exv10w1






EXHIBIT 10.1




AMENDED AND RESTATED CREDIT AGREEMENT




among




PENSON WORLDWIDE, INC.,

as the Borrower,




REGIONS BANK,

as Administrative Agent, Swing Line Lender,

and

Letter of Credit Issuer,




GUARANTY BANK and REGIONS CAPITAL MARKETS, a division of Regions Bank,

as Joint Lead Arrangers,




GUARANTY BANK,

as Syndication Agent,




and




The Other Lenders Party Hereto














 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	 	 	 	Page	 
	ARTICLE I.
	 	DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	1.01
	 	Defined Terms	 	 	1	 
	1.02
	 	Other Interpretive Provisions	 	 	24	 
	1.03
	 	Accounting Terms	 	 	25	 
	1.04
	 	Rounding	 	 	26	 
	1.05
	 	Times of Day	 	 	26	 
	1.06
	 	Letter of Credit Amounts	 	 	26	 
	 
	 	 	 	 	 	 
	ARTICLE II.
	 	THE COMMITMENTS AND CREDIT EXTENSIONS	 	 	26	 
	2.01
	 	Revolving Loans	 	 	26	 
	2.02
	 	Borrowings, Conversions and Continuations of Revolving Loans	 	 	26	 
	2.03
	 	Letters of Credit	 	 	28	 
	2.04
	 	Swing Line Loans	 	 	37	 
	2.05
	 	Prepayments and Mandatory Prepayments	 	 	40	 
	2.06
	 	Termination or Reduction of Commitments	 	 	41	 
	2.07
	 	Repayment of Loans	 	 	42	 
	2.08
	 	Interest	 	 	42	 
	2.09
	 	Fees	 	 	43	 
	2.10
	 	Computation of Interest and Fees	 	 	44	 
	2.11
	 	Evidence of Debt	 	 	44	 
	2.12
	 	Payments Generally; Administrative Agent’s Clawback	 	 	45	 
	2.13
	 	Sharing of Payments by Lenders	 	 	47	 
	2.14
	 	Increase in Commitments	 	 	47	 
	 
	 	 	 	 	 	 
	ARTICLE III.
	 	TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	49	 
	3.01
	 	Taxes	 	 	49	 
	3.02
	 	Illegality	 	 	51	 
	3.03
	 	Inability to Determine Rates	 	 	51	 
	3.04
	 	Increased Costs	 	 	52	 
	3.05
	 	Compensation for Losses	 	 	53	 
	3.06
	 	Mitigation Obligations; Replacement of Lenders	 	 	54	 
	3.07
	 	Survival	 	 	55	 
	 
	 	 	 	 	 	 
	ARTICLE IV.
	 	CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	 	 	55	 
	4.01
	 	Conditions of Initial Credit Extension	 	 	55	 
	4.02
	 	Conditions to all Credit Extensions	 	 	58	 
	 
	 	 	 	 	 	 
	ARTICLE V.
	 	REPRESENTATIONS AND WARRANTIES	 	 	58	 
	5.01
	 	Existence, Qualification and Power	 	 	58	 
	5.02
	 	Authorization; No Contravention	 	 	59	 
	5.03
	 	Governmental Authorization; Other Consents	 	 	59	 
	5.04
	 	Binding Effect	 	 	59	 






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	Section	 	 	 	Page	 
	5.05
	 	Financial Statements; No Material Adverse Effect; No Internal Control Event	 	 	59	 
	5.06
	 	Litigation	 	 	60	 
	5.07
	 	No Default	 	 	60	 
	5.08
	 	Ownership of Property; Liens	 	 	61	 
	5.09
	 	Environmental Compliance	 	 	61	 
	5.10
	 	Insurance	 	 	61	 
	5.11
	 	Taxes	 	 	61	 
	5.12
	 	ERISA Compliance	 	 	61	 
	5.13
	 	Subsidiaries; Equity Interests	 	 	62	 
	5.14
	 	Margin Regulations; Investment Company Act; Other Regulations	 	 	62	 
	5.15
	 	Disclosure	 	 	62	 
	5.16
	 	Compliance with Laws	 	 	63	 
	5.17
	 	Taxpayer Identification Number	 	 	63	 
	5.18
	 	Intellectual Property; Licenses, Etc	 	 	63	 
	5.19
	 	Solvency	 	 	63	 
	5.20
	 	Common Enterprise	 	 	63	 
	5.21
	 	Burdensome Agreements	 	 	64	 
	5.22
	 	Collateral	 	 	64	 
	 
	 	 	 	 	 	 
	ARTICLE VI.
	 	AFFIRMATIVE COVENANTS	 	 	64	 
	6.01
	 	Financial Statements	 	 	64	 
	6.02
	 	Certificates; Other Information	 	 	66	 
	6.03
	 	Notices	 	 	67	 
	6.04
	 	Payment of Obligations	 	 	68	 
	6.05
	 	Preservation of Existence, Etc	 	 	68	 
	6.06
	 	Maintenance of Properties	 	 	68	 
	6.07
	 	Maintenance of Insurance	 	 	68	 
	6.08
	 	Compliance with Laws and Material Contracts	 	 	68	 
	6.09
	 	Books and Records	 	 	69	 
	6.10
	 	Inspection Rights	 	 	69	 
	6.11
	 	Use of Proceeds	 	 	69	 
	6.12
	 	Additional Subsidiaries	 	 	69	 
	 
	 	 	 	 	 	 
	ARTICLE VII.
	 	NEGATIVE COVENANTS	 	 	70	 
	7.01
	 	Liens	 	 	70	 
	7.02
	 	Investments	 	 	71	 
	7.03
	 	Indebtedness	 	 	72	 
	7.04
	 	Fundamental Changes	 	 	73	 
	7.05
	 	Dispositions	 	 	74	 
	7.06
	 	Restricted Payments	 	 	74	 
	7.07
	 	Change in Nature of Business	 	 	75	 
	7.08
	 	Transactions with Affiliates	 	 	75	 
	7.09
	 	Burdensome Agreements	 	 	75	 
	7.10
	 	Use of Proceeds	 	 	75	 






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	Section	 	 	 	Page	 
	7.11
	 	Sale and Leaseback	 	 	75	 
	7.12
	 	Change in Fiscal Year or Accounting Methods	 	 	75	 
	7.13
	 	Prepayment of Indebtedness	 	 	75	 
	7.14
	 	Material Contracts	 	 	75	 
	7.15
	 	Management Fees	 	 	76	 
	7.16
	 	Financial Covenants	 	 	76	 
	7.17
	 	Amendments to 2000 Stock Incentive Plan	 	 	76	 
	 
	 	 	 	 	 	 
	ARTICLE VIII.
	 	EVENTS OF DEFAULT AND REMEDIES	 	 	76	 
	8.01
	 	Events of Default	 	 	76	 
	8.02
	 	Remedies Upon Event of Default	 	 	79	 
	8.03
	 	Application of Funds	 	 	79	 
	 
	 	 	 	 	 	 
	ARTICLE IX.
	 	ADMINISTRATIVE AGENT	 	 	80	 
	9.01
	 	Appointment and Authority	 	 	80	 
	9.02
	 	Rights as a Lender	 	 	81	 
	9.03
	 	Exculpatory Provisions	 	 	81	 
	9.04
	 	Reliance by Administrative Agent	 	 	82	 
	9.05
	 	Delegation of Duties	 	 	82	 
	9.06
	 	Resignation or Removal of Administrative Agent	 	 	82	 
	9.07
	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	83	 
	9.08
	 	No Other Duties, Etc	 	 	83	 
	9.09
	 	Administrative Agent May File Proofs of Claim	 	 	84	 
	9.10
	 	Collateral and Guaranty Matters	 	 	84	 
	 
	 	 	 	 	 	 
	ARTICLE X.
	 	MISCELLANEOUS	 	 	85	 
	10.01
	 	Amendments, Etc	 	 	85	 
	10.02
	 	Notices; Effectiveness; Electronic Communication	 	 	86	 
	10.03
	 	No Waiver; Cumulative Remedies	 	 	88	 
	10.04
	 	Expenses; Indemnity; Damage Waiver	 	 	88	 
	10.05
	 	Payments Set Aside	 	 	90	 
	10.06
	 	Successors and Assigns	 	 	90	 
	10.07
	 	Treatment of Certain Information; Confidentiality	 	 	95	 
	10.08
	 	Right of Setoff	 	 	95	 
	10.09
	 	Interest Rate Limitation	 	 	96	 
	10.10
	 	Counterparts; Integration; Effectiveness	 	 	96	 
	10.11
	 	Survival of Representations and Warranties	 	 	96	 
	10.12
	 	Severability	 	 	97	 
	10.13
	 	Replacement of Lenders	 	 	97	 
	10.14
	 	Governing Law; Jurisdiction; Etc.	 	 	98	 
	10.15
	 	Waiver of Jury Trial	 	 	99	 
	10.16
	 	No Advisory or Fiduciary Responsibility	 	 	99	 
	10.17
	 	USA PATRIOT Act Notice	 	 	100	 
	10.18
	 	Entire Agreement	 	 	100	 
	 
	 	 	 	 	 	 
	SIGNATURES
	 	 	 	 	S-1	 






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	SCHEDULES
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	2.01
	 	Commitments and Pro Rata Percentages	 	 	 	 
	5.05
	 	Existing Indebtedness	 	 	 	 
	5.13
	 	Subsidiaries and Other Equity Investments	 	 	 	 
	5.20
	 	Common Enterprise	 	 	 	 
	7.01
	 	Existing Liens	 	 	 	 
	7.02
	 	Existing Investments	 	 	 	 
	  10.02
	 	Administrative Agent’s Office; Certain Addresses for Notices	 	 	 	 
	 
	 	 	 	 	 	 
	EXHIBITS
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Form of	 	 	 	 
	 
	 	 	 	 	 	 
	A
	 	Revolving Loan Notice	 	 	 	 
	B
	 	Swing Line Loan Notice	 	 	 	 
	C
	 	Note	 	 	 	 
	D
	 	Compliance Certificate	 	 	 	 
	E
	 	Assignment and Assumption	 	 	 	 
	F
	 	Opinion Matters	 	 	 	 
	G
	 	Guaranty	 	 	 	 






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AMENDED AND RESTATED CREDIT AGREEMENT




     This AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is entered into as of
May 1, 2009, among PENSON WORLDWIDE, INC. a Delaware corporation (the “Borrower”), each
lender from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), REGIONS BANK, as Administrative Agent (in such capacity, the “Administrative
Agent”), Swing Line Lender, and Letter of Credit Issuer, GUARANTY BANK and REGIONS CAPITAL
MARKETS, a division of Regions Bank, as Joint Lead Arrangers, and GUARANTY BANK, as Syndication
Agent (the “Syndication Agent”).



     The Borrower, the Administrative Agent, and the lenders party thereto, executed that certain
Credit Agreement dated as of May 26, 2006 (as has been amended, restated, supplemented or modified
from time to time, the “Existing Credit Agreement”), whereby the lenders thereto made
certain revolving loans to the Borrower.



     The Borrower has requested that the Lenders amend and restate the Existing Credit Agreement
and provide a revolving credit facility, and the Lenders are willing to do so on the terms and
conditions set forth herein. This amendment and restatement is in extension and renewal, and not
in extinguishment or novation, of the indebtedness outstanding under the Existing Credit Agreement,
as herein provided, it being acknowledged and agreed by the Borrower that the Indebtedness under
this Agreement constitutes an extension, renewal, increase and ratification of the outstanding
indebtedness under the Existing Credit Agreement.



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



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:



     “2000 Stock Incentive Plan” means the Borrower’s 2000 Amended and Restated Stock
Incentive Plan, as may be amended pursuant to Section 7.17.



     “Administrative Agent” means Regions Bank in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify to the Borrower and the Lenders.



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



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



     “Agreement” means this Amended and Restated Credit Agreement.



     “Applicable Rate” means the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 6.02(a):



	 	 	 	 	 	 	 	 	 
	Applicable Rate
	 	 	 	 	 	 	LIBOR	 	 
	 	 	 	 	 	 	Rate/	 	 
	Pricing	 	Consolidated	 	Commitment	 	Letters of	 	 
	Level	 	Leverage Ratio	 	Fee	 	Credit	 	Base Rate
	1
	 	Greater than or equal to *** to ***
	 	***%
	 	***%
	 	***%
	2
	 	Greater than or equal to *** to
*** but less than *** to ***
	 	***%
	 	***%
	 	***%
	3
	 	Less than *** to ***
	 	***%
	 	***%
	 	***%






     Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(a); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then Pricing Level 1 shall apply as of the first Business Day after the date on which such
Compliance Certificate was required to have been delivered until such Compliance Certificate is
delivered indicating a different Pricing Level.



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



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
10.06(b), and accepted by the Administrative Agent, in substantially the form of Exhibit
E or any other form approved by the Administrative Agent.



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



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     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended December 31, 2008, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes thereto.



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Total Commitments pursuant to
Section 2.06, and (c) the date of termination of the commitment of each Lender to make
Loans and of the obligation of the Letter of Credit Issuer to make Letter of Credit Extensions
pursuant to Section 8.02.



     “Bankruptcy Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



     “Base Rate”  means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such
day as publicly announced from time to time by Regions Bank as its “prime rate,” and (c) the LIBOR
Rate (subject to the floor of 3.0%) for such day for an Interest Period of one month plus 1%. The
“prime rate” is a rate set by Regions Bank based upon various factors including Regions Bank’s
costs and desired return, general economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above, or below such announced rate. Any
change in such rate announced by Regions Bank shall take effect at the opening of business on the
day specified in the public announcement of such change.



     “Base Rate Revolving Loan” means a Revolving Loan that is a Base Rate Loan.



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



     “Borrower” has the meaning specified in the introductory paragraph hereto.



     “Borrowing” means a Revolving Borrowing or a Swing Line Borrowing, as the context may
require.



     “Broker Dealer Subsidiaries” means Penson Financial Services, Inc., Penson Financial
Service Canada, Inc., Penson Financial Services Limited, Penson GHCO, Penson Financial Futures,
Inc., Penson Execution Services, Inc., Penson Financial Services Australia Pty Ltd, and each other
broker dealer and/or futures commission merchant (or foreign equivalent) direct or indirect
Subsidiary of the Borrower engaged in activities substantially similar to those of such Persons
(including subsets of such activities).



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any LIBOR Rate



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Loan,
means any such day on which dealings in Dollar deposits are conducted by and between banks in the
London interbank LIBOR market.



     “Capital Assets” means, with respect to any Person, all equipment, fixed assets and
real property or improvements of such Person, or replacements or substitutions therefor or
additions
thereto, that, in accordance with GAAP, have been or should be reflected as additions to
property, plant or equipment on the balance sheet of such Person.



     “Capital Expenditures” means, with respect to any Person for any period, any
expenditure incurred in respect of the purchase or other acquisition of any Capital Asset
(excluding normal replacements and maintenance which are properly charged to current operations).
For purposes of this definition, the purchase price (or, if such Capital Asset has already been
purchased, the fair market value) of any Capital Asset that is traded in, swapped or exchanged for
any existing Capital Asset or with insurance proceeds shall be included in Capital Expenditures
only to the extent of the gross amount by which such purchase price exceeds the credit granted by
the seller of such Capital Asset for the Capital Asset being traded in at such time or the amount
of such insurance proceeds, as the case may be.



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



     “Cash Equivalents” (a) obligations issued or fully guaranteed or insured by the United
States Government or any state thereof, the District of Columbia or the Commonwealth of Puerto Rico
or any agency or instrumentality thereof having maturities of not more than 12 months from the date
of acquisition, (b) certificates of deposit with maturities of 12 months and other interest bearing
deposits or accounts, with a Lender or with any commercial bank organized under the laws of the
United States of America or any state thereof, the District of Columbia or the Commonwealth of
Puerto Rico, having capital and surplus in excess of $250,000,000 or being fully insured by the
FDIC, (c) repurchase obligations with a term of not more than seven days for underlying securities
of the types described in clauses (a) and (b) entered into with any financial
institution meeting the qualifications specified in clause (b) above, (d) commercial paper
issued by a Lender or any Affiliate of a Lender and commercial paper rated A/1 or the equivalent
thereof by Standard & Poor’s Ratings Group or P-1 or the equivalent thereof by Moody’s Investors
Service, Inc. on the date of investment and in each case maturing within 12 months after the date
of acquisition, and (e) money market funds that invest in any of the foregoing clauses
(a)-(d).



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



     “Change of Control” means an event or series of events by which:




     (a) other than (i) the Current Management Group, (ii) J. Kelly Gray, his immediate
family, and their respective Affiliates, (iii) William D. Gross, his immediate



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family, and their respective Affiliates, and (iv) TCV Member Fund, L.P. and TCV V, L.P. and
their respective Affiliates, any “person” or “group,” (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit
plan of such person or its subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such plan), becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of
1934, except that a person or group shall be deemed to have “beneficial ownership” of all
securities that such person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time (such right, an “option right”)),
directly or indirectly, of 25% or more of the equity securities of the Borrower entitled to
vote for members of the board of directors or equivalent governing body of the Borrower on a
fully-diluted basis (and taking into account all such securities that such person or group
has the right to acquire pursuant to any option right);




     (b) during any period of 12 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of the Borrower cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or
(iii) whose election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (ii) and clause (iii), any individual whose
initial nomination for, or assumption of office as, a member of that board or equivalent
governing body occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or group other
than a solicitation for the election of one or more directors by or on behalf of the board
of directors); or




     (c) other than those Persons excluded under paragraph (a) above, any Person or two or
more Persons acting in concert shall have acquired by contract or otherwise, or shall have
entered into a contract or arrangement that, upon consummation thereof, will result in its
or their acquisition of the power to exercise, directly or indirectly, control over the
management or policies of the Borrower, or control over the equity securities of the
Borrower entitled to vote for members of the board of directors or equivalent governing body
of the Borrower on a fully-diluted basis (and taking into account all such securities that
such Person or group has the right to acquire pursuant to any option right) representing 25%
or more of the combined voting power of such securities.



     “Closing Date” means the earlier of April 30, 2009 or first date all the conditions
precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.



     “Code” means the Internal Revenue Code of 1986.



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     “Commitment” means, as to each Lender, its obligation to (a) make Revolving Loans to
the Borrower pursuant to Section 2.01, (b) purchase participations in Letter of Credit
Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount
at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in accordance with
this Agreement.



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



     “Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a)
the following to the extent deducted in calculating such Consolidated Net Income: (i) Interest
Charges for such period, (ii) the provision for Federal, state, local and foreign income taxes
payable by the Borrower and its Subsidiaries for such period, (iii) depreciation and amortization
expense and (iv) non-cash stock based compensation minus (b) the following to the extent
included in calculating such Consolidated Net Income: (i) Federal, state, local and foreign income
tax credits of the Borrower and its Subsidiaries for such period and (ii) all non-cash items
increasing Consolidated Net Income for such period. For purposes of calculating the Consolidated
Leverage Ratio, all calculations shall exclude the correspondent asset loss of $26,421,000 related
to Evergreen Capital Partners, Inc. to the extent otherwise reducing Consolidated Net Income when
calculating Consolidated EBITDA.



