the July 1988 report of the Basle Committee on Banking
Regulation and Supervisory Practices Entitled “International Convergence of
Capital Measurements and Capital Standards,” including transition rules, and
any amendments to such regulations adopted prior to the date of this Agreement.


 


22

















 


10.14       LENDER’S AGENTS. Lender may designate an agent or
independent contractor to exercise any of Lender’s rights under this Agreement
and any of the other Loan Documents. Any reference to Lender in any of the Loan
Documents shall include, but only if applicable, Lender’s agents, employees or
independent contractors. Borrower shall pay the costs of such agent or
independent contractor either directly to such person or to Lender in
reimbursement of such costs, as applicable.


 


10.15       WAIVER OF RIGHT TO TRIAL BY
JURY.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY
OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THE LOAN
DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION
THEREOF OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THE LOAN
DOCUMENTS (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS
RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT
ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO
TRIAL BY JURY.


 


10.16       SEVERABILITY. If any provision or obligation under this
Agreement and the other Loan Documents shall be determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable, that provision
shall be deemed severed from the Loan Documents and the validity, legality and
enforceability of the remaining provisions or obligations shall remain in full
force as though the invalid, illegal, or unenforceable provision had never been
a part of the Loan Documents, provided, however, that if the rate of
interest or any other amount payable under the Note or this Agreement or any
other Loan Document, or the right of collectibility therefor, are declared to
be or become invalid, illegal or unenforceable, Lender’s obligations to make
Advances under the Loan Documents shall not be enforceable by Borrower.


 


10.17       HEIRS, SUCCESSORS AND
ASSIGNS. Except as otherwise
expressly provided under the terms and conditions of this Agreement, the terms
of the Loan Documents shall bind and inure to the benefit of the permitted
heirs, successors and assigns of the parties.


 


10.18       TIME. Time is of the essence of each and every
term of this Agreement and the other Loan Documents.


 


10.19       HEADINGS. All article, section or other headings
appearing in this Agreement and any of the other Loan Documents are for
convenience of reference only and shall be disregarded in construing this
Agreement and any of the other Loan Documents.


 


10.20       GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with the laws of the State of Utah.
Borrower and all persons and entities in any manner obligated to Lender under
the Loan Documents consent to the jurisdiction of any federal or state court
within the State of Utah having proper venue and also consent to service of
process by any means authorized by Utah or federal law.


 


10.21       INTEGRATION; INTERPRETATION. The Loan Documents contain or expressly
incorporate by reference the entire agreement of the parties with respect to
the matters contemplated therein and supersede all prior negotiations or
agreements, written or oral. The Loan Documents shall not be modified except by
written instrument executed by all parties. Any reference to the Loan Documents
includes any amendments, renewals or extensions now or hereafter approved by
Lender in writing.


 


23

















 


10.22       JOINT AND SEVERAL LIABILITY
OF BORROWING PARTIES. The
liability of all persons and entities obligated as Borrower in any manner to
Lender under this Agreement and any of the Loan Documents shall be joint and
several.


 


10.23       COUNTERPARTS. To facilitate execution, this document may be
executed in as many counterparts as may be convenient or required. It
shall not be necessary that the signature of, or on behalf of, each party, or
that the signature of all persons required to bind any party, appear on each
counterpart. All counterparts shall collectively constitute a single document.
It shall not be necessary in making proof of this document to produce or
account for more than a single counterpart containing the respective
signatures of, or on behalf of, each of the parties hereto. Any signature page to
any counterpart may be detached from such counterpart without
impairing the legal effect of the signatures thereon and thereafter attached to
another counterpart identical thereto except having attached to it
additional signature pages.


 


10.24       CONFIDENTIALITY PROVISION. Subject to the terms of any confidentiality
or similar agreement between Lender and Borrower and/or its Affiliates, the
parties hereto acknowledge and agree that (i) any obligations of
confidentiality contained herein and therein do not apply and have not applied
from the commencement of discussions between the parties to the tax treatment
or tax structure of the transactions contemplated by the Loan Documents (and
any related transactions or arrangements), and (ii) each party (and each
of its employees, representatives, or other agents) may disclose to any
and all parties as required, without limitation of any kind (including opinions
or other tax analyses) that are provided to such party relating to such tax
treatment and tax structure, all within the meaning of Treasury Regulations Section 1.6011-4;
provided, however, that each party recognizes that the privilege each has to
maintain, in its sole discretion, the confidentiality of a communication
relating to the transactions contemplated by the Loan Documents, including a
confidential communication with its attorney or a confidential communication
with a federally authorized tax practitioner under Section 7525 of the
Internal Revenue Code, is not intended to be affected by the foregoing.


 


10.25       SURVIVAL OF REPRESENTATIONS. All representations and warranties of
Borrower contained in this Agreement shall survive the making of the Advances
herein contemplated until all Obligations under this Agreement have been paid
and satisfied in full.


 


10.26       NO BORROWER SET-OFF. All Obligations shall be paid by Borrower
without notice (except for such notice as may be expressly required
hereunder or under the other Loan Documents), demand, counterclaim, setoff,
deduction or defense and without abatement, suspension, deferment, diminution
or reduction, and the Obligations shall in no way be released, discharged or
otherwise affected (except as expressly provided herein) by reason of: (a) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to Lender, or any action taken
with respect to this Agreement by any trustee or receiver of Lender, or by any
court, in any such proceeding; (b) any claim that Borrower has or might
have against Lender; (c) any default or failure on the part of Lender
to perform or comply with any of the terms of the Loan Documents or of any
other agreement with Borrower; or (d) any other occurrence whatsoever,
whether similar or dissimilar to the foregoing; in each case, whether or not
Borrower shall have notice or knowledge of any of the foregoing. Borrower
waives all rights now or hereafter conferred by statute or otherwise to any
abatement, suspension, deferment, diminution or reduction of any Obligation.


 


10.27       STATUTE OF FRAUDS. PURSUANT TO UTAH CODE.
ANN. §25-5-4, BORROWER IS NOTIFIED THAT THE WRITTEN LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF ANY ALLEGED PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.


 


10.28       BROKERS. Borrower and Lender represent to each other
that neither of them knows of any brokerage commissions or finders’ fee due or
claimed with respect to the transaction contemplated


 


24

















 


hereby,
Borrower and Lender shall indemnify and hold harmless the other party for, from
and against any and all loss, damage, liability, or expense, including costs
and reasonable attorney fees, which such other party may incur or sustain
by reason of or in connection with any misrepresentation by the indemnifying
party with respect to the foregoing.


 


10.29       INCONSISTENCIES WITH THE
LOAN DOCUMENTS.  In the event of any inconsistencies
between any terms of this Agreement and any terms of any of the Loan Documents,
the terms of this Agreement shall govern and prevail.


 


10.30       INTERPRETATION


 


(a)                         References to the plural include the
singular, the plural, the part and the whole; “or” has the inclusive
meaning represented by the phrase “and/or”; and “including” has the meaning
represented by the phrase “Including without limitation”.


 


(b)                        The words “hereof,” “herein,” “hereunder,” “hereto”
and similar terms in this Agreement or any other Loan Document refer to this
Agreement or such other Loan Document as a whole and not to any particular
provision of this Agreement or such other Loan Document.


 


(c)                         Reference to any Person includes such Person’s
successors and assigns but, if applicable, only if such successors and assigns
are permitted by this Agreement or the other Loan Documents, as the case may be.


 


(d)                        Reference to any agreement (Including this
Agreement and any other Loan Document together with the schedules and exhibits
hereto or thereto), document or instrument means such agreement, document or
instrument as amended, modified, replaced, substituted for, superseded or
restated.


 


10.31       ACTIONS BY LENDER. Unless otherwise expressly provided in this
Agreement, all determinations, consents, approvals, disapprovals, calculations,
requirements, requests, acts, actions, elections, selections, opinions,
judgments, options, exercise of rights, remedies or indemnities, satisfaction
of conditions or other decisions of or to be made by or on behalf of Lender
under this Agreement or any of the other Loan Documents shall be made in the
sole and absolute discretion of Lender.


 


10.32       PATRIOT ACT NOTIFICATION. The following is provided to Borrower
pursuant to Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318:


 


IMPORTANT
INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government
fight the funding of terrorism and money laundering activities, Federal law
requires all financial institutions to obtain, verify, and record information
that identifies each person or entity that opens an account, including any deposit
account, treasury management account, loan, other extension of credit, or other
financial services product. What this means for Borrower: When Borrower opens
and account, if Borrower is an individual, Lender will ask for Borrower’s name,
residential address, tax identification number, date of birth, and other
information that will allow Lender to Identify Borrower, and, if Borrower is
not an individual, Lender will ask for Borrower’s name, tax identification
number, business address, and other information that will allow Lender to
identify Borrower. Lender may also ask, if Borrower is an individual, to
see Borrower’s driver’s license or other identifying documents, and , if
Borrower is not an individual, to see Borrower’s legal organizational documents
or other identifying documents.


 


[SIGNATURES ON FOLLOWING PAGE]


 


25

















 


IN WITNESS WHEREOF, Borrower
and Lender have executed this Agreement as of the date appearing on the first page of
this Agreement.


 




	
   

  	
   

  	
  “LENDER”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Terry L. Grant

  	
   

  
	
   

  	
   

  	
  Name: Terry L. Grant

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  “BORROWER”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CONSONUS ACQUISITION
  CORP.,

  
	
   

  	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Nana Baffour

  	
   

  
	
   

  	
   

  	
  Name: Nana Baffour

  
	
   

  	
   

  	
  Title: Chairman

  






 


26

















 


FIRST AMENDMENT TO

CREDIT AGREEMENT


 


This
First Amendment to Credit Agreement (this “Amendment”) is entered into as of December 12,
2006, by and between CONSONUS ACQUISITION CORP., a Delaware corporation (“Borrower”),
and U.S. BANK NATIONAL ASSOCIATION (“Lender”).


 


RECITALS


 


A.                                                Borrower and Lender are parties to that
certain Credit Agreement, dated as of May 31, 2005, pursuant to which
Lender agreed to extend to Borrower certain credit accommodations in the
maximum principal amount of Thirteen Million and 00/100ths Dollars
($13,000,000.00).


 


B.  Borrower and Lender desire to amend the Credit Agreement as provided in
this Amendment.


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Borrower and Lender agree as follows:


 


1.                                       CAPITALIZED TERMS. All initially capitalized terms, unless
specifically defined herein, shall have the meanings ascribed thereto in the
Credit Agreement.


 


2.                                       AMENDMENTS.


 


2.1                                              Article 7.1 of the Credit Agreement,
entitled “Minimum Fixed Charge Overhead Ratio”, is hereby amended as follows:


 


(a)                                 Section 7.1 is hereby amended to change
the reference in Section 7.1 (a) (i) from $300,000.00 to
$150,000.00.


 


2.2                                              Section 7.2 of the Credit Agreement,
entitled “Total Funded Debt”, is hereby deleted in its entirety and the
following substituted in place thereof:


 


(a)                                 Borrower shall maintain at all times the
ratio of total funded debt (excluding the Questar Note and as calculated in
accordance with GAAP) to EBITDA, measured as of the last day of each fiscal
quarter of Borrower using EBITDA for the four quarters then ended, of not more
than 5.50 to 1.0 for the last two (2) quarters of Borrower’s fiscal year
ending December 31, 2006; 4.75 to 1.0 for the first quarter of Borrower’s
fiscal year ending December 31, 2007; and 4.00 to 1.0 for the second
quarter of Borrower’s fiscal year ending December 31, 2007 and thereafter.


 


3.                                       CONDITIONS PRECEDENT. The following are conditions precedent to
Lender’s obligations under this Amendment:


 


1

















 


3.1                                              Receipt by Lender of the executed originals
of this Amendment and any and all other documents and agreements which are
required by this Agreement or by any other Loan Document, each in form and
content acceptable to Lender;


 


3.2                                              Reimbursement to Lender by Borrower of Lender’s
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby, including, without limitation, attorneys’
fees and documentation costs and charges, whether such services are furnished
by Lender’s employees or agents or by independent contractors;


 


3.3                                              All payments due and owing to Lender under
the Loan Documents have been paid; and


 


3.4                                              Payment to Lender of a waiver fee in the
amount of $6,500.00.


 


4. MISCELLANEOUS.


 


4.1                                              Confirmation of Loan Agreement. Borrower hereby affirms and agrees to be
bound by all of the terms of the Credit Agreement and other Loan Documents, as
amended.


 


4.2                                              Non-Impairment. Except as expressly provided herein,
nothing in this Amendment shall alter or affect any provision, condition, or
covenant contained in the Notes or other Loan Documents or affect or impair any
rights, powers, or remedies of Lender, it being the intent of the parties that,
except as amended hereby, all of the terms, covenants and conditions of the
Credit Agreement shall remain in full force and effect. In the event of any
conflict or discrepancy between this Amendment and the Credit Agreement, this
Amendment shall control.


 


4.3                                              Entire Agreement. This Amendment constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof.


 


4.4                                              Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Utah.


 


4.5                                              Counterparts. To facilitate execution, this document may be
executed in as many counterparts as may be convenient or required. It
shall not be necessary that the signature of, or on behalf of, each party, or
that the signature of all persons required to bind any party, appear on each
counterpart. All counterparts shall collectively constitute a single document.
It shall not be necessary in making proof of this document to produce or
account for more than a single counterpart containing the respective
signatures of, or on behalf of, each of the parties hereto. Any signature page to
any counterpart may be detached from such counterpart without
impairing the legal effect of the signatures thereon and thereafter attached to
another counterpart identical thereto except having attached to it
additional signature pages.


 


2

















 


IN
WITNESS WHEREOF, this Amendment has been executed as of the date first set
forth above.


 


 




	
   

  	
  CONSONUS ACQUISITION
  CORP.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nana Baffour

  	
   

  
	
   

  	
   

  	
  Nana Baffour, Chairman

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David P. Williams

  	
   

  
	
   

  	
   

  	
   

  	
  David P. Williams, Senior
  Vice President

  
								






 


3






 












AMENDED
AND RESTATED

CREDIT AGREEMENT




 


 




between




 


 




CONSONUS
ACQUISITION CORP.,

a Delaware corporation,

as Borrower




 


 




and




 


 




U.S.
BANK NATIONAL ASSOCIATION,

as Lender




 


 


 




Entered into as of November 19, 2007




 

















 




TABLE OF CONTENTS




 




	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 1. DEFINITIONS

  	
   

  	
   

  	
  1

  
	
  1.1

  	
  DEFINED TERMS

  	
   

  	
   

  	
  1

  
	
  1.2

  	
  EXHIBITS INCORPORATED

  	
   

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2. LOANS

  	
   

  	
   

  	
  7

  
	
  2.1

  	
  LINE OF CREDIT

  	
  7

  
	
   

  	
  (a)

  	
  Line of Credit

  	
  7

  
	
   

  	
  (b)

  	
  Restriction on Availability

  	
  7

  
	
   

  	
  (c)

  	
  Use of Proceeds

  	
  8

  
	
   

  	
  (d)

  	
  Unused Commitment Fee

  	
  8

  
	
   

  	
  (e)

  	
  Payments

  	
  8

  
	
  2.2

  	
  2005 TERM LOAN

  	
  8

  
	
   

  	
  (a)

  	
  2005 Term Loan

  	
  8

  
	
   

  	
  (b)

  	
  Use of Proceeds

  	
  8

  
	
   

  	
  (c)

  	
  Commitment Fee

  	
  8

  
	
   

  	
  (d)

  	
  Payments

  	
  8

  
	
  23

  	
  2007 TERM LOAN

  	
  9

  
	
   

  	
  (a)

  	
  2007 Term Loan

  	
  9

  
	
   

  	
  (b)

  	
  Use of Proceeds

  	
  9

  
	
   

  	
  (c)

  	
  Commitment Fee

  	
  9

  
	
   

  	
  (d)

  	
  Payments

  	
  9

  
	
  2.4

  	
  LOAN DOCUMENTS

  	
  9

  
	
  2.5

  	
  REQUESTS FOR ADVANCES

  	
  9

  
	
  2.6

  	
  INTEREST ON THE LOANS

  	
  9

  
	
   

  	
  (a)

  	
  LIBOR Spread

  	
  9

  
	
   

  	
  (b)

  	
  Default Interest

  	
  9

  
	
   

  	
  (c)

  	
  Computation of Interest

  	
  10

  
	
   

  	
  (d)

  	
  Effective Rate

  	
  10

  
	
  2.7

  	
  PAYMENTS

  	
  10

  
	
   

  	
  (a)

  	
  Credit for Principal Payments

  	
  10

  
	
   

  	
  (b)

  	
  Collection of Payments

  	
  10

  
	
   

  	
  (c)

  	
  Taxes Generally

  	
  10

  
	
   

  	
  (d)

  	
  Tax Indemnification

  	
  11

  
	
  2.8

  	
  LENDER’S ACCOUNTING

  	
  11

  
	
  2.9

  	
  APPRAISAL LIMITATION

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3. CONDITIONS PRECEDENT

  	
  11

  
	
  3.1

  	
  CONDITIONS PRECEDENT TO INITIAL EXTENSION OF CREDIT

  	
  11

  
	
  3.2

  	
  CONDITIONS PRECEDENT TO EACH ADVANCE

  	
  12

  
	
  3.3

  	
  ACCOUNT, PLEDGE AND ASSIGNMENT

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4. REPRESENTATIONS AND WARRANTIES

  	
  12

  
	
  4.1

  	
  LEGAL STATUS

  	
  12

  
	
  4.2

  	
  AUTHORIZATION AND VALIDITY

  	
  12

  
	
  4.3

  	
  BORROWER SOLVENCY

  	
  13

  
	
  4.4

  	
  NO VIOLATION

  	
  13

  
	
  4.5

  	
  LITIGATION

  	
  13

  
	
  4.6

  	
  CORRECTNESS OF FINANCIAL STATEMENT

  	
  13

  
	
  4.7

  	
  NO SUBORDINATION

  	
  13

  
	
  4.8

  	
  ERISA

  	
  13

  
							





 


i

















 




	
  4.9

  	
  OTHER OBLIGATIONS

  	
  13

  
	
  4.10

  	
  NO MATERIAL ADVERSE CHANGE

  	
  13

  
	
  4.11

  	
  ACCURACY

  	
  13

  
	
  4.12

  	
  BUSINESS LOAN

  	
  13

  
	
  4.13

  	
  SPECIAL REPRESENTATIONS AND WARRANTIES REGARDING
  HAZARDOUS MATERIALS

  	
  14

  
	
   

  	
  (a)

  	
  Hazardous Materials

  	
  14

  
	
   

  	
  (b)

  	
  Hazardous Materials Laws

  	
  14

  
	
   

  	
  (c)

  	
  Hazardous Materials Claims

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5. COLLATERAL

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6. COVENANTS OF BORROWFR

  	
  14

  
	
  6.1

  	
  PUNCTUAL PAYMENTS

  	
  14

  
	
  6.2

  	
  ACCOUNTING RECORDS

  	
  14

  
	
  6.3

  	
  FINANCIAL STATEMENTS

  	
  14

  
	
  6.4

  	
  COMPLIANCE

  	
  15

  
	
  6.5

  	
  INSURANCE

  	
  15

  
	
  6.6

  	
  TAXES AND OTHER LIABILITIES

  	
  15

  
	
  6.7

  	
  LITIGATION

  	
  15

  
	
  6.8

  	
  NOTICE TO LENDER

  	
  15

  
	
  6.9

  	
  SUBORDINATION OF OTHER LOANS

  	
  15

  
	
  6.10

  	
  FURTHER ASSURANCES

  	
  15

  
	
  6.11

  	
  ASSIGNMENT

  	
  16

  
	
  6.12

  	
  INSPECTIONS

  	
  16

  
	
  6.13

  	
  HAZARDOUS MATERIALS COVENANTS

  	
  16

  
	
   

  	
  (a)

  	
  No Hazardous Activities

  	
  16

  
	
   

  	
  (b)

  	
  Compliance

  	
  16

  
	
   

  	
  (c)

  	
  Notices

  	
  16

  
	
   

  	
  (d)

  	
  Remedial Action

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7. FINANCIAL COVENANTS

  	
  16

  
	
  7.1

  	
  MINIMUM FIXED CHARGE COVERAGE RATIO

  	
  16

  
	
  7.2

  	
  TOTAL FUNDED DEBT

  	
  16

  
	
  7.3

  	
  NET WORTH

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8. NEGATIVE COVENANTS

  	
  17

  
	
  8.1

  	
  USE OF FUNDS

  	
  17

  
	
  8.2

  	
  MATERIAL AGREEMENTS

  	
  17

  
	
  8.3

  	
  ACCOUNTING METHOD

  	
  17

  
	
  8.4

  	
  OTHER INDEBTEDNESS

  	
  17

  
	
  8.5

  	
  MERGER, CONSOLIDATION, TRANSFER OF ASSETS

  	
  17

  
	
  8.6

  	
  GUARANTIES

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9. DEFAULTS AND REMEDIES

  	
  18

  
	
  9.1

  	
  DEFAULT

  	
  18

  
	
  9.2

  	
  ACCELERATION UPON DEFAULT; REMEDIES

  	
  19

  
	
  9.3

  	
  RIGHT OF LENDER TO TAKE CERTAIN ACTIONS; POWER OF
  ATTORNEY

  	
  20

  
	
  9.4

  	
  APPLICATION OF PAYMENTS AFTER DEFAULT

  	
  20

  
	
  9.5

  	
  REPAYMENT OF FUNDS ADVANCED

  	
  20

  
	
  9.6

  	
  RIGHTS CUMULATIVE, NO WAIVER

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10. MISCELLANEOUS PROVISIONS

  	
  21

  
	
  10.1

  	
  AMENDMENTS AND WAIVERS

  	
  21

  
	
  10.2

  	
  INDEMNITY

  	
  21

  
	
  10.3

  	
  FORM OF DOCUMENTS

  	
  21

  





 


ii

















 




	
  10.4

  	
  NO THIRD PARTIES BENEFITED

  	
  21

  
	
  10.5

  	
  NOTICES

  	
  21

  
	
  10.6

  	
  ACTIONS

  	
  22

  
	
  10.7

  	
  RELATIONSHIP OF PARTIES

  	
  22

  
	
  10.8

  	
  DELAY OUTSIDE LENDER’S CONTROL

  	
  23

  
	
  10.9

  	
  ATTORNEYS’ FEES AND EXPENSES; ENFORCEMENT

  	
  23

  
	
  10.10

  	
  IMMEDIATELY AVAILABLE FUNDS

  	
  23

  
	
  10 11

  	
  SUCCESSORS AND ASSIGNS

  	
  23

  
	
   

  	
  (a)

  	
  Generally

  	
  23

  
	
   

  	
  (b)

  	
  Lender Assignments, Participations

  	
  23

  
	
  10.12

  	
  SETOFF

  	
  23

  
	
  10.13

  	
  CAPITAL ADEQUACY

  	
  23

  
	
  10.14

  	
  LENDER’S AGENTS

  	
  24

  
	
  10.15

  	
  WAIVER OF RIGHT TO TRIAL BY JURY

  	
  24

  
	
  10.16

  	
  SEVERABILITY

  	
  24

  
	
  10.17

  	
  HEIRS, SUCCESSORS AND ASSIGNS

  	
  24

  
	
  10.18

  	
  TIME

  	
  24

  
	
  10.19

  	
  HEADINGS

  	
  25

  
	
  10.20

  	
  GOVERNING LAW

  	
  25

  
	
  10.21

  	
  INTEGRATION; INTERPRETATION

  	
  25

  
	
  10.22

  	
  JOINT AND SEVERAL LIABILITY OF BORROWING PARTIES

  	
  25

  
	
  10.23

  	
  COUNTERPARTS

  	
  25

  
	
  10.24

  	
  CONFIDENTIALITY PROVISION

  	
  25

  
	
  10.25

  	
  SURVIVAL OF REPRESENTATIONS

  	
  25

  
	
  10.26

  	
  NO BORROWER SET-OFF

  	
  25

  
	
  10 27

  	
  STATUTE OF FRAUDS

  	
  26

  
	
  10.28

  	
  BROKERS

  	
  26

  
	
  10.29

  	
  INCONSISTENCIES WITH THE LOAN DOCUMENTS

  	
  26

  
	
  10.30

  	
  INTERPRETATION

  	
  26

  
	
  10.31

  	
  ACTIONS BY LENDER

  	
  26

  
	
  10.32

  	
  PATRIOT ACT NOTIFICATION

  	
  26

  





 


iii

















 




AMENDED AND
RESTATED

CREDIT AGREEMENT




 




THIS AMENDED AND RESTATED CREDIT AGREEMENT
(“Agreement”) is entered into as of November 19, 2007, by and between CONSONUS
ACQUISITION CORP., a Delaware corporation (“Borrower”), and U.S. BANK NATIONAL
ASSOCIATION (“Lender”).




