Exhibit
10.1


 


EXECUTION
VERSION


 


FOURTH AMENDED AND RESTATED

LOAN AND SECURITY AGREEMENT 


 


BANK OF AMERICA, N.A.
 AGENT
FOR

THE LENDERS REFERENCED HEREIN


 


GANDER MOUNTAIN COMPANY


OVERTON’S HOLDING COMPANY 


OVERTON’S ACQUISITION CORP.


OVERTON’S, INC.


CONSUMERS MARINE ELECTRONICS, INC.


OVERTON’S MANAGEMENT COMPANY, LLC
 BORROWERS


 


THE CIT
GROUP/BUSINESS CREDIT, INC.

COLLATERAL AGENT


 


GENERAL
ELECTRIC CAPITAL CORPORATION

DOCUMENTATION AGENT


 


BANC OF AMERICA SECURITIES, LLC
 LEAD
ARRANGER


 


WELLS FARGO FOOTHILL, INC.
 SYNDICATION
AGENT


 


Dated as of
December 6, 2007


 





















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I.

  	
  DEFINITIONS

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
  THE REVOLVING CREDIT AND
  CERTAIN TERMS OF GENERAL APPLICATION

  	
  32

  
	
   

  	
   

  
	
   

  	
  2.1.

  	
  Establishment of Revolving
  Credit

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.2.

  	
  Advances in Excess of
  Borrowing Base (OverAdvances)

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.3.

  	
  Risks of Value of
  Collateral

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.4.

  	
  Commitment to Make
  Revolving Credit Loans and Support Letters of Credit

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.5.

  	
  Revolving Credit Loan
  Requests

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.6.

  	
  Making of Revolving Credit
  Loans

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.7.

  	
  SwingLine Loans

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.8.

  	
  The Loan Account

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.9.

  	
  The Revolving Credit Notes

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.10.

  	
  Payment of The Loan
  Account

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.11.

  	
  Interest on Revolving
  Credit Loans

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.12.

  	
  Upfront Fees

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.13.

  	
  Agent’s Fee

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.14.

  	
  Unused Line Fee

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.15.

  	
  Early Termination Fee

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.16.

  	
  Concerning Fees

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.17.

  	
  Agent’s and Lenders’
  Discretion

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.18.

  	
  Procedures For Issuance of
  L/Cs

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.19.

  	
  Fees For L/Cs

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.20.

  	
  Concerning L/Cs

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.21.

  	
  Changed Circumstances

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.22.

  	
  Lenders’ Commitments

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.23.

  	
  Revolving Credit Funding
  Procedures

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.24.

  	
  SwingLine Loan Procedures

  	
  54

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.25.

  	
  Agent’s Covering of
  Funding

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.26.

  	
  Ordinary Course
  Distributions

  	
  57

  
					



 


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  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  2.27.

  	
  Joint and Several
  Liability of Borrowers

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
  THE TERM LOANS

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1.

  	
  Commitment to lend

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.2.

  	
  The Term Notes

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.3.

  	
  Payments of Principal of
  Term Loans

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.4.

  	
  Term Loan A Early
  Termination Fee

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.5.

  	
  Interest on Term Loan

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.6.

  	
  Payments on Account of
  Term Loan

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  	
  CONDITIONS PRECEDENT

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.

  	
  Corporate Due Diligence

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2.

  	
  Opinions

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3.

  	
  Loan Documents and
  Additional Documents

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.4.

  	
  Officers’ Certificates

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.5.

  	
  Representations and
  Warranties

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.6.

  	
  Minimum Day One
  Availability

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.7.

  	
  Capital Structure

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.8.

  	
  All Fees and Expenses Paid

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.9.

  	
  Borrower Not In Default

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.10.

  	
  No Adverse Change

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.11.

  	
  Perfection Certificate and
  Lien Search Results

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.12.

  	
  Certificates of Insurance

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.13.

  	
  Blocked Account Agreements
  and Notifications

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.14.

  	
  Notifications to Credit
  Card Clearing Houses and Processors

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.15.

  	
  Borrowing Base Certificate

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.16.

  	
  Acquisition Agreement

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.17.

  	
  Equity Documents

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.18.

  	
  Benefit of Conditions
  Precedent

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
  GENERAL REPRESENTATIONS,
  COVENANTS AND WARRANTIES

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1.

  	
  Payment and Performance of
  Liabilities

  	
  69

  
					



 


ii





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.2.

  	
  Due Organization,
  Authorization, No Conflicts

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.3.

  	
  Trade Names

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.4.

  	
  Infrastructure

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.5.

  	
  Locations

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.6.

  	
  Title to Assets

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.7.

  	
  Indebtedness

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.8.

  	
  Insurance

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.9.

  	
  Licenses

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.10.

  	
  Leases

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.11.

  	
  Requirements of Law

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.12.

  	
  Labor Relations

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.13.

  	
  Maintain Properties

  	
  76

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.14.

  	
  Taxes

  	
  76

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.15.

  	
  No Margin Stock

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.16.

  	
  ERISA

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.17.

  	
  Hazardous Materials

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.18.

  	
  Litigation

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.19.

  	
  Business Plan

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.20.

  	
  Dividends

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.21.

  	
  Loans

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.22.

  	
  Protection of Assets

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.23.

  	
  Line of Business

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.24.

  	
  Affiliate Transactions

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.25.

  	
  Collateral

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.26.

  	
  Adequacy of Disclosure

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.27.

  	
  No Restrictions on
  Liabilities

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.28.

  	
  Other Covenants

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.29.

  	
  Additional Subsidiaries

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.30.

  	
  Further Assurances

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.31.

  	
  Representations and
  Warranties Related to the Acquisition

  	
  82

  
					



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.32.

  	
  Post Closing Covenants

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
  FINANCIAL REPORTING AND
  PERFORMANCE COVENANTS

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.1.

  	
  Maintain Records

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.2.

  	
  Access to Records

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.3.

  	
  Notice to Agent

  	
  85

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.4.

  	
  Borrowing Base Certificate

  	
  86

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.5.

  	
  Monthly Reports

  	
  86

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.6.

  	
  Quarterly Reports

  	
  86

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.7.

  	
  Annual Reports

  	
  86

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.8.

  	
  Officers’ Certificates

  	
  87

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.9.

  	
  Inventories, Appraisals,
  and Audits

  	
  87

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.10.

  	
  Additional Financial
  Information

  	
  88

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.11.

  	
  Minimum Availability

  	
  89

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.12.

  	
  Capital Expenditures

  	
  89

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
  USE OF COLLATERAL

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.1.

  	
  Use of Inventory
  Collateral

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.2.

  	
  Inventory Quality

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.3.

  	
  Adjustments and Allowances

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.4.

  	
  Validity of Accounts

  	
  90

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.5.

  	
  Notification to Account
  Debtors

  	
  91

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
  CASH MANAGEMENT

  	
  91

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.1.

  	
  Depository Accounts

  	
  91

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.2.

  	
  Credit Card Receipts

  	
  92

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.3.

  	
  Cash Management

  	
  92

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.4.

  	
  Proceeds and Collections

  	
  93

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.5.

  	
  Payment of Liabilities

  	
  93

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.6.

  	
  The Operating Account

  	
  94

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
  GRANT OF SECURITY INTEREST

  	
  94

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.1.

  	
  Grant of Security Interest

  	
  94

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.2.

  	
  Extent and Duration of
  Security Interest

  	
  95

  
						



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.3.

  	
  Authorization to File
  Financing Statements

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.4.

  	
  Further Assurances

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
  AGENT AS BORROWERS’
  ATTORNEY-IN-FACT

  	
  96

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.1.

  	
  Appointment as
  Attorney-In-Fact

  	
  96

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.2.

  	
  No Obligation to Act

  	
  97

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI.

  	
  EVENTS OF DEFAULT

  	
  97

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.1.

  	
  Failure to Pay the
  Revolving Credit or the Term Loans

  	
  97

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.2.

  	
  Failure To Make Other
  Payments

  	
  97

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.3.

  	
  Failure to Perform
  Covenant or Liability (No Grace Period)

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.4.

  	
  Failure to Perform
  Covenant or Liability (Grace Period)

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.5.

  	
  Misrepresentation

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.6.

  	
  Acceleration of Other Debt

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.7.

  	
  Default Under Other
  Agreements

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.8.

  	
  Uninsured Casualty Loss

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.9.

  	
  Attachment

  	
  99

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.10.

  	
  Business Failure

  	
  99

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.11.

  	
  Bankruptcy

  	
  99

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.12.

  	
  Indictment -
  Forfeiture

  	
  100

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.13.

  	
  Challenge to Loan
  Documents

  	
  100

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.14.

  	
  Change in Control

  	
  100

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII.

  	
  RIGHTS AND REMEDIES UPON
  DEFAULT

  	
  100

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.1.

  	
  Acceleration

  	
  100

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.2.

  	
  Rights of Enforcement

  	
  100

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.3.

  	
  Sale of Collateral

  	
  101

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.4.

  	
  Occupation of Business
  Location

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.5.

  	
  Grant of Nonexclusive
  License

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.6.

  	
  Assembly of Collateral

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.7.

  	
  Rights and Remedies

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII.

  	
  ACCELERATION AND
  LIQUIDATION

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.1.

  	
  Acceleration Notices

  	
  103

  
					



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.2.

  	
  Acceleration

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.3.

  	
  Initiation of Liquidation

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.4.

  	
  Actions At and Following
  Initiation of Liquidation

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.5.

  	
  Agent’s Conduct of
  Liquidation

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.6.

  	
  Distribution of
  Liquidation Proceeds

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.7.

  	
  Relative Priorities To
  Proceeds of Liquidation

  	
  105

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV.

  	
  THE AGENT

  	
  107

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.1.

  	
  Appointment of The Agent

  	
  107

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.2.

  	
  Responsibilities of Agent

  	
  108

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.3.

  	
  Concerning Distributions
  By the Agent

  	
  110

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.4.

  	
  Dispute Resolution

  	
  110

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.5.

  	
  Distributions of Notices
  and of Documents

  	
  110

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.6.

  	
  Confidential Information

  	
  111

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.7.

  	
  Reliance by Agent

  	
  111

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.8.

  	
  Non-Reliance on Agent and
  Other Lenders

  	
  112

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.9.

  	
  Indemnification

  	
  112

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.10.

  	
  Resignation of Agent

  	
  113

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.11.

  	
  Delegation of Duties

  	
  114

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.12.

  	
  Agent May File Proofs of
  Claim

  	
  114

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.13.

  	
  Collateral Matters

  	
  115

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XV.

  	
  ACTION BY AGENTS -
  CONSENTS - AMENDMENTS - WAIVERS

  	
  115

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.1.

  	
  Administration of Credit
  Facilities

  	
  115

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.2.

  	
  Actions Requiring or On
  Direction of Majority Lenders

  	
  116

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.3.

  	
  Actions Requiring or On
  Direction of SuperMajority Lenders

  	
  116

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.4.

  	
  Action Requiring Certain
  Consent

  	
  117

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.5.

  	
  Actions Requiring or
  Directed By Unanimous Consent

  	
  118

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.6.

  	
  Actions Requiring
  SwingLine Lender Consent

  	
  119

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.7.

  	
  Actions Requiring Agent’s
  Consent

  	
  120

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.8.

  	
  Miscellaneous Actions

  	
  120

  
					



 


vi





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.9.

  	
  Actions Requiring
  Borrowers’ Consent

  	
  120

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.10.

  	
  NonConsenting Lender

  	
  121

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XVI.

  	
  SUCCESSORS AND ASSIGNS

  	
  122

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.1.

  	
  Assignments and
  Assumptions

  	
  122

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.2.

  	
  Effect of Assignment

  	
  123

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.3.

  	
  Participations

  	
  124

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.4.

  	
  Limitations upon
  Participant Rights

  	
  124

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.5.

  	
  Certain Pledges

  	
  124

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.6.

  	
  Electronic Execution of
  Assignments

  	
  125

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.7.

  	
  Special Purpose Funding
  Vehicles

  	
  125

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.8.

  	
  Resignation After
  Assignment

  	
  126

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.9.

  	
  Accession

  	
  126

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.10.

  	
  Optional Increase of
  Maximum Revolving Credit Ceiling

  	
  127

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XVII.

  	
  NOTICES

  	
  127

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.1.

  	
  Notice Addresses

  	
  127

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.2.

  	
  Notice Given

  	
  128

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.3.

  	
  Wire Instructions Notice
  Given

  	
  128

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XVIII.

  	
  TERM

  	
  129

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.1.

  	
  Termination of Revolving
  Credit and Term Loan

  	
  129

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.2.

  	
  Actions On Termination

  	
  130

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIX.

  	
  GENERAL

  	
  130

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.1.

  	
  Protection of Collateral

  	
  130

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.2.

  	
  Publicity

  	
  130

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.3.

  	
  Severability

  	
  131

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.4.

  	
  The Platform

  	
  131

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.5.

  	
  Amendments

  	
  131

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.6.

  	
  Power of Attorney

  	
  132

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.7.

  	
  Application of Proceeds

  	
  132

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.8.

  	
  Increased Costs

  	
  133

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.9.

  	
  Expenses; Indemnity;
  Damage Waiver

  	
  133

  
					



 


vii





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.10.

  	
  Copies and Facsimiles

  	
  135

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.11.

  	
  Massachusetts Law

  	
  135

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.12.

  	
  Consent to Jurisdiction

  	
  135

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.13.

  	
  Confidentiality

  	
  136

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.14.

  	
  Survival of
  Representations and Warranties

  	
  137

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.15.

  	
  Rules of Construction

  	
  137

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.16.

  	
  Intent

  	
  138

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.17.

  	
  Right of Set-Off

  	
  139

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.18.

  	
  Maximum Interest Rate

  	
  139

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.19.

  	
  Waivers

  	
  139

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.20.

  	
  US Patriot Act Notice

  	
  140

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.21.

  	
  Transitional Arrangements

  	
  140

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.22.

  	
  Lead Borrower

  	
  141

  
					



 


viii





















 


EXHIBITS AND SCHEDULES


 


	
  Exhibits

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  :

  	
  SwingLine
  Note

  
	
  Exhibit B

  	
  :

  	
  Revolving
  Credit Note

  
	
  Exhibit C

  	
  :

  	
  Borrowing
  Base Certificate

  
	
  Exhibit D

  	
  :

  	
  Assignment
  and Assumption

  
	
  Exhibit E

  	
  :

  	
  Customs
  Agent Agreement

  
	
  Exhibit F

  	
  :

  	
  Instrument
  of Accession

  
	
  Exhibit G-1

  	
  :

  	
  Term Note A

  
	
  Exhibit G-2

  	
  :

  	
  Term Note B

  
	
  Exhibit H

  	
  :

  	
  Form of Loan
  Request

  
	
   

  	
   

  	
   

  
	
  Schedules

  
	
   

  	
   

  	
   

  
	
  2.22

  	
  :

  	
  Revolving
  Credit Lenders’ and Term Loan Lenders’ Commitments

  
	
  6.5

  	
  :

  	
  Required
  Reporting Checklist

  
	
  16.1

  	
  :

  	
  Processing
  and Recordation Fees

  



 





















 


FOURTH AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT


 


Bank  of  America, N.A., as
Agent


 


Dated as of December 6, 2007


 


THIS AGREEMENT is
made among (a) Bank of America, N.A., a national banking association with offices
at 100 Federal Street, Boston, Massachusetts 
02110, as agent (in such capacity, herein the “Agent”)
for the ratable benefit of the lenders from time to time party hereto
(collectively, the “Lenders” and
individually, a “Lender”); (b) the Lenders; (c) Gander
Mountain Company (“Gander”), a
Minnesota corporation with its principal executive offices at 180 East Fifth
Street, Suite 1300, St. Paul, Minnesota 
55101; (d) Overton’s Holding Company (“Holdings”),
a Delaware corporation having its principal executive office at 180 East Fifth
Street, Suite 1300, St. Paul, Minnesota 
55101; (e) Overton’s Acquisition Corp. (“OAC”),
a Delaware corporation having its principal executive office at 111 Red Banks
Road, Greenville, North Carolina  27835;
(f) Overton’s, Inc. (“Overton”), a
North Carolina corporation with its principal executive offices at 111 Red
Banks Road, Greenville, North Carolina 
27835; (g) Consumers Marine Electronics, Inc. (“CME”),
a New Jersey corporation with its principal executive offices at 1758 Highway
34 North, Farmingdale (Wall), New Jersey 07719; and (h) Overton’s Management
Company, LLC (“OMC”), a Delaware limited
liability company with its principal offices at 111 Red Banks Road, Greenville,
North Carolina  27835 (Holdings, OAC,
Overton, CME and OMC are collectively referred to hereinafter as the “Overton’s Borrowers”; Gander and the Overton’s Borrowers are
referred to hereinafter each individually as a “Borrower”,
and individually and collectively, jointly and severally, as the “Borrowers”) in consideration of the mutual covenants
contained herein and benefits to be derived herefrom:


 


WHEREAS,
pursuant to that certain Third Amended and Restated Loan and Security Agreement
dated as of August 15, 2007, among Bank of America, N.A., certain Lenders and
Gander, as borrower, as amended and in effect immediately prior to the
effectiveness of this Agreement (the “Existing
Loan Agreement”), certain Lenders named therein have made loans to
Gander for the purposes described therein; 


 


WHEREAS,
Gander has requested that the Lenders and the Agent amend and restate the
Existing Loan Agreement in its entirety, in order to, among other things:


 


(a)           add
a second Term Loan facility (“Term Loan B”)
to finance in part the acquisition of 100% of the capital stock of Holdings by
Gander (the “Acquisition”) and expenses related
thereto;


 


(b)           convert
the Existing Loans and the Existing Letters of Credit under the Existing Loan
Agreement into Loans and L/Cs hereunder; 


 


(c)           join
the Overton’s Borrowers as Borrowers under this Agreement on a joint and
several basis; and


 





















 


(d)           make
certain other changes to the terms and provisions of the Existing Loan
Agreement; and


 


WHEREAS, subject to the satisfaction of the
conditions set forth in Article IV, the Lenders hereby consent to the
Acquisition and confirm that the Acquisition does not fall within the
definition of “Permitted Acquisition” hereunder;


 


NOW THEREFORE,
the Borrowers, the Lenders and the Agent hereby agree that, subject to Section
19.21 hereof, the Existing Loan Agreement (including all the schedules and
exhibits thereto) is hereby amended and restated in its entirety as set forth
herein:


 


WITNESSETH:


 


ARTICLE I.                   DEFINITIONS


 


As used herein, the following terms have the
following meanings or are defined in the section of this Agreement so
indicated:


 


“Acceding
Lender”:  Is defined in Section 16.9.


