exv10w1



 





Exhibit
10.1




Execution Copy




 










CREDIT AGREEMENT




dated as of




June 5, 2007




among




ASSET ACCEPTANCE CAPITAL CORP.




The Lenders Party Hereto




and




JPMORGAN CHASE BANK,

NATIONAL ASSOCIATION

as Administrative Agent




 






J.P. MORGAN SECURITIES INC.,

as Sole Bookrunner and Sole Lead Arranger




 















 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I
	 	 	 
	 	 	 	 
	Definitions

	 	 	 
	 	 	 	 
	SECTION 1.01.
	 	Defined Terms

	 	 	1	 
	SECTION 1.02.
	 	Classification of Loans and Borrowings

	 	 	19	 
	SECTION 1.03.
	 	Terms Generally

	 	 	19	 
	SECTION 1.04.
	 	Accounting Terms; GAAP

	 	 	20	 
	 	 	 
	 	 	 	 
	ARTICLE II

	 	 	 
	 	 	 	 
	The Credits

	 	 	 
	 	 	 	 
	SECTION 2.01.
	 	Commitments

	 	 	20	 
	SECTION 2.02.
	 	Loans and Borrowings

	 	 	20	 
	SECTION 2.03.
	 	Requests for Borrowings

	 	 	21	 
	SECTION 2.04.
	 	Increase of Commitments

	 	 	22	 
	SECTION 2.05.
	 	Swingline Loans

	 	 	22	 
	SECTION 2.06.
	 	Letters of Credit

	 	 	24	 
	SECTION 2.07.
	 	Funding of Borrowings

	 	 	27	 
	SECTION 2.08.
	 	Interest Elections

	 	 	28	 
	SECTION 2.09.
	 	Termination and Reduction of Commitments

	 	 	29	 
	SECTION 2.10.
	 	Repayment and Amortization of Loans; Evidence of Debt

	 	 	29	 
	SECTION 2.11.
	 	Prepayment of Loans

	 	 	30	 
	SECTION 2.12.
	 	Fees

	 	 	32	 
	SECTION 2.13.
	 	Interest

	 	 	33	 
	SECTION 2.14.
	 	Alternate Rate of Interest

	 	 	33	 
	SECTION 2.15.
	 	Increased Costs

	 	 	34	 
	SECTION 2.16.
	 	Break Funding Payments

	 	 	35	 
	SECTION 2.17.
	 	Taxes

	 	 	35	 
	SECTION 2.18.
	 	Payments Generally; Allocation of Proceeds; Sharing of
Set-offs

	 	 	36	 
	SECTION 2.19.
	 	Mitigation of Obligations

	 	 	38	 
	SECTION 2.20.
	 	Replacement of Lenders

	 	 	38	 
	 	 	 
	 	 	 	 
	ARTICLE III

	 	 	 
	 	 	 	 
	Representations and Warranties

	 	 	 
	 	 	 	 
	SECTION 3.01.
	 	Organization; Powers

	 	 	39	 
	SECTION 3.02.
	 	Authorization; Enforceability

	 	 	39	 
	SECTION 3.03.
	 	Governmental Approvals; No Conflicts

	 	 	40	 
	SECTION 3.04.
	 	Financial Condition; No Material Adverse Change

	 	 	40	 






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	 	 	 	 	Page
	SECTION 3.05.
	 	Properties

	 	 	40	 
	SECTION 3.06.
	 	Litigation and Environmental Matters

	 	 	40	 
	SECTION 3.07.
	 	Compliance with Laws and Agreements

	 	 	41	 
	SECTION 3.08.
	 	Investment Company Status

	 	 	41	 
	SECTION 3.09.
	 	Taxes

	 	 	41	 
	SECTION 3.10.
	 	ERISA

	 	 	41	 
	SECTION 3.11.
	 	Disclosure

	 	 	41	 
	SECTION 3.12.
	 	Solvency

	 	 	41	 
	SECTION 3.13.
	 	Security Interest in Collateral; Borrowing Base

	 	 	42	 
	SECTION 3.14.
	 	Labor Disputes

	 	 	42	 
	SECTION 3.15.
	 	No Default

	 	 	42	 
	SECTION 3.16.
	 	Federal Reserve Regulations

	 	 	42	 
	 	 	 
	 	 	 	 
	ARTICLE IV

	 	 	 
	 	 	 	 
	Conditions

	 	 	 
	 	 	 	 
	SECTION 4.01.
	 	Effective Date

	 	 	42	 
	SECTION 4.02.
	 	Each Credit Event

	 	 	44	 
	 	 	 
	 	 	 	 
	ARTICLE V

	 	 	 
	 	 	 	 
	Affirmative Covenants

	 	 	 
	 	 	 	 
	SECTION 5.01.
	 	Financial Statements and Other Information

	 	 	44	 
	SECTION 5.02.
	 	Notices of Material Events

	 	 	46	 
	SECTION 5.03.
	 	Existence; Conduct of Business

	 	 	46	 
	SECTION 5.04.
	 	Payment of Obligations

	 	 	46	 
	SECTION 5.05.
	 	Maintenance of Properties; Insurance

	 	 	46	 
	SECTION 5.06.
	 	Books and Records; Inspection Rights

	 	 	46	 
	SECTION 5.07.
	 	Compliance with Laws

	 	 	47	 
	SECTION 5.08.
	 	Use of Proceeds and Letter of Credit

	 	 	47	 
	SECTION 5.09.
	 	Collateral Security; Further Assurances

	 	 	47	 
	SECTION 5.10.
	 	Additional Covenants

	 	 	48	 
	SECTION 5.11.
	 	Depositary Banks

	 	 	48	 
	 	 	 
	 	 	 	 
	ARTICLE VI

	 	 	 
	 	 	 	 
	Negative Covenants

	 	 	 
	 	 	 	 
	SECTION 6.01.
	 	Indebtedness

	 	 	49	 
	SECTION 6.02.
	 	Liens

	 	 	49	 
	SECTION 6.03.
	 	Fundamental Changes

	 	 	49	 
	SECTION 6.04.
	 	Investments, Loans, Advances, Guarantees and Acquisitions

	 	 	50	 
	SECTION 6.05.
	 	Swap Agreements

	 	 	51	 
	SECTION 6.06.
	 	Restricted Payments

	 	 	51	 
	SECTION 6.07.
	 	Transactions with Affiliates

	 	 	51	 
	SECTION 6.08.
	 	Restrictive Agreements

	 	 	51	 
	SECTION 6.09.
	 	Change of Name or Location; Change of Fiscal Year

	 	 	52	 
	SECTION 6.10.
	 	Prepayment of Indebtedness; Subordinated Indebtedness

	 	 	52	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 6.11.
	 	Government Regulations

	 	 	52	 
	SECTION 6.12.
	 	Financial Covenants

	 	 	52	 
	 	 	 
	 	 	 	 
	ARTICLE VII

	 	 	 
	 	 	 	 
	 	 	Events of Default

	 	 	53	 
	 	 	 
	 	 	 	 
	ARTICLE VIII

	 	 	 
	 	 	 	 
	 	 	The Administrative Agent

	 	 	55	 
	 	 	 
	 	 	 	 
	ARTICLE IX

	 	 	 
	 	 	 	 
	Miscellaneous

	 	 	 
	 	 	 	 
	SECTION 9.01.
	 	Notices

	 	 	59	 
	SECTION 9.02.
	 	Waivers; Amendments

	 	 	60	 
	SECTION 9.03.
	 	Expenses; Indemnity; Damage Waiver

	 	 	62	 
	SECTION 9.04.
	 	Successors and Assigns

	 	 	63	 
	SECTION 9.05.
	 	Survival

	 	 	65	 
	SECTION 9.06.
	 	Counterparts; Integration; Effectiveness

	 	 	66	 
	SECTION 9.07.
	 	Severability

	 	 	66	 
	SECTION 9.08.
	 	Right of Setoff

	 	 	66	 
	SECTION 9.09.
	 	Governing Law; Jurisdiction; Consent
to Service of Process

	 	 	66	 
	SECTION 9.10.
	 	WAIVER OF JURY TRIAL

	 	 	67	 
	SECTION 9.11.
	 	Headings

	 	 	67	 
	SECTION 9.12.
	 	Confidentiality

	 	 	67	 
	SECTION 9.13.
	 	Several Obligations; Nonreliance; Violation of Law

	 	 	68	 
	SECTION 9.14.
	 	USA PATRIOT Act

	 	 	68	 
	SECTION 9.15.
	 	Interest Rate Limitation

	 	 	68	 
	SECTION 9.16.
	 	Disclosure

	 	 	69	 
	SECTION 9.17.
	 	Appointment for Perfection

	 	 	69	 






SCHEDULES:




Commitment Schedule

Schedule 2.06 — Existing Letters of Credit

Schedule 3.01 — Subsidiaries

Schedule 3.06 — Disclosed Matters

Schedule 6.01 — Existing Indebtedness

Schedule 6.02 — Existing Liens




EXHIBITS:




Exhibit A — Form of Assignment and Assumption

Exhibit B — Borrowing Base Certificate





iii









 








     CREDIT AGREEMENT dated as of June 5, 2007 (as it may be amended or modified from time to time,
this “Agreement”), among ASSET ACCEPTANCE CAPITAL CORP., the Lenders party hereto, and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent,



     The parties hereto hereby agree as follows:



ARTICLE I

Definitions




     SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:



     “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.



     “Acquisition” means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Borrower or any of its
Subsidiaries (i) acquires any going business or all or substantially all of the assets of any firm,
corporation or limited liability company, or division thereof, whether through purchase of assets,
merger or otherwise or (ii) directly or indirectly acquires (in one transaction or as the most
recent transaction in a series of transactions) at least a majority (in number of votes) of the
Equity Interests of a Person.



     “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal
to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.



     “Administrative Agent” means JPMorgan Chase Bank, National Association, in its
capacity as administrative agent for the Lenders hereunder.



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



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



     “Age Adjusted Percentage” means, with respect to any Receivables Portfolio of any Loan
Party, (a) for the period from and including the date such Loan Party or its predecessor acquires
such Receivables Portfolio to and including the end of the fourth full calendar month ending after
such date, eighty-five percent (85%), and (b) for any subsequent calendar month beginning after
such fourth full calendar month, the percent equal to eighty-five percent (85%) less three percent
(3%) for each successive calendar month that has begun since the end of such fourth full calendar
month.



     “Alternate Base Rate” means, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.



1









 





     “Amortized Collections” means, for any period, (a) the excess of the aggregate amount
of cash collections and cash proceeds received in respect of defaulted or charged-off Receivables
purchased by the Borrower or its Subsidiaries (the “Purchased Receivables”) for such period over
(b) the amount of revenues in respect of Purchased Receivables recognized over such period in the
calculation of Consolidated Net Income.



     “Applicable Percentage” means, with respect to any Lender, (a) with respect to
Revolving Loans, LC Exposure or Swingline Loans, a percentage equal to a fraction the numerator of
which is such Lender’s Revolving Commitment and the denominator of which is the aggregate Revolving
Commitment of all Revolving Lenders (if the Revolving Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon such Lender’s share of the aggregate
Revolving Exposures at that time) and (b) with respect to the Tranche B Term Loans, a percentage
equal to a fraction the numerator of which is such Lender’s outstanding principal amount of the
Tranche B Term Loans and the denominator of which is the aggregate outstanding amount of the
Tranche B Term Loans of all Tranche B Term Lenders.



     “Applicable Margin” means, for any day, (a) with respect to any Eurocurrency Loan or
ABR Loan that is a Tranche B Term Loan, as the case may be, the applicable rate per annum set forth
below under the caption “Tranche B Eurocurrency Spread” or “Tranche B ABR Spread”, as the case may
be, based upon the Leverage Ratio as of the most recent determination date and (b) with respect to
any Eurocurrency Loan or ABR Loan that is a Revolving Loan or with respect to the commitment fees
or fees on Letters of Credit payable hereunder, as the case may be, the applicable rate per annum
set forth below under the caption “Revolving Eurocurrency Spread”, “Revolving ABR Spread”,
“Commitment Fee Rate” or “Letter of Credit Fee”, as the case may be, based upon the Leverage Ratio
as of the most recent determination date:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Revolving	 	 	 	 	 	 
	 	 	 	 	Tranche B	 	Eurocurrency	 	 	 	 	 	 
	 	 	 	 	Eurocurrency	 	Spread and Letter	 	Tranche B	 	Revolving	 	Commitment
	Level	 	Leverage Ratio	 	Spread	 	of Credit Fee	 	ABR Spread	 	ABR Spread	 	Fee Rate
	I

	 	< 0.375
	 	2.00%
	 	1.25%
	 	1.00%
	 	0.0%
	 	0.25%
	II
	 	3 0.375 and < 0.625
	 	2.00%
	 	1.50%
	 	1.00%
	 	0.0%
	 	0.30%
	III
	 	3 0.625 and < 0.875
	 	2.00%
	 	1.75%
	 	1.00%
	 	0.25%
	 	0.35%
	IV
	 	3 0.875 and < 1.125
	 	2.25%
	 	2.00%
	 	1.00%
	 	0.50%
	 	0.40%
	V
	 	3 1.125
	 	2.25%
	 	2.25%
	 	1.00%
	 	0.75%
	 	0.50%





The Applicable Margin shall be determined in accordance with the foregoing table based on the
Leverage Ratio as of the end of each Fiscal Quarter. Adjustments, if any, to the Applicable Margin
shall be effective the first day of the month following the month that the Administrative Agent is
scheduled to receive the applicable financials under Section 5.01(a) or (b) and certificate under
Section 5.01(c). If the Borrower fails to deliver the financials to the Administrative Agent at
the time required hereunder, then the Applicable Margin shall be set at Level V until such
financials are so delivered. Notwithstanding anything herein to the contrary, the Applicable
Margin shall be set at Level IV as of the Effective Date hereof and may not be less than Level IV
until adjusted based on the financials for the Fiscal Quarter ending December 31, 2007.




     “Approved Fund” has the meaning assigned to such term in Section 9.04.



2









 





     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.



     “Available Revolving Commitment” means, at any time, the Revolving Commitment then in
effect minus the Revolving Exposure of all Revolving Lenders at such time; it being
understood and agreed that any Lender’s Swingline Exposure shall not be deemed to be a component of
the Revolving Exposure for purposes of calculating the commitment fee under Section 2.12(a).



     “Availability Period” means the period from and including the Effective Date but
excluding the earlier of the Revolving Credit Maturity Date and the date of termination of the
Revolving Commitments.



     “Banking Services” means each and any of the following bank services provided to the
Borrower or any Guarantor by any Lender or any of its Affiliates: (a) commercial credit cards, (b)
stored value cards and (c) treasury management services (including, without limitation, controlled
disbursement, automated clearinghouse transactions, return items, overdrafts and interstate
depository network services).



     “Banking Services Obligations” means any and all obligations of the Borrower or any
Guarantor, whether absolute or contingent and howsoever and whensoever created, arising, evidenced
or acquired (including all renewals, extensions and modifications thereof and substitutions
therefor) in connection with Banking Services.



     “Blocked Cash” means cash of the Loan Parties on deposit with the Administrative Agent
in a separate blocked account and subject to an account control agreement satisfactory to the
Administrative Agent.



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



     “Borrower” means Asset Acceptance Capital Corp., a Delaware corporation.



     “Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect, (b) a Tranche B Term Loan made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect and (c) a Swingline Loan.



     “Borrowing Base” means, as of any date, the following:



     (a) an amount equal to the aggregate Borrowing Base Value of all Receivables Portfolios of the
Loan Parties as of such date, plus



     (b) (i) for the period from and including the Effective Date through December 31, 2007,
$25,000,000, (ii) the period from and including January 1, 2008 through December 31, 2008,
$15,000,000, and (iii) thereafter, $0; plus



     (c) the amount of Blocked Cash as of such date; minus



     (d) the outstanding principal balance of all Tranche B Term Loans; minus



3









 





     (e) all reserves which the Administrative Agent deems appropriate in its reasonable discretion
to maintain with respect to the Collateral.



     “Borrowing Base Certificate” for any date means an appropriately completed report as
of such date in substantially the form of Exhibit B hereto, certified as true and correct
as of such date by a Financial Officer of the Borrower.



     “Borrowing Base Value” means, for any period, with respect to any Receivables
Portfolio of any Loan Party, the product of (a) the purchase price paid by such Loan Party (or its
Affiliate predecessor in interest) for such Receivables Portfolio, multiplied by (b) the Age
Adjusted Percentage (expressed as a decimal) applicable to such Receivables Portfolio for such
period; provided that, if at any time after the acquisition of any Receivables Portfolio by
any Loan Party such Loan Party shall sell or otherwise dispose of a portion of such Receivables
Portfolio, whether in one or a series of transactions, then the “Borrowing Base Value” for
such Receivables Portfolio shall be determined by the product of (a) a pro rata portion of the
purchase price paid by such Loan Party for such Receivables Portfolio (determined by the ratio that
the aggregate face amount of the remaining Receivables in such Receivables Portfolio bears to the
aggregate face amount of all the Receivables included in such Receivables Portfolio at the time of
its acquisition), multiplied by (b) the applicable Age Adjusted Percentage. Notwithstanding
anything to the contrary, the Borrowing Base Value with respect to any Receivables Portfolio shall
be determined exclusive of any Receivables in such Receivables Portfolio that are not Eligible
Receivables.



     “Borrowing Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.02.



     “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in Chicago are authorized or required by law to remain closed; provided
that, when used in connection with a Eurodollar Loan, the term “Business Day” shall also
exclude any day on which banks are not open for dealings in dollar deposits in the London interbank
market.



