Exhibit 10.2





Exhibit 10.2








$200,000,000




SECURED SUPERPRIORITY DEBTOR-IN-POSSESSION CREDIT AGREEMENT




among




NBC HOLDINGS CORP. and

NBC ACQUISITION CORP.,

each a Debtor and Debtor-in-Possession, as Guarantors,




NEBRASKA BOOK COMPANY, INC.,

a Debtor and Debtor-in-Possession, as Borrower,




The Several Lenders

from Time to Time Parties Hereto,




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent and

Collateral Agent,




Dated as of June ___, 2011




J.P. MORGAN SECURITIES LLC

as Sole Arranger and Sole Bookrunner





 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	 
	 	 	 	 
	SECTION 1. DEFINITIONS
	 	 	2	 
	 
	 	 	 	 
	1.1 Defined Terms
	 	 	2	 
	1.2 Other Definitional Provisions
	 	 	37	 
	1.3 Accounting Terms; GAAP
	 	 	37	 
	 
	 	 	 	 
	SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
	 	 	37	 
	 
	 	 	 	 
	2.1 Commitments
	 	 	37	 
	2.2 Procedure for Borrowing
	 	 	38	 
	2.3 Base Rate Loans Prior to Second Availability Date
	 	 	39	 
	2.4 RESERVED
	 	 	39	 
	2.5 Repayment of Loans; Evidence of Debt
	 	 	39	 
	2.6 Commitment Fees, etc
	 	 	40	 
	2.7 Termination or Reduction of Revolving Credit Commitments
	 	 	40	 
	2.8 Optional Prepayments
	 	 	41	 
	2.9 Mandatory Prepayments
	 	 	41	 
	2.10 Conversion and Continuation Options
	 	 	42	 
	2.11 Minimum Amounts and Maximum Number of Eurodollar Tranches
	 	 	43	 
	2.12 Interest Rates and Payment Dates
	 	 	43	 
	2.13 Computation of Interest and Fees
	 	 	44	 
	2.14 Inability to Determine Interest Rate
	 	 	44	 
	2.15 Pro Rata Treatment and Payments
	 	 	45	 
	2.16 Requirements of Law
	 	 	46	 
	2.17 Taxes
	 	 	48	 
	2.18 Indemnity
	 	 	51	 
	2.19 Illegality
	 	 	51	 
	2.20 Change of Lending Office
	 	 	51	 
	2.21 Replacement of Lenders under Certain Circumstances
	 	 	52	 
	2.22 Defaulting Lenders
	 	 	52	 
	2.23 Protective Advances
	 	 	54	 
	2.24 Priority and Liens
	 	 	55	 
	2.25 Payment of Obligations
	 	 	56	 
	2.26 No Discharge; Survival of Claims
	 	 	56	 
	2.27 Conflicts
	 	 	56	 
	 
	 	 	 	 
	SECTION 3. LETTERS OF CREDIT
	 	 	56	 
	 
	 	 	 	 
	3.1 L/C Commitment
	 	 	56	 
	3.2 Procedure for Issuance of Letter of Credit
	 	 	57	 
	3.3 Commissions, Fees and Other Charges
	 	 	57	 
	3.4 L/C Participations
	 	 	57	 
	3.5 Reimbursement Obligation of the Borrower
	 	 	58	 






 


-i-









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	3.6 Obligations Absolute
	 	 	60	 
	3.7 Letter of Credit Payments
	 	 	59	 
	3.8 Applications
	 	 	59	 
	 
	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	60	 
	 
	 	 	 	 
	4.1 Financial Condition
	 	 	60	 
	4.2 No Change
	 	 	61	 
	4.3 Corporate Existence; Compliance with Law
	 	 	61	 
	4.4 Corporate Power; Authorization; Enforceable Obligations
	 	 	61	 
	4.5 No Legal Bar
	 	 	62	 
	4.6 No Material Litigation
	 	 	62	 
	4.7 No Default
	 	 	62	 
	4.8 Ownership of Property; Liens
	 	 	62	 
	4.9 Intellectual Property
	 	 	62	 
	4.10 Taxes
	 	 	63	 
	4.11 Federal Regulations
	 	 	63	 
	4.12 Labor Matters
	 	 	63	 
	4.13 ERISA; Employee Benefits Plans
	 	 	63	 
	4.14 Investment Company Act; Other Regulations
	 	 	64	 
	4.15 Capitalization and Subsidiaries
	 	 	64	 
	4.16 Use of Proceeds
	 	 	65	 
	4.17 Environmental Matters
	 	 	65	 
	4.18 Accuracy of Information, etc
	 	 	66	 
	4.19 Security Documents
	 	 	66	 
	4.20 Insurance
	 	 	67	 
	4.21 Material Contracts
	 	 	67	 
	 
	 	 	 	 
	SECTION 5. CONDITIONS PRECEDENT
	 	 	67	 
	 
	 	 	 	 
	5.1 Conditions to First Availability Date
	 	 	67	 
	5.2 Conditions to Second Availability Date
	 	 	71	 
	5.3 Conditions to Each Extension of Credit
	 	 	71	 
	 
	 	 	 	 
	SECTION 6. AFFIRMATIVE COVENANTS
	 	 	72	 
	 
	 	 	 	 
	6.1 Financial Statements
	 	 	72	 
	6.2 Certificates; Other Information
	 	 	73	 
	6.3 Payment of Obligations
	 	 	76	 
	6.4 Conduct of Business and Maintenance of Existence, etc
	 	 	76	 
	6.5 Maintenance of Property; Insurance
	 	 	76	 
	6.6 Inspection of Property; Books and Records; Discussions; Appraisals; Field Examinations
	 	 	76	 
	6.7 Notices
	 	 	77	 
	6.8 Environmental Laws
	 	 	78	 
	6.9 Additional Collateral, etc
	 	 	79	 
	6.10 Control Agreements
	 	 	81	 






 


-ii-









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	6.11 Update Calls
	 	 	81	 
	6.12 Ratings
	 	 	82	 
	6.13 Post Closing Covenants
	 	 	82	 
	 
	 	 	 	 
	SECTION 7. NEGATIVE COVENANTS
	 	 	83	 
	 
	 	 	 	 
	7.1 Financial Condition Covenants
	 	 	83	 
	7.2 Limitation on Indebtedness
	 	 	84	 
	7.3 Limitation on Liens
	 	 	85	 
	7.4 Limitation on Fundamental Changes
	 	 	87	 
	7.5 Limitation on Sale of Assets
	 	 	87	 
	7.6 Limitation on Restricted Payments
	 	 	88	 
	7.7 Limitation on Investments, Loans and Advances
	 	 	88	 
	7.8 Limitation on Modifications of Material Documents
	 	 	89	 
	7.9 Limitation on Transactions with Affiliates
	 	 	89	 
	7.10 Limitation on Sales and Leasebacks
	 	 	90	 
	7.11 Limitation on Changes in Fiscal Periods
	 	 	90	 
	7.12 Limitation on Negative Pledge Clauses
	 	 	90	 
	7.13 Limitation on Restrictions on Subsidiary Distributions
	 	 	90	 
	7.14 Limitation on Lines of Business
	 	 	90	 
	7.15 Limitation on Activities of Holdings and SuperHoldings
	 	 	90	 
	7.16 Swap Agreements
	 	 	91	 
	7.17 No Non-Debtors
	 	 	91	 
	7.18 Chapter 11 Claims
	 	 	91	 
	 
	 	 	 	 
	SECTION 8. EVENTS OF DEFAULT; APPLICATION OF PROCEEDS
	 	 	91	 
	 
	 	 	 	 
	8.1 Events of Default
	 	 	91	 
	8.2 Application of Proceeds
	 	 	96	 
	 
	 	 	 	 
	SECTION 9. THE AGENTS
	 	 	97	 
	 
	 	 	 	 
	9.1 Appointment
	 	 	97	 
	9.2 Delegation of Duties
	 	 	98	 
	9.3 Exculpatory Provisions
	 	 	98	 
	9.4 Reliance by Administrative Agent
	 	 	98	 
	9.5 Notice of Default
	 	 	99	 
	9.6 Non-Reliance on Administrative Agent and Other Lenders
	 	 	99	 
	9.7 Indemnification
	 	 	99	 
	9.8 Administrative Agent in Its Individual Capacity
	 	 	100	 
	9.9 Successor Administrative Agent
	 	 	100	 
	9.10 Authorization to Release Liens
	 	 	100	 
	9.11 Reports
	 	 	101	 
	9.12 Arranger
	 	 	101	 






 


-iii-









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SECTION 10. MISCELLANEOUS
	 	 	101	 
	 
	 	 	 	 
	10.1 Amendments and Waivers
	 	 	101	 
	10.2 Notices
	 	 	102	 
	10.3 No Waiver; Cumulative Remedies
	 	 	103	 
	10.4 Survival of Representations and Warranties
	 	 	104	 
	10.5 Payment of Expenses
	 	 	104	 
	10.6 Successors and Assigns; Participations and Assignments
	 	 	106	 
	10.7 Adjustments; Set-off
	 	 	109	 
	10.8 Counterparts
	 	 	110	 
	10.9 Severability
	 	 	110	 
	10.10 Integration
	 	 	110	 
	10.11 GOVERNING LAW
	 	 	110	 
	10.12 Submission To Jurisdiction; Waivers
	 	 	111	 
	10.13 Acknowledgements
	 	 	111	 
	10.14 WAIVERS OF JURY TRIAL
	 	 	112	 
	10.15 Confidentiality
	 	 	112	 
	10.16 USA PATRIOT Act
	 	 	113	 
	10.17 Appointment for Perfection
	 	 	113	 
	10.18 Reserved
	 	 	113	 
	10.19 Release of Liens
	 	 	113	 
	10.20 Disclosure
	 	 	113	 
	 
	 	 	 	 
	SECTION 11. REMEDIES; APPLICATION OF PROCEEDS
	 	 	114	 
	 
	 	 	 	 
	11.1 Remedies; Obtaining the Collateral Upon Default
	 	 	114	 
	11.2 Remedies; Disposition of the Collateral
	 	 	115	 
	11.3 Application of Proceeds
	 	 	115	 
	11.4 WAIVER OF CLAIMS
	 	 	117	 
	11.5 Remedies Cumulative
	 	 	117	 
	11.6 Discontinuance of Proceeding
	 	 	117	 






 


-iv-









 





SCHEDULES:




	 	 	 
	1.1A

	 	Revolving Credit Commitments
	1.1B

	 	Mortgaged Property
	1.1C

	 	Priming Jurisdictions
	3.1

	 	Rollover Letters of Credit
	4.4

	 	Consents, Authorizations, Filings and Notices
	4.9

	 	Intellectual Property
	4.15

	 	Subsidiaries
	4.19(b)

	 	UCC Filing Jurisdictions
	4.19(c)

	 	Mortgage Filing Jurisdictions
	4.20

	 	Insurance
	4.21

	 	Material Contracts
	5.1(s)

	 	Prepetition Letters of Credit
	7.2(e)

	 	Existing Indebtedness
	7.3(f)

	 	Existing Liens
	7.5

	 	Permitted Asset Sales
	7.7

	 	Existing Investments






EXHIBITS:




	 	 	 
	 
	 	 
	A

	 	Form of Guarantee and Collateral Agreement
	B-1

	 	Form of Borrower Compliance Certificate
	B-2

	 	Form of Holdings Compliance Certificate
	B-3

	 	Form of SuperHoldings Compliance Certificate
	C-1

	 	Form of Borrower Closing Certificate
	C-2

	 	Form of Holdings Closing Certificate
	C-3

	 	Form of Subsidiary Closing Certificate
	C-4

	 	Form of SuperHoldings Closing Certificate
	D

	 	[Reserved]
	E

	 	Form of Assignment and Assumption
	F

	 	Form of Legal Opinion of Kirkland & Ellis LLP
	G-1

	 	Form of Revolving Credit Note
	G-2

	 	Form of Term Loan Note
	H

	 	Form of U.S. Tax Certificate
	I

	 	Form of Borrowing Base Certificate
	F

	 	Form of Interim Order





 


-v-









 





This SECURED SUPERPRIORITY DEBTOR-IN-POSSESSION CREDIT AGREEMENT (this “Agreement”),
dated as of [                                         ,] 2011, among NBC Holdings Corp., a Delaware corporation
(“SuperHoldings”), NBC Acquisition Corp., a Delaware corporation (“Holdings”),
Nebraska Book Company, Inc., a Kansas corporation (the “Borrower”), each of which is a
debtor and debtor-in-possession in a case pending under Chapter 11 of the Bankruptcy Code, the
several banks and other financial institutions or entities from time to time parties to this
Agreement (the “Lenders”) and JPMORGAN CHASE BANK, N.A., as administrative agent and
collateral agent (in such capacity, the “Administrative Agent”).



PRELIMINARY STATEMENTS




On June [                    ], 2011 (the “Petition Date”), the Debtors (such term and other
capitalized terms used in these recitals being used with the meanings given to such terms in
Section 1.1) filed voluntary petitions with the Bankruptcy Court initiating the Cases and have
continued in the possession of their assets and in the management of their businesses pursuant to
Bankruptcy Code Sections 1107 and 1108;



Pursuant to this Agreement and the Orders, the Lenders are making available to the Borrower a
$125,000,000 debtor-in-possession term loan facility (the “Term Loan Facility”) and a
$75,000,000 debtor-in-possession revolving facility (the “Revolving Facility”);



The proceeds of the Loans will be used for working capital purposes of the Borrower, the other
Loan Parties and their respective Subsidiaries (including without limitation, for the payment of
fees and expenses incurred in connection with entering into this Agreement, the Cases and the
transactions contemplated hereby, the repayment of loans outstanding under the Prepetition Credit
Agreement and cash collateralization of the Prepetition Letters of Credit), in all cases subject to
the terms of this Agreement and the Orders;



To provide guarantees for the repayment of the Loans and the payment of the other Obligations
of the Loan Parties hereunder and under the other Loan Documents, the Loan Parties are providing to
the Administrative Agent and the Lenders, pursuant to this Agreement, the other Loan Documents and
the Orders, the following (each as more fully described herein or therein, as applicable):



(a) a guarantee from each of the Debtors other than the Borrower of the due and punctual
payment and performance of the Obligations of the Borrower;



(b) an allowed administrative expense claim entitled to the benefits of Bankruptcy Code
Section 364(c)(1) in each of the Cases, having superpriority over any and all administrative
expenses of the kind specified in Bankruptcy Code Sections 503(b) or 507(b);



(c) pursuant to Bankruptcy Code Section 364(c)(2) a perfected first priority Lien on all
present and after-acquired property of the Debtors not subject to a valid, perfected and
non-avoidable Lien on the Petition Date, excluding, in all cases, with respect to the obligations
of Loan Parties under any Loan Document, (i) 35% of the Capital Stock of any new or existing
Foreign Subsidiary (including, for the avoidance of doubt, 100% of the issued and outstanding
Capital Stock of any new or existing Foreign Subsidiary not owned directly by a Debtor) and (ii)
35% of the Capital Stock of any Subsidiary substantially all of whose assets
consist of Capital Stock of one or more Foreign Subsidiaries (any Capital Stock so excluded,
collectively, the “Excluded Equity Interests”);


 


 









 





(d) pursuant to Bankruptcy Code Section 364(c)(3) a perfected junior Lien on all present and
after-acquired property of the Debtors that is otherwise subject to a valid, perfected and
non-avoidable Lien on the Petition Date (other than Liens securing the Debtors’ Prepetition
Obligations and Liens that are junior to the Liens securing the Debtors’ Prepetition Obligations)
or a valid Lien perfected (but not granted) after the Petition Date to the extent such
post-Petition Date perfection in respect of a pre-Petition Date claim is expressly permitted under
the Bankruptcy Code, excluding, in all cases, the Excluded Equity Interests;



(e) pursuant to Bankruptcy Code Section 364(d)(1) a perfected first priority, senior priming
Lien on (i) all present and after-acquired property of the Debtors that is subject to a Lien on or
after the Petition Date to secure the Debtors’ Prepetition Obligations other than the Lien on the
L/C Cash Collateral, (ii) all present and after-acquired assets that are presently subject to Liens
that are junior to the Liens that secure the Debtors’ Prepetition Obligations and (iii) the Liens
granted after the Petition Date to provide adequate protection in respect of the Prepetition
Obligations or obligations secured by Liens that are junior to the Liens that secure the Debtors’
Prepetition Obligations;



It is understood and agreed that, subject to the Orders, (i) to the extent any Liens created
prior to the Petition Date on any Collateral are avoided, such Collateral will be automatically
subject to the first priority Liens securing the Obligations and (ii) the foregoing Liens and
Superpriority Claims shall be subject and subordinate to the Carve Out (other than with respect to
the L/C Cash Collateral).



NOW, THEREFORE, in consideration of the premises and the agreements hereinafter set forth, the
parties hereto hereby agree as follows:



Section 1. DEFINITIONS




1.1 Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective
meanings set forth in this Section 1.1.




“Account”: as defined in the UCC in effect in the State of New York from time
to time.




“Administrative Agent”: as defined in the preamble hereto.




“Affiliate”: as to any Person, any other Person which, directly or indirectly,
is in control of, is controlled by, or is under common control with, such Person. For
purposes of this definition, “control” of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities having ordinary voting power for the
election of directors (or persons performing similar functions) of such Person or (b) direct
or cause the direction of the management and policies of such Person, whether by contract or
otherwise.


 


2









 






“Agreement”: as defined in the preamble hereto.




“Applicable Margin”: (a) for the Term Loans, (i) 6.00% per annum in the case of
Base Rate Loans and (ii) 7.00% per annum in the case of Eurodollar Loans and (b) for the
Revolving Credit Loans, (i) 2.50% per annum in the case of Base Rate Loans and (ii) 3.50%
per annum in the case of Eurodollar Loans.




“Applicable Percentage”: as to any Lender at any time, the percentage which
such Lender’s unutilized Commitments and Exposure then constitutes of the aggregate
unutilized Commitments and Exposures of all Lenders.




“Applicable Revolving Percentage”: as to any Revolving Lender at any time, the
percentage which such Revolving Lender’s Revolving Credit Commitment then constitutes of the
Total Revolving Credit Commitments (or, at any time after the Revolving Credit Commitments
shall have expired or terminated, the percentage which the aggregate principal amount of
such Revolving Lender’s Revolving Credit Exposure then outstanding constitutes of the
aggregate principal amount of the Total Revolving Credit Exposure then outstanding).




“Applicable Term Loan Percentage”: as to any Term Lender at any time, the
percentage which such Term Lender’s Term Loan Commitment then constitutes of the Total Term
Loan Commitments (or, at any time after the First Availability Date, the percentage which
the aggregate principal amount of such Term Lender’s Term Loan Exposure and unutilized Term
Loan Commitment then outstanding constitutes of the aggregate principal amount of the Total
Term Loan Exposure and total unutilized Term Loan Commitments then outstanding).




“Application”: an application, in such form as the Issuing Lender may specify
from time to time, requesting the Issuing Lender to open a Letter of Credit.




“Approved Fund”: as defined in Section 10.6(b).




“Arranger”: J.P. Morgan Securities LLC.




“Asset Sale”: any Disposition of Property or series of related Dispositions of
Property (excluding any such Disposition permitted by clause (a), (b) or (c) of Section
7.5).




“Assignee”: as defined in Section 10.6(b).




“Assignment and Assumption”: an Assignment and Assumption, substantially in
the form of Exhibit E.




“Banking Services”: each and any of the following bank services provided to
any Loan Party by any Lender or any of its Affiliates (at the time such service is
provided): (a) credit cards for commercial customers (including, without limitation,
“commercial credit cards” and purchasing cards), (b) stored value cards and (c) treasury
management
services (including, without limitation, controlled disbursement, automated
clearinghouse transactions, return items, overdrafts and interstate depository network
services).



 


3









 






“Banking Services Obligations”: any and all obligations of the Loan Parties,
whether absolute or contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof and substitutions
therefor) in connection with Banking Services but excluding Prepetition Banking Services
Obligations.




“Bankruptcy Code”: the Bankruptcy Reform Act of 1978, as heretofore and
hereafter amended, and codified as 11 U.S.C. §§101 et seq.




“Bankruptcy Court”: the United States Bankruptcy Court for the District of
Delaware, or any other court having jurisdiction over the Cases from time to time.




“Bankruptcy Event”: with respect to any Person, such Person becomes the
subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, custodian, assignee for the benefit of creditors or similar Person
charged with the reorganization or liquidation of its business appointed for it, or, in the
good faith determination of the Administrative Agent, has taken any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or
appointment, provided that a Bankruptcy Event shall not result solely by virtue of any
ownership interest, or the acquisition of any ownership interest, in such Person by a
Governmental Authority or instrumentality thereof, provided, further, that such ownership
interest does not result in or provide such Person with immunity from the jurisdiction of
courts within the United States or from the enforcement of judgments or writs of attachment
on its assets or permit such Person (or such Governmental Authority or instrumentality) to
reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.




“Base Rate”: for any day, a rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b)
the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the Eurodollar
Rate for a Eurodollar Loan with a one-month interest period commencing on such day plus 1.0%
(provided that, for the avoidance of doubt, the Eurodollar Rate for any day shall be based
on the rate appearing on the Reuters Screen LIBOR01 Page (or any successor or substitute
page) at approximately 11:00 a.m. London time on such day). For purposes hereof: “Prime
Rate” shall mean the rate of interest per annum publicly announced from time to time by
JPMorgan Chase Bank, N.A. as its prime or base rate in effect at its principal office in New
York City (the Prime Rate not being intended to be the lowest rate of interest charged by
JPMorgan Chase Bank, N.A. in connection with extensions of credit to debtors). Any change in
the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or such
Eurodollar Rate shall be effective as of the opening of business on the effective day of
such change in the Prime Rate, the Federal Funds Effective Rate or such Eurodollar Rate,
respectively. Notwithstanding the foregoing, in the case of the Term Loans only, the Base
Rate shall not be less than 2.25% per annum.




“Base Rate Loans”: Loans the rate of interest applicable to which is based
upon the Base Rate.



 


4









 






“Benefitted Lender”: as defined in Section 10.7.




“Board”: the Board of Governors of the Federal Reserve System of the United
States (or any successor).




“Bookstore”: any business establishment that has as its primary business the
sale of textbooks.




“Borrower”: as defined in the preamble hereto.




“Borrowing”: (a) Revolving Credit Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a single
Interest Period is in effect, and (b) a Protective Advance.




“Borrowing Base”: at any time, the sum of:




(a) the product of (i) 85% multiplied by (ii) the Eligible Accounts Receivable
of the Loan Parties at such time minus the Dilution Reserve, minus,
without duplication, any other Reserve related to Accounts, plus




(b) the lesser of (i) the product of (x) 55% (65% during the Peak Period)
multiplied by (y) the Eligible Inventory of the Loan Parties, valued at the lower of
cost or market value, at such time, minus, without duplication, Inventory
Reserves and (ii) the product of 85% multiplied by the Net Orderly
Liquidation Value percentage identified in the most recent inventory appraisal
ordered by the Administrative Agent multiplied by the Eligible Inventory of
the Loan Parties, valued at the lower of cost or market value, at such time
minus, without duplication, Inventory Reserves, minus




(c) the sum of (i) the Rent Reserve, (ii) the Carve Out Reserve and (ii)
without duplication, any other Reserve in the Permitted Discretion of the
Administrative Agent.




The Administrative Agent may, in its Permitted Discretion, reduce the advance rates set
forth above, adjust Reserves or reduce one or more of the other elements used in computing
the Borrowing Base, with any such changes to be effective three Business Days after delivery
of notice thereof to the Borrower and the Lenders. The Borrowing Base at any time shall be
determined by reference to the most recent Borrowing Base Certificate delivered to the
Administrative Agent pursuant to Section 6.2(g).




At the time of any disposition of a Loan Party, or a sale of all or substantially all of the
assets of a Loan Party, the Borrower shall give the Administrative Agent written notice of
such disposition together with such information as shall be required for the Administrative
Agent to adjust the Borrowing Base to reflect such disposition.


 


5









 






“Borrowing Base Certificate”: a certificate in substantially the form of
Exhibit I hereto (with such changes thereto from time to time as may reasonably be required
by the Administrative Agent to reflect the components of and reserves against the Borrowing
Base as provided for herein), executed and certified by a Responsible Officer of the
Borrower, which certificate shall include appropriate exhibits, schedules, supporting
documentation and additional reports (i) as outlined in Schedule 1 to Exhibit I and (ii) as
provided for in Section 6.2(g).




“Borrowing Date”: any Business Day specified by the Borrower as a date on
which the Borrower requests the relevant Lenders to make Loans hereunder.




“Budget”: the consolidated forecasts of the consolidated income statement of
Holdings and its Subsidiaries for each fiscal month, beginning with fiscal month April 2011
through and including fiscal month June 2012, of the consolidated cash flows and balance
sheet of Holdings and its Subsidiaries for each fiscal quarter until and including the
second quarter of 2012 and of the Borrowing Base and weekly cash receipts and disbursements
of Holdings and its Subsidiaries for each fiscal month, beginning with fiscal month April
2011 through and including fiscal month March 2012, including the material assumptions on
which such forecasts were based (including, but not limited to, future cost reduction
initiatives), and setting forth the anticipated disbursements and uses of the Loans and
Letters of Credit.




“Business”: as defined in Section 4.17.




“Business Day”: (i) for all purposes other than as covered by clause (ii)
below, a day other than a Saturday, Sunday or other day on which commercial banks in New
York City are authorized or required by law to close and (ii) with respect to all notices
and determinations in connection with, and payments of principal and interest on, Eurodollar
Loans, any day which is a Business Day described in clause (i) and which is also a day for
trading by and between banks in Dollar deposits in the interbank eurodollar market.




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




“Capital Stock”: any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation) and any and all warrants, rights
or options to purchase any of the foregoing.




“Carve Out”: as defined in Section 2.24(a).


 


6









 






“Carve Out Reserves”: at any time, such reserves as the Administrative Agent,
from time to time, determines in its Permitted Discretion as being appropriate to reflect
(i) the remaining available amount of the Carve Out at such time, if any and (ii) the
accrued but unpaid fees, costs and expenses of professionals retained by the Loan Parties
and any Committee at such time, in each case as set forth in the most recently delivered
Borrowing Base Certificate.




“Cases”: one or more cases under Chapter 11 of the Bankruptcy Code with
respect to which the Debtors are the debtors and debtors-in-possession.




“Cash Collateral”: as defined in Section 363(a) of the Bankruptcy Code.




“Cash Dominion Period”: (a) each period when an Event of Default shall have
occurred and be continuing and (b) each period beginning on a date on which Revolving Credit
Availability is less than the greater of (i) 25% of the Total Revolving Credit Commitments
and (ii) $18,750,000; provided that any Cash Dominion Period commencing under this clause
(b) shall be discontinued when and if Revolving Credit Availability shall be greater than
such specified level for 60 consecutive days, provided further, however, that a Cash
Dominion Period may be discontinued no more than twice in any period of 12 consecutive
months.




“Cash Equivalents”: (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any agency thereof
and backed by the full faith and credit of the United States, in each case maturing within
one year from the date of acquisition; (b) certificates of deposit, time deposits,
eurodollar time deposits or overnight bank deposits having maturities of six months or less
from the date of acquisition issued by any Lender or by any commercial bank organized under
the laws of the United States of America or any state thereof having combined capital and
surplus of not less than $500,000,000; (c) commercial paper of an issuer rated at least A-1
by Standard & Poor’s Ratings Services (“S&P”) or P-1 by Moody’s Investors Service,
Inc. (“Moody’s”), or carrying an equivalent rating by a nationally recognized rating
agency, if both of the two named rating agencies cease publishing ratings of commercial
paper issuers generally, and maturing within six months from the date of acquisition; (d)
repurchase obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States government; (e)
securities with maturities of one year or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or territory or by any
foreign government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are rated at least
A by S&P or A by Moody’s; (f) securities with maturities of six months or less from the date
of acquisition backed by standby letters of credit issued by any Lender or any commercial
bank satisfying the requirements of clause (b) of this definition; or (g) shares of money
market mutual or similar funds which invest exclusively in assets satisfying the
requirements of clauses (a) through (f) of this definition.




“Cash Flow Forecast”: as defined in Section 6.2(m).


 


7









 






“Closing Date”: such date (which in no event shall be more than five Business
Days following the Interim Order Entry Date (or such later date as the Administrative Agent
may agree in its sole discretion)), on which the conditions precedent set forth in Section
5.1 shall have been satisfied or waived by the Arranger and the Term Loan shall have been
funded.




“Code”: the Internal Revenue Code of 1986, as amended.




“Collateral”: all Property of the Loan Parties, now owned or hereafter
acquired, as more particularly described and referred to as “DIP Collateral” in the Orders,
and shall include any property upon which a Lien is purported to be created by this
Agreement, any Security Document, the Orders or any additional orders of the Bankruptcy
Court under the Cases (but shall exclude any Excluded Equity Interests).




“Collateral Access Agreement”: as defined in the Guarantee and Collateral
Agreement.




“Collection Account”: as such term is defined in the Guarantee and Collateral
Agreement.




“Commitment Fee Rate”: 0.50% per annum.




“Commitment”: as to any Lender, collectively, such Lender’s Revolving Credit
Commitment and Term Loan Commitment.




“Committee”: any statutory committee appointed in the Cases.




“Commonly Controlled Entity”: an entity, whether or not incorporated, which is
under common control with any Loan Party within the meaning of Section 4001 of ERISA or is
part of a group which includes any Loan Party and which is treated as a single employer
under Section 414 of the Code.




“Compliance Certificate”: a certificate duly executed by a Responsible Officer
substantially in the form of Exhibit B.




“Concentration Account”: as defined in the Guarantee and Collateral Agreement.




“Conduit Lender”: any special purpose corporation organized and administered
by any Lender for the purpose of making Loans otherwise required to be made by such Lender
and designated by such Lender in a written instrument; provided, that the
designation by any Lender of a Conduit Lender shall not relieve the designating Lender of
any of its obligations to fund a Loan under this Agreement if, for any reason, its Conduit
Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender)
shall have the sole right and responsibility to deliver all consents and waivers required or
requested under this Agreement with respect to its Conduit Lender, and provided,
further, that no Conduit Lender shall (a) be entitled to receive any greater amount
pursuant to Section 2.16, 2.17, 2.18 or 10.5 than the designating Lender would
have been entitled to receive in respect of the extensions of credit made by such
Conduit Lender or (b) be deemed to have any Revolving Credit Commitment.


 


8









 






“Confirmation Order”: an order of the Bankruptcy Court confirming the
Reorganization Plan.




“Consolidated EBITDA”: for any period, Consolidated Net Income for such period
plus, without duplication and to the extent reflected as a charge in the statement
of such Consolidated Net Income for such period, the sum of (a) income tax expense, (b)
interest expense, amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with Indebtedness (including
the Loans), (c) depreciation and amortization expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization costs, (e) any non-cash
extraordinary, unusual or non-recurring expenses or losses (including, whether or not
otherwise includable as a separate item in the statement of such Consolidated Net Income for
such period, losses on sales of assets outside of the ordinary course of business and
excluding any non-cash expense to the extent that it represents an accrual of or reserve for
cash expenditures in any future period), (f) any other non-cash charges, (g) (x) any costs,
fees, expenses or disbursements of attorneys, consultants or advisors to the Borrower and
its Subsidiaries and to the Committee, in each case, incurred in connection with the events
leading up to and the ongoing administration of the Cases, the Reorganization Plan and any
other financial restructuring and the negotiation, execution and documentation of the
Facilities and any amendments, waivers or other modifications to the Prepetition Credit
Agreement or this Agreement, together with any such costs, fees, expenses or disbursements
paid to the attorneys, consultants and advisors of the agents and lenders in connection
therewith; provided that the amounts added back to Consolidated EBITDA pursuant to
this clause (g)(x) in any period of three consecutive fiscal months shall not exceed 120% of
the amount projected in the Budget for such costs, fees, expenses and disbursements for such
period, and (y) any upfront, arrangement or other fees paid by the Loan Parties in
connection with the Facilities, and (h) charges, premiums and expenses associated with the
discharge of Prepetition Indebtedness and minus, to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (x) interest income,
(y) any extraordinary, unusual or non-recurring income or gains (including, whether or not
otherwise includable as a separate item in the statement of such Consolidated Net Income for
such period, gains on the sales of assets outside of the ordinary course of business) and
(z) any other non-cash income, all as determined on a consolidated basis.




“Consolidated Net Income”: for any period, the consolidated net income (or
loss) of the Borrower and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP; provided that there shall be excluded (a) the income (or deficit) of any
Person accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into
or consolidated with the Borrower or any of its Subsidiaries, (b) the income (or deficit) of
any Person (other than a Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such income is
actually received by the Borrower or such Subsidiary in the form of dividends or similar
distributions and (c) the undistributed earnings of any Subsidiary of the
Borrower to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the terms of any
Contractual Obligation (other than under any Loan Document) or Requirement of Law applicable
to such Subsidiary.



 


9









 






Notwithstanding the foregoing, (i) Consolidated Net Income for any period will be
adjusted, on a Pro Forma Basis to take into account the effect of any acquisition or
disposition involving the acquisition or disposition of a Subsidiary, or a business unit,
division, product line or line of business during such period, as if such acquisition or
disposition (and any related incurrence or prepayment of Indebtedness) had occurred on the
first day of such period and (ii) cash income attributable to rentals shall be recognized
consistent with the prior practice of the Borrower and not giving effect to any deferral of
revenue for such rental income pursuant to any accounting methodology implemented after the
Closing Date.




