Exhibit
10.1


 


CREDIT AGREEMENT


 


dated as of September 24, 2010


 


among


 


NETSPEND HOLDINGS, INC.


as
the Borrower,


 


THE LENDERS FROM TIME TO TIME PARTY HERETO,


 


and


 


SUNTRUST BANK,

as Administrative Agent


 






 


with


 


SUNTRUST ROBINSON HUMPHREY, INC.

as Sole Book Manager and Sole Bookrunner


 


and


 


BBVA COMPASS BANK

as Syndication Agent


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS; CONSTRUCTION

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section
  1.1.

  	
  Definitions

  	
  1

  
	
  Section
  1.2.

  	
  Classifications
  of Loans and Borrowings

  	
  24

  
	
  Section
  1.3.

  	
  Accounting
  Terms and Determination

  	
  24

  
	
  Section
  1.4.

  	
  Terms
  Generally

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  THE LOANS AND LETTERS OF
  CREDIT

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section
  2.1.

  	
  Extensions
  of Credit

  	
  25

  
	
  Section
  2.2.

  	
  Manner
  of Borrowing and Disbursement of Loans

  	
  28

  
	
  Section
  2.3.

  	
  Interest

  	
  32

  
	
  Section
  2.4.

  	
  Fees

  	
  34

  
	
  Section
  2.5.

  	
  Cancellation
  of Commitments

  	
  35

  
	
  Section
  2.6.

  	
  Repayment

  	
  36

  
	
  Section
  2.7.

  	
  Notes;
  Loan Accounts

  	
  37

  
	
  Section
  2.8.

  	
  Manner
  of Payment

  	
  37

  
	
  Section
  2.9.

  	
  Reimbursement

  	
  40

  
	
  Section
  2.10.

  	
  Pro
  Rata Treatment

  	
  41

  
	
  Section
  2.11.

  	
  Application
  of Payments

  	
  42

  
	
  Section
  2.12.

  	
  All
  Obligations to Constitute One Obligation

  	
  42

  
	
  Section
  2.13.

  	
  Maximum
  Rate of Interest

  	
  43

  
	
  Section
  2.14.

  	
  Letters
  of Credit

  	
  43

  
	
  Section
  2.15.

  	
  [Reserved]

  	
  48

  
	
  Section
  2.16.

  	
  Illegality

  	
  48

  
	
  Section
  2.17.

  	
  Increased
  Costs

  	
  48

  
	
  Section
  2.18.

  	
  Defaulting
  Lenders

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  CONDITIONS PRECEDENT TO
  LOANS

  	
  53

  
	
   

  	
   

  	
   

  
	
  Section
  3.1.

  	
  Conditions
  To Effectiveness

  	
  53

  
	
  Section
  3.2.

  	
  Each
  Credit Event

  	
  55

  
	
  Section
  3.3.

  	
  Delivery
  of Documents

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IV

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
  56

  
	
   

  	
   

  	
   

  
	
  Section
  4.1.

  	
  Organization;
  Powers

  	
  56

  
	
  Section
  4.2.

  	
  Authorization;
  Enforceability

  	
  56

  
				



 


i

















 


TABLE
OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section
  4.3.

  	
  Governmental
  Approvals; No Conflicts

  	
  57

  
	
  Section
  4.4.

  	
  Financial
  Condition; No Material Adverse Change

  	
  57

  
	
  Section
  4.5.

  	
  Properties

  	
  58

  
	
  Section
  4.6.

  	
  Litigation
  and Environmental Matters

  	
  58

  
	
  Section
  4.7.

  	
  Compliance
  with Laws and Agreements

  	
  59

  
	
  Section
  4.8.

  	
  Investment
  Company Status

  	
  59

  
	
  Section
  4.9.

  	
  Taxes

  	
  59

  
	
  Section
  4.10.

  	
  Plans

  	
  59

  
	
  Section
  4.11.

  	
  Disclosure

  	
  61

  
	
  Section
  4.12.

  	
  Capitalization;
  Subsidiaries

  	
  61

  
	
  Section
  4.13.

  	
  Insurance

  	
  61

  
	
  Section
  4.14.

  	
  Labor
  Matters

  	
  61

  
	
  Section
  4.15.

  	
  Solvency

  	
  62

  
	
  Section
  4.16.

  	
  Margin
  Securities

  	
  62

  
	
  Section
  4.17.

  	
  Common
  Enterprise

  	
  62

  
	
  Section
  4.18.

  	
  OFAC

  	
  63

  
	
  Section
  4.19.

  	
  Patriot
  Act

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  AFFIRMATIVE COVENANTS

  	
  63

  
	
   

  	
   

  	
   

  
	
  Section
  5.1.

  	
  Financial
  Statements and Other Information

  	
  63

  
	
  Section
  5.2.

  	
  Notices
  of Material Events

  	
  64

  
	
  Section
  5.3.

  	
  Existence;
  Conduct of Business

  	
  65

  
	
  Section
  5.4.

  	
  Payment
  of Taxes

  	
  65

  
	
  Section
  5.5.

  	
  Maintenance
  of Properties

  	
  65

  
	
  Section
  5.6.

  	
  Insurance

  	
  65

  
	
  Section
  5.7.

  	
  Casualty
  and Condemnation

  	
  66

  
	
  Section
  5.8.

  	
  Books
  and Records and Inspection Rights

  	
  66

  
	
  Section
  5.9.

  	
  Compliance
  with Laws

  	
  66

  
	
  Section
  5.10.

  	
  Use
  of Proceeds and Letters of Credit

  	
  66

  
	
  Section
  5.11.

  	
  Additional
  Subsidiaries

  	
  66

  
	
  Section
  5.12.

  	
  Further
  Assurances

  	
  67

  
	
  Section
  5.13.

  	
  Post-Closing
  Matters

  	
  68

  
				



 


ii

















 


TABLE
OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  NEGATIVE COVENANTS

  	
  68

  
	
   

  	
   

  	
   

  
	
  Section
  6.1.

  	
  Indebtedness;
  Certain Equity Securities

  	
  69

  
	
  Section
  6.2.

  	
  Liens

  	
  71

  
	
  Section
  6.3.

  	
  Fundamental
  Changes

  	
  71

  
	
  Section
  6.4.

  	
  Investments,
  Loans, Advances, Guarantees and Acquisitions

  	
  72

  
	
  Section
  6.5.

  	
  Asset
  Sales

  	
  75

  
	
  Section
  6.6.

  	
  Sale
  and Leaseback Transactions

  	
  76

  
	
  Section
  6.7.

  	
  Hedging
  Transactions

  	
  76

  
	
  Section
  6.8.

  	
  Restricted
  Payments; Certain Payments of Indebtedness

  	
  76

  
	
  Section
  6.9.

  	
  Transactions
  with Affiliates

  	
  78

  
	
  Section
  6.10.

  	
  Restrictive
  Agreements

  	
  78

  
	
  Section
  6.11.

  	
  Amendments
  to Organizational Documents; Amendment to Subordinated Indebtedness

  	
  79

  
	
  Section
  6.12.

  	
  Change
  in Fiscal Year

  	
  79

  
	
  Section
  6.13.

  	
  Deposit
  and Investment Accounts

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  	
   

  	
  80

  
	
   

  	
   

  	
   

  
	
  Section
  7.1.

  	
  Leverage
  Ratio

  	
  80

  
	
  Section
  7.2.

  	
  Fixed
  Charge Coverage Ratio

  	
  80

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  	
   

  	
  80

  
	
   

  	
   

  	
   

  
	
  Section
  8.1.

  	
  Events
  of Default

  	
  80

  
	
  Section
  8.2.

  	
  Performance by the
  Administrative Agent; Advances to Cover Returned Checks and Other Items

  	
  83

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  THE ADMINISTRATIVE AGENT

  	
  84

  
	
   

  	
   

  	
   

  
	
  Section
  9.1.

  	
  Appointment
  of Administrative Agent

  	
  84

  
	
  Section
  9.2.

  	
  Nature
  of Duties of Administrative Agent

  	
  84

  
	
  Section
  9.3.

  	
  Lack
  of Reliance on the Administrative Agent

  	
  85

  
	
  Section
  9.4.

  	
  Certain
  Rights of the Administrative Agent

  	
  85

  
	
  Section
  9.5.

  	
  Reliance
  by Administrative Agent

  	
  85

  
	
  Section
  9.6.

  	
  The
  Administrative Agent in its Individual Capacity

  	
  86

  
	
  Section
  9.7.

  	
  Successor
  Administrative Agent

  	
  86

  
	
  Section
  9.8.

  	
  Authorization
  to Execute other Loan Documents

  	
  87

  
				



 


iii

















 


TABLE
OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section
  9.9.

  	
  Agents

  	
  87

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  MISCELLANEOUS

  	
  87

  
	
   

  	
   

  	
   

  
	
  Section
  10.1.

  	
  Notices

  	
  87

  
	
  Section
  10.2.

  	
  Waiver;
  Amendments

  	
  88

  
	
  Section
  10.3.

  	
  Expenses;
  Indemnification

  	
  90

  
	
  Section
  10.4.

  	
  Successors
  and Assigns

  	
  91

  
	
  Section
  10.5.

  	
  Governing
  Law; Jurisdiction; Consent to Service of Process

  	
  95

  
	
  Section
  10.6.

  	
  WAIVER
  OF JURY TRIAL

  	
  95

  
	
  Section
  10.7.

  	
  Right
  of Setoff

  	
  96

  
	
  Section
  10.8.

  	
  Counterparts;
  Integration

  	
  96

  
	
  Section
  10.9.

  	
  Survival

  	
  96

  
	
  Section
  10.10.

  	
  Severability

  	
  96

  
	
  Section
  10.11.

  	
  Confidentiality

  	
  97

  
	
  Section
  10.12.

  	
  Waiver
  of Effect of Corporate Seal

  	
  97

  
	
  Section
  10.13.

  	
  Patriot
  Act

  	
  97

  
	
  Section
  10.14.

  	
  Replacement
  of Lender

  	
  98

  
	
  Section
  10.15.

  	
  No
  Fiduciary Duty

  	
  98

  
				



 


iv

















 


	
  Schedules

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  I

  	
   

  	
  -

  	
  Commitment Amounts

  
	
  Schedule
  4.12

  	
   

  	
  -

  	
  Capitalization;
  Subsidiaries

  
	
  Schedule
  6.1

  	
   

  	
  -

  	
  Existing Indebtedness

  
	
  Schedule
  6.2

  	
   

  	
  -

  	
  Existing Liens

  
	
  Schedule
  6.4

  	
   

  	
  -

  	
  Existing Investments

  
	
  Schedule
  6.10

  	
   

  	
  -

  	
  Existing Restrictions

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit
  A

  	
   

  	
  -

  	
  Form of Assignment and
  Acceptance

  
	
  Exhibit
  B

  	
   

  	
  -

  	
  Form of Compliance
  Certificate

  
	
  Exhibit
  C

  	
   

  	
  -

  	
  Form of Request for
  Issuance of Letter of Credit

  
	
  Exhibit
  D

  	
   

  	
  -

  	
  Form of Notice of
  Borrowing

  
	
  Exhibit
  E

  	
   

  	
  -

  	
  Form of Notice of
  Conversion/Continuation

  
	
  Exhibit
  F

  	
   

  	
  -

  	
  Form of Revolving Loan
  Note

  
	
  Exhibit
  G

  	
   

  	
  -

  	
  Form of Security Agreement

  



 


v

















 


CREDIT AGREEMENT


 


THIS CREDIT
AGREEMENT (including all schedules and exhibits hereto, this “Agreement”)  is made and entered into as of September 24,
2010, by and among NETSPEND HOLDINGS, INC., a Delaware corporation (the “Borrower”),
the several banks and other financial institutions and lenders from time to
time party hereto (collectively, the “Lenders”) and SUNTRUST BANK
(individually, “SunTrust”), as Administrative Agent, Issuing Bank and a
Lender, with SUNTRUST ROBINSON HUMPHREY, INC., as Sole Book Manager and Sole
Bookrunner.


 


W I T N E S S E T H:


 


WHEREAS, the Lenders
have agreed to extend certain credit facilities to the Borrower, the proceeds
of which will be used for working capital needs and other corporate purposes of
the Borrower and its Subsidiaries and to refinance in full the existing credit
facilities of NetSpend Corporation, a Delaware corporation (“NetSpend”),
a Subsidiary of the Borrower; and


 


WHEREAS, the Lenders
are willing to extend such credit facilities to the Borrower subject to the
terms and conditions set forth herein.


 


NOW,
THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders, the Administrative Agent
and the Issuing Bank agree as follows:


 


ARTICLE I


 


DEFINITIONS; CONSTRUCTION


 


Section 1.1.           Definitions.  In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of
the terms defined):


 


“Acquisition” shall
mean (whether by purchase, exchange, issuance of stock or other equity or debt
securities, merger, reorganization, amalgamation or any other method) (a) any
acquisition by the Borrower or any of its Subsidiaries of any other Person,
which Person would then become consolidated with the Borrower or any such
Subsidiary in accordance with GAAP, (b) any acquisition by the Borrower or any
of its Subsidiaries of all or any substantial part of the assets of any other
Person, or (c) any acquisition by the Borrower or any of its Subsidiaries of
any assets that constitute a division or operating unit of the business of any
Person.


 


“Adjusted LIBO Rate”
shall mean, with respect to each Interest Period for a Eurodollar Borrowing,
the greater of the rate per annum obtained by dividing (a) LIBOR for such
Interest Period by (b) a percentage equal to 1.00 minus the Eurodollar Reserve Percentage.  The Adjusted LIBO Rate shall remain unchanged
during the applicable Interest Period, except for changes to reflect
adjustments to the Eurodollar Reserve Percentage.


 

















 


“Administrative Agent”
shall mean SunTrust in its capacity as Administrative Agent for the Lenders
under this Agreement and each of the other Loan Documents and any successor in
such capacity appointed pursuant to Section 9.7.


 


“Administrative
Questionnaire” shall mean, with respect to each Lender, an administrative
questionnaire in the form prepared by the Administrative Agent and submitted to
the Administrative Agent duly completed by such Lender.


 


“Affiliate” shall
mean, as to any Person, any other Person that directly, or indirectly through
one or more intermediaries, Controls, is Controlled by, or is under common
Control with, such Person.  For the
purposes of this definition, “Control” shall mean the power, directly or
indirectly, to direct or cause the direction of the management and policies of
a Person, whether through the ability to exercise voting power, by control or
otherwise.  The terms “Controlling”, “Controlled
by”, and “under common Control with” have the meanings correlative thereto.


 


“Agreement” shall
mean this Credit Agreement.


 


“Aggregate Revolving
Commitment Amount” shall mean the aggregate principal amount of the
Aggregate Revolving Commitments from time to time.  On the Closing Date, the Aggregate Revolving
Commitment Amount equals $135,000,000.


 


“Aggregate Revolving
Commitments” shall mean, collectively, all Revolving Commitments of all
Lenders at any time outstanding.


 


“Applicable Lending
Office” shall mean, for each Lender and for each Type of Loan, the “Lending
Office” of such Lender (or an Affiliate of such Lender) designated for such
Type of Loan in the Administrative Questionnaire submitted by such Lender or
such other office of such Lender (or an Affiliate of such Lender) as such
Lender may from time to time specify to the Administrative Agent and the
Borrower as the office by which its Loans of such Type are to be made and
maintained.


 


“Applicable Margin”
shall mean the interest rate margin applicable to Base Rate Loans and
Eurodollar Loans, as the case may be, in each case determined in accordance
with Section 2.3(e) hereof.


 


“Applicable Period”
has the meaning specified in Section 2.3(f).


 


“Approved Fund” shall
mean any Person (other than a natural Person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business and that is
administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii)
an entity or an Affiliate of an entity that administers or manages a Lender.


 


“Assignment and
Acceptance” shall mean an Assignment and Acceptance entered into by a
Lender and an assignee (with the consent of any party whose consent is required
by Section 10.4(b)) and accepted by the Administrative Agent, in the
form of Exhibit A attached hereto or any other form approved by the
Administrative Agent.


 


2

















 


“Available Letter of
Credit Amount” shall mean, as of any time of determination, an amount equal
to the lesser of (a) the LC Commitment at such time less the LC Exposure then
outstanding or (b) the Aggregate Revolving Commitment Amount on such date less
the aggregate Revolving Credit Exposures on such date.


 


“Availability” means,
on any day, the sum of the then available unrestricted cash and cash
equivalents of the Borrower and its Subsidiaries plus the amount by which the
Aggregate Revolving Commitment Amount exceeds the Revolving Credit Exposures of
all the Lenders on such day.


 


“Availability Period”
shall mean the period from the Closing Date to the Revolving Commitment
Termination Date.


 


“Bank Product Obligations”
shall mean any and all obligations of any Loan Party owing to a Lender or an
Affiliate of a Lender in connection with Bank Products, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions
therefor); provided that, if the provider of such Bank Products ceases
to be a Lender (or an Affiliate of a Lender), then such obligations owing to
such provider shall cease to be Bank Product Obligations hereunder or under any
other Loan Document and provided, further, that in no event shall
“Bank Product Obligations” include any obligation under any agreement entered
into in the ordinary course of business in connection with the prepaid debit
card business of the Borrower or any of its Subsidiaries.


 


“Bank Products” shall
mean any of the following bank services or products provided to any Loan Party
by any Lender or any Affiliate thereof: deposit accounts, operating accounts,
lock box arrangements, cash management agreements and treasury management
services (including, without limitation, controlled disbursement, automated
clearinghouse transactions, return items, overdrafts and interstate depository
network services), provided, that in no event shall “Bank Products” include any
credit card or debit card products or services.


 


“Base Rate” shall
mean the highest of (i) the per annum rate which the Administrative Agent
publicly announces from time to time to be its prime lending rate, as in effect
from time to time, (ii) the Federal Funds Rate, as in effect from time to time,
plus one-half of one percent (0.50%) and (iii) LIBOR determined on a
daily basis for a period of one month plus one percent (1.00%).  The Administrative Agent’s prime lending rate
is a reference rate and does not necessarily represent the lowest or best rate
charged to customers.  The Administrative
Agent may make commercial loans or other loans at rates of interest at, above
or below the Administrative Agent’s prime lending rate.  Each change in the Administrative Agent’s
prime lending rate shall be effective from and including the date such change
is publicly announced as being effective.


 


“Borrower Payments”
shall have the meaning specified in Section 2.8(b).


 


“Borrowing”  shall mean amounts of the Loans advanced
by the Lenders to, or on behalf of, the Borrower pursuant to Section 2.2
on the occasion of any borrowing and shall include, without limitation, all
Revolving Loans and Swingline Loans.


 


3

















 


“Business Day” shall
mean (i) any day other than a Saturday, Sunday or other day on which commercial
banks in Atlanta, Georgia and New York, New York are authorized or required by
law to close and (ii) if such day relates to a Borrowing of, a payment or
prepayment of principal or interest on, a conversion of or into, or an Interest
Period for, a Eurodollar Loan or a notice with respect to any of the foregoing,
any day on which dealings in Dollars are carried on in the London interbank
market.


 


“Capital Expenditures”
shall mean for any period, without duplication, amounts expended or financed to
acquire or construct capital assets, including but not limited to the purchase,
construction, or rehabilitation of equipment or other physical assets.


 


“Capital Lease
Obligations” of any Person shall mean all obligations of such Person to pay
rent or other amounts under any lease (or other arrangement conveying the right
to use) of real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases
on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.


 


“Capital Stock” of
any Person shall mean (a) any and all shares or other equity interests
(including common stock, preferred stock, limited liability company interests
and partnership interests) in such Person and (b) all rights to purchase or
warrants, options (whether or not currently exercisable), participations or
other equivalents of or interests in (however designated) such shares or other
interests in such Person.


 


“Cash Collateralize”
shall mean, in respect of any obligations, to provide and pledge (as a first
priority perfected security interest) cash collateral for such obligations in
Dollars, with the Administrative Agent pursuant to documentation in form and
substance reasonably satisfactory to the Administrative Agent (and “Cash
Collateralization” has a corresponding meaning).


 


“Change in Control”
means (a) other than as permitted pursuant to Section 6.3(a) of this
Agreement, the acquisition of ownership, directly or indirectly, beneficially
or of record, by any Person other than (i) the Borrower of any Capital Stock of
NetSpend, Skylight Parent, NPSI or any other direct Subsidiary of the Borrower
or (ii) any other Loan Party of any Capital Stock of such Loan Party’s direct
Subsidiary; (b) prior to an initial public offering of the Capital Stock issued
by the Borrower (an “IPO”), the failure by one or more members of the
Control Group to own, directly or indirectly, beneficially and of record,
Capital Stock in the Borrower representing at least 50% of each of the
aggregate ordinary voting power and aggregate equity value represented by the issued
and outstanding Capital Stock in the Borrower; (c) after an IPO, the
acquisition of ownership, directly or indirectly, beneficially or of record, by
any Person or group (within the meaning of the Securities Exchange Act of 1934
and the rules of the Securities and Exchange Commission thereunder as in effect
on the date hereof) other than the Control Group, of Capital Stock representing
more than 20% of either the aggregate ordinary voting power or the aggregate
equity value represented by the issued and outstanding Capital Stock in the
Borrower; (d) occupation of a majority of the seats (other than vacant seats)
on the board of directors of the Borrower by Persons who were neither (i) nominated
by the board of directors of the Borrower nor (ii) appointed by directors so
nominated; or (e) prior to an IPO, the acquisition of direct or indirect
Control of the Borrower by any Person or group other than the Control


 


4














 


Group.  As used in this definition, the term “Control
Group” means, collectively, Oak Investment Partners X, LP or one or more of
its affiliated investment funds Controlled by Oak Investment Partners, LP and
JLL Partners Fund IV, L.P. or JLL Partners Fund V, L.P. or one or more of their
affiliated investment funds Controlled by JLL Partners.


 


“Change in Law” shall
mean (i) the adoption of any applicable law, rule or regulation after the date
of this Agreement, (ii) any change in any applicable law, rule or regulation,
or any change in the interpretation or application thereof, by any Governmental
Authority after the date of this Agreement, or (iii) compliance by any Lender
(or its Applicable Lending Office) or the Issuing Bank (or for purposes of Section
2.15, by such Lender’s or the Issuing Bank’s parent corporation, if
applicable) with any request, guideline or directive (whether or not having the
force of law) of any Governmental Authority made or issued after the date of
this Agreement.


 


“Closing Date” shall
mean the date on which the conditions precedent set forth in Section 3.1
and Section 3.2 have been satisfied or waived in accordance with Section
10.2.


 


“Code” shall mean the
Internal Revenue Code of 1986, as amended and in effect from time to time.


 


“Collateral” shall
mean, at any time, any and all of the property in which the Administrative
Agent is granted, or is purported to be granted, a Lien under any
Collateral  Document (other than any
assets or property that are excluded as set forth in Section 2 of the Security
Agreement).


 


“Collateral Access
Agreements” shall mean all landlord waivers executed by any Loan Party or
any of their Subsidiaries and a third party leasing real property to such Loan
Party or such Subsidiary at any location in which such Loan Party’s books and
records are kept.


 


“Collateral Documents”
shall mean, collectively, the Security Agreement, any Mortgages, any Real
Estate Documents to the extent such Real Estate Documents are executed and
delivered by any Loan Party as security for the payment or performance of the
Obligations, Collateral Access Agreements, all Investment Control Agreements,
all Deposit Account Control Agreements, and all other instruments and
agreements now or hereafter executed and delivered by any Loan Party to the
Administrative Agent as security for the payment or performance of the
Obligations (other than (a) any transaction or agreement with a Secured Hedge
Bank in respect of any Hedging Transaction, (b) agreements, instruments or
other documents entered into for the provision of Bank Products, or (c) assignment,
participation or similar agreements between any Lender and any other lender or
creditor with respect to any Obligations pursuant to this Agreement).


 


“Commitment” shall
mean the Revolving Commitment, the LC Commitment, and the Swingline Commitment
(as the context shall permit or require).


 


“Compliance Certificate”
shall mean a certificate from the principal financial officer or any other
Responsible Officer of the Borrower in the form of, and containing the
certifications set forth in, the certificate attached hereto as Exhibit B.


 


5

















 


“Consolidated Net Income”
means, for any period and any Person (a “Subject Person”), such Subject
Person’s consolidated net income (or loss) determined in accordance with GAAP,
but excluding any extraordinary, nonrecurring, non-operating or non-cash gains
or losses, including, or in addition, the following:


 


(i)            the income (or
loss) of any Person (other than a subsidiary) in which the Subject Person or a
subsidiary has an ownership interest; provided, however, that (A)
Consolidated Net Income shall include amounts in respect of the income of such
Person when actually received in cash by the Subject Person or such subsidiary
in the form of dividends or similar distributions and (B) Consolidated Net
Income shall be reduced by the aggregate amount of all investments, regardless
of the form thereof, made by the Subject Person or any of the subsidiaries in
such Person for the purpose of funding any deficit or loss of such Person;


 


(ii)           the income of any subsidiary to the
extent the payment of such income in the form of a distribution or repayment of
any Indebtedness to the Subject Person or a subsidiary is not permitted, whether
on account of any restriction in by-laws, articles of incorporation or similar
governing document, any agreement or any law, statute, judgment, decree or
governmental order, rule or regulation applicable to such subsidiary, except to
the extent of any distribution actually paid in cash;


 


(iii)          any gains or losses accrued on foreign
currency receivables or on foreign currency payables of the Subject Person or a
subsidiary organized under the laws of the United States which are not realized
in a cash transaction;


 


(iv)          the income or loss of any foreign
subsidiary or of any foreign Person (other than a subsidiary) in which the
Subject Person or subsidiary has an ownership interest to the extent that the
equivalent Dollar amount of the income contains increases or decreases due to
the fluctuation of a foreign currency exchange rate after the Closing Date;


 


(v)           the income or loss of any Person
acquired by the Subject Person or a subsidiary for any period prior to the date
of such acquisition;


 


(vi)          the interest of third parties in the
net income of the subsidiaries of the Subject Person; and


 


(vii)         any non-cash gains or losses as a
result of the early extinguishment or modification of Indebtedness.


 


“Contractual Obligation”
of any Person shall mean any provision of any security issued by such Person or
of any agreement, instrument or undertaking under which such Person is
obligated or by which it or any of the property in which it has an interest is
bound.


 


“Default” means any
event or condition which constitutes an Event of Default or which upon notice,
lapse of time or both would, unless cured or waived, become an Event of
Default.


 


6

















 


“Default Rate” shall
mean a simple per annum interest rate equal to the sum of (a) the applicable
interest rate for such Type of Loan, plus (b) the Applicable Margin for
such Type of Loan, plus (c) two percent (2%); provided, however,
that (y) as to any Eurodollar Borrowing outstanding on the date that the
Default Rate becomes applicable, the Default Rate shall be based on the then
applicable Adjusted LIBO Rate until the end of the current Interest Period,
and, thereafter, the Default Rate shall be based on the Base Rate as in effect
from time to time and (z) as to any Base Rate Borrowing outstanding on the date
that the Default Rate becomes applicable, the Default Rate shall be based on
the Base Rate as in effect from time to time.


 


“Defaulting Lender”
shall mean, at any time, a Lender (a) that has failed for three or more
Business Days to comply with its obligations under this Agreement to make a
Loan and/or to make a payment to the Issuing Bank in respect of a Letter of
Credit or to the Swingline Lender in respect of a Swingline Loan (each a “funding
obligation”), (b) that has notified the Administrative Agent or the
Borrower, or has stated publicly, that it will not comply with any such funding
obligation hereunder, or has defaulted on, its obligation to fund generally
under any other loan agreement, credit agreement or other financing agreement, (c)
that has, for three or more Business Days, failed to confirm in writing to the
Administrative Agent, in response to a written request of the Administrative
Agent, that it will comply with its funding obligations hereunder, or (d) with
respect to which a Lender Insolvency Event has occurred and is continuing.


 


“Deposit Account Control
Agreement” shall mean a control agreement in form and substance reasonably
acceptable to the Administrative Agent, pursuant to which a bank in which any
Loan Party has a deposit account (other than any Excluded Account) agrees that,
upon receiving instructions from the Administrative Agent to do so, such bank
will follow the instructions of the Administrative Agent with respect to such
deposit account.


 


“Disqualified Capital
Stock” shall mean Capital Stock (a) which is mandatorily redeemable, in
whole or in part, or required to be repurchased, paid, repaid or redeemed, in
whole or in part, by any Loan Party or any of its Subsidiaries (other than, in
each case, any such redemption, repayment or purchase solely in exchange for
additional shares of Capital Stock), or which requires the payment of cash
dividends, principal or interest payments, in each case, prior to the date
which is six (6) months after the Revolving Commitment Termination Date; (b) which
is secured by the assets of any Loan Party or any of its Subsidiaries; (c) which
is convertible or exchangeable at anytime prior to the date that is six (6) months
after the Revolving Commitment Termination Date into Indebtedness of any Loan
Party or any of its Subsidiaries; (d) which constitutes Indebtedness of any
Loan Party or any of its Subsidiaries; or (e) the issuance of which results in
a Change of Control.


 


“Dollar(s)” and the
sign “$” shall mean lawful money of the United States of America.


 


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


 


“EBITDA” means, for
any period and any Person, the total of the following each calculated without
duplication on a consolidated basis for such period:  (a) Consolidated Net Income; plus (b) any
provision for (or less any benefit from) income or franchise taxes
included in determining Consolidated Net Income; plus (c) interest
expense (including the interest portion 


 


7

















 


of Capital Lease
Obligations) deducted in determining Consolidated Net Income; plus (d) amortization
and depreciation expense deducted in determining Consolidated Net Income; plus
(e) non cash expenses resulting from the issuance of Capital Stock of the
Borrower and not already added back pursuant to the definition of “Consolidated
Net Income”; plus (f) when determining the EBITDA of Borrower and to the
extent deducted in determining the Borrower’s consolidated net income and not
already added back pursuant to the definition of “Consolidated Net Income”,
non-recurring expenses.


 


“Eligible Additional
Lender” shall have the meaning specified in Section 2.1(d)(iii).


 


“Environmental Laws”
shall mean all laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters.


 


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


 


“ERISA” shall mean
the Employee Retirement Income Security Act of 1974, as amended from time to
time, and any successor statute.


 


“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with
the Borrower, is treated as a single employer under Section 414(b) or (c) of
the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414 of the Code.


 


“ERISA Event” means (a)
any “reportable event”, as defined in Section 4043 of ERISA or the regulations
issued thereunder with respect to a Plan (other than an event for which the
30-day notice period is waived); (b) the existence with respect to any Plan of
an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section
302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d)
of the Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by the
Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by the Borrower or any of
its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a 


 


8

















 


determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.


 


“Eurodollar” when
used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, bears interest at a rate determined by
reference to the Adjusted LIBO Rate.


 


“Eurodollar Reserve
Percentage” shall mean the aggregate of the maximum reserve percentages
(including, without limitation, any emergency, supplemental, special or other
marginal reserves) expressed as a decimal (rounded upwards to the next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of Governors of the Federal Reserve System
(or any Governmental Authority succeeding to any of its principal functions)
with respect to eurocurrency funding (currently referred to as “eurocurrency
liabilities” under Regulation D). 
Eurodollar Loans shall be deemed to constitute eurocurrency funding and
to be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Lender under Regulation D.  The
Eurodollar Reserve Percentage shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.


 


“Event of Default”
shall have the meaning provided in Article VIII.