     “Consolidated Fixed Charge Coverage Ratio” means, at any date of determination, the
ratio of (a) Consolidated EBITDA, to (b) the sum of (i) Interest Charges, (ii) the aggregate
principal amount of all regularly scheduled principal payments or redemptions or similar
acquisitions for value of outstanding debt for borrowed money, it being understood the Total
Outstandings hereunder shall be assumed to be amortized over a five year period solely in order to
calculate scheduled payments of the Loans and (iii) the aggregate amount of Federal, state, local
and foreign income taxes paid in cash, in each case, of or by the Borrower and its Subsidiaries for
the most recently completed period of determination.



     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under
letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety
bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course of business), (e)
Attributable Indebtedness in respect of capital leases and Synthetic Lease Obligations, (f) without
duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) through (e) above of Persons other than the
Borrower or any Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a)
through (f) above of any partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which the Borrower or a Subsidiary is a general



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partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Borrower
or such Subsidiary. Notwithstanding the foregoing, Short Term Subsidiary Indebtedness and
Indebtedness with respect to clause (g) in the definition of “Indebtedness” and earn outs
and other deferred purchase price obligations incurred in respect of acquisitions completed prior
to the Closing Date and previously disclosed to the Administrative Agent or approved pursuant to
the terms of this Agreement shall not be included in the definition of Consolidated Funded
Indebtedness.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the
four fiscal quarters most recently ended.



     “Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, the net income of the Borrower and its Subsidiaries (excluding
extraordinary gains and extraordinary losses) for that period.



     “Consolidated Tangible Net Worth” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, Shareholders’ Equity of the Borrower and its
Subsidiaries on that date minus the Intangible Assets of the Borrower and its Subsidiaries on that
date.



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



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



     “Credit Extension” means each of the following: (a) a Borrowing and (b) a Letter of
Credit Extension.



     “Current Management Group” means Roger J. Engemoen, Jr., Daniel P. Son, and Philip A.
Pendergraft.



     “Debit Balances” means the outstanding balances attributable to a Person’s margin
lending activities.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate
applicable to Base Rate Loans plus (iii) 2% per annum; provided, however,
that with respect to a LIBOR Rate Loan, the Default Rate shall be an interest rate equal to the
interest rate (including any



-7-









 







Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with
respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Revolving Loans, participations in Letter of Credit Obligations or participations in Swing Line
Loans required to be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder unless such failure has been cured, (b) has otherwise failed to pay over to
the Administrative Agent or any other Lender any other amount required to be paid by it hereunder
within one Business Day of the date when due, unless the subject of a good faith dispute or unless
such failure has been cured, or (c) has been deemed insolvent or become the subject of a bankruptcy
or insolvency proceeding.



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



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



     “Domestic Subsidiary” means any Subsidiary that is organized under the Laws of any
political subdivision of the United States.



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 10.06(b)(iii)).



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



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



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership interests or dividend or distribution interests associated with
ownership in) such Person, all of the warrants, options or other rights for the purchase or
acquisition from such Person of shares of capital stock of (or other ownership interests or
dividend or distribution



-8-









 







interests associated with ownership in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership interests or dividend or
distribution interests associated with ownership in) such Person or warrants, rights or options for
the purchase or acquisition from such Person of such shares (or such other interests), and all of
the other ownership interests or dividend or distribution interests associated with ownership in
such Person (including partnership, member or trust interests therein), whether voting or
nonvoting, and whether or not such shares, warrants, options, rights or other interests are
outstanding on any date of determination; provided, however, that JBO Stock shall
not be considered Equity Interests.



     “Equity Repurchase” means the Borrower’s repurchase of its Equity Interests with
respect to (a) any shares withheld to cover tax-withholding requirements relating to the vesting of
restricted stock units issued pursuant to the 2000 Stock Incentive Plan and (b) upon the consent of
the Required Lenders, any other restricted stock units or stock options repurchased from former
employees, directors or contractors in accordance with the terms of the Borrower’s restricted stock
unit or stock option plans.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.



     “Eurocurrency Liabilities” has the meaning specified in Regulation D of the Board of
Governors of the Federal Reserve System, as in effect from time to time.



     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Letter of Credit Issuer or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) taxes imposed on or measured by its overall net



-9-









 







income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by
the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable Lending Office is located, (b) any branch profits taxes imposed by the United States or
any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the
case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under
Section 10.13), any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office)
or is attributable to such Foreign Lender’s failure or inability (other than as a result of a
Change in Law) to comply with Section 3.01(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office
(or assignment), to receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 3.01(a).



     “Existing Credit Agreement” means that certain Credit Agreement dated as of May 26,
2006, by and between the Borrower, the Administrative Agent and the lenders party thereto, as has
been amended, restated, supplemented or modified from time to time.



     “Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided that (a) if such
day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Regions Bank on such day on such transactions as determined by
the Administrative Agent.



     “Fee Letter” means the letter agreement dated April 22, 2009, between the Borrower and
the Administrative Agent.



     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes. For purposes of this
definition, the United States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.



     “Foreign Subsidiary” means each Subsidiary of the Borrower which is organized under
the Laws of a jurisdiction other than the United States of America or any state or commonwealth
thereof.



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



     “Fronting Fees” has the meaning specified in Section 2.03(i).



-10-









 





     “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



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



     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.



     “Guarantors” means, collectively, SAI Holdings, Inc., Penson Holdings, Inc., and each
other Person who becomes a Guarantor hereunder, together with their successors and permitted
assigns.



     “Guaranty” means a Guaranty made by each Guarantor in favor of Administrative Agent
and Lenders, substantially in the form of Exhibit G.



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     “Guaranty Bank” means Guaranty Bank, and its successors.



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



     “Honor Date” has the meaning specified in Section 2.03(c)(i).



     “Impacted Lender” means (a) any Lender that is a Defaulting Lender and (b) any Lender
as to which (i) the Borrower, the Administrative Agent or the Letter of Credit Issuer has a good
faith belief that such Lender has defaulted in fulfilling its obligations under one or more other
syndicated credit facilities or (ii) an entity that controls such Lender has been deemed insolvent
or become subject to a bankruptcy or other similar proceeding.



     “Increase Effective Date” has the meaning specified in Section 2.14(d).



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:




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




     (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;




     (c) net obligations of such Person under any Swap Contract;




     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than (i) trade accounts payable in the ordinary course of business and, in
each case, not past due for more than 60 days after the date on which such trade account
payable was created and (ii) earn outs and other deferred purchase price obligations
incurred in respect of acquisitions completed prior to the Closing Date and previously
disclosed to the Administrative Agent or approved pursuant to the terms of this Agreement);




     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;




     (f) capital leases and Synthetic Lease Obligations;



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




     (h) all Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed
to be the amount of Attributable Indebtedness in respect thereof as of such date. Indebtedness of
the Borrower or a Subsidiary guaranteed by another Subsidiary or the Borrower shall be determined
without duplication.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 10.04(b).



     “Information” has the meaning specified in Section 10.07.



     “Intangible Assets” means assets that are considered to be intangible assets under
GAAP, including customer lists, goodwill, computer software, copyrights, trade names, trademarks,
patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and
capitalized research and development costs.



     “Interest Charges” means, for any period, for the Borrower, the sum of (a) all
interest, premium payments, debt discount, fees, charges and related expenses of the Borrower in
connection with borrowed money (including capitalized interest) or in connection with the deferred
purchase price of assets, in each case to the extent treated as interest in accordance with GAAP,
and (b) the portion of rent expense of the Borrower with respect to such period under capital
leases that is treated as interest in accordance with GAAP.



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a LIBOR Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the
last Business Day of each March, June, September and December and the Maturity Date.



     “Interest Period” means, as to each LIBOR Rate Loan, the period commencing on the date
such LIBOR Rate Loan is disbursed or converted to or continued as a LIBOR Rate Loan and ending on
the date one, two, three or six months thereafter, as selected by the Borrower in its Revolving
Loan Notice; provided that:



-13-









 






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




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




     (c) no Interest Period shall extend beyond the Maturity Date.



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



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other
Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit. For purposes of covenant compliance,
the amount of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.



     “IP Rights” has the meaning specified in Section 5.18.



     “IRS” means the United States Internal Revenue Service.



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



     “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the Letter of Credit
Issuer and the Borrower (or any Subsidiary) or in favor of the Letter of Credit Issuer and relating
to such Letter of Credit.



     “JBO Stock” means preferred stock issued by a Subsidiary to brokers or dealers for
purposes of establishing a joint back office arrangement as set forth in FINRA Rule 2520;
provided (i) such preferred stock does not accrue dividends, and (ii) such preferred stock
is
issued in the ordinary course of business substantially consistent with the past practice of
the Borrower and its Subsidiaries.



-14-









 





     “Joint Lead Arrangers” means, collectively, Guaranty Bank and Regions Capital Markets,
in their capacity as joint lead arrangers and joint book managers.



     “Law” or “Laws” means, collectively, all international, foreign, federal,
state and local statutes, treaties, rules, regulations, ordinances, codes and administrative or
judicial precedents or authorities.



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.



     “Letter of Credit” means any standby letter of credit issued hereunder.



     “Letter of Credit Advance” means, with respect to each Lender, such Lender’s funding
of its participation in any Letter of Credit Borrowing in accordance with its Pro Rata Percentage.



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the standard form from time to time in use by the Letter of
Credit Issuer.



     “Letter of Credit Borrowing” means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a
Revolving Borrowing.



     “Letter of Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



     “Letter of Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business
Day).



     “Letter of Credit Fee” has the meaning specified in Section 2.03(i).



     “Letter of Credit Issuer” means Regions Bank in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.



     “Letter of Credit Obligations” means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the aggregate of
all Unreimbursed Amounts, including all Letter of Credit Borrowings. For purposes of computing the
amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall
be determined in accordance with Section 1.06. For all purposes of this Agreement, if on
any date of determination a Letter of Credit has expired by its terms but any amount may still be
drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit
shall be deemed to be “outstanding” in the amount so remaining available to be drawn.



-15-









 





     “Letter of Credit Sublimit” means an amount equal to $10,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Total Commitments.



     “LIBOR Rate” means, for any Interest Period for all LIBOR Rate Loans, an interest rate
per annum equal to the rate per annum obtained by dividing (a) the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) appearing on page “LIBOR 01” of the Reuters Screen (or
any successor page) as the London interbank offered rate for deposits in Dollars at 11:00 A.M.
(London time) two Business Days before the first day of such Interest Period for a period equal to
such Interest Period (provided that, if for any reason such rate is not available, the term “LIBOR
Rate” shall mean, for any Interest Period for all LIBOR Rate Loans, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other service which displays an
average British Bankers Association Interest Settlement Rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided, however, if more
than one rate is specified on page “LIBOR01” of the Reuters Screen, the applicable rate shall be
the arithmetic mean of all such rates) by (b) a percentage equal to 100% minus the LIBOR Rate
Reserve Percentage for such Interest Period. Notwithstanding anything contained herein to the
contrary, the LIBOR Rate shall never be less than 3.0%.



     “LIBOR Rate Loan” means a Revolving Loan that bears interest at a rate based on the
LIBOR Rate, excluding Base Rate Loans.



     “LIBOR Rate Reserve Percentage” for any Interest Period for all LIBOR Rate Loans means
the reserve percentage applicable two Business Days before the first day of such Interest Period
under regulations issued from time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal
Reserve System in New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on LIBOR Rate Loans is determined) having a term
equal to such Interest Period.



     “Lien” means any mortgage, pledge, hypothecation, assignment by way of security,
deposit arrangement, encumbrance, lien (statutory or other), charge, or other security interest or
preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



     “Loan” means an extension of credit by a Lender to the Borrower under Article
II in the form of a Revolving Loan or a Swing Line Loan.



     “Loan Documents” means this Agreement, each Note, each Issuer Document, the Fee
Letter, the Pledge Agreement, each Guaranty, the Post-Closing Letter, and any other agreement,
instrument, certificate, report and other document executed and delivered pursuant hereto or



-16-









 







thereto or otherwise evidencing or securing any Loan or any other Obligations, including any
renewals, extensions, modifications, increases, amendments, restatements, ratifications,
confirmations, supplements and rearrangements thereof.



     “Loan Parties” means, collectively, the Borrower, and each Guarantor.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent),
condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of any Loan Party to perform its obligations under any Loan
Document to which it is a party; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against any Loan Party of any Loan Document to which it is a
party.



     “Material Contract” means, with respect to any Person, each contract to which such
Person is a party involving aggregate consideration payable to or by such Person of $20,000,000 or
more in any year or otherwise material to the business, condition (financial or otherwise),
operations, performance or properties of such Person.



     “Material Domestic Subsidiary” shall mean Penson Financial Services, Inc., SAI
Holdings, Inc., GHP1, Inc., and each other Domestic Subsidiary of the Borrower having 5% or more of
the total assets and total revenues of the Borrower and its Subsidiaries determined on a
consolidated basis in accordance with GAAP as of the end of the most recent fiscal quarter for
which the Borrower has delivered financial statements pursuant to Section 6.01(a) or
(b). Notwithstanding anything to the contrary contained herein, so long as the Equity
Interests of GHP1, Inc. are being pledged pursuant to the Pledge Agreement and GHP2, LLC is wholly
owned by GHP1, Inc., GHP2, LLC and Penson GHCO shall not be a Material Domestic Subsidiary
hereunder.



     “Material Foreign Subsidiary” shall mean Penson Financial Services Canada Inc. and
each other Foreign Subsidiary of the Borrower having 5% or more of the total assets and total
revenues of the Borrower and its Subsidiaries determined on a consolidated basis in accordance with
GAAP as of the end of the most recent fiscal quarter for which the Borrower has delivered financial
statements pursuant to Section 6.01(a) or (b).



     “Material Subsidiary” shall mean a Material Domestic Subsidiary and/or a Material
Foreign Subsidiary, as applicable.



     “Maturity Date” means the earlier of (a) April 30, 2010, and (b) or such other date on
which the Loans become due and payable as provided in this Agreement; provided,
however, that if such date is not a Business Day, the Maturity Date shall be the next
preceding Business Day.



     “Maximum Rate” means at the particular time in question the maximum rate of interest
which, under applicable Law, any Lender is then permitted to charge on the Obligations. If the
maximum rate of interest which, under applicable Law, any Lender is permitted to charge on the
Obligations shall change after the date hereof, the Maximum Rate shall be automatically



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increased or decreased, as the case may be, from time to time as of the effective time of each
change in the Maximum Rate without notice to the Borrower.



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



     “Net Cash Proceeds” means:




     (a) with respect to the Disposition of any asset by the Borrower or any Subsidiary, the
excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such
sale (including any cash received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of
(A) the principal amount of any Indebtedness that is secured by such asset and that is
required to be repaid in connection with the sale thereof (other than Indebtedness under the
Loan Documents), (B) the out-of-pocket expenses incurred by the Borrower or any Subsidiary
in connection with such sale and (C) taxes reasonably estimated to be actually payable
within two years of the date of the relevant asset sale as a result of any gain recognized
in connection therewith; and




     (b) with respect to the sale or issuance of any capital stock or other Equity Interest
(other than any exercise price or other payment in respect of the vesting or exercise of any
restricted stock units or stock options issued to employees, directors or contractors in
accordance with the terms of the Borrower’s restricted stock unit or stock option plans and
payments received in respect of the exercise of purchase rights pursuant to the Borrower’s
employee stock purchase plan) by the Borrower, the excess of (i) the sum of the cash and
Cash Equivalents received in connection with such sale or issuance over (ii) the
underwriting discounts and commissions, and other out-of-pocket expenses, incurred by the
Borrower in connection with such sale or issuance.



     “Non-Financed Capital Expenditures” means, with respect to any Person for any period,
any Capital Expenditure not financed by capitalized leases or with the proceeds of Borrowings.



     “Note” means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of Exhibit C, including any renewals,
extensions, modifications, increases, amendments, restatements, ratifications, confirmations,
supplements and rearrangements thereof.



     “Obligations” means all debts, liabilities and obligations of any Loan Party arising
under any Loan Document or any Swap Contract entered into with any Lender or any Affiliate of any
Lender, whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising, and shall also include all
fees, expenses and other amounts owing to any Lender pursuant to cash management, depository
accounts (including chargebacks) or similar agreements. Without limiting the generality of the
foregoing, “Obligations” includes all amounts which would be owed by any Loan Party or any



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other Person (other than Administrative Agent or Lenders) to Administrative Agent, Lenders or any
Affiliate of a Lender under any Loan Document, but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving any
Loan Party or any other Person (including all such amounts which would become due or would be
secured but for the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding of any other Loan Party or any other Person under any Bankruptcy
Law).



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



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



     “Outstanding Amount” means (i) with respect to Revolving Loans and Swing Line Loans on
any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings
and prepayments or repayments of Revolving Loans and Swing Line Loans, as the case may be,
occurring on such date; and (ii) with respect to any Letter of Credit Obligations on any date, the
amount of such Letter of Credit Obligations on such date after giving effect to any Letter of
Credit Extension occurring on such date and any other changes in the aggregate amount of the Letter
of Credit Obligations as of such date, including as a result of any reimbursements by the Borrower
of Unreimbursed Amounts.



     “Participant” has the meaning specified in Section 10.06(d).



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “PCAOB” means the Public Company Accounting Oversight Board.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



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



     “PFS” means Penson Financial Services, Inc., a North Carolina corporation.



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, any ERISA Affiliate.



     “Pledge Agreement” means that certain Pledge Agreement executed among the Borrower,
certain Subsidiaries party thereto, and the Administrative Agent for the benefit of the Lenders.



     “Post-Closing Letter” means that certain Post Closing Letter Agreement dated as of the
date hereof by and among the Borrower, the Administrative Agent, and the Lenders.



     “Pro Rata Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Total Commitments represented by such Lender’s
Commitment at such time. If the commitment of each Lender to make Loans and the obligation of the
Letter of Credit Issuer to make Letter of Credit Extensions have been terminated pursuant to
Section 8.02 or if the Total Commitments have expired, then the Pro Rata Percentage of each
Lender shall be determined based on the Pro Rata Percentage of such Lender most recently in effect,
giving effect to any subsequent assignments. The initial Pro Rata Percentage of each Lender is set
forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.



     “Regions Bank” means Regions Bank, and its successors.



     “Regions Capital Markets” means Regions Capital Markets, a division of Regions Bank,
and its successors.



     “Register” has the meaning specified in Section 10.06(c).



     “Registered Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Borrower as prescribed by the Securities Laws.



     “Regulatory Capital” means net capital as defined in, and determined in accordance
with, Rule 15c3-1 of the Securities and Exchange Commission.



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



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



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Revolving Loans, a Revolving Loan Notice, (b) with respect to a Letter of Credit



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Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line
Loan Notice.



     “Required Lenders” means, as of any date of determination, Lenders having at least
66-2/3% of the Total Commitments or, if the commitment of each Lender to make Loans and the
obligation of the Letter of Credit Issuer to make Letter of Credit Extensions have been terminated
pursuant to Section 8.02, Lenders holding in the aggregate at least 66-2/3% of the Total
Outstandings (with the aggregate amount of each Lender’s risk participation and funded
participation in Letter of Credit Obligations and Swing Line Loans being deemed “held” by such
Lender for purposes of this definition); provided that the Commitment of, and the portion
of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, executive vice president, chairman, vice chairman, treasurer, assistant treasurer or
controller of a Loan Party. Any document delivered hereunder that is signed by a Responsible
Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and such Responsible
Officer shall be conclusively presumed to have acted on behalf of such Loan Party.



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



     Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of
the same Type and, in the case of LIBOR Rate Loans, having the same Interest Period made by each of
the Lenders pursuant to Section 2.01.



