Exhibit 10.37


 




 





 


CREDIT
AGREEMENT


 


 


DATED
AS OF MAY 15, 2007,


 


 


AMONG


 


 


SMART BUSINESS ACQUISITION, LLC

(to be known as Smart Business Advisory and Consulting, LLC)


 


 


THE GUARANTORS FROM TIME TO TIME PARTIES
HERETO,


 


 


THE LENDERS FROM TIME TO TIME PARTIES HERETO,


 


 


AND


 


 


BANK OF MONTREAL,


as Administrative Agent


 




 





 


BMO CAPITAL MARKETS, AS LEAD ARRANGER AND SOLE BOOK RUNNER


 

















 


TABLE OF CONTENTS


 


	
  SECTION

  	
   

  	
  HEADING

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
   

  	
  THE CREDIT FACILITIES

  	
   

  	
  1

  
	
  Section 1.1.

  	
   

  	
  Term Loan Commitments

  	
   

  	
  1

  
	
  Section 1.2.

  	
   

  	
  Revolving Credit Commitments

  	
   

  	
  1

  
	
  Section 1.3.

  	
   

  	
  Letters of Credit

  	
   

  	
  2

  
	
  Section 1.4.

  	
   

  	
  Applicable Interest Rates

  	
   

  	
  4

  
	
  Section 1.5.

  	
   

  	
  Minimum Borrowing Amounts; Maximum Eurodollar Loans

  	
   

  	
  6

  
	
  Section 1.6.

  	
   

  	
  Manner of Borrowing Loans and Designating Applicable Interest Rates

  	
   

  	
  6

  
	
  Section 1.7.

  	
   

  	
  Interest Periods

  	
   

  	
  8

  
	
  Section 1.8.

  	
   

  	
  Maturity of Loans

  	
   

  	
  9

  
	
  Section 1.9.

  	
   

  	
  Prepayments

  	
   

  	
  10

  
	
  Section 1.10.

  	
   

  	
  Default Rate

  	
   

  	
  13

  
	
  Section 1.11.

  	
   

  	
  Evidence of Indebtedness

  	
   

  	
  13

  
	
  Section 1.12.

  	
   

  	
  Funding Indemnity

  	
   

  	
  14

  
	
  Section 1.13.

  	
   

  	
  Commitment Terminations

  	
   

  	
  15

  
	
  Section 1.14.

  	
   

  	
  Substitution of Lenders

  	
   

  	
  15

  
	
  Section 1.15.

  	
   

  	
  Swing Loans

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
   

  	
  FEES

  	
   

  	
  17

  
	
  Section 2.1.

  	
   

  	
  Fees

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
   

  	
  PLACE AND APPLICATION OF PAYMENTS

  	
   

  	
  18

  
	
  Section 3.1.

  	
   

  	
  Place and Application of Payments

  	
   

  	
  18

  
	
  Section 3.2.

  	
   

  	
  Account Debit

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
   

  	
  GUARANTIES AND COLLATERAL

  	
   

  	
  20

  
	
  Section 4.1.

  	
   

  	
  Guaranties

  	
   

  	
  20

  
	
  Section 4.2.

  	
   

  	
  Collateral

  	
   

  	
  20

  
	
  Section 4.3.

  	
   

  	
  Liens on Real Property

  	
   

  	
  21

  
	
  Section 4.4.

  	
   

  	
  Further Assurances

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
   

  	
  DEFINITIONS; INTERPRETATION

  	
   

  	
  21

  
	
  Section 5.1.

  	
   

  	
  Definitions

  	
   

  	
  21

  
	
  Section 5.2.

  	
   

  	
  Interpretation

  	
   

  	
  37

  
	
  Section 5.3.

  	
   

  	
  Change in Accounting Principles

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
   

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  38

  
	
  Section 6.1.

  	
   

  	
  Organization and Qualification

  	
   

  	
  38

  
	
  Section 6.2.

  	
   

  	
  Parent and Subsidiaries

  	
   

  	
  38

  



 

















 


	
  Section 6.3.

  	
   

  	
  Authority and Validity of Obligations

  	
   

  	
  38

  
	
  Section 6.4.

  	
   

  	
  Use of Proceeds; Margin Stock

  	
   

  	
  39

  
	
  Section 6.5.

  	
   

  	
  Financial Reports

  	
   

  	
  39

  
	
  Section 6.6.

  	
   

  	
  No Material Adverse Change

  	
   

  	
  40

  
	
  Section 6.7.

  	
   

  	
  Full Disclosure

  	
   

  	
  40

  
	
  Section 6.8.

  	
   

  	
  Trademarks, Franchises, and Licenses

  	
   

  	
  40

  
	
  Section 6.9.

  	
   

  	
  Governmental Authority and Licensing

  	
   

  	
  40

  
	
  Section 6.10.

  	
   

  	
  Good Title

  	
   

  	
  40

  
	
  Section 6.11.

  	
   

  	
  Litigation and Other Controversies

  	
   

  	
  40

  
	
  Section 6.12.

  	
   

  	
  Taxes

  	
   

  	
  41

  
	
  Section 6.13.

  	
   

  	
  Approvals

  	
   

  	
  41

  
	
  Section 6.14.

  	
   

  	
  Affiliate Transactions

  	
   

  	
  41

  
	
  Section 6.15.

  	
   

  	
  Investment Company

  	
   

  	
  41

  
	
  Section 6.16.

  	
   

  	
  ERISA

  	
   

  	
  41

  
	
  Section 6.17.

  	
   

  	
  Compliance with Laws

  	
   

  	
  41

  
	
  Section 6.18.

  	
   

  	
  Reserved

  	
   

  	
  42

  
	
  Section 6.19.

  	
   

  	
  Solvency

  	
   

  	
  42

  
	
  Section 6.20.

  	
   

  	
  No Broker Fees

  	
   

  	
  42

  
	
  Section 6.21.

  	
   

  	
  No Default

  	
   

  	
  42

  
	
  Section 6.22.

  	
   

  	
  Initial Acquisition Agreement

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
   

  	
  CONDITIONS PRECEDENT

  	
   

  	
  43

  
	
  Section 7.1.

  	
   

  	
  All Credit Events

  	
   

  	
  43

  
	
  Section 7.2.

  	
   

  	
  Initial Credit Event

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
   

  	
  COVENANTS

  	
   

  	
  46

  
	
  Section 8.1.

  	
   

  	
  Maintenance of Business

  	
   

  	
  46

  
	
  Section 8.2.

  	
   

  	
  Maintenance of Properties

  	
   

  	
  46

  
	
  Section 8.3.

  	
   

  	
  Taxes and Assessments

  	
   

  	
  46

  
	
  Section 8.4.

  	
   

  	
  Insurance

  	
   

  	
  46

  
	
  Section 8.5.

  	
   

  	
  Financial Reports

  	
   

  	
  47

  
	
  Section 8.6.

  	
   

  	
  Inspection

  	
   

  	
  48

  
	
  Section 8.7.

  	
   

  	
  Borrowings and Guaranties

  	
   

  	
  49

  
	
  Section 8.8.

  	
   

  	
  Liens

  	
   

  	
  50

  
	
  Section 8.9.

  	
   

  	
  Investments, Acquisitions, Loans and Advances

  	
   

  	
  51

  
	
  Section 8.10.

  	
   

  	
  Mergers, Consolidations and Sales

  	
   

  	
  52

  
	
  Section 8.11.

  	
   

  	
  Maintenance of Subsidiaries

  	
   

  	
  52

  
	
  Section 8.12.

  	
   

  	
  Dividends and Certain Other Restricted Payments

  	
   

  	
  53

  
	
  Section 8.13.

  	
   

  	
  ERISA

  	
   

  	
  53

  
	
  Section 8.14.

  	
   

  	
  Compliance with Laws

  	
   

  	
  54

  
	
  Section 8.15.

  	
   

  	
  Burdensome Contracts With Affiliates

  	
   

  	
  54

  
	
  Section 8.16.

  	
   

  	
  No Changes in Fiscal Year

  	
   

  	
  54

  
	
  Section 8.17.

  	
   

  	
  Formation of Subsidiaries

  	
   

  	
  54

  
	
  Section 8.18.

  	
   

  	
  Change in the Nature of Business

  	
   

  	
  54

  
	
  Section 8.19.

  	
   

  	
  Use of Proceeds

  	
   

  	
  54

  



 


ii

















 


	
  Section 8.20.

  	
   

  	
  No Restrictions

  	
   

  	
  54

  
	
  Section 8.21.

  	
   

  	
  Domestic Revenues

  	
   

  	
  55

  
	
  Section 8.22.

  	
   

  	
  Financial Covenants

  	
   

  	
  55

  
	
  Section 8.23.

  	
   

  	
  Depository Banks

  	
   

  	
  57

  
	
  Section 8.24.

  	
   

  	
  Hedging Agreements

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
   

  	
  EVENTS OF DEFAULT AND REMEDIES

  	
   

  	
  58

  
	
  Section 9.1.

  	
   

  	
  Events of Default

  	
   

  	
  58

  
	
  Section 9.2.

  	
   

  	
  Non-Bankruptcy Defaults

  	
   

  	
  60

  
	
  Section 9.3.

  	
   

  	
  Bankruptcy Defaults

  	
   

  	
  60

  
	
  Section 9.4.

  	
   

  	
  Collateral for Undrawn Letters of Credit

  	
   

  	
  61

  
	
  Section 9.5.

  	
   

  	
  Notice of Default

  	
   

  	
  61

  
	
  Section 9.6.

  	
   

  	
  Right to Cure

  	
   

  	
  61

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
   

  	
  CHANGE IN CIRCUMSTANCES

  	
   

  	
  62

  
	
  Section 10.1.

  	
   

  	
  Change of Law

  	
   

  	
  62

  
	
  Section 10.2.

  	
   

  	
  Unavailability of Deposits or Inability to Ascertain, or Inadequacy of,
  LIBOR

  	
   

  	
  63

  
	
  Section 10.3.

  	
   

  	
  Increased Cost and Reduced Return

  	
   

  	
  63

  
	
  Section 10.4.

  	
   

  	
  Lending Offices

  	
   

  	
  64

  
	
  Section 10.5.

  	
   

  	
  Discretion of Lender as to Manner of Funding

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
   

  	
  THE ADMINISTRATIVE AGENT

  	
   

  	
  65

  
	
  Section 11.1.

  	
   

  	
  Appointment and Authorization of Administrative Agent

  	
   

  	
  65

  
	
  Section 11.2.

  	
   

  	
  Administrative Agent and its Affiliates

  	
   

  	
  65

  
	
  Section 11.3.

  	
   

  	
  Action by Administrative Agent

  	
   

  	
  65

  
	
  Section 11.4.

  	
   

  	
  Consultation with Experts

  	
   

  	
  66

  
	
  Section 11.5.

  	
   

  	
  Liability of Administrative Agent; Credit Decision

  	
   

  	
  66

  
	
  Section 11.6.

  	
   

  	
  Indemnity

  	
   

  	
  67

  
	
  Section 11.7.

  	
   

  	
  Resignation of Administrative Agent and Successor Administrative Agent

  	
   

  	
  67

  
	
  Section 11.8.

  	
   

  	
  L/C Issuer

  	
   

  	
  68

  
	
  Section 11.9.

  	
   

  	
  Hedging Liability and Funds Transfer and Deposit Account Liability
  Arrangements

  	
   

  	
  68

  
	
  Section 11.10.

  	
   

  	
  Designation of Additional Agents

  	
   

  	
  68

  
	
  Section 11.11.

  	
   

  	
  Authorization to Release or Subordinate or Limit Liens

  	
   

  	
  68

  
	
  Section 11.12.

  	
   

  	
  Authorization to Enter into, and Enforcement of, the Collateral
  Documents

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
   

  	
  THE GUARANTEES

  	
   

  	
  69

  
	
  Section 12.1.

  	
   

  	
  The Guarantees

  	
   

  	
  69

  
	
  Section 12.2.

  	
   

  	
  Guarantee Unconditional

  	
   

  	
  70

  
	
  Section 12.3.

  	
   

  	
  Discharge Only upon Payment in Full; Reinstatement in Certain
  Circumstances

  	
   

  	
  71

  



 


iii

















 


	
  Section 12.4.

  	
   

  	
  Subrogation

  	
   

  	
  71

  
	
  Section 12.5.

  	
   

  	
  Waivers

  	
   

  	
  71

  
	
  Section 12.6.

  	
   

  	
  Limit on Recovery

  	
   

  	
  71

  
	
  Section 12.7.

  	
   

  	
  Stay of Acceleration

  	
   

  	
  71

  
	
  Section 12.8.

  	
   

  	
  Benefit to Guarantors

  	
   

  	
  72

  
	
  Section 12.9.

  	
   

  	
  Guarantor Covenants

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
   

  	
  MISCELLANEOUS

  	
   

  	
  72

  
	
  Section 13.1.

  	
   

  	
  Withholding Taxes

  	
   

  	
  72

  
	
  Section 13.2.

  	
   

  	
  No Waiver, Cumulative Remedies

  	
   

  	
  73

  
	
  Section 13.3.

  	
   

  	
  Non-Business Days

  	
   

  	
  73

  
	
  Section 13.4.

  	
   

  	
  Documentary Taxes

  	
   

  	
  74

  
	
  Section 13.5.

  	
   

  	
  Survival of Representations

  	
   

  	
  74

  
	
  Section 13.6.

  	
   

  	
  Survival of Indemnities

  	
   

  	
  74

  
	
  Section 13.7.

  	
   

  	
  Sharing of Set-Off

  	
   

  	
  74

  
	
  Section 13.8.

  	
   

  	
  Notices

  	
   

  	
  74

  
	
  Section 13.9.

  	
   

  	
  Counterparts

  	
   

  	
  75

  
	
  Section 13.10.

  	
   

  	
  Successors and Assigns

  	
   

  	
  75

  
	
  Section 13.11.

  	
   

  	
  Participants

  	
   

  	
  75

  
	
  Section 13.12.

  	
   

  	
  Assignments

  	
   

  	
  76

  
	
  Section 13.13.

  	
   

  	
  Amendments

  	
   

  	
  78

  
	
  Section 13.14.

  	
   

  	
  Headings

  	
   

  	
  79

  
	
  Section 13.15.

  	
   

  	
  Costs and Expenses; Indemnification

  	
   

  	
  79

  
	
  Section 13.16.

  	
   

  	
  Set-off

  	
   

  	
  80

  
	
  Section 13.17.

  	
   

  	
  Entire Agreement

  	
   

  	
  80

  
	
  Section 13.18.

  	
   

  	
  Governing Law

  	
   

  	
  80

  
	
  Section 13.19.

  	
   

  	
  Severability of Provisions

  	
   

  	
  81

  
	
  Section 13.20.

  	
   

  	
  Excess Interest

  	
   

  	
  81

  
	
  Section 13.21.

  	
   

  	
  Construction

  	
   

  	
  81

  
	
  Section 13.22.

  	
   

  	
  Lender’s Obligations Several

  	
   

  	
  82

  
	
  Section 13.23.

  	
   

  	
  Submission to Jurisdiction; Waiver of Jury Trial

  	
   

  	
  82

  
	
  Section 13.24.

  	
   

  	
  USA Patriot Act

  	
   

  	
  82

  
	
  Section 13.25.

  	
   

  	
  Confidentiality

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signature Page

  	
   

  	
   

  	
   

  	
  S-1

  



 


	
  EXHIBIT A

  	
  —

  	
  Notice of Payment
  Request

  	
   

  	
   

  
	
  EXHIBIT B

  	
  —

  	
  Notice of
  Borrowing

  	
   

  	
   

  
	
  EXHIBIT C

  	
  —

  	
  Notice of
  Continuation/Conversion

  	
   

  	
   

  
	
  EXHIBIT D-1

  	
  —

  	
  Term B Note

  	
   

  	
   

  
	
  EXHIBIT D-2

  	
  —

  	
  Revolving Note

  	
   

  	
   

  
	
  EXHIBIT D-3

  	
  —

  	
  Swing Note

  	
   

  	
   

  
	
  EXHIBIT E

  	
  —

  	
  Compliance
  Certificate

  	
   

  	
   

  
	
  EXHIBIT F

  	
  —

  	
  Additional
  Guarantor Supplement

  	
   

  	
   

  



 


iv

















 


	
  EXHIBIT G

  	
  —

  	
  Assignment and Acceptance

  	
   

  	
   

  
	
  SCHEDULE 1

  	
  —

  	
  Commitments

  	
   

  	
   

  
	
  SCHEDULE 5.1

  	
  —

  	
  EBITDA

  	
   

  	
   

  
	
  SCHEDULE 6.2

  	
  —

  	
  Subsidiaries

  	
   

  	
   

  
	
  SCHEDULE 6.5

  	
  —

  	
  Financial
  Statement Exceptions to GAAP

  	
   

  	
   

  
	
  SCHEDULE 6.10

  	
  —

  	
  Title to Assets

  	
   

  	
   

  
	
  SCHEDULE 6.11

  	
  —

  	
  Litigation

  	
   

  	
   

  
	
  SCHEDULE 6.14

  	
  —

  	
  Affiliate
  Transactions

  	
   

  	
   

  
	
  SCHEDULE 8.7

  	
  —

  	
  Assumed
  Liabilities

  	
   

  	
   

  



 


v
















 


CREDIT AGREEMENT


 


This Credit Agreement is entered into as of May 15,
2007, by and among SMART BUSINESS ACQUISITION, LLC, a Delaware limited
liability company (to be known as Smart Business and Advisory and Consulting,
LLC) (the “Borrower”), SMART BUSINESS HOLDINGS,
INC., a Delaware corporation (the “Parent”), and
the direct and indirect Subsidiaries of the Borrower from time to time party to
this Agreement, as Guarantors, the several financial institutions from time to
time party to this Agreement, as Lenders, and BANK OF MONTREAL, as
Administrative Agent as provided herein. 
All capitalized terms used herein without definition shall have the same
meanings herein as such terms are defined in Section 5.1 hereof.


 


PRELIMINARY STATEMENT


 


The Borrower has requested, and the Lenders have
agreed to extend, certain credit facilities on the terms and conditions of this
Agreement.


 


NOW, THEREFORE, in consideration of the mutual
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:


 


SECTION 1.                                                 THE CREDIT
FACILITIES.


 


Section 1.1.              Term Loan Commitments. 
Subject to the terms and conditions hereof, each Lender, by its
acceptance hereof, severally agrees to make a loan (individually a “Term B Loan” and collectively for all the Lenders the “Term B Loans”) in U.S. Dollars to the Borrower in the
amount of such Lender’s Term B Loan Commitment.  The Term B Loans shall be advanced in a
single Borrowing on the Closing Date and shall be made ratably by the Lenders
in proportion to their respective Term B Loan Percentages, at which time
the Term B Loan Commitments shall expire. 
As provided in Section 1.6(a) hereof, the Borrower may elect
that the Term B Loans be outstanding as Base Rate Loans or Eurodollar
Loans.  No amount repaid or prepaid on
any Term B Loan may be borrowed again.


 


Section 1.2.              Revolving Credit Commitments. 
Subject to the terms and conditions hereof, each Lender, by its
acceptance hereof, severally agrees to make a loan or loans (individually a “Revolving Loan” and collectively the “Revolving
Loans”) in U.S. Dollars to the Borrower from time to time on a
revolving basis up to the amount of such Lender’s Revolving Credit Commitment,
subject to any reductions thereof pursuant to the terms hereof, before the
Revolving Credit Termination Date.  The
sum of the aggregate principal amount of Revolving Loans, Swing Loans and L/C
Obligations at any time outstanding shall not exceed the Revolving Credit
Commitments in effect at such time.  Each
Borrowing of Revolving Loans shall be made ratably by the Lenders in proportion
to their respective Revolver Percentages. 
As provided in Section 1.6(a) hereof, the Borrower may elect
that each Borrowing of Revolving Loans be either Base Rate Loans or Eurodollar
Loans.  Revolving Loans may be repaid and
the principal amount thereof reborrowed before the Revolving Credit Termination
Date, subject to the terms and conditions hereof.


 

















 


Section 1.3.              Letters of Credit.  (a) General Terms. 
Subject to the terms and conditions hereof, as part of the Revolving
Credit, the L/C Issuer shall issue standby letters of credit (each a “Letter of Credit”) for the account of Borrower or for the
account of the Borrower and one or more of its Subsidiaries in an aggregate
undrawn face amount up to the L/C Sublimit. 
Each Letter of Credit shall be issued by the L/C Issuer, but each Lender
shall be obligated to reimburse the L/C Issuer for such Lender’s Revolver
Percentage of the amount of each drawing thereunder and, accordingly, each
Letter of Credit shall constitute usage of the Revolving Credit Commitment of
each Lender pro rata in an amount equal to its Revolver Percentage of the
L/C Obligations then outstanding.


 


(b)             Applications.  At any time before the Revolving Credit
Termination Date, the L/C Issuer shall, at the request of the Borrower, issue
one or more Letters of Credit in U.S. Dollars, in a form reasonably
satisfactory to the L/C Issuer, with expiration dates (unless otherwise agreed
by the Required Lenders) no later than the earlier of 12 months from the date
of issuance (or which are cancelable not later than 12 months from the date of
issuance and each renewal) or ten (10) days prior to the Revolving Credit
Termination Date, in an aggregate face amount as set forth above, upon the
receipt of an application duly executed by the Borrower and, if such Letter of
Credit is for the account of one of its Subsidiaries, such Subsidiary for the
relevant Letter of Credit in the form then customarily prescribed by the L/C
Issuer for the Letter of Credit requested (each an “Application”).  Notwithstanding anything contained in any
Application to the contrary:  (i) the
Borrower shall pay fees in connection with each Letter of Credit as set forth
in Section 2.1 hereof, (ii) except as otherwise provided in Section 1.9
hereof, unless an Event of Default exists, the L/C Issuer will not call for the
funding by the Borrower of any amount under a Letter of Credit before being
presented with a drawing thereunder, and (iii) if the L/C Issuer is not
timely reimbursed for the amount of any drawing under a Letter of Credit on the
date such drawing is paid, the Borrower’s obligation to reimburse the L/C
Issuer for the amount of such drawing shall bear interest (which the Borrower
hereby promises to pay) from and after the date such drawing is paid at a rate
per annum equal to the sum of the Applicable Margin plus the Base Rate from
time to time in effect (computed on the basis of a year of 365 or  366 days, as the case may be, and the actual number of days
elapsed).  If the L/C Issuer issues any
Letter of Credit with an expiration date that is automatically extended unless
the L/C Issuer gives notice that the expiration date will not so extend beyond
its then scheduled expiration date, unless the Required Lenders instruct the
L/C Issuer otherwise, the L/C Issuer will give such notice of non-renewal
before the time necessary to prevent such automatic extension if before such
required notice date:  (i) the expiration
date of such Letter of Credit if so extended would be after the Revolving
Credit Termination Date, (ii) the Revolving Credit Commitments have been
terminated, or (iii) a Default or an Event of Default exists and the
Administrative Agent, at the request or with the consent of the Required
Lenders, has given the L/C Issuer instructions not to so permit the extension
of the expiration date of such Letter of Credit.  The L/C Issuer agrees to issue amendments to the
Letter(s) of Credit increasing the amount, or extending the expiration
date, thereof at the request of the Borrower subject to the conditions of Section 7
hereof and the other terms of this Section 1.3.


 


(c)             The Reimbursement
Obligations.  Subject to Section 1.3(b) hereof,
the obligation of the Borrower to reimburse the L/C Issuer for all drawings
under a Letter of Credit (a “Reimbursement Obligation”)
shall be governed by the Application related to such Letter of Credit,


 


2

















 


except that reimbursement
shall be made by no later than 12:00 Noon (Chicago time) on the date when each
drawing is to be paid if the Borrower has been informed of such drawing by the
L/C Issuer on or before 11:00 a.m. (Chicago time) on the date when such
drawing is to be paid or, if notice of such drawing is given to the Borrower
after 11:00 a.m. (Chicago time) on the date when such drawing is to be
paid, by the end of such day, in immediately available funds at the
Administrative Agent’s principal office in Chicago, Illinois, or such other
office as the Administrative Agent may designate in writing to the Borrower
(who shall thereafter cause to be distributed to the L/C Issuer such amount(s) in
like funds).  If the Borrower does not
make any such reimbursement payment on the date due and the Participating
Lenders fund their participations therein in the manner set forth in Section 1.3(d) below,
then all payments thereafter received by the Administrative Agent in discharge
of any of the relevant Reimbursement Obligations shall be distributed in
accordance with Section 1.3(d) below.


 


(d)             The Participating
Interests.  Each Lender (other
than the Lender acting as L/C Issuer in issuing the relevant Letter of Credit),
by its acceptance hereof, severally agrees to purchase from the L/C Issuer, and
the L/C Issuer hereby agrees to sell to each such Lender (a “Participating Lender”), an undivided percentage
participating interest (a “Participating Interest”),
to the extent of its Revolver Percentage, in each Letter of Credit issued by,
and each Reimbursement Obligation owed to, the L/C Issuer.  Upon any failure by the Borrower to pay any
Reimbursement Obligation at the time required on the date the related drawing
is to be paid, as set forth in Section 1.3(c) above, or if the L/C
Issuer is required at any time to return to the Borrower or to a trustee,
receiver, liquidator, custodian or other Person any portion of any payment of
any Reimbursement Obligation, each Participating Lender shall, not later than
the Business Day it receives a certificate in the form of Exhibit A hereto
from the L/C Issuer (with a copy to the Administrative Agent) to such effect,
if such certificate is received before 1:00 p.m. (Chicago time), or not
later than 1:00 p.m. (Chicago time) the following Business Day, if such
certificate is received after such time, pay to the Administrative Agent for
the account of the L/C Issuer an amount equal to such Participating Lender’s
Revolver Percentage of such unpaid or recaptured Reimbursement Obligation
together with interest on such amount accrued from the date the related payment
was made by the L/C Issuer to the date of such payment by such Participating
Lender at a rate per annum equal to:  (i) from
the date the related payment was made by the L/C Issuer to the date two (2) Business
Days after payment by such Participating Lender is due hereunder, the Federal
Funds Rate for each such day and (ii) from the date two (2) Business
Days after the date such payment is due from such Participating Lender to the
date such payment is made by such Participating Lender, the Base Rate in effect
for each such day.  Each such
Participating Lender shall thereafter be entitled to receive its Revolver
Percentage of each payment received in respect of the relevant Reimbursement
Obligation and of interest paid thereon, with the L/C Issuer retaining its
Revolver Percentage thereof as a Lender hereunder.  The several obligations of the Participating
Lenders to the L/C Issuer under this Section 1.3 shall be absolute,
irrevocable, and unconditional under any and all circumstances whatsoever and
shall not be subject to any set-off, counterclaim or defense to payment which
any Participating Lender may have or have had against the Borrower, the L/C
Issuer, the Administrative Agent, any Lender or any other Person
whatsoever.  Without limiting the
generality of the foregoing, such obligations shall not be affected by any
Default or Event of Default or by any reduction or termination of any
Commitment of any Lender, and each payment by a Participating Lender


 


3

















 


under this Section 1.3
shall be made without any offset, abatement, withholding or reduction
whatsoever.


 


(e)             Indemnification.  The Participating Lenders shall, to the
extent of their respective Revolver Percentages, indemnify the L/C Issuer (to
the extent not reimbursed by the Borrower) against any cost, expense (including
reasonable counsel fees and disbursements), claim, demand, action, loss or
liability (except such as result from the L/C Issuer’s gross negligence or
willful misconduct) that the L/C Issuer may suffer or incur in connection with
any Letter of Credit issued by it.  The
obligations of the Participating Lenders under this Section 1.3(e) and
all other parts of this Section 1.3 shall survive termination of this
Agreement and of all Applications, Letters of Credit, and all drafts and other
documents presented in connection with drawings thereunder.


 


(f)             Manner of Requesting a
Letter of Credit.  The
Borrower shall provide at least three (3) Business Days’ advance written
notice to the Administrative Agent of each request for the issuance of a Letter
of Credit, such notice in each case to be accompanied by an Application for
such Letter of Credit properly completed and executed by the Borrower and, in
the case of an extension or an increase in the amount of a Letter of Credit, a
written request therefor, in a form reasonably acceptable to the Administrative
Agent and the L/C Issuer, in each case, together with the fees called for
by this Agreement.  The Administrative
Agent shall promptly notify the L/C Issuer of the Administrative Agent’s
receipt of each such notice and the L/C Issuer shall promptly notify the
Administrative Agent and the Lenders of the issuance of the Letter of Credit so
requested.


 


Section 1.4.              Applicable Interest Rates.  (a) Base Rate Loans.  Each
Base Rate Loan made or maintained by a Lender shall bear interest during each
Interest Period it is outstanding (computed on the basis of a year of 365 or
366 days, as the case may be, and the actual days elapsed) on the unpaid
principal amount thereof from the date such Loan is advanced or continued, or
created by conversion from a Eurodollar Loan, until maturity (whether by
acceleration or otherwise) at a rate per annum equal to the sum of the
Applicable Margin plus the Base Rate from time to time in effect, payable on
the last day of its Interest Period and at maturity (whether by acceleration or
otherwise).


 


“Base Rate” means for any day the greater of:  (i) the rate of interest announced or
otherwise established by the Administrative Agent from time to time as its
prime commercial rate, or its equivalent, for U.S. Dollar loans to borrowers
located in the United States  as in effect
on such day, with any change in the Base Rate resulting from a change in said
prime commercial rate to be effective as of the date of the relevant change in
said prime commercial rate (it being acknowledged and agreed that such rate may
not be the Administrative Agent’s best or lowest rate) and (ii) the sum of
(x) the rate determined by the Administrative Agent to be the average
(rounded upward, if necessary, to the next higher 1/100 of 1%) of the rates per
annum quoted to the Administrative Agent at approximately 10:00 a.m.
(Chicago time) (or as soon thereafter as is practicable) on such day (or, if
such day is not a Business Day, on the immediately preceding Business Day) by
two or more Federal funds brokers selected by the Administrative Agent for sale
to the Administrative Agent at face value of Federal funds in the secondary
market in an


 


4

















 


amount equal or
comparable to the principal amount for which such rate is being determined, plus (y) 1/2 of 1%.


 


(b)             Eurodollar Loans.  Each Eurodollar Loan made or maintained by a
Lender shall bear interest during each Interest Period it is outstanding
(computed on the basis of a year of 360 days and actual days elapsed) on the
unpaid principal amount thereof from the date such Loan is advanced or
continued, or created by conversion from a Base Rate Loan, until maturity
(whether by acceleration or otherwise) at a rate per annum equal to the sum of
the Applicable Margin plus the Adjusted LIBOR applicable for such Interest
Period, payable on the last day of the Interest Period and at maturity (whether
by acceleration or otherwise), and, if the applicable Interest Period is longer
than three (3) months, on each day occurring every three (3) months
after the commencement of such Interest Period.


 


“Adjusted
LIBOR” means, for
any Borrowing of Eurodollar Loans, a rate per annum determined in accordance
with the following formula:


 




	
  Adjusted
  LIBOR

  	
  =

  	
  LIBOR

  	
   

  
	
   

  	
   

  	
  1 - Eurodollar
  Reserve Percentage

  	
   

  






 


“Eurodollar Reserve Percentage” means, for any Borrowing of Eurodollar
Loans, the daily average for the applicable Interest Period of the maximum
rate, expressed as a decimal, at which reserves (including, without limitation,
any supplemental, marginal, and emergency reserves) are imposed during such
Interest Period by the Board of Governors of the Federal Reserve System (or any
successor) on “eurocurrency liabilities”, as
defined in such Board’s Regulation D (or in respect of any other category
of liabilities that includes deposits by reference to which the interest rate
on Eurodollar Loans is determined or any category of extensions of credit or
other assets that include loans by non-United States offices of any Lender to
United States residents), subject to any amendments of such reserve requirement
by such Board or its successor, taking into account any transitional
adjustments thereto.  For purposes of
this definition, the Eurodollar Loans shall be deemed to be “eurocurrency liabilities” as defined in Regulation D
without benefit or credit for any prorations, exemptions or offsets under
Regulation D.


 


“LIBOR” means, for an Interest Period for a Borrowing of
Eurodollar Loans, (a) the LIBOR Index Rate for such Interest Period, if
such rate is available, and (b) if the LIBOR Index Rate cannot be
determined, the arithmetic average of the rates of interest per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) at which deposits in U.S.
Dollars in immediately available funds are offered to the Administrative Agent
at 11:00 a.m. (London, England time) two (2) Business Days before the
beginning of such Interest Period by three (3) or more major banks in the
interbank eurodollar market selected by the Administrative Agent for delivery
on the first day of and for a period equal to such Interest Period and in an
amount equal or comparable to the principal amount for which such rate is being
determined.


 


“LIBOR Index Rate” means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in U.S. Dollars for a period equal to such
Interest Period, which appears on the Telerate


 


5

















 


Page 3750 as of
11:00 a.m. (London, England time) on the day two (2) Business Days
before the commencement of such Interest Period.


 


“Telerate Page 3750” means the display designated as “Page 3750” on the Telerate Service (or such other page as
may replace Page 3750 on that service or such other service as may be
nominated by the British Bankers’ Association as the information vendor for the
purpose of displaying British Bankers’ Association Interest Settlement Rates
for U.S. Dollar deposits).