 


“Acceleration”:  The
making of demand or declaration that any indebtedness, not otherwise due and
payable,  is due and payable. Derivations
of the word “Acceleration” (such as “Accelerate”) are used with like meaning in
this Agreement.


 


“Acceleration Notice”:  Written
notice as follows:


 


(a)           From the Agent to the Lenders, as
provided in Section 13.1(a).


 


(b)           From the SuperMajority Lenders to the
Agent, as provided in Section 13.1(b).


 


(c)           From the SuperMajority Term Loan A
Lenders to the Agent, as provided for in Section 13.1(c).


 


(d)           From the SuperMajority Term Loan B
Lenders to the Agent, as provided for in Section 13.1(d).


 


“Account Debtor”:  Has
the meaning given that term in the UCC.


 


“Accounts” and “Accounts Receivable”: 
Include, without limitation, “accounts” as defined in the UCC, and also
all: accounts, accounts receivable, receivables, and rights to payment (whether
or not earned by performance) for: property that has been or is to be sold,
leased, licensed, assigned, or otherwise disposed of; services rendered or to
be rendered; a policy of insurance issued or to be issued; a secondary
obligation incurred or to be incurred; energy provided or to be provided; for the
use or hire of a vessel; arising out of the use of a credit or charge card or
information contained on or used with that card; winnings in a lottery or other
game of chance.


 


“ACH”:  Automated
clearing house.


 


2





















 


“Acquisition”:  Is
defined in the Preamble.


 


“Acquisition Agreement”:  Is that certain Securities Purchase
Agreement, dated as of December 6, 2007, by and among Gander, as buyer, the
Sellers, Lincap V Management Company, an Ohio corporation, as Sellers’
representative and Holdings with respect to the Acquisition.


 


“Adjustment Date”:
February 1, May 1, August 1 and November 1 of each calendar year.


 


“Administrative
Questionnaire”:  An Administrative Questionnaire in a form
supplied by the Agent.


 


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


 


“Agent”:  Is
defined in the Preamble.


 


“Agent’s Cover”:  Is
defined in Section 2.25(c)(i).


 


“Agent’s Fee”:  Is
defined in Section 2.13.


 


“Agent’s Fee Letter”:  The Second
Amended and Restated Agent’s Fee Letter, dated on or about the date of this
Agreement between the Borrowers and the Agent.


 


“Agent’s  Rights and Remedies”:  Is defined in Section 12.7.


 


“Aggregate
Loan Commitment”:  As of the
date of determination thereof, the sum of (a) the aggregate Revolving Credit
Dollar Commitment of all Lenders at such date and (b) the aggregate outstanding
principal amount of the Term Loan at such date, after giving effect to any
prepayments or repayments of the Term Loan occurring on such date.


 


“Agreement”:  This Fourth Amended and Restated Loan and
Security Agreement, as further amended, restated, modified and in effect from
time to time.


 


“Applicable Law”:  As
to any Person:  (i) All statutes, rules,
regulations, orders, or other requirements having the force of law and (ii) all
court orders and injunctions, arbitrator’s decisions, and/or similar rulings,
in each instance ((i) and (ii)) of or by any federal, state, municipal, and
other governmental authority, or court, tribunal, panel, or other body which
has or claims jurisdiction over such Person, or any property of such Person, or
of any other Person for whose conduct such Person would be responsible.


 


“Applicable
Margin”:   With respect to Revolving Credit
Loans, for the period from the Restatement Effective Date to the first
Adjustment Date thereafter, the Applicable Margin shall


 


3





















 


be the applicable margin corresponding to
Level II(1) in the first table below, and thereafter, at any time prior to
January 31, 2009, for each period commencing on an Adjustment Date through the
date immediately preceding the next Adjustment Date (each a “Rate Adjustment Period”), the Applicable
Margin shall be the applicable margin per annum set forth in the first table
below opposite to the Borrowers’ applicable EBITDA as determined for the
applicable period consisting of the twelve (12) consecutive months ending on or
about the calendar quarter ending immediately prior to the applicable Rate
Adjustment Period pertaining to such Adjustment Date:


 


	
  LEVEL

  	
   

  	
  EBITDA

  	
   

  	
  LIBOR RATE

  APPLICABLE

  MARGIN

  	
   

  	
  BASE RATE

  APPLICABLE

  MARGIN

  	
   

  
	
  I

  	
   

  	
  Greater than
  $70,000,000

  	
   

  	
  1.25

  	
  %

  	
  0.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II

  	
   

  	
  Greater than
  $50,000,000 and less than or equal to $70,000,000

  	
   

  	
  1.50

  	
  %

  	
  0.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III

  	
   

  	
  Less than or
  equal to $50,000,000

  	
   

  	
  1.75

  	
  %

  	
  0.00

  	
  %

  



 


Commencing with the Adjustment Date on
February 1, 2009, during each Rate Adjustment Period, the Applicable Margin for
Revolving Credit Loans shall be the applicable margin per annum set forth in
the table immediately below opposite to the Borrowers’ applicable EBITDA as
determined for the applicable period consisting of the twelve (12) consecutive
months ending on or about the calendar quarter ending immediately prior to the
applicable Rate Adjustment Period pertaining to such Adjustment Date:


 


	
  LEVEL

  	
   

  	
  EBITDA

  	
   

  	
  LIBOR
  RATE APPLICABLE MARGIN

  	
   

  	
  BASE
  RATE APPLICABLE MARGIN

  	
   

  
	
  I

  	
   

  	
  Greater than $80,000,000

  	
   

  	
  1.25

  	
  %

  	
  0.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II

  	
   

  	
  Greater than $60,000,000 and less than or equal to $80,000,000

  	
   

  	
  1.50

  	
  %

  	
  0.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III

  	
   

  	
  Less than or equal to $60,000,000

  	
   

  	
  1.75

  	
  %

  	
  0.00

  	
  %

  



 


With respect to Term Loan B, the Applicable
Margin shall be the applicable margin per annum set forth in the table below
opposite to the Borrowers’ applicable outstanding balance for Term Loan B:


 






(1) Applicable Margin for Revolving Credit Loans
under the Existing Agreement is Level II.


 


4

















 


	
  LEVEL

  	
   

  	
  TERM LOAN B PRINCIPAL

  BALANCE

  	
   

  	
  LIBOR RATE

  APPLICABLE

  MARGIN FOR

  TERM LOAN B

  	
   

  	
  BASE RATE

  APPLICABLE

  MARGIN FOR

  TERM LOAN B

  	
   

  
	
  I

  	
   

  	
  Less than or equal to $25,000,000

  	
   

  	
  3.375

  	
  %

  	
  2.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II

  	
   

  	
  Greater than $25,000,000 and less than or equal to $35,000,000

  	
   

  	
  3.625

  	
  %

  	
  2.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III

  	
   

  	
  Greater than $35,000,000

  	
   

  	
  3.875

  	
  %

  	
  2.00

  	
  %

  



 


Any delay by the Borrowers in delivering the
financial statements and reports required to be delivered by the Borrowers
pursuant to Section 6.5 shall, at the Agent’s option, result in the Applicable
Margin being set, in each case, at the amount set forth opposite Level III in
the first two tables above or such other Level as determined by the Agent until
the next Adjustment Date.


 


“Appraised Inventory
Liquidation Value”:  The product of (a) the Cost of
Eligible Inventory (net of Inventory Reserves) multiplied
by (b) that percentage, determined from the then most recent appraisal of the
Inventory of the Borrowers undertaken at the request of the Agent, to reflect
the appraiser’s estimate of the net recovery on the Inventory of the Borrowers
in the event of an in-store liquidation of that Inventory.


 


“Appraised Inventory
Percentage”:  For the period commencing on April 1 of each
calendar year and ending on August 31 of each calendar year, Eighty-Seven and
One-Half of One Percent (87.5%) and, at any other time during any calendar
year, Eighty-Five Percent (85%).


 


“Approved Customs Broker”:  A customs broker
satisfactory to the Agent which has entered into a Customs Agent Agreement with
the Agent and a Borrower.


 


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


 


“Assignee Group”:  Two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by the same
investment advisor.


 


“Assignee Lender”:  Is defined in Section 16.1(a).


 


“Assigning Lender”:  Is
defined in Section 16.1(b).


 


“Assignment and Assumption”:  Is
defined in Section 16.1.


 


“Auto-Extension Letter of
Credit”:  Is defined in Section 2.18(d).


 


5

















 


“Availability”:  The
lesser of (a) or (b), where:


 


(a)           is the result of


 


(i)            The Maximum Revolving Credit Ceiling


 


Minus


 


(ii)           The aggregate unpaid balance of the
Loan Account (other than the outstanding principal balance of Term Loan A and
Term Loan B)


 


Minus


 


(iii)          The aggregate undrawn Stated Amount of
all then outstanding L/Cs.


 


(b)           is the result of


 


(i)            The Borrowing Base


 


Minus


 


(ii)           The aggregate unpaid balance of the
Loan Account (other than the outstanding principal balance of Term Loan A and
Term Loan B)


 


Minus


 


(iii)          The aggregate undrawn Stated Amount of
all then outstanding L/Cs.


 


Minus


 


(iv)          The aggregate of the Availability
Reserves.


 


“Availability Reserves”:  Such
reserves as the Agent from time to time determines in the Agent’s discretion as
being appropriate to reflect the impediments to the Agent’s ability to realize
upon the Collateral.  Without limiting
the generality of the foregoing, Availability Reserves may include (but are not
limited to) reserves based on the following:


 


(i)            Rent for up to three (3) months for
any store located in Pennsylvania, Virginia or Washington (but only if a
landlord’s waiver, acceptable to the Agent, has not been received by the
Agent).


 


(ii)           Customer Credit Liabilities.


 


(iii)          Taxes and other governmental charges,
including, ad valorem, personal property, and other taxes which might have priority
over the Collateral Interests of the Agent in the Collateral.


 


(iv)          L/C Landing Costs.


 


6

















 


“BAL Loan”:  The Loan made under the terms of the BAL Loan
Agreement.


 


“BAL Loan Agreement”:  That certain Master Loan and Security
Agreement, dated as of June 21, 2007 by and among Gander and Banc of America
Leasing & Capital, LLC.


 


“Bank of America”:  Bank of
America, N.A., and its successors.


 


“Bankruptcy Code”:  Title
11, U.S.C., as amended from time to time.


 


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


 


“Base Margin Loan”:  Each
Revolving Credit Loan or relevant portion of the Term Loan while bearing
interest determined by reference to Base.


 


“Base Margin Rate”:  The
aggregate of Base plus the Base Rate Applicable
Margin per annum.


 


“Base Rate Applicable
Margin”.  See definition of Applicable Margin.


 


“Blocked Account”:  Any
DDA into which the contents of any other DDA is transferred.


 


“Blocked Account Agreement”:  An
Agreement, in form satisfactory to the Agent, which Agreement recognizes the
Agent’s Collateral Interest in the contents of the DDA which is the subject of
such Agreement and agrees that such contents shall be transferred only to the
Concentration Account or as otherwise instructed by the Agent.


 


“Borrower” and “Borrowers”:  Is defined in the Preamble.


 


“Borrower Materials”:  Is
defined in Section 6.1.


 


“Borrowing Base”:  The
aggregate of the following:


 


(a)           The face amount of Eligible Credit
Card Receivables multiplied by the Credit Card
Advance Rate.


 


Plus


 


(b)           The Appraised Inventory Percentage of
the Appraised Inventory Liquidation Value.


 


Minus


 


7

















 


(c)           The Term Loan A to
Value Reserve.


 


Minus (at any time after the Term Loan B
Guaranties have been released or otherwise terminated and so long as Term Loan
B is outstanding)


 


(d)           The Term Loan B to
Value Reserve.


 


“Borrowing Base Certificate”:  Is
defined in Section 6.4.


 


“Business Day”:  Any
day other than (a) a Saturday or Sunday; or (b) any day on which commercial
banks in Boston, Massachusetts or in Minneapolis, Minnesota, are authorized to
close under law, or are in fact closed.


 


“Business Plan”:  The
Borrowers’ business plan delivered pursuant to Section 5.19, and any revision,
amendment, or update of such business plan to which the Agent has provided its
written sign-off.


 


“Capital Expenditures”:  The
expenditure of funds or the incurrence of liabilities which may be capitalized
in accordance with GAAP.


 


“Capital Lease”:  Any
lease which may be capitalized in accordance with GAAP.


 


“Change in Control”:  The
occurrence of any of the following:


 


(a)           Any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan) other than members of the
Erickson Family, the Holiday Companies, Affiliates of the Holiday Companies or
the Pratt Parties becomes the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, except that a person or group
shall be deemed to have “beneficial ownership” of all securities that such
person or group has the right to acquire (such right, an “option right”),
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of Forty Percent (40%) or more of the equity
securities of Gander entitled to vote for members of the board of directors or
equivalent governing body of Gander on a fully-diluted basis (and taking into
account all such securities that such person or group has the right to acquire
pursuant to any option right).


 


(b)           During any period of twelve (12)
consecutive months, a majority of the members of the board of directors or
other equivalent governing body of Gander ceases to be composed of individuals
(i) who were members of that board or equivalent governing body on the first
day of such period, (ii) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in clause (i)
above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose election or
nomination to that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that board or equivalent
governing body (excluding, in the case of both clause


 


8

















 


(ii) and clause (iii), any individual whose initial nomination for, or
assumption of office as, a member of that board or equivalent governing body
occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by or on
behalf of the board of directors).


 


(c)           (1) Gander ceases at any time to be
the 100% shareholder of Holdings; (2) Holdings ceases at any time to be the
100% shareholder of OAC; (3) OAC ceases at any time to be the 100% shareholder
in Overton or (4) Overton ceases at any time to be the (a) 100% shareholder in
CME or (b) sole member of OMC, in each case except pursuant to transactions
permitted under Section 5.20(d).


 


“Chattel Paper”:  Has
the meaning given that term in the UCC.


 


“Closing
Certificate”:  The Closing
Certificate delivered by the Borrowers pursuant to Section 4.3, dated the
Restatement Effective Date, and in form and substance acceptable to the Agent.


 


“Code”:  Internal
Revenue Code of 1986.


 


“Collateral”:  Is
defined in Section 9.1.


 


“Collateral Interest”:  Any
interest in property to secure an obligation, including, without limitation, a
security interest, mortgage, and deed of trust.


 


“Concentration Account”:  Is
defined in Section 8.3.


 


“Consent”:  Actual
consent given by the Lender from whom such consent is sought.


 


“Control”:  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.


 


“Copyright Security
Agreement”: The Copyright Collateral Assignment and Security and
Agreement, dated on or about the date of this Agreement between Overton and the
Agent, for the benefit of the Lenders, such Copyright Security Agreement to be
on terms and conditions acceptable to the Agent, as further amended, restated,
modified or supplemented and in effect from time to time.


 


“Cost”:  The
calculated cost of purchases, based upon a Borrower’s accounting practices,
known to the Agent, which practices are in effect on the date on which this
Agreement was executed as such calculated cost is determined from: invoices
received by such Borrower; such Borrower’s purchase journal; or such Borrower’s
stock ledger.