     “Revolving Loan” has the meaning specified in Section 2.01.



     “Revolving Loan Notice” means a notice of (a) a Revolving Borrowing, (b) a conversion
of Revolving Loans from one Type to the other, or (c) a continuation of LIBOR Rate Loans, pursuant
to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit
A.



     “Sale and Leaseback Transaction” means any transaction providing for the leasing to
any Loan Party of any property or to any Person in exchange for funds which have been or are to be
advanced by such Person on the security of, or for the transfer of, such property.



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



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



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



     “Shareholders’ Equity” means, as of any date of determination, consolidated
shareholders’ equity of the Borrower and its Subsidiaries as of that date determined in accordance
with GAAP.



     “Short Term Subsidiary Indebtedness” means, with respect to the Broker Dealer
Subsidiaries, that certain Indebtedness incurred (a) for the purpose of purchasing Equity Interests
and other working capital purposes and (b) for the purpose of purchasing on a proprietary basis
commodities contracts, futures contracts, or Swap Contracts or options or other derivatives related
thereto in an aggregate net amount not to exceed $10,000,000, each in the ordinary course of
business consistent with such Broker Dealer Subsidiary’s historical practice.



     “Solvent” means, with respect to any Person, as of any date of determination, that the
fair value of the assets of such Person (at fair valuation) is, on the date of determination,
greater than the total amount of liabilities (including contingent and unliquidated liabilities) of
such Person as of such date, that the present fair saleable value of the assets of such Person
will, as of such date, be greater than the amount that will be required to pay the probable
liability of such Person on its debts as such debts become absolute and matured, and that, as of
such date, such Person will be able to pay all liabilities of such Person as such liabilities
mature and such Person does not have unreasonably small capital with which to carry on its
business. In computing the amount of contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an actual or
matured liability discounted to present value at rates believed to be reasonable by such Person.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Borrower.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to any master agreement, and (b)
any and all transactions of any kind, and the related confirmations, which are subject to the



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terms and conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other similar master agreement (any such master agreement, together with any
related schedules, a “Master Agreement”), including any such obligations or liabilities
under any Master Agreement.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.



     “Swing Line Lender” means Regions Bank in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.04(a).



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B.



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $5,000,000 and (b)
the Total Commitments. The Swing Line Sublimit is part of, and not in addition to, the Total
Commitments.



     “Syndication Agent” means Guaranty Bank, in its capacity as syndication agent under
any of the Loan Documents, or any successor syndication agent.



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



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



     “Threshold Amount” means $10,000,000.



     “Total Commitments” means the Commitments of all the Lenders in an aggregate amount up
to but not exceeding $70,000,000, as may be increased in accordance with Section 2.14(a).



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     “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all
Letter of Credit Obligations.



     “Type” means, with respect to a Revolving Loan, its character as a Base Rate Loan or a
LIBOR Rate Loan.



     “Unencumbered Liquidity” shall mean the sum of (a) all cash, (b) Cash Equivalents and
(c) Investments and marketable securities in the ordinary course held by the Borrower and its
Material Subsidiaries that are not subject to any pledge, hypothecation, assignment as security for
Indebtedness, encumbrance, lien (statutory or otherwise), charge, or preference, priority or other
security interest or preferential arrangement of any kind or nature whatsoever provided,
however, in the case of valuation of clause (c), such Investments shall be reduced
as the Borrower reasonably determines in order to account for the risk of loss such Investment
poses, provided, further, such reductions shall not be less than 30% for any
Investment.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.



     “United States” and “U.S.” mean the United States of America.



     “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:




     (a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented, renewed, extended, increased,
reinstated, confirmed, rearranged or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan Document),
(ii) any reference herein to any Person shall be construed to include such Person’s
successors and assigns, (iii) the words “herein,” “hereof” and
“hereunder,” and words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall include
all statutory and regulatory provisions consolidating, amending, replacing or interpreting



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such law and any reference to any law or regulation shall, unless otherwise specified, refer
to such law or regulation as amended, modified or supplemented from time to time, and (vi)
the words “asset” and “property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.




     (b) In the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including;” the words “to” and
“until” each mean “to but excluding;” and the word “through” means
“to and including.”




     (c) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or
any other Loan Document.



     1.03 Accounting Terms.




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




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




     (c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Borrower and its Subsidiaries or to the
determination of any amount for the Borrower and its Subsidiaries on a consolidated basis or
any similar reference shall, in each case, be deemed to include each variable interest
entity that the Borrower is required to consolidate pursuant to FASB Interpretation No. 46 –
Consolidation of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003)
as if such variable interest entity were a Subsidiary as defined herein.



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     1.04 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to
this Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).



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



     1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of
Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at
such time; provided, however, that with respect to any Letter of Credit that, by
its terms or the terms of any Issuer Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all such increases,
whether or not such maximum stated amount is in effect at such time.



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Revolving Loans. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a “Revolving Loan”) to the Borrower from
time to time, on any Business Day during the Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Lender’s Commitment; provided,
however, that after giving effect to any Revolving Borrowing, (i) the Total Outstandings
shall not exceed the Total Commitments, and (ii) the aggregate Outstanding Amount of the Revolving
Loans of any Lender, plus such Lender’s Pro Rata Percentage of the Outstanding Amount of
all Letter of Credit Obligations, plus such Lender’s Pro Rata Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Commitment. Within the limits of
each Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrower may
borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this
Section 2.01. Revolving Loans may be Base Rate Loans or LIBOR Rate Loans, as further
provided herein.



     2.02 Borrowings, Conversions and Continuations of Revolving Loans.




     (a) Each Revolving Borrowing, each conversion of Revolving Loans from one Type to the
other, and each continuation of LIBOR Rate Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such
notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or continuation
of LIBOR Rate Loans or of any conversion of LIBOR Rate Loans to Base Rate Revolving Loans,
and (ii) one Business Day prior to the requested date of any Borrowing of Base Rate
Revolving Loans. Each telephonic notice by the Borrower pursuant to this Section
2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Revolving Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or



-26-









 







continuation of LIBOR Rate Loans shall be in a principal amount of $2,000,000 or a whole
multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.03(c)
and 2.04(c), each Borrowing of or conversion to Base Rate Revolving Loans shall be
in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each
Revolving Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower
is requesting a Revolving Borrowing, a conversion of Revolving Loans from one Type to the
other, or a continuation of LIBOR Rate Loans, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Revolving Loans to be borrowed, converted or continued, (iv) the Type of
Revolving Loans to be borrowed or to which existing Revolving Loans are to be converted, and
(v) if applicable, the duration of the Interest Period with respect thereto. If the
Borrower fails to specify a Type of Revolving Loan in a Revolving Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation, then the
applicable Revolving Loans shall be made as, or converted to, Base Rate Loans. Any such
automatic conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable LIBOR Rate Loans. If the
Borrower requests a Borrowing of, conversion to, or continuation of LIBOR Rate Loans in any
such Revolving Loan Notice, but fails to specify an Interest Period, it will be deemed to
have specified an Interest Period of one month.




     (b) Following receipt of a Revolving Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Pro Rata Percentage of the applicable
Revolving Loans, and if no timely notice of a conversion or continuation is provided by the
Borrower, the Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans described in the preceding subsection. In the case of a
Revolving Borrowing, each Lender shall make the amount of its Revolving Loan available to
the Administrative Agent in immediately available funds at the Administrative Agent’s Office
not later than 3:00 p.m. on the Business Day specified in the applicable Revolving Loan
Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower in like
funds as received by the Administrative Agent either by (i) crediting the account of the
Borrower on the books of Regions Bank with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and reasonably
acceptable to) the Administrative Agent by the Borrower; provided, however,
that if, on the date the Revolving Loan Notice with respect to such Borrowing is given by
the Borrower, there are Swing Line Loans or Letter of Credit Borrowings outstanding, then
the proceeds of such Borrowing, shall be applied first, to the payment in full of
any such Letter of Credit Borrowings, second, to the payment in full of such Swing
Line Loans, and third, shall be made available to the Borrower as provided above.




     (c) Except as otherwise provided herein, a LIBOR Rate Loan may be continued or
converted only on the last day of an Interest Period for such LIBOR Rate



-27-









 







Loan. During the existence of a Default, no Loans may be requested as, converted to or
continued as LIBOR Rate Loans without the consent of the Required Lenders.




     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for LIBOR Rate Loans upon determination of
such interest rate.




     (e) After giving effect to all Revolving Borrowings, all conversions of Revolving Loans
from one Type to the other, and all continuations of Revolving Loans as the same Type, there
shall not be more than eight Interest Periods in effect with respect to Revolving Loans.



     2.03 Letters of Credit.




     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the Letter of
Credit Issuer agrees, in reliance upon the agreements of the Lenders set forth in
this Section 2.03, (1) from time to time on any Business Day during the
period from the Closing Date until the Letter of Credit Expiration Date, to issue
Letters of Credit for the account of the Borrower, and to amend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2) to honor
drawings under the Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of the Borrower and any
drawings thereunder; provided that after giving effect to any Letter of
Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings
shall not exceed the Total Commitments, (y) the aggregate Outstanding Amount of the
Revolving Loans of any Lender, plus such Lender’s Pro Rata Percentage of the
Outstanding Amount of all Letter of Credit Obligations, plus such Lender’s
Pro Rata Percentage of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender’s Commitment, and (z) the Outstanding Amount of the Letter of
Credit Obligations shall not exceed the Letter of Credit Sublimit. Each request by
the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to
be a representation by the Borrower that the Letter of Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding sentence.
Within the foregoing limits, and subject to the terms and conditions hereof, the
Borrower’s ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain Letters of Credit
to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed.




     (ii) The Letter of Credit Issuer shall not issue any Letter of Credit, if:




     (A) the expiry date of such requested Letter of Credit would occur more
than twenty-four months after the date of issuance, unless the Required
Lenders have approved such expiry date; or



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     (B) the expiry date of such requested Letter of Credit would occur
after the Letter of Credit Expiration Date, unless all the Lenders have
approved such expiry date.




     (iii) The Letter of Credit Issuer shall not be under any obligation to issue
any Letter of Credit if:




     (A) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the Letter of
Credit Issuer from issuing such Letter of Credit, or any Law applicable to
the Letter of Credit Issuer or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction
over the Letter of Credit Issuer shall prohibit, or request that the Letter
of Credit Issuer refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon the Letter of
Credit Issuer with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the Letter of Credit Issuer is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon the Letter of Credit Issuer any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and which the Letter of
Credit Issuer in good faith deems material to it;




     (B) the issuance of such Letter of Credit would violate one or more
policies of the Letter of Credit Issuer applicable to letters of credit
generally;




     (C) except as otherwise agreed by the Administrative Agent and the
Letter of Credit Issuer, such Letter of Credit is in an initial stated
amount of less than $500,000;




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




     (E) such Letter of Credit contains any provisions for automatic
reinstatement of the stated amount after any drawing thereunder; or




     (F) a default of any Lender’s obligations to fund under Section
2.03(c) exists or any Lender is at such time a Defaulting Lender or
Impacted Lender hereunder, unless the Letter of Credit Issuer has entered
into satisfactory arrangements with the Borrower or such Lender to eliminate
the Letter of Credit Issuer’s risk with respect to such Lender.




     (iv) The Letter of Credit Issuer shall not amend any Letter of Credit if the
Letter of Credit Issuer would not be permitted at such time to issue such Letter of
Credit in its amended form under the terms hereof.



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




     (vi) The Letter of Credit Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith, and the Letter of Credit Issuer shall have all of the benefits and
immunities (A) provided to the Administrative Agent in Article IX with
respect to any acts taken or omissions suffered by the Letter of Credit Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it and
Issuer Documents pertaining to such Letters of Credit as fully as if the term
“Administrative Agent” as used in Article IX included the Letter of Credit
Issuer with respect to such acts or omissions, and (B) as additionally provided
herein with respect to the Letter of Credit Issuer.




     (b) Procedures for Issuance and Amendment of Letters of Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon
the request of the Borrower delivered to the Letter of Credit Issuer (with a copy to
the Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the Borrower. Such
Letter of Credit Application must be received by the Letter of Credit Issuer and the
Administrative Agent not later than 11:00 a.m. at least two Business Days (or such
later date and time as the Administrative Agent and the Letter of Credit Issuer may
agree in a particular instance in their sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of a request
for an initial issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the Letter of Credit Issuer: (A)
the proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any certificate
to be presented by such beneficiary in case of any drawing thereunder; and (G) such
other matters as the Letter of Credit Issuer may require. In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the Letter of Credit
Issuer (W) the Letter of Credit to be amended; (X) the proposed date of amendment
thereof (which shall be a Business Day); (Y) the nature of the proposed amendment;
and (Z) such other matters as the Letter of Credit Issuer may require.
Additionally, the Borrower shall furnish to the Letter of Credit Issuer and the
Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the Letter of Credit Issuer or the
Administrative Agent may require.



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     (ii) Promptly after receipt of any Letter of Credit Application, the Letter of
Credit Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter of Credit
Application from the Borrower and, if not, the Letter of Credit Issuer will provide
the Administrative Agent with a copy thereof. Unless the Letter of Credit Issuer
has received written notice from any Lender, the Administrative Agent or any Loan
Party, at least one Business Day prior to the requested date of issuance or
amendment of the applicable Letter of Credit, that one or more applicable conditions
contained in Article IV shall not then be satisfied, then, subject to the
terms and conditions hereof, the Letter of Credit Issuer shall, on the requested
date, issue a Letter of Credit for the account of the Borrower or enter into the
applicable amendment, as the case may be, in each case in accordance with the Letter
of Credit Issuer’s usual and customary business practices. Immediately upon the
issuance of each Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Letter of Credit Issuer
a risk participation in such Letter of Credit in an amount equal to the product of
such Lender’s Pro Rata Percentage times the amount of such Letter of Credit.




     (iii) Promptly after its delivery of any Letter of Credit or any amendment to a
Letter of Credit to an advising bank with respect thereto or to the beneficiary
thereof, the Letter of Credit Issuer will also deliver to the Borrower and the
Administrative Agent a true and complete copy of such Letter of Credit or amendment.




     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of
a drawing under such Letter of Credit, the Letter of Credit Issuer shall notify the
Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on the
date of any payment by the Letter of Credit Issuer under a Letter of Credit (each
such date, an “Honor Date”), the Borrower shall reimburse the Letter of
Credit Issuer through the Administrative Agent in an amount equal to the amount of
such drawing. If the Borrower fails to so reimburse the Letter of Credit Issuer by
such time, the Administrative Agent shall promptly notify each Lender of the Honor
Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”),
and the amount of such Lender’s Pro Rata Percentage thereof. In such event, the
Borrower shall be deemed to have requested a Revolving Borrowing of Base Rate Loans
to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02 for
the principal amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Total Commitments and the conditions set forth in Section
4.02 (other than the delivery of a Revolving Loan Notice). Any
notice given by the Letter of Credit Issuer or the Administrative Agent
pursuant to this Section 2.03(c)(i) may be given by telephone if immediately
confirmed in



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writing; provided that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.




     (ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i)
make funds available to the Administrative Agent for the account of the Letter of
Credit Issuer at the Administrative Agent’s Office in an amount equal to its Pro
Rata Percentage of the Unreimbursed Amount not later than 3:00 p.m. on the Business
Day specified in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.03(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Revolving Loan to the Borrower in
such amount. The Administrative Agent shall remit the funds so received to the
Letter of Credit Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Revolving Borrowing of Base Rate Loans because the conditions set forth in
Section 4.02 cannot be satisfied or for any other reason, the Borrower shall
be deemed to have incurred from the Letter of Credit Issuer a Letter of Credit
Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which
Letter of Credit Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate. In such event, each Lender’s
payment to the Administrative Agent for the account of the Letter of Credit Issuer
pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its
participation in such Letter of Credit Borrowing and shall constitute a Letter of
Credit Advance from such Lender in satisfaction of its participation obligation
under this Section 2.03.




     (iv) Until each Lender funds its Revolving Loan or Letter of Credit Advance
pursuant to this Section 2.03(c) to reimburse the Letter of Credit Issuer
for any amount drawn under any Letter of Credit, interest in respect of such
Lender’s Pro Rata Percentage of such amount shall be solely for the account of the
Letter of Credit Issuer.




     (v) Each Lender’s obligation to make Revolving Loans or Letter of Credit
Advances to reimburse the Letter of Credit Issuer for amounts drawn under Letters of
Credit, as contemplated by this Section 2.03(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have
against the Letter of Credit Issuer, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Revolving
Loans pursuant to this Section 2.03(c) is subject to the conditions set
forth in Section 4.02 (other than delivery by the Borrower of a Revolving
Loan Notice). No such making of a Letter of Credit Advance shall relieve or
otherwise impair the obligation of the Borrower to reimburse the Letter of Credit
Issuer for the



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amount of any payment made by the Letter of Credit Issuer under any Letter of
Credit, together with interest as provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the
account of the Letter of Credit Issuer any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.03(c) by the time
specified in Section 2.03(c)(ii), the Letter of Credit Issuer shall be
entitled to recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available to the Letter
of Credit Issuer at a rate per annum equal to the greater of the Federal Funds Rate
and a rate determined by the Letter of Credit Issuer in accordance with banking
industry rules on interbank compensation, plus any administrative, processing or
similar fees customarily charged by the Letter of Credit Issuer in connection with
the foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan
included in the relevant Revolving Borrowing or Letter of Credit Advance in respect
of the relevant Letter of Credit Borrowing, as the case may be. A certificate of
the Letter of Credit Issuer submitted to any Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (vi) shall be conclusive
absent manifest error.




     (d) Repayment of Participations.




     (i) At any time after the Letter of Credit Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender’s Letter of Credit
Advance in respect of such payment in accordance with Section 2.03(c), if
the Administrative Agent receives for the account of the Letter of Credit Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of Cash Collateral
applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Pro Rata Percentage thereof in the same funds as those
received by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the
Letter of Credit Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the Letter of Credit Issuer in
its discretion), each Lender shall pay to the Administrative Agent for the account
of the Letter of Credit Issuer its Pro Rata Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the date
such amount is returned by such Lender, at a rate per annum equal to the Federal
Funds Rate from time to time in effect. The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination of
this Agreement.



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     (e) Obligations Absolute. The obligation of the Borrower to reimburse the
Letter of Credit Issuer for each drawing under each Letter of Credit and to repay each
Letter of Credit Borrowing shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all circumstances,
including the following:




     (i) any lack of validity or enforceability of such Letter of Credit, this
Agreement, or any other Loan Document;




     (ii) the existence of any claim, counterclaim, setoff, defense or other right
that the Borrower or any Subsidiary may have at any time against any beneficiary or
any transferee of such Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the Letter of Credit Issuer or any other
Person, whether in connection with this Agreement, the transactions contemplated
hereby or by such Letter of Credit or any agreement or instrument relating thereto,
or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect; or any
loss or delay in the transmission or otherwise of any document required in order to
make a drawing under such Letter of Credit;




     (iv) any payment by the Letter of Credit Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit; or any payment made by the Letter of Credit
Issuer under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Bankruptcy Law; or




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




     The Borrower shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance with the
Borrower’s instructions or other irregularity, the Borrower will promptly notify the Letter
of Credit Issuer. The Borrower shall be conclusively deemed to have waived any such claim
against the Letter of Credit Issuer and its correspondents unless such notice is given as
aforesaid.