 


(c)             Rate Determinations.  The Administrative Agent shall determine each
interest rate applicable to the Loans and the Reimbursement Obligations
hereunder, and its determination thereof shall be conclusive and binding except
in the case of demonstrable error.


 


Section 1.5.              Minimum Borrowing Amounts; Maximum
Eurodollar Loans.  Each Borrowing of Base Rate Loans advanced
under a Credit shall be in an amount not less than $250,000.  Each Borrowing of Eurodollar Loans advanced,
continued or converted under a Credit shall be in an amount equal to $1,000,000
or such greater amount which is an integral multiple of $500,000.  Without the Administrative Agent’s consent,
there shall not be more than six (6) Borrowings of Eurodollar Loans
outstanding hereunder at any one time.


 


Section 1.6.              Manner of Borrowing Loans and
Designating Applicable Interest Rates.  (a) Notice to the Administrative Agent.  The Borrower shall give notice to the
Administrative  Agent by no later than 10:00 a.m.
(Chicago time):  (i) at least
3 Business Days before the date on which the Borrower requests the Lenders
to advance a Borrowing of Eurodollar Loans and (ii) on the date the
Borrower requests the Lenders to advance a Borrowing of Base Rate Loans.  The Loans included in each Borrowing shall
bear interest initially at the type of rate specified in such notice of a new
Borrowing.  Thereafter, subject to the
terms and conditions hereof, the Borrower may from time to time elect to change
or continue the type of interest rate borne by each Borrowing or, subject to
the minimum amount requirement for each outstanding Borrowing set forth in Section 1.5
hereof, a portion thereof, as follows:  (i) if
such Borrowing is of Eurodollar Loans, on the last day of the Interest Period
applicable thereto, the Borrower may continue part or all of such Borrowing as
Eurodollar Loans or convert part or all of such Borrowing into Base Rate Loans
or (ii) if such Borrowing is of Base Rate Loans, on any Business Day, the
Borrower may convert all or part of such Borrowing into Eurodollar Loans for an
Interest Period or Interest Periods specified by the Borrower.  The Borrower shall give all such notices requesting
the advance, continuation or conversion of a Borrowing to the Administrative  Agent by telephone or telecopy (which notice shall be
irrevocable once given and, if by telephone, shall be promptly confirmed in
writing), substantially in the form attached hereto as Exhibit B (Notice
of Borrowing) or Exhibit C (Notice of Continuation/Conversion), as
applicable, or in such other form reasonably acceptable to the Administrative  Agent.  Notice of the
continuation of a Borrowing of Eurodollar Loans for an additional Interest
Period or of the conversion of part or all of a Borrowing of Base Rate Loans
into Eurodollar Loans must be given by no later than 10:00 a.m. (Chicago
time) at least three (3) Business Days before the date of the requested
continuation or conversion.  All such
notices concerning the advance, continuation or conversion of a Borrowing shall
specify the date of the requested advance, continuation or conversion of a
Borrowing (which shall be a Business Day), the amount of the requested Borrowing
to be advanced, continued or converted, the type of Loans to comprise such new,


 


6

















 


continued or converted
Borrowing and, if such Borrowing is to be comprised of Eurodollar Loans, the
Interest Period applicable thereto.  The
Borrower agrees that the Administrative Agent may rely on any such telephonic
or telecopy notice given by any person the Administrative Agent in good faith
believes is an Authorized Representative without the necessity of independent investigation,
and in the event any such notice by telephone conflicts with any written
confirmation such telephonic notice shall govern if the Administrative Agent
has acted in reliance thereon.


 


(b)             Notice to the Lenders.  The Administrative Agent shall give prompt
telephonic or telecopy notice to each Lender of any notice from the Borrower
received pursuant to Section 1.6(a) above and, if such notice
requests the Lenders to make Eurodollar Loans, the Administrative Agent shall
give notice to the Borrower and each Lender by like means of the interest rate
applicable thereto promptly after the Administrative Agent has made such
determination.


 


(c)             Borrower’s Failure to
Notify; Automatic Continuations and Conversions.  Any outstanding Borrowing of Base Rate Loans
shall automatically be continued for an additional Interest Period on the last
day of its then current Interest Period unless the Borrower has notified the
Administrative Agent within the period required by Section 1.6(a) that
the Borrower intends to convert such Borrowing, subject to Section 7.1
hereof, into a Borrowing of Eurodollar Loans or such Borrowing is prepaid in
accordance with Section 1.9(a).  If
the Borrower fails to give notice pursuant to Section 1.6(a) above of
the continuation or conversion of any outstanding principal amount of a
Borrowing of Eurodollar Loans before the last day of its then current Interest
Period within the period required by Section 1.6(a) or, whether or
not such notice has been given, one or more of the conditions set forth in Section 7.1
for the continuation or conversion of a Borrowing of Eurodollar Loans would not
be satisfied, and such Borrowing is not prepaid in accordance with Section 1.9(a),
such Borrowing shall automatically be converted into a Borrowing of Base Rate
Loans.  In the event the Borrower fails
to give notice pursuant to Section 1.6(a) above of a Borrowing equal
to the amount of a Reimbursement Obligation and has not notified the
Administrative Agent by 12:00 noon (Chicago time) on the day such Reimbursement
Obligation becomes due that it intends to repay such Reimbursement Obligation
through funds not borrowed under this Agreement, the Borrower shall be deemed
to have requested a Borrowing of Base Rate Loans under the Revolving Credit
(or, at the option of the Administrative Agent, under the Swing Line) on such
day in the amount of the Reimbursement Obligation then due, which Borrowing
shall be applied to pay the Reimbursement Obligation then due.


 


(d)             Disbursement of Loans.  Not later than 1:00 p.m. (Chicago time)
on the date of any requested advance of a new Borrowing, subject to Section 7
hereof, each Lender shall make available its Loan comprising part of such
Borrowing in funds immediately available at the principal office of the
Administrative Agent in Chicago, Illinois. 
The Administrative Agent shall make the proceeds of each new Borrowing
available to the Borrower at the Administrative Agent’s principal office in
Chicago, Illinois, by depositing such proceeds to the credit of the Borrower’s
principal operating account maintained with the Administrative Agent or as the
Borrower and the Administrative Agent may otherwise agree.


 


7

















 


(e)             Administrative Agent
Reliance on Lender Funding. 
Unless the Administrative Agent shall have been notified by a Lender
prior to (or, in the case of a Borrowing of Base Rate Loans, by 1:00 p.m.
(Chicago time) on) the date on which such Lender is scheduled to make payment
to the Administrative Agent of the proceeds of a Loan (which notice shall be
effective upon receipt) that such Lender does not intend to make such payment,
the Administrative Agent may assume that such Lender has made such payment when
due and the Administrative Agent may in reliance upon such assumption (but
shall not be required to) make available to the Borrower the proceeds of the
Loan to be made by such Lender and, if any Lender has not in fact made such
payment to the Administrative Agent, such Lender shall, on demand, pay to the
Administrative Agent the amount made available to the Borrower attributable to
such Lender together with interest thereon in respect of each day during the
period commencing on the date such amount was made available to the Borrower
and ending on (but excluding) the date such Lender pays such amount to the
Administrative Agent at a rate per annum equal to:  (i) from the date the related advance
was made by the Administrative Agent to the date two (2) Business Days
after payment by such Lender is due hereunder, the Federal Funds Rate for each
such day and (ii) from the date two (2) Business Days after the date
such payment is due from such Lender to the date such payment is made by such
Lender, the Base Rate in effect for each such day.  If such amount is not received from such
Lender by the Administrative Agent immediately upon demand, the Borrower will,
on demand, repay to the Administrative Agent the proceeds of the Loan
attributable to such Lender with interest thereon at a rate per annum equal to
the interest rate applicable to the relevant Loan, but without such payment
being considered a payment or prepayment of a Loan under Section 1.12
hereof so that the Borrower will have no liability under such Section with
respect to such payment.


 


Section 1.7.              Interest Periods. 
As provided in Section 1.6(a) and 1.15 hereof, at the time of
each request to advance, continue or create by conversion a Borrowing of
Eurodollar Loans, the Borrower shall select an Interest Period applicable to
such Loans from among the available options. 
The term “Interest Period” means the
period commencing on the date a Borrowing of Loans is advanced, continued or
created by conversion and ending:  (a) in
the case of Base Rate Loans, on the last day of the calendar quarter (i.e., the last day of March, June, September or
December, as applicable) in which such Borrowing is advanced, continued or
created by conversion (or on the last day of the following calendar quarter if
such Loan is advanced, continued or created by conversion on the last day of a
calendar quarter), (b) in the case of a Eurodollar Loan, 1, 2, 3 or
6 months thereafter (provided that solely with respect to the initial
Borrowings on the Closing Date, the Borrowers may select an Interest Period of
one week which may be continued for a single additional one week period), and (c) in
the case of a  Swing Loan, on the date 1
to 5 Business Days thereafter as mutually agreed to by the Borrower and the
Administrative Agent; provided, however, that:


 


(i)         any Interest Period for a Borrowing of
Loans consisting of Base Rate Loans that otherwise would end after the final
maturity date of such Loans  shall end on
the final maturity date of such Loans;


 


(ii)          no Interest Period with respect to any
portion of Loans of any type shall extend beyond the final maturity date of
such Loans;


 


8

















 


(iii)          no Interest Period with respect to any
portion of the Term B Loans consisting of Eurodollar Loans shall extend
beyond a date on which the Borrower is required to make a scheduled payment of
principal on the Term B Loans unless the sum of (a) the aggregate
principal amount of Term B Loans that are Base Rate Loans plus (b) the aggregate principal amount of Term B Loans
that are Eurodollar Loans with Interest Periods expiring on or before such date
equals or exceeds the principal amount to be paid on the Term B Loans on
such payment date;


 


(iv)          whenever the last day of any Interest
Period would otherwise be a day that is not a Business Day, the last day of
such Interest Period shall be extended to the next succeeding Business Day, provided that, if such extension would cause the last day of
an Interest Period for a Borrowing of Eurodollar Loans to occur in the
following calendar month, the last day of such Interest Period shall be the
immediately preceding Business Day; and


 


(v)         for purposes of determining an Interest
Period for a Borrowing of Eurodollar Loans, a month means a period starting on
one day in a calendar month and ending on the numerically corresponding day in
the next calendar month; provided, however,
that if there is no numerically corresponding day in the month in which such an
Interest Period is to end or if such an Interest Period begins on the last
Business Day of a calendar month, then such Interest Period shall end on the
last Business Day of the calendar month in which such Interest Period is to
end.


 


Section 1.8.              Maturity
of Loans.  (a) Scheduled
Payments of Term B Loans. 
The Borrower shall make principal payments on the Term B Loans in
installments on the last day of each March, June, September,  and December in each year, commencing with the
calendar quarter ending September 30, 2007, with the amount of each such
principal installment to equal the amount set forth in Column B below
shown opposite of the relevant due date as set forth in Column A below:


 


	
  COLUMN A

  	
   

  	
  COLUMN B

  	
   

  
	
  PAYMENT DATE

  	
   

  	
  SCHEDULED
  PRINCIPAL

  PAYMENT ON TERM B LOANS

  	
   

  
	
  09/30/2007

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  12/31/2007

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  03/31/2008

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  06/30/2008

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  09/30/2008

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  12/31/2008

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  03/31/2009

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  06/30/2009

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  09/30/2009

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  12/31/2009

  	
   

  	
  $

  	
  112,500

  	
   

  



 


9

















 


	
  COLUMN A

  	
   

  	
  COLUMN B

  	
   

  
	
  PAYMENT DATE

  	
   

  	
  SCHEDULED
  PRINCIPAL

  PAYMENT ON TERM B LOANS

  	
   

  
	
  03/31/2010

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  06/30/2010

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  09/30/2010

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  12/31/2010

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  03/31/2011

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  06/30/2011

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  09/30/2011

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  12/31/2011

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  03/31/2012

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  06/30/2012

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  09/30/2012

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  12/31/2012

  	
   

  	
  $

  	
  112,500

  	
   

  
	
  03/31/2013

  	
   

  	
  $

  	
  112,500

  	
   

  



 


, it being agreed that a
final payment composed of all principal and interest not sooner paid on the
Term B Loans shall be due and payable on May 15, 2013, the final
maturity thereof.  Each such principal
payment shall be applied to the Lenders holding the Term B Loans pro rata
based upon their Term B Loan Percentages.


 


(b)           Revolving Loans and Swing Loans.  Each Revolving Loan and Swing Loan, both for
principal and interest not sooner paid, shall mature and be due and payable by
the Borrower on the Revolving Credit Termination Date.


 


Section 1.9.              Prepayments.  (a) Optional.  The Borrower may prepay in whole or in part
(but, if in part, then:  (i) if such
Borrowing is of Base Rate Loans, in an amount not less than $100,000, (ii) if
such Borrowing is of Eurodollar Loans, in an amount not less than $500,000, and
(iii) in each case, in an amount such that the minimum amount required for
a Borrowing pursuant to Section 1.5 and 1.15 hereof remains outstanding)
any Borrowing of Eurodollar Loans at any time upon three (3) Business Days
prior notice by the Borrower to the Administrative Agent or, in the case of a
Borrowing of Base Rate Loans, notice delivered by the Borrower to the
Administrative Agent no later than 10:00 a.m. (Chicago time) on the date
of prepayment (or, in any case, such shorter period of time then agreed to by
the Administrative Agent), such prepayment to be made by the payment of the
principal amount to be prepaid and, in the case of any Term Loans, Eurodollar
Loans or Swing Loans, accrued interest thereon to the date fixed for prepayment
plus any amounts due the Lenders under Section 1.12 hereof.


 


(b)             Mandatory.  (i) If the Borrower or any Guarantor
shall at any time or from time to time make or agree to make a Disposition or
shall suffer an Event of Loss with respect to any


 


10
















 


Property, then the
Borrower shall promptly notify the Administrative Agent of such proposed
Disposition or Event of Loss (including the amount of the estimated Net Cash
Proceeds to be received by the Borrower or such Guarantor in respect thereof)
and, promptly upon receipt by the Borrower or such Guarantor of the Net Cash
Proceeds of such Disposition or Event of Loss, the Borrower shall prepay the
Obligations in an aggregate amount equal to 100% of the amount of all such Net
Cash Proceeds; provided that (x) so long as
no Default or Event of Default then exists, this subsection shall not require
any such prepayment with respect to Net Cash Proceeds received on account of an
Event of Loss so long as such Net Cash Proceeds are applied to replace or
restore the relevant Property in accordance with the relevant Collateral
Documents, (y) this subsection shall not require any such prepayment with
respect to Net Cash Proceeds received on account of Dispositions during any
fiscal year of the Borrower not exceeding $500,000 in the aggregate so long as
no Default or Event of Default then exists, and (z) in the case of any
Disposition not covered by clause (y) above, so long as no Default or
Event of Default then exists, if the Borrower states in its notice of such
event that the Borrower or the relevant Guarantor intends to reinvest, within
120 days of the applicable Disposition, the Net Cash Proceeds thereof in
assets similar to the assets which were subject to such Disposition, then the
Borrower shall not be required to make a mandatory prepayment under this
subsection in respect of such Net Cash Proceeds to the extent such Net Cash
Proceeds are actually reinvested in such similar assets with such 120-day
period.  Promptly after the end of such
120-day period, the Borrower shall notify the Administrative Agent whether the
Borrower or such Guarantor has reinvested such Net Cash Proceeds in such
similar assets, and, to the extent such Net Cash Proceeds have not been so
reinvested, the Borrower shall promptly prepay the Obligations in the amount of
such Net Cash Proceeds not so reinvested. 
The amount of each such prepayment shall be applied, first to the
outstanding Term Loans  until paid in
full and then to the Revolving Credit.  If the Administrative Agent or the
Required Lenders so request, all proceeds of such Disposition or Event of Loss
shall be deposited with the Administrative Agent (or its agent) and held by it
in the Collateral Account.  So long as no
Default or Event of Default exists, the Administrative Agent is authorized to
disburse amounts representing such proceeds from the Collateral Account to or
at the Borrower’s direction for application to or reimbursement for the costs
of replacing, rebuilding or restoring such Property.


 


(ii)             If after
the Closing Date the Borrower or any Guarantor shall issue new equity
securities (whether common or preferred stock or otherwise), other than (A) equity
securities issued in connection with the exercise of employee stock options or
pursuant to an employee stock incentive plan, (B) capital stock of the
Parent the Net Cash Proceeds of which are used in whole or in part to finance a
Permitted Acquisition, (C) capital stock issued to the seller of an
Acquired Business in connection with a Permitted Acquisition, (D) capital
stock of the Parent the Net Cash Proceeds of which are used to finance
redemptions of equity interests owned by managers of the Borrower or a
Guarantor upon termination of employment to the extent permitted by Section 8.12(c) hereof,
(E) capital stock of the Parent the Net Cash Proceeds of which are used to
finance Capital Expenditures and (F) equity securities issued in
connection with the exercise of a Cure Right, the Borrower shall promptly
notify the Administrative Agent of the estimated Net Cash Proceeds of such
issuance to be received by or for the account of the Borrower or such
Subsidiary in respect thereof.  Promptly
upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such
issuance, the Borrower shall prepay the Obligations in an aggregate amount
equal to 50% of the amount of such Net Cash Proceeds.  The amount of


 


11

















 


each such prepayment
shall be applied, first to the outstanding Term Loans until paid in full and
then to the Revolving Credit.  The
Borrower acknowledges that its performance hereunder shall not limit the rights
and remedies of the Lenders for any breach of Section 8.11 (Maintenance of
Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any
other terms of the Loan Documents.


 


(iii)              If after the Closing Date the
Borrower or any Guarantor shall issue any Indebtedness for Borrowed Money,
other than Indebtedness for Borrowed Money permitted by Section 8.7
hereof, the Borrower shall promptly notify the Administrative Agent of the
estimated Net Cash Proceeds of such issuance to be received by or for the
account of the Borrower or such Guarantor in respect thereof.  Promptly upon receipt by the Borrower or such
Guarantor of Net Cash Proceeds of such issuance, the Borrower shall prepay the
Obligations in an aggregate amount equal to 100% of the amount of such Net Cash
Proceeds.  The amount of each such
prepayment shall be applied, first to the outstanding Term Loans until paid in
full and then to the Revolving Credit. 
The Borrower acknowledges that its performance hereunder shall not limit
the rights and remedies of the Lenders for any breach of Section 8.7
hereof or any other terms of the Loan Documents.


 


(iv)             If after the Closing Date the
Borrower or any Guarantor shall issue any Subordinated Debt, the Borrower shall
promptly notify the Administrative Agent of the estimated Net Cash Proceeds of
such issuance to be received by or for the account of the Borrower or such
Guarantor in respect thereof.  Promptly
upon receipt by the Borrower or such Guarantor of Net Cash Proceeds of such
issuance, the Borrower shall prepay the Obligations in an aggregate amount
equal to 100% of the amount of such Net Cash Proceeds.  The amount of each such prepayment shall be
applied, first to the outstanding Term Loans until paid in full and then to the
Revolving Credit.  The Borrower
acknowledges that its performance hereunder shall not limit the rights and
remedies of the Lenders for any breach of Section 8.7 hereof or any other
terms of the Loan Documents.


 


(v)             Within one hundred twenty (120)
days after the end of each fiscal year of the Parent (commencing with the
Parent’s fiscal year ended December 31, 2008), the Borrower shall prepay
the Obligations by an amount equal to the Excess Cash Flow Prepayment
Percentage of Excess Cash Flow of Borrower and its Subsidiaries for the most
recently completed fiscal year of the Borrower. 
The amount of each such prepayment shall be applied, first to the
outstanding Term Loans until paid in full and then to the Revolving Credit.


 


(vi)             The Borrower shall, on each date
the Revolving Credit Commitments are reduced pursuant to Section 1.13
hereof, prepay the Revolving Loans, Swing Loans, and, if necessary, prefund the
L/C Obligations by the amount, if any, necessary to reduce the sum of the
aggregate principal amount of Revolving Loans, Swing Loans, and L/C Obligations
then outstanding to the amount to which the Revolving Credit Commitments have
been so reduced.


 


(vii)             Unless the Borrower otherwise
directs, prepayments of Loans under this Section 1.9(b) shall be
applied first to Borrowings of Base Rate Loans until payment in full thereof
with any balance applied to Borrowings of Eurodollar Loans in the order in
which their Interest Periods expire. 
Each prepayment of Loans under this Section 1.9(b) shall be
made by


 


12

















 


the payment of the
principal amount to be prepaid and, in the case of any Term Loans or Eurodollar
Loans or Swing Loans, accrued interest thereon to the date of prepayment
together with any amounts due the Lenders under Section 1.12 hereof.  Each prefunding of L/C Obligations shall be
made in accordance with Section 9.4 hereof.


 


(c)             Any amount of Revolving Loans and
Swing Loans paid or prepaid before the Revolving Credit Termination Date may,
subject to the terms and conditions of this Agreement, be borrowed, repaid and
borrowed again.  No amount of the
Term B Loans paid or prepaid may be reborrowed, and, in the case of any
partial prepayment, such prepayment shall be applied to the remaining
amortization payments on the relevant Loans on a ratable basis among all such
remaining amortization payments based on the principal amounts thereof.


 


Section 1.10.               Default
Rate.  Notwithstanding anything to the contrary
contained herein, while any Event of Default exists or after acceleration, the
Borrower shall pay interest (after as well as before entry of judgment thereon
to the extent permitted by law) on the principal amount of all Loans and
Reimbursement Obligations, and letter of credit fees at a rate per annum equal
to:


 


(a)          for any Base Rate Loan or any Swing
Loan bearing interest based on the Base Rate, the sum of 2.0% plus the Applicable Margin plus the
Base Rate from time to time in effect;


 


(b)         for any Eurodollar Loan or any Swing
Loan bearing interest at the Administrative Agent’s Quoted Rate, the sum of
2.0% plus the rate of interest in effect
thereon at the time of such default until the end of the Interest Period
applicable thereto and, thereafter, at a rate per annum equal to the sum of
2.0% plus the Applicable Margin for Base Rate
Loans plus the Base Rate from time to time in
effect;


 


(c)          for any Reimbursement Obligation, the
sum of 2.0% plus the amounts due under Section 1.3
with respect to such Reimbursement Obligation; and


 


(d)         for any Letter of Credit, the sum of
2.0% plus the letter of credit fee due under Section 2.1
with respect to such Letter of Credit;


 


provided, however, that in the absence of acceleration, any adjustments
pursuant to this Section shall be made at the election of the
Administrative Agent, acting at the request or with the consent of the Required
Lenders, with written notice to the Borrower. 
While any Event of Default exists or after acceleration, interest shall
be paid on demand of the Administrative Agent at the request or with the
consent of the Required Lenders.


 


Section 1.11.               Evidence of Indebtedness.  (a) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.


 


13

















 


(b)             The Administrative Agent shall also
maintain accounts in which it will record (i) the amount of each Loan made
hereunder, the type thereof and the Interest Period with respect 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) the amount of
any sum received by the Administrative Agent hereunder from the Borrower and
each Lender’s share thereof.


 


(c)             The entries maintained in the
accounts maintained pursuant to paragraphs (a) and (b) above
shall be prima facie evidence of the existence
and amounts of the Obligations therein recorded; provided,
however, that the failure of the Administrative Agent or any Lender
to maintain such accounts or any error therein shall not in any manner affect
the obligation of the Borrower to repay the Obligations in accordance with
their terms.


 


(d)             Any Lender may request that its
Loans be evidenced by a promissory note or notes in the forms of Exhibit D-1
(in the case of its Term B Loan and referred to herein as a “Term B Note”), D-2 (in the case of its Revolving Loans
and referred to herein as a “Revolving Note”),
or D-3 (in the case of its Swing Loans and referred to herein as a “Swing Note”), as applicable (the Term B Notes,
Revolving Notes and Swing Note being hereinafter referred to collectively as
the “Notes” and individually as a “Note”).  In such
event, the Borrower shall prepare, execute and deliver to such Lender a Note
payable to the order of such Lender in the amount of the relevant Term Loan,
Commitment or Swing Line Sublimit, as applicable.  Thereafter, the Loans evidenced by such Note
or Notes and interest thereon shall at all times (including after any
assignment pursuant to Section 13.12) be represented by one or more Notes
payable to the order of the payee named therein or any assignee pursuant to Section 13.12,
except to the extent that any such Lender or assignee subsequently returns any
such Note for cancellation and requests that such Loans once again be evidenced
as described in subsections (a) and (b) above.


 


Section 1.12.               Funding
Indemnity.  If any Lender shall incur any loss, cost or
expense (including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or re-employment of deposits or other funds acquired
by such Lender to fund or maintain any Eurodollar Loan or Swing Loan or the
relending or reinvesting of such deposits or amounts paid or prepaid to such
Lender) as a result of:


 


(a)          any payment, prepayment or conversion
of a Eurodollar Loan on a date other than the last day of its Interest Period,


 


(b)         any failure (because of a failure to
meet the conditions of Section 7 or otherwise) by the Borrower to borrow
or continue a Eurodollar Loan or Swing Loan, or to convert a Base Rate Loan
into a Eurodollar Loan or Swing Loan on the date specified in a notice given
pursuant to Section 1.6(a) or 1.15 hereof,


 


(c)          any failure by the Borrower to make
any payment of principal on any Eurodollar Loan or Swing Loan when due (whether
by acceleration or otherwise), or


 


(d)         any acceleration of the maturity of a
Eurodollar Loan or Swing Loan as a result of the occurrence of any Event of
Default hereunder,


 


14

















 


then, upon the demand of such Lender, the Borrower
shall pay to such Lender such amount as will reimburse such Lender for such
loss, cost or expense.  If any Lender
makes such a claim for compensation, it shall provide to the Borrower, with a
copy to the Administrative Agent, a certificate setting forth the amount of
such loss, cost or expense in reasonable detail (including an explanation of
the basis for and the computation of such loss, cost or expense)  and the amounts shown on such certificate shall be
conclusive if reasonably determined, absent demonstrable error.


 


Section 1.13.               Commitment Terminations.  (a) Optional Revolving Credit Terminations. 
The Borrower shall have the right at any time and from time
to time, upon five (5) Business Days prior written notice to the
Administrative Agent (or such shorter period of time agreed to by the
Administrative Agent), to terminate the Revolving Credit Commitments without
premium or penalty and in whole or in part, any partial termination to be (i) in
an amount not less than $1,000,000 or such greater amount which is an integral
multiple of $1,000,000 and (ii) allocated ratably among the Lenders in
proportion to their respective Revolver Percentages, provided that the
Revolving Credit Commitments may not be reduced to an amount less than the sum
of the aggregate principal amount of Revolving Loans, Swing Loans, and
L/C Obligations then outstanding. 
Any termination of the Revolving Credit Commitments below the
L/C Sublimit or Swing Line Sublimit then in effect shall reduce the
L/C Sublimit and Swing Line Sublimit, as applicable, by a like
amount.  The Administrative Agent shall
give prompt notice to each Lender of any such termination of the Revolving
Credit Commitments.


 


(b)             Any termination of the Commitments
pursuant to this Section 1.13 may not be reinstated.


 


Section 1.14.               Substitution of Lenders. 
In the event (a) the Borrower receives a claim from any Lender for
compensation under Section 10.3 or 13.1 hereof, (b) the Borrower
receives notice from any Lender of any illegality pursuant to Section 10.1
hereof, (c) any Lender is in default in any material respect with respect
to its obligations under the Loan Documents, or (d) a Lender fails to
consent to an amendment or waiver requested under Section 13.13 hereof at
a time when the Required Lenders have approved such amendment or waiver (any
such Lender referred to in clause (a), (b), (c), or (d) above being
hereinafter referred to as an “Affected Lender”),
the Borrower may, in addition to any other rights the Borrower may have
hereunder or under applicable law, require, at its expense, any such Affected
Lender to assign, at par plus accrued interest and fees, without recourse, all
of its interest, rights, and obligations hereunder (including all of its
Commitments and the Loans and participation interests in Letters of Credit and
other amounts at any time owing to it hereunder and the other Loan Documents)
to a commercial bank or other financial institution specified by the Borrower, provided that (i) such assignment shall not conflict
with or violate any law, rule or regulation or order of any court or other
governmental authority, (ii) the Borrower shall have received the written
consent of the Administrative Agent, which consent shall not be unreasonably
withheld, to such assignment, (iii) the Borrower shall have paid to the
Affected Lender all monies (together with amounts due such Affected Lender
under Section 1.12 hereof as if the Loans owing to it were prepaid rather
than assigned) other than such principal owing to it hereunder, and (iv) the
assignment is entered into in accordance with the other requirements of Section 13.12
hereof (provided any assignment fees and reimbursable expenses due thereunder
shall be paid by the Borrower).


 


15

















 


Section 1.15.               Swing Loans.  (a)  Generally.  Subject to
the terms and conditions hereof, as part of the Revolving Credit, the Swing
Line Lender may, in its sole discretion, make loans in U.S. Dollars to the
Borrower under the Swing Line (individually a “Swing Loan”
and collectively the “Swing Loans”)
which shall not in the aggregate at any time outstanding exceed the Swing Line
Sublimit.  The Swing Loans may be availed
of by the Borrower from time to time and borrowings thereunder may be repaid
and used again during the period ending on the Revolving Credit Termination
Date.  Each Swing Loan shall be in a
minimum amount of $100,000 or such greater amount which is an integral multiple
of $50,000.


 


(b)             Interest on Swing
Loans.  Each Swing Loan shall
bear interest until maturity (whether by acceleration or otherwise) at a rate
per annum equal to (i) the sum of the Base Rate plus the Applicable Margin
for Base Rate Loans under the Revolving Credit as from time to time in effect
(computed on the basis of a year of 365 or 366 days, as the case may be, for
the actual number of days elapsed) or (ii) the Administrative Agent’s
Quoted Rate (computed on the basis of a year of 360 days for the actual
number of days elapsed).  Interest on
each Swing Loan shall be due and payable on the last day of its Interest Period
and at maturity (whether by acceleration or otherwise).


 


(c)             Requests for Swing
Loans.  The Borrower shall
give the Administrative Agent prior notice (which may be written or oral) no
later than 12:00 Noon (Chicago time) on the date upon which the Borrower
requests that any Swing Loan be made, of the amount and date of such Swing
Loan, and the Interest Period requested therefor and the Administrative Agent
shall promptly notify the Swing Line Lender of such request.  Within 30 minutes after receiving such
notice, the Administrative Agent shall in its discretion quote an interest rate
to the Borrower at which the Swing Line Lender would be willing to make such
Swing Loan available to the Borrower for the Interest Period so requested (the
rate so quoted for a given Interest Period being herein referred to as “Administrative Agent’s Quoted Rate”).  The Borrower acknowledges and agrees that the
interest rate quote is given for immediate and irrevocable acceptance.  If the Borrower does not so immediately
accept the Administrative Agent’s Quoted Rate for the full amount requested by
the Borrower for such Swing Loan, the Administrative Agent’s Quoted Rate shall
be deemed immediately withdrawn and such Swing Loan shall bear interest at the
rate per annum determined by adding the Applicable Margin for Base Rate Loans
under the Revolving Credit to the Base Rate as from time to time in
effect.  Subject to the terms and
conditions hereof, the proceeds of such Swing Loan shall be made available to
the Borrower on the date so requested by depositing such proceeds to the credit
of the Borrower’s operating account maintained with the Administrative Agent or
its Affiliate or as the Borrower and the Administrative Agent may otherwise
agree.  Anything contained in the
foregoing to the contrary notwithstanding, (i) the obligation of the Swing
Line Lender to make Swing Loans shall be subject to all of the terms and
conditions of this Agreement and (ii) the Swing Line Lender shall not be
obligated to make more than one Swing Loan during any one day.


 


(d)             Refunding Loans  In its sole and absolute discretion, the
Swing Line Lender may at any time direct the Administrative Agent, on behalf of
the Borrower (which hereby irrevocably authorizes the Administrative Agent to
act on its behalf for such purpose) and with notice to the Borrower, to request
each Lender to make a Revolving Loan in the form of a Base Rate Loan in an
amount equal to such Lender’s Revolver Percentage of the amount of the Swing
Loans


 


16

















 


outstanding on the date
such notice is given.  Unless an Event of
Default described in Section 9.1(j) or 9.1(k) exists with
respect to the Borrower, regardless of the existence of any other Event of Default,
each Lender shall make the proceeds of its requested Revolving Loan available
to the Administrative Agent, in immediately available funds, at the
Administrative Agent’s principal office in Chicago, Illinois, before
12:00 Noon (Chicago time) on the Business Day following the day such
notice is given.  The proceeds of such
Borrowing of Revolving Loans shall be immediately applied to repay the
outstanding Swing Loans.


 


(e)             Participations.  If any Lender refuses or otherwise fails to
make a Revolving Loan when requested by the Administrative Agent pursuant to Section 1.15(d) above
(because an Event of Default described in Section 9.1(j) or 9.1(k) exists
with respect to the Borrower or otherwise), such Lender will, by the time and
in the manner such Revolving Loan was to have been funded to the Administrative
Agent, purchase from the Swing Line Lender an undivided participating interest
in the outstanding Swing Loans in an amount equal to its Revolver Percentage of
the aggregate principal amount of Swing Loans that were to have been repaid
with such Revolving Loans.  Each Lender
that so purchases a participation in a Swing Loan shall thereafter be entitled
to receive its Revolver Percentage of each payment of principal received on the
Swing Loan and of interest received thereon accruing from the date such Lender
funded to the Administrative Agent its participation in such Loan.  The several obligations of the Lenders under
this Section shall be absolute, irrevocable and unconditional under any
and all circumstances whatsoever and shall not be subject to any set-off,
counterclaim or defense to payment which any Lender may have or have had
against the Borrower, any other Lender or any other Person whatsoever.  Without limiting the generality of the
foregoing, such obligations shall not be affected by any Default or Event of
Default or by any reduction or termination of the Commitments of any Lender,
and each payment made by a Lender under this Section shall be made without
any offset, abatement, withholding or reduction whatsoever.


