exv10w2







Exhibit 10.2




Published CUSIP Number: 74164NAA4




 





$40,000,000




CREDIT AGREEMENT



among



PRIMO WATER CORPORATION,

as the Company,



CERTAIN DOMESTIC SUBSIDIARIES OF THE COMPANY

FROM TIME TO TIME PARTY HERETO,

as Subsidiary Borrowers,



CERTAIN DOMESTIC SUBSIDIARIES OF THE COMPANY

FROM TIME TO TIME PARTY HERETO,

as Guarantors,



THE LENDERS PARTY HERETO,



and



WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent



Dated as of November 10, 2010



WELLS FARGO SECURITIES, LLC,

as Sole Lead Arranger and Sole Bookrunner







 




	 	 	 

	Prepared by:
	 	






 









 






TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	Section 1.1 Defined Terms
	 	 	1	 
	Section 1.2 Other Definitional Provisions
	 	 	32	 
	Section 1.3 Accounting Terms
	 	 	32	 
	Section 1.4 Time References
	 	 	33	 
	Section 1.5 Execution of Documents
	 	 	33	 
	 
	 	 	 	 
	ARTICLE II THE LOANS; AMOUNT AND TERMS
	 	 	33	 
	 
	 	 	 	 
	Section 2.1 Revolving Loans
	 	 	33	 
	Section 2.2 [Reserved]
	 	 	35	 
	Section 2.3 Letter of Credit Subfacility
	 	 	36	 
	Section 2.4 Swingline Loan Subfacility
	 	 	40	 
	Section 2.5 Fees
	 	 	42	 
	Section 2.6 Commitment Reductions
	 	 	42	 
	Section 2.7 Repayments
	 	 	43	 
	Section 2.8 Default Rate and Payment Dates
	 	 	44	 
	Section 2.9 Conversion Options
	 	 	45	 
	Section 2.10 Computation of Interest and Fees; Usury
	 	 	46	 
	Section 2.11 Pro Rata Treatment and Payments
	 	 	47	 
	Section 2.12 Non-Receipt of Funds by the Administrative Agent
	 	 	49	 
	Section 2.13 Inability to Determine Interest Rate
	 	 	51	 
	Section 2.14 Yield Protection
	 	 	51	 
	Section 2.15 Compensation for Losses; Eurocurrency Liabilities
	 	 	53	 
	Section 2.16 Taxes
	 	 	54	 
	Section 2.17 Indemnification; Nature of Issuing Lender’s Duties
	 	 	58	 
	Section 2.18 Illegality
	 	 	59	 
	Section 2.19 Replacement of Lenders
	 	 	60	 
	Section 2.20 Cash Collateral
	 	 	61	 
	Section 2.21 Defaulting Lenders
	 	 	62	 
	 
	 	 	 	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES
	 	 	64	 
	 
	 	 	 	 
	Section 3.1 Financial Condition
	 	 	65	 
	Section 3.2 No Material Adverse Effect; Internal Control Event
	 	 	65	 
	Section 3.3 Corporate Existence; Compliance with Law; Patriot Act Information
	 	 	66	 
	Section 3.4 Corporate Power; Authorization; Enforceable Obligations
	 	 	66	 
	Section 3.5 No Legal Bar; No Default
	 	 	66	 
	Section 3.6 No Material Litigation
	 	 	67	 
	Section 3.7 Investment Company Act; etc.
	 	 	67	 
	Section 3.8 Margin Regulations
	 	 	67	 
	Section 3.9 ERISA
	 	 	68	 
	Section 3.10 Environmental Matters
	 	 	68	 
	Section 3.11 Use of Proceeds
	 	 	69	 
	Section 3.12 Subsidiaries; Joint Ventures; Partnerships
	 	 	69	 
	Section 3.13 Ownership
	 	 	69	 






i









 






	 	 	 	 	 
	 	 	Page	 
	Section 3.14 Consent; Governmental Authorizations
	 	 	70	 
	Section 3.15 Taxes
	 	 	70	 
	Section 3.16 Collateral Representations
	 	 	70	 
	Section 3.17 Solvency
	 	 	72	 
	Section 3.18 Compliance with FCPA
	 	 	72	 
	Section 3.19 No Burdensome Restrictions
	 	 	72	 
	Section 3.20 Brokers’ Fees
	 	 	73	 
	Section 3.21 Labor Matters
	 	 	73	 
	Section 3.22 Accuracy and Completeness of Information
	 	 	73	 
	Section 3.23 Material Contracts
	 	 	73	 
	Section 3.24 Insurance
	 	 	73	 
	Section 3.25 Security Documents
	 	 	74	 
	Section 3.26 Classification of Senior Indebtedness
	 	 	74	 
	Section 3.27 Anti-Terrorism Laws
	 	 	74	 
	Section 3.28 Compliance with OFAC Rules and Regulations
	 	 	74	 
	Section 3.29 Authorized Officer
	 	 	75	 
	Section 3.30 Regulation H
	 	 	75	 
	Section 3.31 Consummation of Acquisition and IPO
	 	 	75	 
	 
	 	 	 	 
	ARTICLE IV CONDITIONS PRECEDENT
	 	 	76	 
	 
	 	 	 	 
	Section 4.1 Conditions to Initial Extensions of Credit on the Closing Date
	 	 	76	 
	Section 4.2 Conditions to All Extensions of Credit After the Closing Date
	 	 	83	 
	 
	 	 	 	 
	ARTICLE V AFFIRMATIVE COVENANTS
	 	 	85	 
	 
	 	 	 	 
	Section 5.1 Financial Statements
	 	 	85	 
	Section 5.2 Certificates; Other Information
	 	 	86	 
	Section 5.3 Payment of Taxes and Other Obligations
	 	 	88	 
	Section 5.4 Conduct of Business and Maintenance of Existence
	 	 	88	 
	Section 5.5 Maintenance of Property; Insurance
	 	 	88	 
	Section 5.6 Maintenance of Books and Records
	 	 	89	 
	Section 5.7 Notices
	 	 	89	 
	Section 5.8 Environmental Laws
	 	 	91	 
	Section 5.9 Financial Covenants
	 	 	91	 
	Section 5.10 Additional Guarantors
	 	 	92	 
	Section 5.11 Compliance with Law
	 	 	93	 
	Section 5.12 Pledged Assets
	 	 	93	 
	Section 5.13 Hedging Agreements
	 	 	94	 
	Section 5.14 Landlord Waivers
	 	 	94	 
	Section 5.15 Further Assurances
	 	 	94	 
	 
	 	 	 	 
	ARTICLE VI NEGATIVE COVENANTS
	 	 	95	 
	 
	 	 	 	 
	Section 6.1 Indebtedness
	 	 	96	 
	Section 6.2 Liens
	 	 	97	 
	Section 6.3 Nature of Business
	 	 	99	 
	Section 6.4 Consolidation, Merger, Sale or Purchase of Assets, etc.
	 	 	99	 
	Section 6.5 Advances, Investments and Loans
	 	 	101	 
	Section 6.6 Transactions with Affiliates
	 	 	102	 
	Section 6.7 Ownership of Subsidiaries; Restrictions
	 	 	102	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	Section 6.8 Corporate Changes; Material Contracts
	 	 	102	 
	Section 6.9 Limitation on Restricted Actions
	 	 	102	 
	Section 6.10 Restricted Payments
	 	 	103	 
	Section 6.11 Amendment of Subordinated Debt
	 	 	103	 
	Section 6.12 Sale Leasebacks
	 	 	103	 
	Section 6.13 No Further Negative Pledges
	 	 	104	 
	Section 6.14 Account Control Agreements; Additional Bank Accounts
	 	 	104	 
	 
	 	 	 	 
	ARTICLE VII EVENTS OF DEFAULT
	 	 	104	 
	 
	 	 	 	 
	Section 7.1 Events of Default
	 	 	104	 
	Section 7.2 Acceleration; Remedies
	 	 	108	 
	 
	 	 	 	 
	ARTICLE VIII THE ADMINISTRATIVE AGENT
	 	 	108	 
	 
	 	 	 	 
	Section 8.1 Appointment and Authority
	 	 	108	 
	Section 8.2 Nature of Duties
	 	 	109	 
	Section 8.3 Exculpatory Provisions
	 	 	109	 
	Section 8.4 Reliance by Administrative Agent
	 	 	110	 
	Section 8.5 Notice of Default
	 	 	110	 
	Section 8.6 Non-Reliance on Administrative Agent and Other Lenders
	 	 	111	 
	Section 8.7 Indemnification
	 	 	111	 
	Section 8.8 Administrative Agent in Its Individual Capacity
	 	 	112	 
	Section 8.9 Successor Administrative Agent
	 	 	112	 
	Section 8.10 Collateral and Guaranty Matters
	 	 	113	 
	Section 8.11 Bank Products
	 	 	113	 
	 
	 	 	 	 
	ARTICLE IX MISCELLANEOUS
	 	 	114	 
	 
	 	 	 	 
	Section 9.1 Amendments, Waivers, Consents and Release of Collateral
	 	 	114	 
	Section 9.2 Notices
	 	 	117	 
	Section 9.3 No Waiver; Cumulative Remedies
	 	 	119	 
	Section 9.4 Survival of Representations and Warranties
	 	 	119	 
	Section 9.5 Payment of Expenses and Taxes; Indemnity
	 	 	119	 
	Section 9.6 Successors and Assigns; Participations
	 	 	121	 
	Section 9.7 Right of Set-off; Sharing of Payments
	 	 	126	 
	Section 9.8 Table of Contents and Section Headings
	 	 	127	 
	Section 9.9 Counterparts; Effectiveness; Electronic Execution
	 	 	127	 
	Section 9.10 Severability
	 	 	128	 
	Section 9.11 Integration
	 	 	128	 
	Section 9.12 Governing Law
	 	 	128	 
	Section 9.13 Consent to Jurisdiction; Service of Process and Venue
	 	 	128	 
	Section 9.14 Confidentiality
	 	 	129	 
	Section 9.15 Acknowledgments
	 	 	130	 
	Section 9.16 Waivers of Jury Trial; Waiver of Consequential Damages
	 	 	130	 
	Section 9.17 Patriot Act Notice
	 	 	131	 
	Section 9.18 Resolution of Drafting Ambiguities
	 	 	131	 
	Section 9.19 Subordination of Intercompany Debt
	 	 	131	 
	Section 9.20 Continuing Agreement
	 	 	131	 
	Section 9.21 [Reserved]
	 	 	132	 
	Section 9.22 Press Releases and Related Matters
	 	 	132	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	Section 9.23 Appointment of Company
	 	 	132	 
	Section 9.24 No Advisory or Fiduciary Responsibility
	 	 	132	 
	Section 9.25 Responsible Officers and Authorized Officers
	 	 	133	 
	Section 9.26 Concerning Joint and Several Obligations of the Borrowers
	 	 	133	 
	 
	 	 	 	 
	ARTICLE X GUARANTY
	 	 	136	 
	 
	 	 	 	 
	Section 10.1 The Guaranty
	 	 	136	 
	Section 10.2 Bankruptcy
	 	 	137	 
	Section 10.3 Nature of Liability
	 	 	137	 
	Section 10.4 Independent Obligation
	 	 	138	 
	Section 10.5 Authorization
	 	 	138	 
	Section 10.6 Reliance
	 	 	138	 
	Section 10.7 Waiver
	 	 	138	 
	Section 10.8 Limitation on Enforcement
	 	 	139	 
	Section 10.9 Confirmation of Payment
	 	 	140	 






iv









 






	 	 	 

	Schedules
	 	 
	 
	 	 
	Schedule 1.1(a)

	 	Investments
	Schedule 1.1(b)

	 	Liens
	Schedule 1.1(c)

	 	Existing Letters of Credit
	Schedule 3.3

	 	Patriot Act Information
	Schedule 3.12

	 	Subsidiaries
	Schedule 3.16(a)

	 	Intellectual Property
	Schedule 3.16(b)

	 	Documents, Instruments and Tangible Chattel Paper
	Schedule 3.16(c)

	 	Deposit Accounts, Electronic Chattel Paper, Letter-of-Credit Rights, Securities Accounts, Uncertificated Investment Property
	Schedule 3.16(d)

	 	Commercial Tort Claims
	Schedule 3.16(e)

	 	Pledged Equity Interests
	Schedule 3.16(f)(i)

	 	Mortgaged Properties
	Schedule 3.16(f)(ii)

	 	Other Collateral Locations
	Schedule 3.20

	 	Broker’s Fees
	Schedule 3.23

	 	Material Contracts
	Schedule 3.24

	 	Insurance
	Schedule 3.29

	 	Authorized Officers
	Schedule 6.1(b)

	 	Indebtedness
	 
	 	 
	Exhibits
	 	 
	 
	 	 
	Exhibit 1.1(a)

	 	Form of Account Designation Notice
	Exhibit 1.1(b)

	 	Form of Assignment and Assumption
	Exhibit 1.1(c)

	 	Form of Joinder Agreement
	Exhibit 1.1(d)

	 	Form of Notice of Borrowing
	Exhibit 1.1(e)

	 	Form of Notice of Conversion/Extension
	Exhibit 1.1(f)

	 	Form of Permitted Acquisition Certificate
	Exhibit 1.1(g)

	 	Form of Bank Product Provider Notice
	Exhibit 2.1(a)

	 	Form of Funding Indemnity Letter
	Exhibit 2.1(e)

	 	Form of Revolving Loan Note
	Exhibit 2.4(d)

	 	Form of Swingline Loan Note
	Exhibit 4.1(b)

	 	Form of Officer’s Certificate
	Exhibit 4.1(d)

	 	Form of Landlord Waiver
	Exhibit 4.1(g)

	 	Form of Solvency Certificate
	Exhibit 4.1(p)

	 	Form of Financial Condition Certificate
	Exhibit 5.2(b)

	 	Form of Officer’s Compliance Certificate






v









 






     THIS CREDIT AGREEMENT, dated as of November 10, 2010, is by and among PRIMO WATER CORPORATION,
a Delaware corporation (the “Company”), the Subsidiary Borrowers (as hereinafter defined),
the Guarantors (as hereinafter defined), the Lenders (as hereinafter defined) and WELLS FARGO BANK,
NATIONAL ASSOCIATION, a national banking association, as administrative agent for the Lenders
hereunder (in such capacity, the “Administrative Agent”).



W I T N E S S E T H:




     WHEREAS, the Credit Parties (as hereinafter defined) have requested that the Lenders make
loans and other financial accommodations to the Credit Parties in an aggregate amount of up to
$40,000,000, as more particularly described herein; and



     WHEREAS, the Lenders have agreed to make such loans and other financial accommodations to the
Credit Parties on the terms and conditions contained herein.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, such parties hereby agree as follows:



ARTICLE I




DEFINITIONS



     Section 1.1 Defined Terms.



     As used in this Agreement, terms defined in the preamble to this Agreement have the meanings
therein indicated, and the following terms have the following meanings:



     “Account Designation Notice” shall mean the Account Designation Notice dated as of the
Closing Date from the Company to the Administrative Agent in substantially the form attached hereto
as Exhibit 1.1(a).



     “Acquired Business” shall mean certain assets of the Sellers sold pursuant to the
Acquisition Documents.



     “Acquisition” shall mean the acquisition, and all transactions related thereto, of the
Acquired Business pursuant to the Acquisition Documents.



     “Acquisition Documents” shall mean (a) that certain Asset Purchase Agreement dated as
of June 1, 2010 by and among the Company, as the purchaser and the Sellers, as the sellers, and (b)
any other material agreement, document or instrument executed in connection with the foregoing, in
each case as in effect on the Closing Date.



 









 





     “Additional Credit Party” shall mean each Person that becomes a Guarantor by execution
of a Joinder Agreement in accordance with Section 5.10.



     “Administrative Agent” or “Agent” shall have the meaning set forth in the
first paragraph of this Agreement and shall include any successors in such capacity.



     “Administrative Questionnaire” shall mean an Administrative Questionnaire in a form
supplied by the Administrative Agent.



     “Affiliate” shall mean, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is Controlled by, or is
under common Control with, the Person specified.



     “Agreement” or “Credit Agreement” shall mean this Agreement, as amended,
modified, extended, restated, replaced, or supplemented from time to time in accordance with its
terms.



     “Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1.50% and (c) the sum of (i) LIBOR (as determined pursuant to the definition of
LIBOR), for an Interest Period of one (1) month commencing on such day plus (ii) 1.00%, in
each instance as of such date of determination. For purposes hereof: “Prime Rate” shall
mean, at any time, the rate of interest per annum publicly announced or otherwise identified from
time to time by Wells Fargo at its principal office in Charlotte, North Carolina as its prime rate.
Each change in the Prime Rate shall be effective as of the opening of business on the day such
change in the Prime Rate occurs. The parties hereto acknowledge that the rate announced publicly
by Wells Fargo as its Prime Rate is an index or base rate and shall not necessarily be its lowest
or best rate charged to its customers or other banks; and “Federal Funds Effective Rate”
shall mean, for any day, the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published on the next succeeding Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal funds brokers of recognized
standing selected by it. If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive in the absence of manifest error) (A) that it is unable to
sufficiently ascertain the Federal Funds Effective Rate or (B) that the Prime Rate or LIBOR no
longer accurately reflects an accurate determination of the prevailing Prime Rate or LIBOR, the
Administrative Agent may select a reasonably comparable index or source to use as the basis for the
Alternate Base Rate, until the circumstances giving rise to such inability no longer exist. Any
change in the Alternate Base Rate due to a change in any of the foregoing will become effective on
the effective date of such change in the Federal Funds Rate, the Prime Rate or LIBOR for an
Interest Period of one (1) month. Notwithstanding anything contained herein to the contrary, to
the extent that the provisions of Section 2.13 shall be in effect in determining LIBOR pursuant to
clause (c) hereof, the Alternate Base Rate shall be the greater of (i) the Prime Rate in effect on
such day and (ii) the Federal Funds Effective Rate in effect on such day plus 1.50%.



2









 





     “Alternate Base Rate Loans” shall mean Loans that bear interest at an interest rate
based on the Alternate Base Rate.



     “Anti-Terrorism Order” shall mean that certain Executive Order 13224 signed into law
on September 23, 2001.



     “Amended and Restated Articles of Incorporation” shall mean the Fifth Amended and
Restated Articles of Incorporation of the Company to be filed with the Secretary of State of the
State of Delaware on or before the Closing Date.



     “Applicable Margin” shall mean, for any day, the rate per annum set forth below
opposite the applicable level then in effect (based on the Total Leverage Ratio), it being
understood that the Applicable Margin for (a) Revolving Loans that are Alternate Base Rate Loans
shall be the percentage set forth under the column “Base Rate Margin”, (b) Revolving Loans that are
LIBOR Rate Loans shall be the percentage set forth under the column “LIBOR Margin & Letter of
Credit Fee”, (c) the Letter of Credit Fee shall be the percentage set forth under the column “LIBOR
Margin & Letter of Credit Fee”, and (d) the Commitment Fee shall be the percentage set forth under
the column “Commitment Fee”:



Applicable Margin




	 	 	 	 	 	 	 	 	 
	 	 	 	 	LIBOR Margin	 	 	 	 
	Level	 	Total Leverage Ratio	 	& Letter of Credit Fee	 	Base Rate Margin	 	Commitment Fee
	I	 	Less than 2.00 to 1.00
	 	2.75%	 	1.75%	 	0.400%
	 	 	 
	 	 	 	 	 	 
	II	 	Greater than or equal
to 2.00 to 1.00 but
less than 2.50 to 1.00
	 	3.00%	 	2.00%	 	0.400%
	 	 	 
	 	 	 	 	 	 
	III	 	Greater than or equal
to 2.50 to 1.00 but
less than 3.00 to 1.00
	 	3.25%	 	2.25%	 	0.500%
	 	 	 
	 	 	 	 	 	 
	IV	 	Greater than or equal
to 3.00 to 1.00
	 	3.50%	 	2.50%	 	0.500%






     The Applicable Margin shall, in each case, be determined and adjusted quarterly on the date
five (5) Business Days after the date on which the Administrative Agent has received from the
Company the quarterly financial information (in the case of the first three fiscal quarters of the
Company’s fiscal year), the annual financial information (in the case of the fourth fiscal quarter
of the Company’s fiscal year) and the certifications required to be delivered to the Administrative
Agent and the Lenders in accordance with the provisions of Sections 5.1(a), 5.1(b) and 5.2(b) (each
an “Interest Determination Date”). Such Applicable Margin shall be effective from such
Interest Determination Date until the next such Interest Determination Date. After the Closing
Date, if the Credit Parties shall fail to provide the financial information or certifications in
accordance with the provisions of Sections 5.1(a), 5.1(b) and 5.2(b), the Applicable Margin shall,
on the date five (5) Business Days after the date by which the Credit



3









 




Parties were so required to provide such financial information or certifications to the
Administrative Agent and the Lenders, be based on Level IV until such time as such information or
certifications or corrected information or corrected certificates are provided, whereupon the Level
shall be determined by the then current Total Leverage Ratio. Notwithstanding the foregoing, the
initial Applicable Margins shall be as set forth in Level II until the financial information and
certificates required to be delivered pursuant to Section 5.1 and 5.2 for the first full fiscal
quarter to occur following the Closing Date have been delivered to the Administrative Agent. In
the event that any financial statement or certification delivered pursuant to Sections 5.1 or 5.2
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, the Company shall immediately (a) deliver to
the Administrative Agent a corrected compliance certificate for such Applicable Period, (b)
determine the Applicable Margin for such Applicable Period based upon the corrected compliance
certificate, and (c) immediately pay to the Administrative Agent for the benefit of the Lenders the
accrued additional interest and other fees owing as a result of such increased Applicable Margin
for such Applicable Period, which payment shall be promptly distributed by the Administrative Agent
to the Lenders entitled thereto. It is acknowledged and agreed that nothing contained herein shall
limit the rights of the Administrative Agent and the Lenders under the Credit Documents, including
their rights under Sections 2.8 and 7.2.




     “Applicable Percentage” shall mean, with respect to any Lender, the percentage of the
total Commitments represented by such Lender’s Commitment. If the Commitments have terminated or
expired, the Applicable Percentage shall be determined based on the Commitments most recently in
effect, giving effect to any assignments.



     “Approved Bank” shall have the meaning set forth in the definition of “Cash
Equivalents.”



     “Approved Fund” shall mean any Fund that is administered, managed or underwritten by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.



     “Arranger” shall mean WFS.



     “Asset Disposition” shall mean the disposition of any or all of the assets (including,
without limitation, the Equity Interests of a Subsidiary or any ownership interest in a joint
venture) of any Credit Party or any Subsidiary whether by sale, lease, transfer or otherwise, in a
single transaction or in a series of transactions. The term “Asset Disposition” shall not include
the sale, lease, transfer or other disposition of assets permitted by Subsections 6.4(a)(i) through
(v).



     “Assignment and Assumption” shall mean an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section
9.6), and accepted by the Administrative Agent, in substantially the form of Exhibit 1.1(b)
or any other form approved by the Administrative Agent.



4









 





     “Authorized Officers” shall mean the Responsible Officers set forth on Schedule
3.29.



     “Bank Product” shall mean any of the following products, services or facilities
extended to any Credit Party or any Subsidiary by any Bank Product Provider: (a) Cash Management
Services; (b) products under any Hedging Agreement; and (c) commercial credit card, purchase card
and merchant card services; provided, however, that for any of the foregoing to be
included as “Credit Party Obligations” for purposes of a distribution under Section 2.11(b), the
applicable Bank Product Provider must have previously provided a Bank Product Provider Notice to
the Administrative Agent which shall provide the following information: (i) the existence of such
Bank Product and (ii) the maximum dollar amount (if reasonably capable of being determined) of
obligations arising thereunder (the “Bank Product Amount”). The Bank Product Amount may be
changed from time to time upon written notice to the Administrative Agent by the Bank Product
Provider. Any Bank Product established from and after the time that the Lenders have received
written notice from the Company or the Administrative Agent that an Event of Default exists, until
such Event of Default has been waived in accordance with Section 9.1, shall not be included as
“Credit Party Obligations” for purposes of a distribution under Section 2.11(b).



     “Bank Product Amount” shall have the meaning set forth in the definition of Bank
Product.



     “Bank Product Debt” shall mean the Indebtedness and other obligations of any Credit
Party or Subsidiary relating to Bank Products.



     “Bank Product Provider” shall mean any Person that provides Bank Products to a Credit
Party or any Subsidiary that is permitted by Section 6.1(e) to the extent that (a) such Person is a
Lender, an Affiliate of a Lender or any other Person that was a Lender (or an Affiliate of a
Lender) at the time it entered into the Bank Product but has ceased to be a Lender (or whose
Affiliate has ceased to be a Lender) under the Credit Agreement or (b) such Person is a Lender or
an Affiliate of a Lender on the Closing Date and the Bank Product was entered into on or prior to
the Closing Date (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be
a Lender).



     “Bank Product Provider Notice” shall mean a notice substantially in the form of
Exhibit 1.1(g).



     “Bankruptcy Code” shall mean the Bankruptcy Code in Title 11 of the United States
Code, as amended, modified, succeeded or replaced from time to time.



     “Bankruptcy Event” shall mean any of the events described in Section 7.1(f).



     “Borrowers” shall mean the Company and the Subsidiary Borrowers.



     “Borrowing Date” shall mean, in respect of any Loan, the date such Loan is made.



     “Business” shall have the meaning set forth in Section 3.10.



5









 





     “Business Day” shall mean any day other than a Saturday, Sunday or other day on which
commercial banks in Charlotte, North Carolina or New York, New York are authorized or required by
law to close; provided, however, that when used in connection with a rate
determination, borrowing or payment in respect of a LIBOR Rate Loan, the term “Business Day” shall
also exclude any day on which banks in London, England are not open for dealings in Dollar deposits
in the London interbank market.



     “Capital Lease” shall mean any lease of property, real or personal, the obligations
with respect to which are required to be capitalized on a balance sheet of the lessee in accordance
with GAAP.



     “Capital Lease Obligations” shall mean the capitalized lease obligations relating to a
Capital Lease determined in accordance with GAAP.



     “Cash Collateralize” shall mean to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, the Issuing Lender or Swingline
Lender (as applicable) and the Lenders, as collateral for LOC Obligations, obligations in respect
of Swingline Loans, or obligations of Lenders to fund participations in respect of either thereof
(as the context may require), cash or deposit account balances or, if the Issuing Lender or
Swingline Lender benefiting from such collateral shall agree in its sole discretion, other credit
support, in each case pursuant to documentation in form and substance satisfactory to (a) the
Administrative Agent and (b) the applicable Issuing Lender or the Swingline Lender. “Cash
Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of
such cash collateral and other credit support.



     “Cash Equivalents” shall mean (a) securities issued or directly and fully guaranteed
or insured by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is pledged in
support thereof) having maturities of not more than twelve months from the date of acquisition
(“Government Obligations”), (b) Dollar denominated time deposits, certificates of deposit,
Eurodollar time deposits and Eurodollar certificates of deposit of (i) any domestic commercial bank
of recognized standing having capital and surplus in excess of $500,000,000 or (ii) any bank whose
short-term commercial paper rating at the time of the acquisition thereof is at least A-1 or the
equivalent thereof from S&P or from Moody’s is at least P-1 or the equivalent thereof from Moody’s
(any such bank being an “Approved Bank”), in each case with maturities of not more than 364
days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by
any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or
guaranteed by any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody’s and maturing within six months of the date of
acquisition, (d) repurchase agreements with a term of not more than thirty (30) days with a bank or
trust company (including a Lender) or a recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States of
America, (e) obligations of any state of the United States or any political subdivision thereof for
the payment of the principal and redemption price of and interest on which there shall have been
irrevocably deposited Government Obligations maturing as to principal and interest at times and in
amounts sufficient to provide such payment, (f) money



6









 




market accounts subject to Rule 2a-7 of the Investment Company Act of 1940 (“Rule
2a-7”) which consist primarily of cash and cash equivalents set forth in clauses (a) through
(e) above and of which 95% shall at all times be comprised of First Tier Securities (as defined in
Rule 2a-7) and any remaining amount shall at all times be comprised of Second Tier Securities (as
defined in Rule 2a-7) and (g) shares of any so-called “money market fund”; provided that
such fund is registered under the Investment Company Act of 1940, has net assets of at least
$500,000,000 and has an investment portfolio with an average maturity of 365 days or less.




     “Cash Management Services” shall mean any services provided from time to time to any
Credit Party or Subsidiary in connection with operating, collections, payroll, trust, or other
depository or disbursement accounts, including automatic clearinghouse, controlled disbursement,
depository, electronic funds transfer, information reporting, lockbox, stop payment, overdraft
and/or wire transfer services and all other treasury and cash management services.



     “Change in Law” shall mean the occurrence, after the date of this Agreement, of any of
the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
guideline or directive (whether or not having the force of law) by any Governmental Authority.



     “Change of Control” shall mean at any time from and after the Closing Date, the
occurrence of any of the following events: (a) any “person” or “group” (as such terms are used in
Section 13(d) and 14(d) of the Exchange Act), becomes the “beneficial owner” (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed to have “beneficial
ownership” of all securities that such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or indirectly, of thirty-five
percent (35%) or more of the then outstanding Voting Stock of the Company; or (b) the replacement
of a majority of the Board of Directors of the Company over a two-year period from the directors
who constituted the Board of Directors at the beginning of such period, and such replacement shall
not have been approved by a vote of at least a majority of the Board of Directors of the Company
then still in office who either were members of such Board of Directors at the beginning of such
period or whose election as a member of such Board of Directors was previously so approved; or (c)
the Company shall fail, directly or indirectly, to legally and beneficially own 100% of the Equity
Interests of each Subsidiary Borrower.



     “Closing Date” shall mean the date of this Agreement.



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



     “Collateral” shall mean a collective reference to the collateral which is identified
in, and at any time will be covered by, the Security Documents and any other property or assets of
a Credit Party, whether tangible or intangible and whether real or personal, that may from time to
time secure the Credit Party Obligations; provided that there shall be excluded from the
Collateral (a) any account, instrument, chattel paper or other obligation or property of any kind



7









 




due from, owed by, or belonging to, a Sanctioned Person or Sanctioned Entity or (b) any lease
in which the lessee is a Sanctioned Person or Sanctioned Entity.




     “Commitment” shall mean the Revolving Commitments, the LOC Commitment and the
Swingline Commitment, individually or collectively, as appropriate.



     “Commitment Fee” shall have the meaning set forth in Section 2.5(a).



     “Commitment Period” shall mean (a) with respect to Revolving Loans and Swingline
Loans, the period from and including the Closing Date to but excluding the Maturity Date and (b)
with respect to Letters of Credit, the period from and including the Closing Date to but excluding
the date that is thirty (30) days prior to the Maturity Date.



     “Committed Funded Exposure” shall mean, as to any Lender at any time, the aggregate
principal amount at such time of its outstanding Loans, LOC Obligations and Participation Interests
at such time.



     “Commonly Controlled Entity” shall mean an entity, whether or not incorporated, which
is under common control with the Company within the meaning of Section 4001(b)(1) of ERISA or is
part of a group which includes the Company and which is treated as a single employer under Section
414(b) or 414(c) of the Code or, solely for purposes of Section 412 of the Code to the extent
required by such Section, Section 414(m) or 414(o) of the Code.



     “Company” shall have the meaning set forth in the first paragraph of this Agreement.



     “Consolidated” shall mean, when used with reference to financial statements or
financial statement items of the Company and its Subsidiaries or any other Person, such statements
or items on a consolidated basis in accordance with the consolidation principles of GAAP.



     “Consolidated Capital Expenditures” shall mean, as of any date of determination for
the four (4) consecutive fiscal quarter period ending on such date, all expenditures of the Credit
Parties and their Subsidiaries on a Consolidated basis for such period that in accordance with GAAP
would be classified as capital expenditures, including, without limitation, Capital Lease
Obligations. The term “Consolidated Capital Expenditures” shall not include any Permitted
Acquisition.



     “Consolidated EBIT” shall mean, as of any date of determination for the four (4)
consecutive fiscal quarter period ending on such date, without duplication, (a) Consolidated Net
Income for such period plus (b) the sum of the following to the extent deducted in
calculating Consolidated Net Income for such period: (i) Consolidated Interest Expense for such
period, (ii) tax expense (including, without limitation, any federal, state, local and foreign
income and similar taxes) of the Credit Parties and their Subsidiaries for such period, (iii)
transaction fees and expenses associated with the Transactions as reasonably agreed to between the
Company and the Administrative Agent, (iv) non-cash and/or non-recurring charges (including
non-cash impairment charges, non-cash compensation expense and non-cash equity charges) of the
Credit Parties and their Subsidiaries for such period in connection with the Acquisition and the
IPO in



8









 




an amount not to exceed $13,070,000 (of which not more than $4,925,000 shall be made in cash)
and (v) other non-cash and/or non-recurring charges of the Credit Parties and their Subsidiaries
for such period (including non-cash impairment charges, non-cash compensation expense, non-cash
equity charges, non-recurring charges related to the consummation of any Permitted Acquisition and
changes in the fair value of assets and liabilities in accordance with GAAP) in an amount agreed to
between the Company and the Administrative Agent minus (c) non-cash charges previously
added back to Consolidated Net Income in determining Consolidated EBITDA to the extent such
non-cash charges have become cash charges during such period minus (d) any other
non-recurring cash or non-cash gains during such period (including, without limitation, (i) gains
(or, to the extent approved by the Administrative Agent, plus losses) from the sale or exchange of
assets (excluding the sale or exchange in inventory in the ordinary course of business) and (ii)
gains (or, to the extent approved by the Administrative Agent, plus losses) from early
extinguishment of Indebtedness or Hedging Agreements of the Credit Parties and their Subsidiaries)
plus (e) for any portion of such period which includes any period set forth below, the
amount set forth opposite such period (representing the agreed-upon Consolidated EBIT of the
Acquired Business for such period):




	 	 	 	 	 
	Period	 	Amount	 
	October 1, 2009 through December 31, 2009
	 	$	1,362,000	 
	January 1, 2010 through March 31, 2010
	 	$	1,536,000	 
	April 1, 2010 through June 30, 2010
	 	$	1,630,000	 
	July 1, 2010 through September 30, 2010
	 	$	2,102,000	 
	October 1, 2010 through Closing Date
	 	$	936,000	 






     “Consolidated EBITDA” shall mean, as of any date of determination for the four (4)
consecutive fiscal quarter period ending on such date, without duplication, (a) Consolidated EBIT
for such period plus (b) to the extent deducted in calculating Consolidated Net Income for
such period, depreciation and amortization expense of the Credit Parties and their Subsidiaries for
such period plus (c) for any portion of such period which includes any of the periods set
forth below, the amount set forth opposite such period (representing the agreed-upon depreciation
and amortization expense of the Acquired Business for such period):



	 	 	 	 	 
	Period	 	Amount	 
	October 1, 2009 through December 31, 2009
	 	$	628,000	 
	January 1, 2010 through March 31, 2010
	 	$	681,000	 
	April 1, 2010 through June 30, 2010
	 	$	679,000	 
	July 1, 2010 through September 30, 2010
	 	$	698,000	 
	October 1, 2010 through Closing Date
	 	$	311,000	 






9









 






     “Consolidated Funded Debt” shall mean, as of any date of determination, Funded Debt of
the Credit Parties and their Subsidiaries on a Consolidated basis.



     “Consolidated Interest Coverage Ratio” shall mean, as of any date of determination,
for the Credit Parties and their Subsidiaries on a Consolidated basis, the ratio of (a)
Consolidated EBIT for the four (4) consecutive fiscal quarter period ending on such date, to (b)
Consolidated Interest Expense for the four (4) consecutive fiscal quarter period ending on such
date.



     “Consolidated Interest Expense” shall mean, as of any date of determination for the
four (4) consecutive fiscal quarter period ending on such date, all interest expense (excluding
amortization of debt discount and premium, but including the interest component under Capital
Leases and synthetic leases, tax retention operating leases, off-balance sheet loans and similar
off-balance sheet financing products) for such period of the Credit Parties and their Subsidiaries
on a Consolidated basis. For purposes of all computations of Consolidated Interest Expense for the
fiscal quarter ending December 31, 2010, Consolidated Interest Expense for such quarter shall be
computed by measuring actual Consolidated Interest Expense from the Closing Date through December
31, 2010 (the “Stub Period”), dividing such amount by the number of days in the Stub Period
and then multiplying such daily amount by ninety-one (91).



     “Consolidated Net Income” shall mean, as of any date of determination for the four (4)
consecutive fiscal quarter period ending on such date, the net income (excluding (a) extraordinary
losses and gains, (b) gains (or, to the extent approved by the Administrative Agent (such approval
not to be unreasonably withheld or delayed), losses) from Asset Dispositions not in the ordinary
course of business, (c) gains (or, to the extent approved by the Administrative Agent (such
approval not to be unreasonably withheld or delayed), losses) from the early extinguishment of
Indebtedness, (d) all non-cash income, (e) interest income and (f) tax credits, rebates and other
tax benefits) of the Credit Parties and their Subsidiaries on a Consolidated basis for such period,
all as determined in accordance with GAAP .



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



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



     “Copyright Licenses” shall mean any agreement, whether written or oral, providing for
the grant by or to a Person of any right under any Copyright.



     “Copyrights” shall mean all copyrights in all Works, all registrations and recordings
thereof, and all applications in connection therewith, including, without limitation,
registrations, recordings and applications in the United States Copyright Office or in any similar
office or



10









 




agency of the United States, any state thereof or any other country or any political
subdivision thereof, or otherwise and all renewals thereof.




     “Credit Documents” shall mean this Agreement, each of the Notes, any Joinder
Agreement, the Letters of Credit, LOC Documents and the Security Documents and all other
agreements, documents, certificates and instruments delivered to the Administrative Agent or any
Lender by any Credit Party in connection therewith (other than any agreement, document, certificate
or instrument related to a Bank Product).



     “Credit Party” shall mean any of the Borrowers or the Guarantors.



     “Credit Party Obligations” shall mean, without duplication, (a) the Obligations and
(b) for purposes of the Security Documents and all provisions under the other Credit Documents
relating to the Collateral, the sharing thereof and/or payments from proceeds of the Collateral,
but subject to the restrictions contained in the definition of Bank Product, all Bank Product Debt.



     “Default” shall mean any event which, but for the giving of notice or the passage of
time, or both, would constitute an Event of Default.



     “Default Rate” shall mean (a) when used with respect to the Obligations, other than
Letter of Credit Fees, an interest rate equal to (i) for Alternate Base Rate Loans (A) the
Alternate Base Rate plus (B) the Applicable Margin, applicable to Alternate Base Rate Loans
plus (C) 2.00% per annum and (ii) for LIBOR Rate Loans, (A) the LIBOR Rate plus (B)
the Applicable Margin applicable to LIBOR Rate Loans plus (C) 2.00% per annum, (b) when
used with respect to Letter of Credit Fees, a rate equal to the Applicable Margin applicable to
Letter of Credit Fees plus 2.00% per annum and (c) when used with respect to any other fee
or amount due hereunder, a rate equal to the Applicable Margin, applicable to Alternate Base Rate
Loans plus 2.00% per annum.



     “Defaulting Lender” shall mean, subject to Section 2.21(b) any Lender that, as
determined by the Administrative Agent (with notice to the Company of such determination), (a) has
failed to perform any of its funding obligations hereunder, including in respect of its Loans or
participations in Letters of Credit or Swingline Loans, within five Business Days of the date
required to be funded by it hereunder, unless such obligation is the subject of a good faith
dispute, (b) has notified the Company or the Administrative Agent that it does not intend to comply
with its funding obligations or has made a public statement to that effect with respect to its
funding obligations hereunder or, except in connection with a good faith dispute, under other
agreements in which it commits to extend credit, (c) has failed, within five Business Days after
request by the Administrative Agent, acting in good faith, to confirm in writing to the
Administrative Agent that it will comply with its funding obligations hereunder, unless such
failure is the subject of a good faith dispute (provided, that such Lender shall cease to
be a Defaulting Lender upon receipt of such written confirmation by the Administrative Agent and
the Company), or (d) has, or has a direct or indirect parent company that has, (i) become the
subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver,
custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business or assets, including the Federal



11









 




Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a
capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in that Lender or any direct or indirect parent
company thereof by a Governmental Authority.




     “Deposit Account Control Agreement” shall mean an agreement, among a Credit Party, a
depository institution, and the Administrative Agent, which agreement is in a form reasonably
acceptable to the Administrative Agent and which provides the Administrative Agent with “control”
(as such term is used in Article 9 of the UCC) over the deposit account(s) described therein, as
the same may be amended, modified, extended, restated, replaced, or supplemented from time to time.