     (f) Role of Letter of Credit Issuer. Each Lender and the Borrower agree that,
in paying any drawing under a Letter of Credit, the Letter of Credit Issuer shall not have



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any responsibility to obtain any document (other than any sight draft, certificates and
documents expressly required by the Letter of Credit) or to ascertain or inquire as to the
validity or accuracy of any such document or the authority of the Person executing or
delivering any such document. None of the Letter of Credit Issuer, the Administrative
Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the Letter of Credit Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of the Lenders
or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity
or enforceability of any document or instrument related to any Letter of Credit or Issuer
Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary
or transferee with respect to its use of any Letter of Credit; provided,
however, that this assumption is not intended to, and shall not, preclude the
Borrower’s pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the Letter of Credit Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the Letter of Credit Issuer shall be liable or responsible for
any of the matters described in clauses (i) through (v) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against the Letter of Credit Issuer, and the
Letter of Credit Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages suffered by the
Borrower which the Borrower proves were caused by the Letter of Credit Issuer’s willful
misconduct or gross negligence or the Letter of Credit Issuer’s willful failure to pay under
any Letter of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the Letter of Credit Issuer may accept
documents that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and the Letter of
Credit Issuer shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a 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.




     (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the
Letter of Credit Issuer has honored any full or partial drawing
request under any Letter of Credit and such drawing has resulted in a Letter of Credit Borrowing, or (ii) if, as of the
Letter of Credit Expiration Date, any Letter of Credit Obligation for any reason remains
outstanding, the Borrower shall, in each case, immediately Cash Collateralize the then
Outstanding Amount of all Letter of Credit Obligations, in the case of clause (i),
until such Letter of Credit Borrowing has been repaid or refinanced. Upon the request of
the Administrative Agent, if any Lender shall be an Impacted Lender and any Letter of Credit
Obligation for any reason remains outstanding, the Borrower shall immediately Cash
Collateralize the outstanding Letter of Credit Obligations in an amount equal to the pro
rata share of such Impacted Lender’s Outstanding Amount of Letter of Credit
Obligations. Sections 2.05 and 8.02(c) set forth certain additional
requirements to deliver



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Cash Collateral hereunder. For purposes of this Section
2.03, Section 2.05 and Section 8.02(c), “Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of
the Letter of Credit Issuer and the Lenders, as collateral for the Letter of Credit
Obligations, cash or deposit account balances pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the Letter of Credit Issuer (which
documents are hereby consented to by the Lenders). Derivatives of such term have
corresponding meanings. The Borrower hereby grants to the Administrative Agent, for the
benefit of the Letter of Credit Issuer and the Lenders, a security interest in all such
cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash
Collateral shall be maintained in blocked, non-interest bearing deposit accounts at Regions
Bank.




     (h) Applicability of ISP. Unless otherwise expressly agreed by the Letter of
Credit Issuer and the Borrower when a Letter of Credit is issued, the rules of the ISP shall
apply to each Letter of Credit.




     (i) Letter of Credit Fees and Fronting Fees. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its Pro Rata
Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of
Credit equal to the Applicable Rate times the daily amount available to be drawn
under such Letter of Credit. In addition to the Letter of Credit Fee, the Borrower shall
pay the Letter of Credit Issuer, for its own account, a fronting fee (the “Fronting
Fee”) equal to 0.15% per annum of the amount available to be drawn under any outstanding
Letter of Credit. For purposes of computing the daily amount available to be drawn under
any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. Letter of Credit Fees and Fronting Fees shall be (i) due and
payable on the last Business Day of each March, June, September and December, commencing
with the first such date to occur after the issuance of such Letter of Credit, on the Letter
of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in
arrears. If there is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each standby Letter of Credit shall be computed and multiplied
by the Applicable Rate separately for each period during such quarter that such Applicable
Rate was in effect.  Notwithstanding anything to the contrary contained herein,
upon the request of the Required Lenders, while any Event of Default exists, all Letter of
Credit Fees and Fronting Fees shall accrue at the Default Rate.




     (j) Documentary and Processing Charges Payable to Letter of Credit Issuer. In
addition to any other fees described herein, the Borrower shall pay directly to the Letter
of Credit Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the Letter of Credit Issuer
relating to letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.




     (k) Conflict with Issuer Documents. In the event of any conflict between the
terms hereof and the terms of any Issuer Document, the terms hereof shall control.



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     2.04 Swing Line Loans.




     (a) The Swing Line. Subject to the terms and conditions set forth herein, the
Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in
this Section 2.04, to make loans (each such loan, a “Swing Line Loan”) to
the Borrower from time to time on any Business Day during the Availability Period in an
aggregate amount not to exceed at any time outstanding the amount of the Swing Line
Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Pro
Rata Percentage of the Outstanding Amount of Revolving Loans and Letter of Credit
Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such
Lender’s Commitment; provided, however, that after giving effect to any
Swing Line Loan, (i) the Total Outstandings shall not exceed the Total Commitments, and (ii)
the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such
Lender’s Pro Rata Percentage of the Outstanding Amount of all Letter of Credit Obligations,
plus such Lender’s Pro Rata Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Commitment, and provided, further, that the
Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding
Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions
hereof, the Borrower may borrow under this Section 2.04, prepay under Section
2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be a
Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing
Line Lender a risk participation in such Swing Line Loan in an amount equal to the product
of such Lender’s Pro Rata Percentage times the amount of such Swing Line Loan.




     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which
may be given by telephone. Each such notice must be received by the Swing Line Lender and
the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall
specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the
requested borrowing date, which shall be a Business Day. Each such telephonic notice must
be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer
of the Borrower. Promptly after receipt by the Swing Line Lender of any telephonic Swing
Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has also received such Swing Line
Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by
telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request
of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of the
limitations set forth in the proviso to the first sentence of Section 2.04(a),
or (B) that one or more of the applicable conditions specified in Article IV is not
then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender
will, not later than



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3:00 p.m. on the borrowing date specified in such Swing Line Loan
Notice, make the amount of its Swing Line Loan available to the Borrower.




     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender, at any time, in its sole and absolute discretion may
request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing
Line Lender to so request on its behalf), that each Lender make a Base Rate
Revolving Loan in an amount equal to such Lender’s Pro Rata Percentage of the amount
of Swing Line Loans then outstanding. Such request shall be made in writing (which
written request shall be deemed to be a Revolving Loan Notice for purposes hereof)
and in accordance with the requirements of Section 2.02, without regard to
the minimum and multiples specified therein for the principal amount of Base Rate
Loans, but subject to the unutilized portion of the Total Commitments and the
conditions set forth in Section 4.02. The Swing Line Lender shall furnish
the Borrower with a copy of the applicable Revolving Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Lender shall make an
amount equal to its Pro Rata Percentage of the amount specified in such Revolving
Loan Notice available to the Administrative Agent in immediately available funds for
the account of the Swing Line Lender at the Administrative Agent’s Office not later
than 3:00 p.m. on the day specified in such Revolving Loan Notice, whereupon,
subject to Section 2.04(c)(ii), each Lender that so makes funds available
shall be deemed to have made a Base Rate Revolving Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to the Swing
Line Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a
Revolving Borrowing in accordance with Section 2.04(c)(i), the request for
Base Rate Revolving Loans submitted by the Swing Line Lender as set forth herein
shall be deemed to be a request by the Swing Line Lender that each of the Lenders
fund its risk participation in the relevant Swing Line Loan and each Lender’s
payment to the Administrative Agent for the account of the Swing Line Lender
pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such
participation.




     (iii) If any Lender fails to make available to the Administrative Agent for the
account of the Swing Line Lender any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.04(c) by the time
specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to
recover from such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment is required
to the date on which such payment is immediately available to the Swing
Line Lender at a rate per annum equal to the greater of the Federal Funds Rate
and a rate determined by the Swing Line Lender in accordance with banking industry
rules on interbank compensation, plus any administrative, processing or similar fees
customarily charged by the Swing Line Lender in connection with the



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foregoing. If
such Lender pays such amount (with interest and fees as aforesaid), the amount so
paid shall constitute such Lender’s Revolving Loan included in the relevant
Revolving Borrowing or funded participation in the relevant Swing Line Loan, as the
case may be. A certificate of the Swing Line Lender submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.




     (iv) Each Lender’s obligation to make Revolving Loans or to purchase and fund
risk participations in Swing Line Loans pursuant to this Section 2.04(c)
shall be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right which
such Lender may have against the Swing Line Lender, the Borrower or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C)
any other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender’s obligation to make
Revolving Loans pursuant to this Section 2.04(c) is subject to the
conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the Borrower to
repay Swing Line Loans, together with interest as provided herein.




     (d) Repayment of Participations.




     (i) At any time after any Lender has purchased and funded a risk participation
in a Swing Line Loan, if the Swing Line Lender receives any payment on account of
such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Pro
Rata Percentage thereof in the same funds as those received by the Swing Line
Lender.




     (ii) If any payment received by the Swing Line Lender in respect of principal
or interest on any Swing Line Loan is required to be returned by the Swing Line
Lender under any of the circumstances described in Section 10.05 (including
pursuant to any settlement entered into by the Swing Line Lender in its discretion),
each Lender shall pay to the Swing Line Lender its Pro Rata Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned, at a rate per annum equal to the Federal
Funds Rate. The Administrative Agent will make such demand upon the request of the
Swing Line Lender. The obligations of the Lenders under this clause shall survive
the payment in full of the Obligations and the termination of this Agreement.




     (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each
Lender funds its Base Rate Revolving Loan or risk participation pursuant to this Section
2.04 to refinance such Lender’s Pro Rata Percentage of any Swing Line Loan, interest in
respect of such Pro Rata Percentage shall be solely for the account of the Swing Line
Lender.



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     (f) Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly to the Swing
Line Lender.



     2.05 Prepayments and Mandatory Prepayments.




     (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time
to time voluntarily prepay Revolving Loans in whole or in part without premium or penalty;
provided that (i) such notice must be received by the Administrative Agent not later
than 11:00 a.m. (A) three Business Days prior to any date of prepayment of LIBOR Rate Loans
and (B) on the date of prepayment of Base Rate Revolving Loans; (ii) any prepayment of LIBOR
Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $1,000,000 in
excess thereof; and (iii) any prepayment of Base Rate Revolving Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each
case, if less, the entire principal amount thereof then outstanding. Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Revolving Loans to be
prepaid and, if LIBOR Rate Loans are to be prepaid, the Interest Period(s) of such Loans.
The Administrative Agent will promptly notify each Lender of its receipt of each such
notice, and of the amount of such Lender’s Pro Rata Percentage of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified therein. Any
prepayment of a LIBOR Rate Loan shall be accompanied by all accrued interest on the amount
prepaid, together with any additional amounts required pursuant to Section 3.05.
Each such prepayment shall be applied to the Revolving Loans of the Lenders in accordance
with their respective Pro Rata Percentages.




     (b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans
in whole or in part without premium or penalty; provided that (i) such notice must
be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m.
on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal
amount of $100,000. Each such notice shall specify the date and amount of such prepayment.
If such notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified
therein.




     (c) If for any reason the Total Outstandings at any time exceed the Total Commitments
then in effect, the Borrower shall immediately prepay Loans and/or Cash Collateralize the
Letter of Credit Obligations in an aggregate amount equal to such excess; provided,
however, that the Borrower shall not be required to Cash Collateralize the Letter of
Credit Obligations pursuant to this Section 2.05(c) unless after the prepayment in
full of the Loans the Total Outstandings exceed the Total Commitments then in effect.



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     (d) Upon the Disposition of assets by the Borrower or any Subsidiary as permitted in
Section 7.05(c) (other than (i) Dispositions of JBO Stock, and (ii) Dispositions of
stock by a Subsidiary to the Borrower or to a parent company of such Subsidiary), 100% of
the Net Cash Proceeds shall be paid within two Business Days to the Administrative Agent to
be applied to the Loans, and the Total Commitments shall be permanently reduced by the
amount of the Net Cash Proceeds of such Disposition provided, however, that,
with respect to any Net Cash Proceeds realized under a Disposition described in this
Section 2.05(d), at the election of the Borrower (as notified by the Borrower to the
Administrative Agent on or prior to the date of such Disposition), and so long as no Default
shall have occurred and be continuing, the Borrower or such Subsidiary may reinvest all or
any portion of such Net Cash Proceeds in operating assets (including investments in capital
of Subsidiaries) so long as within 90 days after the receipt of such Net Cash Proceeds, such
purchase shall have been consummated (as certified by the Borrower in writing to the
Administrative Agent); and provided further, however, that any Net
Cash Proceeds not subject to such definitive agreement or so reinvested by such time shall
be immediately applied to the prepayment of the Loans as set forth in this Section
2.05(d) along with a corresponding permanent reduction to the Total Commitments. The
provisions of this Section do not constitute a consent to the consummation of any
Disposition not otherwise permitted in Section 7.05.




     (e) Upon the issuance of any Indebtedness by the Borrower or any Subsidiary not
otherwise permitted in Section 7.03, 100% of the Net Cash Proceeds shall be
immediately paid to the Administrative Agent to be applied to the Loans, and the Total
Commitments shall be permanently reduced by the amount of the Net Cash Proceeds of such
issuance. The provisions of this Section do not constitute a consent to the issuance of any
Indebtedness not otherwise permitted in Section 7.03.




     (f) Upon the issuance and sale of any Equity Interests by the Borrower or any
Subsidiary as permitted in Section 7.06(d) (other than the issuance and sale of JBO
Stock consistent with historical practice of the Borrower), 100% of the Net Cash Proceeds
shall be immediately paid to the Administrative Agent to be applied to the Loans, and the
Total Commitments shall be permanently reduced by the amount of the Net Cash Proceeds of
such issuance. The provisions of this Section do not constitute a consent to the issuance
and sale of any Equity Interests not otherwise permitted in Section 7.06.




     (g) Each prepayment under this Section 2.05 shall be accompanied by accrued
interest on the amount prepaid to the date of such prepayment and amounts, if any, required
to be paid pursuant to Section 3.05.



     2.06 Termination or Reduction of Commitments. The Borrower may, upon notice to the
Administrative Agent, terminate the Total Commitments, or from time to time permanently reduce the
Total Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce
the Total Commitments if, after giving effect thereto and to any concurrent



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prepayments hereunder,
the Total Outstandings would exceed the Total Commitments, and (iv) if, after giving effect to any
reduction of the Total Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit
exceeds the amount of the Total Commitments, such Sublimit shall be automatically reduced by the
amount of such excess. The Administrative Agent will promptly notify the Lenders of any such
notice of termination or reduction of the Total Commitments. Any reduction of the Total
Commitments shall be applied to the Commitment of each Lender according to its Pro Rata Percentage.
All fees accrued until the effective date of any termination of the Total Commitments shall be
paid on the effective date of such termination. Notwithstanding the foregoing, for the avoidance
of doubt but without prejudice to the right of the Borrower to terminate or permanently reduce the
Total Commitments pursuant to Section 2.06, if the Total Commitments are reduced to zero
due to mandatory prepayments pursuant to Section 2.05(e), the revolving credit facility
hereunder shall not automatically terminate and shall terminate only upon the written request of
the Borrower or the Administrative Agent.



     2.07 Repayment of Loans.




     (a) The Borrower shall repay to the Lenders on the Maturity Date the aggregate
principal amount of Revolving Loans outstanding on such date and all other outstanding and
unpaid Obligations.




     (b) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) unless
otherwise refinanced as a Revolving Loan pursuant to Section 2.04(c), the date five
Business Days after such Loan is made and (ii) the Maturity Date.



     2.08 Interest.




     (a) Subject to the provisions of subsection (b) below, (i) each LIBOR Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate
per annum equal to the lesser of (A) the LIBOR Rate for such Interest Period plus
the Applicable Rate or (B) the Maximum Rate; (ii) each Base Rate Revolving Loan shall bear
interest on the outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the lesser of (A) the Base Rate plus the Applicable Rate or
(B) the Maximum Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date
at a rate per annum equal to the lesser of (A) the Base Rate plus the
Applicable Rate or (B) the Maximum Rate.




     (b) (i) If any amount of principal of any Loan is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration or otherwise,
such amount shall thereafter bear interest at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (ii) If any amount (other than principal of any Loan) payable by the Borrower
under any Loan Document is not paid when due (without regard to any



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applicable grace
periods), whether at stated maturity, by acceleration or otherwise, then upon the
request of the Required Lenders, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.




     (iii) Upon the request of the Required Lenders, while any Event of Default
exists, the Borrower shall pay interest on the principal amount of all outstanding
Obligations hereunder at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable Laws.




     (iv) Accrued and unpaid interest on past due amounts shall be due and payable
upon demand.




     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment
Date applicable thereto and at such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms hereof before and after
judgment, and before and after the commencement of any proceeding under any Bankruptcy Law.



     2.09 Fees. In addition to certain fees described in subsections (i) and (j) of Section
2.03:




     (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Percentage, a commitment fee equal to
the Applicable Rate times the actual daily amount by which the Total Commitments
exceed the sum of (i) the Outstanding Amount of Revolving Loans and (ii) the Outstanding
Amount of Letter of Credit Obligations. The commitment fee shall accrue at all times during
the Availability Period, including at any time during which one or more of the conditions in
Article IV is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the first such
date to occur after the Closing Date, and on the last day of the Availability Period. The
commitment fee shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied
by the Applicable Rate separately for each period during such quarter that such Applicable
Rate was in effect.




     (b) Other Fees.




     (i) The Borrower shall pay to the Administrative Agent for its own account fees
in the amounts and at the times specified in the Fee Letter. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever.




     (ii) The Borrower shall pay to the Lenders such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified.



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Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.



     2.10 Computation of Interest and Fees.




     (a) All computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable, being paid
than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for
the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof,
for the day on which the Loan or such portion is paid, provided that any Loan that
is repaid on the same day on which it is made shall, subject to Section 2.12(a),
bear interest for one day. Each determination by the Administrative Agent of an interest
rate or fee hereunder shall be presumptive evidence of such rate or fee, absent manifest
error.




     (b) If, as a result of any restatement of or other adjustment to the financial
statements of the Borrower, the Borrower or the Required Lenders determine in good faith
that (i) the Consolidated Leverage Ratio as calculated by the Borrower as of any applicable
date was inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio would
have resulted in higher pricing for such period, the Borrower shall immediately and
retroactively be obligated to pay to the Administrative Agent for the account of the
applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence
of an actual or deemed entry of an order for relief with respect to the Borrower under the
Bankruptcy Laws, automatically and without further action by the Administrative Agent or any
Lender), an amount equal to the excess of the amount of interest and fees that should have
been paid for such period over the amount of interest and fees actually paid for such
period. This paragraph shall not limit the rights of the Administrative Agent or any Lender
under any other provision of this Agreement. The Borrower’s obligations under this
paragraph shall survive the termination of the Total Commitments and the repayment of all
other Obligations hereunder for a period of one year.



     2.11 Evidence of Debt.




     (a) The Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be presumptively correct, absent manifest
error, of the amount of the Credit Extensions made by the Lenders to the Borrower and the
interest and payments thereon. Any failure to so record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error. Upon the request of
any Lender made through the Administrative Agent, the Borrower shall execute and



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deliver to
such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s
Loans in addition to such accounts or records. Each Lender may attach schedules to its Note
and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and
payments with respect thereto.




     (b) In addition to the accounts and records referred to in subsection (a), each Lender
and the Administrative Agent shall maintain in accordance with its usual practice accounts
or records evidencing the purchases and sales by such Lender of participations in Letters of
Credit and Swing Line Loans. In the event of any conflict between the accounts and records
maintained by the Administrative Agent and the accounts and records of any Lender in respect
of such matters, the accounts and records of the Administrative Agent shall control in the
absence of manifest error.