 


SECTION 2.                                                 FEES.


 


Section 2.1.              Fees.  (a) Revolving Credit Commitment Fee.  The Borrower shall pay to the Administrative
Agent for the ratable account of the Lenders in accordance with their Revolver
Percentages a commitment fee at the rate per annum equal to the Applicable
Margin (computed on the basis of a year of 360 days and the actual number
of days elapsed) on the average daily Unused Revolving Credit Commitments.  Such commitment fee shall be payable
quarterly in arrears on the last day of each March, June, September, and December in
each year (commencing on the first such date occurring after the date hereof)
and on the Revolving Credit Termination Date, unless the Revolving Credit
Commitments are terminated in whole on an earlier date, in which event the
commitment fee for the period to the date of such termination in whole shall be
paid on the date of such termination.


 


(b)             Letter of Credit Fees.  On the date of issuance or extension, or
increase in the amount, of any Letter of Credit pursuant to Section 1.3
hereof, the Borrower shall pay to the L/C Issuer for its own account a fronting
fee equal to 0.125% of the face amount of (or of the increase in the face
amount of) such Letter of Credit. 
Quarterly in arrears, on the last day of each March, June, September,
and December, commencing on the first such date occurring after the date
hereof, the Borrower shall pay to the Administrative Agent, for the ratable
benefit of the


 


17

















 


Lenders in accordance
with their Revolver Percentages, a letter of credit fee at a rate per annum
equal to the Applicable Margin (computed on the basis of a year of
360 days and the actual number of days elapsed) in effect during each day
of such quarter applied to the daily average face amount of Letters of Credit
outstanding during such quarter.  In
addition, the Borrower shall pay to the L/C Issuer for its own account the L/C
Issuer’s standard issuance, drawing, negotiation, amendment, assignment, and
other administrative fees for each Letter of Credit as established by the L/C
Issuer from time to time.


 


(c)             Administrative Agent Fees.  The Borrower shall pay to the Administrative
Agent, for its own use and benefit, the fees agreed to between the
Administrative Agent and the Borrower in a fee letter dated March 23,
2007, or as otherwise agreed to in writing between them.


 


SECTION 3.                                                 PLACE AND
APPLICATION OF PAYMENTS.


 


Section 3.1.              Place and Application of Payments. 
All payments of principal of and interest on the Loans and the
Reimbursement Obligations, and of all other Obligations payable by the Borrower
under this Agreement and the other Loan Documents, shall be made by the
Borrower to the Administrative Agent by no later than 12:00 Noon (Chicago
time) on the due date thereof at the office of the Administrative Agent in
Chicago, Illinois (or such other location as the Administrative Agent may
designate to the Borrower), for the benefit of the Lender or Lenders entitled
thereto.  Any payments received after such
time shall be deemed to have been received by the Administrative Agent on the
next Business Day.  All such payments
shall be made in U.S. Dollars, in immediately available funds at the place of
payment, in each case without set-off or counterclaim.  The Administrative Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest on Loans and on Reimbursement Obligations in which the
Lenders have purchased Participating Interests ratably to the Lenders and like
funds relating to the payment of any other amount payable to any Lender to such
Lender, in each case to be applied in accordance with the terms of this
Agreement.  If the Administrative Agent
causes amounts to be distributed to the Lenders in reliance upon the assumption
that the Borrower will make a scheduled payment and such scheduled payment is
not so made, each Lender shall, on demand, repay to the Administrative Agent
the amount distributed to such Lender together with interest thereon in respect
of each day during the period commencing on the date such amount was
distributed to such Lender and ending on (but excluding) the date such Lender
repays such amount to the Administrative Agent, at a rate per annum equal to:  (i) from the date the distribution was
made to the date two (2) Business Days after payment by such Lender is due
hereunder, the Federal Funds Rate for each such day and (ii) from the date
two (2) Business Days after the date such payment is due from such Lender
to the date such payment is made by such Lender, the Base Rate in effect for
each such day.


 


18

















 


Anything contained herein
to the contrary notwithstanding (including, without limitation, Section 1.9(b) hereof),
all payments and collections received in respect of the Obligations and all
proceeds of the Collateral received, in each instance, by the Administrative
Agent or any of the Lenders after acceleration or the final maturity of the
Obligations or termination of the Commitments as a result of an Event of
Default shall be remitted to the Administrative Agent and distributed as
follows:


 


(a)          first, to the payment of any
outstanding costs and expenses incurred by the Administrative Agent, and any
security trustee therefor, in monitoring, verifying, protecting, preserving or
enforcing the Liens on the Collateral, in protecting, preserving or enforcing
rights under the Loan Documents, and in any event including all costs and
expenses of a character which the Borrower has agreed to pay the Administrative
Agent under Section 13.15 hereof (such funds to be retained by the
Administrative Agent for its own account unless it has previously been
reimbursed for such costs and expenses by the Lenders, in which event such
amounts shall be remitted to the Lenders to reimburse them for payments
theretofore made to the Administrative Agent);


 


(b)         second, to the payment of any
outstanding interest and fees due under the Loan Documents to be allocated pro
rata in accordance with the aggregate unpaid amounts owing to each holder
thereof;


 


(c)          third, to the payment of principal on
the Loans, unpaid Reimbursement Obligations, together with amounts to be held
by the Administrative Agent as collateral security for any outstanding
L/C Obligations pursuant to Section 9.4 hereof (until the
Administrative Agent is holding an amount of cash equal to the then outstanding
amount of all such L/C Obligations), and Hedging Liability, the aggregate
amount paid to, or held as collateral security for, the Lenders and, in the
case of Hedging Liability, their Affiliates to be allocated pro rata in
accordance with the aggregate unpaid amounts owing to each holder thereof;


 


(d)         fourth, to the payment of all other
unpaid Obligations and all other indebtedness, obligations, and liabilities of
the Borrower and its Subsidiaries secured by the Loan Documents (including,
without limitation, Funds Transfer and Deposit Account Liability) to be
allocated pro rata in accordance with the aggregate unpaid amounts owing to
each holder thereof; and


 


(e)          finally, to the Borrower or whoever
else may be lawfully entitled thereto.


 


Section 3.2.              Account Debit. 
The Borrower hereby irrevocably authorizes the Administrative Agent to
charge any of the Borrower’s deposit accounts (other than payroll, escrow or
trust accounts) maintained with the Administrative Agent for the amounts from
time to time necessary to pay any then due Obligations; provided
that  the Borrower acknowledges and agrees
that the Administrative Agent shall not be under an obligation to do so and the
Administrative Agent shall not incur any liability to the Borrower or any other
Person for the Administrative Agent’s failure to do so.


 


19

















 


SECTION 4.                                                 GUARANTIES
AND COLLATERAL.


 


Section 4.1.              Guaranties. 
The payment and performance of the Obligations, Hedging Liability, and
Funds Transfer and Deposit Account Liability shall at all times be guaranteed
by the Parent and each direct and indirect Subsidiary of the Borrower
(individually a “Guarantor” and collectively the “Guarantors”) pursuant to Section 12 hereof or pursuant
to one or more guaranty agreements in form and substance reasonably acceptable
to the Administrative Agent, as the same may be amended, modified or
supplemented from time to time (individually a “Guaranty”
and collectively the “Guaranties”); provided, however, that unless otherwise required by the
Administrative Agent or the Required Lenders during the existence of any Event
of Default, a Foreign Subsidiary shall not be required to be a Guarantor
hereunder.  Notwithstanding the foregoing
or any other provisions of this agreement, Smart Financial Advisors, LLC (“SFA”) shall not be required to provide a Guaranty pursuant
to this Section 4.1 or otherwise comply with the provisions of this Section 4
unless and until SFA’s gross revenues for any fiscal year commencing after December 31,
2006 exceed $100,000.  In the event that
SFA’s gross revenues exceed $100,000 for any fiscal year commencing on or after
December 31, 2006, the Borrower shall promptly cause SFA to become a
Guarantor hereunder and otherwise comply with all provisions of this Section 4.


 


Section 4.2.              Collateral. 
The Obligations, Hedging Liability, and Funds Transfer and Deposit
Account Liability shall be secured by valid, perfected, and enforceable Liens
on all right, title, and interest of the Borrower and each Guarantor in all of
their accounts, chattel paper, instruments, documents, general intangibles,
letter-of-credit rights, supporting obligations, deposit accounts, investment
property, inventory, equipment, fixtures, commercial tort claims, real estate
and certain other Property, whether now owned or hereafter acquired or arising,
and all proceeds thereof; provided, however, that:  (i) until a Default or Event of Default
has occurred and is continuing and thereafter until otherwise required by the
Administrative Agent or the Required Lenders, Liens on local petty cash
accounts maintained by the Borrower and the Guarantors in proximity to their
operations need not be perfected provided that the total amount on deposit at
any one time not so perfected shall not exceed  $250,000
in the aggregate and Liens on payroll accounts maintained by the Borrower and
the Guarantors need not be perfected provided the total amount on deposit at
any time does not exceed the current amount of their payroll obligations, (ii) until
a Default or Event of Default has occurred and is continuing and thereafter
until otherwise required by the Administrative Agent or the Required Lenders, Liens
on vehicles which are subject to a certificate of title law need not be
perfected provided that the total value of such property at any one time not so
perfected shall not exceed $250,000 in the aggregate, and (iii) unless
otherwise required by the Administrative Agent or the Required Lenders during
the existence of any Event of Default, Liens on the Voting Stock of a Foreign
Subsidiary shall be limited to 65% of the total outstanding Voting Stock of
such Foreign Subsidiary.  The Borrower
acknowledges and agrees that the Liens on the Collateral shall be granted to
the Administrative Agent for the benefit of the holders of the Obligations, the
Hedging Liability, and the Funds Transfer and Deposit Account Liability and
shall be valid and perfected first priority Liens subject, however, to the
proviso appearing at the end of the preceding sentence and to Liens permitted
by Section 8.8 hereof, in each case pursuant to one or more Collateral
Documents from such Persons, each in form and substance reasonably satisfactory
to the Administrative Agent.


 


20
















 


Section 4.3.              Liens on Real Property. 
In the event that the Borrower or any Guarantor owns or hereafter
acquires any real property, the Borrower shall, or shall cause such Guarantor
to, execute and deliver to the Administrative Agent a mortgage or deed of trust
reasonably acceptable in form and substance to the Administrative Agent for the
purpose of granting to the Administrative Agent (or a security trustee
therefor) a Lien on the Borrower’s or Guarantor’s right, title and interest in
and to such real property to secure the Obligations, Hedging Liability, and
Funds Transfer and Deposit Account Liability, shall pay all taxes, costs, and
expenses incurred by the Administrative Agent in recording such mortgage or
deed of trust, and shall supply to the Administrative Agent at the Borrower’s
cost and expense a survey, environmental report, hazard insurance policy,
appraisal report, and a mortgagee’s policy of title insurance from a title
insurer reasonably acceptable to the Administrative Agent insuring the validity
of such mortgage or deed of trust and its status as a first Lien (subject to
Liens permitted by this Agreement) on the real property encumbered thereby and
such other instrument, documents, certificates, and opinions reasonably
required by the Administrative Agent in connection therewith.


 


Section 4.4.              Further Assurances. 
The Borrower agrees that it shall, and shall cause each Guarantor to,
from time to time at the request of the Administrative Agent or the Required
Lenders, execute and deliver such  documents and
do such acts and things as the Administrative Agent or the Required Lenders may  reasonably  request in
order to provide for or perfect or protect such Liens on the Collateral.  In the event the Borrower or any Guarantor
forms or acquires any other Subsidiary after the date hereof, except as
otherwise provided in Sections 4.1 and 4.2 above, the Borrower shall
promptly upon such formation or acquisition cause such newly formed or acquired
Subsidiary to execute a Guaranty and such Collateral Documents as the
Administrative Agent may then require, and the Borrower shall also deliver to
the Administrative Agent, or cause such Subsidiary to deliver to the
Administrative Agent, at the Borrower’s cost and expense, such other
instruments, documents, certificates, and opinions reasonably required by the
Administrative Agent in connection therewith.


 


SECTION 5.                                                 DEFINITIONS;
INTERPRETATION.


 


Section 5.1.              Definitions. 
The following terms when used herein shall have the following meanings:


 


“Acquired Business” means the entity or assets acquired by the Borrower
or a Subsidiary in an Acquisition, whether before or after the date hereof.


 


“Acquisition” means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the assets of a Person, or of any
business or division of a Person, (b) the acquisition of in excess of 50%
of the capital stock, partnership interests, membership interests or equity of
any Person (other than a Person that is a Subsidiary), or otherwise causing any
Person to become a Subsidiary, or (c) a merger or consolidation or any
other combination with another Person (other than a Person that is a
Subsidiary) provided that the Borrower or the Subsidiary is the surviving
entity.


 


“Adjusted LIBOR” is defined in Section 1.4(b) hereof.


 


21

















 


“Administrative Agent” means Bank of Montreal and any successor
pursuant to Section 11.7 hereof.


 


“Administrative Agent’s Quoted Rate” is defined in Section 1.15(c) hereof.


 


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


 


“Affiliate” means any Person directly or indirectly controlling
or controlled by, or under direct or indirect common control with, another
Person.  A Person shall be deemed to
control another Person for purposes of this definition if such Person
possesses, directly or indirectly, the power to direct, or cause the direction
of, the management and policies of the other Person, whether through the
ownership of voting securities, common directors, trustees or officers, by
contract or otherwise; provided that,
in any event for purposes of this definition, any Person that owns, directly or
indirectly, 5% or more of the securities having the ordinary voting power for
the election of directors or governing body of a corporation or 10% or more of
the partnership or other ownership interest of any other Person (other than as
a limited partner of such other Person) will be deemed to control such
corporation or other Person.


 


“Agreement” means this Credit Agreement, as the same may be
amended, modified, restated or supplemented from time to time pursuant to the
terms hereof.


 


“Applicable Margin” means, with respect to Loans, Reimbursement
Obligations, and the commitment  fees and
letter of credit fees payable under Section 2.1 hereof, until the first
Pricing Date, the rates per annum shown opposite Level III below, and
thereafter from one Pricing Date to the next the Applicable Margin means the
rates per annum determined in accordance with the following schedule:


 


	
  LEVEL

  	
   

  	
  TOTAL
  FUNDED

  DEBT/EBITDA RATIO FOR

  SUCH PRICING DATE

  	
   

  	
  APPLICABLE
  MARGIN FOR

  BASE RATE LOANS UNDER

  REVOLVING CREDIT AND

  TERM B CREDIT AND

  REIMBURSEMENT

  OBLIGATIONS SHALL BE:

  	
   

  	
  APPLICABLE
  MARGIN FOR

  EURODOLLAR LOANS

  UNDER REVOLVING CREDIT

  AND TERM B CREDIT AND

  LETTER OF CREDIT FEE

  SHALL BE:

  	
   

  	
  APPLICABLE
  MARGIN FOR

  COMMITMENT FEE SHALL

  BE:

  
	
  III

  	
   

  	
  Greater than or
  equal to 3.50 to 1.0

  	
   

  	
  1.75%

  	
   

  	
  3.25%

  	
   

  	
  0.50%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II

  	
   

  	
  Less than 3.50
  to 1.0, but greater than or equal to 3.00 to 1.0

  	
   

  	
  1.25%

  	
   

  	
  2.75%

  	
   

  	
  0.50%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  I

  	
   

  	
  Less than 3.00 to 1.0

  	
   

  	
  0.75%

  	
   

  	
  2.25%

  	
   

  	
  0.50%

  



 


For purposes hereof, the term “Pricing
Date” means, for any fiscal quarter of the Borrower ending on or
after June 30, 2007, the date on which the Administrative Agent is in
receipt of the Borrower’s most recent financial statements (and, in the case of
the year-end financial 


 


22

















 


statements, audit report) for the fiscal quarter then
ended, pursuant to Section 8.5 hereof.  The Applicable Margin shall be established
based on the Total Funded Debt/EBITDA Ratio for the most recently completed
fiscal quarter and the Applicable Margin established on a Pricing Date shall
remain in effect until the next Pricing Date. 
If the Borrower has not delivered its financial statements by the date
such financial statements (and, in the case of the year-end financial
statements, audit report) are required to be delivered under Section 8.5
hereof, until such financial statements and audit report are delivered, the
Applicable Margin shall be the highest Applicable Margin (i.e.,
Level IV shall apply).  If the
Borrower subsequently delivers such financial statements before the next
Pricing Date, the Applicable Margin established by such late delivered
financial statements shall take effect from the date of delivery until the next
Pricing Date.  In all other
circumstances, the Applicable Margin established by such financial statements
shall be in effect from the Pricing Date that occurs immediately after the end
of the fiscal quarter covered by such financial statements until the next
Pricing Date.  Each determination of the
Applicable Margin made by the Administrative Agent in accordance with the
foregoing shall be conclusive and binding on the Borrower and the Lenders if
reasonably determined, absent demonstrable error.


 


“Application” is defined in Section 1.3(b) hereof.


 


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


 


“Assignment and Acceptance” means an assignment and acceptance
entered into by a Lender and an Eligible Assignee (with the consent of any
party whose consent is required by Section 13.12 hereof), and accepted by
the Administrative Agent, in substantially the form of Exhibit G or any
other form approved by the Administrative Agent.


 


“Assumed Liabilities” means those liabilities of the Initial
Acquired Business assumed by the Borrower on the Closing Date pursuant to the
Initial Acquisition Agreement, as set forth on Schedule 8.7 hereto.


 


“Authorized Representative” means those persons shown on the list of
officers provided by the Borrower pursuant to Section 7.2 hereof or on any
update of any such list provided by the Borrower to the Administrative Agent,
or any further or different officers of the Borrower so named by any Authorized
Representative of the Borrower in a written notice to the Administrative Agent.


 


“Base Rate” is defined in Section 1.4(a) hereof.


 


“Base Rate Loan” means a Loan bearing interest at a rate specified in Section 1.4(a) hereof.


 


“Borrower” is defined in the introductory paragraph of this
Agreement.


 


23

















 


“Borrowing” means the total of Loans of a single type advanced,
continued for an additional Interest Period, or converted from a different type
into such type by the Lenders under a Credit on a single date and, in the case
of Eurodollar Loans, for a single Interest Period.  Borrowings of Loans are made and maintained
ratably from each of the Lenders under a Credit according to their Percentages
of such Credit.  A Borrowing is “advanced” on the day Lenders advance funds comprising such
Borrowing to the Borrower, is “continued” on
the date a new Interest Period for the same type of Loans commences for such
Borrowing, and is “converted” when such Borrowing
is changed from one type of Loans to the other, all as determined pursuant to Section 1.6
hereof.   Borrowings of Swing Loans are
made by the Swing Line Lender in accordance with the procedures set forth in Section 1.15
hereof.


 


“Business Day” means any day (other than a Saturday or Sunday) on which
banks are not authorized or required to close in Chicago, Illinois and, if the
applicable Business Day relates to the advance or continuation of, or
conversion into, or payment of a Eurodollar Loan, on which banks are dealing in
U.S. Dollar deposits in the interbank eurodollar market in London, England and
Nassau, Bahamas.


 


“Capital Expenditures” means, with respect to any Person for
any period, the aggregate amount of all expenditures (whether paid in cash or
accrued as a liability) by such Person during that period for the acquisition
or leasing (pursuant to a Capital Lease) of fixed or capital assets or
additions to property, plant, or equipment (including replacements, capitalized
repairs, and improvements) which should be capitalized on the balance sheet of
such Person in accordance with GAAP.


 


“Capital Lease” means any lease of Property which in accordance with
GAAP is required to be capitalized on the balance sheet of the lessee.


 


“Capitalized Lease Obligation” means, for any Person, the amount of the
liability shown on the balance sheet of such Person in respect of a Capital
Lease determined in accordance with GAAP.


 


“CERCLA” means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. §§9601 et seq., and any future amendments.


 


“Change of Control” means any of (a) the failure of the Parent at
any time to maintain beneficial ownership of 100% of the outstanding capital
stock or other equity interests of the Borrower on a fully-diluted basis or (b) the
failure of Great Hill at any time to maintain beneficial ownership of 66% or
more of the outstanding Voting Stock or other equity interests of the Parent on
a fully-diluted basis.


 


“Closing Date” means the date of this Agreement or such later
Business Day upon which each condition described in Section 7.2 shall be
satisfied or waived in a manner acceptable to the Administrative Agent in its
discretion.


 


24

















 


“Code” means the Internal Revenue Code of 1986, as amended,
and any successor statute thereto.


 


“Collateral” means all properties, rights, interests, and
privileges from time to time subject to the Liens granted to the Administrative
Agent, or any security trustee therefor, by the Collateral Documents.


 


“Collateral Account” is defined in Section 9.4 hereof.


 


“Collateral Documents” means the Mortgages, the Security
Agreement, and all other mortgages, deeds of trust, security agreements, pledge
agreements, assignments, financing statements and other documents as shall from
time to time secure or relate to the Obligations, the Hedging Liability, and
the Funds Transfer and Deposit Account Liability or any part thereof.


 


“Commitments” means the Revolving Credit Commitments and the
Term B Loan Commitments.


 


“Compliance Certificate” is defined in Section 8.5(j) hereof.


 


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


 


“Credit” means any of the Revolving Credit, the Swing Line, or
the Term B Credit.


 


“Credit Event” means the advancing of any Loan, the continuation of
or conversion into a Eurodollar Loan, or the issuance of, or extension of the
expiration date or increase in the amount of, any Letter of Credit.


 


“Cure Amount” is defined in Section 9.6(c) hereof.


 


“Cure Right” is defined in Section 9.6(a) hereof.


 


“Default” means any event or condition the occurrence of which
would, with the passage of time or the giving of notice, or both, constitute an
Event of Default.


 


“Disposition” means the sale, lease, conveyance or other
disposition of Property, other than sales or other dispositions expressly
permitted under Section 8.10(a), 8.10(b), 8.10(d) or 8.10(f) hereof.


 


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


 


“EBITDA” means, with reference to any period (each, a “Test Period”), Net Income for such Test Period plus the sum of all amounts deducted in arriving at such Net
Income amount in respect of (a) Interest Expense for such Test Period, (b) Tax
Distributions made during such Test period to the extent permitted by Section 8.12(d) hereof,
(c) depreciation of fixed assets and


 


25

















 


amortization of
intangible assets for such Test Period, (d) Management Fees to the extent
permitted by Section 8.12(b) hereof paid during such Test Period
hereof, (e) with respect to any Test Period ended prior to March 31,
2008, the amounts set forth on Schedule 5.1 with respect to each fiscal
quarter occurring during such Test Period, (f) with respect to any Test
Period ended prior to June 30, 2007, non-capitalized expenses related to
the Loan Documents or the Initial Acquisition Agreement or related agreements
in an aggregate amount not to exceed $3,000,000, (g) amounts constituting
Restricted Cash to the extent used during such period to satisfy Assumed Liabilities
(to the extent the Borrower or the Parent received a purchase price reduction,
offset or adjustment for the assumption of such Assumed Liabilities) provided
that the aggregate amount of such payments added back to EBITDA pursuant to
this clause (g) shall not exceed $6,000,000 during the term of this
Agreement and (h) other pro forma adjustments for such Test Period
proposed by the Borrower and reasonably acceptable to the Administrative
Agent.  EBITDA shall be calculated on a
pro forma basis in accordance with GAAP to give effect to any Permitted
Acquisition consummated at any time on or after the first day of the Test
Period thereof as if each such Permitted Acquisition had been effected on the
first day of such Test Period. 
Notwithstanding the foregoing, EBITDA for each of the fiscal quarters
ended June 30, 2006, September 30, 2006, December 31, 2006 and March 31,
2007 shall be the amounts set forth on Schedule 5.1 hereof.


 


“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a
Lender, (c) an Approved Fund, and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agent, (ii) in the
case of any assignment of a Revolving Credit Commitment, the L/C Issuer, and (iii) unless
an Event of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided
that notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any Guarantor or any of the Borrower’s or such Guarantor’s Affiliates
or Subsidiaries.


 


“Eligible Line of Business” means any business engaged in as of the
date of this Agreement by the Borrower or any of its Subsidiaries.


 


“Environmental Claim” means any investigation, notice,
violation, demand, allegation, action, suit, injunction, judgment, order,
consent decree, penalty, fine, lien, proceeding or claim (whether
administrative, judicial or private in nature) arising (a) pursuant to, or
in connection with an actual or alleged violation of, any Environmental Law, (b) in
connection with any Hazardous Material, (c) from any abatement, removal,
remedial, corrective or response action in connection with a Hazardous
Material, Environmental Law or order of a governmental authority or (d) from
any actual or alleged damage, injury, threat or harm to health, safety, natural
resources or the environment.


 


“Environmental Law” means any current or future Legal Requirement
pertaining to (a) the protection of health, safety and the indoor or
outdoor environment, (b) the conservation, management or use of natural
resources and wildlife, (c) the protection or use of surface water or
groundwater, (d) the management, manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, Release, threatened
Release, abatement, removal, remediation or handling of, or exposure to, any
Hazardous Material or (e) pollution (including


 


26

















 


any Release to air, land,
surface water or groundwater), and any amendment, rule, regulation, order or
directive issued thereunder.


 


“ERISA” means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute thereto.


 


“Eurodollar Loan” means a Loan bearing interest at the rate specified
in Section 1.4(b) hereof.


 


“Eurodollar Reserve Percentage” is defined in Section 1.4(b) hereof.


 


“Event of Default” means any event or condition identified as such in Section 9.1
hereof.


 


“Event of Loss” means, with respect to any Property, any of the
following:  (a) any loss, destruction
or damage of such Property or (b) any condemnation, seizure, or taking, by
exercise of the power of eminent domain or otherwise, of such Property, or
confiscation of such Property or the requisition of the use of such Property.


 


“Excess Cash Flow” means, with respect to any period, the amount (if
any) by which (a) EBITDA (but determined for such purposes without giving
effect to any extraordinary gains or losses as determined in accordance with
GAAP) during such period exceeds (b) the sum of (i) Interest Expense
payable in cash during such period, plus (ii) Tax
Distributions made during such period to the extent permitted by Section 8.12(d) hereof,
plus (iii) the aggregate amount of
payments required to be made, and actually made, by the Borrower and its
Subsidiaries during such period in respect of all principal on all Indebtedness
of Borrowed Money (whether at maturity, as a result of mandatory sinking fund
redemption, mandatory prepayment, acceleration or otherwise, but excluding
payments made under the Revolving Credit), plus (iv) the
aggregate amount of Capital Expenditures made by the Borrower and its
Subsidiaries during such period to the extent permitted by this Agreement and
not financed with proceeds of Indebtedness for Borrowed Money or proceeds of
equity issuances, plus (v) that portion of the Total Consideration for any
Permitted Acquisition paid in cash during such period not representing proceeds
of Indebtedness for Borrowed Money, plus (v) any
increases in non-debt, non-cash working capital of the Borrower and its
Subsidiaries for such period, minus (vi) any
decreases in non-debt, non-cash working capital of the Borrower and its
Subsidiaries for such period.


 


“Excess Cash Flow Prepayment Percentage” means 75% provided,
however, that (x) the Excess Cash Flow Prepayment Percentage
shall permanently reduce to 50% if (i) the Borrower’s Total Funded
Debt/EBITDA Ratio for any period of two consecutive fiscal quarters occurring
after the date of this Agreement is less than 2.50 to 1.0 as evidenced by a
Compliance Certificate furnished to the Administrative Agent and the Lenders
for such period and (ii) no Default or Event of Default has occurred and
is continuing at such time and (y) the Excess Cash Flow Prepayment
Percentage shall permanently reduce to 25% if (i) the Borrower’s Total
Funded Debt/EBITDA Ratio for any period of two consecutive fiscal quarters
occurring after the date of this Agreement is less than 2.00 to 1.00 as
evidenced by a Compliance Certificate furnished to the Administrative Agent and
the Lenders for such period and (iii) no Default or Event of Default has
occurred and is continuing at such time.


 


27

















 


“Federal Funds Rate” means the fluctuating interest rate per annum
described in part (x) of clause (ii) of the definition of Base Rate
appearing in Section 1.4(a) hereof.


 


“Fixed Charges” means, with reference to any period, the sum of (a) all
payments of principal made or to be made during such period with respect to
Indebtedness for Borrowed Money of the Borrower and its Subsidiaries, (b) Interest
Expense for such period payable or paid in cash, (c) Tax Distributions
payable or paid in cash by the Borrower and its Subsidiaries during such period
excluding, for the first 18 calendar months occurring after the date
hereof, taxes resulting from or associated with any one-time gains related to
the Borrower’s conversion from cash basis to accrual basis accounting method, (d) Management
Fees to the extent permitted by Section 8.12(b) hereof paid during
such period and (e) payments permitted by Section 8.12(c) hereof
made during such period; provided that
for any Test Period ending on or prior to the first anniversary of the Closing
Date, the amounts set forth in clauses (a), (b), (c), (d) and (e) above
shall be equal to the product of (x) the amounts set forth in
clauses (a), (b), (c), (d) and (e) above, respectively, for the
period from and after the Closing Date to and including the last day of such
Test Period times (y) a fraction, the numerator of which is 365 and the
denominator of which is the number of days elapsed from and including the
Closing Date to and including the last day of such Test Period.


 


“Foreign Subsidiary” means each Subsidiary which (a) is organized
under the laws of a jurisdiction other than the United States of America or any
state thereof or the District of Columbia, (b) conducts substantially all
of its business outside of the United States of America, and (c) has
substantially all of its assets outside of the United States of America.


 


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


 


“Funds Transfer and Deposit Account Liability” means the liability of the Borrower or
any Guarantor owing to any of the Lenders, or any Affiliates of such Lenders,
arising out of (a) the execution or processing of electronic transfers of
funds by automatic clearing house transfer, wire transfer or otherwise to or
from deposit accounts of the Borrower and/or any Guarantor now or hereafter
maintained with any of the Lenders or their Affiliates, (b) the acceptance
for deposit or the honoring for payment of any check, draft or other item with
respect to any such deposit accounts, and (c) any other deposit,
disbursement, and cash management services afforded to the Borrower or any
Guarantor by any of such Lenders or their Affiliates.


 


“GAAP” means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the circumstances as of
the date of determination.


 


“Great Hill” means Great Hill Equity Partners III, L.P., a Delaware
limited partnership and its Affiliates .


 


28

















 


“Guarantor” and “Guarantors”
each is defined in Section 4.1 hereof.


 


“Guaranty” and “Guaranties”
each is defined in Section 4.1 hereof.


 


“Hazardous Material” means any substance, chemical, compound,
product, solid, gas, liquid, waste, byproduct, pollutant, contaminant or
material which is hazardous or toxic, and includes, without limitation, (a) asbestos,
polychlorinated biphenyls and petroleum (including crude oil or any fraction
thereof) and (b) any material classified or regulated as “hazardous” or “toxic”
or words of like import pursuant to an Environmental Law.


 


“Hazardous Material Activity” means any activity, event or occurrence
involving a Hazardous Material, including, without limitation, the manufacture,
possession, presence, use, generation, transportation, treatment, storage,
disposal, Release, threatened Release, abatement, removal, remediation,
handling of or corrective or response action to any Hazardous Material.


 


“Hedging Liability” means the liability of the Borrower or any Guarantor  to any of the Lenders, or any Affiliates of such Lenders,
in respect of any interest rate, foreign currency, and/or commodity swap,
exchange, cap, collar, floor, forward, future or option agreement, or any other
similar interest rate, currency or commodity hedging arrangement, as the
Borrower or such Guarantor, as the case may be, may from time to time enter
into with any one or more of the Lenders party to this Agreement or their
Affiliates.


 


“Hostile Acquisition” means the acquisition of the capital
stock or other equity interests of a Person through a tender offer or similar
solicitation of the owners of such capital stock or other equity interests
which has not been approved (prior to such acquisition) by resolutions of the
Board of Directors of such Person or by similar action if such Person is not a
corporation, or as to which such approval has been withdrawn.


 


“Indebtedness for Borrowed Money” means for any Person (without
duplication) (a) all indebtedness created, assumed or incurred in any
manner by such Person representing money borrowed (including by the issuance of
debt securities), (b) all indebtedness for the deferred purchase price of
property or services (other than trade accounts payable arising in the ordinary
course of business which are not more than ninety (90) days past due), (c) all
indebtedness secured by any Lien upon Property of such Person, whether or not
such Person has assumed or become liable for the payment of such indebtedness, (d) all
Capitalized Lease Obligations of such Person, and (e) all obligations of
such Person on or with respect to letters of credit, bankers’ acceptances and
other extensions of credit whether or not representing obligations for borrowed
money.


 


“Initial Acquired Business” means Smart Business Advisory and
Consulting LLC, a Delaware limited liability company.


