exv10w5






Exhibit 10.5




Execution Copy




$24,000,000




REVOLVING CREDIT, TERM LOAN



AND



SECURITY AGREEMENT



AMONG



PNC BANK, NATIONAL ASSOCIATION

AS LENDER AND AS AGENT



AND



NYTEX FDF ACQUISITION, INC.,



(AND UPON CONSUMMATION OF ACQUISITION PURSUANT TO THE ACQUISITION AGREEMENT)



FRANCIS OAKS, L.L.C.,



AND



FRANCIS’ DRILLING FLUIDS, LTD.



AS BORROWERS



NOVEMBER 23, 2010






Francis-Revolving Credit, Term Loan and Security Agreement






 









 






Execution Copy








TABLE OF CONTENTS




	 	 	 	 	 

	I DEFINITIONS
	 	 	1	 
	1.1. Accounting Terms
	 	 	1	 
	1.2. General Terms
	 	 	1	 
	1.3. Uniform Commercial Code Terms
	 	 	24	 
	1.4. Certain Matters of Construction
	 	 	24	 
	 
	 	 	 	 
	II ADVANCES, PAYMENTS
	 	 	25	 
	2.1. Revolving Advances
	 	 	25	 
	2.2. Procedure for Revolving Advances Borrowing
	 	 	26	 
	2.3. Disbursement of Advance Proceeds
	 	 	28	 
	2.4. Term Loan
	 	 	29	 
	2.5. Maximum Advances
	 	 	29	 
	2.6. Repayment of Advances
	 	 	29	 
	2.7. Repayment of Excess Advances
	 	 	30	 
	2.8. Statement of Account
	 	 	30	 
	2.9. Letters of Credit
	 	 	30	 
	2.10. Issuance of Letters of Credit
	 	 	31	 
	2.11. Requirements For Issuance of Letters of Credit
	 	 	31	 
	2.12. Disbursements, Reimbursement
	 	 	32	 
	2.13. Repayment of Participation Advances
	 	 	33	 
	2.14. Documentation
	 	 	33	 
	2.15. Determination to Honor Drawing Request
	 	 	34	 
	2.16. Nature of Participation and Reimbursement Obligations
	 	 	34	 
	2.17. Indemnity
	 	 	35	 
	2.18. Liability for Acts and Omissions
	 	 	36	 
	2.19. Additional Payments
	 	 	37	 
	2.20. Manner of Borrowing and Payment
	 	 	37	 
	2.21. Mandatory Prepayments
	 	 	39	 
	2.22. Use of Proceeds
	 	 	39	 
	2.23. Defaulting Lender
	 	 	40	 
	 
	 	 	 	 
	III INTEREST AND FEES
	 	 	41	 
	3.1. Interest
	 	 	41	 
	3.2. Letter of Credit Fees
	 	 	41	 
	3.3. Closing Fee and Facility Fee
	 	 	42	 
	3.4. Collateral Management Fee, Collateral Examination Fee and Fee
Letter
	 	 	42	 
	3.5. Computation of Interest and Fees
	 	 	43	 
	3.6. Maximum Charges
	 	 	43	 
	3.7. Increased Costs
	 	 	43	 
	3.8. Basis For Determining Interest Rate Inadequate or Unfair
	 	 	44	 
	3.9. Capital Adequacy
	 	 	45	 
	3.10. Gross Up for Taxes
	 	 	45	 
	3.11. Withholding Tax Exemption
	 	 	46	 
	 
	 	 	 	 
	IV COLLATERAL: GENERAL TERMS
	 	 	47	 
	4.1. Security Interest in the Collateral
	 	 	47	 
	4.2. Perfection of Security Interest
	 	 	47	 






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	4.3. Disposition of Collateral
	 	 	47	 
	4.4. Preservation of Collateral
	 	 	48	 
	4.5. Ownership of Collateral
	 	 	48	 
	4.6. Defense of Agent’s and Lenders’ Interests
	 	 	49	 
	4.7. Books and Records
	 	 	49	 
	4.8. Financial Disclosure
	 	 	49	 
	4.9. Compliance with Laws
	 	 	50	 
	4.10. Inspection of Premises
	 	 	50	 
	4.11. Insurance
	 	 	50	 
	4.12. Failure to Pay Insurance
	 	 	51	 
	4.13. Payment of Taxes
	 	 	51	 
	4.14. Payment of Leasehold Obligations
	 	 	51	 
	4.15. Receivables
	 	 	52	 
	4.16. Inventory
	 	 	54	 
	4.17. Maintenance of Equipment
	 	 	55	 
	4.18. Exculpation of Liability
	 	 	55	 
	4.19. Environmental Matters
	 	 	55	 
	4.20. Financing Statements
	 	 	57	 
	4.21. Rolling Stock and other Vehicles
	 	 	57	 
	 
	 	 	 	 
	V REPRESENTATIONS AND WARRANTIES
	 	 	57	 
	5.1. Authority
	 	 	57	 
	5.2. Formation and Qualification
	 	 	58	 
	5.3. Survival of Representations and Warranties
	 	 	58	 
	5.4. Tax Returns
	 	 	58	 
	5.5. Financial Statements
	 	 	59	 
	5.6. Entity Names
	 	 	59	 
	5.7. O.S.H.A. and Environmental Compliance
	 	 	60	 
	5.8. Solvency; No Litigation, Violation, Indebtedness or Default

	 	 	60	 
	5.9. Patents, Trademarks, Copyrights and Licenses
	 	 	61	 
	5.10. Licenses and Permits
	 	 	62	 
	5.11. Default of Indebtedness
	 	 	62	 
	5.12. No Default
	 	 	62	 
	5.13. No Burdensome Restrictions
	 	 	62	 
	5.14. No Labor Disputes
	 	 	62	 
	5.15. Margin Regulations
	 	 	62	 
	5.16. Investment Company Act
	 	 	63	 
	5.17. Disclosure
	 	 	63	 
	5.18. Delivery of Acquisition Agreement and Subordinated Loan
Documentation
	 	 	63	 
	5.19. Swaps
	 	 	63	 
	5.20. Conflicting Agreements
	 	 	63	 
	5.21. Application of Certain Laws and Regulations
	 	 	63	 
	5.22. Business and Property of Borrowers
	 	 	63	 
	5.23. Section 20 Subsidiaries
	 	 	64	 
	5.24. Anti-Terrorism Laws
	 	 	64	 
	5.25. Trading with the Enemy
	 	 	65	 
	5.26. Federal Securities Laws
	 	 	65	 






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	VI AFFIRMATIVE COVENANTS
	 	 	65	 
	6.1. Payment of Fees
	 	 	65	 
	6.2. Conduct of Business and Maintenance of Existence and Assets

	 	 	65	 
	6.3. Violations
	 	 	65	 
	6.4. Government Receivables
	 	 	65	 
	6.5. Financial Covenants
	 	 	65	 
	6.6. Execution of Supplemental Instruments
	 	 	66	 
	6.7. Payment of Indebtedness
	 	 	66	 
	6.8. Standards of Financial Statements
	 	 	66	 
	6.9. Federal Securities Laws
	 	 	66	 
	6.10. Exercise of Rights
	 	 	66	 
	6.11. Defaults under the Acquisition or Subordinated Obligations
Documents
	 	 	66	 
	6.12. Post-Closing Obligations
	 	 	66	 
	6.13. Nature of Business
	 	 	67	 
	 
	 	 	 	 
	VII NEGATIVE COVENANTS
	 	 	67	 
	7.1. Merger, Consolidation, Acquisition and Sale of Assets
	 	 	67	 
	7.2. Creation of Liens
	 	 	67	 
	7.3. Guarantees
	 	 	67	 
	7.4. Investments
	 	 	67	 
	7.5. Loans
	 	 	67	 
	7.6. Capital Expenditures
	 	 	67	 
	7.7. Distributions
	 	 	68	 
	7.8. Indebtedness
	 	 	68	 
	7.9. Nature of Business
	 	 	69	 
	7.10. Transactions with Affiliates
	 	 	69	 
	7.11. Leases
	 	 	69	 
	7.12. Subsidiaries
	 	 	69	 
	7.13. Fiscal Year and Accounting Changes
	 	 	69	 
	7.14. Pledge of Credit
	 	 	69	 
	7.15. Amendment of Certificate of Formation, Operating Agreement

	 	 	69	 
	7.16. Compliance with ERISA
	 	 	69	 
	7.17. Prepayment of Indebtedness
	 	 	70	 
	7.18. Anti-Terrorism Laws
	 	 	70	 
	7.19. Membership/Partnership Interests
	 	 	70	 
	7.20. Trading with the Enemy Act
	 	 	70	 
	7.21. Reserved
	 	 	70	 
	7.22. Other Agreements
	 	 	71	 
	 
	 	 	 	 
	VIII CONDITIONS PRECEDENT
	 	 	71	 
	8.1. Conditions to Initial Advances
	 	 	71	 
	8.2. Conditions to Each Advance
	 	 	75	 
	 
	 	 	 	 
	IX INFORMATION AS TO BORROWERS
	 	 	76	 
	9.1. Disclosure of Material Matters
	 	 	76	 
	9.2. Schedules
	 	 	76	 
	9.3. Environmental Reports
	 	 	77	 
	9.4. Litigation
	 	 	77	 






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	9.5. Material Occurrences
	 	 	77	 
	9.6. Government Receivables
	 	 	78	 
	9.7. Annual Financial Statements
	 	 	78	 
	9.8. Quarterly Financial Statements
	 	 	78	 
	9.9. Monthly Financial Statements
	 	 	78	 
	9.10. Other Reports
	 	 	78	 
	9.11. Additional Information
	 	 	79	 
	9.12. Projected Operating Budget
	 	 	79	 
	9.13. Variances From Operating Budget
	 	 	79	 
	9.14. Notice of Suits, Adverse Events
	 	 	79	 
	9.15. ERISA Notices and Requests
	 	 	79	 
	9.16. Additional Documents
	 	 	80	 
	9.17. Appraisals and Field Examinations
	 	 	80	 
	9.18. Background Check 
	 	 	80	 
	 
	 	 	 	 
	X EVENTS OF DEFAULT
	 	 	80	 
	10.1. Nonpayment
	 	 	81	 
	10.2. Breach of Representation
	 	 	81	 
	10.3. Financial Information
	 	 	81	 
	10.4. Judicial Actions
	 	 	81	 
	10.5. Noncompliance
	 	 	81	 
	10.6. Judgments
	 	 	81	 
	10.7. Bankruptcy
	 	 	81	 
	10.8. Inability to Pay
	 	 	82	 
	10.9. Affiliate Bankruptcy
	 	 	82	 
	10.10. Material Adverse Effect
	 	 	82	 
	10.11. Lien Priority
	 	 	82	 
	10.12. Subordination Agreement Default
	 	 	82	 
	10.13. Subordinated Obligations Document Default
	 	 	82	 
	10.14. Cross Default
	 	 	82	 
	10.15. Breach of Guaranty
	 	 	82	 
	10.16. Change of Ownership
	 	 	83	 
	10.17. Invalidity
	 	 	83	 
	10.18. Licenses
	 	 	83	 
	10.19. Seizures
	 	 	83	 
	10.20. Operations
	 	 	83	 
	10.21. Pension Plans
	 	 	83	 
	 
	 	 	 	 
	XI LENDERS’ RIGHTS AND REMEDIES AFTER DEFAULT
	 	 	84	 
	11.1. Rights and Remedies
	 	 	84	 
	11.2. Agent’s Discretion
	 	 	85	 
	11.3. Setoff
	 	 	85	 
	11.4. Rights and Remedies not Exclusive
	 	 	86	 
	11.5. Allocation of Payments After Event of Default
	 	 	86	 
	 
	 	 	 	 
	XII WAIVERS AND JUDICIAL PROCEEDINGS
	 	 	87	 
	12.1. Waiver of Notice
	 	 	87	 
	12.2. Delay
	 	 	87	 






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	12.3. Jury Waiver
	 	 	87	 
	 
	 	 	 	 
	XIII EFFECTIVE DATE AND TERMINATION
	 	 	87	 
	13.1. Term
	 	 	87	 
	13.2. Termination
	 	 	88	 
	 
	 	 	 	 
	XIV REGARDING AGENT
	 	 	88	 
	14.1. Appointment
	 	 	88	 
	14.2. Nature of Duties
	 	 	88	 
	14.3. Lack of Reliance on Agent and Resignation
	 	 	89	 
	14.4. Certain Rights of Agent
	 	 	90	 
	14.5. Reliance
	 	 	90	 
	14.6. Notice of Default
	 	 	90	 
	14.7. Indemnification
	 	 	90	 
	14.8. Agent in its Individual Capacity
	 	 	90	 
	14.9. Delivery of Documents
	 	 	91	 
	14.10. Borrowers’ Undertaking to Agent
	 	 	91	 
	14.11. No Reliance on Agent’s Customer Identification Program
	 	 	91	 
	14.12. Other Agreements
	 	 	91	 
	 
	 	 	 	 
	XV BORROWING AGENCY
	 	 	91	 
	15.1. Borrowing Agency Provisions
	 	 	91	 
	15.2. Waiver of Subrogation
	 	 	92	 
	 
	 	 	 	 
	XVI MISCELLANEOUS
	 	 	92	 
	16.1. Governing Law
	 	 	92	 
	16.2. Entire Understanding
	 	 	93	 
	16.3. Successors and Assigns; Participations; New Lenders
	 	 	95	 
	16.4. Application of Payments
	 	 	97	 
	16.5. Indemnity
	 	 	97	 
	16.6. Notice
	 	 	98	 
	16.7. Survival
	 	 	100	 
	16.8. Severability
	 	 	100	 
	16.9. Expenses
	 	 	100	 
	16.10. Injunctive Relief
	 	 	101	 
	16.11. Consequential Damages
	 	 	101	 
	16.12. Captions
	 	 	101	 
	16.13. Counterparts; Facsimile Signatures
	 	 	101	 
	16.14. Construction
	 	 	101	 
	16.15. Confidentiality; Sharing Information
	 	 	101	 
	16.16. Publicity
	 	 	102	 
	16.17. Certifications From Banks and Participants; US PATRIOT Act
	 	 	102	 
	16.18. Non-Applicability of Chapter 346
	 	 	102	 
	16.19. BORROWERS’ WAIVER OF RIGHTS UNDER TEXAS DECEPTIVE TRADE PRACTICES ACT
	 	 	103	 











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LIST OF EXHIBITS AND SCHEDULES



Exhibits




	 	 	 

	Exhibit 1.2

	 	Borrowing Base Certificate
	Exhibit 2.1(a)

	 	Revolving Credit Note
	Exhibit 2.4

	 	Term Note
	Exhibit 5.5(b)

	 	Financial Projections
	Exhibit 8.1(k)

	 	Financial Condition Certificate
	Exhibit 16.3

	 	Commitment Transfer Supplement
	 
	 	 
	Schedules
	 	 
	 
	 	 
	Schedule 1.2

	 	Permitted Encumbrances
	Schedule 1.2(d)

	 	Prior Indebtedness
	Schedule 4.5

	 	Equipment and Inventory Locations
	Schedule 4.15(h)

	 	Deposit and Investment Accounts
	Schedule 4.19

	 	Real Property
	Schedule 5.1

	 	Consents
	Schedule 5.2(a)

	 	States of Qualification and Good Standing
	Schedule 5.2(b)

	 	Subsidiaries; Capitalization
	Schedule 5.4

	 	Federal Tax Identification Number
	Schedule 5.6

	 	Prior Names
	Schedule 5.8(b)

	 	Litigation
	Schedule 5.8(d)

	 	Plans
	Schedule 5.9

	 	Intellectual Property, Source Code Escrow Agreements
	Schedule 5.10

	 	Licenses and Permits
	Schedule 5.14

	 	Labor Disputes
	Schedule 5.22

	 	Business Activities of Borrowers
	Schedule 6.12

	 	Post-Closing Obligations
	Schedule 6.12(a)

	 	Vehicle Title Liens
	Schedule 7.3

	 	Guarantees







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REVOLVING CREDIT, TERM LOAN

AND

SECURITY AGREEMENT




     This Revolving Credit, Term Loan and Security Agreement dated as of November 23, 2010 by and
among NYTEX FDF ACQUISITION, INC., a corporation formed under the laws of the State of Delaware
(“Holdings”) and, upon consummation of the acquisition pursuant to the Acquisition
Agreement (defined below), FRANCIS OAKS, L.L.C., a limited liability company formed under the laws
of the State of Louisiana (“Francis Oaks”), FRANCIS’ DRILLING FLUIDS, LTD., a business
corporation incorporated under the laws of the State of Louisiana (“Francis Drilling”; and
together with Holdings and Francis Oaks, individually, each a “Borrower” and collectively,
jointly and severally, the “Borrowers”), the financial institutions which are now or which
hereafter become a party hereto (collectively, the “Lenders” and individually a
“Lender”) and PNC BANK, NATIONAL ASSOCIATION (“PNC”), as agent for Lenders (PNC, in
such capacity, together with its successors and assigns in such capacity, the “Agent”).



     IN CONSIDERATION of the mutual covenants and undertakings herein contained, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Borrowers,
Lenders and Agent hereby agree as follows:


I DEFINITIONS.




     1.1. Accounting Terms. As used in this Agreement, the Other Documents or any
certificate, report or other document made or delivered pursuant to this Agreement, accounting
terms not defined in Section 1.2 or elsewhere in this Agreement and accounting terms partly defined
in Section 1.2 to the extent not defined, shall have the respective meanings given to them under
GAAP; provided, however, whenever such accounting terms are used for the purposes of determining
compliance with financial covenants in this Agreement, such accounting terms shall be defined in
accordance with GAAP as consistently applied in preparation of the audited financial statements of
Francis Oaks and Francis Drilling for the fiscal year ended August 31, 2009.



     1.2. General Terms. For purposes of this Agreement the following terms shall have the
following meanings:



     “Accountants” shall have the meaning set forth in Section 9.7 hereof.



     “Acquisition Agreement” shall mean that certain Membership Interests Purchase
Agreement (including all annexes, exhibits and schedules relating thereto), dated as of November
23, 2010 among Sellers, Holdings, Francis Oaks and Francis Drilling, as amended from time to time
in accordance with this Agreement and in form and substance satisfactory to Agent.



     “Advances” shall mean and include the Revolving Advances, Letters of Credit, as well
as the Term Loan.



     “Affiliate” of any Person shall mean (a) any Person which, directly or indirectly, is
in control of, is controlled by, or is under common control with such Person, or (b) any Person who



 









 





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is a director, managing member, general partner or officer (i) of such Person, (ii) of any
Subsidiary of such Person or (iii) of any Person described in clause (a) above. For purposes of
this definition, control of a Person shall mean the power, direct or indirect, (x) to vote 5% or
more of the Equity Interests having ordinary voting power for the election of directors of such
Person or other Persons performing similar functions for any such Person, or (y) to direct or cause
the direction of the management and policies of such Person whether by ownership of Equity
Interests, contract or otherwise.




     “Agent” shall have the meaning set forth in the introductory paragraph to this
Agreement and shall include its successors and assigns.



     “Agreement” shall mean this Revolving Credit, Term Loan and Security Agreement, as the
same may be amended, amended and restated, extended, supplemented and/or otherwise modified from
time to time.



     “Alternate Base Rate” shall mean, for any day, a rate per annum equal to the higher of
(i) the Base Rate in effect on such day, (ii) the Federal Funds Open Rate in effect on such day
plus 1/2 of 1% and (iii) the Daily LIBOR Rate plus 1%. For purposes of this definition, “Daily
LIBOR Rate” shall mean, for any day, the rate per annum determined by Agent by dividing (x) the
Published Rate by (y) a number equal to 1.00 minus the Reserve Percentage. For the purposes of
this definition, “Published Rate” shall mean the rate of interest published each Business Day in
The Wall Street Journal “Money Rates” listing under the caption “London Interbank Offered Rates”
for a one month period (or, if no such rate is published therein for any reason, then the Published
Rate shall be the eurodollar rate for a one month period as published in another publication
determined by Agent).



     “Anti-Terrorism Laws” shall mean any Applicable Laws relating to terrorism or money
laundering, including Executive Order No. 13224, the USA PATRIOT Act, the Applicable Laws
comprising or implementing the Bank Secrecy Act, and the Applicable Laws administered by the United
States Treasury Department’s Office of Foreign Asset Control (as any of the foregoing Applicable
Laws may from time to time be amended, renewed, extended, or replaced).



     “Applicable Law” shall mean all laws, rules and regulations applicable to the Person,
conduct, transaction, covenant, Other Document or contract in question, including all applicable
common law and equitable principles; all provisions of all applicable state, federal and foreign
constitutions, statutes, rules, regulations, treaties, directives and orders of any Governmental
Body, and all orders, judgments and decrees of all courts and arbitrators.



     “Authority” shall have the meaning set forth in Section 4.19(d).



     “Authorized Officer” shall mean the President, Chief Financial Officer, Controller or
other authorized officer approved by Agent.



     “Base Rate” shall mean the base commercial lending rate of PNC as publicly announced
to be in effect from time to time, such rate to be adjusted automatically, without notice, on the
effective date of any change in such rate. This rate of interest is determined from time to time
by PNC as a means of pricing some loans to its customers and is neither tied to any external rate
of



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interest or index nor does it necessarily reflect the lowest rate of interest actually charged by
PNC to any particular class or category of customers of PNC.




     “Blocked Accounts” shall have the meaning set forth in Section 4.15(h).



     “Blocked Account Bank” shall have the meaning set forth in Section 4.15(h).



     “Blocked Person” shall have the meaning set forth in Section 5.24(b) hereof.



     “Borrower” or “Borrowers” shall have the meaning set forth in the introductory
paragraph to this Agreement and shall extend to all permitted successors and assigns of such
Persons.



     “Borrowers on a Consolidated Basis” shall mean the consolidation in accordance with
GAAP of the accounts or other items of Borrowers and their respective Subsidiaries.



     “Borrowers’ Account” shall have the meaning set forth in Section 2.8.



     “Borrowing Agent” shall mean Francis Drilling.



     “Borrowing Base Certificate” shall mean a certificate in substantially the form of
Exhibit 1.2 duly executed by an Authorized Officer of the Borrowing Agent and delivered to Agent,
appropriately completed, by which such Authorized Officer shall certify to Agent the Formula Amount
and calculation thereof as of the date of such certificate.



     “Business Day” shall mean any day other than Saturday or Sunday or a legal holiday on
which commercial banks are authorized or required by law to be closed for business in East
Brunswick, New Jersey and, if the applicable Business Day relates to any Eurodollar Rate Loans,
such day must also be a day on which dealings are carried on in the London interbank market.



     “Capital Expenditures” shall mean expenditures made or liabilities incurred for the
acquisition of any fixed assets or improvements, replacements, substitutions or additions thereto
which have a useful life of more than one year, including the total principal portion of
Capitalized Lease Obligations, which, in accordance with GAAP, would be classified as capital
expenditures.



     “Capitalized Lease Obligation” shall mean any Indebtedness of any Borrower represented
by obligations under a lease that is required to be capitalized for financial reporting purposes in
accordance with GAAP.



     “CERCLA” shall mean the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. §§9601 et seq.



     “Change of Control” shall mean (i) the occurrence of any event (whether in one or more
transactions) which results in a transfer of control of any Borrower to a Person who is not Sponsor
or (ii) any merger or consolidation of or with any Borrower or sale of all or substantially all of
the property or assets of any Borrower. For purposes of this definition, “control of Borrower”
shall mean the power, direct or indirect (x) to vote 50% or more of the Equity



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Interests having ordinary voting power for the election of directors (or the individuals performing
similar functions) of any Borrower or (y) to direct or cause the direction of the management and
policies of any Borrower by contract or otherwise.




     “Change of Ownership” shall mean (a) 50% or more of the Equity Interests of any
Borrower is no longer, directly or indirectly, owned or controlled by (including for the purposes
of the calculation of percentage ownership, any Equity Interests into which any Equity Interests of
any Borrower held by Sponsor are convertible or for which any such Equity Interests of any Borrower
or of any other Person may be exchanged and any Equity Interests issuable to Sponsor upon exercise
of any warrants, options or similar rights which may at the time of calculation be held by Sponsor)
Sponsor or (b) any merger, consolidation or sale of substantially all of the property or assets of
any Borrower; provided that the sale by Holdings of any Equity Interest of any other Borrower shall
be deemed a sale of substantially all of Holdings’ assets.



     “Charges” shall mean all taxes, charges, fees, imposts, levies or other assessments,
including all net income, gross income, gross receipts, sales, use, ad valorem, value added,
transfer, franchise, profits, inventory, capital stock, license, withholding, payroll, employment,
social security, unemployment, excise, severance, stamp, occupation and property taxes, custom
duties, fees, assessments, liens, claims and charges of any kind whatsoever, together with any
interest and any penalties, additions to tax or additional amounts, imposed by any taxing or other
authority, domestic or foreign (including the Pension Benefit Guaranty Corporation or any
environmental agency or superfund), upon the Collateral, any Borrower or any of its Affiliates.



     “Closing Date” shall mean November 23, 2010 or such other date as may be agreed to in
writing by the parties hereto.



     “Code” shall mean the Internal Revenue Code of 1986, as the same may be amended or
supplemented from time to time, and any successor statute of similar import, and the rules and
regulations thereunder, as from time to time in effect.



     “Collateral” shall mean and include all assets of Borrowers, whether now owned or
hereafter acquired and wherever located, including, without limitation:



     (a) all Receivables;



     (b) all Equipment;



     (c) all General Intangibles;



     (d) all Inventory;



     (e) all Investment Property;



     (f) all Real Property;



     (g) all Subsidiary Stock;



     (h) the Leasehold Interests;








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     (i) all of each Borrower’s right, title and interest in and to, whether now owned or hereafter
acquired and wherever located, (i) its respective goods and other property including, but not
limited to, all merchandise returned or rejected by Customers, relating to or securing any of the
Receivables; (ii) all of each Borrower’s rights as a consignor, a consignee, an unpaid vendor,
mechanic, artisan, or other lienor, including stoppage in transit, setoff, detinue, replevin,
reclamation and repurchase; (iii) all additional amounts due to any Borrower from any Customer
relating to the Receivables; (iv) other property, including warranty claims, relating to any goods
securing the Obligations; (v) all of each Borrower’s contract rights, rights of payment which have
been earned under a contract right, instruments (including promissory notes), documents, chattel
paper (including electronic chattel paper), warehouse receipts, deposit accounts, letters of credit
and money; (vi) all commercial tort claims (whether now existing or hereafter arising); (vii) if
and when obtained by any Borrower, all real and personal property of third parties in which such
Borrower has been granted a lien or security interest as security for the payment or enforcement of
Receivables; (viii) all letter of credit rights (whether or not the respective letter of credit is
evidenced by a writing); (ix) all supporting obligations; and (x) any other goods, personal
property or real property now owned or hereafter acquired in which any Borrower has expressly
granted a security interest or may in the future grant a security interest to Agent hereunder, or
in any amendment or supplement hereto or thereto, or under any other agreement between Agent and
any Borrower;



     (j) all of each Borrower’s ledger sheets, ledger cards, files, correspondence, records, books
of account, business papers, computers, computer software (owned by any Borrower or in which it has
an interest), computer programs, tapes, disks and documents relating to (a), (b), (c), (d), (e),
(f), (g), (h) or (i) of this definition; and



     (k) all proceeds and products of (a), (b), (c), (d), (e), (f), (g), (h), (i) and (j) in
whatever form, including, but not limited to: cash, deposit accounts (whether or not comprised
solely of proceeds), certificates of deposit, insurance proceeds (including hazard, flood and
credit insurance), negotiable instruments and other instruments for the payment of money, chattel
paper, security agreements, documents, eminent domain proceeds, condemnation proceeds and tort
claim proceeds.



     “Collateral Assignment of Acquisition Agreement” shall mean that certain Collateral
Assignment of Acquisition Agreement, dated as of the Closing Date between Holdings and Agent,
acknowledged by the Sellers, the form and substance of which shall be satisfactory to Agent.



     “Commitment Percentage” of any Lender shall mean the percentage set forth below such
Lender’s name on the signature page hereof as same may be adjusted upon any assignment by a Lender
pursuant to Section 16.3(c) or (d) hereof.



     “Commitment Transfer Supplement” shall mean a document in the form of Exhibit 16.3
hereto, properly completed and otherwise in form and substance satisfactory to Agent by which the
Purchasing Lender purchases and assumes a portion of the obligation of Lenders to make Advances
under this Agreement.



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     “Compliance Certificate” shall mean a compliance certificate to be signed by an
Authorized Officer of Borrowing Agent, which shall state that, based on an examination sufficient
to permit such officer to make an informed statement, no Default or Event of Default exists, or if
such is not the case, specifying such Default or Event of Default, its nature, when it occurred,
whether it is continuing and the steps being taken by Borrowers with respect to such default and,
such certificate shall have appended thereto calculations which set forth Borrowers’ compliance
with the requirements or restrictions imposed by Sections 6.5, 7.4, 7.5, 7.6, 7.7, 7.8, 7.10 and
7.11.



     “Consents” shall mean all filings and all licenses, permits, consents, approvals,
authorizations, qualifications and orders of Governmental Bodies and other third parties, domestic
or foreign, necessary to carry on any Borrower’s business or necessary (including to avoid a
conflict or breach under any agreement, instrument, other document, license, permit or other
authorization) for the execution, delivery or performance of this Agreement, the Other Documents,
the Subordinated Obligations Documents or the Acquisition Agreement, including any Consents
required under all applicable federal, state or other Applicable Law.



     “Consolidated Current Assets” shall mean, as at any date of determination, the total
assets of Borrowers and their Subsidiaries which may properly be classified as current assets on a
consolidated balance sheet of Borrowers and their Subsidiaries in accordance with GAAP, excluding
cash and cash equivalents.



     “Consolidated Current Liabilities” shall mean, as at any date of determination, the
total liabilities of Borrowers and their Subsidiaries which may properly be classified as current
liabilities (other than the current portion of any Advance) on a consolidated balance sheet of
Borrowers and their Subsidiaries in accordance with GAAP.



     “Contract Rate” shall have the meaning set forth in Section 3.1 hereof..



     “Controlled Group” shall mean, at any time, each Borrower and all members of a
controlled group of corporations and all trades or businesses (whether or not incorporated) under
common control and all other entities which, together with any Borrower, are treated as a single
employer under Section 414 of the Code.



     “Crowley Real Property” shall mean that certain real property located in Crowley,
Louisiana and described in more detail on Schedule 4.19 attached hereto.



     “Customer” shall mean and include the account debtor with respect to any Receivable
and/or the prospective purchaser of goods, services or both with respect to any contract or
contract right, and/or any party who enters into or proposes to enter into any contract or other
arrangement with any Borrower, pursuant to which such Borrower is to deliver any personal property
or perform any services.



     “Customs” shall have the meaning set forth in Section 2.11(b) hereof.



     “Debt Payments” shall mean and include, for any period and calculated for all
Borrowers on a consolidated basis, the sum of (without duplication) (a) all amounts actually
incurred and payable during such period for interest on any Advances, Indebtedness, and the
interest portion



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of any amount incurred under any Capitalized Lease Obligation and any “synthetic lease”, plus (b)
all amounts incurred and payable for all fees, commissions and charges under this Agreement and
with respect to any Advances, Funded Debt or other Indebtedness for borrowed money, plus (c)
scheduled principal payments under any Capitalized Lease Obligation and any “synthetic lease”, plus
(d) unscheduled principal payments paid during the period under any Capitalized Lease Obligations
and any “synthetic lease”, plus (e) scheduled principal payments made with respect to any Funded
Debt or other Indebtedness for borrowed money (other than the repayment of Revolving Advances),
whether payable to the Agent, any Lender or any other Person, plus (f) unscheduled principal
payments with respect to any Funded Debt or other Indebtedness for borrowed money (other than the
repayment of Revolving Advances), whether payable to the Agent, any Lender or any other Person.




     “Default” shall mean an event, circumstance or condition which, with the giving of
notice or passage of time or both, would constitute an Event of Default.



     “Default Rate” shall have the meaning set forth in Section 3.1 hereof.



     “Defaulting Lender” shall have the meaning set forth in Section 2.23(a) hereof.



     “Depository Accounts” shall have the meaning set forth in Section 4.15(h) hereof.



     “Designated Lender” shall have the meaning set forth in Section 16.2(b) hereof.



     “Documents” shall have the meaning set forth in Section 8.1(h) hereof.



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



     “Domestic Rate Loan” shall mean any Advance that bears interest based upon the
Alternate Base Rate.



     “Drawing Date” shall have the meaning set forth in Section 2.12(b) hereof.



     “Early Termination Date” shall have the meaning set forth in Section 13.1 hereof.



     “Earnings Before Interest and Taxes” shall mean for any period the sum of (i) net
income (or loss) of Borrowers on a Consolidated Basis for such period (excluding one-time non-cash
gains and non-cash losses), plus (ii) all interest expense of Borrowers on a Consolidated Basis for
such period, plus (iii) all charges against income of Borrowers on a Consolidated Basis for such
period for federal, state and local taxes.



     “EBITDA” shall mean for any period the sum of (i) Earnings Before Interest and Taxes
for such period plus (ii) depreciation expenses for such period, plus (iii) amortization expenses
for such period.



     “Eligible Receivables” shall mean and include with respect to each Borrower, each
Receivable of such Borrower arising in the Ordinary Course of Business and which Agent, in its sole
credit judgment, shall deem to be an Eligible Receivable, based on such considerations as Agent may
from time to time deem appropriate. A Receivable shall not be deemed eligible



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unless such Receivable is subject to Agent’s first priority perfected security interest and no
other Lien (other than Permitted Encumbrances), and is evidenced by an invoice or other documentary
evidence satisfactory to Agent. In addition, no Receivable shall be an Eligible Receivable if:




     (a) it arises out of a sale made by any Borrower to an Affiliate of any Borrower or to a
Person controlled by an Affiliate of any Borrower;



     (b) it is due or unpaid more than (i) sixty (60) days after the original due date or (ii)
ninety (90) days after the original invoice date;



     (c) fifty percent (50%) or more of the Receivables from such Customer are not deemed Eligible
Receivables hereunder. Such percentage may, in Agent’s sole discretion, be increased or decreased
from time to time;



     (d) any covenant, representation or warranty contained in this Agreement with respect to such
Receivable has been breached;



     (e) the Customer shall (i) apply for, suffer, or consent to the appointment of, or the taking
of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial
part of its property or call a meeting of its creditors, (ii) admit in writing its inability, or be
generally unable, to pay its debts as they become due or cease operations of its present business,
(iii) make a general assignment for the benefit of creditors, (iv) commence a voluntary case under
any state or federal bankruptcy laws (as now or hereafter in effect), (v) be adjudicated a bankrupt
or insolvent, (vi) file a petition seeking to take advantage of any other law providing for the
relief of debtors, (vii) acquiesce to, or fail to have dismissed, any petition which is filed
against it in any involuntary case under such bankruptcy laws, or (viii) take any action for the
purpose of effecting any of the foregoing;



     (f) the sale is to a Customer outside (i) the continental United States of America or (ii)
Canada (other than the province of Quebec), unless the sale is on letter of credit, guaranty or
acceptance terms, in each case acceptable to Agent in its sole discretion; provided, however, that
all such Receivables shall be payable in U.S. Dollars;



     (g) the sale to the Customer is on a bill-and-hold, guaranteed sale, sale-and-return, sale on
approval, consignment or any other repurchase or return basis or is evidenced by chattel paper;



     (h) Agent believes, in its sole judgment, that collection of such Receivable is insecure or
that such Receivable may not be paid by reason of the Customer’s financial inability to pay;



     (i) the Customer is the United States of America, any state or any department, agency or
instrumentality of any of them, unless the applicable Borrower assigns its right to payment of such
Receivable to Agent pursuant to the Assignment of Claims Act of 1940, as amended (31 U.S.C.
Sub-Section 3727 et seq. and 41 U.S.C. Sub-Section 15 et seq.) or has otherwise complied with other
applicable statutes or ordinances;



     (j) the goods giving rise to such Receivable have not been delivered to and accepted by the
Customer or the services giving rise to such Receivable have not been performed by the



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applicable Borrower and accepted by the Customer or the Receivable otherwise does not represent a
final sale or the Receivable represents a progress or milestone billing or is otherwise contingent
upon the applicable Borrower’s completion of any future performance or service;




     (k) the Receivable of the Customer, together with the other Receivables of the Customer,
exceeds 30% of the total Eligible Receivables, or such other credit limit determined by Agent in
its sole discretion, to the extent such Receivable exceeds such limit;



     (l) the Receivable is subject to any offset, deduction, defense, dispute, or counterclaim
(other than Mud Contras up to $1,500,000 in the aggregate at any time) the Customer is also a
creditor or supplier of a Borrower or the Receivable is contingent in any respect or for any
reason; provided, however, with respect to any Receivable which is not subject to a
Mud Contra, only to the extent of such offset, deduction, dispute, or counterclaim and (ii) with
respect to any Receivable which is subject to a Mud Contra, only to the extent of the applicable
Mud Contra for all Mud Contras which, in the aggregate, exceed $1,500,000;



     (m) the applicable Borrower has made any agreement with any Customer for any deduction
therefrom, except for discounts or allowances made in the Ordinary Course of Business for prompt
payment, all of which discounts or allowances are reflected in the calculation of the face value of
each respective invoice related thereto;



     (n) any return, rejection or repossession of the merchandise (other than the storage of Mud
Inventory by the Borrowers for the benefit of a Customer, as agreed to by the Borrowers and such
Customer) has occurred or the rendition of services has been disputed;



     (o) such Receivable is not payable to a Borrower; or



     (p) such Receivable is not otherwise satisfactory to Agent as determined in good faith by
Agent in the exercise of its discretion in a reasonable manner.