 


“Excluded Accounts”
shall mean (a) deposit accounts specifically and exclusively used for payroll,
payroll taxes and other employee wage and benefit payments to or for the
benefit of any Loan Party’s employees, (b) any other zero balance account or
disbursement only account, (c) any deposit accounts that are used to hold and
process cardholder funds in connection with the prepaid debit card business of
the Borrower or any of its Subsidiaries, (d) deposit account numbers 4026066647
and 8800060276 located at HSBC Mexico, S.A.  so
long as such accounts contain an aggregate amount at any one time outstanding
of not greater than the US Dollar equivalent of $20,000, (e) deposit account
number 642363 located at Inter National Bank so long as such account contains
an aggregate amount at any one time outstanding of not greater than $700,000
and, upon the closure of such account, any amounts held in such account will be
transferred to a Loan Party’s deposit account that is subject to a Deposit
Account Control Agreement, and (f) so long as the Borrower is in compliance
with Section 5.13 hereof, the Meta Reserve Account.


 


“Federal Funds Rate”
shall mean, for any day, the rate per annum (rounded upwards, if necessary, to
the next 1/100th of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with member banks of the Federal
Reserve System arranged by Federal funds brokers, as published by the Federal
Reserve Bank of New York on the next succeeding Business Day or if such rate is
not so published for any Business Day, the Federal Funds Rate for such day
shall be the average rounded upwards, if necessary, to the next 1/100th of 1%
of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.


 


“Fee Letter” shall
mean the Fee Letter dated as of August 18, 2010, executed by SunTrust Robinson
Humphrey, Inc. and SunTrust Bank and accepted by the Borrower.


 


9

















 


“First-Tier Foreign
Subsidiary” shall mean any Foreign Subsidiary the Capital Stock in which is
owned directly by (a) the Borrower, (b) a Domestic Subsidiary that is not a
direct or indirect Subsidiary of a Foreign Subsidiary or (c) any combination of
the foregoing.


 


“Fiscal Quarter”
shall mean any fiscal quarter of the Borrower.


 


“Fiscal Year” shall
mean any fiscal year of the Borrower.


 


“Fixed Charge Coverage
Ratio” shall mean, as of any date, the ratio of (a) (i) EBITDA of the
Borrower and its Subsidiaries on a consolidated basis minus (ii) Capital
Expenditures of the Borrower and its Subsidiaries on a consolidated basis, in
each case for the four (4) consecutive Fiscal Quarters ending on or immediately
prior to such date to (b) Fixed Charges for such period.


 


“Fixed Charges” means
the sum of the following for the Borrower and its Subsidiaries calculated on a
consolidated basis in accordance with GAAP for the period of four (4) consecutive
Fiscal Quarters then ended without duplication for such period:  (a) the aggregate amount of cash interest,
including payments in the nature of cash interest under Capital Lease
Obligations; (b) the scheduled amortization of Indebtedness (including, without
limitation, Capital Lease Obligations) paid or payable (other than intercompany
debt); plus (c) cash income and franchise taxes paid or payable; plus
(d) Restricted Payments made during such period (other than any Restricted
Payments paid to a Loan Party); provided, however, that
Restricted Payments set forth in clause (d) shall be excluded in the
calculation of Fixed Charges for any Fiscal Quarter in which the Leverage Ratio
of the Borrower, after giving effect to the disbursement of such proposed
Restricted Payment, for the four (4) Fiscal Quarter period then most recently
ending is not greater than 1.00 to 1.00.


 


“Foreign Lender”  shall mean any
Lender that is not a United States person under Section 7701(a)(3) of the Code.


 


“Foreign Subsidiary”
means any Subsidiary that is organized under the laws of a jurisdiction other
than the United States of America or any State thereof or the District of
Columbia.


 


“GAAP” shall mean
generally accepted accounting principles in the United States applied on a
consistent basis and subject to the terms of Section 1.3.


 


“Governmental Authority”
shall mean the government of the United States of America, any other nation or
any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.


 


“Guarantee” of or by
any Person (the “guarantor”) shall mean any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly and including any
obligation, direct or indirect, of the guarantor (i) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the purchase 


 


10

















 


of) any security for the
payment thereof, (ii) to purchase or lease property, securities or services for
the purpose of assuring the owner of such Indebtedness or other obligation of
the payment thereof, (iii) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness or other obligation or (iv)
as an account party in respect of any letter of credit or letter of guaranty
issued in support of such Indebtedness or obligation; provided, that the
term “Guarantee” shall not include endorsements for collection or deposits in
the ordinary course of business or performance bonds purchased in the ordinary
course of business.  The amount of any
Guarantee shall be equal to the amount of the obligation so guaranteed or
supported (or, if less, the maximum amount so guaranteed or supported) or if
not a fixed determinable amount, the amount thereof determined in accordance
with GAAP.  The term “Guarantee” used as
a verb has a corresponding meaning.


 


“Guaranty Agreement”
shall mean a Guaranty Agreement made by each direct and indirect Subsidiary of
the Borrower in favor of the Administrative Agent for the benefit of the
Secured Parties, in the form and substance reasonably satisfactory to the
Administrative Agent.


 


“Guaranty Supplement”
shall mean each supplement to a Guaranty Agreement, in the form and substance
reasonably satisfactory to the Administrative Agent, executed and delivered by
a Subsidiary of the Guarantor pursuant to Section 5.11.


 


“Guarantor” shall
mean NetSpend, Skylight Parent, Skylight Subsidiary, NPSI and any other
Subsidiary that executes or becomes a party to a Guaranty Agreement.


 


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


 


“Hedging Obligations”
of any Person shall mean any and all obligations of such Person, whether
absolute or contingent and howsoever and whensoever created, arising, evidenced
or acquired under (i) any and all Hedging Transactions, (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any Hedging
Transactions and (iii) any and all renewals, extensions and modifications of
any Hedging Transactions and any and all substitutions for any Hedging
Transactions.


 


“Hedging Transaction”
of any Person shall mean any transaction (including an agreement with respect
thereto) now existing or hereafter entered into by such Person that is a rate
swap, basis swap, forward rate transaction, commodity swap, interest rate
option, foreign exchange transaction, cap transaction, floor transaction,
collateral 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.


 


“Increase Effective Date”
shall have the meaning specified in Section 2.1(d)(iv).


 


11

















 


“Increase Notice”
shall have the meaning specified in Section 2.1(d)(i).


 


“Indebtedness” of any
Person means, without duplication, (a) all obligations of such Person for
borrowed money or with respect to deposits or advances of any kind; (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments; (c) all obligations of such Person upon which interest charges are
paid or payable; (d) all obligations of such Person under conditional sale or
other title retention agreements relating to property acquired by such Person; (e)
all obligations of such Person in respect of the deferred purchase price of
property or services (excluding accounts payable in the ordinary course of
business that are not overdue for a period of more than 60 days, or, if overdue
for more than 60 days, which are being contested in good faith and for which
adequate reserves have been maintained in accordance with GAAP); (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed (provided that for purposes of this clause (f)
the amount of any such Indebtedness shall be deemed not to exceed the higher of
the market value or the book value of such assets); (g) all Guarantees by such
Person; (h) all Capital Lease Obligations of such Person; (i) all obligations,
contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty; (j) all obligations, contingent or
otherwise, of such Person in respect of bankers’ acceptances; (k) all
obligations of such Person, contingent or otherwise, with respect to
Disqualified Capital Stock to purchase, redeem, retire or otherwise acquire for
value any common stock or equity interests of such Person; (l) all obligations
of such Person, contingent or otherwise, for the payment of money under any
noncompete, consulting or similar agreement entered into with the seller of a
target or any other similar arrangements providing for the deferred payment of
the purchase price for an acquisition; (m) all obligations of such Person under
any Hedging Transaction; and (n) Off-Balance Sheet Liabilities.  The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person’s ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.  For the
avoidance of doubt, Indebtedness shall not include any Subject Bank
Transactions or any obligations of the Borrower or any Subsidiaries which do
not include obligations for borrowed money or Guarantees of obligations in
respect of borrowed money that are incurred in the ordinary course of business
or as required by applicable law, in respect of cardholder or merchant rights
arising under or related to cardholder debit transactions.  The amount of the obligations of the Borrower
or any Subsidiary in respect of any Hedging Transaction shall, at any time of
determination and for all purposes under this Agreement, be the maximum
aggregate amount (giving effect to any netting agreements) that the Borrower or
such Subsidiary would be required to pay if such Hedging Transaction were
terminated at such time giving effect to current market conditions
notwithstanding any contrary treatment in accordance with GAAP.


 


“Indemnitee” has the
meaning specified in Section 10.3(b).


 


“Information Memorandum”
means the Confidential Information Memorandum dated August, 2010 relating to
the Borrower and the Transactions.


 


12

















 


“Interest Period”
shall mean with respect to any Eurodollar Borrowing, a period of one, two,
three or six months (or nine (9) or twelve (12) months upon the written consent
of all Lenders); provided, that:


 


(i)            the initial
Interest Period for such Borrowing shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing of another Type), and
each Interest Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest Period expires;


 


(ii)           if any Interest
Period would otherwise end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day, unless such
Business Day falls in another calendar month, in which case such Interest
Period would end on the next preceding Business Day;


 


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


 


(iv)          no Interest Period may extend beyond
the Revolving Commitment Termination Date.


 


“Investment” shall
mean, for any Person, any of the following: (a) any purchase, acquisition or
other interest in (including pursuant to any merger with any Person that was
not a wholly owned Subsidiary prior to such merger) any Capital Stock or
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, any other Person, (b) any
loans or advances to, Guarantee of any obligations of, or any investment or any
other interest in, any other Person, or (c) any purchase or other acquisition
(in one transaction or a series of transactions) of all or substantially all
the assets of any other Person or all or substantially all of the assets of a
business unit, division or branch of any other Person, provided, however,
that the term “Investment” shall not include (i) any transaction entered into
in the ordinary course of business of a Loan Party with any Subject Bank or (ii)
any payment made by a Loan Party in the ordinary course of business or as
required by applicable law to any Person in respect of debit transactions.


 


“Investment Control
Agreement” shall mean an agreement among a Loan Party, the Administrative
Agent and (a) the issuer of uncertificated securities with respect to
uncertificated securities in the name of any Loan Party, (b) a securities
intermediary with respect to securities, whether certificated or
uncertificated, securities entitlements and other financial assets held in a
securities account in the name of any Loan Party, or (c) a futures commission
merchant or clearing house, as applicable, with respect to commodity accounts
and commodity contracts held by any Loan Party, whereby, among other things,
the issuer, securities intermediary or futures commission merchant disclaims
any Lien in the applicable financial assets, acknowledges the Lien of the
Administrative Agent, on behalf of itself and Lenders, on such financial
assets, and agrees to follow the instructions or entitlement orders of the
Administrative Agent without further consent by the affected Loan Party.


 


13

















 


“Issuing Bank” shall
mean (a) SunTrust Bank or (b) any other Lender designated by the Borrower and
approved by the Administrative Agent, each in its capacity as an issuer of
Letters of Credit pursuant to Section 2.14; provided that no Lender
other than SunTrust Bank shall be obligated to issue Letters of Credit under
this Agreement.


 


“LC Commitment” shall
mean that portion of the Aggregate Revolving Commitment Amount that may be used
by the Borrower for the issuance of Letters of Credit in an aggregate face
amount not to exceed $15,000,000.


 


“LC Disbursement”
shall mean a payment made by the applicable Issuing Bank pursuant to a Letter
of Credit.


 


“LC Documents” shall
mean the Letters of Credit and all applications, agreements and instruments
relating to the Letters of Credit.


 


“LC Exposure” shall
mean, at any time, the sum of (i) the aggregate undrawn amount of all
outstanding Letters of Credit at such time, plus
(ii) the aggregate amount of all LC Disbursements that have not been reimbursed
by or on behalf of the Borrower at such time. 
The LC Exposure of any Lender shall be its Pro Rata Share with respect
to the Revolving Commitment of the total LC Exposure at such time.


 


“Lender Insolvency Event”
shall mean that (i) a Lender or its Parent Company is insolvent, or is
generally unable to pay its debts as they become due, or admits in writing its
inability to pay its debts as they become due, or makes a general assignment
for the benefit of its creditors, or (ii) a Lender or its Parent Company is the
subject of a bankruptcy, insolvency, reorganization, liquidation or similar
proceeding, or a receiver, trustee, conservator, custodian or the like has been
appointed for such Lender or its Parent Company, or such Lender or its Parent
Company has taken any action in furtherance of or indicating its consent to or
acquiescence in any such proceeding or appointment, or (iii) a Lender or its
Parent Company has been adjudicated as, or determined by any Governmental
Authority having regulatory authority over such Person or its assets to be,
insolvent; provided that, for the avoidance of doubt, a Lender Insolvency Event
 shall not be deemed to have occurred  solely by virtue of the ownership or
acquisition of any equity interest in or control of a Lender or a Parent
Company thereof by a Governmental Authority or an instrumentality thereof.


 


“Lenders” shall have
the meaning assigned to such term in the opening paragraph of this Agreement
and shall include each Lender that joins this Agreement pursuant to Sections
2.1(d), 10.4 or 10.14. 
Unless the context otherwise requires, the term “Lenders” includes the
Swingline Lender.


 


“Letter of Credit” shall
mean any standby letter of credit issued pursuant to Section 2.14 by an
Issuing Bank for the account of the Borrower pursuant to the LC Commitment.


 


“Leverage Ratio”
means, on any date, the ratio of Total Indebtedness as of such date to EBITDA
of the Borrower for the four (4) fiscal quarters then ended or then most
recently ended.


 


“LIBOR” shall mean,
for any applicable Interest Period with respect to any Eurodollar Loan, the
British Bankers’ Association Interest Settlement Rate per annum for deposits in


 


14














 


Dollars for a period equal
to such Interest Period appearing on the display designated as Reuters Screen
LIBOR01 Page (or such other page on that service or such other service
designated by the British Bankers’ Association for the display of such Association’s
Interest Settlement Rates for Dollar deposits) as of 11:00 a.m. (London,
England time) on the day that is two (2) Business Days prior to the first day
of the Interest Period or if such Reuters Screen LIBOR01 Page is unavailable
for any reason at such time, the rate which appears on the Reuters Screen ISDA Page
as of such date and such time; provided, that if the Administrative
Agent determines that the relevant foregoing sources are unavailable for the
relevant Interest Period, LIBOR shall mean the rate of interest reasonably
determined by the Administrative Agent to be the average (rounded upward, if
necessary, to the nearest 1/100th of 1%) of the
rates per annum at which deposits in Dollars are offered to the Administrative
Agent two (2) Business Days preceding the first day of such Interest Period by
leading banks in the London interbank market as of 10:00 a.m. (Atlanta, Georgia
time) for delivery on the first day of such Interest Period, for the number of
days comprised therein and in an amount comparable to the amount of the
Eurodollar Loan of the Administrative Agent.


 


“Lien” means, with
respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such
asset, and (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset.


 


“Loan Account” shall
have the meaning specified in Section 2.7(b).


 


“Loan Documents”
shall mean, collectively, this Agreement, the LC Documents, any Guaranty
Agreement, any Notes, the Collateral Documents, all Notices of Borrowing, all
Notices of Conversion/Continuation, all Compliance Certificates, the Fee
Letter, and any and all other material agreements executed and delivered by a
Loan Party to the Administrative Agent or a Lender in connection with any of
the foregoing, but excluding any documentation in connection with Bank Product
Obligations or Hedging Obligations.


 


“Loan Parties” shall
mean the Borrower and the Guarantors.


 


“Loans” shall mean
all Revolving Loans and the Swingline Loans, as the context shall require.


 


“Material Adverse Effect”
means a material adverse effect on (i) the business, assets, property or
financial condition of the Borrower and the other Loan Parties taken as a
whole, or (ii) the validity or enforceability of any Loan Documents or the
rights or remedies of the Administrative Agent and the Lenders thereunder.


 


“Material Indebtedness”
shall mean Indebtedness (other than the Loans and Letters of Credit but
including all Hedging Obligations) of any Loan Party or any of their
Subsidiaries, individually or in an aggregate principal amount exceeding $1,000,000;
provided that for any contingent obligation to be included as Material
Indebtedness, the amount thereof must have been liquidated if the amount
thereof can not otherwise be determined in accordance with the terms hereof or
under GAAP.


 


15

















 


“Meta Reserve Account”
shall have the meaning specified in Section 5.13.


 


“Moody’s” shall mean
Moody’s Investors Service, Inc.


 


“Mortgages” shall
mean all mortgages, deeds of trust, deeds to secure debt, leasehold mortgages,
leasehold deeds of trust and leasehold deeds to secure debt executed by any
Loan Party in favor of the Administrative Agent.


 


“Mortgaged Property”
means each parcel of real property and improvements thereon owned by a Loan
Party with respect to which a Mortgage is granted pursuant to Section 5.11 or
5.12.


 


“Multiemployer Plan”
shall have the meaning set forth in Section 4001(a)(3) of ERISA.


 


“NetSpend” shall have
the meaning specified in the recitals hereto.


 


“Non-Defaulting Lender”
shall mean, at any time, a Lender that is not a Defaulting Lender.


 


“Nonexcluded Taxes”
shall have the meaning specified in Section 2.8(b).


 


“Note” shall mean
each Revolving Loan Note (if any).


 


“Notice of Borrowing”
shall mean any certificate signed by an authorized signatory of the Borrower
requesting a new Borrowing hereunder, which certificate shall be denominated a “Notice
of Borrowing,” and shall be in substantially the form of Exhibit D.


 


“Notice of
Conversion/Continuation”  shall
mean a notice substantially in the form of Exhibit E.


 


“NPSI” shall mean
NetSpend Payment Services, Inc., a Delaware corporation.


 


“Obligations” shall
mean all amounts owing by the Loan Parties to the Administrative Agent, the
Issuing Bank or any Lender or any other Secured Party pursuant to this
Agreement or any other Loan Document, including without limitation, (a) all
principal, interest (including any interest accruing after the filing of any
petition in bankruptcy or the commencement of any insolvency, reorganization or
like proceeding relating to any Loan Party, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding), (b) all
reimbursement obligations, fees, expenses, indemnification and reimbursement
payments, costs and expenses (including all fees and expenses of counsel to the
Administrative Agent, the Issuing Bank 
and any Lender incurred pursuant to this Agreement or any other Loan
Document), whether direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising hereunder or thereunder, (c) all
Secured Hedging Obligations, (d) all Bank Product Obligations,  and (e) all obligations and liabilities
incurred in connection with collecting and enforcing the foregoing, together
with all renewals, extensions, modifications or refinancings thereof; provided,
however, that notwithstanding anything to the contrary contained herein
or in any other Loan Document, no Secured Hedging Obligations or Bank Product
Obligations shall constitute “Obligations” after (i) all Commitments have
terminated or expired, (ii) all Obligations (other 


 


16

















 


than Secured Hedging
Obligations, Bank Product Obligations and indemnities and other contingent
obligations not then due and payable and as to which no claim has been made or
is reasonably expected to be made as of the time of determination) have been
paid in full in cash and (iii) all Letters of Credit have expired or terminated
or the LC Exposure has been cash collateralized (or as to which other
arrangements satisfactory to the Administrative Agent and the Issuing Bank
shall have been made), in each case of clauses (i), (ii) and (iii) as provided
for herein.


 


“Off-Balance Sheet
Liabilities” of any Person shall mean (i) any repurchase obligation or
liability of such Person with respect to accounts or notes receivable sold by
such Person, (ii) any liability of such Person under any sale and leaseback
transactions that do not create a liability on the balance sheet of such
Person, (iii) any Synthetic Lease Obligation or (iv) any obligation arising
with respect to any other transaction which is the functional equivalent of or
takes the place of borrowing but which does not constitute a liability on the
balance sheet of such Person.


 


“OSHA” shall mean the
Occupational Safety and Health Act of 1970, as amended from time to time, and
any successor statute.


 


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


 


“Parent Company”
shall mean, with respect to a Lender, the bank holding company (as defined in
Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person
owning, beneficially or of record, directly or indirectly, a majority of the
shares of such Lender.


 


“Participant” shall
have the meaning specified in Section 10.4(d).


 


“Patriot Act” shall
have the meaning specified in Section 10.13.


 


“Payment Date” shall
mean the last day of each Interest Period for a Eurodollar Loan.


 


“Payment Office”
shall mean the office of the Administrative Agent located at 303 Peachtree
Street, N.E., Atlanta, Georgia 30308, or such other location as to which the
Administrative Agent shall have given written notice to the Borrower and the
other Lenders.


 


“PBGC”  shall mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA, and any successor entity
performing similar functions.


 


“Perfection Certificate”
shall mean each Perfection Certificate delivered by a Loan Party pursuant to
the terms of this Agreement.


 


“Permitted Encumbrances”
means:


 


(a)                                 Liens imposed
by law for Taxes or other governmental charges that are not yet due or are
being contested in compliance with Section 5.4;


 


17

















 


(b)                                 carriers’,
vendors’, suppliers’, workers’, warehousemen’s, mechanics’, materialmen’s,
repairmen’s and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 60 days
or are being contested in compliance with Section 5.4;


 


(c)                                  pledges and
deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws or
regulations but not including any Liens imposed by ERISA;


 


(d)                                 deposits to
secure the performance of bids, trade contracts, leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;


 


(e)                                  judgment Liens
in respect of judgments that do not constitute an Event of Default under
paragraph (k) of Section 8.1;


 


(f)                                   easements,
zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure
any monetary obligations and do not materially detract from the value of the
affected property or interfere in any material respect with the ordinary
conduct of business of the Subsidiaries taken as a whole;


 


(g)                                  Liens arising
from filing UCC financing statements regarding operating leases permitted by
this Agreement;


 


(h)                                 leases or
subleases entered into by a Subsidiary in good faith with respect to its
property not used in its business and which do not materially interfere with
the ordinary conduct of business of any Subsidiary;


 


(i)                                     statutory and
common law landlords’ liens under leases to which a Loan Party is a party;


 


(j)                                    customary Liens
(including the right of set-off) in favor of banking institutions encumbering
deposits held by such banking institutions incurred in the ordinary course of
business;


 


(k)                                 licenses and
sublicenses of patents, trademarks, copyrights or other intellectual property
rights granted by any Subsidiary in the ordinary course of business;


 


(l)                                     with respect to
each parcel of Mortgaged Property, encumbrances thereon reflected as exceptions
to title in the mortgage title insurance policy (or binding commitment)
relating to such parcel and approved by the Administrative Agent; and


 


(m)                             Liens incurred
by any Subsidiary with the consent of the Required Lenders.


 


18

















 


provided that the term “Permitted
Encumbrances” shall not include any Lien securing Indebtedness for borrowed
money.


 


“Permitted Investments”
means:


 


(a)                                 direct
obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency
thereof to the extent such obligations are backed by the full faith and credit
of the United States of America), in each case maturing within one year from
the date of acquisition thereof;


 


(b)                                 investments in
commercial paper maturing within 270 days from the date of acquisition thereof
and rated, at such date of acquisition, “A-2” or better from S&P or “P-2”
or better from Moody’s;


 


(c)                                  savings
accounts and demand deposit accounts and investments in certificates of
deposit, banker’s acceptances and time deposits maturing within 180 days from
the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States of America or any
State thereof which has a combined capital and surplus and undivided profits of
not less than $500,000,000;


 


(d)                                 fully
collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial
institution satisfying the criteria described in clause (c) above; and


 


(e)                                  money market
funds that (i) comply with the criteria set forth in Securities and Exchange
Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated
AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least
$5,000,000,000.


 


“Permitted Liens”
means Liens permitted under Section 6.2.


 


“Person” shall mean
any individual, partnership (general or limited), firm, corporation,
association, joint venture, limited liability company or partnership, trust or
other entity, or any Governmental Authority.


 


“Plan” means any
employee pension benefit plan (other than a Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if
such plan were terminated, would under Section 4069 of ERISA be deemed to be)
an “employer” as defined in Section 3(5) of ERISA.


 


“Pro Rata Share”
shall mean with respect to any Commitment of any Lender at any time, a
percentage, the numerator of which shall be such Lender’s Commitment (or if
such Commitments have been terminated or expired or the Loans have been
declared to be due and payable, such Lender’s Revolving Credit Exposure), and
the denominator of which shall be the 


 


19

















 


sum of such Commitments of
all Lenders (or if such Commitments have been terminated or expired or the
Loans have been declared to be due and payable, all Revolving Credit Exposure
of all Lenders).


 


“Purchase Price”
shall mean, as of any date of determination and with respect to a proposed
Acquisition, the purchase price to be paid for the Target or its assets,
including all cash consideration paid (including the then estimated amount of
deferred purchase price obligations) or to be paid (based on the estimated
amount thereof) and the value of all other assets to be transferred by the
purchaser in connection with such Acquisition to the seller, all valued in
accordance with the applicable purchase agreement and the outstanding principal
amount of all Indebtedness of the Target or the seller assumed or acquired in
connection with such Acquisition.


 


“Real Estate Documents”
shall mean collectively, all Mortgages, assignments of rents and leases, title
insurance policies, surveys, environmental indemnity agreements, fixture
filings and all other documents, instruments, agreements and certificates
executed and delivered by any Loan Party to the Administrative Agent and the
Lenders in connection with the foregoing.


 


“Regulation D” shall
mean Regulation D of the Board of Governors of the Federal Reserve System, as
the same may be in effect from time to time, and any successor regulations.


 


“Related Parties”
shall mean, with respect to any specified Person, such Person’s Affiliates and
the respective directors, officers, employees, agents and advisors of such
Person and such Person’s Affiliates.


 


“Release” shall mean
any release, spill, emission, leaking, dumping, injection, pouring, deposit,
disposal, discharge, dispersal, leaching or migration into the environment
(including ambient air, surface water, groundwater, land surface or subsurface
strata) or within any building, structure, facility or fixture.


 


“Replacement Event”
shall have the meaning specified in Section 10.14.


 


“Replacement Lender”
shall have the meaning specified in Section 10.14.


 


“Request for Issuance of
Letter of Credit” shall mean a notice in substantially the form of Exhibit
C.


 


“Required Lenders”
shall mean, at any time, Lenders holding more than 50% of the aggregate
outstanding Revolving Commitments at such time, or if the Lenders have no
Commitments outstanding, then Lenders holding more than 50% of the Revolving
Credit Exposure, if applicable; provided, that (i) at all times during
which there are fewer than three (3) Lenders, Required Lenders shall mean all
Lenders, and (ii) for purposes of determining the number of Lenders under the
immediately preceding clause (i), with respect to any Lender, such Lender
together with each Affiliate of such Lender which is a Lender hereunder shall,
collectively, constitute one (1) Lender.


 


“Requirement of Law”
for any Person shall mean the articles or certificate of incorporation, bylaws,
partnership certificate and agreement, or limited liability company certificate
of organization and agreement, as the case may be, and other organizational and



 


20

















 


governing documents of such
Person, and any law, treaty, rule or regulation, or determination of a
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.


 


“Responsible Officer”
shall mean, with respect to any Person any of the president, the chief
executive officer, the chief operating officer, the chief financial officer,
any vice president, the treasurer, controller or such other representative as
may be designated in writing by any one of the foregoing with the consent of
the Administrative Agent; and, with respect to the financial covenants only,
the chief financial officer, the treasurer, vice president of finance or
controller of such Person.


 


“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other
property) with respect to any Capital Stock in the Borrower or any Subsidiary,
or any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any Capital Stock in
the Borrower or any Subsidiary.


 


“Revolving Commitment”
shall mean, with respect to each Lender, the obligation of such Lender to make
Revolving Loans to the Borrower and to participate in Letters of Credit in an
aggregate principal amount not exceeding the amount set forth with respect to
such Lender on Schedule I, as such schedule may be amended pursuant to Section
2.1(d) or 10.14, or in the case of a Person becoming a Lender after
the Closing Date through an assignment of an existing Revolving Commitment, the
amount of the assigned “Revolving Commitment” as provided in the Assignment and
Acceptance executed by such Person as an assignee, as the same may be increased
or deceased pursuant to terms hereof.


 


“Revolving Commitment
Termination Date” shall mean the earliest of (i) September 24, 2015, (ii) the
date on which the Revolving Commitments are terminated pursuant to Section 2.5
and (iii) the date on which all amounts outstanding under this Agreement have
been declared or have automatically become due and payable (whether by
acceleration or otherwise).


 


“Revolving Credit
Exposure” shall mean, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans, LC Exposure
and Swingline Exposure.


 


“Revolving Credit Lenders”
shall mean, at any time, Lenders who have Revolving Commitments or who hold
Revolving Credit Exposure.


 


“Revolving Loan”
shall mean a loan made by a Lender to the Borrower under its Revolving
Commitment, which may either be a Base Rate Loan or a Eurodollar Loan.


 


“Revolving Loan Notes”
shall mean those certain promissory notes issued by the Borrower to each of the
Revolving Credit Lenders that requests a promissory note, in accordance with
each such Revolving Credit Lender’s Revolving Commitment (including, without
limitation, any increased or new Revolving Commitments under Section 2.1(d)),
in substantially in the form of Exhibit F.


 


“S&P” shall mean
Standard & Poor’s, a Division of the McGraw-Hill Companies.


 


21

















 


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


 


“Secured Hedge Bank”
shall mean any Person that is party to a Hedging Transaction with any Loan
Party, so long such Person was a Lender or an Affiliate of a Lender at the time
such Person entered into such Hedging Transaction.


 


“Secured Hedging
Obligations” shall mean any and all amounts owing or to be owing by any
Loan Party (whether direct or indirect), absolute or contingent, due or to
become due, now existing or hereafter arising, to any Secured Hedge Bank under
any Hedging Transaction between a Loan Party and such  Secured Hedge Bank; provided, however,
if such Secured Hedge Bank ceases to be a Lender (or an Affiliate of a Lender),
“Secured Hedging Obligations” shall include such obligations only to the extent
arising from transactions entered into at the time that such Secured Hedge Bank
was a Lender (or an Affiliate of a Lender) under this Agreement.


 


“Secured Parties”
shall mean the “Secured Parties” as defined in the Security Agreement.


 


“Security Agreement”
shall mean that certain Pledge and Security Agreement, dated as of the Closing
Date, executed by each Loan Party in favor of the Administrative Agent, for the
benefit of the Secured Parties, and each other security agreement executed from
time to time in connection herewith and in substantially the form of Exhibit
G attached hereto.


 


“Skylight Parent”
means Skylight Acquisition I, Inc., a Delaware corporation and a Subsidiary of
the Borrower.


 


“Skylight Subsidiary”
means Skylight Financial, Inc., a Delaware corporation and a Subsidiary of
Skylight Parent.


 


“Subject Bank” shall
mean any federal or state chartered bank which provides the products that are
marketed and processed by a Loan Party, including, without limitation, any
prepaid debit cards.


 


“Subject Bank
Transactions” shall mean (a) any purchase by any Loan Party from a Subject
Bank from time to time in the ordinary course of business of any receivables
owing from a cardholder to such Subject Bank arising from overdrawn cardholder
account balances in respect of accounts maintained with such Subject Bank and (b)
any obligation of a Loan Party to a Subject Bank in the ordinary course of
business to fund cardholder deposits that have been credited to the account of
such cardholder maintained with the Subject Bank but have yet to be remitted by
the third party accepting such deposits on behalf of the cardholder to such
Subject Bank.


 


“Subject Person” has
the meaning assigned to such term in the definition of “Consolidated Net
Income.”


 


“Subordinated
Indebtedness” shall have the meaning specified in Section 6.1(l).


 


“Subsidiary” shall
mean, with respect to any Person, any corporation, partnership, joint venture,
limited liability company, association or other entity the accounts of which
would be 


 


22

















 


consolidated with those of
the parent in the parent’s consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as
any other corporation, partnership, joint venture, limited liability company,
association or other entity (i) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power, or in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
or (ii) that is, as of such date, otherwise controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent.  Unless otherwise
indicated, all references to “Subsidiary” hereunder shall mean a Subsidiary of
the Borrower.


 


“Swingline Commitment”
shall mean, with respect to the Swingline Lender, the commitment of the
Swingline Lender to make Swingline Loans hereunder.  The initial amount of the Swingline Lender’s
Swingline Commitment is $5,000,000.