 




RECITALS




 




A.       Borrower
and Lender entered into that certain Credit Agreement, dated as of May 31, 2005
(the “Original Credit Agreement”), pursuant to which Lender extended to
Borrower (i) a term loan (the “2005 Term Loan”) in the original principal
amount of Ten Million Five Hundred Thousand Dollars ($10,500,000.00); and (ii)
a revolving line of credit (the “Line of Credit”) in the maximum principal
amount of Two Million Five Hundred Thousand Dollars ($2,500,000.00).




 




B.        Borrower
has requested a new term loan in the amount of One Million Eight Hundred
Sixty-One Thousand Dollars ($1,861,000.00) (the “2007 Term Loan”) to finance
the costs of retrofitting an existing warehouse, located at 2282 South
Presidents Drive, Salt Lake City, Utah, for use as a data center, and the costs
of equipment for use in the data center.




 




C.        Borrower
and Lender desire to amend and restate the Original Credit Agreement to provide
for the 2007 Term Loan. This Agreement amends, restates and supercedes the
Original Credit Agreement in its entirety.




 




NOW, THEREFORE, Borrower and Lender agree as follows:




 




ARTICLE
1. DEFINITIONS




 




1.1      DEFINED TERMS. The
following capitalized terms generally used in this Agreement shall have the
meanings defined or referenced below. Certain other capitalized terms used only
in specific sections of this Agreement are defined in such sections.




 




“Accommodation Obligations” - means any Indebtedness
or other contractual obligation or liability, contingent or otherwise, of
another Person in respect of which Borrower is liable, including, without
limitation, any such Indebtedness, obligation or liability directly or
indirectly guaranteed, endorsed (otherwise than for collection or deposit in
the ordinary course of business), co-made or discounted or sold with recourse
by Borrower, or in respect of which Borrower is otherwise directly or
indirectly liable (including each partnership in which Borrower has a general
partnership interest), contractual obligations (contingent or otherwise)
arising through any agreement to purchase, repurchase or otherwise acquire such
Indebtedness, obligation or liability or any security therefor, or to provide
funds for the payment or discharge thereof (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or to maintain
solvency, assets, level of income, or other financial condition, or to make
payment other than for value received.




 




“Account” - means an account with Lender,
account number 153195007668, in the name of Borrower or Borrower’s designee
into which proceeds of Advances under the Line of Credit will be deposited.




 




“Advance” - means any advance under any of the
Loans made or to be made to Borrower as provided in this Agreement.




 


1

















 




“Affiliate” - means, with respect to any
Person, means any other Person directly or indirectly controlling, controlled
by, or under common control with, that Person. For purposes of this definition,
“control” (including, with correlative meanings, the terms “controlling,”
“controlled by” and “under common control with”), as applied to any Person,
means (a) the possession, directly or indirectly, of the power to vote fifty
percent (50%) or more of the Securities having voting power for the election of
directors of such Person or otherwise to direct or cause the direction of the
management and policies of that Person, whether through the ownership of voting
Securities or by contract or otherwise, or (b) the ownership of fifty percent
(50%) or more of the outstanding general partnership or other ownership
interests of such Person.




 




“Agreement” - shall have the meaning ascribed
to such term in the preamble hereto.




 




“Applicable LIBOR Rate” - is the rate of
interest, rounded upward to the nearest whole one-thousandth of one percent,
equal to the sum of: (a) the LIBOR Spread plus (b) the LIBOR Rate.




 




“Bankruptcy Code” - means the Bankruptcy Reform
Act of 1978 (11 U.S.C. § 101-1330) as now or hereafter amended or recodified.




 




“Borrower” - means CONSONUS ACQUISITION CORP.,
a Delaware corporation.




 




“Business Day” - means any day except a
Saturday, Sunday or any other day on which commercial banks in Utah are authorized
or required by law to close. Unless specifically referenced in this Agreement
as a Business Day, all references to “days” shall be to calendar days.




 




“Calendar Month” - means the 12 calendar months
of the year.




 




“Code” - means the United States Internal
Revenue Code of 1986, as amended from time to time.




 




“Collateral” - means the Personal Property and
the Real Property.




 




“Commitment” - means Lender’s obligation to
make the Loans, in an amount up to, but not exceeding the respective maximum
principal amounts of the Loans.




 




“Default” - shall have the meaning ascribed to
such term in Section 9.1.




 




“Default Rate” - shall mean a rate of interest
per annum two percent (2%) in excess of the Applicable LIBOR Rate in effect
from time to time.




 




“Dollars; $” - means United States dollars.




 




“EBITDA” - means net profit before tax plus
interest expense (net of capitalized interest expense), depreciation expense
and amortization expense.




 




“Effective Rate” - shall have the meaning given
such term in Section 2.6(e).




 




“ERISA” - means the Employee Retirement Income
Security Act of 1974, as amended or recodified from time to time.




 




“GAAP” - means generally accepted accounting
principles as consistently applied through all relevant periods.




 


2

















 




“Governmental Authority” - means any nation or
government, any federal, state, local, municipal or other political subdivision
thereof or any entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government.




 




“Hazardous Materials” - means any oil,
flammable explosives, asbestos, urea formaldehyde insulation, radioactive
materials, hazardous wastes, toxic or contaminated substances or similar
materials, including, without limitation, any substances which are “hazardous
substances,” “hazardous wastes,” “hazardous materials,” “toxic substances,”
“wastes,” “regulated substances,” “industrial solid wastes,” or “pollutants”
under the Hazardous Materials Laws, and/or other applicable environmental laws,
ordinances and regulations. “Hazardous Materials” shall not include
commercially reasonable amounts of such materials used in the ordinary course
of operation of real property which are used and stored in accordance with all
applicable environmental laws, ordinances and regulations.




 




“Hazardous Materials Claims” - means all claims
or actions by any governmental entity or agency or by any other person or
entity relating to Hazardous Materials or pursuant to the Hazardous Materials
Laws.




 




“Hazardous Materials Laws” - means all
applicable laws, ordinances and regulations relating to Hazardous Materials,
including, without limitation: the Clean Air Act, as amended, 42 U.S.C. Section
7401 et  seq.; the Federal Water Pollution Control
Act, as amended, 33 U.S.C. Section 1251 et
seq.; the Resource Conservation
and Recovery Act of 1976, as amended, 42 U.S.C. Section 6901 et  seq.;
the Comprehensive Environment Response, Compensation and Liability
Act of 1980, as amended (including the Superfund Amendments and Reauthorization
Act of 1986, “CERCLA”), 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, as amended, 15
U.S.C. Section 2601 et seq.; the Occupational Safety and
Health Act, as amended, 29 U.S.C. Section 651, the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of
1977, as amended, 30 U.S.C. Section 801 et
seq.; the Safe Drinking Water
Act, as amended, 42 U.S.C. Section 300f et
seq.; and all comparable state and
local laws, laws of other jurisdictions or orders and regulations.




 




“Impositions” means all (a) real estate and
personal property taxes and other taxes and assessments, water and sewer rates
and charges and all other governmental charges and any interest or costs or
penalties with respect thereto and charges for any restrictive covenants or any
other easement or agreement maintained for the benefit of any Real Property,
general and special, ordinary and extraordinary, foreseen and unforeseen, of
any kind and nature whatsoever which at any time may be assessed, levied or
imposed upon any land or improvements, or the rent or income received
therefrom, or any use or occupancy thereof, and (b) other Taxes levied, imposed
or assessed upon or against the Borrower or any of its properties.




 




“Indebtedness” - means (after consolidation
adjustments, if necessary, to avoid redundancy) (a) all indebtedness,
obligations or other liabilities for borrowed money, whether or not
subordinated and whether with or without recourse beyond any collateral
security; (b) all indebtedness, obligations or other liabilities evidenced by
securities or other similar instruments; (c) all reimbursement obligations and
other liabilities with respect to letters of credit (except for those undrawn
letters of credit which support future ordinary course, non-indebtedness
obligations) or banker’s acceptances; (d) all obligations to pay the purchase
price of real or personal property or services (offset by the fair value of
such property or services); (e) all obligations in respect of both operating
and capital leases; (f) all Accommodation Obligations; (g) all indebtedness,
obligations or other liabilities of any Person secured by a Lien on any asset
of Borrower, whether or not such indebtedness, obligations or liabilities are
assumed by, or are a personal liability of, Borrower (including, without
limitation, the principal amount of any assessment or similar indebtedness
encumbering any property); (h) all indebtedness, obligations or other liabilities
(other than interest expense liability) in respect of interest rate hedge, swap
or similar contracts and foreign currency exchange agreements; and (i) without
duplication or




 


3

















 




limitation, all liabilities and other obligations
included in the financial statements (or notes thereto) of Borrower as prepared
in accordance with GAAP.




 




“Lender” – means U.S. Bank National
Association.




 




“LIBOR Rate” – is the rate of interest equal to
the one-month LIBOR rate quoted by Lender from Telerate Page 3750 or any
successor thereto, which shall be that one-month LIBOR rate in effect two (2)
New York Banking Days prior to the beginning of each calendar month, adjusted
for any reserve requirement and any subsequent costs arising from a change in
government regulation, such rate to be reset at the beginning of each
succeeding month. If the initial Advance occurs other than on the first day of
the month, the initial one-month LIBOR Rate shall be that one-month LIBOR Rate
in effect two (2) New York Banking Days prior to the date of the initial
Advance, which rate plus the percentage described above shall be in effect the
remaining days of the month of the initial Advance, such one-month LIBOR rate
to be reset at the beginning of each succeeding month. Lender’s internal
records of applicable interest rates shall be determinative in the absence of
manifest error.




 




“LIBOR Spread” – shall be as defined in Section
2.6 (b) below.




 




“Involuntary Lien” – means any Lien securing
the payment of money or the performance of any other obligation created
involuntarily under any law, ordinance, regulation, or rule, or otherwise and
any claim of any such Lien.




 




“Lien” – means, except for Permitted Exceptions
and tenant leases entered into by Borrower upon commercially reasonable terms,
each and all of the following:




 




(a) Any lease or other right to occupy or use;




 




(b) Any assignment as security, mortgage, deed of
trust, conditional sale for security purposes, grant in trust, lien, mortgage,
pledge, security interest, security agreement, title retention arrangement,
other encumbrance, or other interest or right securing the payment of money or
the performance of any other liability or obligation, whether voluntarily or
involuntarily created (including, without limitation, Involuntary Liens) and
whether arising by agreement, document, or instrument, under any law,
ordinance, regulation, or rule (federal, state, or local), or otherwise; and




 




(c) Any option, right of first refusal, or other
interest or right.




 




“Line of Credit” – means the principal sum that
Lenders agree to make available to Borrower on a revolving line of credit basis
and Borrower agrees to borrow pursuant to the terms and conditions of this
Agreement: TWO MILLION FIVE HUNDRED THOUSAND AND 00/100THS DOLLARS
($2,500,000.00).




 




“Line of Credit Availability” – shall mean the
principal amount under the Line of Credit available to be Advanced to Borrower
from time to time as determined by Section 2.1(b) of this Agreement.




 




“Line of Credit Maturity Date” – means May 31,
2010.




 




“Line of Credit Note” – means a revolving line
of credit promissory note of the Borrower payable to the order of Lender in a
principal amount equal to the Line of Credit as originally in effect and
otherwise duly completed, as hereafter amended, supplemented, replaced or
modified.




 




“Loans” – means the Line of Credit, the 2005
Term Loan, and the 2007 Term Loan, collectively.




 


4

















 




“Loan Documents” – means those documents, as
hereafter amended, supplemented, replaced or modified, properly executed and in
recordable form, if necessary, listed in Exhibit A as Loan Documents.




 




“Net Worth” – means: (a) the total assets of
Borrower as determined in accordance with GAAP and as reflected on the most
recent financial statements for Borrower as delivered to Lender in accordance
with Section 6.3, less, (b)
all assets of Borrower which are either (i) non-qualified deferred compensation
plan assets contributed under Section 401 (k) of the Code and related
provisions and regulations or (ii) non-qualified deferred compensation plan
assets contributed under Section 457 the Code and related provisions and
regulations, and less (c) the
total liabilities of Borrower, excluding Borrower’s liabilities under the
Questar Note, as determined in accordance with GAAP, and as reflected on the
most recent financial statements for Borrower as delivered to Lender in
accordance with Section 6.3.




 




“New Data Center” – means the facility, located
at 2282 South Presidents Drive, Salt Lake City, Utah, to be retrofitted as a
data center using proceeds of the 2007 Term Loan.




 




“New York Banking Day” – means any day (other
than a Saturday or Sunday) on which commercial banks are open for business in
New York, New York.




 




“Obligations” – means all present and future
obligations and liabilities of Borrower of every type and description arising
under or in connection with this Agreement, the Note and the other Loan
Documents due or to become due to the Lenders or any Person entitled to
indemnification, or any of their respective successors, transferees or assigns,
whether for principal, interest, fees, expenses, indemnities or other amounts
(including reasonable attorneys’ fees and expenses) and whether due or not due,
direct or indirect, joint and/or several, absolute or contingent, voluntary or
involuntary, liquidated or unliquidated, determined or undetermined, and
whether now or hereafter existing, renewed or restructured, whether or not from
time to time decreased or extinguished and later increased, created or
incurred, whether or not arising after the commencement of a proceeding under
the Bankruptcy Code (including post-petition interest) and whether or not
allowed or allowable as a claim in any such proceeding, and whether or not
recovery of any such obligation or liability may be barred by a statute of
limitations or such obligation or liability may otherwise be unenforceable.




 




“Other Related Documents” – means those
documents, as hereafter amended, supplemented, replaced or modified from time
to time, properly executed and in recordable form, if necessary, listed in Exhibit
A as Other Related Documents.




 




“Permitted Exceptions” – means: (a) Liens for
Impositions that are not delinquent; (b) Involuntary Liens (other than for
Impositions) with respect to which Borrower satisfies each of the following
requirements; (i) Borrower contests the validity of such Involuntary Lien in
good faith by appropriate legal proceedings, (ii) Borrower gives written notice
to Lender of Borrower’s intent to contest or object to the same, (iii) Borrower
demonstrates to Lender’s satisfaction that the procedures will conclusively
operate to prevent the sale of any property owned by Borrower to satisfy the
Involuntary Lien prior to final determination of such proceedings, and (iv)
Borrower takes any and all other reasonable actions (including, without
limitation, obtaining bonds, title insurance endorsements, or other security)
as Lender may deem necessary or appropriate in order to prevent the sale of any
of the Real Estate to satisfy the Involuntary Lien and prevent any impairment
of any of the Real Estate; (c) the sale, transfer, or other disposition of any
personal property that is consumed or worn out in ordinary usage and that is
promptly replaced with similar items of equal or greater value; (d) any Lien in
favor of Lender for the benefit of the Lenders; (e) matters customarily shown
as standard, pre-printed exceptions in a title insurance policy in the
jurisdiction where any of the Real Estate is located; (f) all covenants,
conditions, easements, right-of-ways, reservations and restrictions now of
record on any of the Real Estate; (g) any Lien arising after the date hereof
and approved by Lender in writing; (h) Liens arising in the ordinary course of
Borrower’s business in amounts not to exceed $50,000.00 for any single Lien and




 


5

















 




$150,000.00 for all such Liens in the aggregate; and
(i) any other Liens consented to by Lender in advance in writing from time to
time in its sole and absolute discretion.




 




“Person” – means any natural person,
corporation, limited partnership, general partnership, joint stock company,
limited liability company, limited liability partnership, joint venture,
association, company, trust, bank, trust company, land trust, business trust or
other organization, whether or not a legal entity, or any other
non-governmental entity, or any Governmental Authority.




 




“Personal Property” – means the personal
property owned by Borrower and pledged to Lender as security for the Loans, as
more particularly described in the Security Agreement.




 




“Questar” - means Questar Corporation and its
Affiliates.




 




“Questar Note” – means the subordinated
promissory note dated May 31, 2005, payable from Borrower to the order of
Questar in a principal amount not in excess of Three Million Five Hundred Fifty
Thousand Dollars ($3,550,000.00).




 




“Rate Management Obligations” means any and all
obligations of the Borrower, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor), under (i) any
and all Rate Management Transactions, and (ii) any and all cancellations, buy
backs, reversals, terminations or assignments of any Rate Management
Transactions.




 




“Rate Management Transaction” means any
transaction (including an agreement with respect thereto) now existing or
hereafter entered into by the Borrower which is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity or equity
index swap, equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction, cross-currency
rate swap transaction, currency option or any other similar transaction
(including any option with respect to any of these transactions) or any
combination thereof, whether linked to one or more interest rates, foreign
currencies, commodity prices, equity prices or other financial measures.




 




“Real Estate” – means the real property and
improvements owned or leased by Borrower and pledged to Lender as security for
the Loan pursuant to the Real Estate Security Instruments, as such real
property and improvements are more particularly described in the Real Estate
Security Instruments.




 




“Real Estate Security Instruments” – means the
deeds of trust, assignment of leases and other documents or instruments
executed by Borrower in favor of Lender with respect to the Real Estate and
referenced as Loan Documents on Exhibit A.




 




“Security Agreement” – means the Security
Agreement of even date herewith, executed by Borrower in favor of Lender and
granting to Lender a first priority security interest in the collateral
described therein.




 




“Security Instruments” – means (i) the Security
Agreement; (ii) the Real Estate Security Instruments, and (iii) any other
documents or instrument, including without limitation UCC-1 Financing Statements
granted Lender a security interest in Borrower’s property as collateral for
repayment of the Loans, each of even date herewith.




 




“Taxes” – are, collectively, all withholdings,
interest equalization taxes, stamp taxes or other taxes (except income and
franchise taxes) imposed by any domestic or foreign Governmental Authority.




 




“Total Funded Debt Ratio” – shall have the
meaning given it in Section 7.2.




 


6

















 




“2005 Term Loan” - means the principal sum that
Lender has loaned to Borrower on a term loan basis and Borrower has borrowed
pursuant to the terms and conditions of this Agreement: TEN MILLION FIVE
HUNDRED THOUSAND AND 00/100THS DOLLARS ($10,500,000.00).




 




“2005 Term Loan Maturity Date” - means May 31,
2012.




 




“2005 Term Note” - means a promissory note of
the Borrower, dated May 31, 2005, payable to the order of Lender in the
principal amount of the 2005 Term Loan, as hereafter amended, supplemented,
replaced or modified.




 




“2007 Term Loan” - means the principal sum that
Lender agrees to make available to Borrower on a term loan basis and Borrower
agrees to borrow pursuant to the terms and conditions of this Agreement: ONE
MILLION EIGHT HUNDRED SIXTY-ONE THOUSAND AND 00/100THS DOLLARS ($1,861,000.00).




 




“2007 Term Loan Maturity Date” - means November
19, 2014.




 




“2007 Term Note” - means a promissory note of
the Borrower, of even date herewith, payable to the order of Lender in the
principal amount of the 2007 Term Loan, as hereafter amended, supplemented, replaced
or modified.




 




“Unmatured Default - means any event, omission
or failure of a condition which would constitute a Default after notice or
lapse of time, or both.




 




1.2      EXHIBITS INCORPORATED.
Exhibits A and B, all attached hereto, are hereby incorporated into
this Agreement.




 




ARTICLE
2. LOANS




 




2.1      LINE OF CREDIT




 




(a)       Line of Credit. By
and subject to the terms of this Agreement, Lender agrees to make Advances to
Borrower until but excluding the Maturity Date, and Borrower agrees to borrow
from Lender, an aggregate principal sum up to, but not exceeding, the Line of
Credit, said sum to be evidenced by the Line of Credit Note of even date
herewith. Borrower may from time to time prior to the Line of Credit Maturity
Date borrow and partially or wholly repay its outstanding borrowings on a
revolving basis, and reborrow, subject to all the limitations, terms and
conditions contained herein; provided however, that the total outstanding
borrowings under the Line of Credit shall not at any time exceed the maximum principal
amount available under the Line of Credit. Although the outstanding principal
balance of the Line of Credit Note may be zero from time to time, the Loan
Documents will remain in full force and effect with respect to the Line of
Credit until the Line of Credit Maturity Date or all Obligations relating to
the Line of Credit are paid and performed in full. Upon the occurrence of any
Default or Unmatured Default, Lender may suspend or terminate its Commitment to
make Advances of the proceeds of the Line of Credit in accordance with this
Agreement without further action or notice to Borrower. Advances under the Line
of Credit shall be evidenced by the Line of Credit Note.