     “Capital Expenditures” means, without duplication, any expenditure or commitment to
expend money for any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Borrower and its Subsidiaries
prepared in accordance with GAAP.



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



     “Capital Lease Obligations” means the aggregate principal component of capitalized
lease obligations relating to a Capital Lease determined in accordance with GAAP.



     “Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) other than Acceptable Owners, of Equity Interests representing more than 25% of the
aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the
Borrower; (b) occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Borrower by Persons who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed by directors so nominated; or (c) the acquisition of direct or
indirect Control of the Borrower by any Person or group other than Acceptable Owners. As used
herein, “Acceptable Owners” means Quad-C, Nathaniel F. Bradley, IV, Mark Redman and their
respective Affiliates.



4









 





     “Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending
office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.



     “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Tranche B Term Loans or Swingline
Loans, and, when used in reference to any Commitment, refers to whether such Commitment is a
Revolving Commitment or Tranche B Term Loan Commitment.



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



     “Collateral” means any and all present or future real or personal property owned,
leased or operated by a Person, which property is covered by the Collateral Documents and any and
all other property of any Loan Party, now existing or hereafter acquired, that may at any time be
or become subject to a security interest or Lien in favor of Administrative Agent, on behalf of
itself and the Secured Parties, to secure the Secured Obligations.



     “Collateral Documents” means, collectively, the Security Agreements, any Mortgages and
all other agreements, instruments and documents executed in connection with this Agreement at any
time (either before, concurrently or after the Effective Date) that are intended to create or
evidence Liens to secure the Secured Obligations, including, without limitation, all other security
agreements, pledge agreements, mortgages, deeds of trust, loan agreements, notes, guarantees,
subordination agreements, pledges, powers of attorney, consents, assignments, contracts, fee
letters, notices, leases, financing statements and all other agreements, instruments and documents.



     “Commitment” means, with respect to each Lender, the sum of such Lender’s Revolving
Commitment and Tranche B Term Loan Commitment. The initial amount of each Lender’s Commitment is
set forth on the Commitment Schedule, or in the Assignment and Assumption or in the
Commitment and Acceptance, as applicable, pursuant to which such Lender shall have assumed its
Commitment, as applicable. The initial aggregate amount of the Lenders’ Commitments is
$250,000,000.



     “Commitment Schedule” means the Schedule attached hereto identified as such.



     “Consolidated Adjusted EBITDA” means Consolidated Net Income plus, to the
extent deducted from revenues in determining Consolidated Net Income, (a) Consolidated Interest
Expense, (b) expense for taxes paid or accrued net of tax refunds, (c) depreciation expense, (d)
amortization expense (excluding amortization of Receivables), (e) the Amortized Collections and (f)
extraordinary non-cash losses (as determined in accordance with GAAP) incurred other than in the
ordinary course of business, minus, to the extent included in Consolidated Net Income,
extraordinary gains (as determined in accordance with GAAP) realized other than in the ordinary
course of business, all calculated for the Borrower and its Subsidiaries on a consolidated basis.



     “Consolidated Indebtedness” means at any time the Indebtedness of the Borrower and its
Subsidiaries calculated on a consolidated basis.



     “Consolidated Interest Expense” means, with reference to any period, the interest
expense of the Borrower and its Subsidiaries calculated on a consolidated basis for such period.



5









 





     “Consolidated Net Income” means, with reference to any period, the net income (or
loss) of the Borrower and its Subsidiaries calculated on a consolidated basis for such period.



     “Consolidated Tangible Net Worth” means at any time the consolidated stockholders’
equity of the Borrower and its Subsidiaries calculated on a consolidated basis as of such time,
less the net book value of all goodwill and other assets which are deemed intangible assets under
GAAP.



     “Consolidated Total Liabilities” means, at any date, the aggregate principal amount of
all liabilities of the Borrower and its Subsidiaries at such date, determined on a consolidated
basis in accordance with GAAP.



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



     “Credit Exposure” means, as to any Lender at any time, the sum of (a) such Lender’s
Revolving Exposure at such time, plus (b) an amount equal to the aggregate principal amount
of its Tranche B Term Loans outstanding at such time.



     “Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.



     “Defaulting Lender” means any Lender with respect to which any of following is in
effect (i) such Lender has refused to make available its portion of any Borrowing, to acquire
participations in a Swingline Loan pursuant to Section 2.05 or to fund its portion of any
unreimbursed payment under Section 2.06(e), or (ii) such Lender has notified in writing the
Borrower and/or the Administrative Agent that it does not intend to comply with its obligations
under Section 2.05, 2.06 or 2.07.



     “Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06.



     “Disqualified Equity” means any Equity Interest that, by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable), or upon the happening
of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder thereof, in whole or in part.



     “dollars” or “$” refers to lawful money of the United States of America.



     “Effective Date” means June 12, 2007.



     “Eligible Receivable” of any Loan Party means any Receivable owned by such Loan Party
that is payable in Dollars and in which such Loan Party has granted to the Agent for the benefit of
the Banks and the Agent a first-priority perfected security interest pursuant to the Security
Agreement, other than any such Receivable:



          (a) that is not a bona fide existing obligation for which good and sufficient consideration
has been given;




          (b) with respect to which such Loan Party does not have good and marketable title pursuant to
a legal, valid and binding assignment to such Loan Party;




6









 








          (c) that has been repurchased by, or returned or put-back to, the Person from whom such Loan
Party acquired such Receivable;




          (d) all or any portion of which is subject to any Lien (except that in favor of the Agent
under the Security Documents and Permitted Encumbrances), or if the consideration of which such
Receivable constitutes proceeds is subject to any Lien;




          (e) that is due from or has been acquired from any Subsidiary or Affiliate of such Loan Party;




          (f) that is subordinate or junior in right or priority of payment to any other obligation or
claim;




          (g) that was not created in compliance, in all material respects, with all Requirements of
Law, or with respect to which such Loan Party, any Affiliate of such Loan Party or any officer,
employee, agent or representative of such Loan Party or any such Affiliate has not complied with
all Requirements of Law;




          (h) that is not an “account,” a “general intangible” or “chattel paper” under and as defined
in Article 9 of the UCC; or




          (i) that is not, or with respect to which any of the underlying agreements, promissory notes
or other instruments and documents is not, in form and substance, reasonably satisfactory to the
Administrative Agent.




     “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, or the management, release or threatened release of any Hazardous Material or
to health and safety matters.



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



     “Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.



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



     “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for



7









 







purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.



     “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is,
or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.



     “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.



     “Event of Default” has the meaning assigned to such term in Article VII.



     “Event of Loss” means, with respect to any assets, any of the following: (a) any loss,
destruction or damage of such assets; (b) any pending or threatened institution of any proceedings
for the condemnation or seizure of such assets or for the exercise of any right of eminent domain;
or (c) any actual condemnation, seizure or taking, by exercise of the power of eminent domain or
otherwise, of such assets, or confiscation of such assets or the requisition of the use of such
assets.



     “Excess Cash Flow” means, for any period, without duplication,



     (a) the sum of:




(i) Consolidated Net Income for such period, plus




(ii) the aggregate amount of all non-cash charges deducted in arriving at such
Consolidated Net Income, plus




(iii) Amortized Collections for such period, plus




(iv) (A) the excess of the aggregate amount of proceeds received from sales or other
dispositions of Purchased Receivables during such period over (B) the aggregate amount
of gain from such sales or other dispositions recognized over such period in the
calculation of Consolidated Net Income, less



     (b) the sum of:




(i) the aggregate amount of all non-cash income items included in arriving at such
Consolidated Net Income, plus



8









 






(ii) the aggregate amount of all Capital Expenditures, investments, Acquisitions, and
Restricted Payments permitted hereunder, each to the extent (A) made or paid by the
Borrower and its Subsidiaries in cash during such period solely to the extent permitted
by this Agreement and (B) excluding any amount funded through the issuance of
Indebtedness (excluding Loans under this Agreement) or Equity Interests, plus




(iii) the aggregate amount of all permitted regularly scheduled principal payments,
optional prepayments and mandatory prepayments of Indebtedness of the Borrower and its
Subsidiaries made during such period (other than in respect of any revolving credit
facility to the extent there is not an equivalent permanent reduction in commitments
thereunder), excluding any amount funded with proceeds from the issuance of Indebtedness
(excluding Loans under this Agreement) or Equity Interests, plus




(iv) the aggregate amount of purchases of Purchased Receivables made in cash during such
period, excluding any amount of such purchases funded with proceeds from the issuance of
Indebtedness (excluding Loans under this Agreement) or Equity Interests.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise Taxes imposed on (or measured by) its net income
(i) by the United States of America, (ii) by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the case of any Lender,
in which its applicable lending office is located, or (iii) otherwise as a result of a present or
former connection between such recipient and the jurisdiction imposing such Tax; (b) any branch
profits Taxes imposed by the United States of America or any similar Tax imposed by any other
jurisdiction in which the Borrower is located; (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.20), any withholding Tax that would
apply to or be imposed on amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office) or is attributable to such
Foreign Lender’s failure to comply with Section 2.17(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a
new lending office (or assignment), to receive additional amounts from the Borrower with respect to
such withholding Tax pursuant to Section 2.17(a); and (d) any United States withholding Tax that is
imposed on amounts payable to any lender that is a United States person as defined in Section
7701(a)(30) of the Code that is attributable to such Lender’s failure to comply with Section
2.17(e).



     “Existing Letters of Credit” is defined in Section 2.06.



     “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.



     “Financial Officer” means the chief executive officer, chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.



     “Fiscal Quarter” means each of the quarterly accounting periods of the Borrower,
ending on March 31, June 30, September 30 and December 31 of each year.



9









 





     “Fiscal Year” means each annual accounting period of the Borrower ending on December
31 of each year.



     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located and any other Lender that is not a United States
person within the meaning of Section 7701(a)(30) of the Code. For purposes of this definition, the
United States of America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.



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



     “Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.



     “Guaranty Obligations” means, with respect to any Person, without duplication, any
obligations of such Person (other than endorsements in the ordinary course of business of
negotiable instruments for deposit or collection) guaranteeing or intended to guarantee any
Indebtedness of any other Person in any manner, whether direct or indirect, and including without
limitation any obligation, whether or not contingent, (i) to purchase any such Indebtedness or any
property constituting security therefor, (ii) to advance or provide funds or other support for the
payment or purchase of any such Indebtedness or to maintain working capital, solvency or other
balance sheet condition of such other Person (including without limitation keep well agreements,
maintenance agreements or similar agreements or arrangements) for the benefit of any holder of
Indebtedness of such other Person, (iii) to lease or purchase assets, securities or services
primarily for the purpose of assuring the holder of such Indebtedness against loss in respect
thereof, or (iv) to otherwise assure or hold harmless the holder of such Indebtedness against loss
in respect thereof. The amount of any Guaranty Obligation hereunder shall (subject to any
limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount
(or maximum principal amount, if larger) of the Indebtedness in respect of which such Guaranty
Obligation is made.



     “Guarantor” means each existing and future Subsidiary.



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



     “Indebtedness” of any Person means, without duplication, with respect to any Person,
without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest
payments are customarily made, (c) all obligations of such Person under conditional sale or other
title retention agreements relating to assets purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered into in the ordinary
course of business), (d) all obligations of such Person issued or assumed as the deferred purchase
price of assets or services purchased by such Person (other than trade debt incurred in the
ordinary course of business) which would appear as liabilities on a balance sheet of such Person,
(e) all obligations of such Person under take-or-pay or similar arrangements, (f) all Indebtedness
of others secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of
production from, assets owned or acquired by such Person, whether or not the



10









 







obligations secured thereby have been assumed, (g) all Guaranty Obligations of such Person with
respect to Indebtedness of another Person, (h) Capital Lease Obligations of such Person, (i) all
obligations of such Person under Swap Agreements, (j) the maximum amount of all standby letters of
credit issued or bankers’ acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent unreimbursed), as reduced from time
to time, (k) all Disqualified Equity, (l) the principal balance outstanding under any synthetic
lease, tax retention operating lease, accounts receivable securitization program, off-balance sheet
loan or similar off-balance sheet financing product, other than any forward purchase agreement for
a Receivables Portfolio which is not classified as a liability on the balance sheet of the Borrower
and its Subsidiaries under GAAP, and (m) the Indebtedness of any partnership or unincorporated
joint venture in which such Person is a general partner or a joint venturer.



     “Indemnified Taxes” means Taxes other than Excluded Taxes and Other Taxes.



     “Information Memorandum” means the Confidential Information Memorandum dated May 9,
2007 relating to the Borrower and the Transactions.



     “Interest Election Request” means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.08.



     “Interest Payment Date” means (a) with respect to any ABR Loan and any Swingline Loan,
the last day of each March, June, September and December (commencing with the last day of
September, 2007) and (b) with respect to any Eurodollar Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing
with an Interest Period of more than three months’ duration, each day prior to the last day of such
Interest Period that occurs at intervals of three months’ duration after the first day of such
Interest Period.



     “Interest Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three, six or twelve months thereafter, as the Borrower may elect;
provided, that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (ii) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last Business Day of the
last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and, in the case of a Revolving Borrowing,
thereafter shall be the effective date of the most recent conversion or continuation of such
Borrowing.



     “Issuing Bank” means each of JPMorgan Chase Bank, National Association in its capacity
as an issuer of Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.06(i). The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include
any such Affiliate with respect to Letters of Credit issued by such Affiliate.



     “LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.



     “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that



11









 







have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any
Revolving Lender at any time shall be its Applicable Percentage of the total LC Exposure at such
time.



     “LC Collateral Account” has the meaning assigned to such term in Section 2.06(j).



     “Lenders” means the Persons listed on the Commitment Schedule and any other
Person that shall have become a party hereto pursuant to an Assignment and Assumption or Section
2.04, other than any such Person that ceases to be a party hereto pursuant to an Assignment and
Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline
Lender.



     “Letter of Credit” means any letter of credit issued pursuant to this Agreement.



     “Leverage Ratio” means, as of the end of any Fiscal Quarter or Fiscal Year of the
Borrower, the ratio of the Consolidated Indebtedness as of such Fiscal Quarter end or Fiscal Year
end, as the case may be, to the Consolidated Adjusted EBITDA for the period of four consecutive
Fiscal Quarters of the Borrower ending with such Fiscal Quarter end or Fiscal Year end, as the case
may be.



     “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Page 3750 of the Dow Jones Market Service (or on any successor or substitute
page of such Service, or any successor to or substitute for such Service or other comparable
service selected by the Administrative Agent, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the Administrative Agent from
time to time for purposes of providing quotations of interest rates applicable to dollar deposits
in the London interbank market) at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period. In the event that such rate is not available at such time for
any reason, then the “LIBO Rate” with respect to such Eurodollar Borrowing for such
Interest Period shall be the rate at which dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period.



     “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.



     “Loan Documents” means this Agreement, any promissory notes issued pursuant to this
Agreement, any Letter of Credit applications, the Collateral Documents, the Subsidiary Guaranty,
and all other agreements, instruments, documents and certificates identified in Section 4.01
executed and delivered to, or in favor of, the Administrative Agent or any Lenders and including
all other pledges, powers of attorney, consents, assignments, contracts, notices, letter of credit
agreements and all other written matter whether heretofore, now or hereafter executed by or on
behalf of any Loan Party, or any employee of any Loan Party, and delivered to the Administrative
Agent or any Lender in connection with the Agreement or the transactions contemplated thereby. Any
reference in the Agreement or any other Loan Document to a Loan Document shall include all
appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other
modifications thereto, and shall refer to the Agreement or such Loan Document as the same may be in
effect at any and all times such reference becomes operative.



12









 





     “Loan Parties” means the Borrower and the Guarantors.



     “Loans” means the loans and advances made by the Lenders pursuant to this Agreement,
including Swingline Loans.



     “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations or condition, financial or otherwise, of the Borrower and the Subsidiaries taken as a
whole, (b) the ability of the Loan Parties to perform any of their obligations under any of the
Loan Documents or (c) the rights of or benefits available to the Lenders under the Loan Documents.



     “Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the
Borrower and its Subsidiaries in an aggregate principal amount exceeding $5,000,000. For purposes
of determining Material Indebtedness, the “obligations” of the Borrower or any Subsidiary in
respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Swap
Agreement were terminated at such time.



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



     “Mortgage” means each mortgage, deed of trust or other agreement which conveys or
evidences a Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent
and the Secured Parties, on real property owned by a Loan Party, including any amendment,
restatement, modification or supplement thereto.



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



     “Net Cash Proceeds” means, without duplication (a) in connection with any sale or
other disposition of any asset or any settlement by, or receipt of payment in respect of, any
property insurance claim or condemnation award, the cash proceeds (including any cash payments
received by way of deferred payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when received) of such sale,
settlement or payment, net of reasonable and documented attorneys’ fees, accountants’ fees,
investment banking fees, amounts required to be applied to the repayment of Indebtedness secured by
a Lien expressly permitted hereunder on any asset which is the subject of such sale, insurance
claim or condemnation award (other than any Lien in favor of the Administrative Agent for the
benefit of the Administrative Agent and the Lenders) and other customary fees actually incurred in
connection therewith and net of taxes paid or reasonably estimated to be payable as a result
thereof and (b) in connection with any issuance or sale of any equity securities or debt securities
or instruments or the incurrence of loans, the cash proceeds received from such issuance or
incurrence, net of investment banking fees, reasonable and documented attorneys’ fees, accountants’
fees, underwriting discounts and commissions and other reasonable and customary fees and expenses
actually incurred in connection therewith.



     “Obligations” means all unpaid principal of and accrued and unpaid interest on the
Loans, all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities
and other obligations of the Loan Parties to the Lenders or to any Lender, the Administrative
Agent, the Issuing Bank or to the Issuing Bank or any indemnified party arising under the Loan
Documents.