“Contingent Obligations”: any contingent indemnification obligations for which
no claim has been made, it being understood the following and similar obligations shall not
constitute Contingent Obligations: (a) the principal of, and interest and premium (if any)
on, and fees and expenses relating to, any Obligation and (b) contingent reimbursement
obligations in respect of amounts that may be drawn under outstanding Letters of Credit.




“Continuing Directors”: as defined in Section 8.1(j) hereof.




“Contractual Obligation”: 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.




“Credit Party”: the Administrative Agent, the Issuing Lender or any other
Lender.




“Debtor”: SuperHoldings, Holdings, the Borrower and their respective
Subsidiaries.




“Default”: any of the events specified in Section 8.1, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been satisfied.




“Defaulted Account”: as defined in the definition of the “Eligible Accounts
Receivable”.




“Defaulting Lender”: any Lender that (a) has failed, within two
Business Days of the date required to be funded or paid, to (i) fund any portion of its
Loans, (ii) fund any portion of its participations in Letters of Credit or (iii) pay over to
any Credit Party any other amount required to be paid by it hereunder, unless, in the case
of clause (i) above, such Lender promptly notifies the Administrative Agent and the Borrower
in writing that such failure is the result of such Lender’s good faith determination that a
condition precedent to funding (specifically identified and including the particular
default, if any) has not been satisfied, (b) has


 


10









 






notified the Borrower or any Credit Party
in writing, or has
made a public statement to the effect, that it does not intend or expect to comply with
any of its funding obligations under this Agreement (unless such writing or public statement
indicates that such position is based on such Lender’s good faith determination that a
condition precedent (specifically identified and including the particular default, if any)
to funding a loan under this Agreement cannot be satisfied) or generally under other
agreements in which it commits to extend credit, (c) has failed, within three Business Days
after request by a Credit Party, acting in good faith, to provide a certification in writing
from an authorized officer of such Lender that it will comply with its obligations (and is
financially able to meet such obligations) to fund prospective Loans and participations in
then outstanding Letters of Credit under this Agreement, provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt
of such certification in form and substance satisfactory to it and the Administrative Agent,
or (d) has become the subject of a Bankruptcy Event.




“Deposit Account”: as defined in the Guarantee and Collateral Agreement.




“Deposit Account Control Agreement”: as defined in the Guarantee and Collateral
Agreement.




“Dilution Factors”: without duplication, with respect to any period, the
aggregate amount of all deductions, credit memos, returns, adjustments, allowances, bad debt
write-offs and other non-cash credits which are recorded to reduce accounts receivable in a
manner consistent with current and historical accounting practices of the Borrower.




“Dilution Ratio”: at any date, (i) the amount (expressed as a percentage)
equal to (a) the aggregate amount of the applicable Dilution Factors for the twelve (12)
most recently ended fiscal months divided by (b) total gross sales for the twelve
(12) most recently ended fiscal months less (ii) 5%.




“Dilution Reserve”: at any date, the product of the applicable Dilution Ratio
multiplied by the Eligible Accounts Receivable on such date.




“Disposition”: with respect to any Property, any sale, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof; and the terms
“Dispose” and “Disposed of” shall have correlative meanings.




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




“Domestic Subsidiary”: any Subsidiary of the Borrower organized under the laws
of any jurisdiction within the United States of America.




“Effective Date”: the effective date of the Reorganization Plan.


 


11









 






“Eligible Accounts Receivable”: at the time of any determination, the gross
outstanding balance at such time, determined in accordance with GAAP and stated on a basis
consistent with the historical practices of the Borrower as of the date hereof, of Accounts
of the Borrower and its Subsidiaries, including the aggregate amount of all Past-due
Addbacks less, as applicable and without duplication, the aggregate amount of
(i) all charge-backs for returns, (ii) all finance agreements, (iii) all trade
discounts, (iv) all finance charges, late fees and other fees that are unearned and (v) the
aggregate amount of all reserves for service fees and such other fees or commissions or
similar amounts that the Borrower or such Subsidiary has agreed to pay. Notwithstanding the
foregoing, an Account shall not be included in this definition of Eligible Accounts
Receivable if, at the time of any determination, without duplication:




(a) the Borrower or such Subsidiary has not complied with all material
requirements of applicable Federal, state and local laws, rules, regulations and
orders (including all laws, rules, regulations and orders of any governmental or
judicial authority relating to truth in lending, billing practices, fair credit
reporting, equal credit opportunity, debt collection practices and consumer debtor
protection) applicable to such Account (or any related contracts) or affecting the
collectibility of such Account; or




(b) (i) such Account is not assignable or requires consent of the Account
debtor and such a requirement of consent is enforceable law or (ii) a first priority
security interest in such Account in favor of the Administrative Agent for the
ratable benefit of the Lenders has not been obtained and fully perfected by filing
UCC financing statements against the Borrower or such Subsidiary; or




(c) such Account is subject to any Lien whatsoever other than Liens expressly
permitted by clause (h) of Section 7.3 and other than the Carve-Out, any junior
Liens for the benefit of any Prepetition Lender and the Liens permitted under
Section 7.3(h) and Section 7.3(m) of the Prepetition Credit Agreement as in effect
on the date hereof; or




(d) the Borrower or such Subsidiary, in order to be entitled to collect such
Account, is required to perform any additional service for, or perform or incur any
additional obligation to, the Account debtor, except the portion of such Account
that has arisen in respect of the sale of any Information Systems Inventory; or




(e) such Account does not constitute a legal, valid and binding irrevocable
payment obligation of the Account debtor to pay the balance thereof in accordance
with its terms or is subject to any defense, setoff, recoupment or counterclaim; or




(f) the Account debtor is an Affiliate, division or employee of the Borrower or
such Subsidiary; or




(g) (i) such Account (A) is an account of the United States Government or any
of its agencies or instrumentalities, (B) is subject to any Lien pursuant to the
Federal Assignment of Claims Act and (C) the Administrative Agent has not received
an assignment of claims in form and substance satisfactory to it within 45 days of
the creation of such Account or (ii) such Account is (A) an account of the
government of any state of the United States or any political
subdivision thereof or any agency or instrumentality of any of the foregoing
and (B) a first priority security interest in such account in favor of the
Administrative Agent for the ratable benefit of the Lenders has not been obtained or
a UCC financing statements against the Borrower or such Subsidiary has not been
filed; or



 


12









 






(h) an estimated or accrual loss has been recognized in respect of such
Account, as determined in accordance with the Borrower’s or such Subsidiary’s usual
business practice (each such Account, a “Defaulted Account”); or




(i) 20% or more of the aggregate outstanding amount of all Accounts from the
Account debtor in respect of such Account and its Affiliates constitute Defaulted
Accounts; or




(j) any representation or warranty contained in this Agreement or in any other
Loan Documents applicable either to Accounts in general or to any such specific
Account shall prove to have been false or misleading in any material respect when
made or deemed made with respect to such Account; or




(k) 50% or more of the outstanding amount of all Accounts from the same Account
debtor have become, or have been determined by the Administrative Agent to be,
ineligible pursuant to subparagraph (m) below; or




(l) the Account debtor (i) has filed a petition for relief under the Bankruptcy
Code (or similar action under any successor law or under any comparable law), (ii)
has made a general assignment for the benefit of creditors, (iii) has filed against
it any petition or other application for relief under the Bankruptcy Code (or
similar action under any successor law or under any comparable law), (iv) has
failed, suspended business operations, become insolvent, called a meeting of its
creditors for the purpose of obtaining any financial concession or accommodation or
(v) had or suffered a receiver or a trustee to be appointed for all or a significant
portion of its assets or affairs; or




(m) (i) any portion of such Account has remained unpaid 90 or more days past
the original invoice date thereof or (ii) the Borrower or such Subsidiary has reason
to believe that all or a material portion of such Account is uncollectible (in the
reasonable discretion of the Administrative Agent); or




(n) [Reserved]; or




(o) the sale represented by such Account is to an Account debtor organized or
located outside the states of the United States, the District of Columbia or Canada
unless, in the case of any Account debtor controlled by an entity organized or
located outside one of the states of the United States or the District of Columbia,
the Administrative Agent has, for the benefit of the Lenders, a valid, legal and
perfected first-priority security interest in such Account; or


 


13









 






(p) the Account debtor is a supplier or creditor of the Borrower or such
Subsidiary (but only to the extent of the lesser of (i) the amount owing from
such Account debtor to the Borrower or such Subsidiary pursuant to Accounts that are
otherwise eligible and (ii) the amount owing to such Account debtor by the Borrower
or such Subsidiary); or




(q) such Account is not denominated in dollars or is payable outside the United
States; or




(r) if applicable, the sale represented by such Account is on a bill-and-hold,
undelivered sale, guaranteed sale, sale-or-return, consignment or sale-on-approval
basis or is subject to any right of return (other than (i) in the ordinary course of
business or (ii) a standard right of claim for defective goods for which neither the
related Account debtor has made a claim nor the Borrower or such Subsidiary has any
basis to believe that such Account debtor is entitled to such a claim), charge-back
or setoff; or




(s) the Administrative Agent believes, in its reasonable discretion, that the
collection of such Account may not be paid and the Administrative Agent shall so
notify the Borrower; or




(t) the Borrower or such Subsidiary is in default, in any material respect, in
the performance or observance of any of the terms of any agreement giving rise to
such Account; or




(u) the Borrower or such Subsidiary does not have good and marketable title to
such Account as sole owner of such Account; or




(v) such Account does not arise from the sale and delivery of goods or
provision of services in the ordinary course of business of the Borrower or such
Subsidiary to the Account debtor; or




(w) such Account is on terms other than those normal or customary in the
business or the Borrower or such Subsidiary; or




(x) any amounts payable under or in connection with such Account are evidenced
by promissory notes, agreements to repay cash advances or other instruments, unless
such promissory notes, agreements or instruments have been endorsed and delivered to
the Administrative Agent; or




(y) such Account has been paid by a check that has been returned for
insufficient funds; or




(z) the Account debtor is a third party credit card company or a debit card
company; or




(aa) such Account is not subject to the standard credit and collection policies
of the Borrower or such Subsidiary; or


 


14









 






(bb) such Account has been placed with an attorney or other third party for
collection; or




(cc) the aggregate credit balances of the Borrower or such Subsidiary on an
Account debtor by Account debtor basis of all Accounts have remained unpaid for the
past due amounts referenced in subparagraphs (m) and (n) above; or




(dd) such Account is subject to any adverse security deposit, retainage or
other similar advance made by or for the benefit of the applicable Account debtor,
in each case only to the extent thereof; or




(ee) such Account was invoiced (i) in advance of goods or services provided, or
(ii) twice or more, or (iii) the associated income has not been earned; or




(ff) the goods giving rise to such Account have not been shipped and title has
not been transferred to the Account debtor, or the Account represents a
progress-billing or otherwise does not represent a complete sale, except the portion
of such Account that has arisen in respect of the sale of any Information Systems
Inventory; for purposes hereof, “progress-billing” means any invoice for goods sold
or leased or services rendered under a contract or agreement pursuant to which the
Account debtor’s obligation to pay such invoice is conditioned upon the Borrower’s
or such Subsidiary’s completion of any further performance under the contract or
agreement; or




(gg) such Account is created on cash on delivery terms;




provided that, all Accounts of any single Account debtor and its
Affiliates which, in the aggregate exceed (i) 20% in respect of an Account debtor
whose securities are rated Investment Grade, and (ii) 15% in respect of all other
Account debtors, of the total amount of all Accounts at the time of any
determination shall be deemed not to be Eligible Accounts Receivable to the extent
of such excess. Standards of eligibility may be made more restrictive from time to
time solely by the Administrative Agent in the exercise of its Permitted Discretion,
with any such changes to be effective three Business Days after delivery of notice
thereof to the Borrower and the Lenders.



 


15









 






“Eligible Inventory”: at any date of determination thereof, the value
(determined at the lowest of cost or market or the written-down value in accordance with the
Borrower’s historical practice in accordance with GAAP) at such date of all inventories
(“Inventory”) of the Borrower and its Subsidiaries owned by the Borrower and its
Subsidiaries and in the possession of the Borrower and its Subsidiaries or any warehouseman,
bailee, agent or processor of the Borrower and its Subsidiaries, including any educational
institution or commercial Bookstore, net of (i) any interdivisional profit, (ii) any
amounts payable by the Borrower and its Subsidiaries in respect of commissions, processing
fees or other charges and (iii) any advance payments and unliquidated
progress billings in respect of such Inventory. Notwithstanding the foregoing,
Inventory shall not constitute Eligible Inventory if, without duplication:




(a) such item of Inventory is not assignable or a first priority security
interest in such item of Inventory in favor of the Administrative Agent for the
ratable benefit of the Lenders has not been obtained and fully perfected by filing
UCC financing statements against the Borrower or such Subsidiary; or




(b) such item of Inventory is subject to any Lien whatsoever; other than Liens
expressly permitted by clause (h) of Section 7.3 and other than the Carve-Out, any
junior Liens for the benefit of any Prepetition Lender and the Liens permitted under
Section 7.3(h) and Section 7.3(m) of the Prepetition Credit Agreement as in effect
on the date hereof; or




(c) there shall have occurred any event that, or any condition with respect to
such item of Inventory, would substantially impede the ability of the Borrower or
such Subsidiary to continue to use or sell such item of Inventory in the normal
course of business; or




(d) any claim disputing the title of the Borrower or such Subsidiary to, or
right to possession of or dominion over, such item of Inventory shall have been
asserted; or




(e) any representation or warranty contained in this Agreement or in any other
Loan Document applicable to either Inventory in general or to such specific item of
Inventory has been breached with respect to such item of Inventory; or




(f) the Borrower or such Subsidiary does not have good and marketable title to
such item of Inventory as sole owner of such item of Inventory; or




(g) such item of Inventory is located outside of the United States; or




(h) such item of Inventory is evidenced by an Account; or




(i) such item of Inventory consists of packing, packaging and/or shipping
supplies or materials; or




(j) such item of Inventory has been shipped to a customer, even if on a
consignment or “sale or return” basis; or




(k) such item of Inventory consists of obsolete Information Systems Inventory
or Retail Inventory, including books and related materials with titles classified as
slow-moving; or




(l) such item of Inventory consists of any unsaleable Inventory; or


 


16









 






(m) such item of Inventory is located at a leased property, or is in the
possession or control of any lessor, warehouseman, bailee, agent or processor,
unless (i) with respect to any Inventory located in a Priming Jurisdiction, (A) a
Rent Reserve of the type specified in clause (i) of the definition of “Rent Reserve”
has been established for Inventory at that location, or (B) the applicable lessor,
warehouseman, bailee, agent or processor (including any educational institution or
commercial Bookstore), has been notified of the Lien granted under the Security
Documents and has entered into a Landlord Waiver or (ii) with respect to any
Inventory located in a jurisdiction that is not a Priming Jurisdiction, (A) a Rent
Reserve of the type specified in clause (ii) of the definition of “Rent Reserve” has
been established for Inventory at that location or (B) the applicable lessor,
warehouseman, bailee, agent or processor (including any educational institution or
commercial Bookstore), has been notified of the Lien granted under the Security
Documents and has entered into a Landlord Waiver; or




(n) such item of Inventory consists of food, beverages or sundries; or




(o) such item of Inventory consists of cigarettes; or




(p) such item of Inventory is to be sold by the Borrower or such Subsidiary
from a vending machine; or




(q) such item of Inventory has been determined by the Administrative Agent,
exercising its reasonable discretion, to be unacceptable because (i) the
Administrative Agent believes that such item of Inventory is not readily saleable
under the customary terms on which it is usually sold or (ii) such item of Inventory
(other than Information Systems Inventory) is not of a type typically sold by campus
Bookstores; or




(r) such item of Inventory is goods returned or rejected by the Borrower’s or
such Subsidiary’s customers due to quality issues or is goods in transit to a third
party; or




(s) such item of Inventory is a reserve computed by the Borrower or such
Subsidiary to accrue for future adjustments to Inventory relating to inaccuracies
arising from the utilization of the gross profit method of accounting for Retail
Inventory; or




(t) such item of Inventory is an accrual computed by the Borrower or such
Subsidiary to accrue for anticipated returns of sold Inventory.




Standards of eligibility may be made more restrictive from time to time solely by the
Administrative Agent in the exercise of its Permitted Discretion, with any such changes to
be effective three Business Days after delivery of notice thereof to the Borrower and the
Lenders.


 


17









 






“Environmental Laws”: any and all foreign, Federal, state, local or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any
Governmental Authority or other Requirements of Law (including common law), in each
case having the force or effect of law, regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment, as now or may
at any time hereafter be in effect.




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




“Eurocurrency Reserve Requirements”: for any day as applied to a Eurodollar
Loan, the aggregate (without duplication) of the maximum rates (expressed as a decimal) of
reserve requirements in effect on such day (including, without limitation, basic,
supplemental, marginal and emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto) dealing with reserve
requirements prescribed for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board) maintained by a member bank of the Federal
Reserve System.




“Eurodollar Base Rate”: with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, the rate per annum determined on the basis of the rate for
deposits in Dollars for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on Reuters Screen LIBOR01 Page (or on any successor or
substitute page of such Service providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest rates applicable to dollar deposits
in the London interbank market) as of 11:00 A.M., London time, two Business Days prior to
the beginning of such Interest Period. In the event that such rate is not available at such
time for any reason, “Eurodollar Base Rate” for purposes of this definition shall be
determined by reference to such other comparable publicly available service for displaying
eurodollar rates as may be selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is offered Dollar
deposits at or about 11:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurodollar market where its eurodollar
and foreign currency and exchange operations are then being conducted for delivery on the
first day of such Interest Period for the number of days comprised therein. Notwithstanding
the foregoing, in the case of the Term Loans only, the Eurodollar Base Rate shall not be
less than 1.25% per annum.




“Eurodollar Loans”: Loans the rate of interest applicable to which is based
upon the Eurodollar Rate.




“Eurodollar Rate”: with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day in accordance with
the following formula (rounded upward to the nearest 1/100th of 1%):



	 	 	 
	 	Eurodollar Base Rate	 
	 	 	 
	 	1.00 - Eurocurrency Reserve Requirements	 






 


18









 






“Eurodollar Tranche”: the collective reference to Eurodollar Loans the then
current Interest Periods with respect to all of which begin on the same date and end on the
same later date (whether or not such Loans shall originally have been made on the same day).




“Event of Default”: any of the events specified in Section 8.1,
provided that any requirement for the giving of notice, the lapse of time, or both,
has been satisfied.




“Excluded Equity Interests”: as defined in the preliminary statements hereto.




“Excluded Foreign Subsidiary”: any Foreign Subsidiary.




“Excluded Taxes”: with respect to any payment made by any Loan Party under any
Loan Document, any of the following Taxes imposed on or with respect to a Credit Party: (a)
income or franchise Taxes imposed on (or measured by) net income by the United States of
America, or by the jurisdiction under the laws of which such Credit Party 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 of
America or any similar Taxes imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Non-U.S. Lender (other than an assignee pursuant to a
request by the Borrower under Section 2.21), any U.S. withholding Taxes resulting from any
Requirement of Law in effect (including FATCA) on the date such Non-U.S. Lender becomes a
party to this Agreement (or designates a new lending office) or is attributable to such
Non-U.S. Lender’s failure to comply with Section 2.17(f), except to the extent that such
Non-U.S. 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 Loan Party with
respect to such withholding Taxes pursuant to Section 2.17(a).




“Exposure”: as to any Lender at any time, an amount equal to the sum of (a) the
aggregate principal amount of all Loans made by such Lender then outstanding, (b) such
Lender’s Applicable Revolving Percentage of the L/C Obligations then outstanding and (c)
such Lender’s Applicable Revolving Percentage of the aggregate principal amount of
Protective Advances then outstanding.




“Facilities”: the Revolving Facility and the Term Loan Facility.




“FATCA”: Sections 1471 through 1474 of the Code, as of the date of this
Agreement and any regulations or official interpretations thereof.




“Federal Funds Effective Rate”: for any day, the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of such transactions received by the
Reference Lender from three federal funds brokers of recognized standing selected by it.


 


19









 






“Fee Letter”: the Fee Letter, dated June [_], 2011, among the Borrower,
JPMorgan Chase Bank, N.A. and J.P. Morgan Securities LLC.




“Final Revolving Credit Loans”: as defined in Section 2.1(a).




“Final Order”: an order of the Bankruptcy Court entered in the Cases, in
substantially the form of the Interim Order, with such modifications thereto as are in form
and substance reasonably satisfactory to the Administrative Agent.




“Final Order Entry Date”: the date the Final Order is entered in the Cases.




“First Availability Date”: the first date on or following the Closing Date
that the conditions precedent set forth in Sections 5.1 and 5.3 shall have been satisfied
(or waived in accordance with Section 10.1).




“Foreign Benefit Arrangement”: any employee benefit arrangement mandated by
non-US law that is maintained or contributed to by any Loan Party.




“Foreign Plan”: each employee benefit plan (within the meaning of Section 3(3)
of ERISA, even though such Plan is not subject to ERISA) that is not subject to US law and
is maintained or contributed to by any Loan Party.




“Foreign Subsidiary”: any Subsidiary of the Borrower that is not a Domestic
Subsidiary.




“Funding Office”: the office specified from time to time by the Administrative
Agent as its funding office by notice to the Borrower and the Lenders pursuant to Section
10.2.




“GAAP”: generally accepted accounting principles in the United States of
America.




“Governmental Authority”: any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government (including, without
limitation, the National Association of Insurance Commissioners).




“Guarantee and Collateral Agreement”: the Guarantee and Collateral Agreement
to be executed and delivered by SuperHoldings, Holdings, the Borrower and each Subsidiary
Guarantor, substantially in the form of Exhibit A, as the same may be amended, supplemented
or otherwise modified from time to time.


 


20









 






“Guarantee Obligation”: as to any Person (the “guaranteeing person”),
any obligation of (a) the guaranteeing person or (b) another Person (including, without
limitation, any bank under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations (the “primary obligations”) of any other third Person (the
“primary 
obligor”) in any manner, whether directly or indirectly, including, without
limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any Property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any
such primary obligation or (2) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase Property, securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that
the term Guarantee Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guarantee Obligation of
any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless
such primary obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person’s maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.




“Guarantors”: the collective reference to SuperHoldings, Holdings and the
Subsidiary Guarantors.




“Holdings”: as defined in the preamble hereto.




“Holdings Discount Notes”: the 11% Senior Discount Notes of Holdings due 2013
and issued pursuant to the Holdings Discount Notes Indenture.




“Holdings Discount Notes Indenture”: the Indenture dated as of March 4, 2004
entered into by Holdings in connection with the issuance of the Holdings Discount Notes,
together with all instruments and other agreements entered into by Holdings in connection
therewith, as the same may be amended, supplemented or otherwise modified from time to time.


 


21









 






“Indebtedness”: of any Person at any date, without duplication (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of Property or services (other than current trade payables incurred
in the ordinary course of such Person’s business), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness
created or arising under any conditional sale or other title retention agreement with
respect to Property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to repossession or
sale of such Property), (e) all Capital Lease Obligations of such Person, (f) all
obligations of such Person, contingent or otherwise, as an account party under bankers’
acceptance, letter of credit or similar facilities, (g) all obligations of such
Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for
value any Capital Stock (other than common stock) of such Person, (h) all Guarantee
Obligations of such Person in respect of obligations of the kind referred to in clauses (a)
through (g) above; (i) all obligations of the kind referred to in clauses (a) through (h)
above secured by (or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on Property (including, without
limitation, accounts and contract rights) owned by such Person, whether or not such Person
has assumed or become liable for the payment of such obligation, (j) for the purposes of
Section 8(e) only, all obligations of such Person in respect of Swap Agreements and (k) the
liquidation value of any mandatorily redeemable preferred Capital Stock of such Person or
its Subsidiaries held by any Person other than such Person and its Wholly Owned
Subsidiaries.




“Indemnified Taxes”: (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by any Loan Party under any Loan Document and (b) Other Taxes.




“Indentures”: the collective reference to the Holdings Discount Notes
Indenture, the Senior Subordinated Notes Indenture and the Senior Secured Notes Indenture.




“Information Systems Inventory”: all Inventory located at the Borrower’s
warehouses consisting of computer hardware and software, including IBM point-of-sale
register systems and related software.




“Initial Cash Flow Forecast”: as defined in Section 5.1(r).




“Initial Letters of Credit”: as defined in Section 5.1(p).




“Initial Revolving Credit Loans”: as defined in Section 2.1(a).




“Insolvency”: with respect to any Multiemployer Plan, the condition that such
Plan is insolvent within the meaning of Section 4245 of ERISA.




“Insolvent”: pertaining to a condition of Insolvency.




“Intellectual Property”: the collective reference to all rights, priorities
and privileges relating to intellectual property, whether arising under United States,
multinational or foreign laws or otherwise, including, without limitation, copyrights,
copyright licenses, patents, patent licenses, trademarks, domain names, trademark licenses,
technology, know-how and processes, and any other confidential or proprietary information,
all registrations and applications thereof, and all rights to sue at law or in equity for
any past, present or future infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.


 


22









 






“Interest Payment Date”: (a) as to any Base Rate Loan, the last day of each
calendar month while such Loan is outstanding and the final maturity date of such Loan, (b)
as to any Eurodollar Loan , the last day of each consecutive 30 day period running from the
commencement of the Interest Period applicable to such Loan and the
Termination Date, and (c) as to any Loan (other than any Revolving Credit Loan that is
a Base Rate Loan), the date of any repayment or prepayment made in respect thereof.




“Interest Period”: as to any Eurodollar Loan (a) initially, the period
commencing on the borrowing or conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six months thereafter, as selected by the
Borrower in its notice of borrowing or notice of conversion, as the case may be, given with
respect thereto; and (b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending one, two, three or
six months thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last day of the then
current Interest Period with respect thereto; provided that, all of the foregoing
provisions relating to Interest Periods are subject to the following:




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




(ii) any Interest Period that would otherwise extend beyond the Termination
Date shall end on the Termination Date;




(iii) 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 a calendar month; and




(iv) the Borrower shall select Interest Periods so as not to require a payment
or prepayment of any Eurodollar Loan during an Interest Period for such Loan.




“Interim Revolving Credit Loan Availability Amount”: as defined in Section
5.1(p).




“Interim Order”: an order of the Bankruptcy Court entered in the Cases granting
interim approval of this Agreement and the other Loan Documents, and the contemplated
borrowings and undertakings herein and therein by the Loan Parties, and granting the Liens
on the Collateral and the Superpriority Claims described in the preliminary statements to
this Agreement in favor of the Administrative Agent and the Lenders, substantially in the
form of Exhibit G hereto, and otherwise in form and substance reasonably satisfactory to the
Administrative Agent.




“Interim Order Entry Date”: the date the Interim Order is entered in the Cases.




“Inventory”: as defined in the definition of “Eligible Inventory”.


 


23









 






“Inventory Reserves”: reserves against Inventory equal to the sum of the
following (but without duplication):




(a) RTV Reserves; and




(b) a reserve determined by the Administrative Agent in its Permitted Discretion for
Inventory that it deems to be obsolete or which is discontinued or slow-moving; and




(c) a reserve for Inventory which is recognized as damaged or off quality or not to
customer specifications by the Borrower; and




(d) a revaluation reserve whereby capitalized favorable variances shall be deducted
from Eligible Inventory and unfavorable variances shall not be added to Eligible Inventory;
and




(e) a lower of the cost or market value reserve for any differences between the
Borrower’s actual cost to produce versus its selling price to third parties, determined on a
product line basis; and




(f) any other Reserves, including reserves for inventory shrinkage as deemed
appropriate by the Administrative Agent in its Permitted Discretion, from time to time.




“Investment Grade”: having a rating established by a third party rating agency
equivalent to BBB- or better from S&P or Baa3 or better from Moody’s.




“IRS” means the United States Internal Revenue Service.




“Issuing Lender”: JPMorgan Chase Bank, N.A., in its capacity as the issuer of
Letters of Credit hereunder. The Issuing Lender may, in its discretion, arrange for one or
more Letters of Credit to be issued by Affiliates of the Issuing Lender, in which case the
term “Issuing Lender” shall include any such Affiliate with respect to Letters of Credit
issued by such Affiliate.




“Landlord Waiver”: a written agreement reasonably satisfactory in form and
substance to the Administrative Agent (i) acknowledging that Inventory located at a leased
property or in possession or control of any warehouseman, bailee, agent or processor is
subject to the Lien granted under the Security Documents, (ii) waiving and releasing any
applicable Lien held by such lessor, warehouseman, bailee, agent or processor with respect
to such item of Inventory (whether arising by operation of law or otherwise) and (iii)
providing the Administrative Agent with the right to receive notice of default, the right to
repossess such item of Inventory at any time upon the occurrence or during the continuance
of a Default or Event of Default and such other rights as may be reasonably required by the
Administrative Agent.




“L/C Cash Collateral”: the cash collateral pledged in support of the
Prepetition Letters of Credit pursuant to Section 7.3(p).


 


24









 






“L/C Commitment”: $10,000,000.




“L/C Fee Payment Date”: the last day of each calendar month and the last day
of the Revolving Credit Commitment Period.




“L/C Obligations”: at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and
(b) the aggregate amount of drawings under Letters of Credit which have not then been
reimbursed pursuant to Section 3.5.




“L/C Participants”: the collective reference to all the Lenders other than the
Issuing Lender.




“LC Exposure”: at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all
Reimbursement Obligations at such time. The LC Exposure of any Revolving Lender at any time
shall be its Applicable Revolving Percentage of the total LC Exposure at such time.




“Lenders”: as defined in the preamble hereto; provided, that unless
the context otherwise requires, each reference herein to the Lenders shall be deemed to
include any Conduit Lender.




“Letters of Credit”: as defined in Section 3.1(a).




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




“Liquidity”: on any date of determination, the sum, without duplication, of
(i) the cash and Cash Equivalents which are not subject to any Liens (other than Liens
securing the Obligations, customary bankers Liens, junior Liens in favor of any Prepetition
Lender and the Carve-Out) held by the Borrower and its Subsidiaries on such date plus (ii)
the aggregate Revolving Credit Availability on such date (provided that such amount shall be
deemed to be zero if a Event of Default has occurred and is continuing on such date).
Solely for the purposes of determining compliance with Section 7.1(a) (but not for any other
purposes under this Agreement), the Borrower, by giving written notice to the Administrative
Agent, may elect that Revolving Credit Availability shall, for a period of 28 consecutive
days after a new discretionary Reserve has been implemented by the Administrative Agent, be
calculated without giving effect to such new discretionary Reserve; provided that
the Borrowing Base component of Revolving Credit Availability calculated for purposes of
Section 7.1(a) shall at no time be more than the actual amount of the Borrowing Base
(including such new discretionary Reserve) at such time plus $3,000,000.


 


25









 






“Loan”: any loan made by any Lender pursuant to this Agreement.




“Loan Documents”: this Agreement, the Security Documents and the Notes as the
same may be amended, supplemented or otherwise modified from time to time.




“Loan Parties”: SuperHoldings, Holdings, the Borrower and each other
Subsidiary of SuperHoldings which is a party to a Loan Document.




“Material Adverse Effect”: any event, development or circumstance that has had
or could reasonably be expected to have a material adverse effect on (a) the business,
assets, operations, condition, financial or otherwise, of the Borrower and its Subsidiaries
taken as a whole (other than (i) any events leading up to the filing of the Cases disclosed
to the Lenders, (ii) the filing of the Cases and (iii) those events which customarily occur
following the commencement of a proceeding under Chapter 11 of the Bankruptcy Code and other
events ancillary thereto), (b) the ability of any Loan Party to perform any of its
obligations under the Loan Documents to which it is a party, (c) the Collateral, or the
Administrative Agent’s Liens (on behalf of itself and the Lenders) on the Collateral or the
priority of such Liens, or (d) the rights of or benefits available to the Administrative
Agent, the Issuing Lender or the Lenders thereunder.




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




“Maturity Date”: the first anniversary of the Closing Date.




“Moody’s”: as defined in the definition of “Cash Equivalents”.




“Mortgaged Properties”: the owned real properties listed on Schedule 1.1B, as
to which the Administrative Agent for the benefit of the Lenders has been or shall be
granted a Lien pursuant to the Mortgages.




“Mortgages”: each mortgage referred to in Section 6.13 and each of the
mortgages and deeds of trust made by any Loan Party in favor of, or for the benefit of, the
Administrative Agent for the benefit of the Lenders and in form and substance reasonably
satisfactory to the Administrative Agent, as the same may be amended, supplemented or
otherwise modified from time to time.




“Multiemployer Plan”: a Plan which is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.


 


26









 






“Net Cash Proceeds”: (a) in connection with any Asset Sale or any Recovery
Event, the proceeds thereof in the form of cash and Cash Equivalents (including any such
proceeds received by way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys’ fees,
accountants’ fees, investment banking fees, amounts required to be applied to the
repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset which
is the subject of such Asset Sale or Recovery Event (other than any Lien securing the
Obligations or which is junior to the Liens securing the Obligations) but only to the extent
the holders of such Indebtedness are not required to turn over any such proceeds to any or
all of the Credit Parties, insurance proceeds applied to pay costs incurred in connection
with the repair or restoration of any Property that is real property in the event of damage
by casualty and other customary fees and expenses actually incurred in connection therewith
and net of taxes paid or reasonably estimated to be payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements) and (b) in connection with any issuance or sale of debt securities or
instruments or the incurrence of loans, the cash proceeds received from such issuance or
incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting
discounts and commissions and other customary fees and expenses actually incurred in
connection therewith.