 




(b)      Restriction on Availability. The Line
of Credit Availability during each fiscal quarter of Borrower shall be
determined as set forth in this Section (with changes to the Line of Credit
Availability being effective the next fiscal quarter). As used in this
Agreement, the term “Total Leverage” shall be the Total Funded Debt Ratio as determined
in Section 7.2 below, so if the Total Funded Debt Ratio is 4.0 to 1, the “Total
Leverage” for purposes of this Section is 4.0. In addition, if the Total
Leverage in a succeeding fiscal quarter of Borrower exceeds the Total Leverage
in a prior fiscal quarter of Borrower, the Line of




 


7

















 




Credit Availability will be reduced in accordance with
the formula set forth in this Section (so, for example, if Borrower’s Total
Leverage in the first fiscal quarter of 2006 is 3.6, and the Line of Credit
Availability during the next fiscal quarter is $1,750,000, if Borrower’s Total
Leverage increases to 4.0 in the second fiscal quarter of 2006, the Line of
Credit Availability during the next fiscal quarter shall be reduced to
$1,500,000).




 




	
  Total Leverage

  	
   

  	
  Line of Credit Availability

  	
   

  
	
  3 4.0

  	
   

  	
  $

  	
  1,500,000

  	
   

  
	
  3 3.5 < 4.0

  	
   

  	
  $

  	
  1,750,000

  	
   

  
	
  > 3.0 < 3.5

  	
   

  	
  $

  	
  2,000,000

  	
   

  
	
  £3.0

  	
   

  	
  $

  	
  2,500,000

  	
   

  





 




(c)       Use of Proceeds. The proceeds under the
Line of Credit shall be used to acquire the Assets and for the working capital
needs of Borrower.




 




(d)      Unused Commitment Fee. Borrower shall
pay to Lender a fee equal to the percent amount per annum (computed on the
basis of a 360-day year, actual days elapsed) specified in Section 2.6(b) below
on the average daily unused amount of the Line of Credit Availability, which
fee shall be calculated on a quarterly basis by Lender and shall be debited by
Lender from the Account on the first day of each calendar quarter, commencing
on October 1, 2005.




 




(e)       Payments. Interest accrued under the
Line of Credit is payable beginning on July 1, 2005 and on the same date of
each consecutive month thereafter, plus a final interest payment with the final
payment of principal. All principal outstanding under the Line of Credit shall
be repaid in full on the Line of Credit Maturity Date.




 




2.2      2005 TERM LOAN.




 




(a)       2005 Term Loan. By
and subject to the terms of this Agreement, Lender loaned to Borrower and
Borrower borrowed from Lender, the 2005 Term Loan, which loan is evidenced by
the 2005 Term Loan Note.




 




(b)      Use of Proceeds. The proceeds under the
2005 Term Loan shall be used solely by Borrower to acquire the Assets and for
the working capital needs of Borrower.




 




(c)       Commitment Fee. Borrower paid to Lender
a non-refundable commitment fee for the 2005 Term Loan equal to one half of one
percent (.5%) of the amount of the 2005 Term Loan, namely Fifty-Two Thousand
Five Hundred Dollars ($52,500.00).




 




(d)      Payments. Interest accrued on the 2005
Term Loan shall be due and payable on the first Business Day of each calendar
month. Borrower shall make payments to reduce the outstanding principal
outstanding on the 2005 Term Loan commencing on the first Business Day of each
calendar month until the 2005 Term Loan Maturity Date, at which time all
outstanding principal and interest under the 2005 Term Loan, together with all
amounts due hereunder with respect to the 2005 Term Loan, shall be due and
payable in full. Any principal repaid under the 2005 Term Loan may not be
reborrowed. Commencing on July 1, 2005 and continuing until July 1, 2007,
Borrower shall make principal payments (as determined by Lender) sufficient to
amortize the outstanding principal under the Term Loan in twenty-five (25)
years. Commencing on August 1, 2007 and continuing through the Term Loan
Maturity Date, Borrower shall make principal payments (as determined by Lender)
sufficient to amortize the outstanding principal under the Term Loan in twenty
(20) years.




 


8

















 




2.3      2007 TERM LOAN.




 




(a)       2007 Term Loan. By
and subject to the terms of this Agreement, Lender agrees to lend to Borrower
and Borrower agrees to borrow from Lender, an aggregate principal sum up to,
but not exceeding, the 2007 Term Loan, said loan to be evidenced by the 2007
Term Loan Note of even date herewith.




 




(b)      Use of Proceeds. The proceeds under the
2007 Term Loan shall be used solely by Borrower to pay costs incurred in
retrofitting the New Data Center.




 




(c)       Commitment Fee. Borrower shall pay to
Lender on the date hereof a non-refundable commitment fee for the 2007 Term
Loan equal to one half of one percent (.5%) of the amount of the 2007 Term
Loan, namely Nine Thousand Three Hundred Five Dollars ($9,305.00).




 




(d)      Payments. Interest accrued on the Loans
shall be due and payable on the first Business Day of December, 2007 and on the
first Business Day of each calendar month thereafter. Borrower shall make
payments of principal in amounts (as determined by Lender) sufficient to fully
amortize the 2007 Term Loan in seven (7) years, commencing on the first
Business Day in December, 2007, through the 2007 Term Loan Maturity Date, at
which time all outstanding principal and interest under the 2007 Term Loan
shall be due and payable in full. Any principal repaid under the 2007 Term Loan
may not be reborrowed.




 




2.4      LOAN DOCUMENTS. Borrower
shall deliver to Lender concurrently with this Agreement each of the documents,
properly executed and in recordable form, as applicable, described in Exhibit
A as Loan Documents, together with those documents described in Exhibit
A as Other Related Documents, except those documents that were previously
delivered.




 




2.5      REQUESTS FOR ADVANCES.
All requests for Advances shall be pursuant to the draw request form
attached hereto as Exhibit B (a “Draw Request”). For purposes of
requesting Advances pursuant to this Section, Lender is authorized to rely upon
the telephonic request and acceptance of Nana Baffour as Borrower’s duly
authorized agent, or such additional authorized agents as Borrower shall
designate in writing to Lender. Borrower’s telephonic notices, requests and
acceptances shall be directed to such officers of Lender as Lender may from
time to time designate.




 




2.6      INTEREST ON THE LOANS.




 




(a)       LIBOR Spread. The
LIBOR Spread to be used in calculating the Applicable LIBOR Rate with respect
to interest accruing on the Loans shall be determined as follows:




 




	
  Total Leverage

  	
   

  	
  LIBOR Spread

  	
   

  	
  Line of Credit Unused

  Commitment Fee

  	
   

  
	
  3 3.0

  	
   

  	
  2.60

  	
  %

  	
  0.500

  	
  %

  
	
  3 2.5 < 3.0

  	
   

  	
  2.25

  	
  %

  	
  0.500

  	
  %

  
	
  3 2.0 < 2.5

  	
   

  	
  2.00

  	
  %

  	
  0.375

  	
  %

  
	
  3 1.5 < 2.0

  	
   

  	
  1.75

  	
  %

  	
  0.375

  	
  %

  
	
  < 1.5

  	
   

  	
  1.50

  	
  %

  	
  0.250

  	
  %

  





 




(b)      Default Interest. Notwithstanding the
rates of interest specified in Sections 2.6(e) below, effective
immediately upon the occurrence and during the continuance of any Default, the
principal balance of the Loans then outstanding and, to the extent permitted by
applicable law, any interest payments on the Loans not paid when due, shall, at
the option of Lender, bear interest payable upon demand at the Default Rate.
All other amounts due Lender (whether directly or for reimbursement) under this
Agreement or any of the other Loan Documents if not paid when due, or if no
time period is expressed, if not paid within ten (10) days after demand, shall
likewise, at the option of Lender, bear interest from and after demand at the
Default Rate.




 


9

















 




(c)       Computation of Interest.
Interest shall be computed on the basis of the actual number of days
elapsed in the period during which interest or fees accrue and a year of three
hundred sixty (360) days. In computing interest on the Loans, the date of the
making of an Advance under the Loans shall be included and the date of payment
shall be excluded. Notwithstanding any provision in this Section 2.6,
interest in respect of the Loans shall not exceed the maximum rate permitted by
applicable law.




 




(d)      Effective Rate. The “Effective Rate”
upon which interest shall be calculated for the Loans shall be one or more of
the following:




 




(i)        Provided
no Default exists under this Agreement, the Effective Rate shall be the
Applicable LIBOR Rate.




 




(ii)       During
such time as a Default exists under this Agreement, or from and after the date
on which all sums owing under the Loans become due and payable by acceleration
or otherwise, then at the option of Lender, the interest rate applicable to the
then outstanding principal balance of the Loans shall be the Default Rate.




 




2.7      PAYMENTS.




 




(a)       Credit for Principal Payments. Any
payment made upon the outstanding principal balance of the Loans shall be
credited as of the Business Day received, provided such payment is received by
Lender no later than noon (Mountain Standard Time or Mountain Daylight Time, as
applicable) and constitutes immediately available funds. All payments due to
Lender under this Agreement, whether at the Maturity Date or otherwise, shall
be paid in immediately available funds. Any principal payment received after
said time or which does not constitute immediately available funds shall be
credited upon such funds having become unconditionally and immediately
available to Lender.




 




(b)      Collection of Payments. Borrower
authorizes Lender to collect all principal, interest, fees and other charges
due under the Loan Documents by charging the Account, or any other deposit
account maintained by Borrower with Lender, for the full amount thereof. Should
there be insufficient funds in the Account to pay all such sums when due, the
full amount of such deficiency shall be immediately due and payable by
Borrower.




 




(c)       Taxes Generally. All payments by the
Borrower of principal of, and interest on, the Loans and all other Obligations
shall be made free and clear of and without deduction for any present or future
excise, stamp or other Taxes, fees, duties, levies, imposts, charges,
deductions, withholdings or other charges of any nature whatsoever imposed by
any Governmental Authority, but excluding (i) franchise Taxes, (ii) any Taxes
(other than withholding taxes) that would not be imposed but for a connection
between Lender and the jurisdiction imposing such Taxes (other than a
connection arising solely by virtue of the activities of Lender pursuant to or
in respect of this Agreement or any other Loan Document), (iii) any Taxes
imposed on or measured by any Lender’s assets, net income, receipts or branch
profits, and (iv) any Taxes arising after May 31, 2005 solely as a result of or
attributable to a Lender changing its designated lending office after the date
such Lender becomes a party hereto. If any withholding or deduction from any
payment to be made by the Borrower hereunder is required in respect of any
Taxes pursuant to any applicable law, then the Borrower will:




 




(i)        pay
directly to the relevant Governmental Authority the full amount required to be
so withheld or deducted;




 


10

















 




(ii)       promptly
forward to the Lender an official receipt or other documentation satisfactory
to the Lender evidencing such payment to such Governmental Authority; and




 




(iii)      pay to Lender for its account or the account of
the applicable Lender, as the case may be, such additional amount or amounts as
is necessary to ensure that the net amount actually received by Lender will
equal the full amount that Lender would have received had no such withholding
or deduction been required.




 




(d)      Tax Indemnification. If the Borrower
fails to pay any Taxes when due to the appropriate Governmental Authority or
fails to remit to Lender for its account the required receipts or other
required documentary evidence, the Borrower shall indemnify Lender for any
incremental Taxes, interest or penalties that may become payable by Lender as a
result of any such failure. For purposes of this Section, a distribution
hereunder by Lender shall be deemed a payment by the Borrower.




 




2.8      LENDER’S ACCOUNTING. Lender
shall maintain a loan account (the “Loan Account”) on its books in which shall
be recorded all Advances and repayments of principal and payments of accrued
interest, as well as payments of fees required to be paid pursuant to this
Agreement. All entries in the Loan Account shall be made in accordance with
Lender’s customary accounting practices as in effect from time to time. Monthly
or at such other interval as is customary with Lender’s practice, Lender will
render a statement of the Loan Account to Borrower. Each such statement shall
be deemed final, binding and conclusive upon Borrower in all respects as to all
matters reflected therein (absent manifest error).




 




2.9      APPRAISAL LIMITATION.
The aggregate amount of the Loans is subject to the following appraisal
limitation: 85% of the appraised value of the Real Property; 85% of the book
value Borrower’s accounts receivable, 50% of the book value of any equipment
owned by Borrower and 50% of the book value of any generators owned or acquired
by Borrower (the “Appraised Value Limitation”). Lender, from time to time while
the Loan remains outstanding, may determine the Appraised Value Limitation, and
if the outstanding principal of the Loans exceeds such Appraised Value Limitation,
require Borrower to reduce the outstanding principal of the Loans to comply
with the Appraised Value Limitation within one (1) year of Lenders’ request.
Failure of Borrower to so reduce the outstanding principal of the Loans within
such one (1) year period shall be deemed a Default.




 




ARTICLE
3. CONDITIONS PRECEDENT




 




3.1      CONDITIONS PRECEDENT TO
INITIAL EXTENSION OF CREDIT. The obligation of Lender to extend any
credit contemplated by this Agreement is subject to the fulfillment to Lender’s
satisfaction of all of the following conditions:




 




(a)       There
shall exist no Default, as defined in this Agreement, or Default as defined in
any of the other Loan Documents or in the Other Related Documents, or Unmatured
Default; and




 




(b)      Lender
shall have received all Loan Documents, other documents, instruments, policies,
and forms of evidence or other materials reasonably requested by Lender under
the terms of this Agreement or any of the other Loan Documents; and




 




(c)       There
shall have been no material adverse change, as reasonably determined by Lender,
in the financial condition or business of Borrower, nor any material decline,
as reasonably determined by Lender, in the market value of a substantial or
material portion of the assets of Borrower; and




 


11

















 




(d)      Borrower
shall have delivered to Lender evidence of insurance coverage on all Borrower’s
property, in form, substance, amounts, covering risks and issued by companies
reasonably satisfactory to Lender, with loss payable endorsements in favor of
Lender; and




 




(e)       With
respect to any advances under the 2007 Term Loan, Borrower shall have delivered
to Lender (i) a fully executed Assignment and Assumption of Lease in form
approved by Lender, pursuant to which Borrower has received an assignment of
the interests of the tenant under a lease dated July 22, 2004 pertaining to the
New Data Center (the “Lease”); (ii) a Collateral Assignment of Lease,
Attornment and Nondisturbance Agreement in a form provided by Lender, executed
by Borrower and by Boyd Enterprises Utah, L.L.C. as the landlord under the
Lease; and (iii) a Landlord’s Estoppel Certificate and Agreement, in a form
provided by Lender, executed by Boyd Enterprises Utah, L.L.C.




 




(f)       With
respect to any advances under the 2007 Term Loan, Borrower shall have deposited
into an account with Lender, identified as account no. 153195055956, an amount
equal to rent due under the Lease for one (1) month.




 




3.2      CONDITIONS PRECEDENT TO
EACH ADVANCE. Lender’s obligation to make each Advance or take any
other action under the Loan Documents shall be subject at all times to
satisfaction of each of the following conditions precedent:




 




(a)       The
representations and warranties contained herein and in each of the other Loan
Documents shall be true on and as of the date of the signing of this Agreement
and on the date of each Advance by Lender pursuant hereto, with the same effect
as though such representations and warranties had been made on and as of each
such date, and on each such date, no Default or Unmatured Default, shall have
occurred and be continuing or shall exist; and




 




(b)      Lender
shall have received all additional documents which may be required in
connection with such Advance.




 




3.3      ACCOUNT, PLEDGE AND
ASSIGNMENT. All Advances under the Loans shall be deposited into the
Account or otherwise disbursed to or for the benefit or account of Borrower
under the terms of this Agreement. As additional security for Borrower’s
performance under the Loan Documents, Borrower hereby irrevocably pledges and
assigns to Lender all monies at any time deposited in the Account.




 




ARTICLE
4. REPRESENTATIONS AND WARRANTIES




 




As a material inducement to Lender’s entry into this
Agreement, Borrower represents and warrants to Lender as of May 31, 2005 and
continuing thereafter that:




 




4.1      LEGAL STATUS. Borrower
is a profit corporation, duly organized and existing and in good standing under
the laws of the State of Delaware, and is qualified or licensed to do business
(and is in good standing as a foreign corporation, if applicable) in the State
of Utah and in all other jurisdictions in which such qualification or licensing
is required or in which the failure to so qualify or to be so licensed could
have a material adverse effect on Borrower.




 




4.2      AUTHORIZATION AND VALIDITY.
This Agreement and each Loan Document and Other Related Document have been
duly authorized, and upon their execution and delivery in accordance with the
provisions hereof will constitute legal, valid and binding agreements and
obligations of Borrower or the party which executes the same, enforceable in
accordance with their respective terms.




 


12

















 




4.3      BORROWER SOLVENCY. Upon
acquisition of the Assets, Borrower shall be solvent under GAAP.




 




4.4      NO VIOLATION. The
execution, delivery and performance by Borrower of each of the Loan Documents
do not violate any provision of Borrower’s statutory charter or any law or
regulation binding upon Borrower, or result in any breach of or default under
any contract, obligation, indenture or other instrument to which Borrower is a
party or by which Borrower may be bound.




 




4.5      LITIGATION. There
are no pending, or to the best of Borrower’s knowledge threatened, actions,
claims, investigations, suits or proceedings by or before any Governmental
Authority, arbitrator, court or administrative agency which could have a
material adverse effect on the financial condition or operation of Borrower
other than those disclosed by Borrower to Lender in writing prior to the date
hereof.




 




4.6      CORRECTNESS OF FINANCIAL
STATEMENT. The financial statement of Consonus, Inc., a Utah
corporation, a true copy of which has been delivered by Borrower to Lender
prior to the date hereof, (a) is complete and correct and presents fairly the
financial condition of Consonus, Inc., (b) discloses all liabilities of
Consonus, Inc. that are required to be reflected or reserved against under
GAAP, whether liquidated or unliquidated, fixed or contingent, and (c) has been
prepared in accordance with GAAP. Since the date of such financial statement
there has been no material adverse change in the financial condition of
Consonus, Inc., nor has Consonus, Inc. mortgaged, pledged, granted a security
interest in or otherwise encumbered any of its assets or properties except in
favor of Lender or as otherwise permitted by Lender in writing.




 




4.7      NO SUBORDINATION. There
is no agreement, indenture, contract or instrument to which Borrower is a party
or by which Borrower may be bound that requires the subordination in right of
payment of any of Borrower’s obligations subject to this Agreement to any other
obligation of Borrower.




 




4-8      ERISA. Borrower
is in compliance in all material respects with all applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended or recodified from
time to time (“ERISA”); Borrower has not violated in any material respect any
provision of any defined employee pension benefit plan (as defined in ERISA)
maintained or contributed to by Borrower (each, a “Plan”); no Reportable Event
as defined in ERISA has occurred and is continuing with respect to any Plan
initiated by Borrower; Borrower has met its minimum funding requirements under
ERISA with respect to each Plan; and each Plan will be able to fulfill its
benefit obligations as they come due in accordance with the Plan documents and
under GAAP.




 




4.9      OTHER OBLIGATIONS. Borrower
is not in default on any obligation for borrowed money, any purchase money
obligation or any other material lease, commitment, contract, instrument or
obligation.




 




4.10    NO MATERIAL ADVERSE CHANGE.
There has been no material adverse change in the financial condition of
Borrower since the dates of the latest financial statements furnished to Lender
and, except as otherwise disclosed to Lender in writing, Borrower has not
entered into any material transaction which is not disclosed in such financial
statements.




 




4.11    ACCURACY. All
reports, documents, instruments, information and forms of evidence delivered to
Lender concerning the Loans or security for the Loans or required by the Loan
Documents are accurate, correct and sufficiently complete to give Lender true
and accurate knowledge of their subject matter, and do not contain any material
misrepresentation or omission.




 




4.12    BUSINESS LOAN. The
Loans are a business loan transaction in the stated amount solely for the
purpose of carrying on the business of Borrower and none of the proceeds of the
Loans will be used for the personal, family or agricultural purposes of the
Borrower.




 


13

















 




4.13    SPECIAL REPRESENTATIONS AND
WARRANTIES REGARDING HAZARDOUS MATERIALS. Without in any way limiting
the other representations and warranties set forth in this Agreement and after
reasonable investigation and inquiry, Borrower hereby specially represents and
warrants to the best of Borrower’s knowledge as of the date of this Agreement
as follows:




 




(a)       Hazardous Materials. The Real Property
is not a site for the use, generation, manufacture, storage, treatment,
release, threatened release, discharge, disposal, transportation or presence of
any Hazardous Materials.




 




(b)      Hazardous Materials Laws. The Real
Property is in compliance with all Hazardous Materials Laws.




 




(c)       Hazardous Materials Claims. There are
no Hazardous Materials Claims pending or threatened against Borrower or the
Real Property.




 




ARTICLE 5. COLLATERAL




 




As security for all Obligations of Borrower to Lender,
Borrower hereby grants to Lender security interests of first priority in all of
the Collateral as more specifically set forth in the Security Instruments. All
of the foregoing shall be evidenced by and subject to the terms of the Security
Instruments and such other such security agreements, financing statements,
pledges, collateral assignments and other documents as Lender shall reasonably
require, all in form and substance satisfactory to Lender. Borrower shall
reimburse Lender immediately upon demand for all reasonable costs and expenses
incurred by Lender in connection with any of the foregoing security, including without
limitation, any filing fees.




 




ARTICLE 6. COVENANTS OF BORROWER




 




Borrower covenants that so long as any Lender remains
committed to extend credit to Borrower pursuant hereto, or any Obligations of
Borrower to Lender under any of the Loan Documents remain outstanding, and
until payment in full of all Obligations of Borrower subject hereto, Borrower
shall, unless Lender otherwise consents in writing:




 




6.1      PUNCTUAL PAYMENTS. Punctually
pay all principal, interest, fees or other liabilities due under any of the
Loan Documents at the times and place and in the manner specified therein, and
immediately upon demand by Lender, the amount by which the outstanding
principal balance of the Line of Credit at any time exceeds any limitation on
borrowings applicable thereto.




 




6.2      ACCOUNTING RECORDS. Maintain
adequate books and records in accordance with GAAP, and permit any
representative of Lender, at any reasonable time, to inspect, audit and examine
such books and records, upon prior reasonable notice and without unreasonable
interference with Borrower’s business to make copies of the same, and to
inspect the properties of Borrower.




 




6.3      FINANCIAL STATEMENTS.
Provide to Lender all of the following, in form and detail satisfactory to
Lender:




 




(a)       not
later than one hundred twenty (120) days after and as of the end of each fiscal
year, an audited, unqualified, consolidated financial statement of Borrower,
which shall include, without limitation, an income statement, balance sheet and
statement of cash flows, which shall have been audited by an accounting firm
mutually acceptable to Lender and Borrower, and which shall be accompanied by
the unqualified report of such accounting firm thereon;




 


14

















 




(b)       not
later than forty-five (45) days after the end of each fiscal quarter, a
company- prepared consolidated financial statement of Borrower, which shall
include, without limitation, an income statement, balance sheet, and statement
of cash flows;




 




(c)       contemporaneously
with each annual and quarterly financial statement of Borrower required hereby,
a certificate of the executive director or president or chief financial officer
of Borrower that said financial statements fairly present in all material
respects the financial condition of Borrower as of the date thereof and that
there exists no Default nor any Unmatured Default; and




 




(d)       from
time to time such other information as Lender may reasonably request.