     “Other Taxes” means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made hereunder
or from the



13









 







execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.



     “Participant” has the meaning set forth in Section 9.04.



     “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.



     “Permitted Encumbrances” means:



          (a) Liens imposed by law for taxes that are not yet delinquent or are being contested in
compliance with Section 5.04;




          (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with Section 5.04;




          (c) pledges and deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws or regulations;




          (d) deposits or pledges to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in
each case in the ordinary course of business;




          (e) judgment liens in respect of judgments that do not constitute an Event of Default under
clause (k) of Article VII;




          (f) easements, zoning restrictions, licenses, title restrictions, rights-of-way and similar
encumbrances on real property imposed by law or incurred or granted by the Borrower or any
Subsidiary in the ordinary course of business that do not secure any material monetary obligations
and do not materially detract from the value of the affected property or interfere with the
ordinary conduct of business of the Borrower or any Subsidiary; and




          (g) minor imperfections in title that do not materially detract from the value of the affected
property or interfere with the ordinary conduct of business of Borrower or any Subsidiary.



provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.




     “Permitted Investments” means:




     (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition thereof;




     (b) investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, the highest credit rating
obtainable from S&P or from Moody’s;




     (c) investments in certificates of deposit, banker’s acceptances and time deposits
maturing within 180 days from the date of acquisition thereof issued or guaranteed by or
placed with, and



14









 







money market deposit accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States of America or any State thereof which has
a combined capital and surplus and undivided profits of not less than $500,000,000;




     (d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above;




     (e) money market funds that (i) comply with the criteria set forth in Securities and
Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA
by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000; and




     (f) such other investments from time to time described on a list of standard acceptable
investments of the Borrower delivered to and approved by the Administrative Agent.



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



     “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.



     “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, National Association as its prime rate at its principal office; each change
in the Prime Rate shall be effective from and including the date such change is publicly announced
as being effective.



     “Quad-C” means Quad-C Management, Inc.



     “Recapitalization” means the plan by the Borrower to return up to $150,000,000 to its
shareholders pursuant to (a) a tender offer and other stock repurchase using up to $75,000,000 in
the aggregate to repurchase shares its common stock, and (b) the use of remaining balance of the
$150,000,000 to pay a special one-time cash dividend to the holders of the Borrower’s common stock,
as further described in the Tender Offer Statement on Schedule TO and all exhibits thereto filed
with the SEC on May 9, 2007, and all related transactions.



     “Receivable” of a Borrower means any right of such Borrower to the payment of money
arising out of a consumer financing transaction, and which right was acquired by such Borrower with
a group of similar rights.



     “Receivables Portfolio” of a Borrower means any group of Receivables of such Borrower
acquired by such Borrower as part of a single transaction.



     “Register” has the meaning set forth in Section 9.04.



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



15









 





     “Required Lenders” means, at any time, Lenders having Credit Exposure and unused
Commitments representing more than 50% of the sum of the total Credit Exposure and unused
Commitments at such time. The “Required Lenders” of a particular Class of Loans means Lenders
having Revolving Exposures, outstanding Tranche B Term Loans and unused Commitments of such Class,
as applicable, representing more than 50% of the total Revolving Exposures, outstanding Tranche B
Term Loans and unused Commitments of such Class, as applicable, at such time. The Credit Exposure
and unused Commitments of any Defaulting Lender shall be disregarded in determining Required
Lenders at any time.



     “Required Revolving Lenders” means, at any time, Lenders having Revolving Exposure and
unused Revolving Commitments representing more than 50% of the sum of the total Revolving Exposure
and unused Revolving Commitments at such time. The Revolving Exposure and unused Revolving
Commitments of any Defaulting Lender shall be disregarded in determining Required Revolving Lenders
at any time.



     “Requirement of Law” means, as to any Person, the Certificate of Incorporation and By
Laws or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or to which such Person or
any of its property is subject (including, without limitation, usury laws, the Federal Truth in
Lending Act, Regulation Z and Regulation B of the Board of Governors of the Federal Reserve System,
the Fair Debt Collection Practices Act, and the Uniform Consumer Credit Code).



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Equity Interests in the Borrower or any option, warrant or
other right to acquire any such Equity Interests in the Borrower.



     “Revolving Commitment” means, with respect to each Lender, the commitment, if any, of
such Lender to make Revolving Loans and to acquire participations in Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the maximum possible aggregate
amount of such Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.09, (b) increased from time to time pursuant to Section 2.04 and
(c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender’s Revolving Commitment is set forth on the
Commitment Schedule, or in the Assignment and Assumption pursuant to which such Lender
shall have assumed its Revolving Commitment, as applicable. The initial aggregate amount of the
Lenders’ Revolving Commitments is $100,000,000.



     “Revolving Credit Maturity Date” means the fifth anniversary of the Effective Date or
any earlier date on which the Revolving Commitments are reduced to zero or otherwise terminated
pursuant to the terms hereof.



     “Revolving Exposure” means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time.



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     “Revolving Lender” means, as of any date of determination, a Lender with a Revolving
Commitment or, if the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.



     “Revolving Loan” means a Loan made pursuant to Section 2.01(a).



     “Sale” means the sale, lease, conveyance or other disposition of any assets, other
than an Event of Loss.



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



     “SEC” means the Securities and Exchange Commission or any Governmental Authority
succeeding to any or all of the functions of said Commission.



     “Secured Obligations” means, collectively, (i) the Obligations, (ii) the Banking
Services Obligations and (iii) the Swap Agreement Obligations owing to one or more Lenders or their
Affiliates.



     “Secured Parties” means the holders of the Secured Obligations from time to time and
shall include (i) each Lender and the Issuing Bank in respect of its Loans and LC Exposure
respectively, (ii) the Administrative Agent, the Issuing Bank and the Lenders in respect of all
other present and future obligations and liabilities of the Borrower and each Subsidiary of every
type and description arising under or in connection with this Agreement or any other Loan Document,
(iii) each Lender and Affiliate of such Lender in respect of Swap Agreements entered into with such
Person by the Borrower or any Subsidiary, (iv) each indemnified party under Section 9.03 in respect
of the obligations and liabilities of the Borrower to such Person hereunder and under the other
Loan Documents, and (v) their respective successors and (in the case of a Lender, permitted)
transferees and assigns.



     “Security Agreement” means each security agreement, pledge agreement, pledge and
security agreement and similar agreement and any other agreement from any Loan Party granting a
Lien on any of its personal property (including without limitation any Equity Interests owned by
such Loan Party), each in form and substance acceptable to the Administrative Agent, entered into
by any Loan Party at any time for the benefit of the Administrative Agent and the Lenders pursuant
to this Agreement, as amended or modified from time to time.



     “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding
and to be subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender under such Regulation D
or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.



     “Subordinated Indebtedness” of the Borrower or any Subsidiary means any Indebtedness
of such Person the payment and priority of which is subordinated to payment of the Secured
Obligations, with customary payment blockage and other provisions, having a maturity no earlier
than the date which is one



17









 




(1) year after the later of (a) the Revolving Credit Maturity Date and (b) the Tranche B Maturity
Date and the terms and conditions of which are otherwise reasonably satisfactory to, the
Administrative Agent.




     “Subordinated Indebtedness Documents” means any document, agreement or instrument
evidencing any Subordinated Indebtedness or entered into in connection with any Subordinated
Indebtedness.



     “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity (a) of which
securities or other ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or, in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such
date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.



     “Subsidiary” means any subsidiary of the Borrower.



     “Subsidiary Guaranty” means that certain Subsidiary Guaranty dated as of the Effective
Date (including any and all supplements thereto) and executed by each Guarantor, and any other
guaranty agreements as are requested by the Administrative Agent and its counsel, in each case as
amended, restated, supplemented or otherwise modified from time to time.



     “Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a
Swap Agreement.



     “Swap Obligations” of a Person means any and all obligations of such Person, whether
absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor), under
(a) any and all Swap Agreements permitted hereunder (to the extent the provider of such Swap
Agreement is a Lender or was a Lender (or an Affiliate of any such Lender) at the time such Swap
Agreement is entered into), and (b) any and all cancellations, buy backs, reversals, terminations
or assignments of any Swap Agreement transaction.



     “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be
its Applicable Percentage of the total Swingline Exposure at such time.



     “Swingline Lender” means JPMorgan Chase Bank, National Association, in its capacity as
lender of Swingline Loans hereunder.



     “Swingline Loan” means a Loan made pursuant to Section 2.05.



     “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings in the nature of a tax imposed by any Governmental Authority.



     “Tranche B Term Lenders” means, as of any date of determination, Lenders having a
Tranche B Term Loan Commitment.



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     “Tranche B Term Loan” means a Loan made pursuant to Section 2.01(b).



     “Tranche B Term Loan Commitment” means (a) as to any Tranche B Term Lender, the
aggregate commitment of such Tranche B Term Lender to make Tranche B Term Loans as set forth in the
Commitment Schedule or in the most recent Assignment and Assumption executed by such
Tranche B Term Lender and (b) as to all Tranche B Term Lenders, the aggregate commitment of all
Tranche B Term Lenders to make Tranche B Term Loans, which aggregate commitment shall be
$150,000,000 on the date of this Agreement. After advancing the Tranche B Term Loan, each reference
to a Tranche B Term Lender’s Tranche B Term Loan Commitment shall refer to that Tranche B Term
Lender’s Applicable Percentage of the Tranche B Term Loans.



     “Tranche B Maturity Date” means sixth anniversary of the Effective Date.



     “Transactions” means the execution, delivery and performance by the Borrower of this
Agreement, the borrowing of Loans and other credit extensions, the use of the proceeds thereof and
the issuance of Letters of Credit hereunder and the Recapitalization.



     “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.



     “UCC” means the Uniform Commercial Code as in effect from time to time in the State of
Michigan or any other state the laws of which are required to be applied in connection with the
issue of perfection of security interests.



     “Unliquidated Obligations” means, at any time, any Secured Obligations (or portion
thereof) that are contingent in nature or unliquidated at such time, including any Secured
Obligation that is: (i) an obligation to reimburse a bank for drawings not yet made under a letter
of credit issued by it; (ii) any other obligation (including any guarantee) that is contingent in
nature at such time; or (iii) an obligation to provide collateral to secure any of the foregoing
types of obligations.



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



     SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by
Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a
“Eurodollar Revolving Loan”). Borrowings also may be classified and referred to by Class
(e.g., a “Revolving Borrowing”) or by Type (e.g., a “Eurodollar
Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving Borrowing”).



     SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such



19









 







Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of
similar import, shall be construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.



     SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith. For purposes of calculating the Applicable Margin, all
financial covenants and all other covenants, the Recapitalization, any Acquisition or any sale or
other disposition outside the ordinary course of business by the Borrower or any of its
Subsidiaries of any asset or group of related assets in one or a series of related transactions,
including the incurrence of any Indebtedness and any related financing or other transactions in
connection with any of the foregoing, occurring during the period for which such matters are
calculated shall be deemed to have occurred on the first day of the relevant period for which such
matters were calculated on a pro forma basis acceptable to the Administrative Agent.



ARTICLE II

The Credits




     SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, (a)
each Lender agrees to make Revolving Loans to the Borrower from time to time during the
Availability Period in an aggregate principal amount that will not result in (i) such Lender’s
Revolving Exposure exceeding such Lender’s Commitment or (ii) the sum of the total Revolving
Exposures exceeding the lesser of the total Revolving Commitments or the Borrowing Base and (b)
each Tranche B Term Lender agrees to make a Tranche B Term Loan in dollars to the Borrower on the
Effective Date, in an amount equal to such Lender’s Tranche B Term Loan Commitment by making
immediately available funds available to the Administrative Agent’s designated account, not later
than the time specified by the Administrative Agent. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving
Loans. Amounts prepaid or repaid in respect of Tranche B Term Loans may not be reborrowed.



     SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a Swingline Loan) shall
be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders
ratably in accordance with their respective Commitments of the applicable Class. Any Swingline Loan
shall be made in accordance with the procedures set forth in Section 2.05. The Tranche B Term Loans
shall amortize as set forth in Section 2.10.



     (b) Subject to Section 2.14, each Revolving Borrowing and Tranche B Term Loan Borrowing shall
be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance
herewith. Each Swingline Loan shall be an ABR Loan or shall bear interest at an alternate rate



20









 







agreed upon by the Borrower and the Swingline Lender. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.



     (c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than
$5,000,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Revolving Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.06(e). Each Swingline Loan shall
be in an amount that is an integral multiple of $100,000 and not less than $100,000. Borrowings of
more than one Type and Class may be outstanding at the same time; provided that there shall
not at any time be more than a total of ten (10) Eurodollar Borrowings outstanding.



     (d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested (i)
with respect to a Revolving Borrowing would end after the Revolving Credit Maturity Date or (ii)
with respect to a Tranche B Term Loan Borrowing would end after the Tranche B Maturity Date.



     SECTION 2.03. Requests for Borrowings. To request a Borrowing, the Borrower shall
notify the Administrative Agent of such request either in writing (delivered by hand or telecopy)
in a form approved by the Administrative Agent and signed by the Borrower or by telephone (a) in
the case of a Eurodollar Borrowing, not later than 11:00 a.m., Chicago time, three Business Days
before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
10:00 a.m., Chicago time, on the date of the proposed Borrowing; provided that any such
notice of an ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.06(e) may be given not later than 9:00 a.m., Chicago time, on the date of
the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing
Request in a form approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information in compliance with
Section 2.01:



     (i) the aggregate amount of the requested Borrowing;



     (ii) the date of such Borrowing, which shall be a Business Day;



     (iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and



     (iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and



     (v) the location and number of the Borrower’s account to which funds are to be disbursed,
which shall comply with the requirements of Section 2.07.



     If no election as to the Type of Revolving Borrowing is specified, then the requested
Revolving Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to
any requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in
accordance with this




21









 




Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount
of such Lender’s Loan to be made as part of the requested Borrowing.




     SECTION 2.04. Increase of Commitments. With the prior consent of the Administrative
Agent (which consent shall not be unreasonably withheld or delayed), from time to time the Borrower
may request to increase the Revolving Commitments in a minimum amount of $5,000,000, provided that
the aggregate increase in the Revolving Commitments from the Effective Date shall not exceed
$25,000,000. Any such request to increase the Revolving Commitments shall be deemed to be a
certification by the Borrower that at the time of such request, there exists no Default and the
representations and warranties contained in Article III are true and correct as of such date except
to the extent any such representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall have been true and correct on and as of such
earlier date. Any request from the Borrower to increase the Revolving Commitments shall be
implemented by one or more existing Lenders agreeing to increase their Revolving Commitments
(provided that no Lender shall have any obligation to increase any of its Revolving Commitments) or
by one or more new lenders agreeing to become a Lender hereunder or by any combination of the
foregoing, as determined by the Administrative Agent in consultation with the Borrower. Prior to
any such increase in the Revolving Commitments becoming effective, the Administrative Agent shall
have received:




(i) copies, certified by the secretary of each Borrower of its Board of Directors’
resolutions and of resolutions or actions of any other body authorizing the increase
in the Revolving Commitments;




(ii) a certificate, signed by a Financial Officer of the Borrower, showing that
after giving effect to the increase in the aggregate Revolving Commitments, no
Default shall occur and the Borrower shall be in compliance with all covenants in
this Agreement;




(iii) copies of all governmental and nongovernmental consents, approvals,
authorizations, declarations, registrations or filings required on the part of the
Borrower or any Guarantor in connection with the increase in the Revolving
Commitments, certified as true and correct in full force and effect as of the date
of the increase by a duly authorized officer of the Borrower, or if none are
required, a certificate of such officer to that effect;




(iv) evidence satisfactory to the Administrative Agent that no Material Adverse
Effect shall have occurred with respect to the Borrower and its Subsidiaries since
the most recent financial statements provided to the Lenders hereunder;




(v) if requested by the Administrative Agent, a confirmation and consent from each
Guarantor to the increase in the Revolving Commitments; and




(vi) such other documents and conditions as the Administrative Agent or its counsel
may have reasonably requested.


On the effective date of any such increase, (x) each Lender’s pro rata share Revolving Exposure
shall be adjusted to equal its pro rata share determined after giving effect to such increase and
(y) all Revolving Loans will be replaced with new Revolving Loans hereunder from the Lenders based
on such adjusted pro rata share.




     SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time
during the



22









 







Availability Period, in an aggregate principal amount at any time outstanding that will not result
in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000, (ii)
the total Revolving Exposures exceeding the total Revolving Commitments or (iii) the total
Revolving Exposures exceeding the Borrowing Base; provided that the Swingline Lender shall
not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Swingline Loans. To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00
noon, Chicago time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable
and shall specify the requested date (which shall be a Business Day) and amount of the requested
Swingline Loan and whether such Swingline Loan shall be an ABR Loan or shall bear interest at an
alternate rate agreed upon by the Borrower and the Swingline Lender. The Administrative Agent will
promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline
Lender shall make each Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made
to finance the reimbursement of an LC Disbursement as provided in Section 2.06(e), by remittance to
the Issuing Bank) on the requested date of such Swingline Loan.



     (b) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., Chicago time, on any Business Day require the Revolving Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will give notice
thereof to each Revolving Lender, specifying in such notice such Lender’s Applicable Percentage of
such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agrees,
upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of
the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each
Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline
Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available funds, in the same manner
as provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall
apply, mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from
the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in
any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any
amounts received by the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a
sale of participations therein shall be promptly remitted to the Administrative Agent; any such
amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent
to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the
Swingline Lender, as their interests may appear; provided that any such payment so remitted
shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to
the extent such payment is required to be refunded to the Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any
default in the payment thereof.