 


“Swingline Exposure”
shall mean, at any time, the aggregate principal amount of all Swingline Loans
outstanding at such time.  The Swingline
Exposure of any Revolving Credit Lender at any time shall equal its Pro Rata
Share of the aggregate Swingline Exposure at such time.


 


“Swingline Lender”
shall mean SunTrust Bank in its capacity as the lender of Swingline Loans.


 


“Swingline Loan”
shall mean a loan made pursuant to Section 2.1(d).


 


“Synthetic Lease”
shall mean a lease transaction under which the parties intend that (i) the
lease will be treated as an “operating lease” by the lessee pursuant to
Statement of Financial Accounting Standards No. 13, as amended and (ii) the
lessee will be entitled to various tax and other benefits ordinarily available
to owners (as opposed to lessees) of like property.


 


“Synthetic Lease
Obligations” shall mean, with respect to any Person, the sum of (i) all
remaining rental obligations of such Person as lessee under Synthetic Leases
which are attributable to principal and, without duplication, (ii) all rental
and purchase price payment obligations of such Person under such Synthetic
Leases assuming such Person exercises the option to purchase the lease property
at the end of the lease term.


 


“Target” shall mean a
Person who is to be acquired or whose assets are to be acquired in a
transaction permitted hereby.


 


“Taxes” shall mean
any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.


 


“Total Indebtedness”
means, at the time of determination, the sum of the following determined for
the Borrower and its Subsidiaries on a consolidated basis (without
duplication):  (a) the outstanding
principal amount of Revolving Loans; plus (b) the outstanding principal
amount of all other Indebtedness for borrowed money, including Guarantees
thereof, other than the Revolving Loans and Guarantees thereof; plus (c)
all obligations of such Person evidenced by bonds, notes, debentures, or other
similar instruments, other than the Revolving Loans; plus (d) all
obligations of such Person upon which interest charges are paid or payable,
other than the 


 


23

















 


Loans; plus (e) all
Capital Lease Obligations; plus (f) all Indebtedness arising in respect
of Disqualified Capital Stock; plus (g) Off-Balance Sheet Liabilities.


 


“Transactions” means (a)
the execution and delivery by each Loan Party of each Loan Document to which it
is a party, (b) the borrowing of the Loans and the issuance of the Letters of
Credit, and (c) the refinancing of the Borrower’s existing Indebtedness, and
the other uses of the proceeds of the Loans and the Letters of Credit.


 


“Type”, when used in
reference to a Loan or Borrowing, refers to whether the rate of interest on
such Loan, or on the Loans comprising such Borrowing, is determined by
reference to the Adjusted LIBO Rate or the Base Rate.


 


“UCC” shall mean the
Uniform Commercial Code in effect in the State of New York, as amended and in
effect from time to time.


 


“Unrecognized Retiree
Welfare Liability” shall mean, with respect to any employee benefit plan
(within the meaning of Section 3(3) of ERISA) Plan that provides postretirement
benefits other than pension benefits, the amount of the transition obligation,
as determined in accordance with Statement of Financial Accounting Standards No.
106, “Employers’ Accounting for Postretirement Benefits Other Than Pensions,”
as of the most recent valuation date, that has not been recognized as an
expense in the income statement of the Borrower and its Subsidiaries, provided
that (i) prior to the date such Statement is applicable to the Borrower, such
amount shall be based on an estimate made in good faith of the transition
obligation, and (ii) for purposes of determining the aggregate amount of the
Unrecognized Retiree Welfare Liability, Plans maintained by a Subsidiary that
is not otherwise an ERISA Affiliate shall be included.


 


“Withdrawal Liability”
shall mean liability to a Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan, as such terms are defined in Part
I of Subtitle E of Title IV of ERISA.


 


Section 1.2.                                Classifications of Loans and Borrowings.  For purposes of this Agreement,
Loans and Borrowings may be classified and referred to by Type (e.g. a “Eurodollar
Loan” or “Base Rate Loan” or “Eurodollar Borrowing” or “Base Rate Borrowing”).


 


Section 1.3.                                Accounting Terms and Determination.  Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all determinations with
respect to accounting matters hereunder shall be made, and all financial
statements and certificates and reports as to financial matters required to be
furnished to the Administrative Agent or the Lenders hereunder shall be
prepared, in accordance with GAAP. 
Notwithstanding the foregoing, if such change to GAAP or the application
thereof (in any event, the “Subject Change”), would affect the
computation of any financial ratio or requirement set forth in this Agreement,
and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change (subject to the approval of the Required
Lenders); provided  that, until so amended, regardless of whether
such request is made before or after such Subject Change, such ratio or
requirement shall continue to be computed in accordance with GAAP without
giving effect to such Subject Change.


 


24














 


Notwithstanding the
foregoing, all financial covenants contained herein shall be calculated without
giving effect to any election under Statement of Financial Accounting Standards
159 (or any similar accounting principle) permitting a Person to value its financial
liabilities at the fair value thereof.


 


Section 1.4.                                Terms Generally.  The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have
the same meaning and effect as the word “shall”.  In the computation of periods of time from a
specified date to a later specified date, the word “from” means “from and
including” and the word “to” means “to but excluding”.  Unless the context requires otherwise (i) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as it was originally executed or as it may have been or hereafter be
from time to time amended, restated, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (ii) any reference herein to any Person shall be construed
to include such Person’s successors and permitted assigns, (iii) the words “hereof”,
“herein” and “hereunder” and words of similar import shall be construed to
refer to this Agreement as a whole and not to any particular provision hereof, (iv)
all references to Articles, Sections, Exhibits and Schedules shall be construed
to refer to Articles, Sections, Exhibits and Schedules to this Agreement and (v)
all references to a specific time shall be construed to refer to the time in
the city and state of the Administrative Agent’s principal office, unless
otherwise indicated.


 


ARTICLE II


 


THE LOANS AND LETTERS OF CREDIT


 


Section 2.1.                                Extensions of Credit.


 


(a)                                  The Revolving
Loans.  Each Revolving Credit Lender
agrees, severally in accordance with its Revolving Commitment and not jointly
with the other Revolving Credit Lenders, upon the terms and subject to the
conditions of this Agreement, to lend and relend to the Borrower, from time to
time on any Business Day prior to the Revolving Commitment Termination Date,
amounts which do not exceed such Revolving Credit Lender’s Revolving Commitment
as of such Business Day.  Subject to the
terms and conditions hereof and prior to the Revolving Commitment Termination
Date, Borrowings under the Revolving Commitments may be repaid and reborrowed
from time to time on a revolving basis. 
At no time shall any Lender be required to make any Revolving Loans if
the making of such Loan would cause the Revolving Credit Exposure of all
Lenders to exceed the Aggregate Revolving Commitment Amount.


 


(b)                                 The Letters of
Credit.  Subject to the terms and
conditions of this Agreement, the Issuing Bank agrees to issue Letters of
Credit for the account of the Borrower, from time to time on any Business Day
prior to the date that is thirty (30) days prior to the Revolving Commitment
Termination Date, pursuant to Section 2.14, in an outstanding face 


 


25

















 


amount not to exceed, with
respect to the issuance of any individual Letter of Credit as of any Business
Day, the Available Letter of Credit Amount as of such Business Day.


 


(c)                                  The Swingline
Loans.  Subject to the terms and
conditions of this Agreement, including, without limitation, Section 2.2(g),
the Swingline Lender, in its sole and absolute discretion, may from time to
time on any Business Day after the Closing Date but prior to the Revolving
Commitment Termination Date, make Swingline Loans to the Borrower in an
aggregate amount not to exceed the lesser of (i) the Swingline Commitment as of
such Business Day and (ii) the difference between the Aggregate Revolving
Commitments and the Revolving Credit Exposures on such date.  Each Swingline Loan shall be due and payable
on the maturity thereof as notified to the Borrower by the Swingline Lender; provided
that in no event shall such maturity be later than the seventh  Business Day succeeding the date the
Swingline Loan is made regardless of whether the Swingline Lender has notified
the Borrower of such maturity thereof.


 


(d)                                 Increase in
Revolving Commitments.


 


(i)                                     Request for
Increase.  Upon
written notice (the “Increase Notice”) to the Administrative Agent
(which shall promptly notify the Lenders and provide the Lenders with access to
a copy of the Increase Notice), the Borrower may, at any time and from time to
time, request increases in the Aggregate Revolving Commitment Amount in an
aggregate amount not to exceed $50,000,000 for all such increases; provided,
that no more than two (2) increases in the Aggregate Revolving Commitment
Amount may be requested hereunder.  The
Borrower (in consultation with the Administrative Agent) shall specify in the
Increase Notice (x) the time period within which each existing Lender is
requested to respond (which shall in no event be less than ten (10) Business
Days from the date on which the Increase Notice was provided to such Lenders by
the Administrative Agent), (y) the amount of the requested increase in the
Aggregate Revolving Commitment Amount, and (z) the date on which such increase
is requested to become effective.


 


(ii)                                  Lender
Elections to Increase.  No
Lender shall have any obligation to increase its Revolving Commitment under
this Section 2.1(d).  Any Lender
who wishes to increase its Revolving Commitment must provide to the
Administrative Agent, within the time period specified in the Increase Notice,
a written commitment for the amount of such Lender’s increased Revolving
Commitment.  Any Lender that does not
provide its written commitment within the time period specified in the Increase
Notice shall be deemed to have declined to increase its Revolving Commitment.


 


(iii)                               Notification by
Administrative Agent; Additional Lenders.  The Administrative Agent shall notify the
Borrower and each Lender of the Lenders’ responses to each request under Section
2.1(d)(ii).  If the aggregate
increase in the Revolving Commitments of the existing Lenders is less than the
requested increase, then to achieve the full amount of the requested increase,
the Borrower may also invite any Affiliate of a Lender, an Approved Fund or,
with the consent of the Administrative Agent (such consent not to be
unreasonably withheld 


 


26

















 


conditioned or delayed), any
other Person (so long as such Person is permitted to be an assignee pursuant to
Section 10.4(b)(v)) (each, an “Eligible Additional Lender”) to
become Lenders pursuant to a joinder agreement in form and substance reasonably
satisfactory to the Administrative Agent.


 


(iv)                              Effective Date
and Allocations.  If the
Aggregate Revolving Commitment Amount is increased in accordance with this Section
2.1(d), the Administrative Agent and the Borrower shall determine the
effective date (the “Increase Effective Date”) and the final allocation
of such increase.  The Administrative
Agent shall promptly notify the Borrower and the Lenders, including any
proposed new lenders, of the final allocation of such increase and the Increase
Effective Date.  From and after the
Increase Effective Date, subject to the satisfaction of the conditions
specified in Section 2.1(d)(v) below, the Aggregate Revolving Commitment
Amount shall be increased and the new lenders shall be Lenders for all purposes
under this Agreement.  On the Increase
Effective Date, the Borrower and each Lender that is increasing its Revolving
Commitment, each Eligible Additional Lender that is becoming an additional
Lender and the Loan Parties shall execute and deliver to the Administrative
Agent such documentation as the Administrative Agent shall reasonably specify
(including any Assignments and Acceptances and new or replacement Revolving
Loan Notes, as requested by the Lenders) to give effect to the increase in the
Aggregate Revolving Commitment Amount. 
This Agreement shall be deemed amended to the extent (but only to the
extent) necessary to increase the Aggregate Revolving Commitment Amount in
accordance with this Section 2.1(d).


 


(v)                                 Conditions to
Effectiveness of Increase.  The
Increase Effective Date shall occur on a date designated by the Administrative
Agent and the Borrower as set forth in Section 2.1(d)(iii) on which each
of the following conditions is satisfied: (a) the Borrower shall have received
the prior written consent of Administrative Agent and the Issuing Bank to such
increase (in each case, not to be unreasonably withheld, conditioned or
delayed), (b) no Default or Event of Default shall have occurred and be
continuing on such Increase Effective Date or would result from such increase
and (c) the Borrower has on or prior to such Increase Effective Date prepaid
any Revolving Loans outstanding on the Increase Effective Date to the extent
necessary to keep the outstanding Revolving Loans ratable with any revised Pro
Rata Shares of the Aggregate Revolving Commitment arising from any nonratable
increase in the Aggregate Revolving Commitment Amount under this Section (and
the Borrower shall be liable for any costs under Section 2.9 in respect
of such prepayment).


 


(vi)                              Effect of
Increases.  Revolving
Loans made under the increased Aggregate Revolving Commitment Amount shall for
all purposes be Revolving Loans and Obligations hereunder and under the Loan
Documents on the same terms and conditions as the existing Revolving Loans,
including without limitation, pricing.


 


27

















 


Section 2.2.                                Manner of Borrowing and Disbursement of Loans.


 


(a)                                  Choice of
Interest Rate, etc.  Any Borrowing
shall, at the option of the Borrower, be made either as a Base Rate Borrowing
or as a Eurodollar Borrowing; provided, however, that if the
Borrower fails to give the Administrative Agent written notice specifying
whether a Eurodollar Borrowing is to be repaid, continued or converted on a
Payment Date, such Borrowing shall be converted to a Base Rate Borrowing on the
Payment Date in accordance with Section 2.3(a)(iii) and the Borrower may
not select a Eurodollar Borrowing (A) on the Closing Date unless the Borrower
shall have executed a funding indemnity letter in favor of the applicable
Lenders in form and substance reasonably satisfactory to the Administrative
Agent, (B) with respect to Swingline Loans, (C) with respect to a Borrowing,
the proceeds of which are to reimburse the Issuing Bank pursuant to Section 2.14,
or (D) if, at the time of such Borrowing or at the time of the continuation of,
or conversion to, a Eurodollar Borrowing pursuant to  Section 2.2(c), a Default or Event of Default exists.  Any notice given to the Administrative Agent
in connection with a requested Borrowing hereunder shall be given to the
Administrative Agent by 11:00 a.m. (Atlanta, Georgia, time) in order for such
Business Day to count toward the minimum number of Business Days required.


 


(b)                                 Base Rate
Borrowings.


 


(i)                                     Initial and
Subsequent Borrowings.  The
Borrower shall give the Administrative Agent in the case of any Base Rate
Borrowing irrevocable notice by telephone not later than 11:00 a.m. (Atlanta,
Georgia, time) on the date of such Borrowing and shall promptly confirm any
such telephone notice with a written Notice of Borrowing; provided, however,
that the failure by the Borrower to confirm any notice by telephone with a
written Notice of Borrowing shall not invalidate any notice so given.  Except for deemed Borrowings made under Section
2.2(f), each Borrowing that is a Base Rate Borrowing shall be in a
principal amount of no less than $500,000 and in an integral multiple of
$100,000 in excess thereof (or, if less, then such Borrowing shall equal the
entire unused balance of the Aggregate Revolving Commitment Amount).


 


(ii)                                  Repayments and
Conversions.  The
Borrower may (A) at any time without prior notice repay a Base Rate Borrowing
or (B) upon at least three (3) Business Days irrevocable prior written notice
to the Administrative Agent in the form of a Notice of Conversion/Continuation,
convert all or a portion of the principal of any Base Rate Borrowing to one or
more Eurodollar Borrowings.  Upon the
date indicated by the Borrower, such Base Rate Borrowing shall be so repaid or
converted.


 


(c)                                  Eurodollar
Borrowings.


 


(i)                                     Initial and
Subsequent Borrowings.  The
Borrower shall give the Administrative Agent in the case of any Eurodollar
Borrowings irrevocable notice by telephone not later than 11:00 a.m. (Atlanta,
Georgia, time) three (3) days prior to the date of such Eurodollar Borrowing
and shall promptly confirm any such telephone notice with a written Notice of
Borrowing; provided, however, that the failure by the Borrower to
confirm any notice by telephone with a written Notice of Borrowing shall not
invalidate any notice so given.


 


28

















 


(ii)                                  Repayments,
Continuations and Conversions.  At least three (3) Business Days prior to
each Payment Date for a Eurodollar Borrowing, the Borrower shall give the
Administrative Agent written notice in the form of a Notice of
Conversion/Continuation specifying whether all or a portion of such Eurodollar
Borrowing outstanding on such Payment Date is to be continued in whole or in
part as one or more new Eurodollar Borrowings and also specifying the new
Interest Period applicable to each such new Eurodollar Borrowing (and subject
to the provisions of this Agreement, upon such Payment Date, such Eurodollar
Borrowing shall be so continued).  Upon
such Payment Date, any Eurodollar Borrowing (or portion thereof) not so
continued shall be converted to a Base Rate Borrowing or, subject to Section
2.9, be repaid.


 


(iii)                               Miscellaneous.  Notwithstanding any term or provision of this
Agreement which may be construed to the contrary, each Eurodollar Borrowing
shall be in a principal amount of no less than $1,000,000 and in an integral
multiple of $500,000 in excess thereof (or, if less, then equal to the entire
unused balance of the Aggregate Revolving Commitment Amount), and at no time
shall the aggregate number of all Eurodollar Borrowings then outstanding exceed
six (6).


 


(d)                                 Notification of
Lenders.  Upon receipt of a (i) Notice
of Borrowing or a telephone or telecopy Notice of Borrowing, (ii) notification
from the Issuing Bank that a draw has been made under any Letter of Credit
(unless the Issuing Bank will be reimbursed through the funding of a Swingline
Loan), or (iii) notice from the Borrower with respect to the prepayment of any
outstanding Eurodollar Borrowing prior to the Payment Date for such Borrowing,
the Administrative Agent shall promptly notify each Lender by telephone or
telecopy of the contents thereof and the amount of each Lender’s portion of any
such Borrowing.  Each Lender shall, not
later than 11:00 a.m. (Atlanta, Georgia, time) on the date specified for such
Borrowing (under clause (i) or (ii) above) in such notice, make available to
the Administrative Agent at the Payment Office, or at such account as the
Administrative Agent shall designate, the amount of such Lender’s portion of
the Borrowing in immediately available funds.


 


(e)                                  Disbursement.  Prior to 3:00 p.m. (Atlanta, Georgia, time)
on the date of a Borrowing hereunder, the Administrative Agent shall, subject
to the satisfaction of the conditions set forth in Article III, disburse
the amounts made available to the Administrative Agent by the Lenders in like
funds by (i) transferring the amounts so made available by wire transfer to the
Borrower’s general deposit account maintained with the Administrative Agent or
such other account of the Borrower as it may designate in any Notice of
Borrowing or (ii) in the case of a Borrowing the proceeds of which are to
reimburse the Issuing Bank pursuant to Section 2.14, transferring such
amounts to such Issuing Bank.  Unless the
Administrative Agent shall have received notice from a Lender prior to 11:00 a.m.
(Atlanta, Georgia, time) on the date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender’s ratable portion of
such Borrowing, the Administrative Agent may assume that such Lender has made
or will make such portion available to the Administrative Agent on the date of
such Borrowing and the Administrative Agent may, in its sole and absolute
discretion and in reliance upon such assumption, make available to the Borrower
or the Issuing Bank, as applicable, on such date a corresponding amount.  If and to the extent such Lender shall not
have so made such 


 


29

















 


ratable portion available to
the Administrative Agent, such Lender agrees to repay to the Administrative
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the
Borrower or the Issuing Bank, as applicable, until the date such amount is
repaid to the Administrative Agent, (x) for the first two (2) Business Days, at
the Federal Funds Rate for such Business Days, and (y) thereafter, at the Base
Rate.  If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender’s portion of the applicable Borrowing for purposes of
this Agreement and if both such Lender and the Borrower shall pay and repay
such corresponding amount, the Administrative Agent shall promptly remit to the
Borrower such corresponding amount.  If
such Lender does not repay such corresponding amount immediately upon the
Administrative Agent’s demand therefor, the Administrative Agent shall notify
the Borrower and the Borrower shall immediately pay such corresponding amount
to the Administrative Agent.  The failure
of any Lender to fund its portion of any Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to fund its respective portion of
the Borrowing on the date of such borrowing, but no Lender shall be responsible
for any such failure of any other Lender.


 


(f)                                    Deemed Notice
of Borrowing.  Unless payment
is otherwise timely made by the Borrower, the becoming due of any amount
required to be paid under this Agreement or any of the other Loan Documents as
principal, interest or reimbursement obligations in connection with Letters of
Credit or Swingline Loans payable hereunder shall be deemed irrevocably to be a
Notice of Borrowing on the due date of (after taking into account any
applicable grace periods therefor pursuant to this Agreement), and in an
aggregate amount required to pay, such principal, interest or reimbursement
obligations in connection with such Letters of Credit or such Swingline Loans
payable hereunder, and the proceeds of a Revolving Loan made pursuant thereto
may be disbursed by way of direct payment of the relevant Obligation and shall
bear interest as a Base Rate Borrowing (unless converted pursuant to Section
2.2).  The Lenders shall have no
obligation to the Borrower to honor any deemed Notice of Borrowing under this Section
2.2(f) unless all the conditions set forth in Section 3.2 have been
satisfied, but, with the consent of the Lenders required under the last
sentence of Section 3.2, may do so in their sole and absolute discretion
and without regard to the existence of, and without being deemed to have
waived, any Default or Event of Default or the failure by the Borrower to
satisfy any of the conditions set forth in Section 3.2.  No further authorization, direction or
approval by the Borrower shall be required to be given by the Borrower for any
deemed Notice of Borrowing under this Section 2.2(f).  The Administrative Agent shall promptly
provide to the Borrower written notice of any Borrowing pursuant to this Section
2.2(f).


 


(g)                                 Special
Provisions Pertaining to Swingline Loans.


 


(i)                                     The Borrower
shall give the Swingline Lender written notice in the form of a Notice of
Borrowing, or notice by telephone no later than 11:00  a.m. (Atlanta, Georgia, time) on the date on which the
Borrower wishes to receive a Borrowing of any Swingline Loan followed promptly
by a written Notice of Borrowing, with a copy to the Administrative Agent; provided,
however, that the failure by the Borrower to confirm any notice by
telephone with a written Notice of Borrowing shall not invalidate any notice so
given.  Each Swingline Loan shall bear
interest as a Base Rate Borrowing.  If
the Swingline Lender, in its sole and 


 


30

















 


absolute
discretion, elects to make the requested Swingline Loan, the Swingline Loan
shall be made on the date specified in the telephone notice or the Notice of
Borrowing and such telephone notice or Notice of Borrowing shall specify (i) the
amount of the requested Swingline Loan and (ii) instructions for the
disbursement of the proceeds of the requested Swingline Loan.  Each Swingline Loan shall be subject to all
the terms and conditions applicable to Revolving Loans, except that all
payments thereon shall be payable to the Swingline Lender solely for its own
account.  The Swingline Lender shall have
no duty or obligation to make any Swingline Loans hereunder.  The Swingline Lender shall not make any
Swingline Loans if the Swingline Lender has received written notice from any
Revolving Credit Lender (or the Swingline Lender has actual knowledge) that one
or more applicable conditions precedent set forth in Section 3.2 will
not be satisfied (or waived pursuant to the last sentence of Section 3.2)
on the requested Borrowing date.  In the
event the Swingline Lender in its sole and absolute discretion elects to make
any requested Swingline Loan, the Swingline Lender shall make the proceeds of
such Swingline Loan available to the Borrower in the manner set forth in the
applicable Notice of Borrowing.


 


(ii)                                  The Swingline
Lender shall notify the Administrative Agent and each Revolving Credit Lender
no less frequently than weekly, as determined by the Administrative Agent, of
the principal amount of Swingline Loans outstanding as of 3:00 p.m. (Atlanta,
Georgia, time) as of such date and each Revolving Credit Lender’s Pro Rata
Share (based on the Aggregate Revolving Commitment) thereof.  Each Revolving Credit Lender shall before
11:00 a.m. (Atlanta, Georgia, time) on the next Business Day make available to
the Administrative Agent, in immediately available funds, the amount of its Pro
Rata Share (based on the Aggregate Revolving Commitment) of such principal
amount of Swingline Loans outstanding. 
Upon such payment by a Revolving Credit Lender, such Revolving Credit
Lender shall be deemed to have made a Revolving Loan to the Borrower,
notwithstanding any failure of the Borrower to satisfy the conditions in Section
3.2.  Each Revolving Loan so made
shall bear interest as a Base Rate Borrowing. 
The Administrative Agent shall use such funds to repay the principal
amount of Swingline Loans to the Swingline Lender.  Additionally, if at any time any Swingline
Loans are outstanding, any of the events described in clauses (h) or (i) of Section
8.1 shall have occurred, then each Revolving Credit Lender shall
automatically upon the occurrence of such event and without any action on the
part of the Swingline Lender, the Borrower, the Administrative Agent or the
Revolving Credit Lenders, be deemed to have purchased an undivided
participation in the principal and interest of all Swingline Loans then
outstanding in an amount equal to such Revolving Credit Lender’s Pro Rata Share
of the principal and interest of all Swingline Loans then outstanding and each
Revolving Credit Lender shall, notwithstanding such Event of Default,
immediately pay to the Administrative Agent for the account of the Swingline
Lender in immediately available funds, the amount of such Revolving Credit
Lender’s participation (and upon receipt thereof, the Swingline Lender shall
deliver to such Revolving Credit Lender a loan participation certificate dated
the date of receipt of such funds in such amount).  The disbursement of funds in 


 


31

















 


connection with the
settlement of Swingline Loans hereunder shall be subject to the terms and
conditions of Section 2.2(e).


 


Section 2.3.                                Interest.


 


(a)                                  On Loans.  Interest on the Loans, subject to Sections
2.3(b) and (c), shall be payable as follows:


 


(i)                                     On Base Rate
Borrowing.  Interest on
each Base Rate Borrowing shall be computed for the actual number of days elapsed
on the basis of a year of three hundred sixty-five (365) or three hundred
sixty-six (366) days and shall be payable quarterly in arrears on the last day
of each calendar quarter for such calendar quarter, commencing with the
calendar quarter ending December 31, 2010. 
Interest on Base Rate Borrowings then outstanding shall also be due and
payable on the Revolving Commitment Termination Date (or, in any event, the
date of any earlier prepayment in full of the Obligations).  Interest shall accrue and be payable on each
Base Rate Borrowing at the simple per annum interest rate equal to the sum of (A)
the Base Rate and (B) the Applicable Margin for Base Rate Borrowings.


 


(ii)                                  On Eurodollar
Borrowings.  Interest on
each Eurodollar Borrowing shall be computed for the actual number of days
elapsed on the basis of a hypothetical year of three hundred sixty (360) days
and shall be payable in arrears on (x) the Payment Date for such Borrowing, and
(y) if the Interest Period  for
such Borrowing is greater than three (3) months, on the last day of each three
month period commencing on the initial date of such Interest Period and on the
last day of the applicable Interest Period for such Borrowing.  Interest on Eurodollar Borrowings then
outstanding shall also be due and payable on the Revolving Commitment
Termination Date (or, in any event, the date of any earlier prepayment in full
of the Obligations).  Interest shall
accrue and be payable on each Eurodollar Borrowing at the simple per annum
interest rate equal to the sum of (A) the Adjusted LIBO Rate applicable to such
Eurodollar Borrowing and (B) the Applicable Margin for Eurodollar Borrowings.


 


(iii)                               If No Notice of
Selection of Interest Rate.  If the Borrower fails to give the
Administrative Agent timely notice of its selection of the Base Rate or
Adjusted LIBO Rate, or if the Administrative Agent reasonably determines that
means do not exist for determining the Adjusted LIBO Rate for any Borrowing
(including, without limitation, disruption of the eurodollar markets which
results in the Administrative Agent not being able to determine the Adjusted
LIBO Rate), the Base Rate shall apply to such Borrowing.  If the Borrower fails to elect to continue
any Eurodollar Borrowing then outstanding prior to the last Payment Date
applicable thereto in accordance with the provisions of Section 2.2, as
applicable, the Base Rate shall apply to such Borrowing commencing on and after
such Payment Date, until the Borrower elects to convert such Borrowing to a
Eurodollar Borrowing.


 


32

















 


(b)                                 Upon Default.  During the existence of an Event of Default
specified in Section 8.1(a), (b), (h) or (i),
interest on the outstanding Obligations shall automatically accrue at the
Default Rate; the Default Rate shall also automatically be deemed to have been
invoked at all times when the Obligations have been accelerated or deemed
accelerated pursuant to Section 8.1. 
Interest accruing at the Default Rate shall be payable on demand and in
any event on the Revolving Commitment Termination Date (or the date of any
earlier prepayment in full of the Obligations) and shall accrue until the
earliest to occur of (i) waiver of the applicable Event of Default in
accordance with Section 10.2, (ii) agreement by the Required Lenders to
rescind the charging of interest at the Default Rate, or (iii) payment in full
of the Obligations.


 


(c)                                  Computation of
Interest.  Interest on
the principal amount of all Borrowings shall accrue from and including the date
such Borrowings are made to but excluding the date of any repayment
thereof.  Interest on any Borrowing which
is converted into a Borrowing of another Type or which is repaid or prepaid
shall be payable on the date of such conversion or on the date of any such
repayment or prepayment (on the amount repaid or prepaid) thereof.


 


(d)                                 Determination
of Interest Rate. The Administrative Agent shall determine each
interest rate applicable to the Loans hereunder and shall promptly notify the
Borrower and the Lenders of such rate in writing (or by telephone, promptly
confirmed in writing).  Any such
determination shall be conclusive and binding for all purposes, absent manifest
error.


 


(e)                                  Applicable
Margin.   The Applicable Margin shall
be Level II set forth in the below table during the period commencing with the
Closing Date and ending on the date that the Borrower’s financial statements
are delivered to the Administrative Agent pursuant to Section 5.1(b) hereof
for the quarter ending September 30, 2010. 
Thereafter, the Applicable Margin shall be determined based upon the
Leverage Ratio, as set forth in the table below, as of the most recent date of
determination.  For purposes of the
foregoing, (i) the Leverage Ratio shall be determined as of the end of each
Fiscal Quarter and set forth in the Compliance Certificate delivered to the
Administrative Agent pursuant to Section 5.1(c) and (ii) any increase or
decrease in the Applicable Margin resulting from a change in the Leverage Ratio
shall become effective as of the first Business Day immediately following the
date a Compliance Certificate is delivered pursuant to Section 5.1(c);
provided that if a Compliance Certificate is not delivered when due in
accordance with Section 5.1(c), then Level IV shall apply as of the
first Business Day after the date on which such Compliance Certificate was
required to have been delivered until such time as such Compliance Certificate
is delivered, whereupon the Applicable Margin shall be determined as if such
Compliance Certificate had been timely delivered, and shall be effective as of
the first Business Day immediately following the date such Compliance
Certificate is delivered:


 


	
  Level

  	
   

  	
  Leverage Ratio

  	
   

  	
  Eurodollar Loan

  Applicable

  Margin

  	
   

  	
  Base Rate Loan

  Applicable

  Margin

  	
   

  	
  Commitment

  Fee

  Applicable

  Margin

  	
   

  
	
  I

  	
   

  	
  <
  1.00:1.00

  	
   

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  	
  0.45

  	
  %

  
	
  II

  	
   

  	
  > 1.00:1.00
  but 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  <
  1.50:1.00

  	
   

  	
  2.75

  	
  %

  	
  1.75

  	
  %

  	
  0.50

  	
  %

  
	
  III

  	
   

  	
  > 1.50:1.00
  but

  < 2.00:1.00

  	
   

  	
  3.00

  	
  %

  	
  2.00

  	
  %

  	
  0.50

  	
  %

  
	
  IV

  	
   

  	
  > 2.00:1.00

  	
   

  	
  3.25

  	
  %

  	
  2.25

  	
  %

  	
  0.50

  	
  %

  



 


33

















 


(f)                                    Adjustments to
Applicable Margin.   In the event
that any financial statement or Compliance Certificate delivered pursuant to Section
5.1(c) is shown to be inaccurate (regardless of whether this Agreement or
the Commitments are in effect when such inaccuracy is discovered), and such
inaccuracy, if corrected, would have led to the application of a higher
Applicable Margin for any period (an “Applicable Period”) than the
Applicable Margin applied for such Applicable Period, and only in such case,
then the Borrower shall promptly (i) deliver to the Administrative Agent a
corrected Compliance Certificate for such Applicable Period, (ii) determine the
Applicable Margin for such Applicable Period based upon the corrected
Compliance Certificate, and (iii) promptly pay to the Administrative Agent the
accrued additional interest and fees owing as a result of such increased
Applicable Margin for such Applicable Period; provided that if, as a
result of any restatement or other event a proper calculation of the Applicable
Margin would have resulted in higher pricing for one or more periods and lower
pricing for one or more other periods (due to the shifting of income or
expenses from one period to another period or any similar reason), then the
amount payable by the Borrower pursuant to clause (iii) above shall be based
upon the excess, if any, of the amount of interest and fees that should have
been paid for all applicable periods over the amount of interest and fees paid
for all such periods.