 




6.4      COMPLIANCE. Preserve
and maintain all licenses, permits, governmental approvals, rights, privileges
and franchises necessary for the conduct of Borrower’s business; and comply
with the provisions of all other documents pursuant to which Borrower is and/or
which govern Borrower’s continued existence and with the requirements of all
laws, rules, regulations and orders of any Governmental Authority applicable to
Borrower and/or its business.




 




6.5      INSURANCE. Maintain
and keep in force insurance of the types and in amounts customarily carried in
lines of business similar to that of Borrower, including but not limited to
fire, extended coverage, public liability, flood, property damage and workers’
compensation, with all such insurance carried with companies and in amounts
reasonably satisfactory to Lender, and deliver to Lender from time to time at
Lender’s request schedules setting forth all insurance then in effect.




 




6.6      TAXES AND OTHER
LIABILITIES. Pay and discharge when due any and all indebtedness,
obligations, assessments and taxes, both real or personal, including without limitation
federal and state income taxes and state and local property taxes and
assessments, except (a) such as Borrower may in good faith contest or as to
which a bona fide dispute may arise, and (b) for which Borrower has made
provision, to Lender’s satisfaction, for eventual payment thereof in the event
Borrower is obligated to make such payment.




 




6.7      LITIGATION. Promptly
give notice in writing to Lender of any litigation pending or threatened
against Borrower with a claim in excess of Twenty-Five Thousand Dollars
($25,000).




 




6.8      NOTICE TO LENDER. Promptly
(but in no event more than five (5) days after the occurrence of each such
event or matter) give written notice to Lender in reasonable detail of; (a) the
occurrence of any Default, or any condition, event or act which with the giving
of notice or the passage of time or both would constitute a Default; (b) any
change in the name or the organizational structure of Borrower; or (c) the
occurrence and nature of any Reportable Event or Prohibited Transaction, each
as defined in ERISA, or any funding deficiency with respect to any Plan.




 




6.9      SUBORDINATION OF OTHER
LOANS. All notes and loans from shareholders of Borrower (including,
without limitation, the Questar Note) shall be subordinate to the Obligations.
Except with the respect to the Questar Note (the repayment of which shall be
governed by the terms and conditions of the Subordination and Standstill
Agreement executed among Lender, Borrower and Questar), Lender will permit
Borrower to make payments thereunder provided that no Default or Unmatured
Default, shall have occurred and be continuing or shall exist.




 




6.10    FURTHER ASSURANCES. Upon
Lender’s reasonable request and at Borrower’s sole cost and expense, Borrower
shall execute, acknowledge and deliver any other instruments and perform any
other acts necessary, desirable or proper, as reasonably determined by Lender,
to carry out the purposes of this Agreement and the other Loan Documents or to
perfect and preserve any liens created by the Loan Documents.




 


15

















 




6.11    ASSIGNMENT. Borrower
shall not assign Borrower’s interest under any of the Loan Documents, or in any
monies due or to become due thereunder, and any assignment without such consent
shall be void. In this regard, Borrower acknowledges that Lender would not
extend the Loans except in reliance on Borrower’s expertise, reputation, and
prior experience.




 




6.12    INSPECTIONS. Permit
representatives of Lender during business hours, upon prior reasonable notice,
without unreasonable interference to Borrower’s business, and to the extent
reasonably requested to (a) visit and inspect the properties (including but not
limited to the Real Estate), books and records of the Borrower, and (b) discuss
with its principal officers and its independent certified accountants its
affairs, finances and accounts.




 




6.13    HAZARDOUS MATERIALS
COVENANTS. Borrower agrees as follows:




 




(a)       No Hazardous Activities. Borrower shall
not cause or permit Borrower’s real property (including but not limited to the
Real Estate) to be used as a site for the use, generation, manufacture,
storage, treatment, release, discharge, disposal, transportation or presence of
any Hazardous Materials.




 




(b)      Compliance. Borrower shall comply and
cause Borrower’s real property (including but not limited to the Real Estate)
to comply with all Hazardous Materials Laws.




 




(c)       Notices. Borrower shall promptly notify
Lender in writing of: (i) the discovery of any Hazardous Materials on, under or
about Borrower’s real property (including but not limited to the Real Estate);
(ii) any knowledge by Borrower that Borrower’s real property does not comply
with any Hazardous Materials Laws; and (iii) any Hazardous Materials Claims.




 




(d)      Remedial Action. In response to the
presence of any Hazardous Materials on, under or about Borrower’s real property
(including but not limited to the Real Estate), Borrower shall promptly take,
at Borrower’s sole expense, all remedial action required by any Hazardous
Materials Laws or any judgment, consent decree, settlement or compromise in
respect to any Hazardous Materials Claims.




 




ARTICLE 7.
FINANCIAL COVENANTS




 




Borrower covenants that so long as any Lender remains
committed to extend credit to Borrower pursuant hereto, or any Obligation of Borrower
to Lender under any of the Loan Documents remains outstanding, and until
indefeasible payment in full of all Obligations of Borrower subject hereto,
Borrower shall maintain Borrower’s financial condition as follows in accordance
with GAAP (except to the extent modified by the definitions herein:




 




7.1      MINIMUM FIXED CHARGE
COVERAGE RATIO. Borrower shall maintain at all times a “Minimum Fixed
Charge Coverage Ratio” which shall be no less than 1.25 to 1. The Minimum Fixed
Charge Coverage Ratio shall be calculated utilizing a ratio wherein (a) the
numerator shall be: EBITDA plus operating lease expense minus (i)
maintenance capital expenditures of $300,000 during each fiscal year period,
(ii) income taxes paid or payable, (iii) dividends and distributions and (b)
the denominator shall be (i) interest paid or payable, plus (ii)
operating lease expense, plus (iii) scheduled amortization of long term
debt (all as calculated in accordance with GAAP). This covenant will be
measured on a rolling 4-quarter basis.




 




7.2      TOTAL FUNDED DEBT. Borrower
shall maintain at all times the ratio of total funded debt (excluding the
Questar Note and as calculated in accordance with GAAP) to EBITDA (the “Total
Funded Debt Ratio”), measured as of the last day of each fiscal quarter of
Borrower using EBITDA for the four quarters then ended, of not more than 4.75
to 1 for the second, third and fourth quarters of Borrower’s fiscal year ending
December 31, 2007; 4.00 to 1 for the first and second quarters of




 


16

















 




Borrower’s fiscal year ending December 31, 2008; and
3.50 to 1 for the third quarter of Borrower’s fiscal year ending December 31,
2008 and thereafter.




 




7.3      NET WORTH. Borrower
shall maintain at all times a Net Worth not less than the sum of (i) Six
Million Dollars ($6,000,000.00) plus (ii) fifty percent (50%) of the cumulative
quarterly net income from and after May 31, 2005, with no deduction for any
quarterly net loss, measured on as of the last day of each fiscal quarter of Borrower
(all as calculated in accordance with GAAP).




 




ARTICLE 8.
NEGATIVE COVENANTS




 




Borrower further covenants that so long as Lender
remains committed to extend credit to Borrower pursuant hereto, or any
Obligations (liquidated or unliquidated) of Borrower to Lender under any of the
Loan Documents remain outstanding, and until payment in full of all Obligations
of Borrower subject hereto, Borrower will not without Lender’s prior written
consent:




 




8.1      USE OF FUNDS. Use
any of the proceeds of the Line of Credit hereunder except for the purposes
stated in Section 2.1(c) hereof.




 




8.2      MATERIAL AGREEMENTS. (a)
Enter into, surrender or terminate any material agreement to which it is a
party (unless the other party thereto is in material default and the
termination of such agreement would be commercially reasonable), (b)
significantly increase or consent to the significant increase of the amount of
any charges under any material agreement to which it is a party, except as
provided therein or on an arms’-length basis and commercially reasonable terms;
or (c) otherwise modify, change, supplement, alter or amend, or waive or
release any of its rights and remedies under any material agreement to which it
is a party in any material respect, except on an arms’-length basis and
commercially reasonable terms.




 




8.3      ACCOUNTING METHOD. Modify
or change its method of accounting or enter into, modify, or terminate any
agreement currently existing, or at any time hereafter entered into with any
third party accounting firm or service bureau for the preparation or storage of
Borrower’s accounting records without said accounting firm or service bureau
agreeing to provide Lender information regarding Borrower’s financial
condition.




 




8.4      OTHER INDEBTEDNESS. Create,
incur, assume or permit to exist any Indebtedness resulting from borrowings,
loans or advances, whether secured or unsecured, matured or unmatured,
liquidated or unliquidated, joint or several, except (a) the Obligations of
Borrower to Lender, (b) the Questar Note, (c) any Indebtedness resulting from
borrowings in the ordinary course of Borrower’s business, in an amount not to
exceed $50,000.00 for any single borrowing and $150,000.00 for all such
borrowings in the aggregate; and (d) any other Indebtedness of Borrower
existing as of, and disclosed to Lender prior to, the date hereof.




 




8.5      MERGER, CONSOLIDATION,
TRANSFER OF ASSETS. Merge into or consolidate with any other entity;
make any substantial change in the nature of Borrower’s business as conducted
as of the date hereof; acquire all or substantially all of the assets of any
other entity; nor sell, lease, transfer or otherwise dispose of all or a
substantial or material portion of Borrower’s assets except in the ordinary
course of its business.




 




8.6      GUARANTIES. Guarantee
or become liable in any way as surety, endorser (other than as endorser of
negotiable instruments for deposit or collection in the ordinary course of
business), accommodation endorser or otherwise for, nor pledge or hypothecate
any assets of Borrower as security for, any liabilities or obligations of any
other person or entity, except any of the foregoing in favor of Lender.




 


17

















 




ARTICLE 9.
DEFAULTS AND REMEDIES




 




9.1      DEFAULT. The
occurrence of any one or more of the following shall constitute an event of
default (“Default”) under this Agreement and the other Loan Documents:




 




(a)       Borrower
shall fail to pay when due any principal, interest, fees or other amounts
payable under any of the Loan Documents; or




 




(b)      Any
financial statement or certificate furnished to Lender in connection with, or
any representation or warranty made by Borrower or any other party under this
Agreement or any other Loan Document, shall prove to be incorrect, false or
misleading in any material respect when furnished or made; or




 




(c)       Any
default in the performance of or compliance with any obligation, agreement or
other provision contained herein or in any other Loan Document (other than
those referred to in subsections (a) and (b) above), and with respect to any
such default which by its nature can be cured, such default shall continue for
a period of twenty (20) days from its occurrence; or




 




(d)      Any
default in the payment or performance of any obligation, or the occurrence of
any defined event of default, under the terms of any contract or instrument
(other than any of the Loan Documents) pursuant to which Borrower has incurred
any debt or other liability to any person or entity, including any Lender; or




 




(e)       The
filing of a notice of judgment lien against Borrower; or the recording of any
abstract of judgment against Borrower in any county in which Borrower has an
interest in real property; or the service of a notice of levy and/or of a writ
of attachment or execution, or other like process, against the assets of
Borrower; or the entry of a judgment against Borrower; or




 




(f)       Borrower
shall become insolvent, or shall suffer or consent to or apply for the
appointment of a receiver, trustee, custodian or liquidator of itself or any of
its property, or shall make a general assignment for the benefit of creditors;
Borrower shall file a voluntary petition in bankruptcy, or seeking
reorganization, in order to effect a plan or other arrangement with creditors
or any other relief under the Bankruptcy Code, or under any state or federal
law granting relief to debtors, whether now or hereafter in effect; or any
involuntary petition or proceeding pursuant to the Bankruptcy Code or any other
applicable state or federal law relating to bankruptcy, reorganization or other
relief for debtors is filed or commenced against Borrower, or Borrower shall
file an answer admitting the jurisdiction of the court and the material
allegations of any involuntary petition; or Borrower shall be adjudicated a
bankrupt, or an order for relief shall be entered against Borrower by any court
of competent jurisdiction under the Bankruptcy Code or any other applicable
state or federal law relating to bankruptcy, reorganization or other relief for
debtors; or




 




(g)      Any
court, government or governmental agency shall condemn, seize or otherwise
appropriate, or take custody or control of, all or any portion of the property
of Borrower which, when taken together with all other property of Borrower so
condemned, seized, appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such action occurs,
constitutes a substantial portion of such property; or




 




(h)      Borrower,
or any Person on behalf of Borrower, shall claim or assert that the Loan
Documents are not legal, valid and binding agreements enforceable against
Borrower in accordance with their respective terms; or the Loan Documents shall
in any way be terminated (except in accordance with their terms) or become or
be judicially declared ineffective or inoperative or shall in any way cease to
give or provide the respective liens,




 


18

















 




security interests, rights, titles, interests,
remedies, powers or privileges intended to be created thereby; or




 




(i)        Any
material litigation or proceeding is commenced before any Governmental
Authority against or affecting the Borrower or any other property of the
Borrower or any part thereof and such litigation or proceeding is not defended
diligently and in good faith by the Borrower; or




 




(j)        Commencement
of any action or proceeding which seeks as one of its remedies the dissolution
of Borrower and such action or proceeding is not defended diligently and in
good faith by Borrower, or a final judgment is entered against Borrower
decreeing the dissolution of Borrower; or




 




(k)       Any
Person shall obtain an order or decree in any court of competent jurisdiction
enjoining or prohibiting Lender, or Borrower from carrying out the terms and
conditions of any of the Loan Documents; in either case, if such order or
decree is not vacated or stayed within ten (10) days after Borrower receives
written notice of the filing thereof; or




 




(l)        Borrower
assigns this Agreement, any of the other Loan Documents, any Advance or any
right to receive an Advance under this Agreement in violation of Section
10.11; or




 




(m)      Borrower
fails to pay any Rate Management Obligation when due or the breach by the
Borrower of any term, provision or condition contained in any Rate Management
Transaction or any transaction of the type described in the definition of “Rate
Management Transactions,” whether or not any Lender or Affiliate of a Lender is
a party thereto; or




 




(n)      Any
default shall occur under the Questar Note; or




 




(o)      There
shall exist or occur any event or condition which impairs, or is substantially
likely to impair, the prospect of payment or performance by Borrower of its
obligations under any of the Loan Documents.




 




9.2      ACCELERATION
UPON DEFAULT; REMEDIES




 




(a)       Upon
the occurrence of any Default described in Section 9.1(f) with respect
to Borrower, the obligation, if any, of Lender to make Advances hereunder or
extend any further credit under any of the Loan Documents shall automatically
terminate and the Obligations shall immediately become due and payable without
presentment, demand, protect or notice of dishonor, all of which are hereby
expressly waived by Borrower, without any election or action on the part of
Lender. Upon the occurrence of any other Default, (i) Lender may declare all
Obligations of Borrower under each of the Loan Documents, any term thereof to
the contrary notwithstanding, and without notice to be immediately due and
payable without presentment, demand, protest or notice of dishonor, all of
which are hereby expressly waived by Borrower; (ii) the obligation, if any, of
Lender to make Advances hereunder or extend any further credit under any of the
Loan Documents shall immediately cease and terminate; and (iii) Lender shall
have all rights, powers and remedies available under each of the Loan
Documents, or accorded by law, including without limitation the right to
appoint a receiver, resort to any or all security for any credit subject hereto
and to exercise any or all of the rights of a beneficiary or secured party
pursuant to applicable law. All rights, powers and remedies of Lender may be
exercised at any time by Lender and from time to time after the occurrence of a
Default, are cumulative and not exclusive, and shall be in addition to any
other rights, powers or remedies provided by law or equity.




 


19

















 




(b)      In
addition to the actions set forth in clause (a) above, upon the occurrence of a
Default, Lender may exercise any and all of the rights and remedies provided
under any and all of the Loan Documents as specified therein, including (i) the
right to appoint a receiver; (ii) the right of Lender to apply any of
Borrower’s funds in their possession to the outstanding Obligations, whether or
not such Obligations are then due and payable; (iii) the right of Lender to
perform Borrower’s obligations under this Agreement; (iv) to the extent
permitted by law, the right of Lender to add any accrued but unpaid interest on
the Obligations from time to time to principal and charge interest on such capitalized
interest from the date it is added to principal until it is paid in full; and
(v) the right of Lender to charge interest on any or all of the Obligations at
the Default Rate, provided the Default Rate will not exceed the maximum rate
permitted by applicable law under any circumstances. All sums expended by
Lender for the foregoing purposes, or in the exercise of the foregoing rights
and remedies (including attorneys’ fees and costs) shall be deemed to have been
disbursed to and borrowed by Borrower and shall be evidenced by the Loan
Documents.




 




9.3      RIGHT OF
LENDER TO TAKE CERTAIN ACTIONS; POWER OF ATTORNEY. Without in
any way limiting Lender’s other rights and remedies under this Agreement and
the other Loan Documents, in the event of a Default, Borrower hereby
constitutes and appoints Lender, or independent contractors selected by Lender,
as its true and lawful attorney-in-fact with full power of substitution, for
the purposes of performing Borrower’s obligations under this Agreement and the
other Loan Documents, in the name of Borrower. It is understood and agreed that
the foregoing power of attorney shall be deemed to be a power coupled with an
interest which cannot be revoked until the repayment in full in cash of the
Obligations and the termination of the Commitment. Borrower acknowledges that
Lender may (but is not obligated to) exercise any of the foregoing powers. All
sums expended by Lender for the foregoing purposes, or in the exercise of the
foregoing rights and remedies (including attorneys’ fees and costs), shall be
deemed to have been disbursed to and borrowed by Borrower and shall be
evidenced by the Loan Documents.




 




9.4      APPLICATION OF PAYMENTS
AFTER DEFAULT. From and after the date on which Lender has taken any
action pursuant to this Article 9 and until all of the Obligations have
been paid in full, any and all proceeds or other funds received by Lender from
(i) Borrower or any other Person, or (ii) the exercise of any other right or
remedy by Lender, shall, in each case, be applied as follows:




 




(a)       first,
to pay late charges and to pay or reimburse Lender for out-of-pocket costs,
expenses and disbursements (including (i) reasonable attorneys’ fees and legal
expenses actually incurred by Lender in connection with exercising their rights
and remedies and collecting any Obligations and (ii) Advances or disbursements
made subsequent to a Default by Lender pursuant to the terms of this Agreement
or any of the other Loan Documents);




 




(b)      second,
to the repayment of all of the Obligations in any order determined by Lender;
and




 




(c)       the
balance, if any, as required by law.




 




9.5      REPAYMENT OF FUNDS
ADVANCED. Any funds expended by Lender in the exercise of its rights or
remedies under this Agreement and the other Loan Documents shall be payable to Lender
upon demand, together with interest at the rate applicable to the principal
balance of the Note from the date the funds were expended.




 




9.6      RIGHTS CUMULATIVE, NO
WAIVER. All Lender’s rights and remedies provided in this Agreement and
the other Loan Documents, together with those granted by law or at equity, are
cumulative and may be exercised by Lender at any time. Lender’s exercise of any
right or remedy shall not constitute a cure of any Default unless all sums then
due and payable to Lender under the Loan Documents are repaid and Borrower has
cured all other Defaults. No waiver shall be implied from any failure of Lender
to take, or any delay by Lender in taking, action concerning any Default or
failure of condition under the Loan Documents, or from any previous waiver of
any similar or




 


20

















 




unrelated Default or failure of condition. Any waiver
or approval under any of the Loan Documents must be in writing and shall be
limited to its specific terms.




 




ARTICLE
10. MISCELLANEOUS PROVISIONS




 




10.1    AMENDMENTS AND WAIVERS.
Except as otherwise expressly provided in this Agreement, (i) any consent
or approval required or permitted by this Agreement or in any Loan Document to
be given by Lender may be given, (ii) any term of this Agreement or of any
other Loan Document may be amended, (iii) the performance or observance by the
Borrower or any other Lender of any terms of this Agreement or such other Loan
Document, and (iv) the continuance of any Default may be waived with, but only
with, the written consent of Lender.




 




10.2    INDEMNITY. BORROWER
HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS LENDER, ITS DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (THE “INDEMNIFIED PARTIES”)
FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS,
JUDGMENTS, COURT COSTS AND LEGAL OR OTHER EXPENSES (INCLUDING, WITHOUT
LIMITATION, REASONABLE ATTORNEYS’ FEES AND EXPENSES) WHICH ANY OF THE
INDEMNIFIED PARTIES MAY INCUR AS A DIRECT OR INDIRECT CONSEQUENCE OF: (a) THE
PURPOSE TO WHICH BORROWER APPLIES THE LINE OF CREDIT PROCEEDS; (b) THE FAILURE
OF BORROWER TO PERFORM ANY OBLIGATIONS AS AND WHEN REQUIRED BY THIS AGREEMENT
OR ANY OF THE OTHER LOAN DOCUMENTS; OR (c) ANY FAILURE AT ANY TIME OF ANY OF BORROWER’S
REPRESENTATIONS OR WARRANTIES TO BE TRUE AND CORRECT. BORROWER SHALL
IMMEDIATELY PAY TO ANY OF THE INDEMNIFIED PARTIES UPON DEMAND ANY AMOUNTS OWING
UNDER THIS INDEMNITY, TOGETHER WITH INTEREST FROM THE DATE THE INDEBTEDNESS
ARISES UNTIL PAID AT THE RATE OF INTEREST APPLICABLE TO THE PRINCIPAL BALANCE
OF THE NOTE. BORROWER’S DUTY AND OBLIGATIONS TO DEFEND, INDEMNIFY AND HOLD
HARMLESS THE INDEMNIFIED PARTIES SHALL SURVIVE CANCELLATION OF THE NOTE.




 




10.3    FORM OF DOCUMENTS. The
form and substance of all documents, instruments, and forms of evidence to be
delivered to Lender under the terms of this Agreement and any of the other Loan
Documents shall be subject to Lender’s approval and shall not be modified,
superseded or terminated in any respect without Lender’s prior written
approval.




 




10.4    NO THIRD PARTIES BENEFITED.
No person other than Lender and Borrower and their permitted successors and
assigns shall have any right of action under any of the Loan Documents. This
Agreement shall not be construed so as to confer any right or benefit upon any
Person other than the parties to this Agreement and their respective successors
and assigns.




 




10.5    NOTICES. Except as
otherwise stated in this Agreement, all notices, requests and demands which any
party is required or may desire to give to any other party under any provision
of this Agreement must be in writing delivered to each party at the following
address or facsimile number:




 




	
   

  	
  BORROWER:

  	
  Consonus Acquisition Corp. 