     “Environmental Complaint” shall have the meaning set forth in Section 4.19(d) hereof.



     “Environmental Laws” shall mean all federal, state and local environmental, land use,
zoning, health, chemical use, safety and sanitation laws, statutes, ordinances and codes relating
to the protection of the environment and/or governing the use, storage, treatment, generation,
transportation, processing, handling, production or disposal of Hazardous Substances and the rules,
regulations, policies, guidelines, interpretations, decisions, orders and directives of federal,
state and local governmental agencies and authorities with respect thereto.



     “Equipment” shall mean and include as to each Borrower all of such Borrower’s goods
(other than Inventory) whether now owned or hereafter acquired and wherever located including all
equipment, machinery, apparatus, motor vehicles, fittings, furniture, furnishings, fixtures, parts,
accessories and all replacements and substitutions therefore or accessions thereto.



     “Equity Documents” shall mean all documents executed in connection with the issuance
of Holdings’ Equity Interests to Sponsor and Sponsor’s Equity Interests to Waypoint on or
immediately prior to the Closing Date, including membership certificates, if any.



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     “Equity Interests” of any Person shall mean any and all shares, rights to purchase,
options, warrants, general, limited or limited liability partnership interests, member interests,
participation or other equivalents of or interest in (regardless of how designated) equity of such
Person, whether voting or nonvoting, including common stock, preferred stock, convertible
securities or any other “equity security” (as such term is defined in Rule 3a11-1 of the General
Rules and Regulations promulgated by the SEC under the Exchange Act).



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



     “Eurodollar Rate” shall mean for any Eurodollar Rate Loan for the then current
Interest Period relating thereto the interest rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined by Agent by dividing (i) the rate which appears on the Bloomberg
Page BBAM1 (or on such other substitute Bloomberg page that displays rates at which US dollar
deposits are offered by leading banks in the London interbank deposit market), or the rate which is
quoted by another source selected by Agent which has been approved by the British Bankers’
Association as an authorized information vendor for the purpose of displaying rates at which US
dollar deposits are offered by leading banks in the London interbank deposit market (an
“Alternative Source”), at approximately 11:00 a.m., London time two (2) Business Days prior to the
first day of such Interest Period (or if there shall at any time, for any reason, no longer exist a
Bloomberg Page BBAM1 (or any substitute page) or any Alternate Source, a comparable replacement
rate determined by Agent at such time (which determination shall be conclusive absent manifest
error)) for an amount comparable to such Eurodollar Rate Loan and having a borrowing date and a
maturity comparable to such Interest Period by (ii) a number equal to 1.00 minus the Reserve
Percentage.



     The Eurodollar Rate shall be adjusted with respect to any Eurodollar Rate Loan that is
outstanding on the effective date of any change in the Reserve Percentage as of such effective
date. The Agent shall give prompt notice to the Borrowing Agent of the Eurodollar Rate as
determined or adjusted in accordance herewith, which determination shall be conclusive absent
manifest error.



     “Eurodollar Rate Loan” shall mean an Advance at any time that bears interest based on
the Eurodollar Rate.



     “Event of Default” shall have the meaning set forth in Article X hereof.



     “Excess Cash Flow” for any fiscal period shall mean EBITDA of Borrowers on a
Consolidated Basis for such fiscal period, plus the amount, if any, by which Net Working Capital
decreased during such fiscal period, minus the amount, if any, by which Net Working Capital
increased during such fiscal period, minus Unfinanced Capital Expenditures made by Borrowers on a
Consolidated Basis during such fiscal period minus cash taxes actually paid by Borrowers on a
Consolidated Basis during such fiscal period and including any distributions to Waypoint with
respect to the Subordinated Obligations Documents payable in accordance with Section 7.7 hereof,
minus principal and interest payments on Funded Debt, minus management fees not otherwise deducted
in calculating net income during such fiscal period.



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



     “Executive Order No. 13224” shall mean the Executive Order No. 13224 on Terrorist
Financing, effective September 24, 2001, as the same has been, or shall hereafter be, renewed,
extended, amended or replaced.



     “Federal Funds Effective Rate” for any day shall mean the rate per annum (based on a
year of 360 days and actual days elapsed and rounded upward to the nearest 1/100 of 1%) announced
by the Federal Reserve Bank of New York (or any successor) on such day as being the weighted
average of the rates on overnight federal funds transactions arranged by federal funds brokers on
the previous trading day, as computed and announced by such Federal Reserve Bank (or any successor)
in substantially the same manner as such Federal Reserve Bank computes and announces the weighted
average it refers to as the “Federal Funds Effective Rate” as of the date of this Agreement;
provided, if such Federal Reserve Bank (or its successor) does not announce such rate on any day,
the “Federal Funds Effective Rate” for such day shall be the Federal Funds Effective Rate for the
last day on which such rate was announced.



     “Federal Funds Open Rate” for any day shall mean the rate per annum (based on a year
of 360 days and actual days elapsed) which is the daily federal funds open rate as quoted by ICAP
North America, Inc. (or any successor) as set forth on the Bloomberg Screen BTMM for that day
opposite the caption “OPEN” (or on such other substitute Bloomberg Screen that displays such rate),
or as set forth on such other recognized electronic source used for the purpose of displaying such
rate as selected by PNC (an “Alternate Source”) (or if such rate for such day does not appear on
the Bloomberg Screen BTMM (or any substitute screen) or on any Alternate Source, or if there shall
at any time, for any reason, no longer exist a Bloomberg Screen BTMM (or any substitute screen) or
any Alternate Source, a comparable replacement rate determined by the PNC at such time (which
determination shall be conclusive absent manifest error); provided however, that if such day is not
a Business Day, the Federal Funds Open Rate for such day shall be the “open” rate on the
immediately preceding Business Day. If and when the Federal Funds Open Rate changes, the rate of
interest with respect to any advance to which the Federal Funds Open Rate applies will change
automatically without notice to Borrowers, effective on the date of any such change.



     “Fixed Charge Coverage Ratio” shall mean and include, with respect to any period, the
ratio of (a) (i) EBITDA minus (ii) Unfinanced Capital Expenditures made during such period, minus
(iii) distributions and dividends (other than any Subordinated Obligations Payments included in
clause (b) hereof) made during such period, minus (iv) cash taxes paid during such period, minus
(v) management fees paid and not otherwise deducted in calculating net income (loss) during such
period to (b) (i) all Debt Payments plus (ii) all Subordinated Obligations Payments made during
such period. For purposes of determining the Fixed Charge Coverage Ratio, Capital Expenditures that
are financed under Revolving Advances made pursuant to this Agreement shall be considered
Unfinanced Capital Expenditures.



     “Foreign Subsidiary” of any Person, shall mean any Subsidiary of such Person that is
not organized or incorporated in the United States or any State or territory thereof.



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



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     “Francis Drilling” shall have the meaning set forth in the introductory paragraph to
this Agreement and shall extend to all permitted successors and assigns of such Person.



     “Francis Oaks” shall have the meaning set forth in the introductory paragraph to this
Agreement and shall extend to all permitted successors and assigns of such Person.



     “Funded Debt” shall mean, with respect to any Person, without duplication, all
Indebtedness for borrowed money evidenced by notes, bonds, debentures, or similar evidences of
Indebtedness that by its terms matures more than one year from, or is directly or indirectly
renewable or extendible at such Person’s option under a revolving credit or similar agreement
obligating the lender or lenders to extend credit over a period of more than one year from the date
of creation thereof, and specifically including Capitalized Lease Obligations, current maturities
of long-term debt, revolving credit and short term debt extendible beyond one year at the option of
the debtor, and also including, in the case of Borrower, the Obligations and, without duplication,
Indebtedness consisting of guaranties of Funded Debt of other Persons.



     “GAAP” shall mean generally accepted accounting principles in the United States of
America in effect from time to time.



     “General Intangibles” shall mean and include as to each Borrower all of such
Borrower’s general intangibles, whether now owned or hereafter acquired, including all payment
intangibles, all choses in action, causes of action, corporate or other business records,
inventions, designs, patents, patent applications, equipment formulations, manufacturing
procedures, quality control procedures, trademarks, trademark applications, service marks, trade
secrets, goodwill, copyrights, design rights, software, computer information, source codes, codes,
records and updates, registrations, licenses, franchises, customer lists, tax refunds, tax refund
claims, computer programs, all claims under guaranties, security interests or other security held
by or granted to such Borrower to secure payment of any of the Receivables by a Customer (other
than to the extent covered by Receivables) all rights of indemnification and all other intangible
property of every kind and nature (other than Receivables).



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



     “Governmental Body” shall mean any nation or government, any state or other political
subdivision thereof or any entity, authority, agency, division or department exercising the
legislative, judicial, regulatory or administrative functions of or pertaining to a government.



     “Guarantor” shall mean any Person who may hereafter guarantee payment or performance
of the whole or any part of the Obligations and “Guarantors” means collectively all such Persons.



     “Guarantor Security Agreement” shall mean any Security Agreement executed by any
Guarantor in favor of Agent securing the Guaranty of such Guarantor, in form and substance
satisfactory to Agent.



     “Guaranty” shall mean any guaranty of the obligations of Borrowers executed by a
Guarantor in favor of Agent for its benefit and for the ratable benefit of Lenders, in form and
substance satisfactory to Agent.



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     “Hazardous Discharge” shall have the meaning set forth in Section 4.19(d) hereof.



     “Hazardous Substance” shall mean, without limitation, any flammable explosives, radon,
radioactive materials, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls,
petroleum and petroleum products, methane, hazardous materials, Hazardous Wastes, hazardous or
Toxic Substances or related materials as defined in CERCLA, the Hazardous Materials Transportation
Act, as amended (49 U.S.C. Sections 1801, et seq.), RCRA, Articles 15 and 27 of the New York State
Environmental Conservation Law or any other applicable Environmental Law and in the regulations
adopted pursuant thereto.



     “Hazardous Wastes” shall mean all waste materials subject to regulation under CERCLA,
RCRA or applicable state law, and any other applicable federal and state laws now in force or
hereafter enacted relating to hazardous waste disposal.



     “Hedge Liabilities” shall have the meaning provided in the definition of
“Lender-Provided Interest Rate Hedge”.



     “Holdings” shall mean shall have the meaning set forth in the introductory paragraph
of this Agreement.



     “Increased Tax Burden” shall mean the additional federal, state or local taxes assumed
to be payable by a member of Holdings and/or Francis Oaks as a result of such Borrower’s status as
a limited liability company, in each case, reasonably estimated by Holdings and/or Francis Oaks, as
applicable, in respect of the quarterly estimated tax payments payable by such member and
subsequently evidenced and substantiated by (and adjusted, if and to the extent required by Section
7.7, based upon) the tax returns filed by Holdings and Francis Oaks, as a limited liability
company, with such taxes being calculated for all members at the highest marginal rate applicable
to any member.



     “Indebtedness” of a Person at a particular date shall mean all obligations of such
Person which in accordance with GAAP would be classified upon a balance sheet as liabilities
(except capital stock and surplus earned or otherwise) and in any event, without limitation by
reason of enumeration, shall include all indebtedness, debt and other similar monetary obligations
of such Person whether direct or guaranteed, and all premiums, if any, due at the required
prepayment dates of such indebtedness, and all indebtedness secured by a Lien on assets owned by
such Person, whether or not such indebtedness actually shall have been created, assumed or incurred
by such Person. Any indebtedness of such Person resulting from the acquisition by such Person of
any assets subject to any Lien shall be deemed, for the purposes hereof, to be the equivalent of
the creation, assumption and incurring of the indebtedness secured thereby, whether or not actually
so created, assumed or incurred.



     “Ineligible Security” shall mean any security which may not be underwritten or dealt
in by member banks of the Federal Reserve System under Section 16 of the Banking Act of 1933 (12
U.S.C. Section 24, Seventh), as amended.



     “Intellectual Property” shall mean property constituting under any Applicable Law a
patent, patent application, copyright, trademark, service mark, trade name, trade name application,
domain name, domain name application, mask work, trade secret or license or other right to use any
of the foregoing.



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     “Intellectual Property Security Agreement” shall mean that certain Intellectual
Property Security Agreement, dated as of the Closing Date between Borrowers and Agent, the terms
and conditions of which shall be satisfactory to Agent.



     “Interest Period” shall mean the period provided for any Eurodollar Rate Loan pursuant
to Section 2.2(b).



     “Interest Rate Hedge” shall mean an interest rate exchange, collar, cap, swap,
adjustable strike cap, adjustable strike corridor or similar agreements entered into by any
Borrower or its Subsidiaries in order to provide protection to, or minimize the impact upon, such
Borrower, any Guarantor and/or their respective Subsidiaries of increasing floating rates of
interest applicable to Indebtedness.



     “Inventory” shall mean and include as to each Borrower all of such Borrower’s now
owned or hereafter acquired goods, merchandise and other personal property, wherever located, to be
furnished under any consignment arrangement, contract of service or held for sale or lease, all raw
materials, work in process, finished goods and materials and supplies of any kind, nature or
description which are or might be used or consumed in such Borrower’s business or used in selling
or furnishing such goods, merchandise and other personal property, and all documents of title or
other documents representing them.



     “Investment Property” shall mean and include as to each Borrower, all of such
Borrower’s now owned or hereafter acquired securities (whether certificated or uncertificated),
securities entitlements, securities accounts, commodities contracts and commodities accounts.



     “Issuer” shall mean any Person who issues a Letter of Credit and/or accepts a draft
pursuant to the terms hereof.



     “Leasehold Interests” shall mean all of each Borrower’s right, title and interest in
and to the premises identified as leased properties on Schedule 4.19 hereto.



     “Lender” and “Lenders” shall have the meaning ascribed to such term in the
introductory paragraph to this Agreement and shall include each Person which becomes a transferee,
successor or assign of any Lender.



     “Lender-Provided Interest Rate Hedge” shall mean an Interest Rate Hedge which is
provided by any Lender and with respect to which Agent confirms meets the following requirements:
such Interest Rate Hedge (i) is documented in a standard International Swap Dealer Association
Agreement, (ii) provides for the method of calculating the reimbursable amount of the provider’s
credit exposure in a reasonable and customary manner, and (iii) is entered into for hedging (rather
than speculative) purposes. The liabilities of any Borrower to the provider of any Lender-Provided
Interest Rate Hedge (the “Hedge Liabilities”) shall be “Obligations” hereunder, guaranteed
obligations under the Guaranty and secured obligations under the Guarantor Security Agreement and
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each of the Other Documents. The Liens securing the Hedge Liabilities shall be pari passu with the
Liens securing all other Obligations under this Agreement and the Other Documents.




     “Letter of Credit Fees” shall have the meaning set forth in Section 3.2.



     “Letter of Credit Borrowing” shall have the meaning set forth in Section 2.12(d).



     “Letter of Credit Sublimit” shall mean $2,000,000.



     “Letters of Credit” shall have the meaning set forth in Section 2.9.



     “Licensor” shall mean any Person from whom any Borrower obtains the right to use
(whether on an exclusive or non-exclusive basis) any Intellectual Property in connection with such
Borrower’s manufacture, marketing, sale or other distribution of any Inventory or otherwise in
connection with such Borrower’s business operations.



     “Lien” shall mean any mortgage, deed of trust, pledge, hypothecation, assignment,
security interest, lien (whether statutory or otherwise), Charge, claim or encumbrance, or
preference, priority or other security agreement or preferential arrangement held or asserted in
respect of any asset of any kind or nature whatsoever including any conditional sale or other title
retention agreement, any lease having substantially the same economic effect as any of the
foregoing, and the filing of, or agreement to give, any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction.



     “Lien Waiver Agreement” shall mean an agreement which is executed in favor of Agent by
a Person who owns or occupies premises at which any Collateral may be located from time to time and
by which such Person shall waive any Lien that such Person may ever have with respect to any of the
Collateral and shall authorize Agent from time to time to enter upon the premises to inspect or
remove the Collateral from such premises or to use such premises to store or dispose of such
Inventory.



     “Loan Party” shall mean, individually or collectively as the context requires, (i)
Borrowers, (ii) any Guarantor and (iii) any other Person hereafter joined to this Agreement as a
“Borrower”.



     “Material Adverse Effect” shall mean a material adverse effect on (a) the condition
(financial or otherwise), results of operations, assets, business, properties or prospects of any
Loan Party, (b) any Loan Party’s ability to duly and punctually pay or perform the Obligations in
accordance with the terms thereof, (c) the value of the Collateral, or Agent’s Liens on the
Collateral or the priority of any such Lien or (d) the practical realization of the benefits of
Agent’s and each Lender’s rights and remedies under this Agreement and the Other Documents. For
purposes of this definition, references to “Loan Party” shall refer to any Real Property or
business to be acquired by any Loan Party pursuant to the Acquisition Agreement, as the context
shall require for periods prior to the Closing Date.



     “Maximum Face Amount” shall mean, with respect to any outstanding Letter of Credit,
the face amount of such Letter of Credit including all automatic increases provided for in such
Letter of Credit, whether or not any such automatic increase has become effective.



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     “Maximum Loan Amount” shall mean $24,000,000 less repayments of the Term Loan.



     “Maximum Revolving Advance Amount” shall mean $12,000,000.



     “Maximum Undrawn Amount” shall mean with respect to any outstanding Letter of Credit,
the amount of such Letter of Credit that is or may become available to be drawn, including all
automatic increases provided for in such Letter of Credit, whether or not any such automatic
increase has become effective.



     “Modified Commitment Transfer Supplement” shall have the meaning set forth in Section
16.3(d).



     “Mortgage” shall mean, individually or collectively as the context requires, any deed
of trust or mortgage on the Real Property securing the Obligations, in each case, together with all
extensions, renewals, amendments, supplements, modifications, substitutions and replacements
thereto and thereof and in form and substance satisfactory to Agent.



     “Mud Claim” shall mean any claim (whether or not asserted) by any Customer of
Borrowers for any Mud Inventory which is held by Borrowers for the benefit of such Customer.



     “Mud Contra” shall mean, with respect to any actual or potential assertion of a Mud
Claim by a Customer of Borrowers to reduce the payment obligations of such Customers to Borrowers,
valued in an amount equal to the lesser of (i) the Mud Liability of Borrowers to such Customer and
(ii) the Receivables (on an aggregated basis) owed to Borrowers by such Customer, in each case, as
of any date of determination.



     “Mud Inventory” shall mean Inventory of Borrowers consisting of liquids and muds
circulated through the wellbore during rotary drilling and workover operations to bring cuttings to
the surface, to cool and lubricate the bit and drill stem, to control subsurface pressure, and to
deposit mud cake along the borehole wall.



     “Mud Liability” shall mean an amount equal to the numbers of barrels of Mud Inventory
subject to a Mud Claim of a Customer at any time, multiplied by the average per barrel retail sales
price of Borrowers’ Mud Inventory for the thirty period immediately preceding the calculation date.



     “Multiemployer Plan” shall mean a “multiemployer plan” as defined in Sections 3(37)
and 4001(a)(3) of ERISA.



     “Multiple Employer Plan” shall mean a Plan which has two or more contributing sponsors
(including any Borrower or any member of the Controlled Group) at least two of whom are not under
common control, as such a plan is described in Section 4064 of ERISA.



     “Negative Pledge” shall mean those certain Negative Pledge Agreements, in each case,
dated as of the Closing Date, between Borrowers and Agent, in recordable form and otherwise in form
and substance satisfactory to Agent.



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     “Net Working Capital” shall mean, at any time, Consolidated Current Assets at such
time minus Consolidated Current Liabilities at such time.



     “NOLV Appraisal” shall have the meaning set forth in Section 9.17 hereof.



     “Note” shall mean each of the Term Note, the Revolving Credit Note and “Notes” shall
mean collectively, the Term Note and the Revolving Credit, each as amended, restated, extended,
supplemented or otherwise modified from time to time.



     “Obligations” shall mean and include any and all loans, advances, debts, liabilities,
obligations, covenants and duties owing by any Borrower to Lenders or Agent or to any other direct
or indirect subsidiary or affiliate of Agent or any Lender of any kind or nature, present or future
(including any interest or other amounts accruing thereon after maturity, or after the filing of
any petition in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding relating to any Borrower, whether or not a claim for post-filing or post-petition
interest or other amounts is allowed in such proceeding), whether or not evidenced by any note,
guaranty or other instrument, whether arising under any agreement, instrument or document,
(including this Agreement and the Other Documents) whether or not for the payment of money, whether
arising by reason of an extension of credit, opening of a letter of credit, loan, equipment lease
or guarantee, under any interest or currency swap, future, option or other similar agreement, or in
any other manner, whether arising out of overdrafts or deposit or other accounts or electronic
funds transfers (whether through automated clearing houses or otherwise) or out of Agent’s or any
Lenders non-receipt of or inability to collect funds or otherwise not being made whole in
connection with depository transfer check or other similar arrangements, whether direct or indirect
(including those acquired by assignment or participation), absolute or contingent, joint or
several, due or to become due, now existing or hereafter arising, contractual or tortious,
liquidated or unliquidated, regardless of how such indebtedness or liabilities arise or by what
agreement or instrument they may be evidenced or whether evidenced by any agreement or instrument,
including, but not limited to, any and all of any Borrower’s Indebtedness and/or liabilities under
this Agreement, the Other Documents or under any other agreement between Agent or Lenders and any
Borrower and any amendments, extensions, renewals or increases and all costs and expenses of Agent
and any Lender incurred in the documentation, negotiation, modification, enforcement, collection or
otherwise in connection with any of the foregoing, including but not limited to reasonable
attorneys’ fees and expenses and all obligations of any Borrower to Agent or Lenders to perform
acts or refrain from taking any action.



     “Ordinary Course of Business” shall mean with respect to any Borrower, the ordinary
course of such Borrower’s business as conducted on the Closing Date or as contemplated to be
performed on Schedule 5.22 hereto.



     “Other Documents” shall mean each Mortgage, the Notes, the Questionnaire, any
Guaranty, any Pledge Agreement, and any Negative Pledge, any Guarantor Security Agreement, the
Lender Provided Interest Rate Hedge, the Collateral Assignment of Acquisition Agreement, the
Intellectual Property Security Agreement, any Subordination Agreement and any and all other
agreements, instruments and documents, including guaranties, pledges, powers of attorney, consents,
interest or currency swap agreements or other similar agreements and all other writings



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heretofore, now or hereafter executed by any Borrower or any Guarantor and/or delivered to Agent or
any Lender in respect of the transactions contemplated by this Agreement.




     “Out-of-Formula Loans” shall have the meaning set forth in Section 16.2(b).



     “Parent” of any Person shall mean a corporation or other entity owning, directly or
indirectly at least 50% of the shares of stock or other ownership interests having ordinary voting
power to elect a majority of the directors of the Person, or other Persons performing similar
functions for any such Person.



     “Participant” shall mean each Person who shall be granted the right by any Lender to
participate in any of the Advances and who shall have entered into a participation agreement in
form and substance satisfactory to such Lender.



     “Participation Advance” shall have the meaning set forth in Section 2.12(d).



     “Participation Commitment” shall mean each Lender’s obligation to buy a participation
of the Letters of Credit issued hereunder.



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



     “Payment Office” shall mean initially Two Tower Center Boulevard, East Brunswick, New
Jersey 08816; thereafter, such other office of Agent, if any, which it may designate by notice to
Borrowing Agent and to each Lender to be the Payment Office.



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



     “Pension Benefit Plan” shall mean at any time any employee pension benefit plan
(including a Multiple Employer Plan, but not a Multiemployer Plan) which is covered by Title IV of
ERISA or is subject to the minimum funding standards under Section 412 of the Code and either (i)
is maintained by any member of the Controlled Group for employees of any member of the Controlled
Group; or (ii) has at any time within the preceding five years been maintained by any entity which
was at such time a member of the Controlled Group for employees of any entity which was at such
time a member of the Controlled Group.



     “Permitted Encumbrances” shall mean:



     (a) Liens in favor of Agent for the benefit of Agent and Lenders;



     (b) Liens for taxes, assessments or other governmental charges not delinquent or being
Properly Contested;



     (c) Liens disclosed in the financial statements referred to in Section 5.5, the existence of
which Agent has consented to in writing;



     (d) deposits or pledges to secure obligations under worker’s compensation, social security or
similar laws, or under unemployment insurance;



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     (e) deposits or pledges to secure bids, tenders, contracts (other than contracts for the
payment of money), leases, statutory obligations, surety and appeal bonds and other obligations of
like nature arising in the Ordinary Course of Business;



     (f) Liens arising by virtue of the rendition, entry or issuance against any Borrower or any
Subsidiary, or any property of any Borrower or any Subsidiary, of any judgment, writ, order, or
decree for so long as each such Lien (x) is in existence for less than 20 consecutive days after it
first arises or is being Properly Contested and (y) is at all times junior in priority to any Liens
in favor of Agent;



     (g) mechanics’, workers’, materialmen’s or other like Liens arising in the Ordinary Course of
Business with respect to obligations which are not due or which are being Properly Contested;



     (h) Liens placed upon fixed assets hereafter acquired to secure a portion of the purchase
price thereof, provided that (x) any such lien shall not encumber any other property of any
Borrower and (y) the aggregate amount of Indebtedness secured by such Liens incurred as a result of
such purchases during any fiscal year shall not exceed the amount provided for in Section 7.6; and



     (i) Liens disclosed on Schedule 1.2; provided that such Liens shall secure only those
obligations which they secure on the Closing Date (and extensions, renewals and refinancings of
such obligations permitted by Section 7.8) and shall not subsequently apply to any other property
or assets of any Borrower.



     “Person” shall mean any individual, sole proprietorship, partnership, corporation,
business trust, joint stock company, trust, unincorporated organization, association, limited
liability company, limited liability partnership, institution, public benefit corporation, joint
venture, entity or Governmental Body (whether federal, state, county, city, municipal or otherwise,
including any instrumentality, division, agency, body or department thereof).



     “Plan” shall mean any employee benefit plan within the meaning of Section 3(3) of
ERISA (including a Pension Benefit Plan), maintained for employees of any Borrower or any member of
the Controlled Group or any such Plan to which any Borrower or any member of the Controlled Group
is required to contribute on behalf of any of its employees.



     “Pledge Agreement” shall mean, individually or collectively as the context requires
(i) the Pledge Agreement, dated as of the Closing Date and executed by Sponsor in favor of Agent,
granting Agent a Lien in the Equity Interests of Holdings; (ii) the Pledge Agreement, dated as of
the Closing Date and executed by Holdings in favor of Agent, granting Agent a Lien in the Equity
Interests of Francis Oaks, (iii) the Pledge Agreement, dated as of the Closing Date and executed by
Francis Oaks in favor of Agent, granting Agent a Lien in the Equity Interests of Francis Drilling,
and (iv) any other pledge agreement executed in favor of Agent after the Closing Date, in each
case, in form and substance satisfactory to Agent and as amended, amended and restated,
supplemented and/or otherwise modified from time to time in accordance with this Agreement.



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     “PNC” shall have the meaning set forth in the introductory paragraph of this Agreement
and shall extend to all of its successors and assigns.



     “Prior Indebtedness” means the Indebtedness and obligations specified on Schedule
1.2(d) hereof.



     “Pro Forma Balance Sheet” shall have the meaning set forth in Section 5.5(a) hereof.



     “Pro Forma Financial Statements” shall have the meaning set forth in Section 5.5(b)
hereof.



     “Projections” shall have the meaning set forth in Section 5.5(b) hereof.



     “Properly Contested” shall mean, in the case of any Indebtedness or Lien, as
applicable, of any Person (including any taxes) that is not paid as and when due or payable by
reason of such Person’s bona fide dispute concerning its liability to pay same or concerning the
amount thereof, (i) such Indebtedness or Lien, as applicable, is being properly contested in good
faith by appropriate proceedings promptly instituted and diligently conducted; (ii) such Person has
established appropriate reserves as shall be required in conformity with GAAP; (iii) the
non-payment of such Indebtedness will not have a Material Adverse Effect and will not result in the
forfeiture of any assets of such Person; (iv) no Lien is imposed upon any of such Person’s assets
with respect to such Indebtedness unless such Lien is at all times junior and subordinate in
priority to the Liens in favor of Agent (except only with respect to property taxes that have
priority as a matter of applicable state law) and enforcement of such Lien is stayed during the
period prior to the final resolution or disposition of such dispute; (v) if such Indebtedness or
Lien, as applicable, results from, or is determined by the entry, rendition or issuance against a
Person or any of its assets of a judgment, writ, order or decree, enforcement of such judgment,
writ, order or decree is stayed pending a timely appeal or other judicial review; and (vi) if such
contest is abandoned, settled or determined adversely (in whole or in part) to such Person, such
Person forthwith pays such Indebtedness and all penalties, interest and other amounts due in
connection therewith.



     “Purchasing CLO” shall have the meaning set forth in Section 16.3(d) hereof.



     “Purchasing Lender” shall have the meaning set forth in Section 16.3(c) hereof.



     “Questionnaire” shall mean the Questionnaire and Perfection Certificate and the
responses thereto provided by Borrowers and delivered to Agent, and all amendments, supplements and
modifications to the foregoing. For purposes of this definition, “Borrowers” shall refer to any
Borrower and/or the Real Property or business to be acquired by any Borrower pursuant to the
Acquisition Agreement, as the context shall require for periods prior to the Closing Date.



     “RCRA” shall mean the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et
seq., as same may be amended from time to time.



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     “Real Property” shall mean all of each Borrower’s right, title and interest in and to
the owned and leased premises identified on Schedule 4.19 hereto or which is hereafter owned or
leased by any Borrower.



     “Receivables” shall mean and include, as to each Borrower, all of such Borrower’s
accounts, contract rights, instruments (including those evidencing indebtedness owed to such
Borrower by its Affiliates), documents, chattel paper (including electronic chattel paper), general
intangibles relating to accounts, drafts and acceptances, credit card receivables and all other
forms of obligations owing to such Borrower arising out of or in connection with the sale or lease
of Inventory or the rendition of services, all supporting obligations, guarantees and other
security therefor, whether secured or unsecured, now existing or hereafter created, and whether or
not specifically sold or assigned to Agent hereunder.



     “Receivables Advance Rate” shall have the meaning set forth in Section 2.1(a)(y)(i)
hereof.



     “Register” shall have the meaning set forth in Section 16.3(e).



     “Reimbursement Obligation” shall have the meaning set forth in Section 2.12(b)hereof.



     “Release” shall have the meaning set forth in Section 5.7(c)(i) hereof.



     “Reportable Event” shall mean a reportable event described in Section 4043(c) of ERISA
or the regulations promulgated thereunder.



     “Required Lenders” shall mean Lenders holding at least fifty-one percent (51%) of the
Advances and, if no Advances are outstanding, shall mean Lenders holding greater than fifty-one
percent (51%) of the Commitment Percentages; provided, however, if there are fewer than three (3)
Lenders, Required Lenders shall mean all Lenders.



     “Reserve Percentage” shall mean as of any day the maximum percentage in effect on such
day as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including supplemental, marginal and emergency reserve
requirements) with respect to eurocurrency funding (currently referred to as “Eurocurrency
Liabilities”.



     “Revolving Advances” shall mean Advances made other than Letters of Credit and the
Term Loan.



     “Revolving Credit Note” shall mean, collectively, the promissory notes referred to in
Section 2.1(a) hereof.



     “Revolving Interest Rate” shall mean an interest rate per annum equal to (a) the sum
of the Alternate Base Rate plus one and three-quarters percent (1.75%) with respect to Domestic
Rate Loans and (b) the sum of the Eurodollar Rate plus two and three-quarters percent (2.75%) with
respect to Eurodollar Rate Loans.



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     “Rolling Stock” shall mean all trucks, trailers, other motor vehicles or construction
equipment (including without limitation all cranes, bulldozers, loaders, tractors, forklifts, lifts
and winches) that are used or capable of being used to transport Borrowers’ Inventory or Equipment
or otherwise used by Borrowers in the Ordinary Course of Business.



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



     “Section 20 Subsidiary” shall mean the Subsidiary of the bank holding company
controlling PNC, which Subsidiary has been granted authority by the Federal Reserve Board to
underwrite and deal in certain Ineligible Securities.



     “Securities Act” shall mean the Securities Act of 1933, as amended.



     “Sellers” shall mean Michael G. Francis, Diana Istre Francis, Bryan Francis, Mackey
Francis and Francis Oaks.



     “Settlement Date” shall mean the Closing Date and thereafter Wednesday or Thursday of
each week or more frequently if Agent deems appropriate unless such day is not a Business Day in
which case it shall be the next succeeding Business Day.



     “Sponsor” shall mean NYTEX Energy Holdings, Inc., a Delaware corporation



     “Subcontractor Accounts Payable Reserve” shall mean a reserve established by Agent in
an amount equal to all accounts payable to subcontractors of any Borrower.



     “Subordinated Obligations” shall mean and include all liabilities, loans, debts and
other obligations of any Borrower owed to Waypoint.



     “Subordinated Obligations Documents” shall mean the Preferred Stock and Warrant
Purchase Agreement, dated as of the date hereof, among Sponsor, Holdings and Waypoint, all Equity
Interests (whether or not certificated) issued pursuant thereto and any Organizational Document of
any Borrower which establish redemption, distribution or payment rights in favor of Waypoint, as
amended, amended and restated, extended, supplemented and/or otherwise modified from time to time
in accordance with the Subordination Agreement and this Agreement.



     “Subordinated Obligations Payments” shall mean and include all cash actually expended
to make distributions or other payments in respect of the Subordinated Obligations as permitted by
any Subordination Agreement and permitted pursuant to Section 7.7.



     “Subordination Agreement(s)” shall mean (a) any agreement among any Loan Party, a
subordinating creditor or Equity Interest holder of such Loan party and Agent, on behalf other
Lenders, pursuant to which, among other things, the obligations owing to a subordinated creditor or
Equity Interest holder are subordinated to the prior payment and satisfaction of the Obligations,
including, without limitation, the Subordination Agreement dated as of the Closing Date, among
Agent, Borrowers and Waypoint, and (b) any note, indenture, note purchase agreement or similar
instrument or agreement, pursuant to which the indebtedness evidenced thereby or issued thereunder
is subordinated to the Obligations by the express terms of such note,



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indenture, note purchase agreement or similar instrument or agreement, in each case, in form and
substance satisfactory to Agent in its sole discretion.




     “Subsidiary” of any Person shall mean a corporation or other entity of whose Equity
Interests having ordinary voting power (other than Equity Interests having such power only by
reason of the happening of a contingency) to elect a majority of the directors of such corporation,
or other Persons performing similar functions for such entity, are owned, directly or indirectly,
by such Person.



     “Subsidiary Stock” shall mean all of the issued and outstanding Equity Interests of
any Subsidiary owned by any Borrower (not to exceed 65% of the Equity Interests of any Foreign
Subsidiary).



     “Term” shall have the meaning set forth in Section 13.1 hereof.



     “Term Loan” shall mean the Advances made pursuant to Section 2.4 hereof.



     “Term Loan Rate” shall mean an interest rate per annum equal to (a) the sum of the
Alternate Base Rate plus two and one-half percent (2.50%) with respect to Domestic Rate Loans and
(b) the sum of the Eurodollar Rate plus three and one-half percent (3.50%) with respect to
Eurodollar Rate Loans.



     “Term Note” shall mean, collectively, the promissory notes described in Section 2.4
hereof.



     “Termination Event” shall mean (i) a Reportable Event with respect to any Plan or
Multiemployer Plan; (ii) the withdrawal of any Borrower or any member of the Controlled Group from
a Plan or Multiemployer Plan during a plan year in which such entity was a “substantial employer”
as defined in Section 4001(a)(2) of ERISA; (iii) the providing of notice of intent to terminate a
Plan in a distress termination described in Section 4041(c) of ERISA; (iv) the institution by the
PBGC of proceedings to terminate a Plan or Multiemployer Plan; (v) any event or condition (a) which
might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of
a trustee to administer, any Plan or Multiemployer Plan, or (b) that may result in termination of a
Multiemployer Plan pursuant to Section 4041A of ERISA; or (vi) the partial or complete withdrawal
within the meaning of Sections 4203 and 4205 of ERISA, of any Borrower or any member of the
Controlled Group from a Multiemployer Plan.



     “Texas Finance Code” shall have the meaning set forth in Section 3.6 hereof.



     “Toxic Substance” shall mean and include any material present on the Real Property or
the Leasehold Interests which has been shown to have significant adverse effect on human health or
which is subject to regulation under the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601 et
seq., applicable state law, or any other applicable federal or state laws now in force or hereafter
enacted relating to toxic substances. “Toxic Substance” includes but is not limited to asbestos,
polychlorinated biphenyls (PCBs) and lead-based paints.