     (c) Upon the making of a Swingline Loan (whether before or after the occurrence of a Default),
each Revolving Lender shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably purchased from the Swingline Lender without recourse or warranty,
an undivided interest and participation in such Swingline Loan in proportion to its Applicable
Percentage of



23









 







the Revolving Commitment. The Swingline Lender may, at any time, require the Revolving Lenders to
fund their participations. From and after the date, if any, on which any Revolving Lender is
required to fund its participation in any Swingline Loan purchased hereunder, such Swingline Loan
shall bear interest at the Alternate Base Rate and the Administrative Agent shall promptly
distribute to such Lender, such Lender’s Applicable Percentage of all payments of principal and
interest and all proceeds of Collateral received by the Administrative Agent in respect of such
Loan.



     SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of Credit for its own
account or for the account of any Subsidiary, in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank, at any time and from time to time during the Availability Period. In
the event of any inconsistency between the terms and conditions of this Agreement and the terms and
conditions of any form of letter of credit application or other agreement submitted by the Borrower
to, or entered into by the Borrower with, the Issuing Bank relating to any Letter of Credit, the
terms and conditions of this Agreement shall control. The letters of credit identified on
Schedule 2.06 (the “Existing Letters of Credit”) shall be deemed to be “Letters of
Credit” issued on the Effective Date for all purposes of the Loan Documents.



     (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal
or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal
or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the
name and address of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the Issuing Bank, the
Borrower also shall submit a letter of credit application on the Issuing Bank’s standard form in
connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of
Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed $10,000,000, (ii)
the total Revolving Exposures shall not exceed the total Revolving Commitments and (iii) the total
Revolving Exposures shall not exceed the Borrowing Base.



     (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit or such later date as may be agreed to by the Issuing Bank (or, in the case of any renewal
or extension thereof, one year after such renewal or extension) and (ii) the date that is five
Business Days prior to the Revolving Credit Maturity Date.



     (d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter
of Credit increasing the amount thereof) and without any further action on the part of the Issuing
Bank or the Revolving Lenders, the Issuing Bank hereby grants to each Revolving Lender, and each
Revolving Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit
equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under
such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by the Issuing
Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the Borrower for any reason.
Each Revolving Lender acknowledges



24









 







and agrees that its obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence
and continuance of a Default or reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction whatsoever.



     (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than 10:00 a.m., Chicago time, on the date
that such LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 8:00 a.m., Chicago time, on such date, or, if such notice has not been
received by the Borrower prior to such time on such date, then not later than 10:00 a.m., Chicago
time, on (i) the Business Day that the Borrower receives such notice, if such notice is received
prior to 8:00 a.m., Chicago time, on the day of receipt, or (ii) the Business Day immediately
following the day that the Borrower receives such notice, if such notice is not received prior to
such time on the day of receipt; provided that the Borrower may, subject to the conditions
to borrowing set forth herein, request in accordance with Section 2.03 or 2.05 that such payment be
financed with an ABR Revolving Borrowing or Swingline Loan in an equivalent amount and, to the
extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced
by the resulting ABR Revolving Borrowing or Swingline Loan. If the Borrower fails to make such
payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and such Lender’s
Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving Lender
shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the
Borrower, in the same manner as provided in Section 2.07 with respect to Loans made by such Lender
(and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the
Revolving Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts
so received by it from the Revolving Lenders. Promptly following receipt by the Administrative
Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the Issuing Bank or, to the extent that Revolving Lenders have made
payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and the
Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant to this
paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR
Revolving Loans or a Swingline Loan as contemplated above) shall not constitute a Loan and shall
not relieve the Borrower of its obligation to reimburse such LC Disbursement.



     (f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. Neither the Administrative Agent, the Revolving Lenders nor
the Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a



25









 







drawing thereunder), any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Bank; provided that the foregoing shall not be
construed to excuse the Issuing Bank from liability to the Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the
Issuing Bank’s failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that, in the absence of gross negligence or willful misconduct on the part of the Issuing
Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall be deemed
to have exercised care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to documents presented which
appear on their face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or information to the
contrary, or refuse to accept and make payment upon such documents if such documents are not in
strict compliance with the terms of such Letter of Credit.



     (g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made
or will make an LC Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank
and the Revolving Lenders with respect to any such LC Disbursement.



     (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then, unless
the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made,
the unpaid amount thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement,
at the rate per annum then applicable to ABR Revolving Loans; provided that, if the
Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be for
the account of the Issuing Bank, except that interest accrued on and after the date of payment by
any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall
be for the account of such Lender to the extent of such payment.



     (i) Replacement of the Issuing Bank. Any Issuing Bank may be replaced at any time by
written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Revolving Lenders of any such
replacement of the Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement, (i) the successor
Issuing Bank shall have all the rights and obligations of the Issuing Bank under this Agreement
with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term
“Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to
such successor and all previous Issuing Bank, as the context shall require. After the replacement
of the Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of the Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.



     (j) Cash Collateralization. If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower receives notice from the Administrative Agent or the Required
Lenders (or



26









 







Revolving Lenders with LC Exposure representing greater than 50% of the total LC Exposure)
demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in
an account with the Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Revolving Lenders (the “LC Collateral Account”), an amount in cash equal to
the LC Exposure as of such date plus accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described in clause (h) or (i) of
Article VII. Such deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the Secured Obligations. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such account and the Borrower hereby
grants the Administrative Agent a security interest in the LC Collateral Account. Other than any
interest earned on the investment of such deposits, which investments shall be made at the option
and sole discretion of the Administrative Agent and at the Borrower’s risk and expense, such
deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate
in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse
the Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not
so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to
the consent of Revolving Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other Secured Obligations. If the Borrower is required to provide
an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three
Business Days after all such Events of Defaults have been cured or waived.



     SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately available funds by
11:00 a.m., Chicago time, to the account of the Administrative Agent most recently designated by it
for such purpose by notice to the Lenders in an amount equal to such Lender’s Applicable
Percentage; provided that, Tranche B Term Loans shall be made as provided in Section
2.01(b) and Swingline Loans shall be made as provided in Section 2.05. The Administrative Agent
will make such Loans available to the Borrower by promptly crediting the amounts so received, in
like funds, to an account of the Borrower maintained with, and acceptable to, the Administrative
Agent and designated by the Borrower in the applicable Borrowing Request; provided that ABR
Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in Section
2.06(e) shall be remitted by the Administrative Agent to the Issuing Bank.



     (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender’s Loan included in such Borrowing.



27









 





     SECTION 2.08. Interest Elections. (a) Each Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section shall not apply to Swingline Borrowings, which may
not be converted or continued.



     (b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower. Notwithstanding any contrary provision herein,
this Section shall not be construed to permit the Borrower to elect an Interest Period for
Eurodollar Loans that does not comply with Section 2.02(d).



     (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:



          (i) the Borrowing to which such Interest Election Request applies and, if different options
are being elected with respect to different portions thereof, the portions thereof to be allocated
to each resulting Borrowing (in which case the information to be specified pursuant to clauses
(iii) and (iv) below shall be specified for each resulting Borrowing);




          (ii) the effective date of the Borrowing to be made pursuant to such Interest Election
Request, which shall be a Business Day;




          (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and




          (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period contemplated by
the definition of the term “Interest Period”.



If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.




     (d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.



     (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the request of the Required
Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless
repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.



28









 





     SECTION 2.09. Termination and Reduction of Commitments. (a) Unless previously
terminated, (i) the Tranche B Term Loan Commitments shall terminate at 4:00 p.m., Chicago time, on
the Effective Date and (ii) all other Commitments shall terminate on the Revolving Credit Maturity
Date.



     (b) The Borrower may at any time terminate the Revolving Commitments upon (i) the payment in
full of all outstanding Revolving Loans, together with accrued and unpaid interest thereon and on
any Letters of Credit and (ii) the cancellation and return of all outstanding Letters of Credit (or
alternatively, with respect to each such Letter of Credit, the furnishing to the Administrative
Agent of a cash deposit (or at the discretion of the Administrative Agent a back up standby letter
of credit satisfactory to the Administrative Agent) equal to the LC Exposure as of such date).



     (c) The Borrower may from time to time reduce the Revolving Commitments; provided that
each reduction of the Revolving Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000.



     (d) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) or (c) of this Section at least three Business Days prior to
the effective date of such termination or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments delivered by
the Borrower may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of
the Commitments shall be made ratably among the Lenders in accordance with their respective
Commitments.



     SECTION 2.10. Repayment and Amortization of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each
Lender the then unpaid principal amount of each Revolving Loan on the Revolving Credit Maturity
Date, and (ii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan on
the earliest of the Revolving Credit Maturity Date, the date three Business Days after demand by
the Swingline Lender in its discretion if no Default exists or the demand by the Swingline Lender
in its discretion if a Default exists. The Borrower shall repay the Tranche B Term Loans on the
last day of each calendar quarter (commencing with the calendar quarter ending on or about
September 30, 2007) in an aggregate principal amount equal to $375,000 (as adjusted from time to
time pursuant to Section 2.11(e)). To the extent not previously paid, all unpaid Tranche B Term
Loans shall be paid in full in cash by the Borrower on the Tranche B Maturity Date.



     (b) If at any time the aggregate Revolving Credit Exposure of all Lenders exceeds the lesser
of (i) the total Revolving Commitments or (ii) the Borrowing Base, the Borrower shall promptly
repay such excess. If any such excess remains after repayment in full of all outstanding Revolving
Loans and Swingline Loans, the Borrower shall provide cash collateral for the LC Exposure in the
manner set forth herein to the extent required to eliminate such excess.



     (c) 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, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.



29









 





     (d) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.



     (e) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein absent manifest error; provided that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans in accordance with the terms of this
Agreement.



     (f) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after assignment pursuant
to Section 9.04) be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).



     SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have the right at any time
and from time to time to prepay any Borrowing in whole or in part without premium or penalty but
subject to breakfunding payments pursuant to Section 2.16, subject to prior notice in accordance
with paragraph (e) of this Section. Prepayments of Tranche B Term Loans under this Section 2.11(a)
shall be applied to the remaining principal installments thereof in inverse order of maturity.



          (b) In addition to all other payments of the Tranche B Term Loans required hereunder, the
Borrower shall prepay the Tranche B Term Loans by an amount equal to 100% of all of the Net Cash
Proceeds, payable upon receipt of such Net Cash Proceeds, from any Sale or Event of Loss of any
assets (exclusive of the sale of inventory, Receivables and scrap or obsolete material or equipment
in the ordinary course of business upon customary credit terms), to the extent said Net Cash
Proceeds exceed $5,000,000 in aggregate amount in any Fiscal Year, provided that:




                    (i) With respect to Net Cash Proceeds from the Sale of any
equipment, such Net Cash Proceeds
may be used to purchase similar equipment of comparable value, subject to the following conditions:
(x) no Default exists on the date of such Sale or of the proposed expenditure to purchase similar
equipment of comparable value, (y) such Net Cash Proceeds shall be used to purchase similar
equipment of comparable value within 180 days following the date of such Sale and (z) any such
amounts in excess of $5,000,000 shall be deposited in escrow with Agent, to be paid out when such
equipment is purchased; provided that, if any of the foregoing conditions are not satisfied at any
time then all such Net Cash Proceeds, whether held in escrow, held by the Borrower or otherwise,
shall then used to prepay the Secured Obligations by the amount thereof.



                    (ii) With respect to Net Cash Proceeds from insurance paid with
respect to any Event of Loss,
such Net Cash Proceeds may used to replace, rebuild or repair the assets for which such Net Cash
Proceeds were paid, subject to the following conditions: (x) no Default exists on the date of such
Event of Loss or of the proposed expenditure to replace, rebuild or repair, (y) the Borrower
delivers a certificate to Administrative Agent within 10 Business Days of the receipt of any Net
Cash Proceeds from insurance due to such Event of Loss stating that such Net Cash Proceeds shall be
used to replace, rebuild or repair such assets within 180 days following the date of such Event of
Loss (which certificate shall set forth the estimates of the proceeds to be so expended and when
they will be expended)



30









 







and such replacement, rebuilding or repair is completed within 180 days following the date of such
Event of Loss, provided that, if such replacement, rebuilding or repair cannot be completed within
such 180 days due to seasonal conditions or other conditions outside the control of the Borrower
and its Subsidiaries, each reference in this clause (y) to 180 days shall be deemed reference to
270 days, and (z) any such amounts in excess of $5,000,000 shall be deposited in escrow with
Administrative Agent, to be paid out from time to time as work progresses based on such documents
and other conditions as the Administrative Agent may reasonably require; provided that, if any of
the foregoing conditions are not satisfied at any time then all such Net Cash Proceeds, whether
held in escrow, held by the Borrower or otherwise, shall then used to prepay the Secured
Obligations by the amount thereof.



          (c) In addition to all other payments of the Tranche B Term Loans required hereunder, the
Borrower shall prepay the Tranche B Term Loans by an amount equal to 100% of the principal amount
of any Subordinated Indebtedness or any other Indebtedness not currently permitted under this
Agreement incurred by the Borrower or any of its Subsidiaries.




          (d) In addition to all other payments of the Tranche B Term Loans required hereunder, the
Borrower shall prepay the Tranche B Term Loans by an amount equal to 50% of the Net Cash Proceeds
of any issuance of Equity Interests by the Borrower, other than any issuance of Equity Interests by
the Borrower solely as a result of stock option plans or other benefit plans for management or
employees of the Borrower and its Subsidiaries.




          (e) In addition to all other payments of the Term Loans required hereunder, on the date that
is ten days after the earlier of (i) the date on which Borrower’s annual audited financial
statements for each Fiscal Year (commencing with the financial statements for the 2008 Fiscal Year)
are delivered pursuant to Section 5.01(a) or (ii) the date on which such annual audited financial
statements were required to be delivered pursuant to Section 5.01(a), the Borrower shall prepay the
Tranche B Term Loans by an amount equal to (x) 50% of the Excess Cash Flow for such Fiscal Year if
the Leverage Ratio was greater than 1.0 to 1.0 as of the end of such Fiscal Year, (y) 25% of the
Excess Cash Flow for such Fiscal Year if the Leverage Ratio was less than or equal to 1.0 to 1.0
but greater than 0.875 to 1.0 as of the end of such Fiscal Year, or (z) 0% if the Leverage Ratio is
less than or equal to 0.875 to 1.0 as of the end of such Fiscal Year. Notwithstanding the
preceding sentence, if no Default exists each such prepayment may be deferred by Borrower for up to
90 days to minimize any break funding payments required to be paid by Borrower under Section 2.16.
Each such prepayment shall be accompanied by a certificate signed by a Financial Officer certifying
the manner in which Excess Cash Flow and the resulting prepayment were calculated, which
certificate shall be in form and substance satisfactory to Administrative Agent.




          (f) All such amounts pursuant to Section 2.11(b), (c), (d) and (e) shall be applied,
first to ratably prepay the Tranche B Term Loans (to be applied ratably to the remaining
principal installments of the Tranche B Term Loans) and second to prepay the Revolving
Loans (including Swingline Loans) without a corresponding reduction in the Revolving Commitment and
to cash collateralize outstanding LC Exposure. Within the parameters of the applications set forth
above, prepayments shall be applied first to ABR Loans and then to Eurodollar Loans in direct order
of Interest Period maturities. Notwithstanding the foregoing, so long as no Event of Default has
occurred and is then continuing and at the Borrower’s option, the Administrative Agent shall hold
in escrow for the benefit of the Lenders all amounts required to be prepaid pursuant to such
Sections and applied to Eurodollar Loans and shall release such amounts upon the expiration of the
Interest Periods applicable to any such Eurodollar Loans being prepaid; provided,
however, that upon the occurrence and during the continuance of an Event of Default, such
escrowed amounts may be applied to Eurodollar Loans without regard to the expiration of any
Interest Period and the Borrower shall make all payments under Section 2.16 resulting therefrom.




31









 








          (g) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m.,
Chicago time, three Business Days before the date of prepayment, (ii) in the case of prepayment of
an ABR Borrowing, not later than 11:00 a.m., Chicago time, one Business Day before the date of
prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 11:00 a.m.,
Chicago time, on the date of prepayment. Each such notice shall be irrevocable and shall specify
the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid;
provided that, if a notice of prepayment is given in connection with a conditional notice
of termination of the Commitments as contemplated by Section 2.09, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with Section 2.09. Promptly
following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise
the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount
that would be permitted in the case of an advance of a Borrowing of the same Type as provided in
Section 2.02. Each prepayment of a Revolving Borrowing shall be applied ratably to the Revolving
Loans included in the prepaid Borrowing, and each prepayment of a Tranche B Term Loan Borrowing
shall be applied in accordance with the terms hereof, in each case any such prepayments shall be
accompanied by (i) accrued interest to the extent required by Section 2.13 and (ii) breakfunding
payments pursuant to Section 2.16.




     SECTION 2.12. Fees. (a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a commitment fee, which shall accrue at the Applicable Margin on the average
daily amount of the Available Revolving Commitment of such Lender during the period from and
including the Effective Date to but excluding the date on which the Lenders’ Revolving Commitments
terminate. Accrued commitment fees shall be payable in arrears within 15 days after the last day of
each March, June, September and December (commencing with the last day of September, 2007) and on
the date on which the Revolving Commitments terminate, commencing on the first such date to occur
after the date hereof. All commitment fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first day but excluding the
last day).