 


“Initial Acquisition” means the acquisition by the Borrower of
the Acquired Business pursuant to the Initial 
Acquisition Agreement.


 


29

















 


“Initial Acquisition Agreement” means that certain Asset Purchase
Agreement dated as of May 15, 2007, by and among the Parent, Smart
Business Advisory and Consulting, LLC and the Members of Smart Business
Advisory and Consulting, LLC.


 


“Interest Expense” means, with reference to any period, the sum of all
interest charges (including imputed interest charges with respect to
Capitalized Lease Obligations and all amortization of debt discount and
expense) of the Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.


 


“Interest Period” is defined in Section 1.7 hereof.


 


“L/C Issuer” means the Administrative Agent, or any other Lender requested
by the Borrower and approved by the Administrative Agent in its sole discretion
with respect to any Letter of Credit.


 


“L/C Obligations” means the aggregate undrawn face amounts of all
outstanding Letters of Credit and all unpaid Reimbursement Obligations.


 


“L/C Sublimit” means $10,000,000, as reduced pursuant to the terms
hereof.


 


“Legal Requirement” means any treaty, convention, statute, law,
regulation, ordinance, license, permit, governmental approval, injunction,
judgment, order, consent decree or other requirement of any governmental
authority, whether federal, state, or local.


 


“Lenders” means and includes BMO Capital Markets Financing, Inc.
and the other financial institutions from time to time party to this Agreement,
including each assignee Lender pursuant to Section 13.12 hereof.


 


“Lending Office” is defined in Section 10.4 hereof.


 


“Letter of Credit” is defined in Section 1.3(a) hereof.


 


“Leverage Trigger Date” means the earlier of (i) June 30,
2009 and (ii) the date upon which the Borrower maintains the Total Funded
Debt/EBITDA Ratio at or above 4.00 to 1.0 for three consecutive fiscal
quarters.


 


“LIBOR” is defined in Section 1.4(b) hereof.


 


“Lien” means any mortgage, lien, security interest, pledge,
charge or encumbrance of any kind in respect of any Property, including the
interests of a vendor or lessor under any conditional sale, Capital Lease or
other title retention arrangement.


 


“Loan” means any Revolving Loan, Swing Loan or Term B
Loan, whether outstanding as a Base Rate Loan or Eurodollar Loan or otherwise,
each of which is a “type” of Loan
hereunder.


 


30
















 


“Loan Documents” means this Agreement, the Notes (if any), the
Applications, the Collateral Documents, the Guaranties, and each other
instrument or document to be delivered hereunder or thereunder or otherwise in
connection therewith.


 


“Management Fees” means all fees, charges and other amounts (including
without limitation salaries and any other compensation such as bonuses,
pensions and profit sharing payments) due and to become due to Great Hill or
any of its Affiliates in consideration for, directly or indirectly, management,
consulting or similar services, but excluding reimbursement of out-of-pocket
expenses.


 


“Material Adverse Effect” means (a) a material adverse change
in, or material adverse effect upon, the business, results of operations or
financial condition of the Borrower or of the Parent and its Subsidiaries taken
as a whole, (b) a material impairment of the ability of the Borrower or
any Guarantor to perform its obligations under the Loan Documents or (c) a
material adverse effect upon (i) the legality, validity, binding effect or
enforceability against the Borrower or any Guarantors of the Loan Documents or
the rights and remedies of the Administrative Agent and the Lenders thereunder
or (ii) the perfection or priority of the Liens granted under the
Collateral Documents.


 


“Moody’s” means Moody’s Investors Service, Inc.


 


“Mortgages” means, collectively, any mortgages or deeds of trust
delivered to the Administrative Agent pursuant to Section 4.3 hereof, as
the same may be amended, modified, supplemented or restated from time to time.


 


“Net Cash Proceeds” means, as applicable, (a) with respect to any
Disposition by a Person, cash and cash equivalent proceeds received by or for
such Person’s account, net of (i) reasonable direct costs relating to such
Disposition and (ii) sale, use or other transactional taxes paid or
payable by such Person as a direct result of such Disposition, (b) with
respect to any Event of Loss of a Person, 
cash and cash equivalent proceeds received by or for such Person’s account
(whether as a result of payments made under any applicable insurance policy
therefor or in connection with condemnation proceedings or otherwise), net of
reasonable direct costs incurred in connection with the collection of such
proceeds, awards or other payments, and (c) with respect to any offering
of equity securities of a Person or the issuance of any Indebtedness for
Borrowed Money by a Person,  cash and
cash equivalent proceeds received by or for such Person’s account, net of
reasonable legal, underwriting, and other fees and expenses incurred as a
direct result thereof.


 


“Net Income” means, with reference to any period, the net income
(or net loss) of the Borrower and its Subsidiaries for such period computed on
a consolidated basis in accordance with GAAP; provided
that there shall be excluded from Net Income (a) the net income (or net
loss) of any Person accrued prior to the date it becomes a Subsidiary of, or
has merged into or consolidated with, the Borrower or another Subsidiary, and (b) the
net income (or net loss) of any Person (other than a Subsidiary) in which the
Borrower or any of its Subsidiaries has a equity interest in, except to the
extent of the amount of dividends or other distributions actually paid to the
Borrower or any of its Subsidiaries during such period.


 


31

















 


“Note” and “Notes” each is
defined in Section 1.11 hereof.


 


“Obligations” means all obligations of the Borrower to pay
principal and interest on the Loans, all Reimbursement Obligations owing under
the Applications, all fees and charges payable hereunder, and all other payment
obligations of the Borrower or any of its Subsidiaries arising under or in
relation to any Loan Document, in each case whether now existing or hereafter
arising, due or to become due, direct or indirect, absolute or contingent, and
howsoever evidenced, held or acquired.


 


“Parent” is defined in the introductory paragraph hereof.


 


“Parent Subordinated Notes” means the 5% Subordinated Notes in the aggregate
original principal amount of $2,132,044 issued by the Parent as of the Closing
Date pursuant to the Initial Acquisition Agreement.


 


“Participating Interest” is defined in Section 1.3(d) hereof.


 


“Participating Lender” is defined in Section 1.3(d) hereof.


 


“PBGC” means the Pension Benefit Guaranty Corporation or any
Person succeeding to any or all of its functions under ERISA.


 


“Percentage” means for any Lender its Revolver Percentage or
Term B Loan Percentage, as applicable; and where the term “Percentage” is applied on an aggregate basis (including,
without limitation, Section 11.6 hereof), such aggregate percentage shall
be calculated by aggregating the separate components of the Revolver Percentage
and Term B Loan Percentage, and expressing such components on a single
percentage basis.


 


“Permitted
Acquisition”
means any Acquisition with respect to which all of the following conditions
shall have been satisfied:


 


(a)          the Acquired Business is in an
Eligible Line of Business and has its primary operations within the United
States of America, Canada or the United Kingdom;


 


(b)         the Acquisition shall not be a Hostile
Acquisition;


 


(c)          the financial statements of the
Acquired Business shall have been audited by a nationally recognized accounting
firm or such financial statements shall have undergone review, compilation or
other financial analysis of a scope reasonably satisfactory to the
Administrative Agent and the Administrative Agent shall have been provided
copies of the Borrower’s internal due diligence materials with respect to such
Acquisition, provided, that if the Total
Consideration for the Acquired Business exceeds $10,000,000, a third party
quality of earnings report (in form and substance reasonably acceptable to the
Administrative Agent) must have been completed by a firm that is reasonably
satisfactory to the Administrative Agent;


 


32

















 


(d)         the Borrower shall have notified the
Administrative Agent and Lenders not less than 10 Business Days prior to any
such Acquisition and furnished to the Administrative Agent and Lenders the
financial statements and other materials described in clause (c) above;


 


(e)          if a new Subsidiary is formed or
acquired as a result of or in connection with the Acquisition, the Borrower
shall have complied with the requirements of Section 4 hereof in
connection therewith;


 


(f)         after giving effect to the Acquisition
and any Credit Event in connection therewith, (i) no Default or Event of
Default shall exist, including with respect to the financial covenants
contained in Section 8.22 hereof on a pro forma basis and (ii) the
Borrower’s pro forma Total Funded Debt/EBITDA Ratio does not exceed the Total
Funded Debt/EBITDA Ratio set forth in Section 8.22(a) hereof for the
respective period minus 0.25 to 1.00; and


 


(g)         the Administrative Agent shall have
received reasonably satisfactory evidence that EBITDA of the Acquired Business
for the most recently completed twelve calendar month period was greater than
$0.


 


“Person” means an individual, partnership, corporation,
limited liability company, association, trust, unincorporated organization or
any other entity or organization, including a government or agency or political
subdivision thereof.


 


“Plan” means any employee pension benefit plan covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code that either (a) is maintained by a member of the Controlled
Group for employees of a member of the Controlled Group or (b) is
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding five plan years made
contributions.


 


“Premises” means the real property owned or leased by the
Borrower or any Subsidiary, including without limitation the real property and
improvements thereon owned by the Borrower or any Subsidiary subject to the
Lien of the Mortgages or any other Collateral Documents.


 


“Property” means, as to any Person, all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent balance sheet of such Person and its subsidiaries
under GAAP.


 


“RCRA” means the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste
Amendments of 1984, 42 U.S.C. §§6901 et seq., and any future amendments.


 


“Reimbursement Obligation” is defined in Section 1.3(c) hereof.


 


33

















 


“Release” means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, migration,
dumping, or disposing into the indoor or outdoor environment, including,
without limitation, the abandonment or discarding of barrels, drums,
containers, tanks or other receptacles containing or previously containing any
Hazardous Material.


 


“Required Lenders” means, as of the date of determination thereof,
Lenders whose outstanding Loans and interests in Letters of Credit and Unused
Revolving Credit Commitments constitute more than 50% of the sum of the total
outstanding Loans, interests in Letters of Credit, and Unused Revolving Credit
Commitments of the Lenders.


 


“Restricted Cash” means cash reserved by the Borrower for payment or
satisfaction of Assumed Liabilities.


 


“Revolver Percentage” means, for each Lender, the percentage
of the Revolving Credit Commitments represented by such Lender’s Revolving
Credit Commitment or, if the Revolving Credit Commitments have been terminated,
the percentage held by such Lender (including through participation interests
in Reimbursement Obligations) of the aggregate principal amount of all Revolving
Loans and L/C Obligations then outstanding.


 


“Revolving Credit” means the credit facility for making Revolving Loans
and issuing Letters of Credit described in Sections 1.2 and 1.3 hereof.


 


“Revolving Credit Commitment” means, as to any Lender, the obligation
of such Lender to make Revolving Loans and to participate in Swing Loans and
Letters of Credit issued for the account of the Borrower hereunder in an
aggregate principal or face amount at any one time outstanding not to exceed
the amount set forth opposite such Lender’s name on Schedule 1 attached
hereto and made a part hereof, as the same may be reduced or modified at any
time or from time to time pursuant to the terms hereof.  The Borrower and the Lenders acknowledge and
agree that the Revolving Credit Commitments of the Lenders aggregate
$20,000,000 on the date hereof.


 


“Revolving Credit Termination Date” means May 15, 2013, or such earlier
date on which the Revolving Credit Commitments are terminated in whole pursuant
to Section 1.13, 9.2 or 9.3 hereof.


 


“Revolving Loan” is defined in Section 1.2 hereof and, as so
defined, includes a Base Rate Loan or a Eurodollar Loan, each of which is a “type” of Revolving Loan hereunder.


 


“Revolving Note” is defined in Section 1.11 hereof.


 


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


 


34

















 


“Security Agreement” means that certain Security Agreement dated the date
of this Agreement among the Borrower and the Guarantors and the Administrative
Agent, as the same may be amended, modified, supplemented or restated from time
to time.


 


“Subordinated Debt” means Indebtedness for Borrowed Money which is
subordinated in right of payment to the prior payment of the Obligations,
Hedging Liability, and Funds Transfer and Deposit Account Liability pursuant to
subordination provisions approved in writing by the Administrative Agent and is
otherwise pursuant to documentation that is, which is in an amount that is, and
which contains interest rates, payment terms, maturities, amortization
schedules, covenants, defaults, remedies and other material terms that are in
form and substance, in each case reasonably satisfactory to the Administrative
Agent.


 


“Subsidiary” means, as to any particular parent corporation or
organization, any other corporation or organization more than 50% of the
outstanding Voting Stock of which is at the time directly or indirectly owned
by such parent corporation or organization or by any one or more other entities
which are themselves subsidiaries of such parent corporation or
organization.  Unless otherwise expressly
noted herein, the term “Subsidiary”
means a Subsidiary of the Borrower or of any of its direct or indirect
Subsidiaries.


 


“Swing Line” means the credit facility for making one or more Swing
Loans described in Section 1.15 hereof.


 


“Swing Line Lender” means BMO Capital Markets Financing, Inc.


 


“Swing Line Sublimit” means $2,000,000, as reduced pursuant to
the terms hereof.


 


“Swing Loan” and “Swing Loans”
each is defined in Section 1.15 hereof.


 


“Swing Note” is defined in Section 1.11 hereof.


 


“Target” shall mean Smart Business Advisory and Consulting,
LLC, a Delaware limited liability company.


 


“Tax Distributions” is defined in Section 8.12(d) hereof.


 


“Term B Credit” means the credit facility for the
Term B Loans described in Section 1.1(b) hereof.


 


“Term B Loan” is defined in Section 1.1(b) hereof and, as
so defined, includes a Base Rate Loan or a Eurodollar Loan, each of which is a “type” of Term B Loan hereunder.


 


“Term B Loan Commitment” means, as to any Lender, the obligation
of such Lender to make its Term B Loan on the Closing Date in the
principal amount not to exceed the amount set forth opposite such Lender’s name
on Schedule 1 attached hereto and made a part hereof.  The Borrower and the Lenders acknowledge and
agree that the Term B Loan Commitments of the Lenders aggregate
$45,000,000 on the date hereof.


 


35

















 


“Term B Loan Percentage” means, for each Lender, the percentage
of the Term B Loan Commitments represented by such Lender’s Term B
Loan Commitment or, if the Term B Loan Commitments have been terminated or
have expired, the percentage held by such Lender of the aggregate principal amount
of all Term B Loans then outstanding.


 


“Term B Note” is defined in Section 1.11 hereof.


 


“Total Consideration” means, with respect to an Acquisition,
the sum (but without duplication) of (a) cash paid in connection with any
Acquisition, (b) indebtedness payable to the seller in connection with
such Acquisition, (c) the fair market value of any equity securities,
including any warrants or options therefor, delivered in connection with any
Acquisition, (d) the present value of covenants not to compete entered
into in connection with such Acquisition or other future payments which are
required to be made over a period of time and are not contingent upon the
Borrower or its Subsidiary meeting financial performance objectives (exclusive
of salaries paid in the ordinary course of business) (discounted at the Base
Rate), but only to the extent not included in clause (a), (b) or (c) above,
and (e) the amount of indebtedness assumed in connection with such
Acquisition.


 


“Total Funded Debt” means, at any time the same is to be determined, the
sum (but without duplication) of (a) all Indebtedness for Borrowed Money
of the Borrower and its Subsidiaries at such time other than the Indebtedness
evidenced by the Parent Subordinated Notes, and (b) all Indebtedness for
Borrowed Money of any other Person which is directly or indirectly guaranteed
by the Borrower or any of its Subsidiaries or which the Borrower or any of its
Subsidiaries has agreed (contingently or otherwise) to purchase or otherwise
acquire or in respect of which the Borrower or any of its Subsidiaries has
otherwise assured a creditor against loss.


 


“Total Funded Debt/EBITDA Ratio” means, as of the last day of any fiscal
quarter of the Borrower, the ratio of Total Funded Debt of the Borrower and its
Subsidiaries as of the last day of such fiscal quarter to EBITDA of the
Borrower and its Subsidiaries for the period of four fiscal quarters then
ended.


 


“Unfunded Vested Liabilities”  means, for any Plan at any time, the
amount (if any) by which the present value of all vested nonforfeitable accrued
benefits under such Plan exceeds the fair market value of all Plan assets
allocable to such benefits, all determined as of the then most recent valuation
date for such Plan, but only to the extent that such excess represents a
potential liability of a member of the Controlled Group to the PBGC or the Plan
under Title IV of ERISA.


 


“Unused Revolving Credit Commitments” means, at any time, the difference
between the Revolving Credit Commitments then in effect and the aggregate
outstanding principal amount of Revolving Loans, Swing Loans and L/C
Obligations, provided that Swing Loans
outstanding from time to time shall not reduce the Unused Revolving Credit
Commitment of the Swing Line Lender for purposes of computing the commitment
fee under Section 2.1(a) hereof.


 


“U.S. Dollars” and “$” each means
the lawful currency of the United States of America.


 


36

















 


“Voting Stock” of any Person means capital stock or other equity
interests of any class or classes (however designated) having ordinary power
for the election of directors or other similar governing body of such Person,
other than stock or other equity interests having such power only by reason of
the happening of a contingency.


 


“Welfare Plan” means a “welfare plan” as defined in Section 3(1) of
ERISA.


 


“Wholly-owned Subsidiary” means a Subsidiary of which all of the
issued and outstanding shares of capital stock (other than directors’
qualifying shares as required by law) or other equity interests are owned by
the Borrower and/or one or more Wholly-owned Subsidiaries within the meaning of
this definition.


 


Section 5.2.              Interpretation.  The
foregoing definitions are equally applicable to both the singular and plural
forms of the terms defined.  The words “hereof”, “herein”, and “hereunder” and words of like import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement.  All
references to time of day herein are references to Chicago, Illinois, time
unless otherwise specifically provided. 
Where the character or amount of any asset or liability or item of
income or expense is required to be determined or any consolidation or other
accounting computation is required to be made for the purposes of this
Agreement, it shall be done in accordance with GAAP except where such
principles are inconsistent with the specific provisions of this Agreement.


 


Section 5.3.              Change in Accounting Principles. 
If, after the date of this Agreement, there shall occur any change in
GAAP from those used in the preparation of the financial statements referred to
in Section 6.5 hereof and such change shall result in a change in the
method of calculation of any financial covenant, standard or term found in this
Agreement, either the Borrower or the Required Lenders may by notice to the
Lenders and the Borrower, respectively, require that the Lenders and the
Borrower negotiate in good faith to amend such covenants, standards, and terms
so as equitably to reflect such change in accounting principles, with the
desired result being that the criteria for evaluating the financial condition
of the Borrower and its Subsidiaries shall be the same as if such change had
not been made.  No delay by the Borrower
or the Required Lenders in requiring such negotiation shall limit their right
to so require such a negotiation at any time after such a change in accounting
principles.  Until any such covenant,
standard, or term is amended in accordance with this Section 5.3,
financial covenants shall be computed and determined in accordance with GAAP in
effect prior to such change in accounting principles.  Without limiting the generality of the
foregoing, the Borrower shall neither be deemed to be in compliance with any
financial covenant hereunder nor out of compliance with any financial covenant
hereunder if such state of compliance or noncompliance, as the case may be,
would not exist but for the occurrence of a change in accounting principles
after the date hereof.


 


37

















 


SECTION 6.                                                 REPRESENTATIONS
AND WARRANTIES.


 


Each of the Parent and
the Borrower represents and warrants to the Administrative Agent and the
Lenders as follows:


 


Section 6.1.              Organization and Qualification. 
The Borrower is duly organized, validly existing, and in good standing
as a limited liability company under the laws of the State of Delaware, has
full and adequate power to own its Property and conduct its business as now
conducted, and, immediately after the closing of the Initial Acquisition shall
be  duly licensed or qualified and in
good standing in each jurisdiction in which the nature of the business
conducted by it or the nature of the Property owned or leased by it requires
such licensing or qualifying, except where the failure to do so would not have
a Material Adverse Effect.


 


Section 6.2.              Parent and Subsidiaries. 
The Parent and each Subsidiary is duly organized, validly existing, and
in good standing under the laws of the jurisdiction in which it is organized,
has full and adequate power to own its Property and conduct its business as now
conducted, and is duly licensed or qualified and in good standing in each
jurisdiction in which the nature of the business conducted by it or the nature of
the Property owned or leased by it requires such licensing or qualifying,
except where the failure to do so would not have a Material Adverse
Effect.  Schedule 6.2 hereto
identifies each Subsidiary, the jurisdiction of its organization, the
percentage of issued and outstanding shares of each class of its capital stock
or other equity interests owned by the Parent, the Borrower and the other
Subsidiaries and, if such percentage is not 100% (excluding directors’
qualifying shares as required by law), a description of each class of its
authorized capital stock and other equity interests and the number of shares of
each class issued and outstanding.  All
of the outstanding shares of capital stock and other equity interests of each
Subsidiary are validly issued and outstanding and fully paid and nonassessable
and all such shares and other equity interests indicated on Schedule 6.2
as owned by the Parent, the Borrower or another Subsidiary are owned,
beneficially and of record, by the Parent, the Borrower or such Subsidiary free
and clear of all Liens other than the Liens granted in favor of the
Administrative Agent pursuant to the Collateral Documents.  There are no outstanding commitments or other
obligations of any Subsidiary to issue, and no options, warrants or other
rights of any Person to acquire, any shares of any class of capital stock or
other equity interests of any Subsidiary.


 


Section 6.3.              Authority and Validity of
Obligations.  The Borrower has full right and authority to
enter into this Agreement and the other Loan Documents executed by it, to make
the borrowings herein provided for, to grant to the Administrative Agent the
Liens described in the Collateral Documents executed by the Borrower, and to
perform all of its obligations hereunder and under the other Loan Documents
executed by it.  Each Guarantor has full
right and authority to enter into the Loan Documents executed by it, to
guarantee the Obligations, Hedging Liability, and Funds Transfer and Deposit
Account Liability, to grant to the Administrative Agent the Liens described in
the Collateral Documents executed by such Person, and to perform all of its
obligations under the Loan Documents executed by it.  The Loan Documents delivered by the Borrower
and each Guarantor have been duly authorized, executed, and delivered by such
Persons and constitute valid and binding obligations of the Borrower and each
Guarantor enforceable against them in accordance with their terms, except as
enforceability may be limited


 


38

















 


by bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors’ rights
generally and general principles of equity (regardless of whether the
application of such principles is considered in a proceeding in equity or at law);
and this Agreement and the other Loan Documents do not, nor does the
performance or observance by the Borrower or any Guarantor of any of the
matters and things herein or therein provided for, (a) contravene or
constitute a default under any provision of law or any judgment, injunction,
order or decree binding upon the Borrower or any Guarantor or any provision of
the organizational documents (e.g., charter,
certificate or articles of incorporation and by-laws, certificate or articles
of association and operating agreement, partnership agreement, or other similar
organizational documents) of the Borrower or any Guarantor, (b) contravene
or constitute a default under any covenant, indenture or agreement of or
affecting the Borrower or any Guarantor or any of their Property, in each case
where such contravention or default, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, or (c) result in
the creation or imposition of any Lien on any Property of the Borrower or any
Guarantor other than the Liens granted in favor of the Administrative Agent
pursuant to the Collateral Documents.


 


Section 6.4.              Use of Proceeds; Margin Stock. 
The Borrower shall use the proceeds of the Loans to (i) make
distributions and/or loans to the Parent to finance the acquisition of
substantially all of the assets of the Initial Acquired Business, (ii) refinance
existing indebtedness, (iii) finance Capital Expenditures, working capital
and Permitted Acquisitions and (iv) for its general working capital
purposes and for such other legal and proper purposes as are consistent with
all applicable laws and to fund certain fees and expenses in connection with
the closing of the transactions contemplated by this Agreement.  Neither the Borrower nor any Subsidiary is
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System), and no part of the proceeds of any
Loan or any other extension of credit made hereunder will be used to purchase
or carry any such margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock. 
Margin stock (as hereinabove defined) constitutes less than 25% of the
assets of the Borrower and its Subsidiaries which are subject to any limitation
on sale, pledge or other restriction hereunder.


 


Section 6.5.              Financial Reports.  (a) Complete
and accurate copies of (i) the Due Diligence Report dated March 1,
2007 (the “E&Y Report”) prepared by Ernst &
Young and (ii) the unaudited balance sheets and statements of income,
retained earnings and cash flows of the Target and its respective Subsidiaries,
on a consolidated basis, as of and for the calendar year to date period ended
on the last day of the most recent calendar month ended more than 30 days prior
to the Closing Date (the “Target’s Interim
Statements”), have been delivered to the Administrative Agent and
the Lenders.  To the best of the Borrower’s
knowledge, the Target’s Interim Statements are complete and correct in all
material respects, and present fairly the consolidated financial position of
the Target and its Subsidiaries as at said dates and the consolidated results
of operations and cash flow of the Target and its Subsidiaries for the period
covered by such statements in accordance with GAAP except as set forth on
Schedule 6.5 hereto.  To the best of the
Borrower’s knowledge, neither the Target nor any of its Subsidiaries have any
contingent liabilities which are material to it other than as indicated on such
financial statements.


 


39

















 


(b)             Except as set forth on Schedule 6.5
hereto, none of the Parent, the Borrower nor any Subsidiary has contingent
liabilities which are material to it other than as indicated on such financial
statements or, with respect to future periods, on the financial statements
furnished pursuant to Section 8.5 hereof.


 


Section 6.6.              No Material Adverse Change.  Since March 1, 2007, or the date of the most
recent audited financial statements delivered pursuant to Section 8.5(h) hereof
(whichever is later), there has been no change in the condition (financial or
otherwise) or business prospects of the Parent, the Borrower or any Subsidiary
except those occurring in the ordinary course of business, none of which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect.


 


Section 6.7.              Full Disclosure. 
The statements and information furnished to the Administrative Agent and
the Lenders in connection with the negotiation of this Agreement and the other
Loan Documents and the commitments by the Lenders to provide all or part of the
financing contemplated hereby do not contain any untrue statements of a material
fact or omit a material fact necessary to make the material statements
contained herein or therein not misleading, the Administrative Agent and the
Lenders acknowledging that as to any projections furnished to the
Administrative Agent and the Lenders, the Borrower only represents that the
same were prepared on the basis of information and estimates the Borrower
believed to be reasonable.


 


Section 6.8.              Trademarks, Franchises, and
Licenses.  The Parent, the Borrower and their
Subsidiaries own, possess, or have the right to use all material patents,
licenses, franchises, trademarks, trade names, trade styles, copyrights, trade
secrets, know how, and confidential commercial and proprietary information to
conduct their businesses as now conducted, without known conflict in any
material respect with any patent, license, franchise, trademark, trade name,
trade style, copyright or other proprietary right of any other Person.


 


Section 6.9.              Governmental Authority and
Licensing.  The Parent, the Borrower and their Subsidiaries
have received all licenses, permits, and approvals of all federal, state, and
local governmental authorities, if any, necessary to conduct their businesses,
in each case where the failure to obtain or maintain the same could reasonably
be expected to have a Material Adverse Effect. 
No investigation or proceeding which, if adversely determined, could
reasonably be expected to result in revocation or denial of any material
license, permit or approval is pending or, to the knowledge of the Parent or
the Borrower, threatened.


 


Section 6.10.               Good Title. 
Except as set forth on Schedule 6.10 hereto, the Parent, the Borrower
and their Subsidiaries have good and defensible title (or valid leasehold
interests) to their assets as reflected on the most recent consolidated balance
sheet of the Parent, the Borrower and their Subsidiaries furnished to the
Administrative Agent and the Lenders (except for sales of assets in the
ordinary course of business), subject to no Liens other than such thereof as
are permitted by Section 8.8 hereof.


 


Section 6.11.               Litigation and Other
Controversies.  Except as set forth on Schedule 6.11 hereto,
there is no litigation or governmental or arbitration proceeding or labor
controversy


 


40
















 


pending, nor to the
knowledge of the Parent or the Borrower threatened, against the Parent, the
Borrower or any Subsidiary or any of their Property which if adversely
determined, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.


 


Section 6.12.               Taxes. 
All tax returns required to be filed by the Parent, the Borrower or any
Subsidiary in any jurisdiction have, in fact, been filed, and all taxes,
assessments, fees, and other governmental charges upon the Parent, the Borrower
or any Subsidiary or upon any of its Property, income or franchises, which are
shown to be due and payable in such returns, have been paid, except such taxes,
assessments, fees and governmental charges, if any, as are being contested in
good faith and by appropriate proceedings which prevent enforcement of the
matter under contest and as to which adequate reserves established in
accordance with GAAP have been provided. 
Neither the Parent nor the Borrower knows of any proposed additional tax
assessment against it or its Subsidiaries for which adequate provisions in
accordance with GAAP have not been made on their accounts.  Adequate provisions in accordance with GAAP
for taxes on the books of the Parent, the Borrower and each Subsidiary have been
made for all open years, and for its current fiscal period.


 


Section 6.13.               Approvals. 
No authorization, consent, license or exemption from, or filing or
registration with, any court or governmental department, agency or
instrumentality, nor any approval or consent of any other Person, is or will be
necessary to the valid execution, delivery or performance by the Parent, the
Borrower or any Subsidiary of any Loan Document, except for such approvals
which have been obtained prior to the date of this Agreement and remain in full
force and effect.


 


Section 6.14.               Affiliate Transactions. 
Except as pursuant to the Management Agreement or as set forth on
Schedule 6.14 hereto, none of the Parent, the Borrower nor any Subsidiary is a
party to any contracts or agreements with any of its Affiliates (other than
with Wholly-owned Subsidiaries) on terms and conditions which are less
favorable to the Parent, the Borrower or such Subsidiary than would be usual
and customary in similar contracts or agreements between Persons not affiliated
with each other.


 


Section 6.15.               Investment Company. 
None of the Parent, the Borrower or any Subsidiary is an “investment
company” or a company “controlled” by an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.


 


Section 6.16.               ERISA. 
The Parent and each other member of its Controlled Group has fulfilled
its obligations under the minimum funding standards of and is in compliance in
all material respects with ERISA and the Code to the extent applicable to it
and has not incurred any liability to the PBGC or a Plan under Title IV of
ERISA other than a liability to the PBGC for premiums under Section 4007
of ERISA.  None of the Parent, the
Borrower or any Subsidiary has any contingent liabilities with respect to any
post-retirement benefits under a Welfare Plan, other than liability for
continuation coverage described in article 6 of Title I of ERISA.


 


Section 6.17.               Compliance with Laws. 
The Parent, the Borrower and their Subsidiaries are in compliance with
the requirements of all federal, state and local laws, rules and
regulations applicable to or pertaining to their Property or business
operations (including, without limitation,


 


41

















 


the Occupational Safety
and Health Act of 1970, the Americans with Disabilities Act of 1990, and laws
and regulations establishing quality criteria and standards for air, water,
land and toxic or hazardous wastes and substances), where any such
non-compliance, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect.  None
of the Parent, the Borrower or any Subsidiary has received written notice to
the effect that its operations are not in compliance with any of the
requirements of applicable federal, state or local environmental, health, and
safety statutes and regulations or is the subject of any governmental
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment,
where any such non-compliance or remedial action, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.


 


Section 6.18.               Reserved .


 


Section 6.19.               Solvency. 
The Parent, the Borrower and their Subsidiaries are solvent, able to pay
their debts as they become due, and have sufficient capital to carry on their
business and all businesses in which they are about to engage.


 


Section 6.20.               No Broker Fees. 
No broker’s or finder’s fee or commission will be payable with respect
hereto or any of the transactions contemplated hereby; and the Borrower hereby
agrees to indemnify the Administrative Agent and the Lenders against, and agree
that they will hold the Administrative Agent and the Lenders harmless from, any
claim, demand, or liability for any such broker’s or finder’s fees alleged to
have been incurred in connection herewith or therewith and any expenses
(including reasonable attorneys’ fees) arising in connection with any such
claim, demand, or liability.


 


Section 6.21.               No Default.  No Default or Event of Default has occurred and is
continuing.


 


Section 6.22.               Initial Acquisition Agreement. 
The Parent and the Borrower have provided to the Administrative Agent a
true and correct copy of the Initial Acquisition Agreement.  The Initial Acquisition Agreement is in full
force and effect and has not, except as reflected in amendments provided to the
Administrative Agent, been amended or modified in any material respect from the
version so delivered to the Administrative Agent, and no material condition to
the effectiveness thereof or the obligations of the Parent, the Borrower or the
sellers thereunder has been waived, except to the extent disclosed by the
Administrative Agent prior to the date hereof, and the Parent and the Borrower
are not aware of any default thereunder. 
No authorization, consent, license, or exemption from, or filing or
registration with, any court or governmental department, agency, or instrumentality,
nor any approval or consent of any other Person, is or will be necessary to the
valid execution, delivery, or performance by the Parent, the Borrower or the
sellers party thereto of the Initial Acquisition Agreement or of any other
instrument or document executed and delivered in connection therewith, except
for such thereof that have heretofore been obtained and remain in full force
and effect.


 


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SECTION 7.                                                 CONDITIONS
PRECEDENT.