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     “Trading with the Enemy Act” shall mean the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any enabling
legislation or executive order relating thereto.



     “Transactions” shall have the meaning set forth in Section 5.5 hereof.



     “Transferee” shall have the meaning set forth in Section 16.3(d) hereof.



     “Undrawn Availability” at a particular date shall mean an amount equal to (a) the
lesser of (i) the Formula Amount or (ii) the Maximum Revolving Advance Amount minus the amount of
reserves, if any, established in accordance with Section 2.1(a)(y)(iii), minus (b) the sum of (i)
the outstanding amount of Advances (other than the Term Loan) plus (ii) all amounts due and owing
to any Borrower’s trade creditors which are outstanding more than sixty (60) days past the original
due date plus (iii) fees and expenses for which Borrowers are liable but which have not been paid
or charged to Borrowers’ Account plus (iv) all other past due Indebtedness.



     “Unfinanced Capital Expenditures” shall mean all Capital Expenditures of Borrower
other than those made utilizing financing provided by the applicable seller or third party lenders.
For the avoidance of doubt, Capital Expenditures made by a Borrower utilizing Revolving Advances
shall be deemed Unfinanced Capital Expenditures.



     “Uniform Commercial Code” shall have the meaning set forth in Section 1.3 hereof.



     “USA PATRIOT Act” shall mean the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as
the same has been, or shall hereafter be, renewed, extended, amended or replaced.



     “Waypoint” shall mean Waypoint NYTEX, LLC, a Delaware limited liability company.



     “Week” shall mean the time period commencing with the opening of business on a
Wednesday and ending on the end of business the following Tuesday.



     1.3. Uniform Commercial Code Terms. All terms used herein and defined in the
Uniform Commercial Code as adopted in the State of Texas from time to time (the “Uniform
Commercial Code”) shall have the meaning given therein unless otherwise defined herein.
Without limiting the foregoing, the terms “accounts”, “chattel paper”, “commercial tort claims”,
“instruments”, “general intangibles”, “goods”, “payment intangibles”, “proceeds”, “supporting
obligations”, “securities”, “investment property”, “documents”, “deposit accounts”, “software”,
“letter of credit rights”, “inventory”, “equipment” and “fixtures”, as and when used in the
description of Collateral shall have the meanings given to such terms in Articles 8 or 9 of the
Uniform Commercial Code. To the extent the definition of any category or type of collateral is
expanded by any amendment, modification or revision to the Uniform Commercial Code, such expanded
definition will apply automatically as of the date of such amendment, modification or revision.



     1.4. Certain Matters of Construction. The terms “herein”, “hereof” and “hereunder”
and other words of similar import refer to this Agreement as a whole and not to any particular
section, paragraph or subdivision. All references herein to Articles, Sections, Exhibits and



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Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules
to, this Agreement. Any pronoun used shall be deemed to cover all genders. Wherever appropriate
in the context, terms used herein in the singular also include the plural and vice versa. All
references to statutes and related regulations shall include any amendments of same and any
successor statutes and regulations. Unless otherwise provided, all references to any instruments
or agreements to which Agent is a party, including references to any of the Other Documents, shall
include any and all modifications or amendments thereto and any and all extensions or renewals
thereof. All references herein to the time of day shall mean the time in New York, New York.
Unless otherwise provided, all financial calculations shall be performed with Inventory valued on a
first-in, first-out basis. Whenever the words “including” or “include” shall be used, such words
shall be understood to mean “including, without limitation” or “include, without limitation”. A
Default or Event of Default shall be deemed to exist at all times during the period commencing on
the date that such Default or Event of Default occurs to the date on which such Default or Event of
Default is waived in writing pursuant to this Agreement or, in the case of a Default, is cured
within any period of cure expressly provided for in this Agreement; and an Event of Default shall
“continue” or be “continuing” until such Event of Default has been waived in writing by the
Required Lenders. Any Lien referred to in this Agreement or any of the Other Documents as having
been created in favor of Agent, any agreement entered into by Agent pursuant to this Agreement or
any of the Other Documents, any payment made by or to or funds received by Agent pursuant to or as
contemplated by this Agreement or any of the Other Documents, or any act taken or omitted to be
taken by Agent, shall, unless otherwise expressly provided, be created, entered into, made or
received, or taken or omitted, for the benefit or account of Agent and Lenders. Wherever the phrase
“to the best of Borrowers’ knowledge” or words of similar import relating to the knowledge or the
awareness of any Borrower or their respective representative officers or representatives are used
in this Agreement or Other Documents, such phrase shall mean and refer to (i) the actual knowledge
of a senior officer of any Borrower or (ii) the knowledge that a senior officer would have obtained
if he had engaged in good faith and diligent performance of his duties, including the making of
such reasonably specific inquiries as may be necessary of the employees or agents of such Borrower
or Seller and a good faith attempt to ascertain the existence or accuracy of the matter to which
such phrase relates. All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by a covenant, the fact that it would be permitted
by an exception to, or otherwise within the limitations of, another covenant shall not avoid the
occurrence of a default if such action is taken or condition exists. In addition, all
representations and warranties hereunder shall be given independent effect so that if a particular
representation or warranty proves to be incorrect or is breached, the fact that another
representation or warranty concerning the same or similar subject matter is correct or is not
breached will not affect the incorrectness of a breach of a representation or warranty hereunder.



II ADVANCES, PAYMENTS.




     2.1. Revolving Advances.



          (a) Amount of Revolving Advances. Subject to the terms and conditions set forth in
this Agreement including Section 2.1(b), each Lender, severally and not jointly, will make
Revolving Advances to Borrowers in aggregate amounts outstanding at any time equal to such Lender’s
Commitment Percentage of the lesser of (x) the Maximum Revolving Advance







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Amount less the amount of reserves, if any, established in accordance with Section
2.1(a)(y)(iii) less the aggregate Maximum Undrawn Amount of all outstanding Letters of Credit or
(y) an amount equal to the sum of:




               (i) up to 85%, subject to the provisions of Section 2.1(b) hereof (“Receivables Advance
Rate”), of Eligible Receivables, minus




               (ii) the aggregate Maximum Undrawn Amount of all outstanding Letters of Credit, minus




               (iii) such reserves (including the Subcontractors Accounts Payable Reserve and any reserve
established in respect of Borrowers’ Hedge Liabilities) as Agent may reasonably deem proper and
necessary from time to time;




     The amount derived from the sum of (x) Section 2.1(a)(y)(i) minus (y) Section 2.1(a)(y)(iii)
at any time and from time to time shall be referred to as the “Formula Amount”. The
Revolving Advances shall be evidenced by one or more secured promissory notes (collectively, the
“Revolving Credit Note”) substantially in the form attached hereto as Exhibit 2.1(a).



          (b) Discretionary Rights. The Receivables Advance Rates may be increased or decreased
by Agent at any time and from time to time in the exercise of its reasonable discretion. Each
Borrower consents to any such increases or decreases and acknowledges that decreasing the
Receivables Advance Rates or increasing or imposing reserves may limit or restrict Advances
requested by Borrowing Agent. Agent shall give Borrowing Agent five (5) days prior notice of its
intention to decrease the Receivables Advance Rates; provided, however, no Borrower shall have any
right of action whatsoever against Agent for, and Agent shall not be liable for any damages
resulting from, the failure of Agent to provide the prior notice contemplated in this sentence.
The rights of Agent under this subsection are subject to the provisions of Section 16.2(b).



     2.2. Procedure for Revolving Advances Borrowing.



          (a) Borrowing Agent on behalf of any Borrower may notify Agent prior to 10:00 a.m. on a
Business Day of a Borrower’s request to incur, on that day, a Revolving Advance hereunder. Should
any amount required to be paid as interest hereunder, or as fees or other charges under this
Agreement or any other agreement with Agent or Lenders, or with respect to any other Obligation,
become due unless Borrowers have elected a Eurodollar Rate Loan therefore in accordance with
subsection (b) below, same shall be deemed a request for a Revolving Advance maintained as a
Domestic Rate Loan as of the date such payment is due, in the amount required to pay in full such
interest, fee, charge or Obligation under this Agreement or any other agreement with Agent or
Lenders, and such request shall be irrevocable.



          (b) Notwithstanding the provisions of subsection (a) above, in the event any Borrower desires
to obtain a Eurodollar Rate Loan, Borrowing Agent shall give Agent written notice by no later than
10:00 a.m. on the day which is three (3) Business Days prior to the date such Eurodollar Rate Loan
is to be borrowed, specifying (i) the date of the proposed borrowing (which shall be a Business
Day), (ii) the type of borrowing and the amount on the date of such



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Advance to be borrowed, which amount shall be in an aggregate principal amount that is not less
than $1,000,000 and integral multiples of $100,000 in excess thereof, and (iii) the duration of the
first Interest Period therefor. Interest Periods for Eurodollar Rate Loans shall be for one, two
or three; provided, if an Interest Period would end on a day that is not a Business Day, it shall
end on the next succeeding Business Day unless such day falls in the next succeeding calendar month
in which case the Interest Period shall end on the next preceding Business Day. No Eurodollar Rate
Loan shall be made available to any Borrower during the continuance of a Default or an Event of
Default. After giving effect to each requested Eurodollar Rate Loan, including those which are
converted from a Domestic Rate Loan under Section 2.2(d), there shall not be outstanding more than
three (3) Eurodollar Rate Loans, in the aggregate.




          (c) Each Interest Period of a Eurodollar Rate Loan shall commence on the date such Eurodollar
Rate Loan is made and shall end on such date as Borrowing Agent may elect as set forth in
subsection (b)(iii) above provided that the exact length of each Interest Period shall be
determined in accordance with the practice of the interbank market for offshore Dollar deposits and
no Interest Period shall end after the last day of the Term.



     Borrowing Agent shall elect the initial Interest Period applicable to a Eurodollar Rate Loan
by its notice of borrowing given to Agent pursuant to Section 2.2(b) or by its notice of conversion
given to Agent pursuant to Section 2.2(d), as the case may be. Borrowing Agent shall elect the
duration of each succeeding Interest Period by giving irrevocable written notice to Agent of such
duration not later than 10:00 a.m. on the day which is three (3) Business Days prior to the last
day of the then current Interest Period applicable to such Eurodollar Rate Loan. If Agent does not
receive timely notice of the Interest Period elected by Borrowing Agent, Borrowing Agent shall be
deemed to have elected to convert to a Domestic Rate Loan subject to Section 2.2(d) hereinbelow.



          (d) Provided that no Default or Event of Default shall have occurred and be continuing,
Borrowing Agent may, on the last Business Day of the then current Interest Period applicable to any
outstanding Eurodollar Rate Loan, or on any Business Day with respect to Domestic Rate Loans,
convert any such loan into a loan of another type in the same aggregate principal amount provided
that any conversion of a Eurodollar Rate Loan shall be made only on the last Business Day of the
then current Interest Period applicable to such Eurodollar Rate Loan. If Borrowing Agent desires
to convert a loan, Borrowing Agent shall give Agent written notice by no later than 10:00 a.m. (i)
on the day which is three (3) Business Days’ prior to the date on which such conversion is to occur
with respect to a conversion from a Domestic Rate Loan to a Eurodollar Rate Loan, or (ii) on the
day which is one (1) Business Day prior to the date on which such conversion is to occur with
respect to a conversion from a Eurodollar Rate Loan to a Domestic Rate Loan, specifying, in each
case, the date of such conversion, the loans to be converted and if the conversion is from a
Domestic Rate Loan to any other type of loan, the duration of the first Interest Period therefore.



          (e) At its option and upon written notice given prior to 10:00 a.m. at least three (3)
Business Days’ prior to the date of such prepayment, any Borrower may prepay the Eurodollar Rate
Loans in whole at any time or in part from time to time with accrued interest on the principal
being prepaid to the date of such repayment. Such Borrower shall specify the date of prepayment of
Advances which are Eurodollar Rate Loans and the amount of such




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prepayment. In the event that any prepayment of a Eurodollar Rate Loan is required or
permitted on a date other than the last Business Day of the then current Interest Period with
respect thereto, such Borrower shall indemnify Agent and Lenders therefor in accordance with
Section 2.2(f) hereof.




          (f) Each Borrower shall indemnify Agent and Lenders and hold Agent and Lenders harmless from
and against any and all losses or expenses that Agent and Lenders may sustain or incur as a
consequence of any prepayment, conversion of or any default by any Borrower in the payment of the
principal of or interest on any Eurodollar Rate Loan or failure by any Borrower to complete a
borrowing of, a prepayment of or conversion of or to a Eurodollar Rate Loan after notice thereof
has been given, including, but not limited to, any interest payable by Agent or Lenders to lenders
of funds obtained by it in order to make or maintain its Eurodollar Rate Loans hereunder. A
certificate as to any additional amounts payable pursuant to the foregoing sentence submitted by
Agent or any Lender to Borrowing Agent shall be conclusive absent manifest error.




          (g) Notwithstanding any other provision hereof, if any Applicable Law, or any change therein
or in the interpretation or application thereof, shall make it unlawful for any Lender (for
purposes of this subsection (g), the term “Lender” shall include any Lender and the office or
branch where any Lender or any corporation or bank controlling such Lender makes or maintains any
Eurodollar Rate Loans) to make or maintain its Eurodollar Rate Loans, the obligation of Lenders to
make Eurodollar Rate Loans hereunder shall forthwith be cancelled and Borrowers shall, if any
affected Eurodollar Rate Loans are then outstanding, promptly upon request from Agent, either pay
all such affected Eurodollar Rate Loans or convert such affected Eurodollar Rate Loans into loans
of another type. If any such payment or conversion of any Eurodollar Rate Loan is made on a day
that is not the last day of the Interest Period applicable to such Eurodollar Rate Loan, Borrowers
shall pay Agent, upon Agent’s request, such amount or amounts as may be necessary to compensate
Lenders for any loss or expense sustained or incurred by Lenders in respect of such Eurodollar Rate
Loan as a result of such payment or conversion, including (but not limited to) any interest or
other amounts payable by Lenders to lenders of funds obtained by Lenders in order to make or
maintain such Eurodollar Rate Loan. A certificate as to any additional amounts payable pursuant to
the foregoing sentence submitted by Lenders to Borrowing Agent shall be conclusive absent manifest
error.




     2.3. Disbursement of Advance Proceeds. All Advances shall be disbursed from whichever
office or other place Agent may designate from time to time and, together with any and all other
Obligations of Borrowers to Agent or Lenders, shall be charged to Borrowers’ Account on Agent’s
books. During the Term, Borrowers may use the Revolving Advances by borrowing, prepaying and
reborrowing, all in accordance with the terms and conditions hereof. The proceeds of each
Revolving Advance requested by Borrowing Agent on behalf of any Borrower or deemed to have been
requested by any Borrower under Section 2.2(a) hereof shall, with respect to requested Revolving
Advances to the extent Lenders make such Revolving Advances, be made available to the applicable
Borrower on the day so requested by way of credit to such Borrower’s operating account at PNC, or
such other bank as Borrowing Agent may designate following notification to Agent, in immediately
available federal funds or other immediately available funds or, with respect to
Revolving Advances deemed to have been



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requested by any Borrower, be disbursed to Agent to be
applied to the outstanding Obligations giving rise to such deemed request.




     2.4. Term Loan.



          (a) Term Loan. Subject to the terms and conditions of this Agreement, each Lender,
severally and not jointly, will make a Term Loan to Borrowers in the sum equal to such Lender’s
Commitment Percentage of $12,000,000. The Term Loan shall be advanced on the Closing Date and
shall be, with respect to principal, payable as follows, subject to acceleration upon the
occurrence of an Event of Default under this Agreement or termination of this Agreement: (a)
commencing on December 1, 2010 and continuing on the first Business Day of each and every calendar
month through thereafter, Borrowers shall pay to Agent equal monthly payments of principal in the
aggregate amount of $142,857.14 (which amount has been agreed to by Borrowers and Lenders and based
upon a seven year principal amortization schedule) and (b) the entire outstanding principal balance
of this Term Loan, together with all accrued and unpaid interest, shall be due and payable in full
on the last day of the Term, if not sooner paid, by Borrowers. The Term Loan shall be evidenced by
one or more secured promissory notes (collectively, the “Term Note”) in substantially the
form attached hereto as Exhibit 2.4. The Term Loan may consist of Domestic Rate Loans or
Eurodollar Rate Loans, or a combination thereof, as Borrowing Agent may request. In the event that
Borrowers desire to obtain or extend a Eurodollar Rate Loan or to convert a Domestic Rate Loan to a
Eurodollar Rate Loan, Borrowing Agent shall comply with the notification requirements set forth in
Sections 2.2(b) and (d) and the provisions of Sections 2.2(b) through (g) shall apply. Amounts
repaid under the Term Loan may not be reborrowed.




     2.5. Maximum Advances. The aggregate balance of Revolving Advances outstanding at any
time shall not exceed the lesser of (a) the Maximum Revolving Advance Amount minus the amount of
reserves, if any, established in accordance with Section 2.1(a)(y)(iii) or (b) the Formula Amount
less, in each case, the aggregate Maximum Undrawn Amount of all issued and outstanding Letters of
Credit.



     2.6. Repayment of Advances.



          (a) The Revolving Advances shall be due and payable in full on the last day of the Term
subject to earlier prepayment as herein provided. The Term Loan shall be due and payable as
provided in Section 2.4 hereof and in the Term Note, subject to mandatory prepayments as herein
provided.




          (b) Each Borrower recognizes that the amounts evidenced by checks, notes, drafts or any other
items of payment relating to and/or proceeds of Collateral may not be collectible by Agent on the
date received. In consideration of Agent’s agreement to conditionally credit Borrowers’ Account as
of the next Business Day following Agent’s receipt of those items of payment, each Borrower agrees
that, in computing the charges under this Agreement, all items of payment shall be deemed applied
by Agent on account of the Obligations one (1) Business Day after (i) the Business Day following
Agent’s receipt of such
payments via wire transfer or electronic depository check or (ii) in the case of payments
received by Agent in any other form, the Business Day such payments constitute good funds in
Agent’s




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account. Agent is not, however, required to credit Borrowers’ Account for the amount of
any item of payment which is unsatisfactory to Agent and Agent may charge Borrowers’ Account for
the amount of any item of payment which is returned to Agent unpaid.




          (c) All payments of principal, interest and other amounts payable hereunder, or under any of
the Other Documents shall be made to Agent at the Payment Office not later than 12:00 p.m. on the
due date therefor in lawful money of the United States of America in federal funds or other funds
immediately available to Agent. Agent shall have the right to effectuate payment on any and all
Obligations due and owing hereunder by charging Borrowers’ Account or by making Advances as
provided in Section 2.2 hereof.




          (d) Borrowers shall pay principal, interest, and all other amounts payable hereunder, or under
any related agreement, without any deduction whatsoever, including, but not limited to, any
deduction for any setoff or counterclaim.




     2.7. Repayment of Excess Advances. The aggregate balance of Advances outstanding at
any time in excess of the maximum amount of Advances permitted hereunder shall be immediately due
and payable without the necessity of any demand, at the Payment Office, whether or not a Default or
Event of Default has occurred.



     2.8. Statement of Account. Agent shall maintain, in accordance with its customary
procedures, a loan account (“Borrowers’ Account”) in the name of Borrowers in which shall
be recorded the date and amount of each Advance made by Agent and the date and amount of each
payment in respect thereof; provided, however, the failure by Agent to record the date and amount
of any Advance shall not adversely affect Agent or any Lender. Each month, Agent shall send to
Borrowing Agent a statement showing the accounting for the Advances made, payments made or credited
in respect thereof, and other transactions between Agent and Borrowers during such month. The
monthly statements shall be deemed correct and binding upon Borrowers in the absence of manifest
error and shall constitute an account stated between Lenders and Borrowers unless Agent receives a
written statement of Borrowers’ specific exceptions thereto within thirty (30) days after such
statement is received by Borrowing Agent. The records of Agent with respect to the loan account
shall be conclusive evidence absent manifest error of the amounts of Advances and other charges
thereto and of payments applicable thereto.



     2.9. Letters of Credit. Subject to the terms and conditions hereof, Agent shall issue
or cause the issuance of standby and/or trade letters of credit (“Letters of Credit”) for
the account of any Borrower; provided, however, that Agent will not be required to issue or cause
to be issued any Letters of Credit to the extent that the issuance thereof would then cause the sum
of (i) the outstanding Revolving Advances plus (ii) the Maximum Undrawn Amount of all outstanding
Letters of Credit to exceed the lesser of (x) the Maximum Revolving Advance Amount minus the amount
of reserves, if any, established in accordance with Section 2.1(a)(y)(iii) or (y) the Formula
Amount. The Maximum Undrawn Amount of outstanding Letters of Credit shall not exceed in the
aggregate at any time the Letter of Credit Sublimit. All disbursements or payments related to
Letters of Credit shall be deemed to be Domestic Rate Loans consisting of Revolving Advances and
shall bear interest at the Revolving Interest Rate
for Domestic Rate Loans; Letters of Credit that
have not been drawn upon shall not bear interest.



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     2.10. Issuance of Letters of Credit.



          (a) Borrowing Agent, on behalf of Borrowers, may request Agent to issue or cause the issuance
of a Letter of Credit by delivering to Agent at the Payment Office, prior to 10:00 a.m., at least
five (5) Business Days’ prior to the proposed date of issuance, Agent’s form of Letter of Credit
Application (the “Letter of Credit Application”) completed to the satisfaction of Agent;
and, such other certificates, documents and other papers and information as Agent may reasonably
request. Borrowing Agent, on behalf of Borrowers, also has the right to give instructions and make
agreements with respect to any application, any applicable letter of credit and security agreement,
any applicable letter of credit reimbursement agreement and/or any other applicable agreement, any
letter of credit and the disposition of documents, disposition of any unutilized funds, and to
agree with Agent upon any amendment, extension or renewal of any Letter of Credit.




          (b) Each Letter of Credit shall, among other things, (i) provide for the payment of sight
drafts, other written demands for payment, or acceptances of usance drafts when presented for honor
thereunder in accordance with the terms thereof and when accompanied by the documents described
therein and (ii) have an expiry date not later than twenty-four (24) months after such Letter of
Credit’s date of issuance and in no event later than the last day of the Term. Each standby Letter
of Credit shall be subject either to the Uniform Customs and Practice for Documentary Credits as
most recently published by the International Chamber of Commerce at the time a Letter of Credit is
issued (the “UCP”) or the International Standby Practices (ISP98 International Chamber of
Commerce Publication Number 590) (the “ISP98 Rules”)), and any subsequent revision thereof
at the time a standby Letter of Credit is issued, as determined by Agent, and each trade Letter of
Credit shall be subject to the UCP.




          (c) Agent shall use its reasonable efforts to notify Lenders of the request by Borrowing Agent
for a Letter of Credit hereunder.




     2.11. Requirements For Issuance of Letters of Credit.



          (a) Borrowing Agent shall authorize and direct any Issuer to name the applicable Borrower as
the “Applicant” or “Account Party” of each Letter of Credit. If Agent is not the Issuer of any
Letter of Credit, Borrowing Agent shall authorize and direct the Issuer to deliver to Agent all
instruments, documents, and other writings and property received by the Issuer pursuant to the
Letter of Credit and to accept and rely upon Agent’s instructions and agreements with respect to
all matters arising in connection with the Letter of Credit, the application therefore or any
acceptance therefore.




          (b) In connection with all Letters of Credit issued or caused to be issued by Agent under this
Agreement, each Borrower hereby appoints Agent, or its designee, as its attorney, with full power
and authority if a Default or an Event of Default shall have occurred, (i) to sign and/or endorse
such Borrower’s name upon any warehouse or other receipts, letter of credit applications and
acceptances, (ii) to sign such Borrower’s name on bills of lading; (iii) to





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clear Inventory through
the United States of America Customs Department (“Customs”) in the name of such Borrower or
Agent or Agent’s designee, and to sign and deliver to Customs officials powers of attorney in the
name of such Borrower for such purpose; and (iv) to complete in such Borrower’s name or Agent’s, or
in the name of Agent’s designee, any order, sale or transaction, obtain the necessary documents in
connection therewith, and collect the proceeds thereof. Neither Agent nor its attorneys will be
liable for any acts or omissions nor for any error of judgment or mistakes of fact or law, except
for Agent’s or its attorney’s willful misconduct. This power, being coupled with an interest, is
irrevocable as long as any Letters of Credit remain outstanding.




     2.12. Disbursements, Reimbursement.



          (a) Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from Agent a participation in such
Letter of Credit and each drawing thereunder in an amount equal to such Lender’s Commitment
Percentage of the Maximum Face Amount of such Letter of Credit and the amount of such drawing,
respectively.




          (b) In the event of any request for a drawing under a Letter of Credit by the beneficiary or
transferee thereof, Agent will promptly notify Borrowing Agent. Provided that Borrowing Agent
shall have received such notice, Borrowers shall reimburse (such obligation to reimburse Agent
shall sometimes be referred to as a “Reimbursement Obligation”) Agent prior to 12:00 p.m.
on each date that an amount is paid by Agent under any Letter of Credit (each such date, a
“Drawing Date”) in an amount equal to the amount so paid by Agent. In the event Borrowers
fail to reimburse Agent for the full amount of any drawing under any Letter of Credit by 12:00 p.m.
on the Drawing Date, Agent will promptly notify each Lender thereof, and Borrowers shall be deemed
to have requested that a Revolving Advance maintained as a Domestic Rate Loan be made by Lenders to
be disbursed on the Drawing Date under such Letter of Credit, subject to the amount of the
unutilized portion of the lesser of (x) Maximum Revolving Advance Amount minus the amount of
reserves, if any, established in accordance with Section 2.1(a)(y)(iii) or (y) the Formula Amount,
less, in each case, the Maximum Undrawn Amount of all Letters of Credit and subject to Section 8.2
hereof. Any notice given by Agent pursuant to this Section 2.12(b) may be oral if immediately
confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.




          (c) Each Lender shall upon any notice pursuant to Section 2.12(b) make available to Agent an
amount in immediately available funds equal to its Commitment Percentage of the amount of the
drawing, whereupon the participating Lenders shall (subject to Section 2.12(d)) each be deemed to
have made a Revolving Advance maintained as a Domestic Rate Loan to Borrowers in that amount. If
any Lender so notified fails to make available to Agent the amount of such Lender’s Commitment
Percentage of such amount by no later than
2:00 p.m., on the Drawing Date, then interest shall accrue on such Lender’s obligation to make
such payment, from the Drawing Date to the date on which such Lender makes such payment (i) at a
rate per annum equal to the Federal Funds Effective Rate during the first three days following the
Drawing Date and (ii) at a rate per annum equal to the rate applicable to Revolving Advances
maintained as a Domestic Rate Loan on and after the fourth day following the





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Drawing Date. Agent
will promptly give notice of the occurrence of the Drawing Date, but failure of Agent to give any
such notice on the Drawing Date or in sufficient time to enable any Lender to effect such payment
on such date shall not relieve such Lender from its obligation under this Section 2.12(c), provided
that such Lender shall not be obligated to pay interest as provided in Section 2.12(c) (i) and (ii)
until and commencing from the date of receipt of notice from Agent of a drawing.




          (d) With respect to any unreimbursed drawing that is not converted into a Revolving Advance
maintained as a Domestic Rate Loan to Borrowers in whole or in part as contemplated by Section
2.12(b), because of Borrowers’ failure to satisfy the conditions set forth in Section 8.2 (other
than any notice requirements) or for any other reason, Borrowers shall be deemed to have incurred
from Agent a borrowing (each a “Letter of Credit Borrowing”) in the amount of such drawing.
Such Letter of Credit Borrowing shall be due and payable on demand (together with interest) and
shall bear interest at the rate per annum applicable to a Revolving Advance maintained as a
Domestic Rate Loan. Each Lender’s payment to Agent pursuant to Section 2.12(c) shall be deemed to
be a payment in respect of its participation in such Letter of Credit Borrowing and shall
constitute a “Participation Advance” from such Lender in satisfaction of its Participation
Commitment under this Section 2.12.




          (e) Each Lender’s Participation Commitment shall continue until the last to occur of any of
the following events: (x) Agent ceases to be obligated to issue or cause to be issued Letters of
Credit hereunder; (y) no Letter of Credit issued or created hereunder remains outstanding and
uncancelled and (z) all Persons (other than Borrowers) have been fully reimbursed for all payments
made under or relating to Letters of Credit.




     2.13. Repayment of Participation Advances.



          (a) Upon (and only upon) receipt by Agent for its account of immediately available funds from
Borrowers (i) in reimbursement of any payment made by Agent under the Letter of Credit with respect
to which any Lender has made a Participation Advance to Agent, or (ii) in payment of interest on
such a payment made by Agent under such a Letter of Credit, Agent will pay to each Lender, in the
same funds as those received by Agent, the amount of such Lender’s Commitment Percentage of such
funds, except Agent shall retain the amount of the Commitment Percentage of such funds of any
Lender that did not make a Participation Advance in respect of such payment by Agent.




          (b) If Agent is required at any time to return to any Borrower, or to a trustee, receiver,
liquidator, custodian, or any official in any insolvency proceeding, any portion of the payments
made by Borrowers to Agent pursuant to Section 2.13(a) in reimbursement of a payment made under the
Letter of Credit or interest or fee thereon, each Lender shall, on demand of Agent, forthwith
return to Agent the amount of its Commitment Percentage of any amounts so returned by Agent plus
interest at the Federal Funds Effective Rate.




     2.14. Documentation. Each Borrower agrees to be bound by the terms of the Letter of
Credit Application and by Agent’s interpretations of any Letter of Credit issued on behalf of such
Borrower and by Agent’s written regulations and customary practices relating to letters of credit,
though Agent’s interpretations may be different from such Borrower’s own. In the event



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of a
conflict between the Letter of Credit Application and this Agreement, this Agreement shall govern.
It is understood and agreed that, except in the case of gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final non-appealable judgment), Agent shall
not be liable for any error, negligence and/or mistakes, whether of omission or commission
(INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO ANY ACT OR INACTIVE ARISING FROM AGENT’S OR
LENDERS’ NEGLIGENCE OR STRICT LIABILITY), in following the Borrowing Agent’s or any Borrower’s
instructions or those contained in the Letters of Credit or any modifications, amendments or
supplements thereto.




     2.15. Determination to Honor Drawing Request. In determining whether to honor any
request for drawing under any Letter of Credit by the beneficiary thereof, Agent shall be
responsible only to determine that the documents and certificates required to be delivered under
such Letter of Credit have been delivered and that they comply on their face with the requirements
of such Letter of Credit and that any other drawing condition appearing on the face of such Letter
of Credit has been satisfied in the manner so set forth.



     2.16. Nature of Participation and Reimbursement Obligations. Each Lender’s obligation
in accordance with this Agreement to make the Revolving Advances or Participation Advances as a
result of a drawing under a Letter of Credit, and the obligations of Borrowers to reimburse Agent
upon a draw under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall
be performed strictly in accordance with the terms of this Section 2.16 under all circumstances,
including the following circumstances:



               (i) any set-off, counterclaim, recoupment, defense or other right which such Lender may have
against Agent, any Borrower or any other Person for any reason whatsoever;



               (ii) the failure of any Borrower or any other Person to comply, in connection with a Letter of
Credit Borrowing, with the conditions set forth in this Agreement for the making of a Revolving
Advance, it being acknowledged that such conditions are not required for the making of a Letter of
Credit Borrowing and the obligation of Lenders to make Participation Advances under Section 2.12;



               (iii) any lack of validity or enforceability of any Letter of Credit;



               (iv) any claim of breach of warranty that might be made by Borrower or any Lender against the
beneficiary of a Letter of Credit, or the existence of any claim, set-off, recoupment,
counterclaim, cross-claim, defense or other right which any Borrower or any Lender may have at any
time against a beneficiary, any successor beneficiary or any transferee of any
Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be
acting), Agent or any Lender or any other Person, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction (including any underlying transaction
between any Borrower or any Subsidiaries of such Borrower and the beneficiary for which any Letter
of Credit was procured);



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               (v) the lack of power or authority of any signer of (or any defect in or forgery of any
signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy,
enforceability or genuineness of any draft, demand, instrument, certificate or other document
presented under or in connection with any Letter of Credit, or any fraud or alleged fraud in
connection with any Letter of Credit, or the transport of any property or provisions of services
relating to a Letter of Credit, in each case even if Agent or any of Agent’s Affiliates has been
notified thereof;



               (vi) payment by Agent under any Letter of Credit against presentation of a demand, draft or
certificate or other document which does not comply with the terms of such Letter of Credit;



               (vii) the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit,
or any other Person having a role in any transaction or obligation relating to a Letter of Credit,
or the existence, nature, quality, quantity, condition, value or other characteristic of any
property or services relating to a Letter of Credit;



               (viii) any failure by Agent or any of Agent’s Affiliates to issue any Letter of Credit in the
form requested by Borrowing Agent, unless Agent has received written notice from Borrowing Agent of
such failure within three (3) Business Days after Agent shall have furnished Borrowing Agent a copy
of such Letter of Credit and such error is material and no drawing has been made thereon prior to
receipt of such notice;



               (ix) any Material Adverse Effect on any Loan Party;



               (x) any breach of this Agreement or any Other Document by any party thereto;



               (xi) the occurrence or continuance of an insolvency proceeding with respect to any Loan Party;



               (xii) the fact that a Default or Event of Default shall have occurred and be continuing;



               (xiii) the fact that the Term shall have expired or this Agreement or the Obligations
hereunder shall have been terminated; and



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



     2.17. Indemnity. In addition to amounts payable as provided in Section 16.5, each Borrower hereby agrees to
protect, indemnify, pay and save harmless Agent and any of Agent’s Affiliates that have issued a
Letter of Credit from and against any and all claims, demands, liabilities, damages, taxes,
penalties, interest, judgments, losses, costs, charges and expenses (including reasonable fees,
expenses and disbursements of counsel and allocated costs of internal counsel) which Agent or any
of Agent’s Affiliates may incur or be subject to as a consequence, direct or indirect, of the
issuance of any Letter of Credit (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO ANY OTHERWISE
INDEMNIFIED



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MATTER ARISING FROM AGENT’S OR LENDERS’ NEGLIGENCE OR STRICT LIABILITY), other than as
a result of (A) the gross negligence or willful misconduct of Agent as determined by a final and
non-appealable judgment of a court of competent jurisdiction or (b) the wrongful dishonor by Agent
or any of Agent’s Affiliates of a proper demand for payment made under any Letter of Credit, except
if such dishonor resulted from any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto Governmental Body (all such acts or omissions herein called
“Governmental Acts”).




     2.18. Liability for Acts and Omissions. As between Borrowers and Agent and Lenders,
each Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit
by, the respective beneficiaries of such Letters of Credit (INCLUDING, WITHOUT LIMITATION, WITH
RESPECT TO ANY OTHERWISE INDEMNIFIED MATTER ARISING FROM AGENT’S OR LENDERS’ NEGLIGENCE OR STRICT
LIABILITY). In furtherance and not in limitation of the respective foregoing, Agent shall not be
responsible for: (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for an issuance of any such
Letter of Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged (even if Agent shall have been notified thereof);
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii)
the failure of the beneficiary of any such Letter of Credit, or any other party to which such
Letter of Credit may be transferred, to comply fully with any conditions required in order to draw
upon such Letter of Credit or any other claim of any Borrower against any beneficiary of such
Letter of Credit, or any such transferee, or any dispute between or among any Borrower and any
beneficiary of any Letter of Credit or any such transferee; (iv) errors, omissions, interruptions
or delays in transmission or delivery of any messages, by mail, cable, facsimile, telex or
otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi)
any loss or delay in the transmission or otherwise of any document required in order to make a
drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of
Credit; or (viii) any consequences arising from causes beyond the control of Agent, including any
governmental acts, and none of the above shall affect or impair, or prevent the vesting of, any of
Agent’s rights or powers hereunder. Nothing in the preceding sentence shall relieve Agent from
liability for Agent’s gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final non-appealable judgment) in connection with actions or omissions described
in such clauses (i) through (viii) of such sentence. In no event shall Agent or Agent’s Affiliates
be liable to any Borrower for any
indirect, consequential, incidental, punitive, exemplary or special damages or expenses
(including without limitation attorneys’ fees), or for any damages resulting from any change in the
value of any property relating to a Letter of Credit.



     Without limiting the generality of the foregoing, Agent and each of its Affiliates (i) may
rely on any oral or other communication believed in good faith by Agent or such Affiliate to have
been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor
any presentation if the documents presented appear on their face substantially to comply with the
terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored
presentation under a Letter of Credit, whether such dishonor was pursuant to a court



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order, to
settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to
reimbursement to the same extent as if such presentation had initially been honored, together with
any interest paid by Agent or its Affiliates; (iv) may honor any drawing that is payable upon
presentation of a statement advising negotiation or payment, upon receipt of such statement (even
if such statement indicates that a draft or other document is being delivered separately), and
shall not be liable for any failure of any such draft or other document to arrive, or to conform in
any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming
that it rightfully honored under the laws or practices of the place where such bank is located; and
(vi) may settle or adjust any claim or demand made on Agent or its Affiliate in any way related to
any order issued at the applicant’s request to an air carrier, a letter of guarantee or of
indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in
connection with any Letter of Credit that is the subject of such Order, notwithstanding that any
drafts or other documents presented in connection with such Letter of Credit fail to conform in any
way with such Letter of Credit.