     “Disposition” shall have the meaning set forth in Section 6.4.



     “Dollars” and “$” shall mean dollars in lawful currency of the United States
of America.



     “Domestic Lending Office” shall mean, initially, the office of each Lender designated
as such Lender’s Domestic Lending Office shown in such Lender’s Administrative Questionnaire; and
thereafter, such other office of such Lender as such Lender may from time to time specify to the
Administrative Agent and the Company as the office of such Lender at which Alternate Base Rate
Loans of such Lender are to be made.



     “Domestic Subsidiary” shall mean any Subsidiary that is organized and existing under
the laws of the United States or any state or commonwealth thereof or under the laws of the
District of Columbia.



     “Eligible Assignee” shall mean (a) a Lender, (b) an Affiliate of a Lender, (c) an
Approved Fund and (d) any other Person (other than a natural person) approved by (i) the
Administrative Agent, (ii) in the case of any assignment of a Revolving Commitment, the Issuing
Lender and (iii) unless an Event of Default has occurred and is continuing and so long as the
primary syndication of the Loans has been completed as determined by Wells Fargo, or at least
ninety (90) days have elapsed since the Closing Date, the Company (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible
Assignee” shall not include (A) any Credit Party or any of the Credit Party’s Affiliates or
Subsidiaries (B) unless an Event of Default has occurred and is continuing, any competitor of the
Company or any of its Subsidiaries or any Affiliate of any such competitor; (C) any Person holding
Subordinated Debt of the Credit Parties or any of such Person’s Affiliates, (D) any Defaulting
Lender (or any of their Affiliates), or (E) any Foreign Lender who is not legally entitled to
deliver to the Company and the Administrative Agent the items in Section 2.1(f)(ii) demonstrating
its full exemption from withholding tax with respect to payments made under any Credit Document.



     “Environmental Laws” shall mean any and all applicable foreign, federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements
of any Governmental Authority or other Requirement of Law (including common law) regulating,



12









 




relating to or imposing liability or standards of conduct concerning protection of human
health or the environment, as now or may at any time be in effect during the term of this
Agreement.




     “Equity Interests” shall mean (a) in the case of a corporation, capital stock, (b) in
the case of an association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of capital stock, (c) in the case of a
partnership, partnership interests (whether general, preferred or limited), (d) in the case of a
limited liability company, membership interests and (e) any other interest or participation that
confers or could confer on a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person, without limitation, options, warrants and any other
“equity security” as defined in Rule 3a11-1 of the Exchange Act.



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



     “Event of Default” shall mean any of the events specified in Section 7.1;
provided, however, that any requirement for the giving of notice or the lapse of
time, or both, or any other condition, has been satisfied.



     “Existing Letter of Credit” shall mean each of the letters of credit described by
applicant, date of issuance, letter of credit number, amount, beneficiary and the date of expiry on
Schedule 1.1(c) hereto.



     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.



     “Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender, the
Issuing Lender or any other recipient of any payment to be made by or on account of any obligation
of any Credit Party under any Credit Document, (a) any Other Connection Taxes (including, without
limitation, Net Income Taxes), (b) any U.S. federal withholding Tax imposed by a law in effect at
the time a Foreign Lender (other than an assignee under Section 2.19) becomes a party hereto (or
designates a new lending office), with respect to any payment made by or on account of any
obligation of a U.S. Borrower to such Foreign Lender, except to the extent that such Foreign Lender
(or its assignor, if any) was entitled, at the time of the assignment (or designation of a new
lending office), to receive additional amounts with respect to such withholding Tax pursuant to
Section 2.16(a), (c) Taxes attributable to a Foreign Lender’s failure to comply with Section
2.16(f), (d) any withholding Tax imposed on any payment of fees pursuant to Section 2.5 and (e) any
Taxes imposed on any “withholdable payment” payable to such recipient as a result of the failure of
such recipient to satisfy the applicable requirements as set forth in FATCA after December 31,
2012.



     “Extension of Credit” shall mean, as to any Lender, the making of a Loan by such
Lender, any conversion of a Loan from one Type to another Type, any extension of any Loan or the
issuance, extension or renewal of, or participation in, a Letter of Credit or Swingline Loan by
such Lender.



13









 





     “FATCA” shall mean Sections 1471 through 1474 of the Code and any regulations with
respect thereto or official interpretations thereof.



     “Federal Funds Effective Rate” shall have the meaning set forth in the definition of
“Alternate Base Rate”.



     “Fee Letters” shall mean (a) the letter agreement dated September 27, 2010, addressed
to the Company from Wells Fargo and WFS and (b) the letter agreement dated September 27, 2010,
addressed to the Company from Wells Fargo, WFS, Bank of America, N.A. and Branch Banking & Trust
Company, in each case as amended, modified, extended, restated, replaced, or supplemented from time
to time.



     “Flood Hazard Property” shall mean any Mortgaged Property that is in an area
designated by the Federal Emergency Management Agency as having special flood or mudslide hazards.



     “Foreign Lender” shall mean any Lender or Issuing Lender, (a) with respect to any
Borrower other than a U.S. Borrower, that is treated as foreign by the jurisdiction in which such
Borrower is resident for tax purposes, and (b) with respect to any U.S. Borrower, that, (i) is not
a U.S. Person, or (ii) is a partnership or other entity treated as a partnership for U.S. federal
income tax purposes that is a U.S. Person, but only to the extent the beneficial owners (including
indirect partners if its direct partners are partnerships for U.S. federal income tax purposes that
are U.S. Persons) are not U.S. Persons.



     “Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.



     “Fronting Exposure” shall mean, at any time there is a Defaulting Lender, (a) with
respect to any Issuing Lender, such Defaulting Lender’s Applicable Percentage of the outstanding
LOC Obligations with respect to Letters of Credit issued by such Issuing Lender other than LOC
Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to
other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to
any Swingline Lender, such Defaulting Lender’s Applicable Percentage of outstanding Swingline Loans
made by such Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof.



     “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.



     “Funded Debt” shall mean, with respect to any Person, without duplication, all
Indebtedness of such Person (other than Indebtedness set forth in clauses (e), (i), and (n) of such
definition).



     “GAAP” shall mean generally accepted accounting principles in effect in the United
States of America (or, in the case of Foreign Subsidiaries with significant operations outside the
United States of America, generally accepted accounting principles in effect from time to time in



14









 




their respective jurisdictions of organization or formation) applied on a consistent basis,
subject, however, in the case of determination of compliance with the financial
covenants set out in Section 5.9 to the provisions of Section 1.3.




     “Government Acts” shall have the meaning set forth in Section 2.17.



     “Government Contract” shall mean any contract entered into between any Credit Party or
any of its Subsidiaries and the government of the United States of America, or any department,
agency, public corporation, or other instrumentality or agent thereof or any state government or
any department, agency or instrumentality or agent thereof providing for the sale of products or
services to a Governmental Authority.



     “Government Obligations” shall have the meaning set forth in the definition of “Cash
Equivalents.”



     “Governmental Authority” shall mean the government of the United States of America or
any other nation, or of any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the European Union or the
European Central Bank).



     “Guarantor” shall mean the Domestic Subsidiaries of the Company (other than the
Subsidiary Borrowers) as are, or may from time to time become parties to this Agreement.



     “Guaranty” shall mean the guaranty of the Guarantors set forth in Article X.



     “Guaranty Obligations” shall mean, with respect to any Person, without duplication,
any obligations of such Person (other than endorsements in the ordinary course of business of
negotiable instruments for deposit or collection) guaranteeing or intended to guarantee any
Indebtedness of any other Person in any manner, whether direct or indirect, and including, without
limitation, any obligation, whether or not contingent, (a) to purchase any such Indebtedness or any
property constituting security therefor, (b) to advance or provide funds or other support for the
payment or purchase of any such Indebtedness or to maintain working capital, solvency or other
balance sheet condition of such other Person (including, without limitation, keep well agreements,
maintenance agreements, comfort letters or similar agreements or arrangements) for the benefit of
any holder of Indebtedness of such other Person, (c) to lease or purchase property, securities or
services primarily for the purpose of assuring the holder of such Indebtedness, or (d) to otherwise
assure or hold harmless the holder of such Indebtedness against loss in respect thereof. The
amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth herein) be
deemed to be an amount equal to the outstanding principal amount (or maximum principal amount, if
larger) of the Indebtedness in respect of which such Guaranty Obligation is made, or, if such
amount is not stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined by such Person in
good faith.



15









 





     “Hedging Agreements” shall mean, with respect to any Person, any agreement entered
into to protect such Person against fluctuations in interest rates, or currency or raw materials
values, including, without limitation, any interest rate swap, cap or collar agreement or similar
arrangement between such Person and one or more counterparties, any foreign currency exchange
agreement, currency protection agreements, commodity purchase or option agreements or other
interest or exchange rate hedging agreements.



     “Indebtedness” shall mean, with respect to any Person, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon which interest payments are customarily
made, (c) all obligations of such Person under conditional sale or other title retention agreements
relating to property purchased by such Person (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary course of business), (d) all
obligations (including, without limitation, earnout obligations) of such Person incurred, issued or
assumed as the deferred purchase price of property or services purchased by such Person (other than
trade debt incurred in the ordinary course of business and due within six months of the incurrence
thereof) which would appear as liabilities on a balance sheet of such Person, (e) all obligations
of such Person under take-or-pay or similar arrangements or under commodities agreements, (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, or payable out of the proceeds of
production from, property owned or acquired by such Person, whether or not the obligations secured
thereby have been assumed, (g) all Guaranty Obligations of such Person with respect to Indebtedness
of another Person, (h) the principal portion of all Capital Lease Obligations plus any
accrued interest thereon, (i) all net obligations of such Person under Hedging Agreements, (j) the
maximum amount of all letters of credit issued or bankers’ acceptances facilities created for the
account of such Person and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (k) all preferred Equity Interests issued by such Person and which by the terms
thereof could be (at the request of the holders thereof or otherwise) subject to mandatory sinking
fund payments, redemption or other acceleration, (l) the principal balance outstanding under any
synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet
financing product plus any accrued interest thereon, (m) all obligations of any partnership
or unincorporated joint venture in which such Person is a general partner or a joint venturer to
the extent such obligations are recourse to such Person and (n) obligations of such Person under
non-compete agreements to the extent such obligations are quantifiable contingent obligations of
such Person under GAAP.



     “Indemnified Taxes” shall mean Taxes other than Excluded Taxes.



     “Indemnitee” shall have the meaning set forth in Section 9.5(b).



     “Insolvency” shall mean, with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of such term as used in Section 4245 of ERISA.



     “Intellectual Property” shall mean, collectively, all Copyrights, Copyright Licenses,
Patents, Patent Licenses, Trademarks and Trademark Licenses of the Credit Parties and their
Subsidiaries, all goodwill associated therewith and all rights to sue for infringement thereof.



16









 





     “Intercompany Debt” shall have the meaning set forth in Section 9.19.



     “Interest Determination Date” shall have the meaning specified in the definition of
“Applicable Margin”.



     “Interest Payment Date” shall mean (a) as to any Alternate Base Rate Loan, the last
Business Day of each March, June, September and December and on the Maturity Date, (b) as to any
LIBOR Rate Loan having an Interest Period of three months or less, the last day of such Interest
Period, (c) as to any LIBOR Rate Loan having an Interest Period longer than three months, (i) each
three (3) month anniversary following the first day of such Interest Period and (ii) the last day
of such Interest Period and (d) as to any Loan which is the subject of a mandatory prepayment
required pursuant to Section 2.7(b), the date on which such mandatory prepayment is due.



     “Interest Period” shall mean, with respect to any LIBOR Rate Loan,




     (a) initially, the period commencing on the Borrowing Date or conversion date, as the
case may be, with respect to such LIBOR Rate Loan and ending one, two, three or six, months
thereafter, subject to availability to all applicable Lenders, as selected by the applicable
Borrower in the Notice of Borrowing or Notice of Conversion given with respect thereto; and




     (b) thereafter, each period commencing on the last day of the immediately preceding
Interest Period applicable to such LIBOR Rate Loan and ending one, two, three or six, months
thereafter, subject to availability to all applicable Lenders, as selected by the applicable
Borrower by irrevocable notice to the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period with respect thereto;
provided that the foregoing provisions are subject to the following:




     (i) if any Interest Period pertaining to a LIBOR Rate Loan would otherwise end
on a day that is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;




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




     (iii) if the applicable Borrower shall fail to give notice as provided above,
the applicable Borrower shall be deemed to have selected an Alternate Base Rate Loan
to replace the affected LIBOR Rate Loan;



17









 






     (iv) no Interest Period in respect of any Loan shall extend beyond the Maturity
Date; and




     (v) no more than six (6) LIBOR Rate Loans may be in effect at any time. For
purposes hereof, LIBOR Rate Loans with different Interest Periods shall be
considered as separate LIBOR Rate Loans, even if they shall begin on the same date
and have the same duration, although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of existing Interest
Periods to constitute a new LIBOR Rate Loan with a single Interest Period.



     “Internal Control Event” shall mean a material weakness in, or material fraud that
involves management or other employees who have a significant role in, any Credit Party’s internal
controls over financial reporting, in each case as described in the Securities Laws.



     “Investment” shall mean (a) the acquisition (whether for cash, property, services,
assumption of Indebtedness, securities or otherwise) of Equity Interests, other ownership interests
or other securities of any Person or bonds, notes, debentures or all or substantially all of the
assets of any Person, (b) any deposit with, or advance, loan or other extension of credit to, any
Person (other than deposits made in the ordinary course of business) or (c) any other capital
contribution to or investment in any Person, including, without limitation, any Guaranty Obligation
(including any support for a letter of credit issued on behalf of such Person) incurred for the
benefit of such Person.



     “IPO” shall mean an equity issuance on or before the Closing Date by the Company
consisting of an underwritten primary public offering of the common Equity Interests of the Company
(i) pursuant to the IPO Documents (including without limitation an effective registration statement
filed with the Securities and Exchange Commission in accordance with the Securities Act) and (ii)
resulting in cash equity proceeds in an amount sufficient to consummate the Acquisition and cause
all principal, interest and other amounts outstanding in connection with existing subordinated debt
of the Credit Parties (including the Acquired Business) to be paid in full; and shall include the
exercise thereafter of any over-allotment option that exists based on over-subscriptions as of the
Closing Date.



     “IPO Documents” shall mean the Form S-1 Registration Statement filed by the Company
which became effective on October 18, 2010, as declared effective by the SEC.



     “Issuing Lender” shall mean, with respect to any Existing Letter of Credit and all
other Letters of Credit, Wells Fargo, together with any successor.



     “Issuing Lender Fees” shall have the meaning set forth in Section 2.5(c).



     “Joinder Agreement” shall mean a Joinder Agreement in substantially the form of
Exhibit 1.1(c), executed and delivered by an Additional Credit Party in accordance with the
provisions of Section 5.10.



18









 





     “Lender” shall mean any of the several banks and other financial institutions as are,
or may from time to time become parties to this Agreement; provided that notwithstanding
the foregoing, “Lender” shall not include any Credit Party or any of the Credit Party’s Affiliates
or Subsidiaries.



     “Lender Commitment Letter” shall mean, with respect to any Lender, the letter (or
other correspondence) to such Lender from the Administrative Agent notifying such Lender of its LOC
Commitment and/or Revolving Commitment Percentage.



     “Letter of Credit” shall mean (a) any letter of credit issued by the Issuing Lender
pursuant to the terms hereof, as such letter of credit may be amended, modified, restated,
extended, renewed, increased, replaced or supplemented from time to time in accordance with the
terms of this Agreement and (b) any Existing Letter of Credit, in each case as such letter of
credit may be amended, modified, extended, renewed or replaced from time to time in accordance with
the terms of this Agreement.



     “Letter of Credit Facing Fee” shall have the meaning set forth in Section 2.5(c).



     “Letter of Credit Fee” shall have the meaning set forth in Section 2.5(b).



     “LIBOR” shall mean, for any LIBOR Rate Loan for any Interest Period therefor, the rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen
LIBOR01 Page (or any successor page) as the London interbank offered rate for deposits in Dollars
at approximately 11:00 A.M. (London time) two (2) Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for any reason such rate is not
available, then “LIBOR” shall mean the rate per annum at which, as determined by the Administrative
Agent in accordance with its customary practices, Dollars in an amount comparable to the Loans then
requested are being offered to leading banks at approximately 11:00 A.M. London time, two (2)
Business Days prior to the commencement of the applicable Interest Period for settlement in
immediately available funds by leading banks in the London interbank market for a period equal to
the Interest Period selected.



     “LIBOR Lending Office” shall mean, initially, the office(s) of each Lender designated
as such Lender’s LIBOR Lending Office in such Lender’s Administrative Questionnaire; and
thereafter, such other office of such Lender as such Lender may from time to time specify to the
Administrative Agent and the Company as the office of such Lender at which the LIBOR Rate Loans of
such Lender are to be made.



     “LIBOR Rate” shall mean a LIBOR rate per annum (rounded upwards, if necessary, to the
next higher 1/100th of 1%) determined by the Administrative Agent in accordance with the definition
of “LIBOR”.



     “LIBOR Rate Loan” shall mean Loans the rate of interest applicable to which is based
on the LIBOR Rate.



19









 





     “LIBOR Tranche” shall mean the collective reference to LIBOR Rate Loans whose Interest
Periods begin and end on the same day.



     “Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security interest or any
preference, priority or other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title retention agreement
and any Capital Lease having substantially the same economic effect as any of the foregoing.



     “Loan” shall mean a Revolving Loan and/or a Swingline Loan, as appropriate.



     “LOC Commitment” shall mean the commitment of the Issuing Lender to issue Letters of
Credit and with respect to each Revolving Lender, the commitment of such Revolving Lender to
purchase Participation Interests in the Letters of Credit up to such Lender’s Revolving Commitment
Percentage of the LOC Committed Amount.



     “LOC Committed Amount” shall have the meaning set forth in Section 2.3(a).



     “LOC Documents” shall mean, with respect to each Letter of Credit, such Letter of
Credit, any amendments thereto, any documents delivered in connection therewith, any application
therefor, and any agreements, instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or providing for (a) the rights
and obligations of the parties concerned or (b) any collateral for such obligations.



     “LOC Obligations” shall mean, at any time, the sum of (a) the maximum amount which is,
or at any time thereafter may become, available to be drawn under Letters of Credit then
outstanding, assuming compliance with all requirements for drawings referred to in such Letters of
Credit plus (b) the aggregate amount of all drawings under Letters of Credit honored by the
Issuing Lender but not theretofore reimbursed.



     “Mandatory LOC Borrowing” shall have the meaning set forth in Section 2.3(e).



     “Mandatory Swingline Borrowing” shall have the meaning set forth in Section
2.4(b)(ii).



     “Material Adverse Effect” shall mean a material adverse effect on (a) the business,
operations, property, assets, condition (financial or otherwise) of the Borrowers or of the Company
and its Subsidiaries taken as a whole, (b) the ability of the Borrowers or any Guarantor to perform
its obligations, when such obligations are required to be performed, under this Agreement, any of
the Notes or any other Credit Document or (c) the validity or enforceability of this Agreement, any
of the Notes or any of the other Credit Documents, the Administrative Agent’s Liens (for the
benefit of the Secured Parties) on the Collateral or the priority of such Liens or the rights or
remedies of the Administrative Agent or the Lenders hereunder or thereunder.



     “Material Contract” shall mean (a) any contract or other agreement listed on
Schedule 3.23, (b) any contract or other agreement, written or oral, of the Credit Parties
or any of



20









 




their Subsidiaries involving monetary liability of or to any such Person in an amount in excess of
$1,500,000 per annum, (c) any contract or other agreement, written or oral, of the Credit Parties
or any of their Subsidiaries representing at least $4,000,000 of the total Consolidated revenues of
the Credit Parties and their Subsidiaries for any fiscal year and (d) any other contract,
agreement, permit or license, written or oral, of the Credit Parties or any of their Subsidiaries
as to which the breach, nonperformance, cancellation or failure to renew by any party thereto,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.




     “Material Domestic Subsidiary” shall mean any Domestic Subsidiary of the Company that,
together with its Subsidiaries, (a) generates more than 5% of Consolidated EBITDA on a Pro Forma
Basis for the four (4) fiscal quarter period most recently ended or (b) owns more than 5% of the
Consolidated Assets as of the last day of the most recently ended fiscal quarter of the Company;
provided, however, that if at any time there are Domestic Subsidiaries which are
not classified as “Material Domestic Subsidiaries” but which collectively (i) generate more than
10% of Consolidated EBITDA on a Pro Forma Basis or (ii) own more than 10% of the Consolidated
Assets as of the last day of the most recently ended fiscal quarter of the Company, then the
Company shall promptly designate one or more of such Domestic Subsidiaries as Material Domestic
Subsidiaries and cause any such Domestic Subsidiaries to comply with the provisions of Section 5.10
such that, after such Domestic Subsidiaries become Guarantors hereunder, the Domestic Subsidiaries
that are not Guarantors shall (iii) generate less than 10% of Consolidated EBITDA and (iv) own less
than 10% of the Consolidated Assets.



     “Material Government Contract” shall mean a Government Contract that is a Material
Contract.



     “Materials of Environmental Concern” shall mean any gasoline or petroleum (including
crude oil or any extraction thereof) or petroleum products or any hazardous or toxic substances,
materials or wastes, defined or regulated as such in or under any Environmental Law, including,
without limitation, asbestos, perchlorate, polychlorinated biphenyls and urea-formaldehyde
insulation.



     “Maturity Date” shall mean the date that is three years following the Closing Date;
provided, however, if such date is not a Business Day, the Maturity Date shall be
the next Business Day.



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



     “Mortgage Instrument” shall mean any mortgage, deed of trust or deed to secure debt
executed by a Credit Party in favor of the Administrative Agent, for the benefit of the Secured
Parties, as the same may be amended, modified, extended, restated, replaced, or supplemented from
time to time.



     “Mortgage Policy” shall mean, with respect to any Mortgage Instrument, an ALTA
mortgagee title insurance policy issued by a title insurance company (the “Title Insurance
Company”) selected by the Administrative Agent in an amount satisfactory to the Administrative
Agent, in form and substance satisfactory to the Administrative Agent.



21









 





     “Mortgaged Property” shall mean any owned real property of a Credit Party listed on
Schedule 3.16(f)(i) and any other owned real property of a Credit Party that is or will
become encumbered by a Mortgage Instrument in favor of the Administrative Agent pursuant to the
requirements of Section 5.12 of this Agreement.



     “Multiemployer Plan” shall mean a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.



     “Net Cash Proceeds” shall mean the aggregate cash proceeds received by any Credit
Party or any Subsidiary in respect of any Asset Disposition, net of (a) reasonable and customary
direct costs (including, without limitation, legal, accounting and investment banking fees, and
sales commissions) associated therewith and paid to Persons who are not Credit Parties or their
Affiliates, (b) amounts held in escrow to be applied as part of the purchase price of any Asset
Disposition, (c) taxes paid or reasonably estimated to be payable as a result thereof, and (d)
amounts required to be applied to permanently repay any Indebtedness secured (on a senior basis) by
the asset subject to such Asset Disposition; it being understood that “Net Cash Proceeds” shall
include, without limitation, any cash received upon the sale or other disposition of any non-cash
consideration received by any Credit Party or any Subsidiary in any Asset Disposition and any cash
released from escrow as part of the purchase price in connection with any Asset Disposition.



     “Net Income Taxes” shall mean, with respect to the Administrative Agent, any Lender,
the Issuing Lender or any other recipient of any payment to be made by or on account of any
obligation of any Credit Party under any Credit Document, (a) any Taxes imposed on or measured by
such recipient’s overall net income (however denominated), or any franchise Taxes imposed on such
recipient in lieu of net income Taxes by the jurisdiction (or any political subdivision thereof)
under the laws of which such recipient is organized or in which its principal office is located or,
in the case of any Lender, in which its applicable lending office is located, and (b) any branch
profits Taxes imposed by the United States or any similar tax imposed by any other jurisdiction in
which any Borrower is located.



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



     “Note” or “Notes” shall mean the Revolving Loan Notes and/or the Swingline
Loan Note, collectively, separately or individually, as appropriate.



     “Notice of Borrowing” shall mean a request for a Revolving Loan borrowing pursuant to
Section 2.1(b)(i) or a request for a Swingline Loan borrowing pursuant to Section 2.4(b)(i), as
appropriate. A Form of Notice of Borrowing is attached as Exhibit 1.1(d).



     “Notice of Conversion/Extension” shall mean the written notice of conversion of a
LIBOR Rate Loan to an Alternate Base Rate Loan or an Alternate Base Rate Loan to a LIBOR Rate Loan,
or extension of a LIBOR Rate Loan, in each case substantially in the form of Exhibit
1.1(e).



22









 





     “Obligations” shall mean, collectively, all of the obligations, Indebtedness and
liabilities of the Credit Parties to the Lenders (including the Issuing Lender) and the
Administrative Agent, whenever arising, under this Agreement, the Notes or any of the other Credit
Documents, including principal, interest, fees, costs, charges, expenses, professional fees,
reimbursements, all sums chargeable to the Credit Parties or for which any Credit Party is liable
as an indemnitor and whether or not evidenced by a note or other instrument and indemnification
obligations and other amounts (including, but not limited to, any interest accruing after the
occurrence of a filing of a petition of bankruptcy under the Bankruptcy Code with respect to any
Credit Party, regardless of whether such interest is an allowed claim under the Bankruptcy Code).



     “OFAC” shall mean the U.S. Department of the Treasury’s Office of Foreign Assets
Control.



     “Operating Lease” shall mean, as applied to any Person, any lease (including, without
limitation, leases which may be terminated by the lessee at any time) of any property (whether
real, personal or mixed) which is not a Capital Lease other than any such lease in which that
Person is the lessor.



     “Other Connection Taxes” shall mean, with respect to the Administrative Agent, any
Lender, any Issuing Lender or any other recipient of any payment to be made by or on account of any
obligation of any Credit Party under any Credit Document, Taxes imposed as a result of a present or
former connection between such recipient and the jurisdiction imposing such Tax (other than
connections arising from such recipient having executed, delivered, or become a party to, performed
its obligations or received payments under, received or perfected a security interest under,
engaged in any other transaction pursuant to, or enforced, any Credit Document, or sold or assigned
an interest in any Loan or Credit Document).



     “Other Taxes” shall mean all present or future stamp, court or documentary Taxes and
any other excise, property, intangible, recording, filing or similar Taxes which arise from any
payment made under, from the execution, delivery, performance, enforcement or registration of, from
the receipt or perfection of a security interest under, or otherwise with respect to, any Credit
Document.



     “Participant” has the meaning assigned to such term in clause (d) of Section 9.6.



     “Participation Interest” shall mean a participation interest purchased by a Revolving
Lender in LOC Obligations as provided in Section 2.3(c) and in Swingline Loans as provided in
Section 2.4.



     “Patent Licenses” shall mean any agreement, whether written or oral, providing for the
grant by or to a Person of any right to manufacture, use or sell any invention covered by a Patent.



     “Patents” shall mean (a) all letters patent of the United States or any other country,
now existing or hereafter arising, and all improvement patents, reissues, reexaminations, patents
of additions, renewals and extensions thereof and (b) all applications for letters patent of the
United



23









 




States or any other country and all provisionals, divisions, continuations and
continuations-in-part and substitutes thereof.




     “Patriot Act” shall mean the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (Title
III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as amended or modified from time to
time.



     “Payment Event of Default” shall mean an Event of Default specified in Section 7.1(a).



     “PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.



     “Permitted Acquisition” shall mean an acquisition or any series of related
acquisitions by a Credit Party of (a) all or substantially all of the assets or a majority of the
outstanding Voting Stock or economic interests of a Person that is incorporated, formed or
organized in the United States, (b) a Person that is incorporated, formed or organized in the
United States by a merger, amalgamation or consolidation or any other combination with such Person
or (c) any division, line of business or other business unit of a Person that is incorporated,
formed or organized in the United States (such Person or such division, line of business or other
business unit of such Person shall be referred to herein as the “Target”), in each case
that is a type of business (or assets used in a type of business) permitted to be engaged in by the
Credit Parties and their Subsidiaries pursuant to Section 6.3, in each case so long as:




     (i) no Default or Event of Default shall then exist or would exist after giving
effect thereto;




     (ii) the Credit Parties shall demonstrate to the reasonable satisfaction of the
Administrative Agent that, after giving effect to the acquisition on a Pro Forma
Basis, (A) the Credit Parties are in compliance with each of the financial covenants
set forth in Section 5.9 and (B) the Total Leverage Ratio shall be 0.25 to 1.0 less
than the then applicable level set forth in Section 5.9;




     (iii) the Administrative Agent, on behalf of the Secured Parties, shall have
received (or shall receive in connection with the closing of such acquisition) a
first priority perfected security interest in all property (including, without
limitation, Equity Interests) acquired with respect to the Target in accordance with
the terms of Sections 5.10 and 5.12 and the Target, if a Person, shall have executed
a Joinder Agreement in accordance with the terms of Section 5.10;




     (iv) the Administrative Agent and the Lenders shall have received (A) a
description of the material terms of such acquisition, (B) audited financial
statements (or, if unavailable, management-prepared financial statements) of the
Target for its two most recent fiscal years and for any fiscal quarters ended within
the fiscal year to date, (C) Consolidated projected income statements of the Company
and its Subsidiaries (giving effect to such acquisition), and (D) not less



24









 







than five (5) Business Days prior to the consummation of any Permitted
Acquisition with a purchase price in excess of $1,000,000, a certificate
substantially in the form of Exhibit 1.1(f), executed by an Authorized
Officer of the Company certifying that such Permitted Acquisition complies with the
requirements of this Agreement;




     (v) the Target shall have earnings before interest, taxes, depreciation and
amortization for the four fiscal quarter period prior to the acquisition date, and
after giving effect to any pro forma adjustments reasonably acceptable to the
Administrative Agent, in an amount greater than $0;




     (vi) such acquisition shall not be a “hostile” acquisition and shall have been
approved by the Board of Directors (or equivalent) and/or shareholders (or
equivalent) of the applicable Credit Party and the Target; and




     (vii) the aggregate consideration (including, without limitation, equity
consideration, earn out obligations, deferred compensation, non-competition
arrangements and the amount of Indebtedness and other liabilities incurred or
assumed by the Credit Parties and their Subsidiaries) paid by the Credit Parties and
their Subsidiaries (A) in connection with any single acquisition shall not exceed
$2,500,000 and (B) for all acquisitions made during the term of this Agreement shall
not exceed $5,000,000.



     “Permitted Investments” shall have the meaning set forth in Section 6.5.



     “Permitted Liens” shall have the meaning set forth in Section 6.2.



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



     “Plan” shall mean, as of any date of determination, any employee benefit plan which is
covered by Title IV of ERISA and in respect of which any Credit Party or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an “employer” as defined in Section 3(5) of ERISA.



     “Pledge Agreement” shall mean the Pledge Agreement dated as of the Closing Date
executed by the Credit Parties in favor of the Administrative Agent, for the benefit of the Secured
Parties, as the same may from time to time be amended, modified, extended, restated, replaced, or
supplemented from time to time in accordance with the terms hereof and thereof.



     “Prime Rate” shall have the meaning set forth in the definition of Alternate Base
Rate.



     “Pro Forma Basis” shall mean, with respect to any transaction, that such transaction
shall be deemed to have occurred as of the first day of the four-quarter period (or twelve month
period, as applicable) ending as of the most recent quarter end (or month end, as applicable)
preceding the date of such transaction for which financial statement information is available.




25











 





     “Properties” shall have the meaning set forth in Section 3.10(a).



     “Recovery Event” shall mean the receipt by any Credit Party or its Subsidiaries of any
cash insurance proceeds or condemnation award payable by reason of theft, loss, physical
destruction or damage, taking or similar event with respect to any of their respective property or
assets.



     “Register” shall have the meaning set forth in Section 9.6(c).



     “Reimbursement Obligation” shall mean the obligation of the Borrowers to reimburse the
Issuing Lender pursuant to Section 2.3(d) for amounts drawn under Letters of Credit.



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



     “Reorganization” shall mean, with respect to any Multiemployer Plan, the condition
that such Plan is in reorganization within the meaning of such term as used in Section 4241 of
ERISA.



     “Reportable Event” shall mean any of the events set forth in Section 4043(c) of ERISA,
other than those events as to which the thirty-day notice period is waived under PBGC Reg. §4043.



     “Required Lenders” shall mean, at any time, Lenders having more than fifty percent
(50%) of (a) the Commitments or (b) if the Commitments have been terminated, the aggregate
principal amount of Loans (including the Participation Interests of the Issuing Lender in any
Letters of Credit and of the Swingline Lender in any Swingline Loans) outstanding; provided
that the Commitments of, and outstanding Loans owing to, a Defaulting Lender shall be excluded for
purposes hereof in making a determination of Required Lenders; provided, further that Required
Lenders must include at least two (2) Lenders.



     “Requirement of Law” shall mean, as to any Person, (a) the articles or certificate of
incorporation, by-laws or other organizational or governing documents of such Person, and (b) all
international, foreign, Federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes, executive orders, and administrative or judicial precedents or
authorities, including the interpretation or administration thereof by any Governmental Authority
charged with the enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authority (in each case whether or not having the force of law);
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.



26









 





     “Responsible Officer” shall mean, for any Credit Party, the chief executive officer,
the president or chief financial officer of such Credit Party and any additional responsible
officer that is designated as such to the Administrative Agent.



     “Restricted Payment” shall mean (a) any dividend or other distribution, direct or
indirect, on account of any shares (or equivalent) of any class of Equity Interests of any Credit
Party or any of its Subsidiaries, now or hereafter outstanding, (b) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of
any shares (or equivalent) of any class of Equity Interests of any Credit Party or any of its
Subsidiaries, now or hereafter outstanding, (c) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire shares of any class of
Equity Interests of any Credit Party or any of its Subsidiaries, now or hereafter outstanding, (d)
any payment with respect to any earnout obligation, (e) any payment or prepayment of principal of,
premium, if any, or interest on, redemption, purchase, retirement, defeasance, sinking fund or
similar payment with respect to, any Subordinated Debt of any Credit Party or any of its
Subsidiaries, (f) the payment by any Credit Party or any of its Subsidiaries of any management,
advisory or consulting fee to any of its Affiliates or (g) the payment of any extraordinary salary,
bonus or other form of compensation to any Person who is directly or indirectly a significant
partner, shareholder, owner or executive officer of any such Person, to the extent such
extraordinary salary, bonus or other form of compensation is not included in the corporate overhead
of such Credit Party or such Subsidiary.



     “Revolving Commitment” shall mean, with respect to each Revolving Lender, the
commitment of such Revolving Lender to make Revolving Loans in an aggregate principal amount at any
time outstanding up to an amount equal to such Revolving Lender’s Revolving Commitment Percentage
of the Revolving Committed Amount.



     “Revolving Commitment Percentage” shall mean, for each Lender, the percentage
identified as its Revolving Commitment Percentage in its Lender Commitment Letter or in the
Assignment and Assumption pursuant to which such Lender became a Lender hereunder, as such
percentage may be modified in connection with any assignment made in accordance with the provisions
of Section 9.6(b).



     “Revolving Committed Amount” shall have the meaning set forth in Section 2.1(a).



     “Revolving Facility” shall have the meaning set forth in Section 2.1(a).



     “Revolving Loan” shall have the meaning set forth in Section 2.1.



     “Revolving Loan Note” or “Revolving Loan Notes” shall mean the promissory
notes of the Borrowers provided pursuant to Section 2.1(e) in favor of any of the Revolving Lenders
evidencing the Revolving Loan provided by any such Revolving Lender pursuant to Section 2.1(a),
individually or collectively, as appropriate, as such promissory notes may be amended, modified,
extended, restated, replaced, or supplemented from time to time.



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     “S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw Hill
Companies, Inc.



     “Sanctioned Entity” shall mean (a) a country or a government of a country, (b) an
agency of the government of a country, (c) an organization directly or indirectly controlled by a
country or its government, or (d) a person or entity resident in or determined to be resident in a
country, that is subject to a country sanctions program administered and enforced by OFAC.



     “Sanctioned Person” shall mean a person named on the list of Specially Designated
Nationals maintained by OFAC.



     “Sarbanes-Oxley” shall mean the Sarbanes-Oxley Act of 2002.



     “Scheduled Funded Debt Payments” shall mean, as of any date of determination for the
four (4) consecutive fiscal quarter period ending on such date, the sum of all regularly scheduled
payments of principal on Funded Debt of the Credit Parties and their Subsidiaries on a Consolidated
basis for the applicable period ending on the date of determination (including the principal
component of payments due on Capital Leases during the applicable period ending on the date of
determination) to the extent actually paid in cash.



     “SEC” shall mean the Securities and Exchange Commission or any successor Governmental
Authority.



     “Secured Parties” shall mean the Administrative Agent, the Lenders and, subject to the
restrictions contained in the definition of Bank Product, the Bank Product Providers.



     “Securities Account Control Agreement” shall mean an agreement, among a Credit Party,
a securities intermediary, and the Administrative Agent, which agreement is in a form reasonably
acceptable to the Administrative Agent and which provides the Administrative Agent with “control”
(as such term is used in Articles 8 and 9 of the UCC) over the securities account(s) described
therein, as the same may be as amended, modified, extended, restated, replaced, or supplemented
from time to time.



     “Securities Act” shall mean the Securities Act of 1933, together with any amendment
thereto or replacement thereof and any rules or regulations promulgated thereunder.



     “Securities Laws” shall mean the Securities Act, the Exchange Act, Sarbanes-Oxley and
the applicable accounting and auditing principles, rules, standards and practices promulgated,
approved or incorporated by the SEC or the Public Company Accounting Oversight Board, as each of
the foregoing may be amended and in effect on any applicable date hereunder.



     “Security Agreement” shall mean the Security Agreement dated as of the Closing Date
executed by the Credit Parties in favor of the Administrative Agent, for the benefit of the Secured
Parties, as amended, modified, extended, restated, replaced, or supplemented from time to time in
accordance with its terms.



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     “Security Documents” shall mean the Security Agreement, the Pledge Agreement, any
Deposit Account Control Agreement, any Securities Account Control Agreement, the Mortgage
Instruments and all other agreements, documents and instruments relating to, arising out of, or in
any way connected with any of the foregoing documents or granting to the Administrative Agent, for
the benefit of the Secured Parties, Liens or security interests to secure, inter alia, the Credit
Party Obligations whether now or hereafter executed and/or filed, each as may be amended from time
to time in accordance with the terms hereof, executed and delivered in connection with the
granting, attachment and perfection of the Administrative Agent’s security interests and liens
arising thereunder, including, without limitation, UCC financing statements.



     “Sellers” shall mean Culligan Store Solutions, LLC and Culligan of Canada Ltd..



     “Series A Preferred Stock” shall mean the eighteen million seven hundred eighty
thousand (18,780,000) shares of the authorized preferred stock of the Company, designated by the
Company in the Amended and Restated Articles of Incorporation as the Series A Convertible Preferred
Stock.



     “Series B Preferred Stock” shall mean the thirty million (30,000,000) shares of the
authorized preferred stock of the Company, designated by the Company in the Amended and Restated
Articles of Incorporation as the Series B Non-voting Preferred Stock.



     “Series C Preferred Stock” shall mean the fourteen million (14,000,000) shares of the
authorized preferred stock of the Company, designated by the Company in the Amended and Restated
Articles of Incorporation as the Series C Convertible Preferred Stock.



     “Single Employer Plan” shall mean any Plan that is not a Multiemployer Plan.



     “Specified Representations” shall have the meaning set forth in Section 4.1.



     “Subordinated Debt” shall mean any Indebtedness incurred by any Credit Party which by
its terms is specifically subordinated in right of payment to the prior payment of the Credit Party
Obligations and contains subordination and other terms acceptable to the Administrative Agent.



     “Subsidiary” shall mean, as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the board of directors or other
managers of such corporation, limited liability company, partnership or other entity are at the
time owned, or the management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a
“Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Company.



     “Subsidiary Borrowers” shall mean the Material Domestic Subsidiaries of the Company as
are, or may from time to time become parties to this Credit Agreement as Subsidiary Borrowers.



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     “Swingline Commitment” shall mean the commitment of the Swingline Lender to make
Swingline Loans in an aggregate principal amount at any time outstanding up to the Swingline
Committed Amount, and the commitment of the Revolving Lenders to purchase participation interests
in the Swingline Loans as provided in Section 2.4(b)(ii), as such amounts may be reduced from time
to time in accordance with the provisions hereof.