     (b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each
Revolving Lender a participation fee with respect to its participations in Letters of Credit, which
shall accrue at the same Applicable Margin used to determine the interest rate applicable to
Eurodollar Revolving Loans on the average daily amount of such Lender’s LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period from and including
the Effective Date to but excluding the later of the date on which such Lender’s Revolving
Commitment terminates and the date on which such Revolving Lender ceases to have any LC Exposure,
and (ii) to the Issuing Bank a fronting fee, which shall accrue at the rate of 0.125% (or such
other percentage as is agreed upon by the Issuing Bank and the Borrower) per annum on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to (A) unreimbursed LC
Disbursements and (B) Existing Letters of Credit) during the period from and including the
Effective Date to but excluding the later of the date of termination of the Revolving Commitments
and the date on which there ceases to be any LC Exposure, as well as the Issuing Bank’s standard
fees and commissions with respect to the issuance, amendment, renewal or extension of any Letter of
Credit or processing of drawings thereunder. Participation fees and fronting fees accrued through
and including the last day of each March, June, September and December (commencing with the last
day of September, 2007) shall be payable within 15 days following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees shall be
payable on the date on which the Revolving Commitments terminate and any such fees accruing after
the date on which the Revolving Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees shall be computed on the basis of a year of 360
days and shall be payable for the actual number of days elapsed (including the first day but
excluding the last day).



32









 





     (c) The Borrower agrees to pay to the Administrative Agent for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative
Agent.



     (d) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of commitment fees and participation fees, to the Lenders. Fees paid
shall not be refundable under any circumstances.



     SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing (including each
Swingline Loan which is to bear interest with reference to the Alternate Base Rate) shall bear
interest at the Alternate Base Rate plus the Applicable Margin. Swingline Loans for which an
alternate interest rate is agreed upon between the Borrower and the Swingline Lender shall bear
interest at such rate.



     (b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.



     (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.



     (d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the Revolving Commitments;
provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Availability Period), accrued interest
on the principal amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.



     (e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO
Rate shall be determined by the Administrative Agent, and such determination shall be conclusive
absent manifest error.



     SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of any Interest
Period for a Eurodollar Borrowing:



     (a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period; or



     (b) the Administrative Agent is advised by the Required Lenders under the applicable Class
that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their
Loans (or its Loan) included in such Borrowing for such Interest Period; then the Administrative
Agent shall give notice



33









 







thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable
thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that
requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar
Borrowing shall be ineffective, and (ii) if any Borrowing Request requests a Eurodollar Borrowing,
such Borrowing shall be made as an ABR Borrowing.



     SECTION 2.15. Increased Costs. (a) If any Change in Law shall:



          (i) impose, modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by, any Lender (except
any such reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank; or




          (ii) impose on any Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit
or participation therein;



and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining
any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or
the Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will
pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered;




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



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



     (d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right
to demand such compensation; provided that the Borrower shall not be required to compensate
a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 270 days prior to the date that such Lender or the Issuing Bank, as the case may
be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s or the Issuing Bank’s intention to claim compensation therefor;
provided further that, if the Change in Law giving rise



34









 







to such increased costs or reductions is retroactive, then the 270-day period referred to above
shall be extended to include the period of retroactive effect thereof.



     SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any principal
of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto
(including as a result of an Event of Default or any replacement of Revolving Loans due to a
re-allocation under the last paragraph of Section 2.04), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section 2.09(d) and is
revoked in accordance therewith), or (d) the assignment of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.20, then, in any such event, the Borrower shall compensate each Lender for
the loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such loss,
cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be
the excess, if any, of (i) the amount of interest which would have accrued on the principal amount
of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable
to such Loan, for the period from the date of such event to the last day of the then current
Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the amount of interest
which would accrue on such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable
amount and period from other banks in the eurodollar market. A certificate in reasonable detail of
any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.



     SECTION 2.17. Taxes. (a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or the Issuing Bank
(as the case may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant Governmental Authority in accordance with applicable law.



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



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



35









 





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



     (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without withholding or at a
reduced rate. Without limiting the generality of the foregoing, each Foreign Lender shall (i)
furnish on or before it becomes a party to the Agreement two accurate and complete originally
executed U.S. Internal Revenue Service Forms W-8BEN or U.S. Internal Revenue Service Forms W-8ECI
(or successor forms), certifying to such Foreign Lender’s legal entitlement to an exemption from or
reduction of U.S. federal withholding tax with respect to all interest payments hereunder, and (ii)
provide new Forms W-8BEN or Form W-8ECI (or successor forms) upon the expiration or obsolescence of
any previously delivered form to reconfirm any complete exemption from, or any entitlement to a
reduction, in U.S. federal withholding tax with respect to any interest payment hereunder;
provided that any Foreign Lender that is not a “bank” within the meaning of Section
881(c)(3)(A) of the Code and is relying on the so-called “portfolio-interest exemption” shall also
furnish a certificate that establishes in writing to the Borrower and the Administrative Agent that
such Foreign Lender is not (i) a “bank” as defined in Section 881(c)(3)(A) of the Code, (ii) a
10-percent shareholder within the meaning of Section 871(h)(3)(B) of the Code, or (iii) a
controlled foreign corporation related to the Borrower within the meaning of Section 864(d)(4) of
the Code, together with Forms W-8BEN. Any Lender that is a United States person, as defined in
Section 7701(a)(30) of the Code, and has not otherwise established that it is an exempt recipient
within the meaning of Treasury Regulation Section 1.6049-4(c) for which witholding is not required
shall deliver, on or before the date it becomes a party to the Agreement (and upon the expiration
or obsolescence of any previously delivered form), to the Borrower (with a copy to the
Administrative Agent) two accurate and complete original signed copies of Internal Revenue Service
Form W-9 or any successor form that such person is entitled to provide at such time in order to
comply with and establish an exemption from United States back-up withholding requirements.



     (f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.17, it
shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.17 with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section shall not be construed
to require the Administrative Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower or any other Person.




     SECTION 2.18. Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) The
Borrower shall make each payment required to be made by it hereunder (whether of principal,
interest,



36









 







fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17,
or otherwise) prior to 1:00 p.m., Chicago time, on the date when due, in immediately available
funds, without set off or counterclaim. Any amounts received after such time on any date may, in
the discretion of the Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at 10 South Dearborn Street, Floor 19, Chicago, Illinois 60603
or such other office designated by the Administrative Agent, except payments to be made directly to
the Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder
shall be due on a day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder shall be made in dollars.



     (b) Any proceeds of Collateral or payments on Subsidiary Guaranties received by the
Administrative Agent (i) not constituting either (A) a specific payment of principal, interest,
fees or other sum payable under the Loan Documents (which shall be applied as specified by the
Borrower) or (B) a mandatory prepayment (which shall be applied in accordance with Section 2.11) or
(ii) after an Event of Default has occurred and is continuing and the Administrative Agent so
elects or the Required Lenders so direct, such funds shall be applied ratably first, to pay
any fees, indemnities, or expense reimbursements including amounts then due to the Administrative
Agent and the Issuing Bank from the Borrower (other than in connection with Swap Obligations),
second, to pay any fees or expense reimbursements then due to the Lenders from the Borrower
(other than in connection with Swap Obligations), third, to pay interest then due and
payable on the Loans and the Letters of Credit ratably, fourth, to prepay principal on the
Loans and unreimbursed LC Disbursements ratably (with amounts applied to the Tranche B Term Loans
applied to installments of the Tranche B Term Loans in inverse order of maturity), to pay an amount
to the Administrative Agent equal to the aggregate undrawn face amount of all outstanding Letters
of Credit and the aggregate amount of any unpaid LC Disbursements, to be held as cash collateral
for such Obligations and to payment of any amounts owing with respect to Swap Obligations and
Banking Services Obligations (all such amounts under this “fourth” item being applied ratably in
accordance with all such amounts due), fifth, to the payment of any other Secured
Obligation due to the Administrative Agent or any Lender or any of their Affiliates by the
Borrower, and sixth, to the payment of the surplus, if any, to whoever may be lawfully
entitled to receive such surplus. Notwithstanding anything to the contrary contained in this
Agreement, unless so directed by the Borrower, or unless a Default is in existence, none of the
Administrative Agent or any Lender shall apply any payment which it receives to any Eurodollar Loan
of a Class, except (a) on the expiration date of the Interest Period applicable to any such
Eurodollar Loan or (b) in the event, and only to the extent, that there are no outstanding ABR
Loans of the same Class and, in any event, the Borrower shall pay the break funding payment
required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the
continuing and exclusive right to apply and reverse and reapply any and all such proceeds and
payments to any portion of the Secured Obligations.



     (c) If any Lender shall, by exercising any right of set off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans or participations in
LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Loans and participations in LC Disbursements and
Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at face value) participations
in the Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of



37









 







principal of and accrued interest on their respective Loans and participations in LC Disbursements
and Swingline Loans; provided that (i) if any such participations are purchased and all or
any portion of the payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made by the Borrower
pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to the Borrower or
any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The
Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.



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



     (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.05(c), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received
by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations
under such Sections until all such unsatisfied obligations are fully paid.



     SECTION 2.19. Mitigation Obligations. If any Lender requests compensation under
Section 2.15, or if the Borrower is required to pay any additional amount or make any indemnity
payment to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or
2.17, as the case may be, in the future and (ii) would not subject such Lender to any material
unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender
(and the Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment).



     SECTION 2.20. Departing Lenders; Replacement of Lenders.



     (a) If any Lender (i) shall become affected by any of the changes or events described in
Sections 2.15 or 2.17 and the Borrower is required to pay additional amounts or make indemnity
payments with respect to the Lender thereunder, (ii) is a Defaulting Lender or (iii) has failed to
consent to a proposed amendment, waiver, discharge or termination which pursuant to the terms of
Section 9.02 or any other provision of any Loan Document requires the consent of all affected
Lenders and with respect to which the Required Lenders shall have granted their consent (any such
Lender being hereinafter



38









 







referred to as a “Departing Lender”), then in such case, the Borrower may, upon at least
five (5) Business Days’ notice to the Administrative Agent and such Departing Lender (or such
shorter notice period specified by the Administrative Agent), designate a replacement lender
acceptable to the Administrative Agent (a “Replacement Lender”) to which such Departing
Lender shall, subject to its receipt (unless a later date for the remittance thereof shall be
agreed upon by the Borrower and the Departing Lender) of all amounts owed to such Departing Lender
under Sections 2.15 or 2.17, assign all (but not less than all) of its interests, rights,
obligations, Loans and Commitments hereunder; provided, that the Departing Lender shall
have received payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the Replacement Lender (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the case of all other
amounts). Upon any assignment by any Lender pursuant to this Section 2.20 becoming effective, the
Replacement Lender shall thereupon be deemed to be a “Lender” for all purposes of this Agreement
(unless such Replacement Lender was, itself, a Lender prior thereto) and such Departing Lender
shall thereupon cease to be a “Lender” for all purposes of this Agreement and shall have no further
rights or obligations hereunder (other than pursuant to Section 2.15 or 2.17 and Section 9.03)
while such Departing Lender was a Lender.



     (b) Notwithstanding any Departing Lender’s failure or refusal to assign its rights,
obligations, Loans and Commitments under this Section 2.20, the Departing Lender shall cease to be
a “Lender” for all purposes of this Agreement and the Replacement Lender shall be substituted
therefor upon payment to the Departing Lender by the Replacement Lender of all amounts set forth in
this Section 2.20 without any further action of the Departing Lender.



ARTICLE III

Representations and Warranties




     The Borrower represents and warrants to the Lenders that:



     SECTION 3.01. Organization; Powers. Each of the Borrower and its Subsidiaries is duly
organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required. Schedule 3.01 sets
forth (a) a correct and complete list of the name and relationship to the Borrower of each and all
of the Borrower’s Subsidiaries, (b) a true and complete listing of each class of each of the
Subsidiaries’ authorized Equity Interests, of which all of such issued shares are validly issued,
outstanding, fully paid and non-assessable, and owned beneficially and of record by the Persons
identified on Schedule 3.01, and (c) the type of entity of the Borrower and each of its
Subsidiaries. All of the issued and outstanding Equity Interests owned by any Loan Party have been
(to the extent such concepts are relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.



     SECTION 3.02. Authorization; Enforceability. The Transactions are within the
Borrower’s corporate powers and have been duly authorized by all necessary corporate and, if
required, stockholder action. This Agreement has been duly executed and delivered by the Borrower
and constitutes a legal, valid and binding obligation of the Borrower, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors’ rights generally and subject to general principles of equity, regardless
of whether considered in a proceeding in equity or at law.



39









 





     SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and effect,
(b) will not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any indenture, agreement
or other instrument binding upon the Borrower or any of its Subsidiaries or its assets, or give
rise to a right thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.



     SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Borrower
has heretofore furnished to the Lenders its consolidated balance sheet and statements of income,
stockholders equity and cash flows (i) as of and for the Fiscal Year ended December 31, 2006,
reported on by Ernst & Young LLP, independent public accountants, and (ii) as of and for the Fiscal
Quarter and the portion of the Fiscal Year ended March 31, 2007, certified by its chief financial
officer. Such financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and its consolidated Subsidiaries
as of such dates and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred to in clause (ii)
above.



          (b) Since December 31, 2006, there has been no material adverse change in the business,
assets, operations, prospects or condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole.




     SECTION 3.05. Properties. (a) Each of the Borrower and its Subsidiaries has good
title to, or valid leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their intended purposes.



          (b) Each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its business, and the
use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.




     SECTION 3.06. Litigation and Environmental Matters. (a) There are no actions, suits
or proceedings by or before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any of its Subsidiaries
(i) as to which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the aggregate, to result in
a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve this Agreement or
the Transactions.



          (b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.




40









 








          (c) Since the date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.




     SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower and its
Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other instruments binding upon
it or its property, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.



     SECTION 3.08. Investment Company Status. Neither the Borrower nor any of its
Subsidiaries is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.



     SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has timely filed or
caused to be filed all Tax returns and reports required to have been filed and has paid or caused
to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in
good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable,
has set aside on its books adequate reserves or (b) to the extent that the failure to do so could
not reasonably be expected to result in a Material Adverse Effect.



     SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the
most recent financial statements reflecting such amounts, exceed by more than $5,000,000 the fair
market value of the assets of such Plan, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $5,000,000 the fair market value of the
assets of all such underfunded Plans.



     SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information Memorandum nor any of the
other reports, financial statements, certificates or other information furnished by or on behalf of
the Borrower to the Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.



     SECTION 3.12. Solvency. (a) The fair value of the assets of each Loan Party, at a
fair valuation, will exceed its debts and liabilities, subordinated, contingent or otherwise; (b)
the present fair saleable value of the property of each Loan Party will be greater than the amount
that will be required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities become absolute and
matured; (c) each Loan Party will be able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) each
Loan Party will not have unreasonably small capital with which to conduct the



41









 







business in which it is engaged as such business is now conducted and is proposed to be conducted
following the Effective Date; (e) no Loan Party is “insolvent” within the meaning of Section
101(32) of the United States Bankruptcy Code (11 U.S.C. § 101, et seq.), as
amended, and any successor statute); and (f) no Loan Party has incurred (by way of assumption or
otherwise) any obligations or liabilities (contingent or otherwise) under any Loan Documents, or
made any conveyance in connection therewith, with actual intent to hinder, delay or defraud either
present or future creditors of such Loan Party or any of its Affiliates.



     SECTION 3.13. Security Interest in Collateral; Borrowing Base. The provisions of this
Agreement and the other Loan Documents create legal and valid Liens on all the Collateral in favor
of the Administrative Agent, for the benefit of the Secured Parties, and, upon the filing of
appropriate financing statements, the recordation of the applicable Mortgages and, with respect to
any intellectual property, filings in the United States Patent and Trademark Office and the United
States Copyright Office, or taking such other action as may be required for perfection under
applicable law, such Liens will constitute, to the extent required by the Loan Documents, perfected
and continuing Liens on the Collateral, securing the Secured Obligations, enforceable against the
applicable Loan Party and all third parties, and having priority over all other Liens on the
Collateral other than with respect to Liens expressly permitted by Section 6.02, to the extent any
such Liens would have priority over the Liens in favor of the Administrative Agent pursuant to any
applicable law. The Borrower and its Subsidiaries are not aware of any material part of any
Receivables Portfolio owing by consumers that are not located in the United States of America. The
Borrowing Base Value with respect to any Receivables Portfolio is determined exclusive of any
Receivables in such Receivables Portfolio that are not Eligible Receivables. The aggregate amount
of the Revolving Exposures of all Lenders does not exceed the lesser of the total Revolving
Commitments or the Borrowing Base.



     SECTION 3.14. Labor Disputes. As of the Effective Date, there are no strikes, lockouts
or slowdowns against the Borrower or any Subsidiary pending or, to the knowledge of the Borrower,
threatened. There are no labor controversies pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of its Subsidiaries (i) which could reasonably
be expected, individually or in the aggregate, to result in a Material Adverse Effect, or (ii) that
involve this Agreement or the Transactions.



     SECTION 3.15. No Default. No Default has occurred and is continuing.



     SECTION 3.16. Federal Reserve Regulations. No part of the proceeds of any Loan have
been used, whether directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations T, U, and X.



ARTICLE IV

Conditions




     SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance with Section 9.02):



     (a) Credit Agreement and Loan Documents. The Administrative Agent (or its counsel)
shall have received (i) from each party hereto either (A) a counterpart of this Agreement signed on
behalf of such party or (B) written evidence reasonably satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement and (ii) duly executed copies of the Loan
Documents and such other legal



42









 







opinions, certificates, documents, instruments, lien searches and agreements as the Administrative
Agent shall reasonably request in connection with the transactions contemplated by this Agreement
and the Loan Documents, including without limitation all pledged share certificates and
instruments, all stock powers and all other agreements, instruments and documents required by the
Administrative Agent n connection with the Collateral Documents and other Loan Documents, all in
form and substance satisfactory to the Administrative Agent and its counsel.