     In furtherance and extension and not in limitation of the specific provisions set forth above,
any action taken or omitted by Agent under or in connection with the Letters of Credit issued by it
or any documents and certificates delivered thereunder, if taken or omitted in its good faith and
without gross negligence (as determined by a court of competent jurisdiction in a final
non-appealable judgment), shall not put Agent under any resulting liability to any Borrower or any
Lender.



     2.19. Additional Payments. Any sums expended by Agent or any Lender due to any
Borrower’s failure to perform or comply with its obligations under this Agreement or any Other
Document including any Borrower’s obligations under Sections 4.2, 4.4, 4.12, 4.13, 4.14 and 6.1
hereof, may be charged to Borrowers’ Account as a Revolving Advance and added to the Obligations.



     2.20. Manner of Borrowing and Payment.



          (a) Each borrowing of Revolving Advances shall be advanced according to the applicable
Commitment Percentages of Lenders. The Term Loan shall be advanced according to the Commitment
Percentages of Lenders.




          (b) Each payment (including each prepayment) by any Borrower on account of the principal of
and interest on the Revolving Advances, shall be applied to the Revolving
Advances pro rata according to the applicable Commitment Percentages of Lenders. Each payment
(including each prepayment) by any Borrower on account of the principal of and interest on the Term
Note, shall be made from or to, or applied to that portion of the Term Loan evidenced by the Term
Note pro rata according to the Commitment Percentages of Lenders. Except as expressly provided
herein, all payments (including prepayments) to be made by any Borrower on account of principal,
interest and fees shall be made without set off or counterclaim and shall be made to Agent on
behalf of Lenders to the Payment Office, in each case on or prior to 1:00 p.m., in Dollars and in
immediately available funds.




          (c) (i) Notwithstanding anything to the contrary contained in Sections 2.20(a) and (b) hereof,
commencing with the first Business Day following the Closing Date, each





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borrowing of Revolving
Advances shall be advanced by Agent and each payment by any Borrower on account of Revolving
Advances shall be applied first to those Revolving Advances advanced by Agent. On or before 1:00
p.m., on each Settlement Date commencing with the first Settlement Date following the Closing Date,
Agent and Lenders shall make certain payments as follows: (I) if the aggregate amount of new
Revolving Advances made by Agent during the preceding Week (if any) exceeds the aggregate amount of
repayments applied to outstanding Revolving Advances during such preceding Week, then each Lender
shall provide Agent with funds in an amount equal to its applicable Commitment Percentage of the
difference between (w) such Revolving Advances and (x) such repayments and (II) if the aggregate
amount of repayments applied to outstanding Revolving Advances during such Week exceeds the
aggregate amount of new Revolving Advances made during such Week, then Agent shall provide each
Lender with funds in an amount equal to its applicable Commitment Percentage of the difference
between (y) such repayments and (z) such Revolving Advances.




               (ii) Each Lender shall be entitled to earn interest at the applicable Revolving Interest Rate
on outstanding Advances which it has funded.



               (iii) Promptly following each Settlement Date, Agent shall submit to each Lender a certificate
with respect to payments received and Advances made during the Week immediately preceding such
Settlement Date. Such certificate of Agent shall be conclusive in the absence of manifest error.



          (d) If any Lender or Participant (a “benefited Lender”) shall at any time receive any
payment of all or part of its Advances, or interest thereon, or receive any Collateral in respect
thereof (whether voluntarily or involuntarily or by set-off) in a greater proportion than any such
payment to and Collateral received by any other Lender, if any, in respect of such other Lender’s
Advances, or interest thereon, and such greater proportionate payment or receipt of Collateral is
not expressly permitted hereunder, such benefited Lender shall purchase for cash from the other
Lenders a participation in such portion of each such other Lender’s Advances, or shall provide such
other Lender with the benefits of any such Collateral, or the proceeds thereof, as shall be
necessary to cause such benefited Lender to share the excess payment or benefits of such Collateral
or proceeds ratably with each of the other Lenders; provided, however, that if all or any portion
of such excess payment or benefits is thereafter recovered from such benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. Each Lender so purchasing a portion of another
Lender’s Advances may exercise all rights of payment (including rights of set-off) with
respect to such portion as fully as if such Lender were the direct holder of such portion.




          (e) Unless Agent shall have been notified by telephone, confirmed in writing, by any Lender
that such Lender will not make the amount which would constitute its applicable Commitment
Percentage of the Advances available to Agent, Agent may (but shall not be obligated to) assume
that such Lender shall make such amount available to Agent on the next Settlement Date and, in
reliance upon such assumption, make available to Borrowers a corresponding amount. Agent will
promptly notify Borrowing Agent of its receipt of any such notice from a Lender. If such amount is
made available to Agent on a date after such next Settlement Date, such Lender shall pay to Agent
on demand an amount equal to the product of (i) the daily average Federal Funds Rate (computed on
the basis of a year of 360 days) during such




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period as quoted by Agent, times (ii) such amount,
times (iii) the number of days from and including such Settlement Date to the date on which such
amount becomes immediately available to Agent. A certificate of Agent submitted to any Lender with
respect to any amounts owing under this paragraph (e) shall be conclusive, in the absence of
manifest error. If such amount is not in fact made available to Agent by such Lender within three
(3) Business Days after such Settlement Date, Agent shall be entitled to recover such an amount,
with interest thereon at the rate per annum then applicable to such Revolving Advances hereunder,
on demand from Borrowers; provided, however, that Agent’s right to such recovery shall not
prejudice or otherwise adversely affect Borrowers’ rights (if any) against such Lender.




     2.21. Mandatory Prepayments.



          (a) Subject to Section 4.3 hereof, when any Borrower sells or otherwise disposes of any
Collateral other than Inventory in the Ordinary Course of Business, Borrowers shall repay the
Advances in an amount equal to the net proceeds of such sale (i.e., gross proceeds less the
reasonable costs of such sales or other dispositions), such repayments to be made promptly but in
no event more than one (1) Business Day following receipt of such net proceeds, and until the date
of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to
be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such
repayments shall be applied (i) first, to the outstanding principal installments of the Term Loan
in the inverse order of the maturities thereof and (ii) second, to the remaining Advances in such
order as Agent may determine, subject to Borrowers’ ability to reborrow Revolving Advances in
accordance with the terms hereof.




          (b) Borrowers shall prepay the outstanding principal installments of the Term Loan in the
inverse order of maturities in an amount equal to twenty-five percent (25%) of Excess Cash Flow for
each fiscal year commencing on or after September 1, 2010, payable upon delivery of the financial
statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any
event not later than one hundred twenty (120) days after the end of each such fiscal year. In the
event that the financial statement is not so delivered, then a calculation based upon estimated
amounts shall be made by Agent upon which calculation Borrowers shall make the prepayment required
by this Section 2.21(c), subject to adjustment when the financial statement is delivered to Agent
as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent
or Lenders may have as a result of the failure by Borrowers to deliver such financial statement.




     2.22. Use of Proceeds.



          (a) On the Closing Date, Holdings shall apply the proceeds of the Advances made on the Closing
Date to finance a portion of the consideration payable under the Acquisition Agreement and to
refinance existing Indebtedness of Borrowers (other than Holdings). After the Closing Date,
Borrowers (other than Holdings) shall apply the proceeds of Advances to (i) pay fees and expenses
relating to the Transaction (including the Transaction Costs), and (ii) provide for their working
capital needs and reimburse drawings under Letters of Credit.




          (b) Without limiting the generality of Section 2.22(a) above, no Loan Party nor any other
Person which may in the future become party to this Agreement or the Other




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Documents as a Loan
Party, intends to use nor shall they use any portion of the proceeds of the Advances, directly or
indirectly, for any purpose in violation of the Trading with the Enemy Act.




     2.23. Defaulting Lender.



          (a) Notwithstanding anything to the contrary contained herein, in the event any Lender (x) has
refused (which refusal constitutes a breach by such Lender of its obligations under this Agreement)
to make available its portion of any Advance or (y) notifies either Agent or Borrowing Agent that
it does not intend to make available its portion of any Advance (if the actual refusal would
constitute a breach by such Lender of its obligations under this Agreement) (each, a “Lender
Default”), all rights and obligations hereunder of such Lender (a “Defaulting Lender”)
as to which a Lender Default is in effect and of the other parties hereto shall be modified to the
extent of the express provisions of this Section 2.23 while such Lender Default remains in effect.




          (b) Advances shall be incurred pro rata from Lenders (the “Non-Defaulting Lenders”)
which are not Defaulting Lenders based on their respective Commitment Percentages, and no
Commitment Percentage of any Lender or any pro rata share of any Advances required to be advanced
by any Lender shall be increased as a result of such Lender Default. Amounts received in respect
of principal of any type of Advances shall be applied to reduce the applicable Advances of each
Lender (other than any Defaulting Lender) pro rata based on the aggregate of the outstanding
Advances of that type of all Lenders at the time of such application; provided, that, Agent shall
not be obligated to transfer to a Defaulting Lender any payments received by Agent for the
Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any
payments hereunder (including any principal, interest or fees). Amounts payable to a Defaulting
Lender shall instead be paid to or retained by Agent. Agent may hold and, in its discretion,
re-lend to a Borrower the amount of such payments received or retained by it for the account of
such Defaulting Lender.




          (c) A Defaulting Lender shall not be entitled to give instructions to Agent or to approve,
disapprove, consent to or vote on any matters relating to this Agreement and the Other Documents.
All amendments, waivers and other modifications of this Agreement and the Other Documents may be
made without regard to a Defaulting Lender and, for purposes of the definition of “Required
Lenders”, a Defaulting Lender shall be deemed not to be a Lender and not to have either Advances
outstanding or a Commitment Percentage.




          (d) Other than as expressly set forth in this Section 2.23, the rights and obligations of a
Defaulting Lender (including the obligation to indemnify Agent) and the other parties hereto shall
remain unchanged. Nothing in this Section 2.23 shall be deemed to release any Defaulting Lender
from its obligations under this Agreement and the Other Documents, shall alter such obligations,
shall operate as a waiver of any default by such Defaulting Lender hereunder, or shall prejudice
any rights which any Borrower, Agent or any Lender may have against any Defaulting Lender as a
result of any default by such Defaulting Lender hereunder.




          (e) In the event a Defaulting Lender retroactively cures to the satisfaction of Agent the
breach which caused a Lender to become a Defaulting Lender, such Defaulting Lender shall no longer
be a Defaulting Lender and shall be treated as a Lender under this Agreement.




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III INTEREST AND FEES.




     3.1. Interest. Interest on Advances shall be payable in arrears on the first day of
each month with respect to Domestic Rate Loans and, with respect to Eurodollar Rate Loans, at the
end of each Interest Period. Interest charges shall be computed on the actual principal amount of
Advances outstanding during the month at a rate per annum equal to (i) with respect to Revolving
Advances, the applicable Revolving Interest Rate and (ii) with respect to the Term Loan, the
applicable Term Loan Rate (as applicable, the “Contract Rate”). Whenever, subsequent to
the date of this Agreement, the Alternate Base Rate is increased or decreased, the applicable
Contract Rate shall be similarly changed without notice or demand of any kind by an amount equal to
the amount of such change in the Alternate Base Rate during the time such change or changes remain
in effect. The Eurodollar Rate shall be adjusted with respect to Eurodollar Rate Loans without
notice or demand of any kind on the effective date of any change in the Reserve Percentage as of
such effective date. Upon and after the occurrence of an Event of Default, and during the
continuation thereof, at the option of Agent or at the direction of Required Lenders, the
Obligations shall bear interest at the applicable Contract Rate plus two (2%) percent per annum the
“Default Rate”).



     3.2. Letter of Credit Fees.



          (a) Borrowers shall pay (x) to Agent, for the ratable benefit of Lenders, fees for each Letter
of Credit for the period from and excluding the date of issuance of same to and including the date
of expiration or termination, equal to the average daily face amount of each outstanding Letter of
Credit multiplied by two and three-quarters percent (2.75%) per annum, such fees to be calculated
on the basis of a 360-day year for the actual number of days elapsed and to be payable quarterly in
arrears on the first day of each quarter and on the last day of the Term, and (y) to the Issuer, a
fronting fee of one quarter of one percent (0.25%) per annum, together with any and all
administrative, issuance, amendment, payment and negotiation charges with respect to Letters of
Credit and all fees and expenses as agreed upon by the Issuer and the Borrowing Agent in connection
with any Letter of Credit, including in connection with the opening, amendment or renewal of any
such Letter of Credit and any acceptances created thereunder and shall reimburse Agent for any and
all fees and expenses, if any, paid by Agent to the Issuer (all of the foregoing fees, the
“Letter of Credit and Fees”). All such charges shall be
deemed earned in full on the date when the same are due and payable hereunder and shall not be
subject to rebate or pro-ration upon the termination of this Agreement for any reason. Any such
charge in effect at the time of a particular transaction shall be the charge for that transaction,
notwithstanding any subsequent change in the Issuer’s prevailing charges for that type of
transaction. All Letter of Credit Fees and Acceptance Fees payable hereunder shall be deemed
earned in full on the date when the same are due and payable hereunder and shall not be subject to
rebate or pro-ration upon the termination of this Agreement for any reason. Upon and after the
occurrence of an Event of Default, and during the continuation thereof, at the option of Agent or
at the direction of Required Lenders, the Letter of Credit Fees described in clause (x) of this
Section 3.2(a) shall be increased by an additional two percent (2%) per annum.




     On demand, Borrowers will cause cash to be deposited and maintained in an account with Agent,
as cash collateral, in an amount equal to one hundred and five percent (105%) of the Maximum
Undrawn Amount of all outstanding Letters of Credit, and each Borrower hereby



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irrevocably
authorizes Agent, in its discretion, on such Borrower’s behalf and in such Borrower’s name, to open
such an account and to make and maintain deposits therein, or in an account opened by such
Borrower, in the amounts required to be made by such Borrower, out of the proceeds of Receivables
or other Collateral or out of any other funds of such Borrower coming into any Lender’s possession
at any time. Agent will invest such cash collateral (less applicable reserves) in such short-term
money-market items as to which Agent and such Borrower mutually agree and the net return on such
investments shall be credited to such account and constitute additional cash collateral. No
Borrower may withdraw amounts credited to any such account except upon the occurrence of all of the
following: (x) payment and performance in full of all Obligations, (y) expiration of all Letters of
Credit and (z) termination of this Agreement.




     3.3. Closing Fee and Facility Fee.



          (a) Closing Fee. Upon the execution of this Agreement, Borrowers shall pay to Agent
for the ratable benefit of Lenders a closing fee of $180,000, less that portion of the commitment
fee of $60,000 and deposit fee of $50,000 heretofore paid by Borrowers to Agent remaining after
application of such fee to Agent’s out of pocket costs, fees (including attorneys’ fees) and
expenses.




          (b) Facility Fee. If, for any calendar quarter during the Term, the average daily
unpaid balance of the Revolving Advances and undrawn amount of any outstanding Letters of Credit
for each day of such calendar quarter does not equal the Maximum Revolving Advance Amount, then
Borrowers shall pay to Agent for the ratable benefit of Lenders a fee at a rate equal to one
quarter of one percent (0.25%) per annum on the amount by which the Maximum Revolving Advance
Amount exceeds such average daily unpaid balance. Such fee shall be payable to Agent in arrears on
the first day of each calendar quarter with respect to the previous calendar quarter.




     3.4. Collateral Management Fee, Collateral Examination Fee and Fee Letter.



          (a) Collateral Management Fee. Borrowers shall pay Agent a collateral management fee
equal to $2,000 per calendar month commencing on the first day of the calendar
month following the Closing Date and on the first day of each calendar month thereafter during
the Term.




          (b) Collateral Examination Fee. Borrowers shall pay to Agent on the first day of each
month following any month in which Agent performs any collateral examination, including, without
limitation, any field examination, collateral analysis or other business analysis, the need for
which is to be determined by Agent and which monitoring is undertaken by Agent or for Agent’s
benefit — a collateral examination fee in an amount equal to $850 per day for each person employed
to perform such monitoring, plus all costs and disbursements incurred by Agent in the performance
of such examination or analysis.




     The fees set forth in this Section 3.3 and 3.4 shall be in addition to any other fees, costs
or expenses payable pursuant to any Other Document and each of the fees described in Sections 3.3
and 3.4 constitute part of the Obligations. Each of the fees described in Sections 3.3 and 3.4



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shall be deemed earned in full and non-refundable on the date when same is due and payable
hereunder and shall not be subject to rebate or proration upon termination of this Agreement for
any reason.




     3.5. Computation of Interest and Fees. Interest and fees hereunder shall be computed
on the basis of a year of 360 days and for the actual number of days elapsed. If any payment to be
made hereunder becomes due and payable on a day other than a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and interest thereon shall be payable at the
applicable Contract Rate during such extension.



     3.6. Maximum Charges. It is the intention of the parties to comply strictly with
applicable usury laws. Accordingly, no rate change shall be put into effect that would result in a
rate greater than the highest rate permitted by law. Notwithstanding anything to the contrary
contained in this Agreement or in any Other Document, all agreements which either now are or which
shall become agreements among any Borrower, Agent and Lenders are hereby limited so that in no
contingency or event whatsoever shall the total liability for payments in the nature of interest,
additional interest and other charges exceed the applicable limits imposed by any applicable usury
laws. If any payments in the nature of interest, additional interest and other charges made under
this Agreement or any Other Document are held to be in excess of the limits imposed by any
applicable usury laws, it is agreed that any such amount held to be in excess shall be considered
payment of principal hereunder, and the indebtedness evidenced hereby shall be reduced by such
amount so that the total liability for payments in the nature of interest, additional interest and
other charges shall not exceed the applicable limits imposed by any applicable usury laws, in
compliance with the desires of Borrowers and Agent. This provision shall never be superseded or
waived and shall control every other provision of this Agreement or any Other Document and all
agreements among any Borrower and Agent and Lenders, or their respective successors and assigns.
Unless preempted by federal law or as permitted under the sentence immediately following this
sentence, the applicable Revolving Interest Rate, or Term Loan Interest Rate, from time to time in
effect under this Agreement may not exceed the
“weekly ceiling” from time to time in effect under Chapter 303 of the Texas Finance Code, as
amended from time to time (the “Texas Finance Code”). If the applicable state or federal
law is amended in the future to allow a greater rate of interest to be charged under this Agreement
than is presently allowed by applicable state or federal law, then the limitation of interest
hereunder shall be increased to the maximum rate of interest allowed by applicable state or federal
law as amended, which increase shall be effective hereunder on the effective date of such
amendment, and all interest charges owing to Lender by reason thereof shall be payable in
accordance with Section 2.6 hereof. If by operation of this provision, Borrowers would be
entitled to a refund of interest paid pursuant to this Agreement, each Lender agrees that it shall
pay to Borrowers upon Agent’s request such Lender’s Commitment Percentage of such interest to be
refunded, as determined by Agent.



     3.7. Increased Costs. In the event that any Applicable Law, or any change therein or
in the interpretation or application thereof, or compliance by any Lender (for purposes of this
Section 3.7, the term “Lender” shall include Agent or any Lender and any corporation or bank
controlling Agent or any Lender) and the office or branch where Agent or any Lender (as so defined)
makes or maintains any Eurodollar Rate Loans with any request or directive (whether
or not having
the force of law) from any central bank or other financial, monetary or other authority, shall:



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          (a) subject Agent or any Lender to any tax of any kind whatsoever with respect to this
Agreement or any Other Document or change the basis of taxation of payments to Agent or any Lender
of principal, fees, interest or any other amount payable hereunder or under any Other Documents
(except for changes in the rate of tax on the overall net income of Agent or any Lender by the
jurisdiction in which it maintains its principal office);




          (b) impose, modify or hold applicable any reserve, special deposit, assessment or similar
requirement against assets held by, or deposits in or for the account of, advances or loans by, or
other credit extended by, any office of Agent or any Lender, including pursuant to Regulation D of
the Board of Governors of the Federal Reserve System; or




          (c) impose on Agent or any Lender or the London interbank Eurodollar market any other
condition with respect to this Agreement or any Other Document;



and the result of any of the foregoing is to increase the cost to Agent or any Lender of making,
renewing or maintaining its Advances hereunder by an amount that Agent or such Lender deems to be
material or to reduce the amount of any payment (whether of principal, interest or otherwise) in
respect of any of the Advances by an amount that Agent or such Lender deems to be material, then,
in any case Borrowers shall promptly pay Agent or such Lender, upon its demand, such additional
amount as will compensate Agent or such Lender for such additional cost or such reduction, as the
case may be, provided that the foregoing shall not apply to increased costs which are reflected in
the Eurodollar Rate, as the case may be. Agent or such Lender shall certify the amount of such
additional cost or reduced amount to Borrowing Agent, and such certification shall be conclusive
absent manifest error. Notwithstanding the foregoing, for purposes of this Agreement, the
Dodd-Frank Wall Street Reform and Consumer Protection
Act and all requests, rules, guidelines or directives in connection therewith are deemed to have
gone into effect and adopted thirty (30) days after the date of this Agreement.




     3.8. Basis For Determining Interest Rate Inadequate or Unfair. In the event that
Agent or any Lender shall have determined that:



          (a) reasonable means do not exist for ascertaining the Eurodollar Rate applicable pursuant to
Section 2.2 hereof for any Interest Period; or




          (b) Dollar deposits in the relevant amount and for the relevant maturity are not available in
the London interbank Eurodollar market, with respect to an outstanding Eurodollar Rate Loan, a
proposed Eurodollar Rate Loan, or a proposed conversion of a Domestic Rate Loan into a Eurodollar
Rate Loan,



then Agent shall give Borrowing Agent prompt written or telephonic of such determination. If such
notice is given, (i) any such requested Eurodollar Rate Loan shall be made as a Domestic Rate Loan,
unless Borrowing Agent shall notify Agent no later than 10:00 a.m. two (2) Business Days prior to
the date of such proposed borrowing, that its request for such borrowing shall be cancelled or made
as an unaffected type of Eurodollar Rate Loan, (ii) any Domestic Rate Loan or Eurodollar Rate Loan
which was to have been converted to an affected type of Eurodollar Rate




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Loan shall be continued as
or converted into a Domestic Rate Loan, or, if Borrowing Agent shall notify Agent, no later than
10:00 a.m. two (2) Business Days prior to the proposed conversion, shall be maintained as an
unaffected type of Eurodollar Rate Loan, and (iii) any outstanding affected Eurodollar Rate Loans
shall be converted into a Domestic Rate Loan, or, if Borrowing Agent shall notify Agent, no later
than 10:00 a.m. two (2) Business Days prior to the last Business Day of the then current Interest
Period applicable to such affected Eurodollar Rate Loan, shall be converted into an unaffected type
of Eurodollar Rate Loan, on the last Business Day of the then current Interest Period for such
affected Eurodollar Rate Loans. Until such notice has been withdrawn, Lenders shall have no
obligation to make an affected type of Eurodollar Rate Loan or maintain outstanding affected
Eurodollar Rate Loans and no Borrower shall have the right to convert a Domestic Rate Loan or an
unaffected type of Eurodollar Rate Loan into an affected type of Eurodollar Rate Loan.




     3.9. Capital Adequacy.



          (a) In the event that Agent or any Lender shall have determined that any Applicable Law or
guideline regarding capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Body, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by Agent or any Lender (for purposes of
this Section 3.9, the term “Lender” shall include Agent or any Lender and any corporation or bank
controlling Agent or any Lender) and the office or branch where Agent or any Lender (as so defined)
makes or maintains any Eurodollar Rate Loans with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on Agent or any Lender’s
capital as a consequence of its obligations hereunder to a level below that which Agent or such
Lender could have achieved but for such
adoption, change or compliance (taking into consideration Agent’s and each Lender’s policies
with respect to capital adequacy) by an amount deemed by Agent or any Lender to be material, then,
from time to time, Borrowers shall pay upon demand to Agent or such Lender such additional amount
or amounts as will compensate Agent or such Lender for such reduction. In determining such amount
or amounts, Agent or such Lender may use any reasonable averaging or attribution methods. The
protection of this Section 3.9 shall be available to Agent and each Lender regardless of any
possible contention of invalidity or inapplicability with respect to the Applicable Law or
condition.




          (b) A certificate of Agent or such Lender setting forth such amount or amounts as shall be
necessary to compensate Agent or such Lender with respect to Section 3.9(a) hereof when delivered
to Borrowing Agent shall be conclusive absent manifest error.




     3.10. Gross Up for Taxes. If any Borrower shall be required by Applicable Law to
withhold or deduct any taxes from or in respect of any sum payable under this Agreement or any of
the Other Documents to Agent, or any Lender, assignee of any Lender, or Participant (each,
individually, a “Payee” and collectively, the “Payees”), (a) the sum payable to
such Payee or Payees, as the case may be, shall be increased as may be necessary so that, after
making all required withholding or deductions, the applicable Payee or Payees receives an amount
equal to the sum it would have received had no such withholding or deductions been made (the
“Gross-Up Payment”), (b) such Borrower shall make such withholding or deductions,



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and (c) such
Borrower shall pay the full amount withheld or deducted to the relevant taxation authority or other
authority in accordance with Applicable Law. Notwithstanding the foregoing, no Borrower shall be
obligated to make any portion of the Gross-Up Payment that is attributable to any withholding or
deductions that would not have been paid or claimed had the applicable Payee or Payees properly
claimed a complete exemption with respect thereto pursuant to Section 3.11 hereof.




     3.11. Withholding Tax Exemption.



          (a) Each Payee that is not incorporated under the Laws of the United States of America or a
state thereof (and, upon the written request of Agent, each other Payee) agrees that it will
deliver to Borrowing Agent and Agent two (2) duly completed appropriate valid Withholding
Certificates (as defined under §1.1441-1(c)(16) of the Income Tax Regulations
(“Regulations”)) certifying its status (i.e., U.S. or foreign person) and, if appropriate,
making a claim of reduced, or exemption from, U.S. withholding tax on the basis of an income tax
treaty or an exemption provided by the Code. The term “Withholding Certificate” means a Form W-9;
a Form W-8BEN; a Form W-8ECI; a Form W-8IMY and the related statements and certifications as
required under §1.1441-1(e)(2) and/or (3) of the Regulations; a statement described in
§1.871-14(c)(2)(v) of the Regulations; or any other certificates under the Code or Regulations that
certify or establish the status of a payee or beneficial owner as a U.S. or foreign person.




          (b) Each Payee required to deliver to Borrowing Agent and Agent a valid Withholding
Certificate pursuant to Section 3.11(a) hereof shall deliver such valid Withholding Certificate as
follows: (A) each Payee which is a party hereto on the Closing Date shall deliver
such valid Withholding Certificate at least five (5) Business Days prior to the first date on
which any interest or fees are payable by any Borrower hereunder for the account of such Payee; (B)
each Payee shall deliver such valid Withholding Certificate at least five (5) Business Days before
the effective date of such assignment or participation (unless Agent in its sole discretion shall
permit such Payee to deliver such Withholding Certificate less than five (5) Business Days before
such date in which case it shall be due on the date specified by Agent). Each Payee which so
delivers a valid Withholding Certificate further undertakes to deliver to Borrowing Agent and Agent
two (2) additional copies of such Withholding Certificate (or a successor form) on or before the
date that such Withholding Certificate expires or becomes obsolete or after the occurrence of any
event requiring a change in the most recent Withholding Certificate so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably requested by Borrowing
Agent or Agent.




          (c) Notwithstanding the submission of a Withholding Certificate claiming a reduced rate of or
exemption from U.S. withholding tax required under Section 3.11(b) hereof, Agent shall be entitled
to withhold United States federal income taxes at the full 30% withholding rate if in its
reasonable judgment it is required to do so under the due diligence requirements imposed upon a
withholding agent under §1.1441-7(b) of the Regulations. Further, Agent is indemnified under
§1.1461-1(e) of the Regulations against any claims and demands of any Payee for the amount of any
tax it deducts and withholds in accordance with regulations under §1441 of the Code.




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IV COLLATERAL: GENERAL TERMS




     4.1. Security Interest in the Collateral. To secure the prompt payment and
performance to Agent and each Lender of the Obligations, each Borrower hereby assigns, pledges and
grants to Agent for its benefit and for the ratable benefit of each Lender a continuing security
interest in and to and Lien on all of its Collateral, whether now owned or existing or hereafter
acquired or arising and wheresoever located. Each Borrower shall mark its books and records as may
be necessary or appropriate to evidence, protect and perfect Agent’s security interest and shall
cause its financial statements to reflect such security interest. Each Borrower shall promptly
provide Agent with written notice of all commercial tort claims, such notice to contain the case
title together with the applicable court and a brief description of the claim(s). Upon delivery of
each such notice, such Borrower shall be deemed to hereby grant to Agent a security interest and
lien in and to such commercial tort claims and all proceeds thereof.



     4.2. Perfection of Security Interest. Each Borrower shall take all action that may be
necessary or desirable, or that Agent may request, so as at all times to maintain the validity,
perfection, enforceability and priority of Agent’s security interest in and Lien on the Collateral
or to enable Agent to protect, exercise or enforce its rights hereunder and in the Collateral,
including, but not limited to, (i) immediately discharging all Liens other than Permitted
Encumbrances, (ii) obtaining Lien Waiver Agreements, (iii) delivering to Agent, endorsed or
accompanied by such instruments of assignment as Agent may specify, and stamping or marking, in
such manner as Agent may
specify, any and all chattel paper, instruments, letters of credits and advices thereof and
documents evidencing or forming a part of the Collateral, (iv) entering into warehousing, lockbox
and other custodial arrangements satisfactory to Agent, and (v) executing and delivering financing
statements, control agreements, instruments of pledge, mortgages, notices and assignments, in each
case in form and substance satisfactory to Agent, relating to the creation, validity, perfection,
maintenance or continuation of Agent’s security interest and Lien in and to the Collateral under
the Uniform Commercial Code or other Applicable Law. By its signature hereto, each Borrower hereby
authorizes Agent to file against such Borrower, one or more financing, continuation or amendment
statements pursuant to the Uniform Commercial Code in form and substance satisfactory to Agent
(which statements may have a description of collateral which is broader than that set forth
herein). All charges, expenses and fees Agent may incur in doing any of the foregoing, and any
local taxes relating thereto, shall be charged to Borrowers’ Account as a Revolving Advance of a
Domestic Rate Loan and added to the Obligations, or, at Agent’s option, shall be paid to Agent for
its benefit and for the ratable benefit of Lenders immediately upon demand.



     4.3. Disposition of Collateral. Each Borrower will safeguard and protect all
Collateral for Agent’s general account and make no disposition thereof whether by sale, lease or
otherwise except (a) the sale of Inventory in the Ordinary Course of Business and (b) the
disposition or transfer of obsolete and worn-out Equipment in the Ordinary Course of Business
during any fiscal year having an aggregate fair market value of not more than $750,000 and only to
the extent that the net cash proceeds of such disposition are remitted to Agent to, at the election
of the Borrowers (evidenced by a certificate setting forth such election delivered to Agent within
two (2) Business Days of any such disposition), either (x) be applied by Agent pursuant to Section
2.21 or (y) be applied to the outstanding Revolving Advances provided that Agent simultaneously
institutes a reserve pursuant to Section 2.1(a)(y) in an amount equal to such net



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cash proceeds,
which reserve shall be released upon the earlier to occur of (i) Borrowers request a Revolving
Advance in amount equal to or less than the amount of such reserve within 90 days following such
disposition to acquire replacement Equipment which shall be subject to Agent’s first priority
security interest, in which case, Agent shall make, subject to the provisions of Section 8.2 and
Article II hereof, a Revolving Advance available to Borrowers for such acquisition or (ii) 90 days
following such disposition shall elapse, in which case, Agent shall immediately release such
reserve and the proceeds of such disposition shall be applied by Agent pursuant to Section 2.21.




     4.4. Preservation of Collateral. Following the occurrence of a Default or Event of
Default in addition to the rights and remedies set forth in Section 11.1 hereof, Agent: (a) may at
any time take such steps as Agent deems necessary to protect Agent’s interest in and to preserve
the Collateral, including the hiring of such security guards or the placing of other security
protection measures as Agent may deem appropriate; (b) may employ and maintain at any of any
Borrower’s premises a custodian who shall have full authority to do all acts necessary to protect
Agent’s interests in the Collateral; (c) may lease warehouse facilities to which Agent may move all
or part of the Collateral; (d) may use Borrowers’ owned or leased lifts, hoists, trucks and other
facilities or
equipment for handling or removing the Collateral; and (e) shall have, and is hereby granted,
a right of ingress and egress to the places where the Collateral is located, and may proceed over
and through Borrowers’ owned or leased property. Each Borrower shall cooperate fully with all of
Agent’s efforts to preserve the Collateral and will take such actions to preserve the Collateral as
Agent may direct. All of Agent’s expenses of preserving the Collateral, including any expenses
relating to the bonding of a custodian, shall be charged to Borrowers’ Account as a Revolving
Advance maintained as a Domestic Rate Loan and added to the Obligations.



     4.5. Ownership of Collateral.



          (a) With respect to the Collateral, at the time the Collateral becomes subject to Agent’s
security interest: (i) each Borrower shall be the sole owner of and fully authorized and able to
sell, transfer, pledge and/or grant a first priority security interest in each and every item of
its respective Collateral to Agent; and, except for Permitted Encumbrances the Collateral shall be
free and clear of all Liens and encumbrances whatsoever; (ii) each document and agreement executed
by each Borrower or delivered to Agent or any Lender in connection with this Agreement shall be
true and correct in all respects; (iii) all signatures and endorsements of each Borrower that
appear on such documents and agreements shall be genuine and each Borrower shall have full capacity
to execute same; (iv) each Borrower’s Equipment and Inventory shall be located as set forth on
Schedule 4.5 and shall not be removed from such location(s) without the prior written consent of
Agent except with respect to (x) the sale of Inventory in the Ordinary Course of Business and (y)
Equipment to the extent permitted in Section 4.3 hereof.




          (b) (i) There is no location at which any Borrower has any Inventory (except for Inventory in
transit) other than those locations listed on Schedule 4.5; (ii) Schedule 4.5 hereto contains a
correct and complete list, as of the Closing Date, of the legal names and addresses of each
warehouse at which Inventory of any Borrower is stored; none of the receipts received by any
Borrower from any warehouse states that the goods covered thereby are to be delivered to




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bearer or
to the order of a named Person or to a named Person and such named Person’s assigns; (iii)
Schedule 4.5 hereto sets forth a correct and complete list as of the Closing Date of (A) each place
of business of each Borrower and (B) the chief executive office of each Borrower; and (iv) Schedule
4.5 hereto sets forth a correct and complete list as of the Closing Date of the location, by state
and street address, of all Real Property owned or leased by each Borrower, together with the names
and addresses of any landlords.




     4.6. Defense of Agent’s and Lenders’ Interests. Until (a) payment and performance in
full of all of the Obligations and (b) termination of this Agreement, Agent’s interests in the
Collateral shall continue in full force and effect. During such period no Borrower shall, without
Agent’s prior written consent, pledge, sell (except Inventory in the Ordinary Course of Business
and Equipment to the extent permitted in Section 4.3 hereof), assign, transfer, create or suffer to
exist a Lien upon or encumber or allow or suffer to be encumbered in any way except for Permitted
Encumbrances, any part of the Collateral. Each Borrower shall defend Agent’s interests in the
Collateral against any and all Persons whatsoever. At any time following demand by Agent for
payment of all Obligations, Agent shall have the right to take possession of the indicia of the
Collateral and the Collateral in
whatever physical form contained, including: labels, stationery, documents, instruments and
advertising materials. If Agent exercises this right to take possession of the Collateral,
Borrowers shall, upon demand, assemble it in the best manner possible and make it available to
Agent at a place reasonably convenient to Agent. In addition, with respect to all Collateral,
Agent and Lenders shall be entitled to all of the rights and remedies set forth herein and further
provided by the Uniform Commercial Code or other Applicable Law. Each Borrower shall, and Agent
may, at its option, instruct all suppliers, carriers, forwarders, warehousers or others receiving
or holding cash, checks, Inventory, documents or instruments in which Agent holds a security
interest to deliver same to Agent and/or subject to Agent’s order and if they shall come into any
Borrower’s possession, they, and each of them, shall be held by such Borrower in trust as Agent’s
trustee, and such Borrower will immediately deliver them to Agent in their original form together
with any necessary endorsement.



     4.7. Books and Records. Each Borrower shall (a) keep proper books of record and
account in which full, true and correct entries will be made of all dealings or transactions of or
in relation to its business and affairs; (b) set up on its books accruals with respect to all
taxes, assessments, charges, levies and claims; (c) on a reasonably current basis set up on its
books, from its earnings, allowances against doubtful Receivables, advances and investments and all
other proper accruals (including by reason of enumeration, accruals for premiums, if any, due on
required payments and accruals for depreciation, obsolescence, or amortization of properties),
which should be set aside from such earnings in connection with its business and (d) use its best
efforts to obtain Lien Waiver Agreements with respect to all premises leased by a Borrower where
books and records are stored. All determinations pursuant to this subsection shall be made in
accordance with, or as required by, GAAP consistently applied in the opinion of such independent
public accountant as shall then be regularly engaged by Borrowers.