“Net Orderly Liquidation Value”: with respect to Inventory of the Borrower and
its Subsidiaries, the orderly liquidation value thereof as determined in a manner reasonably
acceptable to the Administrative Agent by an appraiser reasonably acceptable to the
Administrative Agent, net of all costs of liquidation thereof.




“Non-Consenting Lender”: as defined in Section 10.1.




“Non-U.S. Lender”: a Lender that is not a U.S. Person.




“Notes”: the collective reference to any promissory note evidencing Loans.




“Obligations”: as defined in the Guarantee and Collateral Agreement.




“Orders”: the collective reference to the Interim Order and the Final Order.




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




“Parent”: with respect to any Lender, any Person as to which such Lender is,
directly or indirectly, a Subsidiary.




“Participant”: as defined in Section 10.6(c).




“Participant Register”: as defined in Section 10.6(c).




“Past-due Addbacks”: the aggregate amount of past due credit balances aged
over 90 days from the original invoice date.


 


27









 






“Payment Office”: the office specified from time to time by the Administrative
Agent as its payment office by notice to the Borrower and the Lenders.




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




“Peak Period”: the collective reference to (i) the period from and including
May 1 of any year to and including August 31 of the same year and (ii) the period from and
including December 1 of any year to and including January 15 of next succeeding year.




“Pension Act”: the Pension Protection Act of 2006.




“Permitted Discretion”: a determination made in good faith and in the exercise
of reasonable (from the perspective of a secured asset-based lender) business judgment
exercised in accordance with the Administrative Agent’s customary and generally applicable
credit practices.




“Person”: an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.




“Petition Date”: as defined in the preliminary statements hereto.




“Plan”: at a particular time, any employee benefit plan (within the meaning of
Section 3(3) of ERISA) which is covered by ERISA and in respect of which any Loan Party is
(or, if such plan were terminated at such time, would under Section 4062 or 4069 of ERISA be
deemed to be) an “employer” as defined in Section 3(5) of ERISA or with respect to which any
Loan Party has or may reasonably be expected to have any liability (including any contingent
liability of any Commonly Controlled Entity).




“Prepetition Agent”: JPMorgan Chase Bank, N.A., in its capacity as
administrative agent under the Prepetition Credit Agreement.




“Prepetition Banking Services Obligations”: the “Banking Services Obligations”
(as defined in the Prepetition Credit Agreement) existing on the Petition Date.




“Prepetition Credit Agreement”: the Credit Agreement, dated as of February 13,
1998, as amended and restated as of December 10, 2003 and March 4, 2004 and October 2, 2009
and as amended on March 22, 2010, among the Borrower, SuperHoldings, Holdings, certain
financial institutions and the Administrative Agent.




“Prepetition Lenders”: the several banks and other financial institutions and
entities from time to time parties to the Prepetition Credit Agreement.




“Prepetition Letters of Credit”: as defined in Section 5.1(s).


 


28









 






“Prepetition Obligations”: all the Debtors’ “Obligations” (as defined in the
Prepetition Credit Agreement), including Prepetition Banking Services Obligations and
Prepetition Swap Obligations.




“Prepetition Secured Parties”: the Prepetition Agent, the Prepetition Lenders
and any other holder of Prepetition Obligations.




“Prepetition Swap Agreements”: the “Swap Agreements” (as defined in the
Prepetition Credit Agreement) existing on the Petition Date.




“Prepetition Swap Obligations”: the “Swap Obligations” (as defined in the
Prepetition Credit Agreement) existing on the Petition Date.




“Primary Investors”: the collective reference to the Sponsors and their
Related Parties, and any additional investment fund for which any of the Sponsors is the
sole advisor or which is effectively controlled by any of the Sponsors.




“Priming Jurisdiction”: any jurisdiction listed on Schedule 1.1C hereto, which
schedule may be revised by the Administrative Agent to reflect changes in applicable law.
The Administrative Agent shall provide the Borrower with ten days’ prior written notice of
any revisions to the jurisdictions listed on Schedule 1.1C hereto.




“Pro Forma Basis”: with respect to any test hereunder in connection with any
event, means that such test shall be calculated after giving effect on a pro forma basis for
the period of such calculation to (i) such event as if it happened on the first day of such
period (it being understood that with respect to any acquisition or disposition, any such
adjustments shall be permitted solely to the extent they arise out of events which are
directly attributable to the acquisition or the disposition, are factually supportable and
are expected to have a continuing impact, in each case as determined on a basis consistent
with Article 11 of Regulation S-X of the Securities Act of 1933, as amended, as interpreted
by the SEC, and as certified by a Responsible Officer of the Borrower) or (ii) the
incurrence of any Indebtedness by the Borrower or any Subsidiary and any incurrence,
repayment, issuance or redemption of other Indebtedness of the Borrower or any Subsidiary
occurring at any time subsequent to the last day of the applicable period and on or prior to
the date of determination, as if such incurrence, repayment, issuance or redemption, as the
case may be, occurred on the first day of such period.




“Prohibited Transaction”: as defined in Section 406 of ERISA and Section
4975(f)(3) of the Code.




“Properties”: as defined in Section 4.17.




“Property”: any right or interest in or to property of any kind whatsoever,
whether real, personal or mixed and whether tangible or intangible, including, without
limitation, Capital Stock.




“Protective Advances”: as defined in Section 2.23(a).


 


29









 






“Recovery Event”: any settlement of or payment in respect of any property,
title or casualty insurance claim or any condemnation proceeding relating to any asset of
the Debtors.




“Reference Lender”: the Administrative Agent.




“Register”: as defined in Section 10.6(b).




“Regulation U”: Regulation U of the Board as in effect from time to time.




“Reimbursement Obligation”: the obligation of the Borrower to reimburse the
Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit.




“Reinvestment Deferred Amount”: with respect to any Reinvestment Event, the
aggregate Net Cash Proceeds received by any Debtor in connection therewith which are not
applied to prepay the Loans as a result of the delivery of a Reinvestment Notice.




“Reinvestment Event”: any Asset Sale or Recovery Event in respect of which the
Borrower has delivered a Reinvestment Notice.




“Reinvestment Notice”: a written notice executed by a Responsible Officer
stating that no Event of Default has occurred and is continuing and that the Borrower
(directly or indirectly through a Subsidiary) intends and expects to use all or a specified
portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire assets useful
in its business.




“Reinvestment Prepayment Amount”: with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant
Reinvestment Prepayment Date to acquire assets useful in the Borrower’s business.




“Reinvestment Prepayment Date”: with respect to any Reinvestment Event, the
earlier of (a) the date occurring 90 days after such Reinvestment Event and (b) the date on
which the Borrower shall have determined not to, or shall have otherwise ceased to, acquire
assets useful in the Borrower’s business with all or any portion of the relevant
Reinvestment Deferred Amount.




“Related Credit Party”: with respect to any Lender, any affiliate of such
Lender and such Lender’s and its affiliates’ respective officers, directors, employees,
agents and controlling persons.




“Related Party”: with respect to any of the Sponsors (A) any controlling
stockholder or partner, a direct or indirect 80% (or more) owned Subsidiary, or spouse or
immediate family member (in the case of an individual) of such Sponsor, (B) any trust,
corporation, partnership or other entity, the controlling beneficiaries, stockholders,
partners or owners of which, directly or indirectly, consist of the Sponsor and/or such
other Persons referred to in the immediately preceding clause (A) and/or in the succeeding
clause (D), (C) any partner or stockholder of such Sponsor as of the Closing
Date who acquires any assets or voting stock of the Borrower or Holdings pursuant to a
general distribution by such Sponsor to each of its partners or stockholders or (D) any
officer or director of such Sponsor.



 


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“Rent Reserve”: on any date, (i) with respect to any retail store, distribution
center, warehouse, or other location in a Priming Jurisdiction where any Eligible Inventory
subject to a Lien arising by operation of contract and/or law is located and with respect to
which no Landlord Waiver is in effect, a reserve equal to three months’ rent at such retail
store, distribution center, warehouse, or other location and (ii) with respect to any retail
store, distribution center, warehouse, or other location in any jurisdiction that is not a
Priming Jurisdiction where any Eligible Inventory subject to a Lien arising by operation of
contract and/or law is located and with respect to which no Landlord Waiver is in effect, a
reserve in an amount equal to the claims or Liens that vendors, landlords, public warehouse
operators or any third party bailee may have against such Eligible Inventory.




“Reorganization”: with respect to any Multiemployer Plan, the condition that
such plan is in reorganization within the meaning of Section 4241 of ERISA.




“Reorganization Plan”: a plan of reorganization in the Cases with respect to
one or more of the Loan Parties.




“Report”: reports prepared by the Administrative Agent or another Person
showing the results of appraisals, field examinations or audits pertaining to the assets of
any Loan Party from information furnished by or on behalf of any Loan Party, after the
Administrative Agent has exercised its rights of inspection pursuant to this Agreement,
which Reports shall be distributed to the Lenders by the Administrative Agent.




“Reportable Event”: any of the events set forth in Section 4043(c) of ERISA or
the regulations thereunder, other than those events as to which the thirty day notice period
is waived under PBGC Regulations.




“Repricing Transaction”: the prepayment or refinancing of all or any portion of
the Term Loans concurrently with the incurrence by the Borrower or any of its Subsidiaries
or any other Loan Parties of any indebtedness (other than under any exit financing on the
Effective Date) having a lower cost of financing than, or any amendment to the Loan
Documents that has the effect of reducing the interest rate margin then applicable to, the
Term Loans (including any mandatory assignment in connection therewith).




“Required Lenders”: at any time, Lenders having Exposure and unused
Commitments representing more than 50% of the sum of all Exposure and unused Commitments at
such time.




“Requirement of Law”: as to any Person, the Certificate of Incorporation and
By-Laws or other organizational or governing documents of such Person, and any law, treaty,
rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person or any
of its Property or to which such Person or any of its Property is subject.


 


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“Reserved Local Blocked Account”: as defined in the Guarantee and Collateral
Agreement.




“Reserved Local Blocked Account Reserve”: on any date, a reserve in an amount
equal to the sum of the most recent Reserved Local Block Account Values of all Reserved
Local Blocked Accounts.




“Reserved Local Blocked Account Value”: as of the last day of each calendar
month, for each Reserved Local Blocked Account, the greatest amount held in such Reserved
Local Blocked Account at any time during the prior thirteen calendar months.




“Reserves”: any and all reserves which the Administrative Agent deems
necessary, in its Permitted Discretion, to maintain (including, without limitation, the
Dilution Reserve, reserves for accrued and unpaid interest on the Obligations, reserves in
respect of Banking Services, volatility reserves, Rent Reserves, the Reserved Local Blocked
Account Reserve, reserves for Inventory shrinkage, reserves for customs charges and shipping
charges related to any Inventory in transit, reserves for Swap Obligations, reserves for
contingent liabilities of any Loan Party, reserves for uninsured losses of any Loan Party,
reserves for uninsured, underinsured, un-indemnified or under-indemnified liabilities or
potential liabilities with respect to any litigation and reserves for taxes, fees,
assessments, and other governmental charges) with respect to the Collateral or any Loan
Party.




“Responsible Officer”: the chief executive officer, president or chief
financial officer of the Borrower, but in any event, with respect to financial matters, the
chief financial officer, vice president — finance or controller of the Borrower.




“Restricted Payment”: as defined in Section 7.6.




“Retail Inventory”: all Inventory located at a Bookstore consisting of: new
and used textbooks, including any related study aids; general subject books; medical,
technical and reference books; periodicals and magazines; clothing, including school
insignia items; electronics; gifts; stationery and cards; school and office supplies and
art; food, beverages and sundries; and all other items held for resale in the ordinary
course of business.




“Revolving Credit Availability”: at any time, an amount equal to (a) the
lesser of (i) the Total Revolving Credit Commitments and (ii) the Borrowing Base (as
determined by the Administrative Agent in its Permitted Discretion) minus (b) the
Total Revolving Credit Exposure.




“Revolving Credit Commitment”: as to any Lender, the obligation of such
Lender, if any, to make Revolving Credit Loans and participate in Letters of Credit in an
aggregate principal and/or face amount not to exceed the amount set forth under the heading
“Revolving Credit Commitment” opposite such Lender’s name on Schedule
1.1A or in the Assignment and Assumption pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the terms hereof. The
amount of the Total Revolving Credit Commitments on the Closing Date is $75,000,000.


 


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“Revolving Credit Commitment Period”: the period from and including the
Closing Date to the Termination Date.




“Revolving Credit Loans”: as defined in Section 2.1(a).




“Revolving Credit Exposure”: as to any Revolving Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Revolving Credit Loans made by
such Revolving Lender then outstanding, (b) such Lender’s Applicable Revolving Percentage of
the L/C Obligations then outstanding and (c) such Revolving Lender’s Applicable Revolving
Percentage of the aggregate principal amount of Protective Advances then outstanding.




“Revolving Facility”: as defined in the preliminary statements hereto.




“Revolving Lender”: any Lender holding a Revolving Credit Commitment.




“Rollover Issuing Lender”: JPMorgan Chase Bank, N.A., in its capacity as
issuer of the Rollover Letters of Credit.




“Rollover Letters of Credit”: the letter of credit or letters of credit
described on Schedule 3.1 outstanding as of the Petition Date and issued under the
Prepetition Credit Agreement.




“RTV Reserve”: at any time, an amount equal to the amount of Inventory that is
identified as to be returned to vendor.




“S&P”: as defined in the definition of “Cash Equivalents”.




“Second Availability Date”: the date immediately following the occurrence of
the Final Order Entry Date that the conditions precedent set forth in Sections 5.1, 5.2 and
5.3 shall have been satisfied (which in no event shall be more than five Business Days
following the Final Order Entry Date (or such later date as the Administrative Agent may
agree in its sole discretion)).




“Secured Parties”: as defined in the Guarantee and Collateral Agreement.




“Security Documents”: the collective reference to the Guarantee and Collateral
Agreement, the Mortgages and all other security documents hereafter delivered to the
Administrative Agent granting a Lien on any Property of any Person to secure the obligations
and liabilities of any Loan Party under any Loan Document.




“Senior Secured Notes Indenture”: the Indenture dated as of October 2, 2009
entered into by the Borrower and certain Subsidiary Guarantors in connection with the
issuance of the Senior Secured Notes, together with all instruments and other
agreements entered into by the Borrower in connection therewith, each as amended, restated,
supplemented or otherwise modified from time to time.



 


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“Senior Secured Notes”: the 10% Senior Secured Notes, as amended, of the
Borrower due 2011 and issued pursuant to the Senior Secured Notes Indenture.




“Senior Subordinated Notes Indenture”: the Indenture dated as of March 4, 2004
entered into by the Borrower and certain Subsidiary Guarantors in connection with the
issuance of the Senior Subordinated Notes, together with all instruments and other
agreements entered into by the Borrower in connection therewith, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with Section 7.9.




“Senior Subordinated Notes”: the
85/8% Senior Subordinated Notes of the Borrower
due 2012 and issued pursuant to the Senior Subordinated Notes Indenture.




“Single Employer Plan”: any Plan which is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.




“Sponsors”: Weston Presidio Capital III, L.P., a Delaware limited partnership,
Weston Presidio Capital IV, L.P., a Delaware limited partnership, WPC Entrepreneur Fund,
L.P., a Delaware limited partnership, and WPC Entrepreneur Fund II, L.P., a Delaware limited
partnership.




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




“Subsidiary Guarantor”: each Subsidiary of the Borrower other than any
Excluded Foreign Subsidiary.




“SuperHoldings”: as defined in the preamble hereto.




“Supermajority Revolving Lenders”: the holders of more than 75% of the Total
Revolving Credit Commitments or, if the Revolving Credit Commitments have been terminated,
the Total Revolving Credit Exposure.




“Superpriority Claim”: a claim against any Debtor in any of the Cases which is
an administrative expense claim having priority over any or all administrative expenses of
the kind specified in Section 503(b) or 507(b) of the Bankruptcy Code, including a claim
pursuant to Section 364(c)(1) of the Bankruptcy Code.


 


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“Swap Agreement”: any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to,
one or more rates, currencies or commodities; provided that no phantom stock or
similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Company or the Subsidiaries
shall be a Swap Agreement.




“Swap Obligations”: of a Person, any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof and substitutions
therefor), under (a) any and all Swap Agreements entered into on or after the Petition Date
with a Lender (or any Affiliate of a Lender) at the time entered into, and (b) any and all
cancellations, buy backs, reversals, terminations or assignments of any Swap Agreement
transaction, if such Swap Agreement is entered into on or after the Petition Date with a
Lender (or any Affiliate of a Lender) at the time entered into.




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




“Term Lender”: any Lender holding a Term Loan Commitment.




“Term Loan Commitment”: as to any Lender, the obligation of such Lender, if
any, to make Term Loans on the Closing Date in an aggregate principal amount not to exceed
the amount set forth under the heading “Term Loan Commitment” opposite such Lender’s name on
Schedule 1.1A. The amount of the Term Loan Commitments on the Closing Date is $125,000,000.




“Term Loan Exposure”: as to any Term Loan Lender at any time, an amount equal
to the sum of the aggregate principal amount of all Term Loans made by such Term Loan Lender
then outstanding.




“Term Loan Facility”: as defined in the preliminary statements hereto.




“Term Loans”: as defined in Section 2.1(b).




“Term Prepayment Premium”: one percent (1%) of the principal amount of the Term
Loans prepaid (or whose interest rate margin is effectively reduced) after the Closing in
connection with a Repricing Transaction.




“Termination Date”: the earliest to occur of (a) the Maturity Date, (b) the
date that is five Business Days after the Petition Date (or such later date as the
Administrative Agent may agree in its sole discretion) if entry of the Interim Order shall
not have occurred by such date, (c) the date that is thirty-five days (or such later date as
the Administrative Agent may agree, acting in its sole discretion) after the Petition Date
if entry of the Final Order shall not have occurred by such date, (d) the Effective Date and
(e) the acceleration of the Loans and, in connection therewith, the termination of the
unused Commitments in accordance with the terms hereof.


 


35









 






“Total Commitments”: at any time, the aggregate amount of the Total Revolving
Credit Commitments and the Total Term Loan Commitments at such time.




“Total Exposure”: at any time, the aggregate amount of the Exposure of all
Lenders at such time.




“Total Revolving Credit Commitments”: at any time, the aggregate amount of the
Revolving Credit Commitments at such time.




“Total Revolving Credit Exposure”: at any time, the aggregate amount of the
Revolving Credit Exposure of all Revolving Lenders at such time.




“Total Term Loan Commitments”: at any time, the aggregate amount of the Term
Loan Commitments at such time.




“Total Term Loan Exposure”: at any time, the aggregate amount of the Term Loan
Exposure of all Term Loan Lenders at such time.




“Transferee”: as defined in Section 10.15.




“Type”: as to any Loan, its nature as a Base Rate Loan or a Eurodollar Loan.




“UCC”: as defined in the Guarantee and Collateral Agreement.




“Uniform Customs”: the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce Publication No. 500, as the same may be
amended from time to time.




“U.S. Person”: a “United States person” within the meaning of Section
7701(a)(30) of the Code.




“U.S. Tax Certificate”: as defined in Section 2.17(f)(ii)(D).




“Wholly Owned Subsidiary”: as to any Person, any other Person all of the
Capital Stock of which (other than directors’ qualifying shares required by law) is owned by
such Person directly and/or through other Wholly Owned Subsidiaries.




“Wholly Owned Subsidiary Guarantor”: any Subsidiary Guarantor that is a Wholly
Owned Subsidiary of the Borrower.




“Withdrawal Liability”: liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in
Title IV of ERISA.




“Withholding Agent”: any Loan Party and the Administrative Agent.


 


36









 





1.2 Other Definitional Provisions. (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in the other Loan Documents or any certificate or other document made or
delivered pursuant hereto or thereto.



(b) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.



(c) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.



1.3 Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to time, provided that, if the
Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision
(including any definition) hereof to eliminate the effect of any change occurring after the Closing
Date in GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall be interpreted on the
basis of GAAP as in effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in accordance herewith. In
the event that the historical accounting practices, systems or reserves relating to the components
of the Borrowing Base are modified in a manner that is adverse to the Lenders in any material
respect, the Borrower will agree to maintain such additional reserves (for purposes of computing
the Borrowing Base) in respect to the components of the Borrowing Base and make such other
adjustments (which may include maintaining additional reserves, modifying the advance rates or
modifying the eligibility criteria for the components of the Borrowing Base) as may be appropriate
to eliminate the material adverse effects thereof. Notwithstanding any other provision contained
herein, all terms of an accounting or financial nature used herein shall be construed, and all
computations of amounts and ratios referred to herein shall be made, without giving effect to any
election under Accounting Standards Codification 825-10-25 (previously referred to as Statement of
Financial Accounting Standards 159) (or any other Accounting Standards Codification or Financial
Accounting Standard having a similar result or effect) to value any Indebtedness or other
liabilities of any Debtor at “fair value”, as defined therein.



Section 2. AMOUNT AND TERMS OF COMMITMENTS




2.1 Commitments. (a) Subject to the terms and conditions hereof, each Lender severally agrees to make revolving
credit loans (“Revolving Credit Loans”) to the Borrower from time to time during the
Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding
which, when added to such Lender’s Applicable Revolving Percentage of the sum of (i) the L/C
Obligations then outstanding and (ii) the aggregate amount of the Protective Advances then
outstanding, does not exceed the amount of such Lender’s Revolving Credit Commitment;
provided that during the period from the First Availability Date until the Second
Availability Date, (A) unless approved by the Administrative Agent, acting in its sole discretion,
the Revolving Credit Commitments may only be utilized for the Rollover Letters of Credit and not
for Initial Letters of Credit or Initial Revolving Credit Loans and (B) in addition, the aggregate
principal amount of Initial Revolving Credit Loans, Rollover Letters of Credit and Initial Letters
of Credit outstanding (any Revolving Credit Loans extended during such period, “Initial
Revolving Credit Loans” and any Revolving Credit Loans on the Second Availability Date or
thereafter, “Final Revolving Credit Loans”) shall not exceed the Interim Revolving Credit
Availability Amount; provided further that no Revolving Credit Loans shall be made
if, after giving effect to the making of such Revolving Credit Loans, the Total Revolving Credit
Exposure would exceed the lesser of (A) the Borrowing Base then in effect and (B) the Total
Revolving Credit Commitments. During the Revolving Credit Commitment Period the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving
Credit Loans may from time to time be Eurodollar Loans or Base Rate Loans, as determined by the
Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.10,
provided that no Revolving Credit Loan shall be made as a Eurodollar Loan after the day
that is one month prior to the Maturity Date.


 


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(b) Subject to the terms and conditions hereof, each Lender severally agrees to make a term
loan (the “Term Loans”) to the Borrower on the Closing Date in an aggregate principal
amount which does not exceed the amount of such Lender’s Term Loan Commitment. Term Loans may not
be reborrowed once repaid. The Term Loans may only be borrowed in one single borrowing to be made
on the Closing Date. The Term Loans may from time to time be Eurodollar Loans or Base Rate Loans,
as determined by the Borrower and notified to the Administrative Agent in accordance with Sections
2.2 and 2.10, provided that no Term Loan shall be made as a Eurodollar Loan after the day
that is one month prior to the Maturity Date.




(c) The Borrower shall repay all outstanding Revolving Credit Loans on the Termination Date.
The Borrower shall repay all outstanding Term Loans on the Termination Date.



2.2 Procedure for Borrowing. (a) The Borrower may borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent
prior to 1:00 P.M., New York City time, (a) three Business Days prior to the requested Borrowing
Date, in the case of Eurodollar Loans, or (b) on the requested Borrowing Date, in the case of Base
Rate Loans), specifying (i) the amount and Type of Revolving Credit Loans to be borrowed, (ii) the
requested Borrowing Date and (iii) in the case of Eurodollar Loans, the respective amounts of each
such Type of Loan and the respective lengths of the initial Interest Period therefor. Any
Revolving Credit Loans made on the Closing Date shall initially be Base Rate Loans. Each borrowing
under the Revolving Credit Commitments shall be in an amount equal to (x) in the case of Base Rate
Loans, $1,000,000 or a whole multiple thereof (or, if the Revolving Credit Availability is less
than $1,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof. Upon receipt of
any such notice from the Borrower, the Administrative Agent shall promptly notify each Revolving
Lender thereof. Each Revolving Lender will make the amount of its pro rata share
of each borrowing available to the Administrative Agent for the account of the Borrower at the
Funding Office prior to 1:00 P.M., New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by the Administrative Agent in like funds as received by the
Administrative Agent.


 


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(b) The Borrower may make one single borrowing of the Term Loans on the Closing Date,
provided that the Borrower shall give the Administrative Agent irrevocable notice (which
notice must be received by the Administrative Agent prior to 1:00 P.M., New York City time, one
Business Day prior to the Closing Date), specifying (i) the amount to be borrowed and (ii) the
requested Borrowing Date (which shall be the Closing Date). The Term Loans made on the Closing
Date shall initially be Base Rate Loans. Upon receipt of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Term Lender thereof. Each Term Lender will make
the amount of its pro rata share of the borrowing available to the Administrative
Agent for the account of the Borrower at the Funding Office prior to 1:00 P.M., New York City time,
on the Closing Date in funds immediately available to the Administrative Agent. Such borrowing
will then be made available to the Borrower by the Administrative Agent in like funds as received
by the Administrative Agent.



2.3 Base Rate Loans Prior to Second Availability Date. Notwithstanding the contrary herein, prior to the Second Availability Date, all Revolving Credit
Loans may only consist of Base Rate Loans.



2.4 RESERVED.



2.5 Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the
account of the appropriate Lender, (i) the then unpaid principal amount of each Revolving Credit
Loan of such Lender on the Termination Date, (ii) the then unpaid principal amount of each Term
Loan of such Term Loan Lender on the Termination Date or (iii) the then unpaid amount of each
Protective Advance on the earliest of (A) the Termination Date, (B) the day that is 30 days after
the making of such Protective Advance (or if such day is not a Business Day, the next succeeding
Business Day) and (C) demand by the Administrative Agent. The Borrower hereby further agrees to
pay interest on the unpaid principal amount of the Loans from time to time outstanding from the
date hereof until payment in full thereof at the rates per annum, and on the dates, set forth in
Section 2.12.



(b) During any Cash Dominion Period that exists other than as a result of an Event of Default,
on each Business Day, the Administrative Agent may, in its Permitted Discretion (unless otherwise
directed by the Required Lenders), apply all funds credited to the Collection Account or
Concentration Account as of 10:00 a.m., New York City time, on such
Business Day (whether or not immediately available) first to prepay any Protective
Advances that may be outstanding, pro rata, second to prepay the Revolving Credit Loans
(without a corresponding reduction in Revolving Credit Commitments) and cash collateralize Letters
of Credit, and third to prepay the Term Loans; provided that during an Event of
Default, all such amounts shall be applied in accordance with Section 8.2.



(c) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing indebtedness of the Borrower to such Lender resulting from each Loan of such Lender from
time to time, including the amounts of principal and interest payable and paid to such Lender from
time to time under this Agreement.


 


39









 





(d) The Administrative Agent, on behalf of the Borrower, shall maintain the Register pursuant
to Section 10.6(b), and a subaccount therein for each Lender, in which shall be recorded (i) the
amount of each Loan made hereunder and any Note evidencing such Loan, the Type thereof and each
Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder and (iii) both the amount of
any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share
thereof.



(e) The entries made in the Register and the accounts of each Lender maintained pursuant to
Section 2.5 shall, to the extent permitted by applicable law, be prima facie
evidence of the existence and amounts of the obligations of the Borrower therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to such Borrower by
such Lender in accordance with the terms of this Agreement.



(f) The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the
Borrower will execute and deliver to such Lender a promissory note of the Borrower evidencing any
Revolving Credit Loans or Term Loans, as the case may be, of such Lender, substantially in the
forms of Exhibit G-1 or G-2, respectively, with appropriate insertions as to date and principal
amount.



2.6 Commitment Fees, etc. (a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee for the period from and including the Closing Date to the last day of the Revolving
Credit Commitment Period, computed at the Commitment Fee Rate on the average daily amount of the
Revolving Credit Commitment of such Lender during the period for which payment is made, payable
monthly in arrears on the last day of each calendar month and on the Maturity Date, commencing on
the first of such dates to occur after the date hereof.



(b) The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the
dates from time to time agreed to in writing by the Borrower and the Administrative Agent set forth
in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever (except as expressly agreed between the Borrower and the Administrative Agent).



2.7 Termination or Reduction of Revolving Credit Commitments. The Borrower shall have the right, upon not less than three Business Days’ notice to the
Administrative Agent, to terminate the Revolving Credit Commitments or, from time to time, to
reduce the amount of the Revolving Credit Commitments; provided that no such termination or
reduction of Revolving Credit Commitments shall be permitted if, after giving effect thereto and to
any prepayments of the Revolving Credit Loans made on the effective date thereof, the Total
Revolving Credit Exposure would exceed the Total Revolving Credit Commitments. Any such reduction
shall be in an amount equal to $500,000, or a whole multiple thereof, and shall reduce permanently
the Revolving Credit Commitments then in effect.


 


40









 





2.8 Optional Prepayments. (a) The Borrower may at any time and from time to time prepay the Loans, in whole or in part,
without premium or penalty, upon irrevocable notice delivered to the Administrative Agent at least
three Business Days prior thereto in the case of Eurodollar Loans and at least one Business Day
prior thereto in the case of Base Rate Loans, which notice shall specify the date and amount of
prepayment and whether the prepayment is of Eurodollar Loans or Base Rate Loans; provided,
that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period
applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.18. Upon
receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender
thereof. If any such notice is given, the amount specified in such notice shall be due and payable
on the date specified therein, together with (except in the case of Revolving Credit Loans which
are Base Rate Loans) accrued interest to such date on the amount prepaid. Prepayments of the Term
Loans may not be reborrowed.



(b) Notwithstanding the foregoing, the Borrower may not voluntarily prepay the Term Loans
(other than in connection with a Repricing Transaction so long as the aggregate principal amount of
the term loans under such Repricing Transaction is the same as the aggregate principal amount of
the repaid Term Loans at such time plus the amount of any fees, costs, premiums and accrued
interest paid in connection therewith) until all Revolving Credit Loans have been paid in full in
cash, all LC Exposure has been cash collateralized and the Revolving Credit Commitments have been
terminated. Any prepayment of Term Loans pursuant to this Section 2.8(b) (and any prepayment of
Term Loans pursuant to a Repricing Transaction described in the immediately preceding sentence)
shall be accompanied by the payment of the Term Prepayment Premium, if any is then due.



2.9 Mandatory Prepayments. (a) In the event and on such occasion that:




(i) the Revolving Credit Exposure of any Revolving Lender exceeds such Revolving
Lender’s Revolving Credit Commitment; or




(ii) the Total Revolving Exposure exceeds the lesser of (x) Total Revolving Credit
Commitments and (y) the Borrowing Base;



the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided
that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the
amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall,
to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit
an amount in cash in a cash collateral account established with the Administrative Agent for the
benefit of the Lenders on terms and conditions reasonably satisfactory to the Administrative Agent.



(b) If any Indebtedness shall be incurred by a Debtor, an amount equal to 100% of the Net Cash
Proceeds thereof received shall be applied on the date of receipt of such Net Cash Proceeds as set
forth in Section 2.9(d), provided, however, that the foregoing requirements of this
paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in
effect on the date of this Agreement.



(c) If on any date a Debtor shall receive Net Cash Proceeds from any Asset Sale or Recovery
Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant
Property is completed), then, unless a Reinvestment Notice shall be delivered in respect thereof,
such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d);
provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an
amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event
shall be applied as set forth in Section 2.9(d); and provided further, that
notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment
Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which
the aggregate amount of such Net Cash Proceeds received by a Debtor and not previously applied
toward the prepayment of the Loans shall exceed $1,000,000.



 


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(d) All such amounts described in Sections 2.9(b) and (c) shall be applied, first to
prepay any Protective Advances that may be outstanding, pro rata, second to prepay the
Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments
and cash collateralize Letters of Credit, and third to prepay the Term Loans;
provided that during an Event of Default, all such amounts shall be applied in accordance
with Section 8.2. If the precise amount of insurance or condemnation proceeds allocable to
Inventory as compared to equipment, fixtures and real property is not otherwise determined, the
allocation and application of those proceeds shall be determined by the Administrative Agent, in
its Permitted Discretion.




(e) [Reserved]



(f) The Borrower shall notify the Administrative Agent by telephone (confirmed by facsimile or
by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a
Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the
date of prepayment or (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00
A.M., New York City time, one Business Day before the date of prepayment. Each such notice shall
be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably
detailed calculation of the amount of such prepayment, provided that a notice of optional
prepayment may state that such notice is
conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any
other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to
the Administrative Agent on or prior to the specified date) if such condition is not satisfied.
Promptly following receipt of any such notice the Administrative Agent shall advise the Lenders of
the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in
an amount that would be permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.2 and each partial voluntary prepayment of any Term Loan shall be in an
amount equal to $500,000, or a whole multiple thereof. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied
by accrued interest to the extent required by Section 2.18.



2.10 Conversion and Continuation Options. (a) The Borrower may elect from time to time to convert Eurodollar Loans to Base Rate Loans by
giving the Administrative Agent at least two Business Days’ prior irrevocable notice of such
election, provided that any such conversion of Eurodollar Loans may only be made on the
last day of an Interest Period with respect thereto. The Borrower may elect from time to time to
convert Base Rate Loans to Eurodollar Loans (except, solely in the case of Revolving Loans, prior
to the Second Availability Date) by giving the Administrative Agent at least three Business Days’
prior irrevocable notice of such election (which notice shall specify the length of the initial
Interest Period therefor), provided that no Base Rate Loan may be converted into a
Eurodollar Loan (i) when any Event of Default has occurred and is continuing and the Administrative
Agent or the Required Lenders have determined in its or their sole discretion not to permit such
conversions or (ii) after the date that is one month prior to the Maturity Date. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. This
Section shall not apply to Protective Advances, which may not be converted or continued.