 


Section 2.4.                                Fees.


 


(a)                                  Fee Letters.  The Borrower agrees to pay to the
Administrative Agent such fees as are set forth in the Fee Letter at the times
specified therein.


 


(b)                                 Commitment Fee.  The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender, a
commitment fee on the average daily amount of the unused Revolving Commitment
of such Lender during the Availability Period, which shall accrue at the
Applicable Margin as set forth in Section 2.3(e); provided, that
if such Lender continues to have any Revolving Credit Exposure after the
Revolving Commitment Termination Date, then the commitment fee shall continue
to accrue on the amount of such Lender’s Revolving Credit Exposure from and
after the Revolving Commitment Termination Date to the date that all of such
Lender’s Revolving Credit Exposure has been paid in full.  For purposes of computing commitment fees
with respect to the Revolving Commitments, the Revolving Commitment of each
Lender shall be deemed used to the extent of the outstanding Revolving Loans
and LC Exposure of such Lender, but shall specifically exclude any outstanding
Swingline Loans.  Such commitment fees
shall be computed on the basis of a hypothetical year of three hundred sixty
(360) days for the actual number of days elapsed, shall be payable in arrears
on the last day of each calendar quarter for such calendar quarter, commencing
with the calendar quarter ending December 31, 2010, and if then unpaid, on the
Revolving Commitment Termination Date (or the date of any earlier prepayment in
full of the Obligations), and shall be fully earned when due and non-refundable
when paid.


 


34














 


(c)                                  Letter of
Credit Fees


 


(i)                                     The Borrower
shall pay to the Administrative Agent for the account of the Lenders, in
accordance with their Pro Rata Shares, a fee on the stated amount of any
outstanding Letters of Credit for each day from the issuance date of any Letter
of Credit through the date such Letter of Credit is no longer outstanding, at a
rate per annum on such stated amount equal to the Applicable Margin in effect
from time to time with respect to Eurodollar Borrowings, plus, at all times
when the Default Rate is in effect, 2.00%. 
Such Letter of Credit fee shall be computed on the basis of a
hypothetical year of three hundred sixty (360) days for the actual number of
days elapsed, shall be payable quarterly in arrears for each calendar quarter
on the last day of such calendar quarter, commencing with the calendar quarter
ending December 31, 2010, and if then unpaid, on the Revolving Commitment
Termination Date (or the date of any earlier prepayment in full of the
Obligations), and shall be fully earned when due and non-refundable when paid.


 


(ii)                                  The Borrower
shall also pay to the Administrative Agent, for the account of the Issuing
Bank, (A) a fee on the stated amount of each Letter of Credit for each day from
the issuance date of such Letter of Credit through the stated expiration date
of each such Letter of Credit (whether such date is the stated expiration date
of such Letter of Credit at the time of the original issuance thereof or the
stated expiration date of such Letter of Credit upon any renewal thereof) at a
rate of one-quarter of one percent (0.25%) per annum, which fee shall be
computed on the basis of a hypothetical year of three hundred sixty (360) days
and shall be paid in full in advance on the issuance date of such Letter of
Credit and (B) any reasonable and customary fees charged by the Issuing Bank
for issuance and administration of such Letters of Credit, which fees shall be
payable on demand.  The foregoing fees
shall be fully earned when due, and non-refundable when paid.


 


(d)                                 Computation of
Fees; Additional Terms Relating to Fees.  In computing any fees payable under this Section
2.4, the first day of the applicable period shall be included and the date
of the payment shall be excluded.  All
fees payable under or in connection with this Agreement and the other Loan
Documents shall be deemed fully earned when and as they become due and payable
and, once paid, shall be non-refundable, in whole or in part.


 


Section 2.5.                                Cancellation of Commitments.


 


(a)                                  Unless
previously terminated, all Revolving Commitments and the LC Commitment shall
terminate on the Revolving Commitment Termination Date.


 


(b)                                 Upon at least
three (3) Business Days’ (or such shorter period as the Administrative Agent
may agree) prior written notice (or telephonic notice promptly confirmed in
writing) to the Administrative Agent (which notice shall be irrevocable), the
Borrower may reduce the Aggregate Revolving Commitments in part or terminate
the Aggregate Revolving Commitments in whole; provided, that (i) any
partial reduction shall be applied pro rata to reduce 


 


35

















 


proportionately and
permanently the Revolving Commitment of each Lender, (ii) any partial reduction
pursuant to this Section 2.5 shall be in an amount of at least
$2,000,000 and any larger multiple of $1,000,000, and (iii) no such reduction
shall be permitted which would reduce the Aggregate Revolving Commitment Amount
to an amount less than the Revolving Credit Exposures of all Lenders.  Any such reduction in the Aggregate Revolving
Commitment Amount shall result in a reduction (rounded to the next lowest
integral multiple of $100,000) in the LC Commitment only if such a reduction is
necessary to reduce the LC Commitment to an amount equal to the Aggregate
Revolving Commitment Amount.


 


(c)                                  The Borrower
shall have the right at any time and from time to time to prepay any Borrowing,
in whole or in part, in a minimum amount of at least $500,000 and larger
multiples of $100,000, without premium or penalty, by giving irrevocable
written notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent no later than (i) in the case of prepayment of any
Eurodollar Borrowing, 1:00 p.m. (Atlanta, Georgia time) not less than three (3)
Business Days (or such shorter period as the Administrative Agent may agree)
prior to any such prepayment, (ii) in the case of any prepayment of any Base
Rate Borrowing, 1:00 p.m. (Atlanta, Georgia time) not less than one (1) Business
Day prior to the date of such prepayment. 
Each such notice shall be irrevocable and shall specify the proposed
date of such prepayment and the principal amount of each Borrowing or portion
thereof to be prepaid.  Upon receipt of
any such notice, the Administrative Agent shall promptly notify each affected
Lender of the contents thereof and of such Lender’s Pro Rata Share of any such
prepayment.  If such notice is given, the
aggregate amount specified in such notice shall be due and payable on the date
designated in such notice, together with accrued interest to such date on the
amount so prepaid; provided, that if a Eurodollar Borrowing is prepaid
on a date other than the last day of an Interest Period applicable thereto, the
Borrower shall also pay all amounts required pursuant to Section 2.9.


 


Section 2.6.                                Repayment.


 


(a)                                  The Revolving
Loans.  All unpaid principal and
accrued interest on the Revolving Loans shall be due and payable in full in
cash on the Revolving Commitment Termination Date.


 


(b)                                 Other Mandatory
Repayments.


 


(i)                                     If at any time
the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving
Commitment Amount, as reduced pursuant to Section 2.5 or otherwise, the
Borrower shall immediately repay the Revolving Loans in an amount equal to such
excess, together with all accrued and unpaid interest on such excess amount and
any amounts due under Section 2.4. 
Each prepayment shall be applied first to Base Rate Borrowings to the
full extent thereof, and then to Eurodollar Borrowings to the full extent
thereof.


 


(ii)                                  If after giving
effect to prepayment of Revolving Loans, the Revolving Credit Exposure of all
Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit 


 


36

















 


of the Issuing Bank and the
Lenders, an amount in cash equal to such excess plus any accrued and unpaid
fees thereon to be held as collateral for the LC Exposure.  Such account shall be administered in
accordance with Section 2.14(i) hereof.


 


(c)                                  The Other
Obligations.  In addition
to the foregoing, the Borrower hereby promises to pay all Obligations,
including, without limitation, the principal amount of the Loans, amounts drawn
under Letters of Credit and interest and fees in respect of the foregoing, as
the same become due and payable hereunder and, in any event, on the Revolving
Commitment Termination Date.


 


Section 2.7.                                Notes; Loan Accounts.


 


(a)                                  The Loans shall
be repayable in accordance with the terms and provisions set forth herein and,
upon request by any Lender, the Loans owed to such Lender shall be evidenced by
a Note.  A Note shall be payable to the
order of each Lender requesting such a Note in accordance with the Revolving
Commitment of such Lender.  Each such
Note shall be issued by the Borrower to the applicable Lender and shall be duly
executed and delivered by an authorized signatory of the Borrower.


 


(b)                                 The
Administrative Agent shall open and maintain on its books in the name of the
Borrower a loan account with respect to the Loans and interest thereon (the “Loan
Account”).  The Administrative Agent
shall debit such Loan Account for the principal amount of each Borrowing made
by it on behalf of the Lenders, accrued interest thereon, and all other amounts
which shall become due from the Borrower pursuant to this Agreement and shall
credit the Loan Account for each payment which the Borrower shall make in
respect to the Obligations.  The records
of the Administrative Agent with respect to such Loan Account shall be
conclusive evidence of the Loans and accrued interest thereon, absent manifest
error.


 


Section 2.8.                                Manner of Payment.


 


(a)                                  When Payments
Due.


 


(i)                                     Except as
otherwise set forth herein, each payment by the Borrower on account of the
principal of or interest on the Loans, fees, and any other amount owed under
this Agreement or the other Loan Documents shall be made not later than 1:00 p.m.
(Atlanta, Georgia, time) on the date specified for payment under this Agreement
or any other Loan Document to the Administrative Agent at the Payment Office,
for the account of the Lenders, the Issuing Bank, or the Administrative Agent,
as the case may be, in Dollars in immediately available funds.  Any payment received by the Administrative
Agent after 1:00 p.m. (Atlanta, Georgia, time) shall be deemed received on the
next Business Day.  In the case of a
payment for the account of a Lender, the Administrative Agent will promptly
thereafter distribute the amount so received in like funds to such Lender.  In the case of a payment for the account of
the Issuing Bank, the Administrative Agent will promptly thereafter distribute
the amount so received in like funds to the Issuing Bank.  In the case of a payment for the Swingline
Lender, the Administrative Agent will promptly thereafter distribute the amount
so received 


 


37

















 


in
like funds to the Swingline Lender.  If
the Administrative Agent shall not have received any payment from the Borrower
as and when due, the Administrative Agent will promptly notify the Lenders
accordingly.


 


(ii)                                  Except as
provided in the definition of Interest Period, if any payment under this
Agreement or any other Loan Document shall be specified to be made on a day
which is not a Business Day, it shall be made on the next succeeding day which
is a Business Day, and such extension of time shall in such case be included in
computing interest and fees, if any, in connection with such payment.


 


(b)                                 No Deduction.


 


(i)                                     Any and all
payments of principal and interest, fees, indemnity or expense reimbursements,
and any other amounts by the Borrower hereunder or under any other Loan
Documents (the “Borrower Payments”) shall be made without setoff or
counterclaim and free and clear of and without deduction for any and all
current or future Taxes with respect to such Borrower Payments and all
interest, penalties or similar liabilities with respect thereto, excluding
Taxes imposed on the net income of any Lender by the jurisdiction under the
laws of which such Lender is organized or conducts business or any political
subdivision thereof (all such nonexcluded Taxes collectively or individually “Nonexcluded
Taxes”).  If the Borrower shall be
required to deduct any Nonexcluded Taxes from or in respect of any sum payable
to any Lender hereunder or under any other Loan Document, (a) the sum payable
shall be increased by the amount (an “additional amount”) necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.8(b)(i)), such Lender shall
receive an amount equal to the sum it would have received had no such
deductions been made, (b) the Borrower shall make such deductions, and (c) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.


 


(ii)                                  In addition,
the Borrower shall pay to the relevant Governmental Authority in accordance
with applicable law any Other Taxes.


 


(iii)                               The Borrower
shall indemnify the Lenders for the full amount of Nonexcluded Taxes and Other
Taxes with respect to Borrower Payments paid by such Person, and any liability
(including penalties, interest and expenses (including reasonable attorney’s
fees and expenses)) arising therefrom or with respect thereto, whether or not
such Nonexcluded Taxes or Other Taxes were correctly or legally asserted by the
relevant Governmental Authority.  A
certificate setting forth and containing an explanation in reasonable detail of
the manner in which such amount shall have been determined and the amount of
such payment or liability prepared by such Lender or the Administrative Agent
on its behalf, absent manifest error, shall be final, conclusive and binding
for all purposes.  Such indemnification
shall be made within thirty (30) days after the date the Administrative Agent
or such Lender, as the case may be, makes written 


 


38

















 


demand therefor.  If any Nonexcluded Taxes or Other Taxes for
which the Administrative Agent or any Lender has received indemnification from
the Borrower hereunder shall be finally determined to have been incorrectly or
illegally asserted and are refunded to the Administrative Agent or such Lender,
the Administrative Agent or such Lender, as the case may be, shall promptly
forward to the Borrower any such refunded amount (after deduction of any
Nonexcluded Tax or Other Tax paid or payable by any Lender as a result of such
refund), not exceeding the increased amount paid by the Borrower pursuant to
this Section 2.8(b).


 


(iv)                              As soon as
practicable after the date of any payment of Nonexcluded Taxes or Other Taxes
by the Borrower to the relevant Governmental Authority, the Borrower will
deliver to the Administrative Agent, at its address, the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
payment thereof.


 


(v)                                 On or prior to
the Closing Date (or, in the case of any Lender that becomes a party to this
Agreement pursuant to an Assignment and Acceptance, on or prior to the
effective date of such Assignment and Acceptance), each Foreign Lender shall
provide each of the Administrative Agent and the Borrower with either (A) two (2)
properly executed originals of Form W-8ECI or Form W-8BEN (or any successor
forms) prescribed by the Internal Revenue Service or other documents
satisfactory to the Borrower and the Administrative Agent, as the case may be,
certifying (1) as to such Foreign Lender’s status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to such Foreign Lender hereunder and under any other Loan Documents or (2)
that all payments to be made to such Foreign Lender hereunder and under any
other Loan Documents are subject to such taxes at a rate reduced to zero by an
applicable tax treaty, or (B)(1) a certificate executed by such Lender
certifying that such Lender is not a “bank” and that such Lender qualifies for
the portfolio interest exemption under Section 881(c) of the Code, and (2) two (2)
properly executed originals of Internal Revenue Service Form W-8BEN (or any
successor form), in each case, certifying such Lender’s entitlement to an
exemption from United States withholding tax with respect to payments of interest
to be made hereunder or under any other Loan Documents.  Each such Foreign Lender agrees to provide
the Administrative Agent and the Borrower with new forms prescribed by the
Internal Revenue Service upon the expiration or obsolescence of any previously
delivered form, or after the occurrence of any event requiring a change in the
most recent forms delivered by it to the Administrative Agent and the Borrower.


 


(vi)                              The Borrower
shall not be required to indemnify any Foreign Lender, or to pay any additional
amounts to such Foreign Lender pursuant to Section 2.8(b)(i) or (b)(iii)
above to the extent that (A) the obligation to withhold amounts with respect to
United States Federal, state or local withholding tax existed on the date such
Foreign Lender became a party to this Agreement (or, in the case of a
transferee, on the effective date of the Assignment and Acceptance 


 


39

















 


pursuant to which such
transferee became a Lender) or, with respect to payments to a new lending
office, the date such Foreign Lender designated such new lending office; provided,
however, that this clause (A) shall not apply to any Foreign Lender that
became a Lender or new lending office that became a new lending office as a
result of an assignment or designation made at the request of the Borrower; and
provided  further, however, that this clause (A) shall not
apply to the extent the indemnity payment or additional amounts, if any, that
any Lender through a new lending office would be entitled to receive (without
regard to this clause (A)) do not exceed the indemnity payment or additional
amounts that the Person making the assignment or transfer to such Lender making
the designation of such new lending office would have been entitled to receive
in the absence of such assignment, transfer or designation or (B) the
obligation to pay such additional amounts or such indemnity payments would not
have arisen but for a failure by such Lender to comply with the provisions of Section
2.8(b)(v) above.


 


(vii)                           Nothing
contained in this Section 2.8(b) shall require any Lender to make available to
the Borrower any of its tax returns (or any other information) that it deems
confidential or proprietary.


 


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


 


(d)                                 Lender Payments.  If any Lender shall fail to make any payment
required to be made by it pursuant to Section 2.2 or 10.3(d),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are
fully paid.


 


Section 2.9.                                Reimbursement. 
Whenever any Lender shall sustain or incur any losses (including losses
of anticipated profits) or out-of-pocket expenses in connection with (a) failure
by the Borrower to borrow or continue any Eurodollar Borrowing, or convert any
Borrowing to a Eurodollar Borrowing, in each case, after having given notice of
its intention to do so in accordance with Section 2.2 (whether by reason
of the election of the Borrower not to proceed or the non-fulfillment of any of
the conditions set forth in this Agreement), or (b) prepayment of any
Eurodollar Borrowing in whole or in part for any reason or (c) failure by the Borrower
to prepay any Eurodollar Borrowing after giving notice of its intention to
prepay such Borrowing, the Borrower agrees to pay to such Lender an amount
sufficient to compensate such Lender for all such losses and out-of-pocket
expenses.  Such Lender’s good faith
determination 


 


40

















 


of the amount of such losses
and out-of-pocket expenses, absent manifest error, shall be binding and
conclusive.  Losses subject to
reimbursement hereunder shall include, without limitation, expenses incurred by
any Lender or any participant of such Lender permitted hereunder in connection
with the re-deployment of funds prepaid, repaid, not borrowed, or paid, as the
case may be, and any lost profit of such Lender or any participant of such
Lender over the remainder of the Interest Period for such prepaid
Borrowing.  For purposes of calculating
amounts payable to a Lender under this paragraph, each Lender shall be deemed
to have actually funded its relevant Eurodollar Borrowing through the purchase
of a deposit bearing interest at the Adjusted LIBO Rate in an amount equal to
the amount of that Eurodollar Borrowing and having a maturity and repricing
characteristics comparable to the relevant Interest Period; provided, however,
that each Lender may fund each of its Eurodollar Borrowings in any manner it
sees fit, and the foregoing assumption shall be utilized only for the
calculation of amounts payable under this Section.  A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this Section
shall be delivered to the Borrower and the Borrower shall pay such Lender the
amount shown as due on any such certificate within 30 days after receipt
thereof.


 


Section 2.10.                         Pro Rata Treatment.


 


(a)                                  Borrowings.  Each Borrowing from the Revolving Credit
Lenders under the Revolving Commitments made on or after the Closing Date shall
be made in accordance with each Lender’s Pro Rata Share.


 


(b)                                 Payments.  If any Lender shall, by exercising any right
of set-off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Loans that would result in such Lender
receiving payment of a proportion of the aggregate amount of such Loans and
accrued interest thereon greater than its Pro Rata Share thereof as provided
herein, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the applicable Loans of other Lenders to
the extent necessary so that the benefit of all such payments shall be shared
by the Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Loans; provided, that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply to
any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement, or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans to any
assignee or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall
apply).  The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower’s rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.


 


41

















 


Section 2.11.                         Application of Payments.


 


(a)                                  Payments
Subsequent to Event of Default.  Notwithstanding anything in this Agreement or
the other Loan Documents to the contrary, any proceeds received by the
Administrative Agent in respect of any sale of, collection from or other
realization upon all or any part of the Collateral pursuant to the exercise by
the Administrative Agent of its rights and remedies provided under the Loan
Documents or at law or equity, shall be applied by the Administrative Agent in
the following order:


 


FIRST, to the payment of
out-of-pocket costs and expenses (including without limitation reasonable
attorneys’ fees) of the Administrative Agent with respect to enforcing the
rights of the Lenders under the Loan Documents (including, without limitation,
any costs incurred in connection with the sale or disposition of any
Collateral);


 


SECOND, to payment of any
fees owed to the Administrative Agent, or the Swingline Lender hereunder or
under any other Loan Document;


 


THIRD, to the payment of
out-of-pocket costs and expenses (including without limitation reasonable
attorneys’ fees) of the Lenders in enforcing their rights under the Loan
Documents;


 


FOURTH, to the payment of
all obligations consisting of accrued fees and interest payable to the Lenders
hereunder;


 


FIFTH, to the payment of
principal then due and payable on the Swingline Loans;


 


SIXTH, pro rata, to (i) the
payment of principal on the Loans then outstanding, (ii) a Letter of Credit
reserve account to the extent of one hundred five percent (105%) of the
aggregate LC Exposure, (iii) Secured Hedging Obligations that constitute
Obligations, and (iv) Bank Product Obligations that constitute Obligations;


 


SEVENTH, to any other Obligations
not otherwise referred to in this Section 2.11(a); and


 


EIGHTH, upon satisfaction in
full of all Obligations, to the applicable Loan Party or such other Person who
may be lawfully entitled thereto.


 


(b)                                 Insufficient
Funds.  If at any time insufficient
funds are received by and available to the Administrative Agent to pay fully
all amounts of principal, interest and fees then due hereunder, such funds
shall be applied first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and second,
towards payment of principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such
parties.


 


Section 2.12.                         All Obligations to Constitute One Obligation.  All Obligations shall constitute one general
obligation of the Borrower and shall be secured by the Administrative Agent’s
security interest (on behalf of, and for the benefit of, the Secured Parties)
and Lien upon all of the Collateral, and by all other security interests and
Liens heretofore, now or at any time hereafter granted by any Loan Party to the
Administrative Agent or any of the Lenders, to the extent provided in the
Collateral Documents under which such Liens arise.


 


42

















 


Section 2.13.                         Maximum Rate of Interest.  The Borrower and the Lenders hereby agree and
stipulate that the only charges imposed upon the Borrower for the use of money
in connection with this Agreement are and shall be the specific interest and
fees described in this Article II in the Fee Letters and in any other
Loan Document.  Notwithstanding the
foregoing, the Borrower and the Lenders further agree and stipulate that all
closing fees, agency fees, syndication fees, facility fees, underwriting fees,
default charges, late charges, funding or “breakage” charges, increased cost
charges, attorneys’ fees and reimbursement for costs and expenses paid by any
Lender to third parties or for damages incurred by the Lenders, or any of them,
are charges to compensate the Lenders for underwriting and administrative
services and costs or losses performed or incurred, and to be performed and
incurred, by the Lenders in connection with this Agreement and the other Loan
Documents and shall under no circumstances be deemed to be charges for the use
of money pursuant to any applicable law. 
In no event shall the amount of interest and other charges for the use
of money payable under this Agreement exceed the maximum amounts permissible
under any law that a court of competent jurisdiction shall, in a final
determination, deem applicable.  The
Borrower and the Lenders, in executing and delivering this Agreement, intend
legally to agree upon the rate or rates of interest and other charges for the
use of money and manner of payment stated within it; provided, however,
that, anything contained herein to the contrary notwithstanding, if the amount
of such interest and other charges for the use of money or manner of payment
exceeds the maximum amount allowable under applicable law, then, ipso  facto
as of the Closing Date, the Borrower is and shall be liable only for the
payment of such maximum as allowed by law, and payment received from the
Borrower in excess of such legal maximum, whenever received, shall be applied
to reduce the principal balance of the Loans to the extent of such excess.


 


Section 2.14.                         Letters of Credit.


 


(a)                                  Subject to the
terms and conditions of this Agreement, the Issuing Bank, on behalf of the
Revolving Credit Lenders, and in reliance on the agreements of the Revolving
Credit Lenders set forth in Section 2.14(c) below, hereby agrees to
issue one or more Letters of Credit up to an aggregate face amount equal to the
LC Commitment; provided, however, that, except as described in
the last sentence of Section 3.2, the Issuing Bank shall not issue any
Letter of Credit unless the conditions precedent to the issuance thereof set
forth in Section 3.2 have been satisfied.  Each Letter of Credit shall (i) be
denominated in Dollars, and (ii) expire no later than the earlier to occur of (A)
the date ten (10) days prior to the Revolving Commitment Termination Date, and (B)
three hundred sixty (360) days after its date of issuance (but may contain
provisions for automatic renewal provided that no Default or Event of
Default exists on the renewal date or would be caused by such renewal and provided
that no such renewal shall extend beyond the date ten (10) days prior to the
Revolving Commitment Termination Date). 
With respect to each Letter of Credit, (i) the rules of the
International Standby Practices, ICC Publication No. 590, or any subsequent
revision or restatement thereof adopted by the ICC and in use by the Issuing
Bank, shall apply to each Letter of Credit to the extent such Letter of Credit
is not issued in respect of the purchase of goods or services by the Borrower
in the ordinary course of its business and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance shall apply to each
Letter of Credit to the extent such Letter of Credit is issued in respect of
the purchase of goods or services by the Borrower in the ordinary course of its
business, and, to the extent not inconsistent therewith, the laws of the State
of New York.  The 


 


43

















 


Issuing Bank shall not at
any time be obligated to issue, or cause to be issued, any Letter of Credit if
such issuance would conflict with, or cause the Issuing Bank to exceed any
limits imposed by, any applicable law.


 


(b)                                 The Borrower
may from time to time request that the Issuing Bank issue a Letter of
Credit.  The Borrower shall execute and
deliver to the Administrative Agent and the Issuing Bank a Request for Issuance
of Letter of Credit for each Letter of Credit to be issued by the Issuing Bank,
not later than 11:00 a.m. (Atlanta, Georgia time) on the third (3rd) Business
Day preceding the date on which the requested Letter of Credit is to be issued,
or such shorter notice as may be acceptable to the Issuing Bank and the
Administrative Agent.  Upon receipt of
any such Request for Issuance of Letter of Credit, subject to satisfaction of
all conditions precedent thereto as set forth in Section 3.2 or waiver
of such conditions pursuant to the last sentence of Section 3.2, the
Issuing Bank shall process such Request for Issuance of Letter of Credit and
the certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby.  The Issuing Bank shall furnish a copy of such
Letter of Credit to the Borrower and the Administrative Agent following the
issuance thereof.  In addition to the
fees payable pursuant to  Section
2.4(c), the Borrower shall pay or reimburse the Issuing Bank for normal and
customary costs and expenses incurred by the Issuing Bank in issuing, effecting
payment under, amending or otherwise administering the Letters of Credit.


 


(c)                                  Immediately
upon the issuance by the Issuing Bank of a Letter of Credit and in accordance
with the terms and conditions of this Agreement, the Issuing Bank shall be
deemed to have sold and transferred to each Revolving Credit Lender, and each
Revolving Credit Lender shall be deemed irrevocably and unconditionally to have
purchased and received from the Issuing Bank, without recourse or warranty, an
undivided interest and participation, to the extent of such Revolving Credit
Lender’s Pro Rata Share, in such Letter of Credit and the obligations of the
Borrower with respect thereto (including, without limitation, all LC Exposure
with respect thereto).  The Issuing Bank
shall promptly notify the Administrative Agent of any draw under a Letter of
Credit.  At such time as the Administrative
Agent shall be notified by the Issuing Bank that the beneficiary under any
Letter of Credit has drawn on the same, the Administrative Agent shall promptly
notify the Borrower and the Swingline Lender (or, at its option, all Lenders),
by telephone or telecopy, of the amount of the draw and, in the case of each
Revolving Credit Lender, such Revolving Credit Lender’s portion of such draw
amount as calculated in accordance with its Pro Rata Share of the Aggregate
Revolving Commitment Amount.


 


(d)                                 (i)  The Borrower hereby agrees to promptly
reimburse the Issuing Bank for amounts paid by the Issuing Bank in respect of
draws under each Letter of Credit.  In
order to facilitate such repayment, the Borrower hereby irrevocably requests
the Revolving Credit Lenders, and the Revolving Credit Lenders hereby severally
agree, on the terms and conditions of this Agreement (other than as provided in
Article II with respect to the amounts of, the timing of requests for,
and the repayment of Borrowings hereunder and in Article III with respect to
conditions precedent to Borrowings hereunder), with respect to any drawing
under a Letter of Credit, to make a Base Rate Borrowing on each day on which a
draw is made under any Letter of Credit and in the amount of such draw, and to
pay the proceeds of such Borrowing directly to the Issuing Bank to reimburse
the Issuing Bank for the amount paid by it upon such draw.  Each


 


44














 


Revolving Credit Lender
shall pay its share of such Base Rate Borrowing by paying its portion of such
Borrowing to the Administrative Agent in accordance with Section 2.2(e) and
its Pro Rata Share of the Aggregate Revolving Commitment Amount, without reduction
for any set-off or counterclaim of any nature whatsoever and regardless of
whether any Default or Event of Default exists or would be caused thereby.  The disbursement of funds in connection with
a draw under a Letter of Credit pursuant to this Section hereunder shall be
subject to the terms and conditions of Section 2.2(e).


 


(ii)  If for any reason a Revolving Loan cannot be
made, each Revolving Lender (including any Lender acting as the Issuing Bank)
shall upon any notice hereunder make funds available to the Administrative
Agent for the account of the Issuing Bank at the Administrative Agent’s office
in an amount equal to its Pro Rata Share of the LC Exposure in respect of such
Letter of Credit not later than 1:00 p.m. (Atlanta, Georgia, time) on the
Business Day specified in such notice by the Administrative Agent, whereupon
each Lender that so makes funds available shall be deemed to have made a
payment in respect of its participation in the applicable Letter of Credit and
such payment shall satisfy its participation obligations under this Section 2.14(d)(ii).  The Administrative Agent shall remit the
funds so received to the Issuing Bank. 
Whenever, at any time after the Issuing Bank has received from any such
Lender the funds for its participation in a LC Disbursement, the Issuing Bank
(or the Administrative Agent on its behalf) receives any payment on account
thereof, the Administrative Agent or the Issuing Bank, as the case may be, will
distribute to such Lender its Pro Rata Share of such payment; provided,
that if such payment is required to be returned for any reason to the Borrower
or to a trustee, receiver, liquidator, custodian or similar official in any
bankruptcy proceeding, such Lender will return to the Administrative Agent or
the Issuing Bank any portion thereof previously distributed by the
Administrative Agent or the Issuing Bank to it.


 


(iii)  The obligation of each Revolving Credit Lender
to make payments to the Administrative Agent, for the account of the Issuing
Bank, in accordance with this Section 2.14 shall be absolute and
unconditional and no Lender shall be relieved of its obligations to make such
payments by reason of noncompliance by any other Person with the terms of the
Letter of Credit or for any other reason (other than the gross negligence or
willful misconduct of the Issuing Bank in paying such Letter of Credit, as
determined by a final non-appealable judgment of a court of competent
jurisdiction).  The Administrative Agent
shall promptly remit to the Issuing Bank the amounts so received from the other
Revolving Credit Lenders.  Any overdue
amounts payable by the Revolving Credit Lenders to the Issuing Bank in respect
of a draw under any Letter of Credit shall bear interest, payable on demand, (x)
for the first two (2) Business Days, at the Federal Funds Rate, and (y) thereafter,
at the Base Rate.  Notwithstanding the
foregoing, at the request of the Administrative Agent, the Swingline Lender
may, at its option and subject to the conditions set forth in Section 2.2(g)
other than the condition that the applicable conditions precedent set forth in Article
III be satisfied, make Swingline Loans to reimburse the Issuing Bank for
amounts drawn under Letters of Credit.


 


(e)                                  The Borrower
agrees that each Borrowing by the Revolving Credit Lenders to reimburse the
Issuing Bank for draws under any Letter of Credit, shall, for all purposes
hereunder, unless and until converted into a Eurodollar Borrowing pursuant to Section
2.2(b)(ii), be deemed to be a Base Rate Borrowing under the Aggregate
Revolving Commitments 


 


45

















 


and shall be payable and
bear interest in accordance with all other Base Rate Borrowings of Revolving
Loans.