     4.8. Financial Disclosure. Each Borrower hereby irrevocably authorizes and directs
all accountants and auditors employed by such Borrower at any time during the Term to exhibit and
deliver to Agent and each Lender copies of any of such Borrower’s financial statements, trial
balances or other accounting records of any sort in the accountant’s or auditor’s possession,



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and
to disclose to Agent and each Lender any information such accountants may have concerning such
Borrower’s financial status and business operations. Each Borrower hereby authorizes all
Governmental Bodies to furnish to Agent and each Lender copies of reports or examinations relating
to such Borrower, whether made by such Borrower or otherwise; however, Agent and each Lender will
attempt to obtain such information or materials directly from such Borrower prior to obtaining such
information or materials from such accountants or Governmental Bodies.




     4.9. Compliance with Laws. Each Borrower shall comply with all Applicable Laws with
respect to the Collateral or any part thereof or to the operation of such Borrower’s business the
non-compliance with which could reasonably be expected to have a Material Adverse Effect. Each
Borrower may, however,
contest or dispute any Applicable Laws in any reasonable manner, provided that any related
Lien is inchoate or stayed and sufficient reserves are established to the reasonable satisfaction
of Agent to protect Agent’s Lien on or security interest in the Collateral. The assets of
Borrowers at all times shall be maintained in accordance with the requirements of all insurance
carriers which provide insurance with respect to the assets of Borrowers so that such insurance
shall remain in full force and effect.



     4.10. Inspection of Premises. At all reasonable times upon prior notice to Borrowers,
provided no such notice is required in an Event of Default, Agent and each Lender shall have full
access to and the right to audit, check, inspect and make abstracts and copies from each Borrower’s
books, records, audits, correspondence and all other papers relating to the Collateral and the
operation of each Borrower’s business. Agent, any Lender and their agents may enter upon any
premises of any Borrower at any time during business hours and at any other reasonable time, and
from time to time, upon prior notice to Borrowers, provided no such notice is required in an Event
of Default, for the purpose of inspecting the Collateral and any and all records pertaining thereto
and the operation of such Borrower’s business.



     4.11. Insurance. The assets and properties of each Borrower at all times shall be
maintained in accordance with the requirements of all insurance carriers which provide insurance
with respect to the assets and properties of such Borrower so that such insurance shall remain in
full force and effect. Each Borrower shall bear the full risk of any loss of any nature whatsoever
with respect to the Collateral. At each Borrower’s own cost and expense in amounts and with
carriers acceptable to Agent, each Borrower shall (a) keep all its insurable properties and
properties in which such Borrower has an interest insured against the hazards of fire, flood,
sprinkler leakage, those hazards covered by extended coverage insurance and such other hazards, and
for such amounts, as is customary in the case of companies engaged in businesses similar to such
Borrower’s including business interruption insurance; (b) maintain a bond in such amounts as is
customary in the case of companies engaged in businesses similar to such Borrower insuring against
larceny, embezzlement or other criminal misappropriation of insured’s officers and employees who
may either singly or jointly with others at any time have access to the assets or funds of such
Borrower either directly or through authority to draw upon such funds or to direct generally the
disposition of such assets; (c) maintain public and product liability insurance against claims for
personal injury, death or property damage suffered by others; (d) maintain all such worker’s
compensation or similar insurance as may be required under the laws of any state or jurisdiction in
which such Borrower is engaged in business; and (e) furnish Agent with (i) copies of all policies
and evidence of the maintenance of such policies



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by the renewal thereof at least thirty (30) days
before any expiration date, and (ii) appropriate loss payable endorsements in form and substance
satisfactory to Agent, naming Agent as a co-insured and lender loss payee as its interests may
appear with respect to all insurance coverage referred to in clauses (a) and (c) above, and
providing (A) that all proceeds thereunder shall be payable to Agent, (B) no such insurance shall
be affected by any act or neglect of the insured or owner of the property described in such policy,
and (C) that such policy and loss payable clauses may not be cancelled, amended or terminated
unless at least thirty (30) days’ prior
written notice is given to Agent. In the event of any loss thereunder, the carriers named
therein hereby are directed by Agent and the applicable Borrower to make payment for such loss to
Agent and not to such Borrower and Agent jointly. If any insurance losses are paid by check, draft
or other instrument payable to any Borrower and Agent jointly, Agent may endorse such Borrower’s
name thereon and do such other things as Agent may deem advisable to reduce the same to cash.
Agent is hereby authorized to adjust and compromise claims under insurance coverage referred to in
clauses (a), and (b) above. All loss recoveries received by Agent upon any such insurance may be
applied to the Obligations, in such order as Agent in its sole discretion shall determine. Any
surplus shall be paid by Agent to Borrowers or applied as may be otherwise required by law. Any
deficiency thereon shall be paid by Borrowers to Agent, on demand.




     4.12. Failure to Pay Insurance. If any Borrower fails to obtain insurance as
hereinabove provided, or to keep the same in force, Agent, if Agent so elects, may obtain such
insurance and pay the premium therefor on behalf of such Borrower, and charge Borrowers’ Account
therefor as a Revolving Advance of a Domestic Rate Loan and such expenses so paid shall be part of
the Obligations.



     4.13. Payment of Taxes. Each Borrower will pay, when due, all taxes, assessments and
other Charges lawfully levied or assessed upon such Borrower or any of the Collateral including
real and personal property taxes, assessments and charges and all franchise, income, employment,
social security benefits, withholding, and sales taxes, unless the same are being Properly
Contested. If any tax by any Governmental Body is or may be imposed on or as a result of any
transaction between any Borrower and Agent or any Lender which Agent or any Lender may be required
to withhold or pay or if any taxes, assessments, or other Charges remain unpaid after the date
fixed for their payment, or if any claim shall be made which, in Agent’s or any Lender’s opinion,
may possibly create a valid Lien on the Collateral, Agent may without notice to Borrowers pay the
taxes, assessments or other Charges and each Borrower hereby indemnifies and holds Agent and each
Lender harmless in respect thereof. Agent will not pay any taxes, assessments or Charges to the
extent that any applicable Borrower has Properly Contested those taxes, assessments or Charges.
The amount of any payment by Agent under this Section 4.13 shall be charged to Borrowers’ Account
as a Revolving Advance maintained as a Domestic Rate Loan and added to the Obligations and, until
Borrowers shall furnish Agent with an indemnity therefor (or supply Agent with evidence
satisfactory to Agent that due provision for the payment thereof has been made), Agent may hold
without interest any balance standing to Borrowers’ credit and Agent shall retain its security
interest in and Lien on any and all Collateral held by Agent.



     4.14. Payment of Leasehold Obligations. Each Borrower shall at all times pay, when
and as due, its rental obligations under all leases under which it is a tenant, and shall otherwise



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comply, in all material respects, with all other terms of such leases and keep them in full force
and effect and, at Agent’s request will provide evidence of having done so.




     4.15. Receivables.



          (a) Nature of Receivables. Each of the Receivables shall be a bona fide and valid
account representing a bona fide indebtedness incurred by the Customer therein named, for a fixed
sum as set forth in the invoice relating thereto (provided immaterial or unintentional invoice
errors shall not be deemed to be a breach hereof) with respect to an absolute sale or lease and
delivery of goods upon stated terms of a Borrower, or work, labor or services theretofore rendered
by a Borrower as of the date each Receivable is created. Same shall be due and owing in accordance
with the applicable Borrower’s standard terms of sale without dispute, setoff or counterclaim
except as may be stated on the accounts receivable schedules delivered by Borrowers to Agent.




          (b) Solvency of Customers. Each Customer, to the best of each Borrower’s knowledge,
as of the date each Receivable is created, is and will be solvent and able to pay all Receivables
on which the Customer is obligated in full when due or with respect to such Customers of any
Borrower who are not solvent such Borrower has set up on its books and in its financial records bad
debt reserves adequate to cover such Receivables.




          (c) Location of Borrowers. Each Borrower’s chief executive office is located at 240
Jasmine Rd., Crowley, Louisiana 70526. Until written notice is given to Agent by Borrowing Agent
of any other office at which any Borrower keeps its records pertaining to Receivables, all such
records shall be kept at such executive office.




          (d) Collection of Receivables. Until any Borrower’s authority to do so is terminated
by Agent (which notice Agent may give at any time following the occurrence and during the
continuance of an Event of Default or a Default), each Borrower will, at such Borrower’s sole cost
and expense, but on Agent’s behalf and for Agent’s account, collect as Agent’s property and in
trust for Agent all amounts received on Receivables, and shall not commingle such collections with
any Borrower’s funds or use the same except to pay Obligations. Each Borrower shall deposit in the
Blocked Account or, upon request by Agent, deliver to Agent, in original form and on the date of
receipt thereof, all checks, drafts, notes, money orders, acceptances, cash and other evidences of
Indebtedness.




          (e) Notification of Assignment of Receivables. At any time after the occurrence and
during the continuance of an Event of Default or Default, Agent shall have the right to send notice
of the assignment of, and Agent’s security interest in and Lien on, the Receivables to any and all
Customers or any third party holding or otherwise concerned with any of the Collateral.
Thereafter, Agent shall have the sole right to collect the Receivables, take possession of the
Collateral, or both. Agent’s actual collection expenses, including, but not limited to, stationery
and postage, telephone and telegraph, secretarial and clerical expenses and the salaries of any
collection personnel used for collection, may be charged to Borrowers’ Account and added to the
Obligations.





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          (f) Power of Agent to Act on Borrowers’ Behalf. Agent shall have the right to
receive, endorse, assign and/or deliver in the name of Agent or any Borrower any and all checks,
drafts and other instruments for the payment of money relating to the Receivables, and each
Borrower hereby waives notice of presentment, protest and non-payment of any instrument
so endorsed. Each Borrower hereby constitutes Agent or Agent’s designee as such Borrower’s
attorney with power (i) to endorse such Borrower’s name upon any notes, acceptances, checks,
drafts, money orders or other evidences of payment or Collateral; (ii) to sign such Borrower’s name
on any invoice or bill of lading relating to any of the Receivables, drafts against Customers,
assignments and verifications of Receivables; (iii) to send verifications of Receivables to any
Customer; (iv) to sign such Borrower’s name on all financing statements or any other documents or
instruments deemed necessary or appropriate by Agent to preserve, protect, or perfect Agent’s
interest in the Collateral and to file same; (v) upon the occurrence and during the continuance of
a Default or an Event of Default or at such other times as Agent, in its discretion determines is
necessary or appropriate, to demand payment of the Receivables; (vi) upon the occurrence and during
the continuance of a Default or an Event of Default or at such other times as Agent, in its
discretion determines is necessary or appropriate, to enforce payment of the Receivables by legal
proceedings or otherwise; (vii) upon the occurrence and during the continuance of a Default or an
Event of Default or at such other times as Agent, in its discretion determines is necessary or
appropriate, to exercise all of such Borrower’s rights and remedies with respect to the collection
of the Receivables and any other Collateral; (viii) upon the occurrence and during the continuance
of a Default or an Event of Default or at such other times as Agent, in its discretion determines
is necessary or appropriate, to settle, adjust, compromise, extend or renew the Receivables; (ix)
upon the occurrence and during the continuance of a Default or an Event of Default or at such other
times as Agent, in its discretion determines is necessary or appropriate, to settle, adjust or
compromise any legal proceedings brought to collect Receivables; (x) to prepare, file and sign such
Borrower’s name on a proof of claim in bankruptcy or similar document against any Customer; (xi)
upon the occurrence and during the continuance of a Default or an Event of Default or at such other
times as Agent, in its discretion determines is necessary or appropriate, to prepare, file and sign
such Borrower’s name on any notice of Lien, assignment or satisfaction of Lien or similar document
in connection with the Receivables; and (xii) to do all other acts and things necessary to carry
out this Agreement. All acts of said attorney or designee are hereby ratified and approved, and
said attorney or designee shall not be liable for any acts of omission or commission nor for any
error of judgment or mistake of fact or of law (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO AN
ACT OR INACTION FROM AGENT’S OR LENDERS’ NEGLIGENCE OR STRICT LIABILITY), unless done maliciously
or with gross (not mere) negligence (as determined by a court of competent jurisdiction in a final
non-appealable judgment); this power being coupled with an interest is irrevocable while any of the
Obligations remain unpaid. Agent shall have the right at any time following the occurrence of an
Event of Default or Default, to change the address for delivery of mail addressed to any Borrower
to such address as Agent may designate and to receive, open and dispose of all mail addressed to
any Borrower.




          (g) No Liability. Neither Agent nor any Lender shall, under any circumstances or in
any event whatsoever, have any liability for any error or omission or delay of any kind (INCLUDING,
WITHOUT LIMITATION, WITH RESPECT TO AN ACT OR INACTION FROM AGENT’S OR LENDERS’ NEGLIGENCE OR
STRICT LIABILITY), unless such error or omission is the result of gross negligence or willful



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misconduct (as determined by a court of competent jurisdiction in a final non-applicable judgment)
occurring in the settlement, collection or payment of any of the Receivables or any instrument
received in payment thereof, or for any damage resulting therefrom. Following the occurrence of an
Event of Default or Default, Agent may, without notice or consent from any
Borrower, sue upon or otherwise collect, extend the time of payment of, compromise or settle
for cash, credit or upon any terms any of the Receivables or any other securities, instruments or
insurance applicable thereto and/or release any obligor thereof. Agent is authorized and empowered
to accept following the occurrence of an Event of Default or Default, the return of the goods
represented by any of the Receivables, without notice to or consent by any Borrower, all without
discharging or in any way affecting any Borrower’s liability hereunder.




          (h) Establishment of a Lockbox Account, Dominion Account. All proceeds of Collateral
shall be deposited by Borrowers into either (i) a lockbox account, dominion account or such other
“blocked account” (“Blocked Accounts”) established at a bank or banks (each such bank, a
“Blocked Account Bank”) pursuant to an arrangement with such Blocked Account Bank as may be
selected by Borrowers and be acceptable to Agent in its sole discretion or (ii) depository accounts
(“Depository Accounts”) established at Agent for the deposit of such proceeds. Borrowers,
Agent and each Blocked Account Bank shall enter into a deposit account control agreement in form
and substance satisfactory to Agent directing such Blocked Account Bank to transfer such funds so
deposited to Agent, either to any account maintained by Agent at said Blocked Account Bank or by
wire transfer to appropriate account(s) of Agent. All funds deposited in such Blocked Accounts
shall immediately become the property of Agent and Borrowers shall obtain the agreement by such
Blocked Account Bank to waive any offset rights against the funds so deposited. Neither Agent nor
any Lender assumes any responsibility for such blocked account arrangement, including any claim of
accord and satisfaction or release with respect to deposits accepted by any Blocked Account Bank
thereunder. All deposit accounts and investment accounts of Borrowers and their Subsidiaries are
set forth on Schedule 4.15(h). Borrowing Agent shall notify each Customer of any Borrower to send
all future payments owed to a Borrower by such Customer, including, but not limited to, payments on
any Receivable, to a Blocked Account, (i) with respect to any Person that is a Customer of any
Borrower on the Closing Date, within thirty (30) days of the Closing Date and (ii) with respect to
any Person that is not a Customer on the Closing Date, immediately upon such Person becoming a
Customer of a Borrower. If any Borrower shall receive any collections or other proceeds of the
Collateral, such Borrower shall hold such collections or proceeds in trust for the benefit of Agent
and deposit such collections or proceeds into a Blocked Account within one (1) Business Day
following such Borrower’s receipt thereof.




          (i) Adjustments. No Borrower will, without Agent’s consent, compromise or adjust any
Receivables (or extend the time for payment thereof) or accept any returns of merchandise or grant
any additional discounts, allowances or credits thereon except for those compromises, adjustments,
returns, discounts, credits and allowances as have been heretofore customary in the business of
such Borrower.




     4.16. Inventory. To the extent Inventory held for sale or lease has been produced by
any Borrower, it has been and will be produced by such Borrower in accordance with the Federal Fair
Labor Standards Act of 1938, as amended, and all rules, regulations and orders thereunder.



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     4.17. Maintenance of Equipment. The Equipment shall be maintained in good operating condition and repair (reasonable wear
and tear excepted) and all necessary replacements of and repairs thereto shall be made so that the
value and operating efficiency of the Equipment shall be maintained and preserved. No Borrower
shall use or operate the Equipment in violation of any law, statute, ordinance, code, rule or
regulation. Each Borrower shall have the right to sell Equipment to the extent set forth in
Section 4.3 hereof.



     4.18. Exculpation of Liability. Nothing herein contained shall be construed to
constitute Agent or any Lender as any Borrower’s agent for any purpose whatsoever, nor shall Agent
or any Lender be responsible or liable for any shortage, discrepancy, damage, loss or destruction
of any part of the Collateral wherever the same may be located and regardless of the cause thereof.
Neither Agent nor any Lender, whether by anything herein or in any assignment or otherwise, assume
any of any Borrower’s obligations under any contract or agreement assigned to Agent or such Lender,
and neither Agent nor any Lender shall be responsible in any way for the performance by any
Borrower of any of the terms and conditions thereof.



     4.19. Environmental Matters.



          (a) Borrowers shall ensure that the Real Property and all operations and businesses conducted
thereon remains in compliance with all Environmental Laws and they shall not place or permit to be
placed any Hazardous Substances on any Real Property except as permitted by Applicable Law or
appropriate governmental authorities.




          (b) Borrowers shall establish and maintain a system to assure and monitor continued compliance
with all applicable Environmental Laws which system shall include periodic reviews of such
compliance.




          (c) Borrowers shall (i) employ in connection with the use of the Real Property appropriate
technology necessary to maintain compliance with any applicable Environmental Laws and (ii) dispose
of any and all Hazardous Waste generated at the Real Property only at facilities and with carriers
that maintain valid permits under RCRA and any other applicable Environmental Laws. Borrowers
shall use their best efforts to obtain certificates of disposal, such as hazardous waste manifest
receipts, from all treatment, transport, storage or disposal facilities or operators employed by
Borrowers in connection with the transport or disposal of any Hazardous Waste generated at the Real
Property.




          (d) In the event any Borrower obtains, gives or receives notice of any Release or threat of
Release of a reportable quantity of any Hazardous Substances at the Real Property (any such event
being hereinafter referred to as a “Hazardous Discharge”) or receives any notice of
violation, request for information or notification that it is potentially responsible for
investigation or cleanup of environmental conditions at the Real Property, demand letter or
complaint, order, citation, or other written notice with regard to any Hazardous Discharge or
violation of Environmental Laws affecting the Real Property or any Borrower’s interest therein (any
of the foregoing is referred to herein as an “Environmental Complaint”) from any Person,
including any state agency responsible in whole or in part for environmental matters in the state
in which the Real Property is located or the United States Environmental Protection Agency
(any such person or entity hereinafter the “Authority”), then Borrowing Agent shall, within
five (5)





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Business Days, give written notice of same to Agent detailing facts and circumstances of
which any Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint.
Such information is to be provided to allow Agent to protect its security interest in and Lien on
the Real Property and the Collateral and is not intended to create nor shall it create any
obligation upon Agent or any Lender with respect thereto.




          (e) Borrowing Agent shall promptly forward to Agent copies of any request for information,
notification of potential liability, demand letter relating to potential responsibility with
respect to the investigation or cleanup of Hazardous Substances at any other site owned, operated
or used by any Borrower to dispose of Hazardous Substances and shall continue to forward copies of
correspondence between any Borrower and the Authority regarding such claims to Agent until the
claim is settled. Borrowing Agent shall promptly forward to Agent copies of all documents and
reports concerning a Hazardous Discharge at the Real Property that any Borrower is required to file
under any Environmental Laws. Such information is to be provided solely to allow Agent to protect
Agent’s security interest in and Lien on the Real Property and the Collateral.




          (f) Borrowers shall respond promptly to any Hazardous Discharge or Environmental Complaint and
take all necessary action in order to safeguard the health of any Person and to avoid subjecting
the Collateral or Real Property to any Lien. If any Borrower shall fail to respond promptly to any
Hazardous Discharge or Environmental Complaint or any Borrower shall fail to comply with any of the
requirements of any Environmental Laws, Agent on behalf of Lenders may, but without the obligation
to do so, for the sole purpose of protecting Agent’s interest in the Collateral: (A) give such
notices or (B) enter onto the Real Property (or authorize third parties to enter onto the Real
Property) and take such actions as Agent (or such third parties as directed by Agent) deem
reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such
Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses incurred by
Agent and Lenders (or such third parties) in the exercise of any such rights, including any sums
paid in connection with any judicial or administrative investigation or proceedings, fines and
penalties, together with interest thereon from the date expended at the Default Rate for Domestic
Rate Loans constituting Revolving Advances shall be paid upon demand by Borrowers, and until paid
shall be added to and become a part of the Obligations secured by the Liens created by the terms of
this Agreement or any other agreement between Agent, any Lender and any Borrower.




          (g) Promptly upon the written request of Agent (which request will not be made more than one
time during the Term, provided no such limitation is applicable upon the occurrence of an Event of
Default), Borrowers shall provide Agent, at Borrowers’ expense, with an environmental site
assessment or environmental audit report prepared by an environmental engineering firm acceptable
in the reasonable opinion of Agent, to assess with a reasonable degree of certainty the existence
of a Hazardous Discharge and the potential costs in connection with abatement, cleanup and removal
of any Hazardous Substances found on, under, at or within the Real Property. Any report or
investigation of such Hazardous Discharge proposed and acceptable to an appropriate Authority that
is charged to oversee the clean-up of such Hazardous Discharge shall be acceptable to Agent. If
such estimates, individually or in the aggregate,
exceed $100,000, Agent shall have the right to require Borrowers to post a bond, letter of
credit or other security reasonably satisfactory to Agent to secure payment of these costs and
expenses.




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          (h) Borrowers shall defend and indemnify Agent and Lenders and hold Agent, Lenders and their
respective employees, agents, directors and officers harmless from and against all loss, liability
(INCLUDING, WITHOUT LIMITATION, ANY STRICT LIABILITY), damage and expense, claims, costs, fines
and penalties, including attorney’s fees, suffered or incurred by Agent or Lenders under or on
account of any Environmental Laws, including the assertion of any Lien thereunder, with respect to
any Hazardous Discharge, the presence of any Hazardous Substances affecting the Real Property,
whether or not the same originates or emerges from the Real Property or any contiguous real estate,
including any loss of value of the Real Property as a result of the foregoing (INCLUDING, WITHOUT
LIMITATION, WITH RESPECT TO AN ACT OR INACTION FROM AGENT’S OR LENDERS’ NEGLIGENCE OR STRICT
LIABILITY), except to the extent such loss, liability, damage and expense is attributable to any
Hazardous Discharge resulting from actions on the part of Agent or any Lender. Borrowers’
obligations under this Section 4.19 shall arise upon the discovery of the presence of any Hazardous
Substances at the Real Property, whether or not any federal, state, or local environmental agency
has taken or threatened any action in connection with the presence of any Hazardous Substances.
Borrowers’ obligation and the indemnifications hereunder shall survive the termination of this
Agreement.




          (i) For purposes of Section 4.19 and 5.7, all references to Real Property shall be deemed to
include all of each Borrower’s right, title and interest in and to its owned and leased premises.




     4.20. Financing Statements. Except as respects the financing statements filed by
Agent and the financing statements described on Schedule 1.2, no financing statement covering any
of the Collateral or any proceeds thereof is on file in any public office



     4.21. Rolling Stock and other Vehicles. With respect to each vehicle or item of
Rolling Stock subject to a certificate of title statute acquired after the Closing Date, Borrowers
shall deliver to Agent, in form and substance satisfactory to Agent: (i) a fully-executed,
notarized power of attorney authorizing CT Corp to perfect liens on behalf of Agent; (ii) new
unencumbered titles for each item of Rolling Stock within the earlier of (x) five (5) days of
receipt by a Borrower of a new title certificate for Rolling Stock and (y) twenty-five (25) days of
purchase; (iii) to the extent applicable, an odometer statement clearly identifying the current
mileage for each item of Collateral; and (iv) to the extent applicable, an in-state garaging
address for each item of Collateral.


V REPRESENTATIONS AND WARRANTIES.




     References in this Article V to “Borrower(s)” shall refer to Borrowers and/or the business to
be acquired by Borrowers pursuant to the transactions contemplated by the Acquisition Agreement, as
context shall require for periods prior to the Closing Date. Each Borrower
represents and warrants that the following statements are, and after giving effect to the
transactions contemplated by the Acquisition Agreement will be, true, correct and complete:



     5.1. Authority. Each Borrower has full power, authority and legal right to enter into
this Agreement and the Other Documents and to perform all its respective Obligations hereunder and
thereunder. This Agreement, the Subordination Agreement and the Other




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Documents have been duly executed and delivered by each Borrower, and this Agreement, the Subordination Agreement and the Other Documents
constitute the legal, valid and binding obligation of such Borrower enforceable in accordance with
their terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency,
moratorium or similar laws affecting creditors’ rights generally. The execution, delivery and
performance of this Agreement and of the Other Documents (a) are within such Borrower’s limited
company or limited liability company powers, as applicable, have been duly authorized by all
necessary company action, are not in contravention of law or the terms of such Borrower’s
certificate of formation or other applicable documents relating to such Borrower’s formation or to
the conduct of such Borrower’s business or of any material agreement or undertaking to which such
Borrower is a party or by which such Borrower is bound, including, without limitation, the
Acquisition Agreement, (b) will not conflict with or violate any law or regulation, or any
judgment, order or decree of any Governmental Body, (c) will not require the Consent of any
Governmental Body or any other Person, except those Consents set forth on Schedule 5.1 hereto, all
of which will have been duly obtained, made or compiled prior to the Closing Date and which are in
full force and effect and (d) will not conflict with, nor result in any breach in any of the
provisions of or constitute a default under or result in the creation of any Lien except Permitted
Encumbrances upon any asset of such Borrower under the provisions of any agreement, charter
document, instrument, or operating agreement or other instrument to which such Borrower is a party
or by which it or its property is a party or by which it may be bound, including under the
provisions of the Acquisition Agreement.




     5.2. Formation and Qualification.



          (a) Each Borrower is duly formed and in good standing under the laws of the state listed on
Schedule 5.2(a) and is qualified to do business and is in good standing in the states listed on
Schedule 5.2(a) which constitute all states in which qualification and good standing are necessary
for such Borrower to conduct its business and own its property and where the failure to so qualify
could reasonably be expected to have a Material Adverse Effect on such Borrower. Each Borrower has
delivered to Agent true and complete copies of its certificate of formation and operating agreement
and agrees to promptly notify Agent of any amendment or changes thereto.



          (b) The only Subsidiaries of the Loan Parties are listed on Schedule 5.2(b). The Equity
Interests of each Borrower are presently held by the Persons identified on Schedule 5.2(b), in the
numbers of shares or interests set forth thereon.



     5.3. Survival of Representations and Warranties. All representations and warranties
of such Borrower contained in this Agreement and the Other Documents shall be true at the time of
such Borrower’s execution of this Agreement and the Other Documents, and shall survive the
execution, delivery and acceptance thereof by the parties thereto and the closing of the
transactions described therein or related thereto.



     5.4. Tax Returns. Each Borrower’s federal tax identification number is set forth on
Schedule 5.4. Each Borrower has filed all federal, state and local tax returns and other reports
each is required by law to file and has paid all taxes, assessments, fees and other governmental
charges that are due and payable. Federal, state and local income tax returns of each Borrower



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(other than Holdings) have been examined and reported upon by the appropriate taxing authority or
closed by applicable statute and satisfied for all fiscal years prior to and including the fiscal
year ending August 31, 2006. The provision for taxes on the books of each Borrower is adequate for
all years not closed by applicable statutes, and for its current fiscal year, and no Borrower has
any knowledge of any deficiency or additional assessment in connection therewith not provided for
on its books.




     5.5. Financial Statements.



          (a) The pro forma balance sheet of Borrowers on a Consolidated Basis (the “Pro Forma
Balance Sheet”) furnished to Agent on the Closing Date reflects the consummation of the
transactions contemplated by the Acquisition Agreement and this Agreement (collectively, the
“Transactions”) and is accurate, complete and correct and fairly reflects the financial
condition of Borrowers on a Consolidated Basis as of the Closing Date after giving effect to the
Transactions, and has been prepared in accordance with GAAP, consistently applied. The Pro Forma
Balance Sheet has been certified as accurate, complete and correct in all material respects by an
Authorized Officer of Borrowing Agent. All financial statements referred to in this subsection
5.5(a), including the related schedules and notes thereto, have been prepared, in accordance with
GAAP, except as may be disclosed in such financial statements.



          (b) The twelve-month cash flow projections of Borrowers on a Consolidated Basis and their
projected balance sheets as of the Closing Date, copies of which are annexed hereto as Exhibit
5.5(b) (the “Projections”) were approved by an Authorized Officer of Borrowing Agent, are
based on underlying assumptions which provide a reasonable basis for the projections contained
therein and reflect Borrowers’ judgment based on present circumstances of the most likely set of
conditions and course of action for the projected period. The cash flow Projections together with
the Pro Forma Balance Sheet, are referred to as the “Pro Forma Financial Statements”.



          (c) The consolidated and consolidating balance sheets of Borrowers, their Subsidiaries and
such other Persons described therein (including the accounts of all Subsidiaries for the respective
periods during which a subsidiary relationship existed) as of August 31, 2009, and the related
statements of income, changes in stockholder’s equity, and changes in cash flow for the period
ended on such date, all accompanied by reports thereon containing opinions
without qualification by independent certified public accountants, copies of which have been
delivered to Agent, have been prepared in accordance with GAAP, consistently applied (except for
changes in application in which such accountants concur and present fairly the financial position
of Borrowers and their Subsidiaries at such date and the results of their operations for such
period. Since August 31, 2009 there has been no change in the condition, financial or otherwise,
of Borrowers or their Subsidiaries as shown on the consolidated balance sheet as of such date and
no change in the aggregate value of machinery, equipment and Real Property owned by Borrowers and
their respective Subsidiaries, except changes in the Ordinary Course of Business, none of which
individually or in the aggregate has been materially adverse



     5.6. Entity Names. No Borrower has been known by any other corporate name in the past
five years and does not sell Inventory under any other name except as set forth on Schedule 5.6,
nor has any Borrower been the surviving company of a merger or consolidation or acquired



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all or
substantially all of the assets of any Person, with the exception of those assets acquired pursuant
to the Acquisition Agreement during the preceding five (5) years.




     5.7. O.S.H.A. and Environmental Compliance.



          (a) Each Borrower has duly complied with, and its facilities, business, assets, property,
leaseholds, Real Property and Equipment are in compliance in all material respects with, the
provisions of the Federal Occupational Safety and Health Act, the Environmental Protection Act,
RCRA and all other Environmental Laws; there have been no outstanding citations, notices or orders
of non-compliance issued to any Borrower or relating to its business, assets, property, leaseholds
or Equipment under any such laws, rules or regulations.



          (b) Each Borrower has been issued all required federal, state and local licenses, certificates
or permits relating to all applicable Environmental Laws.



          (c) (i) There are no visible signs of releases, spills, discharges, leaks or disposal
(collectively referred to as “Releases”) of Hazardous Substances at, upon, under or within
any Real Property or any premises leased by any Borrower; (ii) there are no underground storage
tanks or polychlorinated biphenyls on the Real Property or any premises leased by any Borrower;
(iii) neither the Real Property nor any premises leased by any Borrower has ever been used as a
treatment, storage or disposal facility of Hazardous Waste; and (iv) no Hazardous Substances are
present on the Real Property or any premises leased by any Borrower, excepting such quantities as
are handled in accordance with all applicable manufacturer’s instructions and governmental
regulations and in proper storage containers and as are necessary for the operation of the
commercial business of any Borrower or of its tenants.



     5.8. Solvency; No Litigation, Violation, Indebtedness or Default.



          (a) Each Borrower is, and after giving effect to the Transactions, each Borrower will be
solvent, able to pay its debts as they mature, and has, and after giving effect to the
Transactions, will have capital sufficient to carry on its business and all businesses in which it
is about to engage, and (i) as of the Closing Date, the fair present saleable value of its assets,
calculated on a going concern basis, is in excess of the amount of its liabilities and (ii)
subsequent to the Closing Date, the fair saleable value of its assets (calculated on a going
concern basis) will be in excess of the amount of its liabilities.



          (b) Except as disclosed in Schedule 5.8(b), no Borrower has (i) any pending or threatened
litigation, arbitration, actions or proceedings which involve the possibility of having a Material
Adverse Effect, and (ii) any liabilities or indebtedness for borrowed money other than the
Obligations.



          (c) No Borrower is in violation of any applicable statute, law, rule, regulation or ordinance
in any respect which could reasonably be expected to have a Material Adverse Effect, nor is any
Borrower in violation of any order of any court, Governmental Body or arbitration board or
tribunal.



          (d) No Borrower nor any member of the Controlled Group maintains or contributes to any Plan
other than (i) as of the Closing Date, those listed on Schedule 5.8(d)



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hereto and (ii) thereafter,
as permitted under this Agreement. (i) No Plan has incurred any “accumulated funding deficiency,”
as defined in Section 302(a)(2) of ERISA and Section 412(a) of the Code, whether or not waived, and
each Borrower and each member of the Controlled Group has met all applicable minimum funding
requirements under Section 302 of ERISA in respect of each Plan; (ii) each Plan which is intended
to be a qualified plan under Section 401(a) of the Code as currently in effect has been determined
by the Internal Revenue Service to be qualified under Section 401(a) of the Code and the trust
related thereto is exempt from federal income tax under Section 501(a) of the Code; (iii) neither
any Borrower nor any member of the Controlled Group has incurred any liability to the PBGC other
than for the payment of premiums, and there are no premium payments which have become due which are
unpaid; (iv) no Plan has been terminated by the plan administrator thereof nor by the PBGC, and
there is no occurrence which would cause the PBGC to institute proceedings under Title IV of ERISA
to terminate any Plan; (v) at this time, the current value of the assets of each Plan exceeds the
present value of the accrued benefits and other liabilities of such Plan and neither any Borrower
nor any member of the Controlled Group knows of any facts or circumstances which would materially
change the value of such assets and accrued benefits and other liabilities; (vi) neither any
Borrower nor any member of the Controlled Group has breached any of the responsibilities,
obligations or duties imposed on it by ERISA with respect to any Plan; (vii) neither any Borrower
nor any member of a Controlled Group has incurred any liability for any excise tax arising under
Section 4972 or 4980B of the Code, and no fact exists which could give rise to any such liability;
(viii) neither any Borrower nor any member of the Controlled Group nor any fiduciary of, nor any
trustee to, any Plan, has engaged in a “prohibited transaction” described in Section 406 of the
ERISA or Section 4975 of the Code nor taken any action which would constitute or result in a
Termination Event with respect to any such Plan which is subject to ERISA; (ix) each Borrower and
each member of the Controlled Group has made all contributions due and payable with respect to each
Plan; (x) there exists no event described in Section 4043(b) of ERISA, for which the thirty (30)
day notice period has not been waived; (xi) neither any Borrower nor any member of the Controlled
Group has any fiduciary responsibility for investments with respect to any plan existing for the
benefit of persons other than employees or former employees of any Borrower and any member of the
Controlled Group; (xii) neither any Borrower nor any member of the Controlled Group maintains or
contributes to any Plan which provides health, accident or life insurance benefits to former
employees, their spouses or dependents, other than in accordance with Section 4980B of the Code; (xiii) neither any
Borrower nor any member of the Controlled Group has withdrawn, completely or partially, from any
Multiemployer Plan so as to incur liability under the Multiemployer Pension Plan Amendments Act of
1980 and there exists no fact which would reasonably be expected to result in any such liability;
and (xiv) no Plan fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of
fiduciary duty or for any failure in connection with the administration or investment of the assets
of a Plan.



     5.9. Patents, Trademarks, Copyrights and Licenses. All patents, patent applications,
trademarks, trademark applications, service marks, service mark applications, copyrights, copyright
applications, design rights, trade names, trade name applications, assumed names, trade secrets,
domain names, domain name applications and licenses owned or utilized by any Borrower are set forth
on Schedule 5.9, are valid and have been duly registered or filed with all appropriate Governmental
Bodies and constitute all of the intellectual property rights which are necessary for the operation
of its business; there is no objection to or pending challenge to the



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validity of any such patent,
trademark, copyright, design rights, trade name, domain name, trade secret or license and no
Borrower is aware of any grounds for any challenge, except as set forth in Schedule 5.9 hereto.
Each patent, patent application, patent license, trademark, trademark application, trademark
license, service mark, service mark application, service mark license, design rights, copyright,
copyright application and copyright license owned or held by any Borrower and all trade secrets
used by any Borrower consist of original material or property developed by such Borrower or was
lawfully acquired by such Borrower from the proper and lawful owner thereof. Each of such items
has been maintained so as to preserve the value thereof from the date of creation or acquisition
thereof. With respect to all software used by any Borrower, such Borrower is in possession of all
source and object codes related to each piece of software or is the beneficiary of a source code
escrow agreement, each such source code escrow agreement being listed on Schedule 5.9 hereto.