 


The obligation of each Lender to advance, continue or
convert any Loan (other than the continuation of, or conversion into, a Base
Rate Loan) or of the L/C Issuer to issue, extend the expiration date (including
by not giving notice of non-renewal) of or increase the amount of any Letter of
Credit under this Agreement, shall be subject to the following conditions
precedent:


 


Section 7.1.              All Credit Events. 
At the time of each Credit Event hereunder:


 


(a)          each of the representations and
warranties set forth herein and in the other Loan Documents shall be and remain
true and correct in all material respects as of said time, except to the extent
the same expressly relate to an earlier date;


 


(b)         no Default or Event of Default shall
have occurred and be continuing or would occur as a result of such Credit Event;


 


(c)          in the case of a Borrowing the
Administrative Agent shall have received the notice required by Section 1.6
hereof, in the case of the issuance of any Letter of Credit the L/C Issuer
shall have received a duly completed Application for such Letter of Credit
together with any fees called for by Section 2.1 hereof, and, in the case
of an extension or increase in the amount of a Letter of Credit, a written
request therefor in a form reasonably acceptable to the L/C Issuer
together with fees called for by Section 2.1 hereof; and


 


(d)         such Credit Event shall not violate any
order, judgment or decree of any court or other authority or any provision of
law or regulation applicable to the Administrative Agent, the L/C Issuer,
or any Lender (including, without limitation, Regulation U of the Board of
Governors of the Federal Reserve System) as then in effect.


 


Each request for a Borrowing hereunder and each
request for the issuance of, increase in the amount of, or extension of the
expiration date of, a Letter of Credit shall be deemed to be a representation
and warranty by the Borrower on the date on such Credit Event as to the facts
specified in subsections (a) through (c), both inclusive, of this
Section.


 


Section 7.2.              Initial
Credit Event.  Before or concurrently with the initial
Credit Event:


 


(a)          the Administrative Agent shall have
received for each Lender this Agreement duly executed by the Borrower, the
Guarantors, and the Lenders;


 


(b)         the Administrative Agent shall have
received the Security Agreement duly executed by the Borrower and each
Guarantor, together with (i) original stock certificates or other similar
instruments or securities representing all of the issued and outstanding shares
of capital stock or other equity interests in the Borrower and each Subsidiary
(65% of such capital stock in the case of any Foreign Subsidiary as provided in
Section 4.2 hereof) as of the Closing Date, (ii) stock powers for the
Collateral consisting of the stock or other equity interest in the Borrower and
each Subsidiary executed in blank and


 


43

















 


undated, (iii) UCC
financing statements to be filed against the Parent, the Borrower and each
Subsidiary, as debtor, in favor of the Administrative Agent, as secured party, (iv) patent,
trademark, and copyright collateral agreements to the extent requested by the
Administrative Agent, and (v) deposit account, securities account, and
commodity account control agreements to the extent requested by the
Administrative Agent;


 


(c)          the Administrative Agent shall have
received evidence of insurance required to be maintained under the Loan
Documents, naming the Administrative Agent as mortgagee and loss payee;


 


(d)         the Administrative Agent shall have
received for each Lender copies of the Parent’s, the Borrower’s and each
Subsidiary’s certificates of incorporation and bylaws (or comparable
organizational documents) and any amendments thereto, certified in each
instance by its Secretary or Assistant Secretary;


 


(e)          the Administrative Agent shall have
received for each Lender copies of resolutions of the Parent’s, the Borrower’s
and each Subsidiary’s Board of Directors (or similar governing body)
authorizing the execution, delivery and performance of this Agreement and the
other Loan Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby, together with specimen signatures
of the persons authorized to execute such documents on the Parent’s, the
Borrower’s and each Subsidiary’s behalf, all certified in each instance by its
Secretary or Assistant Secretary;


 


(f)         the Administrative Agent shall have
received for each Lender copies of the certificates of good standing for the
Parent, the Borrower and each Subsidiary (dated no earlier than 30 days
prior to the date hereof) from the office of the secretary of the state of its
incorporation or organization and of each state in which it is qualified to do
business as a foreign corporation or organization;


 


(g)         the Administrative Agent shall have
received for each Lender a list of the Borrower’s Authorized Representatives;


 


(h)         the Administrative Agent shall have
received for itself and for the Lenders the initial fees called for by Section 2.1
hereof;


 


(i)         the corporate and capital structure of
the Parent, the Borrower and its Subsidiaries shall be substantially as
reflected in the March 23, 2007 draft of the Initial Acquisition Agreement
and the March 28, 2007 draft of the Stock Purchase Agreement between the
Borrower and the Investors party thereto (the “Stock
Purchase Agreement”);


 


(j)         the Administrative Agent shall have
received financing statement, tax, and judgment lien search results against the
Property of the Parent, the Borrower and each Subsidiary evidencing the absence
of Liens on its Property except as permitted by Section 8.8 hereof;


 


44

















 


(k)          the Administrative Agent shall have
received pay-off and lien release letters from secured creditors of the Initial
Acquired Business setting forth, among other things, the total amount of
indebtedness outstanding and owing to them (or outstanding letters of credit
issued for the account of the Borrower or any Subsidiary) and containing an
undertaking to cause to be delivered to the Administrative Agent UCC termination
statements and any other lien release instruments necessary to release their
Liens (except to the extent permitted by Section 8.8 hereof) on the assets
of the Borrower and each Subsidiary, which pay-off and lien release letters
shall be in form and substance reasonably acceptable to the Administrative
Agent;


 


(l)         the Administrative Agent shall have
received for each Lender the favorable written opinion of counsel to the
Parent, the Borrower and each Subsidiary, in form and substance reasonably satisfactory
to the Administrative Agent; and


 


(m)          the Administrative Agent shall have
received a Compliance Certificate evidencing that EBITDA of the Initial
Acquired Business for the twelve calendar month period ended March 31,
2007 was not less than $13,600,000;


 


(n)         the Administrative Agent shall have
received (i) historical unaudited financial statements (including an
income statement, balance sheet and cash flow statement) for the Initial
Acquired Business for each quarter of such entity ending during such entity’s
fiscal years 2004, 2005 and 2006, (ii) 5-year pro forma financial
forecasts for the Parent and its Subsidiaries on a consolidated basis and (iii) a
balance sheet of the Parent and its Subsidiaries after giving effect to the
initial Credit Event in form and substance reasonably satisfactory to the
Administrative Agent;


 


(o)         the Administrative Agent shall have
received copies of the fully-executed Initial Acquisition Agreement and Stock
Purchase Agreement, each substantially in the form of the March 23, 2007
draft thereof;


 


(p)         no material adverse change in the
business, financial condition, operations, performance or properties of the
Initial Acquired Business shall have occurred from that reflected in the
financial statements provided to the Administrative Agent and the Lenders for
period ended December 31, 2006, except for any changes or effects
resulting from (i) changes in general economic conditions and (ii) any
change in regulatory conditions or applicable laws, or the interpretation
thereof;


 


(q)         the Borrower shall have provided the
Administrative Agent reasonably satisfactory evidence that after giving effect
to any Revolving Loan made on the Closing Date, the Unused Revolving Credit
Commitment shall be at least $19,000,000;


 


(r)         the Administrative Agent shall have
received fully-executed copies of all employment contracts and non-compete
agreements, each substantially in the form of the March 28, 2007 draft
thereof;


 


45

















 


(s)         the representations and warranties of
the Parent contained in the Initial Acquisition Agreement, which are fully
incorporated herein by reference, shall be true and correct in all material
respects as of the date hereof; and


 


(t)         the Administrative Agent shall have
received for the account of the Lenders such other agreements, instruments,
documents, certificates, and opinions as the Administrative Agent may
reasonably request.


 


SECTION 8.                                                 COVENANTS.


 


Each of the Parent and the Borrower agrees that, so
long as any credit is available to or in use by the Borrower hereunder, except
to the extent compliance in any case or cases is waived in writing pursuant to
the terms of Section 13.13 hereof:


 


Section 8.1.              Maintenance of Business. 
Each of the Parent and the Borrower shall, and shall cause each
Subsidiary to, preserve and maintain its existence, except as otherwise
provided in Section 8.10(c) hereof. 
Each of the Parent and the Borrower shall, and shall cause each
Subsidiary to, preserve and keep in force and effect all licenses, permits,
franchises, approvals, patents, trademarks, trade names, trade styles,
copyrights, and other proprietary rights necessary to the proper conduct of its
business where the failure to do so could reasonably be expected to have a
Material Adverse Effect.


 


Section 8.2.              Maintenance of Properties. 
Each of the Parent and the Borrower shall, and shall cause each
Subsidiary to, maintain, preserve, and keep its property, plant, and equipment
in good repair, working order and condition (ordinary wear and tear excepted),
and shall from time to time make all needful and proper repairs, renewals,
replacements, additions, and betterments thereto so that at all times the
efficiency thereof shall be fully preserved and maintained, except to the
extent that, in the reasonable business judgment of such Person, any such
Property is no longer necessary for the proper conduct of the business of such
Person.


 


Section 8.3.              Taxes and Assessments. 
Each of the Parent and the Borrower shall duly pay and discharge, and
shall cause each Subsidiary to duly pay and discharge, all taxes, rates,
assessments, fees, and governmental charges upon or against it or its Property,
in each case before the same become delinquent and before penalties accrue
thereon, unless and to the extent that the same are being contested in good
faith and by appropriate proceedings which prevent enforcement of the matter
under contest and adequate reserves are provided therefor.


 


Section 8.4.              Insurance. 
Each of the Parent and the Borrower shall insure and keep insured, and
shall cause each Subsidiary to insure and keep insured, with good and
responsible insurance companies, all insurable Property owned by it which is of
a character usually insured by Persons similarly situated and operating like
Properties against loss or damage from such hazards and risks, and in such
amounts, as are insured by Persons similarly situated and operating like
Properties; and the Borrower shall insure, and shall cause each Subsidiary to
insure, such other hazards and risks (including, without limitation, employers’
and public liability risks) with good and responsible insurance companies as
and to the extent usually insured by Persons similarly situated and conducting
similar businesses.  Each of the Parent
and


 


46

















 


the Borrower shall in any
event maintain, and cause each Subsidiary to maintain, insurance on the
Collateral to the extent required by the Collateral Documents.  The Borrower shall, upon the request of the
Administrative Agent, furnish to the Administrative Agent and the Lenders a
certificate setting forth in summary form the nature and extent of the
insurance maintained pursuant to this Section.


 


Section 8.5.              Financial
Reports.  The Parent shall, and shall cause its Subsidiary
to, maintain a standard system of accounting in accordance with GAAP and shall
furnish to the Administrative Agent, each Lender and each of their duly
authorized representatives such information respecting the business and
financial condition of the Borrower and each Subsidiary as the Administrative
Agent or such Lender may reasonably request; and without any request, shall
furnish to the Administrative Agent and the Lenders:


 


(a)          as soon as available, and in any event
no later than 30 days after the last day of each calendar month (or, in
the case of December of each calendar year, no later than 60 days after
the last day of such calendar month), a copy of the consolidated balance sheet
of the Parent and its Subsidiaries as of the last day of such month and the
consolidated statements of income, retained earnings, and cash flows of each of
(x) the Parent and its Subsidiaries and (y) each Foreign Subsidiary
and its Subsidiaries for the month and for the fiscal year-to-date period then
ended, each in reasonable detail showing in comparative form the figures for
the corresponding date and period (i) in the previous fiscal year, and (ii) the
business plan of the Parent furnished to the Administrative Agent pursuant to Section 8.5(e) hereof
for such fiscal year, prepared by the Parent in accordance with GAAP (subject
to the absence of footnote disclosures and year-end audit adjustments) and
certified to by its chief financial officer or another officer of the Borrower
acceptable to the Administrative Agent;


 


(b)         as soon as available, and in any event
no later than 120 days after the last day of each fiscal year of the
Parent, a copy of the consolidated and consolidating balance sheet of the
Parent and its Subsidiaries as of the last day of the fiscal year then ended
and the consolidated and consolidating statements of income, retained earnings,
and cash flows of the Parent and its Subsidiaries for the fiscal year then
ended, and accompanying notes thereto, each in reasonable detail showing in
comparative form the figures for the previous fiscal year, accompanied in the
case of the consolidated financial statements by an unqualified opinion of a
firm of independent public accountants of recognized national standing,
selected by the Parent and reasonably satisfactory to the Administrative Agent,
to the effect that the consolidated financial statements have been prepared in
accordance with GAAP and present fairly in accordance with GAAP the
consolidated financial condition of the Parent and its Subsidiaries as of the
close of such fiscal year and the results of their operations and cash flows
for the fiscal year then ended and that an examination of such accounts in
connection with such financial statements has been made in accordance with
generally accepted auditing standards and, accordingly, such examination
included such tests of the accounting records and such other auditing
procedures as were considered necessary in the circumstances;


 


47

















 


(c)          promptly after receipt thereof, any
additional written reports, management letters or other detailed information
contained in writing concerning significant aspects of the Parent’s or any
Subsidiary’s operations and financial affairs given to it by its independent
public accountants;


 


(d)         promptly after receipt thereof, a copy
of each audit made by any governmental regulatory agency of the books and
records of the Parent or any Subsidiary or of notice of any material
noncompliance with any applicable law, regulation or guideline relating to the
Parent or any Subsidiary, or its business;


 


(e)          as soon as available, and in any event
no later than 45 days after the end of each fiscal year of the Parent, a copy
of the Parent’s consolidated and consolidating business plan for the following
fiscal year, such business plan to show the Parent’s projected consolidated and
consolidating revenues, expenses and balance sheet on a month-by-month basis,
such business plan to be in reasonable detail prepared by the Parent and in
form reasonably satisfactory to the Administrative Agent (which shall include a
summary of all assumptions made in preparing such business plan);


 


(f)         notice of any Change of Control;


 


(g)         promptly after knowledge thereof shall
have come to the attention of any responsible officer of the Parent or the
Borrower, written notice of (i) any threatened or pending litigation or
governmental or arbitration proceeding or labor controversy against the Parent,
the Borrower or any Subsidiary or any of their Property which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect or (ii) the
occurrence of any Default or Event of Default hereunder; and


 


(h)         as soon as available, and in no event
later than 45 days after the last day of each fiscal quarter, a written
certificate in the form attached hereto as Exhibit E (each, a “Compliance Certificate”) signed by the chief financial
officer of the Parent or another officer of the Parent acceptable to the
Administrative Agent to the effect that to the best of such officer’s knowledge
and belief no Default or Event of Default has occurred during the period
covered by such statements and is continuing or, if any such Default or Event
of Default has occurred during such period and is continuing, setting forth a description
of such Default or Event of Default and specifying the action, if any, taken by
the Borrower or any Subsidiary to remedy the same.  Such certificate shall also set forth the
calculations supporting such statements in respect of Section 8.22 hereof.


 


Section 8.6.              Inspection. 
Each of the Parent and the Borrower shall, and shall cause each
Subsidiary to, permit the Administrative Agent, and each of its duly authorized
representatives and agents to visit and inspect any of its Property, corporate
books, and financial records, to examine and make copies of its books of
accounts and other financial records, and to discuss its affairs, finances, and
accounts with, and to be advised as to the same by, its officers, employees and
independent public accountants (and by this provision the Borrower hereby
authorizes such accountants to discuss with the Administrative Agent the
finances and affairs of the Borrower and its Subsidiaries) at such reasonable
times and intervals as the Administrative Agent may


 


48

















 


designate and, so long as
no Default or Event of Default exists, with reasonable prior notice to the
Borrower; provided that prior to the occurrence of an Event of Default, the
Administrative Agent shall be limited to two such inspections per year.  Any lender or its representatives may
accompany the Administrative Agent on such visits and inspections.


 


Section 8.7.              Borrowings and Guaranties.  Neither the Parent nor the Borrower shall, nor
shall they permit any Subsidiary to, issue, incur, assume, create or have
outstanding any Indebtedness for Borrowed Money, or be or become liable as
endorser, guarantor, surety or otherwise for any debt, obligation or
undertaking of any other Person, or otherwise agree to provide funds for
payment of the obligations of another, or supply funds thereto or invest
therein or otherwise assure a creditor of another against loss, or apply for or
become liable to the issuer of a letter of credit which supports an obligation
of another, or subordinate any claim or demand it may have to the claim or
demand of any other Person; provided, however,
that the foregoing shall not restrict nor operate to prevent:


 


(a)          the Obligations, Hedging Liability,
and Funds Transfer and Deposit Account Liability of the Borrower and its
Subsidiaries owing to the Administrative Agent and the Lenders (and their
Affiliates);


 


(b)         purchase money indebtedness and
Capitalized Lease Obligations of the Borrower and its Subsidiaries in an amount
not to exceed $1,000,000 in the aggregate at any one time outstanding;


 


(c)          obligations of the Borrower or any
Guarantor arising out of interest rate, foreign currency, and commodity hedging
agreements entered into with financial institutions in the ordinary course of
business;


 


(d)         endorsement of items for deposit or
collection of commercial paper received in the ordinary course of business;


 


(e)          intercompany advances from time to
time owing by any Subsidiary to the Borrower or another Subsidiary or by the
Borrower to a Subsidiary in the ordinary course of business;


 


(f)         indebtedness assumed pursuant to the
Initial Acquisition Agreement and listed on Schedule 8.7 hereto;


 


(g)         the Parent Subordinated Notes and the
Borrower’s guaranty of the same; and


 


(h)         unsecured indebtedness of the Borrower
and its Subsidiaries not otherwise permitted by this Section in an amount
not to exceed $1,000,000 in the aggregate at any one time outstanding.


 


49

















 


Section 8.8.              Liens. 
Neither the Parent nor the Borrower shall, nor shall they permit any
Subsidiary to, create, incur or permit to exist any Lien of any kind on any
Property owned by any such Person; provided, however,
that the foregoing shall not apply to nor operate to prevent:


 


(a)          Liens arising by statute in connection
with worker’s compensation, unemployment insurance, old age benefits, social
security obligations, taxes, assessments, statutory obligations or other
similar charges (other than Liens arising under ERISA), good faith cash deposits
in connection with tenders, contracts or leases to which the Borrower or any
Subsidiary is a party or other cash deposits required to be made in the
ordinary course of business, provided in each case that the obligation is not
for borrowed money and that the obligation secured is not overdue or, if
overdue, is being contested in good faith by appropriate proceedings which
prevent enforcement of the matter under contest and adequate reserves have been
established therefor;


 


(b)         mechanics’, workmen’s, materialmen’s,
landlords’, carriers’ or other similar Liens arising in the ordinary course of
business with respect to obligations which are not due or which are being
contested in good faith by appropriate proceedings which prevent enforcement of
the matter under contest;


 


(c)          judgment liens and judicial attachment
liens not constituting an Event of Default under Section 9.1(g) hereof
and the pledge of assets for the purpose of securing an appeal, stay or
discharge in the course of any legal proceeding, provided that the aggregate
amount of such judgment liens and attachments and liabilities of the Parent,
the Borrower and its Subsidiaries secured by a pledge of assets permitted under
this subsection, including interest and penalties thereon, if any, shall not be
in excess of $500,000 at any one time outstanding;


 


(d)         Liens on equipment of the Parent, the
Borrower or any Subsidiary created solely for the purpose of securing
indebtedness permitted by Section 8.7(b) hereof, representing or
incurred to finance the purchase price of such Property, provided that no such
Lien shall extend to or cover other Property of the Borrower or such Subsidiary
other than the respective Property so acquired, and the principal amount of
indebtedness secured by any such Lien shall at no time exceed the purchase
price of such Property, as reduced by repayments of principal thereon;


 


(e)          any interest or title of a lessor
under any operating lease;


 


(f)         easements, rights-of-way, restrictions,
and other similar encumbrances against real property incurred in the ordinary
course of business which, in the aggregate, are not substantial in amount and
which do not materially detract from the value of the Property subject thereto
or materially interfere with the ordinary conduct of the business of the
Borrower or any Subsidiary; and


 


(g)         Liens granted in favor of the
Administrative Agent pursuant to the Collateral Documents.


 


50
















 


Section 8.9.              Investments,
Acquisitions, Loans and Advances.  Neither the
Parent nor the Borrower shall, nor shall they permit any Subsidiary to,
directly or indirectly, make, retain or have outstanding any investments
(whether through purchase of stock or obligations or otherwise) in, or loans or
advances to (other than for travel advances and other similar cash advances
made to employees in the ordinary course of business), any other Person, or
acquire all or any substantial part of the assets or business of any other
Person or division thereof; provided, however,
that the foregoing shall not apply to nor operate to prevent:


 


(a)          investments in direct obligations of
the United States of America or of any agency or instrumentality thereof whose
obligations constitute full faith and credit obligations of the United States
of America, provided that any such obligations shall mature within one year of
the date of issuance thereof;


 


(b)         investments in commercial paper rated
at least P-1 by Moody’s and at least A-1 by S&P maturing within one year of
the date of issuance thereof;


 


(c)          investments in certificates of deposit
issued by any Lender or by any United States commercial bank having capital and
surplus of not less than $100,000,000 which have a maturity of one year or
less;


 


(d)         investments in repurchase obligations
with a term of not more than 7 days for underlying securities of the types
described in subsection (a) above entered into with any bank meeting
the qualifications specified in subsection (c) above, provided all
such agreements require physical delivery of the securities securing such
repurchase agreement, except those delivered through the Federal Reserve Book
Entry System;


 


(e)          investments in money market funds that
invest solely, and which are restricted by their respective charters to invest
solely, in investments of the type described in the immediately preceding
subsections (a), (b), (c), and (d) above;


 


(f)         the Parent’s or the Borrower’s
investments from time to time in its Subsidiaries, and investments made from
time to time by a Subsidiary in or more of its Subsidiaries;


 


(g)         intercompany advances made from time to
time by the Borrower or a Guarantor to another Guarantor or by a Guarantor to
the Borrower in the ordinary course of business;


 


(h)         Permitted Acquisitions; and


 


(i)         other investments, loans, and advances
in addition to those otherwise permitted by this Section in an amount not
to exceed $1,000,000 in the aggregate at any one time outstanding.


 


In determining the amount of investments,
acquisitions, loans, and advances permitted under this Section, investments and
acquisitions shall always be taken at the original cost thereof 


 


51

















 


(regardless of any subsequent appreciation or depreciation
therein), and loans and advances shall be taken at the principal amount thereof
then remaining unpaid.


 


Section 8.10.               Mergers,
Consolidations and Sales.  Neither the Parent nor the
Borrower shall, nor shall they permit any Subsidiary to, be a party to any
merger or consolidation, or sell, transfer, lease or otherwise dispose of all
or any part of its Property, including any disposition of Property as part of a
sale and leaseback transaction, or in any event sell or discount (with or
without recourse) any of its notes or accounts receivable; provided,
however, that so long as no Default or Event of Default exists
(except as otherwise permitted by the Security Agreement) this Section shall
not apply to nor operate to prevent:


 


(a)          the sale or lease of inventory in the
ordinary course of business;


 


(b)         the sale, transfer, lease or other
disposition of Property of the Borrower and the Guarantors to one another in
the ordinary course of its business;


 


(c)          the merger of any Subsidiary with and
into the Borrower or any other Subsidiary, provided that,
in the case of any merger involving the Borrower, the Borrower is the entity
surviving the merger;


 


(d)         the merger of the Borrower or any
Subsidiary in connection with a Permitted Acquisition, provided
that, in the case of any merger involving the Borrower, the Borrower is the
entity surviving the merger;


 


(e)          the sale of delinquent notes or
accounts receivable in the ordinary course of business for purposes of
collection only (and not for the purpose of any bulk sale or securitization
transaction);


 


(f)         the sale, transfer or other disposition
of any tangible personal property that, in the reasonable business judgment of
the Borrower or any Guarantor, has become obsolete or worn out, and which is
disposed of in the ordinary course of business; and


 


(g)         the sale, transfer, lease or other
disposition of Property of the Borrower or any Guarantor (including any
disposition of Property as part of a sale and leaseback transaction)
aggregating for the Parent, the Borrower and its Subsidiaries not more than
$500,000 during any fiscal year of the Borrower.


 


Section 8.11.               Maintenance of Subsidiaries. 
Neither the Parent nor the Borrower shall assign, sell or transfer, nor
shall it permit any Subsidiary to issue, assign, sell or transfer, any shares
of capital stock or other equity interests of a Subsidiary; provided, however, that the foregoing shall not operate to
prevent (a) Liens on the capital stock or other equity interests of
Subsidiaries granted to the Administrative Agent pursuant to the Collateral
Documents, (b) the issuance, sale, and transfer to any person of any
shares of capital stock of a Subsidiary solely for the purpose of qualifying,
and to the extent legally necessary to qualify, such person as a director of such
Subsidiary, and (c) any transaction permitted by Section 8.10(c) or
(d) above.


 


52

















 


Section 8.12.               Dividends
and Certain Other Restricted Payments.  Neither the
Parent nor the Borrower shall, nor shall they permit any Subsidiary to, (a) declare
or pay any dividends on or make any other distributions in respect of any class
or series of its capital stock or other equity interests (other than dividends
or distributions payable solely in its capital stock or other equity
interests), (b) directly or indirectly purchase, redeem, or otherwise
acquire or retire any of its capital stock or other equity interests or any
warrants, options, or similar instruments to acquire the same, or (c) directly
or indirectly pay Management Fees (collectively referred to herein as “Restricted Payments”); provided, however,
that the foregoing shall not operate to prevent:


 


(a)          the making of dividends or
distributions by any Subsidiary to the Borrower,


 


(b)         the payment of Management Fees and
non-recurring transaction expenses to Great Hill in connection with Permitted
Acquisitions whether or not consummated in an aggregate amount which does not
exceed $700,000 plus reasonable actual out-of-pocket costs and expenses, so
long as no Event of Default shall have occurred and be continuing or shall
result from the payment thereof,


 


(c)          so long as no Default or Event of
Default exists or would result therefrom, the making of dividends or other
distributions in an aggregate amount that does not exceed $500,000 during any
fiscal year of the Parent to fund the redemption of equity interests in the
Parent owned by any officer, employee or director of the Borrower or its
Affiliates upon the death, disability, resignation or termination of such officer,
employee or director; and


 


(d)         the declaration and payment of income
tax distributions (“Income Tax Distributions”)
by the Borrowers or any Subsidiary (collectively referred to as the “Tax Distribution Entities” and each individually as a “Tax Distribution Entity”) in any calendar year in amounts
necessary to allow each of its members funds sufficient to pay the annual tax
liabilities of such member solely with respect to its pro rata share of such
entity’s non-separately computed income and other separately stated items of
income, loss, deduction or credit of such entity, so long as such funds are
actually used to pay such tax liabilities for such entity’s fiscal year ending
during such calendar year; provided that
the aggregate amount of Income Tax Distributions paid in any one calendar year
does not exceed the amounts payable by the applicable Tax Distribution Entity’s
members during such calendar year with respect to such Tax Distribution Entity’s
taxable income for such Tax Distribution Entity’s fiscal year ending during
such calendar year (determined as if each member’s pro rata share of such Tax
Distribution Entity’s taxable income was taxed at the maximum marginal federal,
state, local and foreign income tax rate applicable to any of such Tax Distribution
Entity’s shareholders or members).


 


Section 8.13.               ERISA. 
Each of the Parent and the Borrower shall, and shall cause each
Subsidiary to, promptly pay and discharge all obligations and liabilities
arising under ERISA of a character which if unpaid or unperformed could
reasonably be expected to result in the imposition of a Lien against any of its
Property.  Each of the Parent and the
Borrower shall, and shall cause each Subsidiary to, promptly notify the Administrative
Agent of:  (a) the occurrence


 


53

















 


of any reportable event
(as defined in ERISA) with respect to a Plan, (b) receipt of any notice
from the PBGC of its intention to seek termination of any Plan or appointment
of a trustee therefor, (c) its intention to terminate or withdraw from any
Plan, and (d) the occurrence of any event with respect to any Plan which
would result in the incurrence by the Parent, the Borrower or any Subsidiary of
any material liability, fine or penalty, or any material increase in the
contingent liability of the Parent, the Borrower or any Subsidiary with respect
to any post-retirement Welfare Plan benefit.


 


Section 8.14.               Compliance with Laws. 
Each of the Parent and the Borrower shall, and shall cause each
Subsidiary to, comply in all respects with the requirements of all federal,
state, and local laws, rules, regulations, ordinances and orders applicable to
or pertaining to its Property or business operations, where any such
non-compliance, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect or result in a Lien upon any of its Property.


 


Section 8.15.               Burdensome Contracts With
Affiliates.  Neither the Parent nor the Borrower shall, nor
shall they permit any Subsidiary to, enter into any contract, agreement or
business arrangement with any of its Affiliates (other than with Wholly-owned
Subsidiaries) on terms and conditions which are less favorable to the Parent,
the Borrower or such Subsidiary than would be usual and customary in similar
contracts, agreements or business arrangements between Persons not affiliated
with each other.


 


Section 8.16.               No Changes in Fiscal Year. 
The fiscal year of the Parent and its Subsidiaries ends on December 31
of each year; and the Parent shall not, nor shall it permit any Subsidiary to,
change its fiscal year from its present basis.


 


Section 8.17.               Formation of Subsidiaries. 
Promptly upon the formation or acquisition of any Subsidiary, the Parent
shall provide the Administrative Agent notice thereof and timely comply with
the requirements of Section 4 hereof (at which time Schedule 6.2
shall be deemed amended to include reference to such Subsidiary).


 


Section 8.18.               Change in the Nature of
Business.  (a) The Borrower shall not, nor
shall it permit any Subsidiary to, engage in any business or activity if as a
result the general nature of the business of the Borrower or any Subsidiary
would be changed in any material respect from the general nature of the
business engaged in by it as of the Closing Date.


 


(b)             The Parent shall not engage in any
business activities other than (i) ownership of the equity interests of
the Borrower, (ii) activities incidental to maintenance of its corporate
existence and (iii) performance of its obligations under the Management
Agreement or the Initial Acquisition Agreement.


 


Section 8.19.               Use of Proceeds. 
The Borrower shall use the credit extended under this Agreement solely
for the purposes set forth in, or otherwise permitted by, Section 6.4
hereof.


 


Section 8.20.               No Restrictions. 
Except as provided herein, neither the Parent nor the Borrower shall,
nor shall they permit any Subsidiary to, directly or indirectly create or
otherwise


 


54

















 


cause or suffer to exist
or become effective any consensual encumbrance or restriction of any kind on
the ability of the Borrower or any Subsidiary to:  (a) pay dividends or make any other
distribution on any Subsidiary’s capital stock or other equity interests owned
by the Borrower or any other Subsidiary, (b) pay any indebtedness owed to
the Borrower or any other Subsidiary, (c) make loans or advances to the
Borrower or any other Subsidiary, (d) transfer any of its Property to the
Borrower or any other Subsidiary or (e) guarantee the Obligations and/or
grant Liens on its assets to the Administrative Agent as required by the Loan
Documents.


 


Section 8.21.               Domestic EBITDA. 
The Borrower shall maintain its business such that not less than 66-2/3%
of the EBITDA of the Borrower and its Subsidiaries in any 12 consecutive
calendar month period is attributable to the Borrower and its Domestic
Subsidiaries (exclusive of any of their respective Foreign Subsidiaries).


 


Section 8.22.               Financial
Covenants.  (a) Total Funded Debt/EBITDA
Ratio.  As of the last day of
each fiscal quarter of the Borrower ending during the relevant period set forth
below, the Borrower shall not permit the Total Funded Debt/EBITDA Ratio to be
greater than 4.25; provided, however,
that from and after the occurrence of the Leverage Trigger Date, the Borrower
shall not permit the Total Funded Debt/EBITDA Ratio as of the last day of any
fiscal quarter to be greater than the corresponding ratio set forth opposite
such period below:


 


(i) if the Leverage Trigger Date occurs prior to June 30,
2009,


 


	
  FISCAL QUARTER

  	
   

  	
  TOTAL
  FUNDED DEBT/EBITDA RATIO

  SHALL NOT BE GREATER THAN:

  
	
   

  	
   

  	
   

  
	
  First,
  Second and Third fiscal quarters ending on or after the Leverage Trigger Date

  	
   

  	
  4.0
  to 1.0

  
	
   

  	
   

  	
   

  
	
  Fourth
  and Fifth fiscal quarters ending on or after the Leverage Trigger Date

  	
   

  	
  3.75
  to 1.0

  
	
   

  	
   

  	
   

  
	
  Sixth
  and Seventh fiscal quarters ending on or after the Leverage Trigger Date

  	
   

  	
  3.50
  to 1.0

  
	
   

  	
   

  	
   

  
	
  Eighth
  and Ninth fiscal quarters ending on or after the Leverage Trigger Date

  	
   

  	
  3.25
  to 1.0

  
	
   

  	
   

  	
   

  
	
  Tenth
  fiscal quarter ending on or after the Leverage Trigger Date and thereafter

  	
   

  	
  3.0
  to 1.0

  



 


and (ii) if the Leverage Trigger Date occurs on June 30,
2009, the corresponding ratio set forth opposite such period below:


 


55

















 


	
  PERIOD(S) ENDING

  	
   

  	
  TOTAL
  FUNDED DEBT/EBITDA RATIO

  SHALL NOT BE GREATER THAN:

  
	
   

  	
   

  	
   

  
	
  6/30/09 - 12/31/09

  	
   

  	
  4.0 to 1.0

  
	
   

  	
   

  	
   

  
	
  1/01/10 - 6/30/10

  	
   

  	
  3.75 to 1.0

  
	
   

  	
   

  	
   

  
	
  7/1/10 - 12/31/10

  	
   

  	
  3.50 to 1.0

  
	
   

  	
   

  	
   

  
	
  1/1/11 - 6/30/11

  	
   

  	
  3.25 to 1.0

  
	
   

  	
   

  	
   

  
	
  7/1/11 and thereafter

  	
   

  	
  3.00 to 1.0

  



 


(b)             Fixed Charge Coverage Ratio. 
As of the last day of each fiscal quarter of the Borrower (commencing
with the Borrower’s fiscal quarter ended June 30, 2007), the Borrower
shall maintain a ratio of (i) EBITDA for the four fiscal quarters of the
Borrower then ended, less Capital Expenditures for such period, to (ii) Fixed
Charges for the same four fiscal quarters then ended of not less than 1.10 to
1.0:


 


(c)             Minimum EBITDA.  The Borrower shall at all times, during each
of the periods specified below, maintain EBITDA for the most recently completed
period of 12 calendar months in an amount not less than the amount set forth
opposite such period below (the “Minimum Required Amount”:


 


	
  PERIOD

  	
   

  	
  MINIMUM REQUIRED AMOUNT

  
	
   

  	
   

  	
   

  
	
  From and including the date hereof to and including
  12/30/07

  	
   

  	
  $

  	
  11,000,000

  
	
   

  	
   

  	
   

  
	
  12/31/07 - 3/30/08

  	
   

  	
  $

  	
  13,000,000

  
	
   

  	
   

  	
   

  
	
  3/31/08 - 6/29/08

  	
   

  	
  $

  	
  13,500,000

  
	
   

  	
   

  	
   

  
	
  6/30/-8 - 9/29/08

  	
   

  	
  $

  	
  14,000,000

  
	
   

  	
   

  	
   

  
	
  9/30/08 - 12/30/08

  	
   

  	
  $

  	
  14,500,000

  
	
   

  	
   

  	
   

  
	
  12/31/08 - 3/30/09

  	
   

  	
  $

  	
  15,000,000

  
	
   

  	
   

  	
   

  
	
  3/31/09 - 9/29/09

  	
   

  	
  $

  	
  15,500,000

  
	
   

  	
   

  	
   

  
	
  9/30/09 and thereafter

  	
   

  	
  $

  	
  16,000,000

  



 


For purposes of this Section 8.22(c),
upon the completion of any Permitted Acquisition, the Minimum Required Amount
for all periods from and including the period during which such 


 


56

















 


Acquisition occurs shall
increase by an amount equal to 80% of the EBITDA of the Acquired Business for
the 12 calendar month period most recently completed prior to the date of such
Acquisition.