  445 Park Avenue, 20th Floor 

  New York, New York 10022 

  Attn: Nana Baffour 

  Facsimile No. (212) 792-0958

  





 


21

















 




	
   

  	
  LENDER:

  	
  U.S. Bank National Association 

  PD-UT-GT6 

  170 S. Main Street, 6th Floor 

  Salt Lake City, Utah 84101 

  Attn: Nicholas Hintze 

  Facsimile No. (801) 534-6008

  





 




or to such other address as any party may designate by
written notice to all other parties. Each such notice, request and demand shall
be deemed given or made as follows: (a) if sent by hand delivery, upon
delivery; (b) if sent by mail, upon the earlier of the date of receipt or three
(3) days after deposit in the U.S. mail, first class and postage prepaid; and
(c) if sent by facsimile, upon receipt.




 




10.6    ACTIONS. Borrower
agrees that Lender, in exercising the rights, duties or liabilities of Lender
or Borrower under the Loan Documents, may commence, appear in or defend any
action or proceeding purporting to affect the Loan Documents and Borrower shall
immediately reimburse Lender upon demand for all such expenses so incurred or paid
by Lender, including, without limitation, reasonable attorneys’ fees and
expenses and court costs.




 




10.7    RELATIONSHIP OF PARTIES.
The relationship of Borrower and Lender under the Loan Documents is, and
shall at all times remain, solely that of borrower and lender, and Lender does
not undertake nor assume any responsibility or duty to Borrower or to any third
party, except as expressly provided in this Agreement and the other Loan
Documents. Lender shall not have any fiduciary responsibilities to Borrower.
Lender undertakes no responsibility to Borrower to review or inform Borrower of
any matter in connection with any phase of Borrower’s business or operations.
Borrower agrees that Lender shall not have liability to Borrower (whether
sounding in tort, contract or otherwise) for losses suffered by Borrower in
connection with, arising out of, or in any way related to, the transactions
contemplated and the relationship established by the Loan Documents, or any
act, omission or event occurring in connection therewith, unless it is
determined in a final non-appealable judgment by a court of competent
jurisdiction that such losses resulted from the gross negligence or willful
misconduct of Lender. Lender shall not have any liability with respect to, and
Borrower hereby waives, releases and agrees not to sue for, any special,
indirect, consequential or punitive damages suffered by Borrower in connection
with, arising out of, or in any way related to the Loan Documents or the
transactions contemplated thereby.




 


22

















 




10.8    DELAY OUTSIDE LENDER’S
CONTROL. Lender shall not be liable in any way to Borrower or any third
party for Lender’s failure to perform or delay in performing under the Loan
Documents (and Lender may suspend or terminate all or any portion of Lender’s
obligations under the Loan Documents) if such failure to perform or delay in
performing results directly or indirectly from, or is based upon, the action,
inaction, or purported action, of any Governmental Authority, or because of
war, rebellion, insurrection, strike, lock-out, boycott or blockade (whether
presently in effect, announced or in the sole judgment of Lender deemed
probable), or from any Act of God or other cause or event beyond Lender’s
control.




 




10.9    ATTORNEYS’ FEES AND
EXPENSES; ENFORCEMENT. If any attorney is engaged by Lender to enforce
or defend any provision of this Agreement, any of the other Loan Documents or
Other Related Documents, or as a consequence of any Default under the Loan
Documents, with or without the filing of any legal action or proceeding, and
including, without limitation, any fees and expenses incurred in any bankruptcy
proceeding of the Borrower, then Borrower shall immediately pay to Lender, upon
demand, the amount of all reasonable attorneys’ fees and expenses and all costs
incurred by Lender in connection therewith, together with interest thereon from
the date of such demand until paid at the rate of interest applicable to the
principal balance of the Note as specified therein.




 




10.10 IMMEDIATELY AVAILABLE FUNDS.
Unless otherwise expressly provided for in this Agreement, all amounts
payable by Borrower to Lender shall be payable only in United States currency,
immediately available funds.




 




10.11 SUCCESSORS AND ASSIGNS.




 




(a)       Generally. The terms and provisions of
the Loan Documents shall be binding upon and inure to the benefit of Borrower
and Lender and their respective successors and assigns permitted hereby, except
that Borrower may not assign or otherwise transfer any of is rights or
obligations under the Loan Documents without the prior written consent of
Lender (and any such assignment or transfer to which Lender has not consented
shall be void).




 




(b)      Lender Assignments, Participations. Lender
reserves the right to sell, assign, transfer, negotiate or grant participations
in all or any part of, or any interest in, Lender’s rights and benefits under
each of the Loan Documents. In connection therewith, Lender may disclose all
documents and information which Lender now has or may hereafter acquire
relating to any credit subject hereto, Borrower or its business, or any
Collateral required hereunder.




 




10.12 SETOFF. In addition to
any rights now or hereafter granted under applicable law but subject to any
limitations that may be imposed by applicable law and not by way of limitation
of any such rights, Lender is hereby authorized by Borrower, at any time or
from time to time while a Default exists, without notice to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and to apply any and all deposits (general or special,
including, but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured) and any other indebtedness at any time held
or owing by Lender, to or for the credit or the account of the Borrower against
and on account of any of the Obligations, irrespective of whether or not the
Loans and all other Obligations have been declared to be, or have otherwise
become, due and payable as permitted by Section 9.2, and although such
Obligations shall be contingent or unmatured.




 




10.13 CAPITAL ADEQUACY. If
Lender reasonably determines that compliance with any law or regulation or with
any guideline or request from any central bank or other governmental or quasi-
governmental agency (whether or not having the force of law), including,
without limitation, the Risk Based Capital Guidelines, affects or would affect
the amount of capital required or expected to be maintained by Lender, or any
corporation controlling Lender, as a consequence of, or with reference to, such
Lender’s or such corporation’s commitments or its making or maintaining
Advances below the rate which Lender or such corporation controlling Lender
could have achieved




 


23

















 




but for such compliance (taking into account the
policies of Lender or corporation with regard to capital), then Borrower shall,
from time to time, within fifteen (15) calendar days after written demand by
Lender, pay to Lender additional amounts sufficient to compensate Lender or
such corporation controlling Lender to the extent that Lender reasonably
determines such increase in capital is allocable to Lender’s obligations
hereunder. A certificate as to such amounts, submitted to Borrower by Lender
shall be conclusive and binding for all purposes, absent manifest error. As
used herein, “Risk-Based Capital Guidelines” means (i) the risk-based capital
guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing
the July 1988 report of the Basle Committee on Banking Regulation and
Supervisory Practices Entitled “International Convergence of Capital
Measurements and Capital Standards,” including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.




 




10.14 LENDER’S AGENTS. Lender
may designate an agent or independent contractor to exercise any of Lender’s
rights under this Agreement and any of the other Loan Documents. Any reference
to Lender in any of the Loan Documents shall include, but only if applicable,
Lender’s agents, employees or independent contractors. Borrower shall pay the
costs of such agent or independent contractor either directly to such person or
to Lender in reimbursement of such costs, as applicable.




 




10.15 WAIVER OF RIGHT TO TRIAL BY
JURY. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER
THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE
MODIFICATION THEREOF OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL
TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THE LOAN
DOCUMENTS (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS
RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT
ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO
TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO TRIAL BY JURY.




 




10.16 SEVERABILITY. If any
provision or obligation under this Agreement and the other Loan Documents shall
be determined by a court of competent jurisdiction to be invalid, illegal or
unenforceable, that provision shall be deemed severed from the Loan Documents
and the validity, legality and enforceability of the remaining provisions or
obligations shall remain in full force as though the invalid, illegal, or
unenforceable provision had never been a part of the Loan Documents, provided,
however, that if the rate of interest or any other amount payable under the
Note or this Agreement or any other Loan Document, or the right of
collectibility therefor, are declared to be or become invalid, illegal or
unenforceable, Lender’s obligations to make Advances under the Loan Documents
shall not be enforceable by Borrower.




 




10.17 HEIRS, SUCCESSORS AND ASSIGNS.
Except as otherwise expressly provided under the terms and conditions of
this Agreement, the terms of the Loan Documents shall bind and inure to the
benefit of the permitted heirs, successors and assigns of the parties.




 




10.18 TIME. Time is of the essence of each and every term of this
Agreement and the other Loan Documents.




 


24

















 




10.19 HEADINGS. All article,
section or other headings appearing in this Agreement and any of the other Loan
Documents are for convenience of reference only and shall be disregarded in
construing this Agreement and any of the other Loan Documents.




 




10.20 GOVERNING LAW. This
Agreement shall be governed by, and construed and enforced in accordance with
the laws of the State of Utah. Borrower and all persons and entities in any
manner obligated to Lender under the Loan Documents consent to the jurisdiction
of any federal or state court within the State of Utah having proper venue and
also consent to service of process by any means authorized by Utah or federal
law.




 




10.21 INTEGRATION; INTERPRETATION.
The Loan Documents contain or expressly incorporate by reference the entire
agreement of the parties with respect to the matters contemplated therein and
supersede all prior negotiations or agreements, written or oral. The Loan
Documents shall not be modified except by written instrument executed by all
parties. Any reference to the Loan Documents includes any amendments, renewals
or extensions now or hereafter approved by Lender in writing.




 




10.22 JOINT AND SEVERAL LIABILITY OF
BORROWING PARTIES. The liability of all persons and entities obligated
as Borrower in any manner to Lender under this Agreement and any of the Loan
Documents shall be joint and several.




 




10.23 COUNTERPARTS. To
facilitate execution, this document may be executed in as many counterparts as
may be convenient or required. It shall not be necessary that the signature of,
or on behalf of, each party, or that the signature of all persons required to
bind any party, appear on each counterpart. All counterparts shall collectively
constitute a single document. It shall not be necessary in making proof of this
document to produce or account for more than a single counterpart containing
the respective signatures of, or on behalf of, each of the parties hereto. Any
signature page to any counterpart may be detached from such counterpart without
impairing the legal effect of the signatures thereon and thereafter attached to
another counterpart identical thereto except having attached to it additional
signature pages.




 




10.24 CONFIDENTIALITY PROVISION.
Subject to the terms of any confidentiality or similar agreement between
Lender and Borrower and/or its Affiliates, the parties hereto acknowledge and
agree that (i) any obligations of confidentiality contained herein and therein
do not apply and have not applied from the commencement of discussions between
the parties to the tax treatment or tax structure of the transactions
contemplated by the Loan Documents (and any related transactions or
arrangements), and (ii) each party (and each of its employees, representatives,
or other agents) may disclose to any and all parties as required, without
limitation of any kind (including opinions or other tax analyses) that are
provided to such party relating to such tax treatment and tax structure, all
within the meaning of Treasury Regulations Section 1.6011-4; provided, however,
that each party recognizes that the privilege each has to maintain, in its sole
discretion, the confidentiality of a communication relating to the transactions
contemplated by the Loan Documents, including a confidential communication with
its attorney or a confidential communication with a federally authorized tax
practitioner under Section 7525 of the Internal Revenue Code, is not intended
to be affected by the foregoing.




 




10.25 SURVIVAL OF REPRESENTATIONS.
All representations and warranties of Borrower contained in this Agreement
shall survive the making of the Advances herein contemplated until all
Obligations under this Agreement have been paid and satisfied in full.




 




10.26 NO BORROWER SET-OFF. All
Obligations shall be paid by Borrower without notice (except for such notice as
may be expressly required hereunder or under the other Loan Documents), demand,
counterclaim, setoff, deduction or defense and without abatement, suspension,
deferment, diminution or reduction, and the Obligations shall in no way be
released, discharged or otherwise affected (except as expressly provided
herein) by reason of: (a) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceeding
relating to




 


25

















 




Lender, or any action taken with respect to this
Agreement by any trustee or receiver of Lender, or by any court, in any such
proceeding; (b) any claim that Borrower has or might have against Lender; (c)
any default or failure on the part of Lender to perform or comply with any of
the terms of the Loan Documents or of any other agreement with Borrower; or (d)
any other occurrence whatsoever, whether similar or dissimilar to the
foregoing; in each case, whether or not Borrower shall have notice or knowledge
of any of the foregoing. Borrower waives all rights now or hereafter conferred
by statute or otherwise to any abatement, suspension, deferment, diminution or
reduction of any Obligation.




 




10.27 STATUTE OF FRAUDS.
PURSUANT TO UTAH CODE. ANN. §25-5-4, BORROWER IS NOTIFIED THAT THE WRITTEN LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF ANY ALLEGED PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.




 




10.28 BROKERS. Borrower and
Lender represent to each other that neither of them knows of any brokerage
commissions or finders’ fee due or claimed with respect to the transaction
contemplated hereby. Borrower and Lender shall indemnify and hold harmless the
other party for, from and against any and all loss, damage, liability, or
expense, including costs and reasonable attorney fees, which such other party
may incur or sustain by reason of or in connection with any misrepresentation
by the indemnifying party with respect to the foregoing.




 




10.29 INCONSISTENCIES WITH THE LOAN
DOCUMENTS. In the event of any inconsistencies between any terms of
this Agreement and any terms of any of the Loan Documents, the terms of this
Agreement shall govern and prevail.




 




10.30 INTERPRETATION




 




(a)       References
to the plural include the singular, the plural, the part and the whole; “or”
has the inclusive meaning represented by the phrase “and/or”; and “including”
has the meaning represented by the phrase “including without limitation”.




 




(b)      The
words “hereof,” “herein,” “hereunder,” “hereto” and similar terms in this
Agreement or any other Loan Document refer to this Agreement or such other Loan
Document as a whole and not to any particular provision of this Agreement or
such other Loan Document.




 




(c)       Reference
to any Person includes such Person’s successors and assigns but, if applicable,
only if such successors and assigns are permitted by this Agreement or the
other Loan Documents, as the case may be.




 




(d)      Reference
to any agreement (including this Agreement and any other Loan Document together
with the schedules and exhibits hereto or thereto), document or instrument
means such agreement, document or instrument as amended, modified, replaced,
substituted for, superseded or restated.




 




10.31 ACTIONS BY LENDER. Unless
otherwise expressly provided in this Agreement, all determinations, consents,
approvals, disapprovals, calculations, requirements, requests, acts, actions,
elections, selections, opinions, judgments, options, exercise of rights,
remedies or indemnities, satisfaction of conditions or other decisions of or to
be made by or on behalf of Lender under this Agreement or any of the other Loan
Documents shall be made in the sole and absolute discretion of Lender.




 




10.32 PATRIOT ACT NOTIFICATION. The
following is provided to Borrower pursuant to Section 326 of the USA Patriot
Act of 2001, 31 U.S.C. Section 5318:




 


26

















 




IMPORTANT INFORMATION ABOUT
PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government fight the funding
of terrorism and money laundering activities, Federal law requires all
financial institutions to obtain, verify, and record information that
identifies each person or entity that opens an account, including any deposit
account, treasury management account, loan, other extension of credit, or other
financial services product. What this means for Borrower: When Borrower opens
and account, if Borrower is an individual, Lender will ask for Borrower’s name,
residential address, tax identification number, date of birth, and other information
that will allow Lender to identify Borrower, and, if Borrower is not an
individual, Lender will ask for Borrower’s name, tax identification number,
business address, and other information that will allow Lender to identify
Borrower. Lender may also ask, if Borrower is an individual, to see Borrower’s
driver’s license or other identifying documents, and, if Borrower is not an
individual, to see Borrower’s legal organizational documents or other
identifying documents.




 




[SIGNATURES ON
FOLLOWING PAGE]




 


27

















 




IN WITNESS WHEREOF, Borrower and Lender have executed
this Agreement as of the date appearing on the first page of this Agreement.




 


 




	
   

  	
   

  	
  “LENDER”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  U.S. BANK NATIONAL ASSOCIATION,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ Nicholas Hintze

  
	
   

  	
   

  	
   

  	
  Name: Nicholas Hintze

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  





 


 




	
   

  	
   

  	
  “BORROWER”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CONSONUS ACQUISITION CORP.,

  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ Daniel S. Milburn

  
	
   

  	
   

  	
   

  	
  Name: Daniel S. Milburn

  
	
   

  	
   

  	
   

  	
  Title: Chief Operating Officer

  





 


28

















 




EXHIBIT A




 




EXHIBIT A -
DOCUMENTS




 




Exhibit A to CREDIT AGREEMENT
between CONSONUS ACQUISTION CORP., a Delaware corporation, as “Borrower”, and
U.S. BANK NATIONAL ASSOCIATION, as “Lender”, dated as of May 31, 2005 (“Agreement”).




 




1.         Loan Documents. The documents listed
below, numbered 1.1 through 1.15, inclusive, and amendments, modifications and
supplements thereto which have received the prior written consent of Lender,
together with any documents executed in the future that are approved by Lender
and that recite that they are “Loan Documents” for purposes of this Agreement
are collectively referred to herein as the Loan Documents.




 




1.1      This
Agreement.




 




1.2      The
Line of Credit Note dated May 31, 2005 in the original principal amount of Two
Million Five Hundred Thousand Dollars ($2,500,000.00) made by Borrower payable
to the order of Lender.




 




1.3      The
Term Note dated May 31, 2005 in the original principal amount of Ten Million
Five Hundred Thousand Dollars ($10,500,000.00) made by Borrower payable to the
order of Lender




 




1.4      The
Term Note dated November 19, 2007 in the original principal amount of One
Million Eight Hundred Sixty-One Thousand Dollars ($1,861,000.00) made by
Borrower payable to the order of Lender




 




1.5      Deed
of Trust, Assignment of Leases and Rents, Security Agreement, and Fixture
Filing dated May 31, 2005, executed by Borrower, as Trustor, to Metro National
Title Company, as Trustee, for the benefit of Lender, as Beneficiary, with
respect to property located at 7202 South Campus View Drive, West Jordan, Utah
84084.




 




1.6      Leasehold
Deed of Trust, Assignment of Leases and Rents, Security Agreement, and Fixture
Filing dated May 31, 2005, executed by Borrower, as Trustor, to Metro National
Title Company, as Trustee, for the benefit of Lender, as Beneficiary, with
respect to property located at 118 South 1000 West, Salt Lake City, Utah.




 




1.7      Collateral
Assignment of Lease; Attornment, and Nondisturbance Agreement dated May 31,
2005, executed by Questar Gas Company, as landlord, Borrower, as tenant, and
Lender, with respect to property located at 180 East 100 South, Salt Lake City,
Utah.




 




1.8      Collateral
Assignment of Lease, Attornment and Nondisturbance Agreement of even date
herewith, executed by LabOne, Inc., as landlord, Borrower, as tenant, and
Lender, with respect to property located at 2282 South Presidents Drive, Salt
Lake City, Utah.




 




1.9      Amended
and Restated Security Agreement of even date herewith, executed by Borrower in
favor of Lender.




 




1.10    Amended
and Restated Assignment of Material Contracts of even date herewith, executed
by Borrower in favor of Lender.




 




1.11    Pledge
and Security Agreement of even date herewith, executed by Borrower in favor of
Lender.




 


1

















 




EXHIBIT A




 




1.12    State
of Utah Uniform Commercial Code - Financing Statement - Form UCC-1, naming
Borrower as Debtor and Lender as Secured Party.




 




1.13    Corporate
Borrowing Resolution dated May 31, 2005 herewith certified by Johnson Kachidza
as Vice President and Treasurer of Borrower.




 




1.14    Landlord’s
Estoppel Certificate and Agreement dated May 31, 2005, executed by Questar Gas
Company, as Landlord, and Lender, with respect to premises located at 180 East
100 South, Salt Lake City, Utah.




 




1.15    Landlord’s
Estoppel Certificate and Agreement of even date herewith, executed by LabOne,
Inc, as Landlord, and Lender, with respect to premises located at 2282 South
Presidents Drive, Salt Lake City, Utah.




 




1.16    Subordination
and Standstill Agreement dated May 31, 2005, executed by Borrower, Questar
Corporation, and Lender.




 




Other
Related Documents (Which Are Not Loan Documents):




 




i.         Hazardous
Materials Indemnity Agreement dated May 31, 2005, executed by Borrower in favor
of Lender.




 


2






 












EXHIBIT B –FORM OF
DRAW REQUEST




 




Exhibit B to AMENDED AND RESTATED
CREDIT AGREEMENT between CONSONUS ACQUISITION CORP., a Delaware corporation, as
“Borrower”, and U.S. BANK NATIONAL ASSOCIATION, as “Lender”, dated as of
November 19, 2007 (“Agreement”).




 




Draw Request   




 




	
  Date of request:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Draw
  amount requested:

  	
  $

  	
   

  





 




I/we, of the
Consonsus Acquisition Corp., hereby
authorize the Advance as requested above on our Line of Credit; Customer
#                    ;
Loan #      , governed by that certain
Amended and Restated Credit Agreement dated as of November 19, 2007 (the
“Credit Agreement”) to be deposited into the Account. Signed Draw Requests
delivered and received via fax to U.S. Bank’s Commercial Customer Service at (     )
    -         
on or before noon Mountain time on a Business Day will cause funds to be
deposited into the Account that same Business Day. Capitalized terms used
herein but not defined shall have the meanings given such terms in the Credit
Agreement




 


 




	
  Authorization:

  	
   

  	
   

  	
  (Signed)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Printed Name)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Title)

  





 


 




	
  NOTE:

  	
   

  	
  Three duly authorized signers include:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  





 


1

















 




TERM
NOTE




 


 




	
  $1,861,000.00

  	
  dated as of November
  19, 2007

  





 


 




FOR VALUE RECEIVED, CONSONUS ACQUISITION CORP., a
Delaware corporation (“Borrower”), HEREBY PROMISES TO PAY to the order
of U.S. BANK NATIONAL ASSOCIATION (“Lender”) the principal sum of ONE
MILLION EIGHT HUNDRED SIXTY-ONE THOUSAND AND NO/100THS DOLLARS ($1,861,000.00);
or if less, the aggregate unpaid principal amount of all Advances disbursed by
Lender under the 2007 Term Loan pursuant to the requirements set forth in the
Amended and Restated Credit Agreement of even date herewith (as amended,
supplemented or restated from time to time the “Credit Agreement”),
between Borrower and Lender, together with interest on the unpaid principal
balance hereof at the rate (or rates) determined in accordance with Section
2.6 of the Credit Agreement from the date such principal is advanced until
it is paid in full.




 




This Note is the 2007 Term Note referred to in and
governed by the Credit Agreement, which Credit Agreement, among other things,
contains provisions for the acceleration of the maturity hereof and for the
payment of certain additional sums to Lender upon the happening of certain
stated events. Capitalized terms used in this Note without definition have the
same meanings as in the Credit Agreement.




 




Borrower shall make payments to reduce the outstanding
principal of this Note in accordance with Section 2.3 of the Credit Agreement.
The remaining outstanding principal amount of this Note, unless accelerated in
accordance with Credit Agreement as described below, if not sooner paid, will
be due and payable, together with all accrued and unpaid interest and other
amounts due and unpaid under the Credit Agreement, on November 19, 2014.