     (b) Financial Statements and Projections. The Lenders shall have received (i) audited
consolidated financial statements of the Borrower for the 2005 and 2006 Fiscal Years and (ii)
projections through 2011, together with such additional financial information as the Administrative
Agent may reasonably request (including, without limitation, a detailed description of the
assumptions used in preparing such projections).



     (c) Certificate. The Administrative Agent shall have received a certificate, signed by
a Financial Officer or other executive officer of the Borrower, on the initial Borrowing date (i)
stating that no Default or Event of Default has occurred and is continuing, (ii) stating that the
representations and warranties contained in Article III are true and correct as of such date, and
(iii) providing all agreements, documents and details with respect to the Recapitalization as
requested by the Administrative Agent.



     (d) Fees. The Lenders and the Administrative Agent shall have received, substantially
concurrently with the effectiveness hereof, all fees required to be paid, and all expenses for
which invoices have been presented (including the reasonable fees and expenses of legal counsel to
the Administrative Agent), on or before the Effective Date. All such amounts will be paid with
proceeds of Loans made on the Effective Date and will be reflected in the funding instructions
given by the Borrower to the Administrative Agent on or before the Effective Date.



     (e) Existing Credit Agreement. The Borrower shall have paid, concurrently with the
initial Loans hereunder, in full in cash all obligations (other than the Existing Letters of Credit
continued hereunder) under the existing credit agreement of its Subsidiaries and terminated such
credit agreement and all liens and security interests relating thereto, all in a manner
satisfactory to the Administrative Agent and its counsel.



     (f) Borrowing Base Certificate. The Borrower shall have delivered a Borrowing Base
Certificate which calculates the Borrowing Base as of the end of April, 2007.



     (g) Insurance. The Administrative Agent shall have received evidence of insurance
coverage in form, scope, and substance reasonably satisfactory to the Administrative Agent and
otherwise in compliance with the terms of Section 5.05.



     (h) Debt Rating. The Borrower shall have obtained a Debt Rating of the credit
facilities under this Agreement from Moody’s and S&P.



     (i) Miscellaneous. The Administrative Agent shall have received such other documents,
and evidence of the satisfaction of such other conditions (including without limitation in
connection with the recapitalization), as requested by the Administrative Agent.



     The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and
such notice shall be conclusive and binding; provided, that the Effective Date shall be
deemed to have occurred upon the initial funding of Loans by the Lenders. Notwithstanding the
foregoing, the obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of
Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied
(or waived pursuant to Section 9.02)



43









 







at or prior to 4:00 p.m., Chicago time, on June 12, 2007 (and, in the event such conditions are not
so satisfied or waived, the Commitments shall terminate at such time).



     SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:



     (a) The representations and warranties of the Borrower set forth in this Agreement and the
other Loan Documents shall be true and correct in all material respects on and as of the date of
such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit,
as applicable.



     (b) At the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of
Default shall have occurred and be continuing.



     Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall
be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.



ARTICLE V

Affirmative Covenants




     Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:



     SECTION 5.01. Financial Statements; Ratings Change and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:




     (a) by no later than five (5) Business Days after the earlier of the date on which such
financial statements are required to be filed by the Borrower with the SEC and the date 90
days after the end of each Fiscal Year of the Borrower, its audited consolidated balance
sheet and related statements of operations, stockholders’ equity and cash flows as of the
end of and for such year, setting forth in each case in comparative form the figures for the
previous Fiscal Year, all reported on by Ernst & Young LLP or other independent public
accountants of recognized national standing (without a “going concern” or like qualification
or exception and without any qualification or exception as to the scope of such audit) to
the effect that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied (it being agreed that the furnishing of the Borrower’s Annual Report on Form 10-K
for such year, as filed with the Securities and Exchange Commission, will satisfy the
Borrower’s obligation under this Section 5.10(a) with respect to such year except with
respect to the requirement that such financial statements be reported on without a “going
concern” or like qualification or exception, or qualification arising out of the scope of
the audit);




     (b) by no later than five (5) Business Days after the earlier of the date on which such
financial statements are required to be filed by the Borrower with the SEC and the date 45
days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the
Borrower, its



44









 







consolidated balance sheet and related statements of operations, stockholders’ equity and
cash flows as of the end of and for such Fiscal Quarter and the then elapsed portion of the
Fiscal Year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of the end of)
the previous Fiscal Year, all certified by one of its Financial Officers as presenting
fairly in all material respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the absence of
footnotes (it being agreed that the furnishing of the Borrower’s Quarterly Report on Form
10-Q for such quarter, as filed with the SEC, will satisfy the Borrower’s obligations under
this Section 5.01(b) with respect to such quarter);




     (c) within ten (10) Business Days after any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (i) certifying
as to whether a Default has occurred and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with Section 6.12 and (iii)
stating whether any change in GAAP or in the application thereof has occurred since the date
of the audited financial statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial statements accompanying such
certificate;




     (d) within ten (10) Business Days after any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their examination of
such financial statements of any Default (which certificate may be limited to the extent
required by accounting rules or guidelines);




     (e) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or any Subsidiary with
the SEC or with any national securities exchange, or distributed by the Borrower to its
shareholders generally, as the case may be, provided that the Borrower shall be deemed to
have delivered the information referred to in clause (e), when it provides notice that such
information has been posted on the Internet website of the SEC (http://www.sec.gov),
provided, further, if the Administrative Agent or a Lender requests such information to be
delivered to it in hard copies, the Borrower shall furnish to the Agent or such Lender, as
applicable, such information accordingly.




     (f) promptly after Moody’s or S&P shall have announced a change in the rating
established or deemed to have been established for any Indebtedness of any Loan Party,
written notice of such rating change;




     (g) Not later than the 20 days after the end of each month, a Borrowing Base
Certificate, together with supporting schedules setting forth such information as the
Administrative Agent may request with respect to the aging, value and other information
relating to the computation of the Borrowing Base and the eligibility of any property or
assets included in such computation, all prepared as of the close of business on the last
day of each such month, in form and detail satisfactory to the Administrative Agent, and
certified as true and correct by the chief financial officer of the Borrower.




     (h) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Borrower or any Subsidiary, or
compliance with the terms of this Agreement, as the Administrative Agent or any Lender may



45









 







reasonably request.



     SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:




     (a) the occurrence of any Default;




     (b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Borrower or any Affiliate
thereof that, if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;




     (c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding $1,000,000; and




     (d) any other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect.


Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.




     SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.



     SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could result in
a Material Adverse Effect before the same shall become delinquent or in default, except where (a)
the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably
be expected to result in a Material Adverse Effect.



     SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and will
cause each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of
its business in good working order and condition, ordinary wear and tear excepted, and (b)
maintain, with financially sound and reputable insurance companies, insurance in such amounts and
against such risks as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.



     SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine and make extracts from its books and records, and
to discuss its affairs, finances and condition with its officers and independent accountants, all
at such reasonable times and as often as reasonably requested. The Borrower will, and will cause
each of its Subsidiaries to, permit independent agents or representatives




46









 





acceptable to the Required Lenders to conduct an annual comprehensive field audit of the
Borrower’s and each Guarantor’s books, records, properties and assets, including, without
limitation, all collateral subject to the Security Documents, at the expense of the Borrower and
the Guarantors.



     SECTION 5.07. Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Borrower
will not, and will not permit any of its Subsidiaries, to be or become subject at any time to any
law, regulation, or list of any government agency (including, without limitation, the U.S. Office
of Foreign Asset Control list) that prohibits or limits any Lender from making any advance or
extension of credit to the Borrower or Guarantor or from otherwise conducting business with the
Borrower or Guarantor, or fail to provide documentary and other evidence of the Borrower’s or
Guarantor’s identity as may be requested by any Bank at any time to enable such Lender to verify
the Borrower’s or Guarantor’s identity or to comply with any applicable law or regulation,
including, without limitation, Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318.



     SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of the Loans will
be used for refinancing certain Indebtedness in existence on the Effective Date and to complete the
Recapitalization, working capital needs and for other general corporate purposes of the Borrower
and its Subsidiaries in the ordinary course of business. No part of the proceeds of any Loan and no
Letter of Credit will be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations T, U and X.



     SECTION 5.09. Collateral Security; Further Assurances (a) To guarantee or secure the
payment when due of the Secured Obligations, the Borrower shall execute and deliver, or cause to be
executed and delivered, to the Lenders and the Administrative Agent Collateral Documents granting
or providing for the following:



          (i) Subsidiary Guaranties of all present and future Subsidiaries of the Borrower.




          (ii) Security Agreements granting a first priority, enforceable Lien and security interest,
subject only to Liens permitted by Section 6.02, on all present and future accounts, chattel paper,
commercial tort claims, deposit accounts, documents, farm products, fixtures, chattel paper,
equipment, general intangibles, goods, instruments, inventory, investment property,
letter-of-credit rights (as those terms are defined in the UCC) and all other personal property of
the Borrower and each Guarantor.




          (iii) Mortgages and other documents and conditions required by the Administrative Agent with
respect to any present and future real property owned by the Borrower or any Guarantor granting a
first priority, enforceable Lien and security interest, subject only to Liens permitted by Section
6.02, on all present and future owned real property.




          (iv) All other security and collateral described in the Collateral Documents.




     (b) The Borrower agrees that it will promptly notify the Administrative Agent of the formation
or acquisition of any Subsidiary or other Subsidiary or the acquisition of any assets on which a
Lien is required to be granted and that is not covered by existing Collateral Documents. The
Borrower agree that it will promptly execute and deliver, and cause each Subsidiary to execute and
deliver, promptly upon the request of the Administrative Agent, such additional Collateral
Documents and other agreements, documents and instruments, each in form and substance satisfactory
to the Administrative Agent, sufficient to grant to the Administrative Agent, for the benefit of
the Lenders and the Administrative Agent, the



47









 







Subsidiary Guaranties and Liens contemplated by this Agreement and the Collateral Documents. The
Borrower shall deliver, and cause each Guarantor to deliver, to the Administrative Agent all
original instruments payable to it with any endorsements thereto required by the Administrative
Agent and all original certificated securities and other certificates with respect to any Equity
Interests owned by the Borrower or any Subsidiary with any blank stock or other powers required by
the Administrative Agent. Additionally, the Borrower shall execute and deliver, and cause each
Subsidiary to execute and deliver, promptly upon the request of the Administrative Agent, such
certificates, legal opinions, title work and insurance, surveys, lien searches, environmental
reports, organizational and other charter documents, resolutions and other documents and agreements
as the Administrative Agent may request in connection therewith. The Borrower shall use its best
efforts to cause each lessor of real property to the Borrower or any Guarantor where any material
Collateral is located to execute and deliver to the Administrative Agent an agreement in form and
substance reasonably acceptable to the Administrative Agent duly executed on behalf of such lessor
waiving any distraint, lien and similar rights with respect to any property subject to the
Collateral Documents and agreeing to permit the Administrative Agent to enter such premises in
connection therewith. The Borrower shall execute and deliver, and cause each Guarantor to execute
and deliver, promptly upon the request of the Administrative Agent, such agreements and instruments
evidencing any intercompany loans or other advances among the Borrower and the Subsidiaries, or any
of them, and all such intercompany loans or other advances shall be, and are hereby made,
subordinate and junior to the Secured Obligations and no payments may be made on such intercompany
loans or other advances upon and during the continuance of a Default unless otherwise agreed to by
the Administrative Agent.



     SECTION 5.10. Additional Covenants. If at any time the Borrower or any of its
Subsidiaries shall enter into or be a party to any instrument or agreement, including all such
instruments or agreements in existence as of the date hereof and all such instruments or agreements
entered into after the date hereof, relating to or amending any provisions applicable to any of its
Indebtedness which in the aggregate, together with any related Indebtedness, exceeds $1,000,000,
which includes any material covenants or defaults not substantially provided for in this Agreement
or more favorable to the lender or lenders thereunder than those provided for in this Agreement,
then the Borrower shall promptly so advise the Administrative Agent and the Lenders. Thereupon, if
the Administrative Agent or the Required Lenders shall request, upon notice to the Borrower, the
Administrative Agent and the Lenders shall enter into an amendment to this Agreement or an
additional agreement (as the Administrative Agent may request), providing for substantially the
same material covenants and defaults as those provided for in such instrument or agreement to the
extent required and as may be selected by the Administrative Agent.



     SECTION 5.11. Depository Banks. Each Loan Party shall maintain the
Administrative Agent or a Lender as such Loan Party’s principal depository bank, including for the
maintenance of operating, administrative, cash management, collection activity, and other deposit
accounts for the conduct of its business.



ARTICLE VI

Negative Covenants




     Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees, expenses and other amounts payable under any Loan Document have been paid in
full and all Letters of Credit have expired or terminated and all LC Disbursements shall have been
reimbursed, the Borrower covenants and agrees with the Lenders that:



48









 





     SECTION 6.01. Indebtedness. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:




     (a) Indebtedness created hereunder;




     (b) Indebtedness existing on the date hereof and set forth in Schedule 6.01, and
extensions, renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof;




     (c) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the
Borrower or any other Subsidiary;




     (d) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary
of Indebtedness of the Borrower or any other Subsidiary;




     (e) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition thereof, and
extensions, renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that (i) such Indebtedness is
incurred prior to or within 90 days after such acquisition or the completion of such
construction or improvement and (ii) the aggregate principal amount of Indebtedness
permitted by this clause (e) shall not exceed $5,000,000 at any time outstanding; and




     (f) Swap Obligations permitted hereunder.



     SECTION 6.02. Liens. The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it except:




     (a) Permitted Encumbrances;




     (b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the
date hereof and set forth in Schedule 6.02; provided that (i) such Lien shall not
apply to any other property or asset of the Borrower or any Subsidiary and (ii) such Lien
shall secure only those obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding principal amount
thereof; and




     (c) Liens on fixed or capital assets acquired, constructed or improved by the Borrower
or any Subsidiary; provided that (i) such security interests secure Indebtedness
permitted by clause (e) of Section 6.01, (ii) such security interests and the Indebtedness
secured thereby are incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement, (iii) the Indebtedness secured thereby does
not exceed the cost of acquiring, constructing or improving such fixed or capital assets and
(iv) such security interests shall not apply to any other property or assets of the Borrower
or any Subsidiary.



     SECTION 6.03. Fundamental Changes. (a) The Borrower will not, and will not permit
any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of



49









 







transactions) any of its assets, or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be continuing (i) any
Borrower or Guarantor may sell inventory, Receivables and scrap or obsolete material or equipment
in the ordinary course of business upon customary credit terms, (ii) any Subsidiary may merge into
the Borrower in a transaction in which the Borrower is the surviving corporation, (iii) any
Subsidiary/Person may merge into any Subsidiary in a transaction in which the surviving entity is
a Subsidiary, (iv) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to
the Borrower or to another Subsidiary and (v) any Subsidiary may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is in the best interests of
the Borrower and is not materially disadvantageous to the Lenders; provided that any such
merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger
shall not be permitted unless also permitted by Section 6.04.



          (b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.



     SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. The
Borrower will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to
such merger) any capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or
any other interest in, any other Person, or make any Acquisition, except



          (a) Permitted Investments;




          (b) investments by the Borrower existing on the date hereof in the capital stock of its
Subsidiaries;




          (c) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary to the
Borrower or any other Subsidiary;




          (d) Guarantees constituting Indebtedness permitted by Section 6.01;




          (e) Acquisitions, provided that: (i) before and after giving pro forma effect thereto no
Default exists or would be caused thereby and the representations and warranties contained in the
Loan Documents shall be true and correct on and as of the date thereof (both before and after such
Acquisition is consummated as if made on the date such Acquisition is consummated, (ii) if such
Acquisition involves the acquisition of Equity Interests, the consummation of such Acquisition has
been recommended by the Board of Directors and management of the target of such Acquisition, (iii)
at least 5 Business Days’ prior to the consummation of such Acquisition, the Borrower shall have
provided to the Lenders a certificate of a Financial Officer attaching pro forma computations
acceptable to the Administrative Agent to demonstrate compliance with all financial covenants
hereunder, (iv) at least 5 Business Days’ prior to the consummation of such Acquisition, the
Borrower shall have delivered drafts all acquisition documents and other agreements and documents
relating to such Acquisition which shall not materially differ from the final documentation for
such Acquisition, and the Administrative Agent shall have completed a satisfactory review thereof
and completed such other due diligence satisfactory to the Administrative Agent, (v) both before
and after giving effect to such Acquisition, the Borrower is and will be able to borrow at least
$15,000,000 of additional Revolving Loans, and (vi) the aggregate consideration paid or payable in
connection with any such Acquisition and permitted by this proviso, including without

50









 








limitation any Indebtedness assumed in connection therewith, all guarantees or other liabilities
incurred in connection therewith, and all deferred payments and other direct or indirect
consideration in connection therewith, shall not exceed $50,000,000 for any single Acquisition.




     SECTION 6.05. Swap Agreements. The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which the Borrower or any Subsidiary has actual exposure (other than those in
respect of Equity Interests of the Borrower or any of its Subsidiaries), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Subsidiary. The Borrower will
maintain at all times on or after the date 90 days after the Effective Date one or more
transactions of the type described in the definition of “Swap Agreements” with one or more
financial institutions acceptable to the Administrative Agent in its reasonable discretion,
providing for a fixed rate of interest on a notional amount of at least 25% of the principal amount
of the Tranche B Term Loan and for an average weighted maturity and on other terms and reasonably
acceptable to the Administrative Agent.