 


(d)             Capital Expenditures.  The Borrower shall not, nor shall it permit
any of its Subsidiaries to, incur Capital Expenditures in an amount in excess
of $5,000,000 in the aggregate during any fiscal year.


 


(e)             Operating Leases.  The Borrower shall not, nor shall it permit
any Subsidiary to, acquire the use or possession of any Property under a lease
or similar arrangement, whether or not the Borrower or any Subsidiary has the
express or implied right to acquire title to or purchase such Property, at any
time if, after giving effect thereto, the aggregate amount of rental
expense  (as determined in accordance
with GAAP) incurred by the Borrower and its Subsidiaries under all such leases
and similar arrangements during each fiscal year of the Borrower specified below
would exceed the amount specified below for such fiscal year:


 


	
  FISCAL YEAR ENDED

  	
   

  	
  MAXIMUM RENTAL EXPENSE

  
	
   

  	
   

  	
   

  
	
  12/31/07

  	
   

  	
  $

  	
  4,250,000

  
	
   

  	
   

  	
   

  
	
  12/31/08

  	
   

  	
  $

  	
  5,000,000

  
	
   

  	
   

  	
   

  
	
  12/31/09

  	
   

  	
  $

  	
  5,750,000

  
	
   

  	
   

  	
   

  
	
  12/31/10

  	
   

  	
  $

  	
  6,500,000

  
	
   

  	
   

  	
   

  
	
  12/31/11

  	
   

  	
  $

  	
  7,250,000

  
	
   

  	
   

  	
   

  
	
  12/31/12

  	
   

  	
  $

  	
  8,000,000

  
	
   

  	
   

  	
   

  
	
  12/31/13 and thereafter

  	
   

  	
  $

  	
  8,750,000

  



 


Capital Leases shall not
be included in computing compliance with this Section to the extent the
Borrower’s and its Subsidiaries’ liability in respect of the same is permitted
by Section 8.7(b) hereof.


 


Section 8.23.               Depository Banks. 
The Parent and the Borrower shall use commercially reasonably efforts to
cause, on or before the date which is 30 days after the Closing Date, the
Parent, the Borrower and the Borrower’s Subsidiaries to maintain the
Administrative Agent (or one of its Affiliates) as its depository bank,
including for its principal operating, administrative, cash management,
collection activity, and other deposit accounts for the conduct of its
business. Notwithstanding the immediately preceding sentence, at any time that
no Default or Event of Default has occurred and is continuing, Borrower may
maintain any other such deposit accounts (other than payroll, trust or escrow
accounts) (the “Controlled Accounts”) with
parties other than


 


57

















 


Administrative Agent so
long as, at all times from and after the date 30 days following the
Closing Date, such Controlled Accounts are subject to deposit account control
agreements in favor of Administrative Agent on terms reasonably satisfactory to
Administrative Agent, including but not limited to that each such deposit
account control agreement shall provide that Borrower may direct transfers of
amounts in such account to Administrative Agent and that, upon the occurrence
and during the continuation of an Event of Default, no other party, including
Borrower, shall otherwise have control over such deposit account.


 


Section 8.24.               Hedging Agreements. 
The Borrower shall use commercially reasonable efforts to, within 30
days following the Closing Date, enter into interest rate hedging agreements
with respect to not less than 50% of the principal amount of the Term B
Loan reasonably acceptable to the Lenders through the use of one or more
interest rate swaps, interest rate caps, interest rate collars or other
recognized interest rate hedging arrangements, with the foregoing to
effectively limit the amount of interest that the Borrower must pay on notional
amounts of not less than such portion of the Term Loan to not more than a rate
reasonably acceptable to the Lenders for a period of not less than three (3) years,
such hedging arrangements to be with the Lenders, their respective Affiliates
or other parties reasonably acceptable to the Administrative Agent;


 


SECTION 9.                                                 EVENTS OF
DEFAULT AND REMEDIES.


 


Section 9.1.              Events of Default. 
Any one or more of the following shall constitute an “Event of Default” hereunder:


 


(a)          default by the Borrower in the payment
when due of all or any part of the principal of or interest on any Loan
(whether at the stated maturity thereof or at any other time provided for in
this Agreement) or of any Reimbursement Obligation or of any fee or other
Obligation payable hereunder or under any other Loan Document;


 


(b)         default by the Borrower, the Parent or
any Subsidiary in the observance or performance of any covenant set forth in Section 8.1,
8.5, 8.7, 8.8, 8.9, 8.10, 8.11, 8.12, 8.21, 8.22, 8.23 or 8.24 hereof or of any
provision in any Loan Document dealing with the use, disposition or remittance
of the proceeds of Collateral or requiring the maintenance of insurance
thereon;


 


(c)          default by the Borrower, the Parent or
any Subsidiary in the observance or performance of any other provision hereof
or of any other Loan Document which is not remedied within 30 days after
the earlier of (i) the date on which such failure shall first become known
to any officer of the Borrower or (ii) written notice thereof is given to
the Borrower by the Administrative Agent;


 


(d)         any representation or warranty made by
the Borrower, the Parent or any Subsidiary herein or in any other Loan Document
or in any certificate furnished to the Administrative Agent or the Lenders
pursuant hereto or thereto or in connection with any transaction contemplated
hereby or thereby proves untrue in any material respect as of the date of the
issuance or making or deemed making thereof;


 


58

















 


(e)          any event occurs or condition exists
(other than those described in subsections (a) through (d) above)
which is specified as an event of default under any of the other Loan
Documents, or any of the Loan Documents shall for any reason not be or shall
cease to be in full force and effect or is declared to be null and void, or any
of the Collateral Documents shall for any reason fail to create a valid and
perfected first priority Lien in favor of the Administrative Agent in any
Collateral purported to be covered thereby except as expressly permitted by the
terms thereof, or any Subsidiary takes any action for the purpose of terminating,
repudiating or rescinding any Loan Document executed by it or any of its
obligations thereunder;


 


(f)         default shall occur under any
Indebtedness for Borrowed Money issued, assumed or guaranteed by the Parent,
the Borrower or any Subsidiary aggregating in excess of $500,000, or under any
indenture, agreement or other instrument under which the same may be issued,
and such default shall continue for a period of time sufficient to permit the
acceleration of the maturity of any such Indebtedness for Borrowed Money
(whether or not such maturity is in fact accelerated), or any such Indebtedness
for Borrowed Money shall not be paid when due (whether by demand, lapse of
time, acceleration or otherwise);


 


(g)         any judgment or judgments, writ or
writs or warrant or warrants of attachment, or any similar process or
processes, shall be entered or filed against the Parent, the Borrower or any
Subsidiary, or against any of its Property, in an aggregate amount in excess of
$500,000 (except to the extent fully covered by insurance pursuant to which the
insurer has accepted liability therefor in writing), and which remains
undischarged, unvacated, unbonded or unstayed for a period of 30 days;


 


(h)         the Parent, the Borrower or any
Subsidiary, or any member of its Controlled Group, shall fail to pay when due
an amount or amounts aggregating in excess of $500,000 which it shall have
become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or
notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested
Liabilities in excess of $500,000 (collectively, a “Material
Plan”) shall be filed under Title IV of ERISA by the Parent,
the Borrower or any Subsidiary, or any other member of its Controlled Group,
any plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any Material Plan or a proceeding shall
be instituted by a fiduciary of any Material Plan against the Parent, the Borrower
or any Subsidiary, or any member of its Controlled Group, to enforce Section 515
or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed
within 30 days thereafter; or a condition shall exist by reason of which
the PBGC would be entitled to obtain a decree adjudicating that any Material
Plan must be terminated;


 


(i)         any Change of Control shall occur;


 


(j)         the Parent, the Borrower or any
Subsidiary shall (i) have entered involuntarily against it an order for
relief under the United States Bankruptcy Code, as amended, (ii) not pay,
or admit in writing its inability to pay, its debts generally as they


 


59

















 


become due, (iii) make
an assignment for the benefit of creditors, (iv) apply for, seek, consent
to or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial part of its
Property, (v) institute any proceeding seeking to have entered against it
an order for relief under the United States Bankruptcy Code, as amended, to
adjudicate it insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (vi) take any
corporate action in furtherance of any matter described in parts (i) through
(v) above, or (vii) fail to contest in good faith any appointment or
proceeding described in Section 9.1(k) hereof; or


 


(k)          a custodian, receiver, trustee,
examiner, liquidator or similar official shall be appointed for the Parent, the
Borrower or any Subsidiary, or any substantial part of any of its Property, or
a proceeding described in Section 9.1(j)(v) shall be instituted
against the Parent, the Borrower or any Subsidiary, and such appointment
continues undischarged or such proceeding continues undismissed or unstayed for
a period of 60 days.


 


Section 9.2.              Non-Bankruptcy Defaults. 
When any Event of Default other than those described in subsection (j) or
(k) of Section 9.1 hereof has occurred and is continuing, the
Administrative Agent shall, by written notice to the Borrower: (a) if so
directed by the Required Lenders, terminate the remaining Commitments and all
other obligations of the Lenders hereunder on the date stated in such notice
(which may be the date thereof); (b) if so directed by the Required
Lenders, declare the principal of and the accrued interest on all outstanding
Loans to be forthwith due and payable and thereupon all outstanding Loans,
including both principal and interest thereon, shall be and become immediately
due and payable together with all other amounts payable under the Loan
Documents without further demand, presentment, protest or notice of any kind;
and (c) if so directed by the Required Lenders, demand that the Borrower
immediately pay to the Administrative Agent the full amount then available for
drawing under each or any Letter of Credit, and the Borrower agrees to
immediately make such payment and acknowledges and agrees that the Lenders
would not have an adequate remedy at law for failure by the Borrower to honor
any such demand and that the Administrative Agent, for the benefit of the
Lenders, shall have the right to require the Borrower to specifically perform
such undertaking whether or not any drawings or other demands for payment have
been made under any Letter of Credit. 
The Administrative Agent, after giving notice to the Borrower pursuant
to Section 9.1(c) or this Section 9.2, shall also promptly send
a copy of such notice to the other Lenders, but the failure to do so shall not
impair or annul the effect of such notice.


 


Section 9.3.              Bankruptcy Defaults. 
When any Event of Default described in subsections (j) or (k) of
Section 9.1 hereof has occurred and is continuing, then all outstanding
Loans shall immediately become due and payable together with all other amounts
payable under the Loan Documents without presentment, demand, protest or notice
of any kind, the obligation of the Lenders to extend further credit pursuant to
any of the terms hereof shall immediately terminate and the Borrower shall
immediately pay to the Administrative Agent the full amount then available for
drawing under all outstanding Letters of Credit, the Borrower acknowledging


 


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and agreeing that the
Lenders would not have an adequate remedy at law for failure by the Borrower to
honor any such demand and that the Lenders, and the Administrative Agent on
their behalf, shall have the right to require the Borrower to specifically perform
such undertaking whether or not any draws or other demands for payment have
been made under any of the Letters of Credit.


 


Section 9.4.              Collateral for Undrawn Letters of
Credit.  (a) If the prepayment of the amount
available for drawing under any or all outstanding Letters of Credit is
required under Section 1.9(b) or under Section 9.2 or 9.3 above,
the Borrower shall forthwith pay the amount required to be so prepaid, to be
held by the Administrative Agent as provided in subsection (b) below.


 


(b)             All amounts prepaid pursuant to
subsection (a) above shall be held by the Administrative Agent in one
or more separate collateral accounts (each such account, and the credit
balances, properties, and any investments from time to time held therein, and
any substitutions for such account, any certificate of deposit or other
instrument evidencing any of the foregoing and all proceeds of and earnings on
any of the foregoing being collectively called the “Collateral
Account”) as security for, and for application by the Administrative
Agent (to the extent available) to, the reimbursement of any payment under any
Letter of Credit then or thereafter made by the Administrative Agent, and to
the payment of the unpaid balance of all other Obligations (and to all Hedging Liability
and Funds Transfer and Deposit Account Liability).  The Collateral Account shall be held in the
name of and subject to the exclusive dominion and control of the Administrative
Agent for the benefit of the Administrative Agent, the Lenders, and the L/C
Issuer.  If and when requested by the
Borrower, the Administrative Agent shall invest funds held in the Collateral
Account from time to time in direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the
United States of America with a remaining maturity of one year or less, provided that the Administrative Agent is irrevocably
authorized to sell investments held in the Collateral Account when and as
required to make payments out of the Collateral Account for application to
amounts due and owing from the Borrower to the L/C Issuer, the Administrative
Agent or the Lenders; provided, however,
that (i) if the Borrower shall have made payment of all obligations
referred to in subsection (a) above required under Section 1.9(b) hereof,
at the request of the Borrower the Administrative Agent shall release to the
Borrower amounts held in the Collateral Account so long as at the time of the
release and after giving effect thereto no Default or Event of Default exists,
and (ii) if the Borrower shall have made payment of all obligations
referred to in subsection (a) above required under Section 9.2
or 9.3 hereof, so long as no Letters of Credit, Commitments, Loans or other
Obligations, Hedging Liability, or Funds Transfer and Deposit Account Liability
remain outstanding, at the request of the Borrower the Administrative Agent
shall release to the Borrower any remaining amounts held in the Collateral
Account.


 


Section 9.5.              Notice of Default. 
The Administrative Agent shall give notice to the Borrower under Section 9.1(c) hereof
promptly upon being requested to do so by any Lender and shall thereupon notify
all the Lenders thereof.


 


Section 9.6.              Right
to Cure.  (a) Notwithstanding anything to the
contrary contained in Section 9.1, in the event the Borrower fails to
comply with the requirements of any covenant set


 


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forth in Section 8.22,
until the date on which a certificate of an Authorized Representative certifying
compliance with Section 8.22 is required to be delivered pursuant to Section 8.5(j),
Parent may, subject to Section 9.6(b), notify the Administrative Agent
that it intends to exercise its Cure Right (as defined below) and if the Parent
has given such notice then within 10 Business Days subsequent to the date
the notice described above is given the Parent shall issue capital stock (provided that if the Parent shall issue any preferred stock,
the terms of such preferred stock shall be reasonably acceptable to the
Required Lenders) to any Person other than the Borrower or a Subsidiary for
cash or otherwise receive cash contributions in an aggregate amount equal to
the amount necessary to cure the relevant failure to comply with Section 8.22
(collectively, the “Cure Right”),
which amount shall be  contributed by
Parent to the Borrower as equity, and upon the receipt by the Borrower of such
cash (the “Cure Amount”) pursuant to the exercise
by Parent of such Cure Right, the covenants in Section 8.22 shall be
recalculated giving effect to the following pro forma adjustments:


 


(i)         EBITDA for the last fiscal quarter of
the four-quarter measurement period for which a Cure Right has been exercised
(and, without duplication, for each subsequent four-quarter period that
contains such fiscal quarter) shall be increased for all purposes under this
Agreement, by an amount equal to the Cure Amount; and


 


(ii)          if after giving effect to the
foregoing recalculations, the Borrower shall then be in compliance with the
requirements of Section 8.22, the Borrower shall be deemed to have
satisfied the requirements of Section 8.22 as of the relevant date of
determination with the same effect as though there had been no failure to
comply therewith at such date, and the applicable breach or default of the
covenants in Section 8.22 that had occurred shall be deemed cured for the
purposes of this Agreement.


 


(b)             Notwithstanding anything herein to
the contrary, the Cure Right may not be exercised in more than two quarters
that are not consecutive in any four-quarter period.


 


SECTION 10.                                           CHANGE IN
CIRCUMSTANCES.


 


Section 10.1.               Change of Law. 
Notwithstanding any other provisions of this Agreement or any other Loan
Document, if at any time any change in applicable law or regulation or in the
interpretation thereof makes it unlawful for any Lender to make or continue to
maintain any Eurodollar Loans or to perform its obligations as contemplated
hereby, such Lender shall promptly give notice thereof to the Borrower and such
Lender’s obligations to make or maintain Eurodollar Loans under this Agreement
shall be suspended until it is no longer unlawful for such Lender to make or
maintain Eurodollar Loans.  The Borrower
shall prepay on demand the outstanding principal amount of any such affected Eurodollar
Loans, together with all interest accrued thereon and all other amounts then
due and payable to such Lender under this Agreement; provided,
however, subject to all of the terms and conditions of this
Agreement, the Borrower may then elect to borrow the principal amount of the
affected Eurodollar Loans from such Lender by means of Base Rate Loans from
such Lender, which Base Rate Loans shall not be made ratably by the Lenders but
only from such affected Lender.


 


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Section 10.2.               Unavailability
of Deposits or Inability to Ascertain, or Inadequacy of, LIBOR. 
If on or prior to the first day of any Interest Period for any Borrowing
of Eurodollar Loans:


 


(a)          the Administrative Agent determines
that deposits in U.S. Dollars (in the applicable amounts) are not being offered
to it in the interbank eurodollar market for such Interest Period, or that by
reason of circumstances affecting the interbank eurodollar market adequate and
reasonable means do not exist for ascertaining the applicable LIBOR, or


 


(b)         the Required Lenders advise the
Administrative Agent that (i) LIBOR as determined by the Administrative
Agent will not adequately and fairly reflect the cost to such Lenders of
funding their Eurodollar Loans for such Interest Period or (ii) that the
making or funding of Eurodollar Loans become impracticable,


 


then the Administrative Agent shall forthwith give
notice thereof to the Borrower and the Lenders, whereupon until the
Administrative Agent notifies the Borrower that the circumstances giving rise
to such suspension no longer exist, the obligations of the Lenders to make
Eurodollar Loans shall be suspended.


 


Section 10.3.               Increased
Cost and Reduced Return.  (a) If, on or after the
date hereof, the adoption of any applicable law, rule or regulation, or
any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender (or its Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:


 


(i)         shall subject any Lender (or its
Lending Office) to any tax, duty or other charge with respect to its Eurodollar
Loans, its Notes, its Letter(s) of Credit, or its participation in any
thereof, any Reimbursement Obligations owed to it or its obligation to make
Eurodollar Loans, issue a Letter of Credit, or to participate therein, or shall
change the basis of taxation of payments to any Lender (or its Lending Office)
of the principal of or interest on its Eurodollar Loans, Letter(s) of
Credit, or participations therein or any other amounts due under this Agreement
or any other Loan Document in respect of its Eurodollar Loans, Letter(s) of
Credit, any participation therein, any Reimbursement Obligations owed to it, or
its obligation to make Eurodollar Loans, or issue a Letter of Credit, or
acquire participations therein (except for changes in the rate of tax on the
overall net income of such Lender or its Lending Office imposed by the
jurisdiction in which such Lender’s principal executive office or Lending
Office is located); or


 


(ii)          shall impose, modify or deem
applicable any reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the Board of Governors of
the Federal Reserve System, but excluding with respect to any Eurodollar Loans
any such requirement included in an applicable Eurodollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit extended by,


 


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any Lender (or its
Lending Office) or shall impose on any Lender (or its Lending Office) or on the
interbank market any other condition affecting its Eurodollar Loans, its Notes,
its Letter(s) of Credit, or its participation in any thereof, any
Reimbursement Obligation owed to it, or its obligation to make Eurodollar
Loans, or to issue a Letter of Credit, or to participate therein;


 


and the result of any of the foregoing is to increase
the cost to such Lender (or its Lending Office) of making or maintaining any
Eurodollar Loan, issuing or maintaining a Letter of Credit, or participating
therein, or to reduce the amount of any sum received or receivable by such
Lender (or its Lending Office) under this Agreement or under any other Loan
Document with respect thereto, by an amount deemed by such Lender to be
material, then, within 30 days after demand by such Lender (with a copy to
the Administrative Agent) made within a reasonable time after such Lender
becomes aware of the circumstances giving rise thereto, the Borrower shall be
obligated to pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction.


 


(b)             If, after the date hereof, any
Lender or the Administrative Agent shall have determined that the adoption of
any applicable law, rule or regulation regarding capital adequacy, or any
change therein, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Lender (or
its Lending Office) or any corporation controlling such Lender with any request
or directive regarding capital adequacy (whether or not having the force of
law) of any such authority, central bank or comparable agency, has had the
effect of reducing the rate of return on such Lender’s or such corporation’s
capital as a consequence of its obligations hereunder 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, within 30 days after
demand by such Lender (with a copy to the Administrative Agent) made within a
reasonable time after such Lender becomes aware of the circumstances giving
rise thereto, the Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction.


 


(c)             A certificate of a Lender claiming
compensation under this Section 10.3 and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive if reasonably
determined, absent demonstrable error. 
In determining such amount, such Lender may use any reasonable averaging
and attribution methods.


 


Section 10.4.               Lending Offices. 
Each Lender may, at its option, elect to make its Loans hereunder at the
branch, office or affiliate specified on the appropriate signature page hereof
(each a “Lending Office”) for each type of Loan
available hereunder or at such other of its branches, offices or affiliates as
it may from time to time elect and designate in a written notice to the
Borrower and the Administrative Agent. 
To the extent reasonably possible, a Lender shall designate an
alternative branch or funding office with respect to its Eurodollar Loans to
reduce any liability of the Borrower to such Lender under Section 10.3
hereof or to avoid the


 


64

















 


unavailability of
Eurodollar Loans under Section 10.2 hereof, so long as such designation is
not otherwise disadvantageous to the Lender.


 


Section 10.5.               Discretion of Lender as to Manner
of Funding.  Notwithstanding any other provision of this
Agreement, each Lender shall be entitled to fund and maintain its funding of
all or any part of its Loans in any manner it sees fit, it being understood,
however, that for the purposes of this Agreement all determinations hereunder
with respect to Eurodollar Loans shall be made as if each Lender had actually
funded and maintained each Eurodollar Loan through the purchase of deposits in
the interbank eurodollar market having a maturity corresponding to such Loan’s
Interest Period, and bearing an interest rate equal to LIBOR for such Interest
Period.


 


SECTION 11.                                           THE
ADMINISTRATIVE AGENT.


 


Section 11.1.               Appointment and Authorization of
Administrative Agent.  Each Lender hereby appoints Bank of Montreal
as the Administrative Agent under the Loan Documents and hereby authorizes the
Administrative Agent to take such action as Administrative Agent on its behalf
and to exercise such powers under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto.  The
Lenders expressly agree that the Administrative Agent is not acting as a
fiduciary of the Lenders in respect of the Loan Documents, the Borrower or
otherwise, and nothing herein or in any of the other Loan Documents shall
result in any duties or obligations on the Administrative Agent or any of the
Lenders except as expressly set forth herein.


 


Section 11.2.               Administrative Agent and its
Affiliates.  The Administrative Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any
other Lender and may exercise or refrain from exercising such rights and power
as though it were not the Administrative Agent, and the Administrative Agent
and its affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrower or any Affiliate of the
Borrower as if it were not the Administrative Agent under the Loan
Documents.  References in Section 1
hereof to the Administrative Agent’s Loans, or to the amount owing to the
Administrative Agent for which an interest rate is being determined, refer to
the Administrative Agent in its individual capacity as a Lender.


 


Section 11.3.               Action by Administrative Agent. 
If the Administrative Agent receives from the Borrower a written notice
of an Event of Default pursuant to Section 8.5 hereof, the Administrative
Agent shall promptly give each of the Lenders written notice thereof.  The obligations of the Administrative Agent
under the Loan Documents are only those expressly set forth therein.  Without limiting the generality of the
foregoing, the Administrative Agent shall not be required to take any action
hereunder with respect to any Default or Event of Default, except as expressly
provided in Sections 9.2 and 9.5. 
Upon the occurrence of an Event of Default, the Administrative Agent
shall take such action to enforce its Lien on the Collateral and to preserve
and protect the Collateral as may be directed by the Required Lenders.  Unless and until the Required Lenders give
such direction, the Administrative Agent may (but shall not be obligated to)
take or refrain from taking such actions as it deems appropriate and in the
best interest of all the Lenders.  In no
event, however, shall the Administrative Agent be required to take any action
in violation of applicable law or of any provision of any Loan Document, and
the


 


65

















 


Administrative Agent
shall in all cases be fully justified in failing or refusing to act hereunder
or under any other Loan Document unless it first receives any further assurances
of its indemnification from the Lenders that it may require, including
prepayment of any related expenses and any other protection it requires against
any and all costs, expense, and liability which may be incurred by it by reason
of taking or continuing to take any such action.  The Administrative Agent shall be entitled to
assume that no Default or Event of Default exists unless notified in writing to
the contrary by a Lender or the Borrower. 
In all cases in which the Loan Documents do not require the
Administrative Agent to take specific action, the Administrative Agent shall be
fully justified in using its discretion in failing to take or in taking any
action thereunder.  Any instructions of
the Required Lenders, or of any other group of Lenders called for under the
specific provisions of the Loan Documents, shall be binding upon all the
Lenders and the holders of the Obligations.


 


Section 11.4.               Consultation with Experts. 
The Administrative Agent may consult with legal counsel, independent
public accountants, and other experts selected by it and shall not be liable
for any action taken or omitted to be taken by it in good faith in accordance
with the advice of such counsel, accountants or experts.


 


Section 11.5.               Liability of Administrative
Agent; Credit Decision.  Neither the Administrative
Agent nor any of its directors, officers, agents or employees shall be liable
for any action taken or not taken by it in connection with the Loan Documents:  (i) with the consent or at the request
of the Required Lenders or (ii) in the absence of its own gross negligence
or willful misconduct.  Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into or
verify:  (i) any statement, warranty
or representation made in connection with this Agreement, any other Loan
Document or any Credit Event; (ii) the performance or observance of any of
the covenants or agreements of the Borrower or any Subsidiary contained herein
or in any other Loan Document; (iii) the satisfaction of any condition
specified in Section 7 hereof, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity,
effectiveness, genuineness, enforceability, perfection, value, worth or
collectibility hereof or of any other Loan Document or of any other documents
or writing furnished in connection with any Loan Document or of any Collateral;
and the Administrative Agent makes no representation of any kind or character
with respect to any such matter mentioned in this sentence.  The Administrative Agent may execute any of
its duties under any of the Loan Documents by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders, the Borrower, or
any other Person for the default or misconduct of any such agents or
attorneys-in-fact selected with reasonable care.  The Administrative Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate, other
document or statement (whether written or oral) believed by it to be genuine or
to be sent by the proper party or parties. 
In particular and without limiting any of the foregoing, the
Administrative Agent shall have no responsibility for confirming the accuracy
of any compliance certificate or other document or instrument received by it
under the Loan Documents.  The
Administrative Agent may treat the payee of any Obligation as the holder
thereof until written notice of transfer shall have been filed with the
Administrative Agent signed by such payee in form reasonably satisfactory to
the Administrative Agent.  Each Lender
acknowledges that it has independently and without reliance on the
Administrative Agent or any other Lender, and based upon such information,
investigations and


 


66

















 


inquiries as it deems
appropriate, made its own credit analysis and decision to extend credit to the
Borrower in the manner set forth in the Loan Documents.  It shall be the responsibility of each Lender
to keep itself informed as to the creditworthiness of the Borrower and its
Subsidiaries, and the Administrative Agent shall have no liability to any
Lender with respect thereto.


 


Section 11.6.               Indemnity. 
The Lenders shall ratably, in accordance with their respective
Percentages, indemnify and hold the Administrative Agent, and its directors,
officers, employees, agents, and representatives harmless from and against any
liabilities, losses, costs or expenses suffered or incurred by it under any
Loan Document or in connection with the transactions contemplated thereby,
regardless of when asserted or arising, except to the extent they are promptly
reimbursed for the same by the Borrower and except to the extent that any event
giving rise to a claim was caused by the gross negligence or willful misconduct
of the party seeking to be indemnified. 
The obligations of the Lenders under this Section shall survive
termination of this Agreement.  The
Administrative Agent shall be entitled to offset amounts received for the
account of a Lender under this Agreement against unpaid amounts due from such
Lender to the Administrative Agent hereunder (whether as fundings of
participations, indemnities or otherwise), but shall not be entitled to offset
against amounts owed to the Administrative Agent by any Lender arising outside
of this Agreement and the other Loan Documents.


 


Section 11.7.               Resignation of Administrative
Agent and Successor Administrative Agent.  The
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrower.  Upon any
such resignation of the Administrative Agent, the Required Lenders shall have
the right to appoint a successor Administrative Agent.  If no successor Administrative Agent shall
have been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent’s
giving of notice of resignation then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, which may be
any Lender hereunder or any commercial bank organized under the laws of the
United States of America or of any State thereof and having a combined capital
and surplus of at least $200,000,000. 
Upon the acceptance of its appointment as the Administrative Agent
hereunder, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights and duties of the retiring Administrative
Agent under the Loan Documents, and the retiring Administrative Agent shall be
discharged from its duties and obligations thereunder.  After any retiring Administrative Agent’s
resignation hereunder as Administrative Agent, the provisions of this Section 11
and all protective provisions of the other Loan Documents shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent, but no successor Administrative Agent shall in any event
be liable or responsible for any actions of its predecessor.  If the Administrative Agent resigns and no
successor is appointed, the rights and obligations of such Administrative Agent
shall be automatically assumed by the Required Lenders and (i) the
Borrower shall be directed to make all payments due each Lender hereunder
directly to such Lender and (ii) the Administrative Agent’s rights in the
Collateral Documents shall be assigned without representation, recourse or
warranty to the Lenders as their interests may appear.


 


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Section 11.8.               L/C Issuer. 
The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith.  The L/C Issuer shall have all of the
benefits and immunities (i) provided to the Administrative Agent in this Section 11
with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it
and the Applications pertaining to such Letters of Credit as fully as if the term
“Administrative Agent”, as used in this Section 11, included the
L/C Issuer with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to such L/C Issuer.


 


Section 11.9.               Hedging Liability and Funds
Transfer and Deposit Account Liability Arrangements. 
By virtue of a Lender’s execution of this Agreement or an assignment
agreement pursuant to Section 13.12 hereof, as the case may be, any
Affiliate of such Lender with whom the Borrower or any Guarantor has entered
into an agreement creating Hedging Liability or Funds Transfer and Deposit
Account Liability shall be deemed a Lender party hereto for purposes of any
reference in a Loan Document to the parties for whom the Administrative Agent
is acting, it being understood and agreed that the rights and benefits of such
Affiliate under the Loan Documents consist exclusively of such Affiliate’s
right to share in payments and collections out of the Collateral and the
Guaranties as more fully set forth in Section 3.1 hereof.  In connection with any such distribution of
payments and collections, or any request for the release of the Administrative
Agent’s Liens in connection with the termination of the Commitments and the
payment in full of the Obligations, the Administrative Agent shall be entitled
to assume no amounts are due to any Lender or its Affiliate with respect to
Hedging Liability or Funds Transfer and Deposit Account Liability unless such
Lender has notified the Administrative Agent in writing of the amount of any
such liability owed to it or its Affiliate prior to such distribution or
payment or release of Liens.


 


Section 11.10.               Designation of Additional Agents. 
The Administrative Agent shall have the continuing right, for purposes
hereof, at any time and from time to time to designate one or more of the
Lenders (and/or its or their Affiliates) as “syndication agents,” “documentation
agents,” “book runners,” “lead arrangers,” “arrangers,” or other designations
for purposes hereto, but such designation shall have no substantive effect, and
such Lenders and their Affiliates shall have no additional powers, duties or
responsibilities as a result thereof.