 


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(b) Any Eurodollar Loan may be continued as such upon the expiration of the then current
Interest Period with respect thereto by the Borrower giving irrevocable notice to the
Administrative Agent, in accordance with the applicable provisions of the term “Interest Period”
set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such (i) when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Required Lenders have determined
in its or their sole discretion not to permit such continuations or (ii) after the date that is one
month prior to the Maturity Date, and provided, further, that if the Borrower shall
fail to give any required notice as described above in this paragraph or if such continuation is
not permitted pursuant to the preceding proviso such Loans shall be automatically converted to Base
Rate Loans on the last day of such then expiring Interest Period. Upon receipt of any such notice
the Administrative Agent shall promptly notify each relevant Lender thereof.



2.11 Minimum Amounts and Maximum Number of Eurodollar Tranches. Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions,
continuations and optional prepayments of Eurodollar Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such elections so that, (a)
after giving effect thereto, the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to $2,500,000 or a whole multiple of
$500,000 in excess thereof and (b) no more than ten Eurodollar Tranches shall be outstanding at any
one time.



2.12 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall bear interest for each day during each Interest Period with
respect thereto at a rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin (it being understood that Eurodollar Loans bear interest from and including the
first day of each Interest Period to but not including the last day of such Interest Period).



(b) Each Base Rate Loan shall bear interest at a rate per annum equal to the Base Rate plus
the Applicable Margin.



(c) Upon the occurrence and during the continuation of an Event of Default, (i) all
outstanding Loans and Reimbursement Obligations (whether or not overdue) shall bear interest at a
rate per annum which is equal to (x) in the case of the Loans, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section 2.12 plus 2% or (y)
in the case of Reimbursement Obligations, the rate applicable to Base Rate Loans plus 2%,
(ii) the Letter of Credit commission payable pursuant to Section 3.3(a) shall be increased by 2%
and (iii) if all or a portion of any interest payable on any Loan or Reimbursement Obligation or
any commitment fee or other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise) such overdue amount shall bear interest at a rate
per annum equal to the rate applicable to Base Rate Loans plus 2%.


 


43









 





(d) Interest shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to paragraph (c) of this Section 2.12 shall be payable from time to time
on demand.



2.13 Computation of Interest and Fees. (a) Interest, fees and commissions payable pursuant hereto shall be calculated on the basis of
a 360-day year for the actual days elapsed, except that, with respect to Base Rate Loans the rate
of interest on which is calculated on the basis of the Prime Rate, the interest thereon shall be
calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the Base Rate or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of
the effective date and the amount of each such change in interest rate.



(b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver
to the Borrower a statement showing the quotations used by the Administrative Agent in determining
any interest rate pursuant to Section 2.12(a) and the manner of performing any required calculation
hereunder.



2.14 Inability to Determine Interest Rate. If prior to the first day of any Interest Period:




(a) the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for such Interest Period, or




(b) the Administrative Agent shall have received notice from the Required Lenders that
the Eurodollar Rate determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such Interest Period, the
Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and
the relevant Lenders as soon as practicable thereafter. If such notice is given (x) any
Eurodollar Loans requested to be made on the first day of such Interest Period shall be made
as Base Rate Loans, (y) any Loans that were to have been converted on the first day of such
Interest Period to Eurodollar Loans shall be continued as Base Rate Loans and (z) any
outstanding Eurodollar Loans shall be converted, on the first day of such Interest Period,
to Base Rate Loans. Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans shall be made or continued as such, nor shall the Borrower have the
right to convert Loans to Eurodollar Loans.


 


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2.15 Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder, each payment by the
Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders
shall be made pro rata according to the respective Applicable Revolving Percentages and Applicable
Term Loan Percentages, as the case may be, of the relevant Lenders.



(b) Each payment (including each prepayment) by the Borrower on account of principal of and
interest on the Revolving Credit Loans shall be made pro rata according to the
respective outstanding principal amounts of the Revolving Credit Loans then held by the Revolving
Lenders.



(c) Each payment (including each prepayment) by the Borrower on account of the principal of
and interest on the Term Loans shall be made pro rata according to the respective
outstanding principal amounts of the Term Loans then held by the Term Lenders. Amounts prepaid on
account of the Term Loans may not be reborrowed.



(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and
shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Payment Office, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such payments to the Lenders promptly
upon receipt in like funds as received. If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day
other than a Business Day, such payment shall be extended to the next succeeding Business Day.
If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day,
the maturity thereof shall be extended to the next succeeding Business Day unless the result of
such extension would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day. In the case of any extension of
any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable
at the then applicable rate during such extension.



(e) Unless the Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent, and the Administrative Agent
may, but shall not be required to, in reliance upon such assumption, make available to the Borrower
a corresponding amount. If such amount is not made available to the Administrative Agent by the
required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on
demand, such amount with interest thereon at a rate equal to the daily average Federal Funds
Effective Rate for the period until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this Section 2.15(e) shall be conclusive in the absence of
manifest error. If such Lender’s share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing Date, the
Administrative Agent shall also be entitled to recover such amount with interest thereon at the
rate per annum applicable to Base Rate Loans under the applicable Facility (in lieu of interest
otherwise provided for hereunder), on demand, from the Borrower.


 


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(f) Unless the Administrative Agent shall have been notified in writing by the Borrower prior
to the date of any payment being made hereunder that the Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment,
and the Administrative Agent may, but shall not be required to, in reliance upon such assumption,
make available to the Lenders their respective pro rata shares of a corresponding
amount. If such payment is not made to the Administrative Agent by the Borrower within three
Business Days of such required date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant to the preceding
sentence, such amount with interest thereon at the rate per annum equal to the daily average
Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the
Administrative Agent or any Lender against the Borrower.




(g) [Reserved]



(h) At the election of the Administrative Agent, all payments of principal, interest,
Reimbursement Obligations, fees, premiums, reimbursable expenses (including, without limitation,
all reimbursement for fees and expenses pursuant to Section 10.5), and other sums payable under the
Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a
request by the Borrower pursuant to Section 2.2 or a deemed request as provided in this Section or
may be deducted from any deposit account of the Borrower maintained with the Administrative Agent.
The Borrower hereby irrevocably authorizes (i) the Administrative Agent to make a Borrowing for the
purpose of paying each
payment of principal, interest and fees as it becomes due hereunder or any other amount due
under the Loan Documents and agrees that all such amounts charged shall constitute Loans and that
all such Borrowings shall be deemed to have been requested pursuant to Section 2.2 or 2.23, as
applicable and (ii) the Administrative Agent to charge any deposit account of the Borrower
maintained with the Administrative Agent for each payment of principal, interest and fees as it
becomes due hereunder or any other amount due under the Loan Documents.



2.16 Requirements of Law. (a) If the adoption of or any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental Authority made subsequent to
the date hereof:




(i) shall subject any Credit Party to any Taxes (other than (A) Indemnified Taxes
covered by Section 2.17 and (B) and the imposition of, or any change in the rate of, any
Excluded Tax) on its loans, loan principal, letters of credit, commitments, or other
obligations, or its deposits, reserves, other liabilities or capital attributable thereto;




(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory
loan or similar requirement against assets held by, deposits or other liabilities in or for
the account of, advances, loans or other extensions of credit by, or any other acquisition
of funds by, any office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate hereunder; or




(iii) shall impose on such Lender any other condition;


 


46









 





and the result of any of the foregoing is to increase, relative to the date hereof, the cost to
such Lender or such other Credit Party, by an amount which such Lender or other Credit Party deems
to be material, of making, converting into, continuing or maintaining Eurodollar Loans (or, in the
case of (i), any Loan) or issuing or participating in Letters of Credit, or to reduce, relative to
the date hereof, any amount receivable hereunder in respect thereof, then, in any such case, the
Borrower shall promptly pay such Lender or such other Credit Party, upon its demand, any additional
amounts necessary to compensate such Lender or Credit Party for such increased cost or reduced
amount receivable. If any Lender or Credit Party becomes entitled to claim any additional amounts
pursuant to this Section 2.16, it shall promptly notify the Borrower (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled.



(b) If any Lender shall have determined that the adoption of or any change in any Requirement
of Law regarding capital adequacy or in the interpretation or application thereof or compliance by
such Lender or any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental Authority made
subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender’s
or such corporation’s capital as a consequence of its obligations hereunder or under or in respect
of any Letter of Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration such Lender’s or
such corporation’s policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after submission by
such Lender to the Borrower (with a copy to the Administrative Agent) of a written request
therefor, the Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such reduction; provided that the Borrower shall not be required
to compensate a Lender pursuant to this paragraph for any amounts incurred more than three months
prior to the date that such Lender notifies the Borrower of such Lender’s intention to claim
compensation therefor; and provided further that, if the circumstances giving rise
to such claim have a retroactive effect, then such three-month period shall be extended to include
the period of such retroactive effect.



(c) A certificate as to any additional amounts payable pursuant to this Section 2.16 submitted
by any Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive in the
absence of manifest error. The obligations of the Borrower pursuant to this Section 2.16 shall
survive the termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.



(d) Notwithstanding anything herein to the contrary (i) the Dodd-Frank Wall Street Reform and
Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in
connection therewith and (ii) all requests, rules, guidelines, requirements and directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States or foreign regulatory authorities, in
each case pursuant to Basel III shall be deemed to have been introduced or adopted after the date
hereof, regardless of the date enacted, adopted or issued.


 


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2.17 Taxes. (a) Each payment by any Loan Party under any Loan Document shall be made without withholding
for any Taxes, unless such withholding is required by any law. If any Withholding Agent
determines, in its sole discretion exercised in good faith, that it is so required to withhold
Taxes, then such Withholding Agent may so withhold and shall timely pay the full amount of withheld
Taxes to the relevant Governmental Authority in accordance with applicable law. If such Taxes are
Indemnified Taxes, then the amount payable by such Loan Party shall be increased as necessary so
that, net of such withholding (including such withholding applicable to additional amounts payable
under this Section 2.17), the applicable Credit Party receives the amount it would have received
had no such withholding been made.



(b) The Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.



(c) As soon as practicable after any payment of Indemnified Taxes or Excluded Taxes by any
Loan Party to a Governmental Authority, such Loan Party 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.



(d) The Loan Parties shall jointly and severally indemnify each Credit Party for any
Indemnified Taxes that are paid or payable by such Credit Party in connection with any
Loan Document (including amounts paid or payable under this Section 2.17(d)) and any
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The
indemnity under this Section 2.17(d) shall be paid within 10 days after the Credit Party delivers
to any Loan Party a certificate stating the amount of any Indemnified Taxes so paid or payable by
such Credit Party and describing the basis for the indemnification claim. Such certificate shall
be conclusive of the amount so paid or payable absent manifest error. Such Credit Party shall
deliver a copy of such certificate to the Administrative Agent.



(e) Each Lender shall severally indemnify the Administrative Agent for any Taxes (but, in the
case of any Indemnified Taxes, only to the extent that any Loan Party has not already indemnified
the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan
Parties to do so) attributable to such Lender that are paid or payable by the Administrative Agent
in connection with any Loan Document and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. The indemnity under this Section 2.17(e) shall be paid within 10 days
after the Administrative Agent delivers to the applicable Lender a certificate stating the amount
of Taxes so paid or payable by the Administrative Agent. Such certificate shall be conclusive of
the amount so paid or payable absent manifest error.


 


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(f)




(i) Any Lender that is entitled to an exemption from, or reduction of, any applicable
withholding Tax with respect to any payments under any Loan Document shall deliver to the
Borrower and the Administrative Agent, at the time or times reasonably requested by the
Borrower or the Administrative Agent, such properly completed and executed documentation
reasonably requested by the Borrower or the Administrative Agent as will permit such
payments to be made without, 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 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 any withholding (including backup withholding) or
information reporting requirements. Notwithstanding anything to the contrary in the
preceding two sentences, the completion, execution and submission of such documentation
(other than such documentation set forth in Sections 2.17(f)(ii)(A) through (E) below) shall
not be required if in the Lender’s judgment such completion, execution or submission would
subject such Lender to any material unreimbursed cost or expense (or, in the case of a
change in a Requirement of Law, any incremental material unreimbursed cost or expense) or
would materially prejudice the legal or commercial position of such Lender. Upon the
reasonable request of such Borrower or the Administrative Agent, any Lender shall update any
form or certification previously delivered pursuant to this Section 2.17(f). If any form or
certification previously delivered pursuant to this Section expires or becomes obsolete or
inaccurate in any respect with respect to a Lender, such Lender shall promptly (and in any
event within 10 days after such expiration, obsolescence or inaccuracy) notify such Borrower
and the Administrative Agent in writing of such expiration, obsolescence or inaccuracy and
update the form or certification if it is legally eligible to do so.




(ii) Without limiting the generality of the foregoing, if the Borrower is a U.S.
Person, any Lender with respect to such Borrower shall, if it is legally eligible to do so,
deliver to such Borrower and the Administrative Agent (in such number of copies reasonably
requested by such Borrower and the Administrative Agent) on or prior to the date on which
such Lender becomes a party hereto, duly completed and executed copies of whichever of the
following is applicable:




(A) in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying that such
Lender is exempt from U.S. Federal backup withholding tax;




(B) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to
which the United States is a party (1) with respect to payments of interest under any Loan
Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal
withholding Tax pursuant to the “interest” article of such tax treaty and (2) with respect
to any other applicable payments under any Loan Document, IRS Form W-8BEN establishing an
exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business
profits” or “other income” article of such tax treaty;




(C) in the case of a Non-U.S. Lender for whom payments under any Loan Document
constitute income that is effectively connected with such Lender’s conduct of a trade or
business in the United States, IRS Form W-8ECI;




(D) in the case of a Non-U.S. Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN and (2) a
certificate substantially in the form of Exhibit H (a “U.S. Tax Certificate”) to the
effect that such 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 (c) a “controlled foreign corporation” described in Section
881(c)(3)(C) of the Code and (d) conducting a trade or business in the United States with
which the relevant interest payments are effectively connected;


 


49









 






(E) in the case of a Non-U.S. Lender that is not the beneficial owner of payments made
under any Loan Document (including a partnership or a participating Lender) (1) an IRS Form
W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A), (B), (C),
(D) and (F) of this paragraph (f)(ii) that would be required of each such beneficial owner
or partner of such partnership if such beneficial owner or partner were a Lender; provided,
however, that if the Lender is a partnership and one or more of its partners are claiming
the exemption for portfolio interest under Section 881(c) of the Code, such Lender may
provide a U.S. Tax Certificate on behalf of such partners; or




(F) any other form prescribed by applicable law as a basis for claiming exemption from,
or a reduction of, U.S. federal withholding Tax together with such supplementary
documentation necessary to enable the Borrower or the Administrative Agent to determine the
amount of Tax (if any) required by law to be withheld.




(iii) If a payment made to a Lender under any Loan Document would be subject to U.S.
federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the
applicable reporting requirements of FATCA (including those contained in Section 1471(b) or
1472(b) of the Code, as applicable), such Lender shall deliver to the Withholding Agent, at
the time or times prescribed by law and at such time or times reasonably requested by the
Withholding Agent, such documentation prescribed by applicable law (including as prescribed
by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by the Withholding Agent as may be necessary for the Withholding Agent to comply
with its obligations under FATCA, to determine that such Lender has or has not complied with
such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from
such payment. Solely for purposes of this Section 2.17(f)(iii), “FATCA” shall include any
amendments made to FATCA after the date of this Agreement.



(g) If any party determines, in its sole discretion exercised in good faith, that it has
received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.17
(including additional amounts paid pursuant to this Section 2.17), it shall pay to the indemnifying
party an amount equal to such refund (but only to the extent of indemnity payments made under this
Section 2.17 with respect to the Taxes giving rise to such refund), net of all out-of-pocket
expenses (including any Taxes) of such indemnified party and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such refund). Such
indemnifying party, upon the request of such indemnified party, shall repay to such indemnified
party the amount paid to such indemnified party pursuant to the previous sentence (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) in the event
such indemnified party is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this Section 2.17(g), in no event will any indemnified
party be required to pay any amount to any indemnifying party pursuant to this Section 2.17(g) if
such payment would place such indemnified party in a less favorable position (on a net after-Tax
basis) than such indemnified party would have been in if the indemnification payments or additional
amounts giving rise to such refund had never been paid. This Section 2.17(g) shall not be
construed to require any indemnified party to make available its Tax returns (or any other
information relating to its Taxes which it deems confidential) to the indemnifying party or any
other Person.



 


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2.18 Indemnity. The Borrower agrees to indemnify each Lender and to hold each Lender harmless from any loss or
expense which such Lender may sustain or incur as a consequence of (a) default by the Borrower in
making a borrowing of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this Agreement, (b) default
by the Borrower in making any prepayment after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the amount of interest
which would have accrued on the amount so prepaid, or not so borrowed, converted or continued, for
the period from the date of such prepayment or of such failure to borrow, convert or continue to
the last day of such Interest Period (or, in the case of a failure to
borrow, convert or continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided for herein
(excluding, however, the Applicable Margin included therein, if any) over (ii) the amount
of interest (as reasonably determined by such Lender) which would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market. A certificate as to any amounts payable pursuant to this Section 2.18
submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.



2.19 Illegality. Notwithstanding any other provision herein, if the adoption of or any change in any Requirement
of Law or in the interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and convert Base Rate
Loans to Eurodollar Loans shall forthwith be cancelled and (b) such Lender’s Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans on the respective
last days of the then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs on a day which is
not the last day of the then current Interest Period with respect thereto, the Borrower shall pay
to such Lender such amounts, if any, as may be required pursuant to Section 2.18



2.20 Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of
Section 2.16 or 2.17(a) with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to designate another
lending office for any Loans affected by such event with the object of avoiding the consequences of
such event; provided, that such designation is made on terms that, in the sole judgment of
such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section 2.20 shall affect
or postpone any of the obligations of any Borrower or the rights of any Lender pursuant to Section
2.16 or 2.17(a).


 


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2.21 Replacement of Lenders under Certain Circumstances The Borrower shall be permitted to replace any Lender which (a) requests reimbursement for
amounts owing pursuant to Section 2.16 or Section 2.17(a) or (b) becomes a Defaulting Lender, with
a replacement financial institution; provided that (i) such replacement does not conflict
with any Requirement of Law, (ii) no Default or Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) prior to any such replacement, such Lender shall
have taken no action under Section 2.20 so as to eliminate the continued need for payment of
amounts owing pursuant to Section 2.16 or 2.17(a), (iv) the replacement financial institution shall
purchase, at par, all Loans and other amounts owing to such replaced Lender on or prior to the date
of replacement, (v) the Borrower shall be liable to such replaced Lender
under Section 2.18 if any Eurodollar Loan owing to such replaced Lender shall be purchased
other than on the last day of the Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to the Administrative Agent,
(vii) the replaced Lender shall be obligated to make such replacement in accordance with the
provisions of Section 10.6 (provided that the Borrower shall be obligated to pay the registration
and processing fee referred to therein) or pursuant to other procedures established by the
Administrative Agent, which may include a deemed assignment, (viii) until such time as such
replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required
pursuant to Section 2.16 or 2.17(a), as the case may be, and (ix) any such replacement shall not be
deemed to be a waiver of any rights which the Borrower, the Administrative Agent or any other
Lender shall have against the replaced Lender.




2.22 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such Lender is a
Defaulting Lender:



(a) fees set forth in Section 2.6(a) shall cease to accrue on the unfunded portion of the
Revolving Credit Commitment of such Defaulting Lender;



(b) the Commitments, Revolving Credit Exposure and Term Loans of such Defaulting Lender shall
not be included in determining whether the Required Lenders have taken or may take any action
hereunder (including any consent to any amendment, waiver or other modification pursuant to Section
10.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the
case of an amendment, waiver or other modification requiring the consent of each Lender or each
Lender affected thereby; 



(c) if any LC Exposure exists or any Protective Advance is outstanding at the time such Lender
becomes a Defaulting Lender then:




(i) all or any part of such LC Exposure and Applicable Revolving Percentage of
Protective Advances shall be reallocated among the non-Defaulting Lenders in
accordance with their respective Applicable Revolving Percentages but only to the
extent the sum of all non-Defaulting Lenders’ LC Exposure and Applicable Revolving
Percentages of Protective Advances does not exceed the total of all non-Defaulting
Lenders’ Revolving Credit Commitments;


 


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(ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall within one Business Day following notice
by the Administrative Agent (x) first, cash collateralize for the benefit of the
Issuing Lender only the Borrower’s obligations corresponding to such Defaulting
Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to
clause (i) above) in accordance with the procedures reasonably satisfactory to the
Administrative Agent for so long as such LC Exposure is outstanding and (y) cash
collateralize such Defaulting Lender’s Applicable Revolving Percentage of such
Protective Advance;




(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC
Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay
any fees to such Defaulting Lender pursuant to Section 3.3(a) with respect to such
Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC
Exposure is cash collateralized;




(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to
clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(a)
and Section 3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’
Applicable Revolving Percentages; or




(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither
reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then,
without prejudice to any rights or remedies of the Issuing Lender or any other
Lender hereunder, all fees payable under Section 3.3(a) with respect to such
Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Lender
until and to the extent that such LC Exposure is reallocated and/or cash
collateralized; and



(d) so long as any Lender is a Defaulting Lender, the Issuing Lender shall not be required to
issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and
the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit
Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower
in accordance with paragraph (c) of this Section 2.19(c), and participating interests in any such
newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a
manner consistent with paragraph (c)(i) of this Section 2.22 (and such Defaulting Lender shall not
participate therein).



If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date
hereof and for so long as such event shall continue or (ii) the Issuing Lender has a good faith
belief that any Lender has defaulted in fulfilling its obligations under one or more other
agreements in which such Lender commits to extend credit, the Issuing Lender shall not be required
to issue, amend or increase any Letter of Credit, unless the Issuing Lender, as the case may be,
shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Issuing
Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder.


 


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In the event that each of the Administrative Agent, the Borrower and the Issuing Lender agree that
a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting
Lender, then the LC Exposure and Applicable Percentage of Protective Advances of the Lenders shall
be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such
date such Lender shall purchase at par such of the Loans of the other Lenders as the Administrative
Agent shall determine is necessary in order for the Lenders (including the previously referenced
Defaulting Lender) to hold such Loans in accordance with their Applicable Revolving Percentages.



2.23 Protective Advances. (a) Subject to the limitations set forth below, the Administrative Agent is authorized by the
Borrower and the Lenders, from time to time in the Administrative Agent’s sole discretion (but
shall have absolutely no obligation), to make Loans to the Borrower, on behalf of the Lenders which
the Administrative Agent, in its Permitted Discretion, deems necessary or desirable (i) to preserve
or protect the Collateral, or any portion thereof, (ii) to enhance the likelihood of, or maximize
the amount of, repayment of the Loans and other Obligations (other than Swap Obligations and
Banking Services Obligations), or (iii) to pay any other amount chargeable to or required to be
paid by the Borrower pursuant to the terms of this Agreement, including payments of reimbursable
expenses (including costs, fees, and expenses as described in Section 10.5) and other sums payable
under the Loan Documents (any of such Loans are herein referred to as “Protective
Advances”); provided that, the aggregate amount of Protective Advances outstanding at
any time shall not at any time exceed 5% of the Total Revolving Credit Commitments;
provided, further, that the aggregate Revolving Credit Exposure of all Lenders
shall not exceed the Total Revolving Credit Commitments. Protective Advances may be made even if
the conditions precedent set forth in Sections 5.1, 5.2 or 5.3 have not been satisfied. Proceeds
of a Protective Advance shall not be disbursed to the Borrower or any other Loan Party and shall be
applied in accordance with the terms of this Section 2.23. The Protective Advances shall be
secured by the Liens in favor of the Administrative Agent in and to the Collateral and shall
constitute Obligations hereunder. All Protective Advances shall be Base Rate Loans. The
Administrative Agent’s authorization to make Protective Advances may be revoked at any time by the
Required Lenders. Any such revocation must be in writing and shall become effective prospectively
upon the Administrative Agent’s receipt thereof. At any time that there is sufficient Revolving
Credit Availability and the conditions precedent set forth in Sections 5.1, 5.2 and 5.3, if
applicable, have been satisfied, the Administrative Agent may request the Lenders to make a
Revolving Credit Loan to repay a Protective Advance. At any other time the Administrative Agent
may require the Lenders to fund their risk participations described in Section 2.23(b).



(b) Upon the making of a Protective Advance by the Administrative Agent (whether before or
after the occurrence of a Default), each Lender shall be deemed, without further action by any
party hereto, to have unconditionally and irrevocably purchased from the Administrative Agent
without recourse or warranty, an undivided interest and participation in such Protective Advance,
in proportion to its Applicable Revolving Percentage. From and after the date, if any, on which
any Lender is required to fund its participation in any Protective Advance purchased hereunder, the
Administrative Agent shall promptly distribute to such Lender, such Lender’s Applicable Revolving
Percentage of all payments of principal and interest and all proceeds of Collateral received by the
Administrative Agent in respect of such Protective Advance.


 


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2.24 Priority and Liens. (a) The Debtors hereby covenant, represent and warrant that, upon entry of the Interim Order
(and the Final Order, as applicable), the Obligations of the Debtors hereunder and under the other
Loan Documents (including the obligations of the Debtors under the Guarantee and Collateral
Agreement), (i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute
allowed Superpriority Claims in the Cases, (ii) pursuant to Section 364(c)(2) of the Bankruptcy
Code, shall be secured by a perfected first priority Lien on all Collateral that is
otherwise not encumbered by a valid, perfected and non-avoidable Lien as of the Petition Date or a
valid Lien perfected (but not granted) thereafter to the extent such post-Petition Date perfection
in respect of a pre-Petition Date claim is expressly permitted under the Bankruptcy Code, excluding
claims and causes of action under Sections 502(d), 544, 545, 547, 548, 549 and 550 of the
Bankruptcy Code and the proceeds therefrom (it being understood that, notwithstanding such
exclusion, upon entry of the Final Order, to the extent approved by the Bankruptcy Court, such Lien
shall attach to any proceeds thereof), (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code,
shall be secured by a perfected junior Lien upon all Collateral that is subject to (A) valid,
perfected and non-avoidable Liens (other than to secure the Debtors’ Prepetition Obligations and
Liens that are junior to the Liens securing the Debtors’ Prepetition Obligations) in existence on
the Petition Date or valid Liens perfected (but not granted) thereafter to the extent such
post-Petition Date perfection in respect of a pre-Petition Date claim is expressly permitted under
the Bankruptcy Code and (B) other than as provided in clause (iv) below, post-Petition Date Liens
permitted hereunder, and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be
secured by a perfected first priority senior priming Lien upon all Collateral (x) that is subject
to a valid Lien or security interest in effect on the Petition Date to secure the Debtors’
Prepetition Obligations, (y) that is subject to a Lien granted after the Petition Date to provide
adequate protection in respect of the Debtors’ Prepetition Obligations or (z) that is subject to a
valid Lien in effect on the Petition Date that is junior to the Liens that secure the Debtors’
Prepetition Obligations, subject and subordinate in each case with respect to subclauses (i)
through (iv) above, only to the Carve Out. For purposes hereof, the “Carve Out” shall be
defined as set forth in the Interim Order and the Final Order, as applicable.



(b) As to all Collateral, including without limitation, all cash, Cash Equivalents and real
property the title to which is held by any Debtor, or the possession of which is held by any Debtor
in the form of a leasehold interest, each Debtor hereby assigns and conveys as security, grants a
security interest in, hypothecates, mortgages, pledges and sets over unto the Administrative Agent,
for the benefit of the Lenders and the other holders of the Obligations, all of the right, title
and interest of the Borrower and such Guarantor in all of such Collateral, including without
limitation, all cash, Cash Equivalents and owned real property and in all such leasehold interests,
together in each case with all of the right, title and interest of the Borrower and such Guarantor
in and to all buildings, improvements, and fixtures related thereto, any lease or sublease thereof,
all general intangibles relating thereto and all proceeds thereof. Notwithstanding anything herein
to the contrary, the Collateral shall not include the L/C Cash Collateral, and the Liens granted to
the Administrative Agent shall not attach to, the L/C Cash Collateral, and the L/C Cash Collateral
shall not be subject to the Superpriority Claims granted to the Lenders. The Borrower and each
Guarantor acknowledges that, pursuant to and upon entry of the Orders, the Liens granted in favor
of the Administrative Agent (on behalf of the Lenders) in all of the Collateral shall be perfected
without the recordation of any UCC financing statements, notices of Lien or other instruments of
mortgage or assignment, subject to the terms and conditions set forth in the Orders. The Borrower
and each Guarantor further agrees that (a) the Administrative Agent shall have the rights and
remedies set forth in Sections 8 and 11 and in the Security Documents and the Orders in respect of
the Collateral and (b) if requested by the Administrative Agent, the Borrower and each of the other
Debtors shall enter into separate security agreements, pledge agreements and fee and leasehold
mortgages with respect to such Collateral on terms reasonably satisfactory to the Administrative
Agent.


 


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2.25 Payment of Obligations. Upon the maturity (whether by acceleration or otherwise) of any of the Obligations under this
Agreement or any of the other Loan Documents, the Lenders shall be entitled to immediate payment of
such Obligations in full in cash, without further application to or order of the Bankruptcy Court.



2.26 No Discharge; Survival of Claims. Each Debtor agrees that to the extent its Obligations hereunder are not satisfied in full in
cash (except as provided in Section 2.24), (a) its Obligations arising hereunder shall not be
discharged by the entry of a Confirmation Order (and each Debtor, pursuant to Section 1141(d)(4) of
the Bankruptcy Code, hereby waives any such discharge) and (b) the Superpriority Claim granted to
the Administrative Agent and the Lenders pursuant to the Orders and described in Section 2.24 and
the Liens granted to the Administrative Agent pursuant to the Orders and described in Section 2.24
shall not be affected in any manner by the entry of a Confirmation Order.



2.27 Conflicts. To the extent of any conflict between the provisions of this Agreement and the other Loan
Documents and provisions contained in the Interim Order (or the Final Order, as applicable), the
provisions of the applicable Order shall govern.



Section 3. LETTERS OF CREDIT




3.1 L/C Commitment. (a) Prior to the Closing Date, the Rollover Issuing Lender has issued the Rollover Letters of
Credit listed on Schedule 3.1 which, from and after the Closing Date, shall, subject to the terms
and conditions hereof, constitute Letters of Credit hereunder. Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other Revolving Credit Lenders set
forth in Section 3.4(a), agrees to issue letters of credit (the letters of credit issued on and
after the Closing Date pursuant to this Section 3, together with the Rollover Letters of Credit,
collectively, the “Letters of Credit”) for the account of the Borrower on any Business Day
during the Revolving Credit Commitment Period in such form as may be approved from time to time by
the Issuing Lender; provided that the Issuing Lender shall have no obligation to issue any
Letter of Credit if, after giving effect to such issuance (i) the L/C Obligations would exceed the
L/C Commitment, (ii) Revolving Credit Availability would be less than zero or (iii) the Revolving
Credit Exposure would exceed the Interim Revolving Credit Availability Amount prior to the Second
Availability Date. Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no
later than the date which is five Business Days prior to the Maturity Date.


 


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(b) Each Letter of Credit shall be subject to the Uniform Customs and, to the extent not
inconsistent therewith, the laws of the State of New York.



(c) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit
hereunder if such issuance would conflict with, or cause the Issuing Lender or any L/C Participant
to exceed any limits imposed by, any applicable Requirement of Law.



3.2 Procedure for Issuance of Letter of Credit. The Borrower may from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an Application
therefor, completed to the satisfaction of the Issuing Lender, and such other certificates,
documents and other papers and information as the Issuing Lender may request. Upon receipt of any
Application, the Issuing Lender will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested thereby (but in no
event shall the Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other certificates,
documents and other papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed to by the Issuing Lender and the
Borrower. The Issuing Lender shall furnish a copy of such Letter of Credit to the Borrower
promptly following the issuance thereof. The Issuing Lender shall promptly furnish to the
Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of the issuance
of each Letter of Credit (including the amount thereof).



3.3 Commissions, Fees and Other Charges. (a) The Borrower will pay a commission on all outstanding Letters of Credit at a per annum rate
equal to the Applicable Margin then in effect with respect to Eurodollar Loans under the Revolving
Facility, shared ratably among the Lenders and payable quarterly in arrears on each L/C Fee Payment
Date after the issuance date. In addition, the Borrower shall pay to the Issuing Lender for its
own account a fronting fee of 1/4 of 1% per annum, payable quarterly in arrears on each L/C Fee
Payment Date after the issuance date.



(b) In addition to the foregoing fees and commissions, the Borrower shall pay or reimburse the
Issuing Lender for such normal and customary costs and expenses as are incurred or charged by the
Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise
administering any Letter of Credit.



3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant,
and, to induce the Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender,
on the terms and conditions hereinafter stated, for such L/C Participant’s own account and risk an
undivided interest equal to such L/C Participant’s Applicable Revolving Percentage in the Issuing
Lender’s obligations and rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably
agrees with the Issuing Lender that, if a draft is paid under any Letter of Credit for which the
Issuing Lender is not reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at the Issuing Lender’s
address for notices specified herein an amount equal to such L/C Participant’s Applicable Revolving
Percentage of the amount of such draft, or any part thereof, which is not so reimbursed. Each
Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction whatsoever.