     “Swingline Committed Amount” shall mean the amount of the Swingline Lender’s Swingline
Commitment as specified in Section 2.4(a).



     “Swingline Exposure” means, with respect to any Lender, an amount equal to the
Applicable Percentage of such Lender multiplied by the principal amount of outstanding Swingline
Loans.



     “Swingline Lender” shall mean Wells Fargo and any successor swingline lender.



     “Swingline Loan” shall have the meaning set forth in Section 2.4(a).



     “Swingline Loan Note” shall mean the promissory note of the Borrowers in favor of the
Swingline Lender evidencing the Swingline Loans provided pursuant to Section 2.4(d), as such
promissory note may be amended, modified, extended, restated, replaced, or supplemented from time
to time.



     “Target” shall have the meaning set forth in the definition of “Permitted
Acquisition”.



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



     “Title Insurance Company” shall have the meaning set forth in the definition of
“Mortgage Policy”.



     “Total Leverage Ratio” shall mean, as of any date of determination, for the Credit
Parties and their Subsidiaries on a Consolidated basis, the ratio of (a) Consolidated Funded Debt
on such date to (b) Consolidated EBITDA for the four (4) consecutive quarters ending on such date.



     “Trademark License” shall mean any agreement, whether written or oral, providing for
the grant by or to a Person of any right to use any Trademark.



     “Trademarks” shall mean (a) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, service marks, elements of package or trade dress
of goods or services, logos and other source or business identifiers, together with the goodwill
associated therewith, all registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any similar office or
agency of the United States, any State thereof or any other country or any political subdivision
thereof and (b) all renewals thereof.



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     “Tranche” shall mean the collective reference to (a) LIBOR Rate Loans whose Interest
Periods begin and end on the same day and (b) Alternate Base Rate Loans made on the same day.



     “Transactions” shall mean the closing of this Agreement and the other Credit Documents
and the consummation of the Acquisition and the other transactions contemplated hereby and pursuant
to the other Credit Documents (including, without limitation, the initial borrowings under the
Credit Documents and the payment of fees and expenses in connection with all of the foregoing).



     “Transfer Effective Date” shall have the meaning set forth in each Assignment and
Assumption.



     “Type” shall mean, as to any Loan, its nature as an Alternate Base Rate Loan or LIBOR
Rate Loan, as the case may be.



     “UCC” shall mean the Uniform Commercial Code from time to time in effect in any
applicable jurisdiction.



     “U.S. Tax Compliance Certificate” has the meaning set forth in Section 2.16(f) and
shall be in substantially the same form as the applicable certificate set forth on Exhibit
2.16.



     “Voting Stock” shall mean, with respect to any Person, Equity Interests issued by such
Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar functions) of such Person, even though the
right so to vote may be or have been suspended by the happening of such a contingency.



     “Wells Fargo” shall mean Wells Fargo Bank, National Association, a national banking
association, together with its successors and/or assigns.



     “WFS” shall mean Wells Fargo Securities, LLC, together with its successors and
assigns.



     “Withholding Agent” shall mean a Credit Party, the Administrative Agent, or, in the
case of any Lender that is treated as a partnership for U.S. federal income tax purposes, such
Lender or any partnership for U.S. federal income tax purposes that is a direct or indirect
(through a chain of entities treated as flow-through entities for U.S. federal income tax purposes)
beneficial owner of such Lender, or any of their respective agents, that is required under
applicable law to deduct or withhold any Tax from a payment by or on account of any obligation of
any Credit Party under any Credit Document.



     “Works” shall mean all works which are subject to copyright protection pursuant to
Title 17 of the United States Code.



31









 





     Section 1.2 Other Definitional Provisions.



     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.” Unless the context requires otherwise (a)
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 from time to time
amended, restated, supplemented, amended and restated or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person’s successors and assigns, (c) the
words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer
to this Agreement in its entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules (as updated from time to time by the Company in accordance
with the terms of this Agreement) to, this Agreement, (e) any reference to any law or regulation
herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, (f) the words “asset” and “property” shall be construed to have the
same meaning and effect and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights and (g) all terms defined in this
Agreement shall have the defined meanings when used in any other Credit Document or any certificate
or other document made or delivered pursuant hereto.



     Section 1.3 Accounting Terms.




     (a) Generally. All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from
time to time, applied in a manner consistent with that used in preparing the most recently
delivered audited Consolidated financial statements of the Company and its Subsidiaries,
except as otherwise specifically prescribed herein.




     (b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Credit Document, and
either the Company or the Required Lenders shall so request, the Administrative Agent, the
Lenders and the Company shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Company shall provide to the Administrative Agent and the
Lenders financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP.



32









 






     (c) Financial Covenant Calculations. The parties hereto acknowledge and agree
that, for purposes of all calculations made in determining compliance for any applicable
period with the financial covenants set forth in Section 5.9 and for purposes of determining
the Applicable Margin, (i) after consummation of any Permitted Acquisition, (A) income
statement items and other balance sheet items (whether positive or negative) attributable to
the Target acquired in such transaction shall be included in such calculations to the extent
relating to such applicable period, subject to adjustments mutually acceptable to the
Company and the Administrative Agent and (B) Indebtedness of a Target which is retired in
connection with a Permitted Acquisition shall be excluded from such calculations and deemed
to have been retired as of the first day of such applicable period and (ii) after any Asset
Disposition permitted by Section 6.4(a)(vi), (A) income statement items, cash flow statement
items and balance sheet items (whether positive or negative) attributable to the property or
assets disposed of shall be excluded in such calculations to the extent relating to such
applicable period, subject to adjustments mutually acceptable to the Company and the
Administrative Agent and (B) Indebtedness that is repaid with the proceeds of such Asset
Disposition shall be excluded from such calculations and deemed to have been repaid as of
the first day of such applicable period.



     Section 1.4 Time References.



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



     Section 1.5 Execution of Documents.



     Unless otherwise specified, all Credit Documents and all other certificates executed in
connection therewith must be signed by an Authorized Officer.



ARTICLE II




THE LOANS; AMOUNT AND TERMS



     Section 2.1 Revolving Loans.




     (a) Revolving Commitment. During the Commitment Period, subject to the terms
and conditions hereof, each Revolving Lender severally, but not jointly, agrees to make
revolving credit loans in Dollars (“Revolving Loans”) to the Borrowers from time to
time in an aggregate principal amount of up to FORTY MILLION DOLLARS ($40,000,000) (as such
aggregate maximum amount may be reduced from time to time as provided in Section 2.6, the
“Revolving Committed Amount”) for the purposes hereinafter set forth (such facility,
the “Revolving Facility”); provided, however, that (i) with regard
to each Revolving Lender individually, the sum of such Revolving Lender’s Revolving
Commitment Percentage of the aggregate principal amount of outstanding Revolving Loans
plus such Revolving Lender’s Revolving Commitment Percentage of outstanding
Swingline Loans plus such Revolving Lender’s Revolving Commitment



33









 






Percentage of outstanding LOC Obligations shall not exceed such Revolving Lender’s
Revolving Commitment and (ii) with regard to the Revolving Lenders collectively, the sum of
the aggregate principal amount of outstanding Revolving Loans plus outstanding
Swingline Loans plus outstanding LOC Obligations shall not exceed the Revolving
Committed Amount then in effect. Revolving Loans may consist of Alternate Base Rate Loans
or LIBOR Rate Loans, or a combination thereof, as the applicable Borrower may request, and
may be repaid and reborrowed in accordance with the provisions hereof; provided,
however, the Revolving Loans made on the Closing Date or any of the three (3)
Business Days following the Closing Date, may only consist of Alternate Base Rate Loans
unless the Borrowers deliver a funding indemnity letter, substantially in the form of
Exhibit 2.1(a), reasonably acceptable to the Administrative Agent not less than
three (3) Business Days prior to the Closing Date. LIBOR Rate Loans shall be made by each
Revolving Lender at its LIBOR Lending Office and Alternate Base Rate Loans at its Domestic
Lending Office.



          (b) Revolving Loan Borrowings.





     (i) Notice of Borrowing. The applicable Borrower shall request a
Revolving Loan borrowing by delivering a written Notice of Borrowing (or telephone
notice promptly confirmed in writing by delivery of a written Notice of Borrowing,
which delivery may be by fax) to the Administrative Agent not later than 11:00 A.M.
on the Business Day prior to the date of the requested borrowing in the case of
Alternate Base Rate Loans, and on the third Business Day prior to the date of the
requested borrowing in the case of LIBOR Rate Loans. Each such Notice of Borrowing
shall be irrevocable and shall specify (A) that a Revolving Loan is requested, (B)
the date of the requested borrowing (which shall be a Business Day), (C) the
aggregate principal amount to be borrowed (D) the applicable Borrower, (E) the
applicable wiring instructions for such borrowing and (F) whether the borrowing
shall be comprised of Alternate Base Rate Loans, LIBOR Rate Loans or a combination
thereof, and if LIBOR Rate Loans are requested, the Interest Period(s) therefor. If
the applicable Borrower shall fail to specify in any such Notice of Borrowing (1) an
applicable Interest Period in the case of a LIBOR Rate Loan, then such notice shall
be deemed to be a request for an Interest Period of one month, or (2) the Type of
Revolving Loan requested, then such notice shall be deemed to be a request for an
Alternate Base Rate Loan hereunder. The Administrative Agent shall give notice to
each Revolving Lender promptly upon receipt of each Notice of Borrowing, the
contents thereof and each such Revolving Lender’s share thereof.




     (ii) Minimum Amounts. Each Revolving Loan that is made as an Alternate
Base Rate Loan shall be in a minimum aggregate amount of $250,000 and in integral
multiples of $250,000 in excess thereof (or the remaining amount of the Revolving
Committed Amount, if less). Each Revolving Loan that is made as a LIBOR Rate Loan
shall be in a minimum aggregate amount of $1,000,000



34









 






and in integral multiples of
$500,000 in excess thereof (or the remaining amount of the Revolving Committed
Amount, if less).




     (iii) Advances. Each Revolving Lender will make its Revolving
Commitment Percentage of each Revolving Loan borrowing available to the
Administrative Agent for the account of the applicable Borrower at the office of the
Administrative Agent specified in Section 9.2, or at such other office as the
Administrative Agent may designate in writing, by 1:00 P.M. on the date specified in
the applicable Notice of Borrowing, in Dollars and in funds immediately available to
the Administrative Agent. Such borrowing will then be made available to the
applicable Borrower by the Administrative Agent by crediting the account of the
applicable Borrower on the books of such office (or such other account that the
applicable Borrower may designate in writing to the Administrative Agent pursuant to
the Notice of Borrowing or otherwise) with the aggregate of the amounts made
available to the Administrative Agent by the Revolving Lenders and in like funds as
received by the Administrative Agent.




     (c) Repayment. Subject to the terms of this Agreement, Revolving Loans may be
borrowed, repaid and reborrowed during the Commitment Period, subject to Section 2.7(a).
The principal amount of all Revolving Loans shall be due and payable in full on the Maturity
Date, unless accelerated sooner pursuant to Section 7.2.




     (d) Interest. Subject to the provisions of Section 2.8, Revolving Loans shall
bear interest as follows:




     (i) Alternate Base Rate Loans. During such periods as any Revolving
Loans shall be comprised of Alternate Base Rate Loans, each such Alternate Base Rate
Loan shall bear interest at a per annum rate equal to the sum of the Alternate Base
Rate plus the Applicable Margin; and




     (ii) LIBOR Rate Loans. During such periods as Revolving Loans shall be
comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear interest at a
per annum rate equal to the sum of the LIBOR Rate plus the Applicable
Margin.



     Interest on Revolving Loans shall be payable in arrears on each Interest Payment Date.




     (e) Revolving Loan Notes; Covenant to Pay. Each Borrower’s obligation to pay
each Revolving Lender shall be evidenced by this Agreement and, upon such Revolving Lender’s
request, by a duly executed promissory note of the Borrowers to such Revolving Lender in
substantially the form of Exhibit 2.1(e). Each of the Borrowers covenants and
agrees to pay the Revolving Loans in accordance with the terms of this Agreement.



     Section 2.2 [Reserved].



35









 





     Section 2.3 Letter of Credit Subfacility.




     (a) Issuance. Subject to the terms and conditions hereof and of the LOC
Documents, if any, and any other terms and conditions which the Issuing Lender may
reasonably require, during the Commitment Period the Issuing Lender shall issue, and the
Revolving Lenders shall participate in, standby Letters of Credit for the account of the
Borrowers from time to time upon request in a form acceptable to the Issuing Lender;
provided, however, that (i) the aggregate amount of LOC Obligations shall
not at any time exceed TEN MILLION DOLLARS ($10,000,000) (the “LOC Committed
Amount”), (ii) the sum of the aggregate principal amount of outstanding Revolving Loans
plus outstanding Swingline Loans plus outstanding LOC Obligations shall not
at any time exceed the Revolving Committed Amount then in effect, (iii) all Letters of
Credit shall be denominated in Dollars and (iv) Letters of Credit shall be issued for any
lawful corporate purposes and shall be issued as standby letters of credit, including in
connection with workers’ compensation and other insurance programs, or as trade or
documentary letters of credit. Except as otherwise expressly agreed in writing upon by all
the Revolving Lenders, no Letter of Credit shall have an original expiry date more than
twelve (12) months from the date of issuance; provided, however, so long as
no Default or Event of Default has occurred and is continuing and subject to the other terms
and conditions to the issuance of Letters of Credit hereunder, the expiry dates of Letters
of Credit may be extended annually or periodically from time to time on the request of the
applicable Borrower or by operation of the terms of the applicable Letter of Credit to a
date not more than twelve (12) months from the date of extension; provided,
further, that no Letter of Credit, as originally issued or as extended, shall have
an expiry date extending beyond the date that is thirty (30) days prior to the Maturity
Date. Each Letter of Credit shall comply with the related LOC Documents. The issuance and
expiry date of each Letter of Credit shall be a Business Day. Each Letter of Credit issued
hereunder shall be in a minimum original face amount of $100,000 or such lesser amount as
approved by the Issuing Lender. The Borrowers’ Reimbursement Obligations in respect of each
Existing Letter of Credit, and each Revolving Lender’s participation obligations in
connection therewith, shall be governed by the terms of this Credit Agreement. Wells Fargo
shall be the Issuing Lender on all Letters of Credit issued after the Closing Date. The
Existing Letters of Credit shall, as of the Closing Date, be deemed to have been issued as
Letters of Credit hereunder and subject to and governed by the terms of this Agreement.




     (b) Notice and Reports. The request for the issuance of a Letter of Credit
shall be submitted to the Issuing Lender at least five (5) Business Days prior to the
requested date of issuance. The Issuing Lender will promptly upon request provide to the
Administrative Agent for dissemination to the Revolving Lenders a detailed report specifying
the Letters of Credit which are then issued and outstanding and any activity with respect
thereto which may have occurred since the date of any prior report, and including therein,
among other things, the account party, the beneficiary, the face amount, expiry date as well
as any payments or expirations which may have occurred. The Issuing Lender will further
provide to the Administrative Agent promptly upon request copies of the Letters of Credit.
The Issuing Lender will provide to the



36









 






Administrative Agent promptly upon request a summary report of the nature and extent of
LOC Obligations then outstanding.




     (c) Participations. Each Revolving Lender, (i) on the Closing Date with
respect to each Existing Letter of Credit and (ii) upon issuance of a Letter of Credit,
shall be deemed to have purchased without recourse a risk participation from the Issuing
Lender in such Letter of Credit and the obligations arising thereunder and any Collateral
relating thereto, in each case in an amount equal to its Revolving Commitment Percentage of
the obligations under such Letter of Credit and shall absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and be obligated to pay to the
Issuing Lender therefor and discharge when due, its Revolving Commitment Percentage of the
obligations arising under such Letter of Credit; provided that any Person that
becomes a Revolving Lender after the Closing Date shall be deemed to have purchased a
Participation Interest in all outstanding Letters of Credit on the date it becomes a Lender
hereunder and any Letter of Credit issued on or after such date, in each case in accordance
with the foregoing terms. Without limiting the scope and nature of each Revolving Lender’s
participation in any Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed as required hereunder or under any LOC Document, each such Revolving Lender shall
pay to the Issuing Lender its Revolving Commitment Percentage of such unreimbursed drawing
in same day funds pursuant to and in accordance with the provisions of subsection (d)
hereof. The obligation of each Revolving Lender to so reimburse the Issuing Lender shall be
absolute and unconditional and shall not be affected by the occurrence of a Default, an
Event of Default or any other occurrence or event. Any such reimbursement shall not relieve
or otherwise impair the obligation of the Borrowers to reimburse the Issuing Lender under
any Letter of Credit, together with interest as hereinafter provided.




     (d) Reimbursement. In the event of any drawing under any Letter of Credit, the
Issuing Lender will promptly notify the Company and the Administrative Agent. The Borrowers
shall reimburse the Issuing Lender on the day of drawing under any Letter of Credit if
notified prior to 3:00 P.M. on a Business Day or, if after 3:00 P.M., on the following
Business Day (either with the proceeds of a Revolving Loan obtained hereunder or otherwise)
in same day funds as provided herein or in the LOC Documents. If the Borrowers shall fail
to reimburse the Issuing Lender as provided herein, the unreimbursed amount of such drawing
shall automatically bear interest at a per annum rate equal to the Default Rate. Unless the
Company shall immediately notify the Issuing Lender and the Administrative Agent of its
intent to otherwise reimburse the Issuing Lender, the Borrowers shall be deemed to have
requested a Mandatory LOC Borrowing in the amount of the drawing as provided in subsection
(e) hereof, the proceeds of which will be used to satisfy the Reimbursement Obligations.
The Borrowers’ Reimbursement Obligations hereunder shall be absolute and unconditional under
all circumstances irrespective of any rights of set-off, counterclaim or defense to payment
the Borrowers may claim or have against the Issuing Lender, the Administrative Agent, the
Lenders, the beneficiary of the Letter of Credit drawn upon or any other Person, including,
without limitation, any defense based on any failure of the Borrowers to receive
consideration or the legality, validity, regularity or unenforceability of the Letter of
Credit. The



37









 






Administrative Agent will promptly notify the other Revolving Lenders of the amount of
any unreimbursed drawing and each Revolving Lender shall promptly pay to the Administrative
Agent for the account of the Issuing Lender, in Dollars and in immediately available funds,
the amount of such Revolving Lender’s Revolving Commitment Percentage of such unreimbursed
drawing. Such payment shall be made on the Business Day such notice is received by such
Revolving Lender from the Administrative Agent if such notice is received at or before 2:00
P.M., otherwise such payment shall be made at or before 12:00 P.M. on the Business Day next
succeeding the Business Day such notice is received. If such Revolving Lender does not pay
such amount to the Administrative Agent for the account of the Issuing Lender in full upon
such request, such Revolving Lender shall, on demand, pay to the Administrative Agent for
the account of the Issuing Lender interest on the unpaid amount during the period from the
date of such drawing until such Revolving Lender pays such amount to the Administrative
Agent for the account of the Issuing Lender in full at a rate per annum equal to, if paid
within two (2) Business Days of the date of drawing, the Federal Funds Effective Rate and
thereafter at a rate equal to the Alternate Base Rate. Each Revolving Lender’s obligation
to make such payment to the Issuing Lender, and the right of the Issuing Lender to receive
the same, shall be absolute and unconditional, shall not be affected by any circumstance
whatsoever and without regard to the termination of this Agreement or the Commitments
hereunder, the existence of a Default or Event of Default or the acceleration of the
Obligations hereunder and shall be made without any offset, abatement, withholding or
reduction whatsoever.




     (e) Repayment with Revolving Loans. On any day on which a Borrower shall have
requested, or been deemed to have requested, a Revolving Loan to reimburse a drawing under a
Letter of Credit, the Administrative Agent shall give notice to the Revolving Lenders that a
Revolving Loan has been requested or deemed requested in connection with a drawing under a
Letter of Credit, in which case a Revolving Loan borrowing comprised entirely of Alternate
Base Rate Loans (each such borrowing, a “Mandatory LOC Borrowing”) shall be made
(without giving effect to any termination of the Commitments pursuant to Section 7.2) pro
rata based on each Revolving Lender’s respective Revolving Commitment Percentage (determined
before giving effect to any termination of the Commitments pursuant to Section 7.2) and the
proceeds thereof shall be paid directly to the Administrative Agent for the account of the
Issuing Lender for application to the respective LOC Obligations. Each Revolving Lender
hereby irrevocably agrees to make such Revolving Loans on the day such notice is received by
the Revolving Lenders from the Administrative Agent if such notice is received at or before
2:00 P.M., otherwise such payment shall be made at or before 12:00 P.M. on the Business Day
next succeeding the day such notice is received, in each case notwithstanding (i)
the amount of Mandatory LOC Borrowing may not comply with the minimum amount for borrowings
of Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in
Section 4.2 are then satisfied, (iii) whether a Default or an Event of Default then exists,
(iv) failure for any such request or deemed request for Revolving Loan to be made by the
time otherwise required in Section 2.1(b), (v) the date of such Mandatory LOC Borrowing, or
(vi) any reduction in the Revolving Committed Amount after any such Letter of Credit may
have been drawn upon. In the



38









 






event that any Mandatory LOC Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the occurrence of a Bankruptcy Event),
then each such Revolving Lender hereby agrees that it shall forthwith fund its Participation
Interests in the outstanding LOC Obligations on the Business Day such notice to fund is
received by such Revolving Lender from the Administrative Agent if such notice is received
at or before 2:00 P.M., otherwise such payment shall be made at or before 12:00 Noon on the
Business Day next succeeding the Business Day such notice is received; provided,
further, that in the event any Lender shall fail to fund its Participation Interest
as required herein, then the amount of such Revolving Lender’s unfunded Participation
Interest therein shall automatically bear interest payable by such Revolving Lender to the
Administrative Agent for the account of the Issuing Lender upon demand, at the rate equal
to, if paid within two (2) Business Days of such date, the Federal Funds Effective Rate, and
thereafter at a rate equal to the Alternate Base Rate.




     (f) Modification, Extension. The issuance of any supplement, modification,
amendment, renewal, or extension to any Letter of Credit shall, for purposes hereof, be
treated in all respects the same as the issuance of a new Letter of Credit hereunder.




     (g) ISP98 and UCP. Unless otherwise expressly agreed by the Issuing Lender and
the applicable Borrower, when a Letter of Credit is issued, (i) the rules of the
“International Standby Practices 1998,” published by the Institute of International Banking
Law & Practice (or such later version thereof as may be in effect at the time of issuance)
shall apply to each standby Letter of Credit, 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 documentary Letter of Credit.




     (h) Conflict with LOC Documents. In the event of any conflict between this
Agreement and any LOC Document (including any letter of credit application and any LOC
Documents relating to the Existing Letters of Credit), this Agreement shall control.




     (i) Designation of Subsidiaries as Account Parties. Notwithstanding anything
to the contrary set forth in this Agreement, including, without limitation, Section 2.3(a),
a Letter of Credit issued hereunder may contain a statement to the effect that such Letter
of Credit is issued for the account of a Subsidiary of the Company; provided that,
notwithstanding such statement, the Borrowers shall be the actual account parties for all
purposes of this Agreement for such Letter of Credit and such statement shall not affect the
Borrowers’ Reimbursement Obligations hereunder with respect to such Letter of Credit.




     (j) Cash Collateral. At any point in time in which there is a Defaulting
Lender, the Issuing Lender may require the Borrowers to Cash Collateralize the LOC
Obligations pursuant to Section 2.20.



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     Section 2.4 Swingline Loan Subfacility.




     (a) Swingline Commitment. During the Commitment Period, subject to the terms
and conditions hereof, the Swingline Lender, in its individual capacity, may, in its
discretion and in reliance upon the agreements of the other Lenders set forth in this
Section, make certain revolving credit loans to the Borrowers (each a “Swingline
Loan” and, collectively, the “Swingline Loans”) for the purposes hereinafter set
forth; provided, however, (i) the aggregate principal amount of Swingline
Loans outstanding at any time shall not exceed TWO MILLION DOLLARS ($2,000,000) (the
“Swingline Committed Amount”), and (ii) the sum of the aggregate principal amount of
outstanding Revolving Loans plus outstanding Swingline Loans plus
outstanding LOC Obligations shall not exceed the Revolving Committed Amount then in effect.
Swingline Loans hereunder may be repaid and reborrowed in accordance with the provisions
hereof.




     (b) Swingline Loan Borrowings.




     (i) Notice of Borrowing and Disbursement. Upon receiving a Notice of
Borrowing from the applicable Borrower not later than 12:00 P.M. on any Business Day
requesting that a Swingline Loan be made, the Swingline Lender will make Swingline
Loans available to the applicable Borrower on the same Business Day such request is
received by the Administrative Agent. Swingline Loan borrowings hereunder shall be
made in minimum amounts of $100,000 (or the remaining available amount of the
Swingline Committed Amount if less) and in integral amounts of $100,000 in excess
thereof.




     (ii) Repayment of Swingline Loans. Each Swingline Loan borrowing shall
be due and payable on the earlier of (A) the Maturity Date and (B) fifteen (15) days
following such borrowing. The Swingline Lender may, at any time, in its sole
discretion, by written notice to the Company and the Administrative Agent, demand
repayment of its Swingline Loans by way of a Revolving Loan borrowing, in which case
the Borrowers shall be deemed to have requested a Revolving Loan borrowing comprised
entirely of Alternate Base Rate Loans in the amount of such Swingline Loans;
provided, however, that, in the following circumstances, any such
demand shall also be deemed to have been given one Business Day prior to each of (A)
the Maturity Date, (B) the occurrence of any Bankruptcy Event, (C) upon acceleration
of the Obligations hereunder, whether on account of a Bankruptcy Event or any other
Event of Default, and (D) the exercise of remedies in accordance with the provisions
of Section 7.2 hereof (each such Revolving Loan borrowing made on account of any
such deemed request therefor as provided herein being hereinafter referred to as
“Mandatory Swingline Borrowing”). Each Revolving Lender hereby irrevocably
agrees to make such Revolving Loans promptly upon any such request or deemed request
on account of each Mandatory Swingline Borrowing in the amount and in the manner
specified in the preceding sentence on the date such notice is received by the
Revolving Lenders from the Administrative Agent if such notice is received at or
before 2:00 P.M., otherwise such payment shall be made at or before 12:00 P.M.



40









 






on the Business Day next succeeding the date such notice is received
notwithstanding (1) the amount of Mandatory Swingline Borrowing may not
comply with the minimum amount for borrowings of Revolving Loans otherwise required
hereunder, (2) whether any conditions specified in Section 4.2 are then satisfied,
(3) whether a Default or an Event of Default then exists, (4) failure of any such
request or deemed request for Revolving Loans to be made by the time otherwise
required in Section 2.1(b)(i), (5) the date of such Mandatory Swingline Borrowing,
or (6) any reduction in the Revolving Committed Amount or termination of the
Revolving Commitments immediately prior to such Mandatory Swingline Borrowing or
contemporaneously therewith. In the event that any Mandatory Swingline Borrowing
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code), then each Revolving Lender hereby agrees that it shall forthwith
purchase (as of the date the Mandatory Swingline Borrowing would otherwise have
occurred, but adjusted for any payments received from the Borrowers on or after such
date and prior to such purchase) from the Swingline Lender such Participation
Interest in the outstanding Swingline Loans as shall be necessary to cause each such
Revolving Lender to share in such Swingline Loans ratably based upon its respective
Revolving Commitment Percentage (determined before giving effect to any termination
of the Commitments pursuant to Section 7.2); provided that (x) all interest
payable on the Swingline Loans shall be for the account of the Swingline Lender
until the date as of which the respective Participation Interest is purchased, and
(y) at the time any purchase of a Participation Interest pursuant to this sentence
is actually made, the purchasing Revolving Lender shall be required to pay to the
Swingline Lender interest on the principal amount of such Participation Interest
purchased for each day from and including the day upon which the Mandatory Swingline
Borrowing would otherwise have occurred to but excluding the date of payment for
such Participation Interest, at the rate equal to, if paid within two (2) Business
Days of the date of the Mandatory Swingline Borrowing, the Federal Funds Effective
Rate, and thereafter at a rate equal to the Alternate Base Rate. The Borrowers
shall have the right to repay the Swingline Loan in whole or in part from time to
time in accordance with Section 2.7(a).




     (c) Interest on Swingline Loans. Subject to the provisions of Section 2.8,
Swingline Loans shall bear interest at a per annum rate equal to the Alternate Base Rate
plus the Applicable Margin for Revolving Loans that are Alternate Base Rate Loans.
Interest on Swingline Loans shall be payable in arrears on each Interest Payment Date.




     (d) Swingline Loan Note; Covenant to Pay. The Swingline Loans shall be
evidenced by this Agreement and, upon request of the Swingline Lender, by a duly executed
promissory note of the Borrowers in favor of the Swingline Lender in the original amount of
the Swingline Committed Amount and substantially in the form of Exhibit 2.4(d).
Each of the Borrowers covenants and agrees to pay the Swingline Loans in accordance with the
terms of this Agreement.



41









 






     (e) Cash Collateral. At any point in time in which there is a Defaulting
Lender, the Swingline Lender may require the Borrowers to Cash Collateralize the outstanding
Swingline Loans pursuant to Section 2.20.



     Section 2.5 Fees.




     (a) Commitment Fee. Subject to Section 2.21, in consideration of the Revolving
Commitments, the Borrowers agree to pay to the Administrative Agent, for the ratable benefit
of the Revolving Lenders, a commitment fee (the “Commitment Fee”) in an amount equal
to the Applicable Margin per annum on the average daily unused amount of the Revolving
Committed Amount. The Commitment Fee shall be calculated quarterly in arrears. For purposes
of computation of the Commitment Fee, LOC Obligations shall be considered usage of the
Revolving Committed Amount but Swingline Loans shall not be considered usage of the
Revolving Committed Amount. The Commitment Fee shall be payable quarterly in arrears on the
last Business Day of each calendar quarter.




     (b) Letter of Credit Fees. Subject to Section 2.21, in consideration of the
LOC Commitments, the Borrowers agree to pay to the Administrative Agent, for the ratable
benefit of the Revolving Lenders, a fee (the “Letter of Credit Fee”) equal to the
Applicable Margin for Revolving Loans that are LIBOR Rate Loans per annum on the average
daily maximum amount available to be drawn under each Letter of Credit from the date of
issuance to the date of expiration. The Letter of Credit Fee shall be payable quarterly in
arrears on the last Business Day of each calendar quarter.




     (c) Issuing Lender Fees. In addition to the Letter of Credit Fees payable
pursuant to subsection (b) hereof, the Borrowers shall pay to the Issuing Lender for its own
account without sharing by the other Lenders the reasonable and customary charges from time
to time of the Issuing Lender with respect to the amendment, transfer, administration,
cancellation and conversion of, and drawings under, such Letters of Credit (collectively,
the “Issuing Lender Fees”). The Issuing Lender may charge, and retain for its own
account without sharing by the other Lenders, an additional facing fee (the “Letter of
Credit Facing Fee”) of 0.25% per annum on the average daily maximum amount available to
be drawn under each such Letter of Credit issued by it. The Issuing Lender Fees and the
Letter of Credit Facing Fee shall be payable quarterly in arrears on the last Business Day
of each calendar quarter.




     (d) Administrative Fee. The Borrowers agree to pay to the Administrative Agent
the annual administrative fee as described in the Fee Letters.



     Section 2.6 Commitment Reductions.




     (a) Voluntary Reductions. The Borrowers shall have the right to terminate or
permanently reduce the unused portion of the Revolving Committed Amount at any time or from
time to time upon not less than five (5) Business Days’ prior written notice to the
Administrative Agent (which shall notify the Lenders thereof as soon as practicable) of



42









 






each such termination or reduction, which notice shall specify the effective date
thereof and the amount of any such reduction which shall be in a minimum amount of
$1,000,000 or a whole multiple of $1,000,000 in excess thereof and shall be irrevocable and
effective upon receipt by the Administrative Agent; provided that no such reduction
or termination shall be permitted if after giving effect thereto, and to any prepayments of
the Revolving Loans made on the effective date thereof, the sum of the aggregate principal
amount of outstanding Revolving Loans plus outstanding Swingline Loans plus
outstanding LOC Obligations would exceed the Revolving Committed Amount then in effect. Any
reduction in the Revolving Committed Amount shall be applied to the Commitment of each
Revolving Lender in according to its Revolving Commitment Percentage.




     (b) LOC Committed Amount. If the Revolving Committed Amount is reduced below
the then current LOC Committed Amount, the LOC Committed Amount shall automatically be
reduced by an amount such that the LOC Committed Amount equals the Revolving Committed
Amount.




     (c) Swingline Committed Amount. If the Revolving Committed Amount is reduced
below the then current Swingline Committed Amount, the Swingline Committed Amount shall
automatically be reduced by an amount such that the Swingline Committed Amount equals the
Revolving Committed Amount.




     (d) Maturity Date. The Revolving Commitments, the Swingline Commitment and the
LOC Commitment shall automatically terminate on the Maturity Date.




     Section 2.7 Repayments.




     (a) Optional Repayments. The Borrowers shall have the right to repay the
Revolving Loans and Swingline Loans in whole or in part from time to time; provided,
however, that each partial repayment of (i) Revolving Loans that are Alternate Base
Rate Loans shall be in a minimum principal amount of $250,000 and integral multiples of
$250,000 in excess thereof (or the remaining outstanding principal amount), (ii) Revolving
Loans that are LIBOR Rate Loans shall be in a minimum principal amount of $1,000,000 and
integral multiples of $500,000 in excess thereof (or the remaining outstanding principal
amount) and (iii) Swingline Loans shall be in a minimum principal amount of $100,000 and
integral multiples of $100,000 in excess thereof (or the remaining outstanding principal
amount). The Company shall give three Business Days’ irrevocable notice of prepayment in
the case of LIBOR Rate Loans and same-day irrevocable notice on any Business Day in the case
of Alternate Base Rate Loans, to the Administrative Agent (which shall notify the Lenders
thereof as soon as practicable). To the extent the Borrowers elect to repay the Revolving
Loans and/or Swingline Loans, amounts prepaid under this Section shall be applied to the
Revolving Loans and/or Swingline Loans, as applicable of the Revolving Lenders in accordance
with their respective Revolving Commitment Percentages. Within the foregoing parameters,
prepayments under this Section shall be applied first to Alternate Base Rate Loans and then
to LIBOR Rate Loans in direct order of Interest Period maturities. All repayments



43









 






under this Section shall be subject to Section 2.15, but otherwise without premium or
penalty. Interest on the principal amount prepaid shall be payable on the next occurring
Interest Payment Date that would have occurred had such loan not been prepaid or, at the
request of the Administrative Agent, interest on the principal amount prepaid shall be
payable on any date that a prepayment is made hereunder through the date of prepayment.



          (b) Mandatory Prepayments.





     (i) Revolving Committed Amount. If at any time after the Closing Date,
the sum of the aggregate principal amount of outstanding Revolving Loans
plus outstanding Swingline Loans plus outstanding LOC Obligations
shall exceed the Revolving Committed Amount, the Borrowers shall immediately prepay
the Revolving Loans and Swingline Loans and (after all Revolving Loans and Swingline
Loans have been repaid) Cash Collateralize the LOC Obligations in an amount
sufficient to eliminate such excess (such prepayment to be applied as set forth in
clause (ii) below).




     (ii) Application of Mandatory Prepayments. All amounts required to be
paid pursuant to this Section shall be applied, (1) first to the outstanding
Swingline Loans, (2) second to the outstanding Revolving Loans and (3)
third to Cash Collateralize the LOC Obligations.




     (c) Bank Product Obligations Unaffected. Any repayment or prepayment made
pursuant to this Section shall not affect the Borrowers’ obligation to continue to make
payments under any Bank Product, which shall remain in full force and effect notwithstanding
such repayment or prepayment, subject to the terms of such Bank Product.



     Section 2.8 Default Rate and Payment Dates.




     (a) If all or a portion of the principal amount of any Loan which is a LIBOR Rate Loan
shall not be paid when due or continued as a LIBOR Rate Loan in accordance with the
provisions of Section 2.9 (whether at the stated maturity, by acceleration or otherwise),
such overdue principal amount of such Loan shall be converted to an Alternate Base Rate Loan
at the end of the Interest Period applicable thereto.




     (b) Upon the occurrence and during the continuance of a (i) Bankruptcy Event or a
Payment Event of Default, the principal of and, to the extent permitted by law, interest on
the Loans and any other amounts owing hereunder or under the other Credit Documents shall
automatically bear interest at a rate per annum which is equal to the Default Rate and (ii)
any other Event of Default hereunder, at the option of the Required Lenders, the principal
of and, to the extent permitted by law, interest on the Loans and any other amounts owing
hereunder or under the other Credit Documents shall automatically bear interest, at a per
annum rate which is equal to the Default Rate, in each case from the date of such Event of
Default until such Event of Default is waived in



44









 






accordance with Section 9.1. Any default interest owing under this Section 2.8(b)
shall be due and payable on the earlier to occur of (x) demand by the Administrative Agent
(which demand the Administrative Agent shall make if directed by the Required Lenders) and
(y) the Maturity Date.




     (c) Interest on each Loan shall be payable in arrears on each Interest Payment Date;
provided that interest accruing pursuant to paragraph (b) of this Section shall be
payable from time to time on demand.



     Section 2.9 Conversion Options.




     (a) The Borrowers may, in the case of Revolving Loans, elect from time to time to
convert Alternate Base Rate Loans to LIBOR Rate Loans or to continue LIBOR Rate Loans, by
delivering a Notice of Conversion/Extension to the Administrative Agent at least three
Business Days prior to the proposed date of conversion or continuation. In addition, the
Borrowers may elect from time to time to convert all or any portion of a LIBOR Rate Loan to
an Alternate Base Rate Loan by giving the Administrative Agent irrevocable written notice
thereof by 11:00 A.M. one (1) Business Day prior to the proposed date of conversion. If the
date upon which an Alternate Base Rate Loan is to be converted to a LIBOR Rate Loan is not a
Business Day, then such conversion shall be made on the next succeeding Business Day and
during the period from such last day of an Interest Period to such succeeding Business Day
such Loan shall bear interest as if it were an Alternate Base Rate Loan. LIBOR Rate Loans
may only be converted to Alternate Base Rate Loans on the last day of the applicable
Interest Period. If the date upon which a LIBOR Rate Loan is to be converted to an
Alternate Base Rate Loan is not a Business Day, then such conversion shall be made on the
next succeeding Business Day and during the period from such last day of an Interest Period
to such succeeding Business Day such Loan shall bear interest as if it were an Alternate
Base Rate Loan. All or any part of outstanding Alternate Base Rate Loans may be converted
as provided herein; provided that (i) no Loan may be converted into a LIBOR Rate
Loan when any Default or Event of Default has occurred and is continuing and (ii) partial
conversions shall be in an aggregate principal amount of $1,000,000 or a whole multiple of
$1,000,000 in excess thereof. All or any part of outstanding LIBOR Rate Loans may be
converted as provided herein; provided that partial conversions shall be in an
aggregate principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess
thereof.




     (b) Any LIBOR Rate Loans may be continued as such upon the expiration of an Interest
Period with respect thereto by compliance by the Borrowers with the notice provisions
contained in Section 2.9(a); provided, that no LIBOR Rate Loan may be continued as
such when any Default or Event of Default has occurred and is continuing, in which case such
Loan shall be automatically converted to an Alternate Base Rate Loan at the end of the
applicable Interest Period with respect thereto. If the Company shall fail to give timely
notice of an election to continue a LIBOR Rate Loan, or the continuation of LIBOR Rate Loans
is not permitted hereunder, such LIBOR Rate Loans shall be automatically converted to
Alternate Base Rate Loans at the end of the applicable Interest Period with respect thereto.



45









 





     Section 2.10 Computation of Interest and Fees; Usury.




     (a) Interest payable hereunder with respect to any Alternate Base Rate Loan based on
the Prime Rate shall be calculated on the basis of a year of 365 days (or 366 days, as
applicable) for the actual days elapsed. All other fees, interest and all other amounts
payable hereunder shall be calculated on the basis of a 360-day year for the actual days
elapsed. The Administrative Agent shall as soon as practicable notify the Company and the
Lenders of each determination of a LIBOR Rate on the Business Day of the determination
thereof. Any change in the interest rate on a Loan resulting from a change in the Alternate
Base Rate shall become effective as of the opening of business on the day on which such
change in the Alternate Base Rate shall become effective. The Administrative Agent shall as
soon as practicable notify the Company and the Lenders of the effective date and the amount
of each such change.