     5.10. Licenses and Permits. Except as set forth in Schedule 5.10, each Borrower (a)
is in compliance with and (b) has procured and is now in possession of, all material licenses or
permits required by any applicable federal, state, provincial or local law, rule or regulation for
the operation of its business in each jurisdiction wherein it is now conducting or proposes to
conduct business and where the failure to procure such licenses or permits could have a Material
Adverse Effect.



     5.11. Default of Indebtedness. No Borrower is in default in the payment of the
principal of or interest on any Indebtedness or under any instrument or agreement under or subject
to which any Indebtedness has been issued and no event has occurred under the provisions of any
such instrument or agreement which with or without the lapse of time or the giving of notice, or
both, constitutes or would constitute an event of default thereunder.



     5.12. No Default. No Borrower is in default in the payment or performance of any of its contractual
obligations and no Default has occurred.



     5.13. No Burdensome Restrictions. No Borrower is party to any contract or agreement
the performance of which could have a Material Adverse Effect. Each Borrower has heretofore
delivered to Agent true and complete copies of all material contracts to which it is a party or to
which it or any of its properties is subject. No Borrower has agreed or consented to cause or
permit in the future (upon the happening of a contingency or otherwise) any of its property,
whether now owned or hereafter acquired, to be subject to a Lien which is not a Permitted
Encumbrance.



     5.14. No Labor Disputes. No Borrower is involved in any labor dispute; there are no
strikes or walkouts or union organization of any Borrower’s employees threatened or in existence
and no labor contract is scheduled to expire during the Term other than as set forth on Schedule
5.14 hereto.



     5.15. Margin Regulations. No Borrower is engaged, nor will it engage, principally or
as one of its important activities, in the business of extending credit for the purpose of
“purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quoted
terms under Regulation U of the Board of Governors of the Federal Reserve System as now and from
time to time hereafter in effect. No part of the proceeds of any Advance will be used for
“purchasing” or “carrying” “margin stock” as defined in Regulation U of such Board of Governors.



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     5.16. Investment Company Act. No Borrower is an “investment company” registered or
required to be registered under the Investment Company Act of 1940, as amended, nor is it
controlled by such a company.



     5.17. Disclosure. No representation or warranty made by any Borrower in this
Agreement , the Subordinated Obligations Documents or in the Acquisition Agreement, or in any
financial statement, report, certificate or any other document furnished in connection herewith or
therewith contains any untrue statement of a material fact or omits to state any material fact
necessary to make the statements herein or therein not misleading. There is no fact known to any
Borrower or which reasonably should be known to such Borrower which such Borrower has not disclosed
to Agent in writing with respect to the transactions contemplated by the Acquisition Agreement or
this Agreement which could reasonably be expected to have a Material Adverse Effect.



     5.18. Delivery of Acquisition Agreement and Subordinated Loan Documentation. Agent
has received complete copies of the Acquisition Agreement (including all exhibits, schedules and
disclosure letters referred to therein or delivered pursuant thereto, if any) and all amendments thereto, waivers relating thereto and other side letters or agreements
affecting the terms thereof. None of such documents and agreements has been amended or
supplemented, nor have any of the provisions thereof been waived, except pursuant to a written
agreement or instrument which has heretofore been delivered to Agent. Each of the representations
and warranties of the Sellers set forth in the Acquisition Agreement are true and correct in all
material respects as of the date hereof and are hereby made by Borrowers as if they were set forth
herein in their entirety.



     5.19. Swaps. No Borrower is a party to, nor will it be a party to, any swap agreement
whereby such Borrower has agreed or will agree to swap interest rates or currencies unless same
provides that damages upon termination following an event of default thereunder are payable on an
unlimited “two-way basis” without regard to fault on the part of either party.



     5.20. Conflicting Agreements. No provision of any mortgage, indenture, contract,
agreement, judgment, decree or order binding on any Borrower or affecting the Collateral conflicts
with, or requires any Consent which has not already been obtained to, or would in any way prevent
the execution, delivery or performance of, the terms of this Agreement or the Other Documents.



     5.21. Application of Certain Laws and Regulations. Neither any Borrower nor any
Affiliate of any Borrower is subject to any law, statute, rule or regulation which regulates the
incurrence of any Indebtedness, including laws, statutes, rules or regulations relative to common
or interstate carriers or to the sale of electricity, gas, steam, water, telephone, telegraph or
other public utility services.



     5.22. Business and Property of Borrowers. Holdings did not engage in any business
prior to the Closing Date. Upon and after the Closing Date, Borrowers do not propose to



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engage in
any business other than those conducted on the Closing Date and those set forth on Schedule 5.22
and activities necessary to conduct the foregoing. On the Closing Date, each Borrower will own all
the property and possess all of the rights and Consents necessary for the conduct of the business
of such Borrower.




     5.23. Section 20 Subsidiaries. Borrowers do not intend to use and shall not use any
portion of the proceeds of the Advances, directly or indirectly, to purchase during the
underwriting period, or for 30 days thereafter, Ineligible Securities being underwritten by a
Section 20 Subsidiary.



     5.24. Anti-Terrorism Laws.



          (a) General. Neither any Borrower nor any Affiliate of any Borrower is in violation
of any Anti-Terrorism Law or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of
the prohibitions set forth in any Anti-Terrorism Law.



          (b) Executive Order No. 13224. Neither any Borrower nor any Affiliate of any Borrower
or their respective agents acting or benefiting in any capacity in connection with the Advances or
other transactions hereunder, is any of the following (each a “Blocked Person”):



               (i) a Person that is listed in the annex to, or is otherwise subject to the provisions of, the
Executive Order No. 13224;



               (ii) a Person owned or controlled by, or acting for or on behalf of, any Person that is
listed in the annex to, or is otherwise subject to the provisions of, the Executive Order No.
13224;



               (iii) a Person or entity with which any Lender is prohibited from dealing or otherwise
engaging in any transaction by any Anti-Terrorism Law;



               (iv) a Person or entity that commits, threatens or conspires to commit or supports “terrorism”
as defined in the Executive Order No. 13224;



               (v) a Person or entity that is named as a “specially designated national” on the most current
list published by the U.S. Treasury Department Office of Foreign Asset Control at its official
website or any replacement website or other replacement official publication of such list, or



               (vi) a Person or entity who is affiliated or associated with a Person or entity listed above.


Neither any Borrower nor to the knowledge of any Borrower, any of its agents acting in any capacity
in connection with the Advances or other transactions hereunder (i) conducts any business or
engages in making or receiving any contribution of funds, goods or services to or for the benefit
of any Blocked Person, or (ii) deals in, or otherwise engages in any transaction relating to, any
property or interests in property blocked pursuant to the Executive Order No. 13224.





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     5.25. Trading with the Enemy. No Borrower has engaged, nor does it intend to engage,
in any business or activity prohibited by the Trading with the Enemy Act.



     5.26. Federal Securities Laws. Neither any Borrower nor any of its Subsidiaries (i)
is required to file periodic reports under the Exchange Act, (ii) has any securities registered
under the Exchange Act or (iii) has filed a registration statement that has not yet become
effective under the Securities Act.


VI AFFIRMATIVE COVENANTS.




     Each Borrower shall, until payment in full of the Obligations and termination of this
Agreement:



     6.1. Payment of Fees. Pay to Agent on demand all usual and customary fees and
expenses which Agent incurs in connection with (a) the forwarding of Advance proceeds and (b) the
establishment and maintenance of any Blocked Accounts or Depository Accounts as provided for in
Section 4.15(h). Agent may, without making demand, charge Borrowers’ Account for all such fees and
expenses.



     6.2. Conduct of Business and Maintenance of Existence and Assets. (a) Conduct
continuously and operate actively its business according to good business practices and maintain
all of its properties useful or necessary in its business in good working order and condition
(reasonable wear and tear excepted and except as may be disposed of in accordance with the terms of
this Agreement), including all licenses, patents, copyrights, design rights, trade names, trade
secrets, domain names and trademarks and take all actions necessary to enforce and protect the
validity of any intellectual property right necessary to the operations of the business of each
Borrower or other right included in the Collateral; (b) keep in full force and effect its existence
and comply in all material respects with the laws and regulations governing the conduct of its
business where the failure to do so could reasonably be expected to have a Material Adverse Effect;
and (c) make all such reports and pay all such franchise and other taxes and license fees and do
all such other acts and things as may be lawfully required to maintain its rights, licenses,
leases, powers and franchises under the laws of the United States or any political subdivision
thereof where the failure to do so could reasonably be expected to have a Material Adverse Effect.



     6.3. Violations. Promptly notify Agent in writing of any violation of any law,
statute, regulation or ordinance of any Governmental Body, or of any agency thereof, applicable to
any Borrower which could reasonably be expected to have a Material Adverse Effect.



     6.4. Government Receivables. Take all steps necessary to protect Agent’s interest in
the Collateral under the Federal Assignment of Claims Act, the Uniform Commercial Code and all
other applicable state or local statutes or ordinances and deliver to Agent appropriately endorsed,
any instrument or chattel paper connected with any Receivable arising out of contracts between any
Borrower and the United States, any state or any department, agency or instrumentality of any of
them.



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     6.5. Financial Covenants.



          (a) Fixed Charge Coverage Ratio. Cause to be maintained a Fixed Charge Coverage Ratio
of not less than 1.10 to 1.00, measured as of (a) November 30, 2010, for the fiscal quarter then
most recently ended; (b) February 28, 2011, for the two fiscal quarter period then most recently
ended; (c) May 31, 2011, for the three fiscal quarter period then most recently ended; (d) August 31, 2011 and as of the last day of each fiscal quarter thereafter, for the
four fiscal quarter period then most recently ended.



     6.6. Execution of Supplemental Instruments. Execute and deliver to Agent from time to
time, within five (5) Business Days after demand, such supplemental agreements, statements,
assignments and transfers, or instructions or documents relating to the Collateral, and such other
instruments as Agent may request, in order that the full intent of this Agreement may be carried
into effect.



     6.7. Payment of Indebtedness. Pay, discharge or otherwise satisfy at or before
maturity (subject, where applicable, to specified grace periods and, in the case of the trade
payables, to normal payment practices) all its obligations and liabilities of whatever nature,
except when the failure to do so could not reasonably be expected to have a Material Adverse Effect
or when the amount or validity thereof is currently being contested in good faith by appropriate
proceedings and each Borrower shall have provided for such reserves as Agent may reasonably deem
proper and necessary, subject at all times to any applicable subordination arrangement in favor of
Lenders.



     6.8. Standards of Financial Statements. Cause all financial statements referred to in
Sections 9.7, 9.8, 9.9, 9.10, 9.11, 9.12 and 9.13 as to which GAAP is applicable to be complete and
correct in all material respects (subject, in the case of interim financial statements, to normal
year-end audit adjustments and the absence of footnotes) and to be prepared in reasonable detail
and in accordance with GAAP applied consistently throughout the periods reflected therein (except
as concurred in by such reporting accountants or officer, as the case may be, and disclosed
therein).



     6.9. Federal Securities Laws. Promptly notify Agent in writing if any Borrower or any
of its Subsidiaries (i) is required to file periodic reports under the Exchange Act, (ii) registers
any securities under the Exchange Act or (iii) files a registration statement under the Securities
Act.



     6.10. Exercise of Rights. Enforce all of its rights under the Acquisition Agreement
and the Indemnification Agreement executed in connection therewith including, but not limited to,
all indemnification rights and pursue all remedies available to it with diligence and in good faith
in connection with the enforcement of any such rights.



     6.11. Defaults under the Acquisition or Subordinated Obligations Documents. The
Borrowing Agent shall provide Agent with prompt written notice upon the occurrence of any default
or event of default under any of the Subordinated Obligations Documents, the Acquisition Agreement
and/or any document executed in connection therewith.



     6.12. Post-Closing Obligations. Borrowers shall cause the conditions set forth on
Schedule 6.12 hereto to be satisfied in full, on or before the date specified for each such



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condition, time being of the essence, and each to be satisfactory, in form and substance as
applicable, to Agent in its sole discretion.




     6.13. Nature of Business. Carry on its business in substantially the same manner and
in substantially the same fields of enterprise as set forth in Section 5.22.


VII NEGATIVE COVENANTS.




     No Borrower shall, until satisfaction in full of the Obligations and termination of this
Agreement:



     7.1. Merger, Consolidation, Acquisition and Sale of Assets.



          (a) Enter into any merger, consolidation or other reorganization with or into any other Person
or acquire all or a substantial portion of the assets or Equity Interests of any Person or permit
any other Person to consolidate with or merge with it.



          (b) Sell, lease, transfer or otherwise dispose of any of its properties or assets, except (i)
dispositions of Inventory and Equipment to the extent expressly permitted by Section 4.3 and (ii)
any other sales or dispositions expressly permitted by this Agreement.



     7.2. Creation of Liens. Create or suffer to exist any Lien or transfer upon or
against any of its property or assets now owned or hereafter acquired, except Permitted
Encumbrances.



     7.3. Guarantees. Become liable upon the obligations or liabilities of any Person by
assumption, endorsement or guaranty thereof or otherwise (other than to Lenders) except (a) as
disclosed on Schedule 7.3, (b) the endorsement of checks in the Ordinary Course of Business, and
(c) guarantees of Indebtedness of the types permitted in Section 7.8.



     7.4. Investments. Purchase or acquire obligations or Equity Interests of, or any
other interest in, any Person, except (a) obligations issued or guaranteed by the United States of
America or any agency thereof, (b) commercial paper with maturities of not more than 180 days and a
published rating of not less than A-1 or P-1 (or the equivalent rating), (c) certificates of time
deposit and bankers’ acceptances having maturities of not more than 180 days and repurchase
agreements backed by United States government securities of a commercial bank if (i) such bank has
a combined capital and surplus of at least $500,000,000 or (ii) its debt obligations, or those of a
holding company of which it is a Subsidiary, are rated not less than A (or the equivalent rating)
by a nationally recognized investment rating agency, (d) U.S. money market funds that invest
solely in obligations issued or guaranteed by the United States of America or an agency thereof and
(e) the Acquisition Agreement.



     7.5. Loans. Make advances, loans or extensions of credit to any Person, including any
Parent, Subsidiary or Affiliate except with respect to the extension of commercial trade credit in
connection with the sale of Inventory in the Ordinary Course of Business.



     7.6. Capital Expenditures. Contract for, purchase or make any expenditure or
commitments for Capital Expenditures for (i) the twelve (12) months immediately following the
Closing Date in an aggregate amount for all Borrowers in excess of $4,500,000 and (ii) each



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twelve
(12) month period thereafter in excess of $5,000,000 provided, that no more than $500,000 of the
Capital Expenditures permitted pursuant to clauses (i) and (ii) above shall be Unfinanced Capital
Expenditures.




     7.7. Distributions. Pay or make any distribution on any membership interests of any
Borrower to any Person or apply any of its funds, property or assets to the purchase, redemption or
other retirement of any membership interests, or of any options to purchase or acquire any such
membership interests of any Borrower except that so long as: (a)(i) a notice of termination with
regard to this Agreement shall not be outstanding, and (ii) no Event of Default or Default shall
have occurred, and (iii) the purpose for such purchase, redemption or distribution shall be as set
forth in writing to Agent at least ten (10) days prior to such purchase, redemption or distribution
and such purchase, redemption or distribution shall in fact be used for such purpose, any Borrower
shall be permitted to make distributions to its members in an aggregate amount equal to the
Increased Tax Burden of its members; and (b)(i) a notice of termination with regard to this
Agreement shall not be outstanding, and (ii) no Event of Default or Default shall have occurred or
result after giving effect to such distribution, and (iii) the purpose for such distribution shall
be as set forth in writing to Agent at least ten (10) days prior to such distribution and such
distribution shall in fact be used for such purpose, and (iv) after giving effect to such
distribution, Borrowers shall have Undrawn Availability of at least $2,000,000, and (v) such
distributions are required by the Subordinated Obligations Documents and (vi) the Subordination
Agreement among Borrowers, Agent and Waypoint is in full force and effect, Borrowers shall be
permitted to make Subordinated Obligations Payments to Waypoint Capital.



     Subject to this Section 7.7, payments to members shall be made so as to be available when the
tax is due, including in respect of estimated tax payments. In the event (x) the actual
distribution to members made pursuant to this Section 7.7 exceeds the actual income tax liability
of any member due to such Borrower’s status as a limited liability company (calculated based on the
applicable IRS Form 1065 or such other applicable form filed by such Borrower), or (y) if such
Borrower was a subchapter C corporation, such Borrower would be entitled to a refund of income
taxes previously paid as a result of a tax loss during a year in which such Borrower is a limited liability company, then the members shall repay such Borrower the amount
of such excess or refund, as the case may be, no later than the date the annual tax return must be
filed by such Borrower (without giving effect to any filing extensions). In the event such amounts
are not repaid in a timely manner by any member, then such Borrower shall not pay or make any
distribution with respect to, or purchase, redeem or retire, any membership interest of such
Borrower held or controlled by, directly or indirectly, such member until such payment has been
made.



     7.8. Indebtedness. Create, incur, assume or suffer to exist any Indebtedness
(exclusive of trade debt) except in respect of (i) Indebtedness to Lenders; (ii) Indebtedness
incurred for Capital Expenditures permitted under Section 7.6 hereof; (iii) Indebtedness created
under the Subordinated Obligations Documents (to the extent that the obligations of Borrower to
Waypoint could be characterized as Indebtedness), provided that the Subordination Agreement is in
full force and effect and has not been violated or repudiated by Waypoint; (iv) Indebtedness
assumed under the Acquisition Agreement and (v) other Indebtedness not to exceed $250,000 in the
aggregate at any time outstanding so long as such Indebtedness is subject to a Subordination
Agreement in favor of Agent.



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     7.9. Nature of Business. Substantially change the nature of the business in which it
is presently engaged, as set forth in Section 5.22, nor except as specifically permitted hereby
purchase or invest, directly or indirectly, in any assets or property other than in the Ordinary
Course of Business for assets or property which are useful in, necessary for and are to be used in
its business as presently conducted.



     7.10. Transactions with Affiliates. Directly or indirectly, purchase, acquire or
lease any property from, or sell, transfer or lease any property to, or otherwise enter into any
transaction or deal with, any Affiliate, except transactions disclosed to Agent, which are in the
Ordinary Course of Business, on an arm’s-length basis on terms and conditions no less favorable
than terms and conditions which would have been obtainable from a Person other than an Affiliate,
except Sponsor shall be entitled to an annual management fee of $750,000, payable in equal monthly
installments of $62,500, so long as (x) no Default or Event of Default exists at the time of each
such payment or after giving effect thereto, (y) Borrowers are in pro forma compliance with the
covenants set forth in Section 6.5 both immediately before and after giving effect to each such
payment installment and (z) Borrowers shall have Undrawn Availability of at least $2,000,000 both
before and after giving effect to each such payment installment.



     7.11. Leases. Enter as lessee into any lease arrangement for real or personal
property (unless capitalized and permitted under Section 7.6 hereof) if after giving effect
thereto, aggregate annual rental payments for all leased property would exceed $900,000 in any one
fiscal year in the aggregate for all Borrowers.



     7.12. Subsidiaries.



          (a) Form any Subsidiary.



          (b) Enter into any partnership, joint venture or similar arrangement.



     7.13. Fiscal Year and Accounting Changes. Change its fiscal year from August 31 or
make any change (i) in accounting treatment and reporting practices except as required by GAAP or
(ii) in tax reporting treatment except as required by law.



     7.14. Pledge of Credit. Now or hereafter pledge Agent’s or any Lender’s credit on any
purchases or for any purpose whatsoever or use any portion of any Advance in or for any business
other than such Borrower’s business as conducted on the date of this Agreement.



     7.15. Amendment of Certificate of Formation, Operating Agreement. Amend, modify or
waive any term or provision of its certificate of formation, organization or inception or operating
agreement or bylaws, or any other constituent document (collectively, the “Organizational
Documents”) unless required by law; provided, however, Borrowers shall provide written notice
to Agent within five (5) Business Days of being required to make any such modification.



     7.16. Compliance with ERISA. (i) (x) Maintain, or permit any member of the Controlled
Group to maintain, or (y) become obligated to contribute, or permit any member of the Controlled
Group to become obligated to contribute, to any Plan, other than those Plans disclosed on Schedule
5.8(d) or any other Plan for which Agent has provided its prior written



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consent, (ii) engage, or
permit any member of the Controlled Group to engage, in any non-exempt “prohibited transaction”, as
that term is defined in Section 406 of ERISA and Section 4975 of the Code, (iii) incur, or permit
any member of the Controlled Group to incur, any “accumulated funding deficiency”, as that term is
defined in Section 302 of ERISA or Section 412 of the Code, (iv) terminate, or permit any member of
the Controlled Group to terminate, any Plan where such event could result in any liability of any
Borrower or any member of the Controlled Group or the imposition of a lien on the property of any
Borrower or any member of the Controlled Group pursuant to Section 4068 of ERISA, (v) assume, or
permit any member of the Controlled Group to assume, any obligation to contribute to any
Multiemployer Plan not disclosed on Schedule 5.8(d), (vi) incur, or permit any member of the
Controlled Group to incur, any withdrawal liability to any Multiemployer Plan; (vii) fail promptly
to notify Agent of the occurrence of any Termination Event, (viii) fail to comply, or permit a
member of the Controlled Group to fail to comply, with the requirements of ERISA or the Code or
other Applicable Laws in respect of any Plan, (ix) fail to meet, or permit any member of the
Controlled Group to fail to meet, all minimum funding requirements under ERISA or the Code or
postpone or delay or allow any member of the Controlled Group to postpone or delay any funding
requirement with respect of any Plan.




     7.17. Prepayment of Indebtedness. Except as permitted pursuant to Section 7.21
hereof, at any time, directly or indirectly, prepay any Indebtedness (other than to Lenders), or
repurchase, redeem, retire or otherwise acquire any Indebtedness of any Borrower.



     7.18. Anti-Terrorism Laws. No Borrower shall, until satisfaction in full of the
Obligations and termination of this Agreement, nor shall it permit any Affiliate or agent to:



          (a) Conduct any business or engage in any transaction or dealing with any Blocked Person,
including the making or receiving any contribution of funds, goods or services to or for the
benefit of any Blocked Person.



          (b) Deal in, or otherwise engage in any transaction relating to, any property or interests in
property blocked pursuant to the Executive Order No. 13224.



          (c) Engage in or conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in the
Executive Order No. 13224, the USA PATRIOT Act or any other Anti-Terrorism Law. Borrower shall
deliver to Lenders any certification or other evidence requested from time to time by any Lender in
its sole discretion, confirming Borrower’s compliance with this Section.



     7.19. Membership/Partnership Interests. Elect to treat or permit any of its
Subsidiaries to (x) treat its limited liability company membership interests or partnership
interests, as the case may be, as securities as contemplated by the definition of “security” in
Section 8-102(15) and by Section 8-103 of Article 8 of Uniform Commercial Code or (y) certificate
its limited liability company membership interests or partnership interests, as the case may be.



     7.20. Trading with the Enemy Act. Engage in any business or activity in violation of
the Trading with the Enemy Act.



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     7.21. Reserved.



     7.22. Other Agreements. Enter into any material amendment, waiver or modification of
the Acquisition Agreement, the Subordinated Obligations Documents or any related agreements.



VIII CONDITIONS PRECEDENT.




     8.1. Conditions to Initial Advances. The agreement of Lenders to make the initial Advances requested to be made on the Closing
Date is subject to the satisfaction, or waiver by Agent, immediately prior to or concurrently with
the making of such Advances, of the following conditions precedent:



          (a) This Agreement. Agent shall have received this Agreement, duly executed by each
Borrower;



          (b) Pledge Agreement. Agent shall have received the Pledge Agreements duly executed
by the parties named therein;



          (c) Negative Pledge Agreement. Agent shall have received the Negative Pledge
Agreements, in each case, duly executed by the parties named therein



          (d) Pledge Equity Interests; Stock Certificates and Units Powers; Pledged Notes.
Receipt by Agent of (i) any certificates representing the membership interests or Equity Interests
or Capital Stock pledged pursuant to the Pledge Agreements, together with an undated stock power or
until such power (or analogous power) for each membership interest or the shares, as applicable,
executed in blank by an Authorized Officer of the pledgor thereof and (ii) each promissory note (if
any) pledged to Agent pursuant to the Pledge Agreements endorsed in blank (or accompanied by an
executed transfer form in blank) by the pledgor thereof;



          (e) Intellectual Property Security Agreement. Agent shall have received the
Intellectual Property Security Agreement duly executed by the parties named therein;



          (f) Notes. Agent shall have received the Notes duly executed and delivered by an
authorized officer of each Borrower;



          (g) Filings, Registrations and Recordings. Each document (including any Uniform
Commercial Code financing statement) required by this Agreement, any related agreement or under law
or reasonably requested by Agent to be filed, registered or recorded in order to create, in favor
of Agent, a perfected security interest in or lien upon the Collateral shall have been properly
filed, registered or recorded in each jurisdiction in which the filing, registration or recordation
thereof is so required or requested, and Agent shall have received an acknowledgment copy, or
other evidence satisfactory to it, of each such filing, registration or recordation and
satisfactory evidence of the payment of any necessary fee, tax or expense relating thereto;



          (h) Company Proceedings of Borrowers. Agent shall have received a copy of the
resolutions in form and substance reasonably satisfactory to Agent, of the Managing Member or
Managers, as applicable, of each Borrower authorizing (i) the execution, delivery and performance
of this Agreement, the Notes, the Mortgage, any related agreements including any



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Other Document and
the Acquisition Agreement (collectively the “Documents”) and (ii) the granting by each
Borrower of the security interests in and liens upon the Collateral in each case certified by the
Secretary or an Assistant Secretary of each Borrower as of the Closing Date; and, such certificate
shall state that the resolutions thereby certified have not been amended, modified, revoked or
rescinded as of the date of such certificate;




          (i) Incumbency Certificates of Borrowers. Agent shall have received a certificate of
the Secretary or an Assistant Secretary of each Borrower, dated the Closing Date, as to the
incumbency and signature of the officers of each Borrower executing this Agreement, the Other
Documents, any certificate or other documents to be delivered by it pursuant hereto, together with
evidence of the incumbency of such Secretary or Assistant Secretary;



          (j) Company Proceedings of each Guarantor. Agent shall have received a copy of the
resolutions in form and substance reasonably satisfactory to Agent, of the Managing Member of each
Guarantor authorizing the execution, delivery and performance of the Guaranty, the Guaranty
Security Agreement and each Other Document to which it is a party certified by the Secretary or an
Assistant Secretary of each Guarantor as of the Closing Date; and, such certificate shall state
that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of
the date of such certificate;



          (k) Incumbency Certificates of each Guarantor. Agent shall have received a
certificate of the Secretary or an Assistant Secretary of each Guarantor, dated the Closing Date,
as to the incumbency and signature of the officers of each Guarantor executing this Agreement, any
certificate or other documents to be delivered by it pursuant hereto, together with evidence of the
incumbency of such Secretary or Assistant Secretary;



          (l) Certificates. Agent shall have received a copy of the Articles or Certificate of
Formation of each Borrower and each Guarantor, and all amendments thereto, certified by the
Secretary of State or other appropriate official of its jurisdiction of formation together with
copies of the Operating Agreement of each Borrower and each Guarantor and all agreements of each
Borrower’s and each Guarantor’s members certified as accurate and complete by the Secretary of each
Borrower and such Guarantor;



          (m) Good Standing Certificates. Agent shall have received good standing certificates
for each Borrower and each Guarantor dated not more than ten (10) days prior to the Closing Date,
issued by the Secretary of State or other appropriate official of each Borrower’s and each
Guarantor’s jurisdiction of formation and each jurisdiction where the conduct of each Borrower’s
and each Guarantor’s business activities or the ownership of its properties necessitates
qualification;



          (n) Legal Opinion. Agent shall have (i) received the executed legal opinion of
Strasburger & Price, LLP in form and substance satisfactory to Agent which shall cover such matters
incident to the transactions contemplated by this Agreement, the Note, the Other Documents, and
related agreements as Agent may reasonably require and Borrowers hereby authorize and direct such
counsel to deliver such opinions to Agent and Lenders and (ii) been permitted to rely on the legal
opinion received by Sponsor and Borrower in connection with the Acquisition in form and substance
satisfactory to Agent which shall cover such matters incident



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to the transactions contemplated by
the Acquisition Agreement and related agreements as Agent may reasonably require;




          (o) Third Party Consents. Receipt by Agent of evidence satisfactory to Agent that the
Loan Parties have obtained all material consents and approvals of all Persons, including all
requisite Governmental Bodies and counterparties to material contracts to the execution, delivery and performance of this Agreement, the Other Documents and the Acquisition Agreement;



          (p) No Litigation. (i) No litigation, investigation or proceeding before or by any
arbitrator or Governmental Body shall be continuing or threatened against any Loan Party or against
the officers or directors of any Loan Party (A) in connection with this Agreement, the Other
Documents, the Subordinated Obligations Documents or any of the transactions contemplated thereby
and which, in the reasonable opinion of Agent, is deemed material or (B) which could, in the
reasonable opinion of Agent, have a Material Adverse Effect; and (ii) no injunction, writ,
restraining order or other order of any nature materially adverse to any Loan Party or the conduct
of its business or inconsistent with the due consummation of the Transactions shall have been
issued by any Governmental Body;



          (q) Financial Condition Certificates. Agent shall have received an executed Financial
Condition Certificate in the form of Exhibit 8.1(k).



          (r) Collateral Examination. Agent shall have completed Collateral examinations and
received appraisals, the results of which shall be satisfactory in form and substance to Lenders,
of the Receivables, Inventory, General Intangibles, Real Property, Leasehold Interest and Equipment
of each Borrower and all books and records in connection therewith;



          (s) Fees. Agent shall have received all fees payable to Agent and Lenders on or prior
to the Closing Date hereunder, including pursuant to Article III hereof;



          (t) Pro Forma Financial Statements. Agent shall have received a copy of the Pro Forma
Financial Statements which shall be satisfactory in all respects to Lenders;



          (u) Equity Documents and the Acquisition Agreement. Agent shall have received final
executed copies of the Equity Documents and Acquisition Agreement, and all related agreements,
documents and instruments as in effect on the Closing Date all of which shall be satisfactory in
form and substance to Agent and the transactions contemplated by such documentation shall be
consummated prior to or simultaneously with the making of the initial Advance;



          (v) Subordination Agreement. Agent shall have entered into a Subordination Agreement
with Borrowers and Waypoint satisfactory in form and substance to Agent in its sole discretion;



          (w) Insurance. Agent shall have received in form and substance satisfactory to Agent,
certified copies of Borrowers’ casualty insurance policies, together with loss payable endorsements
on Agent’s standard form of lender loss payee endorsement naming Agent as



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lender loss payee, and
certified copies of Borrowers’ liability insurance policies, together with endorsements naming
Agent as a co-insured;




          (x) Title Insurance. Agent shall have received fully paid mortgagee title insurance
policies (or binding commitments to issue title insurance policies, marked to Agent’s satisfaction
to evidence the form of such policies to be delivered with respect to the Mortgage), in standard ALTA form, issued by a title insurance company satisfactory to Agent, each in an
amount equal to not less than the fair market value of the Crowley Real Property subject to the
Mortgage, insuring the Mortgage to create a valid Lien on the Crowley Real Property with no
exceptions which Agent shall not have approved in writing and no survey exceptions;



          (y) Environmental Reports. Agent shall have received (i) “Environmental
Questionnaire” prepared by independent environmental engineering firms for each parcel of Real
Property owned or leased by any Borrower except for the Crowley Real Property and (ii)
Environmental Reports with respect to the Crowley Real Property, each to be satisfactory to Agent
in its sole discretion;



          (z) Payment Instructions. Agent shall have received written instructions from
Borrowing Agent directing the application of proceeds of the initial Advances made pursuant to this
Agreement;



          (aa) Blocked Accounts. Agent shall have received duly executed agreements
establishing the Blocked Accounts or Depository Accounts with financial institutions acceptable to
Agent for the collection or servicing of the Receivables and proceeds of the Collateral;



          (bb) Consents. Agent shall have received any and all Consents necessary to permit the
effectuation of the transactions contemplated by this Agreement and the Other Documents; and, Agent
shall have received such Consents and waivers of such third parties as might assert claims with
respect to the Collateral, as Agent and its counsel shall deem necessary;



          (cc) No Adverse Material Change. (i) since August 31, 2009, there shall not have
occurred any event, condition or state of facts which could reasonably be expected to have a
Material Adverse Effect and (ii) no representations made or information supplied to Agent or
Lenders shall have been proven to be inaccurate or misleading in any material respect;



          (dd) Lien Waiver Agreements. Agent shall have received Lien Waiver Agreements
satisfactory to Agent with respect to all premises leased by Borrowers at which any Collateral is
located;



          (ee) Mortgage. Agent shall have received in form and substance satisfactory to
Lenders (i) executed Mortgages in recordable form, (ii) a title policy for the Crowley Real
Property and (iii) surveys for the Crowley Real Property;



          (ff) Guarantees and Other Documents. Agent shall have received (i) the executed
Guarantees, (ii) the executed Guarantor Security Agreement, and (iii) the executed Other Documents,
all in form and substance satisfactory to Agent;



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          (gg) Prior Indebtedness. A payoff letter from each lender of any Prior Indebtedness,
in form and substance satisfactory to Agent, together with such Uniform Commercial Code termination
statements, releases of mortgage Liens and other instruments, documents and./or agreements
necessary or appropriate to terminate any Liens in favor of any such lenders securing Prior
Indebtedness which is to be indefeasibly paid in full on or prior to the Closing Date, as Agent may
requested, duly executed and in recordable form, if applicable, and otherwise in form and substance
satisfactory to Agent;



          (hh) Document and Diligence Review. Agent and its counsel shall have (i) reviewed all
books and records, organization documents, third party financing agreements, customer agreements,
material contracts of Borrowers including leases, union contracts, labor contracts, vendor supply
contracts, license agreements and distributorship agreements (ii) reviewed the Loan Parties
corporate and legal structure, and such contracts, agreements, references to structure shall be
satisfactory to agent and its counsel, including, but not limited to, all terms, conditions and
documentation related to the Equity Documents;



          (ii) Closing Certificate. Agent shall have received a closing certificate signed by
the Chief Financial Officer of each Loan Party dated as of the date hereof, stating that (i) all
representations and warranties set forth in this Agreement and the Other Documents are true and
correct on and as of such date, (ii) the Loan Parties on such date in compliance with all the terms
and provisions set forth in this Agreement and the Other Documents and (iii) on such date no
Default or Event of Default has occurred or is continuing;



          (jj) Borrowing Base. Agent shall have received evidence from Borrowers that the
amount of Eligible Receivables is sufficient in value and amount to support Advances in the amount
requested by Borrowers on the Closing Date;



          (kk) Prefund Examination. Agent shall have completed a prefunding examination of the
Collateral, which examination shall include the verification and testing of Receivables and
payables in respect of Mud Claims, the results of which shall be satisfactory to Agent in its sole
discretion;



          (ll) Undrawn Availability. After giving effect to the initial Advances hereunder,
Borrowers shall have Undrawn Availability of at least $2,000,000; and



          (mm) Compliance with Laws. Agent shall be reasonably satisfied that each Borrower is
in compliance with all pertinent federal, state, local or territorial regulations, including those
with respect to the Federal Occupational Safety and Health Act, the Environmental Protection Act,
ERISA and the Trading with the Enemy Act.



          (nn) Other. All corporate and other proceedings, and all documents, instruments and
other legal matters in connection with the Transactions shall be satisfactory in form and substance
to Agent and its counsel.



     8.2. Conditions to Each Advance. The agreement of Lenders to make any Advance
requested to be made on any date (including the initial Advance), is subject to the satisfaction of
the following conditions precedent as of the date such Advance is made:



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          (a) Representations and Warranties. Each of the representations and warranties made
by any Borrower in or pursuant to this Agreement, the Other Documents and any related agreements to
which it is a party, and each of the representations and warranties contained in any certificate,
document or financial or other statement furnished at any time under or in connection with this
Agreement, the Other Documents or any related agreement shall be true and correct in all material
respects on and as of such date as if made on and as of such date;



          (b) No Default. No Event of Default or Default shall have occurred and be continuing
on such date, or would exist after giving effect to the Advances requested to be made, on such date
and, in the case of the initial Advance, after giving effect to the consummation of the
transactions contemplated by the Acquisition Agreement; provided, however that Agent, in its sole
discretion, may continue to make Advances notwithstanding the existence of an Event of Default or
Default and that any Advances so made shall not be deemed a waiver of any such Event of Default or
Default; and



          (c) Maximum Advances. In the case of any type of Advance requested to be made, after
giving effect thereto, the aggregate amount of such type of Advance shall not exceed the maximum
amount of such type of Advance permitted under this Agreement.



     Each request for an Advance by any Borrower hereunder shall constitute a representation and
warranty by each Borrower as of the date of such Advance that the conditions contained in this
subsection shall have been satisfied.


IX INFORMATION AS TO BORROWERS.