 


(f)                                    The Borrower
agrees that any action taken or omitted to be taken by the Issuing Bank in
connection with any Letter of Credit, except for such actions or omissions as
shall constitute gross negligence or willful misconduct on the part of such
Issuing Bank as determined by a final non-appealable judgment of a court of
competent jurisdiction, shall be binding on the Borrower as between the
Borrower and the Issuing Bank, and shall not result in any liability of the
Issuing Bank to the Borrower.  The
obligation of the Borrower to reimburse the Issuing Bank for a drawing under
any Letter of Credit or the Lenders for Borrowings made by them to the Issuing
Bank on account of draws made under the Letters of Credit shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with
the terms of this Agreement under all circumstances whatsoever, including,
without limitation, the following circumstances:


 


(i)                                     Any lack of
validity or enforceability of any Loan Document;


 


(ii)                                  Any amendment
or waiver of or consent to any departure from any or all of the Loan Documents;


 


(iii)                               Any improper
use which may be made of any Letter of Credit or any improper acts or omissions
of any beneficiary or transferee of any Letter of Credit in connection
therewith;


 


(iv)                              The existence
of any claim, set-off, defense or any right which the Borrower may have at any
time against any beneficiary or any transferee of any Letter of Credit (or
Persons for whom any such beneficiary or any such transferee may be acting),
any Lender or any other Person, whether in connection with any Letter of
Credit, any transaction contemplated by any Letter of Credit, this Agreement,
or any other Loan Document, or any unrelated transaction;


 


(v)                                 Any statement
or any other documents presented under any Letter of Credit proving to be
insufficient, forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect whatsoever;


 


(vi)                              The insolvency
of any Person issuing any documents in connection with any Letter of Credit;


 


(vii)                           Any breach of
any agreement between the Borrower and any beneficiary or transferee of any
Letter of Credit;


 


(viii)                        Any
irregularity in the transaction with respect to which any Letter of Credit is
issued, including any fraud by the beneficiary or any transferee of such Letter
of Credit;


 


(ix)                                Any errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, wireless or otherwise, whether or not they are in
code;


 


46

















 


(x)                                   Any act, error,
neglect or default, omission, insolvency or failure of business of any of the
correspondents of the Issuing Bank;


 


(xi)                                Any other
circumstances arising from causes beyond the control of the Issuing Bank;


 


(xii)                             Payment by the
Issuing Bank under any Letter of Credit against presentation of a sight draft
or a certificate which does not comply with the terms of such Letter of Credit,
provided that such payment shall not have constituted gross negligence
or willful misconduct of the Issuing Bank as determined by a final
non-appealable judgment of a court of competent jurisdiction; and


 


(xiii)                          Any other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing.


 


(g)                                 The Borrower
will indemnify and hold harmless each Indemnitee from and against any and all
claims, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including reasonable attorneys’ fees) which may be imposed on,
incurred by or asserted against such Indemnitee in any way relating to or
arising out of the issuance of a Letter of Credit, except that the Borrower
shall not be liable to an Indemnitee for any portion of such claims,
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross negligence or
willful misconduct of such Indemnitee as determined by a final non-appealable
judgment of a court of competent jurisdiction. 
This Section 2.14(g) shall survive termination of this Agreement.


 


(h)                                 Each Revolving
Credit Lender shall be responsible (to the extent the Issuing Bank is not
reimbursed by the Borrower) for its pro rata share (based on such Revolving
Credit Lender’s Pro Rata Share of the Aggregate Revolving Commitment Amount) of
any and all reasonable out-of-pocket costs, expenses (including reasonable
attorneys’ fees) and disbursements which may be incurred or made by the Issuing
Bank in connection with the collection of any amounts due under, the
administration of, or the presentation or enforcement of any rights conferred
by any Letter of Credit, the Borrower’s or any Loan Party’s obligations to
reimburse draws thereunder or otherwise. 
In the event the Borrower shall fail to pay such expenses of the Issuing
Bank within fifteen (15) days of demand for payment by the Issuing Bank, each
Revolving Credit Lender shall thereupon pay to the Issuing Bank its pro rata
share (based on such Revolving Credit Lender’s Pro Rata Share of the Aggregate
Revolving Commitment Amounts) of such expenses within ten (10) days from the
date of the Issuing Bank’s notice to the Revolving Credit Lenders of the
Borrower’s failure to pay; provided, however, that if the
Borrower shall thereafter pay such expenses, the Issuing Bank will repay to
each Revolving Credit Lender the amounts received from such Revolving Credit
Lender hereunder.


 


(i)                                     If any Event of
Default shall occur and be continuing, on the Business Day that the Borrower
receives notice from the Administrative Agent or the Required Revolving Credit
Lenders demanding the deposit of cash collateral pursuant to this paragraph,
the Borrower shall deposit in an account with the Administrative Agent, in the
name of the Administrative 


 


47

















 


Agent and for the benefit of
the Issuing Bank and the Lenders, an amount in cash equal to the LC Exposure as
of such date plus any accrued and unpaid fees thereon; provided, that
the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Section 8.1.  Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
Obligations.  The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account.  The
Borrower agrees to execute any documents and/or certificates to effectuate the
intent of this paragraph.  Other than any
interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of the Administrative Agent and at the
Borrower’s risk and expense, such deposits shall not bear interest.  Interest and profits, if any, on such
investments shall accumulate in such account. 
Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it had not been
reimbursed and to the extent so applied, shall be held for the satisfaction of
the reimbursement obligations of the Borrower for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated, with the consent of the
Required Revolving Credit Lenders, be applied to satisfy other obligations of
the Borrower under this Agreement and the other Loan Documents.  If the Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an Event
of Default, such amount (to the extent not so applied as aforesaid) shall be
returned to the Borrower within three Business Days after all Events of Default
have been cured or waived.


 


Section 2.15.                         [Reserved].


 


Section 2.16.                         Illegality.  If any
Change in Law shall make it unlawful or impossible for any Lender to make,
maintain or fund any Eurodollar Loan and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall promptly give notice thereof
to the Borrower and the other Lenders, whereupon until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to
such suspension no longer exist, the obligation of such Lender to make
Eurodollar Revolving Loans, or to continue or convert outstanding Loans as or
into Eurodollar Loans, shall be suspended. 
In the case of the making of a Eurodollar Revolving Borrowing, such
Lender’s Revolving Loan shall be made as a Base Rate Loan as part of the same
Revolving Borrowing for the same Interest Period and if the affected Eurodollar
Loan is then outstanding, such Loan shall be converted to a Base Rate Loan
either (i) on the last day of the then current Interest Period applicable to
such Eurodollar Loan if such Lender may lawfully continue to maintain such Loan
to such date or (ii) immediately if such Lender shall determine that it may not
lawfully continue to maintain such Eurodollar Loan to such date.  Notwithstanding the foregoing, the affected
Lender shall, prior to giving such notice to the Administrative Agent,
designate a different Applicable Lending Office if such designation would avoid
the need for giving such notice and if such designation would not otherwise be
disadvantageous to such Lender in the good faith exercise of its discretion.


 


Section 2.17.                         Increased Costs.


 


(a)                                  If any Change
in Law shall:


 


48

















 


(i)                                     impose, modify
or deem applicable any reserve, special deposit or similar requirement that is
not otherwise included in the determination of the Adjusted LIBO Rate hereunder
against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO
Rate) or the Issuing Bank; or


 


(ii)                                  impose on any
Lender or the Eurodollar interbank market any other condition affecting this
Agreement or any Eurodollar Loans made by such Lender or any Letter of Credit
or any participation therein;


 


and the result of either of
the foregoing is to increase the cost to such Lender of making, converting
into, continuing or maintaining a Eurodollar Loan or to increase the cost to
such Lender or the Issuing Bank of participating in or issuing any Letter of
Credit or to reduce the amount received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or any other amount),
then the Borrower shall, within the time specified in Section 2.17(c),
pay to the Administrative Agent for the account of such Lender or Issuing Bank,
additional amount or amounts sufficient to compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.


 


(b)                                 If any Lender
or the Issuing Bank shall have determined that on or after the date of this
Agreement any Change in Law regarding capital requirements has or would have
the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s
capital (or on the capital of such Lender’s or the Issuing Bank’s parent
corporation) as a consequence of its obligations hereunder to a level below
that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s
parent corporation could have achieved but for such Change in Law (taking into
consideration such Lender’s or the Issuing Bank’s policies or the policies of
such Lender’s or the Issuing Bank’s parent corporation with respect to capital
adequacy) then, from time to time, the Borrower shall pay to the Administrative
Agent for the account of such Lender or the Issuing Bank such additional
amounts as will compensate such Lender or the Issuing Bank or such Lender’s or
the Issuing Bank’s parent corporation for any such reduction suffered.


 


(c)                                  A certificate
of a Lender or Issuing Bank setting forth the amount or amounts (including a
reasonably detailed calculation thereof) necessary to compensate such Lender or
the Issuing Bank or such Lender’s or the Issuing Bank’s parent corporation, as
the case may be, specified in paragraph (a) or (b) of this Section 2.17
shall be delivered to the Borrower (with a copy to the Administrative Agent)
and shall be conclusive, absent manifest error. 
The Borrower shall pay all amounts pursuant to this Section 2.17
within five (5) Business Days after receipt thereof.


 


(d)                                 Failure or
delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section 2.17 shall not constitute a waiver of such
Lender’s or the Issuing Bank’s right to demand such compensation; provided,
that the Loan Parties shall not be required to compensate a Lender or the
Issuing Bank under this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or the Issuing Bank
notifies the Borrower of such increased costs or reductions and of such Lender’s
or the Issuing Bank’s intention to claim compensation therefor.


 


49

















 


Section 2.18.                         Defaulting Lenders.


 


(a)                                  If a Lender
becomes, and during the period it remains, a Defaulting Lender, the following
provisions shall apply, notwithstanding anything to the contrary in this
Agreement:


 


(i)                                     the LC Exposure
and Swingline Exposure of such Defaulting Lender will, subject to the
limitation in the first proviso below, automatically be reallocated (effective
on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting
Lenders pro  rata in accordance with their respective Revolving
Commitments; provided that (a) the sum of each Non-Defaulting Lender’s
total Revolving Credit Exposure may not in any event exceed the Revolving
Commitment of such Non-Defaulting Lender as in effect at the time of such
reallocation and (b) neither such reallocation nor any payment by a
Non-Defaulting Lender pursuant thereto will constitute a waiver or release of
any claim the Borrower, the Administrative Agent, the Issuing Bank, the
Swingline Lender or any other Lender may have against such Defaulting Lender or
cause such Defaulting Lender to be a Non-Defaulting Lender;


 


(ii)                                  to the extent
that any portion (the “unreallocated portion”) of the LC Exposure and
Swingline Exposure of any Defaulting Lender cannot be so reallocated for any
reason, the Borrower will, not later than two (2) Business Days after demand by
the Administrative Agent (at the direction of the Issuing Bank and/or the
Swingline Lender), (a) Cash Collateralize the obligations of the Borrower to
the Issuing Bank or Swingline Lender in respect of such LC Exposure or
Swingline Exposure, as the case may be, in an amount equal to the aggregate
amount of the unreallocated portion of the LC Exposure and Swingline Exposure
of such Defaulting Lender, or (b) in the case of such Swingline exposure,
prepay (subject to clause (4) below) and/or Cash Collateralize in full the
unreallocated portion thereof, or (c) make other arrangements satisfactory to
the Administrative Agent, the Issuing Bank or the Swingline Lender in their
sole discretion to protect them against the risk of non-payment by such
Defaulting Lender;


 


(iii)                               in addition to
the other conditions precedent set forth in Section 3.2, the Issuing
Bank will not be required to issue, amend or increase any Letter of Credit, and
the Swingline Lender will not be required to make any Swingline Loans, unless
they are satisfied that 100% of the related LC Exposure and Swingline Exposure
is fully covered or eliminated by any combination satisfactory to the Issuing
Bank or the Swingline Lender, as the case may be, of the following:


 


(A)                              in the case of
a Defaulting Lender, the LC Exposure and Swingline Exposure of such Defaulting
Lender is reallocated, as to outstanding and future Letters of Credit, to the
Non-Defaulting Lenders as provided in clause (1) above; and


 


50

















 


(B)                                in the case of
a Defaulting Lender, without limiting the provisions of clause (a)(ii) above,
the Borrower Cash Collateralizes the obligations of the Borrower in respect of
such Letter of Credit or Swingline Loan in an amount at least equal to the
aggregate amount of the unreallocated obligations (contingent or otherwise) of such
Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or the
Borrower makes other arrangements satisfactory to the Administrative Agent and
the Issuing Bank or the Swingline Lender, as the case may be, in their sole
discretion, to protect them against the risk of non-payment by such Defaulting
Lender;


 


provided that (a) the
sum of each Non-Defaulting Lender’s total Revolving Credit Exposure may not in
any event exceed the Revolving Commitment of such Non-Defaulting Lender, and (b)
neither any such reallocation nor any payment by a Non-Defaulting Lender
pursuant thereto nor any such Cash Collateralization or reduction will
constitute a waiver or release of any claim the Borrower, the Administrative
Agent, the Issuing Bank, the Swingline Lender or any other Lender may have
against such Defaulting Lender, or cause such Defaulting Lender to be a
Non-Defaulting Lender;


 


(iv)                              with the
written approval of the Administrative Agent, the Borrower may terminate (on a
non-ratable basis) the unused amount of the Revolving Commitment of a
Defaulting Lender, and in such event the provisions of clause (v) below will
apply to all amounts thereafter paid by the Borrower for the account of any
such Defaulting Lender under this Agreement (whether on account of principal,
interest, fees, indemnity or other amounts), provided that such
termination will not be deemed to be a waiver or release of any claim the
Borrower, the Administrative Agent, the Issuing Bank or any Lender may have
against such Defaulting Lender;


 


(v)                                 any amount paid
by the Borrower for the account of a Defaulting Lender under this Agreement
(whether on account of principal, interest, fees, indemnity payments or other
amounts) will be retained by the Administrative Agent in a segregated non-interest
bearing account until the termination of the Revolving Commitments at which
time the funds in such account will be applied by the Administrative Agent, to
the fullest extent permitted by law, in the following order of priority:  first to the payment of any amounts
owing by such Defaulting Lender to the Administrative Agent under this
Agreement, second to the payment of any amounts owing by such Defaulting
Lender to the Issuing Bank under this Agreement, third to the payment of
post-default interest and then current interest due and payable to the Lenders
hereunder other than Defaulting Lenders, ratably among them in accordance with
the amounts of such interest then due and payable to them, fourth to the
payment of fees then due and payable to the Non-Defaulting Lenders hereunder,
ratably among them in accordance with the amounts of such fees then due and
payable to them, fifth to pay principal and unreimbursed Letter of
Credit disbursements then due and payable to the Non-Defaulting Lenders
hereunder ratably in accordance with the amounts thereof then due and payable
to them, sixth to the ratable payment of other amounts then due 


 


51

















 


and payable to the
Non-Defaulting Lenders, and seventh to pay amounts owing under this
Agreement to such Defaulting Lender or as a court of competent jurisdiction may
otherwise direct;


 


(vi)                              such Defaulting
Lender will not be entitled to commitment fees accruing with respect to its
Revolving Commitment during such period pursuant to Section 2.4(b) or
letter of credit fees accruing during such period pursuant to Section 2.4(c)
(without prejudice to the rights of the Lenders other than Defaulting Lenders
in respect of such fees), provided that (1) to the extent that a portion
of the LC Exposure of such Defaulting Lender is reallocated to the
Non-Defaulting Lenders pursuant to clause (a)(ii), such fees that would have
accrued for the benefit of such Defaulting Lender will instead accrue for the
benefit of and be payable to such Non-Defaulting Lenders, pro  rata
in accordance with their respective Revolving Commitments and (2) to the extent
any portion of such LC Exposure cannot be so reallocated, such fees will
instead accrue for the benefit of and be payable to the Issuing Bank; and


 


(vii)                           the Borrower
may, at its sole expense and effort, upon notice to such Defaulting Lender and
the Administrative Agent, require such Defaulting Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
set forth in Section 10.4(b)) all its interests, rights and obligations
under this Agreement to an assignee that shall assume such obligations (which
assignee may be another Lender); provided, that (i) the Borrower shall
have received the prior written consent of the Administrative Agent, which
consent shall not be unreasonably withheld, (ii) such Defaulting  Lender shall have received payment of an
amount equal to the outstanding principal amount of all Loans owed to it,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (in the case of such outstanding principal and
accrued interest) and from the Borrower (in the case of all other amounts).


 


(b)                                 If the
Borrower, the Administrative Agent, the Issuing Bank and the Swingline Lender
agree in writing in their discretion that a Lender that is a Defaulting Lender  should
no longer be deemed to be a Defaulting Lender, as the case may be, the
Administrative Agent will so notify the parties hereto, whereupon as of the effective
date specified in such notice and subject to any conditions set forth therein,
the LC Exposure and the Swingline Exposure of the other Lenders shall be
readjusted to reflect the inclusion of such Lender’s Commitment, and such
Lender will purchase at par such portion of outstanding Revolving Loans of the
other Lenders and/or make such other adjustments as the Administrative Agent
may determine to be necessary to cause the Revolving Credit Exposure of the
Lenders to be on a pro  rata basis in accordance with their
respective Revolving Commitments, whereupon such Lender will cease to be a
Defaulting Lender and will be a Non-Defaulting Lender (and such Revolving
Credit Exposure of each Lender will automatically be adjusted on a prospective
basis to reflect the foregoing) and if any cash collateral has been posted with
respect to such Defaulting Lender, the Administrative Agent will promptly
return such cash collateral to the Borrower; provided that no
adjustments will be made retroactively with respect to fees accrued or payments
made by or on behalf of the Borrower while such Lender was a Defaulting Lender;
and provided, further, 


 


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that except to the extent
otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release
of any claim of any party hereunder arising from such Lender’s having been a
Defaulting Lender.


 


ARTICLE III


 


CONDITIONS PRECEDENT TO LOANS


 


Section 3.1.                                Conditions To Effectiveness.  The obligations of the Lenders to make the
initial Loans and the obligation of the Issuing Bank to issue any Letter of
Credit on the Closing Date shall not become effective until the date on which
each of the following conditions is satisfied (or waived in accordance with Section
10.2):


 


(a)                                  The
Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Closing Date, including reimbursement or payment of
all out-of-pocket expenses (including, to the extent invoiced, reasonable fees,
charges and disbursements of counsel to the Administrative Agent) required to
be reimbursed or paid by the Borrower hereunder, under the Fee Letter and under
any other Loan Document.


 


(b)                                 The Administrative
Agent (or its counsel) shall have received the following (which may include, to
the extent acceptable to the Administrative Agent, facsimile or electronic
transmission of a signed signature page of any such agreement or other
deliverable):


 


(i)                                     a counterpart
of (A) this Agreement, (B) each Security Agreement and (C) each other Loan
Document to be executed and delivered on the Closing Date, in each case, signed
by or on behalf of each party thereto or written evidence satisfactory to the
Administrative Agent that such party has signed a counterpart of such
agreement;


 


(ii)                                  copies of duly
executed payoff letters, in form and substance reasonably satisfactory to
Administrative Agent, executed by the Borrower’s existing lenders or the agents
thereof, together with (a) UCC-3 or other appropriate termination statements,
in form and substance reasonably satisfactory to the Administrative Agent,
releasing (concurrently with the Closing Date) all liens of the Borrower’s
existing lenders upon any of the personal property of each Loan Party and its
Subsidiaries, other than liens securing Obligations under this Agreement, and (b)
any other releases, terminations or other documents reasonably required by the
Administrative Agent to evidence the payoff of Indebtedness owed to the Loan
Parties’ existing lenders;


 


(iii)                               a certificate
of the Secretary or Assistant Secretary of each Loan Party, attaching and
certifying copies of its bylaws and of the resolutions of its boards of
directors, or partnership agreement or limited liability company agreement, or
comparable organizational documents and authorizations, authorizing the
execution, delivery and performance of the Loan Documents to which it is a
party and certifying the name, title and true signature of each officer of such
Loan Party executing the Loan Documents to which it is a party;


 


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(iv)                              certified
copies of the articles or certificate of incorporation, certificate of
organization or limited partnership, or other registered organizational
documents of each Loan Party, together with certificates of good standing or
existence, as may be available from the Secretary of State of the jurisdiction
of organization of such Loan Party and each other jurisdiction where such Loan
Party is required to be qualified to do business as a foreign corporation and
the failure to be so qualified would reasonably be expected to have a Material
Adverse Effect;


 


(v)                                 a written
opinion of Baker Botts L.L.P., together with such other local counsel opinions
as may be reasonably requested by the Administrative Agent, addressed to the
Administrative Agent and each of the Lenders, in form and substance reasonably
satisfactory to the Administrative Agent;


 


(vi)                              a solvency
certificate delivered by the Chief Financial Officer of the Borrower;


 


(vii)                           a certificate,
dated the Closing Date and signed by a Responsible Officer, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of Section
3.2;


 


(viii)                        a duly executed
Notice of Borrowing, including a schedule of funds disbursement;


 


(ix)                                a duly executed
and completed Perfection Certificate delivered by Borrower;


 


(x)                                   copies of (A) the
audited consolidated financial statements for the Borrower and its Subsidiaries
for the Fiscal Years ending December 31, 2007, December 31, 2008 and December 31,
2009, including balance sheets, income and cash flow statements audited by
independent public accountants of recognized national standing and prepared in
conformity with GAAP, (B)  projected
consolidated balance sheet and related statements of projected operations and
cash flow for the Borrower and its Subsidiaries for the 2010 and 2011 Fiscal
Years, and (C) the unaudited consolidated financial statements for the Borrower
and its Subsidiaries for the Fiscal Quarters ended March 31, 2010 and June 30,
2010;


 


(xi)                                a duly
completed Compliance Certificate including calculations of the financial
covenants set forth in Article VII hereof as of June 30, 2010;


 


(xii)                             copies of
favorable UCC, intellectual property, tax and judgment lien search reports in
all necessary or appropriate jurisdictions and under all legal and trade names
of all Loan Parties as requested by the Lenders, (A) indicating that there are
no Liens on any of the Collateral other than Permitted Liens, or (B) accompanied
by such UCC termination statements (or authorization for the Administrative
Agent to file such UCC amendments or termination statements), and such other
cancellations and releases reasonably requested by the


 


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Administrative Agent to
release all Liens other than Liens permitted hereunder on any Collateral;


 


(xiii)                          certificates of
insurance issued on behalf of insurers of the Loan Parties, describing in
reasonable detail the types and amounts of insurance (property and liability)
maintained by the Loan Parties, naming Administrative Agent as additional
insured and lenders loss payee, as appropriate, together with endorsements with
respect thereto in form and substance reasonably satisfactory to the
Administrative Agent;


 


(xiv)                         UCC financing
statements or the equivalent for each appropriate jurisdiction to perfect the
Administrative Agent’s security interest in the Collateral;


 


(xv)                            Collateral
Access Agreements with respect to at all locations in which any Loan Party’s
books and records are kept;


 


(xvi)                         Deposit Account
Control Agreements (other than with respect to any Excluded Accounts) duly
executed by each depository Bank to the extent required by the Administrative
Agent; and


 


(xvii)                      Delivery of
documentation and information required by regulatory authorities under
applicable “know your customer” and anti-money laundering laws.


 


Section 3.2.                                Each Credit Event.  The obligation of each Lender to make a Loan
on the occasion of any Borrowing and of Issuing Bank to issue, amend, renew or
extend any Letter of Credit is subject to the satisfaction of the following
conditions:


 


(a)                                  at the time of
and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no
Default or Event of Default shall exist;


 


(b)                                 at the time of
and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, all
representations and warranties of each Loan Party set forth in the Loan
Documents shall be true and correct on and as of the date of such Borrowing or
the issuance, amendment, renewal or extension of such Letter of Credit, in each
case before and after giving effect thereto except (i) any representation or
warranty that is made as of a date specified therein and (ii) changes or events
which are permitted under this Agreement;


 


(c)                                  the Borrower
shall have delivered the required Notice of Borrowing to the Administrative
Agent or Request for Issuance of Letter of Credit to the Issuing Bank, as
applicable; and


 


(d)                                 with respect to
the issuance of any Letter of Credit or the making of any Swingline Loan, there
is no Defaulting Lender at the time such Swingline Loan is to be made or Letter
of Credit is to be issued, unless (i) for the issuance of any Letter of Credit,
one of the


 


55

















 


following arrangements have
been made with respect to the undivided interest and participation of such
Defaulting Lender in and to such Letter of Credit (and all other Letters of
Credit then outstanding): (A) the Borrower’s posting of cash collateral with
the Issuing Bank in an amount equal to such Defaulting Lender’s participation
therein on terms satisfactory to the Issuing Bank, (B) the reallocation of the
Revolving Commitments among the Non-Defaulting Lenders pursuant to Section 2.18(a)(i),
or (C) such other arrangements satisfactory to the Issuing Bank, and (ii) for
the making of any Swingline Loan, one of the following arrangements have been
made with respect to the undivided interest and participation of such
Defaulting Lender in and to such Swingline Loan (and all other Swingline Loans
then outstanding): (A) the reallocation of the Revolving Commitments among the
Non-Defaulting Lenders pursuant to Section 2.18(a)(i), or (B) such other
arrangements satisfactory to the Swingline Lender.


 


Each Borrowing shall be
deemed to constitute a representation and warranty by the Borrower on the date
thereof as to the matters specified in paragraphs (a), (b) and (c) of this Section
3.2.


 


The Borrower hereby agrees
that the delivery of any Notice of Borrowing hereunder or any telephonic
request for a Borrowing hereunder shall be deemed to be the certification of
the authorized signatory thereof (on behalf of the Borrower and not in such
Person’s individual capacity) that all of the conditions set forth in this Section
3.2 have been satisfied. 
Notwithstanding the foregoing, if the conditions, or any of them, set
forth above are not satisfied, such conditions may be waived by the Required
Lenders under Section 10.2.


 


Section 3.3.                                Delivery of Documents.  All of the Loan Documents, certificates,
legal opinions and other documents and papers referred to in this Article III,
unless otherwise specified, (a) shall be delivered to the Administrative Agent
for the account of each of the Lenders, (b) to the extent requested by the
Administrative Agent, in sufficient counterparts or copies for each of the
Lenders, and (c) shall be in form and substance reasonably satisfactory in all
respects to the Administrative Agent.


 


ARTICLE IV


 


REPRESENTATIONS AND WARRANTIES


 


The Borrower represents and
warrants to the Administrative Agent and each Lender as follows:


 


Section 4.1.                                Organization; Powers.  The Borrower and each Subsidiary is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to
carry on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.


 


Section 4.2.                                Authorization; Enforceability.  The Transactions to be entered into by each
Loan Party are within such Loan Party’s corporate (or other applicable entity)
powers and have been duly authorized by all necessary corporate and, if
required, stockholder 


 


56

















 


action.  Each Loan Document has been duly executed and
delivered by each Loan Party that is a party thereto and constitutes a legal,
valid and binding obligation of such Loan Party, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.


 


Section 4.3.                                Governmental Approvals; No Conflicts.  The consummation of the Transactions by the
Loan Parties (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect and except filings
necessary to perfect Liens created under the Loan Documents, (b) will not
violate any applicable law or regulation (including, without limitation, with
respect to any corporate law or regulation limiting a company’s distributions
to shareholders) or the charter, by-laws or other organizational documents of
the Borrower or any of the Subsidiaries or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding upon the Borrower or any of the
Subsidiaries or its assets, or give rise to a right thereunder to require any
payment to be made by the Borrower or any of the Subsidiaries, and (d) will not
result in the creation or imposition of any Lien on any asset of the Borrower
or any of the Subsidiaries, except Liens created under the Loan Documents.


 


Section 4.4.                                Financial Condition; No Material Adverse Change.


 


(a)                                  Borrower
Financial Statements.  The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, stockholders equity and cash flows (i) as of and for
the fiscal year ended December 31, 2009, reported on by independent certified
public accountants, and (ii) as of and for the fiscal quarters and the portion
of the fiscal year ended March 31, 2010 and June 30, 2010, certified by a
Responsible Officer.  Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of the Borrower and its Subsidiaries as of
such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.


 


(b)                                 Pro Forma.  The Borrower has heretofore furnished to the
Lenders its pro forma consolidated balance sheet as of June 30, 2010, prepared
giving effect to the Transactions as if the Transactions had occurred on such
date.  Such pro forma consolidated balance
sheet (i) has been prepared in good faith based on the same assumptions used to
prepare the pro forma financial statements included in the Information
Memorandum (which assumptions are believed by the Borrower to be reasonable), (ii)
is based on the best information reasonably available to the Borrower after due
inquiry, (iii) accurately reflects all adjustments necessary to give effect to
the Transactions and (iv) presents fairly, in all material respects, the pro
forma financial position of the Borrower and its Subsidiaries as of June 30,
2010 as if the Transactions had occurred on such date.


 


(c)                                  Projections.  The Borrower’s forecasted consolidated and
consolidating:  (i) balance sheets; (ii) profit
and loss statements; and (iii) cash flow statements, have been prepared by the
Borrower in light of the business of the Borrower and its Subsidiaries and the
Transactions and represents, as of the date thereof, the good faith estimate
based on assumptions 


 


57

















 


believed to be reasonable of
the Borrower and its senior management of the future financial performance of
the Borrower and its Subsidiaries, after giving pro forma effect to the
Transactions.


 


(d)                                 No Undisclosed
Liabilities.  Except as
disclosed in the financial statements referred to above or the notes thereto or
in the Information Memorandum, after giving effect to the Transactions, none of
the Borrower or any Subsidiaries has, as of the Closing Date, any material
contingent liabilities, unusual long-term commitments or unrealized losses.


 


(e)                                  No Material
Adverse Change.  Since December
31, 2009, there has been no change which has had or could reasonably be
expected to have a Material Adverse Effect, on the Borrower and its
Subsidiaries, taken as a whole. 
Notwithstanding anything to this Section 4.4(e) to the contrary,
the following matters shall not be taken into account in determining whether a
Material Adverse Effect has occurred or would reasonably  be expected to occur under this Section
4.4(e): (i) changes in financial or securities markets generally, (ii) changes
in general economic conditions in the United States, (iii) the outbreak or
escalation of hostilities involving the United States, the declaration by the
United States of a national emergency or war or the occurrence of any other
calamity or crisis, including an act of terrorism, or (iv) any changes in GAAP.


 


Section 4.5.                                Properties.


 


(a)                                  Title: Liens.  The Borrower and each of the Subsidiaries has
good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for minor defects in title that do
not interfere with its ability to conduct its business as currently conducted
or to utilize such properties for their intended purposes and Permitted
Liens.  As of the Closing Date and after
giving effect to the Transactions, neither the Borrower nor any of the
Subsidiaries owns any interest in any real property in fee.


 


(b)                                 Intellectual
Property.  The
Borrower and each of the Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Borrower and each of the
Subsidiaries does not infringe upon the rights of any other Person, except for any
such infringements that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.


 


Section 4.6.                                Litigation and Environmental Matters.


 


(a)                                  Litigation.  There are no actions, suits or proceedings by
or before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of the Subsidiaries or the board of directors of the Borrower (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect after taking into account any
applicable insurance coverage or (ii) that involve any of the Loan Documents or
the Transactions.


 


(b)                                 Environmental
Matters.  Except for any matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, neither the 


 


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Borrower nor any of the
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under
any Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.


 


Section 4.7.                                Compliance with Laws and Agreements.  The Borrower and each of the Subsidiaries is
in compliance with all laws, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.


 


Section 4.8.                                Investment Company Status.  Neither the Borrower nor any of the
Subsidiaries is an “investment company” as defined in, or subject to regulation
under, the Investment Company Act of 1940.