 


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(b) If any amount required to be paid by any L/C Participant to the Issuing Lender pursuant to
Section 3.4(a) in respect of any unreimbursed portion of any payment made by the Issuing Lender
under any Letter of Credit is paid to the Issuing Lender within three Business Days after the date
such payment is due, such L/C Participant shall pay to the Issuing Lender on demand an amount equal
to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate during
the period from and including the date such payment is required to the date on which such payment
is immediately available to the Issuing Lender, times (iii) a fraction the numerator of which is
the number of days that elapse during such period and the denominator of which is 360. If any such
amount required to be paid by any L/C Participant pursuant to Section 3.4(a) is not made available
to the Issuing Lender by such L/C Participant within three Business Days after the date such
payment is due, the Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the rate per annum
applicable to Base Rate Loans under the Revolving Facility. A certificate of the Issuing Lender
submitted to any L/C Participant with respect to any amounts owing under this Section shall be
conclusive in the absence of manifest error.



(c) Whenever, at any time after the Issuing Lender has made payment under any Letter of Credit
and has received from any L/C Participant its pro rata share of such payment in
accordance with Section 3.4(a), the Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise, including proceeds of collateral applied
thereto by the Issuing Lender), or any payment of interest on account thereof, the Issuing Lender
will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by the Issuing
Lender shall be required to be returned by the Issuing Lender, such L/C Participant shall return to
the Issuing Lender the portion thereof previously distributed by the Issuing Lender to it.



3.5 Reimbursement Obligation of the Borrower. The Borrower agrees to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any Letter of Credit and
paid by the Issuing Lender for the amount of (a) such draft so paid and (b) any taxes, fees,
charges or other costs or expenses incurred by the Issuing Lender in connection with such payment.
Each such payment shall be made to the Issuing Lender at its address for notices specified herein
in lawful money of the United States of America and in immediately available funds. Interest shall
be payable on any and all amounts remaining unpaid by the Borrower under this Section from the date
such amounts become payable (whether at stated maturity, by acceleration or otherwise) until
payment in full at the rate set forth in Section 2.12(c). Each drawing under any Letter of Credit
shall (unless an event of the type described in clause (i) or (ii) of Section 8(f) shall have
occurred and be continuing with respect to the Borrower, in which case the procedures specified in
Section 3.4 for funding by L/C Participants shall apply) constitute a
request by the Borrower to the Administrative Agent for a borrowing pursuant to Section 2.2(a) of
Base Rate Loans in the amount of such drawing. The Borrowing Date with respect to such borrowing
shall be the date of such drawing.



 


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3.6 Obligations Absolute. The Borrower’s obligations under this Section 3 shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender, any beneficiary of a Letter of Credit or
any other Person. The Borrower also agrees with the Issuing Lender that the Issuing Lender shall
not be responsible for, and the Borrower’s Reimbursement Obligations under Section 3.5 shall not be
affected by, among other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrower and any beneficiary of any Letter of Credit or any other
party to which such Letter of Credit may be transferred or any claims whatsoever of the Borrower
against any beneficiary of such Letter of Credit or any such transferee. The Issuing Lender shall
not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in connection with any Letter of Credit, except for
errors or omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of the Issuing
Lender. The Borrower agrees that any action taken or omitted by the Issuing Lender under or in
connection with any Letter of Credit or the related drafts or documents, if done in the absence of
gross negligence or willful misconduct and in accordance with the standards or care specified in
the UCC of the State of New York, shall be binding on the Borrower and shall not result in any
liability of the Issuing Lender to the Borrower.



3.7 Letter of Credit Payments. If any draft shall be presented for payment under any Letter of Credit, the Issuing Lender shall
promptly notify the Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under any Letter of
Credit shall, in addition to any payment obligation expressly provided for in such Letter of
Credit, be limited to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in conformity with such
Letter of Credit.



3.8 Applications. To the extent that any provision of any Application related to any Letter of Credit is
inconsistent with the provisions of this Section 3, the provisions of this Section 3 shall apply.


 


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Section 4. REPRESENTATIONS AND WARRANTIES




To induce the Administrative Agent and the Lenders to enter into this Agreement and to make
the Loans and issue or participate in the Letters of Credit, Holdings and the Borrower hereby
jointly and severally represent and warrant to the Administrative Agent and each Lender that:




4.1 Financial Condition. (a) [Reserved]



(b) (i) The audited consolidated balance sheets of Holdings and its consolidated Subsidiaries
as at March 31, 2009 and March 31, 2010, and the related consolidated statements of income and of
cash flows for the fiscal years ended March 31, 2009 and March 31, 2010, reported on by and
accompanied by an unqualified report from Deloitte & Touche LLP present fairly in all material
respects the consolidated financial condition of Holdings and its consolidated Subsidiaries as at
such date, and the consolidated results of its operations and its consolidated cash flows for the
respective fiscal years then ended. The unaudited consolidated balance sheet of Holdings and its
consolidated Subsidiaries as at March 31, 2011, and the related unaudited consolidated statements
of income and cash flows for the fiscal year ended on such date, present fairly in all material
respects the consolidated financial condition of Holdings and its consolidated Subsidiaries as at
such date, and the consolidated results of its operations and its consolidated cash flows for the
fiscal year then ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been prepared in accordance
with GAAP applied consistently throughout the periods involved (except as approved by the
aforementioned firms of accountants and disclosed therein). Holdings and its Subsidiaries do not
have any material Guarantee Obligations, material contingent liabilities or material liabilities
for taxes, or any long-term leases or unusual forward or long-term commitments, including, without
limitation, any interest rate or foreign currency swap or exchange transaction or other obligation
in respect of derivatives, which are not reflected in the most recent financial statements
(including the notes thereto) referred to in this paragraph (b)(i). During the period from March
31, 2011 to and including the date hereof, there has been no Disposition by Holdings or any of its
Subsidiaries of any material part of its business or Property.



(ii) The audited consolidated balance sheets of the Borrower and its consolidated Subsidiaries
as at March 31, 2009 and March 31, 2010, and the related consolidated statements of income and of
cash flows for the fiscal years ended March 31, 2009 and March 31, 2010 reported on by and
accompanied by an unqualified report from Deloitte & Touche LLP present fairly in all material
respects the consolidated financial condition of the Borrower and its consolidated Subsidiaries as
at such date, and the consolidated results of its operations and its consolidated cash flows for
the respective fiscal years then ended. The unaudited consolidated balance sheet of the Borrower
and its consolidated Subsidiaries as at March 31, 2011, and the related unaudited consolidated
statements of income and cash flows for the fiscal year ended on such date, present fairly in all
material respects the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of its operations and its consolidated
cash flows for the fiscal year then ended (subject to normal year-end audit adjustments). All such
financial statements, including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods involved (except as approved by
the aforementioned firm of accountants and disclosed therein). The Borrower and its Subsidiaries
do not have any material Guarantee Obligations, material contingent liabilities or material
liabilities for taxes, or any long-term leases or unusual forward or long-term commitments,
including, without limitation, any interest rate or foreign currency swap or exchange transaction
or other obligation in respect of derivatives, which are
not reflected in the most recent financial statements (including the notes thereto) referred
to in this paragraph (b)(ii). During the period from March 31, 2011 to and including the date
hereof, there has been no Disposition by the Borrower or any of its Subsidiaries of any material
part of its business or Property.



 


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(c) The Loan Parties have disclosed any material assumptions with respect to the Budget,
Initial Cash Flow Forecast and Cash Flow Forecasts and affirm that the Budget, Initial Cash Flow
Forecast and each Cash Flow Forecast were prepared in good faith upon assumptions believed to be
reasonable at the time made (it being understood and agreed that the projections contained in such
Budget, the Initial Cash Flow Forecast and each Cash Flow Forecast are subject to significant
uncertainties and contingencies, many of which are beyond the control of the Loan Parties and that
no assurance can be given that the projections contained in the Budget, the Initial Cash Flow
Forecast and each Cash Flow Forecast will be realized, and that the Budget, the Initial Cash Flow
Forecast and each Cash Flow Forecast are not a guarantee of financial performance and actual
results may differ from the Budget, Initial Cash Flow Forecast and each Cash Flow Forecast and such
differences may be material).



4.2 No Change. Since March 31, 2011 there has been no development or event which has had or could reasonably be
expected to have a Material Adverse Effect.



4.3 Corporate Existence; Compliance with Law. Each Debtor (a) is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate power and authority to own and operate its
Property, to lease the Property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of Property or the conduct of its
business requires such qualification, except where the failure to be so qualified could not
reasonably be expected to have a Material Adverse Effect, (d) is in compliance with all
Requirements of Law except, in the case of any Debtor, to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect or
is otherwise permitted by Chapter 11 of the Bankruptcy Code and (e) is a debtor and
debtor-in-possession under the Cases.



4.4 Corporate Power; Authorization; Enforceable Obligations. Subject to entry by the Bankruptcy Court of the Interim Order and the Final Order and to the
terms thereof, each Loan Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case of the Borrower, to
borrow hereunder. Subject to entry by the Bankruptcy Court of the Interim Order and the Final
Order and to the terms thereof, each Loan Party has taken all necessary corporate action to
authorize the execution, delivery and performance of the Loan Documents to which it is a party and,
in the case of the Borrower, to authorize the borrowings on the terms and conditions of this
Agreement. Other than entry by the Bankruptcy Court of the Interim Order and the Final Order and
to the terms thereof, no consent or authorization of, filing with, notice to or other act
by or in respect of, any Governmental Authority or any other Person is required in connection with
the borrowings hereunder or with the execution, delivery, performance, validity or enforceability
of this Agreement, any of the Loan Documents or the Administrative Agent’s or Lenders’ rights under
the Loan Documents or the remedies in respect of the Collateral pursuant to the Orders and the
Security Documents, except as required by the Interim Order and the Final Order. Subject to the
entry by the Bankruptcy Court of the Interim Order and the Final Order and to the terms thereof,
each Loan Document has been duly executed and delivered on behalf of each Loan Party party thereto.
This Agreement constitutes, and each other Loan Document upon execution will constitute, a legal,
valid and binding obligation of each Loan Party party thereto, enforceable against each such Loan
Party in accordance with its terms, subject to entry by the Bankruptcy Court of the Interim Order
and the Final Order and to the terms thereof.


 


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4.5 No Legal Bar . The execution, delivery and performance of this Agreement and the other Loan Documents, the
issuance of Letters of Credit, the borrowings hereunder and the use of the proceeds thereof will
not violate any Requirement of Law or any material Contractual Obligation of any Debtor (except in
respect of Contractual Obligations entered into prior to the Petition Date) and will not result in,
or require, the creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such Contractual Obligation (other than the
Liens created by the Security Documents or the Orders). No Requirement of Law or Contractual
Obligation applicable to the Borrower or any of its Subsidiaries could reasonably be expected to
have a Material Adverse Effect.



4.6 No Material Litigation. Other than the Cases, no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of SuperHoldings, Holdings or the Borrower,
threatened by or against any Debtor or against any of their respective properties or revenues (a)
with respect to any of the Loan Documents or any of the transactions contemplated hereby or
thereby, or (b) which could reasonably be expected to have a Material Adverse Effect.



4.7 No Default. No Debtor is in default under or with respect to any of its Contractual Obligations (except in
respect of Contractual Obligations entered into prior to the Petition Date) in any respect which
could reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.



4.8 Ownership of Property; Liens. Each Debtor has title in fee simple to, or a valid leasehold interest in, all its real property,
and good title to, or a valid leasehold interest in, all its other Property (except Intellectual
Property which is addressed in Section 4.9), and none of such Property is subject to any Lien
except as permitted by Section 7.3. Schedule 1.1B lists, as of the Closing Date, each parcel of
owned real property and each leasehold interest in real property in respect of which aggregate
annual rent payments in excess of $250,000 are payable, in each case, located in the United States
and held by the Borrower or any of its Subsidiaries.



4.9 Intellectual Property. Each Debtor owns, or is licensed to use, all material Intellectual Property necessary for the
conduct of its business as currently conducted, except as could not reasonably be expected to have
a Material Adverse Effect. Schedule 4.9 sets forth all of the applications for federal
registration and federally registered Intellectual Property owned or licensed by each Debtor on the
Closing Date. No material claim has been asserted and is pending by any Person challenging or
questioning the use of any Intellectual Property owned by each Debtor or the validity or
effectiveness of any Intellectual Property owned by each Debtor, nor does SuperHoldings, Holdings
or Borrower know of any valid basis for any such claim, except as could not reasonably be expected
to have a Material Adverse Effect. The use of Intellectual Property by any Debtor and the conduct
of each of their businesses do not infringe on the rights of any Person, except as could not
reasonably be expected to have a Material Adverse Effect.


 


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4.10 Taxes. Each Loan Party has filed or caused to be filed all federal, state and other material Tax
returns that are required to be filed and has paid all Taxes shown to be due and payable on said
returns or on any assessments made against it or any of its Property and all other Taxes, fees or
other charges imposed on it or any of its Property by any Governmental Authority (other than any
the amount or validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been provided on the
books of the relevant Loan Party); no Tax Lien has been filed, and, to the knowledge of
SuperHoldings, Holdings and the Borrower, no claim is being asserted, with respect to any such Tax,
fee or other charge.



4.11 Federal Regulations. No part of the proceeds of any Loans or Letters of Credit will be used for “buying” or
“carrying” any “margin stock” within the respective meanings of each of the quoted terms under
Regulation U as now and from time to time hereafter in effect or for any purpose which violates the
provisions of the Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable,
referred to in Regulation U.



4.12 Labor Matters. There are no strikes or other material labor disputes against any Debtor pending or, to the
knowledge of Holdings or the Borrower, threatened that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. Hours worked by and payment made to
employees of any Debtor have not been in violation of the Fair Labor Standards Act or any other
applicable Requirement of Law dealing with such matters that (individually or in the aggregate)
could reasonably be expected to have a Material Adverse Effect. All payments due from any Debtor
on account of employee health and welfare insurance that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect if not paid have been paid or accrued as a
liability on the books of the relevant Debtor.



4.13 ERISA; Employee Benefits Plans. (a) Other than the commencement of the Cases, which is a Reportable Event, during the five-year
period prior to the date on which this representation is made or deemed made, and except as could
not reasonably be expected to result in a Material Adverse Effect, (i) no Reportable Event has
occurred with respect to any Single Employer Plan, (ii) each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code; (iii) prior to the effectiveness of
the applicable provisions of the Pension Act, there has been no “accumulated funding deficiency”
(within the meaning of Section 412 of the Code or Section 302 of ERISA) with respect to any Single
Employer Plan, and, on and after the effectiveness of the applicable provisions of the Pension Act,
there has been no failure of any Single Employer Plan to satisfy the minimum funding standards
(within the meaning of Sections 412 or 430 of the Code or Section 302 of ERISA) applicable to any
such Plan, in each case whether or not waived; (iv) there has been no filing pursuant to, prior to
the effectiveness of the applicable provisions of the Pension Act, Section 412(d) of the Code or
Section 303(d) of ERISA or, on and after the effectiveness of the applicable provisions of the
Pension Act, Section 412(c) of the Code or Section 302(c) of ERISA, of an application for a waiver
of the minimum funding standard with respect to any Single Employer Plan or failure to make by its
due date a required installment under Section 430(j) of the Code with respect to any Single
Employer Plan; (v) on and after the effectiveness of the applicable provisions of the Pension Act,
there has been no determination that any Single Employer Plan is, or is expected to be, in
‘at-risk” status (as defined in Section 430(i)(4) of the Code or Section 303(i)(4) of ERISA; (vi)
no termination of a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan
has arisen; (vii) no Loan Party or Commonly Controlled Entity has received from the PBGC or any
Plan Administrator any notice relating to an intention to terminate any Single Employer Plan or
Plans or to appoint a trustee to administer any Single Employer Plan; (viii) no Loan Party or
Commonly Controlled Entity has had a complete or partial withdrawal from any Multiemployer Plan
which has resulted or could reasonably be expected to result in material Withdrawal Liability under
ERISA; (ix) no Multiemployer Plan is, or is expected to be, in Reorganization or Insolvent and (x)
the present value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation date prior to the
date on which this representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits by a material amount.


 


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(b) Except as, in the aggregate, could not reasonably be expected to have a Material Adverse
Effect, (i) all employer and employee contributions required by applicable law or by the terms of
any Foreign Benefit Arrangement or Foreign Plan have been made, or, if applicable, accrued in
accordance with normal accounting practices; (ii) the accrued benefit obligations of each Foreign
Plan (based on those assumptions used to fund such Foreign Plan) with respect to all current and
former participants do not exceed the assets of such Foreign Plan; (iii) each Foreign Plan that is
required to be registered has been registered and has been maintained in good standing with
applicable regulatory authorities; and (iv) each such Foreign Benefit Arrangement and Foreign Plan
is in compliance (A) with all material provisions of applicable law and all material applicable
regulations and published interpretations thereunder with respect to such Foreign Benefit
Arrangement or Foreign Plan and (B) with the terms of such plan or arrangement.



4.14 Investment Company Act; Other Regulations. No Loan Party is an “investment company”, or a company “controlled” by an “investment company”,
within the meaning of the Investment Company Act of 1940, as amended. No Loan Party is subject to
regulation under any Requirement of Law (other than Regulation X of the Board) which limits its
ability to incur Indebtedness.



4.15 Capitalization and Subsidiaries. Schedule 4.15 sets forth (a) a correct and complete list of the name and relationship to
SuperHoldings of each and all of SuperHoldings’ Subsidiaries, (b) a true and complete listing of
each class of each such Subsidiaries’ authorized Capital Stock, of which all of such issued shares
are validly issued, outstanding, fully paid and non-assessable, and owned beneficially and of
record by the Persons identified on Schedule 4.15, and (c) the type of entity of SuperHoldings and
each of its Subsidiaries. All of the issued and outstanding Capital Stock owned by any Loan Party
has been (to the extent such concepts are relevant with respect to such ownership interests) duly
authorized and issued and is fully paid and non-assessable.


 


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4.16 Use of Proceeds. The proceeds of the Loans will be used for working capital purposes (including, without
limitation, “Chapter 11 expenses” (or “administrative Costs reflecting Chapter 11 expenses”),
repayment of loans under the Prepetition Credit Agreement and the cash collateralization of letters
of credit permitted by Section 7.3(p)) and the payment of fees and expenses incurred in connection
with entering into this Agreement and the transactions contemplated hereby; provided,
except to the extent permitted by the Interim Order or the Final Order or authorized pursuant to
any “first day” order approved by the Administrative Agent, that the proceeds of Loans and cash and
Cash Equivalents of the Loan Parties may not be used (a) in connection with the investigation
(including discovery proceedings), initiation or prosecution of any claims, causes of action,
adversary proceedings or other litigation against the Lenders, the Administrative Agent or any
parties to the Prepetition Credit Agreement or (b) to pay obligations of the Debtors arising prior
to the Petition Date.



4.17 Environmental Matters. (a) The facilities and properties owned, leased or operated by any Debtor (the
“Properties”) do not contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations or under circumstances which (i) constitute or
constituted a violation of, or (ii) could give rise to liability under, any Environmental Law,
except in either case insofar as such violation or liability, or any aggregation thereof, could not
reasonably be expected to result in a Material Adverse Effect.



(b) The Properties and all operations at the Properties are in compliance, and have in the
last five years been in compliance, with all applicable Environmental Laws, except for
noncompliance that could not reasonably be expected to result in a Material Adverse Effect, and
there is no contamination at, under or about the Properties or violation of any Environmental Law
with respect to the Properties or the business operated by any Debtor (the “Business”)
which could reasonably be expected to result in a Material Adverse Effect. As of
the Closing Date, no Debtor has assumed any liability of any other Person under Environmental
Laws that could not reasonably be expected to result in a Material Adverse Effect.



(c) No Debtor has received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or compliance with Environmental
Laws with regard to any of the Properties or the Business, nor does SuperHoldings, Holdings or the
Borrower have knowledge that any such notice will be received or is being threatened; except
insofar as such notice or threatened notice referred to in this paragraph, or any aggregation
thereof, does not involve a matter or matters that could reasonably be expected to result in a
Material Adverse Effect.



(d) Materials of Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location which could give rise to liability
under, any Environmental Law, nor have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the Properties in violation of, or in a
manner that could give rise to liability under, any applicable Environmental Law; except insofar as
any such violation or liability referred to in this paragraph, or any aggregation thereof, could
not reasonably be expected to result in a Material Adverse Effect.


 


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(e) No judicial proceeding or governmental or administrative action is pending or, to the
knowledge of SuperHoldings, Holdings and the Borrower, threatened, under any Environmental Law to
which any Debtor is or, to the knowledge of SuperHoldings, Holdings and the Borrower, will be named
as a party with respect to the Properties or the Business, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding arising under any Environmental Law with respect to the
Properties or the Business, except insofar as such proceeding, action, decree, order or other
requirement, or any aggregation thereof, could not reasonably be expected to result in a Material
Adverse Effect.



(f) There has been no release or threat of release of Materials of Environmental Concern at or
from the Properties, or arising from or related to the operations of any Debtor in connection with
the Properties or otherwise in connection with the Business, in violation of or in amounts or in a
manner that could give rise to liability under Environmental Laws, except insofar as any such
violation or liability referred to in this paragraph, or any aggregation thereof, could not
reasonably be expected to result in a Material Adverse Effect.



4.18 Accuracy of Information, etc. No statement or information contained in this Agreement, any other Loan Document or any other
document, certificate or statement furnished to the Administrative Agent, the Lenders, the
Bankruptcy Court or any of them, by or on behalf of any Loan Party for use in connection with the
transactions contemplated by this Agreement or the other Loan Documents, contained as of the date
such statement, information, document or certificate was so furnished, any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the statements
contained herein or therein not misleading. The projections contained in the materials referenced
above are based upon good faith estimates and assumptions believed by management of the Borrower to
be reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact and that actual
results during the period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. There is no fact known to any Loan Party
that could reasonably be expected to have a Material Adverse Effect that has not been expressly
disclosed herein, in the other Loan Documents or in any other documents, certificates and
statements furnished to the Administrative Agent and the Lenders for use in connection with the
transactions contemplated hereby and by the other Loan Documents.



4.19 Security Documents. (a) Subject to the Carve Out, the Interim Order is (and the Final Order when entered will be)
effective to create in favor of the Lenders legal, valid, enforceable and fully perfected security
interests in and Liens on the Collateral described therein.



(b) Without limiting the foregoing, the Loan Documents are effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and enforceable security
interest in the Collateral described therein and proceeds thereof. In the case of the Pledged
Stock described in the Guarantee and Collateral Agreement, when stock certificates representing
such Pledged Stock are delivered to the Administrative Agent, and in the case of the other
Collateral described in the Guarantee and Collateral Agreement in which a security interest may be
perfected by filing a financing statement, when financing statements in appropriate form are filed
in the offices specified on Schedule 4.19(b), the Guarantee and Collateral Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations (as
defined in the Guarantee and Collateral Agreement), in each case prior and superior in right to any
other Person.


 


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(c) Each of the Mortgages, when executed and delivered, will be effective to create in favor
of the Administrative Agent, for the benefit of the Lenders, a legal, valid and enforceable Lien on
the Mortgaged Properties described therein and proceeds thereof, and when the Mortgages referred to
in Section 6.13 are filed in the offices specified on Schedule 4.19(c), each such Mortgage shall
constitute a fully perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in the Mortgaged Properties and the proceeds thereof, as security for the
Obligations (as defined in the relevant Mortgage), in each case prior and superior in right to any
other Person, except for Liens permitted in Section 7.3.



4.20 Insurance. Schedule 4.20 sets forth a description of all insurance maintained by or on behalf of
the Loan Parties and the Subsidiaries as of the Closing Date. As of the Closing Date, all premiums
in respect of such insurance have been paid. The Borrower believes that the insurance maintained
by or on behalf of the Borrower and its Subsidiaries is adequate and commercially reasonable.



4.21 Material Contracts. The Debtors are in material compliance with each material contract entered into by any Debtor
after the Petition Date or entered into prior to the Petition Date and assumed pursuant to the
Bankruptcy Code. As of the Closing Date, the Debtors have assumed the contracts entered
into prior to the Petition Date and listed on Schedule 4.21 hereto.



Section 5. CONDITIONS PRECEDENT




5.1 Conditions to First Availability Date. The agreement of each Lender to make the Term Loans and the Initial Revolving Credit Loans and
issue the Initial Letters of Credit requested to be made or issued by it is subject to the
satisfaction, prior to or concurrently with the making of such extension of credit, of the
following conditions precedent:




(a) Loan Documents. The Administrative Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of SuperHoldings, Holdings
and the Borrower and (ii) the Guarantee and Collateral Agreement, executed and delivered by
a duly authorized officer of SuperHoldings, Holdings, the Borrower and each Subsidiary
Guarantor.




(b) Certificates of Good Standing. The Administrative Agent shall have
received a long form good standing certificate for each Debtor from its jurisdiction of
organization.




(c) Prepetition Obligations. All Prepetition Obligations outstanding under the
Prepetition Credit Agreement, except for the Prepetition Letters of Credit and other amounts
acceptable to the Administrative Agent, acting in its sole discretion, shall be paid in full
(giving effect to any repayment from proceeds of the Term Loans).


 


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(d) Financial Statements. The Lenders shall have received (i) audited
consolidated financial statements of each of Holdings and the Borrower referred to in the
first sentence of each of subsections 4.1(b)(i) and 4.1(b)(ii), (ii) unaudited interim
consolidated financial statements of each of Holdings and the Borrower for each quarterly
period ended subsequent to the date of the latest applicable financial statements delivered
pursuant to clause (i) of this paragraph through March 31, 2011 and, in the case of
quarterly financial statements, such quarterly period ending at least 45 days prior to the
Closing Date, and such financial statements shall be reasonably satisfactory to the
Administrative Agent and (iii) the Budget, in form and substance reasonably satisfactory to
the Administrative Agent, accompanied by a certificate of a Responsible Officer of the
Borrower stating that such Budget is based on estimates, information and assumptions
believed by management of the Borrower to be reasonable on the Closing Date and that such
Responsible Officer (not in his or her individual capacity, but solely as a Responsible
Officer) has no reason to believe that the projections set forth therein are incorrect or
misleading in any material respect (it being understood and agreed that the projections are
subject to significant uncertainties and contingencies, many of which are beyond the control
of the Responsible Officer and that no assurance can be given that any of the projections
will be realized, and that the Budget is not a guarantee of financial performance and actual
results may differ from the Budget and such differences may be material).




(e) Approvals. All material governmental and third party approvals necessary
in connection with the continuing operations of the Debtors and the transactions
contemplated hereby shall have been obtained and be in full force and effect, and all
applicable waiting periods shall have expired without any action being taken or threatened
by any competent authority which would restrain, prevent or otherwise impose adverse
conditions on the financing contemplated hereby.




(f) Fees. The Lenders, the Administrative Agent and the Arrangers shall have
received all fees required to be paid, and all expenses for which invoices have been
presented, on or before the Closing Date, or such fees and expenses shall have been
designated for payment on the Closing Date from the proceeds of the Term Loans.




(g) Lien Searches. The Administrative Agent shall have received the results of
a recent lien search in each of the jurisdictions of organization of the Loan Parties, and
such search shall reveal no Liens on any of the assets of the Debtors except for Liens
permitted by Section 7.3 or Liens to be discharged on or prior to the Closing Date in a
manner reasonably satisfactory to the Administrative Agent.




(h) Appraisals and Field Exams. The Arrangers shall have received and be
reasonably satisfied with (i) appraisals of Inventory of the Loan Parties and (ii) field
exams of the Accounts, Inventory and related data processing and other systems of the Loan
Parties, in each case from appraisers reasonably satisfactory to the Arrangers (it being
understood that as of June [_____], such condition has been satisfied).




(i) Closing Certificate. The Administrative Agent shall have received, with a
counterpart for each Lender, a certificate of each Loan Party, dated the Closing Date,
substantially in the form of Exhibit C, with appropriate insertions and attachments.


 


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(j) Legal Opinions. The Administrative Agent shall have received the following
executed legal opinions:




(i) the legal opinion of Kirkland & Ellis LLP, counsel to SuperHoldings,
Holdings and the Borrower, substantially in the form of Exhibit F; and




(ii) the legal opinion of local counsel in Kansas and Illinois.



Each such legal opinion shall cover such matters incident to the transactions
contemplated by this Agreement as the Administrative Agent may reasonably require.




(k) Pledged Stock; Stock Power; Pledged Notes. The Administrative Agent shall
have received (i) the certificates representing the shares of Capital Stock pledged pursuant
to the Guarantee and Collateral Agreement, together with an undated stock power for each
such certificate executed in blank by a duly authorized officer of the pledgor thereof and
(ii) each promissory note pledged to the Administrative Agent pursuant to the Guarantee and
Collateral Agreement endorsed (without recourse) in blank
(or accompanied by an executed transfer form in blank reasonably satisfactory to the
Administrative Agent) by the pledgor thereof.




(l) Filings, Registrations and Recordings. Subject to Section 6.13, each
document (including, without limitation, any UCC financing statement) required by the
Security Documents or under law or reasonably requested by the Administrative Agent to be
filed, registered or recorded in order to create in favor of the Administrative Agent, for
the benefit of the Lenders, a perfected Lien on the Collateral described therein, prior and
superior in right to any other Person (other than with respect to Liens expressly permitted
by Section 7.3), shall be in proper form for filing, registration or recordation.




(m) Insurance. Except as set forth in Section 6.13(b), the Administrative
Agent shall be satisfied with the insurance program to be maintained by Holdings and its
Subsidiaries and shall have received satisfactory insurance certificates with respect
thereto.




(n) Funding Accounts. The Administrative Agent shall have received a notice
setting forth the deposit account(s) of the Borrower to which the Lender is authorized by
the Borrower to transfer the proceeds of any Borrowings requested or authorized pursuant to
this Agreement.




(o) “Know Your Customer” Requirements. The Lenders shall have received at
least three days prior to the Closing Date all documentation and other information
reasonably requested by the Administrative Agent and required under applicable “know your
customer” and anti-money laundering rules and regulations, including all information
required to be delivered pursuant to Section 10.16.



 


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(p) Interim Order. At the time of the making of the initial extension of
credit, and in any event no later than five Business Days after the Petition Date (or such
later date agreed to by the Administrative Agent in its sole discretion), the Administrative
Agent shall have received a copy of the Interim Order, which Interim Order shall (i) be in
form and substance reasonably satisfactory to the Administrative Agent, (ii) be in full
force and effect and shall not have been stayed, reversed, vacated, rescinded, modified or
amended in any respect, in the case of any modification or amendment, in a manner, or
relating to a matter, without the consent of the Administrative Agent and (iii) authorize
extensions of credit to the Borrower in amounts not in excess of $[insert face amount of
Rollover Letters of Credit] of Revolving Credit Loans and Letters of Credit (the
“Initial Letters of Credit”) or such other amount acceptable to the Administrative
Agent as may be approved by order of the Bankruptcy Court (the “Interim Revolving Credit
Loan Availability Amount”), and $125,000,000 of Term Loans. The Debtors shall be in
compliance in all respects with the Interim Order pursuant to the terms therein.




(q) First-Day Motions. All motions and orders submitted to the Bankruptcy
Court on or about the Petition Date shall be in form and substance reasonably satisfactory
to the Administrative Agent, and the Administrative Agent shall be reasonably satisfied with
any Cash Collateral arrangements applicable to any material pre-Petition Date secured
obligations of the Loan Parties.




(r) Initial Cash Flow Forecast. The Administrative Agent shall have received a
13-week cash flow projection of the Debtors, which shall be in form and substance reasonably
satisfactory to the Administrative Agent (the “Initial Cash Flow Forecast”) and
certified by a Responsible Officer of the Borrower as being prepared based upon good faith
estimates and assumptions that are believed by such Responsible Officer to be reasonable at
the time made and that such Responsible Officer is not aware of (x) any information
contained in such cash flow forecast which is false or misleading in any material respect or
(y) any omission of information which causes such cash flow forecast to be false or
misleading in any material respect (it being understood and agreed that any forecasts
contained in the Initial Cash Flow Forecast is subject to significant uncertainties and
contingencies, many of which are beyond the control of the Loan Parties and that no
assurance can be given that such forecasts will be realized and that the Initial Cash Flow
Forecast is not a guarantee of financial performance and actual results may differ from the
Initial Cash Flow Forecast and such differences may be material).




(s) Prepetition Letters of Credit. The Letters of Credit (as defined in the
Prepetition Credit Agreement) outstanding under the Prepetition Credit Agreement on the
Petition Date and described in Schedule 5.1(s) (the “Prepetition Letters of Credit”)
shall have been cash collateralized (or shall be cash collateralized upon funding of the
Term Loans) at 101% of the face amounts thereof on terms reasonably acceptable to the
Administrative Agent.


 


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5.2 Conditions to Second Availability Date. The agreement of each Lender to make the Final Revolving Credit Loans requested to be made by it
is subject to the satisfaction, prior to or concurrently with the making of such extension of
credit, of the following conditions precedent:



(a) Final Order. (i) The Final Order shall be in full force and effect and shall not
have been stayed, reversed, vacated, rescinded, modified or amended in any respect; (ii) the Final
Order shall have been entered by the Bankruptcy Court no later than thirty-five days after the
Petition Date (or such later date agreed to by the Administrative Agent in its sole discretion) and
at the time of any such extension of credit the Final Order shall be in full force and effect, and
shall not have been vacated, stayed, reversed, modified or amended in any respect without the prior
written consent of the Administrative Agent and the Required Lenders; (iii) if the Final Order is
the subject of a pending appeal in any respect, none of the making of such extensions of credit,
the grant of Liens and Superpriority Claims pursuant to Section 2.24 or otherwise hereunder or the
performance by the Borrower or any Guarantor of any of their respective obligations under any of
the Loan Documents shall be the subject of a presently effective stay pending appeal; and (iv) the
Loan Parties shall be in compliance with the Final Order in accordance with the terms therein.