 


“Costs of Collection”:  Includes,
without limitation, all attorneys’ reasonable fees and reasonable out-of-pocket
expenses incurred by the Agent’s attorneys, and all reasonable


 


9

















 


out-of-pocket costs incurred by the Agent in
the administration of the Liabilities and/or the Loan Documents, including,
without limitation, reasonable costs and expenses associated with travel on
behalf of the Agent, where such costs and expenses are directly or indirectly
related to or in respect of the Agent’s: administration and management of the
Liabilities; negotiation, documentation, and amendment of any Loan Document; or
efforts to preserve, protect, collect, or enforce the Collateral, the
Liabilities, and/or the Agent’s Rights and Remedies and/or any of the rights
and remedies of the Agent against or in respect of any guarantor or other
person liable in respect of the Liabilities (whether or not suit is instituted
in connection with such efforts).  “Costs
of Collection” also includes the reasonable fees and expenses of the Lenders’
Special Counsel and reasonable consulting, accounting, appraisal, investment
banking and similar professional fees and charges.  The Costs of Collection are Liabilities, and
at the Agent’s option may bear interest at the then effective Base Margin Rate.


 


“Credit Card Advance Rate”:  Ninety-Two
and One-Half of One Percent (92.5%).


 


“Customer Credit Liability”:  Gift
certificates, customer deposits, offsets, merchandise credits, layaway
obligations, frequent shopping programs, and similar liabilities of a Borrower
to its retail customers and prospective customers.


 


“Customs Agent Agreement”:  A
Customs Agent Agreement, substantially in the form of EXHIBIT E
hereto, entered into among the Agent, a Borrower, and an Approved Customs
Broker.


 


“DDA”:  Any
checking or other demand daily depository account maintained by a Borrower.


 


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


 


“Delinquent Revolving
Credit Lender”:   Is defined in Section 2.25(c).


 


“Deposit Account Control
Agreement”:  Is defined in
Section 8.1(c).


 


“Documents”:  Has
the meaning given that term in the UCC.


 


“Documents of Title”:  Has
the meaning given that term in the UCC.


 


“Drawdown Date”:  As
applicable, the date on which (a) the Restatement Effective Date occurs and the
Term Loan is made, (b) any Revolving Credit Loan is made or is to be made or
(c) any Revolving Credit Loan is converted or continued in accordance with
Section 2.5 or all or any portion of the Term Loan is converted or continued in
accordance with Section 3.5.


 


“EBITDA”: With respect to any fiscal period,
an amount equal to the sum of (a) Net Income of the Borrowers for such fiscal
period, plus (b) in each case to the extent
deducted in the


 


10

















 


calculation of Net Income and without
duplication, (i) depreciation and amortization for such fiscal period, plus (ii) income tax expense for such fiscal period, plus (iii) Interest Expense paid or accrued during such
fiscal period, plus (iv) other noncash charges
for such fiscal period (excluding LIFO reserves), all as determined in
accordance with GAAP, after eliminating therefrom all extraordinary
nonrecurring items of income or expense, in each case determined on a
consolidated basis.


 


“Eligible Assignee”:  Any of (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a natural
person) approved by (i) the Agent, the Issuer and the SwingLine Lender, and
(ii) unless an Event of Default has occurred and is continuing, a Borrower
(each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, “Eligible Assignee” shall not include any Borrower or any of the
Borrowers’ Affiliates or Subsidiaries.


 


“Eligible Credit Card
Receivables”:  Under Four (4) Business Day accounts due to
the Borrowers on a non-recourse basis from major credit card processors.


 


“Eligible In-Transit
Inventory”:  Inventory (without duplication as to Eligible
Inventory), title to which has passed to any Borrower and which has then been
shipped or is scheduled to be shipped for receipt, within Sixty (60) days, at a
warehouse of such Borrower located in a jurisdiction in the United States in
which the Agent will have a first and only perfected security interest in such
Inventory, provided that:


 


(a)           Such Inventory is of such types,
character, qualities and quantities (net of Inventory Reserves) as the Agent in
its discretion from time to time determines to be eligible for borrowing;


 


(b)           The documents which relate to such
shipment either name the Agent as consignee of the subject Inventory or the
Agent has control over the documents which evidence ownership of the subject
Inventory (such as by providing to the Agent a Customs Agent Agreement); and


 


(c)           The Agent is named as loss payee on
any special policies of insurance taken out by any Borrower for the period
during which such Inventory is in transit.


 


“Eligible Inventory”:  All
of the following: (a) Such of the Inventory of any Borrower (not duplicative of
Eligible In-Transit Inventory or Eligible L/C Inventory) at such locations, and
of such types, character, qualities and quantities, as the Agent in its
discretion from time to time determines to be acceptable for borrowing, as to
which Inventory, the Agent has a perfected security interest which is prior and
superior to all security interests, claims, and Encumbrances (other than
Permitted Encumbrances), (b) Eligible In-Transit Inventory, and (c) Eligible
L/C Inventory.


 


“Eligible L/C Inventory”:  Inventory
(without duplication as to Eligible Inventory), which is to be manufactured or
has then been shipped or is scheduled to be shipped for receipt, within Sixty
(60) days, at a warehouse of any Borrower located in a jurisdiction in the
United States in which the Agent will have a first and only perfected security
interest in such Inventory and payment for the underlying Inventory is to be
made by an L/C, provided that:


 


11

















 


(a)           Such Inventory is of such types,
character, qualities and quantities (net of Inventory Reserves) as the Agent in
its discretion from time to time determines to be eligible for borrowing; and


 


(b)           The documents which relate to such
shipment either name the Agent as consignee of the subject Inventory or the
Agent has control over the documents which evidence ownership of the subject
Inventory (such as by providing to the Agent a Customs Agent Agreement);


 


(c)           Inventory to be manufactured shall
only constitute Eligible L/C Inventory to the extent the L/C issued in
connection therewith remains undrawn; and


 


(d)           The Agent is named as loss payee on
any special policies of insurance taken out by the applicable Borrower for the
period during which such Inventory is in transit.


 


“Employee Benefit Plan”:  As
defined in ERISA.


 


“Encumbrance”:  Each
of the following:


 


(a)           A Collateral Interest or agreement to
create or grant a Collateral Interest; the interest of a lessor under a Capital
Lease; conditional sale or other title retention agreement; sale of accounts
receivable or chattel paper; or other arrangement pursuant to which any Person
is entitled to any preference or priority with respect to the property or
assets of another Person or the income or profits of such other Person; each of
the foregoing whether consensual or non-consensual and whether arising by way
of agreement, operation of law, legal process or otherwise.


 


(b)           The filing authorized by a Borrower
of any financing statement under the UCC or comparable law of any jurisdiction.


 


“End Date”:  The
date upon which both (a) all Liabilities have been paid in full and (b) all
obligations of each of the Lenders to make loans and advances and to provide
other financial accommodations to the Borrowers hereunder shall have been
irrevocably terminated.


 


“Environmental Laws”:  All
of the following:


 


(a)           Applicable Law which regulates or
relates to, or imposes any standard of conduct or liability on account of or in
respect to environmental protection matters, including, without limitation,
Hazardous Materials, as are now or hereafter in effect.


 


(b)           The common law relating to damage to
Persons or property from Hazardous Materials.


 


“Equipment”:  Includes,
without limitation, “equipment” as defined in the UCC, and also all furniture,
store fixtures, motor vehicles, rolling stock, aircraft, machinery, office equipment,
plant equipment, tools, dies, molds, and other goods, property, and assets
which are used and/or were purchased for use in the operation or furtherance of
a Borrower’s business, and any and all accessions or additions thereto, and
substitutions therefor.


 


12

















 


“Erickson Family”:  The
descendants of Arthur T. and Elsie P. Erickson and Alfred W. and Rose E.
Erickson, or trusts established primarily for the benefit of such descendants
and/or their spouses or relatives.


 


“ERISA”:  The
Employee Retirement Income Security Act of 1974, as amended.


 


“ERISA Affiliate”:  Any
Person (whether or not incorporated), which is under common control with a
Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to Section 412
of the Code).


 


“Events of Default”:  Is
defined in Article 11.  An “Event of
Default” shall be deemed to have occurred and to be continuing unless and until
that Event of Default has been duly waived by the requisite Lenders or by the
Agent as applicable.


 


“Excess Cash Flow Payment”:  Is defined in Section 3.3(b)(i)(B).


 


“Excess Cash Flow Payment
Condition”: Availability as set forth in the most recent Borrowing
Base Certificate delivered to the Agent pursuant to Section 6.4 immediately
prior to the date on which the Excess Cash Flow Payment of the Term Loan B is
due is equal to or greater than 20% of the lesser of (1) the then-current
Maximum Revolving Credit Ceiling or (2) (x) the then-current Borrowing Base plus (y) the Term Loan A to Value Reserve (and, at any time
after the Term Loan B Guaranties have been released or otherwise terminated,
the Term Loan B to Value Reserve) less (z)
Availability Reserves.


 


“Excluded Gander Collateral”:  Is defined in Section 9.1(b).


 


“Exempt DDA”:  A
depository account maintained by a Borrower, the only contents of which may be
transfers from the Operating Account and actually
used solely (i) for petty cash purposes; or (ii) for payroll.


 


“Existing
Letters of Credit”:  Those
letters of credit issued by the Agent for the account of Gander prior to the
Restatement Effective Date and listed on Schedule 2.18 to the Closing
Certificate.


 


“Existing
Loan Agreement”:  Is defined
in the preamble to this Agreement.


 


“Existing
Loans”:  The amounts issued
under the Revolving Credit Loans and Term Loan A by the Lenders for the account
of Gander under the Existing Loan Agreement outstanding immediately prior to
the Restatement Effective Date.


 


“Federal Funds Rate”:  For
any day, the rate per annum equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such


 


13

















 


day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Agent.


 


“Fiscal”:  When
followed by “month” or “quarter”, Fiscal means the relevant fiscal period based
on a Borrower’s fiscal year and accounting conventions.  When followed by a reference to a specific
year, Fiscal means Gander’s fiscal year, which ends on the Saturday closest to
the end of January, such that a reference to Fiscal 2007 would refer to the
Reference Period ending Saturday, February 2, 2008.


 


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


 


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


 


“GAAP”:  Principles
which are consistent with those promulgated or adopted by the Financial
Accounting Standards Board and its predecessors (or successors) in effect and
applicable to that accounting period in respect of which reference to GAAP is
being made.


 


“General Intangibles”:  Includes,
without limitation, “general intangibles” as defined in the UCC; and also all:
rights to payment for credit extended; deposits; amounts due to a Borrower;
credit memoranda in favor of a Borrower; warranty claims; tax refunds and
abatements; insurance refunds and premium rebates; all means and vehicles of
investment or hedging, including, without limitation, options, warrants, and
futures contracts; records; customer lists; telephone numbers; goodwill; causes
of action; judgments; payments under any settlement or other agreement;
literary rights; rights to performance; royalties; license and/or franchise
fees; rights of admission; licenses; franchises; license agreements, including
all rights of a Borrower to enforce same; permits, certificates of convenience
and necessity, and similar rights granted by any governmental authority;
patents, patent applications, patents pending, and other intellectual property;
internet addresses and domain names; developmental ideas and concepts;
proprietary processes; blueprints, drawings, designs, diagrams, plans, reports,
and charts; catalogs; manuals; technical data; computer software programs
(including the source and object codes therefor), computer records, computer
software, rights of access to computer record service bureaus, service bureau
computer contracts, and computer data; tapes, disks, semi-conductors chips and
printouts; trade secrets rights, copyrights, copyright applications, mask work
rights and interests, and derivative works and interests; user, technical
reference, and other manuals and materials; trade names, trademarks, trademark
applications, service marks, and all goodwill relating thereto; applications
for registration of the foregoing; and all other general intangible property of
a Borrower in the nature of intellectual property; proposals; cost estimates,
and reproductions on paper, or otherwise, of any and all concepts or ideas, and
any matter related to, or connected with, the design, development, manufacture,
sale, marketing, leasing, or use of any or all property produced, sold, or
leased by a Borrower or credit extended


 


14

















 


or services performed, by a Borrower, whether
intended for an individual customer or the general business of a Borrower, or
used or useful in connection with research by a Borrower.


 


“Goods”:  Has
the meaning given that term in the UCC, and also includes all things movable
when a security interest therein attaches and also all computer programs
embedded in goods and any supporting information provided in connection with a
transaction relating to the program if (i) the program is associated with the
goods in such manner that it customarily is considered part of the goods or
(ii) by becoming the owner of the goods, a Person acquires a right to use the
program in connection with the goods.


 


“Granting Lender”:  Is
defined in Section 16.7.


 


“Hazardous Materials”:  Any
(a) substance which is defined or regulated as a hazardous material in or under
any Environmental Law, and (b) oil in any physical state.


 


“Holiday Companies”:  Holiday Companies, Inc., a Minnesota
corporation.


 


“Holiday Guaranty.”  That certain Guaranty of Term Loan B dated as
of even date herewith by Holiday Stationstores in favor of the Agent and the
Term Loan B Lenders pursuant to which Holiday Stationstores guaranties to the
Term Loan B Lenders and the Agent the payment and performance of the
Obligations under Term Loan B and in form and substance satisfactory to the
Term Loan B Lenders and the Agent.


 


“Holiday Stationstores”:  Holiday Stationstores, Inc., a Minnesota
corporation.


 


“In Default”:  Any
occurrence, circumstance, or state of facts with respect to any Borrower which
(a) is an Event of Default; or (b) would become an Event of Default if any
requisite notice were given and/or any requisite period of time were to run and
such occurrence, circumstance, or state of facts were not absolutely cured
within any applicable grace period.


 


“Indebtedness”:  As to any Person and whether recourse is
secured by or is otherwise available against all or only a portion of the
assets of such Person and whether or not contingent, but without duplication:


 


(a)           every obligation of such Person for
money borrowed.


 


(b)           every obligation of such Person
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments, including obligations incurred in connection with the acquisition
of property, assets or businesses.


 


(c)           every reimbursement obligation of
such Person with respect to letters of credit, bankers’ acceptances or similar
facilities issued for the account of such Person.


 


(d)           every obligation of such Person
issued or assumed as the deferred purchase price of property or services
(including securities repurchase agreements but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business which
are not overdue by more than Forty-Five (45) days or which are being contested
in good faith).


 


15

















 


(e)           every obligation of such Person under
any Capital Lease.


 


(f)            every obligation of such Person
under any lease of goods or other property, whether real or personal, which is
treated as an operating lease under GAAP and as a loan or financing for U.S.
income tax purposes (a “Synthetic Lease”).


 


(g)           all sales by such Person of (i)
accounts or general intangibles for money due or to become due, (ii) chattel
paper, instruments or documents creating or evidencing a right to payment of
money or (iii) other receivables (collectively “receivables”), whether
pursuant to a purchase facility or otherwise, other than in connection with the
disposition of the business operations of such Person relating thereto or a
disposition of defaulted receivables for collection and not as a financing
arrangement, and together with any obligation of such Person to pay any
discount, interest, fees, indemnities, penalties, recourse, expenses or other
amounts in connection therewith.


 


(h)           every obligation of such Person (an “equity
related  purchase  obligation”) to purchase, redeem, retire
or otherwise acquire for value any shares of capital stock issued by such
Person or any rights measured by the value of such capital stock.


 


(i)            every obligation of such Person
under any forward contract, futures contract, swap, option or other financing
agreement or arrangement (including, without limitation, caps, floors, collars
and similar agreements), the value of which is dependent upon interest rates,
currency exchange rates, commodities or other indices (a “derivative  contract”).


 


(j)            every obligation in respect of
Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent that such Person is liable therefor
as a result of such Person’s ownership interest in or other relationship with
such entity, except to the extent that the terms of such Indebtedness provide
that such Person is not liable therefor and such terms are enforceable under
applicable law.


 


(k)           every obligation, contingent or
otherwise, of such Person guaranteeing, or having the economic effect of
guarantying or otherwise acting as surety for, any obligation of a type
described in any of clauses (a) through (j) (the “primary  obligation”)
of another Person (the “primary  obligor”), in any manner, whether
directly or indirectly, and including, without limitation, any obligation of
such Person (i) to purchase or pay (or advance or supply funds for the purchase
of) any security for the payment of such primary obligation, (ii) to purchase
property, securities or services for the purpose of assuring the payment of
such primary obligation, or (iii) to maintain working capital, equity capital
or other financial statement condition or liquidity of the primary obligor so
as to enable the primary obligor to pay such primary obligation.


 


The “amount” or “principal  amount”
of any Indebtedness at any time of determination represented by (t) any
Indebtedness, issued at a price that is less than the principal amount at
maturity thereof, shall be the amount of the liability in respect thereof
determined in accordance with GAAP, (u) any Capital Lease shall be the
principal component of the aggregate of the rentals obligation under such
Capital Lease payable over the term thereof that is not subject to termination
by the lessee, (v) any sale of receivables shall be the amount of unrecovered
capital


 


16

















 


or principal investment of the purchaser
(other than a Borrower or any of its wholly-owned subsidiaries) thereof,
excluding amounts representative of yield or interest earned on such
investment, (w) any Synthetic Lease shall be the stipulated loss value,
termination value or other equivalent amount, (x) any derivative contract shall
be the maximum amount of any termination or loss payment required to be paid by
such Person if such derivative contract were, at the time of determination, to
be terminated by reason of any event of default or early termination event
thereunder, whether or not such event of default or early termination event has
in fact occurred, (y) any equity related purchase obligation shall be the
maximum fixed redemption or purchase price thereof inclusive of any accrued and
unpaid dividends to be comprised in such redemption or purchase price and (z)
any guaranty or other contingent liability referred to in clause (k) shall be
an amount equal to the stated or determinable amount of the primary obligation
in respect of which such guaranty or other contingent obligation is made or, if
not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.