 


Section 11.11.               Authorization to Release or
Subordinate or Limit Liens.  The
Administrative Agent is hereby irrevocably authorized by each of the Lenders to
(a) release any Lien covering any Collateral that is sold, transferred, or
otherwise disposed of in accordance with the terms and conditions of this
Agreement and the relevant Collateral Documents (including a sale, transfer, or
disposition permitted by the terms of Section 8.10 hereof or which has
otherwise been consented to in accordance with Section 13.13 hereof), (b) release
or subordinate any Lien on Collateral consisting of goods financed with
purchase money indebtedness or under a Capital Lease to the extent such
purchase money indebtedness or Capitalized Lease Obligation, and the Lien
securing the same, are permitted by Sections 8.7(b) and 8.8(d) hereof,
(c) reduce or limit the amount of the indebtedness secured by any
particular item of Collateral to an amount not less than the estimated value
thereof to the extent necessary to reduce mortgage registry, filing and similar
tax, and (d) release Liens on the Collateral following termination or
expiration of the


 


68

















 


Commitments and payment
in full in cash of the Obligations and, if then due, Hedging Liability and
Funds Transfer and Deposit Account Liability.


 


Section 11.12.               Authorization to Enter into, and
Enforcement of, the Collateral Documents.  The
Administrative Agent is hereby irrevocably authorized by each of the Lenders to
execute and deliver the Collateral Documents on behalf of each of the Lenders
and their Affiliates and to take such action and exercise such powers under the
Collateral Documents as the Administrative Agent considers appropriate, provided the Administrative Agent shall not amend the
Collateral Documents unless such amendment is agreed to in writing by the
Required Lenders.  Each Lender acknowledges
and agrees that it will be bound by the terms and conditions of the Collateral
Documents upon the execution and delivery thereof by the Administrative
Agent.  Except as otherwise specifically
provided for herein, no Lender (or its Affiliates) other than the
Administrative Agent shall have the right to institute any suit, action or
proceeding in equity or at law for the foreclosure or other realization upon
any Collateral or for the execution of any trust or power in respect of the
Collateral or for the appointment of a receiver or for the enforcement of any
other remedy under the Collateral Documents; it being understood and intended
that no one or more of the Lenders (or their Affiliates) shall have any right
in any manner whatsoever to affect, disturb or prejudice the Lien of the
Administrative Agent (or any security trustee therefor) under the Collateral
Documents by its or their action or to enforce any right thereunder, and that
all proceedings at law or in equity shall be instituted, had, and maintained by
the Administrative Agent (or its security trustee) in the manner provided for
in the relevant Collateral Documents for the benefit of the Lenders and their
Affiliates.


 


SECTION 12.                                           THE
GUARANTEES.


 


Section 12.1.               The Guarantees. 
To induce the Lenders to provide the credits described herein and in
consideration of benefits expected to accrue to the Borrower by reason of the
Commitments and for other good and valuable consideration, receipt of which is
hereby acknowledged, the Parent and each Subsidiary party hereto (including any
Subsidiary formed or acquired after the Closing Date executing an Additional
Guarantor Supplement in the form attached hereto as Exhibit F or such
other form reasonably acceptable to the Administrative Agent) hereby unconditionally
and irrevocably guarantees jointly and severally to the Administrative Agent,
the Lenders, and their Affiliates, the due and punctual payment of all present
and future Obligations, Hedging Liability, and Funds Transfer and Deposit
Account Liability, including, but not limited to, the due and punctual payment
of principal of and interest on the Notes, the Reimbursement Obligations, and
the due and punctual payment of all other Obligations now or hereafter owed by
the Borrower under the Loan Documents and the due and punctual payment of all
Hedging Liability and Funds Transfer and Deposit Account Liability, in each
case as and when the same shall become due and payable, whether at stated
maturity, by acceleration, or otherwise, according to the terms hereof and
thereof (including all interest, costs, fees, and charges after the entry of an
order for relief against the Borrower or such other obligor in a case under the
United States Bankruptcy Code or any similar proceeding, whether or not such
interest, costs, fees and charges would be an allowed claim against the
Borrower or any such obligor in any such proceeding).  In case of failure by the Borrower or other
obligor punctually to pay any Obligations, Hedging Liability, or Funds Transfer
and Deposit Account Liability guaranteed hereby, each Guarantor hereby
unconditionally agrees to make such


 


69

















 


payment or to cause such
payment to be made punctually as and when the same shall become due and
payable, whether at stated maturity, by acceleration, or otherwise, and as if
such payment were made by the Borrower or such obligor.


 


Section 12.2.               Guarantee
Unconditional.  The obligations of each Guarantor under this Section 12
shall be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged, or otherwise affected by:


 


(a)          any extension, renewal, settlement,
compromise, waiver, or release in respect of any obligation of the Borrower or
other obligor or of any other guarantor under this Agreement or any other Loan
Document or by operation of law or otherwise;


 


(b)         any modification or amendment of or
supplement to this Agreement or any other Loan Document or any agreement
relating to Hedging Liability or Funds Transfer and Deposit Account Liability;


 


(c)          any change in the corporate existence,
structure, or ownership of, or any insolvency, bankruptcy, reorganization, or
other similar proceeding affecting, the Borrower or other obligor, any other
guarantor, or any of their respective assets, or any resulting release or
discharge of any obligation of the Borrower or other obligor or of any other
guarantor contained in any Loan Document;


 


(d)         the existence of any claim, set-off, or
other rights which the Borrower or other obligor or any other guarantor may
have at any time against the Administrative Agent, any Lender, or any other
Person, whether or not arising in connection herewith;


 


(e)          any failure to assert, or any
assertion of, any claim or demand or any exercise of, or failure to exercise,
any rights or remedies against the Borrower or other obligor, any other
guarantor, or any other Person or Property;


 


(f)         any application of any sums by
whomsoever paid or howsoever realized to any obligation of the Borrower or
other obligor, regardless of what obligations of the Borrower or other obligor
remain unpaid;


 


(g)         any invalidity or unenforceability
relating to or against the Borrower or other obligor or any other guarantor for
any reason of this Agreement or of any other Loan Document or any agreement
relating to Hedging Liability or Funds Transfer and Deposit Account Liability
or any provision of applicable law or regulation purporting to prohibit the
payment by the Borrower or other obligor or any other guarantor of the
principal of or interest on any Note or any Reimbursement Obligation or any
other amount payable under the Loan Documents or any agreement relating to
Hedging Liability or Funds Transfer and Deposit Account Liability; or


 


(h)         any other act or omission to act or
delay of any kind by the Administrative Agent, any Lender, or any other Person
or any other circumstance whatsoever that might,


 


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but for the provisions of
this paragraph, constitute a legal or equitable discharge of the obligations of
any Guarantor under this Section 12.


 


Section 12.3.               Discharge Only upon Payment in
Full; Reinstatement in Certain Circumstances.  Each
Guarantor’s obligations under this Section 12 shall remain in full force
and effect until the Commitments are terminated, all Letters of Credit have
expired, and the principal of and interest on the Notes and all other amounts
payable by the Borrower and the Guarantors under this Agreement and all other
Loan Documents (other than unasserted contingent indemnification obligations)
and, if then outstanding and unpaid, all Hedging Liability and Funds Transfer
and Deposit Account Liability shall have been paid in full.  If at any time any payment of the principal
of or interest on any Note or any Reimbursement Obligation or any other amount
payable by the Borrower or other obligor or any Guarantor under the Loan
Documents or any agreement relating to Hedging Liability or Funds Transfer and
Deposit Account Liability is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy, or reorganization of the Borrower or
other obligor or of any guarantor, or otherwise, each Guarantor’s obligations
under this Section 12 with respect to such payment shall be reinstated at
such time as though such payment had become due but had not been made at such
time.


 


Section 12.4.               Subrogation. 
Each Guarantor agrees it will not exercise any rights which it may
acquire by way of subrogation by any payment made hereunder, or otherwise,
until all the Obligations, Hedging Liability, and Funds Transfer and Deposit
Account Liability (other than unasserted contingent indemnification
obligations) shall have been paid in full subsequent to the termination of all
the Commitments and expiration of all Letters of Credit.  If any amount shall be paid to a Guarantor on
account of such subrogation rights at any time prior to the later of (x) the
payment in full of the Obligations, Hedging Liability, and Funds Transfer and
Deposit Account Liability (other than unasserted contingent indemnification
obligations) and all other amounts payable by the Borrower hereunder and the
other Loan Documents and (y) the termination of the Commitments and expiration
of all Letters of Credit, such amount shall be held in trust for the benefit of
the Administrative Agent and the Lenders (and their Affiliates) and shall
forthwith be paid to the Administrative Agent for the benefit of the Lenders
(and their Affiliates) or be credited and applied upon the Obligations, Hedging
Liability, and Funds Transfer and Deposit Account Liability then due and
payable, in accordance with the terms of this Agreement.


 


Section 12.5.               Waivers. 
Each Guarantor irrevocably waives acceptance hereof, presentment,
demand, protest, and any notice not provided for herein, as well as any
requirement that at any time any action be taken by the Administrative Agent,
any Lender, or any other Person against the Borrower or other obligor, another
guarantor, or any other Person.


 


Section 12.6.               Limit on Recovery. 
Notwithstanding any other provision hereof, the right of recovery
against each Guarantor under this Section 12 shall not exceed $1.00 less
than the lowest amount which would render such Guarantor’s obligations under
this Section 12 void or voidable under applicable law, including, without
limitation, fraudulent conveyance law.


 


Section 12.7.               Stay of Acceleration. 
If acceleration of the time for payment of any amount payable by the
Borrower or other obligor under this Agreement or any other Loan Document, or


 


71

















 


under any agreement
relating to Hedging Liability or Funds Transfer and Deposit Account Liability,
is stayed upon the insolvency, bankruptcy or reorganization of the Borrower or
such obligor, all such amounts otherwise subject to acceleration under the
terms of this Agreement or the other Loan Documents, or under any agreement
relating to Hedging Liability or Funds Transfer and Deposit Account Liability,
shall nonetheless be payable by the Guarantors hereunder forthwith on demand by
the Administrative Agent made at the request of the Required Lenders.


 


Section 12.8.               Benefit to Guarantors. 
The Borrower and the Guarantors are engaged in related businesses and
integrated to such an extent that the financial strength and flexibility of the
Borrower has a direct impact on the success of each Guarantor.  Each Guarantor will derive substantial direct
and indirect benefit from the extensions of credit hereunder.


 


Section 12.9.               Guarantor Covenants. 
Each Guarantor shall take such action as the Borrower is required by
this Agreement to cause such Guarantor to take, and shall refrain from taking
such action as the Borrower is required by this Agreement to prohibit such
Guarantor from taking.


 


SECTION 13.                                           MISCELLANEOUS.


 


Section 13.1.               Withholding
Taxes.


 


(a)             Payments Free of
Withholding.  Except as
otherwise required by law and subject to Section 13.1(b) hereof, each
payment by the Borrower and the Guarantors under this Agreement or the other
Loan Documents shall be made without withholding for or on account of any
present or future taxes (other than overall net income taxes on the recipient)
imposed by or within the jurisdiction in which the Borrower or such Guarantor
is domiciled, any jurisdiction from which the Borrower or such Guarantor makes
any payment, or (in each case) any political subdivision or taxing authority
thereof or therein.  If any such withholding
is so required, the Borrower or such Guarantor shall make the withholding, pay
the amount withheld to the appropriate governmental authority before penalties
attach thereto or interest accrues thereon, and forthwith pay such additional
amount as may be necessary to ensure that the net amount actually received by
each Lender and the Administrative Agent free and clear of such taxes
(including such taxes on such additional amount) is equal to the amount which
that Lender or the Administrative Agent (as the case may be) would have
received had such withholding not been made. 
If the Administrative Agent or any Lender pays any amount in respect of
any such taxes, penalties or interest, the Borrower or such Guarantor shall
reimburse the Administrative Agent or such Lender for that payment on demand in
the currency in which such payment was made. 
If the Borrower or such Guarantor pays any such taxes, penalties or
interest, it shall deliver official tax receipts evidencing that payment or
certified copies thereof to the Lender or Administrative Agent on whose account
such withholding was made (with a copy to the Administrative Agent if not the
recipient of the original) on or before the thirtieth day after payment.


 


(b)             U.S. Withholding Tax
Exemptions.  Each Lender that
is not a United States person (as such term is defined in Section 7701(a)(30)
of the Code) shall submit to the Borrower and the Administrative Agent on or
before the date the initial Credit Event is made hereunder or, if later,


 


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the date such financial
institution becomes a Lender hereunder, two duly completed and signed copies of
(i) either Form W-8 BEN (relating to such Lender and entitling
it to a complete exemption from withholding under the Code on all amounts to be
received by such Lender, including fees, pursuant to the Loan Documents and the
Obligations) or Form W-8 ECI (relating to all amounts to be received
by such Lender, including fees, pursuant to the Loan Documents and the
Obligations) of the United States Internal Revenue Service or (ii) solely
if such Lender is claiming exemption from United States withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of “portfolio interest”, a Form W-8 BEN,
or any successor form prescribed by the Internal Revenue Service, and a
certificate representing that such Lender is not a bank for purposes of Section 881(c) of
the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of
the Code) of the Borrower and is not a controlled foreign corporation related
to the Borrower (within the meaning of Section 864(d)(4) of the
Code).  Thereafter and from time to time,
each Lender shall submit to the Borrower and the Administrative Agent such
additional duly completed and signed copies of one or the other of such Forms
(or such successor forms as shall be adopted from time to time by the relevant
United States taxing authorities) and such other certificates as may be (i) requested
by the Borrower in a written notice, directly or through the Administrative
Agent, to such Lender and (ii) required under then-current United States
law or regulations to avoid or reduce United States withholding taxes on
payments in respect of all amounts to be received by such Lender, including
fees, pursuant to the Loan Documents or the Obligations.  Upon the request of the Borrower or the
Administrative Agent, each Lender that is a United States person (as such term
is defined in Section 7701(a)(30) of the Code) shall submit to the
Borrower and the Administrative Agent a certificate to the effect that it is
such a United States person.


 


(c)             Inability of Lender to
Submit Forms.  If any Lender
determines, as a result of any change in applicable law, regulation or treaty,
or in any official application or interpretation thereof, that it is unable to
submit to the Borrower or the Administrative Agent any form or certificate that
such Lender is obligated to submit pursuant to subsection (b) of this
Section 13.1 or that such Lender is required to withdraw or cancel any
such form or certificate previously submitted or any such form or certificate
otherwise becomes ineffective or inaccurate, such Lender shall promptly notify
the Borrower and Administrative Agent of such fact and the Lender shall to that
extent not be obligated to provide any such form or certificate and will be
entitled to withdraw or cancel any affected form or certificate, as applicable.


 


Section 13.2.               No Waiver, Cumulative Remedies. 
No delay or failure on the part of the Administrative Agent or any
Lender or on the part of the holder or holders of any of the Obligations in the
exercise of any power or right under any Loan Document shall operate as a
waiver thereof or as an acquiescence in any default, nor shall any single or
partial exercise of any power or right preclude any other or further exercise
thereof or the exercise of any other power or right.  The rights and remedies hereunder of the
Administrative Agent, the Lenders and of the holder or holders of any of the
Obligations are cumulative to, and not exclusive of, any rights or remedies
which any of them would otherwise have.


 


Section 13.3.               Non-Business Days. 
If any payment hereunder becomes due and payable on a day which is not a
Business Day, the due date of such payment shall be extended to the next
succeeding Business Day on which date such payment shall be due and
payable.  In the case of


 


73

















 


any payment of principal
falling due on a day which is not a Business Day, interest on such principal
amount shall continue to accrue during such extension at the rate per annum
then in effect, which accrued amount shall be due and payable on the next
scheduled date for the payment of interest.


 


Section 13.4.               Documentary Taxes. 
The Borrower agrees to pay on demand any documentary, stamp or similar
taxes payable in respect of this Agreement or any other Loan Document,
including interest and penalties, in the event any such taxes are assessed,
irrespective of when such assessment is made and whether or not any credit is
then in use or available hereunder.


 


Section 13.5.               Survival of Representations. 
All representations and warranties made herein or in any other Loan
Document or in certificates given pursuant hereto or thereto shall survive the
execution and delivery of this Agreement and the other Loan Documents, and
shall continue in full force and effect with respect to the date as of which
they were made as long as any credit is in use or available hereunder.


 


Section 13.6.               Survival of Indemnities. 
All indemnities and other provisions relative to reimbursement to the
Lenders of amounts sufficient to protect the yield of the Lenders with respect
to the Loans and Letters of Credit, including, but not limited to,
Sections 1.12, 10.3, and 13.15 hereof, shall survive the termination of
this Agreement and the other Loan Documents and the payment of the Obligations.


 


Section 13.7.               Sharing of Set-Off. 
Each Lender agrees with each other Lender a party hereto that if such
Lender shall receive and retain any payment, whether by set-off or application
of deposit balances or otherwise, on any of the Loans or Reimbursement
Obligations in excess of its ratable share of payments on all such Obligations
then outstanding to the Lenders, then such Lender shall purchase for cash at face
value, but without recourse, ratably from each of the other Lenders such amount
of the Loans or Reimbursement Obligations, or participations therein, held by
each such other Lenders (or interest therein) as shall be necessary to cause
such Lender to share such excess payment ratably with all the other Lenders; provided, however, that if any such purchase is made by any
Lender, and if such excess payment or part thereof is thereafter recovered from
such purchasing Lender, the related purchases from the other Lenders shall be
rescinded ratably and the purchase price restored as to the portion of such
excess payment so recovered, but without interest.  For purposes of this Section, amounts owed to
or recovered by the L/C Issuer in connection with Reimbursement Obligations in
which Lenders have been required to fund their participation shall be treated
as amounts owed to or recovered by the L/C Issuer as a Lender hereunder.


 


Section 13.8.               Notices. 
Except as otherwise specified herein, all notices hereunder and under
the other Loan Documents shall be in writing (including, without limitation,
notice by telecopy) and shall be given to the relevant party at its address or
telecopier number set forth below, or such other address or telecopier number
as such party may hereafter specify by notice to the Administrative Agent and
the Borrower given by courier, by United States certified or registered mail,
by telecopy or by other telecommunication device capable of creating a written
record of such notice and its receipt. 
Notices under the Loan Documents to any Lender shall be


 


74

















 


addressed to its address
or telecopier number set forth on its Administrative Questionnaire; and notices
under the Loans Documents to the Borrower, any Guarantor or the Administrative
Agent shall be addressed to their respective addresses or telecopier numbers
set forth below:


 


	
  to the Borrower or any Guarantor:

  	
   

  	
  to the Administrative Agent:

  
	
   

  	
   

  	
   

  
	
  Smart Business Advisory and 

  	
   

  	
  Bank of Montreal

  
	
  Consulting, LLC

  	
   

  	
  111 West Monroe Street

  
	
  80 Lancaster Avenue

  	
   

  	
  Chicago, Illinois 60603

  
	
  Devon, PA 19333

  	
   

  	
  Attention:

  
	
  Attention:

  	
  Richard J. Devine

  	
   

  	
  Telephone:

  
	
  Telephone:

  	
  215-832-3405

  	
   

  	
  Telecopy:

  
	
  Telecopy:

  	
  610-254-5290

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Great Hill Partners LLC

  	
   

  	
   

  
	
  One Liberty Square

  	
   

  	
   

  
	
  Boston, MA 02109

  	
   

  	
   

  
	
  Attention:   Aaron T. Miller

  	
   

  	
   

  
	
  Telephone:   617-790-9400

  	
   

  	
   

  
	
  Telecopy:   617-790-9401

  	
   

  	
   

  



 


Each such notice, request or other communication shall
be effective (i) if given by telecopier, when such telecopy is transmitted
to the telecopier number specified in this Section or in the relevant
Administrative Questionnaire and a confirmation of such telecopy has been
received by the sender, (ii) if given by mail, 5 days after such
communication is deposited in the mail, certified or registered with return
receipt requested, addressed as aforesaid or (iii) if given by any other
means, when delivered at the addresses specified in this Section or in the
relevant Administrative Questionnaire; provided that  any notice given pursuant to Section 1 hereof shall be
effective only upon receipt.


 


Section 13.9.               Counterparts. 
This Agreement may be executed in any number of counterparts, and by the
different parties hereto on separate counterpart signature pages, and all such
counterparts taken together shall be deemed to constitute one and the same
instrument.


 


Section 13.10.               Successors and Assigns. 
This Agreement shall be binding upon the Borrower and the Guarantors and
their successors and assigns, and shall inure to the benefit of the
Administrative Agent and each of the Lenders and the benefit of their
respective successors and assigns, including any subsequent holder of any of
the Obligations.  The Borrower and the
Guarantors may not assign any of their rights or obligations under any Loan
Document without the written consent of all of the Lenders.


 


Section 13.11.               Participants. 
Each Lender shall have the right at its own cost to grant participations
(to be evidenced by one or more agreements or certificates of participation) in
the Loans made and Reimbursement Obligations and/or Commitments held by such
Lender at any time and from time to time to one or more other Persons; provided that no such participation


 


75

















 


shall relieve any Lender
of any of its obligations under this Agreement, and, provided, further that no
such participant shall have any rights under this Agreement except as provided
in this Section, and the Administrative Agent shall have no obligation or responsibility
to such participant.  Any agreement
pursuant to which such participation  is
granted shall provide that the granting Lender shall retain the sole right and
responsibility to enforce the obligations of the Borrower under this Agreement
and the other Loan Documents including, without limitation, the right to
approve any amendment, modification or waiver of any provision of the Loan
Documents, except that such agreement may provide that such Lender will not
agree to any modification, amendment or waiver of the Loan Documents that would
reduce the amount of or postpone any fixed date for payment of any Obligation
in which such participant has an interest. 
Any party to which such a participation has been granted shall have the
benefits of Section 1.12 and Section 10.3 hereof.  The Borrower authorizes each Lender to
disclose to any participant or prospective participant under this Section any
financial or other information pertaining to the Borrower or any Subsidiary.


 


Section 13.12.               Assignments.  (a) Any
Lender may at any time assign to one or more Eligible Assignees all or a
portion of such Lender’s rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it); provided that any such assignment shall be subject to the
following conditions:


 


(i)         Minimum Amounts.  (A) In the case of an assignment of the
entire remaining amount of the assigning Lender’s Commitment and the Loans and
participation interest in L/C Obligations at the time owing to it or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved
Fund, no minimum amount need be assigned; and (B) in any case not
described in subsection (a)(i)(A) of this Section, the aggregate amount of
the Commitment (which for this purpose includes Loans and participation
interest in L/C Obligations outstanding thereunder) or, if the applicable
Commitment is not then in effect, the principal outstanding balance of the
Loans and participation interest in L/C Obligations of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent or, if “Effective Date” is specified in the Assignment and Acceptance, as
of the Effective Date) shall not be less than $5,000,000, in the case of any
assignment in respect of the Revolving Credit, or $1,000,000, in the case of
any assignment in respect of any Term Loan, unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be unreasonably withheld
or delayed);


 


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


 


76

















 


(iii)          Required Consents.  No
consent shall be required for any assignment except to the extent required by Section 13.12(a)(i)(B) and,
in addition:


 


(a)          the consent of the Borrower (such
consent not to be unreasonably withheld or delayed) shall be required unless (x) an
Event of Default  has occurred and is continuing
at the time of such assignment or (y) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;


 


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


 


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


 


(iv)          Assignment and Acceptance.  The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500, and the assignee, if it is not
a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.


 


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


 


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


 


Subject to acceptance and
recording thereof by the Administrative Agent pursuant to Section 13.12(b) hereof,
from and after the effective date specified in each Assignment and Acceptance,
the assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto) but shall continue to be entitled to the benefits of
Sections 13.6 and 13.15 with respect to facts and circumstances occurring
prior to the effective date of such assignment. 
Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this Section 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 Section 13.11 hereof.


 


77

















 


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


 


(c)             Any Lender may at any time pledge
or grant a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any such pledge or
grant to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or grant of a security interest; provided
that no such pledge or grant of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee or secured
party for such Lender as a party hereto; provided further, however,
the right of any such pledgee or grantee (other than any Federal Reserve Bank)
to further transfer all or any portion of the rights pledged or granted to it,
whether by means of foreclosure or otherwise, shall be at all times subject to
the terms of this Agreement.


 


Section 13.13.               Amendments.
 Any provision of this Agreement or the other
Loan Documents may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by (a) the Borrower, (b) the
Required Lenders, and (c) if the rights or duties of the Administrative
Agent or the L/C Issuer are affected thereby, the Administrative Agent or
such L/C Issuer, as applicable; provided that:


 


(i)         no amendment or waiver pursuant to this
Section 13.13 shall (A) increase any Commitment of any Lender without
the consent of such Lender or (B) reduce the amount of or postpone the
date for any scheduled payment of any principal of or interest on any Loan
(provided that amendments or waivers to the mandatory prepayment requirements
set forth in Section 1.9(b) shall not be deemed a reduction or
postponement of the payment of principal of any Loan) or of any Reimbursement
Obligation or of any fee payable hereunder without the consent of the Lender to
which such payment is owing or which has committed to make such Loan or Letter
of Credit (or participate therein) hereunder;


 


(ii)          no amendment or waiver pursuant to
this Section 13.13 shall, unless signed by each Lender, extend the
Revolving Credit Termination Date, change the definition of Required Lenders,
change the provisions of this Section 13.13, release any material
guarantor or any substantial part of the Collateral (except as otherwise
provided for in the Loan Documents), or affect the number of Lenders required
to take any action hereunder or under any other Loan Document; and


 


(iii)          no amendment to Section 12 hereof
shall be made without the consent of the Guarantor(s) affected thereby.


 


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Section 13.14.               Headings. Section headings used in this
Agreement are for reference only and shall not affect the construction of this
Agreement.


 


Section 13.15.               Costs and Expenses;
Indemnification.  (a) The Borrower agrees to pay all costs
and expenses of the Administrative Agent in connection with the preparation,
negotiation, syndication, and administration of the Loan Documents, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent, in connection with the preparation and execution of the
Loan Documents, and any amendment, waiver or consent related thereto, whether
or not the transactions contemplated herein are consummated, together with any
fees and charges suffered or incurred by the Administrative Agent in connection
with periodic environmental audits, fixed asset appraisals, title insurance
policies, collateral filing fees and lien searches.  The Borrower agrees to pay to the
Administrative Agent and each Lender, and any other holder of any Loan
outstanding hereunder, all costs and expenses reasonably incurred or paid by
the Administrative Agent and such Lender or any such holder, including reasonable
attorneys’ fees and disbursements (limited to one firm of counsel to the
Administrative Agent and one firm of counsel to the Lenders) and court costs,
in connection with any Default or Event of Default hereunder or in connection
with the enforcement of any of the Loan Documents (including all such costs and
expenses incurred in connection with any proceeding under the United States
Bankruptcy Code involving the Borrower or any Subsidiary as a debtor
thereunder).  The Borrower further agrees
to indemnify the Administrative Agent, each Lender, and any security trustee
therefor, and their respective directors, officers, employees, agents,
financial advisors, and consultants (each such Person being called an “Indemnitee”) against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all
reasonable fees and disbursements of counsel for any such Indemnitee and all
reasonable expenses of litigation or preparation therefor, whether or not the
Indemnitee is a party thereto, or any settlement arrangement arising from or
relating to any such litigation) which any of them may pay or incur arising out
of or relating to any Loan Document or any of the transactions contemplated
thereby or the direct or indirect application or proposed application of the
proceeds of any Loan or Letter of Credit, other than those which arise from the
gross negligence or willful misconduct of the party claiming
indemnification.  The Borrower, upon demand
by the Administrative Agent or a Lender at any time, shall reimburse the
Administrative Agent or such Lender for any legal or other expenses (including,
without limitation, all reasonable fees and disbursements of counsel for any
such Indemnitee) incurred in connection with investigating or defending against
any of the foregoing (including any settlement costs relating to the foregoing)
except if the same is directly due to the gross negligence or willful
misconduct of the party to be indemnified. 
To the extent permitted by applicable law, neither the Borrower nor any
Guarantor shall assert, and each such Person hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or the
other Loan Documents or any agreement or instrument contemplated hereby or
thereby, the transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. 
The obligations of the Borrower under this Section shall survive
the termination of this Agreement.


 


(b)             The Borrower unconditionally agrees
to forever indemnify, defend and hold harmless, and covenants not to sue for
any claim for contribution against, each Indemnitee for


 


79

















 


any damages, costs, loss
or expense, including without limitation, response, remedial or removal costs
and all fees and disbursements of counsel to any such Indemnitee, arising out
of any of the following:  (i) any
presence, release, threatened release or disposal of any hazardous or toxic
substance or petroleum by the Borrower or any Subsidiary or otherwise occurring
on or with respect to its Property (whether owned or leased), (ii) the
operation or violation of any environmental law, whether federal, state, or
local, and any regulations promulgated thereunder, by the Borrower or any
Subsidiary or otherwise occurring on or with respect to its Property (whether
owned or leased), (iii) any claim for personal injury or property damage
in connection with the Borrower or any Subsidiary or otherwise occurring on or
with respect to its Property (whether owned or leased), and (iv) the
inaccuracy or breach of any environmental representation, warranty or covenant
by the Borrower or any Subsidiary made herein or in any other Loan Document
evidencing or securing any Obligations or setting forth terms and conditions
applicable thereto or otherwise relating thereto, except for damages arising
from the willful misconduct or gross negligence of the party claiming
indemnification.  This indemnification
shall survive the payment and satisfaction of all Obligations and the
termination of this Agreement, and shall remain in force beyond the expiration
of any applicable statute of limitations and payment or satisfaction in full of
any single claim under this indemnification. 
This indemnification shall be binding upon the successors and assigns of
the Borrower and shall inure to the benefit of each Indemnitee and its
successors and assigns.


 


Section 13.16.               Set-off. 
In addition to any rights now or hereafter granted under the Loan
Documents or applicable law and not by way of limitation of any such rights,
upon the occurrence of any Event of Default, each Lender, each L/C Issuer, each
subsequent holder of any Obligation, and each of their respective affiliates,
is hereby authorized by the Borrower and each Guarantor at any time or from
time to time, without notice to the Borrower, any Guarantor or to any other
Person, any such notice being hereby expressly waived, to set-off and to
appropriate and to apply any and all deposits (general or special, including,
but not limited to, indebtedness evidenced by certificates of deposit, whether
matured or unmatured, and in whatever currency denominated, but not including
trust accounts) and any other indebtedness at any time held or owing by that
Lender, L/C Issuer, subsequent holder, or affiliate, to or for the credit or
the account of the Borrower or such Guarantor, whether or not matured, against
and on account of the Obligations of the Borrower or such Guarantor to that
Lender, L/C Issuer, or subsequent holder under the Loan Documents, including,
but not limited to, all claims of any nature or description arising out of or
connected with the Loan Documents, irrespective of whether or not (a) that
Lender, L/C Issuer, or subsequent holder shall have made any demand hereunder
or (b) the principal of or the interest on the Loans and other amounts due
hereunder shall have become due and payable pursuant to Section 9 and
although said obligations and liabilities, or any of them, may be contingent or
unmatured.


 


Section 13.17.               Entire Agreement. 
The Loan Documents constitute the entire understanding of the parties
thereto with respect to the subject matter thereof and any prior agreements,
whether written or oral, with respect thereto are superseded hereby.


 


Section 13.18.               Governing Law. 
This Agreement and the other Loan Documents (except as otherwise
specified therein), and the rights and duties of the parties hereto, shall be
construed and determined in accordance with the internal laws of the State of
New York.


 


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Section 13.19.               Severability of Provisions. 
Any provision of any Loan Document which is unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.  All rights, remedies and
powers provided in this Agreement and the other Loan Documents may be exercised
only to the extent that the exercise thereof does not violate any applicable
mandatory provisions of law, and all the provisions of this Agreement and other
Loan Documents are intended to be subject to all applicable mandatory
provisions of law which may be controlling and to be limited to the extent
necessary so that they will not render this Agreement or the other Loan
Documents invalid or unenforceable.


 


Section 13.20.               Excess Interest. 
Notwithstanding any provision to the contrary contained herein or in any
other Loan Document, no such provision shall require the payment or permit the
collection of any amount of interest in excess of the maximum amount of
interest permitted by applicable law to be charged for the use or detention, or
the forbearance in the collection, of all or any portion of the Loans or other
obligations outstanding under this Agreement or any other Loan Document (“Excess Interest”). 
If any Excess Interest is provided for, or is adjudicated to be provided
for, herein or in any other Loan Document, then in such event (a) the
provisions of this Section shall govern and control, (b) neither the
Borrower nor any guarantor or endorser shall be obligated to pay any Excess
Interest, (c) any Excess Interest that the Administrative Agent or any
Lender may have received hereunder shall, at the option of the Administrative
Agent, be (i) applied as a credit against the then outstanding principal
amount of Obligations hereunder and accrued and unpaid interest thereon (not to
exceed the maximum amount permitted by applicable law), (ii) refunded to
the Borrower, or (iii) any combination of the foregoing, (d) the
interest rate payable hereunder or under any other Loan Document shall be
automatically subject to reduction to the maximum lawful contract rate allowed
under applicable usury laws (the “Maximum Rate”),
and this Agreement and the other Loan Documents shall be deemed to have been,
and shall be, reformed and modified to reflect such reduction in the relevant
interest rate, and (e) neither the Borrower nor any guarantor or endorser
shall have any action against the Administrative Agent or any Lender for any
damages whatsoever arising out of the payment or collection of any Excess
Interest.  Notwithstanding the foregoing,
if for any period of time interest on any of Borrower’s Obligations is
calculated at the Maximum Rate rather than the applicable rate under this
Agreement, and thereafter such applicable rate becomes less than the Maximum
Rate, the rate of interest payable on the Borrower’s Obligations shall remain
at the Maximum Rate until the Lenders have received the amount of interest
which such Lenders would have received during such period on the Borrower’s
Obligations had the rate of interest not been limited to the Maximum Rate
during such period.