 


Section 4.9.                                Taxes.  The
Borrower and each of the Subsidiaries has timely filed or caused to be filed
all Tax returns and reports required to have been filed and has paid or caused
to be paid all Taxes required to have been paid by it, except (a) Taxes that
are being contested in good faith by appropriate proceedings and for which the
Borrower or such Subsidiary, as applicable, has set aside on its books adequate
reserves to the extent required in accordance with GAAP or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.


 


Section 4.10.                         Plans.


 


(a)                                  Neither the
Loan Parties nor any of their respective Subsidiaries maintain any
Multiemployer Plans or defined benefit plans (as defined in Section 3(35)
of  ERISA).  Each Plan is in compliance in all material
respects with the applicable provisions of ERISA, the Code, and other Federal
and state laws except for noncompliances that, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.  Each Plan that is intended to qualify under Section
401(a) of the Code has received a favorable determination letter from the
Internal Revenue Service (“IRS”) or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the knowledge
of the Loan Parties, nothing has occurred which would prevent, or cause the
loss of, such qualification.  Each Plan
(other than a Multiemployer Plan) to which 
Section 412 of the Code or Section 302 of ERISA applies has satisfied
the requirements of Sections 412, 430 and 436 of the Code and Sections 302 and
303 of ERISA, and no such Plan has a “funding shortfall” within the meaning of Section
430(c) of the Code or  Section 303(c) of
ERISA or is in “at-risk status” within the meaning of Section 430(i)(4) of the
Code or Section 303(i)(4) of ERISA or subject to the limitations of Section 436
of the Code.  No Plan has or has incurred
an accumulated funding deficiency within the meaning of Section 302 of ERISA or
Section 412 of the Code, nor has any waiver of the minimum funding standards of
Section 302 of ERISA and Section 412 of the Code been requested of or granted
by the IRS with respect to any Plan, nor has any Lien in favor of any Plan
arisen under Section 412(n) or 430(k) of the Code or Section 302(f) or 303(k) of
ERISA.  None of the Loan Parties or any
ERISA Affiliate has been required to provide security to any defined benefit
pension plan pursuant to Section 401(a)(29) of the Code or Section 306 or 307
of ERISA.


 


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


 


(c)                                  (i) No ERISA
Event has occurred or is reasonably expected to occur; (ii) the Borrower and
the ERISA Affiliates have not incurred, and do not reasonably expect to incur,
any liability under Section 409, 502(i), 502(l), or 515 or Title IV of ERISA
with respect to any Plan (other than premiums due and not delinquent under Section
4007 of ERISA) or under Section 401(a)(29), 4971 or 4975 of the Code; (iii) the
Loan Parties and the ERISA Affiliates have not incurred, and do not reasonably
expect to incur, any liability (and no event has occurred which, with the giving
of notice under Section 4219 of ERISA, would result in such liability) under Section
4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (iv) the Loan
Parties and the ERISA Affiliates have not engaged in a transaction that could
reasonably be expected to be subject to Section 4069 or 4212(c) of ERISA.


 


(d)                                 Each group
health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of
the Code) which covers or has covered employees or former employees of any Loan
Party, any Subsidiary of a Loan Party, or any ERISA Affiliate has at all times
been operated in material compliance with the provisions of Part 6 of subtitle
B of Title I of ERISA and Section 4980B of the Code.  Each group health plan (as defined in 45 Code
of Federal Regulations Section 160.103) which covers or has covered employees
or former employees of any Loan Party, any Subsidiary of a Loan Party, or any
ERISA Affiliate has at all times been operated in compliance with the
provisions of the Health Insurance Portability and Accountability Act of 1996
and the regulations promulgated thereunder except where a failure could not
reasonably be expected to have a Material Adverse Effect.


 


(e)                                  No Lien imposed
under the Code or ERISA on the assets of any Loan Party or any Subsidiary of a
Loan Party exists or is reasonably likely to arise on account of any Plan.


 


(f)                                    The Loan
Parties and their Subsidiaries may cease contributions to or terminate any
employee benefit plan maintained by any of them without incurring any material
liability.


 


(g)                                 Neither any
Loan Party nor any Subsidiary of a Loan Party has any unfunded liability for
vested benefits in excess of $100,000  with
respect to Plans under which any Loan Party, or any Subsidiary of a Loan Party
is an “employer.”


 


(h)                                 As of the Closing
Date, the amount of Unrecognized Retiree Welfare Liabilities under all employee
benefit plans within the meaning of Section 3(3) of ERISA maintained or
contributed to by any Loan Party or any Subsidiary of a Loan Party does not
exceed $100,000.


 


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(i)                                     As of the
Closing Date, there is no potential annual withdrawal liability payments under
Title IV of ERISA for the Loan Parties and all Subsidiaries of the Loan Parties
with respect to all Multiemployer Plans.


 


Section 4.11.                         Disclosure.  The
Borrower has disclosed to the Lenders all agreements, instruments and corporate
or other restrictions to which the Borrower or any of the Subsidiaries is
subject, and all other matters known to any of them, in each case that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.  Neither the
Information Memorandum nor any of the other reports, financial statements,
certificates or other information furnished by or on behalf of any Loan Party
to the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or any other Loan Document or delivered hereunder or thereunder
(taken as a whole and as modified or supplemented by other information so furnished)
contains any misstatement of a material fact or omits to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.


 


Section 4.12.                         Capitalization; Subsidiaries.  As of the Closing Date, the Borrower does not
have any Subsidiaries other than NetSpend, NPSI, Skylight Parent and Skylight
Subsidiary.  As of the Closing Date, each
of NetSpend and NPSI have no subsidiaries. 
As of the Closing Date, Skylight Parent does not have any Subsidiaries
other than the Skylight Subsidiary.   As
of the Closing Date, the Borrower owns 100% of the Capital Stock issued by
Skylight Parent, NPSI and NetSpend.  As
of the Closing Date, Skylight Parent owns 100% of the Capital Stock issued by
Skylight Subsidiary.  As of the Closing
Date, Schedule 4.12 sets forth the authorized, issued and outstanding
Capital Stock of NetSpend, NPSI, Skylight Parent and Skylight Subsidiary.  All of the outstanding capital stock of
NetSpend, NPSI, Skylight Parent and Skylight Subsidiary have been validly
issued, is fully paid, and is nonassessable. 
Except as permitted to be issued or created pursuant to the terms of the
Loan Documents or as reflected on Schedule 4.12 as of the Closing Date
and after giving effect to the Transactions, there are no outstanding subscriptions,
options, warrants, calls, or rights (including preemptive rights) to acquire,
and no outstanding securities or instruments convertible into any Capital Stock
of any Subsidiary.


 


Section 4.13.                         Insurance.  The
Borrower and each of the Subsidiaries maintain with financially sound and
reputable insurers, insurance with respect to its properties and business
against such casualties and contingencies and in such amounts as are usually
carried by businesses engaged in similar activities as the Borrower and each of
the Subsidiaries and located in similar geographic areas in which the Borrower
and each of the Subsidiaries operate.


 


Section 4.14.                         Labor Matters.  As
of the Closing Date, there are no strikes, lockouts or slowdowns against the
Borrower or any Subsidiary pending or, to the knowledge of the Borrower,
threatened.  Following the Closing Date,
there are no strikes, lockouts or slowdowns against the Borrower or any
Subsidiary pending or, to the knowledge of the Borrower, threatened.  The hours worked by and payments made to
employees of the Borrower and each of the Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing with such matters.  All payments due 


 


61

















 


from the Borrower or any
Subsidiary, or for which any claim may be made against the Borrower or any
Subsidiary, on account of wages and employee health and welfare insurance and
other benefits, have been, in all material respects, paid or accrued as a
liability on the books of the Borrower or such Subsidiary.  The consummation of the Transactions will not
give rise to any right of termination or right of renegotiation on the part of
any union under any collective bargaining agreement to which the Borrower is
bound.  All payments due from the
Borrower or any Subsidiaries pursuant to the provisions of any collective
bargaining agreement have been paid or accrued as a liability on the books of
the Borrower or any such Subsidiary, except where the failure to do so would
not reasonably be expected to have a Material Adverse Effect.


 


Section 4.15.                         Solvency.  Immediately
following the making of the initial Loan made hereunder and after giving effect
to the application of the proceeds of such Loan:  (a) the fair value of the assets of the Loan
Parties (taken as a whole), at a fair valuation, will exceed their debts and
liabilities, subordinated, contingent or otherwise (taken as a whole); (b) the
present fair saleable value of the property of the Loan Parties (taken as a
whole) will be greater than the amount that will be required to pay the
probable liability of their debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute
and matured; (c) the Loan Parties (taken as a whole) will be able to pay their
debts and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the Loan Parties (taken as a
whole) will not have unreasonably small capital with which to conduct the
business in which they are engaged as such business is now conducted and is
proposed to be conducted following the Closing Date.  As used in this Section 4.15, the term
“fair value” means the amount at which the applicable assets would change hands
between a willing buyer and a willing seller within a reasonable time, each
having reasonable knowledge of the relevant facts, neither being under any
compulsion to act, with equity to both and “present fair saleable value” means
the amount that may be realized if the applicable company’s aggregate assets
are sold with reasonable promptness in an arm’s length transaction under
present conditions for the sale of a comparable business enterprises.


 


Section 4.16.                         Margin Securities.  Neither the Borrower nor any Subsidiary is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulations U or X of the Board of Governors of the Federal
Reserve System), and no part of the proceeds of any Loan will be used to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying margin stock.


 


Section 4.17.                         Common Enterprise.  The successful operation and condition of
each of the Loan Parties is dependent on, among other things, the continued
successful performance of the functions of the group of the Loan Parties as a
whole and the successful operation of each of the Loan Parties is dependent on,
among other things, the successful performance and operation of each other Loan
Party.  Each Loan Party expects to derive
benefit (and its board of directors or other governing body has determined that
it may reasonably be expected to derive benefit), directly or indirectly, from (i)
successful operations of each of the other Loan Parties and (ii) the credit
extended by the Lenders to the Borrower hereunder, both in their separate
capacities and as members of the group of companies.  Each Loan Party has determined that
execution, delivery, and performance of this Agreement and any other Loan 


 


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Documents to be executed by
such Loan Party is within its purpose, will be of direct and indirect benefit
to such Loan Party, and is in its best interest.


 


Section 4.18.                         OFAC.  No Loan Party or any Affiliate of any Loan
Party (i) is a person whose property or interest in property is blocked or
subject to blocking pursuant to Section 1 of Executive Order 13224 of September
23, 2001 Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii)
engages in any dealings or transactions prohibited by Section 2 of such
executive order, or is otherwise associated with any such person in any manner
violative of Section 2, or (iii) is a person on the list of Specially
Designated Nationals and Blocked Persons or subject to the limitations or
prohibitions under any other U.S. Department of Treasury’s Office of Foreign
Assets Control regulation or executive order.


 


Section 4.19.                         Patriot Act.  Each Loan Party and each Affiliate of each
Loan Party is in compliance with the (i) Trading with the Enemy Act, as
amended, and each of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any
other enabling legislation or executive order relating thereto, and (ii) the
Patriot Act.  No part of the proceeds of
the Loans will be used, directly or indirectly, for any payments to any
governmental official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any improper
advantage, in violation of the United States Foreign Corrupt Practices Act of
1977, as amended.


 


ARTICLE V


 


AFFIRMATIVE COVENANTS


 


The Borrower covenants and
agrees that so long as any Lender or Issuing Bank has a Commitment hereunder or
any Obligation remains unpaid or outstanding:


 


Section 5.1.                                Financial Statements and Other Information.  The Borrower will furnish to the
Administrative Agent and each Lender:


 


(a)                                  Annual Audit.  As soon as available, but in any event: (i) on
or prior to the IPO, 105 days after the end of each Fiscal Year of the Borrower
and (ii) after the IPO, the earlier of (A) 120 days after the end of each
Fiscal Year of the Borrower, and (B) the date such deliveries are required by
the SEC (after giving effect to any automatic extensions), the Borrower’s
audited consolidated balance sheet and related statements of operations,
stockholders’ equity and cash flows as of the end of and for such Fiscal Year,
setting forth in each case in comparative form the figures for the previous
Fiscal Year, all reported on by a firm of independent public accountants of
recognized national standing (without a “going concern” or like qualification
or exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations of
the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;


 


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(b)                                 Quarterly
Financial Statements.  Within 45
days after the end of each Fiscal Quarter of the Borrower, its consolidated
balance sheet and related statements of operations, stockholders’ equity and
cash flows as of the end of and for such Fiscal Quarter and the then elapsed
portion of the Fiscal Year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous Fiscal Year, all certified by one
of its Responsible Officers as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of
footnotes;


 


(c)                                  Compliance
Certificate. 
Concurrently with any delivery of financial statements under clause (a) above
and concurrently with any delivery of financial statements for any of the first
three Fiscal Quarters of any Fiscal Year under clause (b) above, a Compliance
Certificate (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, 
(ii) setting forth reasonably detailed calculations demonstrating
compliance with Article VII; and (iii) stating whether any change in the
application of GAAP to the financial statements and business operations of the
Borrower and its Subsidiaries has occurred since the date of the Borrower’s
most recent audited financial statements referred to in Section 4.4 and,
if any such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;


 


(d)                                 Budget.  Within 30 days after the commencement of each
Fiscal Year of the Borrower, a detailed consolidated budget for such Fiscal
Year (including a projected consolidated balance sheet and related statements
of projected operations and cash flow as of the end of and for such Fiscal Year
and setting forth the assumptions used for purposes of preparing such budget)
and, promptly after it is available, any significant revisions of such budget;


 


(e)                                  Public Reports.  Promptly after the same become publicly
available, copies of all periodic and other reports, proxy statements and other
materials filed by the Borrower or any of its Subsidiaries with the SEC, or
with any national securities exchange, or distributed by the Borrower to its
shareholders generally, as the case may be;


 


(f)                                    Management
Discussion and Analysis. 
Prior to the IPO, concurrently with any delivery of financial statements
under clause (a) above and concurrently with any delivery of financial
statements for any of the first three Fiscal Quarters of any Fiscal Year under
clause (b) above, a management discussion and analysis in form and substance
reasonably satisfactory to the Administrative Agent; and


 


(g)                                 Additional Information.  Promptly following any request therefor, such
other information regarding the operations, business affairs and financial
condition of the Borrower or any of its Subsidiaries, or compliance with the
terms of any Loan Document, as the Administrative Agent or any Lender may
reasonably request.


 


Section 5.2.                                Notices of Material Events.  The Borrower will furnish to the
Administrative Agent and each Lender  prompt
written notice of the following:


 


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(a)                                  Default.  The occurrence of any Default;


 


(b)                                 Notice of
Proceedings.  The filing
or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or affecting the Borrower or any of its
Subsidiaries that could reasonably be expected to result in a Material Adverse
Effect;


 


(c)                                  ERISA Event.  The occurrence of any ERISA Event that, alone
or together with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and each of the Subsidiaries in
an aggregate amount exceeding $250,000; and


 


(d)                                 Material
Adverse Effect.  Any other
development that results in, or could reasonably be expected to result in, a
Material Adverse Effect.


 


Each notice delivered under
this Section shall be accompanied by a statement of a Responsible Officer or
other executive officer of the Borrower setting forth the details of the event
or development requiring such notice and any action taken or proposed to be
taken with respect thereto.


 


Section 5.3.                                Existence; Conduct of Business.  The Borrower will, and will cause each of the
Subsidiaries to, do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence and the rights, licenses,
permits, privileges, franchises, patents, copyrights, trademarks and trade
names material to the conduct of its business; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 6.3.  Except
as otherwise permitted under this Agreement, each Loan Party will, and will
cause each of its respective Subsidiaries to, continue to engage in the type of
businesses conducted by such Loan Party and its Subsidiaries on the Closing
Date, and any business reasonably related thereto.


 


Section 5.4.                                Payment of Taxes.  The Borrower will, and will cause each of its
Subsidiaries to, pay its Tax liabilities, before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or
Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP, (c) such contest effectively suspends the enforcement of
any Lien securing such obligation and (d) the failure to make payment pending
such contest could not reasonably be expected to result in a Material Adverse
Effect.


 


Section 5.5.                                Maintenance of Properties.  The Borrower will, and will cause each of the
Subsidiaries to, keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted,
subject to any dispositions permitted under this Agreement.


 


Section 5.6.                                Insurance.  The
Borrower will, and will cause each of the Subsidiaries to, maintain, with
financially sound and reputable insurance companies insurance in such amounts
(with no greater risk retention) and against such risks as are customarily
maintained by companies of established repute engaged in the same or similar
businesses operating in the same or similar locations.  The Borrower will furnish to the Lenders,
upon 


 


65

















 


request of the
Administrative Agent, information in reasonable detail as to the insurance so
maintained.  Each general liability
insurance policy shall name the Administrative Agent as additional
insured.  Each insurance policy covering
Collateral shall name the Administrative Agent as loss payee and shall provide
that such policy will not be canceled or materially changed without thirty (30)
days prior written notice to the Administrative Agent.


 


Section 5.7.                                Casualty and Condemnation.  The Borrower will furnish to the
Administrative Agent and the Lenders prompt written notice of any casualty or
other insured damage to any material portion of the Collateral or the
commencement of any action or proceeding for the taking of any Collateral or
any part thereof or interest therein under power of eminent domain or by
condemnation or similar proceeding.


 


Section 5.8.                                Books and Records and Inspection Rights.  The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full, true
and correct entries are made of all dealings and transactions in relation to
its business and activities.  The
Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice and during regular business hours, to visit and inspect
its properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested;
provided, that unless a Default or Event of Default is in existence, the
Borrower shall bear the cost of only two such inspections, examinations or
discussions per Fiscal Year.


 


Section 5.9.                                Compliance with Laws.  The Borrower will, and will cause its Subsidiaries
to, comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.


 


Section 5.10.                         Use of Proceeds and Letters of Credit.  The proceeds of the Loans made hereunder will
be used only:  (a) to refinance in full
NetSpend’s existing credit facilities in effect on the Closing Date and the
payment of fees and expenses payable in connection with the Transactions and (b)
for working capital and other general corporate purposes of the Borrower and
its Subsidiaries, including Restricted Payments permitted by Section 6.8
and Acquisitions permitted by Section 6.4.  No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations T, U and X.  Letters of Credit will be issued only to
support transactions of the Subsidiaries entered into in the conduct of their
business.


 


Section 5.11.                         Additional Subsidiaries.


 


(a)                                  Domestic
Subsidiaries.  If any
additional Domestic Subsidiary is formed or acquired after the Closing Date,
the Borrower will notify the Administrative Agent thereof and the Borrower will
promptly, but in any event within 30 days (or such longer period as the
Administrative Agent may agree) of such formation or acquisition:  (i) deliver all documentation as the
Administrative Agent may reasonably require to evidence the authority of such
Subsidiary to execute, deliver and perform the Loan Documents to which it is a
party and to evidence the existence and good standing of such Subsidiary; (ii) cause
such Domestic Subsidiary to become a 


 


66

















 


Guarantor under the Guaranty
Agreement by executing and delivering to the Administrative Agent a Guaranty
Supplement in the form specified therein, whereby such Domestic Subsidiary
shall guarantee the obligations of the Loan Parties under the Loan Documents; (iii)
cause all of the Capital Stock in such Domestic Subsidiary to be pledged to the
Administrative Agent to secure the Obligations by causing the direct owners of
such Capital Stock to execute and deliver to the Administrative Agent a
supplement to the Security Agreement in the form specified therein, (iv) deliver
or cause to be delivered to the Administrative Agent all certificates and
undated stock powers duly executed in blank (to the extent the Capital Stock of
such Domestic Subsidiary is certificated) and take or cause to be taken such
other actions as may be necessary to provide the Administrative Agent with a
first priority perfected pledge of and security interest in such Capital Stock;
(v) cause such Domestic Subsidiary to become a “Grantor” under the Security
Agreement by executing and delivering to the Administrative Agent a supplement
to the Security Agreement in the form specified therein, whereby such Domestic
Subsidiary shall grant a security interest to the Administrative Agent in all
of its assets constituting Collateral under the Security Agreement to secure
the Obligations, and (vi) take whatever action (including delivering properly
completed UCC financing statements) that may be necessary in the opinion of the
Administrative Agent to vest in the Administrative Agent, for the benefit of
the Secured Parties, a first priority perfected  security interest in the assets of such Domestic Subsidiary
purported to be subject to the Security Agreement.


 


(b)                                 First-Tier
Foreign Subsidiary.  If any
First-Tier Foreign Subsidiary is formed or acquired after the Closing Date, the
Borrower will notify the Administrative Agent thereof and will promptly, but in
any event within 30 days (or such longer period as the Administrative Agent may
agree) of such formation or acquisition: 
(i) cause 65% of the Capital Stock in such First-Tier Foreign Subsidiary
to be pledged to the Administrative Agent to secure the Obligations by causing
the direct owners of such Capital Stock to execute and deliver to the
Administrative Agent a pledge agreement or similar agreement in form and
substance reasonably satisfactory to the Administrative Agent; (ii) deliver or
cause to be delivered to the Administrative Agent certificates representing
such Capital Stock and corresponding stock powers (to the extent the Capital
Stock of such First-Tier Foreign Subsidiary is certificated) and other
documents required by such agreement with respect to such Capital Stock and (iii)
take or cause to be taken such other actions as may be necessary to provide the
Administrative Agent with a first priority perfected pledge of and security
interest in such Capital Stock


 


Section 5.12.                         Further Assurances.


 


(a)                                  General Further
Assurances.  Subject to
the terms of the Security Agreement, the Borrower will, and will cause each
Loan Party to, execute any and all further documents, financing statements,
agreements and instruments, and take all such further actions (including the
filing and recording of financing statements, fixture filings, mortgages, deeds
of trust and other documents, but excluding any leasehold mortgages), which may
be required under any applicable law, or which the Administrative Agent or the
Required Lenders may reasonably request, to effectuate the transactions
contemplated by the Loan Documents or to grant, preserve, protect or perfect
the Liens created or intended to be created by the Loan Documents or the
validity or priority of any such Lien, all at the expense of the Loan Parties.  The Borrower also agrees to provide to the
Administrative Agent, from time to time upon 


 


67

















 


request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority of
the Liens created or intended to be created by the Loan Documents.


 


(b)                                 Acquisition of
Material Assets.  If any
material assets (including any owned real property or improvements thereto or
any interest therein having an individual aggregate fair market value amount of
equal or greater than $1,000,000  but
excluding any leases of real property) are acquired by the Borrower or any Loan
Party after the Closing Date (other than assets constituting Collateral under
the Loan Documents that become subject to the Lien of the Loan Documents upon
acquisition thereof), the Borrower will notify the Administrative Agent and the
Lenders thereof, and, if requested by the Administrative Agent or the Required
Lenders, the Borrower will cause such assets to be subjected to a Lien securing
the Obligations and will take, and cause the Loan Parties to take, such actions
as shall be necessary or reasonably requested by the Administrative Agent to
grant, perfect and protect such Liens, including actions described in paragraph
(a) of this Section, all at the expense of the Loan Parties.


 


Section 5.13.                         Post-Closing Matters.  Notwithstanding the fact that Borrower has
not satisfied certain of the conditions to the initial Loans, the Lenders have
agreed to advance the Loans to the Borrower, subject to the satisfaction of the
other conditions to funding contained herein and so long as the Borrower, (a) within
three (3) Business Days after the Closing Date (or such longer time as may be
extended by the Administrative Agent from time to time in its sole discretion),
delivers (i) a duly executed Deposit Account Control Agreement with respect to
account number 7470506523 located at Fifth Third Bank between NPSI, the
Administrative Agent on behalf of the Lenders and Fifth Third Bank, (ii) a duly
executed Collateral Access Agreement in form and substance satisfactory to the
Administrative Agent in its sole discretion with respect to the leased property
located at 1455 Lincoln Parkway, Suite 600, Atlanta, Georgia 30346, between the
Administrative Agent on behalf of the Lenders and DRA CRT Perimeter Center LLC,
and (iii) a duly executed Collateral Access Agreement in form and substance
satisfactory to the Administrative Agent in its sole discretion with respect to
the leased property located at 701 Brazos Street, Suite 1200, Austin, Texas
78701 between the Administrative Agent, on behalf of the Lenders, NetSpend and
WTCC Austin Investors V, L.P., (b) within fifteen (15) Business Days after the
Closing Date (or such longer time as may be extended by the Administrative
Agent from time to time in its sole discretion), delivers a duly executed
Investment Control Agreement with respect to account number SV-280 located at
Silicon Valley Bank between NetSpend, the Administrative Agent on behalf of the
Lenders and Silicon Valley Bank, and (c) within 30 Business Days after the
Closing Date (or such longer time as may be extended by the Administrative
Agent from time to time in its sole discretion), either (i) obtains a duly
executed Deposit Account Control Agreement with respect to account number
1700004913 located at Meta Payment Systems (the “Meta Reserve Account”)
or (ii) closes the Meta Reserve Account and transfers any amounts held therein
to a Loan Party’s deposit account that is subject to a Deposit Account Control
Agreement.


 


ARTICLE VI


 


NEGATIVE COVENANTS


 


The Borrower covenants and
agrees that so long as any Lender or Issuing Bank has a Commitment hereunder or
any Obligation remains unpaid or outstanding:


 


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Section 6.1.                                Indebtedness; Certain Equity Securities.  The Borrower will not, nor will it permit any
of its Subsidiaries to, issue any Disqualified Capital Stock or create, incur,
assume or permit to exist any Indebtedness, except:


 


(a)                                  Indebtedness
created under the Loan Documents;


 


(b)                                 Indebtedness
existing on the date hereof and set forth in Schedule 6.1 and
extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof or result in an earlier
maturity date or decreased weighted average life thereof;


 


(c)                                  Indebtedness
and Guarantees permitted under Section 6.4(c) and (d);


 


(d)                                 Indebtedness
among Loan Parties and Guarantees of Indebtedness and other obligations of any
Loan Party made by any Loan Party; provided that Indebtedness owed from Foreign
Subsidiaries to the Loan Parties, and Guarantees of the Indebtedness and other
obligations of any Foreign Subsidiaries by any Loan Party shall not exceed the
amounts permitted by Section 6.4(c);


 


(e)                                  Indebtedness of
the Borrower or any of its Subsidiaries incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital
Lease Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets prior to
the acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof or
result in an earlier maturity date or decreased weighted average life thereof; provided
that (i) such Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement and (ii) the
aggregate principal amount of Indebtedness incurred in reliance on this clause (e)
plus the Indebtedness listed on Schedule 6.1 incurred to finance the
acquisition, construction or improvement of any fixed or capital assets shall
not exceed $5,000,000  at any time
outstanding;


 


(f)                                    Indebtedness
arising in connection with Hedging Transactions permitted by Section 6.7;


 


(g)                                 to the extent
constituting Indebtedness, customary indemnification and purchase price
adjustments or similar obligations incurred in connection with acquisitions and
dispositions of assets otherwise permitted hereunder;


 


(h)                                 to the extent
constituting Indebtedness, deferred compensation payable to directors, officers
or employees of the Borrower and each of the Subsidiaries;


 


(i)                                     cash management
obligations and Indebtedness incurred by the Borrower or any of its
Subsidiaries in respect of netting services, overdraft protections and similar
arrangements, in each case entered into in the ordinary course of business in
connection with cash management and deposit accounts and not involving the
borrowing of money;


 


69

















 


(j)                                     obligations in
respect of surety, stay, appeal and performance bonds, and similar obligations
incurred by the Borrower or any of its Subsidiaries, in each case in the
ordinary course of business;


 


(k)                                  to the extent
constituting Indebtedness, customary indemnification obligations incurred in
the ordinary course of business;


 


(l)                                     subordinated
Indebtedness of the Borrower and its Subsidiaries which is subordinated in
right of payment and all other respects to the Obligations on terms reasonably
satisfactory to the Administrative Agent (all such Indebtedness, “Subordinated
Indebtedness”) as long as:


 


(i)                                     as of the date
of the incurrence of such Indebtedness and immediately after giving effect thereto,
no Default or Event of Default exists;


 


(ii)                                  the terms of
any such Indebtedness:  (A) do not
contain any covenants the violation of which would give the holders thereof the
right to take action that could result in a Change of Control; (B) do not contain
any provisions thereof which would make any Default or Event of Default
hereunder (without further enforcement actions on the part of the
Administrative Agent or any Lender) a default, event of default or violation
thereunder; (C) do not require any repayment of principal prior to a date that
is six months following the Revolving Commitment Termination Date; and (D) do
not contain any other terms that are not reasonably satisfactory to the
Administrative Agent; and


 


(iii)                               the Borrower
shall have provided to Administrative Agent, prior to the incurrence of such
Indebtedness:  (A) notice thereof; (B) copies
of the applicable loan documents and subordination agreements; (C) projected
income and cash flow statements for the Borrower for the period through the
Revolving Commitment Termination Date, prepared on a basis acceptable to the
Administrative Agent, giving pro forma effect to the Indebtedness incurred; and
(D) a certificate signed by a Responsible Officer of the Borrower certifying: (1)
that the Leverage Ratio of the Borrower after giving effect to the incurrence
of such proposed Indebtedness for the four (4) fiscal quarter period then most
recently ending is not greater than (z) if such Fiscal Quarter is ending on or
after September 30, 2010 and prior to December 31, 2012, 2.75 to 1.00; (y) if
such Fiscal Quarter is ending on or after December 31, 2012 and prior to December
31, 2013, 2.50 to 1.00, and (x) if such Fiscal Quarter is ending on or after December
31, 2013, 2.25 to 1.00; (2) that after giving effect to the Indebtedness in
question, all representations and warranties contained in the Loan Documents
will be true and correct in all material respects on and as of the date of the
incurrence thereof with the same force and effect as if such representations
and warranties had been made on and as of such date, except to the extent that
such representations and warranties relate specifically to another date; (3) that
no Default or Event of Default exists or will exist immediately after the
incurrence of such Indebtedness and (4) that the daily average Availability for
the thirty (30) day period prior to the date of calculation equals or exceeds
$15,000,000; and


 


70

















 


(m)                               other
Indebtedness of the Borrower and its Subsidiaries provided that the aggregate
principal amount of Indebtedness permitted by this clause (m) shall not exceed
$1,000,000  at any time
outstanding.


 


Section 6.2.                                Liens.  The
Borrower will not, nor will it permit any of its Subsidiaries to, create,
incur, assume or permit to exist any Lien on any asset now owned or hereafter
acquired by it, or rights in respect of any thereof, except:


 


(a)                                  Liens created
under the Loan Documents;


 


(b)                                 Permitted
Encumbrances;


 


(c)                                  any Lien on any
property or asset of the Borrower or any of its Subsidiaries existing on the
date hereof and set forth in Schedule 6.2; provided that such
Lien shall secure only those obligations which it secures on the date hereof
and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;


 


(d)                                 any Lien
existing on any fixed or capital asset prior to the acquisition thereof by the
Borrower or any of its Subsidiaries; provided that (i) such Lien is not
created in contemplation of or in connection with such acquisition, (ii) such
Lien shall not apply to any other asset of the Borrower or any of its
Subsidiaries not acquired together with such fixed or capital asset and (iii) such
Lien shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may be
and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;


 


(e)                                  Liens
(including Liens arising under conditional sale, title retention or similar
arrangements) on fixed or capital assets acquired, constructed or improved by
the Borrower or any of its Subsidiaries; provided, that (i) such Liens
secure Indebtedness permitted by paragraph (e) of Section 6.1, (ii) such
security interests and the Indebtedness secured thereby are incurred prior to
or within 90 days after such acquisition or the completion of such construction
or improvement, (iii) the Indebtedness secured thereby does not exceed 100% of
the cost of acquiring, constructing or improving such fixed or capital assets
and (iv) such security interests shall not apply to any other property or
assets of the Borrower or any of its Subsidiaries other than fixed or capital
assets acquired, constructed or improved in connection therewith; and


 


(f)                                    other Liens
securing Indebtedness (other than Subordinated Indebtedness) or other
obligations in an aggregate principal amount not to exceed $500,000 at any time
outstanding; provided  that the aggregate book value of all assets
encumbered by all the Liens permitted under this paragraph shall not exceed
$500,000, with the book value of an asset determined at the time of the
granting of the Lien therein.