     Each Borrower shall, or (except with respect to Section 9.11) shall cause Borrowing Agent on
its behalf to, until satisfaction in full of the Obligations and the termination of this Agreement:



     9.1. Disclosure of Material Matters. Immediately upon learning thereof, report to
Agent all matters materially affecting the value, enforceability or collectibility of any portion
of the Collateral, including any Borrower’s reclamation or repossession of, or the return to any
Borrower of, a material amount of goods or claims or disputes asserted by any Customer or other
obligor or any Lien, other than any Permitted Encumbrance, placed upon or asserted against any
Borrower or any Collateral.



     9.2. Schedules.



          (a) Deliver to Agent on or before the twentieth (20th) day of each month as and for the prior
month (i) accounts receivable agings inclusive of reconciliations to the general ledger, (ii)
accounts payable agings inclusive of reconciliations to the general ledger, (iii) Inventory reports
(including Inventory perpetual reports) in form and substance acceptable to Agent, (iv) a Mud
Liability schedule in form and substance satisfactory to Agent including, but not limited to, a
listing by Customer showing the number of barrels of Mud Inventory held in storage multiplied by
the average retail sale price of Mud Inventory sold during such month compared to the Receivables
outstanding for such Customer, (v) a Borrowing Base Certificate in form and substance satisfactory
to Agent (which shall be calculated as of the last day of the prior month and which shall not be
binding upon Agent or restrictive of Agent’s rights under this Agreement) and (vi) an Undrawn
Availability calculation;



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          (b) No less than once each week, deliver to Agent on or before each Wednesday of each week as
of the last Business Day of the previous week, or such other intervals and for such periods as the Agent may require, a Borrowing Base Certificate in form
and substance satisfactory to Agent, that shall be calculated as of the last day of the prior week
(which shall not be binding upon Agent or restrictive of Agent’s rights under this Agreement), and
shall include in each instance, detailed description of sales, collections, credits, and shall
include, if requested by Agent: (i) confirmatory assignment schedules, (ii) copies of Customer’s
invoices, (iii) evidence of shipment or delivery, (iv) Inventory reports, (v) a equipment by
location report showing the location of the Borrowers’ Rolling Stock and (vi) such further
schedules, documents, and/or information regarding the Collateral as Agent may require including,
but not limited to, trial balances and test verifications. Agent shall have the right to confirm
and verify all Receivables by any manner and through any medium it considers advisable and do
whatever it may deem reasonably necessary to protect its interests hereunder. The items to be
provided under this Section are to be in form satisfactory to Agent and executed by Borrowers and
delivered to Agent from time to time solely for Agent’s convenience in maintaining records of the
Collateral, and any Borrower’s failure to deliver any of such items to Agent shall not affect,
terminate, modify, or otherwise limit Agent’s Lien with respect to the Collateral.



     9.3. Environmental Reports. Furnish Agent, concurrently with the delivery of the
financial statements referred to in Sections 9.7 and 9.8, with a Compliance Certificate signed by
an Authorized Officer of Borrowing Agent stating, to the best of his knowledge, that each Borrower
is in compliance in all material respects with all federal, state and local Environmental Laws. To
the extent any Borrower is not in compliance with the foregoing laws, the certificate shall set
forth with specificity all areas of non-compliance and the proposed action such Borrower will
implement in order to achieve full compliance.



     9.4. Litigation. Promptly notify Agent in writing of any claim, litigation, suit or
administrative proceeding affecting any Loan Party, whether or not the claim is covered by
insurance, and of any litigation, suit or administrative proceeding, which in any such case affects
the Collateral or which could reasonably be expected to have a Material Adverse Effect.



     9.5. Material Occurrences. Promptly notify Agent in writing upon the occurrence of
(a) any Event of Default or Default; (b) any event of default under the Subordinated Obligations
Documents; (c) any event which with the giving of notice or lapse of time, or both, would
constitute an event of default under the Subordinated Obligations Documents; (d) any event,
development or circumstance whereby any financial statements or other reports furnished to Agent
fail in any material respect to present fairly, in accordance with GAAP consistently applied, the
financial condition or operating results of any Borrower as of the date of such statements; (e) any
accumulated retirement plan funding deficiency which, if such deficiency continued for two plan
years and was not corrected as provided in Section 4971 of the Code, could subject any Borrower to
a tax imposed by Section 4971 of the Code; (f) each and every default by any Borrower which might
result in the acceleration of the maturity of any Indebtedness, including the names and addresses
of the holders of such Indebtedness with respect to which there is a default existing or with
respect to which the maturity has been or



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could be accelerated, and the amount of such
Indebtedness; and (g) any other development in the business or affairs of any Loan Party which
could reasonably be expected to have a Material Adverse Effect; in each case describing the nature
thereof and the action Borrowers propose to take with respect thereto.




     9.6. Government Receivables. Notify Agent immediately if any of its Receivables arise
out of contracts between any Borrower and the United States, any state, or any department, agency
or instrumentality of any of them.



     9.7. Annual Financial Statements. Furnish Agent within one hundred twenty (120) days
after the end of each fiscal year of Borrowers, financial statements of Borrowers on a consolidated
and consolidating basis including, but not limited to, statements of income and stockholders’
equity and cash flow from the beginning of the current fiscal year to the end of such fiscal year
and the balance sheet as at the end of such fiscal year, all prepared in accordance with GAAP
applied on a basis consistent with prior practices, and in reasonable detail and reported upon
without qualification by an independent certified public accounting firm selected by Borrowers and
satisfactory to Agent (the “Accountants”). The report of the Accountants shall be
accompanied by all management letters from the Accountants delivered or addressed to Borrowers. In
addition, the reports shall be accompanied by a Compliance Certificate.



     9.8. Quarterly Financial Statements. Furnish Agent within forty-five (45) days after
the end of each fiscal quarter, an unaudited balance sheet of Borrowers on a consolidated and
consolidating basis and unaudited statements of income and stockholders’ equity and cash flow of
Borrowers on a consolidated and consolidating basis reflecting results of operations from the
beginning of the fiscal year to the end of such quarter and for such quarter, prepared on a basis
consistent with prior practices and complete and correct in all material respects, subject to
normal and recurring year end adjustments that individually and in the aggregate are not material
to Borrowers’ business. The reports shall be accompanied by a Compliance Certificate.



     9.9. Monthly Financial Statements. Furnish Agent within thirty (30) days after the
end of each month, an unaudited balance sheet of Borrowers on a consolidated and consolidating
basis and unaudited statements of income and stockholders’ equity and cash flow of Borrowers on a
consolidated and consolidating basis reflecting results of operations from the beginning of the
fiscal year to the end of such month and for such month, prepared on a basis consistent with prior
practices and complete and correct in all material respects, subject to normal and recurring year
end adjustments that individually and in the aggregate are not material to Borrowers’ business.
The reports shall be accompanied by a Compliance Certificate.



     9.10. Other Reports. Furnish Agent as soon as available, but in any event within ten (10) days after the
issuance thereof, (i) with copies of such financial statements, reports and returns as each
Borrower shall send to its members and (ii) copies of all notices, reports, financial statements
and other materials sent pursuant to the Subordinated Obligations Documents.




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     9.11. Additional Information. Furnish Agent with such additional information as
Agent shall reasonably request in order to enable Agent to determine whether the terms, covenants,
provisions and conditions of this Agreement and the Notes have been complied with by Borrowers
including, without the necessity of any request by Agent, (a) copies of all environmental audits
and reviews, (b) at least thirty (30) days prior thereto, notice of any Borrower’s opening of any
new office or place of business or any Borrower’s closing of any existing office or place of
business, and (c) promptly upon any Borrower’s learning thereof, notice of any labor dispute to
which any Borrower may become a party, any strikes or walkouts relating to any of its plants or
other facilities, and the expiration of any labor contract to which any Borrower is a party or by
which any Borrower is bound.



     9.12. Projected Operating Budget. Furnish Agent, no later than thirty (30) days prior
to the beginning of each Borrower’s fiscal years commencing with fiscal year 2011, a month by month
projected operating budget and cash flow of Borrowers on a consolidated and consolidating basis for
such fiscal year (including an income statement for each month and a balance sheet as at the end of
the last month in each fiscal quarter), such projections to be accompanied by a certificate signed
by an Authorized Officer of each Borrower to the effect that such projections have been prepared on
the basis of sound financial planning practice consistent with past budgets and financial
statements and that such officer has no reason to question the reasonableness of any material
assumptions on which such projections were prepared.



     9.13. Variances From Operating Budget. At Agent’s request, furnish Agent,
concurrently with the delivery of the financial statements referred to in Section 9.7 and each
monthly report, a written report summarizing all material variances from budgets submitted by
Borrowers pursuant to Section 9.12 and a discussion and analysis by management with respect to such
variances.



     9.14. Notice of Suits, Adverse Events. Furnish Agent with prompt written notice of
(i) any lapse or other termination of any Consent issued to any Loan Party by any Governmental Body
or any other Person that is material to the operation of any Borrower’s business, (ii) any refusal
by any Governmental Body or any other Person to renew or extend any such Consent; and (iii) copies
of any periodic or special reports filed by any Loan Party with any Governmental Body or Person, if
such reports indicate any material change in the business, operations, affairs or condition of any
Loan party, or if copies thereof are requested by Lender, and (iv) copies of any material notices
and other communications from any Governmental Body or Person which specifically relate to any Loan
Party.



     9.15. ERISA Notices and Requests. Furnish Agent with immediate written notice in the
event that (i) any Borrower or any member of the Controlled Group knows or has reason to know that
a Termination Event has occurred, together with a written statement describing such Termination
Event and the action, if any, which such Borrower or any member of the Controlled Group has taken,
is taking, or proposes to take with respect thereto and, when known, any action taken or threatened
by the Internal Revenue Service, Department of Labor or PBGC with respect thereto, (ii) any
Borrower or any member of the Controlled Group knows or has reason to know that a prohibited
transaction (as defined in Sections 406 of ERISA and 4975 of the Code) has occurred together with a
written statement describing such transaction



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and the action which such Borrower or any member of
the Controlled Group has taken, is taking or proposes to take with respect thereto, (iii) a funding
waiver request has been filed with respect to any Plan together with all communications received by
any Borrower or any member of the Controlled Group with respect to such request, (iv) any increase
in the benefits of any existing Plan or the establishment of any new Plan or the commencement of
contributions to any Plan to which any Borrower or any member of the Controlled Group was not
previously contributing shall occur, (v) any Borrower or any member of the Controlled Group shall
receive from the PBGC a notice of intention to terminate a Plan or to have a trustee appointed to
administer a Plan, together with copies of each such notice, (vi) any Borrower or any member of the
Controlled Group shall receive any favorable or unfavorable determination letter from the Internal
Revenue Service regarding the qualification of a Plan under Section 401(a) of the Code, together
with copies of each such letter; (vii) any Borrower or any member of the Controlled Group shall
receive a notice regarding the imposition of withdrawal liability, together with copies of each
such notice; (viii) any Borrower or any member of the Controlled Group shall fail to make a
required installment or any other required payment under Section 412 of the Code on or before the
due date for such installment or payment; or (ix) any Borrower or any member of the Controlled
Group knows that (a) a Multiemployer Plan has been terminated, (b) the administrator or plan
sponsor of a Multiemployer Plan intends to terminate a Multiemployer Plan, or (c) the PBGC has
instituted or will institute proceedings under Section 4042 of ERISA to terminate a Multiemployer
Plan.




     9.16. Additional Documents. Execute and deliver to Agent, (i) upon request made in
Agent’s sole discretion after the occurrence of an Event of Default, mortgages to Agent granting
Agent Liens on all such Real Property owned by any Borrower as Agent shall request to secure the
Obligations, and (ii) upon request, such documents and agreements as Agent may, from time to time,
reasonably request to carry out the purposes, terms or conditions of this Agreement.



     9.17. Appraisals and Field Examinations. Permit Agent or Agent’s
representatives to (a) perform desktop Collateral appraisals in form and substance satisfactory to
Agent at Borrowers’ cost and expense as Agent deems appropriate in Agent’s sole discretion, to
determine, among other things, the net orderly liquidation value of the Collateral, (b) perform
full Collateral appraisals in form and substance satisfactory to Agent at Borrowers’ cost and
expense as Agent deems appropriate in Agent’s sole discretion, and, to determine, among other
things, the net orderly liquidation value of the Collateral (each appraisal contemplated in this
Section 9.17 or performed by Agent prior to the Closing Date shall each be an “NOLV
Appraisal”), and (c) conduct field examinations at Borrowers’ cost and expense as Agent deems
appropriate in Agent’s sole discretion. Notwithstanding the foregoing, so long as no Event of
Default or Default has occurred and is continuing, Borrower shall not be required to pay for more
than one appraisal of the types described in Section 9.17(b) per calendar year.



     9.18 Background Check. Agent shall have the right to conduct a background check on
any new officer of any Borrower.


X EVENTS OF DEFAULT.





The occurrence of any one or more of the following events shall constitute an “Event of
Default”:



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     10.1. Nonpayment. Failure by any Borrower to pay any principal or interest on the
Obligations when due, whether at maturity or by reason of acceleration pursuant to the terms of
this Agreement or by notice of intention to prepay, or by required prepayment or failure to pay any
other liabilities or make any other payment, fee or charge provided for herein when due or in any
Other Document;



     10.2. Breach of Representation. Any representation or warranty made or deemed made by
any Loan Party in this Agreement, any Other Document or any related agreement or in any
certificate, document or financial or other statement furnished at any time in connection herewith
or therewith shall prove to have been misleading in any material respect on the date when made or
deemed to have been made;



     10.3. Financial Information. Failure by any Borrower to (i)(x) furnish financial
information when due, or (y) when requested or (ii) permit the inspection of its books or records
in accordance with this Agreement;



     10.4. Judicial Actions. Issuance of a notice of Lien, levy, assessment, injunction or
attachment against any Borrower’s Collateral or against a material portion of any Borrower’s other
property which is not stayed or lifted within thirty (30) days;



     10.5. Noncompliance. Except as otherwise provided for in Sections 10.1, 10.3 and
10.5(ii), (i) failure or neglect of any Loan Party to perform, keep or observe any term, provision,
condition, covenant herein contained, or contained in any Other Document or any other agreement or
arrangement, now or hereafter entered into between Loan Party and Agent or any Lender, or (ii)
failure or neglect of any Borrower to perform, keep or observe any term, provision, condition or
covenant, contained in Sections 4.6, 4.7, 4.9, 6.1, 6.3, 6.4, 9.4 or 9.6 hereof which is not cured
within ten (10) days from the occurrence of such failure or neglect;



     10.6. Judgments. Any judgment or judgments are rendered against any Loan Party for an
aggregate amount in excess of $250,000 or again all Loan Parties for an aggregate amount in excess
of $250,000 and (i) enforcement proceedings shall have been commenced by a creditor upon such
judgment, (ii) there shall be any period of thirty (30) consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, shall not be in effect,
or (iii) any such judgment results in the creation of a Lien upon any of the Collateral (other than
a Permitted Encumbrance);



     10.7. Bankruptcy. Any Loan Party shall (i) apply for, consent to or suffer the
appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator or
similar fiduciary of itself or of all or a substantial part of its property, (ii) make a general
assignment for the benefit of creditors, (iii) commence a voluntary case under any state or federal
bankruptcy laws (as now or hereafter in effect), (iv) be adjudicated a bankrupt or insolvent, (v)
file a petition seeking to take advantage of any other law providing for the relief of debtors,
(vi) acquiesce to, or fail to have dismissed, within thirty (30) days, any petition filed against
it in any involuntary case under such bankruptcy laws, or (vii) take any action for the purpose of
effecting any of the foregoing;



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     10.8. Inability to Pay. Any Loan Party shall admit in writing its inability, or be
generally unable, to pay its debts as they become due or cease operations of its present business;



     10.9. Affiliate Bankruptcy. Any Affiliate or any Subsidiary of any Loan Party shall
(i) apply for, consent to or suffer the appointment of, or the taking of possession by, a receiver,
custodian, trustee, liquidator or similar fiduciary of itself or of all or a substantial part of
its property, (ii) admit in writing its inability, or be generally unable, to pay its debts as they
become due or cease operations of its present business, (iii) make a general assignment for the
benefit of creditors, (iv) commence a voluntary case under any state or federal bankruptcy laws (as
now or hereafter in effect), (v) be adjudicated a bankrupt or insolvent, (vi) file a petition
seeking to take advantage of any other law providing for the relief of debtors, (vii) acquiesce to,
or fail to have dismissed, within thirty (30) days, any petition filed against it in any
involuntary case under such bankruptcy laws, or (viii) take any action for the purpose of effecting
any of the foregoing;



     10.10. Material Adverse Effect. Any change in any Loan Party’s results of operations
or condition (financial or otherwise) which in Agent’s opinion has a Material Adverse Effect;



     10.11. Lien Priority. Any Lien created hereunder or provided for hereby or under any
related agreement for any reason ceases to be or is not a valid and perfected Lien having a first
priority interest;



     10.12. Subordination Agreement Default. (i) An event of default has occurred under
the Subordination Agreement, which default shall not have been cured or waived within any
applicable grace period, (ii) termination or breach of the Subordination Agreement by Borrower or
Waypoint or (iii) the attempt by any Borrower or Waypoint to terminate or challenge the validity of
its respective Obligations under the Subordination Agreement.



     10.13. Subordinated Obligations Document Default. (i) The modification, termination
or breach of any of the Subordinated Obligations Document Documents of any Borrower or (ii) the
attempt by any Borrower or Waypoint to terminate or challenge the validity of the subordination and
other provisions benefiting Agent or any Lender contained in any Subordinated Obligations Document.



     10.14. Cross Default. A default of the obligations of any Loan Party under any
agreement relating to Indebtedness of not less than $500,000 to which it is a party shall occur
which adversely affects its condition, affairs or prospects (financial or otherwise) or a failure
by an Loan Party to make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) in respect of Indebtedness, which default or failure to pay is
not cured within any applicable grace period;



     10.15. Breach of Guaranty. Termination or breach of any Guaranty or Guaranty Security
Agreement or similar agreement executed and delivered to Agent in connection with the Obligations
of any Borrower, or if any Guarantor attempts to terminate, challenges the validity of, or its
liability under, any such Guaranty or Guaranty Security Agreement or similar agreement;



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     10.16. Change of Ownership. Any Change of Ownership or Change of Control shall occur;



     10.17. Invalidity. Any material provision of this Agreement or any Other Document
shall, for any reason, cease to be valid and binding on any Loan Party, or any Loan Party shall so
claim in writing to Agent or any Lender;



     10.18. Licenses. (i) Any Governmental Body shall (A) revoke, terminate, suspend or
adversely modify any license, permit, patent, trademark or trade name of any Loan Party or (B)
commence proceedings to suspend, revoke, terminate or adversely modify any such license, permit,
trademark, trade name or patent and such proceedings shall not be dismissed or discharged within
sixty (60) days, or (C) schedule or conduct a hearing on the renewal of any license, permit,
trademark, trade name, domain name or patent necessary for the continuation of any Loan Party’s
business and the staff of such Governmental Body issues a report recommending the termination,
revocation, suspension or material, adverse modification of such license, permit, trademark, trade
name, domain name or patent, and such revocation or termination and non-replacement described in
(A), (B) and (C) above would reasonably be expected to have a Material Adverse Effect; (ii) any
agreement which is necessary or material to the operation of any Loan Party’s business shall be
revoked or terminated and not replaced by a substitute acceptable to Agent within thirty (30) days
after the date of such revocation or termination, and such revocation or termination and
non-replacement would reasonably be expected to have a Material Adverse Effect;



     10.19. Seizures. Any portion of the Collateral shall be seized or taken by a
Governmental Body, or any Loan Party or the title and rights of any Loan Party or Sponsor which is
the owner of any material portion of the Collateral shall have become the subject matter of claim,
litigation, suit or other proceeding which might, in the opinion of Agent, upon final
determination, result in impairment or loss of the security provided by this Agreement or the Other
Documents;



     10.20. Operations. The operations of any Loan Party’s manufacturing facility are
interrupted at any time for more than forty-eight (48) hours during any period of five (5)
consecutive days, unless such Loan Party shall (i) be entitled to receive for such period of
interruption, proceeds of business interruption insurance sufficient to assure that its per diem
cash needs during such period is at least equal to its average per diem cash needs for the
consecutive three month period immediately preceding the initial date of interruption and (ii)
receive such proceeds in the amount described in clause (i) preceding not later than thirty (30)
days following the initial date of any such interruption; provided, however, that notwithstanding
the provisions of clauses (i) and (ii) of this Section, an Event of Default shall be deemed to have
occurred if such Loan Party shall be receiving the proceeds of business interruption insurance for
a period of thirty (30) consecutive days; or



     10.21. Pension Plans. An event or condition specified in Sections 7.16 or 9.15 hereof
shall occur or exist with respect to any Plan and, as a result of such event or condition, together
with all other such events or conditions, any Borrower or any member of the Controlled Group shall
incur, or in the opinion of Agent be reasonably likely to incur, a liability to a Plan or the PBGC
(or both) which, in the reasonable judgment of Agent, would have a Material Adverse Effect.



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XI LENDERS’ RIGHTS AND REMEDIES AFTER DEFAULT.




     11.1. Rights and Remedies.



          (a) Upon the occurrence of (i) an Event of Default pursuant to Section 10.7 all Obligations
shall be immediately due and payable and this Agreement and the obligation of Lenders to make
Advances shall be deemed terminated; and, (ii) any of the other Events of Default and at any time
thereafter (such default not having previously been cured), at the option of Required Lenders all
Obligations shall be immediately due and payable and Lenders shall have the right to terminate this
Agreement and to terminate the obligation of Lenders to make Advances and (iii) a filing of a
petition against any Borrower in any involuntary case under any state or federal bankruptcy laws,
all Obligations shall be immediately due and payable and the obligation of Lenders to make Advances
hereunder shall be terminated other than as may be required by an appropriate order of the
bankruptcy court having jurisdiction over such Borrower. Upon the occurrence of any Event of
Default, Agent shall have the right to exercise any and all rights and remedies provided for
herein, under the Other Documents, under the Uniform Commercial Code and at law or equity
generally, including the right to foreclose the security interests granted herein and to realize
upon any Collateral by any available judicial procedure and/or to take possession of and sell any
or all of the Collateral with or without judicial process. Agent may enter any of any Borrower’s
premises or other premises (including all Real Property identified on Schedule 4.19 hereto) without
legal process and without incurring liability to any Borrower therefore, and Agent may thereupon,
or at any time thereafter, conduct a public or private sale of the Collateral or in its discretion
without notice or demand, take the Collateral and remove the same to such place as Agent may deem
advisable and Agent may require Borrowers to make the Collateral available to Agent at a convenient
place, including, without limitation requiring a Borrower to disassemble and re-assemble Collateral
in order to remove such Collateral to such place as Agent may deem advisable and convenient. With
or without having the Collateral at the time or place of sale, Agent may sell the Collateral, or
any part thereof, at public or private sale, at any time or place, in one or more sales, at such
price or prices, and upon such terms, either for cash, credit or future delivery, as Agent may
elect. Except as to that part of the Collateral which is perishable or threatens to decline
speedily in value or is of a type customarily sold on a recognized market, Agent shall give
Borrowers reasonable notification of such sale or sales, it being agreed that in all events written
notice mailed to Borrowing Agent at least ten (10) days prior to such sale or sales is reasonable
notification. At any public sale Agent or any Lender may bid for and become the purchaser, and
Agent, any Lender or any other purchaser at any such sale thereafter shall hold the Collateral sold
absolutely free from any claim or right of whatsoever kind, including any equity of redemption and
all such claims, rights and equities are hereby expressly waived and released by each Borrower. In
connection with the exercise of the foregoing remedies, including the sale of Inventory, Agent is
granted a perpetual nonrevocable, royalty free, nonexclusive license and Agent is granted
permission to use all of each Borrower’s (a) trademarks, trade styles, trade names, trade name
applications, domain names, domain name applications, patents, patent applications, copyrights,
service marks, licenses, franchises and other proprietary rights which are used or useful in
connection with Inventory for the purpose of marketing, advertising for sale and selling or
otherwise disposing of




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such Inventory and (b) Equipment for the purpose of completing the
manufacture of unfinished goods. The cash proceeds realized from the sale of any Collateral shall
be applied to the Obligations in the order set forth in Section 11.5 hereof. Noncash proceeds will
only be applied to the Obligations as they are converted into cash. If any deficiency shall arise,
Borrowers shall remain liable to Agent and Lenders therefore.




          (b) To the extent that Applicable Law imposes duties on Agent to exercise remedies in a
commercially reasonable manner, each Borrower acknowledges and agrees that it is not commercially
unreasonable for Agent (i) to fail to incur expenses reasonably deemed significant by Agent to
prepare Collateral for disposition or otherwise to complete raw material or work in process into
finished goods or other finished products for disposition, (ii) to fail to obtain third party
consents for access to Collateral to be disposed of, or to obtain or, if not required by other law,
to fail to obtain governmental or third party consents for the collection or disposition of
Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against
Customers or other Persons obligated on Collateral or to remove Liens on or any adverse claims
against Collateral, (iv) to exercise collection remedies against Customers and other Persons
obligated on Collateral directly or through the use of collection agencies and other collection
specialists, (v) to advertise dispositions of Collateral through publications or media of general
circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other
Persons, whether or not in the same business as any Borrower, for expressions of interest in
acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers
to assist in the disposition of Collateral, whether or not the Collateral is of a specialized
nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of
assets of the types included in the Collateral or that have the reasonable capacity of doing so, or
that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail
markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi)
to purchase insurance or credit enhancements to insure Agent against risks of loss, collection or
disposition of Collateral or to provide to Agent a guaranteed return from the collection or
disposition of Collateral, or (xii) to the extent deemed appropriate by Agent, to obtain the
services of other brokers, investment bankers, consultants and other professionals to assist Agent
in the collection or disposition of any of the Collateral. Each Borrower acknowledges that the
purpose of this Section 11.1(b) is to provide non-exhaustive indications of what actions or
omissions by Agent would not be commercially unreasonable in Agent’s exercise of remedies against
the Collateral and that other actions or omissions by Agent shall not be deemed commercially
unreasonable solely on account of not being indicated in this Section 11.1(b). Without limitation
upon the foregoing, nothing contained in this Section 11.1(b) shall be construed to grant any rights
to any Borrower or to impose any duties on Agent that would not have been granted or imposed by
this Agreement or by Applicable Law in the absence of this Section 11.1(b).




     11.2. Agent’s Discretion. Agent shall have the right in its sole discretion to
determine which rights, Liens, security interests or remedies Agent may at any time pursue,
relinquish, subordinate, or modify or to take any other action with respect thereto and such
determination will not in any way modify or affect any of Agent’s or Lenders’ rights hereunder.



     11.3. Setoff. Subject to Section 14.12, in addition to any other rights which Agent
or any Lender may have under Applicable Law, upon the occurrence of an Event of Default



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hereunder,
Agent and such Lender shall have a right, immediately and without notice of any kind, to apply any
Borrower’s property held by Agent and such Lender to reduce the Obligations.




     11.4. Rights and Remedies not Exclusive. The enumeration of the foregoing rights and
remedies is not intended to be exhaustive and the exercise of any rights or remedy shall not
preclude the exercise of any other right or remedies provided for herein or otherwise provided by
law, all of which shall be cumulative and not alternative.



     11.5. Allocation of Payments After Event of Default. Notwithstanding any other
provisions of this Agreement to the contrary, after the occurrence and during the continuance of an
Event of Default, all amounts collected or received by Agent on account of the Obligations or any
other amounts outstanding under any of the Other Documents or in respect of the Collateral may, at
Agent’s discretion, be paid over or delivered as follows:



     FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including reasonable
attorneys’ fees) of Agent in connection with enforcing its rights and the rights of Lenders under
this Agreement and the Other Documents and any protective advances made by Agent with respect to
the Collateral under or pursuant to the terms of this Agreement;



     SECOND, to payment of any fees owed to Agent;



     THIRD, to the payment of all reasonable out-of-pocket costs and expenses (including reasonable
attorneys’ fees) of each of Lenders to the extent owing to such Lender pursuant to the terms of
this Agreement;



     FOURTH, to the payment of all of the Obligations consisting of accrued fees and interest;



     FIFTH, to the payment of the outstanding principal amount of the Obligations (including the
payment or cash collateralization of any outstanding Letters of Credit);



     SIXTH, to all other Obligations and other obligations which shall have become due and payable
under the Other 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, (i) amounts received shall be applied in the numerical order
provided until exhausted prior to application to the next succeeding category; (ii) each of Lenders
shall receive (so long as it is not a Defaulting Lender) an amount equal to its pro rata share
(based on the proportion that the then outstanding Advances held by such Lender bears to the
aggregate then outstanding Advances) of amounts available to be applied pursuant to clauses
“FOURTH”, “FIFTH” and “SIXTH” above; and (iii) 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 Agent in a cash collateral account and
applied (A) first, to reimburse the Issuer from time to time for any drawings under such



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Letters of
Credit and (B) 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
11.5.



XII WAIVERS AND JUDICIAL PROCEEDINGS.




     12.1. Waiver of Notice. Each Borrower hereby waives notice of non-payment of any of
the Receivables, demand, presentment, protest and notice thereof with respect to any and all
instruments, notice of acceptance hereof, notice of loans or advances made, credit extended,
Collateral received or delivered, or any other action taken in reliance hereon, and all other
demands and notices of any description, except such as are expressly provided for herein.



     12.2. Delay. No delay or omission on Agent’s or any Lender’s part in exercising any
right, remedy or option shall operate as a waiver of such or any other right, remedy or option or
of any Default or Event of Default.



     12.3. Jury Waiver. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (B) IN
ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF
THEM WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE
AND EACH PARTY HEREBY CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENTS OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


XIII EFFECTIVE DATE AND TERMINATION.




     13.1. Term. This Agreement, which shall inure to the benefit of and shall be binding
upon the respective successors and permitted assigns of each Borrower, Agent and each Lender, shall
become effective on the date hereof and shall continue in full force and effect until November 23,
2015 (the “Term”) unless sooner terminated as herein provided. Borrowers may terminate
this Agreement at any time upon ninety (90) days’ prior written notice upon payment in full of the
Obligations. In the event the Obligations are prepaid in full prior to the last day of the Term or
Agent terminates this Agreement as a result of an Event of Default hereunder (the date of such
occurrence hereinafter referred to as the “Early Termination Date”), Borrowers shall pay to
Agent for the benefit of Lenders an early termination fee in an amount equal to (a) three percent
(3.0%) of the Maximum Loan Amount if the Early Termination Date occurs on or after the Closing Date
to and including the date immediately preceding the first anniversary of the Closing Date, (b) two
percent (2.0%) of the Maximum Loan Amount if the Early



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Termination Date occurs on or after the
first anniversary of the Closing Date to and including the date immediately preceding the second
anniversary of the Closing Date and (c) one percent (1.0%) of the Maximum Loan Amount if the Early
Termination Date occurs on or after the second anniversary of the Closing Date to and including the
date immediately preceding the third anniversary of the Closing Date.




     13.2. Termination. The termination of the Agreement shall not affect any Borrower’s,
Agent’s or any Lender’s rights, or any of the Obligations having their inception prior to the
effective date of such termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into, rights or interests created or Obligations have been fully and
indefeasibly paid, disposed of, concluded or liquidated. The security interests, Liens and rights
granted to Agent and Lenders hereunder and the financing statements filed hereunder shall continue
in full force and effect, notwithstanding the termination of this Agreement or the fact that
Borrowers’ Account may from time to time be temporarily in a zero or credit position, until all of
the Obligations of each Borrower have been indefeasibly paid and performed in full after the
termination of this Agreement or each Borrower has furnished Agent and Lenders with an
indemnification satisfactory to Agent and Lenders with respect thereto. Accordingly, each Borrower
waives any rights which it may have under the Uniform Commercial Code to demand the filing of
termination statements with respect to the Collateral, and Agent shall not be required to send such
termination statements to each Borrower, or to file them with any filing office, unless and until
this Agreement shall have been terminated in accordance with its terms and all Obligations have
been indefeasibly paid in full in immediately available funds. All representations, warranties,
covenants, waivers and agreements contained herein shall survive termination hereof until all
Obligations are indefeasibly paid and performed in full.


XIV REGARDING AGENT.




     14.1. Appointment. Each Lender hereby designates PNC to act as Agent for such Lender
under this Agreement and the Other Documents. Each Lender hereby irrevocably authorizes Agent to
take such action on its behalf under the provisions of this Agreement and the Other Documents and
to exercise such powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of Agent by the terms hereof and thereof and such other powers as are
reasonably incidental thereto and Agent shall hold all Collateral, payments of principal and
interest, fees (except the fees set forth in Sections 3.3(a) and 3.4), charges and collections
(without giving effect to any collection days) received pursuant to this Agreement, for the ratable
benefit of Lenders. Agent may perform any of its duties hereunder by or through its agents or
employees. As to any matters not expressly provided for by this Agreement (including collection of
the Note) Agent shall not be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such instructions shall be binding;
provided, however, that Agent shall not be required to take any action which exposes Agent to
liability or which is contrary to this Agreement or the Other Documents or Applicable Law unless
Agent is furnished with an indemnification reasonably satisfactory to Agent with respect thereto.



     14.2. Nature of Duties. Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and the Other Documents. Neither Agent nor any of its



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officers, directors, employees or agents shall be (i) liable for any action taken or omitted by
them as such hereunder or in connection herewith, unless caused by their gross (not mere)
negligence or willful misconduct (as determined by a court of competent jurisdiction in a final
non-appealable judgment), or (ii) responsible in any manner for any recitals, statements,
representations or warranties made by any Borrower or any officer thereof contained in this
Agreement, or in any of the Other Documents or in any certificate, report, statement or other
document referred to or provided for in, or received by Agent under or in connection with, this
Agreement or any of the Other Documents or for the value, validity, effectiveness, genuineness, due
execution, enforceability or sufficiency of this Agreement, or any of the Other Documents or for
any failure of any Borrower to perform its obligations hereunder. Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any of the Other Documents, or to
inspect the properties, books or records of any Borrower. The duties of Agent as respects the
Advances to Borrowers shall be mechanical and administrative in nature; Agent shall not have by
reason of this Agreement a fiduciary relationship in respect of any Lender; and nothing in this
Agreement, expressed or implied, is intended to or shall be so construed as to impose upon Agent
any obligations in respect of this Agreement except as expressly set forth herein.




     14.3. Lack of Reliance on Agent and Resignation. Independently and without reliance
upon Agent or any other Lender, each Lender has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of Loan Party in connection with
the making and the continuance of the Advances hereunder and the taking or not taking of any action
in connection herewith, and (ii) its own appraisal of the creditworthiness of Loan Party. Agent
shall have no duty or responsibility, either initially or on a continuing basis, to provide any
Lender with any credit or other information with respect thereto, whether coming into its
possession before making of the Advances or at any time or times thereafter except as shall be
provided by any Borrower pursuant to the terms hereof. Agent shall not be responsible to any
Lender for any recitals, statements, information, representations or warranties herein or in any
agreement, document, certificate or a statement delivered in connection with or for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of this
Agreement or any Other Document, or of the financial condition of any Loan Party, or be required to
make any inquiry concerning either the performance or observance of any of the terms, provisions or
conditions of this Agreement, the Note, the Other Documents or the financial condition of any
Borrower, or the existence of any Event of Default or any Default.



     Agent may resign on sixty (60) days’ written notice to each of Lenders and Borrowing Agent and
upon such resignation, the Required Lenders will promptly designate a successor Agent reasonably
satisfactory to Borrowers.



     Any such successor Agent shall succeed to the rights, powers and duties of Agent, and the term
“Agent” shall mean such successor agent effective upon its appointment, and the former Agent’s
rights, powers and duties as Agent shall be terminated, without any other or further act or deed on
the part of such former Agent. After any Agent’s resignation as Agent, the provisions of this
Article XIV shall inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement.



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     14.4. Certain Rights of Agent. If Agent shall request instructions from Lenders with
respect to any act or action (including failure to act) in connection with this Agreement or any
Other Document, Agent shall be entitled to refrain from such act or taking such action unless and
until Agent shall have received instructions from the Required Lenders; and Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the foregoing, Lenders shall
not have any right of action whatsoever against Agent as a result of its acting or refraining from
acting hereunder in accordance with the instructions of the Required Lenders.



     14.5. Reliance. Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, order or other document or telephone message believed by it to be
genuine and correct and to have been signed, sent or made by the proper person or entity, and, with
respect to all legal matters pertaining to this Agreement and the Other Documents and its duties
hereunder, upon advice of counsel selected by it. Agent may employ agents and attorneys-in-fact
and shall not be liable for the default or misconduct of any such agents or attorneys-in-fact
selected by Agent with reasonable care.



     14.6. Notice of Default. Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder or under the Other Documents, unless Agent
has received notice from a Lender or Borrowing Agent referring to this Agreement or the Other
Documents, describing such Default or Event of Default and stating that such notice is a “notice of
default”. In the event that Agent receives such a notice, Agent shall give notice thereof to
Lenders. Agent shall take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided, that, unless and until Agent shall have
received such directions, 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 Lenders.