(b) Fees and Expenses. All fees and expenses required to be paid hereunder and
invoiced before the Second Availability Date shall have been paid in full in cash.



(c) Ratings. The Loan Parties shall have used, and shall have caused their respective
Subsidiaries to use, commercially reasonable efforts to obtain ratings on the Facility by Moody’s
and S&P.



5.3 Conditions to Each Extension of Credit. The agreement of each Lender to make any extension of credit requested to be made by it on any
date (including, without limitation, its initial extension of credit) is subject to the
satisfaction of the following conditions precedent:




(a) Representations and Warranties. Each of the representations and warranties
made by any Loan Party in or pursuant to the Loan Documents shall be true and correct on and
as of such date as if made on and as of such date.




(b) No Default. No Default or Event of Default shall have occurred and be
continuing on such date or after giving effect to the extensions of credit requested to be
made on such date.



Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower hereunder shall
constitute a representation and warranty by the Borrower as of the date of such extension of credit
that the conditions contained in this Section 5.3 have been satisfied.


 


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Section 6. AFFIRMATIVE COVENANTS




SuperHoldings, Holdings and the Borrower hereby jointly and severally agree that, so long as
the Commitments remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or the Administrative Agent hereunder, each of SuperHoldings,
Holdings and the Borrower shall and shall cause each of its Subsidiaries to:



6.1 Financial Statements. Furnish to the Administrative Agent and each Lender:




(a) (i) within 105 days after the end of each fiscal year of Holdings, a copy of the
audited consolidated balance sheet of Holdings and its consolidated Subsidiaries as at the
end of such year and the related audited consolidated statements of income and of cash flows
for such year, setting forth in each case in comparative form the figures for the previous
year, reported on without any qualification arising out of the scope of the audit, by
independent certified public accountants of nationally recognized standing; and




(ii) within 105 days after the end of each fiscal year of the Borrower, a copy of the
audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at
the end of such year and the related audited consolidated statements of income and of cash
flows for such year, setting forth in each case in comparative form the figures for the
previous year, reported on without any qualification arising out of the scope of the audit,
by independent certified public accountants of nationally recognized standing;




(b) (i) not later than 45 days after the end of each of the first three quarterly
periods of each fiscal year of Holdings, the unaudited consolidated balance sheet of
Holdings and its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal year-end audit adjustments);
and




(ii) not later than 45 days after the end of each of the first three quarterly periods
of each fiscal year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal year-end audit adjustments);




(c) (i) not later than 30 days after the end of each fiscal month (other than the
third, sixth, ninth and twelfth fiscal month in each fiscal year) of Holdings, the unaudited
consolidated balance sheet of Holdings and its consolidated Subsidiaries as at the end of
such fiscal month and the related unaudited consolidated statements of income and of cash
flows for such fiscal month and the portion of the fiscal year through the end of such
fiscal month, setting forth in each case in comparative form the figures for the previous
year, certified by a Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments); and




(ii) not later than 30 days after the end of each fiscal month (other than the third,
sixth, ninth and twelfth fiscal month in each fiscal year) of the Borrower, the unaudited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end
of such fiscal month and the related unaudited consolidated statements of income and of cash
flows for such fiscal month and the portion of the fiscal year through the end of such
fiscal month, setting forth in each case in comparative form the figures for the previous
year, certified by a Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments);


 


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all such financial statements shall be complete and correct in all material respects and shall be
prepared in reasonable detail and in accordance with GAAP applied consistently throughout the
periods reflected therein and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein).



6.2 Certificates; Other Information. Furnish to the Administrative Agent and each Lender, or, in the case of clause (i), to the
relevant Lender:




(a) concurrently with the delivery of the financial statements referred to in Section
6.1(a), a certificate of the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified in such certificate;




(b) concurrently with the delivery of any financial statements pursuant to Section 6.1,
a Compliance Certificate of a Responsible Officer stating, among the matters included in
Exhibit B, that (i) to the best of each such Responsible Officer’s knowledge, each Loan
Party during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement and the other Loan
Documents to which it is a party to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of Default except as
specified in such certificate and (ii) in the case of quarterly or annual financial
statements, to the extent not previously disclosed to the Administrative Agent, a
description of any change in the jurisdiction of organization of any Loan Party and a
listing of any applications for registration and registered Intellectual Property acquired
by any Loan Party since the date of the most recent list delivered pursuant to this clause
(ii) (or, in the case of the first such list so delivered, since the Closing Date);



(c) [Reserved];




(d) within 45 days after the end of each fiscal quarter of Holdings, a narrative
discussion and analysis of the financial condition and results of operations of Holdings and
its Subsidiaries (including, without limitation, with respect to cost savings, restructuring
costs and other matters as the Administrative Agent or any Lender through the Administrative
Agent may from time to time reasonably request) for such fiscal quarter and for the period
from the beginning of the then current fiscal year to the end of such fiscal quarter, as
compared to the portion of the Budget covering such periods; and




(e) within 45 days after the end of each fiscal quarter of the Borrower, a narrative
discussion and analysis of the financial condition and results of operations of the Borrower
and its Subsidiaries (including, without limitation, with respect to cost savings,
restructuring costs and other matters as the Administrative Agent or any Lender through the
Administrative Agent may from time to time reasonably request) for such fiscal quarter and
for the period from the beginning of the then current fiscal year to the end of such fiscal
quarter, as compared to the portion of the Budget covering such periods;


 


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(f) [Reserved];




(g) within five days after the same are sent, copies of all financial statements and
reports which Holdings or the Borrower sends to the holders of any class of its debt
securities or public equity securities and within five days after the same are filed, copies
of all financial statements and reports which Holdings or the Borrower may make to, or file
with, the Securities and Exchange Commission or any successor or analogous Governmental
Authority;




(h) as soon as available but in any event within 15 days of the end of each fiscal
month (or within 5 Business Days of the end of each week during the continuance of an Event
of Default or during any period following a day on which Revolving Credit Availability is
less than the greater of (x) 25% of the Total Revolving Credit Commitments and (y)
$18,750,000; provided that such period shall be discontinued if Revolving Credit
Availability ceases to be less than such level for 60 consecutive days; provided
further, however, that such period may be discontinued no more than twice in any
period of 12 consecutive months,) a Borrowing Base Certificate and supporting information in
connection therewith, together with any additional reports with respect to the Borrowing
Base as the Administrative Agent may reasonably request;




(i) concurrently with the delivery of each Borrowing Base Certificate (or at such other
times as the Administrative Agent may reasonably request), a certificate from a Responsible
Officer of the Borrower setting forth the Revolving Credit Availability as of the period
then ended, together with supporting information in connection therewith;




(j) promptly upon obtaining knowledge of any such event, circumstance or change, a
written notice of any event, circumstance or change that has occurred since the delivery of
the most recent Borrowing Base Certificate in accordance with the terms of this Agreement
that would materially reduce the aggregate amount of the Eligible Accounts Receivable or
result in a material portion of the Eligible Accounts Receivable ceasing to be Eligible
Accounts Receivable, in each case, other than as a result of payments thereof;



(k) [Reserved];




(l) prompt written notice of any casualty or other insured damage to any material
portion of the Collateral or the commencement of any action or proceeding for the taking of
any material portion of the Collateral or interest therein under power of eminent domain or
by condemnation or similar proceeding;


 


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(m) no later than Friday of every other calendar week, commencing on July 15, 2011 a
rolling 13-week cash flow projection of the Borrower and its Subsidiaries substantially in
the form of the Initial Cash Flow Forecast (each, a “Cash Flow Forecast”), which
shall be certified by a Responsible Officer as being prepared based upon good faith
estimates and assumptions that are believed by such Responsible Officer to be reasonable at
the time made and that such Responsible Officer is not aware of (x) any information
contained in such cash flow forecast which is false or misleading in any material respect or
(y) any omission of information which causes such cash flow forecast to be false or
misleading in any material respect;




(n) no later than Friday of every other calendar week, commencing on July 15, 2011, a
variance report in form reasonably satisfactory to the Administrative Agent, showing on a
line item basis the percentage and dollar variance of actual cash disbursements and cash
receipts for each of the prior two weeks from the amounts set forth for each such period in
the most recent Cash Flow Forecast and a narrative analysis of each material variance for
the prior two week period;




(o) (i) commencing on [                    ] 2011, a certificate of a Responsible Officer
containing all information and calculations necessary for determining compliance with
Section 7.1(a) no later than Friday of every other calendar week and no later than 30 days
after the end of every calendar month for determining compliance with Section 7.1(b) and
(ii) concurrently with the delivery of any financial statements pursuant to Sections 6.1(a)
and (b), a certificate of a Responsible Officer of the Borrower containing all information
and calculations necessary for determining compliance with Section 7.7;



(p) [Reserved];




(q) no later than [                    ], 2011, the consolidated forecasts of the consolidated
balance sheet of the Borrower and its Subsidiaries for each fiscal quarter, beginning with
the fiscal quarter ending [                    ], 2011 and ending with the fiscal quarter ending
[                    ], 2012, including the material assumptions on which such forecasts were based
(including, but not limited to, future cost reduction initiatives);]




(r) contemporaneously upon such filing or distribution, copies of all orders, pleadings
and motions, applications, judicial information, financial information, plan of
reorganization or liquidation and/or any disclosure statement related to such plan and other
documents to be filed by or on behalf of the Debtors with the Bankruptcy Court or the United
States Trustee in the Cases, or to be distributed by or on behalf of the Debtors to any
Committee (other than (i) pleadings, motions applications or other filings which would
reasonably expected to be immaterial to the Administrative Agent and the Lenders, (ii)
emergency pleadings, motions or other filings where, despite such Debtor’s best efforts,
such contemporaneous delivery is impracticable, which shall be delivered as soon as
practicable after the filing or distribution thereof and (iii) copies of pleadings and
motions in connection with the Facilities or the Cash Collateral, which shall be delivered
as soon as practicable in advance of the filing or distribution thereof); provided,
however, notwithstanding any of the foregoing to the contrary, the Loan Parties’
obligations in this clause (q) will be deemed satisfied if and to the extent any of such
information and documents is publicly available; and




(s) promptly, such additional financial and other information as any Lender may from
time to time reasonably request through the Administrative Agent.



 


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6.3 Payment of Obligations. Except in accordance with the Bankruptcy Code or by an applicable order of the Bankruptcy Court,
pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, (i) all its post-petition material taxes and other material obligations of whatever
nature that constitute administrative expenses under Section 503(b) of the Bankruptcy Code in the
Cases, except, so long as no material property (other than money for such obligation and the
interest or penalty accruing thereon (or property with a value not in excess of such amounts)) of
any Loan Party is in danger of being lost or forfeited as a result thereof, no such obligation need
be paid if the amount or validity thereof is currently being contested in good faith by appropriate
proceedings and any required reserves in conformity with GAAP with respect thereto have been
provided on the books of the relevant Debtor and (ii) all
material obligations arising from Contractual Obligations entered into after the Petition Date or
from Contractual Obligations entered into prior to the Petition Date and assumed and which are
permitted to be paid post-petition by order of the Bankruptcy Court that has been entered with the
consent of (or non-objection by) the Administrative Agent.



6.4 Conduct of Business and Maintenance of Existence, etc. (a) (i) Preserve, renew and keep in full force and effect its corporate existence and (ii)
take all reasonable action to maintain all rights, privileges and franchises necessary or desirable
in the normal conduct of its business, except, in each case, as otherwise permitted by Section 7.4
and except, in the case of clause (ii) above, to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (b) subject to the effect of the
Cases, comply with all Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.



6.5 Maintenance of Property; Insurance. (a) Except for Property that is obsolete, worn out or economically non viable for Borrower’s
business, keep all Property useful and necessary in its business in good working order and
condition, ordinary wear and tear and damage by casualty or condemnation excepted; (b) maintain
with financially sound and reputable insurance companies insurance on all its Property in at least
such amounts and against at least such risks (but including in any event public liability, product
liability and business interruption) as are usually insured against in the same general area by
companies engaged in the same or a similar business; and (c) furnish to the Administrative Agent,
upon request of the Administrative Agent, information in reasonable detail as to the insurance so
maintained.



6.6 Inspection of Property; Books and Records; Discussions; Appraisals; Field
Examinations. (a) (i) Keep proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings and transactions in
relation to its business and activities and (ii) permit representatives designated by the
Administrative Agent (which may be a Lender or any representative of a Lender) in consultation with
the Borrower, upon reasonable prior written notice to the Borrower and at the reasonable expense of
the Borrower, to visit and inspect any of its properties and examine and make abstracts from any of
its books and records during the Borrower’s normal business hours and to discuss the business,
operations, properties and financial and other condition of Holdings, the Borrower and their
respective Subsidiaries with officers and employees of Holdings, the Borrower and such Subsidiaries
and with their independent certified public accountants.


 


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(b) On no more than one occasion prior to the Termination Date (in addition to the appraisals
referred to in Section 5.1(h)), but not prior to November 1, 2011, provide the Administrative Agent
with appraisals or updates thereof of Inventory of the Borrower and its Subsidiaries from an
appraiser selected and engaged by the Administrative Agent, and prepared on a basis reasonably
satisfactory to the Administrative Agent, such appraisals and updates to
include without limitation, information required by applicable law and regulations;
provided, however that if an Event of Default has occurred and is continuing, there
shall be no limitation on the number of such appraisals. For purposes of this Section 6.6(b), it
is understood and agreed that a single appraisal may consist of examinations conducted at multiple
relevant sites and involve one or more relevant Loan Parties and their assets. All such appraisals
shall be at the sole expense of the Loan Parties.



(c) On no more than one occasion prior to the Termination Date (in addition to the field
examination referred to in Section 5.1(h)), but not prior to November 1, 2011, at the request of
the Administrative Agent, permit, upon reasonable notice, the Administrative Agent to conduct a
field examination to ensure the adequacy of Collateral included in the Borrowing Base and related
reporting and control systems; provided, however that if an Event of Default has
occurred and is continuing, there shall be no limitation on the number or frequency of field
examinations. For purposes of this Section 6.6(c), it is understood and agreed that a single field
examination may be conducted at multiple relevant sites and involve one or more relevant Loan
Parties and their assets. All such field examinations shall be at the sole expense of the Loan
Parties.



6.7 Notices. Promptly give notice to the Administrative Agent and each Lender of:



(a) the occurrence of any Default or Event of Default;




(b) any (i) default or event of default under any Contractual Obligation of any Debtor
(other than defaults resulting from the filing of the Cases or from the rejection under
Section 365 of the Bankruptcy Code of any executory contracts or leases) or (ii) litigation,
investigation or proceeding which may exist at any time between any Debtor and any
Governmental Authority, which in either case, if not cured or if adversely determined, as
the case may be, could reasonably be expected to have a Material Adverse Effect;




(c) any litigation not subject to the automatic stay under the Bankruptcy Code or any
proceeding other than in connection with the Cases against a Debtor in which the amount
involved is $1.000,000 or more and not covered by insurance or in which injunctive or
similar relief is sought;


 


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(d) the following events, as soon as possible and in any event within 30 days after the
Borrower knows or has reason to know thereof: (i) the occurrence of any Reportable Event
with respect to any Single Employer Plan, a failure to make by its due date a required
installment under Section 430(j) of the Code with respect to any Single Employer Plan, any
failure by any Single Employer Plan to satisfy the minimum funding standards (within the
meaning of Sections 412 or 430 of the Code or Section 302 of ERISA applicable to such Plan,
any determination that any Single Employer Plan is, or is expected to be, in “at risk”
status (within the meaning of Section 430 of the Code or Title IV of ERISA), the termination
of any Single Employer Plan, or the creation of any Lien in favor of the PBGC or any Plan;
(ii) any failure to make any material required
contribution to a Multiemployer Plan, any withdrawal from, termination, Reorganization,
or Insolvency of any Multiemployer Plan, or any determination that any such Multiemployer
Plan is in endangered or critical status (within the meaning of Section 432 of the Code or
Section 305 of ERISA, or the institution of proceedings or the taking of any other action by
the PBGC or the Borrower or any Commonly Controlled Entity or any Multiemployer Plan with
respect to the withdrawal from, or the termination, Reorganization or Insolvency of, or
determination that any such Multiemployer Plan is in endangered or critical status; or (iii)
any failure to make or accrue any material employer or employee contribution required by law
or normal accounting practices to a Foreign Benefit Arrangement or Foreign Plan, the accrued
benefit obligations of any Foreign Plan (based on those assumptions used to fund such
Foreign Plan) with respect to all current and former participants shall exceed the assets of
such Foreign Plan by a material amount, any Foreign Plan required to be registered shall not
be in good standing with applicable regulatory authorities, or any Foreign Benefit
Arrangement or Foreign Plan shall not be in compliance with any material provision of
applicable law or applicable regulations or with the material terms of such plan or
arrangement;




(e) any development or event which has had or could reasonably be expected to have a
Material Adverse Effect;




(f) as soon as possible after a Responsible Officer knows or reasonably should know
thereof, the failure to make any rental payment when due and payable with respect to any
property leased by the Borrower or any of its Domestic Subsidiaries at which Inventory of
the Borrower or any of its Domestic Subsidiaries is located; and




(g) any sale or other disposition by the Primary Investors of any Capital Stock having
ordinary voting power in the election of directors of SuperHoldings or Holdings.



Each notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible
Officer setting forth details of the occurrence referred to therein and stating what action the
relevant Debtor proposes to take with respect thereto.



6.8 Environmental Laws. (a) Comply with, and use commercially reasonable efforts to ensure compliance by all tenants
and subtenants, if any, with, all applicable Environmental Laws, and obtain and comply with and
maintain, and use commercially reasonable efforts to ensure that all tenants and subtenants obtain
and comply with and maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws; except, in each case, to the extent the failure
to do so would not reasonably be expected to result in a Material Adverse Effect.


 


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(b) Conduct and complete all investigations, studies, sampling and testing, and all remedial,
removal and other actions required by Environmental Laws and promptly comply with all lawful orders
and directives of all Governmental Authorities regarding Environmental Laws, except, in each case,
to the extent the failure to do so would not reasonably be expected to result in a Material Adverse
Effect.



6.9 Additional Collateral, etc. (a) With respect to any Property acquired after the Closing Date by any Debtor (other than (x)
any Property described in paragraph (b), (c) or (d) below and (y) any Property subject to a Lien
expressly permitted by Section 7.3(g)) as to which the Administrative Agent, for the benefit of the
Lenders, does not have a perfected Lien, promptly (i) execute and deliver to the Administrative
Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the
Administrative Agent deems necessary or advisable in order to grant to the Administrative Agent,
for the benefit of the Lenders, a security interest in such Property and (ii) take all actions
necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a
perfected first priority security interest in such Property, including without limitation, the
filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and
Collateral Agreement or by law or as may be requested by the Administrative Agent.



(b) With respect to any interest in any owned real property having a value (together with
improvements thereof) of at least $250,000 acquired after the Closing Date by any Debtor (other
than any such real property subject to a Lien expressly permitted by Section 7.3(g)), as to which
the Administrative Agent does not have a perfected Lien, promptly (i) execute and deliver a first
priority Mortgage in favor of the Administrative Agent, for the benefit of the Lenders, covering
such real property, (ii) if reasonably requested by the Administrative Agent, provide the Lenders
with (x) title and extended coverage insurance from a title insurance company reasonably
satisfactory to the Administrative Agent and covering such real property in an amount at least
equal to the purchase price of such real estate (or such other amount as shall be reasonably
specified by the Administrative Agent), subject to the Liens as permitted by Section 7.3, as well
as a current ALTA survey thereof from a surveyor reasonably satisfactory to the Administrative
Agent, together with a surveyor’s certificate provided that, if the applicable Debtor is able to
obtain a “no change” affidavit acceptable to the title company and the Administrative Agent to
enable it to issue a title policy removing all exceptions which would otherwise have been raised by
the title company as a result of the absence of a new survey for such real property, and issuing
all survey related endorsements and coverages, then a new survey shall not be required and (y) any
consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent in
connection with such mortgage or deed of trust, each of the foregoing in form and substance
reasonably satisfactory to the Administrative Agent provided that, Borrower shall only be required
to exercise commercially best efforts to obtain such consents or estoppels and (iii) if requested
by the Administrative Agent, deliver to the Administrative Agent legal opinions in local counsel
and counsel in the jurisdiction where the owner of such real property is organized relating to the
matters described above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.


 


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(c) With respect to any new Subsidiary (other than an Excluded Foreign Subsidiary) created or
acquired after the Closing Date (which, for the purposes of this paragraph (c), shall include any
existing Subsidiary that ceases to be an Excluded Foreign Subsidiary) by any Debtor, promptly (i)
execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral
Agreement as the Administrative Agent deems necessary or advisable in order to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority security interest
in the Capital Stock of such new Subsidiary which is owned by such Debtor, (ii) deliver to the
Administrative Agent the certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly
authorized officer of such Debtor, (iii) cause such new Subsidiary (A) to become a party to
the Guarantee and Collateral Agreement and (B) to take such actions necessary or advisable to grant
to the Administrative Agent for the benefit of the Lenders a perfected first priority security
interest in the Collateral described in the Guarantee and Collateral Agreement with respect to such
new Subsidiary (subject to any existing Liens on such Collateral securing Indebtedness existing at
the time such new Subsidiary is created or acquired, so long as such Indebtedness was not incurred
in anticipation of such creation or acquisition and such Lien is not spread to encumber additional
property of such Subsidiary), including, without limitation, the filing of UCC financing statements
in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as
may be requested by the Administrative Agent, and (iv) if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to the matters described above, which
opinions shall be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.



(d) With respect to any new Excluded Foreign Subsidiary created or acquired after the Closing
Date by any Debtor, promptly (i) execute and deliver to the Administrative Agent such amendments to
the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or advisable in
order to grant to the Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in the Capital Stock of such new Subsidiary which is owned by such
Debtor (provided that in no event shall more than 65% of the total outstanding Capital Stock of any
such new Subsidiary be required to be so pledged), (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of such Debtor, and take such other action as
may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the Lien of
the Administrative Agent thereon, and (iii) if requested by the Administrative Agent, deliver to
the Administrative Agent legal opinions relating to the matters described above, which opinions
shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative
Agent.



(e) Subject to the Orders, execute and deliver, or cause to be executed and delivered, to the
Administrative Agent such documents, agreements and instruments, and take or cause to be taken such
further actions which may be required by law or which the Administrative Agent may, from time to
time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan
Documents and to ensure perfection and priority of the Liens created or intended to be created by
the Security Documents and the Orders, all at the expense of the Loan Parties.


 


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6.10 Control Agreements. (a) (i) Enter into the Deposit Account Control Agreements required to be provided pursuant
to Section 6.1 of the Guarantee and Collateral Agreement, (ii) enter into the Local Blocked Account
Agreements required to be provided pursuant to Section 6.4 of the Guarantee and Collateral
Agreement, (iii) enter into the Collateral Access Agreements required to be provided pursuant to
Section 5.13 of the Guarantee and Collateral Agreement, (iii) open the Collection Account with the
Administrative Agent and (iv) deliver to the Administrative Agent executed DDA Notifications (as
defined in the Guarantee and Collateral Agreement) required to be provided pursuant to Section 6.4
of the Guarantee and Collateral Agreement. In connection
with the foregoing, the Borrower shall, if requested by the Administrative Agent, promptly
deliver to the Administrative Agent a favorable written opinion (addressed to the Administrative
Agent and the Lenders) of counsel for the Borrower and the other Loan Parties, in form and
substance reasonably satisfactory to the Administrative Agent and covering customary matters
relating to such control and access agreements.



(b) The Borrower shall determine the aggregate balance of cash and Cash Equivalents of all
Loan Parties in accounts (including Reserved Local Blocked Accounts but other than (i) each Deposit
Account, the funds in which are used, in the ordinary course of business, solely for the payment of
salaries and wages, workers’ compensation, pension benefits and similar expenses or taxes related
thereto, (ii) each Deposit Account (other than a Reserved Local Blocked Account) used, in the
ordinary course of business, solely for daily accounts payable and that has an ending daily balance
of zero and (iii) each Deposit Account (other than Reserved Local Blocked Accounts) used in the
ordinary course of business for local store accounts (which shall be governed by Section 6.4 of the
Guarantee and Collateral Agreement)) not subject to Deposit Account Control Agreements or other
appropriate control agreements in favor of the Administrative Agent in form and substance
reasonably satisfactory to the Administrative Agent at each time when the Borrower delivers
Borrowing Base reports pursuant to Section 6.2(g), and (x) if such aggregate balance under clause
(ii) above shall at any time of determination exceed $1,000,000, the Borrower shall promptly
eliminate such excess from such accounts or shall within 30 days enter, or cause the applicable
Loan Parties to enter, into one or more Deposit Account Control Agreements or other appropriate
control agreements in favor of the Administrative Agent in form and substance reasonably
satisfactory to the Administrative Agent so that there shall not thereafter be any such excess and
(y) if such aggregate balance in Reserved Local Blocked Accounts shall at any time of determination
exceed $1,000,000, the Borrower shall, within three Business Days, eliminate such excess from such
accounts; provided, however, that the Borrower shall have 30 days after the Closing Date
(or such later date as the Administrative Agent shall agree in its Permitted Discretion) to obtain
such Deposit Account Control Agreements or other appropriate control agreements.



6.11 Update Calls. As and when requested by the Administrative Agent (and in any event once per month) at such
times as the Borrower and the Administrative Agent shall agree, the Borrower shall host (i) a
“private side” conference call (with a question and answer period) with the chief financial officer
of the Borrower and such other members of senior management of the Borrower as the Borrower deems
appropriate and the Administrative Agent and the Lenders and their respective representatives and
advisors to discuss the performance of the business, strategic alternatives and other issues as the
Administrative Agent may reasonably request and (ii) a “public side” conference call with the chief
financial officer of the Borrower and such other members of senior management of the Borrower as
the Borrower deems appropriate and the Administrative Agent and the Lenders and their respective
representatives and advisors to discuss the performance of the business and other issues as the
Administrative Agent may reasonably request, but in each case excluding material information
regarding the Debtors that is not publicly available.


 


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6.12 Ratings. Use commercially reasonable efforts to obtain, on or prior to the Final Order Entry Date,
ratings on the Facilities from S&P and Moody’s.



6.13 Post Closing Covenants. (a) Deliver Deposit Account Control Agreements and Local Blocked Account Agreements required by
Section 6.10 as soon as practicable but in any event within 30 days after the Closing Date, as such
compliance period may be extended by the Administrative Agent in the exercise of its reasonable
discretion if the Loan Parties are diligently pursuing delivery thereof;



(b) deliver the evidence of insurance and related certificates and endorsements required by
Section 5.1(m) as soon as practicable but in any event within 30 days after the Closing Date, as
such compliance period may be extended by the Administrative Agent in the exercise of its
reasonable discretion if the Loan Parties are diligently pursuing delivery thereof;



(c) deliver the Intellectual Property filings that may be required pursuant to Section 5.1(l)
as soon as practicable but in any event within 30 days after the Closing Date, as such compliance
period may be extended by the Administrative Agent in the exercise of its reasonable discretion if
the Loan Parties are diligently pursuing delivery thereof; and



(d) if requested by the Administrative Agent, acting in its sole discretion, deliver to the
Administrative Agent as soon as practicable but in any event within 30 days after any such request,
as such compliance period may be extended by the Administrative Agent in the exercise of its
reasonable discretion if the Loan Parties are diligently pursuing delivery thereof, Mortgages for
each Mortgaged Property existing on the Closing Date, in each case in form and substance reasonably
satisfactory to the Administrative Agent, executed and delivered by a duly authorized officer of
each party thereto and, for each Mortgaged Property:




(i) A mortgagee’s title insurance policy (or policies) or marked up unconditional
binder for such insurance. Each such policy, subject to the Liens as permitted by Section
7.3, shall (A) be in an amount reasonably satisfactory to the Administrative Agent; (B) be
issued at ordinary rates; (C) insure that the Mortgage insured thereby creates a valid first
Lien on such Mortgaged Property free and clear of all defects and encumbrances, except as
disclosed therein; (D) name the Administrative Agent for the benefit of the Lenders as the
insured thereunder; (E) be in the form of ALTA Loan Policy — 2006 (or equivalent policies or
such other form of loan policy as is authorized in the state in which the Mortgaged Property
is located); (F) contain such title endorsements and affirmative coverage as the
Administrative Agent may reasonably request, to the extent available at commercially
reasonable rates and (G) be issued by title companies reasonably satisfactory to the
Administrative Agent (including any such title companies acting as co-insurers or
reinsurers, at the option of the Administrative Agent). The Administrative Agent shall have
received evidence reasonably satisfactory to it that all premiums in respect of each such
policy, all charges for mortgage recording tax, and all related expenses, if any, have been
paid.


 


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(ii) If requested by the Administrative Agent, legal opinions of local counsel in each
jurisdiction where a Mortgaged Property is located and legal opinions in each jurisdiction
where the owner of each Mortgaged Property is organized, in each case, in form and substance
reasonably satisfactory to the Administrative Agent.




(iii) A copy of all recorded documents referred to, or listed as exceptions to title
insurance, the title policy or policies referred to in clause (i) above and a copy of all
other material documents affecting the Mortgaged Properties.




(iv) (A) A “standard flood hazard determination”, (B) for each Mortgaged Property which
is located in a special flood hazard area, a policy of flood insurance which (1) covers any
parcel of improved real property which is encumbered by any Mortgage (2) is written in an
amount reasonably satisfactory to the Administrative Agent, and (3) has a term ending not
later than the maturity of the Indebtedness secured by such Mortgage and (C) confirmation
that the Borrower has received the notice required pursuant to Section 208.25(i) of
Regulation H of the Board.



No Debtor shall be required to deliver any additional security documents pursuant to this Section
6.13, if, as determined by the Administrative Agent, acting in its sole discretion, the cost of
obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the
Secured Parties thereby.



Section 7. NEGATIVE COVENANTS




SuperHoldings, Holdings and the Borrower hereby jointly and severally agree that, so long as
the Commitments remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or the Administrative Agent hereunder, each of SuperHoldings,
Holdings and the Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly:



7.1 Financial Condition Covenants(a).



(a) Minimum Liquidity. Permit Liquidity for any period of five consecutive Business
Days to be less than $20,000,000.


 


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(b) Minimum Cumulative Consolidated EBITDA. Permit the Consolidated EBITDA of the
Debtors for any period beginning on July 1, 2011 and ending on the last Business Day of each of the
months set forth below to be less than the amount set forth opposite such month:



	 	 	 	 	 
	 	 	Minimum Consolidated 	 
	Month	 	EBITDA	 
	July 2011
	 	$	3,500,000	 
	August 2011
	 	$	35,000,000	 
	September 2011
	 	$	40,000,000	 
	October 2011
	 	$	35,000,000	 
	November 2011
	 	$	35,000,000	 
	December 2011
	 	$	35,000,000	 
	January 2012
	 	$	65,000,000	 
	February 2012
	 	$	60,000,000	 
	March 2012
	 	$	55,000,000	 
	April 2012
	 	$	55,000,000	 
	May 2012
	 	$	55,000,000	 
	June 2012
	 	$	55,000,000	 






7.2 Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:



(a) Indebtedness of any Loan Party pursuant to any Loan Document;




(b) Indebtedness of the Borrower to any Subsidiary and of any Wholly Owned Subsidiary
Guarantor to the Borrower or any other Subsidiary; provided that any Indebtedness of
any Loan Party owed to any Person that is not a Loan Party shall be subordinated to the
payment in full of the Obligations;




(c) Indebtedness secured by Liens permitted by Section 7.3(g) in an aggregate principal
amount not to exceed $2,000,000 at any one time outstanding;




(d) Capital Lease Obligations in an aggregate principal amount not to exceed $5,000,000
at any one time outstanding;



(e) Indebtedness outstanding on the Petition Date and listed on Schedule 7.2(e);




(f) guarantees made in the ordinary course of business by the Borrower or any of its
Subsidiaries of obligations of any Wholly Owned Subsidiary Guarantor created after the
Petition Date;




(g) [Reserved];



(h) [Reserved];



 


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(i) [Reserved];




(j) additional Indebtedness of the Borrower or any of its Subsidiaries in an aggregate
principal amount at any one time outstanding for the Borrower and all Subsidiaries not to
exceed $5,000,000 less the aggregate principal amount of Indebtedness incurred
pursuant to clauses (c) and (d) above at such time; and




(k) Indebtedness of the Borrower in respect of Swap Agreements permitted by this
Agreement.



Notwithstanding the foregoing, no Subsidiary of Holdings will create, incur, assume or suffer to
exist any Guarantee Obligation in respect of any Indebtedness of Holdings.