 


“Indemnified Person”:  Is
defined in Section 19.9(b).


 


“Information”:  Is defined in Section 19.13.


 


“Instrument of Accession”: Is
defined in Section 16.9.


 


“Instruments”:  Has
the meaning given that term in the UCC.


 


“Interest Expense”:  For any period, the aggregate amount of
interest required to be paid or accrued by the Borrowers during such period on
all Indebtedness of the Borrowers outstanding during all or any part of such
period, whether such interest was or is required to be reflected as an item of
expense or capitalized, including payments consisting of interest in respect of
any Capital Lease, and including commitment fees, agency fees, facility fees,
balance deficiency fees and similar fees or expenses in connection with the
borrowing of money.


 


“Interest Payment Date”:  With
reference to:


 


Each LIBOR Loan:  The last day of the Interest Period relating
thereto (and on the last day of month three and each third month thereafter for
any such loan which has an Interest Period longer than three months); the
Termination Date; and the End Date.


 


Each Base Margin Loan:  The first day of each month; the Termination
Date; and the End Date.


 


“Interest Period”:  The
following:


 


(a)           With respect to each LIBOR Loan:
Subject to Subsection (c), below, the period commencing on the date of the
making or continuation of, or conversion to, the subject LIBOR Loan and ending
one, two, three, or six months thereafter, as the Borrowers may elect by notice
(pursuant to Section 2.5) to the Agent; provided, however, that with respect to
Term Loan B, the period as may be agreed by the Borrowers and the Term Loan B
Lenders.


 


17

















 


(b)           With respect to each Base Margin
Loan: Subject to Subsection (c), below, the period commencing on the date of
the making or continuation of or conversion to, the subject Base Margin Loan
and ending on that date (i) as of which the subject Base Margin Loan is
converted to a LIBOR Loan, as the Borrowers may elect by notice (pursuant to
Section 2.5) to the Agent, or (ii) on which the subject Base Margin Loan is
paid by the Borrowers.


 


(c)           The setting of Interest Periods is in
all instances subject to the following:


 


(i)            Any Interest Period for a Base
Margin Loan which would otherwise end on a day which is not a Business Day
shall be extended to the next succeeding Business Day.


 


(ii)           Any Interest Period for a LIBOR Loan
which would otherwise end on a day that is not a Business Day shall be extended
to the next succeeding Business Day, unless that succeeding Business Day is in
the next calendar month, in which event such Interest Period shall end on the
last Business Day of the month during which the Interest Period ends.


 


(iii)          Subject to Subsection (iv), below, any
Interest Period applicable to a LIBOR Loan, which Interest Period begins on a day
for which there is no numerically corresponding day in the calendar month
during which such Interest Period ends, shall end on the last Business Day of
the month during which that Interest Period ends.


 


(iv)          Any Interest Period which would
otherwise end after the Termination Date shall end on the Termination Date.


 


(v)           The number of Interest Periods in
effect at any one time is subject to Section 2.11(d) hereof.


 


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


 


“Inventory”:  Includes,
without limitation, “inventory” as defined in the UCC and also all: (a) Goods
which are leased by a Person as lessor; are held by a Person for sale or lease
or to be furnished under a contract of service; are to be furnished by a Person
under a contract of service; or consist of raw materials, work in process, or
materials used or consumed in a business; (b) Goods of said description in
transit; (c) Goods of said description which are returned, repossessed and
rejected; (d) packaging, advertising, and shipping materials related to any of
the foregoing; (e) all names, marks, and General Intangibles affixed or to be
affixed or associated thereto; and (f) Documents and Documents of Title which
represent any of the foregoing.


 


“Inventory Reserves”:  Such
Reserves as may be established from time to time by the Agent in the Agent’s
discretion with respect to Eligible Inventory. 
Inventory Reserves shall be such reserves established by the Agent in
connection with the Restatement Effective Date.


 


18

















 


Thereafter, the Agent may make adjustments
from time to time relating to, among other things, determinations by the Agent
that: (i) the number of days of the turnover of the inventory of any Borrower
for any period has changed in any material respect, (ii) the liquidation value
of the Eligible Inventory, or any category thereof, has changed in any material
respect, or (iii) the nature and quality of the inventory of any Borrower has
changed in any material respect or the mix of such inventory has changed
materially.  In determining whether to
establish Reserves, the Agent may consider events, conditions, contingencies or
risks which are also considered in determining Eligible Inventory or in
establishing the Availability Reserves.


 


“Investment Property”:  Has
the meaning given that term in the UCC.


 


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


 


“Issuer”:  The
issuer of any L/C.


 


“Issuer Documents”:  With
respect to any L/C, the Letter of Credit Application, and any other document,
agreement, and instrument entered into by the Issuer and a Borrower (or any
Subsidiary) or in favor of the Issuer and relating to any such L/C.


 


“L/C”:  Any
letter of credit, the issuance of which is procured by the Agent for the
account of a Borrowers and any acceptance made on account of such letter of
credit.


 


“L/C Landing Costs”:  To
the extent not included in the Stated Amount of an L/C, customs, duty, freight,
and other out-of-pocket costs and expenses which will be expended to “land” the
Inventory, the purchase of which is supported by such L/C.


 


“Lead Arranger”:  Banc of America Securities, LLC.


 


“Lead Borrower”:  Is defined in Section 19.22.


 


“Lease”:  Any
lease or other agreement, no matter how styled or structured, pursuant to which
a Borrower is entitled to the use or occupancy of any space.


 


“Leasehold Interest”:  Any
interest of a Borrower as lessee under any Lease.


 


“Lenders”:  Collectively, the Revolving Credit Lenders
and the Term Loan Lenders, and each individually a “Lender”.


 


“Lenders’ Fee Letter”:  The
Lenders’ Fee Letter, dated on or about the date of this Agreement from the
Borrowers to the Lenders.


 


“Lenders’ Special Counsel”:  A
single counsel, selected by the Majority Lenders following the occurrence of an
Event of Default, to represent the interests of the Lenders in connection with
the enforcement, attempted enforcement, or preservation of any rights and


 


19

















 


remedies under this, or any other Loan
Document, as well as in connection with any “workout”, forbearance, or
restructuring of the credit facility contemplated hereby.


 


“Letter of Credit
Application”:  Is defined in Section 2.18.


 


“Letter of Credit
Expiration”:  The day that is Seven (7) days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next
preceding Business Day).


 


“Letter-of-Credit Right”:  Has
the meaning given that term in the UCC and also refers to any right to payment
or performance under an L/C, whether or not the beneficiary has demanded or is
at the time entitled to demand payment or performance.


 


“Liabilities”:  Includes,
without limitation, the following:


 


(a)           All and each of the following,
whether now existing or hereafter arising under this Agreement or under any of
the other Loan Documents:


 


(i)            Any and all direct and indirect
liabilities, debts, and obligations of the Borrowers to the Agent or any
Revolving Credit Lender or Term Loan Lender, each of every kind, nature, and
description.


 


(ii)           Each obligation to repay any loan,
advance, indebtedness, note, obligation, overdraft, or amount now or hereafter
owing by the Borrowers to the Agent or any Revolving Credit Lender (including
all future advances whether or not made pursuant to a commitment by the Agent
or any Revolving Credit Lender) or Term Loan Lender, whether or not any of such
are liquidated, unliquidated, primary, secondary, secured, unsecured, direct,
indirect, absolute, contingent, or of any other type, nature, or description,
or by reason of any cause of action which the Agent or any Revolving Credit
Lender or any Term Loan Lender may hold against the Borrowers.


 


(iii)          All notes and other obligations of the
Borrowers now or hereafter assigned to or held by the Agent or any Revolving
Credit Lender or any Term Loan Lender, each of every kind, nature, and
description.


 


(iv)          All interest (including post-petition
interest, whether or not permitted in a bankruptcy proceeding), fees, and
charges and other amounts which may be charged by the Agent or any Revolving
Credit Lender or any Term Loan Lender to the Borrowers and/or which may be due
from the Borrowers to the Agent or any Revolving Credit Lender or any Term Loan
Lender from time to time.


 


(v)           All costs and expenses incurred or
paid by the Agent or any Revolving Credit Lender or any Term Loan Lender in
respect of any agreement between the Borrowers and the Agent or any Revolving
Credit Lender or any Term Loan Lender or instrument furnished by the Borrowers
to the Agent or any Revolving Credit Lender or any Term Loan Lender (including,
without limitation, Costs of Collection, attorneys’ reasonable fees, and all
court and litigation costs and expenses).


 


20

















 


(vi)          Any and all covenants of the Borrowers
to or with the Agent or any Revolving Credit Lender or any Term Loan Lender and
any and all obligations of the Borrowers to act or to refrain from acting in
accordance with any agreement between the Borrowers and the Agent or any
Revolving Credit Lender or any Term Loan Lender or instrument furnished by the
Borrowers to the Agent or any Revolving Credit Lender or any Term Loan Lender.


 


(vii)         Any forward contract, futures contract,
swap, option or other financing agreement (including, without limitation, caps,
floors, collars and similar agreements), the value of which is dependent upon
interest rates, currency exchange rates, commodities or other indices, entered
into between the Borrowers and Bank of America.


 


(viii)        Each of the foregoing as if each
reference to the “the Agent or any Revolving Credit Lender or any Term Loan
Lender” were to each Affiliate of the Agent.


 


(b)           Any and all direct or indirect
liabilities, debts, and obligations of the Borrowers to the Agent or any
Affiliate of the Agent, each of every kind, nature, and description owing on
account of any service or accommodation provided to, or for the account of the
Borrowers pursuant to this or any other Loan Document, including cash
management services and the issuances of L/Cs.


 


“LIBOR”:  That per annum rate equal to the LIBOR
Offer Rate except that, in the event that the Agent
determines that any Lender may be subject to the Reserve Percentage, “LIBOR”
shall mean, with respect to any LIBOR Loans then outstanding (from the date on
which that Reserve Percentage first became applicable to such loans), and with
respect to all LIBOR Loans thereafter made, an interest rate per annum equal to
the decimal equivalent of the following fraction:


 


LIBOR Offer Rate

1 minus Reserve Percentage.


 


“LIBOR Business Day”:  Any
day which is both a Business Day and a day on which the principal market in
LIBOR in which Bank of America participates is open for dealings in United
States Dollar deposits.


 


“LIBOR Loan”:  Any
Revolving Credit Loan or relevant portion of the Term Loan which bears interest
determined by reference to LIBOR.


 


“LIBOR Offer Rate”:  (a)
That rate of interest (rounded upwards, if necessary, to the next 1/100 of 1%)
determined by the Agent at which deposits on U.S. Dollars for such Interest
Period are offered based on information presented on Telerate Page 3750 at or
about 10:00AM Two (2) LIBOR Business Days before the first day of the Interest
Period for the subject LIBOR Loan for a deposit approximately in the amount of
the subject loan, for a period of time approximately equal to such Interest
Period, or (b) if such information on such Telerate Page is not available, the
rate at which deposits on U.S. Dollars are offered to Bank of America, by first-class
banks in the LIBOR market in which Bank of America participates at 10:00AM Two
(2) LIBOR Business Days before the first day of the Interest Period for the
subject LIBOR Loan


 


21

















 


for a deposit approximately in the amount of
the subject loan, for a period of time approximately equal to such Interest
Period.


 


“LIBOR Rate”:  That per annum rate equal to the sum of (a)
LIBOR plus (b) the LIBOR Rate
Applicable Margin.


 


“LIBOR Rate Applicable
Margin”:  See definition of Applicable Margin.


 


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


 


“Liquidation”:  The
exercise, by the Agent, of those rights accorded to the Agent under the Loan
Documents as a creditor of the Borrowers following and on account of the
occurrence of an Event of Default looking towards the realization on the
Collateral.  Derivations of the word “Liquidation”
(such as “Liquidate”) are used with like meaning in this Agreement.


 


“Loan Account”:  Is
defined in Section 2.8.


 


“Loan
Commitment”:  With respect to
each Revolving Credit Lender, that respective Revolving Credit Lender’s
Revolving Credit Dollar Commitment, and with respect to each Term Loan Lender,
that respective Term Loan Lender’s Term Loan Commitment.


 


“Loan Documents”:  This
Agreement and each other instrument, guaranty, security document or other
document or agreement from time to time executed and/or delivered in connection
with the arrangements contemplated hereby or in connection with any transaction
with the Agent or any Affiliate of the Agent, including, without limitation,
any transaction which arises out of any cash management, depository,
investment, letter of credit, interest rate protection, or equipment leasing
services provided by the Agent or any Affiliate of the Agent, as each may be amended
from time to time.


 


“Loan Request”:  Is
defined in Section 2.5.


 


“Loans”:  Collectively, the Revolving Credit Loans and
the Term Loan.


 


“Local Account”:  Is
defined in Section 8.3.


 


“Majority Lenders”:  (i)
Lenders (other than Delinquent Revolving Credit Lenders) holding 51% or more of
the Aggregate Loan Commitments (other than any Loan Commitments held by
Delinquent Revolving Credit Lenders), or if the Revolving Credit Dollar
Commitment has been terminated, Lenders (other than Delinquent Revolving Credit
Lenders) holding 51% or more of the sum of the total outstanding principal
amount of all Loans, the undrawn Stated Amount of L/Cs outstanding and unpaid
Reimbursement Obligations, (ii) Term Loan A Lenders


 


22
















 


holding 51% or more of Term Loan A, and (iii)Term Loan B Lenders
holding 51% or more of Term Loan B.


 


“Majority-Owned Subsidiary”: 
Any Subsidiary that is Controlled by a Borrower and in which a Borrower
owns less than 100% of the shares of securities or other interests having
ordinary voting power for the election of directors or other governing body of
such Subsidiary.


 


“Material Accounting Change”:  Any change in GAAP
applicable to accounting periods subsequent to any Borrower’s fiscal year most
recently completed prior to the execution of this Agreement, which change has a
material effect on such Borrower’s financial condition or operating results, as
reflected on financial statements and reports prepared by or for such Borrower,
when compared with such condition or results as if such change had not taken
place or where preparation of such Borrower’s statements and reports in
compliance with such change results in the breach of a financial performance
covenant imposed pursuant to Section 6.11 where such a breach would not have
occurred if such change had not taken place or visa versa.


 


“Maturity Date”:  With respect to the Revolving
Credit Loans and Term Loan A, the Maturity Date is June 30, 2012, and with
respect to Term Loan B, the Maturity Date is December 6, 2011.


 


“Maximum Revolving Credit Ceiling”:  $345,000,000,
as the same may be increased or decreased from time to time in accordance with
the provisions of Sections 2.15, 16.9 and 16.10 hereof up to an aggregate
amount not to exceed $400,000,000.


 


“Maximum Revolving Credit Dollar Commitment”:  As
set forth on SCHEDULE 2.22,
annexed hereto (as such amounts may change in accordance with the provisions of
this Agreement).


 


“Net Income”:  The net income (or deficit) of the
Borrowers determined on a consolidated basis, after deduction of all expenses,
taxes, and other proper charges, determined in accordance with GAAP, after
eliminating therefrom all extraordinary nonrecurring items of income.


 


“Nominee”:  A business entity (such as a
corporation or limited partnership) formed by the Agent to own or manage any
Post Foreclosure Asset.


 


“Non-Extension Notice Date”:  Is defined in Section
2.18(d).


 


“Note”: Any Revolving Credit Note, Swing
Line Note or Term Note, as the case may be.


 


“Obligations”:  Collectively, the
Revolving Credit Obligations and the Term Loan Obligations.


 


“OverAdvance”:  A loan, advance, or providing of
credit support (such as the issuance of any L/C) to the extent that,
immediately after its having been made, Availability is less than zero.


 


23

















 


“Overton”:  Is defined
in the Preamble.


 


“Overton’s Borrowers”: 
Is defined in the Preamble.


 


“Overton’s Excess Cash Flow”: 
With respect to any fiscal period, an amount equal to EBITDA (for purposes
of this definition only, the definition of “EBITDA” shall be read as if it
referred only to the EBITDA of the Overton’s Borrowers) for such fiscal period
less the sum of (i) Capital Expenditures by the Overton’s Borrowers for such
period (other than financed Capital Expenditures or Capital Expenditures paid
in proceeds or tenant allowances), (ii) cash interest payments by the Borrowers
on Term Loan B for such period and cash interest payments by the Overton’s
Borrowers on Revolving Credit Loans for such period as determined by the Agent;
(iii) cash prepayments and repayments of Term Loan B by the Borrowers for such
period; and (iv) taxes paid in cash by the Overton’s Borrowers for such period.


 


“Participant”:  Is defined in Section 16.3.


 


“Patent Security Agreement”: The Patent Collateral Assignment
and Security and Agreement, dated on or about the date of this Agreement
between Overton and the Agent, for the benefit of the Lenders, such Patent
Security Agreement to be on terms and conditions acceptable to the Agent, as
further amended, restated, modified or supplemented and in effect from time to
time.