     (b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrowers and the Lenders
in the absence of manifest error. The Administrative Agent shall, at the request of the
Company, deliver to the Borrowers a statement showing the computations used by the
Administrative Agent in determining any interest rate.




     (c) It is the intent of the Lenders and the Credit Parties to conform to and contract
in strict compliance with applicable usury law from time to time in effect. All agreements
between the Lenders and the Credit Parties are hereby limited by the provisions of this
subsection which shall override and control all such agreements, whether now existing or
hereafter arising and whether written or oral. In no way, nor in any event or contingency
(including, but not limited to, prepayment or acceleration of the maturity of any
Obligation), shall the interest taken, reserved, contracted for, charged, or received under
this Agreement, under the Notes or otherwise, exceed the maximum nonusurious amount
permissible under applicable law. If, from any possible construction of any of the Credit
Documents or any other document, interest would otherwise be payable in excess of the
maximum nonusurious amount, any such construction shall be subject to the provisions of this
paragraph and such interest shall be automatically reduced to the maximum nonusurious amount
permitted under applicable law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is characterized as
interest on the Loans under applicable law and which would, apart from this provision, be in
excess of the maximum nonusurious amount, an amount equal to the amount which would have
been excessive interest shall, without penalty, be applied to the reduction of the principal
amount owing on the Loans and not to the payment of interest, or refunded to the Borrowers
or the other payor thereof if and to the extent such amount which would have been excessive
exceeds such unpaid principal amount of the Loans. The right to demand payment of the Loans
or any other Indebtedness evidenced by any of the Credit Documents does not include the
right to receive any interest which has not otherwise accrued on the date of such demand,
and the Lenders do not intend to charge or receive any unearned interest in the event of
such demand. All interest paid or agreed to be paid to the Lenders with respect to the



46









 






Loans shall, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term (including any renewal or extension)
of the Loans so that the amount of interest on account of such Indebtedness does not exceed
the maximum nonusurious amount permitted by applicable law.



     Section 2.11 Pro Rata Treatment and Payments.




     (a) Allocation of Payments Prior to Exercise of Remedies. Each borrowing of
Revolving Loans and any reduction of the Revolving Commitments shall be made pro rata
according to the respective Revolving Commitment Percentages of the Revolving Lenders.
Unless otherwise required by the terms of this Agreement, each payment under this Agreement
shall be applied, first, to any fees then due and owing by the Borrowers pursuant to
Section 2.5, second, to interest then due and owing hereunder of the Borrowers and,
third, to principal then due and owing hereunder and under this Agreement of the
Borrowers. Each payment on account of any fees pursuant to Section 2.5 shall be made pro
rata in accordance with the respective amounts due and owing (except as to the Letter of
Credit Facing Fees and the Issuing Lender Fees which shall be paid to the Issuing Lender).
Each optional repayment and prepayment by the Borrowers on account of principal of and
interest on the Revolving Loans shall be applied to such Loans, as applicable, on a pro rata
basis and, to the extent applicable, in accordance with the terms of Section 2.7(a) hereof.
Each mandatory prepayment on account of principal of the Loans shall be applied to such
Loans, as applicable, on a pro rata basis and, to the extent applicable, in accordance with
Section 2.7(b). All payments (including prepayments) to be made by the Borrowers on account
of principal, interest and fees shall be made without defense, set-off or counterclaim and
shall be made to the Administrative Agent for the account of the Lenders at the
Administrative Agent’s office specified on Section 9.2 in Dollars and in immediately
available funds not later than 1:00 P.M. on the date when due. The Administrative Agent
shall distribute such payments to the Lenders entitled thereto promptly upon receipt in like
funds as received. If any payment hereunder (other than payments on the LIBOR Rate Loans)
becomes due and payable on a day other than a Business Day, such payment shall be extended
to the next succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. If any payment
on a LIBOR Rate Loan becomes due and payable on a day other than a Business Day, such
payment date shall be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day.




     (b) Allocation of Payments After Exercise of Remedies. Notwithstanding any
other provisions of this Agreement to the contrary, after the exercise of remedies (other
than the application of default interest pursuant to Section 2.8) by the Administrative
Agent or the Lenders pursuant to Section 7.2 (or after the Commitments shall automatically
terminate and the Loans (with accrued interest thereon) and all other amounts under the
Credit Documents (including, without limitation, the maximum amount of all contingent
liabilities under Letters of Credit) shall automatically become due and payable in
accordance with the terms of such Section), all amounts collected or



47









 






received by the Administrative Agent or any Lender on account of the Credit Party
Obligations or any other amounts outstanding under any of the Credit Documents or in respect
of the Collateral shall be paid over or delivered as follows (irrespective of whether the
following costs, expenses, fees, interest, premiums, scheduled periodic payments or Credit
Party Obligations are allowed, permitted or recognized as a claim in any proceeding
resulting from the occurrence of a Bankruptcy Event):




     FIRST, to the payment of all reasonable out-of-pocket costs and expenses
(including, without limitation, reasonable attorneys’ fees) of the Administrative
Agent in connection with enforcing the rights of the Lenders under the Credit
Documents and any protective advances made by the Administrative Agent with respect
to the Collateral under or pursuant to the terms of the Security Documents;




     SECOND, to the payment of any fees owed to the Administrative Agent and the
Issuing Lender;




     THIRD, to the payment of all reasonable out-of-pocket costs and expenses
(including, without limitation, reasonable attorneys’ fees) of each of the Lenders
in connection with enforcing its rights under the Credit Documents or otherwise with
respect to the Credit Party Obligations owing to such Lender;




     FOURTH, to the payment of all of the Credit Party Obligations consisting of
accrued fees and interest, and including, with respect to any Bank Product, any
fees, premiums and scheduled periodic payments due under such Bank Product and any
interest accrued thereon;




     FIFTH, to the payment of the outstanding principal amount of the Credit Party
Obligations and the payment or cash collateralization of the outstanding LOC
Obligations, and including with respect to any Bank Product, any breakage,
termination or other payments due under such Bank Product and any interest accrued
thereon;




     SIXTH, to all other Credit Party Obligations and other obligations which shall
have become due and payable under the Credit Documents or otherwise and not repaid
pursuant to clauses “FIRST” through “FIFTH” above; and




     SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully
entitled to receive such surplus.




     In carrying out the foregoing, (a) amounts received shall be applied in the numerical
order provided until exhausted prior to application to the next succeeding category; (b)
each of the Lenders and any Bank Product Provider shall receive an amount equal to its pro
rata share (based on the proportion that the then outstanding Loans and LOC Obligations held
by such Lender or the outstanding obligations payable to such Bank Product Provider bears to
the aggregate then outstanding Loans and LOC



48









 






Obligations and obligations payable under all Bank Products) of amounts available to be
applied pursuant to clauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above; and (c) to the
extent that any amounts available for distribution pursuant to clause “FIFTH” above are
attributable to the issued but undrawn amount of outstanding Letters of Credit, such amounts
shall be held by the Administrative Agent in a cash collateral account and applied (i)
first, to reimburse the Issuing Lender from time to time for any drawings under such Letters
of Credit and (ii) then, following the expiration of all Letters of Credit, to all other
obligations of the types described in clauses “FIFTH” and “SIXTH” above in the manner
provided in this Section. Notwithstanding the foregoing terms of this Section, only
Collateral proceeds and payments under the Guaranty (as opposed to ordinary course
principal, interest and fee payments hereunder) shall be applied to obligations under any
Bank Product. Amounts distributed with respect to any Bank Product Debt shall be the last
Bank Product Amount reported to the Administrative Agent; provided that any such
Bank Product Provider may provide an updated Bank Product Amount to the Administrative Agent
prior to payments made pursuant to this Section. The Administrative Agent shall have no
obligation to calculate the amount to be distributed with respect to any Bank Product Debt,
but may rely upon written notice of the amount (setting forth a reasonably detailed
calculation) from the applicable Bank Product Provider. In the absence of such notice, the
Administrative Agent may assume the amount to be distributed is the Bank Product Amount last
reported to the Administrative Agent.



     Section 2.12 Non-Receipt of Funds by the Administrative Agent.




     (a) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received written notice from a Lender prior to the proposed
date of any Extension of Credit that such Lender will not make available to the
Administrative Agent such Lender’s share of such Extension of Credit, the Administrative
Agent may assume that such Lender has made such share available on such date in accordance
with this Agreement and may, in reliance upon such assumption, make available to the
Borrowers a corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Extension of Credit available to the Administrative Agent, then the
applicable Lender and the Borrowers severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to the Borrowers to but excluding the date
of payment to the Administrative Agent, at (i) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation and
(ii) in the case of a payment to be made by the Borrowers, the interest rate applicable to
Alternate Base Rate Loans. If the Borrowers and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative Agent shall
promptly remit to the Borrowers the amount of such interest paid by the Borrowers for such
period. If such Lender pays its share of the applicable Extension of Credit to the
Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included
in such Extension of Credit. Any payment by the Borrowers shall be without prejudice to any
claim the



49









 






Borrowers may have against a Lender that shall have failed to make such payment to the
Administrative Agent.




     (b) Payments by the Borrowers; Presumptions by Administrative Agent. Unless
the Administrative Agent shall have received notice from the Company prior to the date on
which any payment is due to the Administrative Agent for the account of the Lenders or the
Issuing Lender hereunder that the Borrowers will not make such payment, the Administrative
Agent may assume that the Borrowers have made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing
Lender, as the case may be, the amount due. In such event, if the Borrowers have not in
fact made such payment, then each of the Lenders or the Issuing Lender, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the Issuing 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 Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.




     A notice of the Administrative Agent to any Lender or the Company with respect to any
amount owing under subsections (a) and (b) of this Section shall be conclusive, absent
manifest error.




     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to
the Administrative Agent funds for any Loan to be made by such Lender as provided in the
foregoing provisions of this Article II, and such funds are not made available to the
Borrowers by the Administrative Agent because the conditions to the applicable Extension of
Credit set forth in Article IV are not satisfied or waived in accordance with the terms
thereof, the Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.




     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder
to make Revolving Loans, to fund participations in Letters of Credit and Swingline Loans and
to make payments pursuant to Section 9.5(c) are several and not joint. The failure of any
Lender to make any Loan, to fund any such participation or to make any such payment under
Section 9.5(c) on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Loan, to purchase its participation or to make
its payment under Section 9.5(c).




     (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to
obtain the funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for any Loan in
any particular place or manner.



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     Section 2.13 Inability to Determine Interest Rate.



     Notwithstanding any other provision of this Agreement, if (a) the Administrative Agent shall
reasonably determine (which determination shall be conclusive and binding absent manifest error)
that, by reason of circumstances affecting the relevant market, reasonable and adequate means do
not exist for ascertaining the LIBOR Rate for such Interest Period, or (b) the Required Lenders
shall reasonably determine (which determination shall be conclusive and binding absent manifest
error) that the LIBOR Rate does not adequately and fairly reflect the cost to such Lenders of
funding LIBOR Rate Loans that the applicable Borrower has requested be outstanding as a LIBOR
Tranche during such Interest Period, the Administrative Agent shall forthwith give telephone notice
of such determination, confirmed in writing, to the Company, and the Lenders at least two (2)
Business Days prior to the first day of such Interest Period. Unless the Company shall have
notified the Administrative Agent upon receipt of such telephone notice that it or another Borrower
wishes to rescind or modify its request regarding such LIBOR Rate Loans, any Loans that were
requested to be made as LIBOR Rate Loans shall be made as Alternate Base Rate Loans and any Loans
that were requested to be converted into or continued as LIBOR Rate Loans shall remain as or be
converted into Alternate Base Rate Loans. Until any such notice has been withdrawn by the
Administrative Agent, no further Loans shall be made as, continued as, or converted into, LIBOR
Rate Loans for the Interest Periods so affected.



     Section 2.14 Yield Protection.



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





     (i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or
for the account of, or credit extended or participated in by, any Lender (except any
reserve requirement reflected in the LIBOR Rate) or the Issuing Lender;




     (ii) subject the Administrative Agent, any Lender, the Issuing Lender or any
other recipient of any payment to be made by or on account of any obligation of any
Credit Party under any Credit Document to any (or any increase in any) Other
Connection Taxes with respect to any Credit Document, any Letter of Credit or any
participation in any Loan or a Letter of Credit (except for the imposition of, or
any change in the rate of, any Net Income Tax); or




     (iii) impose on any Lender or the Issuing Lender or the London interbank market
any other condition, cost or expense affecting this Agreement or LIBOR Rate Loans
made by such Lender or any Letter of Credit or participation therein;




and the result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any LIBOR Rate Loan (or, in the case of clause (ii), any Loan or any
participation in any Loan) or of maintaining its obligation to make any such Loan), or to
increase the cost to such Lender or the Issuing Lender of participating in, issuing or



51









 






maintaining any Letter of Credit (or of maintaining its obligation to participate in or to
issue any Letter of Credit), or to reduce the amount of any sum received or receivable by
such Administrative Agent, Lender, the Issuing Lender or other recipient hereunder (whether
of principal, interest or any other amount) then, upon request of such Administrative Agent,
Lender, the Issuing Lender, or other recipient, the Borrowers will pay to such
Administrative Agent, Lender, the Issuing Lender or other recipient, as the case may be,
such additional amount or amounts as will compensate such Administrative Agent, Lender,
Issuing Lender or other recipient, as the case may be, for such additional costs incurred or
reduction suffered.




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




     (c) Certificates for Reimbursement. A certificate of a Lender or the Issuing
Lender setting forth the amount or amounts necessary to compensate such Lender or the
Issuing Lender or its holding company, as the case may be, as specified in paragraph (a) or
(b) of this Section and delivered to the Company shall be conclusive absent manifest error.
The Borrowers shall pay such Lender or the Issuing Lender, as the case may be, the amount
shown as due on any such certificate within ten (10) days after receipt thereof.




     (d) Delay in Requests. Failure or delay on the part of any Lender or the
Issuing Lender to demand compensation pursuant to this Section shall not constitute a waiver
of such Lender’s or the Issuing Lender’s right to demand such compensation, provided
that the Borrowers shall not be required to compensate a Lender or the Issuing Lender
pursuant to this Section for any increased costs incurred or reductions suffered, as the
case may be, to the extent that such Lender or the Issuing Lender fails to make a demand for
such compensation more than six (6) months after becoming aware of such Change in Law giving
arise to such increased costs or reductions.




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     Section 2.15 Compensation for Losses; Eurocurrency Liabilities.




     (a) Compensation for Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrowers shall promptly compensate such Lender
for and hold such Lender harmless from any loss, cost or expense incurred by it as a result
of:




     (i) any continuation, conversion, payment or prepayment of any Loan other than
an Alternate Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration,
or otherwise);




     (ii) any failure by the Borrowers (for a reason other than the failure of such
Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than an
Alternate Base Rate Loan on the date or in the amount notified by the Company or the
applicable Borrower; or




     (iii) any assignment of a LIBOR Rate Loan on a day other than the last day of
the Interest Period therefor as a result of a request by the Company pursuant to
Section 2.19;




including any loss of anticipated profits and any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan or from fees
payable to terminate the deposits from which such funds were obtained. The Borrowers shall
also pay any customary administrative fees charged by such Lender in connection with the
foregoing.




For purposes of calculating amounts payable by the Borrowers to the Lenders under this
Section, each Lender shall be deemed to have funded each LIBOR Rate Loan made by it at the
LIBOR Rate for such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether or not such
LIBOR Rate Loan was in fact so funded.




     (b) The Borrowers shall pay to each Lender, as long as such Lender shall be required to
maintain reserves under Regulation D with respect to “Eurocurrency liabilities” within the
meaning of Regulation D, or under any similar or successor regulation with respect to
Eurocurrency liabilities or Eurocurrency funding, additional interest on the unpaid
principal amount of each LIBOR Loan equal to the actual costs of such reserves allocated to
such LIBOR Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which shall be due and payable on each date on which
interest is payable on such LIBOR Loan, provided the Company shall have received at least
fifteen (15) days prior notice (with a copy to the Administrative Agent) of such additional
interest from such Lender. If a Lender fails to give notice fifteen (15) days prior to the
relevant interest payment date, such additional interest shall be due and payable fifteen
(15) days from receipt of such notice.



53









 





     Section 2.16 Taxes.




     (a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of any Credit Party under any Credit Document shall be made free and clear of and
without reduction or withholding for any Taxes, provided that if any applicable law
(as determined in the good faith discretion of an applicable Withholding Agent) requires the
deduction or withholding of any Tax from any such payment (including, for the avoidance of
doubt, in the case of any Lender that is treated as a partnership for U.S. federal income
tax purposes, any such deduction or withholding required to be made by such Lender (or any
direct or indirect beneficial owner of such Lender that is treated as a partnership for U.S.
federal income tax purposes) for the account of any of its direct or indirect beneficial
owners), then the applicable Withholding Agent shall make such deduction and timely pay the
full amount deducted to the relevant Governmental Authority in accordance with applicable
law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit
Party shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section) the
Administrative Agent, Issuing Lender, Lender (or each of its beneficial owners), as the case
may be, receives an amount equal to the sum it would have received had no such deductions
been made. A certificate as to the amount of such withholding or deduction that is an
Indemnified Tax delivered by the Withholding Agent to the Borrowers (with, if the
Withholding Agent is not the Administrative Agent, a copy to the Administrative Agent),
shall be conclusive absent manifest error.




     (b) Payment of Other Taxes by the Borrowers. Without limiting the provisions
of paragraph (a) above, the Borrowers shall timely pay to the relevant Governmental
Authority in accordance with applicable law, or at the option of the Administrative Agent
timely reimburse it for the payment of, any Other Taxes.




     (c) Indemnification by the Borrowers. The Borrowers shall indemnify the
Administrative Agent, each Lender and the Issuing Lender, within ten (10) days after demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) payable or paid by the Administrative Agent, such Lender (or its beneficial owners)
or the Issuing Lender, as the case may be, and any reasonable expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to the Company by a Lender or the Issuing
Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own
behalf or on behalf of a Lender or the Issuing Lender, shall be conclusive absent manifest
error. The Borrowers shall also indemnify the Administrative Agent, within 10 days after
demand therefor, for any amount which a Lender or the Issuing Lender for any reason fails to
pay indefeasibly to the Administrative Agent as required by this paragraph (c); provided
that, such Lender or the Issuing Lender, as the case may be, shall indemnify the
Borrowers to the extent of any payment any Borrower makes to the Administrative Agent
pursuant to this sentence. In addition, the Borrowers shall indemnify the Administrative
Agent, each Lender and



54









 






the Issuing Lender, within 10 days after demand therefor, for any incremental Taxes
that may become payable by such Administrative Agent, Lender (or its beneficial owners) or
Issuing Lender as a result of any failure of any Credit Party to pay any Taxes when due to
the appropriate Governmental Authority or to deliver to such Administrative Agent, pursuant
to clause (e), documentation evidencing the payment of Taxes.




     (d) Indemnification of the Administrative Agent. Each Lender and the Issuing
Lender shall indemnify the Administrative Agent within 10 days after demand therefor, for
the full amount of any Excluded Taxes attributable to such Lender that are payable or paid
by the Administrative Agent, and reasonable expenses arising therefrom or with respect
thereto, whether or not such Excluded Taxes were correctly or legally imposed or asserted by
the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to any Lender by the Administrative Agent shall be conclusive absent
manifest error. Each Lender and the Issuing Lender hereby authorizes the Administrative
Agent to set off and apply any and all amounts at any time owing to such Lender or the
Issuing Lender, as the case may be, under any Credit Document against any amount due to the
Administrative Agent under this paragraph (d). The agreements in paragraph (d) shall survive
the resignation and/or replacement of the Administrative Agent.




     (e) Evidence of Payments. As soon as practicable after any payment of Taxes by
any Credit Party to a Governmental Authority pursuant to this Section, the Company shall
deliver to the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return reporting such
payment or other evidence of such payment reasonably satisfactory to the Administrative
Agent.




     (f) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax with respect to payments made under any Credit Document
shall deliver to the Company and the Administrative Agent, at the time or times reasonably
requested by the Company or the Administrative Agent, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if requested by
the Company or the Administrative Agent, shall deliver such other documentation prescribed
by applicable law or reasonably requested by the Company or the Administrative Agent as will
enable the Company or the applicable Borrower or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information reporting
requirements. Notwithstanding anything to the contrary in the preceding two sentences, in
the case of any withholding Tax other than the U.S. federal withholding Tax, the completion,
execution and submission of such forms shall not be required if in the Foreign Lender’s
judgment such completion, execution or submission would subject such Foreign Lender to any
material unreimbursed cost or expense or would materially prejudice the legal or commercial
position of such Foreign Lender.



55









 






     Without limiting the generality of the foregoing, in the event that the applicable
Borrower is a U.S. Borrower,




     (i) any Lender that is a U.S. Person shall deliver to the Company and the
Administrative Agent on or prior to the date on which such Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the request of the
Company or the Administrative Agent), executed originals of Internal Revenue Service
Form W-9 or such other documentation or information prescribed by applicable laws or
reasonably requested by the Company or the Administrative Agent as will enable the
Company or the Administrative Agent, as the case may be, to determine whether or not
such Lender is subject to backup withholding or information reporting requirements;
and




     (ii) any Foreign Lender (other than a Foreign Lender that is a U.S. Person)
shall, to the extent it is legally entitled to do so, deliver to the Company and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the request of the
Company or the Administrative Agent), whichever of the following is applicable:




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




     (B) executed originals of Internal Revenue Service Form W-8ECI;




     (C) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that (A) such Foreign Lender is not a “bank”
within the meaning of section 881(c)(3)(A) of the Code, a “10 percent
shareholder” of any Borrower within the meaning of section 881(c)(3)(B) of
the Code, or a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (B) the interest payments in question are not
effectively connected with a U.S. trade or business conducted by such
Foreign Lender or are effectively connected but are not includible in the
Foreign Lender’s gross income for U.S. federal income tax purposes under an
income tax treaty (a “U.S. Tax Compliance Certificate”) and (y)
executed originals of Internal Revenue Service Form W-8BEN;




     (D) to the extent a Foreign Lender is not the beneficial owner (for
example, where the Foreign Lender is a partnership or participating Lender
granting a typical participation), executed originals of Internal Revenue
Service Form W-8IMY, accompanied by a Form W-8ECI, W-8BEN, U.S. Tax
Compliance Certificate, Form W-9, and/or other



56









 






certification documents from each beneficial owner, as applicable;
provided that if the Foreign Lender is a partnership (and not a
participating Lender) and one or more beneficial owners of such Foreign
Lender are claiming the portfolio interest exemption, such Foreign Lender
may provide a U.S. Tax Compliance Certificate on behalf of each such
beneficial owner; or




     (E) executed originals of any other form prescribed by applicable law
as a basis for claiming exemption from or a reduction in U.S. federal
withholding Tax, duly completed, together with such supplementary
documentation as may be prescribed by applicable law to permit the Company
or the applicable Borrower to determine the withholding or deduction
required to be made.




     (iii) If a payment made to a Lender under any Credit Document would be subject
to U.S. Federal withholding Tax imposed by FATCA if such Lender fails to comply with
the applicable reporting requirements of FATCA (including those contained in Section
1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the
Company and the Administrative Agent (A) a certification signed by the chief
financial officer, principal accounting officer, treasurer or controller, and (B)
other documentation reasonably requested by the Company and the Administrative Agent
sufficient for the Administrative Agent and the Company to comply with their
obligations under FATCA and to determine that such Lender has complied with such
applicable reporting requirements.




     Each Lender agrees that if any form or certification it previously delivered
expires or becomes obsolete or inaccurate in any respect, it shall update such form
or certification or promptly notify the Company and the Administrative Agent in
writing of its legal inability to do so.




     (g) Treatment of Certain Refunds. If the Administrative Agent, a Lender or the
Issuing Lender determines, in its sole discretion, that it has received a refund of any
Taxes as to which it has been indemnified pursuant to this Section (including additional
amounts paid by any Credit Party pursuant to this Section), it shall pay to the indemnifying
party an amount equal to such refund (but only to the extent of indemnity payments made
under this Section with respect to the Indemnified Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses (including Taxes) of the Administrative Agent,
such Lender or the Issuing Lender, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund),
provided that such indemnifying party, upon the request of the Administrative Agent,
such Lender or the Issuing Lender, agrees to repay the amount paid over pursuant to this
Section (g) (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent, such Lender or the Issuing Lender in
the event the Administrative Agent, such Lender or the Issuing Lender is required to repay
such refund to such Governmental Authority.



57









 






Notwithstanding anything to the contrary in this paragraph (g), in no event will the
Administrative Agent, the Issuing Lender or any Lender be required to pay any amount to an
indemnifying party pursuant to this paragraph (g) the payment of which would place the
Administrative Agent, Issuing Lender or Lender in a less favorable net after-Tax position
than the Administrative Agent, Issuing Lender or Lender would have been in if the
indemnification payments or additional amounts giving rise to such refund had never been
paid. This paragraph shall not be construed to require the Administrative Agent, any Lender
or the Issuing Lender to make available its Tax returns (or any other information relating
to its Taxes that it deems confidential) to any Borrower or any other Person.




     (h) Survival. Each party’s obligations under this Section shall survive the
termination of the Credit Documents and payment of any obligations thereunder.



     Section 2.17 Indemnification; Nature of Issuing Lender’s Duties.




     (a) In addition to its other obligations under Section 2.3, the Credit Parties hereby
agree to protect, indemnify, pay and save the Issuing Lender and each Lender harmless from
and against any and all claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys’ fees) that the Issuing Lender or such Lender may
incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any
Letter of Credit or (ii) the failure of the Issuing Lender to honor a drawing under a Letter
of Credit as a result of any act or omission, whether rightful or wrongful, of any present
or future de jure or de facto government or Governmental Authority (all such acts or
omissions, herein called “Government Acts”).




     (b) As between the Credit Parties, the Issuing Lender and each Lender, the Credit
Parties shall assume all risks of the acts, omissions or misuse of any Letter of Credit by
the beneficiary thereof. Neither the Issuing Lender nor any Lender shall be responsible:
(i) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and issuance of any
Letter of Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that
may prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary
of a Letter of Credit to comply fully with conditions required in order to draw upon a
Letter of Credit; (iv) for errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they
be in cipher; (v) for errors in interpretation of technical terms; (vi) for any loss or
delay in the transmission or otherwise of any document required in order to make a drawing
under a Letter of Credit or of the proceeds thereof; and (vii) for any consequences arising
from causes beyond the control of the Issuing Lender or any Lender, including, without
limitation, any Government Acts. None of the above shall affect, impair, or prevent the
vesting of the Issuing Lender’s rights or powers hereunder.



58









 






     (c) In furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by the Issuing Lender or any Lender,
under or in connection with any Letter of Credit or the related certificates, if taken or
omitted in the absence of gross negligence or willful misconduct, shall not put such Issuing
Lender or such Lender under any resulting liability to the Credit Parties. It is the
intention of the parties that this Agreement shall be construed and applied to protect and
indemnify the Issuing Lender and each Lender against any and all risks involved in the
issuance of the Letters of Credit, all of which risks are hereby assumed by the Credit
Parties, including, without limitation, any and all risks of the acts or omissions, whether
rightful or wrongful, of any Government Authority. The Issuing Lender and the Lenders shall
not, in any way, be liable for any failure by the Issuing Lender or anyone else to pay any
drawing under any Letter of Credit as a result of any Government Acts or any other cause
beyond the control of the Issuing Lender and the Lenders.




     (d) Nothing in this Section is intended to limit the Reimbursement Obligation of the
Borrowers contained in Section 2.3(d) hereof. The obligations of the Credit Parties under
this Section shall survive the termination of this Agreement. No act or omissions of any
current or prior beneficiary of a Letter of Credit shall in any way affect or impair the
rights of the Issuing Lender and the Lenders to enforce any right, power or benefit under
this Agreement.




     (e) Notwithstanding anything to the contrary contained in this Section, the Credit
Parties shall have no obligation to indemnify the Issuing Lender or any Lender in respect of
any liability incurred by the Issuing Lender or such Lender arising out of the gross
negligence or willful misconduct of the Issuing Lender (including action not taken by the
Issuing Lender or such Lender), as determined by a court of competent jurisdiction or
pursuant to arbitration.



     Section 2.18 Illegality.



     Notwithstanding any other provision of this Credit Agreement, if any Change in Law shall make
it unlawful for such Lender or its LIBOR Lending Office to make or maintain LIBOR Rate Loans as
contemplated by this Credit Agreement or to obtain in the interbank eurodollar market through its
LIBOR Lending Office the funds with which to make such Loans, (a) such Lender shall promptly notify
the Administrative Agent and the Company thereof, (b) the commitment of such Lender hereunder to
make LIBOR Rate Loans or continue LIBOR Rate Loans as such shall forthwith be suspended until the
Administrative Agent shall give notice that the condition or situation which gave rise to the
suspension shall no longer exist, and (c) such Lender’s Loans then outstanding as LIBOR Rate Loans,
if any, shall be converted on the last day of the Interest Period for such Loans or within such
earlier period as required by law as Alternate Base Rate Loans. Each Borrower hereby agrees to
promptly pay any Lender, upon its demand, any additional amounts necessary to compensate such
Lender for actual and direct costs (but not including anticipated profits) reasonably incurred by
such Lender in making any repayment in accordance with this Section including, but not limited to,
any interest or fees payable by such Lender to lenders of funds obtained by it in order to make or
maintain its LIBOR Rate Loans hereunder. A certificate (which certificate shall include a
description of the basis for the



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computation) as to any additional amounts payable pursuant to this Section submitted by such
Lender, through the Administrative Agent, to the Company shall be conclusive in the absence of
manifest error. Each Lender agrees to use reasonable efforts (including reasonable efforts to
change its LIBOR Lending Office) to avoid or to minimize any amounts which may otherwise be payable
pursuant to this Section; provided, however, that such efforts shall not cause the
imposition on such Lender of any additional costs or legal or regulatory burdens deemed by such
Lender in its sole discretion to be material.





     Section 2.19 Replacement of Lenders.




     (a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 2.14, or requires the Company to pay any Indemnified Taxes or
additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.16, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to assign its rights
and obligations hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or Section 2.16, as the case may be, in the future
and (ii) would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Company hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such designation
or assignment.




     (b) Replacement of Lenders. If any Lender requests compensation under Section
2.14, or if the Company is required to pay any Indemnified Taxes or additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender becomes a Defaulting Lender then the Company may, at its sole expense and
effort, upon five (5) days written notice to such Lender and the Administrative Agent,
require such Lender to assign (at par) and delegate, without recourse (in accordance with
and subject to the restrictions contained in, and consents required by, Section 9.6), all of
its interests, rights and obligations under this Agreement and the related Credit Documents
to an assignee that shall assume such obligations (which assignee may be another Lender, if
a Lender accepts such assignment), provided that:




     (i) the Borrowers shall have paid to the Administrative Agent the assignment
fee (if any) specified in Section 9.6;




     (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in Letters of Credit, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and
under the other Credit Documents (including any amounts under Section 2.15) from the
assignee (to the extent of such outstanding principal and accrued interest and fees)
or the Company (in the case of all other amounts);



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     (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.14 or payments required to be made pursuant to Section
2.16, such assignment will result in a reduction in such compensation or payments
thereafter; and




     (iv) such assignment does not conflict with applicable law.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to
require such assignment and delegation cease to apply.



     Section 2.20 Cash Collateral.




     (a) Cash Collateral. At any time that there shall exist a Defaulting Lender,
immediately upon the request of the Administrative Agent, any Issuing Lender or any
Swingline Lender, the Borrowers shall deliver to the Administrative Agent Cash Collateral in
an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.21(b)
and any Cash Collateral provided by the Defaulting Lender).




     (b) Grant of Security Interest. All Cash Collateral (other than credit support
not constituting funds subject to deposit) shall be maintained in blocked, non-interest
bearing deposit accounts with the Administrative Agent. Each of the Borrowers, and to the
extent provided by any Lender, such Lender, hereby grants to (and subjects to the control
of) the Administrative Agent, for the benefit of the Administrative Agent, the Issuing
Lenders and the Lenders (including the Swingline Lender), and agrees to maintain, a first
priority security interest in all such cash, deposit accounts and all balances therein, and
all other property so provided as collateral pursuant hereto, and in all proceeds of the
foregoing, all as security for the obligations to which such Cash Collateral may be applied
pursuant to clause (b) below. If at any time the Administrative Agent, any Issuing Lender
or the Swingline Lender determines that Cash Collateral is subject to any right or claim of
any Person other than the Administrative Agent as herein provided, or that the total amount
of such Cash Collateral is less than the applicable Fronting Exposure and other obligations
secured thereby, the Borrowers or the relevant Defaulting Lender will, promptly upon demand
by the Administrative Agent, any Issuing Lender or the Swingline Lender, pay or provide to
the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate
such deficiency.




     (c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section or Section 2.21 in respect of
Letters of Credit or Swingline Loans, shall be held and applied to the satisfaction of the
specific LOC Obligations, Swingline Loans, obligations to fund participations therein
(including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on
such obligation) and other obligations for which the Cash Collateral was so provided, prior
to any other application of such property as may be provided for herein.



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     (d) Release. Cash Collateral (or the appropriate portion thereof) provided to
reduce Fronting Exposure or other obligations shall be released promptly following (i) the
elimination of the applicable Fronting Exposure or other obligations giving rise thereto
(including by the termination of Defaulting Lender status of the applicable Lender (or, as
appropriate, its assignee)), or (ii) the Administrative Agent’s good faith determination
that there exists excess Cash Collateral (which determination shall be confirmed by any
Issuing Lender or the Swingline Lender affected by such release of Cash Collateral);
provided, however, (A) that Cash Collateral furnished by or on behalf of a Credit
Party shall not be released during the continuance of a Default (and following application
as provided in this Section may be otherwise applied in accordance with Section 2.11), and
(B) the Person providing Cash Collateral and each applicable Issuing Lender or Swingline
Lender may agree that Cash Collateral shall not be released but instead held to support
future anticipated Fronting Exposure or other obligations.



     Section 2.21 Defaulting Lenders.




     (a) Adjustments. Notwithstanding anything to the contrary contained in this
Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender
is no longer a Defaulting Lender, to the extent permitted by applicable law:




     (i) Waivers and Amendments. Such Defaulting Lender’s right to approve
or disapprove any amendment, waiver or consent with respect to this Agreement shall
be restricted as set forth in the definition of Required Lenders and Section 9.1.




     (ii) Reallocation of Payments. Any payment of principal, interest, fees
or other amounts received by the Administrative Agent for the account of such
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article
VII or otherwise) shall be applied at such time or times as may be determined by the
Administrative Agent as follows: first, to the payment of any amounts owing by such
Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a
pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Lender
or Swingline Lender hereunder; third, if so determined by the Administrative Agent
or requested by any Issuing Lender or Swingline Lender, to be held as Cash
Collateral for future funding obligations of such Defaulting Lender in respect of
any participation in any Swingline Loan or Letter of Credit; fourth, as the Company
may request (so long as no Default exists), to the funding of any Loan in respect of
which that Defaulting Lender has failed to fund its portion thereof as required by
this Agreement, as determined by the Administrative Agent; fifth, if so determined
by the Administrative Agent and the Company, to be held in a non-interest bearing
deposit account and released in order to satisfy obligations of such Defaulting
Lender to fund Loans under this Agreement; sixth, to the payment of any amounts
owing to the Lenders, the Issuing Lenders or Swingline Lender as a result of any
judgment of a court of competent jurisdiction obtained by any Lender, any Issuing
Lenders or Swingline Lender against that Defaulting Lender as a result of such



62









 






Defaulting Lender’s breach of its obligations under this Agreement; seventh, so
long as no Default exists, to the payment of any amounts owing to any Borrower as a
result of any judgment of a court of competent jurisdiction obtained by any Borrower
against such Defaulting Lender as a result of such Defaulting Lender’s breach of its
obligations under this Agreement; and eighth, to such Defaulting Lender or as
otherwise directed by a court of competent jurisdiction; provided that if
such payment is a payment of the principal amount of any Loans or LOC Obligations in
respect of which such Defaulting Lender has not fully funded its appropriate share,
and such Loans were made or the related Letters of Credit were issued at a time when
the conditions set forth in Section 4.2 were satisfied or waived, such payment shall
be applied solely to pay the Loans of, and LOC Obligations owed to, all
Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of
any Loans of, or LOC Obligations owed to, such Defaulting Lender. Any payments,
prepayments or other amounts paid or payable to a Defaulting Lender that are applied
(or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral
pursuant to this Section shall be deemed paid to and redirected by such Defaulting
Lender, and each Lender irrevocably consents hereto.




     (iii) Certain Fees.




     (A) Commitment Fees. (1) No Commitment Fee shall accrue on any
of the Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender and (2) any Commitment Fee accrued with respect to the
Commitments of a Defaulting Lender during the period prior to the time such
Lender became a Defaulting Lender and unpaid at such time shall not be
payable by the Borrowers so long as such Lender shall be a Defaulting
Lender.




     (B) Letter of Credit Fees. A Defaulting Lender shall not be
entitled to receive any Letter of Credit Fee for any period during which it
is a Defaulting Lender, except that a Defaulting Lender shall be entitled to
receive a Letter of Credit Fee with respect to each Letter of Credit or
portion thereof for which it has provided Cash Collateral pursuant to
Section 2.20. With respect to any Letter of Credit Fee that a
Defaulting Lender is not entitled to receive in accordance with the terms of
this Section, such Letter of Credit Fee shall be paid to the non-Defaulting
Lenders to the extent such Defaulting Lender’s L/C Obligations have been
reallocated to the Non-Defaulting Lenders in accordance with clause (iv)
below; provided that if any portion of such Defaulting Lender’s L/C
Obligations have not been reallocated to the Non-Defaulting Lenders and have
not been Cash Collateralized by the Defaulting Lender (the “Exposed L/C
Obligations”), the Letter of Credit Fees corresponding to the Exposed
L/C Obligations (1) shall not be payable by the Borrowers to the extent the
Borrowers have Cash Collateralized such Exposed L/C Obligations and



63









 






     (2) shall be payable to the Issuing Lender to the extent the Borrowers
have not Cash Collateralized such Exposed L/C Obligations.




     (iv) Reallocation of Participations to Reduce Fronting Exposure. All
or any part of such Defaulting Lender’s LOC Obligations and its Swingline Exposure
shall automatically (effective on the day such Lender becomes a Defaulting Lender)
be reallocated among the Non-Defaulting Lenders in accordance with their respective
Applicable Percentages (calculated without regard to such Defaulting Lender’s
Commitment) but only to the extent that such reallocation does not cause the
aggregate Committed Funded Exposure of any Non-Defaulting Lender to exceed such
Non-Defaulting Lender’s Commitment.




     (v) Cash Collateral. If the reallocation described in clause (iv)
above cannot, or can only partially, be effected, the Borrowers shall, without
prejudice to any right or remedy available to them hereunder or under law,
immediately following notice by the Administrative Agent, any Issuing Lender or the
Swingline Lender, Cash Collateralize such Defaulting Lender’s LOC Obligations and
its Swingline Exposure (after giving effect to any partial reallocation pursuant to
clause (iv) above) in accordance with the procedures set forth in Section 2.20 for
so long as such LOC Obligations or Swingline Loans are outstanding.




          (b) Defaulting Lender Cure. If the Company, the Administrative Agent, the
Swingline Lender and Issuing Lender agree in writing in their sole discretion that a
Defaulting Lender should no longer be deemed to be a Defaulting Lender, 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 (which may include arrangements
with respect to any Cash Collateral), such Lender will, to the extent applicable, purchase
that portion of outstanding Loans of the other Lenders or take such other actions as the
Administrative Agent may determine to be necessary to cause the Committed Loans and funded
and unfunded participations in Letters of Credit and Swingline Loans to be held on a pro
rata basis by the Lenders in accordance with their Applicable Percentages (without giving
effect to Section 2.21(a)(iv), whereupon such Lender will cease to be a Defaulting Lender;
provided that no adjustments will be made retroactively with respect to fees accrued
or payments made by or on behalf of the Borrowers while such Lender was a Defaulting Lender;
and provided, further, that except to the extent otherwise expressly agreed by the
affected parties, no change hereunder from Defaulting Lender to 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




REPRESENTATIONS AND WARRANTIES



     To induce the Lenders to enter into this Agreement and to make the Extensions of Credit herein
provided for (except as set forth in Section 4.1 in connection with the initial Extensions of



64









 





Credit), the Credit Parties hereby represent and warrant to the Administrative Agent and to
each Lender that:




     Section 3.1 Financial Condition.