     2.12 Payments Generally; Administrative Agent’s Clawback.




     (a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to
the Administrative Agent, for the account of the respective Lenders to which such payment is
owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not
later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly
distribute to each Lender its Pro Rata Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such Lender’s Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed
received on the next succeeding Business Day and any applicable interest or fee shall
continue to accrue. If any payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day, and such
extension of time shall be reflected in computing interest or fees, as the case may be.




(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed
date of any Revolving Borrowing of LIBOR Loans (or, in the case of any Revolving
Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Revolving
Borrowing) that such Lender will not make available to the Administrative Agent such
Lender’s share of such Revolving Borrowing, the
Administrative Agent may assume that such Lender has made such share available on
such date in accordance with Section 2.02 and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event,
if a Lender has not in fact made its share of the applicable Revolving Borrowing
available to the Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in immediately available funds with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the case of a
payment to be made by such Lender, the greater of the



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Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation, and (B) in the case of a payment to be made by the Borrower,
the interest rate applicable to Base Rate Loans. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to the Borrower the amount of
such interest paid by the Borrower for such period. If such Lender pays its share
of the applicable Revolving Borrowing to the Administrative Agent, then the amount
so paid shall constitute such Lender’s Revolving Loan included in such Revolving
Borrowing. Any payment by the Borrower shall be without prejudice to any claim the
Borrower may have against a Lender that shall have failed to make such payment to
the Administrative Agent.




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




     A notice of the Administrative Agent to any Lender or the Borrower with respect to any
amount owing under this subsection (b) shall be conclusive, absent manifest error.




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




     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder
to make Revolving Loans, to fund participations in Letters of Credit and Swing Line Loans
and to make payments pursuant to Section 10.04(c) are several and not joint. The
failure of any Lender to make any Revolving Loan, to fund any such participation or to make
any payment under Section 10.04(c) on any date required hereunder shall not



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relieve
any other Lender of its corresponding obligation to do so on such date, and no Lender shall
be responsible for the failure of any other Lender to so make its Revolving Loan, to
purchase its participation or to make its payment under Section 10.04(c).




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



     2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
the Revolving Loans made by it, or the participations in Letter of Credit Obligations or in Swing
Line Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate
amount of such Revolving Loans or participations and accrued interest thereon greater than its
pro rata share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at
face value) participations in the Revolving Loans and subparticipations in Letter of Credit
Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective
Revolving Loans and other amounts owing them, provided that:




     (i) if any such participations or subparticipations are purchased and all or
any portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest; and




     (ii) the provisions of this Section shall not be construed to apply to (x) any
payment made by the Borrower pursuant to and in accordance with the express terms of
this Agreement or (y) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Revolving Loans or
subparticipations in Letter of Credit Obligations or Swing Line Loans to any
assignee or participant, other than to the Borrower or any Subsidiary thereof (as to
which the provisions of this Section shall apply).



     The Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.



     2.14 Increase in Commitments.




     (a) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrower may, on a
one-time basis, request an increase in the Total Commitments by an aggregate amount



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not
exceeding $30,000,000; provided that any such request for an increase shall be in a
minimum amount of $5,000,000. At the time of sending such notice, the Borrower (in
consultation with the Administrative Agent) shall specify the time period within which each
Lender is requested to respond (which shall in no event be less than ten Business Days from
the date of delivery of such notice to the Lenders).




     (b) Lender Elections to Increase. Each Lender shall notify the Administrative
Agent within such time period whether or not it agrees to increase its Commitment and, if
so, whether by an amount equal to, greater than, or less than its Pro Rata Percentage of
such requested increase. Any Lender not responding within such time period shall be deemed
to have declined to increase its Commitment.




     (c) Notification by Administrative Agent; Additional Lenders. The
Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to
each request made hereunder. To achieve the full amount of a requested increase and subject
to the approval of the Administrative Agent, the Letter of Credit Issuer and the Swing Line
Lender (which approvals shall not be unreasonably withheld), the Borrower may also invite
additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel.




     (d) Effective Date and Allocations. If the Total Commitments are increased in
accordance with this Section, the Administrative Agent and the Borrower shall determine the
effective date (the “Increase Effective Date”) and the final allocation of such
increase. The Administrative Agent shall promptly notify the Borrower and the Lenders of
the final allocation of such increase and the Increase Effective Date.




     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan
Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed
by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions
adopted by such Loan Party approving or consenting to such increase, and (ii) in the case of
the Borrower, certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other Loan Documents
are true and correct on and as of the Increase Effective Date, except to the
extent that such representations and warranties specifically refer to an earlier date,
in which case they are true and correct as of such earlier date, and except that for
purposes of this Section 2.14, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01,
and (B) no Default exists. The Borrower shall prepay any Revolving Loans outstanding on the
Increase Effective Date (and pay any additional amounts required pursuant to Section
3.05) to the extent necessary to keep the outstanding Revolving Loans ratable with any
revised Pro Rata Percentages arising from any nonratable increase in the Commitments under
this Section.



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     (f) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.13 or 10.01 to the contrary.



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.




     (a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be made free and
clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes,
provided that if the Borrower shall be required by applicable Law to deduct any
Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the Administrative
Agent, Lender or Letter of Credit Issuer, as the case may be, receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable Law.




     (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable Law.




     (c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and the Letter of Credit Issuer, within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) paid by the Administrative Agent, such Lender or the Letter of Credit
Issuer, as the case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the Borrower by a
Lender or the Letter of Credit Issuer (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or
the Letter of Credit Issuer, shall be conclusive absent manifest error.




     (d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent.




     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which the



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Borrower
is resident for tax purposes, or any treaty to which such jurisdiction is a party, with
respect to payments hereunder or under any other Loan Document shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by applicable Law
or reasonably requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable Law as will permit such payments to be
made without withholding or at a reduced rate of withholding. In addition, any Lender, if
requested by the Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable Law or reasonably requested by the Borrower or the
Administrative Agent as will enable the Borrower or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information reporting
requirements.




     Without limiting the generality of the foregoing, in the event that the Borrower is
resident for tax purposes in the United States, any Foreign Lender shall deliver to the
Borrower and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of the Borrower or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do so),
whichever of the following is applicable:




     (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States is a
party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under Section 881(c) of the Code, (x) a certificate to the
effect that such Foreign Lender is not (A) a “bank” within the meaning of Section
881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the
meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in Section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN, or




     (iv) any other form prescribed by applicable Law as a basis for claiming
exemption from or a reduction in United States Federal withholding tax duly
completed together with such supplementary documentation as may be prescribed by
applicable Law to permit the Borrower to determine the withholding or deduction
required to be made.




     (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or
the Letter of Credit Issuer determines, in its reasonable discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or
with respect to which the Borrower has paid additional amounts pursuant to this Section, it
shall pay to the Borrower an amount equal to such refund (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under



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this Section with
respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or the Letter of Credit Issuer, as the
case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon the request
of the Administrative Agent, such Lender or the Letter of Credit Issuer, agrees to repay the
amount paid over to the Borrower (plus any penalties, interest or other charges imposed by
the relevant Governmental Authority) to the Administrative Agent, such Lender or the Letter
of Credit Issuer in the event the Administrative Agent, such Lender or the Letter of Credit
Issuer is required to repay such refund to such Governmental Authority. This subsection
shall not be construed to require the Administrative Agent, any Lender or the Letter of
Credit Issuer to make available its tax returns (or any other information relating to its
taxes that it deems confidential) to the Borrower or any other Person.



     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund LIBOR Rate Loans, or to determine or charge interest rates based
upon the LIBOR Rate, or any Governmental Authority has imposed material restrictions on the
authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative
Agent, any obligation of such Lender to make or continue LIBOR Rate Loans or to convert Base Rate
Revolving Loans to LIBOR Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or, if applicable, convert all LIBOR Rate Loans of such
Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender
may lawfully continue to maintain such LIBOR Rate Loans to such day, or immediately, if such Lender
may not lawfully continue to maintain such LIBOR Rate Loans. Upon any such prepayment or
conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.



     3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a LIBOR Rate Loan or a conversion to or continuation
thereof that (a) Dollar deposits are not being offered to banks in the London interbank LIBOR
market for the applicable amount and Interest Period of such LIBOR Rate Loan, (b) adequate and
reasonable means do not exist for determining the LIBOR Rate for any requested Interest Period with
respect to a proposed LIBOR Rate Loan, or (c) the LIBOR Rate for any requested Interest Period with
respect to a proposed LIBOR Rate Loan does not adequately and fairly reflect the cost to such
Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and
each Lender. Thereafter, the obligation of the Lenders to make or maintain LIBOR Rate Loans shall
be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of LIBOR Rate Loans or, failing that, will be deemed to
have converted such request into a request for a Revolving Borrowing of Base Rate Loans in the
amount specified therein.



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     3.04 Increased Costs.




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




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or
for the account of, or credit extended or participated in by, any Lender (except any
reserve requirement contemplated by Section 3.04(e)) or the Letter of Credit
Issuer;




     (ii) subject any Lender or the Letter of Credit Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any participation
in a Letter of Credit or any LIBOR Rate Loan made by it, or change the basis of
taxation of payments to such Lender or the Letter of Credit Issuer in respect
thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.01
and the imposition of, or any change in the rate of, any Excluded Tax payable by
such Lender or the Letter of Credit Issuer); or




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




and the result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any LIBOR Rate Loan (or of maintaining its obligation to make any such
Loan), or to increase the cost to such Lender or the Letter of Credit Issuer of
participating in, issuing or maintaining any Letter of Credit (or of maintaining its
obligation to participate in or to issue any Letter of Credit), or to reduce the amount of
any sum received or receivable by such Lender or the Letter of Credit Issuer hereunder
(whether of principal, interest or any other amount) then, upon request of such Lender or
the Letter of Credit Issuer, the Borrower will pay to such Lender or the Letter of Credit
Issuer, as the case may be, such additional amount or amounts as will compensate such
Lender or the Letter of Credit Issuer, as the case may be, for such additional costs
incurred or reduction suffered.




     (b) Capital Requirements. If any Lender or the Letter of Credit Issuer
determines that any Change in Law affecting such Lender or the Letter of Credit Issuer or
any Lending Office of such Lender or such Lender’s or the Letter of Credit Issuer’s holding
company, if any, regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender’s or the Letter of Credit Issuer’s capital or on the capital
of such Lender’s or the Letter of Credit Issuer’s holding company, if any, as a consequence
of this Agreement, the Commitments of such Lender or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by the Letter of
Credit Issuer, to a level below that which such Lender or the Letter of Credit Issuer or
such Lender’s or the Letter of Credit Issuer’s holding company could have achieved but for
such Change in Law (taking into consideration such Lender’s or the



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Letter of Credit Issuer’s
policies and the policies of such Lender’s or the Letter of Credit Issuer’s holding company
with respect to capital adequacy), then from time to time the Borrower will pay to such
Lender or the Letter of Credit Issuer, as the case may be, such additional amount or amounts
as will compensate such Lender or the Letter of Credit Issuer or such Lender’s or the Letter
of Credit Issuer’s holding company for any such reduction suffered.




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




     (d) Delay in Requests. Failure or delay on the part of any Lender or the
Letter of Credit Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender’s or the Letter of Credit Issuer’s
right to demand such compensation, provided that the Borrower shall not be required
to compensate a Lender or the Letter of Credit Issuer pursuant to the foregoing provisions
of this Section for any increased costs incurred or reductions suffered more than nine
months prior to the date that such Lender or the Letter of Credit Issuer, as the case may
be, notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or the Letter of Credit Issuer’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the nine-month period referred to above shall be extended
to include the period of retroactive effect thereof).




     (e) Reserves on LIBOR Rate Loans. The Borrower shall pay to each Lender, as
long as such Lender shall be required to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency funds or deposits (currently known as
“Eurocurrency liabilities”), additional interest on the unpaid principal amount of each
LIBOR Rate Loan equal to the actual costs of such reserves allocated to such Loan by such
Lender (as determined by such Lender in good faith, which determination shall be
conclusive), which shall be due and payable on each date on which interest is payable on
such Loan, provided the Borrower shall have received at least 10 days’ prior notice
(with a copy to the Administrative Agent) of such additional interest from such Lender. If
a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 10 days from receipt of such notice.



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



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




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




     (c) any assignment of a LIBOR Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section
10.13;


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



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




     3.06 Mitigation Obligations; Replacement of Lenders.




     (a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then
such Lender shall use reasonable efforts to designate a different Lending Office for funding
or booking its Loans hereunder or to assign its rights and obligations hereunder to another
of its offices, branches or affiliates, if, in the judgment of such Lender, such designation
or assignment (i) would eliminate or reduce amounts payable pursuant to
Section 3.01 or 3.04, as the case may be, in the future, or eliminate
the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each
case, would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such designation
or assignment.




     (b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04 or is an Impacted Lender, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 3.01, the Borrower may replace such Lender in accordance with
Section 10.13.



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     3.07 Survival. All of the Borrower’s obligations under this Article III shall survive
termination of the Total Commitments and repayment of all other Obligations hereunder.



ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension. The obligation of the Letter of Credit Issuer
and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the
following conditions precedent:




     (a) The Administrative Agent’s receipt of the following, each of which shall be
originals or telecopies (followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing
Date (or, in the case of certificates of governmental officials, a recent date before the
Closing Date) and each in form and substance satisfactory to the Administrative Agent:




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




     (ii) a Note executed by the Borrower in favor of each Lender requesting a Note;




     (iii) a Pledge Agreement executed by the Borrower and its Subsidiaries (as
required by this Agreement) in favor of the Administrative Agent for the benefit of
the Lenders;




     (iv) stock certificates, if any, for 100% of all voting Equity Interests of
each Material Domestic Subsidiary and for 65% of all voting Equity Interests of each
Material Foreign Subsidiary and stock powers, sufficient in number for distribution
to the Administrative Agent, each Lender and the Borrower; it being understood that
such pledged stock shall not include JBO Stock;




     (v) a Guaranty executed by each Guarantor in favor of the Administrative Agent
and Lenders;




     (vi) such certificates of resolutions or other action, incumbency certificates
and/or other certificates of Responsible Officers of each Loan Party as the
Administrative Agent may require evidencing the identity, authority and capacity of
each Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which such Loan Party
is a party;




     (vii) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or formed, and
that the Borrower is validly existing, in good standing and qualified to engage in
business in Delaware and each other jurisdiction where its



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ownership, lease or
operation of properties or the conduct of its business requires such qualification,
except to the extent that failure to do so would not reasonably be expected to have
a Material Adverse Effect;




     (viii) a favorable opinion of McGuire, Craddock and Strother, and Andrew
Koslow, Esq., counsel to the Loan Parties, addressed to the Administrative Agent and
each Lender, as to the matters set forth in Exhibit F and such other matters
concerning the Loan Parties and the Loan Documents as the Required Lenders may
reasonably request;




     (ix) copies of central filing UCC searches of the Borrower and its
Subsidiaries, each such search showing no Liens except Liens permitted pursuant to
Section 7.01;




     (x) a certificate of a Responsible Officer of each Loan Party either (A)
attaching copies of all consents, licenses and approvals (other than Board
approvals) required in connection with the execution, delivery and performance by
such Loan Party and the validity against such Loan Party of the Loan Documents to
which it is a party, and such consents, licenses and approvals shall be in full
force and effect, or (B) stating that no such consents, licenses or approvals (other
than Board approvals) are so required with respect thereto;




     (xi) a certificate signed by a Responsible Officer of the Borrower certifying
(A) that the conditions specified in Sections 4.02(a) and (b) have
been satisfied and (B) that there has been no event or circumstance since the
Audited Financial Statements that has had or would be reasonably expected to have,
either individually or in the aggregate, a Material Adverse Effect;




     (xii) evidence that all insurance required to be maintained pursuant to the
Loan Documents has been obtained and is in effect;




     (xiii) the Audited Financial Statements;




     (xiv) financial projections of the Borrower’s consolidated operations
including, on a quarterly basis from the Closing Date until no less than the
Maturity Date projected, quarterly balance sheets, income statements and statements
of cash flows of the Borrower and its Subsidiaries;




     (xiv) an organization chart of the Borrower and its Subsidiaries.




     (xv) a Compliance Certificate, duly and properly executed by the chief
executive officer, chief financial officer, treasurer or controller of the Borrower
dated the date hereof but with all calculations made as of December 31, 2008;




     (xvi) executed counterparts of the Post-Closing Letter; and



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     (xvii) such other assurances, certificates, documents, consents or opinions as
the Administrative Agent, the Letter of Credit Issuer, the Swing Line Lender or the
Required Lenders reasonably may require.




     (b) Any fees required to be paid on or before the Closing Date shall have been paid,
including those fees required to be paid in the Fee Letter.




     (c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees,
charges and disbursements of counsel to the Administrative Agent (directly to such counsel
if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing
Date, plus such additional amounts of such fees, charges and disbursements as shall
constitute its reasonable estimate of such fees, charges and disbursements incurred or to be
incurred by it through the closing proceedings (provided that such estimate shall not
thereafter preclude a final settling of accounts between the Borrower and the Administrative
Agent).




     (d) Except as disclosed in the Borrower’s public securities filings, since the Audited
Financial Statements, there shall not have occurred (i) any event, development, or
circumstance that has caused or would reasonably be expected to cause a Material Adverse
Effect, or (ii) any event, development, or circumstance that has caused or would reasonably
be expected to cause the projections provided in Section 4.01(a)(xv) or any of the
material assumptions on which such projections were prepared to be materially incorrect so
as to render such projections materially incorrect.




     (e) Except as disclosed in the Borrower’s public securities filings, no action, suit,
investigation or proceeding pending or, to the knowledge of the Borrower, threatened in any
court or before any arbitrator or governmental authority against the Borrower or a
Subsidiary that would reasonably be expected to have a Material Adverse Effect.




     (f) The Administrative Agent shall have completed a due diligence investigation of the
Borrower and its Subsidiaries in scope, and with results, reasonably satisfactory to the
Administrative Agent and shall have been given such access to the
management, records, books of account, contracts and properties of the Borrower and its
Subsidiaries and shall have received such material financial, business and other information
regarding the Borrower and its Subsidiaries as the Administrative Agent shall have
reasonably requested, including, without limitation, information requested as to probable
material contingent liabilities, tax matters, collective bargaining and labor agreements,
insurance and other material contracts, and its material real and personal property.




     (g) There shall not have occurred any material disruption or material adverse change in
the financial, banking, or capital markets which the Administrative Agent, in its reasonable
discretion, deems to materially impair the syndication of this revolving credit facility.



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     Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.



     4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request
for Credit Extension (other than a Revolving Loan Notice requesting only a conversion of Revolving
Loans to the other Type, or a continuation of LIBOR Rate Loans) is subject to the following
conditions precedent:




     (a) The representations and warranties of the Borrower and each other Loan Party
contained in Article V or any other Loan Document, or which are contained in any
document furnished at any time under or in connection herewith or therewith, shall be true
and correct on and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they
shall be true and correct as of such earlier date, and except that for purposes of this
Section 4.02, the representations and warranties contained in subsections (a) and
(b) of Section 5.05 shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 6.01.




     (b) No Default shall exist, or would result from such proposed Credit Extension or from
the application of the proceeds thereof.




     (c) The Administrative Agent and, if applicable, the Letter of Credit Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in accordance with the
requirements hereof.