 


Section 6.3.                                Fundamental Changes.


 


(a)                                  Mergers, etc.  The Borrower will not, nor will it permit any
of its Subsidiaries to, merge into or consolidate with any other Person, or
permit any other Person to merge into or consolidate with it, or liquidate or
dissolve, except that, if at the time thereof and immediately after giving
effect thereto, no Default or Event of Default shall have occurred and 


 


71

















 


be continuing (i) any
Subsidiary of the Borrower may merge into the Borrower in a transaction in
which the Borrower is the surviving entity, (ii) any Subsidiary of the Borrower
may merge into any Domestic Subsidiary in a transaction in which the surviving
entity is a Domestic Subsidiary and (if the merged entity is a Loan Party) is a
Loan Party; (iii) any Subsidiary of the Borrower may liquidate or dissolve if
the Borrower determines in good faith that such liquidation or dissolution is
in the best interests of the Borrower and is not materially disadvantageous to
the Lenders and if such Subsidiary is a Loan Party, its assets are transferred
to the Borrower or a Domestic Subsidiary that is a Loan Party; and (v) any
Subsidiary of the Borrower may merge with and into any Person acquired in an
Acquisition permitted by Section 6.4.


 


(b)                                 Line of
Business.  The
Borrower will not, and will not permit any of the its Subsidiaries to, engage
in any business other than businesses of the type conducted by the Borrower and
its Subsidiaries on the date of execution of this Agreement and businesses
reasonably related thereto.


 


Section 6.4.                                Investments, Loans, Advances, Guarantees and Acquisitions.  The Borrower will not, nor will it permit any
of its Subsidiaries to, make any Investment in any other Persons except:


 


(a)                                  Permitted
Investments;


 


(b)                                 Investments
existing on the date hereof and set forth on Schedule 6.4;


 


(c)                                  Investments by
the Borrower and its Subsidiaries in Foreign Subsidiaries and in joint venture
entities engaged in businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and businesses
reasonably related thereto; provided that (i) any such Capital Stock
held by a Loan Party shall be pledged pursuant to the Loan Documents (subject
to the limitations applicable to the Capital Stock of a Foreign Subsidiary
referred to in Section 5.11) and (ii) the aggregate amount of all Investments
made in Foreign Subsidiaries (including, without limitation, all cash paid to
acquire Capital Stock, loans, notes, and Guarantees) shall not exceed an amount
equal to $5,000,000;


 


(d)                                 Subject, as
applicable, to the restrictions in Section 6.4(c), Investments made by
any Loan Party in any other Loan Party;


 


(e)                                  Guarantees
constituting Indebtedness permitted by Section 6.1;


 


(f)                                    Investments
received in connection with the bankruptcy, workout or reorganization of, or
settlement of delinquent accounts and disputes with, customers and suppliers;


 


(g)                                 notes and other
non-cash consideration received as part of the purchase price of assets
disposed of pursuant to Section 6.5;


 


(h)                                 accounts
receivable arising in the ordinary course of business;


 


(i)                                     Hedging
Transactions permitted by Section 6.7;


 


72

















 


(j)                                     loans and
advances to officers, directors, and employees of the Borrower and the
Subsidiaries made in the ordinary course of business for travel and
entertainment expenses, relocation costs and similar purposes up to a maximum
for all such loans and advances of $3,000,000
in the aggregate at any one time outstanding;


 


(k)                                  endorsements of
items for collection or deposit in the ordinary course of business; and


 


(l)                                     the Loan
Parties may purchase, hold or acquire (including pursuant to a merger) all the
Capital Stock in a Person and may purchase or otherwise acquire (in one
transaction or a series of transactions) all or substantially all of the assets
of any other Person or all or substantially all of the assets of a division or
branch of such Person, if, with respect to each such Acquisition:


 


(i)                                     Default.  No Default or Event of Default exists or
would result therefrom;


 


(ii)                                  Conditions to
Acquisition.  The
Borrower shall have provided to Administrative Agent, prior to the Acquisition,
a certificate signed by a Responsible Officer of the Borrower certifying: (A) that
the Purchase Price for the Acquisition in question does not exceed $25,000,000;
provided, that the Administrative Agent may waive the Purchase Price
requirement in this clause (A); (B) that the Leverage Ratio of the Borrower on
a pro forma basis for the four (4) fiscal quarter period then most recently
ending is not greater than (1) if such Fiscal Quarter is ending on or after September
30, 2010 and prior to December 31, 2012, 2.75 to 1.00; (2) if such Fiscal
Quarter is ending on or after December 31, 2012 and prior to December 31, 2013,
2.50 to 1.00, and (3) if such Fiscal Quarter is ending on or after December 31,
2013, 2.25 to 1.00; (C) that the daily average Availability for the thirty (30)
day period prior to the date of calculation after giving pro forma effect to
the Acquisition in question (as if it were consummated on the first day of such
period), will equal or exceed $15,000,000; (D) that after giving effect to the
Acquisition in question, all representations and warranties contained in the
Loan Documents will be true and correct in all material respects on and as of
the date of the closing of the Acquisition with the same force and effect as if
such representations and warranties had been made on and as of such date,
except to the extent that such representations and warranties relate
specifically to another date; and (E) that no Default or Event of Default
exists or will result from the Acquisition;


 


(iii)                               Notice
Requirements.  The
Borrower shall provide to Administrative Agent, prior to the consummation of
any Acquisition that has a Purchase Price of more than $5,000,000, the
following:  (A) notice of the
Acquisition, (B) the most recent financial statements of the Target that the
Borrower has available, (C) copies of the applicable purchase agreement and
copies of such other documentation and information relating to the Target and
the Acquisition as Administrative Agent may reasonably request, (D) projected
income and cash flow statements for the Borrower for the period through the 


 


73

















 


Revolving Commitment
Termination Date, prepared on a basis acceptable to the Administrative Agent,
giving pro forma effect to the Acquisition and any Indebtedness incurred in
connection therewith and (E) a certificate signed by a Responsible  Officer of the Borrower certifying that
the Borrower shall be in compliance with the covenants contained in Article VII
on a pro forma basis for the four (4) fiscal quarter period then most recently
ending and on a projected basis through the Revolving Commitment Termination
Date (assuming, for purposes of such projections through the Revolving
Commitment Termination Date, that the consummation of the Acquisition in
question and the incurrence or assumption of any Indebtedness in connection
therewith occurred on the first day of such period and to the extent such
Indebtedness bears interest at a floating rate, using the rate in effect at the
time of calculation for the entire period of calculation);


 


(iv)                              Target.  The Target: 
(A) is organized under the laws of a jurisdiction within the United
States of America or any other jurisdiction as long as, with respect to such
other jurisdictions, and subject to the restrictions set forth in Section 6.4(c),
the Administrative Agent can obtain Liens in the assets and, if applicable, the
Capital Stock of the Target as required under the Loan Documents, with the
priority required hereby and in a manner reasonably acceptable to the
Administrative Agent and (B) is involved in the same general type of business
activities as the Subsidiaries;


 


(v)                                 No Contested
Acquisitions.  The
Acquisition shall have been approved by the Board of Directors of the Target
(or similar governing body if the Target is not a corporation);


 


(vi)                              Joinder of
Subsidiary.  The
Borrower shall have complied with its obligations under Sections 5.11
and 5.12 promptly after the date of the Acquisition; and


 


(vii)                           Structure.  If the proposed Acquisition is an Acquisition
of the stock or other Capital Stock issued by a Target, the Acquisition will be
structured so that the Target will become a Loan Party and a wholly owned
Subsidiary directly owned by the Borrower or a Loan Party or will be merged
with or into the Borrower or a Loan Party. 
If the proposed Acquisition is an Acquisition of assets, the Acquisition
will be structured so that the Borrower or a Loan Party shall acquire the
assets either directly or through a merger; and


 


(m)                               Investments
permitted by Section 6.3; and


 


(n)                                 in addition to
the investments otherwise permitted by this Section 6.4 (and subject to
the restrictions in Section 6.4(c)), the Borrower and the Subsidiaries
may make and permit to exist loans or advances to, Guarantee any obligations
of, or make and permit to exist any other Investment in any other Person as
long as the aggregate Net Amount of such Investments permitted pursuant to this
paragraph (n) in all other such Persons shall not exceed $7,500,000  at any time; provided, that as of
the date of any such investment and after giving


 


74














 


effect thereto, no Default
or Event of Default shall exist or result therefrom (as used in this paragraph
(n), the term “Net Amount” means, at any date of determination, the sum
of the following:  (i) the outstanding
principal amount of loans, advances and other Indebtedness, (ii) the
outstanding principal amount of any Obligation Guaranteed (regardless of how
such Obligation is valued), and (iii) the aggregate amount expended to acquire
Capital Stock, other securities or other investments less any return of capital
paid in respect thereof).


 


Section 6.5.           Asset Sales.  The Borrower will not, nor will it permit any
of its Subsidiaries to, sell, transfer, lease or otherwise dispose of any
asset, including any Capital Stock in a Subsidiary owned by it, nor will the
Borrower permit any of the Subsidiaries to issue any additional Capital Stock
(other than to the Borrower or a Subsidiary in accordance with Section 6.4),
except:


 


(a)           dispositions of (i) used or surplus
equipment in the ordinary course of business not to exceed $1,000,000 in the
aggregate in any fiscal year, (ii) Permitted Investments in the ordinary course
of business, and (iii) inventory in the ordinary course of business;


 


(b)           dispositions to any Domestic Loan Party; provided
that the applicable Loan Party complies with the terms of Section 5.12
and the terms of the Security Agreement;


 


(c)           the licensing of intellectual property or know-how on
commercially reasonable terms to customers in the ordinary course of business;


 


(d)           dispositions permitted by Section 6.2, Section
6.3, Section 6.4 and Section 6.8;


 


(e)           sale and leaseback transactions permitted by and
consummated in accordance with Section 6.6;


 


(f)            sales, transfers and other dispositions of assets (other
than Capital Stock in a Subsidiary of the Borrower or any accounts) that are
not permitted by any other clause of this Section; provided that the
aggregate fair market value of all assets sold, transferred or otherwise
disposed of in reliance upon this paragraph (f) shall not exceed $500,000 during
any fiscal year of the Borrower;


 


(g)           dispositions of claims against customers or any other
Person in connection with workouts or bankruptcy, insolvency or other similar
proceedings with respect to such customer or Person;


 


(h)           dispositions of defaulted receivables in the ordinary
course of business for collection;


 


(i)            Capital Stock of any Loan Party issued to any employee,
officer, director, consultant or distributor of any Loan Party; and


 


(j)            sale or disposition of NPSI to a third party;


 


75

















 


provided that all
sales, transfers, leases and other dispositions permitted hereby (other than
those permitted by paragraphs (b), (c) and (d) above) shall be made for fair
value and for at least 75% cash consideration.


 


Section 6.6.           Sale
and Leaseback Transactions.  The Borrower will not, nor will it permit any
of its Subsidiaries to, enter into any arrangement, directly or indirectly,
whereby it shall sell or transfer any property, real or personal, used or useful
in its business, whether now owned or hereinafter acquired, and thereafter rent
or lease such property or other property that it intends to use for
substantially the same purpose or purposes as the property sold or transferred,
except for any transaction by the Borrower or any of its Subsidiaries if the
sale is made for cash consideration in an amount not less than the cost of such
fixed or capital asset and any Indebtedness resulting therefrom is permitted by
Section 6.1.


 


Section
6.7.           Hedging Transactions.  The Borrower will not, nor will it permit any
of its Subsidiaries to, enter into any Hedging Transaction, except (a) Hedging
Transactions entered into by such Person to hedge or mitigate risks to which
such Person has actual exposure (other than those in respect of Capital Stock
of the Borrower), and (b) Hedging Transactions entered into by such Person in
order to effectively cap, collar or exchange interest rates (from fixed to
floating rates, from one floating rate to another floating rate or otherwise)
with respect to any interest-bearing liability or investment of such Person.


 


Section
6.8.           Restricted Payments;
Certain Payments of Indebtedness.


 


(a)           Restricted Payments.  The Borrower will not, nor will it permit its
Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except:


 


(i)            The Borrower or any
of its Subsidiaries may declare and pay dividends with respect to its Capital
Stock payable solely in additional shares of its Capital Stock;


 


(ii)           The Subsidiaries of the Borrower may
make Restricted Payments to any of the Loan Parties;


 


(iii)          The Borrower or any of its
Subsidiaries may:


 


(A)          make repurchases of
stock from current and former employees, consultants or directors (or any such
Person’s heirs, estates and assigns) of the Borrower or any of its
Subsidiaries;


 


(B)           pay cash in lieu of fractional shares
in connection with any exchange, reclassification or conversion of shares;


 


(C)           make Restricted Payments pursuant to
and in accordance with stock option plans or other benefit plans for management
or employees of any Loan Party;


 


76

















 


as long as, in each case, no
Default or Event of Default exists or would result therefrom and the aggregate
amount paid pursuant to this clause (iii) during any fiscal year does not
exceed an aggregate amount equal to $4,000,000;


 


(iv)          The Borrower may
declare and pay dividends with respect to its Capital Stock and redeem and
repurchase shares of its Capital Stock, in accordance with its terms, if:


 


(A)          no Default or Event
of Default exists or would result therefrom;


 


(B)           the Leverage Ratio of the Borrower on
a pro forma basis for the four (4) fiscal quarter period then most recently
ending is not greater than (1) if such Fiscal Quarter is ending on or after
September 30, 2010 and prior to December 31, 2012, 2.75 to 1.00; (2) if such
Fiscal Quarter is ending on or after December 31, 2012 and prior to December
31, 2013, 2.50 to 1.00, and (3) if such Fiscal Quarter is ending on or after
December 31, 2013, 2.25 to 1.00;


 


(C)           the daily average Availability for
the thirty (30) day period prior to the date of calculation after giving pro
forma effect to such Restricted Payment (as if it were paid on the first day of
such period), would equal or exceed $15,000,000; and


 


(D)          the Borrower shall provide to
Administrative Agent, prior to the payment of the Restricted Payment in
question, the following:  (1) notice of
the payment, and (2) a certificate signed by a Responsible Officer of the
Borrower certifying to the Borrower’s calculation of its compliance with
clauses (B) and (C) of this Section.


 


(b)           Certain Payments of Indebtedness.  The Borrower will not, nor will it permit any
of its Subsidiaries to, make or agree to pay or make, directly or indirectly,
any payment or other distribution (whether in cash securities or other
property) of or in respect of principal of, interest on or other payment on any
Indebtedness, or any payment or other distribution (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account
of the purchase, redemption, retirement, acquisition, cancellation or
termination of any Indebtedness, except:


 


(i)            payment of
Indebtedness created under the Loan Documents;


 


(ii)           payment of Indebtedness as and when
due or within 20 days prior to the date due, other than payments in respect of
the Subordinated Indebtedness prohibited by the subordination provisions thereof;


 


(iii)          refinancing of Indebtedness to the
extent permitted by Section 6.1;


 


(iv)          as long as no Default or Event of
Default exists, the repayment of Indebtedness owed by any Loan Party to any
other Loan Party;


 


77

















 


(v)           payment of secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness; and


 


(vi)          prepayment of Indebtedness as long as
the aggregate amount of the Indebtedness prepaid pursuant to this clause (vii)
shall not exceed $100,000 in the aggregate during the entire term of this
Agreement.


 


Section 6.9.           Transactions
with Affiliates.  The
Borrower will not, nor will it permit its Subsidiaries to, sell, lease or
otherwise transfer any assets to, or purchase, lease or otherwise acquire any
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) transactions in the ordinary course of business and
at prices and on terms and conditions not less favorable to the Borrower or
such Subsidiary than could be obtained on an arm’s-length basis from unrelated
third parties, (b) transactions between or among the Borrower and the Loan
Parties not involving any other Affiliate, (c) any Investment permitted by
Section 6.4 and Restricted Payments and payments of Indebtedness
permitted by Section 6.8 and (d) with respect to any Person
serving as an officer, director, employee or consultant of any Loan Party,
(i) the payment of reasonable compensation, benefits or indemnification
liabilities in connection with his or her services in such capacity,
(ii) the making of advances for travel or other business expenses in the
ordinary course of business or (iii) such Person’s participation in any
benefit or compensation plan; provided, that the Borrower or any such
Loan Party to a transaction arising under this Section 6.9 with an
aggregate value in excess of $25,000,000 will promptly provide the
Administrative Agent notice of such transaction and any additional information
reasonably requested by the Administrative Agent.


 


Section
6.10.        Restrictive Agreements.  The Borrower will not, nor will it permit any
of its Subsidiaries to, directly or indirectly, enter into, incur or permit to
exist any agreement or other arrangement that prohibits, restricts or imposes
any condition upon (a) the ability of the Borrower or any of its Subsidiaries
to create, incur or permit to exist any Lien in favor of the Administrative
Agent and Lenders upon any of its property or assets, or (b) the ability of any
of the Borrower’s Subsidiaries to pay dividends or other distributions with
respect to any shares of its Capital Stock or to make or repay loans or
advances to the Borrower or any of its Subsidiaries or to Guarantee
Indebtedness of the Borrower or any of its Subsidiaries; provided that
(i) the foregoing shall not apply to restrictions and conditions imposed by law
or by any Loan Document, (ii) the foregoing shall not apply to restrictions and
conditions existing on the date hereof identified on Schedule 6.10 (but
shall apply to any extension or renewal of, or any amendment or modification
expanding the scope of, any such restriction or condition), (iii) the foregoing
shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary or other assets pending such
sale, provided such restrictions and conditions apply only to the Subsidiary or
other assets that is to be sold and such sale is permitted hereunder, (iv)
clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness or other Liens
permitted by this Agreement if such restrictions or conditions apply only to
the assets securing such Indebtedness or encumbered by such Lien, and (v)
clause (a) of the foregoing shall not apply to customary provisions in leases
and other contracts restricting the assignment thereof.


 


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Section
6.11.        Amendments to
Organizational Documents; Amendment to Subordinated Indebtedness.


 


(a)           The Borrower will not, nor will it
permit any of its Subsidiaries to, amend or otherwise modify any of the terms
of any preferred stock it has issued, if the effect of such modification would
be to:  (i) increase the amount or
nature of any cash dividends payable with respect to such preferred stock;
(ii) accelerate the dates upon which payments are due on such preferred
stock; (iii) change the redemption provisions applicable to such preferred stock;
or (iv) amend or otherwise modify any other term if such change or amendment
would materially increase the obligations of the obligor or confer additional
material rights on the holder of such preferred stock in a manner adverse to
the Borrower or any of the Subsidiaries, the Administrative Agent or any
Lender.


 


(b)           The Borrower will not change or amend the terms of any
Subordinated Indebtedness incurred under the terms of Section 6.1,
if the effect of such amendment is to: 
(i) increase the interest rate on such Subordinated Indebtedness;
(ii) shorten the time of payments of principal or interest due thereunder;
(iii) change any event of default or any covenant to a materially more onerous
or restrictive provision; (iv) change the subordination provisions thereof (or
the subordination terms of any guaranty thereof); (v) change or amend any other
term if such change or amendment would materially increase the obligations of
the obligor or confer additional material rights on the holders of such
Subordinated Indebtedness in a manner materially adverse to Administrative
Agent or any Lender as senior creditors or the interests of the Lenders under
any Loan Document in any respect; or (vi) in any manner amend any term of such
Subordinated Indebtedness relating to the prohibition of the creation or
assumption of any Lien upon the properties or assets of the Borrower or any of
its Subsidiaries or relating to the prohibition of creation, existence or
effectiveness of any consensual encumbrance or restriction of any kind on the
ability of the Borrower or any of its Subsidiaries to (A) pay dividends or make
any other distribution; (B) subject to subordination provisions, pay any
Subordinated Indebtedness owed to the Borrower or any of its Subsidiaries;
(C) make loans or advances to the Borrower or any of its Subsidiaries; or
(D) transfer any of its property or assets to the Borrower or any of its
Subsidiaries.


 


Section 6.12.        Change
in Fiscal Year.  Neither the
Borrower nor any of its Subsidiaries will have a fiscal year that does not end
on December 31st of each year, nor a fiscal quarter that does
not end on the last day of March, June, September or December, as applicable.


 


Section
6.13.        Deposit and Investment
Accounts.  Other than
any Excluded Account, the Borrower shall not, and shall not permit any of its
Subsidiaries to, establish or maintain any deposit account, securities account
or commodities account unless the Administrative Agent shall have received a
Deposit Account Control Agreement or an Investment Control Agreement, as
applicable, in form and substance reasonably satisfactory to the Administrative
Agent, in respect of such deposit account, securities account or commodities
account, as applicable.


 


79

















 


ARTICLE VII


 


FINANCIAL COVENANTS


 


The Borrower covenants and
agrees that so long as any Lender or Issuing Bank has a Commitment hereunder or
any Obligation remains unpaid or outstanding:


 


Section 7.1.           Leverage
Ratio.  As of the
last day of each Fiscal Quarter set forth in the table below, the Borrower
shall not permit the Leverage Ratio to exceed the ratio set forth in the table
below opposite the applicable Fiscal Quarter end:


 


	
  Fiscal Quarter End

  	
   

  	
  Ratio

  
	
  September
  30, 2010 and each Fiscal Quarter ending thereafter through and including
  September 30, 2012

  	
   

  	
  3.00
  to 1.00

  
	
  December
  31, 2012 and each Fiscal Quarter ending thereafter through and including
  September 30, 2013

  	
   

  	
  2.75
  to 1.00

  
	
  December
  31, 2013 and thereafter

  	
   

  	
  2.50
  to 1.00

  



 


Section 7.2.           Fixed
Charge Coverage Ratio.  As
of the last day of each Fiscal Quarter set forth in the table below, the
Borrower shall not permit the Fixed Charge Coverage Ratio to be less than the
ratio set forth in the table below opposite the applicable fiscal quarter end:


 


	
  Fiscal Quarter End

  	
   

  	
  Ratio

  
	
  September
  30, 2010 and each Fiscal Quarter ending thereafter through and including
  September 30, 2012

  	
   

  	
  1.25
  to 1.00

  
	
  December
  31, 2012 and thereafter

  	
   

  	
  1.50
  to 1.00

  



 


ARTICLE VIII


 


EVENTS OF DEFAULT


 


Section 8.1.           Events
of Default.  If any of
the following events (each an “Event of Default”) shall occur:


 


(a)           the Borrower shall fail to pay any
principal of any Loan or any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or otherwise;


 


(b)           the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause (a) of
this Section 8.1) payable under


 


80

















 


this Agreement, any other
Loan Document or any Hedging Obligation, when and as the same shall become due
and payable, and such failure shall continue unremedied for a period of three
Business Days;


 


(c)           any representation, warranty or certification made or
deemed made by or on behalf of the Borrower or any of its Subsidiaries in or in
connection with any Loan Document or any amendment or modification thereof or
waiver thereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, shall prove to have
been incorrect in any material respect when made or deemed made;


 


(d)           Any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in Sections 5.1(a), (b)
or (c), 5.2 (a) or (d), 5.3 (with respect to the
existence of such Loan Party) or 5.13, or in Articles VI or VII;


 


(e)           any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document (other than
those specified in clause (a), (b) or (d)  of this Section 8.1), and such failure
shall continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request
of any Lender);


 


(f)            the Borrower or any of its Subsidiaries shall fail to
make any payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become due and
payable after the expiration of any applicable period of grace and/or notice
and cure;


 


(g)           any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its
or their behalf to cause any Material Indebtedness to become due, or to require
the prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity after the expiration of any applicable period of grace
and/or notice and cure, in each case, regardless of whether such event or
condition is waived by the holder or holders of such Material Indebtedness; provided
that this paragraph (g) shall not apply to secured Indebtedness that becomes
due as a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness (so long as such Indebtedness is paid pursuant to
such sale or transfer);


 


(h)           an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any of its Subsidiaries or its
debts, or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of its Subsidiaries or
for a substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;


 


81

















 


(i)            the Borrower or any of its Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii)
consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or petition described in clause (h) of this Section
8.1, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or
any of its Subsidiaries or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;


 


(j)            the Borrower or any of its Subsidiaries shall become
unable, admit in writing its inability or fail generally to pay its debts as
they become due;


 


(k)           one or more judgments for the payment of money in an
aggregate amount in excess of $500,000 (to the extent not covered by insurance)
shall be rendered against the Borrower, any of its Subsidiaries or any
combination thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively stayed, or any
action shall be legally taken by a judgment creditor to attach or levy upon any
assets of the Borrower or any of its Subsidiaries to enforce any such judgment;


 


(l)            an ERISA Event shall have occurred that when taken
together with all other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and the Subsidiaries in an
aggregate amount exceeding $250,000;


 


(m)          with respect to any material portion of the Collateral, any
Lien purported to be created thereon under any Loan Document shall cease to be,
or shall be asserted by any Loan Party not to be, a valid and perfected Lien
thereon, with the priority required hereby, except (i) as a result of the sale
or other disposition of the applicable Collateral in a transaction permitted
under the Loan Documents, (ii) as a result of the Administrative Agent’s
failure to maintain possession of any stock certificates, promissory notes or
other instruments delivered to it under the Loan Documents or (iii) except as
otherwise provided in the Loan Documents;


 


(n)           any Loan Document after delivery thereof shall for any
reason, except to the extent permitted thereby, cease to be in full force and
effect and valid, binding and enforceable in accordance with its terms against
any Loan Party thereto (subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered
in a proceeding in equity or at law) after its date of execution, or the
Borrower or any Guarantor shall so state in writing;


 


(o)           the Borrower or any Guarantor shall suffer any casualty
loss and shall, as a result, be unable for a period longer than 15 Business
Days to conduct a material portion of its business in the ordinary course; or


 


(p)           a Change in Control shall occur;


 


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then, and in every such
event (other than an event described in clause (h) or (i) of this Section), and
at any time thereafter during the continuance of such event, the Administrative
Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take any of the following actions, at the same or different
times:  (i) terminate the Commitments,
and thereupon the Commitments shall terminate immediately, (ii) declare the
Loans then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest, notice of intent
to accelerate, notice of acceleration or other notice of any kind, all of which
are hereby waived by the Borrower, (iii) create a Letter of Credit reserve
account as set forth in Section 2.14, (iv) exercise all remedies
contained in any other Loan Document, and (v) exercise any other remedies
available at law or in equity; and in case of any event with respect to the
Borrower described in clause (h) or (i) of this Section, the Commitments shall
automatically terminate and the principal of the Loans and Letters of Credit
then outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest, notice of intent to
accelerate, notice of acceleration or other notice of any kind, all of which
are hereby waived by the Borrower.  In
addition, if any Event of Default shall occur and be continuing, the
Administrative Agent may (and if directed by the Required Lenders, shall)
foreclose or otherwise enforce any Lien granted to the Administrative Agent,
for the benefit of the Secured Parties, to secure payment and performance of
the Obligations in accordance with the terms of the Loan Documents and exercise
any and all rights and remedies afforded by the laws of the State of New York
or any other jurisdiction, by any of the Loan Documents, by equity, or
otherwise.


 


Section 8.2.           Performance
by the Administrative Agent; Advances to Cover Returned Checks and Other Items.  If any Loan Party shall (a) fail to perform
any covenant or agreement contained in Section 5.3 relating to the
continued existence of the Borrower and each of the Subsidiaries, in Sections
5.6 or 6.2 of this Agreement, (b) fail to preserve, perfect and
protect Administrative Agent’s security interest in the Collateral, or in
Section  3 of the Security
Agreement, the Administrative Agent may, and shall at the direction of the
Required Lenders, perform or attempt to perform such covenant or agreement on
behalf of the applicable Loan Party.  In
such event, the Borrower shall, at the request of the Administrative Agent
promptly pay any amount expended by the Administrative Agent or the Lenders in
connection with such performance or attempted performance to the Administrative
Agent, together with interest thereon at the interest rate provided for in Section
2.3(b) from and including the date of such expenditure to but excluding the
date such expenditure is paid in full. 
Notwithstanding the foregoing, it is expressly agreed that neither the Administrative
Agent nor any Lender shall have any liability or responsibility for the
performance of any obligation of any Loan Party under any Loan Document,
contract or agreement.  Under certain of
the Loan Documents that the Administrative Agent has or may enter into with
parties maintaining deposit, commodity or security accounts that are Collateral
and under certain payoff letters for Indebtedness being refinanced by the
Loans, the Administrative Agent may be obligated or permitted to pay certain
amounts to the financial institution, brokers or other Person party thereto
from time to time (including fees owed to such Persons arising from services,
amounts sufficient to reimburse such parties for the amount of any item
deposited in or credited to the related account which is


 


83

















 


returned unpaid and margin
calls with respect to commodity contracts). 
In the event the Administrative Agent is required to pay or elects to
pay any such amounts, the Administrative Agent shall notify the Borrower and
the Borrower shall promptly, but in no event later than five Business Days
after notice thereof, pay to the Administrative Agent any amount so expended by
the Administrative Agent, together with interest at the Default Rate from and
including the date of such expenditure to, but excluding the date that such
expenditure is paid in full.


 


ARTICLE IX


 


THE ADMINISTRATIVE AGENT


 


Section 9.1.           Appointment
of Administrative Agent.


 


(a)           Each Lender irrevocably appoints
SunTrust Bank as the Administrative Agent and authorizes it to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent under this Agreement and the other Loan Documents,
together with all such actions and powers that are reasonably incidental
thereto.  The Administrative Agent may
perform any of its duties hereunder or under the other Loan Documents by or
through any one or more sub-agents or attorneys-in-fact appointed by the Administrative
Agent.  The Administrative Agent and any
such sub-agent or attorney-in-fact may perform any and all of its duties and
exercise its rights and powers through their respective Related Parties.  The exculpatory provisions set forth in this
Article shall apply to any such sub-agent or attorney-in-fact and the Related
Parties of the Administrative Agent, any such sub-agent and any such
attorney-in-fact and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.


 


(b)           The Issuing Bank shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent
may agree at the request of the Required Lenders to act for the Issuing Bank
with respect thereto; provided, that the Issuing Bank shall have all the
benefits and immunities (i) provided to the Administrative Agent in this
Article with respect to any acts taken or omissions suffered by the Issuing
Bank in connection with Letters of Credit issued by it or proposed to be issued
by it and the application and agreements for letters of credit pertaining to
the Letters of Credit as fully as if the term “Administrative Agent” as used in
this Article included the Issuing Bank with respect to such acts or omissions
and (ii) as additionally provided in this Agreement with respect to the Issuing
Bank.


 


Section 9.2.           Nature
of Duties of Administrative Agent.  The Administrative Agent shall not have any
duties or obligations except those expressly set forth in this Agreement and
the other Loan Documents.  Without
limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action
or exercise any discretionary powers, except those discretionary rights and
powers expressly contemplated by the Loan Documents that the Administrative
Agent is required to exercise in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the


 


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circumstances as provided in
Section 10.2), and (c) except as expressly set forth in the
Loan Documents, the Administrative Agent shall not have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating
to the Borrower or any of its Subsidiaries that is communicated to or obtained
by the Administrative Agent or any of its Affiliates in any capacity.  The Administrative Agent shall not be liable
for any action taken or not taken by it, its sub-agents or attorneys-in-fact
with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.2) or in the absence of its
own gross negligence or willful misconduct. 
The Administrative Agent shall not be responsible for the negligence or
misconduct of any sub-agents or attorneys-in-fact selected by it with
reasonable care.  The Administrative
Agent shall not be deemed to have knowledge of any Default or Event of Default
unless and until written notice thereof (which notice shall include an express
reference to such event being a “Default” or “Event of Default” hereunder) is
given to the Administrative Agent by the Borrower or any Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or
in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements, or other terms and conditions set forth in
any Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article III
or elsewhere in any Loan Document, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.  The Administrative Agent may consult with
legal counsel (including counsel for the Borrower) concerning all matters
pertaining to such duties.