 




Interest on the term loan evidenced by this Note is
payable in arrears on the first Business Day of each month during the term of
the Credit Agreement, commencing with the first Business Day of December, 2007.
Interest will be computed on the basis of the actual number of days elapsed in
the period during which interest accrues and a year of three hundred sixty
(360) days. The Credit Agreement provides for the payment by Borrower of various
other charges and fees, in addition to the interest charges described in the
Credit Agreement, as set forth more fully in the Credit Agreement.




 




All payments of any amount becoming due under this
Note shall be made in the manner provided in the Credit Agreement, in Dollars.




 




Borrower may pre-pay the sums due under this Note, in
whole or in part, at any time from time to time, without penalty or premium.




 




Upon and after the occurrence of a Default, unless
such Default is waived as provided in the Credit Agreement, this Note may, at
the option of Lender and without further demand, notice or legal process of any
kind, be declared by Lender, and in such case immediately shall become, due and
payable. Upon and after the occurrence of certain Defaults, this Note shall,
without any action by Lender and without demand, notice or legal process of any
kind, automatically and immediately become due and payable.




 




Demand, presentment,
protest and notice of nonpayment and protest, notice of intention to accelerate
maturity, notice of acceleration of maturity and notice of dishonor are hereby
waived by Borrower. Subject to the terms of the Credit Agreement, Lender may
extend the time of payment of this Note, postpone the enforcement hereof, grant
any indulgences, release any party primarily or secondarily liable hereon or
agree to any subordination of Borrower’s obligations hereunder without
affecting or diminishing Lender’s right of recourse against Borrower, which
right is hereby expressly reserved.




 

















 




 This Note has
been delivered and accepted at Salt Lake City, Utah. This Note shall be
interpreted in accordance with, and the rights and liabilities of the parties
hereto shall be determined and governed by, the laws of the State of Utah.




 




All notices or other communications required or
permitted to be given pursuant to this Note shall be given to the Borrower or
Lender at the address and in the manner provided for in the Credit Agreement.




 




In no contingency or event whatsoever shall interest
charged in respect of the term loan evidenced hereby, however such interest may
be characterized or computed, exceed the highest rate permissible under any law
that a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. If such a court determines that Lender has received interest
hereunder in excess of the highest rate applicable hereto, Lender shall, at
Lender’s election, either (a) promptly refund such excess interest to Borrower
or (b) credit such excess to the principal balance hereof. This provision shall
control over every other provision of all agreements between Borrower and
Lender.




 




The terms of this Note may be amended only in writing
signed by Borrower and Lender. This Note, together with the other Loan
Documents, constitutes and contains the entire agreement between the parties
regarding the subject matter hereof, and supercedes and replaces all prior
agreements, promises and understandings, whether written or oral, proposed or
otherwise, regarding the subject matter hereof.




 




Whenever possible each provision of this Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Note.




 


 




	
   

  	
   

  	
  CONSONUS ACQUISTION CORP.,

  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Daniel S. Milburn

  
	
   

  	
   

  	
   

  	
  Daniel S. Milburn

  
	
   

  	
   

  	
   

  	
  Chief Operating Officer

  





 


2

















 




COLLATERAL
ASSIGNMENT OF LEASE;

ATTORNMENT, AND 

NONDISTURBANCE AGREEMENT




 




THIS COLLATERAL ASSIGNMENT OF LEASE; ATTORNMENT, AND
NONDISTURBANCE AGREEMENT (this “Agreement) is entered into as of November 19, 2007,
by BOYD ENTERPRISES UTAH, L.L.C., a Utah limited liability company
(“Landlord”); CONSONUS ACQUISITON CORP., a Delaware corporation (“Tenant”), and
U.S. BANK NATIONAL ASSOCIATION (“Lender”) (individually, a “Party” and collectively,
the “Parties”).




 




RECITALS




 




A.       Pursuant
to that certain lease dated as of July, 2004, as assigned by that certain
Assignment and Assumption of Lease dated November 19, 2007 (the “Lease”),
Tenant leases certain premises in a building on real property located at 2282
South Presidents Drive, Salt Lake City, Utah and more particularly described on
Exhibit A attached hereto (the “Premises”), from Landlord.




 




B.        Pursuant
to that certain Amended and Restated Credit Agreement of even date herewith
(the “Credit Agreement”), between Tenant, as borrower, and Lender, Lender has
agreed, among other things, to extend a term loan (the “Loan”) to Borrower to
be used to retrofit the Premises as a data center and purchase equipment
therefor, which Loan will be evidenced by a promissory note executed by
Borrower in favor of Lender (the “Note”). Capitalized terms used but not
otherwise defined herein shall have the meanings given such terms in the Credit
Agreement.




 




C.        Lender
has required the execution of this Agreement by Tenant and Landlord as a
condition to Lender’s obligation to make the Loan.




 




NOW, THEREFORE, for good and sufficient consideration
and to induce Lender to make the Loan, the Parties agree as follows:




 




1.         ASSIGNMENT. As security for the Loan,
Tenant hereby presently and absolutely transfers, assigns and sets over to
Lender all Tenant’s right, title and interest in and under the Lease. Tenant
represents to Lender that Tenant has not previously assigned its rights in the
Lease to any party. This Assignment shall inure to the benefit of Lender and
its successors and assigns as security for the payment of principal and
interest due under the Note and the performance of the covenants of Tenant as
Borrower under the Loan Documents.




 




2.         REMEDIES OF LENDER. Upon the happening
of a Default, (i) Lender may, at its option, enter and take possession of the
Premises and may perform all acts necessary for the operations and maintenance
of the Premises, and (ii) Lender shall have full power to do anything that
Tenant may do under the Lease. Possession of the Premises by Lender or the
exercise by Lender of any other rights of Tenant under the Lease pursuant to
this paragraph shall not release Tenant from any of its obligations to Lender
under the Loan Documents, and shall not deprive Lender of any remedy to which
it is entitled by agreement, at law, or otherwise.




 




3.         TENANT’S COMPLIANCE WITH THE LEASE. Tenant
shall comply fully with all of the terms, conditions and provisions of the
Lease, and shall not take any action or engage in any activity which would give
rise to any right of Landlord to terminate the Lease.




 




4.         LANDLORD’S ACKNOWLEDGMENT. Landlord
acknowledges and consents to the assignment to Lender of the interests of
Tenant under the Lease as set forth herein.




 


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5.         NOTICE OF DEFAULT.
Landlord will notify Lender in writing concurrently with any notice given
to Tenant of any default by Tenant under the Lease, and Landlord agrees that
Lender has the right (but not the obligation) to cure any breach or default
specified in such notice within the time periods allowed for curing a default
under the Lease, plus an additional thirty (30) days, and that Landlord shall
not exercise any remedy under the Lease until such additional thirty (30) days
have passed; provided, however, that Tenant acknowledges that Tenant shall
remain liable to Landlord for the full performance by Tenant under the Lease
(including, without limitation, the payment of rent) during such additional
cure period afforded to Lender.




 




6.         ATTORNMENT AND NONDISTURBANCE.




 




(a) Attornment. Lender agrees that, should it
take possession of the Property, by foreclosure or otherwise, it shall attorn
to Landlord as its landlord, such attornment to be effective and self-operative,
without the execution of any further instrument, upon Lender succeeding to
Tenant’s interest in the Lease, except that each of Landlord, Tenant and Lender
shall execute the form of Assignment and Assumption of Lease attached hereto as
Exhibit B and incorporated herein by reference.




 




(b) Non-Disturbance. Landlord agrees that the
leasehold interest of the lessee under the Lease shall not be extinguished or
terminated by reason of Lender’s possession of the Property, by foreclosure or
otherwise, but rather that the Lease shall continue in full force and effect,
and Landlord shall recognize and accept Lender as the lessee under the Lease,
subject to all the terms and conditions of the Lease.




 




7          MISCELLANEOUS.




 




(a) Successors and Assigns. The covenants in this
Agreement shall be binding upon, and inure to the benefit of, the heirs,
successors, and assigns of the Parties.




 




(b) Notices. All notices, demands or other
communications required or permitted to be given pursuant to the provisions of
this Agreement shall be in writing and shall be considered as properly given if
delivered personally or sent by first class United States Postal Service mail,
postage prepaid, or by Overnight Express Mail or by overnight commercial
courier service, charges prepaid. Notices so sent shall be effective three (3)
days after mailing, if mailed by first class mail, and otherwise upon receipt
at the address set forth below; provided, however, that non-receipt of any
communication as the result of any change of address of which the sending Party
was not notified or as the result of a refusal to accept delivery shall be
deemed receipt of such communication. For purposes of notice, the address of
the Parties shall be:




 




 






	
  LENDER:

  	
   

  	
  U.S. Bank National Association

  PD-UT-GT6

  170 S. Main Street, 6th Floor

  Salt Lake City, Utah 84101

  Attn: Nicholas Hintze

  
	
   

  	
   

  	
   

  
	
  TENANT:

  	
   

  	
  CONSONUS ACQUISITION CORP.

  445 Park Avenue, 20th Floor

  New York, NY 10022

  Attn: Nana Baffour

  
	
   

  	
   

  	
   

  
	
  LANDLORD:

  	
   

  	
  Boyd Enterprises Utah, L.L.C.

  1946 E. Edinger

  Santa Ana, California 92705

  Attn: Willis Boyd

  





 


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Any Party shall have the right to change its address
for notice hereunder to any other location within the continental United States
by the giving of thirty (30) days notice to the other Parties in the manner set
forth hereinabove.




 




(c)       Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original and all of which together shall constitute and be
construed as one and the same instrument.




 




(d)       Paragraph
Headings. Paragraph headings in this Agreement are for convenience only and
are not to be construed as part of this Agreement.




 




(e)       Amendment.
This Agreement may be amended only by a writing signed by all the parties.




 




(f)        Entire
Agreement. This Agreement, together with the Loan Documents, constitutes
and contains the entire agreement between the parties regarding the subject
matter hereof, and supercedes and replaces all prior agreements, promises,
understandings, written or oral, proposed or otherwise, regarding the subject
matter hereof.




 




(g)       Attorney’s
Fees and Jurisdiction. In the event that any legal action or legal
proceeding is brought to enforce or interpret this Agreement, the prevailing
party in such action or proceeding shall be entitled to recover its attorneys’
fees, court costs, and consultant and expert witness fees reasonably incurred
in such action or proceeding. Jurisdiction and venue for any such action or
proceedings shall be in Salt Lake County, Utah.




 




[Signature
Pages to Follow]




 


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SIGNATURE PAGE FOR
TENANT:




 


 




	
   

  	
   

  	
  CONSONUS ACQUISITION
  CORP., 

  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Daniel S. Milburn

  
	
   

  	
   

  	
   

  	
  Daniel S. Milburn

  
	
   

  	
   

  	
   

  	
  Chief Operating
  Officer

  





 


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SIGNATURE PAGE FOR
LENDER:




 




 






	
   

  	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Nicholas Hintze

  
	
   

  	
   

  	
   

  	
  Name: Nicholas Hintze

  Title: Vice-President

  





 


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SIGNATURE PAGE FOR
LANDLORD:




 




 






	
   

  	
   

  	
  BOYD ENTERPRISES UTAH
  L.L.C.,

  a Utah limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Willis Boyd

  
	
   

  	
   

  	
   

  	
  Name: Willis Boyd

  Title:   Managing Member

  





 


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EXHIBIT A

Legal
Description

Approximately 21,236 square feet in a one story building located in Salt Lake
County and known as 2282 South Presidents Drive (THE HAYSE BLDG.), Unit A,B,C,
West Valley City, Utah.




 


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EXHIBIT B

Form
of Assignment and Assumption of Lease




 




ASSIGNMENT
AND ASSUMPTION OF LEASE




 




This Assignment and Assumption of Lease (collectively
“Assignment”) is dated for reference purposes
          , and is entered
into by and between             ,
a            (“Landlord”),
whose address is c/o           ,
          , attention:
           ;
           (“Assignor”),
whose address is
          ;and
           (“Assignee”),
whose address
is             ,
who agree as follows:




 




1.         Recitals. This Assignment is made with reference to the following facts and
objectives:




 




1.1       Landlord and Assignor, or their respective predecessors in interest
entered into a written lease dated
           , which was
thereafter amended by written amendments dated (collectively “Lease”) in which
Landlord leased to Assignor and Assignor leased from Landlord the premises
located at and commonly known as
          , consisting of
approximately
            
rentable square feet (“Premises”).




 




1.2       Assignor now desires to assign the Lease to Assignee pursuant to the
terms of this Assignment.




 




2.         Effective Date of Assignment. The assignment in this Assignment shall take
effect as of
                              
(“Effective Date”).




 




3.         Assignment and Assumption. Assignor assigns, sells, transfers and
conveys to Assignee all of its right, title and interest in the Lease and the
Premises, and Assignee accepts the assignment, sale, transfer and conveyance
and assumes and agrees to perform from the Effective Date, as a direct
obligation to Landlord, all of the provisions of the Lease arising from and
after the Effective Date.




 




4.         Assignor’s Liability. Assignor shall remain fully, directly and
primarily liable to Landlord for the performance of all of the provisions of
the Lease by Assignee.




 




5.         Security Deposit, Pre-Paid Rent and Free Rent. Assignor and Assignee acknowledge and agree
that the security deposit in the amount of
$             held
by Landlord on behalf of Assignor shall be refunded to Assignor upon execution
of this Assignment by Assignor and Assignee. Assignor and Assignee further
acknowledge and agree that any other prepaid rent or other sums, if any, held
by Landlord on behalf of Assignor shall be held by Landlord for the account of
Assignee and that there is no abated or free rent due Assignor or Assignee
under the terms of the Lease. Should there be any prepaid rent, security
deposit or abated or free rent due, Assignor hereby relinquishes and releases
all right, title and interest in any prepaid rent or security deposit which
Assignor or any predecessor of assignor may paid to Landlord and further
transfers any such interest to Landlord or Assignee as the case may be.




 




6.         Conditions. Landlord’s consent to this Assignment is conditioned upon the
following:




 




6.1       Payment of Landlord’s Attorney’s Fees. Assignor or Assignee shall deliver to Landlord, pursuant to the terms
of the Lease, payment in the amount of
$               
as Landlord’s reasonable attorney’s fees in reviewing and documenting this Assignment.




 


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7.         Compliance
with Laws. Assignee acknowledges and agrees that the operation of
Assignee’s business may involve the use of hazardous or toxic substances or
materials (collectively “Hazardous Materials”) as defined in the Lease.
Notwithstanding any covenants contained in the Lease, Assignee acknowledges and
agrees that it will operate its business in the Premises in compliance with all
rules and regulations promulgated by any governmental or quasi-governmental
authority having jurisdiction over the use of Hazardous Materials.




 




8.         Amendments
to Lease. Landlord and Assignee shall have the right to amend the Lease or
enter into any agreement which would modify the obligations of the parties
under the Lease without the consent of Assignor. Any such amendment or
modification shall be binding upon Assignor during the term of the Lease or any
extension thereof.




 




9.         Notice.
The parties acknowledge and agree that from and after the Effective Date the
addresses for notice as required by the Lease or this Assignment shall be as
follows:




 




Landlord




 




c/o Boyd Enterprises 

1946 East Edinger 

Santa Ana, CA 92705 

Attention: Willis Boyd, Jr.




 




Assignor




 


 




Assignee




 


 




10.       Successors.
This Assignment shall be binding on and inure to the benefit of the parties and
their successors, except that such restrictions upon assignment as are
contained in the Lease shall continue to apply.




 




11.       Integration.
This Assignment contains and embodies the full and complete understanding of
the parties with regard to assignment and assumption of the Lease, including
any and all representations, covenants, conditions and warranties; and no other
agreements, understandings, representations, covenants, conditions or
warranties have been made or relied upon in entering into the Assignment. All
prior discussions and negotiations regarding the assignment and assumption of
the Lease have been and are merged and integrated into, and are superseded by,
the Assignment.




 




12.       Governing
Law. This Assignment shall be governed by and construed under the internal
laws of the State of Utah; not the law of conflicts.




 


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13.       Paragraph
Headings. The paragraph headings in the Assignment are for convenience of
reference only and shall not limit or otherwise affect the meanings of those
paragraphs.




 




14.       Counterparts.
The Assignment may be executed in counterparts, each of which shall be deemed
an original but which together shall constitute the same instrument.




 




15.       No
Implied Waivers. The failure of either party at any time to enforce any provision
of the Assignment, or to require performance under any provisions of the
Assignment, shall not affect in any way that party’s right to enforce such
provision or require full performance at any time thereafter. The waiver of any
breach shall not be construed as a waiver of the provision.




 




16.       Severability.
If any provision of this Assignment or any part of such provision is invalid or
incapable of enforcement, for any reason, all other provisions and the
remainder of any partially invalid provision shall remain in full force and
effect, it being the parties’ intention that their conduct and obligations be
governed, so far as possible, by the Assignment. No provision or part thereof
shall be deemed dependent on any other part or provision, unless so expressed.




 




17.       Amendment.
This Assignment may be amended at any time only by the written agreement of the
parties. All amendments, changes, revisions and discharges of this Assignment,
in whole or in part, and from time to time, shall be binding upon the parties
despite any lack of legal consideration, so long as the same shall be in
writing and executed by the parties.




 




18.       No
Third Party Benefit. Except as otherwise set forth herein, this Assignment
is intended to benefit only the parties hereto, and no other person or entity
has or shall acquire any rights hereunder.




 




19.       Further
Acts. Each party hereby agrees that it shall, upon request of the other,
execute and deliver such further documents (in form and substance reasonably
acceptable to the party to be charged) and to do such other acts and things as
are reasonably necessary and appropriate to effectuate the terms and conditions
of this Assignment.




 




20.       Voluntary
Agreement; Authority. The parties have read this Assignment, and on advice
of counsel, or following the opportunity to obtain such advice and the decision
to proceed without it, they have freely and voluntarily entered into this
Assignment.




 




21.       Conflicts
with Lease. In the event of any conflict between the terms of the Lease and
the terms of this Assignment, the terms of this Assignment shall control.




 




22.       Attorney’s
Fees. In the event of any dispute arising from the interpretation or
enforcement of this Assignment, the prevailing party in any action, arbitration
or proceeding to interpret or enforce the terms of this Assignment shall
receive its attorney’s fees and costs incurred therein.




 




23.       Estoppel.
Assignor warrants, represents and certifies and to Landlord and Assignee that
as of the date of this Amendment, (a) Landlord is not in default under the
Lease, as amended by this Amendment, and (b) Assignor does not have any
defenses or offsets to payment of rent and performance of its obligations under
the Lease, as amended, if at all, by this Assignment, as and when the same
become due.




 




[signatures
on following page]




 


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IN WITNESS WHEREOF the parties hereto have executed
this Assignment as of the date first written above.




 




	
   

  	
   

  	
  Landlord

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Assignor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  a

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Assignor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  a

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
   

  	
   

  
									





 


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AMENDED
AND RESTATED 

SECURITY AGREEMENT




 




THIS AMENDED AND RESTATED SECURITY AGREEMENT (this “Agreement”)
is made as of November 19, 2007, by CONSONUS ACQUISITION CORP., a Delaware
corporation (“Borrower”), in favor of U.S. BANK NATIONAL ASSOCIATION (“Lender”).




 




RECITALS




 




A.       Pursuant
to an Amended and Restated Credit Agreement of even date herewith, as the same
may be amended, restated, modified or supplemented from time to time in
accordance with the terms thereof (the “Credit Agreement”), Lender has agreed
to extend to Borrower (i) a term loan in the original principal amount of TEN
MILLION FIVE HUNDRED THOUSAND DOLLARS ($10,500,000.00) (the “2005 Term Loan”),
(ii) a term loan in the original principal amount of ONE MILLION EIGHT HUNDRED
SIXTY-ONE THOUSAND DOLLARS ($1,861,000.00) (the “2007 Term Loan”), and (iii) a
revolving line of credit in the maximum principal amount of TWO MILLION FIVE
HUNDRED THOUSAND DOLLARS ($2,500,000.00) (the “Line of Credit” and, together
with the 2005 Term Loan and the 2007 Term Loan, the “loans”), on the terms and
conditions set forth in the Credit Agreement. Capitalized terms used but not
otherwise defined herein shall have the meanings given them in the Credit
Agreement.




 




B.        The
Loans are or will be evidenced by (i) a Term Note, dated as of May 31, 2005, in
the original principal amount of the 2005 Term Loan; (ii) a Term Note of even
date herewith, in the original principal amount of the 2007 Term Loan; and
(iii) a Line of Credit Note dated as of May 31, 2005, in the maximum principal
amount of the Line of Credit (collectively, as they may be amended, restated,
modified or supplemented from time to time in accordance with the terms
thereof, the “Notes”).




 




C.        As
a condition to making the Loans, Lender has required that Borrower grant to
Lender a security interest in all assets of Borrower to secure the obligations
of Borrower under the Credit Agreement, the Notes, and all other documents
executed in connection therewith (collectively, the “Loan Documents”).




 




D.        This
Agreement amends, restates, and supercedes in its entirety that certain
Security Agreement, dated as of May 31, 2005, made by Borrower in favor of
Lender.




 




NOW, THEREFORE, Borrower hereby covenants and agrees
as follows:




 




1.         GRANT OF SECURITY INTEREST. As collateral
security for the prompt and complete payment and performance when due (whether
at the stated maturity, by acceleration or otherwise) of all the obligations of
Borrower under the Loan Documents (the “Secured Obligations”), Borrower hereby
grants, conveys and transfers to Lender a security interest in all of the
property of Borrower described as follows (collectively, the “Collateral”):




 




1.1       all
accounts or other rights to payment, whether or not evidenced by a contract,
instrument, chattel paper or otherwise, and whether or not earned by
performance;




 




1.2       all
intellectual property, if any, including without limitation (i) all trademarks,
trade names, corporate names, company names, business names, fictitious
business names, trade styles, service marks, logos and other source or business
identifiers, and the goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations or recordings thereof, and all
applications in connection therewith, whether in the United States Patent and
Trademark Office or in any similar office or agency of the United States or any
State thereof; and (ii) all letters patent of the United States and all
reissues and




 


1

















 




extensions thereof, and all applications for letters
patent of the United States;




 




1.3       all
inventory of every type or description, wherever located, including, but not
limited to, all raw materials, supplies, parts, components, containers, work in
process, finished goods, wares and merchandise, and goods returned for credit,
repossessed, reclaimed or otherwise reacquired by Borrower, and also including
products of and accessions to inventory and packing and shipping materials, and
all documents of title, whether negotiable or non-negotiable, representing any
of the foregoing; and all books and records relating to any of the foregoing;




 




1.4       all
warehouse receipts, bills of sale, bills of lading and other documents of every
kind (whether or not negotiable) in which Borrower now has or at any time
hereafter acquires any interest, and all additions and accessions thereto, whether
in the possession or custody of Borrower, any bailee or any other person for
any purpose;




 




1.5       all
right, title and interest of Borrower under any contracts, instruments,
undertakings, documents or other agreements in or under which Borrower may now
or hereafter have any right, title or interest, including without limitation
(i) all rights of Borrower to receive moneys due and to become due to it
thereunder or in connection therewith, (ii) all rights of Borrower to damages
arising out of or for breach or default in respect thereof, and (iii) all
rights of Borrower to perform and to exercise all remedies thereunder;




 




1.6       all
Borrower’s goods, tools, machinery and other equipment, furnishings, furniture
and other equipment and fixtures of every kind now existing or hereafter
acquired, and improvements, replacements, accessions and additions thereto,
whether located on any property owned or leased by Borrower or elsewhere,
including, without limitation, any of the foregoing now or at any time
hereafter located at or installed on the land or in the improvements at any of
the real property owned or leased by Borrower, and all such goods after they
have been severed and removed from any of said real property;




 




1.7       all
Borrower’s motor vehicles, trailers, mobile homes, boats, other rolling stock
and related equipment of every kind now existing or hereafter acquired and all
additions and accessories thereto, whether located on any property owned or
leased by Borrower or elsewhere; and




 




1.8       all
(i) proceeds (including insurance proceeds), products, substitutions and
replacements of the above described Collateral, (ii) additions and accessions
to and documents covering the above- described Collateral, (iii) claims against
third parties arising out of damage, destruction, or decrease in value of the
above-described Collateral, (iv) rents revenues, issues, profits, and proceeds
arising from the sale, lease, license, encumbrance, collection or any other
temporary or permanent disposition, whether voluntary or involuntary, of the
above-described Collateral, and (v) all books and records relating to the
above-described Collateral (collectively, “Proceeds”).