     Each Request for Credit Extension (other than a Revolving Loan Notice requesting only a
conversion of Revolving Loans to the other Type or a continuation of LIBOR Rate Loans) submitted by
the Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a) and (b) have been satisfied on and as
of the date of the applicable Credit Extension.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and the Lenders that:



     5.01 Existence, Qualification and Power. Each Loan Party (a) is duly organized or formed,
validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and
carry on its business, and (ii) execute, deliver and perform its obligations under the Loan
Documents to which it is a party and (c) is duly qualified and is licensed and, as applicable, in
good standing under the Laws of each jurisdiction where its ownership, lease or operation of



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properties or the conduct of its business requires such qualification or license; except in each
case referred to in clause (b)(i) or (c), to the extent that failure to do so would not reasonably
be expected to have a Material Adverse Effect.



     5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document and the transaction contemplated thereby to which such Person is party,
have been duly authorized by all necessary corporate or other organizational action, and do not and
will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with
or result in any breach or contravention of, or the creation of any Lien under, or require any
payment to be made under (i) any Contractual Obligation to which such Person is a party or
affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any
order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such
Person or its property is subject; or (c) violate any Law.



     5.03 Governmental Authorization; Other Consents. Other than as previously obtained and in
full force and effect, and other than the filing of security interests and notices to, and in the
case of enforcement consents from, applicable regulatory authorities with respect to the Pledge
Agreement, no approval, consent, exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority or any other Person is necessary or required in connection
with the execution, delivery or performance by, or enforcement against, any Loan Party of this
Agreement, any other Loan Document or the transactions contemplated thereby.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms, subject to the effect of applicable insolvency and
bankruptcy laws and equitable principles and, in the case of the enforcement of the Pledge
Agreement, applicable regulatory restrictions.



     5.05 Financial Statements; No Material Adverse Effect; No Internal Control Event.




     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; (ii) fairly present the financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for the period covered
thereby in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (iii) show, in accordance with GAAP, all
material indebtedness and other liabilities, direct or contingent, of the Borrower and its
Subsidiaries as of the date thereof, including liabilities for taxes, material commitments
and Indebtedness.




     (b) The unaudited consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries dated December 31, 2008, and the related consolidated and




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consolidating
statements of income or operations, shareholders’ equity and cash flows for the fiscal
quarter ended on that date (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein, and (ii)
fairly present the financial condition of the Borrower and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby, subject, in the case
of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit
adjustments. Schedule 5.05 sets forth all (x) Indebtedness of the Borrower (with
respect to clauses (a), (e) and (f) of the definition of “Indebtedness”) and all capital
leases and (y) Indebtedness of the Subsidiaries, in each case with a principal amount of
more than $5,000,000 as of the date of such financial statements.




     (c) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or would reasonably be
expected to have a Material Adverse Effect.




     (d) To the best knowledge of the Borrower, no Internal Control Event exists or has
occurred since the date of the Audited Financial Statements that has resulted in or would
reasonably be expected to result in a misstatement in any material respect, in any financial
information delivered or to be delivered to the Administrative Agent or the Lenders, of (i)
covenant compliance calculations provided hereunder or (ii) the assets, liabilities,
financial condition or results of operations of the Borrower and its Subsidiaries on a
consolidated basis.




     (e) The consolidated forecasted statements of income of the Borrower and its
Subsidiaries delivered pursuant to Section 6.01(c) were prepared in good faith on
the basis of the assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts, and represented, at the time
of delivery, the Borrower’s best estimate of its future financial condition and performance.



     5.06 Litigation. Other than those disclosed in public filings, if any, or provided to the
Administrative Agent and the Lenders in writing, there are no actions, suits, proceedings, claims
or disputes pending or, to the knowledge of the Borrower after due and diligent investigation,
threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority,
by or against the Borrower or any of its Subsidiaries or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any
of the transactions contemplated hereby, or (b) either individually or in the aggregate, if
determined adversely, would reasonably be expected to have a Material Adverse Effect.



     5.07 No Default. Neither any Loan Party nor any Subsidiary thereof is in default under or
with respect to any Contractual Obligation that would, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has occurred and is
continuing or would result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.



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     5.08 Ownership of Property; Liens. Each of the Borrower and each Subsidiary has good record
and marketable title in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of its business, except for such defects in title as would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted by
Section 7.01.



     5.09 Environmental Compliance. The Borrower has reasonably concluded that the Borrower and
its Subsidiaries are in compliance with Environmental Laws and there are no claims that would,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



     5.10 Insurance. The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Borrower, in such
amounts, with such deductibles and covering such risks as are reasonable for its business.



     5.11 Taxes. The Borrower and its Subsidiaries have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all Federal, state and other
material taxes, assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP or where no Material Adverse Effect reasonably
would be expected to result. There is no proposed tax assessment against the Borrower or any
Subsidiary that would, if made, have a Material Adverse Effect. Neither any Loan Party nor any
Subsidiary thereof is party to any tax sharing agreement with any Person other than the Borrower
and the Subsidiaries in the ordinary course.



     5.12 ERISA Compliance.




     (a) Each Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify
under Section 401(a) of the Code has received a favorable determination letter from the IRS
or an application for such a letter is currently being processed by the IRS with respect
thereto and, to the best knowledge of the Borrower, nothing has occurred which would
prevent, or cause the loss of, such qualification. The Borrower and each ERISA Affiliate
have made all required contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period pursuant to
Section 412 of the Code has been made with respect to any Plan.




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



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     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension
Plan has any Unfunded Pension Liability; (iii) neither the Borrower nor any ERISA Affiliate
has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not delinquent under Section 4007
of ERISA); (iv) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of
ERISA with respect to a Multiemployer Plan; and (v) neither the Borrower nor any ERISA
Affiliate has engaged in a transaction that is subject to Section 4069 or 4212(c) of ERISA.



     5.13 Subsidiaries; Equity Interests. The Borrower has no Subsidiaries other than those
specifically disclosed in Part (a) of Schedule 5.13, and all of the outstanding Equity
Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and,
except as set forth on Schedule 5.13, are owned by a Loan Party in the amounts specified on
Part (a) of Schedule 5.13 free and clear of all Liens (other than restrictions set forth in
the Organizational Documents of such Subsidiary). The Borrower has no equity investments in any
other corporation or entity other than those specifically disclosed in Part (b) of Schedule
5.13 and other than those in the ordinary course of business. All of the outstanding Equity
Interests in the Borrower have been validly issued and are fully paid and nonassessable.



     5.14 Margin Regulations; Investment Company Act; Other Regulations.




     (a) The Borrower is not engaged and will not engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the FRB), or extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB).




     (b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is
subject to regulation under the Investment Company Act of 1940, the Energy Policy Act of
2005, the Federal Power Act, the Interstate Commerce Act, or any state public utilities
code.



     5.15 Disclosure. The Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries
is subject, and all other matters known to it, that, individually or in the aggregate, would
reasonably be expected to result in a Material Adverse Effect. No report, financial statement,
certificate or other information furnished (whether in writing or orally) by or on behalf of any
Loan Party to the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other
Loan Document (in each case, as modified or supplemented by other information so furnished)
contains as of the date provided or as of which it speaks any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with respect to
projected financial information, the Borrower represents only that such



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information was prepared in good faith based upon assumptions believed to be reasonable at the
time. Any disclosure by Borrower and/or its Subsidiaries called for under this Agreement, other
than disclosures under Section 6.01, shall be satisfied if such information is publicly
filed by the Borrower with the SEC.



     5.16 Compliance with Laws. Each Loan Party and each Subsidiary thereof is in compliance in
all material respects with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect.



     5.17 Taxpayer Identification Number. The Borrower’s true and correct U.S. taxpayer
identification number is set forth on Schedule 10.02.



     5.18 Intellectual Property; Licenses, Etc. The Borrower and its Subsidiaries own, or possess
the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person. To the best knowledge of the Borrower, no
slogan or other advertising device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Borrower or any Subsidiary infringes upon any
rights held by any other Person other than as would not be reasonably expected to have a Material
Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to the best
knowledge of the Borrower, threatened, which, either individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.



     5.19 Solvency. The Borrower and its Subsidiaries are, on a consolidated basis, Solvent.



     5.20 Common Enterprise. The Borrower and its Subsidiaries are engaged in the businesses
described on Schedule 5.20 as of the Closing Date: These operations require financing on a
basis such that the credit supplied can be made available from time to time to the Borrower and
various of its Subsidiaries, as required for the continued successful operation of the Borrower and
its Subsidiaries as a whole. The Borrower has requested the Lender to make credit available
hereunder primarily for the purposes set forth in Section 6.11 and generally for the
purposes of financing the operations of the Borrower and its Subsidiaries. The Borrower and each
of its Subsidiaries expects to derive benefit (and the Board of Directors of the Borrower has
determined that such Subsidiary may reasonably be expected to derive benefit), directly or
indirectly, from a portion of the credit extended by the Lenders hereunder, both in its separate
capacity and as a member of the group of companies, since the successful operation and condition of
the Borrower and each of its Subsidiaries is dependent on the continued successful performance of
the functions of the group as a whole.



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     5.21 Burdensome Agreements. Neither the Borrower nor any Subsidiary is in default under any
indenture, loan agreement, credit agreement, lease or other agreement or instrument, or subject to
any restriction of its constituent documents, that would, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has occurred and is
continuing or would result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.



     5.22 Collateral. For the avoidance of doubt, Administrative Agent and each Lender recognizes
and acknowledges that the Collateral includes Equity Interests in Broker Dealer Subsidiaries of
Borrower and that (i) the disposition or transfer of such Equity Interests, (ii) any direct or
indirect change of control of any Broker Dealer Subsidiary, (iii) any direct or indirect exercise
of management control or other control over any Broker Dealer Subsidiary, and (iv) payment of
dividends and distributions by any Broker Dealer Subsidiary is subject to regulatory restrictions
(including the need to obtain the consent or approval of applicable self regulatory authorities and
other applicable regulatory authorities) and that the creation of the pledge in such Equity
Interests may require notification to applicable regulatory authorities. For the avoidance of
doubt, Administrative Agent and each Lender recognizes and agrees that the representations and
warranties and covenants in this Agreement or the other Loan Documents shall not be breached solely
by reason of the existence of regulatory restrictions, or requirements for obtaining consent or
approval from regulatory authorities solely in respect of the enforcement of any rights and
remedies under the Loan Documents or the enforcement of any pledge of the securities of or exercise
of rights over any Broker Dealer Subsidiary. Without limiting the foregoing, Administrative Agent
and each Lender acknowledges and agrees that in respect of Penson Financial Services Canada Inc.,
the Investment Industry Regulatory Organization of Canada, the Montreal Exchange, the Toronto Stock
Exchange, the TSX Venture Exchange and/or any other applicable governmental, regulatory or
self-regulatory agency or body having jurisdiction over Penson Financial Services Canada Inc.,
and/or each of their respective successor organizations shall each be considered applicable self
regulatory authorities.



ARTICLE VI.

AFFIRMATIVE COVENANTS




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



     6.01 Financial Statements. Deliver to the Administrative Agent and each Lender, in form and
detail reasonably satisfactory to the Administrative Agent and the Required Lenders:




     (a) as soon as available, but in any event within 90 days after the end of each fiscal
year of the Borrower (commencing with the fiscal year ended December 31, 2008), a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal
year, and the related consolidated statements of income or operations, shareholders’ equity
and cash flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and prepared in accordance



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with GAAP, such consolidated statements to be audited and accompanied by (i) a report
and opinion of a Registered Public Accounting Firm of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and applicable Securities Laws and
shall not be subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit or with respect to the absence of
any material misstatement and (ii) if and when applicable, an opinion of such Registered
Public Accounting Firm independently assessing the Borrower’s internal controls over
financial reporting in accordance with Item 308 of SEC Regulation S-K, PCAOB Auditing
Standard No. 2, and Section 404 of Sarbanes-Oxley expressing a conclusion that contains no
statement that there is a material weakness in such internal controls, except for such
material weaknesses as to which the Required Lenders do not object; and




     (b) as soon as available, but in any event within 45 days after the end of each fiscal
quarter of each fiscal year of the Borrower (commencing with the fiscal quarter ended March
31, 2009 and including each fiscal quarter ending December 31 of each fiscal year), a
consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as at the
end of such fiscal quarter, and the related consolidated and consolidating statements of
income or operations, shareholders’ equity and cash flows for such fiscal quarter and for
the portion of the Borrower’s fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter of the previous fiscal
year and the corresponding portion of the previous fiscal year, all in reasonable detail,
such consolidated and consolidating statements to be certified by the chief executive
officer, chief financial officer, treasurer or controller of the Borrower as fairly
presenting the financial condition, results of operations, shareholders’ equity and cash
flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes and such consolidating statements to
be certified by the chief executive officer, chief financial officer, treasurer or
controller of the Borrower to the effect that such statements are fairly stated in all
material respects when considered in relation to the consolidated financial statements of
the Borrower and its Subsidiaries; and




     (c) as soon as available, but in any event before the end of each fiscal year of the
Borrower, forecasts prepared by management of the Borrower, in form reasonably satisfactory
to the Administrative Agent and the Required Lenders, of consolidated statements of income
or operations of the Borrower and its Subsidiaries on a monthly basis for the immediately
following fiscal year (including the fiscal year in which the Maturity Date occurs).



     As to any information contained in materials furnished pursuant to Section 6.02(c),
the Borrower shall not be separately required to furnish such information under clause (a) or (b)
above, but the foregoing shall not be in derogation of the obligation of the Borrower to furnish
the information and materials described in clauses (a) and (b) above at the times specified
therein.



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     6.02 Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in
form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:




     (a) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b) (commencing with the delivery of the financial
statements for the fiscal quarter ended March 31, 2009), a duly completed Compliance
Certificate signed by the chief executive officer, chief financial officer, treasurer or
controller of the Borrower;




     (b) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of the Borrower by independent
accountants in connection with the accounts or books of the Borrower or any Subsidiary, or
any audit of any of them;




     (c) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of the
Borrower, and copies of all annual, regular, periodic and special reports and registration
statements which the Borrower may file or be required to file with the SEC under Section 13
or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered
to the Administrative Agent pursuant hereto;




     (d) promptly, and in any event within five Business Days after receipt thereof by any
Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received
from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any
investigation or possible investigation or other inquiry by such agency regarding financial
or other operational results of any Loan Party or any Subsidiary thereof, unless such
investigation is in the ordinary course of business or would not reasonably be expected to
have a Material Adverse Effect; and




     (e) promptly, such additional information regarding the business, financial or
corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably
request.



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or
any Lender that requests the Borrower to deliver such paper copies until a written request to cease



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delivering paper copies is given by the Administrative Agent or such Lender and (ii) the
Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail)
of the posting of any such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Notwithstanding anything
contained herein, in every instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(a) to the Administrative Agent. Except
for such Compliance Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.



     6.03 Notices. Promptly notify the Administrative Agent and each Lender:




     (a) of the occurrence of any Default;




     (b) of any matter that has resulted or would reasonably be expected to result in a
Material Adverse Effect, including as a result of (i) breach or non-performance of, or any
default under, a Contractual Obligation of the Borrower or any Subsidiary; (ii) any dispute,
litigation, investigation, proceeding or suspension between the Borrower or any Subsidiary
and any Governmental Authority; or (iii) the commencement of, or any material development
in, any litigation or proceeding affecting the Borrower or any Subsidiary, including
pursuant to any applicable Environmental Laws;




     (c) of the occurrence of any ERISA Event;




     (d) of any material change in accounting policies or financial reporting practices by
the Borrower or any Subsidiary; and




     (e) of the determination by the Registered Public Accounting Firm providing the opinion
required under Section 6.01(a)(ii) (in connection with its preparation of such
opinion) or the Borrower’s determination at any time of the occurrence or existence of any
Internal Control Event; and




     (f) of the sale by the Borrower of any of its capital stock or other Equity Interest
(except as contemplated under the 2000 Stock Incentive Plan or securities issued upon
exercise of stock options issued to employees, directors or contractors of the Borrower or
its Subsidiaries; provided, however, at the request of the Administrative
Agent, the Borrower shall provide any information regarding such sales to the Administrative
Agent).



     Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth material details of the occurrence referred to
therein and stating what action the Borrower has taken and proposes to take with respect thereto.
Each notice pursuant to Section 6.03(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that have been breached.



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     6.04 Payment of Obligations. (a) Except to the extent no Material Adverse Effect would result
or an Event of Default under Section 8.01(e) would not occur from the applicable failure,
pay and discharge as the same shall become due and payable, (i) all tax liabilities, assessments
and governmental charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary, and (ii) all
Indebtedness, as and when due and payable, but subject to any subordination provisions contained in
any instrument or agreement evidencing such Indebtedness and (b) pay and discharge all lawful
claims which, if unpaid, would by Law become a Lien upon its property except to the extent such
Lien is otherwise permitted by another Section of this Agreement, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary.



     6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence and good standing under the Laws of the jurisdiction of its organization
except in a transaction permitted by Section 7.04 or 7.05 or to the extent no
Material Adverse Effect would result; (b) take commercially reasonable action to maintain all
rights, privileges, permits, licenses and franchises necessary in the normal conduct of its
business, except to the extent that failure to do so would not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade
names and service marks, the non-preservation of which would reasonably be expected to have a
Material Adverse Effect.



     6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its tangible
properties and equipment in the operation of its business in good working order and condition,
ordinary wear and tear excepted; and (b) make all necessary repairs thereto and renewals and
replacements thereof, except in case of clauses (a) and (b) if the failure to do so would not
reasonably be expected to have a Material Adverse Effect or would not violate Section 7.05
hereof.



     6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of the Borrower, insurance with respect to its properties and business, in
such amounts, with such deductibles and covering such risks as are reasonable for its business and
providing for not less than 30 days’ prior notice to the Administrative Agent of termination, lapse
or cancellation of such insurance and designating the Administrative Agent as an additional
insured, if applicable; provided, however, if such insurance company refuses to
provide insurance on such terms, Borrower may maintain insurance on such other terms as is
customarily maintained by companies in the same or similar businesses similarly situated.



     6.08 Compliance with Laws and Material Contracts. Comply in all material respects with the
requirements of (a) all Material Contracts and (b) all Laws and all orders, writs, injunctions and
decrees applicable to it or to its business or property, except in such instances in which (x) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted; or (y) the failure to comply with any such Material
Contract or Law would not reasonably be expected to have a Material Adverse Effect.



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



     6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and independent public
accountants, all at the expense of the Administrative Agent and each Lender and at such reasonable
times during normal business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Borrower; provided, however, that when an Event of Default
exists the Administrative Agent or any Lender (or any of their respective representatives or
independent contractors) may do any of the foregoing at the expense of the Borrower at any time
during normal business hours and without advance notice.



     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions (a) to provide equity capital
or loans to its Subsidiaries not in contravention of any Law or any Loan Document and (b) for
general corporate purposes, including providing working capital for itself and its Subsidiaries not
in contravention of any Law or of any Loan Document.