 


“Patriot  Act” is defined
in Section 19.20.


 


“Payment Intangible”:  Has the meaning given that
term in the UCC and also refers to any general intangible under which the
Account Debtor’s primary obligation is a monetary obligation.


 


“Perfection Certificate”:  Collectively, the
Perfection Certificates dated as of the Restatement Effective Date and
delivered by the Borrowers to the Agent.


 


“Permitted Acquisition”: Any acquisition, other than (a) the
Acquisition and (b) the acquisition of Equipment or Inventory in the ordinary
course of business, by a Borrower, whether by purchase, merger or otherwise, of
all or substantially all of the assets of, the capital stock of, or a business
line or unit or a division of, any Person; provided that:


 


(i)            the Agent shall have
received reasonable advance notice of such acquisition including a reasonably
detailed description thereof at least ten days prior to the consummation of
such acquisition (or such shorter period as may be agreed to by the Agent);


 


(ii)           such Borrower shall
have delivered to the Agent, five days prior to the consummation of such
acquisition (or such shorter period as may be agreed to by the Agent), copies of
the material purchase and sale documents in substantially final form together
with copies of such schedules and exhibits thereto as are then available and
such other documents, instruments and information reasonably requested by the
Agent;


 


24

















 


(iii)          immediately prior to,
and after giving effect to such acquisition, no Default or Event of Default
shall have occurred and be continuing or would result therefrom;


 


(iv)          all transactions in
connection with such acquisition shall be consummated, in all material
respects, in accordance with all Requirements of Law and in accordance with all
consents and approvals of any governmental authority;


 


(v)           such acquisition shall
be consensual and shall have been approved by the board of directors of the
Person so acquired;


 


(vi)          in the case of the
acquisition of capital stock, the issuer of such capital stock shall (a) be
organized under the laws of a State or other political subdivision of the
United States of America and (b) become a wholly-owned Subsidiary or
Majority-Owned Subsidiary of such Borrower immediately after consummation of
such acquisition, and, in each case, such Borrower shall have taken, or caused
to be taken, as of the date such Person becomes a Subsidiary of such Borrower,
the actions set forth in Section 5.29;


 


(vii)         on a pro forma basis
after giving effect to such acquisition (all such pro forma adjustments being
satisfactory to the Agent in its discretion), (a) the Borrowers shall be in
compliance with each of the financial covenants set forth in Section 6.11, as
of the most recently ended Reference Period for which financial statements have
been delivered and (b) Availability shall, at all times during the period of
three (3) consecutive months most recently ended prior to such acquisition
exceed and for the period of twelve (12) consecutive months immediately
following such acquisition shall be projected to exceed, 20% of the lesser of
(1) the then-current Maximum Revolving Credit Ceiling or (2) (x) the then-current
Borrowing Base plus (y) the Term Loan A to Value
Reserve (and, at any time after the Term Loan B Guaranties have been released
or otherwise terminated and so long as Term Loan B is outstanding, the Term
Loan B to Value Reserve) less (z) Availability
Reserves;


 


(viii)        any Person or assets or
division acquired in accordance herewith shall be in same business or lines of
business in which such Borrower and/or its Subsidiaries are engaged as of the
Restatement Effective Date or a line of business reasonably related or
incidental thereto (including, without limitation, internet and catalog
businesses);


 


(ix)           the aggregate
consideration paid or payable (including any assumed Indebtedness) shall not
exceed (a) $5,000,000 in the aggregate in connection with any such acquisition,
(b) $5,000,000 in the aggregate in connection with all such acquisitions in any
Fiscal Year, and (c) $10,000,000 in the aggregate in connection with all such
acquisitions since the Restatement Effective Date; provided,
however, that so long as the Term Loan B
Obligations remain outstanding, the aggregate consideration paid or payable
(including any assumed Indebtedness) shall not exceed (a) $1,000,000 in the
aggregate in connection with any such acquisition, (b) $1,000,000 in the aggregate
in connection with all such acquisitions in any Fiscal Year, and (c) $2,000,000
in the aggregate in connection with all such acquisitions since the Restatement
Effective Date ; and


 


(x)            such Borrower shall
have delivered to Agent (a) a certificate, in form and substance reasonably
satisfactory to it, from the chief financial officer of such Borrower


 


25

















 


certifying that the conditions set forth in clauses (iii) through (ix)
above are satisfied (which certificate shall attach supporting projections,
information and calculations with respect to the requirements set forth in
clause (vii) above (all based on fair and reasonable projections of the
financial performance of such Borrower) and (b) promptly following the
consummation of such acquisition, copies, certified by a duly authorized
officer on behalf of such Borrower to be true and complete, of the final
material purchase and sale documents including the schedules and exhibits
thereto.


 


Notwithstanding anything to the contrary contained herein, Inventory
acquired in connection with any Permitted Acquisition shall not be deemed to be
Eligible Inventory for any purpose hereunder until such time the Agent shall
have received the results of an examination and appraisal of such Inventory
(which shall be in form, scope and substance reasonably satisfactory to the
Agent) conducted by such appraisers as are satisfactory to the Agent.


 


“Permitted Encumbrances”:  Is defined in Section
5.6(a).


 


“Permitted Investments”:  Is defined in Section
5.20.


 


“Person”:  Any natural person, and any corporation,
limited liability company, trust, partnership, joint venture, or other
enterprise or entity.


 


“Platform”:  Is defined
in Section 6.1.


 


“Pledge Agreement”: 
The Securities Pledge Agreement dated on or about the date of this
Agreement among each of the Borrowers and the Agent, for the benefit of the
Lenders, such Pledge Agreement to be on terms and conditions acceptable to the
Agent, as further amended, restated, modified or supplemented and in effect
from time to time.


 


“Post Foreclosure Asset”:  All or any part of the
Collateral, ownership of which is acquired by the Agent or a Nominee on account
of the “bidding in” at a disposition as part of a Liquidation or by reason of a
“deed in lieu” type of transaction.


 


“Pratt Equity Cash Proceeds”:
The net proceeds received in cash, in an aggregate amount not to
exceed $30,000,000, in connection with the issuance of 5,701,255 shares of
capital stock of Gander to GRATCO LLC, a Missouri limited liability company, in
December, 2006.


 


“Pratt Guaranty.”  That
certain Guaranty of Term Loan B dated as of even date herewith by David C.
Pratt in favor of the Agent and the Term Loan B Lenders pursuant to which David
C. Pratt guaranties to the Term Loan B Lenders and the Agent the payment and
performance of the Term Loan B Obligations and in form and substance
satisfactory to the Term Loan B Lenders and the Agent.


 


“Pratt Parties”: David
C. Pratt, the David C. Pratt Irrevocable Grantor Retained Annuity Trust (or
other trusts or entities established primarily for the benefit of the
descendants or other beneficiaries of David C. Pratt), GRATCO, LLC, a Missouri
limited liability company, and their respective Affiliates (other than the
Borrowers).


 


26

















 


“Proceeds”:  Includes, without limitation, “Proceeds”
as defined in the UCC and each type of property described in Section 9.1.


 


“Projections”:  Is
defined in Section 6.10(d).


 


“Protective OverAdvances”:  Revolving Credit Loans
which are OverAdvances, but as to which each of the following conditions is
satisfied: (a) the Maximum Revolving Credit Ceiling is not exceeded; and (b)
when aggregated with all other Protective OverAdvances, such Revolving Credit Loans
do not aggregate more than five percent (5%) of the lesser of (i) the
then-current Borrowing Base and (ii) the Maximum Revolving Credit Ceiling; and
(c) such Revolving Credit Loans are made or undertaken in the Agent’s
discretion to protect and preserve the interests of the Lenders.


 


“Rate Adjustment Period”: Is defined in the definition of
Applicable Margin.


 


“Real Estate”:  All real property at any time owned
or leased (as lessee or sublessee) by any Borrower.


 


“Receipts”:  All cash, cash equivalents, money,
checks, credit card slips, receipts and other Proceeds from any sale of the
Collateral.


 


“Receivables Collateral”:  That portion of the
Collateral which consists of Accounts, Accounts Receivable, General
Intangibles, Chattel Paper, Instruments, Documents of Title, Documents,
Investment Property, Payment Intangibles, Letter-of-Credit Rights, bankers’
acceptances, and all other rights to payment.


 


“Reference Period”: For any date, the period of twelve (12)
consecutive fiscal months of a Borrower ending on the last day of the fiscal
month ending on or immediately prior to such date.


 


“Register”:  Is defined in Section 16.1(d).


 


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


 


“Reimbursement Obligation”:  The Borrowers’
obligation to reimburse the Agent and the Revolving Credit Lenders on account
of any drawing under any L/C as provided in Section 2.20.


 


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


 


“Requirements of Law”:  As to any Person:


 


(a)           Applicable Law.


 


(b)           That Person’s organizational documents.


 


27

















 


(c)           That Person’s by-laws and/or other
instruments which deal with corporate or similar governance, as applicable.


 


“Reserve Percentage”:  The decimal equivalent of
that rate applicable to a Lender under regulations issued from time to time by
the Board of Governors of the Federal Reserve System for determining the
maximum reserve requirement of that Lender with respect to “Eurocurrency
liabilities” as defined in such regulations. The Reserve Percentage applicable
to a particular LIBOR Loan shall be based upon that in effect during the
subject Interest Period, with changes in the Reserve Percentage which take
effect during such Interest Period to take effect (and to consequently change
any interest rate determined with reference to the Reserve Percentage) if and
when such change is applicable to such loans.


 


“Reserves”:  The following: Availability Reserves
and Inventory Reserves.


 


“Restatement Effective Date”:  The date on which the conditions set forth in
Section 4 have been satisfied and this Agreement first became effective.


 


“Revolving Credit”:  Revolving credit loans made or
to be made by the Revolving Credit Lenders pursuant to Section 2.1 and
SwingLine Loans.


 


“Revolving Credit Dollar Commitment”:  With respect
to each Revolving Credit Lender, such Revolving Credit Lender’s Revolving
Credit Percentage Commitment multiplied by
the Maximum Revolving Credit Ceiling.


 


“Revolving Credit Early Termination Fee”:  Is
defined in Section 2.15.


 


“Revolving Credit Lenders”:  A Lender identified on
SCHEDULE 2.22
which holds a Revolving Credit Dollar Commitment or who becomes a  Revolving Credit Lender in accordance with
Section 16.1.


 


“Revolving Credit Loans”:  Loans made under the
Revolving Credit, except that where the term “Revolving Credit Loan” is used
with reference to available interest rates applicable to the loans under the
Revolving Credit, it refers to so much of the unpaid principal balance of the
Loan Account as bears the same rate of interest for the same Interest Period. (See Section 2.11, 2.11(c)).


 


“Revolving Credit Note”:  Is defined in Section
2.9.


 


“Revolving Credit Obligations”:  The aggregate
liabilities, obligations and indebtedness of the Borrowers of any character on
account of or in respect to the Revolving Credit.


 


“Revolving Credit Percentage Commitment”:  As set
forth on SCHEDULE 2.22, annexed
hereto (as such amounts may change in accordance with the provisions of this
Agreement).


 


“Sarbanes-Oxley”:  The
Sarbanes-Oxley Act of 2002.


 


28

















 


“Securities Laws”:  The
Securities Act of 1933, the Securities Exchange Act of 1934, Sarbanes-Oxley and
the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the Public
Company Accounting Oversight Board, as each of the foregoing may be amended and
in effect on any applicable date hereunder.


 


“Sellers”:  Each of the
stockholders of Holdings listed as sellers on the signature pages to the
Acquisition Agreement.


 


“Stated Amount”:  The maximum amount for which an
L/C may be honored.


 


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


 


“SuperMajority Lenders”:  Lenders (other than
Delinquent Revolving Credit Lenders) holding 66-2/3% or more of the Aggregate
Loan Commitments (other than Loan Commitments held by a Delinquent Revolving Credit
Lender), or if the Revolving Credit Dollar Commitment has been terminated,
Lenders (other than Delinquent Revolving Credit Lenders) holding 66-2/3% of the
sum of the total outstanding principal amount of all Loans, the undrawn Stated
Amount of L/Cs outstanding and unpaid Reimbursement Obligations; provided
that, for purposes of Sections 2.11(f), 13.1(b), 13.2(b), 15.3(b), and
15.3(c) and so long as Term Loan B is outstanding, “SuperMajority Lenders”
shall mean Lenders (other than Delinquent Revolving Credit Lenders) holding 60%
or more of the Aggregate Loan Commitments (other than Loan Commitments held by
a Delinquent Revolving Credit Lender), or if the Revolving Credit Dollar
Commitment has been terminated, Lenders (other than Delinquent Revolving Credit
Lenders) holding 60% of the sum of the total outstanding principal amount of
all Loans, the undrawn Stated Amount of L/Cs outstanding and unpaid
Reimbursement Obligations.


 


“SuperMajority Term Loan A Lenders”:  Term Loan A
Lenders holding 66-2/3% or more of the total outstanding principal amount of
Term Loan A.


 


“SuperMajority Term Loan B Lenders”:  Term Loan B
Lenders holding 66-2/3% or more of the total outstanding principal amount of
Term Loan B.


 


“SwingLine”:    The facility pursuant to
which the SwingLine Lender may advance Revolving Credit Loans aggregating up to
the SwingLine Loan Ceiling.


 


“SwingLine Lender”:  Bank of America, in its
capacity as provider of SwingLine Loans, or any successor SwingLine Lender
hereunder.


 


29

















 


“SwingLine Loan Ceiling”:  Ten percent (10%) of the
Maximum Revolving Credit Ceiling in effect from time to time (subject to
increase as provided in Section 16.9 and 16.10).


 


“SwingLine Loans”:  Is defined in Section 2.7.


 


“SwingLine Note”:  Is defined in Section 2.7.


 


“Syndication Agent”:  Wells Fargo Foothill, Inc.


 


“Term Loan”: 
Collectively, Term Loan A and Term Loan B or, as the context requires,
either of them.


 


“Term Loan A”: The term loan made to the Borrowers by the
Term Loan A Lenders pursuant to Section 3.1(a).


 


“Term Loan A Commitment”:  With respect to each Term Loan A Lender, the
amount set forth on SCHEDULE
2.22 hereto as the amount of such Term Loan A Lender’s commitment to
make a portion of the Term Loan A to the Borrowers on the Restatement Effective
Date.


 


“Term Loan A Early Termination Fee”:  Is
defined in Section 3.4.


 


“Term Loan A Lender”:  A Lender identified on SCHEDULE 2.22 which holds a Term Loan A Commitment or who
becomes a Term Loan A Lender in accordance with Section 16.1.


 


“Term Loan A Obligations”:  The aggregate of the Borrowers’ liabilities,
obligations, and indebtedness of any character on account of or in respect to
the Term Loan A.


 


“Term Loan A Percentage”:  With respect to each Term Loan A Lender, the
percentage set forth on SCHEDULE
2.22 hereto as such Lender’s percentage of the aggregate Term Loan A
Commitments of all the Term Loan A Lenders.


 


“Term Loan A to Value Reserve”:  At any time of determination by the Agent,
from time to time an amount equal to the greater of,


 


(a)           $0; or


 


(b)           the principal amount of
the Term Loan A minus the
Appraised Inventory Liquidation Value multiplied
by 5.0%.


 


“Term Loan B”: The term loan made to the Borrowers by the
Term Loan B Lenders pursuant to Section 3.1(b).


 


“Term Loan B Commitment”:  With respect to each Term Loan B Lender, the
amount set forth on SCHEDULE
2.22 hereto as the amount of such Term Loan B Lender’s commitment to
make a portion of the Term Loan B to the Borrowers on the Restatement Effective
Date.


 


“Term Loan B Guaranties”:  Collectively, the Pratt Guaranty and the
Holiday Guaranty.


 


30

















 


“Term Loan B Guarantor”:  David C. Pratt, in his capacity as guarantor
under the Pratt Guaranty, or Holiday Stationstores, in its capacity as
guarantor under the Holiday Guaranty, or, as the context requires, both of
them.


 


Term Loan B Lender”:  A Lender identified on SCHEDULE 2.22 which holds a Term Loan B Commitment or who
becomes a Term Loan B Lender in accordance with Section 16.1.


 


“Term Loan B Obligations”:  The aggregate of the Borrowers’ liabilities,
obligations, and indebtedness of any character on account of or in respect to
the Term Loan B.


 


“Term Loan B Percentage”:  With respect to each Term Loan B Lender, the
percentage set forth on SCHEDULE
2.22 hereto as such Lender’s percentage of the aggregate Term Loan B
Commitments of all the Term Loan B Lenders.


 


“Term Loan B Priority Collateral”:  Means all assets of the Overton’s Borrowers
except for Inventory and credit card receivables and all proceeds and products
thereof.


 


“Term Loan B to Value Reserve”:  At any time of determination by the Agent,
from time to time an amount equal to the greater of,


 


(a)           $0; or


 


(b)           the sum of the
principal amount of the Term Loan B plus the BAL
Loan minus  the
Appraised Inventory Liquidation Value multiplied
by 8.5%; provided that during the period commencing April 1 of each
calendar year and ending on August 31 of each calendar year, the Appraised
Inventory Liquidation Value shall be multiplied by 6.0%.