 




2.         RIGHT OF SETOFF. As collateral security for
the prompt and complete payment and performance when due (whether at stated
maturity, acceleration, or otherwise) of all Secured Obligations, Borrower
hereby grants, conveys, transfers and pledges all of Borrower’s right, title
and interest in and to Borrower’s accounts with Lender (whether checking,
savings, or other), including all accounts held jointly with another person or
entity, and all accounts Borrower may open in the future, excluding however all
IRA, Keogh and trust accounts. Borrower authorizes Lender, during the
continuance of a Default, and to the extent permitted by applicable law, to
charge or setoff all Obligations of Borrower under the Credit Agreement against
any and all such accounts, and, at Lender’s option, to administratively freeze
all such accounts to allow Lender to protect Lender’s charge and setoff rights
provided in this paragraph. Lender shall provide Borrower notice of Lender’s
exercise of this right immediately after such exercise.




 




3.         TERMINATION. This Agreement will terminate
upon the performance of all Obligations of Borrower to Lender, including
without limitation, the payment of all indebtedness of Borrower to Lender,




 


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and the termination of all commitments of Lender to
extend credit to Borrower, existing at the time Lender receives written notice
from Borrower of the termination of this Agreement. Upon such termination,
Lender agrees to take all necessary actions to evidence and effect the
termination and release of the security interests granted hereunder, including,
without limitation, the execution and delivery of UCC termination statements
and the return of the Notes.




 




4.         OBLIGATIONS OF LENDER. Lender has no
obligation to make any loans hereunder. Any money received by Lender in respect
of the Collateral during the continuance of a Default or of any condition
which, with the giving of notice or the passage of time or both, would become a
Default may be deposited, at Lender’s option, into a non-interest bearing
account over which Borrower shall have no control, and the same shall, for all
purposes, be deemed Collateral hereunder.




 




5.         REPRESENTATIONS AND WARRANTIES. Borrower
represents and warrants to Lender that:




 




5.1       Borrower
is and, except as expressly permitted herein, will remain, the owner, or have
possession or control, of the Collateral and Proceeds;




 




5.2       Borrower
has the right to grant a security interest in the Collateral and Proceeds;




 




5.3       all
Collateral and Proceeds are free from liens, adverse claims, setoffs, default,
prepayment and licenses of any kind or character, except the Permitted Liens;




 




5.4       no
financing statement covering any of the Collateral or Proceeds, and naming any
secured party other than Lender, is on file in any public office (other than
the Permitted Liens);




 




5.5       the
liens granted herein constitute perfected liens on the Collateral in favor of
Lender, which are prior to all other liens on such Collateral created by
Borrower, except for Permitted Liens, and which are enforceable as such against
all creditors of and purchasers from Borrower (except for purchasers of
inventory and finished goods in the ordinary course of business).




 




5.6       all
statements by Borrower contained herein are true and complete in all material
respects;




 




5.7       where
Collateral consists of rights to payment, to Borrower’s knowledge, all persons
appearing to be obligated on the Collateral and Proceeds have authority and
capacity to contract and are bound as they appear to be, any property subject
to chattel paper has been properly registered and filed in compliance with law
and to perfect the interest of Borrower in such property, and, to Borrower’s
knowledge, all such Collateral and Proceeds comply in all material respects
with all applicable laws concerning form, content and manner of preparation and
execution, including where applicable Federal Reserve Regulation Z and any
State consumer credit laws;




 




5.8       where
the Collateral consists of equipment, Borrower is not in the business of
selling goods of the kind included within such Collateral, and Borrower
acknowledges that no sale of any such Collateral, including without limitation,
any such Collateral which Borrower may deem to be surplus, has been consented
to or acquiesced in by Lender, except as specifically set forth herein or in
writing by Lender;




 




5.9       Borrower
is a corporation organized under the laws of the State of Delaware, and is
qualified to do business in the State of Utah. The chief executive office of
Borrower is located at:




 




445 Park Avenue, 20th Floor

New York, New York 10022




 


3

















 




5.10     Borrower
warrants that the Collateral (except goods in transit) is located or domiciled
at the address of the chief executive office set forth above and the following
additional addresses only:




 




118 South 1000 West

Salt Lake City, Utah 84104




 




180 East 100 South

Salt Lake City, Utah




 




7202 South Campus Drive

West Jordan, Utah




 




2282 South Presidents Drive

Salt Lake City, Utah




 




6.         COVENANTS OF BORROWER. Borrower covenants
and agrees that from and after the date of this Agreement until the Secured
Obligations are paid in full:




 




6.1       Borrower
will pay all recordation costs and taxes incident to filing of financing
statements and continuation statements and all other expenses, including
reasonable attorneys’ fees, incident to perfecting Lender’s security interest in
the Collateral.




 




6.2       At
any time and from time to time upon Lender’s request, Borrower will endorse,
execute and deliver to Lender all instruments and documents, including without
limitation financing or continuation statements under the Uniform Commercial
Code in effect in any jurisdiction with respect to liens created hereunder,
loss payable endorsements for insurance policies, assignments of insurance
policies and proceeds, and all related documentation of any kind, and do all
things necessary or convenient in the sole discretion of Lender to carry into
effect the provisions of this Agreement or to create, preserve or perfect any
interest granted herein or to enable or assist the Lender to exercise and
enforce its rights hereunder or in connection herewith, and to facilitate
collection of the Collateral. Borrower authorizes Lender to file any charge,
financing statement or continuation statement in such form, with or without
Borrower’s signature, and in such places as may be appropriate. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced
by any instrument or chattel paper, other than checks which Borrower deposits
for collection within three business days of receipt, such instrument or
chattel paper shall be immediately delivered to Lender, duly endorsed by
Borrower in a manner satisfactory to Lender, to be held as Collateral pursuant
to this Agreement.




 




6.3       Without
the prior written notice to Lender, Borrower shall not change the location of
an executive office or place of business, and Borrower shall advise Lender of
any change in Borrower’s name.




 




6.4       Borrower
shall not change the location of any Collateral or remove any of the Collateral
from Borrower’s premises, except for (i) deliveries to buyers in the ordinary
course of Borrower’s business; (ii) Collateral which consists of mobile goods
as defined in the Uniform Commercial Code, in which case Borrower agrees not to
remove or permit the removal of such Collateral from its state of domicile for
a period in excess of thirty (30) calendar days; and (iii) moves contemplated
by the transactions permitted under Section 6.7 hereof.




 




6.5       With
regard to the Collateral and Proceeds, unless Lender agrees otherwise in
writing, Borrower shall (i) where applicable, insure the Collateral with Lender
as loss payee, in form, substance and amounts, under agreements, against risks
and liabilities, and with insurance companies satisfactory to Lender; (ii) pay
when due all license fees, registration fees and other charges in connection
with any Collateral.




 


4

















 




6.6       Borrower
shall, where applicable, operate the Collateral in all material respects in
accordance with all applicable statutes, rules and regulations relating to the
use and control thereof, and shall not use any Collateral for any unlawful
purpose or in any way that would void any insurance required to be carried in
connection therewith.




 




6.7       Borrower
shall not (i) permit any lien on the Collateral or Proceeds, including without
limitation liens arising from repairs to or storage of the Collateral, except
for the Permitted Liens; (ii) sell, hypothecate or dispose of, nor permit the
transfer by operation of law of, any of the Collateral or Proceeds or any
interest therein, except (a) sales of inventory and finished goods to buyers in
the ordinary course of Borrower’s business, and (b) other sales or dispositions
of Collateral not in the ordinary course of business but not in excess of Fifty
Thousand Dollars ($50,000.00) in any fiscal year;




 




6.8       Borrower
shall permit Lender to inspect the Collateral at any reasonable time upon
reasonable prior notice, and without unreasonable interference to Borrower’s
business, and will keep, in accordance with generally accepted accounting principles,
consistently applied, complete and accurate records regarding all Collateral
and Proceeds, and permit Lender to inspect the same and make copies thereof at
any reasonable time;




 




6.9       Borrower
shall provide any service and do any other acts which may be reasonably
necessary to maintain, preserve and protect all Collateral and, as appropriate
and applicable, to keep all Collateral in good and saleable condition, to deal
with the Collateral in accordance with the standards and practices adhered to generally
by users and manufacturers of like property.




 




7.         POWERS OF LENDER. Borrower appoints Lender
its true attorney in fact to perform any of the following powers, which are
coupled with an interest, are irrevocable until termination of this Agreement, and
may be exercised from time to time by Lender’s officers, employees, and agents,
or any of them: (a) to perform any obligation of Borrower hereunder in
Borrower’s name or otherwise; (b) to give notice to account debtors or others
of Lender’s rights in the Collateral and Proceeds, and if a Default has
occurred, to enforce the same and make extension agreements with respect
thereto; (c) if a Default has occurred, to release persons liable on Collateral
or Proceeds and to give receipts and acquittances and compromise disputes in
connection therewith; (d) if a Default has occurred, to release security; (e)
if a Default has occurred, to resort to security in any order; (f) to prepare,
execute, file, record or deliver notes, assignments, schedules, designation statements,
financing statements, continuation statements, termination statements,
statements of assignment, applications for registration or like papers to
perfect, preserve or release Lender’s interest in the Collateral and Proceeds;
(g) if a Default has occurred, to receive, open and read mail addressed to
Borrower; (h) if a Default has occurred, to take cash, instruments for the
payment of money and other property to which Lender is entitled; (i) to verify
facts concerning the Collateral and Proceeds by inquiry of obligors thereon, or
otherwise, in its own name or a fictitious name; (j) if a Default has occurred,
to endorse, collect, deliver and receive payment under instruments for the
payment of money constituting or relating to Proceeds; (k) if a Default has
occurred, to prepare, adjust, execute, deliver and receive payment under
insurance claims, and to collect and receive payment of and endorse any
instrument in payment of loss or returned premiums or any other insurance
refund or return, and to apply such amounts received by Lender, at Lender’s
sole option, toward repayment of the Secured Obligations or, where appropriate,
replacement of the Collateral; (l) if a Default has occurred, to exercise all
rights, powers and remedies which Borrower would have, but for this Agreement,
with respect to all Collateral and Proceeds subject hereto; (m) if a Default
has occurred, to make withdrawals from and to close deposit accounts or other
accounts with any financial institution, wherever located, into which Proceeds
may have been deposited, and to apply funds so withdrawn to payment of the
Secured Obligations; (n) if a Default has occurred, to preserve or release the
interest evidenced by chattel paper to which Lender is entitled hereunder and
to endorse and deliver evidences of title incidental thereto; and (o) to do all
acts and things and execute all documents in the name of Borrower or otherwise,
deemed by Lender as necessary, proper and convenient in connection with the
preservation, perfection or enforcement of its rights hereunder.




 


5

















 




8.         PAYMENT OF PREMIUMS,
TAXES, CHARGES, LIENS AND ASSESSMENTS. Borrower agrees to pay, prior to
delinquency, all insurance premiums, taxes, charges, liens and assessments
against the Collateral and Proceeds, and upon the failure of Borrower to do so,
Lender at its option may pay any of them and shall be the sole judge of the
legality or validity thereof and the amount necessary to discharge the same.
Any such payments made by Lender shall be obligations of Borrower to Lender,
due and payable immediately upon demand, together with interest in accordance
with the terms of the Credit Agreement, and shall be secured by the Collateral
and Proceeds, subject to all terms and conditions of this Agreement.




 




9.         EVENTS OF DEFAULT. The occurrence of a
Default under the Credit Agreement shall constitute a “Default” under this
Agreement.




 




10.       EFFECT OF DEFAULT; REMEDIES.




 




10.1     Upon
the occurrence of any Default, Lender shall have the right to declare
immediately due and payable all or any indebtedness secured hereby and to
terminate any commitments to make loans or otherwise extend credit to Borrower.
Lender shall have all other rights, powers, privileges and remedies granted to
a secured party upon default under the Uniform Commercial Code or otherwise
provided by law, including without limitation the right to contact all persons
obligated to Borrower on any Collateral or Proceeds and to instruct such
persons to deliver all Collateral and/or Proceeds directly to Lender.




 




10.2     All
rights, powers, privileges and remedies of Lender shall be cumulative.




 




10.3     No
delay, failure or discontinuance of Lender in exercising any right, power,
privilege or remedy hereunder shall affect or operate as a waiver of such
right, power, privilege or remedy; nor shall any single or partial exercise of
any such right, power, privilege or remedy preclude, waive or otherwise affect
any other or further exercise thereof or the exercise of any other right,
power, privilege or remedy. Any waiver, permit, consent or approval of any kind
by Lender of any default hereunder, or any such waiver of any provisions or
conditions hereof, must be in writing and shall be effective only to the extent
set forth in writing.




 




10.4     While
a Default exists (i) Borrower shall deliver to Lender from time to time, as
reasonably requested by Lender, current lists of all Collateral and Proceeds;
(ii) Borrower will not dispose of any of the Collateral or Proceeds except on
terms approved by Lender or as permitted herein; (iii) at Lender’s request,
Borrower shall assemble and deliver all Collateral and Proceeds, and books and
records pertaining thereto, to Lender at a reasonably convenient place
designated by Lender; and (iv) Lender may, without notice to Borrower, enter
onto Borrower’s premises and take possession of the Collateral.




 




10.5     With
respect to any sale by Lender of any Collateral subject to this Agreement,
Borrower hereby expressly grants to Lender the right to sell such Collateral
using any or all of Borrower’s trademarks, trade names, trade name rights
and/or proprietary labels or marks.




 




10.6     It
is agreed that public or private sales, for cash or on credit, to a wholesaler
or retailer or investor, or user of property of the types subject to this
Agreement, or public auction, are all commercially reasonable since differences
in the sales prices generally realized in the different kinds of sales are
ordinarily offset by the differences in the costs and credit risks of such
sales.




 




11.       TRANSFER BY LENDER OF COLLATERAL AND PROCEEDS. Upon
the transfer of all or any part of the Secured Obligations, Lender may transfer
all or any part of the Collateral or Proceeds and shall be fully discharged
thereafter from all liability and responsibility with respect to any of the
foregoing so transferred, and the transferee shall be vested with all rights
and powers of Lender hereunder with respect to any of the foregoing so
transferred; but with respect to any Collateral or Proceeds not so transferred,




 


6

















 




Lender shall retain all rights, powers, privileges and
remedies herein given. Any proceeds of any disposition of any of the Collateral
or Proceeds, or any part thereof, may be applied by Lender to the payment of
expenses incurred by Lender in connection with the foregoing, including
reasonable attorneys’ fees, and the balance of such proceeds may be applied by
Lender toward the payment of the Secured Obligations in such order of
application as Lender may from time to time reasonably elect.




 




12.       STATUTE OF LIMITATIONS. Until all Secured
Obligations shall have been paid in full and all commitments by Lender to
extend credit to Borrower have been terminated, the power of sale and all other
rights, powers, privileges and remedies granted to Lender hereunder shall
continue to exist and may be exercised by Lender at any time and from time to
time irrespective of the fact that the Secured Obligations or any part thereof
may have become barred by any statute of limitations, or that the personal
liability of Borrower may have ceased, unless such liability shall have ceased
due to the payment in full of all indebtedness secured hereby.




 




13.       NOTICES. All notices or other
communications required or permitted to be given pursuant to the provisions of
this Agreement shall be in writing and shall be considered as properly given if
delivered personally or sent by first class U.S. mail, postage prepaid, except
that notice of a Default may be sent by certified mail, return receipt requested,
or by Overnight Express Mail or by overnight commercial courier service,
charges prepaid. Notices so sent shall be effective three (3) days after
mailing, if mailed by first class mail, and otherwise upon receipt at the
addresses set forth below. For purposes of notice, the addresses of the parties
shall be:




 




	
   

  	
  Lender:

  	
  U.S. Bank National Association

  PD-UT-GT6

  15 West South Temple, 6th Floor

  Salt Lake City, Utah 84101

  Attn: Nicholas Hintze

  
	
   

  	
   

  	
   

  
	
   

  	
  Borrower:

  	
  Consonus Acquisition Corp.

  445 Park Avenue, 20th Floor

  New York, NY 10022

  





 




Any party shall have the right to change its address
for notice hereunder to any other location within the continental United States
by the giving of thirty (30) days notice to the other party in the manner set
forth hereinabove.




 




14.       MISCELLANEOUS.




 




14.1     Borrower’s Waivers. Borrower hereby waives
any right (i) to require Lender to make any presentment or demand, or give any
notice of nonpayment or nonperformance, protest, notice of protest or notice of
dishonor hereunder except in accordance with the terms of the Credit Agreement,
(ii) to direct the application of payments or security for any indebtedness of
Borrower, or, upon the occurrence of a Default (or any event that with notice
or passage of time would constitute a Default) indebtedness of customers of
Borrower, or (iii) to require proceedings against others or to require
exhaustion of security. Borrower hereby consents to extensions, forbearances or
alterations of the terms of indebtedness, the release or substitution of
security, and the release of any guarantors; provided however, that in each
instance, Lender believes in good faith that the action in question is
commercially reasonable in that it does not unreasonably increase the risk of
nonpayment of the indebtedness to which the action applies. Until all Secured
Obligations shall have been paid and performed in full, Borrower shall have no
right of subrogation or contribution, and Borrower hereby waives any benefit of
or right to participate in any of the Collateral or Proceeds or any other
security now or hereafter held by Lender.




 


7

















 




14.2     Costs, Expenses and Attorneys Fees. Borrower
shall pay to Lender immediately upon demand the full amount of all payments,
advances, charges, costs and expenses, including reasonable attorneys’ fees (to
include outside counsel fees and all allocated costs of Lender’s in-house
counsel), expended or incurred by Lender in exercising any right, power,
privilege or remedy conferred by this Agreement or in the enforcement thereof,
whether incurred at the trial or appellate level, in an arbitration proceeding
or otherwise, and including any of the foregoing incurred in connection with
any bankruptcy proceeding (including without limitation, any adversary
proceeding, contested matter or motion brought by Lender or any other person)
relating to Borrower or in any way affecting any of the Collateral or Lender’s
ability to exercise any of its rights or remedies with respect thereto.




 




14.3     Successors; Assigns; Amendment. This
Agreement shall be binding upon and inure to the benefit of the heirs,
executors, administrators, legal representatives, successors and assigns of the
parties, and may be amended or modified only in writing signed by Lender and Borrower
or their respective successors or assigns.




 




14.4     Severability of Provisions. If any
provision of this Agreement shall be held to be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or any remaining provisions of this Agreement.




 




14.5     Entire Agreement. This Agreement, together
with the Loan Documents, constitutes and contains the entire agreement between
the parties regarding the subject matter thereof, and supercedes and replaces
all prior agreements, promises and understandings, whether written or oral,
prepared or otherwise, regarding the subject matter hereof.




 




14.6     Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Utah, except to
the extent that the validity or perfection of the security interest granted
herein or the exercise of the remedies set forth herein in respect of any
particular collateral are governed by the laws of a jurisdiction other than the
State of Utah.




 




IN WITNESS WHEREOF, this Agreement has been duly
executed as of the date first set forth above.




 


 




	
   

  	
   

  	
  CONSONUS ACQUISITION CORP.,

  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Daniel S. Milburn

  	
   

  
	
   

  	
   

  	
   

  	
  Daniel S. Milburn

  	
   

  
	
   

  	
   

  	
   

  	
  Chief Operating Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  “LENDER”

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  U.S. BANK
  NATIONAL ASSOCIATION,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Nicholas Hintze

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Nicholas Hintze

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Vice-President

  	
   

  





 


8

















 




AMENDED AND
RESTATED 

ASSIGNMENT OF MATERIAL CONTRACTS




 




FOR VALUE RECEIVED, CONSONUS ACQUISITION CORP., a
Delaware corporation (“Assignor”), assigns to U.S. BANK NATIONAL ASSOCIATION
(“Lender”), its rights under all existing and future contracts and agreements
of any kind between Assignor or any Affiliate of Assignor and any other person
or entity (collectively, “Material Contracts”) relating to the operation of
those certain data centers, information technology networks and web-enabled
application delivery systems located at the addresses set forth in Exhibit A
attached hereto (the “Business”). The Material Contracts include, without
limitation, that certain Asset Purchase Agreement by and between Assignor and
Consonus, Inc., a Utah corporation, dated May 31, 2005 (the “Asset Purchase
Agreement”) and all Master Services Agreements and related documents entered
into by and between Assignor and its customers.




 




This ASSIGNMENT OF MATERIAL CONTRACTS (“Assignment”)
is executed pursuant to (i) an Amended and Restated Credit Agreement of even
date herewith between Assignor and Lender, pursuant to which Lender has
extended or has agreed to extend to Borrower (i) a term loan in the original
principal amount of $10,500,000.00) (ii) a line of credit in the maximum
principal amount of $2,500,000.00), and (iii) a term loan in the principal
amount of $1,861,000.00 (the “Credit Agreement”). Capitalized terms used but
not otherwise defined herein shall have the meanings given them in the Credit
Agreement.




 




This Assignment amends, restates, and replaces in its
entirety that certain Assignment of Material Contracts, dated as of May 31,
2005, made by Assignor for the benefit of Lender.