7.3 Limitation on Liens. Create, incur, assume or suffer to exist any Lien upon any of its Property or revenues, whether
now owned or hereafter acquired, except for:




(a) Liens for taxes not yet due or which are being contested in good faith by
appropriate proceedings, provided that adequate reserves with respect thereto are
maintained on the books of SuperHoldings, Holdings, the Borrower or their respective
Subsidiaries, as the case may be, in conformity with GAAP;




(b) 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 60 days or which are being contested in good faith by appropriate proceedings;




(c) pledges or deposits in connection with workers’ compensation, unemployment
insurance and other social security legislation;




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




(e) easements, rights-of-way, restrictions, encroachments, covenants, conditions, title
exceptions, survey exceptions, minor defects and irregularities in title and other similar
liens and encumbrances incurred in the ordinary course of business which, either
individually or in the aggregate, are not substantial in amount and which do not in any case
materially detract from the value, operation, use or occupancy of the Property subject
thereto or materially interfere with the ordinary conduct of the business of the Borrower or
any of its Subsidiaries on the Property subject thereto;




(f) Liens in existence on the Petition Date listed on Schedule 7.3(f), securing
Indebtedness permitted by Section 7.2(e), provided that no such Lien is spread to
cover
any additional Property after the Closing Date and that the amount of Indebtedness
secured thereby is not increased;


 


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(g) Liens securing Indebtedness of the Borrower or any other Subsidiary incurred
pursuant to Section 7.2(c) to finance the acquisition of fixed or capital assets,
provided that (i) such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not at any time encumber any
Property other than the Property financed by such Indebtedness and (iii) the amount of
Indebtedness secured thereby is not increased;




(h) Liens created pursuant to the Security Documents and/or the Orders and Liens
permitted by any of the Orders;




(i) any interest or title of a lessor, sublessor, licensor or sublicensor under any
lease or license entered into by the Borrower or any other Subsidiary in the ordinary course
of its business and covering only the assets so leased or licensed;




(j) Liens not otherwise permitted by this Section 7.3 so long as neither (i) the
aggregate outstanding principal amount of the obligations secured thereby nor (ii) the
aggregate fair market value (determined as of the date such Lien is incurred) of the assets
subject thereto exceeds (as to the Borrower and all Subsidiaries) $1,000,000 at any one
time; provided that such Liens do not encumber the Capital Stock of Holdings, the
Borrower or their respective Subsidiaries; and




(k) any covenants, conditions, encroachments, easements, restrictions, encumbrances and
exceptions contained in any mortgagee’s title insurance policy delivered in connection with
the Prepetition Credit Agreement;




(l) any existing leases, subleases, licenses, sublicenses or similar use or occupancy
agreements of all or any portion of a Mortgaged Property and any renewals and extensions
thereof, any leases, subleases, licenses, sublicenses or similar use or occupancy agreements
entered into upon the expiration or termination of any such lease, sublease, license,
sublicense or similar use or occupancy agreements and any leases, subleases, license,
sublicenses or similar use or occupancy agreements hereafter entered into of all or any
portion of a Mortgaged Property not required by the Borrower for the operation of its
business;




(m) any municipal, land use, zoning or similar law, ordinance, building code or right
reserved to or vested in any governmental office or agency to control or regulate the use of
any real property;




(n) ground leases in respect of real property on which facilities leased by any Loan
Party are located;




(o) utility deposits, prepayments of trade creditors (to the extent permitted by
Section 7.7) and the cash collateralization of performance bonds, in each case to the extent
the same is (i) required as a result of the Cases and (ii) not in excess of 120% of the
amounts set forth therefor in the Budget; and




(p) Liens on cash collateral securing the Prepetition Letters of Credit or any letters
of credit replacing such Prepetition Letters of Credit (the “L/C Cash Collateral”)
in an aggregate amount not to exceed 101% of the face amount of the Prepetition Letters of
Credit (less the amount of cash collateral applied to the reimbursement of any such letters
of credit (net of any such amounts returned by the beneficiary thereof in respect thereof)).



 


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Notwithstanding the foregoing, none of the Liens permitted pursuant to this Section 7.3 may at any
time attach to any Loan Party’s (1) Accounts, other than those permitted under clause (h) above and
those permitted under Section 7.3(h) and Section 7.3(m) of the Prepetition Credit Agreement as in
effect on the date hereof and (2) Inventory, other than those permitted under clause (h) above and
those permitted under Section 7.3(h) and Section 7.3(m) of the Prepetition Credit Agreement as in
effect on the date hereof.



7.4 Limitation on Fundamental Changes. Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or Dispose of all or substantially all of its Property
or business except:




(a) any Subsidiary Guarantor may be merged or consolidated with or into the Borrower
(provided that the Borrower shall be the continuing or surviving corporation) or
with or into any Wholly-Owned Subsidiary Guarantor (provided that the Wholly-Owned
Subsidiary Guarantor shall be the continuing or surviving corporation); and




(b) any Subsidiary Guarantor may Dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any Wholly-Owned Subsidiary Guarantor.



7.5 Limitation on Sale of Assets.
Dispose of any of its Property or business (including, without limitation, receivables and
leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary’s Capital Stock to any Person, except:




(a) the Disposition of obsolete or worn out property in the ordinary course of
business;



(b) the sale of inventory in the ordinary course of business;




(c) Dispositions permitted by Section 7.4(b) and any Dispositions from the Borrower to
any Wholly Owned Subsidiary Guarantor;



(d) Sales of Assets set forth on Schedule 7.5; and




(e) the sale of other assets at fair market value provided that (i) such assets have a
fair market value not to exceed $2,000,000 in the aggregate from the Closing Date and (ii)
the consideration received by Holdings, the Borrower and their respective
Subsidiaries for each such sale of assets shall not be less than 75% cash,
provided, that the requirements of Section 2.9 are complied with in connection
therewith.


 


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7.6 Limitation on Restricted Payments. Declare or pay any dividend (other than dividends payable solely in common stock of the Person
making such dividend) on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of,
any shares of any class of Capital Stock of SuperHoldings, Holdings, the Borrower or any of their
respective Subsidiaries or any warrants or options to purchase any such Capital Stock, whether now
or hereafter outstanding, or make any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of Holdings, the Borrower or any of their
respective Subsidiaries (collectively, “Restricted Payments”), except that:




(a) any Subsidiary of the Borrower may make Restricted Payments to the Borrower or any
other Subsidiary of the Borrower;




(b) to the extent permitted by the Orders, the Borrower may pay cash dividends to
Holdings or SuperHoldings in aggregate amounts not to exceed $[_] and to the extent required
for such entity to pay, without duplication, foreign federal, state and local income taxes,
to the extent such income taxes are attributable to the income of the Borrower and its
Subsidiaries; and




(c) the Borrower may pay dividends to Holdings or make investments in Holdings to
permit Holdings, and Holdings may pay dividends to SuperHoldings or make investments in
SuperHoldings to permit SuperHoldings, to pay corporate overhead expenses incurred in the
ordinary course of business not to exceed $250,000 in any fiscal year.



7.7 Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital
contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any
assets constituting all or a material part of a business unit of, or make any other investment in,
any Person, except:



(a) extensions of trade credit in the ordinary course of business;



(b) investments in Cash Equivalents;



(c) Guarantee Obligations permitted by Section 7.2;




(d) loans and advances to employees of the Borrower or any of its Subsidiaries in the
ordinary course of business (including, without limitation, for travel, entertainment and
relocation expenses) in an aggregate amount for the Borrower and its Subsidiaries not to
exceed $250,000 at any one time outstanding;




(e) investments made by the Borrower or any of its Subsidiaries with the proceeds of
any Reinvestment Deferred Amount;




(f) investments by Holdings, the Borrower or any of its Subsidiaries in the Borrower or
any Person that, prior to such investment, is a Debtor; and


 


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(g) acquisitions by the Borrower or any of its Subsidiaries of the Capital Stock of, or
assets of, entities engaged in similar lines of business as the Borrower and its
Subsidiaries on the Closing Date, provided, that (i) the aggregate purchase price
for all such acquisitions occurring after the Closing Date shall not exceed $10,000,000,
(ii) no Default or Event of Default shall have occurred or be continuing after giving effect
to any such acquisition, (iii) no Indebtedness shall be assumed by any Debtor in connection
with any such acquisition except to the extent otherwise permitted pursuant to this
Agreement, (iv) both immediately before and immediately after giving pro forma effect
thereto, Revolving Credit Availability shall not be less than the greater of (x) 20% of the
Total Revolving Credit Commitments and (y) $15,000,000 and (v) to the extent the aggregate
purchase price of all such acquisitions made pursuant to this Section 7.7(g) after the
Closing Date exceeds (or would exceed, giving effect to any such acquisition) $5,000,000,
the Borrower shall have delivered to the Administrative Agent, prior to the consummation of
any such acquisition, a certificate of a Responsible Officer to the effect that (x) such
Responsible Officer reasonably expects each acquisition made pursuant to this Section 7.7(g)
to result in an increase of Consolidated EBITDA (calculated to exclude the effects of
one-time costs related to such acquisitions) of the Borrower during the twelve-month period
following each of such acquisitions (as reasonably determined by the Borrower) by an amount
which shall not be less than 25% of the purchase price for each such acquisition made
pursuant to this Section 7.7(g) and (y) such acquisition otherwise complies with this
Section 7.7(g);



(h) investments existing on the Petition Date and listed on Schedule 7.7;




(i) investments and advances made by the Borrower in Holdings to the extent permitted
by Section 7.6(c); and




(j) other investments in an aggregate amount not to exceed $3,000,000 at any one time
outstanding; provided that both immediately before and immediately after giving pro
forma effect thereto, Revolving Credit Availability shall not be less than the greater of
(i) 25% of the Total Revolving Credit Commitments and (ii) $18,750,000.



7.8 Limitation on Modifications of Material Documents.
Amend its certificate of incorporation, bylaws or other organizational documents in any manner
determined by the Administrative Agent to be adverse to the Lenders without the prior written
consent of the Required Lenders except as required by the Bankruptcy Code.



7.9 Limitation on Transactions with Affiliates. Enter into any transaction, including, without limitation, any purchase, sale, lease or exchange
of Property, the rendering of any service or the payment of any management, advisory or similar
fees, with any Affiliate (other than Holdings, the Borrower or any Wholly Owned Subsidiary
Guarantor) unless such transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of business of Holdings, the Borrower or such Subsidiary, as the case may be, (c)
exclusively among any Debtors or (d) upon fair and reasonable terms no less favorable to Holdings,
the Borrower or such Subsidiary, as the case may be, than it would obtain in a comparable arm’s
length transaction with a Person which is not an Affiliate; provided that under no
circumstance shall any Debtor enter into any transaction with any of the Sponsor or any Primary
Investor other than related to the reimbursement of costs and expenses for board meetings.


 


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7.10 Limitation on Sales and Leasebacks. Enter into any arrangement with any Person providing for the leasing by any Debtor of real or
personal property owned by any Debtor which has been or is to be sold or transferred by
SuperHoldings, Holdings, the Borrower or such Subsidiary to such Person or to any other Person to
whom funds have been or are to be advanced by such Person on the security of such property or
rental obligations of SuperHoldings, Holdings, the Borrower or such Subsidiary.



7.11 Limitation on Changes in Fiscal Periods. Permit the fiscal year of the Borrower to end on a day other than March 31 or change the
Borrower’s method of determining fiscal quarters or fiscal months, except as required by GAAP.



7.12 Limitation on Negative Pledge Clauses. Enter into or suffer to exist or become effective any agreement which prohibits or limits the
ability of any Debtor to create, incur, assume or suffer to exist any Lien upon any of its Property
or revenues, whether now owned or hereafter acquired, to secure the Obligations or, in the case of
any guarantor, its obligations under the Guarantee and Collateral Agreement, other than (a) this
Agreement and the other Loan Documents and (b) any agreements governing any purchase money Liens or
Capital Lease Obligations otherwise permitted hereby (in which case, any prohibition or limitation
shall only be effective against the assets financed thereby).



7.13 Limitation on Restrictions on Subsidiary Distributions. Enter into or suffer to exist or become effective any consensual encumbrance or restriction on
the ability of any Subsidiary of the Borrower to (a) pay dividends or make any other distributions
in respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness owed to, the
Borrower or any other Subsidiary of the Borrower, (b) make loans or advances to the Borrower or any
other Subsidiary of the Borrower or (c) transfer any of its assets to the Borrower or any other
Subsidiary of the Borrower, except for such encumbrances or restrictions existing under or by
reason of (i) any restrictions existing under the Loan Documents and (ii) any restrictions with
respect to a Subsidiary imposed pursuant to an agreement which has been entered into in connection
with the Disposition of all or substantially all of the Capital Stock or assets of such Subsidiary.



7.14 Limitation on Lines of Business. Enter into any business, either directly or through any Subsidiary, except for those businesses
in which the Borrower and its Subsidiaries are engaged on the date of this Agreement or which are
related, ancillary or complementary thereto.



7.15 Limitation on Activities of Holdings and SuperHoldings. (a) In the case of Holdings, notwithstanding anything to the contrary in this Agreement or any
other Loan Document, (i) conduct, transact or otherwise engage in, or commit to conduct, transact
or otherwise engage in, any business or operations other than those incidental to its ownership of
the Capital Stock of the Borrower, (ii) incur, create, assume or suffer to exist any Indebtedness
or other liabilities or financial obligations, except (A) nonconsensual obligations imposed by
operation of law, (B) pursuant to the Loan Documents to which it is a party and (C) obligations
with respect to its Capital Stock, (iii) own, lease, manage or otherwise operate any properties or
assets (including cash (other than cash received from the Borrower in accordance with Section 7.6
pending application in the manner contemplated by said Section) and cash equivalents) other than
the ownership of shares of Capital Stock of the Borrower or (iv) own the Capital Stock of any
Subsidiary (other than the Borrower and its Subsidiaries).


 


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(b) In the case of SuperHoldings, notwithstanding anything to the contrary in this Agreement
or any other Loan Document, (i) conduct, transact or otherwise engage in, or commit to conduct,
transact or otherwise engage in, any business or operations other than those incidental to its
ownership of the Capital Stock of Holdings, (ii) incur, create, assume or suffer to exist any
Indebtedness or other liabilities or financial obligations, except (A) nonconsensual obligations
imposed by operation of law, (B) pursuant to the Loan Documents to which it is a party and (C)
obligations with respect to its Capital Stock and (iii) own, lease, manage or otherwise operate any
properties or assets (including cash (other than cash received from Holdings in accordance with
Section 7.6 pending application in the manner contemplated by said Section) and cash equivalents)
other than the ownership of shares of Capital Stock of Holdings or (iv) own the Capital Stock of
any Subsidiary (other than Holdings and its Subsidiaries).



7.16 Swap Agreements. Enter into any Swap Agreement, except (a) Swap Agreements entered into in the ordinary course of
business to hedge or mitigate risks to which the Borrower or any Subsidiary has actual exposure
(other than those in respect of Capital Stock of the Borrower or any of its Subsidiaries), and (b)
Swap Agreements entered into in order to effectively cap, collar or exchange interest rates (from
fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect
to any interest-bearing liability or investment of the Borrower or any Subsidiary.



7.17 No Non-Debtors. Permit SuperHoldings or any Subsidiary of SuperHoldings not to be a “debtor” and
“debtor-in-possession” under the Cases.



7.18 Chapter 11 Claims. Incur, create, assume, suffer to exist or permit any other Superpriority Claim or Lien on any
Collateral which is pari passu with or senior to the Obligations (or the Liens securing the
Obligations) hereunder, except in each case for the Carve Out and Liens permitted pursuant to
Section 7.3(g) which, in accordance with the Interim Order (or Final Order, as applicable), are
senior to such Liens.



Section 8. EVENTS OF DEFAULT; APPLICATION OF PROCEEDS




8.1 Events of Default. If any of the following events shall occur and be continuing:




(a) The Borrower shall fail to pay any principal of any Loan or any Reimbursement
Obligation when due in accordance with the terms hereof; or the Borrower shall fail to pay
any interest on any Loan or Reimbursement Obligation or any commitment fee or other amount
payable hereunder or under any other Loan Document within three Business Days after any such
interest, commitment fee or other amount becomes due in accordance with the terms hereof; or




(b) Any representation or warranty made or deemed made by any Loan Party herein or in
any other Loan Document or which is contained in any certificate, document or financial or
other statement furnished by it at any time under or in connection with this Agreement or
any such other Loan Document shall prove to have been inaccurate in any material respect on
or as of the date made or deemed made; or


 


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(c) Any Loan Party shall default in the observance or performance of any agreement
contained in (x) clause (j) of Section 6.2 and such default shall continue unremedied for a
period of 3 Business Days or (y) clause (i) or (ii) of Section 6.4(a) (with respect to
Holdings and the Borrower only), Section 6.7(a), 6.10(b)(y) or Section 7; or




(d) Any Loan Party shall default in the observance or performance of any other
agreement contained in this Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall continue unremedied for
a period of 30 days; or




(e) Any Debtor shall (i) default in making any payment of any principal of any
Indebtedness (including, without limitation, any Guarantee Obligation, but excluding the
Loans) incurred following the Petition Date on the scheduled or original due date with
respect thereto; or (ii) default in making any payment of any interest on any such
Indebtedness beyond the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness was created; or (iii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case of any such
Indebtedness constituting a Guarantee Obligation) to become payable; provided, that
a default, event or condition described in clause (i), (ii) or (iii) of this paragraph (e)
shall not at any time constitute an Event of Default unless, at such time, one
or more defaults, events or conditions of the type described in clauses (i), (ii) and
(iii) of this paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds in the aggregate $500,000; or



(f) [Reserved]; or




(g) (i) Any Person shall engage in any Prohibited Transaction involving any Plan, (ii)
any Single Employer Plan shall fail to satisfy the minimum funding standards (within the
meaning of Sections 412 or 430 of the Code or Section 302 of ERISA) applicable to such Plan,
whether or not waived, (iii) any filing shall be made pursuant to Section 412 of the Code or
Section 303 of ERISA of an application for a waiver of the minimum funding standard with
respect to any Single Employer Plan, (iv) there shall exist any failure to make by its due
date a required installment under Section 430(j) of the Code with respect to a Single
Employer Plan or any required contribution to a Multiemployer Plan; (v) there shall be a
determination that any Single Employer Plan is in “at risk” status (within the meaning of
Section 430 of the Code or Title IV of ERISA), (vi) any Lien in favor of the PBGC or a Plan
shall arise on the assets of any Loan Party, (vii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event
or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Plan for purposes of Title
IV of ERISA, (viii) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (ix) a Loan Party or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Required Lenders be likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
determination that any Multiemployer Plan is in endangered or critical status (within the
meaning of Section 432 of the Code or Section 305 of ERISA), (x) there shall exist a
failure to make or accrue any employer or employee contribution required by law or normal
accounting practices to a Foreign Benefit Arrangement or Foreign Plan, (xi) the accrued
benefit obligations of any Foreign Plan (based on those assumptions used to fund such
Foreign Plan) with respect to all current and former participants shall exceed the assets of
such Foreign Plan, (xii) any Foreign Plan required to be registered shall not be in good
standing with applicable regulatory authorities or any Foreign Plan or Foreign Benefit
Arrangement shall not be in compliance with any material provision of applicable law or
applicable regulations, or (xiii) any other event or condition shall occur or exist with
respect to a Plan, Foreign Plan, or Foreign Benefit Arrangement; and in each case in clauses
(i) through (xiii) above, such event or condition, together with all other such events or
conditions, if any, could, in the reasonable judgment of the Required Lenders, reasonably be
expected to have a Material Adverse Effect; or


 


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(h) One or more judgments or decrees required to be satisfied as an administrative
expense claim shall be entered after the Petition Date against any Debtor involving in the
aggregate liabilities for all Debtors (not paid or fully covered by insurance as to which
the relevant insurance company has not disputed coverage) in excess of $500,000, and all
such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within thirty days from the entry thereof; or



(i) [Reserved]




(j) (i) Any Person or “group” (within the meaning of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended) other than the Primary Investors (A) shall have
acquired beneficial ownership of a greater percentage of SuperHoldings’ voting common stock
than is then held by the Primary Investors or (B) shall obtain the power (whether or not
exercised) to elect a majority of the Borrower’s, Holdings’ or SuperHoldings’ directors (for
purposes of this clause (i), and clause (ii)(B) below, any shares of voting stock that are
required to be voted for a nominee of any Primary Investor shall be deemed to be held by
such Primary Investor for purposes of determining the voting power held by any Person); or
(ii) (A) the board of directors of the Borrower, Holdings or SuperHoldings shall not consist
of a majority of Continuing Directors; as used in this paragraph “Continuing
Directors” shall mean the directors the Borrower, Holdings or SuperHoldings, as the case
may be, on the Closing Date and each other director, if such other director’s nomination for
election to the board of directors of the Borrower, Holdings or SuperHoldings is recommended
by a majority of the then Continuing Directors or (B) the Primary Investors shall cease to
be able to elect a majority of the board of directors of (x) SuperHoldings, (y) through
SuperHoldings, Holdings, or (z) through Holdings, the Borrower; or (iii) the Primary
Investors shall cease to own legally and beneficially at least 51% of each outstanding class
of Capital Stock having ordinary voting power in the election of directors of SuperHoldings;
or (iv) prior to the merger contemplated by Section 7.4(c), SuperHoldings shall cease to own
legally and beneficially 90% of each class of Capital Stock of Holdings, free of Liens
(other than Liens created by the Security Documents); or (v) Holdings shall cease to own
legally and beneficially 100% of each class of Capital Stock of the Borrower, free of Liens
(other than Liens created by the Security Documents); or (vi) a “change of control” as
defined in any Indenture shall occur; or


 


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(k) (i) An order of the Bankruptcy Court shall be entered granting another
Superpriority Claim (other than the Carve Out) or Lien pari passu with or senior to that
granted (x) to the Lenders and the Administrative Agent pursuant to this Agreement and the
Interim Order (or the Final Order, as applicable), or (y) to the Prepetition Secured Parties
pursuant to the Interim Order (or the Final Order, as applicable), (ii) an order of the
Bankruptcy Court shall be entered reversing, rescinding, staying, vacating or otherwise
amending, supplementing or modifying the Interim Order (or the Final Order, as applicable)
without the written consent of the Administrative Agent, acting in its sole discretion;
(iii) an order of the Bankruptcy Court shall be entered under Section 1106(b) of the
Bankruptcy Code in any of the Cases appointing a Chapter 11 trustee with plenary powers, a
responsible officer or an examiner having enlarged powers relating to the operation of the
business of the Loan Parties (i.e., powers beyond those set forth under Sections 1106(a)(3)
and (4) of the Bankruptcy Code); (iv) the Final Order Entry Date shall not have occurred by
the date that is thirty-five days following the date of entry of the Interim Order (or such
later date as the Administrative Agent, acting in its sole discretion, may agree); or (v) a
plan shall be confirmed in any of the Cases of the Debtors that does not provide for
termination of the Commitments and payment in full in cash of the Obligations on the
Effective Date of such plan of reorganization or any order shall be entered which dismisses
any of the Cases of the Debtors or converts any of the Cases to a
case under Chapter 7 of the Bankruptcy Code and which order does not provide for
termination of the Commitments and payment in full in cash of the Obligations or any of the
Debtors shall seek support, or fail to contest in good faith the filing or confirmation of
such a plan or the entry of such an order; or




(l) Any Debtor shall make any payments relating to pre-Petition Date obligations other
than (i) as permitted under the Interim Order (or the Final Order, as applicable), (ii) in
respect of and in accordance with, and to the extent authorized by, a “first day” order
reasonably satisfactory to the Administrative Agent and (iii) as otherwise expressly
permitted under this Agreement; or




(m) The entry of an order granting relief from the automatic stay, to the extent not
stayed, so as to allow a third party to proceed against any property of any Debtor which has
a value in excess of $1,000,000 in the aggregate or to permit other actions that could
reasonably be expected to have a Material Adverse Effect; or



(n) Any Debtor shall fail to comply with the Interim Order or the Final Order; or


 


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(o) The filing of any pleading by any Loan Party seeking, or otherwise consenting to,
any of the matters set forth in paragraphs (k), (l), (m) or (n) above in this Section 8.1;
or




(p) Any proceeding shall be commenced by any Loan Party seeking, or otherwise
consenting to (i) the invalidation, subordination or other challenging of the Superpriority
Claims and Liens granted to secure the Obligations or (ii) any relief under Section 506(c)
of the Bankruptcy Code with respect to any Collateral; or




(q) The Orders or any of the Collateral Documents shall cease, for any reason, to be in
full force and effect, or any Loan Party or any Affiliate of any Loan Party shall so assert,
or any Liens or Superpriority Claims created by the Orders or any Collateral Documents shall
cease to be enforceable and of the same effect and priority purported to be created thereby
other than by reason of the release thereof in accordance with the terms thereof; or




(r) The Guarantees shall cease, for any reason, to be in full force and effect or any
Loan Party or any of their Affiliates shall so assert in writing;



then, the Administrative Agent may, and, at the request of the Required Lenders, the Administrative
Agent shall, by notice to the Borrower (with a copy to the Prepetition Agent, counsel for any
statutory committee appointed in the Cases and to the United States Trustee), take one or more of
the following actions, at the same or different times (provided that with respect to clause (iii)
below and the enforcement of Liens or other remedies with respect to the Collateral under clause
(iv) below, the Administrative Agent shall provide the Borrower (with a copy to the Prepetition
Agent, counsel for any statutory committee appointed in the Cases and to the United States Trustee)
with seven Business Days’ written notice prior to taking the action contemplated thereby;
provided, further, that upon receipt of the notice referred to in the immediately
preceding clause, the Borrower may continue to make ordinary course and Carve
Out disbursements from the account referred to in clause (iii) below but may not withdraw or
disburse any other amounts from such account) (in any hearing after the giving of the
aforementioned notice, the only issue that may be raised by any party in opposition of any such
action shall be whether, in fact, an Event of Default has occurred and is continuing): (i)
terminate forthwith the Commitments; (ii) declare the Loans (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) then outstanding to be forthwith due
and payable, whereupon the principal of the Loans, together with accrued interest thereon and any
unpaid accrued fees and all other Obligations of the Borrower accrued hereunder and under any other
Loan Document, shall become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by the Loan Parties, anything
contained herein or in any other Loan Document to the contrary notwithstanding; (iii) subject to
the Interim Order (or Final Order, as applicable), set-off amounts held as cash collateral or in
the accounts of the Loan Parties and apply such amounts to the Obligations of the Loan Parties
hereunder and under the other Loan Documents in accordance with Section 11.3; and (iv) exercise any
and all remedies under this Agreement, the other Loan Documents the Interim Order (or Final Order,
as applicable), and applicable law available to the Administrative Agent and the Lenders. With
respect to all Letters of Credit with respect to which presentment for honor shall not have
occurred at the time of exercise of remedies pursuant to this paragraph, the Borrower shall at such
time deposit in a cash collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment of drafts drawn
under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other Obligations. After
all such Letters of Credit shall have expired or been fully drawn upon, all Reimbursement
Obligations shall have been satisfied and all other Obligations shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the Borrower (or such other
Person as may be lawfully entitled thereto).


 


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8.2 Application of Proceeds. After the exercise of remedies provided for in Section 8.1, any amounts received on account of
the Obligations shall be applied by the Administrative Agent and the Lenders in the following
order:



First, to payment of that portion of the Obligations (excluding the Banking Services
Obligations and Swap Obligations) constituting fees, indemnities, expenses and other amounts
(including fees, charges and disbursements of counsel to the Administrative Agent and amounts
payable under Section 2) payable to the Administrative Agent, in its capacity as such;



Second, to payment of that portion of the Obligations (excluding the Banking Services
Obligations and Swap Obligations) constituting indemnities, expenses, and other amounts (other than
principal, interest and fees) payable to the Revolving Lenders and the Issuing Lender, ratably
among them in proportion to the amounts described in this clause Second payable to them;



Third, to payment of that portion of the Obligations consisting of accrued and unpaid interest
on the Protective Advances;



Fourth, to pay that portion of the Obligations consisting of unpaid principal of the
Protective Advances;



Fifth, to payment of that portion of the Obligations constituting accrued and unpaid interest
on the Revolving Credit Loans, LC Exposure and such other Obligations owed to the Revolving
Lenders, and fees (including Letter of Credit fees), ratably among the Revolving Lenders and the
Issuing Lender in proportion to the respective amounts described in this clause Fifth payable to
them;



Sixth, to payment of that portion of the Obligations constituting unpaid principal of the
Revolving Credit Loans and unreimbursed L/C Disbursements, ratably among the Revolving Lenders and
the Issuing Lender in proportion to the respective amounts described in this clause Sixth held by
them;



Seventh, to the Administrative Agent for the account of the Issuing Lender, to cash
collateralize that portion of LC Exposure comprised of the aggregate undrawn amount of Letters of
Credit;


 


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Eighth, to payment of all other Obligations (including without limitation the cash
collateralization of unliquidated indemnification obligations, but excluding Banking Services
Obligations), ratably among the Credit Parties (other than the Term Lenders, their Affiliates and
any Related Credit Party) of the foregoing in proportion to the respective amounts described in
this clause Eighth held by them;



Ninth, to payment of that portion of the Obligations arising from Banking Services Obligations
and Swap Obligations, ratably among the Credit Parties in proportion to the respective amounts
described in this clause Ninth held by them;



Tenth, ratably to pay any fees, indemnities, expenses and other amounts then due to the Term
Lenders, their Affiliates and the Related Credit Parties of the foregoing until paid in full;



Eleventh, ratably to pay accrued and unpaid interest in respect of the Term Loans until paid
in full;



Twelfth, ratably to pay principal due in respect of Term Loans until paid in full;



Thirteenth, to payment of all other Obligations (including without limitation the cash
collateralization of unliquidated indemnification obligations) to the Term Lenders, their
Affiliates and the Related Credit Parties of the foregoing; and



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



Subject to Section 3, amounts used to Cash Collateralize the aggregate undrawn amount of
Letters of Credit pursuant to clause Seventh 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.



Section 9. THE AGENTS




9.1 Appointment. Each Lender hereby irrevocably designates and appoints the Administrative Agent as the agent of
such Lender under this Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement
and the other Loan Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative
Agent shall have no duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.


 


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9.2 Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement and the other Loan
Documents by or through agents or attorneys in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.



9.3 Exculpatory Provisions. Neither the Administrative Agent nor any of its respective officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this Agreement or any other
Loan Document (except to the extent that any of the foregoing are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted from its or such
Person’s own gross negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other Loan Document or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of any Loan Party a party thereto to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under any obligation to
any Lender to ascertain or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party.



9.4 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying,
upon any instrument, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including, without limitation, counsel to the Loan
Parties), independent accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes
unless a written notice of assignment, negotiation or transfer thereof shall have been filed with
the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing
to take any action under this Agreement or any other Loan Document unless it shall first receive
such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all
Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by reason of taking
or continuing to take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, if so specified by this
Agreement, all Lenders), and such request and any action taken or failure to act pursuant thereto
shall be binding upon all the Lenders and all future holders of the Loans.


 


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9.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default hereunder unless the Administrative Agent has received notice from
a Lender, Holdings or the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a “notice of default”. In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders. The Administrative Agent shall take such action with respect to such Default or Event
of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this
Agreement, all Lenders); provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders.



9.6 Non-Reliance on Administrative Agent and Other Lenders. Each Lender expressly acknowledges that neither the Arranger, the Administrative Agent nor any
of their respective officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by the Arranger or the Administrative
Agent hereinafter taken, including any review of the affairs of a Loan Party or any affiliate of a
Loan Party, shall be deemed to constitute any representation or warranty by the Arranger or
Administrative Agent to any Lender. Each Lender represents to the Arranger and the Administrative
Agent that it has, independently and without reliance upon the Arranger or the Administrative Agent
or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without reliance upon the Arranger, the
Administrative Agent or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their affiliates.
Except for notices, reports and other documents expressly required to be furnished to the Lenders
by the Administrative Agent hereunder, the Administrative Agent shall have no duty or
responsibility to provide any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan
Party or any affiliate of a Loan Party which may come into the possession of the Administrative
Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates.



9.7 Indemnification. The Lenders agree to indemnify the Arranger and the Administrative Agent in their respective
capacities as such (to the extent not reimbursed by Holdings or the Borrower and without limiting
the obligation of Holdings or the Borrower to do so), ratably according to their respective
Applicable Percentage in effect on the date on which indemnification is sought under this Section
9.7 (or, if indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance with such Applicable
Percentage immediately prior to such date), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time following the payment
of the Loans) be imposed on, incurred by or asserted against the Arranger or the Administrative
Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by the Administrative
Agent under or in connection with any of the foregoing, including all amounts owed by the Borrower
under Section 10.5 which are not paid by the Borrower; provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements which are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted from the Arranger’s
(in the case of the Arranger) or Administrative Agent’s (in the case of the Administrative Agent)
gross negligence or willful misconduct. The agreements in this Section 9.7 shall survive the
payment of the Loans and all other amounts payable hereunder.


 


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9.8 Administrative Agent in Its Individual Capacity. The Administrative Agent and its Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with any Loan Party as though the Administrative Agent was
not the Administrative Agent. With respect to its Loans made or renewed by it and
with respect to any Letter of Credit issued or participated in by it, the Administrative Agent
shall have the same rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not the Administrative Agent, and the terms
“Lender” and “Lenders” shall include the Administrative Agent in its individual capacity.



9.9 Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 10 days’ notice to the Lenders
and the Borrower. If the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent (unless a Default or Event of
Default shall have occurred and be continuing) shall be subject to approval by the Borrower (which
approval shall not be unreasonably withheld or delayed), whereupon such successor agent shall
succeed to the rights, powers and duties of the Administrative Agent, and the term “Administrative
Agent” shall mean such successor agent effective upon such appointment and approval, and the former
Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent has accepted
appointment as Administrative Agent by the date that is 10 days following a retiring Administrative
Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless
thereupon become effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. After any retiring Administrative Agent’s resignation as
Administrative Agent, the provisions of this Section 9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.



9.10 Authorization to Release Liens. The Administrative Agent is hereby irrevocably authorized by each of the Lenders to release any
Lien covering any Property of the Borrower or any of its Subsidiaries that is the subject of a
Disposition which is permitted by this Agreement or which has been consented to in accordance with
Section 10.1.