 


“Term Loan Commitment”:  A Term Loan A Commitment or a Term Loan B
Commitment, or, as the context requires, both of them.


 


“Term Loan Lender”:  A Term Loan A Lender or a Term Loan B Lender
or, as the context requires, both of them.


 


“Term Loan Obligations”:  Collectively, the Term Loan A Obligations and
the Term Loan B Obligations.


 


“Term Loan Percentage”:  The Term Loan A Percentage or the Term Loan B
Percentage, as the context requires.


 


“Term Note”: 
A Term Note A or Term Note B, or, as the context requires, both of them.


 


“Term Note A”:  Is
defined in Section 3.2.


 


“Term Note B”:  Is
defined in Section 3.2.


 


“Termination Date”:  The earliest of (a) the
Maturity Date with respect to the Revolving Credit and Term Loan A; or (b) the
occurrence of any event described in Section 11.11, below; or (c) the Agent’s
notice to the Borrowers setting the Termination Date on account of the


 


31

















 


occurrence of
any Event of Default other than as described in Section 11.11, below; or (d)
that date, Ninety (90) days following irrevocable written notice of which is
provided by the Borrowers to the Agent.


 


“Trademark Security Agreements”: The (i) Trademark Collateral
Security and Pledge Agreement, dated on or about the date of this Agreement
between Overton and the Agent, for the benefit of the Lenders, such Trademark
Security Agreement to be on terms and conditions acceptable to the Agent, as
further amended, restated, modified or supplemented and in effect from time to
time, and (ii) Second Amended and Restated Trademark Collateral Security and
Pledge Agreement, dated as of August 15, 2007 between Gander and the Agent, for
the benefit of the Lenders, as further amended, restated, modified or supplemented
and in effect from time to time.


 


“Transfer”:  Wire transfer pursuant to the wire
transfer system maintained by the Board of Governors of the Federal Reserve
Board, or as otherwise may be agreed to from time to time by the Agent making
such Transfer and the subject Lender. Wire instructions may be changed in the
same manner that Notice Addresses may be changed (Section 17.1), except that no
change of the wire instructions for Transfers to any Lender shall be effective
without the consent of the Agent.


 


“UCC”:  The Uniform Commercial Code as in effect
from time to time in Massachusetts.


 


“Unanimous Consent”:  Consent of Lenders (other
than Delinquent Revolving Credit Lenders) holding 100% of the Aggregate Loan
Commitments (other than any Loan Commitments held by Delinquent Revolving
Credit Lenders), or if the Revolving Credit Dollar Commitment has been
terminated, Lenders (other than Delinquent Revolving Credit Lenders) holding
100% of the sum of the total outstanding principal amount of all Loans, the undrawn
Stated Amount of L/Cs outstanding and unpaid Reimbursement Obligations.


 


“Unpaid Reimbursement Obligation”:  Any
Reimbursement Obligation for which the Borrowers do not reimburse the Agent and
the Revolving Credit Lenders on the date specified in, and in accordance with
Section 2.20.


 


“Upfront Fee”:  Is defined in Section 2.12.


 


“Unused Amount”:  Is
defined in Section 6.12.


 


“Unused Line Fee”:  Is defined in Section 2.14.


 


ARTICLE II.         THE REVOLVING CREDIT AND CERTAIN TERMS OF GENERAL APPLICATION


 


2.1.         ESTABLISHMENT OF REVOLVING CREDIT.


 


(a)           The Revolving Credit Lenders hereby establish a revolving line of
credit in the Borrowers’ favor pursuant to which each Revolving Credit Lender,
subject to, and in accordance


 


32

















 


with, this Agreement, acting
through the Agent, shall make loans and advances and otherwise provide
financial accommodations to and for the account of the Borrowers as provided
herein.


 


(b)           Loans, advances, and financial accommodations
under the Revolving Credit shall be made with reference to the Borrowing Base
and shall be subject to Availability. The Borrowing Base and Availability shall
be determined by the Agent by reference to Borrowing Base Certificates
furnished as provided in Section 6.4, below, and shall be subject to the
following:


 


(i)            Such determination shall take into account
such Reserves as the Agent may reasonably determine as being applicable
thereto.


 


(ii)           The Cost of Eligible Inventory will be determined in a manner
consistent with current tracking practices, based on the Borrower’s stock
ledger inventory.


 


(c)           The commitment of each Revolving Credit
Lender to provide such loans, advances, and financial accommodations is subject
to Section 2.22.


 


(d)           The proceeds of borrowings under the
Revolving Credit shall be used to refinance existing Indebtedness and for
working capital purposes, including, without limitation, inventory purchases. No
proceeds of a borrowing under the Revolving Credit may be used, nor shall any
be requested, with a view towards the accumulation of any general fund or
funded reserve of the Borrowers other than in the ordinary course of the
Borrowers’ businesses and consistent with the provisions of this Agreement.


 


2.2.         ADVANCES
IN EXCESS OF BORROWING BASE (OVERADVANCES).


 


(a)           No Revolving Credit Lender has any obligation
to make any loan or advance, or otherwise to provide any credit to or for the
benefit of the Borrowers where the result of such loan, advance, or credit is
an OverAdvance.


 


(b)           The Revolving Credit Lenders’ obligations,
among themselves, are subject to Section 2.25(a) (which relates to each
Revolving Credit Lender’s making amounts available to the Agent) and to Section
15.3(a) (which relates to Protective OverAdvances).


 


(c)           The Revolving Credit Lenders’ providing of an
OverAdvance on any one occasion does not affect the obligations of the
Borrowers hereunder (including the Borrowers’ obligation to immediately repay
any amount which otherwise constitutes an OverAdvance) nor obligate the
Revolving Credit Lenders to do so on any other occasion.


 


2.3.         RISKS OF
VALUE OF COLLATERAL. The
Agent’s reference to a given asset in connection with the making of loans,
credits, and advances and the providing of financial accommodations under the
Revolving Credit or the Term Loan and/or the monitoring of compliance with the
provisions hereof shall not be deemed a determination by the Agent or any
Revolving Credit Lender or any Term Loan Lender relative to the actual value of
the asset in question. All risks concerning the value of the Collateral are and
remain upon the Borrowers. All Collateral secures the prompt, punctual, and
faithful performance of the Liabilities whether


 


33

















 


or not relied upon by the
Agent in connection with the making of loans, credits, and advances and the
providing of financial accommodations under the Revolving Credit and the Term
Loan.


 


2.4.         COMMITMENT
TO MAKE REVOLVING CREDIT LOANS AND SUPPORT LETTERS OF CREDIT. Subject to the provisions of this
Agreement, the Revolving Credit Lenders shall make a loan or advance under the
Revolving Credit and the Agent shall issue an L/C for the account of, or shall
have an L/C issued for the account of, the Borrowers, in each instance if duly
and timely requested by the Borrowers as provided herein provided that:


 


(i)            No OverAdvance is then outstanding and none
will result therefrom.


 


(ii)           The Revolving Credit has not been suspended (as to which, see Section 2.5(g)).


 


2.5.         REVOLVING
CREDIT LOAN REQUESTS.


 


(a)           Requests for loans and advances under the
Revolving Credit or for the continuance or conversion of an interest rate
applicable to a Revolving Credit Loan may be requested by the Lead Borrower in
the form attached as EXHIBIT H
or in such other manner as may from time to time be acceptable to the Agent
(each a “Loan Request”).


 


(b)           Subject to the provisions of this Agreement,
the Lead Borrower may request a Revolving Credit Loan and elect an interest
rate and Interest Period to be applicable to that Revolving Credit Loan by
giving notice to the Agent by no later than the following:


 


(i)            If such Revolving Credit Loan is to be or is
to be converted to a Base Margin Loan: By 1:00PM on the Business Day on which
the subject Revolving Credit Loan is to be made or is to be so converted. Base
Margin Loans requested by the Lead Borrower, other than those resulting from
the conversion of a LIBOR Loan, shall not be less than $10,000.


 


(ii)           If such Revolving Credit Loan is to be, or is to be continued as, or
converted to, a LIBOR Loan: By 10:30AM Two (2) LIBOR Business Days before the
commencement of any new Interest Period or the end of the then applicable
Interest Period. LIBOR Loans and conversions to LIBOR Loans shall each be not
less than $1,000,000 and in increments of $100,000 in excess of such minimum.


 


(iii)          Any LIBOR Loan which matures while the Borrowers are In Default shall
be converted, at the option of the Agent, to a Base Margin Loan notwithstanding
any notice from the Lead Borrower that such Loan is to be continued as a LIBOR
Loan.


 


(c)           Any request for a Revolving Credit Loan or
for the continuance or conversion of an interest rate applicable to a Revolving
Credit Loan which is made after the applicable deadline therefor, as set forth
above, shall be deemed to have been made at the opening of business on the then
next Business Day or LIBOR Business Day, as applicable.


 


34

















 


(d)           The Lead Borrower may request that the Agent
cause the issuance by the Issuer of L/Cs for the account of any Borrower as
provided in Section 2.18.


 


(e)           The Agent may rely on any request for a loan
or advance, or other financial accommodation under the Revolving Credit which
the Agent, in good faith, believes to have been made by a Person duly
authorized to act on behalf of the Lead Borrower and may decline to make any
such requested loan or advance, or issuance, or to provide any such financial
accommodation pending the Agent’s being furnished with such documentation
concerning that Person’s authority to act as may be satisfactory to the Agent.


 


(f)            A request by the Lead Borrower for a loan or
advance, or other financial accommodation under the Revolving Credit shall be
irrevocable and shall constitute certification by the Lead Borrower that as of
the date of such request, each of the following is true and correct:


 


(i)            There has been no material adverse change in
the Borrowers’ financial condition from the most recent financial information
furnished Agent or any Revolving Credit Lender pursuant to this Agreement.


 


(ii)           To the extent necessary, all or a portion of any loan or advance so
requested will be set aside by the Borrowers to cover the Borrowers’
obligations for sales tax on account of sales since the then most recent
borrowing pursuant to the Revolving Credit.


 


(iii)          Each representation which is made herein or in any of the Loan
Documents was true in all material respects as of the date as of which they
were made and each of the representations and warranties contained in this
Agreement are true in all material respects, with the same effect as if made at
and as of the date of such request (except to the extent of changes resulting
from transactions contemplated or permitted by this Agreement and the other
Loan Documents and changes occurring in the ordinary course of business that
singly or in the aggregate are not materially adverse, and to the extent that
such representations and warranties relate expressly to an earlier date).


 


(iv)          Unless accompanied by a written Certificate of the Lead Borrower’s
President or its Chief Financial Officer describing (in reasonable detail) the
facts and circumstances thereof and the steps (if any) being taken to remedy
such condition, that the Borrowers are not In Default.


 


(g)           If, at any time or from time to time, the
Borrowers are In Default:


 


(i)            The Agent may suspend the Revolving Credit
immediately, in which event, neither the Agent nor any Lender shall be
obligated, during such suspension, to make any loan or advance, or to provide
any financial accommodation hereunder or to seek the issuance of any L/C.


 


(ii)           The Agent may suspend the right of the Lead Borrower to request any
LIBOR Loan or to convert any Base Margin Loan to a LIBOR Loan.


 


35

















 


2.6.         MAKING OF
REVOLVING CREDIT LOANS.


 


(a)           A loan or advance under the Revolving Credit
shall be made by the transfer of the proceeds of such loan or advance to the
Operating Account or as otherwise instructed by the Lead Borrower.


 


(b)           A loan or advance shall be deemed to have
been made under the Revolving Credit (and the Borrowers shall be indebted to
the Agent and the Revolving Credit Lenders for the amount thereof immediately)
at the following:


 


(i)            The Agent’s initiation of the transfer of the
proceeds of such loan or advance in accordance with the Lead Borrower’s
instructions (if such loan or advance is of funds requested by the Lead
Borrower).


 


(ii)           The charging of the amount of such loan to the Loan Account (in all
other circumstances).


 


(c)           Except where there has been gross negligence
or willful misconduct on the part of the Agent or any Revolving Credit Lender,
there shall not be any recourse to or liability of the Agent or any Revolving
Credit Lender, on account of:


 


(i)            Any delay in the making of any loan or
advance requested under the Revolving Credit.


 


(ii)           Any delay by any bank or other depository institution in treating the
proceeds of any such loan or advance as collected funds.


 


(iii)          Any delay in the receipt, and/or any loss, of funds which constitute a
loan or advance under the Revolving Credit, the wire transfer of which was
properly initiated by the Agent in accordance with wire instructions provided
to the Agent by the Lead Borrower.


 


2.7.         SWINGLINE
LOANS.


 


(a)           Subject to the terms and conditions set forth
herein, the SwingLine Lender agrees, in reliance upon the agreements of the
other Revolving Credit Lenders set forth in this Section 2.7, to make loans (in
the aggregate, the “SwingLine Loans”)
in accordance with the procedures set forth in this Agreement for the making of
loans and advances under the Revolving Credit.


 


(b)           The aggregate unpaid principal balance of the
SwingLine Loans shall not at any one time be in excess of the SwingLine Loan
Ceiling.


 


(c)           The aggregate unpaid principal balance of
SwingLine Loans shall bear interest at the rate applicable to Base Margin Loans
and shall be repayable as a loan under the Revolving Credit.


 


36

















 


(d)           The Borrowers’ obligation to repay SwingLine
Loans shall be evidenced by a Note (the “SwingLine Note”),
in the form of EXHIBIT A, annexed hereto,
executed by the Borrowers, and payable to the SwingLine Lender. Neither the
original nor a copy of that Note shall be required, however,
to establish or prove any Liability. The Borrowers shall execute a replacement
of any SwingLine Note which has been lost, mutilated, or destroyed thereof and
deliver such replacement to the SwingLine Lender.


 


(e)           For all purposes of this Agreement, the
SwingLine Loans and the Borrowers’ obligations to the SwingLine Lender
constitute Revolving Credit Loans and are secured as “Liabilities”.


 


(f)            SwingLine Loans may be subject to periodic
settlement with the Revolving Credit Lenders as provided in this Agreement.


 


2.8.         THE LOAN
ACCOUNT.


 


(a)           An account (“Loan Account”)
shall be opened on the books of the Agent in which a record shall be kept of
all loans, advances and payments made under the Revolving Credit and the Term
Loan.


 


(b)           The Agent shall also keep a record (either in
the Loan Account or elsewhere, as the Agent may from time to time elect) of all
interest, fees, service charges, costs, expenses, and other debits owed to the
Agent and each Revolving Credit Lender or Term Loan Lender, as applicable, on
account of the Liabilities and of all credits against such amounts so owed.


 


(c)           All credits against the Liabilities shall be
conditional upon final payment to the Agent for the account of each Revolving
Credit Lender or Term Loan Lender, as applicable, of the items giving rise to such
credits. The amount of any item credited against the Liabilities which is
charged back against the Agent or any Revolving Credit Lender or any Term Loan
Lender, as applicable, for any reason or is not so paid shall be a Liability
and shall be added to the Loan Account, whether or not the item so charged back
or not so paid is returned.


 


(d)           Except as otherwise provided herein, all
fees, service charges, costs, and expenses for which the Borrowers are
obligated hereunder are payable on demand. In the determination of
Availability, the Agent may deem fees, service charges, accrued interest, and
other payments which will be due and payable between the date of such
determination and the first day of the then next succeeding month as having
been advanced under the Revolving Credit whether or not such amounts are then
due and payable.


 


(e)           The Agent, without the request of the Lead
Borrower, may advance under the Revolving Credit any interest, fee, service
charge, or other payment to which the Agent or any Revolving Credit Lender or
any Term Loan Lender, as applicable, is entitled from the Borrowers pursuant
hereto and may charge the same to the Loan Account notwithstanding that an
OverAdvance may result thereby. Such action on the part of the Agent shall not
constitute a waiver of the Agent’s rights and the Borrowers’ obligations under
Section 2.10(b). Any amount which is added to the principal balance of the Loan
Account as provided in this Section 2.8(e) shall bear interest at the interest
rate then and thereafter applicable to Base Margin Loans.


 


37

















 


(f)            Any statement rendered by the Agent or any
Revolving Credit Lender or any Term Loan Lender, as applicable, to the
Borrowers concerning the Liabilities shall be considered correct and accepted
by the Borrowers and shall be conclusively binding upon the Borrowers unless
the Lead Borrower provides the Agent with written objection thereto within
Thirty (30) days from the mailing of such statement, which written objection
shall indicate, with particularity, the reason for such objection. The Loan
Account and the Agent’s books and records concerning the loan arrangement
contemplated herein and the Liabilities shall be prima facie evidence and proof
of the items described therein.


 


2.9.         THE
REVOLVING CREDIT NOTES. The
Borrowers’ obligation to repay loans and advances under the Revolving Credit,
with interest as provided herein, shall be evidenced by Notes (each, a “Revolving Credit Note”) in the form of EXHIBIT B, annexed hereto, executed by
the Borrowers, one payable to each Revolving Credit Lender. Neither the
original nor a copy of any Revolving Credit Note shall be required, however, to establish or prove any
Liability. In the event that any Revolving Credit Note is ever lost, mutilated,
or destroyed, the Borrowers shall execute a replacement thereof and deliver
such replacement to the Agent.