 


Section 13.21.               Construction. 
The parties acknowledge and agree that the Loan Documents shall not be
construed more favorably in favor of any party hereto based upon which party
drafted the same, it being acknowledged that all parties hereto contributed
substantially to the negotiation of the Loan Documents.  The provisions of this Agreement relating to
Subsidiaries shall only apply during such times as the Borrower has one or more
Subsidiaries.  NOTHING CONTAINED HEREIN
SHALL BE DEEMED OR CONSTRUED TO PERMIT ANY ACT OR OMISSION WHICH IS PROHIBITED
BY THE TERMS OF ANY COLLATERAL DOCUMENT, THE COVENANTS AND AGREEMENTS


 


81

















 


CONTAINED HEREIN BEING IN
ADDITION TO AND NOT IN SUBSTITUTION FOR THE COVENANTS AND AGREEMENTS CONTAINED
IN THE COLLATERAL DOCUMENTS.


 


Section 13.22.               Lender’s Obligations Several. 
The obligations of the Lenders hereunder are several and not joint.  Nothing contained in this Agreement and no
action taken by the Lenders pursuant hereto shall be deemed to constitute the
Lenders a partnership, association, joint venture or other entity.


 


Section 13.23.               Submission to Jurisdiction;
Waiver of Jury Trial.  The Borrower and the Guarantors hereby submit
to the nonexclusive jurisdiction of the United States District Court for the
Northern District of Illinois and of any Illinois State court sitting in the
City of Chicago  for purposes of all legal
proceedings arising out of or relating to this Agreement, the other Loan
Documents or the transactions contemplated hereby or thereby.  The Borrower and the Guarantors irrevocably
waive, to the fullest extent permitted by law, any objection which they may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.  THE
BORROWER, THE GUARANTORS, THE ADMINISTRATIVE AGENT, AND THE LENDERS HEREBY
IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED THEREBY.


 


Section 13.24.               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 name
and address of the Borrower and other information that will allow such Lender
to identify the Borrower in accordance with the Act.


 


Section 13.25.               Confidentiality. 
Each of the Administrative Agent, the Lenders and the L/C Issuer agrees
to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its and its Affiliates’
directors, officers, employees and agents, including accountants, legal counsel
and other advisors to the extent any such Person has a need to know such
Information (it being understood that the Persons to whom such disclosure is
made will first be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority (including any self-regulatory authority,
such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process, (d) to any other party hereto, (e) in connection with
the exercise of any remedies hereunder or under any other Loan Document or any
suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (A) any assignee of or participant in, or any prospective
assignee of or participant in, any of its rights or obligations under this
Agreement or (B) any actual or prospective counterparty (or its advisors)
to any swap or derivative transaction relating to the Borrower or any
Subsidiary and its obligations, (g) with the prior written consent of the
Borrower, (h) to the extent such Information (A) becomes publicly
available other than as a result of a breach of this


 


82

















 


Section or (B) becomes
available to the Administrative Agent, any Lender or the L/C Issuer on a
non-confidential basis from a source other than the Borrower or any Subsidiary
or any of their directors, officers, employees or agents, including accountants,
legal counsel and other advisors, (i) to rating agencies if requested or
required by such agencies in connection with a rating relating to the Loans or
Commitments hereunder, or (j) to entities which compile and publish
information about the syndicated loan market, provided
that only basic information about the pricing and structure of the transaction
evidenced hereby may be disclosed pursuant to this subsection (j).  For purposes of this Section, “Information” means all information received from the
Borrower or any of the Subsidiaries or from any other Person on behalf of the
Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of
their respective businesses, other than any such information that is available
to the Administrative Agent, any Lender or the L/C Issuer on a non-confidential
basis prior to disclosure by the Borrower or any of its Subsidiaries or from
any other Person on behalf of the Borrower or any of the Subsidiaries.


 


[SIGNATURE PAGES TO
FOLLOW]


 


83

















 


This Credit Agreement is entered into between us for
the uses and purposes hereinabove set forth as of the date first above written.


 


	
   

  	
  “BORROWER”

  
	
   

  	
   

  
	
   

  	
  SMART BUSINESS
  ACQUISITION, LLC (to be known as Smart Business Advisory and Consulting, LLC)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
  “GUARANTORS”

  
	
   

  	
   

  
	
   

  	
  SMART BUSINESS HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  



 


S-1

















 


	
   

  	
  “ADMINISTRATIVE AGENT”

  
	
   

  	
   

  
	
   

  	
  BANK OF MONTREAL, as
  L/C Issuer, and as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
  “LENDERS”

  
	
   

  	
   

  
	
   

  	
  BMO CAPITAL MARKETS
  FINANCING, INC., as a Lender and as Swing Line Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF MONTREAL, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  



 


S-2

















 


EXHIBIT A


 


NOTICE OF PAYMENT
REQUEST


 


[Date]


 


[Name of Lender]


[Address]


 


Attention:


 


Reference is made to the Credit Agreement, dated as of
May 15, 2007, among SMART BUSINESS ACQUISITION, LLC (to be known as Smart
Business Advisory and Consulting, LLC), the Guarantors party thereto, the
Lenders party thereto, and BANK OF MONTREAL, as Administrative Agent (as
extended, renewed, amended or restated from time to time, the “Credit Agreement”). 
Capitalized terms used herein and not defined herein have the meanings
assigned to them in the Credit Agreement. 
[The Borrower has failed to pay its Reimbursement Obligation in the
amount of $                        .  Your Revolver Percentage of the unpaid Reimbursement
Obligation is
$                          ]
or [                                                    
has been required to return a payment by the Borrower of a Reimbursement
Obligation in the amount of
$                              .  Your Revolver Percentage of the returned
Reimbursement Obligation is
$                              .]


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
   

  	
  ,

  
	
   

  	
  as L/C Issuer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  
						



 

















 


EXHIBIT B


 


NOTICE OF BORROWING


 


Date:                              ,         


 


To:                       Bank of Montreal, as Administrative Agent
for the Lenders parties to the Credit Agreement dated as of May 15, 2007
(as extended, renewed, amended or restated from time to time, the “Credit Agreement”), among Smart Business Acquisition, LLC
(to be known as Smart Business Advisory and Consulting, LLC), certain Lenders
which are signatories thereto, and Bank of Montreal, as Administrative Agent


 


Ladies and Gentlemen:


 


The undersigned, Smart Business Acquisition, LLC (to
be known as Smart Business Advisory and Consulting, LLC) (the “Borrower”), refers to the Credit Agreement, the terms
defined therein being used herein as therein defined, and hereby gives you
notice irrevocably, pursuant to Section 1.6 of the Credit Agreement, of
the Borrowing specified below:


 


1.         The Business Day of the proposed
Borrowing is
                      ,
        .


 


2.         The aggregate amount of the proposed
Borrowing is
$                            .


 


3.         The Borrowing is being advanced under
the [Revolving]  [Term B]
Credit.


 


4.         The Borrowing is to be comprised of
$                      
of [Base Rate] [Eurodollar] Loans.


 


[5.      The duration of the Interest Period for
the Eurodollar Loans included in the Borrowing shall be
                        
months.]


 


The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
proposed Borrowing, before and after giving effect thereto and to the
application of the proceeds therefrom:


 


(a)          the representations and warranties of
the Borrower contained in Section 6 of the Credit Agreement are true and
correct as though made on and as of such date (except to the extent such
representations and warranties relate to an earlier date, in which case they
are true and correct as of such date); and


 


(b)         no Default or Event of Default has
occurred and is continuing or would result from such proposed Borrowing.


 


	
   

  	
  SMART BUSINESS ACQUISITION, LLC (to be known as
  Smart Business Advisory and Consulting, LLC)

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  



 

















 


EXHIBIT C


 


NOTICE OF
CONTINUATION/CONVERSION


 


Date: 
                        ,            


 


To:                  Bank of Montreal, as Administrative Agent
for the Lenders parties to the Credit Agreement dated as of May 15, 2007
(as extended, renewed, amended or restated from time to time, the “Credit Agreement”), among Smart Business Acquisition, LLC
(to be known as Smart Business Advisory and Consulting, LLC), certain Lenders
which are signatories thereto, and Bank of Montreal, as Administrative Agent


 


Ladies and Gentlemen:


 


The undersigned, Smart Business Acquisition, LLC (to
be known as Smart Business Advisory and Consulting, LLC) (the “Borrower”), refers to the Credit Agreement, the terms
defined therein being used herein as therein defined, and hereby gives you
notice irrevocably, pursuant to Section 1.6 of the Credit Agreement, of
the [conversion] [continuation] of the
Loans specified herein, that:


 


1.         The conversion/continuation Date is
                    ,
        .


 


2.         The aggregate amount of the [Revolving] [Term B] Loans to be [converted]
[continued] is
$                            .


 


3.         The Loans are to be [converted into]
[continued as] [Eurodollar] [Base Rate] Loans.


 


4.         [If applicable:]  The duration of the Interest Period for the [Revolving] [Term B] Loans included in the [conversion] [continuation] shall be
                
months.


 


The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the proposed
conversion/continuation date, before and after giving effect thereto and to the
application of the proceeds therefrom:


 


(a)          the representations and warranties of
the Borrower contained in Section 6 of the Credit Agreement are true and
correct as though made on and as of such date (except to the extent such
representations and warranties relate to an earlier date, in which case they
are true and correct as of such date); provided, however,
that this condition shall not apply to the conversion of an outstanding
Eurodollar Loan to a Base Rate Loan; and


 


(b)         no Default or Event of Default has
occurred and is continuing, or would result from such proposed [conversion] [continuation].


 


	
   

  	
  SMART BUSINESS ACQUISITION, LLC (to be known as
  Smart Business Advisory and Consulting, LLC)

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  



 
















 


EXHIBIT D-1


 


TERM B NOTE


 


	
  U.S. $

  	
   

  	
  May 15, 2007

  



 


FOR VALUE RECEIVED, the undersigned, SMART BUSINESS
ACQUISITION, LLC (to be known as Smart Business Advisory and Consulting, LLC),
a Delaware limited liability company (the “Borrower”),
hereby promises to pay to the order of
                                                  
(the “Lender”) at the principal office of
Bank of Montreal, as Administrative Agent, in Chicago, Illinois, in immediately
available funds, the principal sum of
                                
Dollars
($                    )
or, if less, the aggregate unpaid principal amount of all Term B Loans
made or maintained by the Lender to the Borrower pursuant to the Credit
Agreement, in installments in the amounts called for by Section 1.8(a) of
the Credit Agreement, commencing on September 30, 2007, together with
interest on the principal amount of such Term B Loan from time to time
outstanding hereunder at the rates, and payable in the manner and on the dates,
specified in the Credit Agreement.


 


This Note is one of the Term B Notes referred to
in the Credit Agreement dated as of May 15, 2007, among the Borrower, the
Guarantors party thereto, the Lenders party thereto, and Bank of Montreal, as
Administrative Agent for the Lenders (as extended, renewed, amended or restated
from time to time, the “Credit Agreement”),
and this Note and the holder hereof are entitled to all the benefits and
security provided for thereby or referred to therein, to which Credit Agreement
reference is hereby made for a statement thereof.  All defined terms used in this Note, except
terms otherwise defined herein, shall have the same meaning as in the Credit
Agreement.  This Note shall be governed
by and construed in accordance with the internal laws of the State of New York.


 


Voluntary prepayments may be made hereon, certain
prepayments are required to be made hereon, and this Note may be declared due
prior to the expressed maturity hereof, all in the events, on the terms and in
the manner as provided for in the Credit Agreement.


 


The Borrower hereby
waives demand, presentment, protest or notice of any kind hereunder.


 


	
   

  	
  SMART BUSINESS ACQUISITION, LLC (to be known as
  Smart Business Advisory and Consulting, LLC)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  



 

















 


EXHIBIT D-2


 


REVOLVING NOTE


 


	
  U.S. $

  	
   

  	
  May 15, 2007

  



 


FOR VALUE RECEIVED, the undersigned, SMART BUSINESS
ACQUISITION, LLC (to be known as Smart Business Advisory and Consulting, LLC)],
a Delaware limited liability company (the “Borrower”),
hereby promises to pay to the order of                                         
(the “Lender”) on the Revolving Credit
Termination Date of the hereinafter defined Credit Agreement, at the principal
office of Bank of Montreal, as Administrative Agent, in Chicago, Illinois, in
immediately available funds, the principal sum of
                                      
Dollars
($                    )
or, if less, the aggregate unpaid principal amount of all Revolving Loans made
by the Lender to the Borrower pursuant to the Credit Agreement, together with
interest on the principal amount of each Revolving Loan from time to time
outstanding hereunder at the rates, and payable in the manner and on the dates,
specified in the Credit Agreement.


 


This Note is one of the Revolving Notes referred to in
the Credit Agreement dated as of May 15, 2007, among the Borrower, the
Guarantors party thereto, the Lenders party thereto, and Bank of Montreal, as
Administrative Agent for the Lenders (as extended, renewed, amended or restated
from time to time, the “Credit Agreement”),
and this Note and the holder hereof are entitled to all the benefits and
security provided for thereby or referred to therein, to which Credit Agreement
reference is hereby made for a statement thereof.  All defined terms used in this Note, except
terms otherwise defined herein, shall have the same meaning as in the Credit
Agreement.  This Note shall be governed
by and construed in accordance with the internal laws of the State of New York.


 


Voluntary prepayments may be made hereon, certain
prepayments are required to be made hereon, and this Note may be declared due
prior to the expressed maturity hereof, all in the events, on the terms and in
the manner as provided for in the Credit Agreement.


 


The Borrower hereby
waives demand, presentment, protest or notice of any kind hereunder.


 


	
   

  	
  SMART BUSINESS ACQUISITION, LLC (to be known as
  Smart Business Advisory and Consulting, LLC)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  



 

















 


EXHIBIT D-3


 


SWING NOTE


 


	
  U.S. $

  	
   

  	
  May 15, 2007

  



 


FOR VALUE RECEIVED, the undersigned, SMART BUSINESS
ACQUISITION, LLC (to be known as Smart Business Advisory and Consulting, LLC),
a Delaware limited liability company (the “Borrower”),
hereby promises to pay to the order of
                                      
(the “Lender”) on the Revolving Credit Termination
Date of the hereinafter defined Credit Agreement, at the principal office of
Bank of Montreal, as Administrative Agent, in Chicago, Illinois, in immediately
available funds, the principal sum of
                                                
Dollars
($                      )
or, if less, the aggregate unpaid principal amount of all Swing Loans made by
the Lender to the Borrower pursuant to the Credit Agreement, together with
interest on the principal amount of each Swing Loan from time to time
outstanding hereunder at the rates, and payable in the manner and on the dates,
specified in the Credit Agreement.


 


This Note is the Swing Note referred to in the Credit
Agreement dated as of May 15, 2007, among the Borrower, the Guarantors
party thereto, the Lenders party thereto, and Bank of Montreal, as
Administrative Agent for the Lenders (as extended, renewed, amended or restated
from time to time, the “Credit Agreement”),
and this Note and the holder hereof are entitled to all the benefits and security
provided for thereby or referred to therein, to which Credit Agreement
reference is hereby made for a statement thereof.  All defined terms used in this Note, except
terms otherwise defined herein, shall have the same meaning as in the Credit
Agreement.  This Note shall be governed
by and construed in accordance with the internal laws of the State of New York.


 


Voluntary prepayments may be made hereon, certain
prepayments are required to be made hereon, and this Note may be declared due
prior to the expressed maturity hereof, all in the events, on the terms and in
the manner as provided for in the Credit Agreement.


 


The Borrower hereby
waives demand, presentment, protest or notice of any kind hereunder.


 


	
   

  	
  SMART BUSINESS ACQUISITION, LLC (to be known as Smart
  Business Advisory and Consulting, LLC)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  



 

















 


EXHIBIT E


 


SMART BUSINESS
ACQUISITION, LLC

(to be known as Smart Business Advisory and Consulting, LLC)


 


COMPLIANCE CERTIFICATE


 


To:                              Bank of Montreal, as Administrative

Agent under, and the Lenders party to,

the Credit Agreement described below


 


This Compliance Certificate is furnished to the
Administrative Agent and the Lenders pursuant to that certain Credit Agreement
dated as of May 15, 2007, among us (as extended, renewed, amended or
restated from time to time, the “Credit Agreement”).  Unless otherwise defined herein, the terms
used in this Compliance Certificate have the meanings ascribed thereto in the
Credit Agreement.


 


THE UNDERSIGNED HEREBY CERTIFIES THAT:


 


1.            I am the duly elected
                        
of Smart Business Acquisition, LLC (to be known as Smart Business Advisory and
Consulting, LLC);


 


2.            I have reviewed the terms of the
Credit Agreement and I have made, or have caused to be made under my
supervision, a detailed review of the transactions and conditions of the
Borrower and its Subsidiaries during the accounting period covered by the
attached financial statements;


 


3.            The examinations described in
paragraph 2 did not disclose, and I have no knowledge of, the existence of
any condition or the occurrence of any event which constitutes a Default or
Event of Default during or at the end of the accounting period covered by the
attached financial statements or as of the date of this Compliance Certificate,
except as set forth below;


 


4.            The financial statements required by
Section 8.5 of the Credit Agreement and being furnished to you
concurrently with this Compliance Certificate are true, correct and complete as
of the date and for the periods covered thereby; and


 


5.            The Schedule I hereto sets
forth financial data and computations evidencing the Borrower’s compliance with
certain covenants of the Credit Agreement, all of which data and computations
are, to the best of my knowledge, true, complete and correct and have been made
in accordance with the relevant Sections of the Credit Agreement.


 

















 


Described below are the
exceptions, if any, to paragraph 3 by listing, in detail, the nature of
the condition or event, the period during which it has existed and the action
which the Borrower has taken, is taking, or proposes to take with respect to
each such condition or event:


 


 


 


The foregoing certifications, together with the
computations set forth in Schedule I hereto and the financial statements
delivered with this Certificate in support hereof, are made and delivered this
             day of
                                    
20      .


 


	
   

  	
  [INSERT NAME OF
  BORROWER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  



 


2
















 


SCHEDULE
I


TO
COMPLIANCE CERTIFICATE


 


SMART
BUSINESS ACQUISITION, LLC

(TO BE KNOWN AS SMART BUSINESS ADVISORY AND CONSULTING, LLC)


 


COMPLIANCE
CALCULATIONS


FOR
CREDIT AGREEMENT DATED AS OF MAY 15, 2007


 


CALCULATIONS AS OF
                  ,
        


 


	
  A.

  	
  Total Funded
  Debt/EBITDA Ratio (Section 8.22(a))

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Total Funded Debt

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Net Income for past 4
  quarters

  	
   

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Interest Expense for
  past 4 quarters

  	
   

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.

  	
  Income taxes for past 4
  quarters

  	
   

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.

  	
  Depreciation and
  Amortization Expense for past 4 quarters

  	
   

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.

  	
  Management Fees paid
  during past 4 quarters

  	
   

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.

  	
  Schedule 5.1
  Adjustments for past 4 quarters (if applicable)

  	
   

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.

  	
  Pro Forma adjustments
  acceptable to Administrative Agent

  	
   

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.

  	
  Sum of Lines A2, A3,
  A4, A5, A6, A7 and A8 (“EBITDA”)

  	
   

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.

  	
  Ratio of Line A1 to A9

  	
   

  	
       :1.0

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.

  	
  Line A10 ratio must not
  exceed

  	
   

  	
       :1.0

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.

  	
  Compliance (circle yes
  or no)

  	
   

  	
  yes/no

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
  Fixed Charge
  Coverage Ratio (Section 8.22.(b))

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Net Income for
  past 4 quarters

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Interest Expense for
  past 4 quarters

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Income taxes for past 4
  quarters

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.

  	
  Depreciation and
  Amortization Expense for past 4 quarters

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.

  	
  Management Fees paid
  during past 4 quarters

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.

  	
  Schedule 5.1
  Adjustments for past 4 quarters (if applicable)

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.

  	
  Pro Forma adjustments
  acceptable to Administrative Agent

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.

  	
  Sum of lines B1, B2,
  B3, B4, B5, B6 and B7 (“EBITDA”)

  	
   

  	
  $

  	
               

  



 

















 


	
   

  	
  9.

  	
  Principal payments for
  past 4 quarters

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.

  	
  Interest Expense for
  past 4 quarters

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.

  	
  Management Fees paid
  during past 4 quarters

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.

  	
  Restricted Payments per
  8.12(c) during past 4 quarters

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.

  	
  Income taxes for past 4
  quarters

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.

  	
  Sum of Lines B9, B10,
  B11, B12, and B13

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.

  	
  Ratio of Line B8 to
  Line B14

  	
   

  	
       :1.0

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.

  	
  Line B15 ratio must not
  be less than

  	
   

  	
       :1.0

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.

  	
  Compliance (circle yes
  or no)

  	
   

  	
  yes/no

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
  Minimum EBITDA
  (Section 8.22(c))

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Net Income for past 4
  quarters

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Interest Expense for
  past 4 quarters

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Income taxes for past 4
  quarters

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.

  	
  Depreciation and
  Amortization for past 4 quarters

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.

  	
  Sum of Lines C1, C2, C3
  and C4 (“EBITDA”)

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.

  	
  Minimum Required Amount
  *

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.

  	
  Compliance (circle yes
  or no)

  	
   

  	
  yes/no

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.

  	
  Capital Expenditures
  (Section 8.22(c))

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Year-to-date Capital
  Expenditures

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Maximum permitted
  amount

  	
   

  	
  $

  	
               

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Compliance (circle yes or no)

  	
   

  	
  yes/no

  



 






* To be increased by an
amount equal to 80% of EBITDA of the Target of each Permitted Acquisition.


 


2

















 


EXHIBIT F


 


ADDITIONAL GUARANTOR
SUPPLEMENT


 


                    ,        


 


Bank
of Montreal, as Administrative Agent for the Lenders named in the Credit
Agreement dated as of May 15, 2007, among Smart Business Acquisition, LLC
(to be known as Smart Business Advisory and Consulting, LLC), as Borrower, the
Guarantors referred to therein, the Lenders from time to time party thereto,
and the Administrative Agent (as extended, renewed, amended or restated from
time to time, the “Credit Agreement”)


 


Ladies
and Gentlemen:


 


Reference is made to the Credit Agreement described above.  Terms not defined herein which are defined in
the Credit Agreement shall have for the purposes hereof the meaning provided
therein.


 


The undersigned, [name of Subsidiary
Guarantor], a [jurisdiction of
incorporation or organization] hereby elects to be a “Guarantor” for all purposes of the Credit Agreement,
effective from the date hereof.  The
undersigned confirms that the representations and warranties set forth in Section 6
of the Credit Agreement are true and correct as to the undersigned as of the
date hereof and the undersigned shall comply with each of the covenants set
forth in Section 8 of the Credit Agreement applicable to it.


 


Without limiting the generality of the foregoing, the undersigned
hereby agrees to perform all the obligations of a Guarantor under, and to be
bound in all respects by the terms of, the Credit Agreement, including without
limitation Section 12 thereof, to the same extent and with the same force
and effect as if the undersigned were a signatory party thereto.


 

















 


The undersigned acknowledges that this Agreement shall be effective
upon its execution and delivery by the undersigned to the Administrative Agent,
and it shall not be necessary for the Administrative Agent or any Lender, or
any of their Affiliates entitled to the benefits hereof, to execute this
Agreement or any other acceptance hereof. 
This Agreement shall be construed in accordance with and governed by the
internal laws of the State of New York.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [NAME OF SUBSIDIARY
  GUARANTOR]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  



 


2

















 


EXHIBIT G


 


ASSIGNMENT
AND ACCEPTANCE


 


Dated
                 ,     


 


Reference is made to the Credit Agreement dated as of May 15, 2007
(as extended, renewed, amended or restated from time to time, the “Credit Agreement”) among Smart Business Acquisition, LLC
(to be known as Smart Business Advisory and Consulting, LLC), the Guarantors
party thereto, the Lenders party thereto, and Bank of Montreal, as
Administrative Agent for the Lenders (the “Administrative Agent”).  Terms defined in the Credit Agreement are
used herein with the same meaning.


 


                                                                                               
(the “Assignor”) and
                                       
(the “Assignee”) agree as follows:


 


1.         The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, the amount and
specified percentage interest shown on Annex I hereto of the Assignor’s
rights and obligations under the Credit Agreement as of the Effective Date (as
defined below), including, without limitation, the Assignor’s Commitments as in
effect on the Effective Date and the Loans, if any, owing to the Assignor on
the Effective Date and the Assignor’s Revolver Percentage of any outstanding L/C
Obligations.


 


2.         The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim, lien, or encumbrance
of any kind; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto; and (iii) makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any Subsidiary or the performance or
observance by the Borrower or any Subsidiary of any of their respective
obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto.


 


3.         The Assignee (i) confirms that it has received a copy
of the Credit Agreement, together with copies of the most recent financial
statements delivered to the Lenders pursuant to Section 8.5(a) and (b) thereof
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without reliance
upon the Administrative Agent, the Assignor 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 decisions in taking or not taking action under
the Credit Agreement; (iii) appoints and authorizes the Administrative
Agent to take such action as


 

















 


Administrative Agent on its behalf and to exercise
such powers under the Credit Agreement and the other Loan Documents as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (iv) agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of the Credit Agreement are required to be performed by it as a Lender;
and (v) specifies as its lending office (and address for notices) the
offices set forth on its Administrative Questionnaire.


 


4.         As consideration for the assignment and sale contemplated in
Annex I hereof, the Assignee shall pay to the Assignor on the Effective
Date in Federal funds the amount agreed upon between them.  It is understood that commitment and/or letter
of credit fees accrued to the Effective Date with respect to the interest
assigned hereby are for the account of the Assignor and such fees accruing from
and including the Effective Date are for the account of the Assignee.  Each of the Assignor and the Assignee hereby
agrees that if it receives any amount under the Credit Agreement which is for
the account of the other party hereto, it shall receive the same for the
account of such other party to the extent of such other party’s interest
therein and shall promptly pay the same to such other party.


 


5.         The effective date for this Assignment and Acceptance shall
be
                      
(the “Effective Date”).  Following the execution of this Assignment
and Acceptance, it will be delivered to the Administrative Agent for acceptance
and recording by the Administrative Agent and, if required, the Borrower.


 


6.         Upon such acceptance and recording, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to
the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.


 


7.         Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments under the
Credit Agreement in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with respect
thereto) to the Assignee.  The Assignor
and Assignee shall make all appropriate adjustments in payments under the
Credit Agreement for periods prior to the Effective Date directly between
themselves.


 


2

















 


8.         This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.


 


	
   

  	
  [ASSIGNOR LENDER]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [ASSIGNEE LENDER]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  



 


	
  Accepted
  and consented this

  	
   

  
	
              
  day of              

  	
   

  
	
   

  	
   

  
	
  SMART
  BUSINESS ACQUISITION, LLC

  	
   

  
	
  (to
  be known as Smart Business Advisory

  	
   

  
	
  and
  Consulting, LLC)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
   

  
	
   

  	
  Name

  	
   

  	
   

  
	
   

  	
  Title

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Accepted
  and consented to by the Administrative

  	
   

  
	
  Agent
  and L/C Issuer this        day of
         

  	
   

  
	
   

  	
   

  
	
  BANK
  OF MONTREAL, as Administrative Agent

  	
   

  
	
  and
  L/C Issuer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
   

  
	
   

  	
  Name

  	
   

  	
   

  
	
   

  	
  Title

  	
   

  	
   

  



 


3

















 


ANNEX I


TO ASSIGNMENT AND ACCEPTANCE


 


The assignee hereby purchases and assumes from the assignor the
following interest in and to all of the Assignor’s rights and obligations under
the Credit Agreement as of the effective date.


 


	
  FACILITY ASSIGNED

  	
   

  	
  AGGREGATE

  COMMITMENT/LOANS

  FOR ALL LENDERS

  	
   

  	
  AMOUNT OF

  COMMITMENT/LOANS

  ASSIGNED

  	
   

  	
  PERCENTAGE ASSIGNED

  OF COMMITMENT/LOANS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Revolving
  Credit

  	
   

  	
  $

  	
    

  	
   

  	
  $

  	
    

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Term
  B Loan

  	
   

  	
  $

  	
    

  	
   

  	
  $

  	
    

  	
   

  	
   

  	
  %

  



 

















 


SCHEDULE 1


 


COMMITMENTS


 


	
  NAME OF LENDER

  	
   

  	
  TERM B LOAN

  COMMITMENT

  	
   

  	
  REVOLVING CREDIT

  COMMITMENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BMO Capital Markets Financing, Inc.

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
  $

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of Montreal

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  45,000,000

  	
   

  	
  $

  	
  20,000,000

  	
   

  



 






 












 


SCHEDULE
5.1


 


EBITDA


 


	
  FISCAL
  QUARTER ENDED

  	
   

  	
  EBITDA

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  June 30,
  2006

  	
   

  	
  $

  	
  5,464,511

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September 30,
  2006

  	
   

  	
  $

  	
  3,947,316

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  December 31,
  2006

  	
   

  	
  $

  	
  (235,227

  	
  )

  
	
   

  	
   

  	
   

  	
   

  
	
  March 31,
  2007

  	
   

  	
  $

  	
  4,487,556

  	
   

  



 

















 


SCHEDULE 6.2


 


SUBSIDIARIES


 


	
  NAME

  	
   

  	
  JURISDICTION OF

  ORGANIZATION

  	
   

  	
  PERCENTAGE

  OWNERSHIP

  	
   

  	
  OWNER

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smart Financial
  Advisors, LLC

  	
   

  	
  Commonwealth of
  Pennsylvania

  	
   

  	
  100%

  	
   

  	
  Borrower

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smart Business Advisory
  and Consulting UK Limited

  	
   

  	
  United Kingdom

  	
   

  	
  100%

  	
   

  	
  Borrower

  	
   

  



 

















 


SCHEDULE 6.5


 


FINANCIAL STATEMENT
EXCEPTIONS TO GAAP


 


Goodwill


 


Goodwill,
including direct costs of acquisitions, is amortized over 5 years.  The Initial Acquired Business tests goodwill
for impairment periodically.  If
impairment occurs, the carrying value of goodwill is reduced.


 


Pension Obligations


 


Certain pension
obligations arising from the acquisition of Grabush Newman and Company, P.A. on
May 1, 2003 and related employment agreements entered into with certain
key employees were not accounted for until 2006.  Upon the conversion of the LLP structure into
the alternative practice structure in 2006, these retirement obligations were
settled with these key employees and the related amounts expensed.


 

















 


SCHEDULE 6.10


 


TITLE TO ASSETS


 


None.


 

















 


SCHEDULE 6.11


 


LITIGATION


 


None.


 

















 


SCHEDULE 6.14


 


AFFILIATE TRANSACTIONS


 


None.


 

















 


SCHEDULE 8.7


 


ASSUMED LIABILITIES


 


I. All Benefits Practice
Obligations, as defined in the Initial Acquisition Agreement.


 


Retention Bonuses

Projected Obligations as of March 31,

2007

Assuming Employment by Smart LLC

through January 31, 2008


 


 


	
  Last
  Name

  	
   

  	
  First Name

  	
   

  	
  Potential

  Retention

  Obligations

  	
   

  
	
  [Individual
  information omitted from copy]

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
   

  	
   

  	
  $

  	
  1,759,084

  	
   

  
							



 

















 


II. All payment
obligation arising out of deferred compensation or pension obligations to the
current or former employees or Members of Borrower or Affiliates.


 


	
  Name

  	
   

  	
  Purpose

  	
   

  	
  Date of Note or

  Obligation

  	
   

  	
  Remaining

  Term

  	
   

  	
  Monthly

  Pension or

  Severance

  Payments

  	
   

  	
  Face

  Value

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Individual
  information omitted from copy]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  401K
  Match payable

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  971,537

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accrued
  employee bonuses

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  358,587

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  2,695,020

  	
   

  
														



 


III. The payment
obligation in the amount of $234,236.36 as of the Closing Date arising out of
that certain Asset Purchase Agreement, dated as of March 1, 2003, by and
among Smart LLP, Strategis Asset Valuation and Management, Inc., and the
shareholders party thereto.


 


IV. The payment
obligation in the amount of $527,332.35 as of the Closing Date arising out of
that certain Unsecured Promissory Note, dated as of May 1, 2003, among
Smart LLP and Grabush, Newman & Co., P.A.


 


V. The payment obligation
in the amount of $4,865.40 as of the Closing Date arising out of that certain
copier purchase agreement, dated as of February 15, 2003, among Smart LLP
and Noreast Capital Corporation.


 


2

















 


VI. The payment
obligation in the amount of $213,650.72 as of the Closing Date arising out of the
redemption of partnership interests.


 


3