 


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9.11 Reports. Each Lender hereby agrees that (a) it has requested a copy of each Report prepared by or on
behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no representation or
warranty, express or implied, as to the completeness or accuracy of any Report or any of the
information contained therein or any inaccuracy or omission contained in or relating to a Report
and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not
comprehensive audits or examinations, and that any Person performing any field examination will
inspect only specific information regarding the Loan Parties and will rely significantly upon the
Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel and
that the Administrative Agent undertakes no obligation to update, correct or supplement the
Reports; (d) it will keep all Reports confidential and strictly for its internal use, not share the
Report with any Person except as otherwise permitted pursuant to this Agreement; and (e)
without limiting the generality of any other indemnification provision contained in this Agreement,
it will pay and protect, and indemnify, defend, and hold the Administrative Agent and any such
other Person preparing a Report harmless from and against, the claims, actions, proceedings,
damages, costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the
direct or indirect result of any third parties who might obtain all or part of any Report through
the indemnifying Lender.



9.12 Arranger. The Arranger shall have no duties or responsibilities hereunder in its capacity as such.



Section 10. MISCELLANEOUS




10.1 Amendments and Waivers. Neither this Agreement, any other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may, or (with the written
consent of the Required Lenders) the Administrative Agent and each Loan Party party to the relevant
Loan Document may, from time to time, (a) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of adding any provisions to
this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or
of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as the
Required Lenders, or the Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of this Agreement or the other Loan Documents or any Default or Event of
Default and its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (i) forgive the principal amount or extend the final
scheduled date of maturity of any Loan, reduce the stated rate of any interest, fee or letter of
credit commission payable hereunder or extend the scheduled date of any payment thereof, extend the
duration of any Interest Period beyond six months, or increase the amount or extend the expiration
date of any Lender’s Commitment, in each case without the consent of each Lender directly affected
thereby; (ii) amend, modify or waive any provision of this Section 10.1 or reduce any percentage
specified in the definition of Required Lenders or Supermajority Revolving Lenders, consent to the
assignment or transfer by the Borrower of any of its rights and obligations under this Agreement
and the other Loan Documents, amend or modify the Superpriority Claim status of the Lenders or
release or subordinate all or substantially all of the Liens or Collateral granted to the Secured
Parties under any Loan Document or under the Orders, or release Holdings or, while SuperHoldings
remains in existence, SuperHoldings or all or substantially all of the Subsidiary Guarantors from
their obligations under the Guarantee and Collateral Agreement, in each case without the written
consent of all Lenders; (iii) amend, modify or waive any provision of Section 9 without the written
consent of the Administrative Agent; (iv) amend, modify or waive any provision of Section 3 or
other rights of the Issuing Lender (including its rights to Cash Collateral) without the written
consent of the Issuing Lender; (v) amend or modify the definition of “Borrowing Base”, “Eligible
Accounts Receivable” or “Eligible Inventory” or otherwise make changes affecting Borrowing Base
eligibility criteria that have the effect of increasing Revolving Credit Availability or that
affect or alter priority of payments set forth in Section 8.2 or that amend
Section 2.8(b), in each case without the consent of the Supermajority Revolving Lenders, or (vi)
amend, modify or waive any provision of Sections 2.15(a), (b) or (c) without the written consent of
each Lender adversely affected thereby. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties,
the Lenders, the Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Administrative Agent shall be restored to their
former position and rights hereunder and under the other Loan Documents, and any Default or Event
of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend
to any subsequent or other Default or Event of Default, or impair any right consequent thereon.


 


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If, in connection with any proposed amendment, waiver or consent requiring the consent of
“each Lender” or “each Lender affected thereby,” the consent of the Required Lenders is obtained,
but the consent of other necessary Lenders is not obtained (any such Lender whose consent is
necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the
Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement,
provided that, concurrently with such replacement, (i) another bank or other entity which
is reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such
date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender
pursuant to an Assignment and Assumption (or pursuant to other arrangements specified by the
Administrative Agent, which may include a deemed assignment) and to become a Lender for all
purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be
terminated as of such date and to comply with the requirements of Section 10.6(b), and (ii) the
Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement
(1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by
the Borrower hereunder to and including the date of termination, including without limitation
payments due to such Non-Consenting Lender under Sections 2.16 and 2.18, and (2) an amount, if any,
equal to the payment which would have been due to such Lender on the day of such replacement under
Section 2.18 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold
to the replacement Lender.



10.2 Notices. All notices, requests and demands to or upon the respective parties hereto to be effective shall
be in writing (including by telecopy), and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when delivered, or three Business Days after being deposited
in the mail, postage prepaid, or, in the case of telecopy notice, when received by a responsible
officer of the addressee, addressed as follows in the case of SuperHoldings, Holdings, the Borrower
and the Administrative Agent, and as set forth in an administrative questionnaire delivered to the
Administrative Agent in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto:



	 	 	 
	SuperHoldings and Holdings:
	 	NBC Acquisition Corp.

	 
	 	4700 South 19th Street

	 
	 	Lincoln, Nebraska 68501

	 
	 	Attention:  Chief Financial Officer

	 
	 	Facsimile:  402-421-0507






 


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	The Borrower:
	 	Nebraska Book Company, Inc.

	 
	 	4700 South 19th Street

	 
	 	Lincoln, Nebraska 68501

	 
	 	Attention:  Chief Financial Officer

	 
	 	Facsimile:  402-421-0507
	 
	 	 
	With a copy to:
	 	Kirkland & Ellis LLP

	 
	 	601 Lexington Avenue

	 
	 	New York, New York 10022

	 
	 	Attention: Leonard Klingbaum, Esq.

	 
	 	Facsimile: 212-446-6460
	 
	 	 
	The Administrative Agent:
	 	JPMorgan Chase Bank, N.A.

	 
	 	Bank Loans and Agency Services

	 
	 	1111 Fannin Street, 10th Floor

	 
	 	Houston, TX 77002

	 
	 	Attention:  Syed X Abbas

	 
	 	Facsimile:  713-286-3245
	 
	 	 
	with a copy to:
	 	JPMorgan Chase Bank, N.A.

	 
	 	270 Park Avenue

	 
	 	New York, New York 10017

	 
	 	Attention:  [Eric H Pratt]

	 
	 	Facsimile:  212-270-6842






provided that any notice, request or demand to or upon the Administrative Agent or the
Lenders shall not be effective until received.



Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Section 2 unless
otherwise agreed by the Administrative Agent and the applicable Lender. 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.



10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent or
any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents 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.


 


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10.4 Survival of Representations and Warranties. All representations and warranties made hereunder, in the other Loan Documents and in any
document, certificate or statement delivered pursuant hereto or in connection herewith shall
survive the execution and delivery of this Agreement and the making of the Loans hereunder.



10.5 Payment of Expenses. The Borrower agrees (a) to pay or reimburse the Administrative Agent, for all its reasonable
documented out-of-pocket costs and expenses incurred in connection with the preparation and
execution of, and any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees, disbursements and other charges of counsel to the
Administrative Agent (with such counsel to include no more than one local counsel in each
applicable jurisdiction so long as such counsel are engaged with the Borrower’s prior written
consent) and of other professional advisors to the Administrative Agent, (b) to pay or reimburse
each Lender and the Administrative Agent for all their reasonable out-of-pocket costs and expenses
incurred in connection with the enforcement or preservation of any rights under this Agreement, the
other Loan Documents and any such other documents, including, without limitation, the reasonable
fees, disbursements and other charges of one lead counsel (including all such costs and expenses
incurred during any negotiations, workouts, restructurings or legal proceedings) and of one local
counsel in each relevant jurisdiction and the fees and disbursements of any financial advisor or
third party consultants or appraisers to and of the Administrative Agent (and the allocated fees
and expenses of in-house counsel), (c) to pay or reimburse the Administrative Agent for all
reasonable documented out-of-pocket costs and expenses incurred in connection with this Agreement
and the other Loan Documents, the Orders or the Cases (including, without limitation, the on-going
monitoring of the Cases, including attendance at hearings or other proceedings and the on-going
review of documents filed with the Bankruptcy Court, and all fees, disbursements and charges of
counsel for the Administrative Agent and other professional advisors to the Administrative Agent),
(d) to pay, indemnify, and hold each Lender, the Arranger and the Administrative Agent harmless
from, any and all recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other Taxes, if any, that may be payable or
determined to be payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan
Documents and any such other documents, and (e) to pay, indemnify, and hold each Lender and the
Administrative Agent and their respective affiliates and their respective officers, directors,
employees, agents and controlling persons (each, an “indemnitee”) harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan Documents and
any such other documents, including, without limitation, any of the foregoing relating to the use
of proceeds of the Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of Holdings, the Borrower any of their respective
Subsidiaries or any of the Properties and the reasonable fees, disbursements and other charges of
one lead counsel and of one local counsel in each relevant jurisdiction (and the allocated fees and
expenses of in-house counsel) to each Lender and of counsel to the Administrative Agent (all the
foregoing in this clause (e), collectively, the “indemnified liabilities”), provided, that
the Borrower shall have no obligation hereunder to any indemnitee with respect to indemnified
liabilities (i) to the extent such indemnified liabilities are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such indemnitee or (ii) arising from a lawsuit or administrative proceeding against
such indemnitee if the Borrower was not given notice of such lawsuit or administrative proceeding
and an opportunity to participate in the defense thereof at its own expense, and provided
further, that this Section 10.5(e) shall not apply with respect to Taxes other than Taxes
that represent losses or damages arising from any non-Tax claim. Without limiting the foregoing,
and to the extent permitted by applicable law, Holdings and the Borrower agree not to assert and to
cause their Subsidiaries not to assert, and hereby waive and agree to cause their Subsidiaries to
so waive, all rights for contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind
or nature, under or related to Environmental Laws, that any of them might have by statute or
otherwise against any indemnitee. The agreements in this Section shall survive repayment of the
Loans and all other amounts payable hereunder.


 


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Expenses being reimbursed by the Borrower under this Section include, without limiting the
generality of the foregoing, costs and expenses incurred in connection with:



(i) appraisals and insurance reviews;




(ii) field examinations and the preparation of Reports based on the fees charged by a
third party retained by the Administrative Agent or the internally allocated fees for each
Person employed by the Administrative Agent with respect to each field examination, together
with the reasonable fees and expenses associated with collateral monitoring services
performed by the Specialized Due Diligence Group of the Administrative Agent (and the
Borrower agrees to modify or adjust the computation of the Borrowing Base — which may
include maintaining additional Reserves, modifying the advance rates or modifying the
eligibility criteria for the components of the Borrowing Base — to the extent required by
the Administrative Agent as a result of any such evaluation, appraisal or monitoring);




(iii) background checks regarding senior management and/or key investors, as deemed
necessary or appropriate in the reasonable discretion of the Administrative Agent;




(iv) taxes, fees and other charges for (A) lien and title searches and title insurance
and (B) recording the Mortgages, filing financing statements and continuations, and other
actions to perfect, protect, and continue the Administrative Agent’s Liens;




(v) sums paid or incurred to take any action required of any Loan Party under the Loan
Documents that such Loan Party fails to pay or take; and




(vi) forwarding loan proceeds, collecting checks and other items of payment, and
establishing and maintaining the accounts and lock boxes, and costs and expenses of
preserving and protecting the Collateral.



All of the foregoing costs and expenses may be charged to the Borrower as Revolving Credit Loans or
to another deposit account, all as described in Section 8.2.


 


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10.6 Successors and Assigns; Participations and Assignments. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Lender that issues any Letter of Credit), except that (i) neither the
Borrower nor Holdings may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this Section.



(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees (other than the Borrower, an Affiliate of the Borrower or a natural
person) (each, an “Assignee”) all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans at the time owing to it)
with the prior written consent (such consent not to be unreasonably delayed or withheld) of:




(A) the Borrower, provided that no consent of the Borrower shall be required
for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund (as defined below)
or, if an Event of Default has occurred and is continuing, any other Person; and




(B) the Administrative Agent and, in the case of the Revolving Facility, the Issuing
Lender.



(ii) Assignments shall be subject to the following additional conditions:




(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s
Revolving Credit Commitments or Loans, the amount of the Revolving Credit Commitments or
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) shall not be less than $5,000,000 in the case of the Revolving Facility and
$1,000,000 in the case of the Term Facility, unless each of the Borrower and the
Administrative Agent otherwise consent, provided that such amounts shall be
aggregated in respect of each prospective Lender and its Affiliates or Approved Funds, if
any;


 


106









 






(B) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500
(treating multiple or simultaneous assignments by or to two or more Approved Funds or two or
more funds that are engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of business that are managed by the same
investment advisor or Affiliated advisors as a single assignment); and




(C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an administrative questionnaire.



For the purposes of this Section 10.6, “Approved Fund” means any Person (other than a
natural person) that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and 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; provided that, for purposes of proviso (2) of clause
(b)(ii)(A) above, in connection with an assignment to a prospective Lender not previously a Lender,
the term “Lender” as it is used in clauses (a), (b) and (c) of this paragraph shall mean such
prospective Lender.



(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below, from
and after the effective date specified in each Assignment and Assumption the Assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.16, 2.17, 2.18 and 10.5). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 10.6 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.



(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices 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 amount of the Loans and L/C Obligations owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the Issuing Lender and the Lenders shall
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, the Issuing Lender and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.



(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee
shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.



 


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(vi) Any assignment need not be ratable between the Facilities.



(c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell
participations to one or more banks or other entities (but in no case to the Borrower, an Affiliate
of the Borrower or a natural person) (a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement (including all or a portion of its Commitments and the
Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall
remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (C) the Borrower, the Administrative Agent, the Issuing
Lender and the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. Any agreement 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 may provide that such Lender will
not, without the consent of the Participant, agree to any amendment, modification or waiver that
(1) requires the consent of each Lender directly affected thereby pursuant to the proviso to the
second sentence of Section 10.1 and (2) directly affects such Participant. The Borrower agrees
that each Participant shall be entitled to the benefits of (and the limitations of) Sections 2.16,
2.17 and 2.18 (subject to the requirements and limitations therein, including the requirements
under Section 2.17(f) (it being understood that the documentation required under Section 2.17(f)
shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section; provided
that such Participant (A) agrees to be subject to the provisions of Sections 2.16 and 2.17 as if it
were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any
greater payment under Sections 2.16 or 2.17, with respect to any participation, than its
participating Lender would have been entitled to receive, except to the extent such entitlement to
receive a greater payment results from an adoption of or any change in any Requirement of Law or in
the interpretation or application thereof or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof that occurs after the Participant acquired the applicable
participation. To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.7(b) as though it were a Lender, provided such Participant shall be subject
to Section 10.7(a) as though it were a Lender. Each Lender that sells a participation shall,
acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters
the name and address of each Participant and the principal amounts (and stated interest) of each
Participant’s interest in the Loans or other obligations under this Agreement (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any
portion of the Participant Register to any Person (including the identity of any Participant or any
information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or
its other obligations under any Loan Document) except to the extent that such disclosure is
necessary to establish that such Commitment, Loan,
Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the
United States Treasury Regulations. The entries in the Participant Register shall be conclusive
absent manifest error, and such Lender shall treat each person whose name is recorded in the
Participant Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary.


 


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(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or Assignee for such Lender as a party hereto.



(e) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue
Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph
(d) above.



(f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it
may have funded hereunder to its designating Lender without the consent of the Borrower or the
Administrative Agent and without regard to the limitations set forth in Section 10.6(b). Each of
Holdings, the Borrower, each Lender and the Administrative Agent hereby confirms that it will not
institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender
any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state
bankruptcy or similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; provided, however, that each
Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other
party hereto for any loss, cost, damage or expense arising out of its inability to institute such a
proceeding against such Conduit Lender during such period of forbearance.



10.7 Adjustments; Set-off. (a) Except to the extent that this Agreement or any Court Order provides for payments to be
allocated to the Lenders or a particular Lender or the Administrative Agent, if any Lender (a
“Benefitted Lender”) shall at any time receive any payment of all or part of its Loans or
the Reimbursement Obligations owing to it, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 8(f), or otherwise), in a greater proportion than
any such payment to or collateral received by any other Lender, if any, in respect of such other
Lender’s Loans or the Reimbursement Obligations owing to such other Lender, or interest thereon,
such Benefitted Lender shall purchase for cash from the other Lenders a participating interest in
such portion of each such other Lender’s Loan and/or of the Reimbursement Obligations owing to each
such other Lender, or shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such Benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits is thereafter recovered from
such Benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.


 


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(b) In addition to any rights and remedies of the Lenders provided by law, subject to the
Carve Out and the Orders and, after the giving of the notice described in Section 8.1
notwithstanding the provisions of Section 362 of the Bankruptcy Code, each Lender shall have the
right, without prior notice to SuperHoldings, Holdings or the Borrower, any such notice being
expressly waived by SuperHoldings, Holdings and the Borrower to the extent permitted by applicable
law, upon any amount becoming due and payable by SuperHoldings, Holdings or the Borrower hereunder
(whether at the stated maturity, by acceleration or otherwise) to set off and appropriate and apply
against such amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any currency, in each
case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender, any Affiliate thereof or any branch or agency thereof to or for the credit or
the account of SuperHoldings, Holdings or the Borrower. Each Lender agrees promptly to notify
SuperHoldings, Holdings, the Borrower and the Administrative Agent after any such setoff and
application made by such Lender, provided that the failure to give such notice shall not
affect the validity of such setoff and application.



10.8 Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy or other electronic transmission), and all of said
counterparts taken together shall be deemed to constitute one and the same instrument. A set of
the copies of this Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.



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



10.10 Integration. This Agreement and the other Loan Documents represent the agreement of SuperHoldings, Holdings,
the Borrower, the Administrative Agent and the Lenders with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by the Administrative Agent
or any Lender relative to subject matter hereof not expressly set forth or referred to herein or in
the other Loan Documents.



10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
AND, TO THE EXTENT APPLICABLE, THE BANKRUPTCY CODE.


 


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10.12 Submission To Jurisdiction; Waivers. Each of SuperHoldings, Holdings and the Borrower, the Administrative Agent and each Lender
hereby irrevocably and unconditionally:



(a) submits for itself and its Property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the exclusive general jurisdiction of the Bankruptcy Court
and, if the Bankruptcy Court does not have (or abstains from) jurisdiction, to the exclusive
general jurisdiction of any State or Federal court of competent jurisdiction sitting in New York
County, New York;



(b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;



(c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to SuperHoldings, Holdings or the Borrower, as the case may be at its address set forth in
Section 10.2 or at such other address of which the Administrative Agent shall have been notified
pursuant thereto;



(d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and



(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section 10.12 any special, exemplary,
punitive or consequential damages.



10.13 Acknowledgements. Each of SuperHoldings, Holdings and the Borrower hereby acknowledges that:




(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;




(b) neither the Administrative Agent nor any Lender nor the Arranger has any fiduciary
relationship with or duty to SuperHoldings, Holdings or the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the relationship
between Administrative Agent, Lenders and the Arranger, on one hand, and SuperHoldings,
Holdings and the Borrower, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and




(c) no joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Lenders or among
SuperHoldings, Holdings, the Borrower and the Lenders.


 


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10.14 WAIVERS OF JURY TRIAL. SUPERHOLDINGS, HOLDINGS, THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.



10.15 Confidentiality. The Administrative Agent and each Lender agrees to keep confidential all non-public information
provided to it by any Loan Party pursuant to this Agreement that is designated by such Loan Party
as confidential; provided that nothing herein shall prevent the Administrative Agent or any
Lender from disclosing any such information (a) to the Administrative Agent, the Arranger, any
other Lender or any affiliate of any Lender, (b) to any Participant or Assignee (each, a
“Transferee”) or prospective Transferee which agrees to comply with the provisions of this
Section, (c) to the employees, directors, agents, attorneys, accountants and other professional
advisors of such Lender or its Affiliates, (d) upon the request or demand of any Governmental
Authority having jurisdiction over the Administrative Agent or such Lender, (e) in response to any
order of any court or other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection with any litigation or
similar proceeding, (g) which has been publicly disclosed other than in breach of this Section
10.15, (h) to the National Association of Insurance Commissioners or any similar organization or
any nationally recognized rating agency that requires access to information about a Lender’s
investment portfolio in connection with ratings issued with respect to such Lender, (i) in
connection with the exercise of any remedy hereunder or under any other Loan Document or (j) to any
direct or indirect contractual counterparty in swap agreements or such contractual counterparty’s
professional advisor (so long as such contractual counterparty or professional advisor to such
contractual counterparty agrees to be bound by the provisions of this Section). Any Person
required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.



EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 10.15 FURNISHED TO IT PURSUANT
TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS
AFFILIATES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS
DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT
WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE
LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.



ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR
THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS
AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC
INFORMATION ABOUT THE BORROWER, THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE
SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT
IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION
THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND
APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.


 


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10.16 USA PATRIOT Act. Each Lender that is subject to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Act”) hereby notifies the Borrower that pursuant
to the requirements of the Act, it is required to obtain, verify and record information that
identifies the Borrower, which information includes the names and addresses of the Borrower and
other information that will allow such Lender to identify the Borrower in accordance with the Act.



10.17 Appointment for Perfection. Each Lender hereby appoints each other Lender as its agent for the purpose of perfecting Liens,
for the benefit of the Administrative Agent and the Lenders, in assets which, in accordance with
Article 9 of the UCC or any other applicable law can be perfected only by possession. Should any
Lender (other than the Administrative Agent) obtain possession of any such Collateral, such Lender
shall notify the Administrative Agent thereof, and, promptly upon the Administrative Agent’s
request therefor shall deliver such Collateral to the Administrative Agent or otherwise deal with
such Collateral in accordance with the Administrative Agent’s instructions.



10.18 Reserved.



10.19 Release of Liens. The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole
discretion, to release any Liens granted to the Administrative Agent by the Loan Parties on any
Collateral (i) upon the termination of the all Commitments, payment and satisfaction in full in
cash of all Obligations (other than the Contingent Obligations), and the cash collateralization of
any outstanding Letters of Credit in a manner satisfactory to the Issuing Lender, (ii) constituting
property being sold or disposed of if the Loan Party disposing of such property certifies to the
Administrative Agent that the sale or disposition is made in compliance with the terms of this
Agreement (and the Administrative Agent may rely conclusively on any such certificate, without
further inquiry), and to the extent that the property being sold or disposed of constitutes 100% of
the Capital Stock of a Subsidiary, the Administrative Agent is authorized to release such Loan
Party from its obligations under the Security Documents, (iii) constituting property leased to a
Loan Party under a lease which has expired or been terminated in a transaction permitted under
this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in
connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to
Section 8. In addition, the Administrative Agent may in its discretion, release its Liens on
Collateral valued in the aggregate not in excess of $10,000,000 during any calendar year without
the prior written authorization of the Required Lenders. Any such release shall not in any manner
discharge, affect, or impair the Obligations or any Liens (other than those expressly being
released) upon (or obligations of the Loan Parties in respect of) all interests retained by the
Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of
the Collateral. At the request and sole expense of each Loan Party following any such release, the
Administrative Agent shall deliver to such Loan Party any Collateral held by the Administrative
Agent, and execute and deliver to such Loan Party such documents as such Loan Party shall
reasonably request to evidence such release.



10.20 Disclosure. Each Loan Party and each Lender hereby acknowledges and agrees that the Administrative Agent
and/or its Affiliates from time to time may hold investments in, make other loans to or have other
relationships with any of the Loan Parties and their respective Affiliates.


 


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Section 11. REMEDIES; APPLICATION OF PROCEEDS




11.1 Remedies; Obtaining the Collateral Upon Default. Upon the occurrence and during the continuance of an Event of Default and with not fewer than
three Business Days prior written notice by the Administrative Agent (or such longer time as may be
required pursuant to the Orders), to the extent any such action is not inconsistent with the
Interim Order (including paragraph 9 thereof) (or the Final Order, as applicable) or Section 8, the
Administrative Agent, in addition to any rights now or hereafter existing under applicable law, and
without application to or order of the Bankruptcy Court, shall have all rights as a secured
creditor under the Uniform Commercial Code in all relevant jurisdictions and may:



(a) personally, or by agents or attorneys, immediately retake possession of the Collateral or
any part thereof, from the Borrower, any Guarantor, or any other Person who then has possession of
any part thereof with or without notice or process of law (but subject to any Requirements of Law),
and for that purpose may enter upon the Borrower’s or any Guarantor’s premises where any of the
Collateral is located and remove the same and use in connection with such removal any and all
services, supplies, aids and other facilities of the Borrower or such Guarantor;



(b) instruct the obligor or obligors on any agreements, instrument or other obligation
constituting the Collateral to make any payment required by the terms of such instrument or
agreement directly to any cash collateral account;



(c) sell, assign or otherwise liquidate, or direct any Loan Party to sell, assign or otherwise
liquidate, any or all of the Collateral or any part thereof in accordance with Section 11.2, and
take possession of the proceeds of any such sale, assignment or liquidation; and



(d) take possession of the Collateral or any part thereof, by directing the Borrower and any
Guarantor in writing to deliver the same to the Administrative Agent at any place or places
reasonably designated by the Administrative Agent, in which event the Borrower and such Guarantor
shall at its own expense:




(i) forthwith cause the same to be moved to the place or places so designated by the
Administrative Agent and there delivered to the Administrative Agent,




(ii) store and keep any Collateral so delivered to the Administrative Agent at such
place or places pending further action by the Administrative Agent as provided in Section
11.2, and




(iii) while the Collateral shall be so stored and kept, provide such guards and
maintenance services as shall be necessary to protect the same and to preserve and maintain
them in good condition;



it being understood that the Borrower’s and each Guarantor’s obligation so to deliver the
Collateral is of the essence of this Agreement and that, accordingly, upon application to the
Bankruptcy Court, the Administrative Agent shall be entitled to a decree requiring specific
performance by the Borrower or such Guarantor of such obligation.


 


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11.2 Remedies; Disposition of the Collateral. Upon the occurrence and during the continuance of an Event of Default (and following not fewer
than seven Business Days prior written notice by the Administrative Agent (or such longer time as
may be required pursuant to the Orders)), and to the extent not inconsistent with the Interim Order
(or the Final Order, as applicable), without application to or order of the Bankruptcy Court, any
Collateral repossessed by the Administrative Agent under or pursuant to Section 11.1 or the Interim
Order (or the Final Order, as applicable) or otherwise, and any other Collateral whether or not so
repossessed by the Administrative Agent, may be sold, assigned, leased or otherwise disposed of
under one or more contracts or as an entirety, and without the necessity of gathering at the place
of sale the property to be sold, and in general in such manner, at such time or times, at such
place or places and on commercially reasonable terms, in compliance with any Requirements of Law.
Any of the Collateral may be sold, leased or otherwise disposed of, in the condition in which the
same existed when taken by the Administrative Agent or after any overhaul or repair which the
Administrative Agent shall determine to be commercially reasonable. Any such disposition which
shall be a private sale or other private proceeding permitted by applicable Requirements of Law
shall be made upon not less than ten days’ written notice to the Borrower specifying the time at
which such disposition is to be made and the intended sale price or other consideration therefor,
and shall be subject, for the ten days after the giving of such notice, to the right of the
Borrower or any nominee of the Borrower to acquire the Collateral involved at a price or for such
other consideration at least equal to the intended sale price or other consideration so specified.
Any such disposition which shall be a public sale permitted by applicable Requirements of Law shall
be made upon not less than ten days’ written notice to the Borrower specifying the time and place
of such sale and, in the absence of applicable Requirement of Law, shall be by public auction
(which may, at the Administrative Agent’s option, be subject to reserve), after publication of
notice of such auction
not less than ten days prior thereto in USA Today and The Wall Street Journal, National Edition.
Subject to Section 11.4, to the extent permitted by any such Requirement of Law, the Administrative
Agent on behalf of the Lenders or any Lender may bid for and become the purchaser of the Collateral
or any item thereof, offered for sale in accordance with this Section 11.2 without accountability
to the Borrower, any Guarantor or the Prepetition Secured Parties (except to the extent of surplus
money received). If, under mandatory Requirements of Law, the Administrative Agent shall be
required to make disposition of the Collateral within a period of time which does not permit the
giving of notice to the Borrower as hereinabove specified, the Administrative Agent need give the
Borrower only such notice of disposition as shall be reasonably practicable.



11.3 Application of Proceeds.



(a) Notwithstanding anything to the contrary contained in this Agreement or any other Loan
Document, (i) if the Administrative Agent takes action under Section 8 upon the occurrence and
during the continuance of an Event of Default, or at any time on or after the Termination Date, any
payment by any Debtor on account of principal of, interest on and fees with respect to the Loans or
Reimbursement Obligations, or any guarantee obligations with respect thereto, and any proceeds
arising out of any realization (including after foreclosure) upon the Collateral shall be applied
in accordance with Section 8.2, and (ii) any payments or distributions of any kind or character,
whether in cash, property or securities, made by any Debtor or otherwise in a manner inconsistent
with clause (i) of this Section 11.3(a) shall be held in trust and paid over or delivered to the
Administrative Agent so that the priorities and requirements set forth in such clause (i) are
satisfied.


 


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(b) It is understood that the Debtors shall remain liable to the extent of any deficiency
between the amount of the proceeds of the Collateral and the amount of the Obligations.



11.4 WAIVER OF CLAIMS. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE LOAN PARTIES HEREBY WAIVE, TO THE EXTENT
PERMITTED BY APPLICABLE LAW:



(a) NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE ADMINISTRATIVE AGENT’S TAKING
POSSESSION OR THE ADMINISTRATIVE AGENT’S DISPOSITION OF ANY OF THE COLLATERAL, INCLUDING WITHOUT
LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY
SUCH RIGHT WHICH THE US BORROWER, OR ANY GUARANTOR WOULD OTHERWISE HAVE UNDER ANY REQUIREMENT OF
LAW;



(b) ALL DAMAGES OCCASIONED BY SUCH TAKING OF POSSESSION EXCEPT ANY DAMAGES WHICH ARE THE
DIRECT RESULT OF THE ADMINISTRATIVE AGENT’S OR ANY LENDER’S BAD FAITH, GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT;



(c) ALL OTHER REQUIREMENTS WITH RESPECT TO THE TIME, PLACE AND TERMS OF SALE OR OTHER
REQUIREMENTS WITH RESPECT TO THE ENFORCEMENT OF THE ADMINISTRATIVE AGENT’S RIGHTS HEREUNDER; AND



(d) ALL RIGHTS OF REDEMPTION, APPRAISEMENT, STAY, EXTENSION OR MORATORIUM NOW OR HEREAFTER IN
FORCE UNDER ANY APPLICABLE LAW IN ORDER TO PREVENT OR DELAY THE ENFORCEMENT OF THIS AGREEMENT OR
THE ABSOLUTE SALE OF THE COLLATERAL OR ANY PORTION THEREOF, AND EACH LOAN PARTY, FOR ITSELF AND ALL
WHO MAY CLAIM UNDER IT, INSOFAR AS IT OR THEY NOW OR HEREAFTER LAWFULLY MAY, HEREBY WAIVES THE
BENEFIT OF ALL SUCH LAWS.


 


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11.5 Remedies Cumulative. Each and every right, power and remedy hereby specifically given to the Administrative Agent and
the Lenders shall be in addition to every other right, power and remedy specifically given under
this Agreement, the Orders or the other Loan Documents or now or hereafter existing at law or in
equity, or by statute and each and every right, power and remedy whether specifically herein given
or otherwise existing may be exercised from time to time or simultaneously and as often and in such
order as may be deemed expedient by the Administrative Agent or any Lender. All such rights,
powers and remedies shall be cumulative and the exercise or the beginning of exercise of one shall
not be deemed a waiver of the right to exercise of any other or others. No delay or omission of
the Administrative Agent or any Lender in the exercise of any such right, power or remedy and no
renewal or extension of any of the Obligations shall impair any such right, power or remedy or
shall be construed to be a waiver of any Default or Event of Default or an acquiescence therein.
In the event that the Administrative Agent shall bring any suit to enforce any of its rights
hereunder and shall be entitled to judgment, then in such suit the Administrative Agent may recover
reasonable expenses, including reasonable attorneys’ fees, and the amounts thereof shall be
included in such judgment.



11.6 Discontinuance of Proceeding. In case the Administrative Agent shall have instituted any proceeding to enforce any right,
power or remedy under this Agreement by foreclosure, sale, entry or otherwise, and such proceeding
shall have been discontinued or abandoned for any reason or shall have been determined adversely to
the Administrative Agent, then and in every such case the Borrower, the Administrative Agent and
each holder of any of the Obligations shall be restored to their former positions and rights
hereunder with respect to the Collateral subject to the Liens granted under this Agreement and the
Orders, and all rights, remedies and powers of the Administrative Agent and the Lenders shall
continue as if no such proceeding had been instituted.


 


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



	 	 	 	 	 
	 	NBC HOLDINGS CORP.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	NBC ACQUISITION CORP.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	NEBRASKA BOOK COMPANY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 












 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.

as Administrative Agent and a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


 









 





	 	 	 	 	 



SCHEDULE 1.1A

COMMITMENTS




	 	 	 	 	 	 	 	 	 
	 	 	Term Loan	 	 	Revolving Credit	 
	Lender	 	Commitment	 	 	Commitment	 
	JPMorgan Chase Bank, N.A.
	 	$	125,000,000	 	 	$	75,000,000	 
	 
	 	 	 	 	 	 	 	 
	TOTAL COMMITMENTS
	 	$	125,000,000	 	 	$	75,000,000