     6.12 Additional Subsidiaries. Within twenty days after the time that any Person becomes a
Material Domestic Subsidiary as a result of the creation of such Material Domestic Subsidiary, an
acquisition, or otherwise, then, unless such Material Domestic Subsidiary is merged into the
Borrower (with the Borrower being the surviving Person) prior to the expiration of such twenty day
period, (a) 100% of such Material Domestic Subsidiary’s Equity Interests shall be pledged to secure
the Obligations, and (b) the Administrative Agent shall receive such board resolutions, officer’s
certificates, corporate and other documents and opinions of counsel as the Administrative Agent
shall reasonably request in connection with such pledge. Within forty-five days after the time
that any Person becomes a Material Foreign Subsidiary as a result of the creation of such Material
Foreign Subsidiary, an acquisition or otherwise, (a) 65% of such Material Foreign Subsidiary’s
Equity Interests shall be pledged to secure the Obligations, and (b) the Administrative Agent shall
receive such board resolutions, officer’s certificates, corporate and other documents and opinions
of counsel as the Administrative Agent shall reasonably request in connection with such pledge;
provided, however, that if a pledge of the Equity Interests of a Material Foreign
Subsidiary would result in adverse tax consequences, the Borrower may provide an opinion of counsel
acceptable to the Administrative Agent addressing such adverse tax consequences and, upon the
consent of the Required Lenders (such consent not to be unreasonably withheld), such pledge shall
not be required. Provided further, that if a Material Domestic Subsidiary or Material
Foreign Subsidiary is a Subsidiary of an entity which is already the subject of a pledge in favor
of Administrative Agent under the Loan Documents, such Material Domestic Subsidiary or Material
Foreign Subsidiary need not be so pledged. Notwithstanding the foregoing, in no event shall any
Broker Dealer Subsidiary be required to be a Guarantor or a pledgor.



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ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly:



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




     (a) Liens pursuant to any Loan Document;




     (b) Liens existing on the date hereof and listed on Schedule 7.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby is
not changed, (ii) the amount secured or benefited thereby is not increased except as
contemplated by Section 7.03(b), (iii) the direct or any contingent obligor with
respect thereto is not changed, and (iv) any renewal or extension of the obligations secured
or benefited thereby is permitted by Section 7.03(b);




     (c) Liens for taxes not yet due or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP;




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




     (e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any
Lien imposed by ERISA;




     (f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory or regulatory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature and security deposits incurred in the ordinary
course of business;




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




     (h) Liens securing judgments for the payment of money not constituting an Event of
Default under Section 8.01(h);



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     (i) Liens securing Indebtedness permitted under Section 7.03(d);
provided that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not
exceed the cost or fair market value, whichever is lower, of the property being acquired on
the date of acquisition; and




     (j) Liens securing the Short Term Subsidiary Indebtedness permitted under Section
7.03(e); provided that such Liens do not at any time encumber any property other
than the property financed by such Short Term Subsidiary Indebtedness (and proceeds
thereof).




     (k) any interest or title of a lessor or licensor in the property subject to any
capital lease or operating lease or license;




     (l) Liens arising from filing Uniform Commercial Code financing statements regarding
leases or precautionary filings;




     (m) Liens in favor of the Borrower or a Subsidiary in the ordinary course of business;




     (n) Liens arising from the rendering of a final judgment or order against the Borrower
or a Subsidiary that does not give rise to an Event of Default;




     (o) Liens which constitute rights of set-off of a customary nature or bankers’ liens or
securities intermediaries’ liens with respect to amounts on deposit or investment property,
as applicable, whether arising by operation of law or by contract, in connection with
arrangements entered into with banks or securities intermediaries in the ordinary course of
business;




     (p) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods; and




     (q) Liens otherwise expressly permitted by the Loan Documents.



     7.02 Investments. Make any Investments, except:




     (a) Investments held by the Borrower or such Subsidiary in the form of cash, Cash
Equivalents and short-term marketable securities and other securities held by Broker Dealer
Subsidiaries in the ordinary course of business;




     (b) advances to officers, directors and employees of the Borrower and Subsidiaries in
an aggregate amount not to exceed $500,000 at any time outstanding or $50,000 for any
individual at any time outstanding, for travel, entertainment, relocation and analogous
ordinary business purposes;



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     (c) Investments of the Borrower in any wholly-owned or majority owned Subsidiary and
Investments of any wholly-owned Subsidiary in the Borrower or in another wholly-owned or
majority owned Subsidiary;




     (d) Investments consisting of extensions of credit in the ordinary course of business
or in the nature of accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the extent
reasonably necessary in order to prevent or limit loss;




     (e) Investments existing on the date hereof and as set forth on Schedule 7.02;




     (f) Investments constituting acquisitions of the Equity Interests of a Person or
acquisitions of property which do not constitute a controlling interest in such existing
business, to the extent that such Investments do not exceed $5,000,000 for any single
acquisition or $20,000,000 in the aggregate during any fiscal year; provided,
however, that this clause (f) shall not include any Equity Repurchases;




     (g) Equity Repurchases; and




     (h) Investments otherwise permitted in this Agreement.



     7.03 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:




     (a) Indebtedness under the Loan Documents;




     (b) Indebtedness outstanding on the date hereof and listed on Schedule 5.05 and
any refinancings, refundings, renewals or extensions thereof; provided that (i) the
amount of such Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to a reasonable premium or other reasonable
amount paid, and fees and expenses reasonably incurred, in connection with such refinancing
and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms
relating to principal amount, amortization, maturity, collateral (if any) and subordination
(if any), and other material terms taken as a whole, of any such refinancing, refunding,
renewing or extending Indebtedness, and of any agreement entered into and of any instrument
issued in connection therewith, are no less favorable in any material respect to the Loan
Parties or the Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded, renewed or extended and the interest rate
applicable to any such refinancing, refunding, renewing or extending Indebtedness does not
exceed the then applicable market interest rate;




     (c) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or
arising under any Swap Contract, provided that (i) such obligations are (or were)
entered into by such Person in the ordinary course of business for the purpose of directly
mitigating risks associated with liabilities, commitments, investments, assets, or property
held or reasonably anticipated by such Person, or changes in the value of securities issued
by such Person, and not for purposes of speculation or taking a “market



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view;” and (ii) such Swap Contract does not contain any provision exonerating the
non-defaulting party from its obligation to make payments on outstanding transactions to the
defaulting party;




     (d) Indebtedness in respect of capital leases, Synthetic Lease Obligations, and
purchase money obligations for fixed or capital assets within the limitations set forth in
Section 7.01(i); provided, however, that the aggregate amount of all
such Indebtedness permitted in this Section 7.03(d) at any one time outstanding
shall not exceed $25,000,000;




     (e) the Short Term Subsidiary Indebtedness;




     (f) Indebtedness of types incurred by the Borrower or any of the Subsidiaries
consistent with the historical practices and the ordinary course of business of any of the
Subsidiaries or of the Borrower (determined as of the date hereof), including (i) Guarantees
related to a customer’s or Subsidiary’s ordinary trade activities, including but not limited
to those made in favor of exchanges, market centers, third party clearing firms,
counterparties, record keeping centers or technology providers and (ii) Guarantees made in
favor of lenders to a Subsidiary’s customers required in connection with such customers’
purchase of exchange seats or memberships, provided that the relevant
exchange seat or membership’s value is, at the time the Guarantee is made, at least twice
the principal amount of the Indebtedness so Guaranteed; and




     (g) Guarantees by the Borrower not otherwise permitted by this Section 7.03 of
obligations in an aggregate amount not to exceed $35,000,000 at any one time; provided that
no single Guarantee shall exceed a notional or principal amount of $10,000,000 and further
provided that all Guarantees existing or contemplated as of the date hereof are listed on
the attached Schedule 7.03(g).



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




     (a) any Subsidiary may merge with (i) the Borrower, provided that the Borrower
shall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries,
provided that when any wholly-owned Subsidiary or Guarantor is merging with another
Subsidiary, the wholly-owned Subsidiary or such Guarantor (as applicable) shall be the
continuing or surviving Person; and




     (b) any Subsidiary may Dispose of all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or to another Subsidiary consistent with
the terms of this Agreement, including Section 7.02 and Section 7.05;
provided that if the transferor in such a transaction is a Guarantor, then the
transferee must either be the Borrower or a Guarantor.



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     7.05 Dispositions. Make any Disposition or enter into any agreement to make any Disposition,
except:




     (a) Dispositions of obsolete or worn out property, whether now owned or hereafter
acquired, in the ordinary course of business;




     (b) Dispositions permitted by Section 7.04;




     (c) other Dispositions of assets not included in clauses (a), (b) or (d) where the
aggregate sales price does not exceed $20,000,000 in the aggregate for all Dispositions in
any fiscal year and the Net Cash Proceeds are paid to the Administrative Agent as required
by Section 2.05(d); and




     (d) Dispositions of assets in the ordinary course of business consistent with
historical practice


provided, however, that any Disposition pursuant to clauses (a), (b), (c) and (d)
shall be for fair market value.




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




     (a) each Subsidiary may make Restricted Payments to the Borrower and any other Person
that owns an Equity Interest in such Subsidiary, ratably according to their respective
holdings of the type of Equity Interest in respect of which such Restricted Payment is being
made;




     (b) the Borrower and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity Interests of such
Person;




     (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity
Interests issued by it with the proceeds received from the substantially concurrent issue of
new shares of its common stock or other common Equity Interests;




     (d) the Borrower may issue and sell its common Equity Interests and JBO Stock;




     (e) the Borrower may issue (i) restricted stock units issued pursuant to the 2000 Stock
Incentive Plan, (ii) securities issuable upon exercise of stock options, and (iii)
securities pursuant to the Borrower’s employee stock purchase plan; and




     (f) Equity Repurchases.



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     7.07 Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by the Borrower and its Subsidiaries on the date
hereof or any business substantially related or incidental thereto (it being agreed that a change
in customer mix or the addition of new types of customers shall not be deemed to be a change in the
nature of the business).



     7.08 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate
of the Borrower, whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s length transaction
with a Person other than an Affiliate.



     7.09 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement
or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted
Payments to the Borrower or any Subsidiary or to otherwise transfer property to the Borrower or any
Subsidiary, (ii) of any Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of the
Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such
Person; provided, however, that this clause (iii) shall not prohibit any negative
pledge incurred or provided in favor of any holder of Indebtedness permitted under Section
7.03(d) solely to the extent any such negative pledge relates to the property financed by or
the subject of such Indebtedness; or (b) requires the Borrower or any Subsidiary to grant a Lien to
secure an obligation of any Person if the Borrower or any Subsidiary were to grant a Lien to secure
another of its obligations to another Person.



     7.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U of the FRB) or to refund
indebtedness originally incurred for such purpose.



     7.11 Sale and Leaseback. Enter into any Sale and Leaseback Transactions with a value in
excess of $20,000,000 in the aggregate per fiscal year (directly or indirectly) with any Person
other than among the Borrower and any Subsidiary (to the extent such transaction is otherwise
permitted hereunder).



     7.12 Change in Fiscal Year or Accounting Methods. Change its fiscal year or its method of
accounting (other than immaterial changes in methods or as required by GAAP).



     7.13 Prepayment of Indebtedness. Prepay any Indebtedness other than (a) the Obligations or
(b) other Indebtedness not to exceed $20,000,000 in the aggregate during any fiscal year.



     7.14 Material Contracts. Amend, supplement or otherwise modify the terms of any Material
Contract or take any other action in connection with any Material Contract that would impair the
value of the interests or rights of the Borrower or any Subsidiary except as would not have a
Material Adverse Effect.



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     7.15 Management Fees. Pay any management fee or similar compensation except such to Persons
and in amounts consistent with historical practice and in the ordinary course of business or to
Borrower or its Subsidiaries.



     7.16 Financial Covenants.




     (a) Consolidated Tangible Net Worth. Permit Consolidated Tangible Net Worth at
any time to be less than $***; increasing quarterly by an amount equal to ***% of the net
aggregate increases in Shareholders’ Equity of the Borrower and its Subsidiaries after the
date hereof by reason of the issuance and sale of Equity Interests of the Borrower or any
Subsidiary (other than issuances to the Borrower or a wholly-owned Subsidiary, issuances of
restricted stock units pursuant to the 2000 Stock Incentive Plan, securities issued upon the
exercise of stock options, or issuances of securities pursuant to the Borrower’s employee
stock purchase plan), including upon any conversion of debt securities of the Borrower into
such Equity Interests.




     (b) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed
Charge Coverage Ratio as of the end of any fiscal quarter measured quarterly in arrears on a
rolling four quarter basis of the Borrower to be less than *** to ***.




     (c) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of
the end of any fiscal quarter measured quarterly in arrears on a rolling four quarter basis
to be greater than *** to ***.




     (d) Minimum Capital Requirement. Permit PFS to maintain Regulatory Capital
less than *** percent (***%) of its Debit Balances for more than three consecutive Borrower
business days.




     (e) Minimum Liquidity Requirement. Permit the Borrower to maintain
Unencumbered Liquidity in an amount less than the Total Outstandings at any time.




     (f) Capital Expenditures. Make or become legally obligated to make any Capital
Expenditure, except for Capital Expenditures not exceeding, in the aggregate for the
Borrower and its Subsidiaries, $*** during each fiscal year.



     7.17 Amendments to 2000 Stock Incentive Plan. Amend, supplement or otherwise modify the
material terms of the 2000 Stock Incentive Plan; provided, however, that the
Borrower may amend the 2000 Stock Incentive Plan to increase the available securities by one
million additional common stock securities.



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:




     (a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when
due, any amount of principal of any Loan or any Letter of Credit Obligation, or



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(ii) within three days after the same becomes due, any interest on any Loan or on any Letter
of Credit Obligation, or any fee due hereunder, or (iii) within five days after the same
becomes due, any other amount payable hereunder or under any other Loan Document; or




     (b) Specific Covenants. The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01, 6.03, 6.05,
6.10, or 6.11 or Article VII; or




     (c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for 30 days; or




     (d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the Borrower or
any other Loan Party herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith shall be incorrect or misleading when made or deemed made;
or




     (e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder
and Indebtedness under Swap Contracts) having an aggregate principal amount (including
undrawn committed or available amounts and including amounts owing to all creditors under
any combined or syndicated credit arrangement) of more than the Threshold Amount in the
aggregate, or (B) fails to observe or perform any other agreement or condition relating to
any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap Contract as to which the
Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B)
any Termination Event (as so defined) under such Swap Contract as to which the Borrower or
any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater
than the Threshold Amount in the aggregate; or



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     (f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Bankruptcy Law, or
makes an assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Bankruptcy Law relating to any
such Person or to all or any material part of its property is instituted without the consent
of such Person and continues undismissed or unstayed for 60 calendar days, or an order for
relief is entered in any such proceeding; or




     (g) Inability to Pay Debts; Attachment. (i) The Borrower or any Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its debts as
they become due, or (ii) any writ or warrant of attachment or execution or similar process
is issued or levied against all or any material part of the property of any such Person and
is not released, vacated or fully bonded within 60 days after its issue or levy; or




     (h) Judgments. There is entered against the Borrower or any Subsidiary (i) one
or more final judgments or orders for the payment of money in an aggregate amount (as to all
such judgments or orders) exceeding the Threshold Amount (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or would reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect and, in either case,
(A) enforcement proceedings are commenced by any creditor upon such judgment or order, or
(B) there is a period of 10 consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect; or




     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or would reasonably be expected to result in liability
of the Borrower or any Subsidiary under Title IV of ERISA to the Pension Plan, Multiemployer
Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the
Borrower, any Subsidiary or any ERISA Affiliate fails to pay when due, after the expiration
of any applicable grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
excess of the Threshold Amount; or




     (j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases to be in full force and
effect; or any Loan Party or any other Person contests in any manner the validity or
enforceability of any Loan Document; or any Loan Party denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke, terminate or rescind
any Loan Document; or



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     (k) Change of Control. There occurs any Change of Control.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:




     (a) declare the commitment of each Lender to make Loans and any obligation of the
Letter of Credit Issuer to make Letter of Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;




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




     (c) require that the Borrower Cash Collateralize the Letter of Credit Obligations (in
an amount equal to the then Outstanding Amount thereof); and




     (d) exercise on behalf of itself, the Lenders and the Letter of Credit Issuer all
rights and remedies available to it, the Lenders and the Letter of Credit Issuer under the
Loan Documents;


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans and any obligation of the Letter of Credit Issuer to make
Letter of Credit Extensions shall automatically terminate, the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall automatically become due
and payable, and the obligation of the Borrower to Cash Collateralize the Letter of Credit
Obligations as aforesaid shall automatically become effective, in each case without further act of
the Administrative Agent or any Lender.




     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the Letter
of Credit Obligations have automatically been required to be Cash Collateralized as set forth in
the proviso to Section 8.02), any amounts received on account of the Obligations shall be
applied by the Administrative Agent in the following order:




     First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including reasonable fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under Article
III) payable to the Administrative Agent in its capacity as such;




     Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal, interest, amounts owing under any Swap
Contracts, Letter of Credit Fees and Fronting Fees) payable to the Lenders and the Letter of
Credit Issuer (including reasonable fees, charges and disbursements of counsel



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to the
respective Lenders and the Letter of Credit Issuer and amounts payable under
Article III), ratably among them in proportion to the respective amounts
described in this clause Second payable to them;




     Third, to payment of that portion of the Obligations constituting accrued and
unpaid Letter of Credit Fees, Fronting Fees, and interest on the Loans, Letter of Credit
Borrowings and other Obligations, ratably among the Lenders and the Letter of Credit Issuer
in proportion to the respective amounts described in this clause Third payable to
them;




     Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and Letter of Credit Borrowings, ratably among the Lenders and the
Letter of Credit Issuer in proportion to the respective amounts described in this clause
Fourth held by them;




     Fifth, to the Administrative Agent for the account of the Letter of Credit
Issuer, to Cash Collateralize that portion of Letter of Credit Obligations comprised of the
aggregate undrawn amount of Letters of Credit;




     Sixth, to payment of that portion of the Obligations constituting all amounts
owed under any Swap Contract included in the Obligations (at the Swap Termination Value),
ratably among the Lenders in proportion to the respective amounts described in this clause
Sixth held by them;




     Seventh, to any remaining outstanding and unpaid Obligations, ratably among the
Lenders in proportion to the respective amounts described in this clause Seventh
held by them; and




     Last, the balance, if any, after all of the Obligations have been indefeasibly
paid in full, to the Borrower or as otherwise required by Law.


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




ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authority. Each of the Lenders and the Letter of Credit Issuer hereby
irrevocably appoints Regions Bank to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof
or thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative



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Agent, the Lenders and
the Letter of Credit Issuer, and the Borrower shall not have rights as a third party beneficiary of
any of such provisions.



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



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




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




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




     (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its Affiliates in any
capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or the Letter of Credit Issuer.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this



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



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



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



     9.06 Resignation or Removal of Administrative Agent. The Administrative Agent may at any time
give notice of its resignation to the Lenders, the Letter of Credit Issuer and the Borrower, and
the Administrative Agent may be removed at any time with or without cause by the Required Lenders.
Upon any such resignation or removal, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor, which shall be a bank with an office in the United
States, or an Affiliate of any such bank with an office in the United States. If no such successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent’s giving of notice of its resignation or the
Required Lenders’ removal of the retiring Administrative Agent, then the retiring Administrative
Agent may on behalf of the Lenders and the Letter of Credit Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth



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above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation or removal shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan
Documents and (2) all payments, communications and determinations provided to be made by, to
or through the Administrative Agent shall instead be made by or to each Lender and the Letter of
Credit Issuer directly, until such time as the Required Lenders appoint a successor Administrative
Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the retiring Administrative Agent’s resignation or removal hereunder and under
the other Loan Documents, the provisions of this Article and Section 10.04 shall continue
in effect for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.