 


Section 9.3.           Lack of Reliance on the
Administrative Agent.  Each
of the Lenders acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. 
Each of the Lenders also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, continue to make
its own decisions in taking or not taking of any action under or based on this
Agreement, any related agreement or any document furnished hereunder or
thereunder.


 


Section 9.4.           Certain Rights of the
Administrative Agent.  If
the Administrative Agent shall request instructions from the Required Lenders
with respect to any action or actions (including the failure to act) in
connection with this Agreement, the Administrative Agent shall be entitled to
refrain from such act or taking such act, unless and until it shall have
received instructions from such Lenders; and the Administrative Agent shall not
incur liability to any Person by reason of so refraining.  Without limiting the foregoing, no Lender
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting hereunder
in accordance with the instructions of the Required Lenders where required by
the terms of this Agreement.


 


Section 9.5.           Reliance by Administrative Agent.  The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
believed by it to be


 


85

















 


genuine and to have been
signed, sent or made by the proper Person. 
The Administrative Agent may also rely upon any statement made to it
orally or by telephone and believed by it to be made by the proper Person and
shall not incur any liability for relying thereon.  The Administrative Agent may consult with
legal counsel (including counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or not taken by it in accordance with the advice of such counsel,
accountants or experts.


 


Section 9.6.           The Administrative Agent in its
Individual Capacity.  The
bank serving as the Administrative Agent shall have the same rights and powers
under this Agreement and any other Loan Document in its capacity as a Lender as
any other Lender and may exercise or refrain from exercising the same as though
it were not the Administrative Agent; and the terms “Lenders”, “Required
Lenders”, or any similar terms shall, unless the context clearly otherwise
indicates, include the Administrative Agent in its individual capacity.  The bank acting as the Administrative Agent
and its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrower or any of its Subsidiaries or
Affiliate of the Borrower as if it were not the Administrative Agent hereunder.


 


Section 9.7.           Successor Administrative Agent.


 


(a)           The Administrative Agent may resign
at any time by giving notice thereof to the Lenders and the Borrower.  Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Administrative Agent,
subject to the approval by the Borrower provided that no Default or Event of
Default shall exist at such time.  If no
successor Administrative Agent shall have been so appointed, and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of resignation, then the retiring Administrative Agent may,
on behalf of the Lenders (but subject to the reasonable approval of the
Borrower provided that no Default or Event of Default shall then exist),
appoint a successor Administrative Agent, which shall be a commercial bank or
financial institution organized under the laws of the United States of America
or any state thereof or a bank or financial institution which maintains an
office in the United States, having a combined capital and surplus of at least
$500,000,000.


 


(b)           Upon the acceptance of its appointment as the
Administrative Agent hereunder by a successor, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement and the other Loan Documents. 
If within forty-five (45) days after written notice is given of the
retiring Administrative Agent’s resignation under this Section 9.7
no successor Administrative Agent shall have been appointed and shall have
accepted such appointment, then on such forty-fifth (45th) day (i) the retiring
Administrative Agent’s resignation shall become effective, (ii) the
retiring Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Required Lenders shall
thereafter perform all duties of the retiring Administrative Agent under the
Loan Documents until such time as the Required Lenders appoint a successor
Administrative Agent as provided above. 
After any retiring Administrative Agent’s resignation hereunder, the
provisions of this Article shall continue in effect for the benefit of
such retiring Administrative Agent and


 


86

















 


its representatives and
agents in respect of any actions taken or not taken by any of them while it was
serving as the Administrative Agent.


 


(c)           In addition to the foregoing, if a Lender becomes, and
during the period it remains, a Defaulting Lender, and if any Default has
arisen from a failure of the Borrower to comply with Section 2.18(a),
then the Issuing Bank and the Swingline Lender may, upon prior written notice
to the Borrower and the Administrative Agent, resign as Issuing Bank or as
Swingline Lender, as the case may be, effective at the close of business
Atlanta, Georgia time on a date specified in such notice (which date may not be
less than five Business Days after the date of such notice).


 


Section 9.8.           Authorization
to Execute other Loan Documents.  Subject to the provisions of Section 10.2,
each Lender hereby authorizes the Administrative Agent to execute on behalf of
all Lenders all Loan Documents other than this Agreement.


 


Section 9.9.           Agents.  Each Lender hereby designates SunTrust
Robinson Humphrey, Inc. as Left Lead Bookrunner and agrees that the Left
Lead Bookrunner shall have no duties or obligations under any Loan Documents to
any Lender or to any Loan Party.


 


ARTICLE X


 


MISCELLANEOUS


 


Section 10.1.        Notices.


 


(a)           Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications to any party herein to be effective shall be in
writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:


 


	
   

  	
  To any Loan Party:

  	
  NetSpend Corporation

  
	
   

  	
   

  	
  701 Brazos Street,
  Suite 1200

  
	
   

  	
   

  	
  Austin, TX 78701

  
	
   

  	
   

  	
  Attention:

  	
  George Gresham

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  	
  Fax: (512) 469-9951

  
	
   

  	
   

  	
   

  
	
   

  	
  With a copy to:

  	
  Baker Botts LLP

  
	
   

  	
   

  	
  One Shell Plaza

  
	
   

  	
   

  	
  901 Louisiana Street

  
	
   

  	
   

  	
  Houston, Texas 77002-4995

  
	
   

  	
   

  	
  Attention: Shalla Prichard

  
	
   

  	
   

  	
  Fax: (713) 229-2783

  
	
   

  	
   

  	
   

  
	
   

  	
  To the Administrative
  Agent:

  	
  SunTrust Bank

  
	
   

  	
   

  	
  303 Peachtree Street, N.
  E., 3rd Floor

  
	
   

  	
   

  	
  Atlanta, Georgia 30308

  



 


87

















 


	
   

  	
   

  	
  Attention: David Bennett

  
	
   

  	
   

  	
  Fax:  (404) 581-1775

  
	
   

  	
   

  	
   

  
	
   

  	
  With a copy to:

  	
  SunTrust Bank

  
	
   

  	
   

  	
  303 Peachtree Street, N.
  E., 25th Floor

  
	
   

  	
   

  	
  Atlanta, Georgia 30308

  
	
   

  	
   

  	
  Attention: Doug Weltz

  
	
   

  	
   

  	
  Fax:  (404) 724-3879

  
	
   

  	
   

  	
   

  
	
   

  	
  To any other Lender:

  	
  The address set forth on
  such Lender’s signature page to this Agreement or the Assignment and
  Acceptance Agreement executed by such Lender (a copy of which shall be
  provided to the Borrower)

  



 


Any party hereto may change
its address or facsimile number for notices and other communications hereunder
by notice to the other parties hereto. 
All such notices and other communications shall be effective when
delivered; provided, that notices delivered to the Administrative Agent
shall not be effective until actually received by such Person at its address
specified in this Section 10.1. 
Notices may be delivered by a party or its legal counsel.


 


(b)           Any agreement of the Administrative
Agent and the Lenders herein to receive certain notices by telephone or
facsimile is solely for the convenience and at the request of the
Borrower.  The Administrative Agent and
the Lenders shall be entitled to rely on the authority of any Person purporting
to be a Person authorized by the Borrower to give such notice and the Administrative
Agent and Lenders shall not have any liability to the Borrower or other Person
on account of any action taken or not taken by the Administrative Agent or the
Lenders in reliance upon such telephonic or facsimile notice.  The obligation of the Borrower to repay the
Loans and all other Obligations hereunder shall not be affected in any way or
to any extent by any failure of the Administrative Agent and the Lenders to
receive written confirmation of any telephonic or facsimile notice or the
receipt by the Administrative Agent and the Lenders of a confirmation which is
at variance with the terms understood by the Administrative Agent and the
Lenders to be contained in any such telephonic or facsimile notice.


 


Section 10.2.        Waiver;
Amendments.


 


(a)           No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
or any other Loan Document, and no course of dealing between the Borrower and
the Administrative Agent or any Lender, shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power or any
abandonment or discontinuance of steps to enforce such right or power, preclude
any other or further exercise thereof or the exercise of any other right or
power hereunder or thereunder.  The
rights and remedies of the Administrative Agent and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies provided by law.  No
waiver of any provision of this Agreement or any other Loan Document or consent
to any departure by the Borrower therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section 10.2,
and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. 
Without limiting the


 


88

















 


generality of the foregoing,
the making of a Loan shall not be construed as a waiver of any Default or Event
of Default, regardless of whether the Administrative Agent, any Lender may have
had notice or knowledge of such Default or Event of Default at the time.


 


(b)           No amendment or waiver of any provision of this Agreement
or the other Loan Documents, nor consent to any departure by any Loan Party
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the applicable Loan Party and the Required Lenders or the
applicable Loan Party and the Administrative Agent with the consent of the
Required Lenders and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
that no amendment or waiver shall: (i) increase the Commitment of any
Lender without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the date fixed for any payment of any principal
of, or interest on, any Loan or interest thereon or any fees hereunder or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date for the termination or reduction of any Commitment, without the
written consent of each Lender affected thereby, (iv) change Section 2.10
in a manner that would alter the pro rata sharing of payments required thereby
in any manner adverse to any Lender, without the written consent of each
Lender, (v) change any of the provisions of this Section 10.2
or the definition of “Required Lenders” or any other provision hereof
specifying the number or percentage of Lenders which are required to waive,
amend or modify any rights hereunder or make any determination or grant any
consent hereunder, without the consent of each Lender; (vi) release any
guarantor or limit the liability of any such guarantor under any guaranty
agreement (other than pursuant to the terms of such guaranty agreement),
without the written consent of each Lender; (vii) release all or any
substantial portion of the Collateral (if any) securing any of the Obligations
(other than pursuant to the terms of the Collateral Documents) or agree to
subordinate any Lien in such Collateral to any other creditor of the Borrower
or any of its Subsidiaries, without the written consent of each Lender; or (viii) consent
to the subordination of any of the Obligations to the payment of any other
Indebtedness of the Borrower or any of the Subsidiaries; provided  further,
that no such agreement shall amend, modify or otherwise affect the rights,
duties or obligations of the Administrative Agent without the prior written
consent of such Person.  Notwithstanding
anything to the contrary herein, (i) no Defaulting Lender shall have any
right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender and (ii) no Defaulting Lender shall be
included as a Lender for purposes of the calculation of “Required Lenders.”  Notwithstanding anything contained herein to
the contrary, this Agreement may be amended and restated without the consent of
any Lender (but with the consent of the Borrower and the Administrative Agent)
if, upon giving effect to such amendment and restatement, such Lender shall no
longer be a party to this Agreement (as so amended and restated), the
Commitments of such Lender shall have terminated (but such Lender shall
continue to be entitled to the benefits of Sections 2.8(b), 2.9, 2.17
and 10.3), such Lender shall have no other commitment or other obligation
hereunder and shall have been paid in full all principal, interest and other
amounts owing to it or accrued for its account under this Agreement.  For the avoidance of doubt, no Lender (or any
Affiliate of a Lender) shall have the right to vote on any matter with respect
to this Agreement or any other Loan Document at any time after such Lender
(and, consequently, any such Affiliate) ceases to be a Lender hereunder even if
any Obligation owed to such Lender (or such Affiliate) remains outstanding.


 


89

















 


Section 10.3.        Expenses;
Indemnification.


 


(a)           The Borrower shall pay (i) all
reasonable, out-of-pocket costs and expenses of the Administrative Agent and
its Affiliates, including the reasonable fees, charges and disbursements of one
transaction counsel (and any local counsel deemed necessary by the
Administrative Agent) for the Administrative Agent and its Affiliates, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of the Loan Documents and any amendments,
modifications or waivers thereof (whether or not the transactions contemplated
in this Agreement or any other Loan Document shall be consummated), (ii) all
out-of-pocket costs and expenses (including, without limitation, the reasonable
fees, charges and disbursements of outside counsel) incurred by the
Administrative Agent or any Lender in connection with the enforcement or
protection of its rights in connection with this Agreement, including its
rights under this Section 10.3, or in connection with the Loans
made hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loan.


 


(b)           The Borrower shall indemnify the Administrative Agent (and
any sub-agent thereof), each Lender and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee), incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by the
Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or the use or proposed use of the proceeds
therefrom, (iii) any actual or alleged presence or Release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the
Borrower or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee or (y) result
from a claim brought by the Borrower or any other Loan Party against an
Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or under any other Loan Document, if the Borrower or such Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.


 


(c)           The Borrower shall pay, and hold the Administrative Agent
and each of the Lenders harmless from and against, any and all present and
future stamp, documentary, and other similar taxes with respect to this
Agreement and any other Loan Documents, any collateral described therein, or
any payments due thereunder, and save the Administrative Agent and each Lender
harmless from and against any and all liabilities with respect to or resulting
from the Borrower’s delay or omission to pay such taxes.


 


90

















 


(d)           To the extent that the Borrower fails to pay any amount
required to be paid to the Administrative Agent under clauses (a), (b) or (c) hereof,
each Lender severally agrees to pay to the Administrative Agent, such Lender’s
Pro Rata Share (determined as of the time that the unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided, that the
unreimbursed expense or indemnified payment, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the
Administrative Agent in its capacity as such.


 


(e)           To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to actual or direct damages) arising out of, in connection with or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated therein, any Loan or the use of proceeds
thereof.


 


(f)            All amounts due under this Section 10.3 shall
be payable promptly after written demand therefor.


 


Section 10.4.        Successors
and Assigns.


 


(a)           The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender,
and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of
paragraph (b) of this Section, (ii) by way of participation in
accordance with the provisions of paragraph (d) of this Section or (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of paragraph (f) of this Section (and any other attempted assignment
or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in paragraph (d) of this Section and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


 


(b)           Any Lender may at any time assign to one or more assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it); provided
that any such assignment shall be subject to the following conditions:


 


(i)            Minimum Amounts.


 


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


 


91

















 


(B)           in any case not described in
paragraph (b)(i)(A) of this Section, the aggregate amount of the
Commitment (which for this purpose includes Loans and Revolving Credit Exposure
outstanding thereunder) or, if the applicable Commitment is not then in effect,
the principal outstanding balance of the Loans and Revolving Credit Exposure of
the assigning Lender subject to each such assignment (determined as of the date
the Assignment and Acceptance with respect to such assignment is delivered to
the Administrative Agent or, if “Trade Date” is specified in the Assignment and
Acceptance, as of the Trade Date) shall not be less than $5,000,000 and in
integral multiples of $1,000,000, unless the Administrative Agent and, so long
as no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed); provided
that the Borrower shall be deemed to have consented to any such assignment
unless it shall object thereto by written notice to the Administrative Agent
within five (5) Business Days after having received notice thereof.


 


(ii)           Proportionate
Amounts.  Each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement with respect to the Loans,
Revolving Credit Exposure or the Commitment assigned, provided that this
clause (ii) shall not prohibit any Lender from assigning all or a
portion of its rights and obligations among separate facilities on a non-pro
rata basis.


 


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


 


(A)          the consent of the
Borrower (such consent not to be unreasonably withheld or delayed) shall be
required unless (x) an Event of Default
has occurred and is continuing at the time of such assignment; or (y) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided,
however, that any consent of the Borrower otherwise required hereunder
shall not be required in conjunction with a successful syndication of the Loans
(as determined by the Administrative Agent), which may occur prior to or on the
Closing Date; provided, further that the Borrower shall be deemed to
have consented to any such assignment unless it shall object thereto by written
notice to the Administrative Agent within five (5) Business Days after
having received notice thereof; and


 


(B)           the consent of the Administrative
Agent (such consent not to be unreasonably withheld or delayed) shall be required
for assignments to a Person that is not at such time already a Lender, an
Affiliate of a Lender or an Approved Fund.


 


(iv)          Assignment and
Acceptance.  The parties to each
assignment shall deliver to the Administrative Agent (A) a duly executed
Assignment and Acceptance, (B) a processing and recordation fee of $3,500
(to be paid by the assignor or the assignee and not by the Borrower), (C) an Administrative


 


92

















 


Questionnaire
unless the assignee is already a Lender and (D) the documents required
under Section 2.8(b)(v) if such assignee is a Foreign Lender.


 


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


 


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


 


Subject to acceptance and
recording thereof by the Administrative Agent pursuant to paragraph (c) of
this Section 10.4, from and after the effective date specified in
each Assignment and Acceptance, the assignee thereunder shall be a party to
this Agreement and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 2.8(b), 2.9,
2.17 and 10.3 with respect to facts and circumstances occurring
prior to the effective date of such assignment. 
Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (d) of this Section 10.4.


 


(c)           The Administrative Agent, acting
solely for this purpose as an agent of the Borrower, shall maintain at one of
its offices in Atlanta, Georgia, a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitments of, and principal amount of the Loans and
Revolving Credit Exposure owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”). 
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.


 


(d)           Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent sell participations to any
Person (other than a natural person, the Borrower or any of the Borrower’s
Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion
of such Lender’s rights and/or obligations under this Agreement (including all
or a portion of its Commitment and/or the Loans owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) except as
otherwise provided in this Section 10.4(d) the Borrower, the
Administrative Agent, and the Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.


 


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(e)           Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver with respect to the
following to the extent affecting such Participant: (i) increase the
Commitment of any Lender without the consent of such Lender, (ii) reduce
the principal amount of any Loan or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the date fixed for any payment of any
principal of, or interest on, any Loan or any fees hereunder or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date for
the termination or reduction of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.10 in a
manner that would alter the pro rata sharing of payments required thereby, (v) change
any of the provisions of this Section 10.4 or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of
Lenders which are required to waive, amend or modify any rights hereunder or make
any determination or grant any consent hereunder, without the consent of each
Lender; (vi) release any guarantor or limit the liability of any such
guarantor under any guaranty agreement without the written consent of each
Lender except to the extent such release is expressly provided under the terms
of the Guaranty Agreement; or (vii) release all or substantially all
Collateral (if any) securing any of the Obligations.  Subject to paragraph (e) of this Section 10.4,
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.8(b), 2.9, and 2.17 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section 10.4, provided that the Participant must
comply with all provisions thereof as if it were a Lender and agrees, for the
benefit of the Borrower, to be subject to the provisions of Section 2.8(b)(v).  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.7  as though it were a Lender, provided such
Participant agrees to be subject to Section 2.10 as though it were
a Lender.


 


(f)            A Participant shall not be entitled to receive any
greater payment under Section 2.8(b) and Section 2.17
than the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written
consent.  A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.8  unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.8(b)(v) as
though it were a Lender.


 


(g)           Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.


 


94














 


Section 10.5.        Governing
Law; Jurisdiction; Consent to Service of Process.


 


(a)           This Agreement and the other Loan
Documents shall be construed in accordance with and be governed by the law
(without giving effect to the conflict of law principles thereof) of the State
of New York.


 


(b)           The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the non-exclusive jurisdiction of the
United States District Court of the Southern District of New York, and of the
Supreme Court of the State of New York sitting in New York county and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any other Loan Document or the transactions
contemplated hereby or thereby, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York state court or, to the extent permitted by
applicable law, such Federal court.  Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.  Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
any other Loan Document against the Borrower or its properties in the courts of
any jurisdiction.


 


(c)           The Borrower irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of any
such suit, action or proceeding described in paragraph (b) of this Section
10.5 and brought in any court referred to in paragraph (b) of this Section
10.5.  Each of the parties hereto
irrevocably waives, to the fullest extent permitted by applicable law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.


 


(d)           Each party to this Agreement irrevocably consents to the
service of process in the manner provided for notices in Section 10.1.  Nothing in this Agreement or in any other
Loan Document will affect the right of any party hereto to serve process in any
other manner permitted by law.


 


Section 10.6.        WAIVER
OF JURY TRIAL.  EACH PARTY
HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY).  EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


95

















 


Section
10.7.        Right of Setoff.  In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
each Lender shall have the right, at any time or from time to time upon the
occurrence and during the continuance of an Event of Default, without prior
notice to the Borrower, any such notice being expressly waived by the Borrower
to the extent permitted by applicable law, to set off and apply against all
deposits (general or special, time or demand, provisional or final) of the
Borrower at any time held or other obligations at any time owing by such Lender
to or for the credit or the account of the Borrower against any and all
Obligations held by such Lender irrespective of whether such Lender shall have
made demand hereunder and although such Obligations may be unmatured.  Each Lender agree promptly to notify the
Administrative Agent and the Borrower after any such set-off and any
application made by such Lender; provided, that the failure to give such
notice shall not affect the validity of such set-off and application.


 


Section 10.8.        Counterparts; Integration.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same
instrument.  In proving this Agreement or
any other Loan Document in any judicial proceedings, it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom such enforcement is sought. 
Any signatures delivered by a party by facsimile transmission or by
e-mail transmission of an electronic file in Adobe Corporation’s Portable
Document Format or PDF file shall be deemed an original signature hereto.  The foregoing shall apply to each other Loan
Document mutatis mutandis.  This Agreement, the Fee Letter, the other
Loan Documents, and any separate letter agreement(s) relating to any fees
payable to the Administrative Agent constitute the entire agreement among the
parties hereto and thereto regarding the subject matters hereof and thereof and
supersede all prior agreements and understandings, oral or written, regarding
such subject matters.


 


Section
10.9.        Survival.  All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated.  The provisions of Sections 2.8(b), 2.17,
and 10.3 and Article IX shall survive and remain in full force
and effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans, the expiration or termination of the
Commitments or the termination of this Agreement or any provision hereof.  All representations and warranties made
herein, in the certificates, reports, notices, and other documents delivered
pursuant to this Agreement shall survive the execution and delivery of this
Agreement and the other Loan Documents, and the making of the Loans.


 


Section
10.10.      Severability.  Any provision of this Agreement or any other
Loan Document held to be illegal, invalid or unenforceable in any jurisdiction,
shall, as to such


 


96

















 


jurisdiction, be ineffective
to the extent of such illegality, invalidity or unenforceability without
affecting the legality, validity or enforceability of the remaining provisions
hereof or thereof; and the illegality, invalidity or unenforceability of a
particular provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.


 


Section
10.11.      Confidentiality.  Each of the Administrative Agent, the Issuing
Bank and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its
and its Affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested or required by any regulatory
agency or authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party to this Agreement or any other Loan Document, (e) in connection with
the exercise of any remedies hereunder or under any other Loan Document or any
suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) to any
assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (g) with the consent of the Borrower or (h) to the
extent such Information (1) becomes publicly available other than as a
result of a breach of this Section 10.11 or (2) becomes
available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Borrower.  For the purposes of this Section 10.11,
“Information” means all information received from the Borrower or any of
its Subsidiaries relating to the Borrower’s or any of its Subsidiaries’ businesses,
other than any such information that is available to the Administrative Agent,
the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure
by the Borrower or any of its Subsidiaries; provided  that, in the
case of information received from the Borrower or any of its Subsidiaries after
the date hereof, such information is hereby deemed at the time of delivery as
confidential subject to the foregoing exceptions in this Section 10.11.  Any Person required to maintain the
confidentiality of Information as provided in this Section 10.11
shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of
such Information as such Person would accord to its own confidential
information.


 


Section
10.12.      Waiver of Effect of
Corporate Seal.  The Borrower
represents and warrants that neither it nor any other Loan Party is required to
affix its corporate seal to this Agreement or any other Loan Document pursuant
to any requirement of law or regulation, agrees that this Agreement is
delivered by the Borrower under seal and waives any shortening of the statute
of limitations that may result from not affixing the corporate seal to this
Agreement or such other Loan Documents.


 


Section
10.13.      Patriot Act.  The Administrative Agent and each Lender
hereby notifies the Loan Parties that pursuant to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Patriot Act”), it is required to obtain, verify and record
information that identifies each Loan Party, which information includes the
name and address of such Loan Party and other information that will allow such
Lender or the


 


97

















 


Administrative Agent, as
applicable, to identify such Loan Party in accordance with the Patriot
Act.  Each Loan Party shall, and shall
cause each of its Subsidiaries to provide such information and take such other
actions as are requested by the Administrative Agent or any Lender in order to
assist the Administrative Agent and the Lenders in maintaining compliance with
the Patriot Act.


 


Section
10.14.      Replacement of Lender.  In the event that a Replacement Event occurs
and is continuing with respect to any Lender, the Borrower may designate
another assignee permitted pursuant to the terms of this Agreement (so long as
such Person is permitted to be an assignee pursuant to Section 10.4(b)(v))
(such permitted assignee being herein called a “Replacement Lender”) to
assume such Lender’s Revolving Commitment hereunder, to purchase the Loans and
participations of such Lender and such Lender’s rights hereunder, without
recourse to or representation or warranty by, or expense to, such Lender for a
purchase price equal to the outstanding principal amount of the Loans payable
to such Lender plus any accrued but unpaid interest on such Loans and accrued
but unpaid commitment fees required to be paid to such Lender hereby, and upon
such assumption, purchase and substitution, and subject to the execution and
delivery to the Administrative Agent by the Replacement Lender of satisfactory
documentation required under Section 10.4 (pursuant to which such
Replacement Lender shall assume the obligations of such original Lender under
this Agreement), the Replacement Lender shall succeed to the rights and
obligations of such Lender hereunder and such Lender shall no longer be a party
hereto or have any rights hereunder provided that the obligations of the
Borrower to indemnify such Lender with respect to any event occurring or
obligations arising before such replacement shall survive such replacement to
the extent set forth in Section 10.4(b). 
The Administrative Agent is hereby irrevocably appointed as
attorney-in-fact to execute any such documentation on behalf of any Replacement
Lender if such Replacement Lender fails to execute same within five (5)
Business Days after being presented with such documentation.  “Replacement Event” shall mean, with
respect to any Lender, (a) the commencement of or the taking of possession by,
a receiver, custodian, conservator, trustee or liquidator of such Lender, or
the declaration by the appropriate regulatory authority that such Lender is
insolvent; (b) the making of any claim by any Lender under Section 2.8(b),
2.9, or 2.17, unless the changing of the lending office by such
Lender would obviate the need of such Lender to make future claims under such
Sections; (c) such Lender’s becoming a Defaulting Lender; or (d) such Lender
refuses to consent to a proposed amendment, modification, waiver or other
action requiring consent of the Required Lenders.


 


Section
10.15.      No Fiduciary Duty.  The Administrative Agent, the Issuing
Bank,  each Lender and their Affiliates
(collectively, solely for purposes of this paragraph, the “Lenders”),
may have economic interests that conflict with those of the Loan Parties. 
The Loan Parties agree that nothing in the Loan Documents or otherwise will be
deemed to create an advisory, fiduciary or agency relationship or fiduciary or
other implied duty between the Lenders and the Loan Parties, their stockholders
or their affiliates.  The Borrower, on behalf of itself and the other Loan
Parties, acknowledges and agrees that (i) the transactions contemplated by the
Loan Documents are arm’s-length commercial transactions between the Lenders, on
the one hand, and the Loan Parties, on the other, (ii) in connection therewith
and with the process leading to such transaction each of the Lenders is acting
solely as a principal and not the agent or fiduciary of any Loan Party, its
management, stockholders, creditors or any other person, (iii) no Lender has
assumed an advisory or fiduciary responsibility in favor of any Loan Party with


 


98

















 


respect to the transactions
contemplated hereby or the process leading thereto (irrespective of whether any
Lender or any of its affiliates has advised or is currently advising any Loan
Party on other matters) or any other obligation to any Loan Party except the
obligations expressly set forth in the Loan Documents and (iv) each Loan Party
has consulted its own legal and financial advisors to the extent it deemed
appropriate.  The Borrower, on behalf of itself and the other Loan
Parties, further acknowledges and agrees that it is responsible for making its
own independent judgment with respect to such transactions and the process
leading thereto.  The Borrower, on behalf of itself and the other Loan
Parties, agrees that it will not claim that any Lender has rendered advisory
services of any nature or respect, or owes a fiduciary or similar duty to any
Loan Party, in connection with such transaction or the process leading thereto.


 


[Remainder
of page intentionally blank; signature page follows]


 


99

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their respective authorized officers as of the day and year first above
written.


 


	
   

  	
  NETSPEND HOLDINGS, INC., as the
  Borrower

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ George W. Gresham

  
	
   

  	
  Name:

  	
  George W. Gresham

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  



 


[Signatures continue on following page]


 

















 


	
   

  	
  SUNTRUST
  BANK, as Administrative Agent and as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ David Bennett

  
	
   

  	
   

  	
  Name:

  	
  David A. Bennett

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SUNTRUST
  ROBINSON HUMPHREY, INC., as Sole Bookrunner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Berwyn Green

  
	
   

  	
   

  	
  Name:

  	
  Berwyn Green

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


[Signatures continue on following page]


 

















 


	
   

  	
  COMPASS BANK, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Stephanie Cox

  
	
   

  	
   

  	
  Name:

  	
  Stephanie Cox

  
	
   

  	
   

  	
  Title:

  	
  Sr. Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notices:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Stephanie Cox

  
	
   

  	
   

  	
  Sr. Vice President

  
	
   

  	
   

  	
  BBVA Compass Bank

  
	
   

  	
   

  	
  8080 N. Central
  Expressway, Suite 250

  
	
   

  	
   

  	
  Dallas, Texas 75206

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Fax: 214/346-2746

  
	
   

  	
   

  	
  Phone: 214/346-2733

  



 


[Signatures continue on following page]


 

















 


	
   

  	
  SILICON VALLEY BANK, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Jay Wefel

  
	
   

  	
   

  	
  Name:

  	
  Jay Wefel

  
	
   

  	
   

  	
  Title:

  	
  Relationship Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notices:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Jay Wefel

  
	
   

  	
   

  	
  380 Interlaken Crescent,
  Suite 600

  
	
   

  	
   

  	
  Broomfield, CO 80021

  
	
   

  	
   

  	
  Fax: 303.469.9028

  
	
   

  	
   

  	
  Phone: 303.410.3474

  



 


[Signatures continue on following page]


 

















 


	
   

  	
  BANK OF AMERICA, N.A., as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Hichem Kerma

  
	
   

  	
   

  	
  Name:

  	
  Hichem Kerma

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notices:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  One Bryant Park, NY1-100-32-01

  
	
   

  	
   

  	
  New York, NY 10036

  
	
   

  	
   

  	
  Hichem.kerma@baml.com

  
	
   

  	
   

  	
  Fax: 704-719-8578

  
	
   

  	
   

  	
  Phone: 646-855-3579

  



 


[Signatures continue on following page]


 

















 


	
   

  	
  GOLDMAN SACHS BANK USA, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Mark Walton

  
	
   

  	
   

  	
  Name:

  	
  Mark Walton

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notices:

  
	
   

  	
   

  	
  Lauren Day

  
	
   

  	
   

  	
  c/o Goldman, Sachs &
  Co.

  
	
   

  	
   

  	
  30 Hudson Street, 38th Floor

  
	
   

  	
   

  	
  Jersey City, NJ 07302

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Legal Notices:

  
	
   

  	
   

  	
  Goldman Sachs Bank USA

  
	
   

  	
   

  	
  200 West Street

  
	
   

  	
   

  	
  New York, NY 1028

  
	
   

  	
   

  	
  Fax: 917-977-3966

  



 

















 


Schedule I


 


COMMITMENT AMOUNTS


 


	
  Lender

  	
   

  	
  Revolving Commitment Amount

  	
   

  
	
  SunTrust Bank

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  Compass Bank

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Silicon Valley Bank

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  Goldman Sachs Bank USA

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  TOTAL:

  	
   

  	
  $

  	
  135,000,000