     14.7. Indemnification. To the extent Agent is not reimbursed and indemnified by
Borrowers, each Lender will reimburse and indemnify Agent in proportion to its respective portion
of the Advances (or, if no Advances are outstanding, according to its Commitment Percentage), from
and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against Agent in performing its duties hereunder, or in any way relating to
or arising out of this Agreement or any Other Document (INCLUDING, WITHOUT LIMITATION, WITH RESPECT
TO ANY OTHERWISE INDEMNIFIED MATTER ARISING FROM AGENT’S OR LENDER’S NEGLIGENCE OR STRICT
LIABILITY); provided that, Lenders shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from Agent’s gross (not mere) negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final non-appealable judgment).



     14.8. Agent in its Individual Capacity. With respect to the obligation of Agent to
lend under this Agreement, the Advances made by it shall have the same rights and powers hereunder
as any other Lender and as if it were not performing the duties as Agent specified herein; and the
term “Lender” or any similar term shall, unless the context clearly otherwise indicates, include
Agent in its individual capacity as a Lender. Agent may engage in business



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with any Borrower as if
it were not performing the duties specified herein, and may accept fees and other consideration
from any Borrower for services in connection with this Agreement or otherwise without having to
account for the same to Lenders.




     14.9. Delivery of Documents. To the extent Agent receives financial statements
required under Sections 9.7, 9.8, 9.9, 9.12 and 9.13 or Borrowing Base Certificates from any
Borrower pursuant to the terms of this Agreement which any Borrower is not obligated to deliver to
each Lender, Agent will promptly furnish such documents and information to Lenders.



     14.10. Borrowers’ Undertaking to Agent. Without prejudice to their respective
obligations to Lenders under the other provisions of this Agreement, each Borrower hereby
undertakes with Agent to pay to Agent from time to time on demand all amounts from time to time due
and payable by it for the account of Agent or Lenders or any of them pursuant to this Agreement to
the extent not already paid. Any payment made pursuant to any such demand shall pro tanto satisfy
the relevant Borrower’s obligations to make payments for the account of Lenders or the relevant one
or more of them pursuant to this Agreement.



     14.11. No Reliance on Agent’s Customer Identification Program. Each Lender
acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or
assignees, may rely on Agent to carry out such Lender’s, Affiliate’s, participant’s or assignee’s
customer identification program, or other obligations required or imposed under or pursuant to the
USA PATRIOT Act or the regulations thereunder, including the regulations contained in 31 CFR
103.121 (as hereafter amended or replaced, the “CIP Regulations”), or any other
Anti-Terrorism Law, including any programs involving any of the following items relating to or in
connection with any Borrower, its Affiliates or its agents, this Agreement, the Other Documents or
the transactions hereunder or contemplated hereby: (1) any identity verification procedures, (2)
any record-keeping, (3) comparisons with government lists, (4) customer notices or (5) other
procedures required under the CIP Regulations or such other laws.



     14.12. Other Agreements. Each of Lenders agrees that it shall not, without the
express consent of Agent, and that it shall, to the extent it is lawfully entitled to do so, upon
the request of Agent, set off against the Obligations, any amounts owing by such Lender to any
Borrower or any deposit accounts of any Borrower now or hereafter maintained with such Lender.
Anything in this Agreement to the contrary notwithstanding, each of Lenders further agrees that it
shall not, unless specifically requested to do so by Agent, take any action to protect or enforce
its rights arising out of this Agreement or the Other Documents, it being the intent of Lenders
that any such action to protect or enforce rights under this Agreement and the Other Documents
shall be taken in concert and at the direction or with the consent of Agent or Required Lenders.



XV BORROWING AGENCY.




     15.1. Borrowing Agency Provisions.



          (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent
and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments,
documents, writings and further assurances now or hereafter required




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hereunder, on behalf of such
Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds
hereunder in accordance with the request of Borrowing Agent.




          (b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in
the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their
request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To
induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies
Agent and each Lender and holds Agent and each Lender harmless from and against any and all
liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any
Lender by any Person arising from or incurred by reason of the handling of the financing
arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or
instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to
this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the
indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable
judgment).




          (c) All Obligations shall be joint and several, and each Borrower shall make payment upon the
maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the
part of each Borrower shall in no way be affected by any extensions, renewals and forbearance
granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower
notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve
its rights against any Borrower, the release by Agent or any Lender of any Collateral now or
thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice
issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to
the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each
Borrower waives all suretyship defenses.




     
15.2. Waiver of Subrogation. Each Borrower expressly waives any and all rights of
subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such
Borrower may now or hereafter have against the other Borrowers or other Person directly or
contingently liable for the Obligations hereunder, or against or with respect to the other
Borrowers’ property (including, without limitation, any property which is Collateral for the
Obligations), arising from the existence or performance of this Agreement, until termination of
this Agreement and repayment in full of the Obligations.


XVI MISCELLANEOUS




     16.1. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas applied to contracts to be performed wholly within the State of
Texas. Any judicial proceeding brought by or against any Borrower with respect to any of the
Obligations, this Agreement, the Other Documents or any related agreement may be brought in any
court of competent jurisdiction in the State of Texas, United States of America, and, by execution
and delivery of this Agreement, each Borrower accepts for itself and in connection with its
properties, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts,
and irrevocably agrees to be bound by any judgment rendered thereby in connection with this
Agreement. Each Borrower hereby waives personal service of any and all process upon it and
consents that all such service of process may be made



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by registered mail (return receipt requested)
directed to Borrowing Agent at its address set forth in Section 16.6 and service so made shall be
deemed completed five (5) days after the same shall have been so deposited in the mails of the
United States of America, or, at Agent’s option, by service upon Borrowing Agent which each
Borrower irrevocably appoints as such Borrower’s Agent for the purpose of accepting service within
the State of Texas. Nothing herein shall affect the right to serve process in any manner permitted
by law or shall limit the right of Agent or any Lender to bring proceedings against any Borrower in
the courts of any other jurisdiction. Each Borrower waives any objection to jurisdiction and venue
of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction
or venue or based upon forum non conveniens. Each Borrower waives the right to remove any judicial
proceeding brought against such Borrower in any state court to any federal court. Any judicial
proceeding by any Borrower against Agent or any Lender involving, directly or indirectly, any
matter or claim in any way arising out of, related to or connected with this Agreement or any
related agreement, shall be brought only in a federal or state court located in the County of
Dallas, State of Texas.




     16.2. Entire Understanding.



          (a) THIS AGREEMENT AND THE DOCUMENTS EXECUTED CONCURRENTLY HEREWITH CONTAIN THE ENTIRE
UNDERSTANDING BETWEEN EACH BORROWER, AGENT AND EACH LENDER AND SUPERSEDES ALL PRIOR AGREEMENTS AND
UNDERSTANDINGS, IF ANY, RELATING TO THE SUBJECT MATTER HEREOF. ANY PROMISES, REPRESENTATIONS,
WARRANTIES OR GUARANTEES NOT HEREIN CONTAINED AND HEREINAFTER MADE SHALL HAVE NO FORCE AND EFFECT
UNLESS IN WRITING, SIGNED BY EACH BORROWER’S, AGENT’S AND EACH LENDER’S RESPECTIVE OFFICERS.
Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended,
waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in
any manner other than by an agreement in writing, signed by the party to be charged. Each Borrower
acknowledges that it has been advised by counsel in connection with the execution of this Agreement
and Other Documents and is not relying upon oral representations or statements inconsistent with
the terms and provisions of this Agreement.




          (b) The Required Lenders, Agent with the consent in writing of the Required Lenders, and
Borrowers may, subject to the provisions of this Section 16.2 (b), from time to time enter into
written supplemental agreements to this Agreement or the Other Documents executed by Borrowers, for
the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any
manner the rights of Lenders, Agent or Borrowers thereunder or the conditions, provisions or terms
thereof or waiving any Event of Default thereunder, but only to the extent specified in such
written agreements; provided, however, that no such supplemental agreement shall, without the
consent of all Lenders affected thereby:




               (i) increase the Commitment Percentage, the maximum dollar commitment of any Lender or the
Maximum Loan Amount.



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               (ii) extend the maturity of any Note or the due date for any amount payable hereunder, or
decrease the rate of interest or reduce any fee payable by Borrowers to Lenders pursuant to this
Agreement.



               (iii) alter the definition of the term Required Lenders or alter, amend or modify this Section
16.2(b).



               (iv) release any Collateral during any calendar year (other than in accordance with the
provisions of this Agreement) having an aggregate value in excess of $1,000,000.



               (v) change the rights and duties of Agent.



               (vi) permit any Revolving Advance to be made if after giving effect thereto the total of
Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60)
consecutive Business Days or exceed one hundred and five percent (105%) of the Formula Amount.



               (vii) increase the Receivables Advance Rates above the Receivables Advance Rates in effect on
the Closing Date.



               (viii) release all or substantially all Guarantors.



     Any such supplemental agreement shall apply equally to each Lender and shall be binding upon
Borrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver,
Borrowers, Agent and Lenders shall be restored to their former positions and rights, and any Event
of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event
of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of
Default is the same as the Event of Default which was waived), or impair any right consequent
thereon.



     In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and
such consent is denied, then PNC may, at its option, require such Lender to assign its interest in
the Advances to PNC or to another Lender or to any other Person designated by Agent (the
“Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus
(ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid
when collected from Borrowers. In the event PNC elects to require any Lender to assign its
interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty
five (45) days following such Lender’s denial, and such Lender will assign its interest to PNC or
the Designated Lender no later than five (5) days following receipt of such notice pursuant to a
Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as
appropriate, and Agent.



     Notwithstanding (a) the existence of a Default or an Event of Default, (b) that any of the
other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or
(c) any other provision of this Agreement, Agent may at its discretion and without the consent of
the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed
the Formula Amount by up to five percent (5.00%) of the Formula Amount for up to thirty (30)



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consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding
Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and
absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable
on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic
Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall
be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph,
the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may
result from time to time due to the fact that the Formula Amount was unintentionally exceeded for
any reason, including, but not limited to, Collateral previously deemed to be “Eligible
Receivables” becomes ineligible, collections of Receivables applied to reduce outstanding Revolving
Advances are thereafter returned for insufficient funds or overadvances are made to protect or
preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving
Advances to exceed the Formula Amount by more than five percent (5.00%), Agent shall use its
efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under
the circumstances and not inconsistent with the reason for such excess. Revolving Advances made
after Agent has determined the existence of involuntary overadvances shall be deemed to be
involuntary overadvances and shall be decreased in accordance with the preceding sentence.




     In addition to (and not in substitution of) the discretionary Revolving Advances permitted
above in this Section 16.2, Agent is hereby authorized by Borrowers and Lenders, from time to time
in Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an
Event of Default, or (B) at any time that any of the other applicable conditions precedent set
forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances to Borrowers on
behalf of Lenders which Agent, in its reasonable business judgment, deems necessary or desirable
(a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood
of, or maximize the amount of, repayment of the Advances and other Obligations, or (c) to pay any
other amount chargeable to Borrowers pursuant to the terms of this Agreement; provided, that at any
time after giving effect to any such Revolving Advances the outstanding Revolving Advances do not
exceed one hundred and five percent (105%) of the Formula Amount.



     16.3. Successors and Assigns; Participations; New Lenders.



          (a) This Agreement shall be binding upon and inure to the benefit of Borrowers, Agent, each
Lender, all future holders of the Obligations and their respective successors and permitted
assigns, except that no Borrower may assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of Agent and each Lender.



          (b) Each Borrower acknowledges that in the regular course of commercial banking business one
or more Lenders may at any time and from time to time sell participating interests in the Advances
to other financial institutions (each such transferee or purchaser of a participating interest, a
“Participant”). Each Participant may exercise all rights of payment (including rights of set-off)
with respect to the portion of such Advances held by it or other Obligations payable hereunder as
fully as if such Participant were the direct holder thereof provided that Borrowers shall not be
required to pay to any Participant more than the amount which it would have been required to pay to
Lender which granted an interest in its Advances or




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other Obligations payable hereunder to such
Participant had such Lender retained such interest in the Advances hereunder or other Obligations
payable hereunder and in no event shall Borrowers be required to pay any such amount arising from
the same circumstances and with respect to the same Advances or other Obligations payable hereunder
to both such Lender and such Participant. Each Borrower hereby grants to any Participant a
continuing security interest in any deposits, moneys or other property actually or constructively
held by such Participant as security for the Participant’s interest in the Advances.




          (c) Any Lender, with the consent of Agent which shall not be unreasonably withheld or delayed,
may sell, assign or transfer all or any part of its rights and obligations under or relating to
Revolving Advances and/or Term Loans under this Agreement and the Other Documents to one or more
additional banks or financial institutions and one or more additional banks or financial
institutions may commit to make Advances hereunder (each a “Purchasing Lender”), in minimum
amounts of not less than $1,000,000, pursuant to a Commitment Transfer Supplement, executed by a
Purchasing Lender, the transferor Lender, and Agent and delivered to Agent for recording. Upon
such execution, delivery, acceptance and recording, from and after the transfer effective date
determined pursuant to such Commitment Transfer Supplement, (i) Purchasing Lender thereunder shall
be a party hereto and, to the extent provided in such Commitment Transfer Supplement, have the
rights and obligations of a Lender thereunder with a Commitment Percentage as set forth therein,
and (ii) the transferor Lender thereunder shall, to the extent provided in such Commitment Transfer
Supplement, be released from its obligations under this Agreement, the Commitment Transfer
Supplement creating a novation for that purpose. Such Commitment Transfer Supplement shall be
deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Purchasing Lender and the resulting adjustment of the Commitment Percentages
arising from the purchase by such Purchasing Lender of all or a portion of the rights and
obligations of such transferor Lender under this Agreement and the Other Documents. Each Borrower
hereby consents to the addition of such Purchasing Lender and the resulting adjustment of the
Commitment Percentages arising from the purchase by such Purchasing Lender of all or a portion of
the rights and obligations of such transferor Lender under this Agreement and the Other Documents.
Borrowers shall execute and deliver such further documents and do such further acts and things in
order to effectuate the foregoing.




          (d) Any Lender, with the consent of Agent which shall not be unreasonably withheld or delayed,
may directly or indirectly sell, assign or transfer all or any portion of its rights and
obligations under or relating to Revolving Advances and/or Term Loans under this Agreement and the
Other Documents to an entity, whether a corporation, partnership, trust, limited liability company
or other entity that (i) is engaged in making, purchasing, holding or otherwise investing in bank
loans and similar extensions of credit in the ordinary course of its business and (ii) is
administered, serviced or managed by the assigning Lender or an Affiliate of such Lender (a
“Purchasing CLO” and together with each Participant and Purchasing Lender, each a “Transferee” and
collectively the “Transferees”), pursuant to a Commitment Transfer Supplement modified as
appropriate to reflect the interest being assigned (“Modified Commitment Transfer Supplement”),
executed by any intermediate purchaser, the Purchasing CLO, the transferor Lender, and Agent as
appropriate and delivered to Agent for recording. Upon such execution and delivery, from and after
the transfer effective date determined pursuant to such Modified Commitment Transfer Supplement,
(i) Purchasing CLO thereunder shall be a




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party hereto and, to the extent provided in such Modified
Commitment Transfer Supplement, have the rights and obligations of a Lender thereunder and (ii) the
transferor Lender thereunder shall, to the extent provided in such Modified Commitment Transfer
Supplement, be released from its obligations under this Agreement, the Modified Commitment Transfer
Supplement creating a novation for that purpose. Such Modified Commitment Transfer Supplement
shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect
the addition of such Purchasing CLO. Each Borrower hereby consents to the addition of such
Purchasing CLO. Borrowers shall execute and deliver such further documents and do such further
acts and things in order to effectuate the foregoing.




          (e) Agent shall maintain at its address a copy of each Commitment Transfer Supplement and
Modified Commitment Transfer Supplement delivered to it and a register (the “Register”) for the
recordation of the names and addresses of each Lender and the outstanding principal, accrued and
unpaid interest and other fees due hereunder. The entries in the Register shall be conclusive, in
the absence of manifest error, and each Borrower, Agent and Lenders may treat each Person whose
name is recorded in the Register as the owner of the Advance recorded therein for the purposes of
this Agreement. The Register shall be available for inspection by Borrowing Agent or any Lender at
any reasonable time and from time to time upon reasonable prior notice. Agent shall receive a fee
in the amount of $3,500 payable by the applicable Purchasing Lender and/or Purchasing CLO upon the
effective date of each transfer or assignment (other than to an intermediate purchaser) to such
Purchasing Lender and/or Purchasing CLO.




          (f) Each Borrower authorizes each Lender to disclose to any Transferee and any prospective
Transferee any and all financial information in such Lender’s possession concerning such Borrower
which has been delivered to such Lender by or on behalf of such Borrower pursuant to this Agreement
or in connection with such Lender’s credit evaluation of such Borrower.




     16.4. Application of Payments. Agent shall have the continuing and exclusive right to
apply or reverse and re-apply any payment and any and all proceeds of Collateral to any portion of
the Obligations. To the extent that any Borrower makes a payment or Agent or any Lender receives
any payment or proceeds of the Collateral for any Borrower’s benefit, which are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a
trustee, debtor in possession, receiver, custodian or any other party under any bankruptcy law,
common law or equitable cause, then, to such extent, the Obligations or part thereof intended to be
satisfied shall be revived and continue as if such payment or proceeds had not been received by
Agent or such Lender.



     16.5. Indemnity. Each Borrower shall indemnify Agent, each Lender and each of their
respective officers, directors, Affiliates, attorneys, employees and agents from and against any
and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind or nature whatsoever (including fees and disbursements of
counsel) which may be imposed on, incurred by, or asserted against Agent or any Lender in any
claim, litigation, proceeding or investigation instituted or conducted by any Governmental Body or
instrumentality or any other Person with respect to any aspect of, or any transaction contemplated
by, or referred to in, or any matter related to, this Agreement or the Other Documents, whether or
not Agent or any Lender is a party thereto, except to the extent that any



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of the foregoing arises
out of the willful misconduct of the party being indemnified (as determined by a court of competent
jurisdiction in a final and non-appealable judgment). WITHOUT LIMITING THE FOREGOING, (I) IT IS
THE INTENTION OF EACH BORROWER, AND EACH BORROWER AGREES, THAT THE INDEMNITY PROVISIONS AND
EXCULPATORY PROVISIONS CONTAINED IN THIS AGREEMENT SHALL APPLY WITH RESPECT TO LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SETTLEMENTS, SUITS, COSTS, EXPENSES
AND DISBURSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, FEES AND DISBURSEMENTS OF
COUNSEL), WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OF ANY PARTY TO BE
INDEMNIFIED AND, (II) THIS INDEMNITY SHALL EXTEND TO ANY LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES,
PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS OF ANY KIND OR NATURE
WHATSOEVER (INCLUDING FEES AND DISBURSEMENTS OF COUNSEL) ASSERTED AGAINST OR INCURRED BY ANY OF THE
INDEMNITEES DESCRIBED ABOVE IN THIS SECTION 16.5 BY ANY PERSON UNDER ANY ENVIRONMENTAL LAWS OR
SIMILAR LAWS BY REASON OF ANY BORROWER’S OR ANY OTHER PERSON’S FAILURE TO COMPLY WITH LAWS
APPLICABLE TO SOLID OR HAZARDOUS WASTE MATERIALS, INCLUDING HAZARDOUS SUBSTANCES AND HAZARDOUS
WASTE, OR OTHER TOXIC SUBSTANCES. Additionally, if any taxes (excluding taxes imposed upon or
measured solely by the net income of Agent and Lenders, but including any intangibles taxes, stamp
tax, recording tax or franchise tax) shall be payable by Agent, Lenders or Borrowers on account of
the execution or delivery of this Agreement, or the execution, delivery, issuance or recording of
any of the Other Documents, or the creation or repayment of any of the Obligations hereunder, by
reason of any Applicable Law now or hereafter in effect, Borrowers will pay (or will promptly
reimburse Agent and Lenders for payment of) all such taxes, including interest and penalties
thereon, and will indemnify and hold the indemnitees described above in this Section 16.5 harmless
from and against all liability in connection therewith.




     16.6. Notice. Any notice or request hereunder may be given to Borrowing Agent or any
Borrower or to Agent or any Lender at their respective addresses set forth below or at such other
address as may hereafter be specified in a notice designated as a notice of change of address under
this Section. Any notice, request, demand, direction or other communication (for purposes of this
Section 16.6 only, a “Notice”) to be given to or made upon any party hereto under any
provision of this Agreement shall be given or made by telephone or in writing (which includes by
means of electronic transmission (i.e., “e-mail”) or facsimile transmission or by setting
forth such Notice on a site on the World Wide Web (a “Website Posting”) if Notice of such
Website Posting (including the information necessary to access such site) has previously been
delivered to the applicable parties hereto by another means set forth in this Section 16.6) in
accordance with this Section 16.6. Any such Notice must be delivered to the applicable parties
hereto at the addresses and numbers set forth under their respective names on Section 16.6 hereof
or in accordance with any subsequent unrevoked Notice from any such party that is given in
accordance with this Section 16.6. Any Notice shall be effective:



          (a) In the case of hand-delivery, when delivered;





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          (b) If given by mail, four days after such Notice is deposited with the United States Postal
Service, with first-class postage prepaid, return receipt requested;




          (c) In the case of a telephonic Notice, when a party is contacted by telephone, if delivery of
such telephonic Notice is confirmed no later than the next Business Day by hand delivery, a
facsimile or electronic transmission, a Website Posting or an overnight courier delivery of a
confirmatory Notice (received at or before noon on such next Business Day);




          (d) In the case of a facsimile transmission, when sent to the applicable party’s facsimile
machine’s telephone number, if the party sending such Notice receives confirmation of the delivery
thereof from its own facsimile machine;




          (e) In the case of electronic transmission, when actually received;




          (f) In the case of a Website Posting, upon delivery of a Notice of such posting (including the
information necessary to access such site) by another means set forth in this Section 16.6; and




          (g) If given by any other means (including by overnight courier), when actually received.




     Any Lender giving a Notice to Borrowing Agent or any Borrower shall concurrently send a copy
thereof to Agent, and Agent shall promptly notify the other Lenders of its receipt of such Notice.



     (A) If to Agent or PNC at:


PNC Bank, National Association

2100 Ross Avenue, Suite 1850

Dallas, Texas 75201

Attention: Relationship Manager (Francis)

Telephone: (214) 871-1265



Facsimile: (214) 871-2015



and to:



PNC Bank, National Association

Two Tower Center Blvd.

East Brunswick, New Jersey 08816

Attention: Josephine Griffin

Telephone: (732) 220-4388

Facsimile: (732) 220-4394





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with a copy to:



PNC Bank, National Association

PNC Agency Services

PNC Firstside Center

500 First Avenue, 4th Floor

Pittsburgh, Pennsylvania 15219

Attention: Lisa Pierce

Telephone: (412) 762-6442

Facsimile: (412) 762-8672



with an additional copy to:



Patton Boggs LLP

2000 McKinney Avenue, Suite 1700

Dallas, Texas 75201

Attention: Michelle Suarez

Telephone: (214) 758-1500

Facsimile: (214) 758-1550




     (B) If to a Lender other than Agent, as specified on the signature pages hereof.



     (C) If to Borrowing Agent or any Borrower:


c/o NYTEX Energy Holdings, Inc.

12222 Merit Drive, Suite 1850

Dallas, Texas 75251

Attention: Mr. Kenneth Conte

Telephone: (972) 770-4700

Facsimile: (972) 770-4701



with a copy to:



Strasburger & Price, LLP

901 Main Street, Suite 4400

Dallas, Texas 75202

Attention: Mr. Kevin Woltjen

Telephone: (214) 651-2344

Facsimile: (214) 659-4025




     16.7. Survival. The obligations of Borrowers under Sections 2.2(f), 3.7, 3.8, 3.9,
4.19(h), and 16.5 and the obligations of Lenders under Section 14.7, shall survive termination of
this Agreement and the Other Documents and payment in full of the Obligations.



     16.8. Severability. If any part of this Agreement is contrary to, prohibited by, or
deemed invalid under Applicable Laws, such provision shall be inapplicable and deemed omitted to
the extent so contrary, prohibited or invalid, but the remainder hereof shall not be invalidated
thereby and shall be given effect so far as possible.



     16.9. Expenses. All costs and expenses including reasonable attorneys’ fees
(including the allocated costs of in house counsel) and disbursements incurred by Agent on its
behalf or on



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behalf of Lenders (a) in all efforts made to enforce payment of any Obligation or
effect collection of any Collateral, or (b) in connection with the entering into, modification,
amendment, administration and enforcement of this Agreement, the Subordination Agreement or any
consents or waivers hereunder or thereunder and all related agreements, documents and instruments,
or (c) in instituting, maintaining, preserving, enforcing and foreclosing on Agent’s security
interest in or Lien on any of the Collateral, or maintaining, preserving or enforcing any of
Agent’s or any Lender’s rights hereunder, under the Subordination Agreement and under all related
agreements, documents and instruments, whether through judicial proceedings or otherwise, or (d) in
defending or prosecuting any actions or proceedings arising out of or relating to Agent’s or any
Lender’s transactions with any Loan party or Waypoint or (e) in connection with any advice given to
Agent or any Lender with respect to its rights and obligations under this Agreement, the
Subordination Agreement and all related agreements, documents and instruments, may be charged to
Borrowers’ Account and shall be part of the Obligations




     16.10. Injunctive Relief. Each Borrower recognizes that, in the event any Borrower
fails to perform, observe or discharge any of its obligations or liabilities under this Agreement,
or threatens to fail to perform, observe or discharge such obligations or liabilities, any remedy
at law may prove to be inadequate relief to Lenders; therefore, Agent, if Agent so requests, shall
be entitled to temporary and permanent injunctive relief in any such case without the necessity of
proving that actual damages are not an adequate remedy.



     16.11. Consequential Damages. Neither Agent nor any Lender, nor any agent or attorney
for any of them, shall be liable to any Loan Party (or any Affiliate of any such Person) for
indirect, punitive, exemplary or consequential damages arising from any breach of contract, tort or
other wrong relating to the establishment, administration or collection of the Obligations or as a
result of any transaction contemplated under this Agreement or any Other Document.



     16.12. Captions. The captions at various places in this Agreement are intended for
convenience only and do not constitute and shall not be interpreted as part of this Agreement.



     16.13. Counterparts; Facsimile Signatures. This Agreement may be executed in any
number of and by different parties hereto on separate counterparts, all of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute one and the same agreement.
Any signature delivered by a party by facsimile transmission shall be deemed to be an original
signature hereto.



     16.14. Construction. The parties acknowledge that each party and its counsel have
reviewed this Agreement and that the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the interpretation of this
Agreement or any amendments, schedules or exhibits thereto.



     16.15. Confidentiality; Sharing Information. Agent, each Lender and each Transferee
shall hold all non-public information obtained by Agent, such Lender or such Transferee pursuant to
the requirements of this Agreement in accordance with Agent’s, such Lender’s and such Transferee’s
customary procedures for handling confidential information of this nature; provided, however,
Agent, each Lender and each Transferee may disclose such confidential



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information (a) to its
examiners, Affiliates, outside auditors, counsel and other professional advisors, (b) to Agent, any
Lender or to any prospective Transferees, and (c) as required or requested by any Governmental Body
or representative thereof or pursuant to legal process; provided, further that (i) unless
specifically prohibited by Applicable Law, Agent, each Lender and each Transferee shall use its
reasonable best efforts prior to disclosure thereof, to notify the applicable Borrower of the
applicable request for disclosure of such non-public information (A) by a Governmental Body or
representative thereof (other than any such request in connection with an examination of the
financial condition of a Lender or a Transferee by such Governmental Body) or (B) pursuant to legal
process and (ii) in no event shall Agent, any Lender or any Transferee be obligated to return any
materials furnished by any Borrower other than those documents and instruments in possession of
Agent or any Lender in order to perfect its Lien on the Collateral once the Obligations have been
paid in full and this Agreement has been terminated. Each Borrower acknowledges that from time to
time financial advisory, investment banking and other services may be offered or provided to such
Borrower or one or more of its Affiliates (in connection with this Agreement or otherwise) by any
Lender or by one or more Subsidiaries or Affiliates of such Lender and each Borrower hereby
authorizes each Lender to share any information delivered to such Lender by such Borrower and its
Subsidiaries pursuant to this Agreement, or in connection with the decision of such Lender to enter
into this Agreement, to any such Subsidiary or Affiliate of such Lender, it being understood that
any such Subsidiary or Affiliate of any Lender receiving such information shall be bound by the
provisions of this Section 16.15 as if it were a Lender hereunder. Such authorization shall
survive the repayment of the other Obligations and the termination of this Agreement.




     16.16. Publicity. Each Borrower and each Lender hereby authorizes Agent to make
appropriate announcements of the financial arrangement entered into among Borrowers, Agent and
Lenders, including announcements which are commonly known as tombstones, in such publications and
to such selected parties as Agent shall in its sole and absolute discretion deem appropriate.



     16.17. Certifications From Banks and Participants; US PATRIOT Act. Each Lender or
assignee or participant of a Lender that is not incorporated under the Laws of the United States of
America or a state thereof (and is not excepted from the certification requirement contained in
Section 313 of the USA PATRIOT Act and the applicable regulations because it is both (i) an
affiliate of a depository institution or foreign bank that maintains a physical presence in the
United States or foreign country, and (ii) subject to supervision by a banking authority regulating
such affiliated depository institution or foreign bank) shall deliver to Agent the certification,
or, if applicable, recertification, certifying that such Lender is not a “shell” and certifying to
other matters as required by Section 313 of the USA PATRIOT Act and the applicable regulations: (1)
within 10 days after the Closing Date, and (2) as such other times as are required under the USA
PATRIOT Act.



     16.18. Non-Applicability of Chapter 346. Each Borrower and Agent hereby agree that,
except for the opt-out provisions of Section 346.004 thereof, the provisions of Chapter 346 of the
Texas Finance Code (regulating certain revolving credit loans and revolving tri-party accounts)
shall not apply to this Agreement or any of the Other Documents.



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     16.19. BORROWERS’ WAIVER OF RIGHTS UNDER TEXAS DECEPTIVE TRADE PRACTICES ACT. EACH BORROWER
HEREBY WAIVES ANY RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTION §
17.41 ET SEQ. TEXAS BUSINESS & COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND
PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF THE BORROWERS OWN SELECTION, EACH BORROWER
VOLUNTARILY CONSENTS TO THIS WAIVER. EACH BORROWER EXPRESSLY WARRANTS AND REPRESENTS THAT EACH
PERSON (A) IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION RELATIVE TO AGENT, AND (B) HAS
BEEN REPRESENTED BY LEGAL COUNSEL IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.



[Remainder of page left blank intentionally; signature pages follow]





103









 








Execution Copy




          IN WITNESS WHEREOF,
each of the parties has duly executed this Agreement as of the day and year first above written.



	 	 	 	 	 
	 	BORROWERS:




NYTEX FDF ACQUISITION, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	Michael Galvis 	 
	 	 	Title:  	President & Chief Executive Officer 	 
	 
	 	FRANCIS OAKS, L.L.C.

 	 
	 	By:  	 	 
	 	 	Name:  	Michael Galvis 	 
	 	 	Title:  	President & Chief Executive Officer 	 
	 
	 	FRANCIS’ DRILLING FLUIDS, LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	Kenneth K. Conte 	 
	 	 	Title:  	Executive Vice President, Secretary &
Treasurer 	 



[Signature Page to Revolving Credit, Term Loan and Security Agreement]




 









 








Execution Copy





          IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the day and
year first above written.



	 	 	 	 	 
	 	AGENT AND LENDER:



PNC BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	Robert Reaser 	 
	 	 	Title:  	Vice President 	 



[Signature Page to Revolving Credit, Term Loan and Security Agreement]








 









 








Execution Copy




Schedule 6.12




Post-Closing Obligations




	 	 	 
	Condition	 	Days After Closing to Complete 
	1.   Vehicle
Title Lien. With
respect to each item of Collateral
subject to a certificate of title
statute and listed on Schedule
6.12(a) attached hereto, Borrowers
shall have delivered to Agent, in
form and substance satisfactory to
Agent: (i) a fully-executed,
notarized power of attorney
authorizing CT Corp to perfect
liens on behalf of Agent; (ii) an
original title properly endorsed to
such Borrower for each such item of
Collateral; (iii) to the extent
applicable, an odometer statement
clearly identifying the current
mileage for each item of
Collateral; (iv) to the extent
applicable, an in-state garaging
address for each item of
Collateral; and (v) evidence that
Agent’s Lien has been duly noted
thereon.


	 	30 days
	 
	 	 
	2.    Perfect Agent’s Lien in Aircraft
and Vessel. Perfect Agent’s Lien
in all aircraft and marine vessels
constituting Collateral.


	 	30 days
	 
	 	 
	3.    Lien Waiver Agreements. With
respect to each location leased by
Borrowers set forth on Schedule
4.19, Borrowers shall have
delivered to Agent, in form and
substance satisfactory to Agent, a
Lien Waiver Agreement pertaining to
such location.


	 	120 Business Days; provided,
however, in the event that such
condition is not satisfied for
any location Agent shall either
(i) institute a reserve
pursuant to Section
2.1(a)(y)(iii) equal to three
months rent for such location
or (ii) declare a Default under
Section 6.12.
	 
	 	 
	4.    Mortgage Release. Borrowers
shall have delivered to Agent, in
form and substance satisfactory to
Agent, a Mortgage Release executed
by Iberia Savings Bank.


	 	60 days






 









 




Execution Copy





	 	 	 
	Condition	 	Days After Closing to Complete 
	5.   
Insurance Endorsements.
Borrowers shall have delivered to
Agent insurance endorsements, in
form and substance satisfactory to
Agent, naming Agent as an
additional insured and lender loss
payee as its interests may appear
with respect to all property and
liability insurance policies naming
Borrowers as the insured entity.


	 	30 days
	 
	 	 
	6.    Landlord Waivers. Borrowers
shall have delivered to Agent fully
executed landlord waivers, each in
form and substance satisfactory to
Agent in its sole discretion with
respect to the premises located at
each of the following:


	 	60 days
	 
	 	 
	a.    103 N. Aransas St, Alice, TX

	 	 
	 
	 	 
	b.    1149 W. Austin St., Kermit, TX 

	 	 
	 
	 	 
	c.    Eads Ave, Weatherford, OK 

	 	 
	 
	 	 
	d.    3220 Metric Dr, Sulphur, LA 

	 	 
	 
	 	 
	e.    100 Asma Blvd., Building 1,
Suite 151, Lafayette, LA

	 	 
	 
	 	 
	f.    Lot # 9, Marshall Subdivision,
Cameron, LA

	 	 
	 
	 	 
	g.    Lot # 8, Marshall Subdivision,
Cameron, LA

	 	 
	 
	 	 
	h.    Lot # 7, Marshall Subdivision,
Cameron, LA

	 	 
	 
	 	 
	i.    Lot # 6, Marshall Subdivision,
Cameron, LA

	 	 
	 
	 	 
	j.    206 and 208 W Main, Alice, TX 

	 	 
	 
	 	 
	k.    208 W Main, Alice, TX (railspur)

	 	 
	 
	 	 
	l.    9711 Exxon (Pvt) Rd,
Intercoastal City, LA

	 	 
	 
	 	 
	m.    2600 Second Street, Berwick, LA

	 	 
	 
	 	 
	n.    1000 Hwy 1, Coushatta, LA

	 	 
	 
	 	 
	o.    180 17th St, Fourchon East,
Golden Meadow, LA

	 	 
	 
	 	 
	p.    300 E Arlington, Ada, OK

	 	 
	 
	 	 
	q.    Port of Lake Charles, Lake
Charles, LA

	 	 
	 
	 	 
	r.    851 Yellowstone Industrial Park,
Rock Springs, WY

	 	 






 









 






Execution Copy





	 	 	 
	Condition	 	Days After Closing to Complete 
	s.    Airstrip, Crowley, LA

	 	 
	 
	 	 
	7.    Local Counsel Opinion. Borrowers
shall have delivered to Agent the
executed legal opinion of Louisiana
counsel opining on the Crowley Real
Property in form and substance
satisfactory to Agent.


	 	2 weeks
	 
	 	 
	8.    Schedule to UCC Financing
Statement. Borrowers shall have
delivered to Agent a legible copy
of the schedule attached to that
certain UCC-1 financing statement
filed by Cisco Systems Capital
Corporation; file #01-101240 dated
7/26/10 in Acadia, LA.


	 	30 days
	 
	 	 
	9.    Business Interruption Insurance.
Borrowers shall have delivered to
Agent evidence of business
interruption insurance in the
amount of $2,000,000 maintained by
Borrowers.


	 	120 days
	 
	 	 
	10.  Mortgagee Title Policy.
Borrowers shall have delivered to
Agent a mortgagee title policy for
the Crowley Real Property.


	 	20 days
	 
	 	 
	11.  Dissolution of Subsidiaries.
Borrowers shall have delivered to
Agent evidence of the dissolution
of Francis Chemical Company,
Superior Chemical Company and
Pyburn Services, Inc. in form and
substance satisfactory to Agent.


	 	10 days






 









 






Execution Copy




Schedule 6.12(a)




Vehicle Title Liens to be Perfected Post-Closing



(see attached)