     SECTION 6.06. Restricted Payments. The Borrower will not, and will not permit any of
its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except (a) the Borrower may declare and pay dividends with respect to its
Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may
declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make
Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans
for management or employees of the Borrower and its Subsidiaries, (d) Restricted Payments up to
$150,000,000 in the aggregate in accordance with the Recapitalization and (e) other Restricted
Payments not to exceed (i) for the period from the Effective Date through December 31, 2008,
$15,000,000 in aggregate amount or (ii) for the period after December 31, 2008, the sum of
$25,000,000 plus 50% of Consolidated Net Income for the period after June 30, 2007 through the end
of the most recently ended Fiscal Quarter prior to any such Restricted Payment, provided that no
Restricted Payment under the foregoing clauses (d) or (e) will be permitted unless (x) no Default
exists or would be caused thereby both before and after giving effect to such Restricted Payment
and (y) the Borrower is and will be able to borrow at least $15,000,000 of additional Revolving
Loans both before and after giving effect to such Restricted Payment.



     SECTION 6.07. Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices
and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among
the Borrower and its wholly owned Subsidiaries not involving any other Affiliate and (c) any
Restricted Payment permitted by Section 6.06.



     SECTION 6.08. Restrictive Agreements. The Borrower will not, and will not permit any
of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or
assets, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its capital stock or to make or repay loans or advances to the Borrower or any
other Subsidiary or to Guarantee Indebtedness of the Borrower or any other Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and conditions imposed by
law or by this Agreement, (ii) the foregoing shall not apply to restrictions and conditions
existing on the date hereof identified on Schedule 6.08 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such restriction or
condition),



51









 




(iii) the foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness and (v) clause (a) of
the foregoing shall not apply to customary provisions in leases restricting the assignment thereof.




     SECTION 6.09. Change of Name or Location; Change of Fiscal Year. No Loan Party shall
(a) change its name as it appears in official filings in the state of its incorporation or
organization, (b) change its chief executive office, principal place of business, mailing address,
corporate offices or warehouses or locations at which Collateral is held or stored, or the location
of its records concerning the Collateral as set forth in the Collateral Documents, (c) change the
type of entity that it is, (d) change its organization identification number, if any, issued by its
state of incorporation or other organization, or (e) change its state of incorporation or
organization, in each case, unless the Administrative Agent shall have received at least thirty
days prior written notice of such change and the Administrative Agent shall have acknowledged in
writing that either (1) such change will not adversely affect the validity, perfection or priority
of the Administrative Agent’s security interest in the Collateral, or (2) any reasonable action
requested by the Administrative Agent in connection therewith has been completed or taken
(including any action to continue the perfection of any Liens in favor of the Administrative Agent,
on behalf of Lenders, in any Collateral), provided that, any new location shall be in the
continental U.S. No Loan Party shall change its Fiscal Year or Fiscal Quarter end.



     SECTION
6.10. Amendments to Agreements. No Loan Party will, nor will any Loan Party
permit its Subsidiary to, amend, supplement or otherwise modify (a) its articles of incorporation,
charter, certificate of formation, operating agreement, by-laws or other organizational document in
any manner materially adverse to the Lenders, or (b) any instrument or agreement evidencing or
relating to any Subordinated Indebtedness except to the extent permitted by the related
Subordination Agreement.



     SECTION
6.11. Prepayment of Indebtedness; Subordinated Indebtedness No Loan Party
shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of,
premium, if any, interest or other amount payable in respect of any Indebtedness prior to its
scheduled maturity, other than (i) the Obligations; (ii) Indebtedness secured by a Lien permitted
by Section 6.02 if the asset securing such Indebtedness has been sold or otherwise disposed of in
accordance herewith; and (iii) Indebtedness permitted hereunder upon any permitted refinancing
thereof in accordance therewith. Notwithstanding anything herein to the contrary, no Loan Party
shall directly or indirectly voluntarily prepay, defease or in substance defease, purchase, redeem,
retire or otherwise acquire, any Subordinated Indebtedness.



     SECTION
6.12. Government Regulation. No Loan Party shall be or become subject at any
time to any law, regulation, or list of any government agency (including, without limitation, the
U.S. Office of Foreign Asset Control list) that prohibits or limits any Lender from making any
advance or extension of credit to any Loan Party or from otherwise conducting business with the
Borrower or Guarantor, or fail to provide documentary and other evidence of any Loan Party’s
identity as may be requested by any Lender at any time to enable such Lender to verify any Loan
Party’s identity or to comply with any applicable law or regulation, including, without limitation,
Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318.



     SECTION
6.13. Financial Covenants.



52









 





     (a) Leverage Ratio. Permit or suffer the Leverage Ratio to exceed (i) 1.25 to 1.0 at
any time on or before December 30, 2008, (ii) 1.125 to 1.0 at any time on or after December 31,
2008 and on or before December 30, 2010 or (iii) 1.0 to 1.0 at any time thereafter.



     (b) Tangible Net Worth. Permit or suffer the Consolidated Tangible Net Worth at any
time to be less than the sum of (i) $80,000,000 plus (ii) an amount equal to 50% of positive
Consolidated Net Income for the three consecutive Fiscal Quarters ending December 31, 2007 and for
each Fiscal Year ending thereafter, such amount to be added as of December 31, 2007 and as of the
end of each such Fiscal Year thereafter, as applicable, provided that if Consolidated Net Income is
negative for the three consecutive Fiscal Quarters ending December 31, 2007 or for any Fiscal Year
thereafter the amount added for any such period shall be zero and it shall not reduce the amount
added for any other period.



     (c) Ratio of Total Liabilities to Tangible Net Worth. Permit or suffer the ratio of
the Consolidated Total Liabilities to the Consolidated Tangible Net Worth to exceed (i) 3.0 to 1.0
at any time on or before December 30, 2007, (ii) 2.50 to 1.0 at any time on or after December 31,
2007 and on or before December 30, 2008, (iii) 2.0 to 1.0 at any time on or after December 31, 2008
and on or before December 30, 2009, (iv) 1.75 to 1.0 at any time on or after December 31, 2009 and
on or before December 30, 2010 or (v) 1.50 to 1.0 to any time thereafter.



ARTICLE VII

Events of Default




     If any of the following events (“Events of Default”) shall occur:




     (a) the Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;




     (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article) payable under this
Agreement, when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of three Business Days;




     (c) any representation or warranty made or deemed made by or on behalf of the Borrower
or any Subsidiary in or in connection with this Agreement or any amendment or modification
hereof or waiver hereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement or any amendment or
modification hereof or waiver hereunder, shall prove to have been incorrect in any material
respect when made or deemed made;




     (d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to the Borrower’s existence) or 5.08 or in
Article VI;




     (e) the Borrower or any Guarantor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement or any other Loan Document (other than
those specified in clause (a), (b) or (d) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the Administrative Agent to the
Borrower (which notice will be given at the request of any Lender);




     (f) the Borrower or any Subsidiary shall fail to make any payment (whether of principal



53









 







or interest and regardless of amount) in respect of any Material Indebtedness, when and as
the same shall become due and payable;




     (g) any event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits (with or without the giving
of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or
any trustee or agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;




     (h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or
any Subsidiary or its debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Borrower or any Subsidiary or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be entered;




     (i) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Borrower or any Subsidiary or for a substantial part of its
assets, (iv) file an answer admitting the material allegations of a petition filed against
it in any such proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;




     (j) the Borrower or any Subsidiary shall become unable, admit in writing its inability
or fail generally to pay its debts as they become due;




     (k) one or more judgments for the payment of money in an aggregate amount in excess of
$5,000,000 shall be rendered against the Borrower, any Subsidiary or any combination thereof
and the same shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to
enforce any such judgment;




     (l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with all other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding (i) $1,000,000 in any year or (ii) $5,000,000 for all periods;




     (m) a Change in Control shall occur; or




     (n) Any Collateral Document shall fail to remain in full force or effect or any action
shall be taken to discontinue or to assert the invalidity or unenforceability of any
Collateral Document, or any Loan Party shall fail to comply with any of the terms or
provisions of any Collateral Document if the failure continues beyond any period of grace
provided for in the applicable



54









 







Collateral Document, or any Collateral Document granting a Lien shall for any reason fail to
create a valid and perfected first priority security interest in any Collateral purported to
be covered thereby or subordination to be created thereunder, except as permitted by the
terms of this Agreement or any Collateral Document;




     (o) Any material subordination provision of any Subordination Agreement or any
agreement or instrument governing any Subordinated Indebtedness shall for any reason be
revoked or invalidated by a court of competent jurisdiction in a final non-appealable order,
or otherwise cease to be in full force and effect, or the Secured Obligations shall for any
reason shall not have the priority contemplated by this Agreement or such subordination
provisions;




     (p) any material provision of any other Loan Document for any reason ceases to be
valid, binding and enforceable in accordance with its terms (or any Loan Party shall
challenge the enforceability of any Loan Document or shall assert in writing, or engage in
any action or inaction based on any such assertion, that any provision of any of the Loan
Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance
with its terms);




     then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of the Required
Lenders shall, by notice to the Borrower, take either or both of the following actions, at
the same or different times: (i) terminate the Commitments, and thereupon the Commitments
shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; and in case of any event with respect to the Borrower
described in clause (h) or (i) of this Article, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower and (iii) exercise any rights
and remedies provided to the Administrative Agent under the Loan Documents or at law or
equity, including all remedies provided under the UCC.



ARTICLE VIII

The Administrative Agent




     Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf, including
(in the case of the Administrative Agent) execution of the other Loan Documents, and to exercise
such powers as are delegated to the Administrative Agent by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental thereto.



     The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.



55









 





     The Administrative Agent shall not have any duties or obligations except those expressly set
forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.02), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall
not have any duty to disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank
serving as the Administrative Agent or any of its Affiliates in any capacity. The Administrative
Agent shall not be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall not be deemed to have knowledge of
any Default unless and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in or in connection
with any Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or in connection with any Loan Document, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the
existence of the Collateral, or (vi) the satisfaction of any condition set forth in Article IV or
elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.



     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.



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



     Subject to the appointment and acceptance of a successor Agent as provided in this paragraph,
the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the
Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may,
on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall
be a bank with an office in New



56









 







York, New York or an Affiliate of any such bank. Upon the acceptance of its appointment as the
Administrative Agent hereunder by a successor, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The
fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as the Administrative Agent.



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



     None of the Lenders, if any, identified in this Agreement as a Syndication Agent,
Documentation Agent, co-agent or other similar title shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those applicable to all Lenders
as such. Without limiting the foregoing, none of such Lenders shall have or be deemed to have a
fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with
respect to the relevant Lenders in their respective capacities as a Syndication Agent,
Documentation Agent, co-agent or other similar title, as applicable, as it makes with respect to
the Administrative Agent in the preceding paragraph.



     Except with respect to the exercise of setoff rights of any Lender, in accordance with Section
9.08, the proceeds of which are applied in accordance with this Agreement, each Lender agrees that
it will not take any action, nor institute any actions or proceedings, against the Borrower or with
respect to any Loan Document, without the prior written consent of the Required Lenders or, as may
be provided in this Agreement or the other Loan Documents, with the consent of the Administrative
Agent.



     The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or
omissions of, or (except as otherwise set forth herein in case of the Administrative Agent)
authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on
behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the
date such principal or interest has become due and payable pursuant to the terms of this Agreement.



     In its capacity, the Administrative Agent is a “representative” of the Secured Parties within
the meaning of the term “secured party” as defined in the UCC. Each Lender authorizes the
Administrative Agent to enter into each of the Collateral Documents to which it is a party and to
take all action contemplated by such documents. Each Lender agrees that no Secured Party (other
than the Administrative Agent) shall have the right individually to seek to realize upon the
security granted by any Collateral Document, it being understood and agreed that such rights and
remedies may be exercised solely by the Administrative Agent for the benefit of the Secured Parties
upon the terms of the Collateral Documents. In the event that any Collateral is hereafter pledged
by any Person as collateral security for the Secured Obligations, the Administrative Agent is
hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the
Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such
Collateral in favor of the Administrative Agent on behalf of the Secured Parties. The Lenders
hereby authorize the Administrative Agent, at its option and in its



57









 







discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral
(i) as described in Section 9.02(c); (ii) as permitted by, but only in accordance with, the terms
of the applicable Loan Document; or (iii) if approved, authorized or ratified in writing by the
Required Lenders, unless such release is required to be approved by all of the Lenders hereunder.
Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the
Administrative Agent’s authority to release particular types or items of Collateral pursuant
hereto.



     The Administrative Agent shall have no obligation whatsoever to any of the Lenders to assure
that the Collateral exists or is owned by the Loan Parties or is cared for, protected, or insured
or has been encumbered, or that the Liens granted to the Administrative Agent therein have been
properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to
any particular priority, or to exercise at all or in any particular manner or under any duty of
care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and
powers granted or available to the Administrative Agent pursuant to any of the Loan Documents, it
being understood and agreed that in respect of the Collateral, or any act, omission, or event
related thereto, the Administrative Agent may act in any manner it may deem appropriate, in its
sole discretion given the Administrative Agent’s own interest in the Collateral in its capacity as
one of the Lenders and that the Administrative Agent shall have no other duty or liability
whatsoever to any Lender as to any of the foregoing.



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



     Each Lender hereby agrees as follows: (a) such Lender is deemed to have requested that the
Administrative Agent furnish such Lender, promptly after it becomes available, a copy of each
report (the “Reports”) prepared by or on behalf of the Administrative Agent; (b) such Lender
expressly agrees and acknowledges that neither the Administrative Agent nor any Related Party (i)
makes any representation or warranty, express or implied, as to the completeness or accuracy of any
Report or any of the information contained therein, or (ii) shall be liable for any information
contained in any Report; (c) such Lender expressly agrees and acknowledges that the Reports are not
comprehensive audits or examinations, that the Administrative Agent, any of its Related Parties or
any other party performing any audit or examination will inspect only specific information
regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as
well as on representations of the Loan Parties’ personnel and that the Administrative Agent and its
Related Parties undertake no obligation to update, correct or supplement the Reports; (d) such
Lender agrees to keep all Reports confidential and strictly for its internal use, not share the
Report with any Loan Party and not to distribute any Report to any other Person except as otherwise
permitted pursuant to this Agreement; and (e) without limiting the generality of any other
indemnification provision contained in this Agreement, such Lender agrees (i) that neither the
Administrative Agent nor any of its Related Parties shall be liable to such Lender or any other
Person receiving a copy of the Report for any inaccuracy or omission contained in or relating to a
Report, (ii) to conduct its own due diligence investigation and make credit decisions with respect
to the Loan Parties based on such documents as such Lender deems appropriate without any reliance
on the Reports or on the Administrative Agent or any of its Related Parties, (iii) to hold the
Administrative Agent and any such other Person preparing a Report harmless from any action the
indemnifying Lender may take or conclusion the indemnifying Lender may reach or draw from any
Report in connection with any Credit Extensions that the indemnifying Lender has made or may make
to the Loan Parties, or the indemnifying Lender’s participation in, or the indemnifying Lender’s
purchase of, any Obligations and (iv) to pay and



58









 







protect, and indemnify, defend, and hold the Administrative Agent and any such other Person
preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs,
expenses, and other amounts (including reasonable attorney fees) incurred by the Administrative
Agent and any such other Person preparing a Report as the direct or indirect result of any third
parties who might obtain all or part of any Report through the indemnifying Lender.



          The Lenders hereby empower and authorize the Administrative Agent to execute and deliver to
the Loan Parties on their behalf the Collateral Documents and all related agreements, documents or
instruments as shall be necessary or appropriate to effect the purposes of the Collateral
Documents.



          The Lenders hereby empower and authorize the Administrative Agent to execute and deliver to
the Loan Parties on their behalf any agreements, documents or instruments as shall be necessary or
appropriate to effect any releases or subordinations of Collateral which shall be permitted by the
terms hereof or of any other Loan Document or which shall otherwise have been approved by the
Required Lenders or all the Lenders, as the case may be, in writing.



ARTICLE IX

Miscellaneous




     SECTION 9.01. Notices.



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



          (i) if to the Borrower, to it at 28405 Van Dyke, Warren, Michigan 48093, Attention: Mark A.
Redman (Facsimile No. (586) 446-7832; Telephone No. (586) 446-7803), and General Counsel (Facsimile
No. (586) 446-7832; Telephone No. (586) 446-1782), with a copy to Dykema Gossett PLLC, 400 Renaissance
Center, Detroit, Michigan 48243-1668, Attention: Michael Bernard (Telecopy No.: (313) 568-6832;
Telephone No. (313) 568-5374);




          (ii) if to the Administrative Agent, Issuing Bank or Swingline Lender, to JPMorgan Chase Bank,
National Association, Loan and Agency Services, 10 South Dearborn, 7th Floor, Chicago,
Illinois 60603, Mail Code IL1-0010, Attention: Edna Guerra (Telecopy No. (312) 385-7096; Telephone
No. (312) 385-7090) with a copy to JPMorgan Chase Bank, National Association, 10 S. Main St., Ste.
104, Mt. Clemens, Michigan 48043, Attention: Timothy Rettberg (Telecopy No. (586) 468-8120;
Telephone No. (586) 468-1166); and




          (iii) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.



All such notices and other communications (x) sent by hand or overnight courier service, or mailed
by certified or registered mail, shall be deemed to have been given when received or (y) sent by
telecopy shall be deemed to have been given when sent; provided that if not given during
normal business hours for the recipient, shall be deemed to have been given at the opening of
business on the next Business Day for the recipient.