 


2.10.       PAYMENT
OF THE LOAN ACCOUNT.


 


(a)           The Borrowers may
repay all or any portion of the principal balance of the Loan Account from time
to time until the Termination Date.


 


(b)           The Borrowers, without notice or demand from
the Agent or any Revolving Credit Lender, shall pay the
Agent that amount, from time to time, which is necessary so that there is no
OverAdvance outstanding.


 


(c)           The Borrowers shall
repay the then entire unpaid balance of the Loan Account and all other
Liabilities on the Termination Date.


 


(d)           The Agent shall endeavor to cause the
application of payments (if any), pursuant to Sections 2.10(a) and 2.10(b)
against LIBOR Loans then outstanding in such manner as results in the least
cost to the Borrowers, but shall not have any affirmative obligation to do so
nor liability on account of the Agent’s failure to have done so. In no event
shall action or inaction taken by the Agent excuse the Borrowers from any
indemnification obligation under Section 2.10(e).


 


(e)           The Borrowers shall indemnify the Agent, each
Revolving Credit Lender and each Term Loan Lender and hold the Agent, each
Revolving Credit Lender and each Term Loan Lender harmless from and against any
loss, cost or expense (including loss of anticipated profits and amounts
payable by the Agent or such Revolving Credit Lender or Term Loan Lender on
account of “breakage fees” (so-called)) which the Agent or such Revolving
Credit Lender or Term Loan Lender may sustain or incur (including, without
limitation, by virtue of acceleration after the occurrence of any Event of
Default) as a consequence of the following:


 


(i)            Default by the Borrowers in payment of the
principal amount of or any interest on any LIBOR Loan as and when due and
payable, including any such loss or


 


38

















 


expense
arising from interest or fees payable by such Revolving Credit Lender or Term
Loan Lender in order to maintain its LIBOR Loans.


 


(ii)           Default by the Borrowers in making a borrowing or conversion after the
Lead Borrower has given (or is deemed to have given) a request for a Revolving
Credit Loan or a request to convert a Loan from one applicable interest rate to
another.


 


(iii)          The making of any payment on a LIBOR Loan or the making of any
conversion of any such Loan to a Base Margin Loan on a day that is not the last
day of the applicable Interest Period with respect thereto.


 


(f)            All payments to be made by the Borrowers
shall be made without condition or deduction for any counterclaim, defense,
recoupment, or setoff.


 


2.11.       INTEREST
ON REVOLVING CREDIT LOANS.


 


(a)           Each Revolving Credit Loan shall bear
interest at the Base Margin Rate unless timely notice is given (as provided in
Section 2.5) that the subject Revolving Credit Loan (or a portion thereof) is,
or is to be converted to, a LIBOR Loan.


 


(b)           Each Revolving Credit Loan which consists of
a LIBOR Loan shall bear interest at the applicable LIBOR Rate.


 


(c)           Subject to, and in accordance with, the
provisions of this Agreement, the Borrowers may cause all or a part of the
unpaid principal balance of the Loan Account to bear interest at the Base
Margin Rate or the LIBOR Rate as specified from time to time by the Borrowers.


 


(d)           The Borrowers shall not select, renew, or
convert any interest rate for a Revolving Credit Loan such that, in addition to
interest at the Base Margin Rate, there are more than Six (6) LIBOR Rates
applicable to the Revolving Credit Loans at any one time.


 


(e)           The Borrowers shall pay accrued and unpaid
interest on each Revolving Credit Loan in arrears as follows:


 


(i)            On the applicable Interest Payment Date for
that Revolving Credit Loan.


 


(ii)           On the Termination Date and on the End Date.


 


(iii)          Following the occurrence of any Event of Default, with such frequency
as may be determined by the Agent.


 


(f)            Following the occurrence and during the
continuance of any Event of Default (and whether or not the Agent exercises the
Agent’s rights on account thereof), all Revolving Credit Loans shall bear
interest, at the option of the Agent or at the instruction of the SuperMajority
Lenders at a rate which is the aggregate of the rate applicable to Base Margin
Loans plus Three Percent (3%) per annum.


 


39

















 


2.12.       UPFRONT
FEES. In consideration of
the commitment to make loans and advances to the Borrowers under the Revolving
Credit and Term Loan, as applicable, and to maintain sufficient funds available
for such purposes, there has been earned and the Borrowers shall pay to the
Agent for the accounts of the Lenders a fee (the “Upfront Fee”)  as
set forth in the Lenders Fee Letter.


 


2.13.       AGENT’S
FEE. In addition to any
other fee or expense to be paid by the Borrowers on account of the Revolving
Credit or the Term Loan, the Borrowers shall pay the Agent the “Agent’s Fee”
and the other fees payable for the account of the Agent set forth in the Agent’s
Fee Letter.


 


2.14.       UNUSED
LINE FEE. In addition to any
other fee to be paid by the Borrowers on account of the Revolving Credit or the
Term Loan, the Borrowers shall pay the Agent for the account of each Revolving
Credit Lender, in accordance with its Revolving Credit Percentage Commitment, a
fee (the “Unused Line Fee”) of
0.25% per annum of the average difference, during the month just ended (or
relevant period with respect to the payment being made on the Termination Date)
between the Maximum Revolving Credit Ceiling and the aggregate of the unpaid
principal balance of the Loan Account (other than the outstanding principal
balance of the Term Loan) and the undrawn Stated Amount of L/Cs outstanding
during the relevant period. The Unused Line Fee shall be paid in arrears, on
the first day of each month after the Restatement Effective Date and on the
Termination Date.


 


2.15.       EARLY
TERMINATION FEE.


 


(a)             Subject to the provisions of Section 2.15(b),
in the event that the Termination Date occurs, on or prior to the second
anniversary of the Restatement Effective Date, the Borrowers shall pay to the
Agent, for the benefit of the Revolving Credit Lenders, a fee (the “Revolving Credit Early Termination Fee”)
determined and payable as follows:


 


(i)            0.75% of the highest Maximum Revolving Credit
Ceiling if the Termination Date occurs on or before January 1, 2008.


 


(ii)           0.50% of the highest Maximum Revolving Credit
Ceiling if the Termination Date occurs after January 1, 2008, but on or before
January 1, 2009.


 


(b)           No Revolving Credit Early Termination Fee
shall be payable (i) after January 1, 2009 or (ii) if the Termination Date
occurs as a result of funds borrowed from Bank of America or any of its
Affiliates.


 


(c)           The Revolving Credit Early Termination Fee
shall be allocated to the Revolving Credit Lenders pro rata based upon their
Revolving Credit Dollar Commitment.


 


(d)           The Borrowers shall have no right to reduce
the Maximum Revolving Credit Ceiling, provided, however,
that in connection with the sale or issuance of any of its equity interests to
any Person, in terms satisfactory to the Agent, the Borrowers shall, with at
least three (3) Business Days prior written notice to the Agent, have the
right to reduce the Maximum Revolving Credit Ceiling by $5,000,000 or an
integral multiple thereof, provided, however,
that


 


40

















 


no
such reduction in the Maximum Revolving Credit Ceiling shall be greater than
$75,000,000 in the aggregate and that no reduction in the Maximum Revolving
Credit Ceiling may be reinstated.


 


2.16.       CONCERNING
FEES.


 


(a)           In addition to any other right to which the
Agent is then entitled on account thereof, the Agent may assess an additional
fee payable by the Borrowers on account of the accommodation by the Agent, from
time to time, of the Borrowers’ request that the Agent depart or dispense with
one or more of the administrative provisions of this Agreement and/or the
Borrowers’ failure to comply with any of such provisions.


 


(i)            By way of non-exclusive example, the Agent
may assess a fee on account of any of the following:


 


(A)       The Borrowers’ failure to pay that amount which is necessary so that no
OverAdvance is outstanding (as required under Section 2.10(b) hereof).


 


(B)       The providing of a loan or advance under the Revolving Credit or
charging of the Loan Account such that an OverAdvance is made.


 


(C)       The foreshortening of any of the time frames with respect to the making
of Revolving Credit Loans as set forth in Section 2.5.


 


(D)       The Borrowers’ failure to provide a financial statement or report
within the applicable time frame provided for such report under Article 6.


 


(ii)           The inclusion of the foregoing right on the part of the Agent to assess
a fee does not constitute an obligation, on the part of the Agent, to waive any
provision of this Agreement under any circumstances. The assessment of any such
fee in any particular circumstance shall not constitute the Agent’s waiver of
any breach of this Agreement on account of which such fee was assessed nor a
course of action on which the Borrowers may rely.


 


(b)           The Borrowers shall not be entitled to any
credit, rebate or repayment of any fee earned by the Agent or any Revolving
Credit Lender or any Term Loan Lender pursuant to this Agreement or any Loan
Document notwithstanding any termination of this Agreement or suspension or
termination of the Agent’s and any Revolving Credit Lender’s or Term Loan
Lender’s respective obligation to make loans and advances hereunder.


 


41

















 


2.17.       AGENT’S
AND LENDERS’ DISCRETION.


 


(a)           Each reference in the Loan Documents to the
exercise of discretion or the like by the Agent, any Revolving Credit Lender or
any Term Loan Lender shall be to such Person’s reasonable exercise of its
judgment, in good faith, based upon such Person’s consideration of any such
factors as the Agent, any Revolving Credit Lender or any Term Loan Lender
believes, taking into account information of which that Person then has actual
knowledge:


 


(i)            Will or reasonably would be expected to
affect the value of the Collateral, the enforceability of the Agent’s
Collateral Interests therein, or the amount which the Agent would likely
realize therefrom (taking into account delays which may possibly be encountered
in the Agent’s realizing upon the Collateral and likely Costs of Collection).


 


(ii)           That any report or financial information delivered to the Agent or any
Revolving Credit Lender or any Term Loan Lender by or on behalf of the
Borrowers is incomplete, inaccurate, or misleading in any material manner or
was not prepared in accordance with the requirements of this Agreement.


 


(iii)          An increase in the likelihood that the Borrowers will become the
subject of a bankruptcy or insolvency proceeding.


 


(iv)          That the Borrowers are In Default.


 


(b)           In the exercise of such judgment, the Agent
and Revolving Credit Lender and Term Loan Lender may also take into account any
of the following factors:


 


(i)            Those included in, or tested by, the
definitions of “Eligible Inventory” and “Cost”.


 


(ii)           Changes in the current financial and business climate of the industry
in which any Borrower competes (having regard for such Borrower’s position in
that industry).


 


(iii)          Changes in general macroeconomic conditions which have a material
effect on any Borrower’s cost structure.


 


(iv)          Material changes in or to the mix of any Borrowers’ Inventory.


 


(v)           Changes in seasonality with respect to any Borrower’s Inventory and
patterns of retail sales.


 


(vi)          Changes in such other factors as the Agent and each Revolving Credit
Lender and Term Loan Lender reasonably determines as having a material bearing
on credit risks associated with the providing of loans and financial
accommodations to the Borrowers.


 


42

















 


(c)           The burden of establishing the failure of the
Agent or any Revolving Credit Lender or any Term Loan Lender to have acted in a
reasonable manner in such Person’s exercise of such discretion shall be upon
the Borrowers.


 


2.18.       PROCEDURES
FOR ISSUANCE OF L/CS.


 


(a)           Subject to the terms and conditions hereof
and the execution and delivery by Lead Borrower of a letter of credit
application on the Agent’s customary form (a “Letter of
Credit Application”), the Agent on behalf of the Revolving Credit
Lenders and in reliance upon the agreements of the Revolving Credit Lenders set
forth in this Section 2 and upon the representations and warranties of the
Borrowers contained herein, agrees, in its individual capacity, to issue,
extend, and renew for the account of a Borrower one or more L/Cs, in such form
as may be requested from time to time by the Lead Borrower and agreed to by the
Agent. Such Letter of Credit Application must be received by the Agent not
later than 11:00AM, at least two (2) Business Days, or such later date and
time as the Agent may agree in a particular instance in its sole discretion,
prior to the proposed issuance date or date of amendment, as the case may be,
of any L/C. In the case of a request for an initial issuance of an L/C, such
Letter of Credit Application shall specify in form and detail satisfactory to
the Agent: (A) the proposed issuance date of the requested L/C (which shall be
a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the
name and address of the beneficiary thereof; (E) the documents to be presented
by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the Agent may require. In the case of
a request for an amendment of any outstanding L/C, such Letter of Credit
Application shall specify in form and detail satisfactory to the Agent: (A) the
L/C to be amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such other
matters as the Agent may require. Additionally, the Lead Borrower shall furnish
to the Agent such other documents and information pertaining to such requested
L/C issuance or amendment, including any Issuer Documents, as the Agent may require.


 


Unless the
Agent has received written notice from any Revolving Credit Lender or the  Lead Borrower, at least one (1) Business Day
prior to the requested date of issuance or amendment of the applicable L/C,
that one or more applicable conditions contained in Article 4  shall not then be satisfied, then, subject to the terms and
conditions hereof, the Agent shall, on the requested date, issue an L/C for the
account of the applicable Borrower or enter into the applicable amendment, as
the case may be, in each case in accordance with the Agent’s usual and
customary business practices.


 


Promptly after
its delivery of any L/C or any amendment to an L/C to an advising bank with
respect thereto or to the beneficiary thereof, the Agent will also deliver to the
Lead Borrower a true and complete copy of such L/C or amendment.


 


43

















 


(b)           The Agent will cause the issuance of any L/C
so requested by the Lead Borrower, provided that,
at the time that the request is made, the Revolving Credit has not been
suspended as provided in Section 2.5(g) and if so issued:


 


(i)            The aggregate Stated Amount of all L/Cs then
outstanding, does not exceed Sixty Million Dollars ($60,000,000).


 


(ii)           The expiry of the L/C is not later than the earlier of Thirty (30) days
prior to the Maturity Date or the following:


 


(A)       Standby: One (1) year from initial issuance.


 


(B)       Documentary: Two Hundred Seventy (270) days from issuance.


 


(iii)          If the expiry of an L/C is later than the Maturity Date with respect to
the Revolving Credit, the Agent may require such L/C to be 105% cash
collateralized at its issuance.


 


(iv)          An OverAdvance will not result from the issuance of the subject L/C.


 


(c)           Unless otherwise specified herein, the amount
of an L/C at any time shall be deemed to be the Stated Amount of such L/C in
effect at such time; provided, however,
that with respect to any L/C that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic increase in the stated
amount thereof, the amount of such L/C shall be deemed to be the maximum Stated
Amount of such L/C after giving effect to all such increases, whether or not
such maximum Stated Amount is in effect at such time.


 


(d)           If the Lead Borrower so requests in any
applicable Letter of Credit Application, the Agent may, in its sole and
absolute discretion, agree to issue an L/C that has automatic extension
provisions (each, an “Auto-Extension Letter of
Credit”); provided that
any such Auto-Extension Letter of Credit must permit the Agent to prevent any
such extension at least once in each 12-month period (commencing with the date
of issuance of such L/C) by giving prior notice to the beneficiary thereof not
later than a day (the “Non-Extension Notice Date”)
in each such 12-month period to be agreed upon at the time such L/C is issued. Unless
otherwise directed by the Agent, the Lead Borrower shall not be required to
make a specific request for any such extension. Once an Auto-Extension Letter
of Credit has been issued, the Revolving Credit Lenders shall be deemed to have
authorized (but may not require) the Agent to permit the extension of such L/C
at any time to an expiry date not later than the Letter of Credit Expiration; provided, however, that the Agent shall not permit any such
extension if (A) it has determined that it would not be permitted, or would
have no obligation, at such time to issue such L/C in its revised form (as
extended) under the terms hereof (by reason of the provisions of Subsection
2.18(f) or otherwise), or (B) it has received notice (which may be by telephone
or in writing) on or before the day that is five (5) Business Days before the
Non-Extension Notice Date (1) that the Majority Lenders have elected not to
permit such extension or (2) from any Revolving Credit Lender or the Lead
Borrower that one or more of the applicable conditions specified in Article 4
is not then satisfied, and in each such case directing the Agent not to permit
such extension.


 


44

















 


(e)           Except where there has been gross negligence
or willful misconduct on the part of the Agent or any Revolving Credit Lender,
there shall not be any recourse to, nor liability of, the Agent or any
Revolving Credit Lender on account of


 


(i)            Any delay by an Issuer to issue an L/C;


 


(ii)           Any action or inaction of an Issuer on account of or in respect to, any
L/C.


 


(f)            Notwithstanding anything to the contrary
contained in this Section 2, the Agent shall not be under any obligation to
cause the Issuer to issue any L/C if:


 


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


 


(ii)           the issuance of such L/C would violate one or more policies of the
Agent;


 


(iii)          except as otherwise agreed by the Agent, such L/C is to be denominated
in a currency other than United States Dollars;


 


(iv)          a default of any Revolving Credit Lender’s obligations to fund under
this Section 2 exists or any Revolving Credit Lender is at such time a
Delinquent Revolving Credit Lender hereunder, unless the Agent has entered into
satisfactory arrangements with the Borrowers or such Revolving Credit Lender to
eliminate the Agent’s risk with respect to such Revolving Credit Lender;


 


(v)           the Agent shall not amend any L/C if the Agent would not be permitted
at such time to issue such L/C in its amended form under the terms hereof; or


 


(vi)          the Agent shall be under no obligation to amend any L/C if the Agent
would have no obligation at such time to issue such L/C in its amended form
under the terms hereof, or the beneficiary of such L/C does not accept the
proposed amendment to the L/C.