 




This Assignment constitutes a present and absolute
assignment to Lender as of the Effective Date; provided, however,
Lender confers on Assignor the right to enforce the terms of the Material
Contracts so long as no Event of Default has occurred and is continuing under
any of the Loan Documents. Upon the occurrence of an Event of Default under any
of the Loan Documents, Lender may, in its sole discretion, give notice to
Assignor of its intent to enforce the rights of Assignor under the Material
Contracts and may initiate or participate in any legal proceedings respecting
the enforcement of said rights. Assignor acknowledges that by accepting this
Assignment, Lender does not assume any of Assignor’s obligations under the
Material Contracts.




 




Assignor represents and warrants to Lender, as of the
Effective Date, that (a) all Material Contracts entered into by Assignor are in
full force and effect and are enforceable in accordance with their terms and no
default, or event which would constitute a default after notice or the passage
of time, or both, exists with respect to said Material Contracts; (b) all
copies of the Material Contracts delivered to Lender are complete and correct;
and (c) Assignor has not assigned any of its rights under the Material
Contracts. Assignor shall deliver to Lender a true, complete and correct copy
of all Material Contracts entered into after the date hereof, promptly upon
execution thereof.




 




Assignor agrees (a) to pay and perform all obligations
of Assignor under the Material Contracts; (b) to enforce the payment and
performance of all obligations of any other person or entity under the Material
Contracts; and (c) not to further assign, for security or any other purposes,
its rights under any of the Material Contracts without Lender’s prior written
consent.




 




This Assignment is one of the Loan Documents and
secures payment and performance by Borrower of all obligations of Borrower
under the Loan Documents. This Assignment is supplemented by those provisions
of the Credit Agreements which apply to the Loan Documents and said provisions
are incorporated herein by reference.




 




Assignor agrees
that it shall execute such assignments of specific contracts as Lender may
request in order to fulfill the purposes of this Assignment.




 

















 




Dated as of November 19, 2007.




 




	
   

  	
   

  	
  “ASSIGNOR”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CONSONUS ACQUISITION
  CORP.,

  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Daniel S. Milburn

  	
   

  
	
   

  	
   

  	
   

  	
  Daniel S. Milburn

  	
   

  
	
   

  	
   

  	
   

  	
  Chief Operating
  Officer

  	
   

  





 

















 




PLEDGE AND
SECURITY AGREEMENT




 




THIS PLEDGE AND SECURITY AGREEMENT is made and
executed as of November 19, 2007, by CONSONUS ACQUISITON CORP., a Delaware corporation
(“Borrower”), in favor of U.S. BANK NATIONAL ASSOCIATION (“Lender”).




 




RECITALS:




 




A.       Pursuant
to the terms of an Amended and Restated Credit Agreement of even date herewith
between Borrower and Lender (the “Credit Agreement”), Lender has agreed to
extend Borrower a Term Loan in the original principal amount of ONE MILLION
EIGHT HUNDRED SIXTY-ONE THOUSAND AND 00/100THS DOLLARS ($1,861,000.00) (the
“Term Loan”) for the purposes specified in the Credit Agreement.




 




B.        The
Credit Agreement provides that the Term Loan shall be evidenced by a promissory
note (the “Note”) executed by Borrower payable to the order of Lender in the
principal amount of the Loan. The term “Loan Documents” for purposes hereof
shall mean the Credit Agreement, the Note and those other documents described
in the Credit Agreement as Loan Documents. Capitalized terms used but not
otherwise defined herein shall have the meanings given such terms in the Credit
Agreement.




 




C.        As
a condition to entering into the Credit Agreement and making the Term Loan,
Lender requires that Borrower pledge and grant a security interest to Lender,
as security for repayment of the Loan and all the obligations of Borrower under
the Loan Documents, all money now or hereafter deposited in that certain account
in Borrower’s name, with Lender, identified as Account No. 153195055956 (the
“Account”) for the purposes specified herein.




 




NOW, THEREFORE, to induce Lender to enter into the
Credit Agreement and to extend the Loan, and in consideration thereof, Borrower
agrees as follows:




 




1.         Grant
of Security Interest. Borrower hereby grants to Lender a security interest
in all money now or hereafter deposited into the Account (the “Account Funds”).




 




2.         Remedies.




 




(a) If a Default shall have occurred and be
continuing, Lender may, but shall have no obligation to, (i) make demand under
the Account and take all action necessary to receive payment and benefits
thereof, (ii) take title to the Account and the Account Funds in its own name,
and (iii) receive all monies which become due to Borrower from or with regard
to the Account. Lender is hereby irrevocably appointed the true and lawful
attorney-in-fact of Borrower in Borrower’s name and stead, to act with respect
to the Account and the Account Funds as it may deem desirable to effectuate the
provisions of this Agreement.




 




(b) Without limiting the generality of the foregoing,
in the event that Borrower should default in its obligations as the tenant
under the Lease, and, pursuant to any agreement between Lender and the landlord
under the Lease, Lender should be obligated or deem it appropriate to pay rent
under the Lease while Lender cures such default on Borrower’s behalf or
exercises any of Lender’s rights under the Credit Agreement with respect to any
Collateral located in the New Data Center, then Lender may withdraw Account
Funds and apply them to the payment of such rent. If Lender uses Account Funds
to cure a default of Borrower as the tenant under the Lease, then Borrower
shall, within five (5) days after a demand from Lender, deposit into the
Account a sum equal to the amount so used by Lender.




 




3.         Covenant
of Borrower. Borrower shall, at its own expense, make, execute, endorse,
acknowledge, file and/or deliver to Lender from time to time such assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or




 


1

















 




instruments and take such further steps relating to
the Account and the Account Funds as Lender may reasonably require in order to
perfect its security interest in the Account and the Account Funds.




 




4.         Remedies
Cumulative. The remedies provided herein in favor of Lender shall not be
deemed exclusive, but shall be cumulative, and shall be in addition to all
other remedies in favor of Lender existing at law or in equity. Without
limiting the foregoing, Lender may exercise its rights with respect to the
Account and the Account Funds without obligation to resort to other security.




 




5.         No
Waiver. No delay on the part of Lender in exercising any of its rights,
remedies, powers and privileges hereunder or partial or single exercise
thereof, shall constitute a waiver thereof. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by the party to be charged. No notice
so or demand on Borrower in any case shall entitle Borrower to any other or
further notice or demand.




 




7.         Continuation
in Force. The obligations of Borrower hereunder shall remain in full force
and effect without regard to, and shall not be impaired by (a) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or the like of Borrower, (b) any exercise or nonexercise, or any waiver of, any
right, remedy, power or privilege under or in respect to the obligations of
this Agreement, or any other security therefor other than as expressly provided
in this Agreement or (c) any amendment to or modification of the Notes, any
Loan Document, or any other documents or instruments delivered in connection
therewith or any other security therefor, whether or not Borrower shall have
notice or knowledge of any of the foregoing.




 




8.         Binding
Effect. This Agreement shall be binding upon Borrower and its successors
and assigns and shall inure to the benefit of Administrative Agent, Lenders,
and their successors and assigns, except that Borrower may not transfer or
assign any of its obligations, rights or interests hereunder without the prior
written consent of Borrower. All agreements, representations and warranties
made herein shall survive the execution and delivery of this Agreement and any
sale of any portion of the interests.




 




9.         Notices.
Notices hereunder shall be sent to the party or parties entitled thereto at the
addresses and in the manner provided in the Credit Agreement.




 




10.       Termination.
This Agreement and the security interests granted herein shall terminate
immediately after payment in full of all Borrower’s obligations under the Term
Loan.




 




11.       Severability.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.




 




12.       Governing
Law. This Agreement and the rights and obligations of the parties hereunder
shall be construed in accordance with and be governed by the laws of the State
of Utah applicable to contracts made and to be performed entirely therein.




 




[Signature
Page to Follow]




 


2

















 




IN WITNESS WHEREOF, this Agreement has been executed
as of the first date set forth above.




 




	
   

  	
   

  	
  CONSONUS ACQUISITION CORP.,

  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Daniel S. Milburn

  	
   

  
	
   

  	
   

  	
   

  	
  Daniel S. Milburn

  	
   

  
	
   

  	
   

  	
   

  	
  Chief Operating Officer

  	
   

  





 


3

















 




LANDLORD’S
ESTOPPEL CERTIFICATE AND AGREEMENT




 




This Landlord’s Estoppel Certificate and Agreement
(this “Agreement”) is entered into as of November 19, 2007, by and BOYD
ENTERPRISES UTAH, L.L.C., a Utah limited liability company (“Landlord”),
CONSONUS ACQUISITION CORP., a Delaware corporation (“Tenant”) and U.S. BANK
NATIONAL ASSOCIATION (“Lender”).




 




RECITALS




 




A.       Landlord
is the Landlord under that certain Lease, dated as of July, 2004, as assigned
by an Assignment and Assumption of Lease, dated NOVEMBER 19, 2007 (the
“Lease”), pursuant to which Landlord leases certain premises in a building
located at 2282 South Presidents Drive, Salt Lake City, Utah (the “Premises”)
to Tenant.




 




B.        Pursuant
to that certain Amended and Restated Credit Agreement of substantially even
date herewith between Lender, as lender, and Tenant, as borrower, Lender has
agreed to extend to Tenant, among other things, a term loan to be used to
retrofit the Premises as a data center and purchase equipment therefor (the
“Loan”). The Loan will be secured by, among other things, a collateral
assignment of lease assigning to Lender as security Tenant’s leasehold interest
in the Premises.




 




C.        As
a condition to extending the Loan, Lender requires that Landlord execute this
Agreement to recognize Lender’s interest in the Premises and to provide Lender
with certain rights with respect to the Lease and the Premises.




 




NOW, THEREFORE, Landlord and Lender hereby agree as
follows:




 




1.         Status of Lease. Landlord hereby certifies
to Lender as follows: (a) The Lease is now in full force and effect and has not
been amended; (b) Landlord has consented to the assignment of the Lease to
Tenant, and Tenant is the current tenant under the Lease; (c) to Landlord’s
knowledge, Tenant is not in default of any of its obligations thereunder; and
Landlord has not served upon Tenant any notice of any default under the Lease;
and (d) to Landlord’s knowledge, there does not appear to be any existing
situation at the Premises which would give rise to the service upon Tenant of
any notice of any default.




 




2.         Tenant’s Default. In the event Tenant
should default in any of its obligations under the Lease, prior to terminating
the Lease as a remedy for such default, Landlord shall: (a) concurrently with
notice given to Tenant, provide Lender with notice specifying the nature of
such default, the section of the Lease under which such default arose, the
remedy which Landlord will elect under the terms of the Lease or otherwise and
the time period granted to Tenant to cure such default (“Tenant’s Cure
Period”), and (b) allow Lender thirty (30) additional days following the
expiration of all applicable time periods allowed Tenant in the Lease, to cure
such default; provided, if such default cannot with diligence be cured by
Lender within such thirty (30) day period, the commencement of action by Lender
within such thirty (30) day period to remedy the same shall be deemed
sufficient so long as Lender pursues such cure with diligence. Landlord agrees
that Lender shall have the right, but not the obligation, to cure any such
default, and that Landlord shall not terminate the Lease, re-enter the
Premises, or exercise any other remedy available to Landlord under the Lease as
a result of any default by Tenant unless Lender fails to cure such default
within the time period specified above. Lender shall exercise this right by
providing written notice to Landlord not later than 5:00 p.m. Pacific time on
the third (3rd) business day after the expiration of Tenant’s Cure
Period (so that if Tenant’s cure period expires on a Monday, Lender shall
provide such notice no later than 5:00 p.m. Pacific time on the following
Thursday). In the event that Lender notifies Landlord within the time period
specified in the prior sentence of its intent to either (i) cure any default of
Tenant under the Lease, or (ii) enter into the Premises to remove any of
Lender’s collateral, Lender by providing such notice shall agree to remit to
Landlord an amount equal to the daily per diem of rent that would be payable by
Tenant under the Lease beyond Tenant’s Cure Period for the longer of Landlord’s
additional cure period or the period of time in which Lender’s collateral
remains within the




 

















 




Premises at the request of Lender. Lender shall
provide Landlord written notice of either the last date that Lender intends to
exercise its cure rights or enter the Premises to remove collateral and unless
Lender has assumed the Lease, Lender’s cure and occupancy rights shall
terminate as of the date specified in such notice and (A) Lender will be
relieved of any further obligation to pay rental to Landlord, and (B) Lender
shall have no further interest in Lender’s collateral. If Lender enters the
Premises to exercise its rights to repossess collateral for the Loan located in
the Premises, Lender, at no cost to Landlord, shall repair any damage to the
Premises or the center of which the Premises is a part caused by or resulting
from Lender’s repossession, display, operation, severance, removal,
maintenance, preparation for sale or lease, lease, transfer, or sale of any
such collateral, or by Lender’s occupancy of the Premises for any reason. In
the event Lender should fail to perform such repairs within fifteen (15) days
after demand by Landlord, Landlord may perform such repairs, and Lender shall
reimburse Landlord for the costs thereof within thirty (30) days after receipt
by Lender of an invoice from Landlord, accompanied by reasonable documentation
of the costs of such repairs shown on the invoice. In addition, Lender and
Tenant shall and hereby do indemnify Landlord, its partners, officers,
directors, shareholders, members, employees, agents, contractors, insurers, and
attorneys from any damage, loss, liability, claim, or suit arising from
Lender’s occupancy of the Premises under this Agreement, including any
disposition of Lender’s collateral for its Loan from the Premises. Tenant
hereby waives any claim it may be able to assert against Landlord or Lender as
a result of Lender’s exercise of any of Lender’s rights under this Agreement.




 




3.         No Modification without Consent. Landlord
will not enter into any material amendment or modification, or any termination
(except for a termination of the Lease as a result of a default by Tenant, a
notice of which is provided to Lender pursuant to Section 2 above and which is
not cured by Tenant or Lender within the time periods allowed under the Lease
and Section 2 above) or surrender of the Lease without the prior written
consent of Lender, which shall not be unreasonably withheld. If Lender does not
respond to a request for its consent, duly sent to Lender in accordance with
paragraph 7 below, within 30 days after receipt thereof, Lender shall be deemed
to have consented to the matters described in the request. As used herein, a “material
amendment or modification” shall mean a change that effects an increase or
other modification in Tenant’s monetary obligations owing under the Lease or
materially increases or alters the obligations or rights of Tenant under the
Lease or which has a material economic impact on Tenant (including without
limitation a material change in the length of term of the Lease).




 




4.         New Lease In the event that the Lease shall
terminate for any reason including, without limitation, a default by Tenant, or
in the event that an actual or deemed rejection of the Lease shall occur under
any provision of the Bankruptcy Code (Title 11, United States Code) or any
successor law having similar effect, then, and in any such event, Lender shall
thereupon have the option to obtain a new lease (“New Lease”) for the Premises
in accordance with and upon the following terms and conditions:




 




4.1       Within
forty-five (45) days after Lender has delivered to Landlord written request for
such New Lease (such written request to be delivered to Landlord within
forty-five (45) days after the termination or the actual or deemed rejection of
the Lease), Landlord shall enter into a New Lease of the Premises with Lender
(or its affiliate) or, subject to Section 4.5 below, any entity succeeding to Lender’s
interest through foreclosure or similar proceeding (as applicable, the “New
Tenant”); provided, however, that if Landlord receives no such written request
within said forty-five (45) day period, then all of Lender’s rights to a New
Lease hereunder shall automatically terminate.




 




4.2       Such
New Lease shall be effective as of the date of the termination or actual or
deemed rejection of the Lease and shall be for the remainder of the term of the
Lease (including any unexercised options to extend the term of the Lease) at
the same rent, additional rent and other charges provided in the Lease and
otherwise upon the same agreements, terms, covenants and conditions contained
in the Lease, except that the New Lease shall also include an additional
indemnity paragraph under the terms of which the New Tenant shall indemnify and
hold Landlord harmless from and against all claims, demands or liability
whatsoever by whomsoever made for loss or damage arising out of or in
connection with the




 


2

















 




issuance of the New Lease and will promptly reimburse
Landlord for its costs and expenses including reasonable attorneys’ fees
incurred in connection with the defense of any such claims. The New Lease shall
have the same relative priority in time and right as the Lease and shall have
the benefit of and vest in the New Tenant all of the same rights, title,
interest, powers and privileges of Tenant under the Lease; provided, Landlord
shall be obligated to defend such title against claims arising by, through or
under the New Tenant only at the cost and expense of the New Tenant. The New
Lease or a separate deed shall, subject to the same agreements, terms,
covenants and conditions contained herein, also demise, convey and transfer to
the New Tenant all buildings, improvements and appurtenances situated on the
Premises together with all equipment, fixtures and machinery therein.
Concurrently with execution of the New Lease, Landlord shall assign to the New
Tenant its interest in and to all then existing subleases affecting the
Premises as to which the tenant thereunder has attorned to and been recognized
by Landlord. During the period between the termination or actual or deemed
rejection of the Lease and execution of the New Lease, Landlord shall not amend
or modify such subleases or take any action which will adversely affect the
Premises or give rise to any liens or encumbrances against the Premises.




 




4.3       As
a condition to and concurrently with delivery of the New Lease, the New Tenant
shall pay any and all sums which would at the time of the execution thereof be
due under the Lease from and after the date of the original default by Tenant,
but for the termination or rejection as aforesaid, and shall fully otherwise
remedy any existing defaults under the Lease susceptible of cure by the New
Tenant, and shall pay to Landlord all costs and expenses, including but not
limited to any insurance premiums paid by Landlord in order to maintain the
insurance coverage required under the terms of such of the Lease from and after
the date of the original default by Tenant, and the reasonable attorneys’ fees,
court costs and disbursements incurred by Landlord by reason of the termination
or actual or deemed rejection of the Lease and in connection with the execution
and delivery of such New Lease. Any default which cannot be cured by the New
Tenant until it obtains possession shall be cured by the New Tenant within a
reasonable time after it obtains possession.




 




4.4       Nothing
contained in this Section 4 shall be deemed to impose any obligation on
Landlord to deliver physical possession of the Premises to the New Tenant;
provided Landlord shall use reasonable efforts to join with and assist the New
Tenant in removing any third parties from the Premises as long as Landlord
incurs no out-of-pocket cost or expense.




 




4.5       Lender,
if it is the initial lessee under the New Lease, may assign such New Lease and
shall thereupon be released from all liability for the performance or
observance of the covenants and conditions in such New Lease contained and on
the lessee’s part to be performed and observed, provided that Landlord has
previously approved of the assignee in writing and a certified copy of such
assignment is provided to Landlord. Landlord’s approval shall not be
unreasonably withheld, Lender acknowledging that it will be reasonable for
Landlord to consider the financial condition of a proposed New Tenant and
whether such New Tenant’s proposed use of the Premises is a permitted use under
the Lease in granting such approval.




 




4.6       Notices. All notices given pursuant to this
Agreement shall be in writing and shall be given by personal delivery, by
United States mail, or by United States express mail or other established
express delivery service (such as Federal Express), postage or delivery charge
prepaid, return receipt requested, addressed to the person and address
designated below, or as it applies to Landlord in the absence of such
designation, to the person and address shown on the then-current real property
tax rolls of the county in which the Premises is located. All notices to
Landlord or Lender shall be sent to the person at the address set forth below:




 




	
  Landlord: 

  	
   

  	
  Boyd Enterprises Utah, L.L.C.

  
	
   

  	
   

  	
  1946 E. Edinger

  
	
   

  	
   

  	
  Santa Ana, California 92705

  
	
   

  	
   

  	
  Attn: Willis
  Boyd

  
	
   

  	
   

  	
   

  





 


3

















 




	
  Lender:

  	
   

  	
  U.S. Bank National
  Association

  
	
   

  	
   

  	
  PD-UT-GT6

  
	
   

  	
   

  	
  170 S. Main Street, 6th Floor

  
	
   

  	
   

  	
  Salt Lake City, Utah 84101

  
	
   

  	
   

  	
  Attn: Nicholas Hintze

  





 




The person and address to which notices are to be
given may be changed at any time by any party upon written notice to the other
party. All notices given pursuant to this Agreement shall be deemed given upon
receipt. For the purpose of this Agreement, the term “receipt” shall mean any
of the following: (a) the date of delivery of the notice or other document to
the address specified above as shown on the return receipt; (b) the date of
actual receipt of the notice or other document by the person or entity
specified pursuant to this section; or (c) in the case of refusal to accept
delivery or inability to deliver the notice or other document, the earlier of:
(i) the date of the attempted delivery or refusal to accept delivery; (ii) the
date of the postmark on the return receipt; or (iii) the date of receipt of
notice of refusal or notice of nondelivery by the sending party. The parties
agree that a copy of all notices given hereunder shall also be given to such
other persons and addresses as Landlord or Lender may designate in writing to
the other party.




 




5.         Miscellaneous.




 




5.1       If
any term, covenant, condition or agreement contained in this Agreement or the
application thereof to any person, firm or entity shall at any time or to any
extent be deemed or found to be invalid or unenforceable by operation of law,
judicial proceedings, or otherwise, the remainder of this Agreement or the
application of such term, covenant, condition or provision to persons or
entities or to circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby, and each remaining term, covenant,
condition or provision of this Agreement or the application thereof shall be
valid and enforced to the fullest extent permitted by law.




 




5.2       If
any litigation or other legal proceeding is commenced between the parties
hereto concerning this Agreement or the rights or obligations of any party in
relation thereto, the prevailing party in such litigation shall be entitled, in
addition to such other relief as may be granted, to a reasonable sum for its
attorney’s fees in such litigation (including any appeal thereof), which sum
shall be determined by the court in such litigation or in a separate action
brought for that purpose. Jurisdiction and venue for any litigation or other
legal proceeding shall be in Salt Lake County.




 




5.3       This
Agreement shall bind and inure to the benefit of the parties hereto, their
heirs, personal representatives, successors and assigns.




 




5.4       This
Agreement may be executed in any number of counterparts, each of which shall
for all purposes be deemed to be an original and all of which together shall
constitute but one and the same instrument, and shall be effective upon
execution of one or more of such counterparts by each of the parties hereto.




 




5.5       This
Agreement contains the entire agreement between the parties and supersedes all
prior agreements, oral or written, with respect to the subject matter hereof.
This Agreement may not be modified in any manner whatsoever except by an
instrument in writing signed by each of the parties hereto.




 




[Signature Page to Follow]




 


4

















 




IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first set forth above.




 




	
   

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BOYD ENTERPRISES UTAH, L.L.C.,

  a Utah limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Willis Boyd

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Willis Boyd

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  Managing Member

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LENDER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Nicholas Hintze

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Nicholas Hintze

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Vice-President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CONSONUS ACQUISITION
  CORP.,

  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Daniel S. Milburn

  	
   

  
	
   

  	
   

  	
   

  	
  Daniel S. Milburn

  	
   

  
	
   

  	
   

  	
   

  	
  Chief Operating Officer

  	
   

  





 


5