     (a) (i) The audited Consolidated financial statements of the Company and its
Subsidiaries for the fiscal years ended December 31, 2007, December 31, 2008 and December
31, 2009, together with the related Consolidated statements of income or operations, equity
and cash flows for the fiscal years ended on such dates, (ii) the unaudited Consolidated
financial statements of the Company and its Subsidiaries for the year-to-date period ending
on June 30, 2010, together with the related Consolidated statements of income or operations,
equity and cash flows for the year-to-date period ending on such date and (iii) a pro forma
balance sheet of the Company and its Subsidiaries as of June 30, 2010:




     (A) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein;




     (B) fairly present the financial condition of the Company and its
Subsidiaries, as applicable, as of the date thereof (subject, in the case of
the unaudited financial statements, to normal year-end adjustments) and
results of operations for the period covered thereby; and




     (C) show all material Indebtedness and other liabilities, direct or
contingent, of the Company and its Subsidiaries, as applicable, as of the
date thereof, including liabilities for taxes, material commitments and
contingent obligations.




     (b) The three-year projections of the Credit Parties and their Subsidiaries (prepared
quarterly for the first year following the Closing Date and annually thereafter for the term
of this Agreement) delivered to the Lenders on or prior to the Closing Date have been
prepared in good faith based upon assumptions believed by the Company to be reasonable as of
the Closing Date (it being acknowledged by the Administrative Agent and the Lenders that
such projections are subject to the uncertainty inherent in any projections and that actual
results may differ from projected or forecasted results).



     Section 3.2 No Material Adverse Effect; Internal Control Event.



     Since December 31, 2009 (and, in addition, after delivery of annual audited financial
statements in accordance with Section 5.1(a), from the date of the most recently delivered annual
audited financial statements), (a) there has been no development or event which has had or could
reasonably be expected to have a Material Adverse Effect and (b) no Internal Control Event is
occurring.



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     Section 3.3 Corporate Existence; Compliance with Law; Patriot Act Information.



     Each of the Credit Parties (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, organization or formation, (b) has the requisite
power and authority and the legal right to own and operate all its property, to lease the property
it operates as lessee and to conduct the business in which it is currently engaged and, except
where the failure to take such action could not reasonably be expected to have a Material Adverse
Effect, has taken all actions necessary to maintain all rights, privileges, licenses and franchises
necessary or required in the normal conduct of its business, (c) is duly qualified to conduct
business and in good standing under the laws of (i) the jurisdiction of its organization or
formation, (ii) the jurisdiction where its chief executive office is located and (iii) each other
jurisdiction where its ownership, lease or operation of property or the conduct of its business
requires such qualification except to the extent that the failure to so qualify or be in good
standing in any such other jurisdiction could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business or operations of the Company and its
Subsidiaries in such jurisdiction and (d) is in compliance with all Requirements of Law, except to
the extent such non-compliance could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. Set forth on Schedule 3.3 as of the Closing Date, or as
of the last date such Schedule was required to be updated in accordance with Section 5.2, is the
following information for each Credit Party: the exact legal name and any former legal names of
such Credit Party in the four (4) months prior to the Closing Date, the state of incorporation or
organization, the type of organization, the jurisdictions in which such Credit Party is qualified
to do business, the chief executive office, the principal place of business, the business phone
number, the organization identification number, the federal tax identification number and ownership
information (e.g. publicly held, if private or partnership, the owners and partners of each of the
Credit Parties).



     Section 3.4 Corporate Power; Authorization; Enforceable Obligations.



     Each of the Credit Parties has full power and authority and the legal right to make, deliver
and perform the Credit Documents to which it is party and has taken all necessary limited liability
company, partnership or corporate action to authorize the execution, delivery and performance by it
of the Credit Documents to which it is party. Each Credit Document to which it is a party has been
duly executed and delivered on behalf of each Credit Party. Each Credit Document to which it is a
party constitutes a legal, valid and binding obligation of each Credit Party, enforceable against
such Credit Party in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles (whether enforcement
is sought by proceedings in equity or at law).



     Section 3.5 No Legal Bar; No Default.



     The execution, delivery and performance by each Credit Party of the Credit Documents to which
such Credit Party is a party, the borrowings thereunder and the use of the proceeds of the Loans
(a) will not violate any Requirement of Law or any material Contractual Obligation of any Credit
Party (except those as to which waivers or consents have been obtained), (b) will not



66









 





conflict with, result in a breach of or constitute a default under the articles of
incorporation, bylaws, articles of organization, operating agreement or other organization
documents of the Credit Parties or any material Contractual Obligation to which such Person is a
party or by which any of its properties may be bound or require any material approval or material
consent from any Governmental Authority relating to such Person, and (c) will not result in, or
require, the creation or imposition of any Lien on any Credit Party’s properties or revenues
pursuant to any Requirement of Law or Contractual Obligation other than the Liens arising under or
contemplated in connection with the Credit Documents or Permitted Liens. No Credit Party is in
default under or with respect to any of its Contractual Obligations in any respect which could
reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.




     Section 3.6 No Material Litigation.



     Both before and after giving effect to the Acquisition, no litigation, investigation, claim,
criminal prosecution, civil investigative demand, imposition of criminal or civil fines and
penalties, or any other proceeding of or before any arbitrator or Governmental Authority is pending
or, to the best knowledge of the Credit Parties, threatened by or against any Credit Party or any
of its Subsidiaries or against any of its or their respective properties or revenues (a) with
respect to the Credit Documents or any Extension of Credit or any of the Transactions, or (b) which
could reasonably be expected to have a Material Adverse Effect. Both before and after giving
effect to the Acquisition, no permanent injunction, temporary restraining order or similar decree
has been issued against any Credit Party or any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect.



     Section 3.7 Investment Company Act; etc.



     No Credit Party is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act of 1940, as amended. No Credit Party is
subject to regulation under the Federal Power Act, the Interstate Commerce Act, the Public Utility
Holding Company Act of 2005 or any federal or state statute or regulation limiting its ability to
incur the Credit Party Obligations.



     Section 3.8 Margin Regulations.



     No part of the proceeds of any Extension of Credit hereunder will be used directly or
indirectly for any purpose that violates, or that would require any Lender to make any filings in
accordance with, the provisions of Regulation T, U or X of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect. The Company and its Subsidiaries
(a) are not engaged, principally or as one of their important activities, in the business of
extending credit for the purpose of “purchasing” or “carrying” “margin stock” within the respective
meanings of each of such terms under Regulation U and (b) taken as a group do not own “margin
stock” having a value that exceeds 25% of the value of their assets.



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     Section 3.9 ERISA.



     Neither a Reportable Event nor an “accumulated funding deficiency” (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the five-year period prior to
the date on which this representation is made or deemed made with respect to any Plan, and each
Plan has complied in all material respects with the applicable provisions of ERISA and the Code.
No termination of a Single Employer Plan has occurred resulting in any liability that has remained
underfunded, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period.
The present value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation date prior to the
date on which this representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits. Neither any Credit Party nor any Commonly Controlled
Entity is currently subject to any liability for a complete or partial withdrawal from a
Multiemployer Plan.



     Section 3.10 Environmental Matters.



     Except as could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect:




     (a) The facilities and properties owned, leased or operated by the Credit Parties or
any of their Subsidiaries (the “Properties”) do not contain any Materials of
Environmental Concern in amounts or concentrations which (i) constitute a violation of, or
(ii) could give rise to liability on behalf of any Credit Party under, any Environmental
Law.




     (b) The Properties and all operations of the Credit Parties and/or their Subsidiaries
at the Properties are in compliance, and have in the last five years been in compliance,
with all applicable Environmental Laws, and there is no contamination at, under or about the
Properties or violation of any Environmental Law with respect to the Properties or the
business operated by the Credit Parties or any of their Subsidiaries (the
“Business”).




     (c) Neither the Credit Parties nor their Subsidiaries have received any written or
actual notice of violation, alleged violation, non-compliance, liability or potential
liability on behalf of any Credit Party with respect to environmental matters or
Environmental Laws regarding any of the Properties or the Business, nor do the Credit
Parties or their Subsidiaries have knowledge or reason to believe that any such notice will
be received or is being threatened.




     (d) Materials of Environmental Concern have not been transported or disposed of from
the Properties in violation of, or in a manner or to a location that could give rise to
liability on behalf of any Credit Party under any Environmental Law, and no Materials of
Environmental Concern have been generated, treated, stored or disposed of at, on or under
any of the Properties in violation of, or in a manner that could give rise to liability on
behalf of any Credit Party under, any applicable Environmental Law.



68









 






     (e) No judicial proceeding or governmental or administrative action is pending or, to
the knowledge of the Company and its Subsidiaries, threatened, under any Environmental Law
to which any Credit Party or any Subsidiary is or will be named as a party with respect to
the Properties or the Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the Properties or the
Business.




     (f) There has been no release or threat of release of Materials of Environmental
Concern at or from the Properties, or arising from or related to the operations of any
Credit Party or any Subsidiary in connection with the Properties or otherwise in connection
with the Business, in violation of or in amounts or in a manner that could give rise to
liability on behalf of any Credit Party under Environmental Laws.



     Section 3.11 Use of Proceeds.



     The proceeds of the Extensions of Credit shall be used by the Borrowers solely (a) to finance
in part the Acquisition, (b) to refinance certain existing Indebtedness of the Credit Parties and
their Subsidiaries, (c) to pay any costs, fees and expenses associated with this Agreement on the
Closing Date, (d) to pay all accrued dividends on the Series B Preferred Stock and to redeem up to
50% of the Series B Preferred Stock, (e) to pay any costs, fees and expenses incurred in connection
with the Acquisition and the IPO and (f) for working capital and other general corporate purposes
of the Credit Parties and their Subsidiaries.



     Section 3.12 Subsidiaries; Joint Ventures; Partnerships.



     Set forth on Schedule 3.12 is a complete and accurate list of all Subsidiaries, joint
ventures and partnerships of the Credit Parties as of the Closing Date and as of the last date such
Schedule was required to be updated in accordance with Section 5.2. Information on the attached
Schedule includes the following: (a) the number of shares of each class of Equity Interests of
each Credit Party outstanding and (b) the number and percentage of outstanding shares of each class
of Equity Interests owned by the Company and its Subsidiaries. The outstanding Equity Interests of
all such Subsidiaries are validly issued, fully paid and non-assessable and are owned free and
clear of all Liens (other than those arising under or contemplated in connection with the Credit
Documents). There are no outstanding subscriptions, options, warrants, calls, rights or other
agreements or commitments (other than stock options granted to employees or directors and
directors’ qualifying shares) of any nature relating to any Equity Interests of any Credit Party or
any Subsidiary thereof, except as contemplated in connection with the Credit Documents.



     Section 3.13 Ownership.



     Each of the Credit Parties and its Subsidiaries is the owner of, and has good and marketable
title to or a valid leasehold interest in, all of its respective assets, except where the failure
to have such good and marketable title to or valid leasehold interest in such assets could



69









 





not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect, and (after giving effect to the Transactions) none of such assets is subject to any Lien
other than Permitted Liens. Each lease of the Credit Parties that is subject to a leasehold
mortgage in favor of the Administrative Agent, for the benefit of the Lenders, is in full force and
effect and except as could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect, all other leases of the Credit Parties and their Subsidiaries are in full
force and effect.




     Section 3.14 Consent; Governmental Authorizations.



     No approval, consent or authorization of, filing with, notice to or other act by or in respect
of, any Governmental Authority or any other Person is required in connection with acceptance of
Extensions of Credit by the Borrowers or the making of the Guaranty hereunder or with the
execution, delivery or performance of any Credit Document by the Credit Parties (other than those
which have been obtained) or with the validity or enforceability of any Credit Document against the
Credit Parties (except such filings as are necessary in connection with the perfection of the Liens
created by such Credit Documents).



     Section 3.15 Taxes.



     Each of the Credit Parties and its Subsidiaries has filed, or caused to be filed, all income
tax returns and all other material tax returns (federal, state, local and foreign) required to be
filed and paid (a) all amounts of taxes shown thereon to be due (including interest and penalties)
and (b) all other taxes, fees, assessments and other governmental charges (including mortgage
recording taxes, documentary stamp taxes and intangibles taxes) owing by it, except for such taxes
(i) that are not yet delinquent or (ii) that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in accordance with GAAP.
None of the Credit Parties or their Subsidiaries is aware as of the Closing Date of any proposed
tax assessments against it or any of its Subsidiaries.



     Section 3.16 Collateral Representations.




     (a) Intellectual Property. Set forth on Schedule 3.16(a), as of the
Closing Date and as of the last date such Schedule was required to be updated in accordance
with Section 5.2, is a list of all registered or issued Intellectual Property (including all
applications for registration and issuance) owned by each of the Credit Parties or that each
of the Credit Parties has the right to (including the name/title, current owner,
registration or application number, and registration or application date and such other
information as reasonably requested by the Administrative Agent).




     (b) Documents, Instrument, and Tangible Chattel Paper. Set forth on
Schedule 3.16(b), as of the Closing Date and as of the last date such Schedule was
required to be updated in accordance with Section 5.2, is a description of all Documents (as
defined in the UCC), Instruments (as defined in the UCC), and Tangible Chattel Paper (as
defined in the UCC) of the Credit Parties (including the Credit Party owning such Document,
Instrument and Tangible Chattel Paper and such other information as reasonably requested by
the Administrative Agent).



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     (c) Deposit Accounts, Electronic Chattel Paper, Letter-of-Credit Rights, Securities
Accounts and Uncertificated Investment Property. Set forth on Schedule 3.16(c),
as of the Closing Date and as of the last date such Schedule was required to be updated in
accordance with Section 5.2, is a description of all Deposit Accounts (as defined in the
UCC), Electronic Chattel Paper (as defined in the UCC), Letter-of-Credit Rights (as defined
in the UCC), Securities Accounts (as defined in the UCC) and uncertificated Investment
Property (as defined in the UCC) of the Credit Parties, including the name of (i) the
applicable Credit Party, (ii) in the case of a Deposit Account, the depository institution
and average amount held in such Deposit Account, (iii) in the case of Electronic Chattel
Paper, the account debtor, (iv) in the case of Letter-of-Credit Rights, the issuer or
nominated person, as applicable, and (v) in the case of a Securities Account or other
uncertificated Investment Property, the Securities Intermediary or issuer and the average
amount held in such Securities Account, as applicable.




     (d) Commercial Tort Claims. Set forth on Schedule 3.16(d), as of the
Closing Date and as of the last date such Schedule was required to be updated in accordance
with Section 5.2, is a description of all Commercial Tort Claims (as defined in the UCC) of
the Credit Parties (detailing such Commercial Tort Claim in such detail as reasonably
requested by the Administrative Agent).




     (e) Pledged Equity Interests. Set forth on Schedule 3.16(e), as of the
Closing Date and as of the last date such Schedule was required to be updated in accordance
with Section 5.2, is a list of (i) 100% (or, if less, the full amount owned by such Credit
Party) of the issued and outstanding Equity Interests owned by such Credit Party of each
Domestic Subsidiary, (ii) 65% (or, if less, the full amount owned by such Credit Party) of
each class of the issued and outstanding Equity Interests entitled to vote (within the
meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% (or, if less, the full amount owned
by such Pledgor) of each class of the issued and outstanding Equity Interests not entitled
to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) owned by such Credit Party
of each first-tier Foreign Subsidiary and (iii) all other Equity Interests required to be
pledged to the Administrative Agent pursuant to the Security Documents.




     (f) Properties. Set forth on Schedule 3.16(f)(i), as of the Closing
Date and as of the last date such Schedule was required to be updated in accordance with
Section 5.2, is a list of all Mortgaged Properties (including the Credit Party owning such
Mortgaged Property). Set forth on Schedule 3.16(f)(ii) is a list of (i) each
headquarter location of the Credit Parties (and an indication if such location is leased or
owned), (ii) each other location where any significant administrative or governmental
functions are performed (and an indication if such location is leased or owned), (iii) each
other location where the Credit Parties maintain any books or records (electronic or
otherwise) (and an indication if such location is leased or owned) and (iv) each location
where any personal property Collateral is located at any premises owned or leased by a
Credit Party with a Collateral value in excess of $500,000 (and an indication whether such
location is leased or owned).



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     Section 3.17 Solvency.



     Before and after giving effect to the Transactions and the IPO, (a) (i) the Company
individually is solvent and able to pay its debts and other liabilities, contingent obligations and
other commitments as they mature in the normal course of business and (ii) the Credit Parties,
taken as a whole, are solvent and able to pay their respective debts and other liabilities,
contingent obligations and other commitments as they mature in the normal course of business, and
(b) (i) the fair saleable value of the Company’s assets, measured on a going concern basis, exceed
all probable liabilities, including those to be incurred pursuant to this Agreement and (ii) the
fair saleable value of the Credit Parties’ assets, taken as a whole, measured on a going concern
basis, exceeds all probable liabilities, including those to be incurred pursuant to this Agreement.
Before and after giving effect to the Transactions and the IPO, (a) the Company does not have
unreasonably small capital in relation to the business in which it is or proposes to be engaged and
(b) the Credit Parties, taken as a whole, do not have unreasonably small capital in relation to the
business in which they are or propose to be engaged. After giving effect to the Transactions and
the IPO, (a) the Company will not have incurred, or believes that it will incur, debts beyond its
ability to pay such debts as they become due and (b) the Credit Parties, taken as a whole will not
have incurred, or believe that they will incur, debts beyond their ability to pay such debts as
they become due. In executing the Credit Documents and consummating the Transactions and the IPO,
none of the Credit Parties intends to hinder, delay or defraud either present or future creditors
or other Persons to which one or more of the Credit Parties is or will become indebted.



     Section 3.18 Compliance with FCPA.



     Each of the Credit Parties and their Subsidiaries is in compliance with the Foreign Corrupt
Practices Act, 15 U.S.C. §§ 78dd-1, et seq., and any foreign counterpart thereto. None of the
Credit Parties or their Subsidiaries has made a payment, offering, or promise to pay, or authorized
the payment of, money or anything of value (a) in order to assist in obtaining or retaining
business for or with, or directing business to, any foreign official, foreign political party,
party official or candidate for foreign political office, (b) to a foreign official, foreign
political party or party official or any candidate for foreign political office, and (c) with the
intent to induce the recipient to misuse his or her official position to direct business wrongfully
to such Credit Party or its Subsidiary or to any other Person, in violation of the Foreign Corrupt
Practices Act, 15 U.S.C. §§ 78dd-1, et seq.



     Section 3.19 No Burdensome Restrictions.



     None of the Credit Parties or their Subsidiaries is a party to any agreement or instrument or
subject to any other obligation or any charter or corporate restriction or any provision of any
applicable law, rule or regulation which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.



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     Section 3.20 Brokers’ Fees.



     Except as set forth on Schedule 3.20, none of the Credit Parties or their Subsidiaries
has any obligation to any Person in respect of any finder’s, broker’s, investment banking or other
similar fee in connection with any of the Transactions other than the closing and other fees
payable pursuant to this Agreement and as set forth in the Fee Letters.



     Section 3.21 Labor Matters.



     There are no collective bargaining agreements or Multiemployer Plans covering the employees of
the Credit Parties or any of their Subsidiaries as of the Closing Date and none of the Credit
Parties or their Subsidiaries (a) has suffered any strikes, walkouts, work stoppages or other
material labor difficulty within the last five years or (b) has knowledge of any potential or
pending strike, walkout or work stoppage. No unfair labor practice complaint is pending against
any Credit Party or any of its Subsidiaries. There are no strikes, walkouts, work stoppages or
other material labor difficulty pending or threatened against any Credit Party.



     Section 3.22 Accuracy and Completeness of Information.



     All factual information heretofore, contemporaneously or hereafter furnished by or on behalf
of any Credit Party or any of its Subsidiaries to the Administrative Agent, the Arranger or any
Lender for purposes of or in connection with this Agreement or any other Credit Document, or any
Transaction, is, or when furnished, taken as a whole, will be true and accurate in all material
respects and not incomplete by omitting to state any material fact necessary to make such
information not misleading. There is no fact now known to any Credit Party or any of its
Subsidiaries which, individually or in the aggregate, has, or could reasonably be expected to have,
a Material Adverse Effect, which fact has not been set forth herein, in the financial statements of
the Company and its Subsidiaries furnished to the Administrative Agent and the Lenders, or in any
certificate, opinion or other written statement made or furnished by any Credit Party to the
Administrative Agent and the Lenders.



     Section 3.23 Material Contracts.



     Schedule 3.23 sets forth a complete and accurate list of all Material Contracts of the
Company and its Subsidiaries in effect as of the Closing Date and as of the last date such Schedule
was required to be updated in accordance with Section 5.2. Each Material Contract is, and after
giving effect to the Transactions will be, in full force and effect in accordance with the terms
thereof. The Credit Parties have delivered to the Administrative Agent a true and complete copy of
each Material Contract.



     Section 3.24 Insurance.



     The insurance coverage of the Company and its Subsidiaries that is material to the business
and operations of the Company and its Subsidiaries, taken as a whole, is outlined as to carrier,
policy number, expiration date, type and amount on Schedule 3.24 as of the Closing Date



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and as of the last date such Schedule was required to be updated in accordance with Section
5.2 and such insurance coverage complies with the requirements set forth in Section 5.5(b).




     Section 3.25 Security Documents.



     The Security Documents create valid and enforceable security interests in, and Liens on, the
Collateral purported to be covered thereby. Except as set forth in the Security Documents, such
security interests and Liens are currently (or will be, upon (a) the filing of appropriate
financing statements with the Secretary of State of the state of incorporation or organization for
each Credit Party, the filing of appropriate assignments or notices with the United States Patent
and Trademark Office and the United States Copyright Office, and the recordation of the Mortgage
Instruments, in each case in favor of the Administrative Agent, on behalf of the Lenders, and (b)
the Administrative Agent obtaining control or possession over those items of Collateral in which a
security interest is perfected through control or possession) perfected security interests and
Liens in favor of the Administrative Agent, for the benefit of the Secured Parties, prior to all
other Liens other than Permitted Liens.



     Section 3.26 Classification of Senior Indebtedness.



     The Credit Party Obligations constitute “Senior Indebtedness”, “Designated Senior
Indebtedness” or any similar designation under and as defined in any agreement governing any
Subordinated Debt and the subordination provisions set forth in each such agreement are legally
valid and enforceable against the parties thereto.



     Section 3.27 Anti-Terrorism Laws.



     Neither any Credit Party nor any of its Subsidiaries is an “enemy” or an “ally of the enemy”
within the meaning of Section 2 of the Trading with the Enemy Act of the United States of America
(50 U.S.C. App. §§ 1 et seq.) (the “Trading with the Enemy Act”), as amended. Neither any
Credit Party nor any of its Subsidiaries is in violation of (a) the Trading with the Enemy Act, as
amended, (b) any of the foreign assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating
thereto or (c) the Patriot Act. None of the Credit Parties (i) is a blocked person described in
Section 1 of the Anti-Terrorism Order or (ii) to the best of its knowledge, engages in any dealings
or transactions, or is otherwise associated, with any such blocked person.



     Section 3.28 Compliance with OFAC Rules and Regulations.




     (a) None of the Credit Parties or their Subsidiaries or their respective Affiliates is
in violation of and shall not violate any of the country or list based economic and trade
sanctions administered and enforced by OFAC that are described or referenced at
http://www.ustreas.gov/offices/enforcement/ofac/ or as otherwise published from time to
time.



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     (b) None of the Credit Parties or their Subsidiaries or their respective Affiliates (i)
is a Sanctioned Person or a Sanctioned Entity, (ii) has a more than 10% of its assets
located in Sanctioned Entities, or (iii) derives more than 10% of its operating income from
investments in, or transactions with Sanctioned Persons or Sanctioned Entities. No proceeds
of any Loan will be used nor have any been used to fund any operations in, finance any
investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned
Entity.



     Section 3.29 Authorized Officer.



     Set forth on Schedule 3.29 are Responsible Officers that are permitted to sign Credit
Documents on behalf of the Credit Parties, holding the offices indicated next to their respective
names, as of the Closing Date and as of the last date such Schedule was required to be updated in
accordance with Section 5.2. Such Authorized Officers are the duly elected and qualified officers
of such Credit Party and are duly authorized to execute and deliver, on behalf of the respective
Credit Party, the Credit Agreement, the Notes and the other Credit Documents.



     Section 3.30 Regulation H.



     No Mortgaged Property is a Flood Hazard Property unless the Administrative Agent shall have
received the following: (a) the applicable Credit Party’s written acknowledgment of receipt of
written notification from the Administrative Agent (i) as to the fact that such Mortgaged Property
is a Flood Hazard Property and (ii) as to whether the community in which each such Flood Hazard
Property is located is participating in the National Flood Insurance Program and (b) copies of
insurance policies or certificates of insurance of the applicable Credit Party evidencing flood
insurance reasonably satisfactory to the Administrative Agent and naming the Administrative Agent
as loss payee on behalf of the Lenders.



     Section 3.31 Consummation of Acquisition and IPO.




     (a) The Acquisition and related transactions have been (or simultaneously with the
closing of the Loans hereunder, will be) consummated substantially in accordance with the
terms of the Acquisition Documents as of the Closing Date. As of the Closing Date, the
Acquisition Documents have not been altered, amended or otherwise modified or supplemented
in any manner materially adverse to the Lenders (as reasonably determined by the
Administrative Agent) without the prior written consent of the Administrative Agent. Each
of the representations and warranties made in the Acquisition Documents by the Credit
Parties and their Subsidiaries or, to the best knowledge of the Credit Parties, made by any
third party is true and correct in all material respects.




     (b) The IPO and related transactions have been (or simultaneously with the closing of
the Loans hereunder, will be) consummated substantially in accordance with the terms of the
IPO Documents. As of the Closing Date, the IPO Documents have not been altered, amended or
otherwise modified or supplemented in any in any manner materially adverse to the Lenders
(as reasonably determined by the Administrative



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Agent) nor has any material condition thereof been waived, in any such case without the
prior written consent of the Administrative Agent.



ARTICLE IV




CONDITIONS PRECEDENT



     Section 4.1 Conditions to Initial Extensions of Credit on the Closing Date.



     This Agreement shall become effective upon, and the obligation of each Lender to make the
initial Extensions of Credit on the Closing Date is subject to, the satisfaction of the following
conditions precedent:




     (a) Execution of Credit Agreement and Credit Documents. The Administrative
Agent shall have received (i) counterparts of this Agreement, executed by a duly authorized
officer of each party hereto, (ii) for the account of each Revolving Lender requesting a
promissory note, a duly executed Revolving Loan Note, (iii) for the account of the Swingline
Lender requesting a promissory note, the Swingline Loan Note, (iv) counterparts of the
Security Agreement, the Pledge Agreement and each Mortgage Instrument, in each case
conforming to the requirements of this Agreement and executed by duly authorized officers of
the Credit Parties or other Person, as applicable, and (v) counterparts of any other Credit
Document, executed by the duly authorized officers of the parties thereto.




     (b) Authority Documents. The Administrative Agent shall have received the
following:




     (i) Articles of Incorporation/Charter Documents. Original certified
articles of incorporation or other charter documents, as applicable, of each Credit
Party certified (A) by an officer of such Credit Party (pursuant to an officer’s
certificate in substantially the form of Exhibit 4.1(b) attached hereto) as
of the Closing Date to be true and correct and in force and effect as of such date,
and (B) to be true and complete as of a recent date by the appropriate Governmental
Authority of the state of its incorporation or organization, as applicable.




     (ii) Resolutions. Copies of resolutions of the board of directors or
comparable managing body of each Credit Party approving and adopting the Credit
Documents, the Transactions and authorizing execution and delivery thereof,
certified by an officer of such Credit Party (pursuant to an officer’s certificate
in substantially the form of Exhibit 4.1(b) attached hereto) as of the
Closing Date to be true and correct and in force and effect as of such date.




     (iii) Bylaws/Operating Agreement. A copy of the bylaws or comparable
operating agreement of each Credit Party certified by an officer of such Credit
Party (pursuant to an officer’s certificate in substantially the form of



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Exhibit 4.1(b) attached hereto) as of the Closing Date to be true and
correct and in force and effect as of such date.




     (iv) Good Standing. Original certificates of good standing, existence
or its equivalent with respect to each Credit Party certified as of a recent date by
the appropriate Governmental Authorities of the state of incorporation or
organization and each other state in which the failure to so qualify and be in good
standing could reasonably be expected to have a Material Adverse Effect.




     (v) Incumbency. An incumbency certificate of each Authorized Officer
of each Credit Party certified by an officer (pursuant to an officer’s certificate
in substantially the form of Exhibit 4.1(b) attached hereto) to be true and
correct as of the Closing Date.




     (c) Legal Opinion of Counsel. The Administrative Agent shall have received an
opinion or opinions (including, if requested by the Administrative Agent, local counsel
opinions) of counsel for the Credit Parties, dated the Closing Date and addressed to the
Administrative Agent and the Lenders, in form and substance reasonably acceptable to the
Administrative Agent (which shall include, without limitation, opinions with respect to the
existence of each Credit Party, opinions as to perfection of the Liens granted to the
Administrative Agent pursuant to the Security Documents and opinions as to the
non-contravention of the Credit Parties’ organizational documents). The Administrative
Agent shall have received a copy of each opinion, report, agreement, and other document
required to be delivered pursuant to the IPO Documents in connection with the IPO and
related transactions.




     (d) Personal Property Collateral. The Administrative Agent shall have
received, in form and substance satisfactory to the Administrative Agent:




     (i) (A) searches of UCC filings in the jurisdiction of incorporation or
formation, as applicable, of each Credit Party and each jurisdiction where any
Collateral is located or where a filing would need to be made in order to perfect
the Administrative Agent’s security interest in the Collateral, copies of the
financing statements on file in such jurisdictions and evidence that no Liens exist
other than Permitted Liens and (B) tax lien and judgment searches;




     (ii) searches of ownership of Intellectual Property in the appropriate
governmental offices and such patent/trademark/copyright filings as requested by the
Administrative Agent in order to perfect the Administrative Agent’s security
interest in the Intellectual Property;




     (iii) completed UCC financing statements for each appropriate jurisdiction as
is necessary, in the Administrative Agent’s sole discretion, to perfect the
Administrative Agent’s security interest in the Collateral;




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     (iv) stock or membership certificates, if any, evidencing the Equity
Interests pledged to the Administrative Agent pursuant to the Pledge Agreement and
undated stock or transfer powers duly executed in blank;




     (v) duly executed consents as are necessary, in the Administrative Agent’s sole
discretion, to perfect the Lenders’ security interest in the Collateral;




     (vi) in the case of any personal property Collateral located at premises leased
by a Credit Party and set forth on Schedule 3.16(f)(ii) such estoppel
letters, consents and waivers from the landlords of such real property to the extent
required to be delivered in connection with Section 5.14 (such letters, consents and
waivers shall be in form and substance satisfactory to the Administrative Agent, it
being acknowledged and agreed that any landlord waiver in substantially the form of
Exhibit 4.1(d) is satisfactory to the Administrative Agent);




     (vii) to the extent required to be delivered pursuant to the terms of the
Security Documents, all instruments, documents and chattel paper in the possession
of any of the Credit Parties, together with allonges or assignments as may be
necessary or appropriate to perfect the Administrative Agent’s and the Lenders’
security interest in the Collateral;




     (viii) Deposit Account Control Agreements satisfactory to the Administrative
Agent to the extent required to be delivered pursuant to Section 6.14;




     (ix) Securities Account Control Agreements satisfactory to the Administrative
Agent to the extent required to be delivered pursuant to Section 6.14;




it being understood and agreed that satisfaction of the conditions set forth in the
preceding clauses (d)(v), (vi), (vii), (viii) and (ix) is not required for the
initial Extensions of Credit on the Closing Date so long as the Company has used
commercially reasonable efforts to deliver the items therein set forth; and




(e) Real Property Collateral. The Administrative Agent shall have received, in
form and substance satisfactory to the Administrative Agent and the Lenders:




     (i) fully executed and notarized Mortgage Instruments encumbering the Mortgaged
Properties as to properties owned by the Credit Parties and, to the extent required
by the Administrative Agent, the leasehold interest in the Mortgaged Properties as
to properties that are warehouses, plants or other real properties material to the
conduct of the Credit Parties’ business and are leased by the Credit Parties;




     (ii) a title report in respect of each of the Mortgaged Properties;



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     (iii) with respect to each Mortgaged Property, a Mortgage Policy assuring the
Administrative Agent that the Mortgage Instrument with respect to such Mortgaged
Property creates a valid and enforceable first priority mortgage lien on such
Mortgaged Property, free and clear of all defects and encumbrances except Permitted
Liens, which Mortgage Policy shall be in form and substance reasonably satisfactory
to the Administrative Agent and shall provide for affirmative insurance and such
reinsurance as the Administrative Agent may reasonably request, all of the foregoing
in form and substance reasonably satisfactory to the Administrative Agent;




     (iv) evidence as to (A) whether any Mortgaged Property is a Flood Hazard
Property and (B) if any Mortgaged Property is a Flood Hazard Property, (x) whether
the community in which such Mortgaged Property is located is participating in the
National Flood Insurance Program, (y) the applicable Credit Party’s written
acknowledgment of receipt of written notification from the Administrative Agent (I)
as to the fact that such Mortgaged Property is a Flood Hazard Property and (II) as
to whether the community in which each such Flood Hazard Property is located is
participating in the National Flood Insurance Program and (z) copies of insurance
policies or certificates of insurance of the Credit Parties and their Subsidiaries
evidencing flood insurance reasonably satisfactory to the Administrative Agent and
naming the Administrative Agent as loss payee on behalf of the Lenders;




     (v) maps or plats of an as-built survey of the sites of the Mortgaged
Properties certified to the Administrative Agent and the Title Insurance Company in
a manner reasonably satisfactory to them, dated a date satisfactory to each of the
Administrative Agent and the Title Insurance Company by an independent professional
licensed land surveyor reasonably satisfactory to each of the Administrative Agent
and the Title Insurance Company, which maps or plats and the surveys on which they
are based shall be sufficient to delete any standard printed survey exception
contained in the applicable title policy and be made in accordance with the Minimum
Standard Detail Requirements for Land Title Surveys jointly established and adopted
by the American Land Title Association and the American Congress on Surveying and
Mapping in 2005, and, without limiting the generality of the foregoing, there shall
be surveyed and shown on such maps, plats or surveys the following: (A) the
locations on such sites of all the buildings, structures and other improvements and
the established building setback lines; (B) the lines of streets abutting the sites
and width thereof; (C) all access and other easements appurtenant to the sites
necessary to use the sites; (D) all roadways, paths, driveways, easements,
encroachments and overhanging projections and similar encumbrances affecting the
site, whether recorded, apparent from a physical inspection of the sites or
otherwise known to the surveyor; (E) any encroachments on any adjoining property by
the building structures and improvements on the sites; and (F) if the site is
described as being on a filed map, a legend relating the survey to said map;



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     (vi) satisfactory third-party environmental reviews of all owned Mortgaged
Properties and, to the extent requested by the Administrative Agent, all leased
Mortgaged Properties, including but not limited to Phase I environmental
assessments, together with reliance letters in favor of the Lenders;




     (vii) to the extent requested by the Administrative Agent, opinions of counsel
to the Credit Parties for each jurisdiction in which the Mortgaged Properties are
located;




     (viii) to the extent available, zoning letters from each municipality or other
Governmental Authority for each jurisdiction in which the Mortgaged Properties are
located; and




     (ix) an appraisal of each owned Mortgaged Property, in form and substance
satisfactory to the Administrative Agent.




     (f) Liability, Casualty, Property and Business Interruption Insurance. The
Administrative Agent shall have received copies of insurance policies or certificates and
endorsements of insurance evidencing liability, casualty, property and business interruption
insurance meeting the requirements set forth herein or in the Security Documents. The
Administrative Agent shall be named (i) as lenders’ loss payee, as its interest may appear,
with respect to any such insurance providing coverage in respect of any Collateral and (ii)
as additional insured, as its interest may appear, with respect to any such insurance
providing liability coverage, and the Credit Parties will use their commercially reasonable
efforts to have each provider of any such insurance agree, by endorsement upon the policy or
policies issued by it or by independent instruments to be furnished to the Administrative
Agent, that it will give the Administrative Agent thirty (30) days prior written notice
before any such policy or policies shall be altered or cancelled.




     (g) Solvency Certificate. The Administrative Agent shall have received an
officer’s certificate prepared by the chief financial officer or other Authorized Officer
approved by the Administrative Agent of the Company as to the financial condition, solvency
and related matters of the Credit Parties and their Subsidiaries, after giving effect to the
Transactions and the initial borrowings under the Credit Documents, in substantially the
form of Exhibit 4.1(g) hereto.




     (h) Account Designation Notice. The Administrative Agent shall have received
the executed Account Designation Notice in the form of Exhibit 1.1(a) hereto.




     (i) Notice of Borrowing. The Administrative Agent shall have received a Notice
of Borrowing with respect to the Loans to be made on the Closing Date.




     (j) Consents. The Administrative Agent shall have received evidence that all
boards of directors (including, without limitation, the board of directors of the Acquired
Business), governmental, shareholder and material third party consents (including,



80









 






without limitation, Hart-Scott-Rodino clearance) and approvals necessary in connection with
the Transactions have been obtained and all applicable waiting periods have expired without
any action being taken by any authority that could restrain, prevent or impose any material
adverse conditions on such transactions or that could seek or threaten any of the foregoing.




     (k) Existing Indebtedness of the Credit Parties. All of the existing
Indebtedness for borrowed money of the Credit Parties and their Subsidiaries (including the
Acquired Business and other than Indebtedness permitted to exist pursuant to Section 6.1)
shall be repaid in full and all security interests related thereto shall be terminated on or
prior to the Closing Date, or the Administrative Agent shall have received evidence
reasonably satisfactory to it that such existing Indebtedness will be paid in full with the
proceeds of the initial Extensions of Credit and that such security interests will thereby
terminate.




     (l) Financial Statements. The Administrative Agent and the Lenders shall have
received (i) copies of the financial statements referred to in Section 3.1 and (ii) copies
of the financial statements of the Sellers and their Subsidiaries for the fiscal years ended
December 31, 2008 and December 31, 2009, each in form and substance satisfactory to each of
them.




     (m) No Material Adverse Change. Since December 31, 2009, there shall not have
occurred any change, effect, event, occurrence or state of facts that has or would
reasonably be expected to have or result in a material adverse effect or change on the
business, assets, properties, operations, condition (financial or otherwise) or results of
operations of the Acquired Business, taken as a whole, or the Company and its Subsidiaries,
taken as a whole, as the case may be, other than any material adverse effect or change to
the extent arising out of, attributable to or resulting from: (a) changes in conditions
generally affecting the industries in which the Acquired Business is conducted or in which
the business of the Company and its Subsidiaries is conducted, which do not
disproportionately affect in any material respect the Acquired Business, taken as a whole,
or the Company and its Subsidiaries, taken as a whole, as the case may be, as compared to
other similarly situated participants in the industries in which the Acquired Business is
conducted or in which the business of the Company and its Subsidiaries is conducted, as the
case may be; (b) general economic, political or capital and financial market conditions
which do not disproportionately affect in any material respect the Acquired Business, taken
as a whole, or the Company and its Subsidiaries, taken as a whole, as the case may be; (c)
any outbreak or escalation of hostilities involving the United States (including any
declaration of war by the U.S. Congress) or acts of terrorism; (d) any change in law, GAAP,
or the enforcement or interpretation thereof, applicable to the Acquired Business, taken as
a whole, or the Company and its subsidiaries, taken as a whole, as the case may be; (e) any
specific actions required to be taken or omitted pursuant to the Transaction Documents (as
defined in the Acquisition Documents); (f) the mere failure of the Acquired Business, taken
as a whole, or the Company and its Subsidiaries, taken as a whole, as the case may be, to
achieve any financial projections or
forecasts (provided, that the causes underlying such failure may, subject to
the other



81









 






limitations in this definition, be taken into account in determining whether a
material adverse effect has occurred); or (g) any matter to the extent set forth in the
schedules to the Acquisition Documents (but not including any material worsening of such
matter).




     (n) Financial Condition Certificate. The Administrative Agent shall have
received a certificate or certificates executed by an Authorized Officer of the Company as
of the Closing Date, substantially in the form of Exhibit 4.1(p) stating that
immediately after giving effect to this Agreement, the other Credit Documents, and all the
Transactions contemplated to occur on such date, (i) all Specified Representations are true
and correct, and (ii) the Credit Parties are in compliance with Section 4.1(s) (as
evidenced through detailed calculations of such financial covenants on a schedule to such
certificate) as of the last day of the quarter ending at least twenty (20) days preceding
the Closing Date.