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     (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications (including e-mail and internet or intranet websites) pursuant to
procedures approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the
applicable Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be limited to
particular notices or communications. All such notices and other communications (i) sent to an
e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the
intended recipient (such as by the “return receipt requested” function, as available, return e-mail
or other written acknowledgement); provided that if not given during the normal business
hours of the recipient, such notice or communication shall be deemed to have been given at the
opening of business on the next Business Day for the recipient, and (ii) posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the intended recipient at its
e-mail address as described in the foregoing clause (b)(i) of notification that such notice or
communication is available and identifying the website address therefor.



     (c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto.



     SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and
under any other Loan Document are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of any Loan Document or consent to any
departure by the Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing
Bank may have had notice or knowledge of such Default at the time.



     (b) Except as set forth in this Section 9.02, neither this Agreement nor any other Loan
Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the
case of this Agreement, pursuant to an agreement or agreements in writing entered into by the
Borrower and the Required Lenders or, (ii) in the case of any other Loan Document, pursuant to an
agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or
Loan Parties that are parties thereto; provided that no such agreement shall (i) increase
the Commitment of any Lender without the written consent of such Lender, (ii) reduce or forgive the
principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce
or forgive any interest or fees or other amounts payable hereunder, without the written consent of
each Lender directly affected thereby, (iii) postpone any scheduled date of payment of the
principal amount of any Loan or LC Disbursement (other than any reduction of the amount of, or any
extension of the payment date for, the mandatory prepayments required under Section 2.11, in each
case which shall only require the approval of the Required Lenders), or any date for the payment of
any interest, fees or other Obligations payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any Commitment, without the
written consent of each Lender directly affected thereby, (iv) change Section 2.18(b) or (c) in a
manner that would alter the manner in which payments are shared, without the written consent of
each Lender, (v) change any of the provisions of this Section or the definition of “Required
Lenders”, “Required Revolving Lenders” or any other provision of any Loan



60









 







Document specifying the number or percentage of Lenders (or Lenders of any Class) required to
waive, amend or modify any rights thereunder or make any determination or grant any consent
thereunder, without the written consent of each Lender, (vi) release all or substantially all of
the Guarantors from their obligation under the Subsidiary Guaranty (except as otherwise permitted
herein or in the other Loan Documents), without the written consent of each Lender, or (vii) except
as provided in clause (d) of this Section or in any Collateral Document, release all or
substantially all of the Collateral, without the written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Issuing Bank or the Swingline Lender hereunder without the prior written
consent of the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be.
The Administrative Agent may also amend the Commitment Schedule to reflect assignments
entered into pursuant to Section 9.04 or Section 2.04.



     (c) Notwithstanding Section 9.02(b), (i) this Agreement and any other Loan Document may be
amended with the written consent of the Administrative Agent, the Borrower and the Lenders
providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all
outstanding Tranche B Term Loans or any replacement therefor (“Refinanced Term Loans”) with a
replacement term loan tranche hereunder (“Replacement Term Loans”), and all holders of the
Refinanced Term Loans shall no longer be Lenders of the Refinanced Term Loans hereunder upon the
payment in full of the Refinanced Term Loans and the Obligations relating thereto, (ii) this
Agreement and any other Loan Document may be amended with the written consent of the Required
Lenders, Lenders providing one or more additional credit facilities, the Administrative Agent and
the Borrower (x) to add one or more additional credit facilities to this Agreement and to permit
the extensions of credit from time to time outstanding thereunder and the accrued interest and fees
in respect thereof (collectively, the “Incremental Credits”) to share ratably in the
benefits of this Agreement and the other Loan Documents with the Revolving Loans and Tranche B Term
Loans and other extensions of credit hereunder and the accrued interest and fees in respect
thereof, (y) to include reasonably appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders and (z) to make such other technical amendments as are
reasonably deemed appropriate by the Administrative Agent and the Borrower in connection with the
foregoing, (iii) no condition precedent to obtaining any Revolving Borrowing (including without
limitation by amending or waiving any provision of Article III, V, VI or VII if the effect of such
amendment or waiver would be to waive any such condition or otherwise allow the making of a
Revolving Borrowing when it would not otherwise be permitted) or any other term relating to any
Revolving Borrowing may be waived, amended or modified except with the written consent of the
Required Revolving Lenders, (iv) any waiver, amendment or modification of this Agreement that by
its terms affects the rights or duties under this Agreement of one Class of Lenders (but not of any
other Class of Lenders) may be effected by an agreement or agreements in writing entered into by
the Administrative Agent, the Borrower and the requisite percentage in interest of the affected
Class of Lenders that would be required to consent thereto under this Section if such Class of
Lenders were the only Class of Lenders hereunder at the time and (v) any waiver, amendment or
modification of any commitment letter or fee letter may be effected by an agreement or agreements
in writing entered into only by the parties thereto.



     (d) The Lenders hereby irrevocably authorize the Administrative Agent to, and the
Administrative Agent hereby agrees with the Borrower that it shall (so long as no Event of Default
has occurred and is continuing), release any Liens granted to the Administrative Agent by the Loan
Parties on any Collateral (i) upon the termination of the Commitments, payment and satisfaction in
full in cash of all Secured Obligations (other than Unliquidated Obligations), and the cash
collateralization of all Unliquidated Obligations in a manner satisfactory to the Administrative
Agent, (ii) constituting property being sold or disposed of if the Borrower certifies to the
Administrative Agent that the sale or disposition is made in compliance with the terms of this
Agreement (and the Administrative Agent may rely conclusively on any such certificate, without
further inquiry), (iii) constituting property leased to the Borrower or any Subsidiary under a
lease which has expired or been terminated in a transaction permitted



61









 







under this Agreement, or (iv) as required to effect any sale or other disposition of such
Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders
pursuant to Article VII. Any such release shall not in any manner discharge, affect, or impair the
Obligations or any Liens (other than those expressly being released) upon (or obligations of the
Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of
any sale, all of which shall continue to constitute part of the Collateral and the Administrative
Agent shall not be required to execute any such release on terms which, in the Administrative
Agent’s reasonable opinion, would expose the Administrative Agent to liability or create any
obligation or entail any consequence other than the release of such Liens without recourse or
warranty.



     SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all
reasonable out of pocket expenses incurred by each of the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the Administrative Agent,
in connection with the syndication and distribution (including, without limitation, via the
internet or through a service such as Intralinks) of the credit facilities provided for herein, the
preparation and administration of the Loan Documents or any amendments, modifications or waivers of
the provisions of the Loan Documents (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, the Issuing Bank or any Lender, including the fees, charges and disbursements
of any counsel for the Administrative Agent, the Issuing Bank or any Lender, in connection with the
enforcement, collection or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.



     (b) The Borrower shall indemnify the Administrative Agent, the Issuing Bank and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, penalties, liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of,
in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any
agreement or instrument contemplated thereby, the performance by the parties hereto of their
respective obligations thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit
if the documents presented in connection with such demand do not strictly comply with the terms of
such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on
or from any property owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any
claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, penalties, liabilities or related expenses are determined by a
court of competent jurisdiction by final and non appealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee.



     (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, but without affecting the Borrower’s obligations to make such payments, each Lender
severally agrees to pay to the Administrative Agent, the Issuing Bank or the Swingline Lender, as
the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable
unreimbursed expense



62









 







or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed
expense or indemnified loss, claim, damage, penalty, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent, the Issuing Bank or the Swingline
Lender in its capacity as such.



     (d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.



     (e) All amounts due under this Section shall be payable promptly after written demand
therefor.



     SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Agreement.



     (b)(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld) of:



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




          (B) the Administrative Agent and the Swingline Lender; provided that no consent of the
Administrative Agent or the Swingline Lender shall be required for an assignment of all or any
portion of a Tranche B Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and




          (C) the Issuing Bank; provided that no consent of the Issuing Bank shall be required
for an assignment of all or any portion of a Tranche B Term Loan.




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



          (A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans
of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with respect to such assignment
is delivered to the Administrative Agent) shall not be less than $5,000,000 or, in the case of a
Tranche B Term Loan, $1,000,000 unless each of the Borrower and the Administrative Agent otherwise

63









 








consent; provided that no such consent of the Borrower shall be required if an Event of
Default has occurred and is continuing;




          (B) 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; provided that this clause
shall not be construed to prohibit the assignment of a proportionate part of all the assigning
Lender’s rights and obligations in respect of one Class of Commitments or Loans;




          (C) the parties to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of $3,500; and




          (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire in which the assignee designates one or more credit contacts to whom
all syndicate-level information (which may contain material non-public information about the
Borrower and its affiliates, the Loan Parties and their related parties or their respective
securities) will be made available and who may receive such information in accordance with the
assignee’s compliance procedures and applicable laws, including Federal and state securities laws.




     For the purposes of this Section 9.04(b), the term “Approved Fund” has the following
meaning:



     “Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender
or (c) an entity or an Affiliate of an entity that administers or manages a Lender.



     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.



     (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Commitment of, and
principal amount of the Loans and LC Disbursements owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive,
and the Borrower, the Administrative Agent, the Issuing Bank 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, the Issuing Bank and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.



     (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the



64









 







Administrative Agent shall accept such Assignment and Assumption and record the information
contained therein in the Register; provided that if either the assigning Lender or the
assignee shall have failed to make any payment required to be made by it pursuant to Section
2.05(c), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c), the Administrative Agent shall have no
obligation to accept such Assignment and Assumption and record the information therein in the
Register unless and until such payment shall have been made in full, together with all accrued
interest thereon. No assignment shall be effective for purposes of this Agreement unless it has
been recorded in the Register as provided in this paragraph.



          (c)(i) Any Lender may, without the consent of the Borrower, the Administrative Agent, the
Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities (a
“Participant”) in 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 owing to it);
provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent, the Issuing Bank and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of any provision of
this Agreement; provided that such agreement or instrument may provide that such Lender
will not, without the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant. Subject to
paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though
it were a Lender; provided such Participant agrees to be subject to Section 2.18(c) as though it
were a Lender.



     (ii) A Participant shall not be entitled to receive any greater payment under Section 2.15 or
2.17 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. A Participant shall not be entitled to the benefits
of Section 2.17 unless the Borrower is notified of the participation sold to such Participant and
such Participant agrees to comply with Section 2.17 as though it were a Lender.



     (d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



     SECTION 9.05. Survival. All covenants, agreements, representations and warranties made
by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the execution and delivery of
the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of
any investigation made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the



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Commitments have not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03
and Article VIII shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this Agreement or any provision
hereof.



     SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be executed
in counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement, the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the parties relating to
the subject matter hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.



     SECTION 9.07. Severability. Any provision of any Loan Document held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions thereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.



     SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of the Borrower or any
Guarantor against any of and all the Secured Obligations held by such Lender, irrespective of
whether or not such Lender shall have made any demand under the Loan Documents and although such
obligations may be unmatured. The applicable Lender shall notify the Borrower, the Administrative
Agent of such set-off or application; provided that any failure to give or any delay in
giving such notice shall not affect the validity of any such set-off or application under this
Section. The rights of each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.



     SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) The Loan
Documents (other than those containing a contrary express choice of law provision) shall be
governed by and construed in accordance with the laws of the State of Michigan, but giving effect
to federal laws applicable to national banks.



     (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of any state of federal court in the State of Michigan in any
action or proceeding arising out of or relating to any Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard and determined in
such courts in Michigan. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to



66









 







this Agreement or any other Loan Document against any Loan Party or its properties in the courts of
any jurisdiction.



     (c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.



     (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement or any other Loan Document will
affect the right of any party to this Agreement to serve process in any other manner permitted by
law.



     SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.



     SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.



     SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank and
the Lenders agrees to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its and its Affiliates’ directors, trustees, officers,
employees and agents, including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by Requirement of Law or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in connection with the
exercise of any remedies hereunder 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 (i) any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower, its Subsidiaries and
their obligations, (g) with the prior consent of the Borrower or (h) to the extent such Information
becomes (i) becomes publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential
basis from a source other than the Borrower. For the purposes of this Section,
“Information” means all information received from the Borrower with respect to the Borrower
or any of its Subsidiaries or any of its or their business, other than any such information that is
available to the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by the Borrower; provided that, in the case of information



67









 







received from the Borrower after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied with its obligation to
do so if such Person has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.



     EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12 FURNISHED TO IT PURSUANT
TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS
RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.



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



     SECTION 9.13. Several Obligations; Nonreliance; Violation of Law. The respective
obligations of the Lenders hereunder are several and not joint and the failure of any Lender to
make any Loan or perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. Each Lender hereby represents that it is not relying on or
looking to any margin stock for the repayment of the Borrowings provided for herein. Anything
contained in this Agreement to the contrary notwithstanding, neither the Issuing Bank nor any
Lender shall be obligated to extend credit to the Borrower in violation of any Requirement of Law.



     SECTION 9.14. 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 9.15. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be



68









 







increased (but not above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been
received by such Lender.



     SECTION 9.16. Disclosure. The Borrower and each Lender hereby acknowledges and agrees
that the Administrative Agent and/or its Affiliates from time to time may hold investments in, make
other loans to or have other relationships with any of the Borrower, its Subsidiaries and their
respective Affiliates.



     SECTION 9.17. Appointment for Perfection. Each Lender hereby appoints each other
Lender as its agent for the purpose of perfecting Liens, for the benefit of the Administrative
Agent and the Secured Parties, in assets which, in accordance with Article 9 of the UCC or any
other applicable law can be perfected only by possession. Should any Lender (other than the
Administrative Agent) obtain possession of any such Collateral, such Lender shall notify the
Administrative Agent thereof, and, promptly upon the Administrative Agent’s request therefor shall
deliver such Collateral to the Administrative Agent or otherwise deal with such Collateral in
accordance with the Administrative Agent’s instructions.



[Signature Pages Follow]




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



	 	 	 	 	 
	 	ASSET ACCEPTANCE CAPITAL CORP.

 	 
	 	By  	/s/
Nathaniel F. Bradley IV	 
	 	 	Name:  	Nathaniel F. Bradley IV	 
	 	 	Title:  	President	 



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	 	JPMORGAN CHASE BANK, NATIONAL 

ASSOCIATION as Administrative Agent,

 	 
	 	By  	/s/ Timothy E. Rettberg
 	 
	 	 	Name:  	Timothy E. Rettberg 	 
	 	 	Title:  	Vice President 	 
	 




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	 	CHARTER ONE BANK, N.A.

 	 
	 	By  	/s/ André A. Nazareth
 	 
	 	 	Name:  	André A. Nazareth 	 
	 	 	Title:  	Vice President 	 
	 




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	 	CITIZENS BANK

 	 
	 	By  	/s/ Troy Stevenson
 	 
	 	 	Name:  	Troy Stevenson 	 
	 	 	Title:  	Vice President 	 
	 




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	 	WELLS FARGO FOOTHILL, LLC,

A Delaware limited liability company, as Lender

 	 
	 	By  	/s/ John Reniger
 	 
	 	 	Name:  	John Reniger 	 
	 	 	Title:  	Vice President 	 
	 




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	 	COMERICA BANK

 	 
	 	By  	/s/ Bryndon C. Skelton
 	 
	 	 	Name:  	Bryndon C. Skelton 	 
	 	 	Title:  	Vice President 	 
	 




75









 





	 	 	 	 	 
	 	WELLS FARGO FOOTHILL, LLC,

A Delaware limited liability company, as Lender

 	 
	 	By  	/s/ John Reniger
 	 
	 	 	Name:  	John Reniger 	 
	 	 	Title:  	Vice President 	 
	 




76









 





	 	 	 	 	 
	 	COMERICA BANK

 	 
	 	By  	/s/ Bryndon C. Skelton
 	 
	 	 	Name:  	Bryndon C. Skelton 	 
	 	 	Title:  	Vice President 	 
	 




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	 	FIFTH THIRD BANK,

a Michigan Banking Corporation

 	 
	 	By  	/s/  John Antonczak
 	 
	 	 	Name:  	John Antonczak 	 
	 	 	Title:  	Vice President 	 
	 




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	 	LASALLE BANK MIDWEST N.A.

 	 
	 	By  	/s/ Mark Ossman
 	 
	 	 	Name:  	Mark Ossman 	 
	 	 	Title:  	Vice President 	 
	 




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	 	BANK OF SCOTLAND

 	 
	 	By  	/s/ Karen Weich
 	 
	 	 	Name:  	Karen Weich 	 
	 	 	Title:  	Vice President 	 
	 




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	 	BMO CAPITAL MARKETS FINANCING, INC.

 	 
	 	By  	/s/ Michael Cameli
 	 
	 	 	Name:  	Michael Cameli 	 
	 	 	Title:  	Director 	 
	 




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	 	NATIONAL CITY

 	 
	 	By  	/s/ Michael Kell
 	 
	 	 	Name:  	Michael Kell 	 
	 	 	Title:  	Vice President 	 
	 




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	 	FIRST BANK

 	 
	 	By  	/s/  Keith M. Schmelder
 	 
	 	 	Name:  	Keith M. Schmelder 	 
	 	 	Title:  	Senior Vice President 	 
	 




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	 	ISRAEL DISCOUNT BANK OF NEW YORK

 	 
	 	By  	/s/ Robert J. Fainelli
 	 
	 	 	Name:  	Robert J. Fainelli 	 
	 	 	Title:  	First Vice President 	 
	 
	 	 	 
	 	By  	                                              /s/ James Jordan
 	 
	 	 	Name:  	James Jordan 	 
	 	 	Title:  	First Vice President 	 
	 




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	 	GOLDEN TREE ASSET MANAGEMENT, LP

 	 
	 	By  	/s/ Karen A. Weber
 	 
	 	 	Name:  	Karen A. Weber 	 
	 	 	Title:  	Director -- Bank Debt 	 
	 




85