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



     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the Letter of
Credit Issuer acknowledges that it has, independently and without reliance upon the Administrative
Agent or any other Lender or any of their Related Parties and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender and the Letter of Credit Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.



     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, neither the Joint
Lead Arrangers nor the Syndication Agent listed on the cover page hereof shall have



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any powers,
duties or responsibilities under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, a Lender or the Letter of Credit Issuer
hereunder.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Bankruptcy Law or any other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or Letter of Credit
Obligation shall then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall
be entitled and empowered, by intervention in such proceeding or otherwise




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, Letter of Credit Obligations and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary or advisable
in order to have the claims of the Lenders, the Letter of Credit Issuer and the
Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the Letter of Credit Issuer and the
Administrative Agent and their respective agents and counsel and all other amounts due the
Lenders, the Letter of Credit Issuer and the Administrative Agent under Sections
2.03(i) and (j), 2.09 and 10.04) allowed in such judicial
proceeding; and




     (b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the Letter of Credit Issuer
to make such payments to the Administrative Agent and, in the event that the Administrative Agent
shall consent to the making of such payments directly to the Lenders and the Letter of Credit
Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and
any other amounts due the Administrative Agent under Sections 2.09 and 10.04.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the Letter of Credit Issuer any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of
any Lender or the Letter of Credit Issuer to authorize the Administrative Agent to vote in respect
of the claim of any Lender or the Letter of Credit Issuer in any such proceeding.



     9.10 Collateral and Guaranty Matters. Lenders and the Letter of Credit Issuer irrevocably
authorize Administrative Agent, at its option and in its discretion,




     (a) to release any Lien on any property granted to or held by Administrative Agent
under any Loan Document (i) upon termination of the commitment of each Lender to make Loans
and payment in full of all Obligations (other than contingent indemnification obligations)
and the expiration or termination of all Letters of Credit,



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(ii) that is sold or to be sold
as part of or in connection with any sale permitted hereunder or under any other Loan
Document, or (iii) subject to Section 10.01, if approved, authorized or ratified in
writing by the Required Lenders; and




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


Upon request by Administrative Agent at any time, the Required Lenders will confirm in writing
Administrative Agent’s authority to release or subordinate its interest in particular types or
items of property, or to release any Guarantor from its obligations under any Guaranty pursuant to
this Section 9.10.




ARTICLE X.

MISCELLANEOUS




     10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom,
shall be effective unless in writing signed by the Required Lenders and the Borrower or the
applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:




     (a) waive any condition set forth in Section 4.01(a) without the written
consent of each Lender;




     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written consent of such Lender;




     (c) postpone any date fixed by this Agreement or any other Loan Document for any
payment (not including any mandatory prepayment) of principal, interest, fees or other
amounts due to the Lenders (or any of them) or any scheduled or mandatory reduction of the
Total Commitments hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby;




     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or
Letter of Credit Borrowing, or (subject to clause (iv) of the second proviso to this
Section 10.01) any fees or other amounts payable hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;
provided, however, that only the consent of the Required Lenders shall be
necessary to amend the definition of “Default Rate” or to waive any obligation of the
Borrower to pay interest or Letter of Credit Fees at the Default Rate;




     (e) change Section 2.13 or Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of each
Lender;



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     (f) change any provision of this Section or the definition of “Required Lenders,” or
any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder without the written consent of each Lender;




     (g) release any Guarantor from any Guaranty or all or substantially all of the value of
any Guaranty without the written consent of each Lender, except to the extent the release of
any Guarantor is permitted pursuant to Section 9.10 (in which case such release may
be made by Administrative Agent acting alone); or




     (h) release all or substantially all of the collateral securing the Obligations without
the written consent of each Lender, except for collateral sold or otherwise disposed as
permitted in the Loan Documents, and except to the extent the release of any collateral is
permitted pursuant to Section 9.10 (in which case such release may be made by
Administrative Agent acting alone) or this Section 10.01;


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Letter of Credit Issuer in addition to the Lenders required above, affect
the rights or duties of the Letter of Credit Issuer under this Agreement or any Issuer Document
relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent
shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required
above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the Administrative Agent
under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights
or privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender.




     10.02 Notices; Effectiveness; Electronic Communication.




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




     (i) if to the Borrower, the Administrative Agent, the Letter of Credit Issuer
or the Swing Line Lender, to the address, telecopier number, electronic mail address
or telephone number specified for such Person on Schedule 10.02; and



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     (ii) if to any other Lender, to the address, telecopier number, electronic mail
address or telephone number specified in its Administrative Questionnaire.


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





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




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




     (c) Change of Address, Etc. Each of the Borrower, the Administrative Agent,
the Letter of Credit Issuer and the Swing Line Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the other
parties hereto. Each other Lender may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the Borrower, the Administrative
Agent, the Letter of Credit Issuer and the Swing Line Lender. In addition, each Lender
agrees to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other communications may
be sent and (ii) accurate wire instructions for such Lender.



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     (d) Reliance by Administrative Agent, Letter of Credit Issuer and Lenders. The
Administrative Agent, the Letter of Credit Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Revolving Loan Notices and Swing
Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. The Borrower shall
indemnify the Administrative Agent, the Letter of Credit Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the Borrower.
All telephonic notices to and other telephonic communications with the Administrative Agent
may be recorded by the Administrative Agent, and each of the parties hereto hereby consents
to such recording.



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



     10.04 Expenses; Indemnity; Damage Waiver.




     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including
the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in
connection with the syndication of the credit facilities provided for herein, the
preparation, negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all out-of-pocket expenses incurred by the Letter of Credit Issuer in
connection with the issuance, amendment, renewal or extension of any Letter of Credit or any
demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Lender or the Letter of Credit Issuer (including the reasonable
fees, charges and disbursements of any counsel or advisors for the Administrative Agent, any
Lender or the Letter of Credit Issuer), in connection with the enforcement or protection of
its rights (A) in connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.




     (b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), the Syndication Agent, each Lender and the
Letter of Credit Issuer, and each Related Party of any of the foregoing Persons



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(each such
Person being called an “Indemnitee”) against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses (including the
reasonable fees, charges and disbursements of any counsel for any
Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third
party or by the Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the parties
hereto of their respective obligations hereunder or thereunder, the consummation of the
transactions contemplated hereby or thereby, or, in the case of the Administrative Agent
(and any sub-agent thereof) and its Related Parties only, the administration of this
Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the Letter of Credit Issuer
to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual
or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee
is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART,
OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by
the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such
Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such
Loan Party has obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.




     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason
fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), the Letter of Credit
Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to
the Administrative Agent (or any such sub-agent), the Letter of Credit Issuer or such
Related Party, as the case may be, such Lender’s Pro Rata Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or the Letter of Credit Issuer in its capacity
as such, or against any Related Party of any of the foregoing acting for the Administrative
Agent (or any such sub-agent) or Letter of Credit Issuer in connection with such capacity.
The obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.12(d).



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     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable Law, the Borrower shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or
Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in
subsection (b) above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed to such unintended recipients
by such Indemnitee through telecommunications, electronic or other information transmission
systems in connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby other than for direct or actual damages resulting from the
gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.




     (e) Payments. All amounts due under this Section shall be payable not later
than ten Business Days after demand therefor.




     (f) Survival. The agreements in this Section shall survive the resignation or
removal of the Administrative Agent, the Letter of Credit Issuer and the Swing Line Lender,
the replacement of any Lender, the termination of the Total Commitments and the repayment,
satisfaction or discharge of all the other Obligations.



     10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent, the Letter of Credit Issuer or any Lender, or the Administrative
Agent, the Letter of Credit Issuer or any Lender exercises its right of setoff, and such payment or
the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any settlement entered
into by the Administrative Agent, the Letter of Credit Issuer or such Lender in its discretion) to
be repaid to a trustee, receiver or any other party, in connection with any proceeding under any
Bankruptcy Law or otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the
Letter of Credit Issuer severally agrees to pay to the Administrative Agent upon demand its
applicable share (without duplication) of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon from the date of such demand to the date such payment
is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The
obligations of the Lenders and the Letter of Credit Issuer under clause (b) of the preceding
sentence shall survive the payment in full of the Obligations and the termination of this
Agreement.



     10.06 Successors and Assigns.




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



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Loan
Party may assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent and each Lender and no
Lender may assign or otherwise transfer any of its rights or obligations hereunder
except (i) to an assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of subsection (d) of
this Section, or (iii) by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the Letter of Credit Issuer and the
Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.




     (b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans (including for purposes of this subsection (b),
participations in Letter of Credit Obligations and in Swing Line Loans) at the time owing to
it); provided that any such assignment shall be subject to the following conditions:




     (i) Minimum Amounts. The aggregate amount of the Commitment (which for
this purpose includes Loans outstanding thereunder) or, if the Commitment is not
then in effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent
or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $7,500,000 or an amount equal to the entire remaining
amount of the assigning Lender’s Commitment and the Loans at the time owing to it,
unless each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consents (each such consent not
to be unreasonably withheld or delayed).




     (ii) Proportionate Amounts. Each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not apply to the Swing Line Lender’s
rights and obligations in respect of Swing Line Loans;




     (iii) Consents. In addition to the consent required by subsection
(b)(i) of this Section, the following consents are required:




     (A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) an Event of



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Default has
occurred and is continuing at the time of such assignment or
(2) such assignment is to a Lender, an Affiliate of a Lender or an
Approved Fund;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for each assignment; and




     (C) the consent of the Letter of Credit Issuer (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment that
increases the obligation of the assignee to participate in exposure under
one or more Letters of Credit (whether or not then outstanding);




     (iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount of $3,500 for each
assignment; provided, however, (A) no fee shall be due and payable
if any Assignor is assigning to an Affiliate of such Assignor and (B) the
Administrative Agent may, in its sole discretion, elect to waive such processing and
recordation fee in the case of any assignment. The assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.




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




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




Subject to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment and Assumption, have the rights
and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall,
to the extent of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits
of Sections 3.01, 3.04, 3.05, and 10.04 with respect to
facts and circumstances occurring prior to the effective date of such assignment. Upon
request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.



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     (c) Register. The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and
Letter of Credit Obligations owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”). The entries in the Register shall be presumptively correct,
and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.




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




     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 10.01 that affects such Participant.
Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 10.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.13 and
Section 10.07 as though it were a Lender.




     (e) Limitations upon Participant Rights. A Participant shall not be entitled
to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the participation sold
to such Participant, unless the sale of the participation to such Participant is made with
the Borrower’s prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 3.01 unless the
Borrower is notified of the



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participation sold to such Participant and such Participant agrees, for the benefit of
the Borrower, to comply with Section 3.01(e) as though it were a Lender.




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




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




     (h) Resignation as Letter of Credit Issuer or Swing Line Lender after
Assignment. Notwithstanding anything to the contrary contained herein, if at any time
Regions Bank assigns all of its Commitment and Loans pursuant to subsection (b) above,
Regions Bank may, (i) upon 30 days’ notice to the Borrower and the Lenders, resign as Letter
of Credit Issuer and/or (ii) upon 30 days’ notice to the Borrower, resign as Swing Line
Lender. In the event of any such resignation as Letter of Credit Issuer or Swing Line
Lender, the Borrower shall be entitled to appoint from among the Lenders a successor Letter
of Credit Issuer or Swing Line Lender hereunder; provided, however, that no
failure by the Borrower to appoint any such successor shall affect the resignation of
Regions Bank as Letter of Credit Issuer or Swing Line Lender, as the case may be. If
Regions Bank resigns as Letter of Credit Issuer, it shall retain all the rights, powers,
privileges and duties of the Letter of Credit Issuer hereunder with respect to all Letters
of Credit outstanding as of the effective date of its resignation as Letter of Credit Issuer
and all Letter of Credit Obligations with respect thereto (including the right to require
the Lenders to make Base Rate Revolving Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)). If Regions Bank resigns as Swing Line Lender,
it shall retain all the rights of the Swing Line Lender provided for hereunder with respect
to Swing Line Loans made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Revolving Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon
the appointment of a successor Letter of Credit Issuer and/or Swing Line Lender, (a) such
successor shall succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring Letter of Credit Issuer or Swing Line Lender, as the case may be, and
(b) the successor Letter of Credit Issuer shall issue letters of credit in substitution for
the Letters of Credit, if any, outstanding at the time of such succession or make other



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arrangements satisfactory to Regions Bank to effectively assume the obligations of
Regions Bank with respect to such Letters of Credit.



     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent,
the Lenders and the Letter of Credit Issuer agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to its Affiliates and
to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors
and representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable Laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (g) with the written consent of the Borrower or (h) to the extent
such Information (x) becomes publicly available other than as a result of a breach of this Section
or (y) becomes available to the Administrative Agent, any Lender, the Letter of Credit Issuer or
any of their respective Affiliates on a nonconfidential basis from a source other than the
Borrower.



     For purposes of this Section, “Information” means all information received from the
Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective
businesses and customers, other than any such information that is available to the Administrative
Agent, any Lender or the Letter of Credit Issuer on a nonconfidential basis prior to disclosure by
the Borrower or any Subsidiary. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its obligation to do so if
such Person has exercised commercially reasonable efforts to protect the confidentiality of such
Information.



     Each of the Administrative Agent, the Lenders and the Letter of Credit Issuer acknowledges
that (a) the Information may include material non-public information concerning the Borrower or a
Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of
material non-public information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the Letter of Credit Issuer and each of their respective Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted by applicable Law, to set off and
apply any and all deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any time



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owing by such Lender, the Letter of Credit Issuer or any such Affiliate to or for the credit
or the account of the Borrower or any other Loan Party against any and all of the obligations of
the Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan
Document to such Lender or the Letter of Credit Issuer, irrespective of whether or not such Lender
or the Letter of Credit Issuer shall have made any demand under this Agreement or any other Loan
Document and although such obligations of the Borrower or such Loan Party may be contingent or
unmatured or are owed to a branch or office of such Lender or the Letter of Credit Issuer different
from the branch or office holding such deposit or obligated on such indebtedness. The rights of
each Lender, the Letter of Credit Issuer and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that such Lender, the
Letter of Credit Issuer or their respective Affiliates may have. Each Lender and the Letter of
Credit Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such
setoff and application, provided that the failure to give such notice shall not affect the
validity of such setoff and application.



     10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
Maximum Rate. If the Administrative Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum
Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that
is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or
unequal parts the total amount of interest throughout the contemplated term of the Obligations
hereunder.



     10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.



     10.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the



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time of any Credit Extension, and shall continue in full force and effect as long as any Loan
or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.



     10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



     10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
or if the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a
Defaulting Lender or if any other circumstance exists hereunder that gives the Borrower the right
to replace a Lender as a party hereto, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained in, and consents
required by, Section 10.06), all of its interests, rights and obligations under this
Agreement and the related Loan Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment), provided that:




     (a) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 10.06(b);




     (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and Letter of Credit Advances, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder and under the other Loan Documents (including
any amounts under Section 3.05) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all other amounts);




     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and




     (d) such assignment does not conflict with applicable Laws.



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



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     10.14 Governing Law; Jurisdiction; Etc.




     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF TEXAS.




     (b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF TEXAS SITTING IN DALLAS COUNTY AND OF THE UNITED
STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF TEXAS (DALLAS DIVISION), AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT
OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH TEXAS STATE COURT OR,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL
AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE LETTER OF CREDIT ISSUER
MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS
OF ANY JURISDICTION.




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




     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW.



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



     10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby, the Borrower and each other Loan Party acknowledges and agrees,
and acknowledges its Affiliates’ understanding, that: (i) the credit facility provided for
hereunder and any related arranging or other services in connection therewith (including in
connection with any amendment, waiver or other modification hereof or of any other Loan Document)
are an arm’s-length commercial transaction between the Borrower, each other Loan Party and their
respective Affiliates, on the one hand, and the Administrative Agent and the Joint Lead Arrangers,
on the other hand, and the Borrower and each other Loan Party is capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents (including any amendment, waiver or other
modification hereof or thereof); (ii) in connection with the process leading to such transaction,
the Administrative Agent and the Joint Lead Arrangers, each is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary, for the Borrower, any other Loan
Party or any of their respective Affiliates, stockholders, creditors or employees or any other
Person; (iii) neither the Administrative Agent nor the Joint Lead Arrangers have assumed or will
assume an advisory, agency or fiduciary responsibility in favor of the Borrower or any other Loan
Party with respect to any of the transactions contemplated hereby or the process leading thereto,
including with respect to any amendment, waiver or other modification hereof or of any other Loan
Document (irrespective of whether the Administrative Agent or the Joint Lead Arrangers have advised
or are currently advising the Borrower, any other Loan Party or any of their respective Affiliates
on other matters) and neither the Administrative Agent nor the Joint Lead Arrangers have any
obligation to the Borrower, any other Loan Party or any of their respective Affiliates with respect
to the transactions contemplated hereby except those obligations expressly set forth herein and in
the other Loan Documents; (iv) the Administrative Agent and the Joint Lead Arrangers and their
respective Affiliates may be engaged in a broad range of transactions that involve interests that
differ from those of the Borrower, the other Loan Parties and their respective Affiliates, and
neither the Administrative Agent nor the Joint Lead Arrangers have any obligation to disclose any
of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the
Administrative Agent and the Joint Lead Arrangers have not provided and will not provide any legal,
accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby
(including any amendment, waiver or other modification



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hereof or of any other Loan Document) and each of the Borrower and the other Loan Parties has
consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate. Each of the Borrower and the other Loan Parties hereby waives and releases, to the
fullest extent permitted by law, any claims that it may have against the Administrative Agent and
the Joint Lead Arrangers with respect to any breach or alleged breach of agency or fiduciary duty.



     10.17 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter defined)
and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the
Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001, and as it may have been or may be renewed or amended, the
“Act”)), it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act.



     10.18 Entire Agreement. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.



[Remainder of the Page Intentionally Left Blank.
Signature Pages to Follow.]




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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	PENSON WORLDWIDE, INC.
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/  Philip A. Pendergraft
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Philip A. Pendergraft
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Chief Executive Officer
	 

	 	 	 	 	 	 





SIGNATURE PAGE TO CREDIT AGREEMENT
















 





	 	 	 	 	 	 	 
	 	 	REGIONS BANK
as Administrative Agent, a Lender, Letter of Credit
 Issuer and Swing Line Lender

	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robin Ingari
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robin Ingari
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Sr. Vice President
	 

	 	 	 	 	 	 





SIGNATURE PAGE TO CREDIT AGREEMENT















 





	 	 	 	 	 	 	 
	 	 	GUARANTY BANK, as a lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Amanda Cone
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Amanda Cone
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Senior Vice President
	 

	 	 	 	 	 	 




SIGNATURE PAGE TO CREDIT AGREEMENT














 





	 	 	 	 	 	 	 
	 	 	 CAPITAL ONE, N.A., as a Lender 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jacob Villere
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Jacob Villere
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Vice President
	 

	 	 	 	 	 	 







SIGNATURE PAGE TO CREDIT AGREEMENT



















 





	 	 	 	 	 	 	 
	 	 	TEXAS CAPITAL BANK, NATIONAL
ASSOCIATION, as a Lender
	 
	 	 	 	 	 	 
	 	 	
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	
	 	 	 	 	 
	 

	 	 	 	Name:
	 	
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	
	 

	 	 	 	 	 	 






SIGNATURE PAGE TO CREDIT AGREEMENT