     (o) Material Contracts. The Administrative Agent shall have received true and
complete copies, certified by an officer of the Company as true and complete, of all
Material Contracts, together with all exhibits and schedules.




     (p) Acquisition Documents. The Acquisition shall have been (or simultaneously
with the closing of the Loans hereunder, will be) consummated in accordance with the terms
of the Acquisition Documents (without waiver of any conditions precedent to the obligations
of any party thereto that is materially adverse to the Lenders as reasonably determined by
the Administrative Agent unless approved by the Administrative Agent). The Administrative
Agent shall have received a copy simultaneously with the closing of the Loans hereunder,
certified by an officer of the Company as true and complete, of each Acquisition Document as
originally executed and delivered, together with all exhibits and schedules thereto.




     (q) IPO Documents. The IPO shall have been (or simultaneously with the closing
of the Loans hereunder, will be) consummated in accordance with the terms of the IPO
Documents (without waiver of any conditions precedent to the obligations of any party
thereto that is materially adverse to the Lenders as reasonably determined by the
Administrative Agent unless approved by the Administrative Agent). The Administrative Agent
shall have received a copy simultaneously with the closing of the Loans hereunder, certified
by an officer of the Company as true and complete, of each IPO Document as originally
executed and delivered, together with all exhibits and schedules thereto.




     (r) IPO Proceeds. The Company shall have received (or simultaneously with the
closing of the Loans hereunder, will receive) cash equity proceeds from the IPO in an amount
sufficient to consummate the Acquisition and cause all principal, interest and other amounts
outstanding in connection with existing subordinated debt of the Credit Parties (including
the Acquired Business) to be paid in full.




     (s) Funded Debt and Total Leverage Ratio. The Administrative Agent shall have
received evidence that (i) total Funded Debt of the Company and its subsidiaries as
of the Closing Date is no greater than $20 million, (ii) the Total Leverage Ratio of
the



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Credit Parties and their Subsidiaries is not greater than 3.00 to 1.0, in each case,
calculated on a Pro Forma Basis after giving effect to the Transactions, for the
twelve-month period ending as of the most recent month prior to the Closing Date for which
financial statements are available, such calculations to be reasonably satisfactory to the
Administrative Agent.




     (t) Fees and Expenses. The Administrative Agent and the Lenders shall have
received all fees and expenses, if any, owing pursuant to the Fee Letters and Section 2.5.



     Without limiting the generality of the provisions of Section 8.4, for purposes of determining
compliance with the conditions specified in this Section 4.1, each Lender that has signed this
Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received notice from such
Lender prior to the proposed Closing Date specifying its objection thereto.



     Notwithstanding anything in this Credit Agreement or any other Credit Document to the
contrary, (i) the only representations the making of which shall be a condition to availability of
the Extensions of Credit on the Closing Date shall be (x) those representations made by or on
behalf of the Acquired Business in the Acquisition Documents as are material to the interests of
the Lenders but only to the extent that the Company has the right to terminate its obligations
under the Acquisition Documents as a result of a breach of such representations in the Acquisition
Documents and (y) the Specified Representations (as defined below) and (ii) the availability of the
Extensions of Credit on the Closing Date shall not be impaired if the Administrative Agent’s
security interest in any Collateral is not perfected (other than any Collateral perfected by (A)
filing of UCC financing statements and (B) the delivery of all stock certificates evidencing the
Equity Interests pledged or purported to be pledged to the Administrative Agent pursuant to the
Pledge Agreement, together with undated stock powers, duly executed in blank, attached thereto (it
being understood and agreed that the conditions with respect to the perfection pursuant to the
filing and recordings referred to in clause (A) above shall be deemed met so long as the required
documentation with respect to such filings or recordings is delivered to the Administrative Agent
on or prior to the Closing Date in the appropriate form for filing or recording, as applicable)) if
the Administrative Agent’s security interest in such Collateral may not be perfected prior to the
Closing Date after the Company’s use of commercially reasonable efforts to deliver a perfected
security interest in any such Collateral. For purposes hereof, “Specified Representations” means
the representations and warranties set forth in Section 3.3(a), Section 3.4, Section 3.5(a) (as to
Requirements of Law only), Section 3.7, Section 3.8, Section 3.17 and Section 3.28.



     Section 4.2 Conditions to All Extensions of Credit After the Closing Date.



     The obligation of each Lender to make any Extension of Credit hereunder after the Closing Date
is subject to the satisfaction of the following conditions precedent on the date of making such
Extension of Credit:



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     (a) Representations and Warranties. The representations and warranties made by
the Credit Parties herein, in the other Credit Documents and which are contained in any
certificate furnished at any time under or in connection herewith shall (i) with respect to
representations and warranties that contain a materiality qualification, be true and correct
and (ii) with respect to representations and warranties that do not contain a materiality
qualification, be true and correct in all material respects, in each case on and as of the
date of such Extension of Credit as if made on and as of such date, in each case except for
any representation or warranty made as of an earlier date, which representation and warranty
shall remain true and correct as of such earlier date.




     (b) No Default or Event of Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the Extension of Credit to
be made on such date unless such Default or Event of Default shall have been waived in
accordance with this Agreement.




     (c) Compliance with Commitments. Immediately after giving effect to the making
of any such Extension of Credit (and the application of the proceeds thereof), (i) the sum
of the aggregate principal amount of outstanding Revolving Loans plus outstanding
Swingline Loans plus outstanding LOC Obligations shall not exceed the Revolving
Committed Amount then in effect, (ii) the outstanding LOC Obligations shall not exceed the
LOC Committed Amount, and (iii) the outstanding Swingline Loans shall not exceed the
Swingline Committed Amount.




     (d) Additional Conditions to Revolving Loans. If a Revolving Loan is
requested, all conditions set forth in Section 2.1 shall have been satisfied.




     (e) Additional Conditions to Letters of Credit. If the issuance of a Letter of
Credit is requested, (i) all conditions set forth in Section 2.3 shall have been satisfied
and (ii) there shall exist no Lender that is a Defaulting Lender unless the Issuing Lender
has entered into satisfactory arrangements with the Company or such Defaulting Lender to
eliminate the Issuing Lender’s risk with respect to such Defaulting Lender’s LOC
Obligations.




     (f) Additional Conditions to Swingline Loans. If a Swingline Loan is
requested, (i) all conditions set forth in Section 2.4 shall have been satisfied and (ii)
there shall exist no Lender that is a Defaulting Lender unless the Swingline Lender has
entered into satisfactory arrangements with the Company or such Defaulting Lender to
eliminate the Swingline Lender’s risk with respect to such Defaulting Lender’s in respect of
its Swingline Commitment.



     Each request for an Extension of Credit and each acceptance by the Borrowers of any such
Extension of Credit shall be deemed to constitute representations and warranties by the Credit
Parties as of the date of such Extension of Credit that the conditions set forth above in
paragraphs (a) through (f), as applicable, have been satisfied.



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ARTICLE V




AFFIRMATIVE COVENANTS



     Each of the Credit Parties hereby covenants and agrees that on the Closing Date, and
thereafter (a) for so long as this Agreement is in effect, (b) until the Commitments have
terminated, and (c) the Credit Party Obligations and all other amounts owing to the Administrative
Agent or any Lender hereunder are paid in full in cash, such Credit Party shall, and shall cause
each of their Subsidiaries, to:



     Section 5.1 Financial Statements.



     Furnish to the Administrative Agent and each of the Lenders:




     (a) Annual Financial Statements. As soon as available and in any event no
later than the earlier of (i) to the extent applicable, the date the Company is required by
the SEC to deliver its Form 10-K for each fiscal year of the Company (beginning with the
fiscal year ended December 31, 2010) and (ii) ninety (90) days after the end of each fiscal
year of the Company (beginning with the fiscal year ended December 31, 2010), a copy of the
Consolidated balance sheet of the Company and its Subsidiaries as of the end of such fiscal
year (beginning with the fiscal year ended December 31, 2010) and the related Consolidated
statements of income and retained earnings and of cash flows of the Company and its
Subsidiaries for such year, which shall be audited by a firm of independent certified public
accountants of nationally recognized standing reasonably acceptable to the Administrative
Agent, setting forth in each case in comparative form the figures for the previous year,
reported on without a “going concern” or like qualification or exception, or qualification
indicating that the scope of the audit was inadequate to permit such independent certified
public accountants to certify such financial statements without such qualification;




     (b) Quarterly Financial Statements. As soon as available and in any event no
later than the earlier of (i) to the extent applicable, the date the Company is required by
the SEC to deliver its Form 10-Q for any fiscal quarter of the Company and (ii) forty-five
(45) days after the end of each of the first three (3) fiscal quarters of the Company (or,
with respect to the fiscal quarter ended September 30, 2010, forty-five (45) days after the
Closing Date), a copy of the Consolidated balance sheet of the Company and its Subsidiaries
as of the end of such period and related Consolidated statements of income and retained
earnings and of cash flows for the Company and its Subsidiaries for such quarterly period
and for the portion of the fiscal year ending with such period, in each case setting forth
in comparative form Consolidated figures for the corresponding period or periods of the
preceding fiscal year (subject to normal recurring year-end audit adjustments) and including
management discussion and analysis of operating results inclusive of operating metrics in
comparative form; and




     (c) Annual Operating Budget and Cash Flow. As soon as available, but in any
event within thirty (30) days prior to the end of each fiscal year (including the fiscal



85









 






year ending December 31, 2010), a copy of the detailed annual operating budget or plan
including cash flow projections of the Company and its Subsidiaries for the next four fiscal
quarter period prepared on a quarterly basis, in form and detail reasonably acceptable to
the Administrative Agent and the Lenders, together with a summary of the material
assumptions made in the preparation of such annual budget or plan;


all such financial statements shall be complete and correct in all material respects (subject, in
the case of interim statements, to normal recurring year-end audit adjustments) and to be prepared
in reasonable detail and, in the case of the annual, quarterly and monthly financial statements
provided in accordance with subsections (a), (b) and (c) above, in accordance with GAAP applied
consistently throughout the periods reflected therein and further accompanied by a description of,
and an estimation of the effect on the financial statements on account of, a change, if any, in
GAAP as provided in Section 1.3(b).




     Notwithstanding the foregoing, financial statements and reports required to be delivered
pursuant to the foregoing provisions of this Section may be delivered electronically and if so,
shall be deemed to have been delivered on the date on which the Administrative Agent receives such
reports from the Company through electronic mail; provided that, upon the Administrative
Agent’s request, the Company shall provide paper copies of any documents required hereby to the
Administrative Agent.



     Section 5.2 Certificates; Other Information.



     Furnish to the Administrative Agent and each of the Lenders:




     (a) Officer’s Certificate. Concurrently with the delivery of the financial
statements referred to in Sections 5.1(a) and 5.1(b) above, a certificate of an Authorized
Officer substantially in the form of Exhibit 5.2(b) stating that (i) such financial
statements present fairly the financial position of the Company and its Subsidiaries for the
periods indicated in conformity with GAAP applied on a consistent basis, and (ii) such
Authorized Officer has obtained no knowledge of any Default or Event of Default except as
specified in such certificate and such certificate shall include the calculations in
reasonable detail required to indicate compliance with Section 5.9 as of the last day of
such period including, for the first four fiscal quarters following the Closing Date,
sufficient information relating to each of the Company and its Subsidiaries and the Acquired
Business as necessary (as determined by the Administrative Agent) to demonstrate an adequate
reconciliation.




     (b) Updated Schedules. Concurrently with or prior to the delivery of the
financial statements referred to in Sections 5.1(a) and 5.1(b) above, (i) an updated copy of
Schedule 3.3 and Schedule 3.12 if the Credit Parties or any of their
Subsidiaries has formed or acquired a new Subsidiary since the Closing Date or since such
Schedule was last updated, as applicable, (ii) an updated copy of Schedule 3.16(a)
if the Credit Parties have registered, applied for registration of, acquired or otherwise
obtained ownership of any new Intellectual Property since the Closing Date or since such
Schedule was last updated, as applicable, (iii) an updated copy of Schedule 3.16(b)
if the Credit Parties



86









 






have obtained any Documents (as defined in the UCC), Instruments (as defined in the
UCC) or Tangible Chattel Paper (as defined in the UCC) since the Closing Date or since such
Schedule was last updated, as applicable, (iv) an updated copy of Schedule 3.16(c)
if the Credit Parties maintain any Deposit Accounts (as defined in the UCC), Electronic
Chattel Paper (as defined in the UCC), Letter-of-Credit Rights (as defined in the UCC),
Securities Accounts (as defined in the UCC) or uncertificated Investment Property (as
defined in the UCC) to the extent not otherwise set forth on such Schedule as of the Closing
Date or since such Schedule was last updated, as applicable, (v) an updated copy of
Schedule 3.16(d) if the Credit Parties have any Commercial Tort Claims not otherwise
set forth on such Schedule as of the Closing Date or since such Schedule was last updated,
as applicable, (vi) an updated copy of Schedule 3.16(e) to the extent required to be
updated to make the representation in Section 3.16(e) true and correct, (vii) an updated
copy of Schedule 3.16(f)(i) to the extent any Credit Party is obligated to provide a
mortgage or deed of trust on any Property in accordance with Section 5.12, (viii) an updated
copy of Schedule 3.16(f)(ii) to the extent any Credit Party has a (1) headquarter
location, (2) location where any significant administrative or governmental functions are
performed, (3) location where any Credit Party maintains books or records and (4) location
where any personal property Collateral is located at any premises owned or leased by a
Credit Party with a Collateral value in excess of $1,000,000 (and an indication whether such
location is leased or owned), to the extent not otherwise set forth on such Schedule as of
the Closing Date or since such Schedule was last updated, as applicable, (ix) an updated
copy of Schedule 3.23 if any new Material Contract has been entered into since the
Closing Date or since such Schedule was last updated, as applicable, together with a copy of
each new Material Contract and (x) an updated copy of Schedule 3.24 if the Credit
Parties or any of their Subsidiaries has altered or acquired any insurance policies since
the Closing Date or since such Schedule was last updated.




     (c) Reports; SEC Filings; Regulatory Reports; Press Releases; Etc. Promptly
upon their becoming available, (i) copies of all reports (other than those provided pursuant
to Section 5.1 and those which are of a promotional nature) and other financial information
which any Credit Party sends to its shareholders, (ii) copies of all reports and all
registration statements and prospectuses, if any, which any Credit Party may make to, or
file with, the SEC (or any successor or analogous Governmental Authority) or any securities
exchange or other private regulatory authority, (iii) all material regulatory reports and
(iv) all press releases and other statements made available by any of the Credit Parties to
the public concerning material developments in the business of any of the Credit Parties.




     (d) Calculations. Within ninety (90) days after the end of each fiscal year of
the Company, a certificate containing information including a calculation of the amount of
all Restricted Payments, Investments (including Permitted Acquisitions), Asset Dispositions
and Capital Expenditures that were made during the prior fiscal year.




     (e) Management Letters; Etc. Promptly upon receipt thereof, a copy or summary
of any other report, or “management letter” or similar report submitted by



87









 






independent accountants to any Credit Party or any of their Subsidiaries in connection
with any annual, interim or special audit of the books of such Person.




     (f) Changes in Corporate Structure. Within ten days prior to any merger,
consolidation, dissolution or other change in corporate structure of any Credit Party or any
of its subsidiaries permitted pursuant to the terms hereof, provide notice of such change in
corporate structure to the Administrative Agent.




     (g) General Information. Promptly, such additional financial and other
information as the Administrative Agent, on behalf of any Lender, may from time to time
reasonably request.



     Section 5.3 Payment of Taxes and Other Obligations.



     Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as
the case may be, subject, where applicable, to specified grace periods, (a) all of its taxes
(Federal, state, local and any other taxes) and (b) all of its other obligations and liabilities of
whatever nature in accordance with industry practice and (c) any additional costs that are imposed
as a result of any failure to so pay, discharge or otherwise satisfy such taxes, obligations and
liabilities, except when the amount or validity of any such taxes, obligations and liabilities is
currently being contested in good faith by appropriate proceedings and reserves, if applicable, in
conformity with GAAP with respect thereto have been provided on the books of the Credit Parties.



     Section 5.4 Conduct of Business and Maintenance of Existence.



     Except as expressly permitted under Section 6.4, continue to engage in business of the same
general type as now conducted by it on the Closing Date and preserve, renew and keep in full force
and effect its corporate or other formative existence and good standing, take all reasonable action
to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of
its business and to maintain its goodwill and comply with all Contractual Obligations and
Requirements of Law, except where the failure to take such actions could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.



     Section 5.5 Maintenance of Property; Insurance.




     (a) Keep all material property useful and necessary in its business in good working
order and condition (ordinary wear and tear and obsolescence excepted).




     (b) Maintain with financially sound and reputable insurance companies liability,
casualty, property and business interruption insurance (including, without limitation,
insurance with respect to its tangible Collateral) in at least such amounts and against at
least such risks as are usually insured against in the same general area by companies
engaged in the same or a similar business; and furnish to the Administrative Agent, upon the
request of the Administrative Agent, full information as to the insurance carried. To the
extent permitted under applicable laws, the Administrative Agent shall be



88









 






named (i) as lenders’ loss payee, as its interest may appear with respect to any
property insurance, and (ii) as additional insured, as its interest may appear, with respect
to any such liability insurance, and the Company shall use commercially reasonable efforts
to cause each provider of any such insurance to agree, by endorsement upon the policy or
policies issued by it or by independent instruments to be furnished to the Administrative
Agent, that it will give the Administrative Agent thirty (30) days prior written notice
before any such policy or policies shall be altered or canceled, and such policies shall
provide that no act or default of the Credit Parties or any of their Subsidiaries or any
other Person shall affect the rights of the Administrative Agent or the Lenders under such
policy or policies.




     (c) In case of any material loss, damage to or destruction of the Collateral of any
Credit Party or any part thereof, such Credit Party shall promptly give written notice
thereof to the Administrative Agent generally describing the nature and extent of such
damage or destruction. In case of any such material loss, damage to or destruction of the
Collateral of any Credit Party or any part thereof, if required by the Administrative Agent
or the Required Lenders, such Credit Party (whether or not the insurance proceeds, if any,
received on account of such damage or destruction shall be sufficient for that purpose), at
such Credit Party’s cost and expense, will promptly repair or replace the Collateral of such
Credit Party so lost, damaged or destroyed.



     Section 5.6 Maintenance of Books and Records.



     Keep proper books, records and accounts in which full, true and correct entries in conformity
with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to
its businesses and activities.



     Section 5.7 Notices.



     Give notice in writing to the Administrative Agent (which shall promptly transmit such notice
to each Lender):




     (a) promptly, but in any event within two (2) Business Days after any Credit Party
knows thereof, of the occurrence of any Default or Event of Default;




     (b) promptly, any default or event of default under any Contractual Obligation of any
Credit Party or any of its Subsidiaries which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect or involve a monetary claim in
excess of $1,000,000;




     (c) promptly, of any litigation, or any investigation or proceeding known or threatened
to any Credit Party (i) affecting any Credit Party or any of its Subsidiaries which,
individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect or involve a monetary claim in excess of $1,000,000 or involving injunctions or
requesting injunctive relief by or against any Credit Party or any Subsidiary of any Credit
Party, (ii) affecting or with respect to this Agreement, any other



89









 






Credit Document or any security interest or Lien created thereunder, (iii) involving an
environmental claim or potential liability under Environmental Laws which could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect, or (iv) by
any Governmental Authority relating to any Credit Party or any Subsidiary thereof and
alleging fraud, deception or willful misconduct by such Person;




     (d) of any labor controversy that has resulted in, or threatens to result in, a strike
or other work action against any Credit Party which could reasonably be expected to have a
Material Adverse Effect;




     (e) of any attachment, judgment, lien, levy or order exceeding $1,000,000 that may be
assessed against or threatened against any Credit Party other than Permitted Liens;




     (f) as soon as possible and in any event within thirty (30) days after any Credit Party
knows or has reason to know thereof: (i) of the occurrence or expected occurrence of any
Reportable Event with respect to any Plan, a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC (other than a Permitted Lien) or a Plan
or any withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) of the institution of proceedings or the taking of any other
action by the PBGC or any Credit Party, any Commonly Controlled Entity or any Multiemployer
Plan, with respect to the withdrawal from, or the terminating, Reorganization or Insolvency
of, any Plan;




     (g) promptly after becoming aware of the occurrence of any Internal Control Event;




     (h) as soon as possible and in any event within ten (10) days prior to creating a
Material Domestic Subsidiary, notice of the creation of such Material Domestic Subsidiary;




     (i) promptly, of any notice of any violation received by any Credit Party from any
Governmental Authority including, without limitation, any notice of violation of
Environmental Laws; and




     (j) promptly, of any other development or event which could reasonably be expected to
have a Material Adverse Effect.


Each notice pursuant to this Section shall be accompanied by a statement of an Authorized Officer
setting forth details of the occurrence referred to therein and stating what action the Credit
Parties propose to take with respect thereto. In the case of any notice of a Default or Event of
Default, the Company shall specify that such notice is a Default or Event of Default notice on the
face thereof.






90









 








     Section 5.8 Environmental Laws.




     (a) Except as could not reasonably be expected, either individually or in the
aggregate, to have a Material Adverse Effect, comply with, and ensure compliance in all
material respects by all tenants and subtenants, if any, with, all applicable Environmental
Laws and obtain and comply with and maintain, and ensure that all tenants and subtenants
obtain and comply with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws;




     (b) Except as could not reasonably be expected, either individually or in the
aggregate, to have a Material Adverse Effect, conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings; and




     (c) Defend, indemnify and hold harmless the Administrative Agent and the Lenders, and
their respective employees, agents, officers and directors and affiliates, from and against
any and all claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature, known or unknown, contingent or otherwise, arising out
of, or in any way relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Credit Parties or any of their
Subsidiaries or the Properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable attorney’s and
consultant’s fees, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification therefor. The
agreements in this paragraph shall survive repayment of the Credit Party Obligations and all
other amounts payable hereunder and termination of the Commitments and the Credit Documents.



     Section 5.9 Financial Covenants.



     Comply with the following financial covenants:




     (a) Total Leverage Ratio. The Total Leverage Ratio, calculated as of the last
day of each fiscal quarter occurring during the periods set forth below shall be less than
or equal to the following:



	 	 	 	 	 
	Period	 	Ratio	 
	Closing Date through and including December 31, 2010
	 	 	3.50 to 1.00	 
	January 1, 2011 through and including March 31, 2011
	 	 	3.25 to 1.00	 
	April 1, 2011 through and including June 30, 2011
	 	 	3.00 to 1.00	 
	July 1, 2011 through and including September 30, 2011
	 	 	2.75 to 1.00	 
	October 1, 2011 and thereafter
	 	 	2.50 to 1.00	 






91









 







     (b) Consolidated EBITDA. Consolidated EBITDA, calculated as of the last day of
each fiscal quarter occurring during the periods set forth below shall be greater than or
equal to the following:



	 	 	 	 	 
	Period	 	Amount	 
	Twelve month period ending December 31, 2010
	 	$	6,500,000	 
	Twelve month period ending March 31, 2011
	 	$	7,500,000	 
	Twelve month period ending June 30, 2011
	 	$	10,000,000	 







     (c) Consolidated Interest Coverage Ratio. Beginning with the fiscal quarter
ending September 30, 2011, the Consolidated Interest Coverage Ratio, calculated as of the
last day of each fiscal quarter or as of any other date on a Pro Forma Basis, shall be
greater than 3.00 to 1.00.




     (d) Maximum Consolidated Capital Expenditures. Consolidated Capital
Expenditures made during each fiscal year of the Borrower, shall be less than or equal to
the amounts set forth below:



	 	 	 	 	 
	Period	 	Amount	 
	Closing Date through December 31, 2010
	 	$	6,000,000	 
	Fiscal Year Ending December 31, 2011
	 	$	25,000,000	 
	Fiscal Year Ending December 31, 2012
	 	$	25,000,000	 
	January 1, 2013 through Maturity Date
	 	$	21,875,000	 







plus, beginning with the fiscal year ending December 31, 2012, the unused amount
available for Consolidated Capital Expenditures under this Section 5.9(d) for the
immediately preceding fiscal year (excluding any carry forward available from any prior
fiscal year); provided, that with respect to any fiscal year, capital expenditures
made during any such fiscal year shall be deemed to be made first with respect to the
applicable limitation for such year and then with respect to any carry forward amount to the
extent applicable.



     Section 5.10 Additional Guarantors.



     The Credit Parties will cause each of their Subsidiaries, whether newly formed, after acquired
or otherwise existing to promptly (and in any event within thirty (30) days after such Subsidiary
is formed or acquired (or such longer period of time as agreed to by the Administrative Agent in
its reasonable discretion)) become a Guarantor hereunder by way of execution of a Joinder
Agreement; provided, however, no Foreign Subsidiary shall be required to become a
Guarantor to the extent such Guaranty would result in a material adverse tax consequence for the
Borrowers. In connection therewith, the Credit Parties shall give notice to the Administrative
Agent not less than ten (10) days prior to creating a Subsidiary (or such shorter period of time as
agreed to by the Administrative Agent in its reasonable discretion), or acquiring the Equity
Interests of any other Person. The Credit Party Obligations shall be secured by, among other
things, a first priority perfected security interest in the Collateral of such new Guarantor and a
pledge of 100% of the Equity Interests of such new Guarantor and its Domestic Subsidiaries and 65%
(or such higher percentage that would not result in material adverse tax



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consequences for such new Guarantor) of the voting Equity Interests and 100% of the non-voting
Equity Interests of its first-tier Foreign Subsidiaries. In connection with the foregoing, the
Credit Parties shall deliver to the Administrative Agent, with respect to each new Guarantor to the
extent applicable, substantially the same documentation required pursuant to Sections 4.1(b) —
(f), (j) and 5.12 and such other documents or agreements as the Administrative Agent may reasonably
request.




     Section 5.11 Compliance with Law.



     Comply with all Requirements of Law and orders (including Environmental Laws), and all
applicable restrictions imposed by all Governmental Authorities, applicable to it and the
Collateral if noncompliance with any such Requirements of Law, order or restriction could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.



     Section 5.12 Pledged Assets.




     (a) Equity Interests. Each Credit Party will cause 100% of the Equity Interests
in each of its direct or indirect Domestic Subsidiaries (unless such Domestic Subsidiary is
owned by a Foreign Subsidiary) and 65% (to the extent the pledge of a greater percentage
would be unlawful or would cause any materially adverse tax consequences to the applicable
Borrower or any Guarantor) of the voting Equity Interests and 100% of the non-voting Equity
Interests of its first-tier Foreign Subsidiaries, in each case to the extent owned by such
Credit Party, to be subject at all times to a first priority, perfected Lien in favor of the
Administrative Agent pursuant to the terms and conditions of the Security Documents or such
other security documents as the Administrative Agent shall reasonably request.




     (b) Personal Property. Subject to the terms of subsection (c) below, each
Credit Party will cause all of its tangible and intangible personal property now owned or
hereafter acquired by it to be subject at all times to a first priority, perfected Lien
(subject in each case to Permitted Liens) in favor of the Administrative Agent for the
benefit of the Secured Parties to secure the Credit Party Obligations pursuant to the terms
and conditions of the Security Documents or such other security documents as the
Administrative Agent shall reasonably request. Each Credit Party shall, and shall cause
each of its Subsidiaries to, adhere to the covenants set forth in the Security Documents.




     (c) Real Property. To the extent otherwise permitted hereunder, if any Credit
Party intends to acquire a fee ownership interest in any real property (“Real
Estate”) after the Closing Date and such Real Estate has a fair market value in excess
of $500,000, it shall provide to the Administrative Agent promptly (i) such security
documentation as the Administrative Agent may request to cause such Real Estate to be
subject at all times to a first priority, perfected Lien (subject in each case to Permitted
Liens) in favor of the Administrative Agent and (ii) such other documentation as the
Administrative Agent may reasonably request in connection with the foregoing, including,
without limitation, title reports, title insurance policies, surveys, appraisals, zoning
letters, environmental reports



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and opinions of counsel, all in form and substance reasonably satisfactory to the
Administrative Agent.




     (d) Leases and other Agreements. Each Credit Party shall timely and fully pay
and perform its obligations under all leases and other agreements with respect to each
leased location or public warehouse where any Collateral is or may be located.



     Section 5.13 Hedging Agreements.



     Within 180 days following the Closing Date, cause at least 50% of the aggregate amount of all
permanent Indebtedness (as determined by the Administrative Agent) then outstanding, and projected
to be outstanding, to be hedged pursuant to Hedging Agreements for a term of at least two (2) years
with a counterparty and on terms acceptable to the Administrative Agent.



     Section 5.14 Landlord Waivers.



     In the case of (a) each headquarter location of the Credit Parties, each other location where
any significant administrative or governmental functions are performed and each other location
where the Credit Parties maintain any books or records (electronic or otherwise), in each case to
the extent located in the United States and (b) any personal property Collateral located at any
other premises leased by a Credit Party containing personal property Collateral with a value in
excess of $1,000,000, the Credit Parties will provide the Administrative Agent with such estoppel
letters, consents and waivers from the landlords on such real property to the extent (i) requested
by the Administrative Agent and (ii) the Credit Parties are able to secure such letters, consents
and waivers after using commercially reasonable efforts (such letters, consents and waivers shall
be in form and substance reasonably satisfactory to the Administrative Agent, it being acknowledged
and agreed that any landlord waiver in the form of Exhibit 4.1(d) is satisfactory to the
Administrative Agent).



     Section 5.15 Further Assurances.




     (a) Public/Private Designation. The Credit Parties will cooperate with the
Administrative Agent in connection with the publication of certain materials and/or
information provided by or on behalf of the Credit Parties to the Administrative Agent and
Lenders (collectively, “Information Materials”) and will designate Information
Materials (i) that are either available to the public or not material with respect to the
Credit Parties and their Subsidiaries or any of their respective securities for purposes of
United States federal and state securities laws, as “Public Information” and (ii)
that are not Public Information as “Private Information”.




     (b) Additional Information. The Credit Parties shall provide such information
regarding the operations, business affairs and financial condition of the Credit Parties and
their Subsidiaries as the Administrative Agent or any Lender may reasonably request.




     (c) Visits and Inspections. The Credit Parties shall permit representatives of
the Administrative Agent, accompanied by representatives of any Lender who so



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requests, from time to time upon prior reasonable notice and at such times during
normal business hours, to visit and inspect its properties (including the Collateral);
inspect, audit and make extracts from its books, records and files, including, but not
limited to, management letters prepared by independent accountants; and discuss with its
principal officers, and its independent accountants, its business, assets, liabilities,
financial condition, results of operations and business prospects. Upon the occurrence and
during the continuance of an Event of Default, the representatives of the Administrative
Agent, accompanied by representatives of any Lender who so requests, may do any of the
foregoing at any time without advance notice. So long as no Event of Default exists and is
continuing, the Credit Parties shall not be obligated to reimburse the Administrative Agent
or any Lender for their fees, costs, and expenses for more than one such visit and
inspection in any calendar year.




     (d) Further Assurances. Upon the reasonable request of the Administrative
Agent, promptly perform or cause to be performed any and all acts and execute or cause to be
executed any and all documents for filing under the provisions of the UCC or any other
Requirement of Law which are reasonably necessary or advisable to maintain in favor of the
Administrative Agent, for the benefit of the Secured Parties, Liens on the Collateral that
are duly perfected in accordance with the requirements of, or the obligations of the Credit
Parties under, the Credit Documents and all applicable Requirements of Law.




     (e) Post Closing Covenant.




     (i) Deposit Account Control Agreements. The Administrative Agent shall
have received, in each case in form and substance reasonably satisfactory thereto,
within ninety (90) days following the Closing Date (or such extended period of time
as reasonably agreed to by the Administrative Agent), Deposit Account Control
Agreements to the extent required to be delivered pursuant to Section 6.14.




     (ii) Intercompany Note. The Administrative Agent shall have received,
in each case in form and substance reasonably satisfactory thereto, within ninety
(90) days following the Closing Date (or such extended period of time as reasonably
agreed to by the Administrative Agent), a promissory note evidencing the unsecured
intercompany Indebtedness of Primo Refill Canada Corporation to the Company
permitted pursuant to Section 6.1(e), which promissory note shall be pledged to the
Administrative Agent as Collateral for the Credit Party Obligations.



ARTICLE VI




NEGATIVE COVENANTS



     Each of the Credit Parties hereby covenants and agrees that on the Closing Date, and
thereafter (a) for so long as this Agreement is in effect, (b) until the Commitments have



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terminated, (c) the Credit Party Obligations and all other amounts owing to the Administrative
Agent or any Lender hereunder are paid in full in cash, that:




     Section 6.1 Indebtedness.



     No Credit Party will, nor will it permit any Subsidiary to, contract, create, incur, assume or
permit to exist any Indebtedness, except:




     (a) Indebtedness arising or existing under this Agreement and the other Credit
Documents;




     (b) Indebtedness of the Company and its Subsidiaries existing as of the Closing Date as
referred to in the financial statements referenced in Section 3.1 (and set out more
specifically in Schedule 6.1(b) hereto) and any renewals, refinancings or extensions
thereof in a principal amount not in excess of that outstanding as of the date of such
renewal, refinancing or extension and the terms of any such renewal, refinancing or
extension are not less favorable to the obligor thereunder;




     (c) Indebtedness of the Company and its Subsidiaries incurred after the Closing Date
consisting of Capital Leases or Indebtedness incurred to provide all or a portion of the
purchase price or cost of construction of an asset; provided that (i) such
Indebtedness when incurred shall not exceed the purchase price or cost of construction of
such asset; (ii) no such Indebtedness shall be renewed, refinanced or extended for a
principal amount in excess of the principal balance outstanding thereon at the time of such
renewal, refinancing or extension; and (iii) the total amount of all such Indebtedness shall
not exceed $1,500,000 at any time outstanding;




     (d) Unsecured intercompany Indebtedness among the Credit Parties; provided that
any such Indebtedness shall be, to the extent required by the Administrative Agent,
evidenced by promissory notes which shall be pledged to the Administrative Agent as
Collateral for the Credit Party Obligations;




     (e) Indebtedness and obligations owing under (i) Bank Products and (ii) other Hedging
Agreements entered into in order to manage existing or anticipated interest rate, exchange
rate or commodity price risks and not for speculative purposes;




     (f) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of a
Credit Party in a transaction permitted hereunder in an aggregate principal amount not to
exceed $500,000 for all such Persons; provided that any such Indebtedness was not
created in anticipation of or in connection with the transaction or series of transactions
pursuant to which such Person became a Subsidiary of a Credit Party;




     (g) Indebtedness arising from agreements providing for indemnification and purchase
price adjustment obligations or similar obligations, or from guaranties or letters of
credit, surety bonds or performance bonds securing the performance of any Credit



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Party or its Subsidiaries pursuant to such agreements, in connection with Asset
Dispositions to the extent permitted hereunder;




     (h) Indebtedness permitted under Section 6.5;




     (i) Guaranty Obligations in respect of Indebtedness of a Credit Party to the extent
such Indebtedness is permitted to exist or be incurred pursuant to this Section;




     (j) Unsecured intercompany Indebtedness of Primo Refill Canada Corporation to the
Company made on the Closing Date in an aggregate amount not to exceed $15,000,000;
provided that such Indebtedness shall be, to the extent required by the
Administrative Agent, evidenced by a promissory note which shall be pledged to the
Administrative Agent as Collateral for the Credit Party Obligations; and




     (k) other Indebtedness in an aggregate principal amount not to exceed $1,000,000 at any
time outstanding.



     Section 6.2 Liens.



     The Credit Parties will not, nor will they permit any Subsidiary to, contract, create, incur,
assume or permit to exist any Lien with respect to any of their respective property or assets of
any kind (whether real or personal, tangible or intangible), whether now owned or hereafter
acquired, except for the following (the “Permitted Liens”):




     (a) Liens created by or otherwise existing under or in connection with this Agreement
or the other Credit Documents in favor of the Administrative Agent on behalf of the Secured
Parties;




     (b) Liens in favor of a Bank Product Provider in connection with a Bank Product;




     (c) Liens securing purchase money Indebtedness and Capital Lease Obligations (and
refinancings thereof) to the extent permitted under Section 6.1(c); provided, that
(i) any such Lien attaches to such property concurrently with or within thirty (30) days
after the acquisition thereof and (ii) such Lien attaches solely to the property so acquired
in such transaction;




     (d) Liens for taxes, assessments, charges or other governmental levies not yet due or
as to which the period of grace (not to exceed sixty (60) days), if any, related thereto has
not expired or which are being contested in good faith by appropriate proceedings;
provided that adequate reserves with respect thereto are maintained on the books of
any Credit Party or its Subsidiaries, as the case may be, in conformity with GAAP;




     (e) statutory Liens such as carriers’, warehousemen’s, mechanics’, materialmen’s,
landlords’, repairmen’s or other like Liens arising in the ordinary course



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of business which are not overdue for a period of more than thirty (30) days or which
are being contested in good faith by appropriate proceedings; provided that a
reserve or other appropriate provision shall have been made therefor;




     (f) pledges or deposits in connection with workers’ compensation, unemployment
insurance and other social security legislation (other than any Lien imposed by ERISA) and
deposits securing liability to insurance carriers under insurance or self-insurance
arrangements in the ordinary course of business and consistent with past practices;




     (g) deposits to secure the performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of business;




     (h) easements, rights of way, restrictions and other similar encumbrances affecting
real property which, in the aggregate, are not substantial in amount, and which do not in
any case materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable Person;




     (i) Liens existing on the Closing Date and set forth on Schedule 1.1(b);
provided that (i) no such Lien shall at any time be extended to cover property or
assets other than the property or assets subject thereto on the Closing Date and
improvements thereon and (ii) the principal amount of the Indebtedness secured by such Lien
shall not be extended, renewed, refunded or refinanced;




     (j) any extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien referred to in this definition (other than
Liens set forth on Schedule 1.1(b)); provided that such extension, renewal
or replacement Lien shall be limited to all or a part of the property which secured the Lien
so extended, renewed or replaced (plus improvements on such property);




     (k) Liens arising in the ordinary course of business by virtue of any contractual,
statutory or common law provision relating to banker’s Liens, rights of set-off or similar
rights and remedies covering deposit or securities accounts (including funds or other assets
credited thereto) or other funds maintained with a depository institution or securities
intermediary;




     (l) any zoning, building or similar laws or rights reserved to or vested in any
Governmental Authority;




     (m) restrictions on transfers of securities imposed by applicable Securities Laws;




     (n) Liens arising out of judgments or awards not resulting in an Event of Default;
provided that the applicable Credit Party or Subsidiary shall in good faith be
prosecuting an appeal or proceedings for review;



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     (o) Liens on the property of a Person existing at the time such Person becomes a
Subsidiary of a Credit Party in a transaction permitted hereunder securing Indebtedness in
an aggregate principal amount not to exceed $500,000 for all such Persons; provided,
however, that any such Lien may not extend to any other property of any Credit Party
or any other Subsidiary that is not a Subsidiary of such Person; provided,
further, that any such Lien was not created in anticipation of or in connection with
the transaction or series of transactions pursuant to which such Person became a Subsidiary
of a Credit Party;




     (p) any interest or title of a lessor, licensor or sublessor under any lease, license
or sublease entered into by any Credit Party or any Subsidiary thereof in the ordinary
course of its business and covering only the assets so leased, licensed or subleased;




     (q) Liens in favor of the Administrative Agent, Issuing Lender and/or Swingline Lender
to Cash Collateralize or otherwise secure the obligations of a Defaulting Lender to fund
risk participations hereunder;




     (r) assignments of insurance or condemnation proceeds provided to landlords (or their
mortgagees) pursuant to the terms of any lease and Liens or rights reserved in any lease for
rent or for compliance with the terms of such lease; and




     (s) additional Liens so long as the principal amount of Indebtedness and other
obligations secured thereby does not exceed $500,000 in the aggregate.



     Notwithstanding the foregoing, if a Credit Party shall grant a Lien on any of its assets in
violation of this Section, then it shall be deemed to have simultaneously granted an equal and
ratable Lien on any such assets in favor of the Administrative Agent for the ratable benefit of the
Secured Parties, to the extent such Lien has not already been granted to the Administrative Agent.



     Section 6.3 Nature of Business.



     No Credit Party will, nor will it permit any Subsidiary to, alter the character of its
business in any material respect from that conducted as of the Closing Date, businesses incidental
or related thereto, and ancillary businesses comprising logical extensions thereof.



     Section 6.4 Consolidation, Merger, Sale or Purchase of Assets, etc.



     The Credit Parties will not, nor will they permit any Subsidiary to,




     (a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise
dispose of its property or assets (each a “Disposition”), except the following,
without duplication, shall be expressly permitted:



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     (i) (A) the sale, transfer, lease or other disposition of inventory and
materials in the ordinary course of business and (B) the conversion of cash into
Cash Equivalents and Cash Equivalents into cash, and the use of cash and Cash
Equivalents in the ordinary course of business;




     (ii) the sale, transfer or other disposition of property or assets to an
unrelated party not in the ordinary course of business where and to the extent that
they are the result of a Recovery Event;




     (iii) the sale, lease, transfer or other disposition of machinery, parts and
equipment no longer used or useful in the conduct of the business of the Credit
Parties or any of their Subsidiaries;




     (iv) the sale, lease or transfer of property or assets from one Credit Party to
another Credit Party or dissolution of any Credit Party (other than any Borrower) to
the extent any and all assets of such Credit Party are distributed to another Credit
Party;




     (v) the termination of any Bank Product; and




     (vi) the sale, lease or transfer of property or assets not to exceed $1,000,000
in the aggregate in any fiscal year;




     provided that (A) with respect to clause (vi) above, at least 75% of the
consideration received therefor by the Credit Parties or any such Subsidiary shall be in the
form of cash or Cash Equivalents, (B) after giving effect to any Asset Disposition pursuant
to clause (vi) above, the Credit Parties shall be in compliance on a Pro Forma Basis with
the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently
ended fiscal quarter for which information is available, (C) with respect to clauses (iv),
(v) and (vi) above, no Default or Event of Default shall exist or shall result therefrom and
(D) any Disposition pursuant to clauses (i), (iii) and (vi) shall be for fair market value;
provided, further, that with respect to sales of assets permitted hereunder
only, the Administrative Agent shall be entitled, without the consent of any Lender, to
release its Liens relating to the particular assets sold; or




     (b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of
related transactions) the property or assets of any Person, other than (A) Permitted
Acquisitions and (B) except as otherwise limited or prohibited herein, purchases or other
acquisitions of inventory, materials, property and equipment in the ordinary course of
business, or (ii) enter into any transaction of merger or consolidation, except for (A)
Investments or acquisitions permitted pursuant to Section 6.5 so long as the Credit Party
subject to such merger or consolidation is the surviving entity, (B) (y) the merger or
consolidation of a Subsidiary that is not a Credit Party with and into a Credit Party;
provided that such Credit Party will be the surviving entity and (z) the merger or
consolidation of a Credit Party with and into another Credit Party; provided that if
any Borrower is a party thereto, such Borrower will be the surviving corporation, and (C)
the



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merger or consolidation of a Subsidiary that is not a Credit Party with and into
another Subsidiary that is not a Credit Party.



     Section 6.5 Advances, Investments and Loans.



     The Credit Parties will not, nor will they permit any Subsidiary to, make any Investment
except for the following (the “Permitted Investments”):




     (a) cash and Cash Equivalents;




     (b) Investments consisting of the ownership of Equity Interests in the Credit Parties’
Subsidiaries on the Closing Date and other Investments existing as of the Closing Date as
set forth on Schedule 1.1(a);




     (c) receivables owing to the Credit Parties or any of their Subsidiaries or any
receivables and advances to suppliers, in each case if created, acquired or made in the
ordinary course of business and payable or dischargeable in accordance with customary trade
terms;




     (d) Investments in and loans to any Credit Party;




     (e) loans and advances to officers, directors and employees in an aggregate amount not
to exceed $250,000 at any time outstanding; provided that such loans and advances shall
comply with all applicable Requirements of Law (including Sarbanes-Oxley);




     (f) Investments (including debt obligations) received in connection with the bankruptcy
or reorganization of suppliers and customers and in settlement of delinquent obligations of,
and other disputes with, customers and suppliers arising in the ordinary course of business;




     (g) Permitted Acquisitions;




     (h) a one time Investment in Primo Refill Canada Corporation made by the Company on the
Closing Date in an aggregate amount not to exceed $7,500,000;




     (i) Bank Products to the extent permitted hereunder; and




     (j) additional loan advances and/or Investments of a nature not contemplated by the
foregoing clauses hereof; provided that such loans, advances and/or Investments made
after the Closing Date pursuant to this clause shall not exceed an aggregate amount of
$500,000 at any one time outstanding.



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     Section 6.6 Transactions with Affiliates.



     The Credit Parties will not, nor will they permit any Subsidiary to, enter into any
transaction or series of transactions, whether or not in the ordinary course of business, with any
officer, director, shareholder or Affiliate other than on terms and conditions substantially as
favorable as would be obtainable in a comparable arm’s-length transaction with a Person other than
an officer, director, shareholder or Affiliate, other than (a) transactions solely between or among
Credit Parties and (b) any Restricted Payment permitted by Section 6.10.



     Section 6.7 Ownership of Subsidiaries; Restrictions.



     The Credit Parties will not, nor will they permit any Subsidiary to, create, form or acquire
any Subsidiaries, except for (a) Material Domestic Subsidiaries that are joined as Additional
Credit Parties as required by the terms hereof, (b) Foreign Subsidiaries or (iii) Domestic
Subsidiaries that are not classified as Material Domestic Subsidiaries. The Credit Parties will
not sell, transfer, pledge or otherwise dispose of any Equity Interests in any of their
Subsidiaries, nor will they permit any of their Subsidiaries to issue, sell, transfer, pledge or
otherwise dispose of any of their Equity Interests, except in a transaction permitted by Section
6.4.



     Section 6.8 Corporate Changes; Material Contracts.



     No Credit Party will, nor will it permit any of its Subsidiaries to, (a) change its fiscal
year, (b) amend, modify or change its articles of incorporation, certificate of designation (or
corporate charter or other similar organizational document) operating agreement or bylaws (or other
similar document) from those in effect on the Closing Date in any respect materially adverse to the
interests of the Lenders without the prior written consent of the Required Lenders. No Credit
Party shall (a) (i) except as permitted under Section 6.4, alter its legal existence or, in one
transaction or a series of transactions, merge into or consolidate with any other entity, or sell
all or substantially all of its assets, (ii) change its state of incorporation or organization,
without providing thirty (30) days prior written notice to the Administrative Agent and without
filing (or confirming that the Administrative Agent has filed) such financing statements and
amendments to any previously filed financing statements as the Administrative Agent may require, or
(iii) change its registered legal name, without providing thirty (30) days prior written notice to
the Administrative Agent and without filing (or confirming that the Administrative Agent has filed)
such financing statements and amendments to any previously filed financing statements as the
Administrative Agent may require, (b) cancel or terminate or fail to renew or extend or permit the
cancellation or termination of any of its Material Contracts, to the extent such cancellation or
termination could reasonably be expected to result in a Material Adverse Effect, (c) have more than
one state of incorporation, organization or formation or (d) change its accounting method (except
in accordance with GAAP) in any manner adverse to the interests of the Lenders without the prior
written consent of the Required Lenders.



     Section 6.9 Limitation on Restricted Actions.



     The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance or restriction



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on the ability of any such Person to (a) pay dividends or make any other distributions to any
Credit Party on its Equity Interests or with respect to any other interest or participation in, or
measured by, its profits, (b) pay any Indebtedness or other obligation owed to any Credit Party,
(c) make loans or advances to any Credit Party, (d) sell, lease or transfer any of its properties
or assets to any Credit Party, or (e) act as a Guarantor and pledge its assets pursuant to the
Credit Documents or any renewals, refinancings, exchanges, refundings or extension thereof or amend
or otherwise modify the Credit Documents, except (in respect of any of the matters referred to in
clauses (a)-(d) above) for such encumbrances or restrictions existing under or by reason of (i)
this Agreement and the other Credit Documents, (ii) applicable law, (iii) any document or
instrument governing Indebtedness incurred pursuant to Section 6.1(c); provided that any
such restriction contained therein relates only to the asset or assets constructed or acquired in
connection therewith, or (iv) any Permitted Lien or any document or instrument governing any
Permitted Lien; provided that any such restriction contained therein relates only to the
asset or assets subject to such Permitted Lien.




     Section 6.10 Restricted Payments.



     The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly,
declare, order, make or set apart any sum for or pay any Restricted Payment, except (a) to make
dividends payable solely in the same class of Equity Interests of such Person, (b) to make
dividends or other distributions payable to the Credit Parties (directly or indirectly through its
Subsidiaries), (c) Restricted Payments in connection with the repurchases of Equity Interests of
the Company from former employees in an aggregate amount not to exceed $250,000 in any fiscal year
of the Company, (d) (i) the conversion of all of the Series A Preferred Stock, some or all of the
Series B Preferred Stock and all of the Series C Preferred Stock into common stock on the Closing
Date, (ii) the payment of all accrued dividends on the Series B Preferred Stock substantially
contemporaneous with the Closing Date, and (iii) the redemption of up to 50% of the Series B
Preferred Stock substantially contemporaneous with the effectiveness of this Agreement, in each
case as contemplated by the Borrower’s Fifth Amended and Restated Certificate of Incorporation and
the IPO Documents and (e) to make payments with respect to earnout obligations or payment
obligations under any non-compete agreements, in each case executed or incurred in connection with
the Acquisition or any Permitted Acquisition in an aggregate amount not to exceed $1,000,000 in any
fiscal year of the Company.



     Section 6.11 Amendment of Subordinated Debt.



     The Credit Parties will not, nor will they permit any Subsidiary to, without the prior written
consent of the Required Lenders, amend, modify, waive or extend or permit the amendment,
modification, waiver or extension of any term of any document governing or relating to any
Subordinated Debt in a manner that is adverse to the interests of the Lenders.



     Section 6.12 Sale Leasebacks.



     The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly,
become or remain liable as lessee or as guarantor or other surety with respect to any lease,
whether an Operating Lease or a Capital Lease, of any property (whether real, personal or



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mixed), whether now owned or hereafter acquired, (a) which any Credit Party or any Subsidiary
has sold or transferred or is to sell or transfer to a Person which is not a Credit Party or a
Subsidiary or (b) which any Credit Party or any Subsidiary intends to use for substantially the
same purpose as any other property which has been sold or is to be sold or transferred by a Credit
Party or a Subsidiary to another Person which is not a Credit Party or a Subsidiary in connection
with such lease.




     Section 6.13 No Further Negative Pledges.



     The Credit Parties will not, nor will they permit any Subsidiary to, enter into, assume or
become subject to any agreement prohibiting or otherwise restricting the creation or assumption of
any Lien upon any of their properties or assets, whether now owned or hereafter acquired, or
requiring the grant of any security for such obligation if security is given for some other
obligation, except (a) pursuant to this Agreement and the other Credit Documents, (b) pursuant to
any document or instrument governing Indebtedness incurred pursuant to Section 6.1(c);
provided that any such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, and (c) in connection with any Permitted Lien or
any document or instrument governing any Permitted Lien; provided that any such restriction
contained therein relates only to the asset or assets subject to such Permitted Lien.



     Section 6.14 Account Control Agreements; Additional Bank Accounts.



     Each of the Credit Parties will not open, maintain or otherwise have any checking, savings or
other accounts (including securities accounts) at any bank or other financial institution, or any
other account where money is or may be deposited or maintained with any Person, other than (a)
deposit accounts that are subject to a Deposit Account Control Agreement and are held at Wells
Fargo, (b) securities accounts that are subject to a Securities Account Control Agreement and are
held at Wells Fargo, (c) deposit accounts established solely as payroll and other zero balance
accounts and such accounts are held at Wells Fargo and (d) other deposit accounts, so long as at
any time the balance in any such account does not exceed $100,000 and the aggregate balance in all
such accounts does not exceed $100,000.



ARTICLE VII




EVENTS OF DEFAULT



     Section 7.1 Events of Default.



     An Event of Default shall exist upon the occurrence of any of the following specified events
(each an “Event of Default”):




     (a) Payment. (i) Any Borrower shall fail to pay any principal on any Loan or
Note when due (whether at maturity, by reason of acceleration or otherwise) in accordance
with the terms hereof or thereof; or (ii) any Borrower shall fail to reimburse the Issuing
Lender for any LOC Obligations when due (whether at maturity, by reason of



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acceleration or otherwise) in accordance with the terms hereof; or (iii) any Borrower
shall fail to pay any interest on any Loan or any fee or other amount payable hereunder when
due (whether at maturity, by reason of acceleration or otherwise) in accordance with the
terms hereof and such failure shall continue unremedied for three (3) days; or (iv) or any
Guarantor shall fail to pay on the Guaranty in respect of any of the foregoing or in respect
of any other Guaranty Obligations hereunder (after giving effect to the grace period in
clause (iii)); or




     (b) Misrepresentation. Any representation or warranty made or deemed made
herein, in the Security Documents or in any of the other Credit Documents or which is
contained in any certificate, document or financial or other statement furnished at any time
under or in connection with this Agreement shall prove to have been (i) with respect to
representations and warranties that contain a materiality qualification, incorrect, false or
misleading on or as of the date made or deemed made and (ii) with respect to representations
and warranties that do not contain a materiality qualification, incorrect, false or
misleading in any material respect on or as of the date made or deemed made; or




     (c) Covenant Default.




     (i) Any Credit Party shall fail to perform, comply with or observe any term,
covenant or agreement applicable to it contained in Sections 5.1, 5.2(a), 5.4,
5.7(a), 5.9, 5.11, 5.13, 5.15(c) or Article VI hereof (other than Section 6.14); or




     (ii) Any Credit Party shall fail to comply with any other covenant contained in
this Agreement or the other Credit Documents or any other agreement, document or
instrument among any Credit Party, the Administrative Agent and the Lenders or
executed by any Credit Party in favor of the Administrative Agent or the Lenders
(other than as described in Sections 7.1(a) or 7.1(c)(i) above) and, with respect to
this clause (ii) only, such breach or failure to comply is not cured within thirty
(30) days of its occurrence; or




     (d) Indebtedness Cross-Default. (i) Any Credit Party or any of its
Subsidiaries shall default in any payment of principal of or interest on any Indebtedness
(other than the Loans, Reimbursement Obligations and the Guaranty) in a principal amount
outstanding of at least $1,000,000 for the Company and any of its Subsidiaries in the
aggregate beyond any applicable grace period (not to exceed thirty (30) days), if any,
provided in the instrument or agreement under which such Indebtedness was created; or (ii)
any Credit Party or any of its Subsidiaries shall default in the observance or performance
of any other agreement or condition relating to any Indebtedness (other than the Loans,
Reimbursement Obligations and the Guaranty) in a principal amount outstanding of at least
$1,000,000 in the aggregate for the Credit Parties and their Subsidiaries or contained in
any instrument or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event or condition is
to cause, or to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the giving



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of notice if required, such Indebtedness to become due prior to its stated maturity or
to be repurchased, prepaid, deferred or redeemed (automatically or otherwise); or (iii) any
Credit Party or any of its Subsidiaries shall breach or default any payment obligation under
any Hedging Agreement that is a Bank Product; or




     (e) Other Cross-Defaults. The Credit Parties or any of their Subsidiaries
shall default in (i) a material payment when due under any Material Contract or (ii) the
performance or observance, of any material obligation or condition of any Material Contract
and, in the case of this clause (ii) only, such failure to perform or observe such other
obligation or condition continues unremedied for a period of thirty (30) days after notice
of the occurrence of such default unless, but only as long as, the existence of any such
default is being contested by the Credit Parties in good faith by appropriate proceedings
and adequate reserves in respect thereof have been established on the books of the Credit
Parties to the extent required by GAAP; or




     (f) Bankruptcy Default. (i) A Credit Party or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial part of its
assets, or a Credit Party or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against a Credit Party or any of
its Subsidiaries any case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60)
days; or (iii) there shall be commenced against a Credit Party or any of its Subsidiaries
any case, proceeding or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of their assets which
results in the entry of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within sixty (60) days from the entry
thereof; or (iv) a Credit Party or any of its Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) a Credit Party or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit in writing their
inability to, pay its debts as they become due; or




     (g) Judgment Default. (i) One or more judgments or decrees shall be entered
against a Credit Party or any of its Subsidiaries involving in the aggregate a liability (to
the extent not covered by insurance) of $1,000,000 or more and all such judgments or decrees
shall not have been paid and satisfied, vacated, discharged, stayed or bonded pending appeal
within thirty (30) Business Days from the entry thereof or (ii) any injunction, temporary
restraining order or similar decree shall be issued against a Credit



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Party or any of its Subsidiaries that, individually or in the aggregate, could result
in a Material Adverse Effect; or




     (h) ERISA Default. The occurrence of any of the following: (i) Any Person
shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section
4975 of the Code) involving any Plan, (ii) any “accumulated funding deficiency” (as defined
in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan or any
Lien in favor of the PBGC or a Plan (other than a Permitted Lien) shall arise on the assets
of the Credit Parties or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Required Lenders, likely to result in the termination of such Plan
for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) a Credit Party, any of its Subsidiaries or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required Lenders is likely to,
incur any liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, any Multiemployer Plan or (vi) any other similar event or condition shall
occur or exist with respect to a Plan; or




     (i) Change of Control. There shall occur a Change of Control; or




     (j) Invalidity of Guaranty. At any time after the execution and delivery
thereof, the Guaranty, for any reason other than the satisfaction in full of all Credit
Party Obligations, shall cease to be in full force and effect (other than in accordance with
its terms) or shall be declared to be null and void, or any Credit Party shall contest the
validity, enforceability, perfection or priority of the Guaranty, any Credit Document, or
any Lien granted thereunder in writing or deny in writing that it has any further liability,
including with respect to future advances by the Lenders, under any Credit Document to which
it is a party; or




     (k) Invalidity of Credit Documents. Any Credit Document shall fail to be in
full force and effect (except as such documents may be terminated or no longer in force and
effect in accordance with the terms thereof, other than those indemnities and provisions
which by their terms shall survive) or any Lien shall fail to be a first priority, perfected
Lien on a material portion of the Collateral; or




     (l) Subordinated Debt. Any default (which is not waived or cured within the
applicable period of grace) or event of default shall occur under any Subordinated Debt or
the subordination provisions contained therein shall cease to be in full force and effect or
shall cease to give the Lenders the rights, powers and privileges purported to be created
thereby; or




     (m) Classification as Senior Debt. The Credit Party Obligations shall cease to
be classified as “Senior Indebtedness,” “Designated Senior Indebtedness” or any similar
designation under any Subordinated Debt instrument; or




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     (n) Uninsured Loss. Any uninsured damage to or loss, theft or
destruction of any assets of the Credit Parties or any of their Subsidiaries shall occur
that is in excess of $1,000,000.



     If a Default shall have occurred under the Credit Documents, then such Default will continue
to exist until it either is cured (to the extent specifically permitted) in accordance with the
Credit Documents or is otherwise expressly waived by Administrative Agent (with the approval of
requisite Lenders (in their sole and absolute discretion) as determined in accordance with Section
9.1); and once an Event of Default occurs under the Credit Documents, then such Event of Default
will continue to exist until it is expressly waived by the requisite Lenders or by the
Administrative Agent with the approval of the requisite Lenders, as required hereunder in Section
9.1.



     Section 7.2 Acceleration; Remedies.



     Upon the occurrence and during the continuance of an Event of Default, then, and in any such
event, (a) if such event is a Bankruptcy Event, automatically the Commitments shall immediately
terminate and the Loans (with accrued interest thereon), and all other amounts under the Credit
Documents (including, without limitation, the maximum amount of all contingent liabilities under
Letters of Credit) shall immediately become due and payable, and (b) if such event is any other
Event of Default, any or all of the following actions may be taken: (i) with the written consent
of the Required Lenders, the Administrative Agent may, or upon the written request of the Required
Lenders, the Administrative Agent shall, declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; (ii) the Administrative Agent may, or upon
the written request of the Required Lenders, the Administrative Agent shall, declare the Loans
(with accrued interest thereon) and all other amounts owing under this Agreement and the Notes to
be due and payable forthwith and direct the Borrowers to pay to the Administrative Agent cash
collateral as security for the LOC Obligations for subsequent drawings under then outstanding
Letters of Credit an amount equal to the maximum amount of which may be drawn under Letters of
Credit then outstanding, whereupon the same shall immediately become due and payable; and/or (iii)
with the written consent of the Required Lenders, the Administrative Agent may, or upon the written
request of the Required Lenders, the Administrative Agent shall, exercise such other rights and
remedies as provided under the Credit Documents and under applicable law.



ARTICLE VIII




THE ADMINISTRATIVE AGENT



     Section 8.1 Appointment and Authority.



     Each of the Lenders and the Issuing Lender hereby irrevocably appoints Wells Fargo to act on
its behalf as the Administrative Agent hereunder and under the other Credit Documents and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such



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powers as are delegated to the Administrative Agent by the terms hereof or thereof, together
with such actions and powers as are reasonably incidental thereto. The provisions of this Article
are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Lender, and
neither the Borrowers nor any other Credit Party shall have rights as a third party beneficiary of
any of such provisions.




     Section 8.2 Nature of Duties.



     Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers or other
agents listed on the cover page hereof shall have any powers, duties or responsibilities under this
Agreement or any of the other Credit Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender, the Swingline Lender or the Issuing Lender hereunder. Without
limiting the foregoing, none of the Lenders or other Persons so identified shall have or be deemed
to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.



     The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Credit Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent.



     Section 8.3 Exculpatory Provisions.



     The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein and in the other Credit Documents. Without limiting the generality of the foregoing,
the Administrative Agent:




     (a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;




     (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Credit Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Credit Documents),
provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Credit Document or applicable law; and




     (c) shall not, except as expressly set forth herein and in the other Credit
Documents, have any duty to disclose, and shall not be liable for the failure to disclose,



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any information relating to any Credit Party or any of its Affiliates that is
communicated to or obtained by the Person serving as 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 (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 9.1 and 7.2) or (ii) in the absence of
its own gross negligence or willful misconduct.



     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 this Agreement or
any other Credit Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Credit Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.



     Section 8.4 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 (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the Issuing Lender, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the Issuing Lender unless the Administrative Agent
shall have received notice to the contrary from such Lender or the Issuing Lender prior to the
making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult
with legal counsel (who may be counsel for the Company), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.



     Section 8.5 Notice of Default.



     The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default hereunder unless the Administrative Agent has received written
notice from a Lender or the Company referring to this Agreement, describing such Default or Event
of Default and stating that such notice is a “notice of default”. In the event



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that the Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent shall take such action with respect
to such Default or Event of Default as shall be reasonably directed by the Required Lenders;
provided, however, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders except to the extent that this Agreement
expressly requires that such action be taken, or not taken, only with the consent or upon the
authorization of the Required Lenders, or all of the Lenders, as the case may be.




     Section 8.6 Non-Reliance on Administrative Agent and Other Lenders.



     Each Lender and the Issuing Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates has
made any representation or warranty to it and that no act by the Administrative Agent hereinafter
taken, including any review of the affairs of any Credit Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each Lender and the Issuing
Lender acknowledges that it has, independently and without reliance upon the Administrative Agent
or any other Lender or any of their Related Parties and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender and the Issuing Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem appropriate, continue to
make its own decisions in taking or not taking action under or based upon this Agreement, any other
Credit Document or any related agreement or any document furnished hereunder or thereunder.



     Section 8.7 Indemnification.



     The Lenders agree to indemnify the Administrative Agent, the Issuing Lender, and the Swingline
Lender in its capacity hereunder and their Affiliates and their respective officers, directors,
agents and employees (to the extent not reimbursed by the Credit Parties and without limiting the
obligation of the Credit Parties to do so), ratably according to their respective Revolving
Commitment Percentages in effect on the date on which indemnification is sought under this Section,
from and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Credit Party Obligations)
be imposed on, incurred by or asserted against any such indemnitee in any way relating to or
arising out of any Credit Document or any documents contemplated by or referred to herein or
therein or the Transactions or any action taken or omitted by any such indemnitee under or in
connection with any of the foregoing; provided, however, that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent resulting from such
indemnitee’s gross negligence or willful misconduct, as determined by a court of competent
jurisdiction. The agreements in this Section shall survive the termination of this Agreement and
payment of the Notes, any Reimbursement Obligation and all other amounts payable hereunder.



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     Section 8.8 Administrative Agent in Its Individual Capacity.



     The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated
or unless the context otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity for and generally
engage in any kind of business with the Credit Parties or any Subsidiary or other Affiliate thereof
as if such Person were not the Administrative Agent hereunder and without any duty to account
therefor to the Lenders.



     Section 8.9 Successor Administrative Agent.



     The Administrative Agent may at any time give notice of its resignation to the Lenders, the
Issuing Lender and the Company. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Company, to appoint a successor, or an
Affiliate of any such bank. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty (30) days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the Issuing Lender, appoint a successor Administrative Agent meeting the
qualifications set forth above provided that if the Administrative Agent shall notify the Company
and the Lenders that no qualifying Person has accepted such appointment, then such resignation
shall nonetheless become effective in accordance with such notice and (a) the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder and under the
other Credit Documents (except that in the case of any Collateral held by the Administrative Agent
on behalf of the Lenders or the Issuing Lender under any of the Credit Documents, the retiring
Administrative Agent shall continue to hold such Collateral until such time as a successor
Administrative Agent is appointed) and (b) all payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by or to each Lender
and the Issuing Lender directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this paragraph. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Credit Documents (if not already discharged therefrom as
provided above in this paragraph). The fees payable by the Company to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Company and such successor. After the retiring Administrative Agent’s resignation hereunder and
under the other Credit Documents, the provisions of this Article and Section 9.5 shall continue in
effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of them while the
retiring Administrative Agent was acting as Administrative Agent.



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     Any resignation by Wells Fargo Bank, as Administrative Agent pursuant to this Section shall
also constitute its resignation as Issuing Lender and Swingline Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring Issuing Lender
and Swingline Lender, (b) the retiring Issuing Lender and Swingline Lender shall be discharged from
all of their respective duties and obligations hereunder or under the other Credit Documents, and
(c) the successor Issuing Lender shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory
to the retiring Issuing Lender to effectively assume the obligations of the retiring Issuing Lender
with respect to such Letters of Credit.



     Section 8.10 Collateral and Guaranty Matters.




     (a) The Lenders and the Bank Product Providers irrevocably authorize and direct the
Administrative Agent:




     (i) to release any Lien on any Collateral granted to or held by the
Administrative Agent under any Credit Document (A) upon termination of the
Commitments and payment in full of all Credit Party Obligations (other than
contingent indemnification obligations) and the expiration or termination of all
Letters of Credit, (B) that is transferred or to be transferred as part of or in
connection with any sale or other disposition permitted under Section 6.4, or (C)
subject to Section 9.1, if approved, authorized or ratified in writing by the
Required Lenders;




     (ii) to subordinate any Lien on any Collateral granted to or held by the
Administrative Agent under any Credit Document to the holder of any Lien on such
Collateral that is permitted by Section 6.2; and




     (iii) to release any Guarantor from its obligations under the applicable
Guaranty if such Person ceases to be a Guarantor as a result of a transaction
permitted hereunder.




     (b) In connection with a termination or release pursuant to this Section, the
Administrative Agent shall promptly execute and deliver to the applicable Credit Party, at
the Borrowers’ expense, all documents that the applicable Credit Party shall reasonably
request to evidence such termination or release. Upon request by the Administrative Agent
at any time, the Required Lenders will confirm in writing the Administrative Agent’s
authority to release or subordinate its interest in particular types or items of Collateral,
or to release any Guarantor from its obligations under the Guaranty pursuant to this
Section.



     Section 8.11 Bank Products.



     No Bank Product Provider that obtains the benefits of Sections 2.11 and 7.2, any Guaranty or
any Collateral by virtue of the provisions hereof or of any Guaranty or any



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Collateral Document shall have any right to notice of any action or to consent to, direct or
object to any action hereunder or under any other Credit Document or otherwise in respect of the
Collateral (including the release or impairment of any Collateral) other than in its capacity as a
Lender and, in such case, only to the extent expressly provided in the Credit Documents. The
Administrative Agent shall not be required to verify the payment of, or that other satisfactory
arrangements have been made with respect to, Obligations arising under Bank Products unless the
Administrative Agent has received written notice (including, without limitation, a Bank Product
Provider Notice) of such Obligations, together with such supporting documentation as the
Administrative Agent may request, from the applicable Bank Product Provider.




ARTICLE IX




MISCELLANEOUS



     Section 9.1 Amendments, Waivers, Consents and Release of Collateral.



     Neither this Agreement nor any of the other Credit Documents, nor any terms hereof or thereof
may be amended, modified, extended, restated, replaced, or supplemented (by amendment, waiver,
consent or otherwise) except in accordance with the provisions of this Section nor may Collateral
be released except as specifically provided herein or in the Security Documents or in accordance
with the provisions of this Section. The Required Lenders may or, with the consent of the Required
Lenders, the Administrative Agent may, from time to time, (a) enter into with the Company written
amendments, supplements or modifications hereto and to the other Credit Documents for the purpose
of adding any provisions to this Agreement or the other Credit Documents or changing in any manner
the rights of the Lenders or of the Company hereunder or thereunder or (b) waive or consent to the
departure from, on such terms and conditions as the Required Lenders may specify in such
instrument, any of the requirements of this Agreement or the other Credit Documents or any Default
or Event of Default and its consequences; provided, however, that no such
amendment, supplement, modification, release, waiver or consent shall:




     (i) reduce the amount or extend the scheduled date of maturity of any Loan or
Note or any installment thereon, or reduce the stated rate of any interest or fee
payable hereunder (except in connection with a waiver of Default Interest (other
than Default Interest imposed during the continuance of a Bankruptcy Event or a
Payment Event of Default hereunder) which shall be determined by a vote of the
Required Lenders) or extend the scheduled date of any payment thereof or increase
the amount or extend the expiration date of any Lender’s Commitment, in each case
without the written consent of each Lender directly affected thereby;
provided that, it is understood and agreed that any reduction in the stated
rate of interest on Revolving Loans shall only require the written consent of each
Lender holding a Revolving Commitment; or



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     (ii) amend, modify or waive any provision of this Section or reduce the
percentage specified in the definition of Required Lenders, without the written
consent of all the Lenders; or




     (iii) release the Borrowers or all or substantially all of the value of the
Guaranty, without the written consent of all of the Lenders; provided that
the Administrative Agent may release any Guarantor permitted to be released pursuant
to the terms of this Agreement; or




     (iv) release all or substantially all of the value of the Collateral without
the written consent of all of the Lenders; provided that the Administrative
Agent may release any Collateral permitted to be released pursuant to the terms of
this Agreement or the Security Documents; or




     (v) subordinate the Loans to any other Indebtedness without the written consent
of all of the Lenders; or




     (vi) permit a Letter of Credit to have an original expiry date more than twelve
(12) months from the date of issuance without the consent of each of the Revolving
Lenders; provided, that the expiry date of any Letter of Credit may be
extended in accordance with the terms of Section 2.3(a); or




     (vii) permit any Borrower to assign or transfer any of its rights or
obligations under this Agreement or other Credit Documents without the written
consent of all of the Lenders; or




     (viii) amend, modify or waive any provision of the Credit Documents requiring
consent, approval or request of the Required Lenders or all Lenders without the
written consent of the Required Lenders or all the Lenders as appropriate; or




     (ix) without the consent of the Required Lenders, amend, modify or waive any
provision in Section 4.2 or waive any Default or Event of Default (or amend any
Credit Document to effectively waive any Default or Event of Default) if the effect
of such amendment, modification or waiver is that the Revolving Lenders shall be
required to fund Revolving Loans when such Lenders would otherwise not be required
to do so; or




     (x) amend, modify or waive the pro rata sharing of payments by and among the
Lenders, in each case in accordance with Section 2.11(b) or 9.7(b) without the
written consent of each Lender directly affected thereby; or




     (xi) amend, modify or waive any provision of Article VIII without the written
consent of the then Administrative Agent; or



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     (xii) amend or modify the definition of Credit Party Obligations to delete or
exclude any obligation or liability described therein without the written consent of
each Lender and each Bank Product Provider directly affected thereby; or




     (xiii) amend, modify or waive any provision in Section 2.21 or the definition
of Defaulting Lender if such amendment, modification or waiver would result in any
Lender immediately becoming a Defaulting Lender without the written consent of such
Lender; or




     (xiv) impose any greater restriction on the ability of any Lender to assign any
of its rights or obligations hereunder without the written consent of such Lender;
or




     (xv) amend the definitions of “Hedging Agreement,” “Bank Product,” or “Bank
Product Provider” without the consent of any Bank Product Provider that would be
adversely affected thereby;


provided, further, that no amendment, waiver or consent affecting the rights or
duties of the Administrative Agent, the Issuing Lender or the Swingline Lender under any Credit
Document shall in any event be effective, unless in writing and signed by the Administrative Agent,
the Issuing Lender and/or the Swingline Lender, as applicable, in addition to the Lenders required
hereinabove to take such action.




     Any such waiver, any such amendment, supplement or modification and any such release shall
apply equally to each of the Lenders and shall be binding upon the Borrowers, the other Credit
Parties, the Lenders, the Administrative Agent and all future holders of the Notes. In the case of
any waiver, the Company, the other Credit Parties, the Lenders and the Administrative Agent shall
be restored to their former position and rights hereunder and under the outstanding Loans and Notes
and other Credit Documents, and any Default or Event of Default waived shall be deemed to be cured
and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.



     Notwithstanding any of the foregoing to the contrary, the consent of the Company and the other
Credit Parties shall not be required for any amendment, modification or waiver of the provisions of
Article VIII (other than the provisions of Section 8.9 or 8.10).



     Notwithstanding any of the foregoing to the contrary, the Credit Parties and the
Administrative Agent, without the consent of any Lender, may enter into any amendment, modification
or waiver of any Credit Document, or enter into any new agreement or instrument, to (i) effect the
granting, perfection, protection, expansion or enhancement of any security interest in any
Collateral or additional property to become Collateral for the benefit of the Secured Parties, or
as required by local law to give effect to, or protect any security interest for the benefit of the
Secured Parties, in any property or so that the security interests therein comply with applicable
law or (ii) correct any obvious error or omission of a technical nature, in each case that is
immaterial (as determined by the Administrative Agent), in any provision of any



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Credit Document, if the same is not objected to in writing by the Required Lenders within five
(5) Business Days following receipt of notice thereof.




     Notwithstanding the fact that the consent of all the Lenders is required in certain
circumstances as set forth above, (a) each Lender is entitled to vote as such Lender sees fit on
any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the
provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions
set forth herein, (b) the Required Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding and (c) no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except
(i) that the Commitment of such Lender may not be increased or extended without the consent of such
Lender and (ii) to the extent such amendment, waiver or consent impacts such Defaulting Lender more
than the other Lenders.



     Section 9.2 Notices.




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



	 	 	 	 	 	 	 

	 	 	(i)	 	If to the Company or any other Credit Party:
	 
	 	 	 	 	104 Cambridge Plaza Drive
	 	 	 	 	Winston-Salem, North Carolina 27104
	 

	 	 	 	Attention:
	 	Mark Castaneda, Chief Financial Officer
	 

	 	 	 	Telephone:
	 	(336) 331-4000
	 

	 	 	 	Fax:
	 	(336) 331-0319
	 

	 	 	 	Email:
	 	mcastaneda@primowater.com
	 
	 	 	(ii)	 	If to the Administrative Agent:
	 
	 	 	 	 	Wells Fargo Bank, National Association, as Administrative Agent
	 	 	 	 	1525 West W.T. Harris Blvd.
	 	 	 	 	Mail Code NC 0680
	 	 	 	 	Charlotte, North Carolina 28262
	 

	 	 	 	Attention:
	 	Syndication Agency Services
	 

	 	 	 	Telephone:
	 	(704) 590-2758
	 

	 	 	 	Fax:
	 	(704) 590-3481
	 

	 	 	 	Email:
	 	sue.patterson@wachovia.com








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with a copy to:





	 	 	 

	 

	 	Wells Fargo Bank, National Association, as Administrative Agent
	 

	 	100 North Main Street
	 

	 	Mail Code: MAC D4001-053
	 

	 	Winston-Salem, NC 27101
	 

	 	Attention: James R. Myers
	 

	 	Phone: (336) 732-4867
	 

	 	Fax: (336) 732-4833







     (iii) if to a Lender, to it at its address (or telecopier number) set forth in
its Administrative Questionnaire.



     Notices sent by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier shall be deemed to
have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next business day
for the recipient). Notices delivered through electronic communications to the extent provided in
paragraph (b) below, shall be effective as provided in said paragraph (b).




     (b) Electronic Communications. Notices and other communications to the
Lenders, the Swingline Lender and the Issuing Lender hereunder may be delivered or furnished
by electronic communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing shall
not apply to notices to any Lender, the Swingline Lender or the Issuing Lender pursuant to
Article II if such Lender, the Swingline Lender or the Issuing Lender, as applicable, has
notified the Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrowers may, in
their discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or communications.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.




     (c) Change of Address, Etc. Any party hereto may change its address or
telecopier number for notices and other communications hereunder by notice to the other
parties hereto.



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     (d) Platform.




     (i) Each Credit Party agrees that the Administrative Agent may make the
Communications (as defined below) available to the Lenders by posting the
Communications on Intralinks or a substantially similar electronic transmission
system (the “Platform”).




     (ii) The Platform is provided “as is” and “as available.” The Agent
Parties (as defined below) do not warrant the adequacy of the Platform and expressly
disclaim liability for errors or omissions in the communications effected thereby
(the “Communications”). No warranty of any kind, express, implied or
statutory, including, without limitation, any warranty of merchantability, fitness
for a particular purpose, non-infringement of third-party rights or freedom from
viruses or other code defects, is made by any Agent Party in connection with the
Communications or the Platform. In no event shall the Administrative Agent or any
of its affiliates or any of their respective officers, directors, employees, agents,
advisors or representatives (collectively, “Agent Parties”) have any
liability to the Credit Parties, any Lender or any other Person or entity for
damages of any kind, including, without limitation, direct or indirect, special,
incidental or consequential damages, losses or expenses (whether in tort, contract
or otherwise) arising out of any Credit Party’s or the Administrative Agent’s
transmission of communications through the Platform.



     Section 9.3 No Waiver; Cumulative Remedies.



     No failure to exercise and no delay in exercising, on the part of the Administrative Agent or
any Lender, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.



     Section 9.4 Survival of Representations and Warranties.



     All representations and warranties made hereunder and in any document, certificate or
statement delivered pursuant hereto or in connection herewith shall survive the execution and
delivery of this Agreement and the Notes and the making of the Loans; provided that all
such representations and warranties shall terminate on the date upon which the Commitments have
been terminated and all Credit Party Obligations have been paid in full.



     Section 9.5 Payment of Expenses and Taxes; Indemnity.




     (a) Costs and Expenses. The Credit Parties shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including
the reasonable fees, charges and disbursements of one primary counsel for the Administrative
Agent and any necessary local counsel (limited to one local counsel in



119









 






each relevant jurisdiction)), and shall pay all fees and time charges and disbursements
for attorneys who may be employees of the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Credit Documents or
any amendments, modifications or waivers of the provisions hereof or thereof (whether or not
the Transactions shall be consummated), (ii) all reasonable out-of-pocket expenses incurred
by the Issuing Lender and the Swingline Lender in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or Swingline Loan or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any
Lender, the Issuing Lender or the Swingline Lender (including the fees, charges and
disbursements of any counsel for the Administrative Agent, any Lender, the Swingline Lender
or the Issuing Lender), and shall pay all fees and time charges for attorneys who may be
employees of the Administrative Agent, any Lender, the Issuing Lender or the Swingline
Lender, in connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Credit Documents, including its rights under this Section,
or (B) in connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or negotiations
in respect of such Loans or Letters of Credit.




     (b) Indemnification by the Credit Parties. The Credit Parties shall
indemnify the Administrative Agent (and any sub-agent thereof), each Lender, the Issuing
Lender and the Swingline 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, penalties, damages, liabilities and related
expenses (including the fees, charges and disbursements of any counsel for any Indemnitee),
and shall indemnify and hold harmless each Indemnitee from all fees and time charges and
disbursements for attorneys who may be employees of any Indemnitee, incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by the Company or any
other Credit Party arising out of, in connection with, or as a result of (i) the execution
or delivery of this Agreement, any other Credit 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, (ii) any Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the Issuing Lender to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with the terms of
such Letter of Credit), (iii) any actual or alleged presence or release of Materials of
Environmental Concern on or from any property owned or operated by any Credit Party or any
of its Subsidiaries, or any liability under Environmental Law related in any way to any
Credit Party or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the Company or
any other Credit 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 are determined by
a court of competent jurisdiction by final and



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nonappealable judgment to have resulted from the gross negligence or willful misconduct
of such Indemnitee. This section (b) shall not apply with respect to Taxes other than any
Taxes that represent losses or damages arising from non-Tax claim.




     (c) Reimbursement by Lenders. To the extent that the Credit Parties for
any reason fail to indefeasibly pay any amount required under paragraph (a) or (b) of this
Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the Issuing
Lender, Swingline Lender or any Related Party of any of the foregoing, each Lender severally
agrees to pay to the Administrative Agent (or any such sub-agent), the Issuing Lender,
Swingline Lender or such Related Party, as the case may be, such Lender’s Revolving
Commitment Percentage (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent (or any such sub-agent),
the Issuing Lender or Swingline Lender in its capacity as such, or against any Related Party
of any of the foregoing acting for the Administrative Agent (or any such sub-agent), Issuing
Lender or Swingline Lender in connection with such capacity.




     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, none of the Credit Parties shall assert, and each of the Credit Parties
hereby waives, any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising
out of, in connection with, or as a result of, this Agreement, any other Credit Document or
any agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of
Credit or the use of the proceeds thereof. No Indemnitee referred to in paragraph (b) above
shall be liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications, electronic or
other information transmission systems in connection with this Agreement or the other Credit
Documents or the Transactions.




     (e) Payments. All amounts due under this Section shall be payable
promptly/not later than five (5) days after demand therefor.




     (f) Survival. The agreements contained in this Section shall survive the
resignation of the Administrative Agent, the Swingline Lender and the Issuing Lender, the
replacement of any Lender, the termination of the Commitments and the repayment,
satisfaction or discharge of the Credit Party Obligations.



     Section 9.6 Successors and Assigns; Participations.




     (a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that neither the Company nor any other
Credit Party may 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



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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) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible 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
contemporaneous assignments to related Approved Funds that equal at least
the amount specified in paragraph (b)(i)(B) 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




     (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 outstanding thereunder) or, if the applicable Commitment is
not then in effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment (determined as of the date
the Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date) shall not be less than
$5,000,000, in the case of any assignment in respect of any portion of the
Revolving Facility, (provided, however, that simultaneous
assignments shall be aggregated in respect of a Lender and its Approved
Funds), unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Company otherwise consents (each
such consent not to be unreasonably withheld or delayed).




     (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 Loan or the Commitment
assigned, except that this clause (ii) shall not prohibit any Lender from assigning



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all or a portion of its rights and obligations among separate Tranches 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 Company (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, (y) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund or
(z) the primary syndication of the Loans has not been completed as
determined by Wells Fargo or at least 90 days have elapsed since the Closing
Date; provided that the Company 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;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in
respect of a Revolving Commitment if such assignment is to a Person that is
not a Lender with a Commitment in respect of such facility, an Affiliate of
such Lender or an Approved Fund with respect to such Lender; and




     (C) the consent of the Issuing Lender and Swingline Lender (such
consent not to be unreasonably withheld or delayed) shall be required for
assignments in respect of a Revolving Commitment.




     (iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500; provided that
(A)only one (1) such fee shall be payable in respect of simultaneous assignments by
a Lender and its Approved Funds) and (B) the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Certain Persons. No such assignment shall be made
to (A) any Credit Party or any Credit Party’s Affiliates or Subsidiaries or (B) any
Defaulting Lender or any of its Subsidiaries or any Person who, upon becoming a
Lender hereunder, would constitute any of the foregoing Persons described in this
clause (B).




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



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     (vii) Certain Additional Payments. In connection with any
assignment of rights and obligations of any Defaulting Lender hereunder, no such
assignment shall be effective unless and until, in addition to the other conditions
thereto set forth herein, the parties to the assignment shall make such additional
payments to the Administrative Agent in an aggregate amount sufficient, upon
distribution thereof as appropriate (which may be outright payment, purchases by the
assignee of participations or subparticipations, or other compensating actions,
including funding, with the consent of the Company and the Administrative Agent, the
applicable pro rata share of Loans previously requested but not funded by the
Defaulting Lender, to each of which the applicable assignee and assignor hereby
irrevocably consent), to (A) pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder
(and interest accrued thereon), and (B) acquire (and fund as appropriate) its full
pro rata share of all Loans and participations in Letters of Credit and Swingline
Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing,
in the event that any assignment of rights and obligations of any Defaulting Lender
hereunder shall become effective under applicable Law without compliance with the
provisions of this paragraph, then the assignee of such interest shall be deemed to
be a Defaulting Lender for all purposes of this Agreement until such compliance
occurs.




     Subject to acceptance and recording thereof by the Administrative Agent pursuant to
paragraph (c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment and Assumption, have the rights
and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall,
to the extent of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits
of Sections 2.14 and 9.5 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.




     (c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrowers shall maintain at one of its offices in Charlotte, North Carolina
a copy of each Assignment and Assumption delivered to it and a register for the recordation
of the names and addresses of the Lenders, and the Commitments of, and principal amounts of
the Loans owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive absent manifest error,
and the Borrowers the Administrative Agent and the Lenders may treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a



124









 






Lender hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Company and any Lender, at
any reasonable time and from time to time upon reasonable prior notice; provided that a
Lender shall only be entitled to inspect its own entry in the Register and not that of any
other Lender. In addition, the Administrative Agent shall maintain on the Register
information regarding the designation and revocation of designation, of any Lender as a
Defaulting Lender.




     (d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Company or the Administrative Agent, sell participations to any Person (other
than a natural person, any Credit Party or any Credit Party’s Affiliates or Subsidiaries,
or, unless an Event of Default has occurred and is continuing, any competitor of the Company
or any of its Subsidiaries or any Affiliate of any such competitor) (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) the Company, the Administrative Agent and the
Lenders, Issuing Lender and Swingline Lender shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement.




     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or waiver that
affects such Participant. Subject to paragraph (e) of this Section, each of the Borrowers
agrees that each Participant shall be entitled to the benefits of Sections 2.14 and 2.16 to
the same extent as if it were a Lender and had acquired its interest by assignment pursuant
to paragraph (b) of this Section; provided such Participant agrees to be subject to
Sections 2.14 and 2.16 as if it were a Lender. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 9.7 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.11 as though it were a
Lender. Each Lender that sells a participation shall, acting solely for this purpose as a
non-fiduciary agent of the Company, maintain a register in the United States on which it
enters the name and address of each Participant and the principal amounts (and stated
interest) of each Participant’s interest in the Loans or other obligations under the Credit
Documents (the “Participant Register”). The entries in the Participant Register
shall be conclusive absent manifest error, and such Lender shall treat each person whose
name is recorded in the Participant register as the owner of such participation for all
purposes of this Agreement notwithstanding any notice to the contrary.




     (e) Limitations Upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Sections 2.14 and 2.16 than the applicable
Lender



125









 






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
Company’s prior written consent (such consent not to be unreasonably withheld or delayed).




     (f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such
Lender from any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.



     Section 9.7 Right of Set-off; Sharing of Payments.




     (a) If an Event of Default shall have occurred and be continuing, each Lender, the
Issuing Lender, the Swingline Lender and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by applicable
law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Lender, the Issuing Lender, the Swingline
Lender or any such Affiliate to or for the credit or the account of the Company or any other
Credit Party against any and all of the obligations of the Company or such Credit Party now
or hereafter existing under this Agreement or any other Credit Document to such Lender, the
Swingline Lender or the Issuing Lender, irrespective of whether or not such Lender, the
Swingline Lender or the Issuing Lender shall have made any demand under this Agreement or
any other Credit Document and although such obligations of the Company or such Credit Party
may be contingent or unmatured or are owed to a branch or office of such Lender, the
Swingline Lender or the Issuing Lender different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of each Lender, the Swingline Lender,
the Issuing Lender and their respective Affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender, the Swingline
Lender, the Issuing Lender or their respective Affiliates may have. Each Lender, the
Swingline Lender and the Issuing Lender agree to notify the Company and the Administrative
Agent promptly after any such setoff and application, provided that the failure to
give such notice shall not affect the validity of such setoff and application.




     (b) If any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of its Loans or
other obligations hereunder resulting in such Lender’s receiving payment of a proportion of
the aggregate amount of its Loans and accrued interest thereon or other such obligations
greater than its pro rata share thereof as provided herein, then the Lender
receiving such greater proportion shall (i) notify the Administrative Agent of such fact,
and (ii) purchase (for cash at face value) participations in the Loans and such other
obligations of the other Lenders, or make such other adjustments as shall be equitable, so
that the benefit of all such payments shall be shared by the Lenders ratably in accordance



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with the aggregate amount of principal of and accrued interest on their respective
Loans and other amounts owing them, provided that:




     (A) 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




     (B) the provisions of this paragraph shall not be construed to
apply to (x) any payment made by the Borrowers pursuant to and in accordance
with the express terms of this Agreement (including the application of funds
arising from the existence of a Defaulting Lender), (y) any payment obtained
by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in Letters of Credit to
any assignee or participant, other than to any Credit Party or any
Subsidiary thereof (as to which the provisions of this paragraph shall
apply) or (z) (1) any amounts applied by the Swingline Lender to outstanding
Swingline Loans and (2) any amounts received by the Issuing Lender and/or
Swingline Lender to secure the obligations of a Defaulting Lender to fund
risk participations hereunder.




     (c) Each Credit Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against each Credit Party rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were a direct
creditor of each Credit Party in the amount of such participation.



     Section 9.8 Table of Contents and Section Headings.



     The table of contents and the Section and subsection headings herein are intended for
convenience only and shall be ignored in construing this Agreement.



     Section 9.9 Counterparts; Effectiveness; Electronic Execution.




     (a) Counterparts; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. Except as provided in Section 4.1, this Agreement shall become effective when it
shall have been executed by the Borrowers, the Guarantors, the Lenders and the
Administrative Agent and the Administrative Agent shall have received copies hereof
(telefaxed or otherwise), and thereafter this Agreement shall be binding upon and inure to
the benefit of the Borrowers, the Guarantors, the Administrative Agent and each Lender and
their respective successors and permitted assigns. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy or email shall be effective as delivery of a
manually executed counterpart of this Agreement.




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     (b) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to
include electronic signatures or the keeping of records in electronic form, each of which
shall be of the same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be, to the
extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform Electronic Transactions
Act.



     Section 9.10 Severability.



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



     Section 9.11 Integration.



     This Agreement and the other Credit Documents represent the agreement of the Company, the
other Credit Parties, the Administrative Agent and the Lenders with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties by the
Administrative Agent, the Company, the other Credit Parties, or any Lender relative to the subject
matter hereof not expressly set forth or referred to herein or therein.



     Section 9.12 Governing Law.



     This Agreement and the other Loan Documents any claims, controversy or dispute arising out of
or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as
expressly set forth therein) shall be governed by, and construed in accordance with, the laws of
the State of New York.



     Section 9.13 Consent to Jurisdiction; Service of Process and Venue.




     (a) Consent to Jurisdiction. The Company and each other Credit Party
irrevocably and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the courts of the State of New York and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this Agreement or any
other Credit Document, or for recognition or enforcement of any judgment, and each of the
parties hereto irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York sitting State court or, to
the fullest extent permitted by applicable law, in 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 in any other Credit



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Document shall affect any right that the Administrative Agent, any Lender, the Swingline
Lender or the Issuing Lender may otherwise have to bring any action or proceeding relating
to this Agreement or any other Credit Document against the Company or any other Credit Party
or its properties in the courts of any jurisdiction.




     (b) Service of Process. Each party hereto irrevocably consents to service of
process in the manner provided for notices in Section 9.2. Nothing in this Agreement will
affect the right of any party hereto to serve process in any other manner permitted by
applicable law.




     (c) Venue. The Company and each other Credit Party irrevocably and
unconditionally waives, to the fullest extent permitted by applicable law, any objection
that it may now or hereafter have to the laying of venue of any action or proceeding arising
out of or relating to this Agreement or any other Credit Document in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.



     Section 9.14 Confidentiality.



     Each of the Administrative Agent, the Lenders, the Swingline Lender and the Issuing Lender
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, advisors and other representatives (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies hereunder, under any
other Credit Document or Bank Product or any action or proceeding relating to this Agreement, any
other Credit Document or Bank Product or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of this Section, to
any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) (i) any actual or prospective party (or its
partners, directors, officers, employees, managers, administrators, trustees, agents, advisors or
other representatives) to any swap or derivative or similar transaction under which payments are to
be made by reference to the Company and its obligations, this Agreement or payments hereunder, (ii)
an investor or prospective investor in securities issued by an Approved Fund that also agrees that
Information shall be used solely for the purpose of evaluating an investment in such securities
issued by the Approved Fund, (iii) a trustee, collateral manager, servicer, backup servicer,
noteholder or secured party in connection with the administration, servicing and reporting on the
assets serving as collateral for securities issued by an Approved Fund, or (iv) a nationally
recognized rating agency that requires access to information regarding the Credit Parties, the
Loans and Credit Documents in connection with ratings issued in respect
of securities issued by an Approved Fund (in each case, it being understood that the Persons
to



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whom such disclosure is made will be informed of the confidential nature of such information and
instructed to keep such information confidential), (h) with the consent of the Company or (i) to
the extent such Information (x) becomes publicly available other than as a result of a breach of
this Section or (y) becomes available to the Administrative Agent, any Lender, the Swingline
Lender, the Issuing Lender or any of their respective Affiliates on a nonconfidential basis from a
source other than a Credit Party.




     For purposes of this Section, “Information” shall mean all information received from
any Credit Party or any of its Subsidiaries relating to any Credit Party or any of its Subsidiaries
or any of their respective businesses, other than any such information that is available to the
Administrative Agent, any Lender, the Swingline Lender or the Issuing Lender on a nonconfidential
basis prior to disclosure by any Credit Party or any of its Subsidiaries; provided that, in
the case of information received from any Credit Party or any of its Subsidiaries after the date
hereof, such information is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.



     Section 9.15 Acknowledgments.



     The Company and the other Credit Parties each hereby acknowledges that:




     (a) it has been advised by counsel in the negotiation, execution and delivery of each
Credit Document;




     (b) neither the Administrative Agent nor any Lender has any fiduciary relationship with
or duty to the Company or any other Credit Party arising out of or in connection with this
Agreement and the relationship between the Administrative Agent and the Lenders, on one
hand, and the Company and the other Credit Parties, on the other hand, in connection
herewith is solely that of creditor and debtor; and




     (c) no joint venture exists among the Lenders and the Administrative Agent or among the
Company, the Administrative Agent or the other Credit Parties and the Lenders.



     Section 9.16 Waivers of Jury Trial; Waiver of Consequential Damages.



     EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER



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PERSON WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.




     Section 9.17 Patriot Act Notice.



     Each Lender and the Administrative Agent (for itself and not on behalf of any other party)
hereby notifies the Borrowers that, pursuant to the requirements of the Patriot Act, it is required
to obtain, verify and record information that identifies the Borrowers and the other Credit
Parties, which information includes the name and address of the Borrowers and the other Credit
Parties and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrowers and the other Credit Parties in accordance with the Patriot
Act.



     Section 9.18 Resolution of Drafting Ambiguities.



     Each Credit Party acknowledges and agrees that it was represented by counsel in connection
with the execution and delivery of this Agreement and the other Credit Documents to which it is a
party, that it and its counsel reviewed and participated in the preparation and negotiation hereof
and thereof and that any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation hereof or thereof.



     Section 9.19 Subordination of Intercompany Debt.



     Each Credit Party agrees that all intercompany Indebtedness among Credit Parties (the
“Intercompany Debt”) is subordinated in right of payment, to the prior payment in full of
all Credit Party Obligations. Notwithstanding any provision of this Credit Agreement to the
contrary, provided that no Event of Default has occurred and is continuing, Credit Parties
may make and receive payments with respect to the Intercompany Debt to the extent otherwise
permitted by this Credit Agreement; provided that in the event of and during the
continuation of any Event of Default, no payment shall be made by or on behalf of any Credit Party
on account of any Intercompany Debt. In the event that any Credit Party receives any payment of
any Intercompany Debt at a time when such payment is prohibited by this Section, such payment shall
be held by such Credit Party, in trust for the benefit of, and shall be paid forthwith over and
delivered, upon written request, to, the Administrative Agent.



     Section 9.20 Continuing Agreement.



     This Credit Agreement shall be a continuing agreement and shall remain in full force and
effect until all Credit Party Obligations (other than those obligations that expressly survive the
termination of this Credit Agreement) have been paid in full and all Commitments and Letters of
Credit have been terminated. Upon termination, the Credit Parties shall have no further
obligations (other than those obligations that expressly survive the termination of this Credit Agreement)
under



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the Credit Documents and the Administrative Agent shall, at the request and expense of the
Borrowers, deliver all the Collateral in its possession to the Company and release all Liens on the
Collateral; provided that should any payment, in whole or in part, of the Credit Party
Obligations be rescinded or otherwise required to be restored or returned by the Administrative
Agent or any Lender, whether as a result of any proceedings in bankruptcy or reorganization or
otherwise, then the Credit Documents shall automatically be reinstated and all Liens of the
Administrative Agent shall reattach to the Collateral and all amounts required to be restored or
returned and all costs and expenses incurred by the Administrative Agent or any Lender in
connection therewith shall be deemed included as part of the Credit Party Obligations.




     Section 9.21 [Reserved].



     Section 9.22 Press Releases and Related Matters.



     The Credit Parties and their Affiliates agree that they will not in the future issue any press
releases or other public disclosure using the name of Administrative Agent or any Lender or their
respective Affiliates or referring to this Agreement or any of the Credit Documents without the
prior written consent of such Person, unless (and only to the extent that) the Credit Parties or
such Affiliate is required to do so under law (including any regulatory disclosures required by any
Governmental Authority) and then, in any event, the Credit Parties or such Affiliate will consult
with such Person before issuing such press release or other public disclosure. The Credit Parties
consent to the publication by Administrative Agent or any Lender of customary advertising material
relating to the Transactions using the name, product photographs, logo or trademark of the Credit
Parties.



     Section 9.23 Appointment of Company.



     Each of the Subsidiary Borrowers and the Guarantors hereby appoints the Company to act as its
agent for all purposes under this Agreement and agrees that (a) the Company may execute such
documents on behalf of such Subsidiary Borrower or Guarantor, as applicable, as the Company deems
appropriate in its sole discretion and each Guarantor and each Subsidiary Borrower shall be
obligated by all of the terms of any such document executed on its behalf, (b) any notice or
communication delivered by the Administrative Agent or the Lender to the Company shall be deemed
delivered to each Subsidiary Borrower and each Guarantor and (c) the Administrative Agent or the
Lenders may accept, and be permitted to rely on, any document, instrument or agreement executed by
the Company on behalf of each Guarantor and each Subsidiary Borrower.



     Section 9.24 No Advisory or Fiduciary Responsibility.



     In connection with all aspects of each Transaction, each of the Credit Parties acknowledges
and agrees, and acknowledges its Affiliates’ understanding, that: (a) the credit facility provided
for hereunder and any related arranging or other services in connection therewith (including in
connection with any amendment, waiver or other modification hereof or of any other Credit Document)
are an arm’s-length commercial transaction between the Credit
Parties and their Affiliates, on the one hand, and the Administrative Agent and WFS, on the



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other hand, and the Credit Parties are capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the Transactions and by the other Credit Documents
(including any amendment, waiver or other modification hereof or thereof); (b) in connection with
the process leading to such transaction, the Administrative Agent and WFS each is and has been
acting solely as a principal and is not the financial advisor, agent or fiduciary, for any Credit
Party or any of their Affiliates, stockholders, creditors or employees or any other Person; (c)
neither the Administrative Agent nor WFS has assumed or will assume an advisory, agency or
fiduciary responsibility in favor of any Credit Party with respect to any of the Transactions or
the process leading thereto, including with respect to any amendment, waiver or other modification
hereof or of any other Credit Document (irrespective of whether the Administrative Agent or WFS has
advised or is currently advising any Credit Party or any of its Affiliates on other matters) and
neither the Administrative Agent nor WFS has any obligation to any Credit Party or any of their
Affiliates with respect to the Transactions except those obligations expressly set forth herein and
in the other Credit Documents; (d) the Administrative Agent and WFS and their respective Affiliates
may be engaged in a broad range of transactions that involve interests that differ from those of
the Credit Parties and their Affiliates, and neither the Administrative Agent nor WFS has any
obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (e) the Administrative Agent and WFS have not provided and will not provide any
legal, accounting, regulatory or tax advice with respect to any of the Transactions (including any
amendment, waiver or other modification hereof or of any other Credit Document) and the Credit
Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent it
has deemed appropriate. Each of the Credit Parties hereby waives and releases, to the fullest
extent permitted by law, any claims that it may have against the Administrative Agent or WFS with
respect to any breach or alleged breach of agency or fiduciary duty.




     Section 9.25 Responsible Officers and Authorized Officers.



     The Administrative Agent and each of the Lenders are authorized to rely upon the continuing
authority of the Responsible Officers and the Authorized Officers with respect to all matters
pertaining to the Credit Documents including, but not limited to, the selection of interest rates,
the submission of requests for Extensions of Credit and certificates with regard thereto. Such
authorization may be changed only upon written notice to Administrative Agent accompanied by (a) an
updated Schedule 3.29 and (b) evidence, reasonably satisfactory to Administrative Agent, of
the authority of the Person giving such notice and such notice shall be effective not sooner than
five (5) Business Days following receipt thereof by Administrative Agent (or such earlier time as
agreed to by the Administrative Agent).



     Section 9.26 Concerning Joint and Several Obligations of the Borrowers.




     (a) Each of the Borrowers is accepting joint and several liability hereunder in
consideration of the financial accommodation to be provided by the Lenders under this Credit
Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in
consideration of the undertakings of each of the Borrowers to accept joint and several
liability for the obligations of each of them.



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     (b) Each of the Borrowers jointly and severally hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and several liability with
the other Borrowers with respect to the payment and performance of all of the Credit Party
Obligations, it being the intention of the parties hereto that all the Credit Party
Obligations shall be the joint and several obligations of each of the Borrowers without
preferences or distinction among them.




     (c) If and to the extent that any of the Borrowers shall fail to make any payment with
respect to any of the Credit Party Obligations as and when due or to perform any of the
Credit Party Obligations in accordance with the terms thereof, then in each such event, the
other Borrowers will make such payment with respect to, or perform, such Credit Party
Obligation.




     (d) The obligations of each Borrower under the provisions of this Section constitute
full recourse obligations of such Borrower, enforceable against it to the full extent of its
properties and assets, irrespective of the validity, regularity or enforceability of this
Credit Agreement or any other circumstances whatsoever.




     (e) Except as otherwise expressly provided herein, each Borrower hereby waives, to the
extent permitted by law, notice of acceptance of its joint and several liability, notice of
any Loan made under this Credit Agreement, notice of occurrence of any Event of Default, or
of any demand for any payment under this Credit Agreement, notice of any action at any time
taken or omitted by any Lender under or in respect of any of the Credit Party Obligations,
any requirement of diligence and, generally, all demands, notices and other formalities of
every kind in connection with this Credit Agreement. Each Borrower hereby assents to, and
waives notice of, to the extent permitted by law, any extension or postponement of the time
for the payment of any of the Credit Party Obligations, the acceptance of any partial
payment thereon, any waiver, consent or other action or acquiescence by any Lender at any
time or times in respect of any default by any Borrower in the performance or satisfaction
of any term, covenant, condition or provision of this Credit Agreement, any and all other
indulgences whatsoever by any Lender in respect of any of the Credit Party Obligations, and
the taking, addition, substitution or release, in whole or in part, at any time or times, of
any security for any of the Credit Party Obligations or in part, at any time or times, of
any security for any of the Credit Party Obligations or the addition, substitution or
release, in whole or in part, of any Borrower. Without limiting the generality of the
foregoing, each Borrower assents to any other action or delay in acting or failure to act on
the part of any Lender, including, without limitation, any failure strictly or diligently to
assert any right or to pursue any remedy or to comply fully with the applicable laws or
regulations thereunder which might, but for the provisions of this Section, afford grounds
for terminating, discharging or relieving such Borrower, in whole or in part, from any of
its obligations under this Section, it being the intention of each Borrower that, so long as
any of the Credit Party Obligations remain unsatisfied, the obligations of such Borrower
under this Section shall not be discharged except by performance or payment and then only to
the extent of such performance or payment. The obligations of each Borrower under this
Section shall not
be diminished or rendered unenforceable by any winding up, reorganization,



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arrangement, liquidation, reconstruction or similar proceeding with respect to any Borrower or any
Lender. The joint and several liability of the Borrowers hereunder shall continue in full
force and effect notwithstanding any absorption, merger, amalgamation or any other change
whatsoever in the name, membership, constitution or place of formation of any Borrower or
any Lender.




     (f) The provisions of this Section are made for the benefit of the Lenders and their
respective successors and assigns, and may be enforced by any such Person from time to time
against any of the Borrowers as often as occasion therefor may arise and without requirement
on the part of any Lender first to marshal any of its claims or to exercise any of its
rights against the other Borrower or to exhaust any remedies available to it against the
other Borrower or to resort to any other source or means of obtaining payment of any of the
Credit Party Obligations or to elect any other remedy. The provisions of this Section shall
remain in effect until all the Credit Party Obligations shall have been paid in full or
otherwise fully satisfied. If at any time, any payment, or any part thereof, made in
respect of any of the Credit Party Obligations, is rescinded or must otherwise be restored
or returned by any Lender upon the insolvency, bankruptcy or reorganization of any of the
Borrowers, or otherwise, the provisions of this Section will forthwith be reinstated in
effect, as though such payment had not been made.




     (g) Notwithstanding any provision to the contrary contained herein or in any other of
the Credit Documents, to the extent the joint obligations of a Borrower shall be adjudicated
to be invalid or unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or transfers) then the
obligations of each Borrower hereunder shall be limited to the maximum amount that is
permissible under applicable law (whether federal or state and including, without
limitation, the Bankruptcy Code), after taking into account, among other things, such
Borrower’s right of contribution and indemnification from each other Credit Party under
applicable law.




     (h) The Borrowers hereby agree, as among themselves, that if any Borrower shall become
an Excess Funding Borrower (as defined below), each other Borrower shall, on demand of such
Excess Funding Borrower (but subject to the next sentence hereof and to subsection (B)
below), pay to such Excess Funding Borrower an amount equal to such Borrower’s Pro Rata
Share (as defined below and determined, for this purpose, without reference to the
properties, assets, liabilities and debts of such Excess Funding Borrower) of such Excess
Payment (as defined below). The payment obligation of any Borrower to any Excess Funding
Borrower under this Section shall be subordinate and subject in right of payment to the
prior payment in full of the Credit Party Obligations of such Borrower under the other
provisions of this Credit Agreement, and such Excess Funding Borrower shall not exercise any
right or remedy with respect to such excess until payment and satisfaction in full of all of
such Credit Party Obligations. For purposes hereof, (i) “Excess Funding Borrower”
shall mean, in respect of any Credit Party Obligations arising under the other provisions of
this Credit Agreement (hereafter, the “Joint Obligations”), a Borrower that has paid
an amount in excess of its Pro Rata Share of the
Joint Obligations; (ii) “Excess Payment” shall mean, in respect of any Joint Obligations,



135









 






the amount paid by an Excess Funding Borrower in excess of its Pro Rata Share
of such Joint Obligations; and (iii) “Pro Rata Share”, for the purposes of this
Section, shall mean, for any Borrower, the ratio (expressed as a percentage) of (A) the
amount by which the aggregate present fair salable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Borrower (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such
Borrower hereunder) to (B) the amount by which the aggregate present fair salable value of
all assets and other properties of such Borrower and the other Borrower exceeds the amount
of all of the debts and liabilities (including contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of such Borrower and the other
Borrower hereunder) of such Borrower and the other Borrower, all as of the Closing Date (if
any Borrower becomes a party hereto subsequent to the Closing Date, then for the purposes of
this Section such subsequent Borrower shall be deemed to have been a Borrower as of the
Closing Date and the information pertaining to, and only pertaining to, such Borrower as of
the date such Borrower became a Borrower shall be deemed true as of the Closing Date).



ARTICLE X




GUARANTY



     Section 10.1 The Guaranty.



     In order to induce the Lenders to enter into this Agreement and any Bank Product Provider to
enter into any Bank Product and to extend credit hereunder and thereunder and in recognition of the
direct benefits to be received by the Guarantors from the Extensions of Credit hereunder and any
Bank Product, each of the Guarantors hereby agrees with the Administrative Agent, the Lenders and
the Bank Product Providers as follows: each Guarantor hereby unconditionally and irrevocably
jointly and severally guarantees as primary obligor and not merely as surety the full and prompt
payment when due, whether upon maturity, by acceleration or otherwise, of any and all Credit Party
Obligations. If any or all of the indebtedness becomes due and payable hereunder or under any Bank
Product, each Guarantor unconditionally promises to pay such indebtedness to the Administrative
Agent, the Lenders or the Bank Product Providers, on demand, together with any and all reasonable
expenses which may be incurred by the Administrative Agent or the Lenders in collecting any of the
Credit Party Obligations to the extent reimbursable under Section 9.5. The Guaranty set forth in
this Article X is a guaranty of timely payment and not of collection. The word
“indebtedness” is used in this Article X in its most comprehensive sense and includes any
and all advances, debts, obligations and liabilities of the Borrowers, including specifically all
Credit Party Obligations, arising in connection with this Agreement, the other Credit Documents or
any Bank Product, in each case, heretofore, now, or hereafter made, incurred or created, whether
voluntarily or involuntarily, absolute or contingent, liquidated or unliquidated, determined or
undetermined, whether or not such indebtedness is from time to time reduced, or extinguished and
thereafter increased or incurred, whether the Borrowers may be liable individually or jointly with
others, whether or not recovery upon such



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indebtedness may be or hereafter become barred by any statute of limitations, and whether or
not such indebtedness may be or hereafter become otherwise unenforceable.




     Notwithstanding any provision to the contrary contained herein or in any other of the Credit
Documents, to the extent the obligations of a Guarantor shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any applicable state or
federal law relating to fraudulent conveyances or transfers) then the obligations of each such
Guarantor hereunder shall be limited to the maximum amount that is permissible under applicable law
(whether federal or state and including, without limitation, the Bankruptcy Code).



     Section 10.2 Bankruptcy.



     Additionally, each of the Guarantors unconditionally and irrevocably guarantees jointly and
severally the payment of any and all Credit Party Obligations to the Lenders and any Bank Product
Provider whether or not due or payable by the Borrowers upon the occurrence of any Bankruptcy Event
and unconditionally promises to pay such Credit Party Obligations to the Administrative Agent for
the account of the Lenders and to any such Bank Product Provider, on demand, in lawful money of the
United States. Each of the Guarantors further agrees that to the extent that a Borrower or a
Guarantor shall make a payment or a transfer of an interest in any property to the Administrative
Agent, any Lender or any Bank Product Provider, which payment or transfer or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, or otherwise is avoided,
and/or required to be repaid to the Borrowers or a Guarantor, the estate of a Borrower or a
Guarantor, a trustee, receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then to the extent of such avoidance or repayment, the obligation or
part thereof intended to be satisfied shall be revived and continued in full force and effect as if
said payment had not been made.



     Section 10.3 Nature of Liability.



     The liability of each Guarantor hereunder is exclusive and independent of any security for or
other guaranty of the Credit Party Obligations whether executed by any such Guarantor, any other
guarantor or by any other party, and no Guarantor’s liability hereunder shall be affected or
impaired by (a) any direction as to application of payment by the Borrowers or by any other party,
or (b) any other continuing or other guaranty, undertaking or maximum liability of a guarantor or
of any other party as to the Credit Party Obligations, or (c) any payment on or in reduction of any
such other guaranty or undertaking, or (d) any dissolution, termination or increase, decrease or
change in personnel by the Borrowers, or (e) any payment made to the Administrative Agent, the
Lenders or any Bank Product Provider on the Credit Party Obligations which the Administrative
Agent, such Lenders or such Bank Product Provider repay the Borrowers pursuant to court order in
any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each
of the Guarantors waives any right to the deferral or modification of its obligations hereunder by
reason of any such proceeding.



137









 





     Section 10.4 Independent Obligation.



     The obligations of each Guarantor hereunder are independent of the obligations of any other
Guarantor or the Borrowers, and a separate action or actions may be brought and prosecuted against
each Guarantor whether or not action is brought against any other Guarantor or the Borrowers and
whether or not any other Guarantor or any other Borrower is joined in any such action or actions.



     Section 10.5 Authorization.



     Each of the Guarantors authorizes the Administrative Agent, each Lender and each Bank Product
Provider without notice or demand (except as shall be required by applicable statute and cannot be
waived), and without affecting or impairing its liability hereunder, from time to time to (a)
renew, compromise, extend, increase, accelerate or otherwise change the time for payment of, or
otherwise change the terms of the Credit Party Obligations or any part thereof in accordance with
this Agreement and any Bank Product, as applicable, including any increase or decrease of the rate
of interest thereon, (b) take and hold security from any Guarantor or any other party for the
payment of this Guaranty or the Credit Party Obligations and exchange, enforce waive and release
any such security, (c) apply such security and direct the order or manner of sale thereof as the
Administrative Agent and the Lenders in their discretion may determine, (d) release or substitute
any one or more endorsers, Guarantors, the Borrowers or other obligors and (e) to the extent
otherwise permitted herein, release or substitute any Collateral.



     Section 10.6 Reliance.



     It is not necessary for the Administrative Agent, the Lenders or any Bank Product Provider to
inquire into the capacity or powers of the Borrowers or the officers, directors, members, partners
or agents acting or purporting to act on its behalf, and any Credit Party Obligations made or
created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.



     Section 10.7 Waiver.




     (a) Each of the Guarantors waives any right (except as shall be required by applicable
statute and cannot be waived) to require the Administrative Agent, any Lender or any Bank
Product Provider to (i) proceed against any Borrower, any other guarantor or any other
party, (ii) proceed against or exhaust any security held from the Borrowers, any other
guarantor or any other party, or (iii) pursue any other remedy in the Administrative
Agent’s, any Lender’s or any Bank Product Provider’s power whatsoever. Each of the
Guarantors waives any defense based on or arising out of any defense of the Borrowers, any
other guarantor or any other party other than payment in full of the Credit Party
Obligations (other than contingent indemnification obligations), including, without
limitation, any defense based on or arising out of the disability of any Borrower, any other
guarantor or any other party, or the unenforceability of the Credit Party Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of the
Borrowers other than payment in full of the Credit Party Obligations. The Administrative



138









 






Agent may, at its election, foreclose on any security held by the Administrative Agent
or a Lender by one or more judicial or nonjudicial sales, whether or not every aspect of any
such sale is commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Administrative Agent or any Lender may have
against the Borrowers or any other party, or any security, without affecting or impairing in
any way the liability of any Guarantor hereunder except to the extent the Credit Party
Obligations have been paid in full and the Commitments have been terminated. Each of the
Guarantors waives any defense arising out of any such election by the Administrative Agent
or any of the Lenders, even though such election operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of the Guarantors against any
Borrower or any other party or any security.




     (b) Each of the Guarantors waives all presentments, demands for performance, protests
and notices, including, without limitation, notices of nonperformance, notice of protest,
notices of dishonor, notices of acceptance of this Guaranty, and notices of the existence,
creation or incurring of new or additional Credit Party Obligations. Each Guarantor assumes
all responsibility for being and keeping itself informed of the Borrowers’ financial
condition and assets, and of all other circumstances bearing upon the risk of nonpayment of
the Credit Party Obligations and the nature, scope and extent of the risks which such
Guarantor assumes and incurs hereunder, and agrees that neither the Administrative Agent nor
any Lender shall have any duty to advise such Guarantor of information known to it regarding
such circumstances or risks.




     (c) Each of the Guarantors hereby agrees it will not exercise any rights of subrogation
which it may at any time otherwise have as a result of this Guaranty (whether contractual,
under Section 509 of the U.S. Bankruptcy Code, or otherwise) to the claims of the Lenders or
any Bank Product Provider against the any Borrower or any other guarantor of the Credit
Party Obligations owing to the Lenders or such Bank Product Provider (collectively, the
“Other Parties”) and all contractual, statutory or common law rights of
reimbursement, contribution or indemnity from any Other Party which it may at any time
otherwise have as a result of this Guaranty until such time as the Credit Party Obligations
shall have been paid in full and the Commitments have been terminated. Each of the
Guarantors hereby further agrees not to exercise any right to enforce any other remedy which
the Administrative Agent, the Lenders or any Bank Product Provider now have or may hereafter
have against any Other Party, any endorser or any other guarantor of all or any part of the
Credit Party Obligations and any benefit of, and any right to participate in, any security
or collateral given to or for the benefit of the Lenders and/or the Bank Product Providers
to secure payment of the Credit Party Obligations until such time as the Credit Party
Obligations (other than contingent indemnification obligations) shall have been paid in full
and the Commitments have been terminated.



     Section 10.8 Limitation on Enforcement.



     The Lenders and the Bank Product Providers agree that this Guaranty may be enforced only by
the action of the Administrative Agent acting upon the instructions of the Required Lenders or such
Bank Product Provider (only with respect to obligations under the applicable



139









 




Bank Product) and that no Lender or Bank Product Provider shall have any right individually to
seek to enforce or to enforce this Guaranty, it being understood and agreed that such rights and
remedies may be exercised by the Administrative Agent for the benefit of the Lenders under the
terms of this Agreement and for the benefit of any Bank Product Provider under any Bank Product.




     Section 10.9 Confirmation of Payment.



     The Administrative Agent and the Lenders will, upon request after payment of the Credit Party
Obligations which are the subject of this Guaranty and termination of the Commitments relating
thereto, confirm to the Borrowers, the Guarantors or any other Person that such indebtedness and
obligations have been paid and the Commitments relating thereto terminated, subject to the
provisions of Section 10.2.



[Signature Pages Follow]




140









 





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



	 	 	 	 	 
	COMPANY: 	PRIMO WATER CORPORATION,

a Delaware corporation

 	 
	 	By:	
/s/ Billy D. Prim 	(SEAL) 
	 	 	Name:  	Billy
D. Prim 	 
	 	 	Title:  	President 	 
	 
	 

	SUBSIDIARY BORROWERS: 	PRIMO PRODUCTS, LLC,

a North Carolina limited liability company

 	 
	 	By:	Primo Water Corporation, Manager
 	 
	 

	 	 	 
	 	By:	
/s/ Billy D. Prim 	(SEAL) 
	 	 	Name:  	Billy
D. Prim 	 
	 	 	Title:  	President 	 
	 
	 

	 	PRIMO DIRECT, LLC,

a North Carolina limited liability company

 	 
	 	By:	Primo Water Corporation, Manager
 	 
	 

	 	 	 
	 	By:	
/s/ Billy D. Prim 	(SEAL) 
	 	 	Name:  	Billy
D. Prim 	 
	 	 	Title:  	President 	 
	 
	 

	 	PRIMO REFILL, LLC,

a North Carolina limited liability company

 	 
	 	By:	Primo Water Corporation, Manager
 	 
	 

	 	 	 
	 	By:	
/s/ Billy D. Prim 	(SEAL) 
	 	 	Name:  	Billy
D. Prim 	 
	 	 	Title:  	President 	 
	 
	 

	 	PRIMO ICE, LLC,

a North Carolina limited liability company

 	 
	 	By:	Primo Water Corporation, Manager
 	 
	 

	 	 	 
	 	By:	
/s/ Billy D. Prim 	(SEAL) 
	 	 	Name:  	Billy
D. Prim 	 
	 	 	Title:  	President 	 
	 
	 

	GUARANTORS:  	None.	 	 



















 








	 	 	 	 	 
	ADMINISTRATIVE AGENT: 	 WELLS FARGO BANK, NATIONAL


ASSOCIATION, as a Lender and as
 Administrative Agent
on behalf of the Lenders

 	 
	 	By:  	/s/
James R. Myers 	 
	 	 	Name: James R. Myers	 	 
	 	 	Title:   Senior Vice
President	 	 
	 
















 








	 	 	 	 	 
	LENDERS: 	BANK OF AMERICA, N.A.,

as a Lender
 	 
	 	By:  	/s/
J. Thomas Johnson, Jr. 	 
	 	 	Name: J. Thomas Johnson, Jr.	 	 
	 	 	Title:   Senior Vice
President	 	 
	 
















 








	 	 	 	 	 
	LENDERS: 	BRANCH BANKING & TRUST
COMPANY,

as a Lender
 	 
	 	By:  	/s/
Benjamin S. Staton II 	 
	 	 	Name: Benjamin S. Staton II	 	 
	 	 	Title:   Vice
President