 


45

















 


2.19.       FEES FOR
L/CS.


 


(a)           The Borrowers shall pay to the Agent for the
benefit of the Revolving Credit Lenders a fee, on account of L/Cs, the issuance
of which had been procured by the Agent, quarterly in arrears, and on the
Termination Date and on the End Date, equal to:


 


(i)            The LIBOR Applicable Margin on account of
standby letters of credit.


 


(ii)           The LIBOR Applicable Margin minus 50 basis
points on account of documentary letters of credit.


 


(iii)          Following the occurrence and during the continuance of any Event of
Default, such fee shall be increased by Three Percent (3%) per annum.


 


(b)           In addition to the fee to be paid as provided
in Subsection 2.19(a), above, the Borrowers shall pay to the Agent (or to the
Issuer, if so requested by Agent), on demand, all issuance, processing,
negotiation, amendment, and administrative fees and other amounts charged by
the Issuer on account of, or in respect to, any L/C.


 


(c)           If any change in Applicable Law shall either:


 


(i)            impose, modify or deem applicable any
reserve, special deposit or similar requirements against letters of credit
heretofore or hereafter issued by any Issuer or with respect to which any
Revolving Credit Lender or any Issuer has an obligation to lend to fund
drawings under any L/C; or


 


(ii)           impose on any Issuer any other condition or requirements relating to
any such letters of credit;


 


and the result
of any event referred to in Section 2.19(c)(i) or 2.19(c)(ii), above, shall be
to increase the cost to any Revolving Credit Lender or to any Issuer of issuing
or maintaining any L/C (which increase in cost shall be the result of such
Issuer’s reasonable allocation among that Revolving Credit Lender’s or Issuer’s
letter of credit customers of the aggregate of such cost increases resulting
from such events), then, upon demand by the Agent and delivery by the Agent to
the Borrowers of a certificate of an officer of the subject Revolving Credit
Lender or the subject Issuer describing such change in law, executive order,
regulation, directive, or interpretation thereof, its effect on such Revolving
Credit Lender or such Issuer, and the basis for determining such increased costs
and their allocation, the Borrowers shall immediately pay to the Agent, from
time to time as specified by the Agent, such amounts as shall be sufficient to
compensate the subject Revolving Credit Lender or the subject Issuer for such
increased cost. Absent manifest error, any Revolving Credit Lender’s or any
Issuer’s determination of costs incurred under Section 2.19(c)(i) or
2.19(c)(ii), above, and the allocation, if any, of such costs among the
Borrowers and other letter of credit customers of such Revolving Credit Lender
or such Issuer, if done in good faith and made on an equitable basis and in
accordance with such officer’s certificate, shall be conclusive and binding on
the Borrowers.


 


46

















 


2.20.       CONCERNING
L/CS.


 


(a)           None of the Issuer, the Issuer’s
correspondents, any Revolving Credit Lender, the Agent, or any advising,
negotiating, or paying bank with respect to any L/C shall be responsible in any
way for:


 


(i)            The performance by any beneficiary under any
L/C of that beneficiary’s obligations to the Borrowers.


 


(ii)           The form, sufficiency, correctness, genuineness, authority of any
person signing; falsification; or the legal effect of; any documents called for
under any L/C if (with respect to the foregoing) such documents on their face
appear to be in order.


 


(b)           The Issuer may honor, as complying with the
terms of any L/C and of any drawing thereunder, any drafts or other documents
otherwise in order, but signed or issued by an administrator, executor, conservator,
trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, liquidator, receiver, or other legal representative of the party
authorized under such L/C to draw or issue such drafts or other documents.


 


(c)           Unless otherwise agreed to, in the particular
instance, the Borrowers hereby authorize any Issuer to:


 


(i)            Select an advising bank, if any.


 


(ii)           Select a paying bank, if any.


 


(iii)          Select a negotiating bank.


 


(d)           All directions, correspondence, and funds
transfers relating to any L/C are at the risk of the Borrowers. The Issuer
shall have discharged the Issuer’s obligations under any L/C which, or the
drawing under which, includes payment instructions, by the initiation of the
method of payment called for in, and in accordance with, such instructions (or
by any other commercially reasonable and comparable method). None of the Agent,
any Revolving Credit Lender, or the Issuer shall have any responsibility for
any inaccuracy, interruption, error, or delay in transmission or delivery by
post, telegraph or cable, or for any inaccuracy of translation.


 


(e)           The Agent’s, each Revolving Credit Lender’s,
each Term Loan Lender’s and the Issuer’s rights, powers, privileges and
immunities specified in or arising under this Agreement are in addition to any
heretofore or at any time hereafter otherwise created or arising, whether by
statute or rule of law or contract.


 


(f)            Except to the extent otherwise expressly
provided hereunder or agreed to in writing by the Issuer and the Borrowers, (i)
documentary L/Cs will be governed by the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce at the time of issuance shall apply to each
commercial L/C, and (ii) the rules of the ISP shall apply to each standby L/C.


 


47

















 


(g)           The obligations of the Borrowers under this
Agreement with respect to L/Cs are absolute, unconditional, and irrevocable and
shall be performed strictly in accordance with the terms hereof under all
circumstances, whatsoever including, without limitation, the following:


 


(i)            Any lack of validity or enforceability or
restriction, restraint, or stay in the enforcement of this Agreement, any L/C,
or any other agreement or instrument relating thereto.


 


(ii)           The Borrowers’ consent to any amendment or waiver of, or consent to the
departure from, any L/C.


 


(iii)          The existence of any claim, counterclaim, set-off, defense, or other
right which the Borrowers or any Affiliate may have at any time against the
beneficiary or any transferee of such L/C (or any Person for whom any such
beneficiary or any such transferee may be acting), the Issuer or any other
Person, whether in connection with this Agreement the transactions contemplated
hereby or by such L/C or any agreement or instrument relating thereto, or any
unrelated transaction.


 


(iv)          Any good faith honoring of a drawing under any L/C, which drawing
possibly could have been dishonored based upon a strict construction of the
terms of the L/C.


 


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


 


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


 


(vii)         Any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing, including any circumstance that might otherwise
constitute a defense available to, or a discharge of, the Borrowers or any
Affiliate.


 


(h)           The Lead Borrower shall promptly examine a
copy of each L/C and each amendment thereto that is delivered to the Lead
Borrower and, in the event of any claim of noncompliance with the Lead Borrower’s
instructions or other irregularity, the Lead Borrower shall immediately notify
the Issuer. The Borrowers shall be conclusively deemed to have waived any such
claim against the Issuer and its correspondents unless such notice is given as
aforesaid.


 


(i)            Upon receipt from the beneficiary of any L/C
of any notice of a drawing under such L/C, the Issuer shall notify the Lead
Borrower and the Agent thereof. Not later than


 


48

















 


11:00AM
on the date of any payment by the Issuer under a L/C, the Borrowers shall
reimburse the Issuer through the Agent in an amount equal to the amount of such
drawing. If the Borrowers fail to so reimburse the Issuer by such time, the
Agent shall promptly notify each Revolving Credit Lender of the payment date
and of the amount of the Unpaid Reimbursement Obligation. In such event, the
Borrowers shall be deemed to have requested a Revolving Credit Loan in all
respects bearing interest at the Base Margin Rate with a Drawdown Date as of
the date on which the Agent paid the draft presented for honor or otherwise
made such payment, in an amount equal to the amount of, such draft or other
payment, and the notice from the Agent to the Revolving Credit Lenders shall be
deemed to be a notice of a Loan Request made by the Agent (without regard to
the minimum and multiples specified in Section 2 for the principal amount of
Base Margin Loans, but subject to the amount of the unutilized portion of the
Maximum Revolving Credit Dollar Commitment and the conditions set forth in
Article 4).


 


(j)            No later than 1:00PM (Boston time) on the
Business Day next following the receipt of such notice, each Revolving Credit
Lender shall make available to the Agent, at the Agent’s Office, in immediately
available funds, such Revolving Credit Lender’s Revolving Credit Percentage
Commitment of such Unpaid Reimbursement Obligation, and to the extent not
otherwise reimbursed by the Borrowers pursuant to clause (k) below, together
with an amount equal to the product of (a) the average, computed for the period
referred to in clause (c) below, of the weighted average interest rate paid by
the Agent for federal funds acquired by the Agent during each day included in
such period, times (b) the amount equal to such Revolving Credit Lender’s
Revolving Credit Percentage Commitment of such Unpaid Reimbursement Obligation,
times (c) a fraction, the numerator of which is the number of days that elapse
from and including the date the Agent paid the draft presented for honor or
otherwise made payment to the date on which such Revolving Credit Lender’s
Revolving Credit Percentage Commitment of such Unpaid Reimbursement Obligation
shall become immediately available to the Agent, and the denominator of which
is 360. Any notice given by the Agent pursuant to this Section 2.20(j) may be
given by telephone if immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of
such notice.


 


(k)           With respect to any Unpaid Reimbursement
Obligation that is not fully refinanced by a Revolving Credit Loan in all
respects bearing interest at the Base Margin Rate because a Default or Event of
Default is then continuing, the conditions set forth in Article 4 cannot be
satisfied or for any other reason, the Borrowers shall be deemed to have
incurred from the Agent an extension of credit resulting from and in the amount
of the Unpaid Reimbursement Obligation that is not so refinanced, which
extension of credit shall be due and payable on demand (together with interest)
and shall bear interest at the default rate of interest for Revolving Credit
Loans bearing interest at the Base Margin Rate. In such event, each Revolving
Credit Lender’s payment to the Agent pursuant to this Section 2.20 shall be deemed payment in respect of its
participation in such extension of credit and shall constitute a funding of
such Revolving Credit Lender’s participation in such extension of credit in
satisfaction of its participation obligation under this Section 2.20.


 


(l)            Until each Revolving Credit Lender funds its
Revolving Credit Percentage Commitment of the Revolving Credit Loans or
participations as set forth in this Section 2.20 to reimburse the Agent for any
amount drawn under any L/C, interest in respect of such Revolving


 


49

















 


Credit
Lender’s Revolving Credit Percentage Commitment of such amount shall be solely
for the account of the Agent.


 


(m)          If any Revolving Credit Lender fails to make
available to the Agent any amount required to be paid by such Revolving Credit
Lender pursuant to the foregoing provisions of this Section 2.20 by the time
specified in this Section 2.20, the Agent shall be entitled to recover from
such Revolving Credit Lender (acting through the Agent), on demand, such amount
with interest thereon for the period from the date such payment is required to
the date on which such payment is immediately available to the Agent at a rate
per annum equal to the weighted average interest rate paid by the Agent for
federal funds acquired by the Agent during each day included in such period. A
certificate of the applicable Issuing Bank submitted to any Revolving Credit
Lender (through the Agent) with respect to any amounts owing under this clause
(m) shall be conclusive absent manifest error.


 


(n)           At any time after the Agent has made a
payment under any L/C and has received from any Revolving Credit Lender such
Revolving Credit Lender’s participation in respect of such payment in
accordance with this Section 2.20, if the Agent receives any payment in respect
of the related Unpaid Reimbursement Obligation or interest thereon (whether
directly from the Borrowers or otherwise, including proceeds of cash collateral
applied thereto by the Agent), the Agent will distribute to such Revolving
Credit Lender its Revolving Credit Percentage Commitment thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Revolving Credit Lender’s participation was outstanding) in
United States Dollars and in the same funds as those received by the Agent. If
any payment received by the Agent pursuant to this Section 2.20(n) is required
to be returned in connection with any bankruptcy or insolvency proceeding or
otherwise (including pursuant to any settlement entered into by the applicable
Issuer in its discretion), each Revolving Credit Lender shall pay to the Agent
its Revolving Credit Percentage Commitment thereof on demand of the Agent, plus
interest thereon from the date of such demand to the date such amount is
returned by such Revolving Credit Lender, at a rate per annum equal to the
weighted average interest rate paid by the Agent for federal funds acquired by
the Agent during each day included in such period. The obligations of the
Revolving Credit Lenders under the immediately preceding sentence shall survive
the payment in full of the Liabilities and the termination of this Agreement.


 


(o)           Each Revolving Credit Lender and the
Borrowers agree that, in paying any drawing under an L/C, the Agent shall not
have any responsibility to obtain any document (other than any sight draft,
certificates, and documents expressly required by the L/C) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. The Borrowers hereby
assume all risks of the acts or omissions of any beneficiary or transferee with
respect to its use of any L/C; provided,
however, that this assumption is not intended to, and shall not,
preclude Borrowers’ pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement. In
furtherance and not in limitation of the foregoing, the Agent may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and the Agent shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or


 


50

















 


purporting
to transfer or assign an L/C of the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for
any reason.


 


(p)           Upon the request of the Agent, (A) if the
Agent has honored any full or partial drawing request under any L/C and such
drawing has resulted in an extension of credit resulting from and in the amount
of the Unpaid Reimbursement Obligation pursuant to Section 2.20(k), or (B) if,
as of the Letter of Credit Expiration Date, any L/C or Unpaid Reimbursement
Obligation for any reason remains outstanding, the Borrowers shall, in each
case, immediately Cash Collateralize the then outstanding amount of all such
L/C or Unpaid Reimbursement Obligations. For purposes of this Section 2.20(p), “Cash Collateralize”
means to pledge and deposit with or deliver to the Agent, for the benefit of
the Revolving Credit Lenders, as collateral, cash or deposit account balances
pursuant to documentation in form and substance satisfactory to the Agent
(which documents are hereby consented to by the Revolving Credit Lenders). Derivatives
of such term have corresponding meanings. The Borrowers hereby grant to the
Agent, for benefit of the Revolving Credit Lenders, a security interest in all
such cash, deposit accounts and all balances therein and all proceeds of the
foregoing.


 


2.21.       CHANGED
CIRCUMSTANCES.


 


(a)           The Agent may advise the Borrowers that the
Agent has made the good faith determination (which determination shall be final
and conclusive) of any of the following:


 


(i)            Adequate and fair means do not exist for
ascertaining the rate for LIBOR Loans.


 


(ii)           The continuation of or conversion of any Loan to a LIBOR Loan has been
made impracticable or unlawful by the occurrence of a contingency that
materially and adversely affects the applicable market or the compliance by the
Agent or any Lender in good faith with any Applicable Law.


 


(iii)          The indices on which the interest rates for LIBOR Loans are based shall
no longer represent the effective cost to the Agent or any Lender for U.S.
dollar deposits in the interbank market for deposits in which it regularly
participates.


 


(b)           In the event that the Agent advises the
Borrowers of an occurrence described in Section 2.21(a), then, until the Agent
notifies the Borrowers that the circumstances giving rise to such notice no
longer apply:


 


(i)            The obligation of the Agent or each Revolving
Credit Lender or Term Loan Lender, as applicable to make loans of the type
affected by such changed circumstances or to permit the Borrowers to select the
affected interest rate as otherwise applicable to any Revolving Credit Loans or
all or any portion of the Term Loan shall be suspended.


 


(ii)           Any notice which the Lead Borrower had given the Agent with respect to
any LIBOR Loan, the time for action with respect to which has not occurred
prior to the


 


51

















 


Agent’s
having given notice pursuant to Section 2.21(a), shall be deemed at the option
of the Agent to not having been given.


 


2.22.       LENDERS’
COMMITMENTS.


 


(a)           Subject to Sections 16.1 and 16.2 (which
provide for assignments and assumptions of commitments), each Revolving Credit
Lender’s “Revolving Credit Percentage Commitment”,
and  “Maximum
Revolving Credit Dollar Commitment” (respectively so referred to
herein) is set forth on SCHEDULE
2.22, annexed hereto.


 


(b)           The obligations of the Revolving Credit
Lenders hereunder are several and not joint. The failure of any Revolving
Credit Lender to make any loan or advance under the Revolving Credit, to fund
any participation in L/Cs and SwingLine Loans, or to make any payment pursuant
to Section 19.9(c) on any date required hereunder shall not relieve any other
Revolving Credit Lender of its corresponding obligation to do so on such date,
and no Revolving Credit Lender shall be responsible for the failure of any
other Revolving Credit Lender to so make its Revolving Credit Percentage Commitment,
to purchase its participation, or to make its payment under Section 19.9(c). No
Revolving Credit Lender shall have any obligation to make any loan or advance
under the Revolving Credit in excess of the lesser of the following:


 


(i)            That Revolving Credit Lender’s Revolving
Credit Percentage Commitment of the subject loan or advance or of Availability.


 


(ii)           That Revolving Credit Lender’s Maximum Revolving Credit Dollar
Commitment.


 


Further, no
Revolving Credit Lender shall have any obligation to make any loan or advance
under the Revolving Credit if the aggregate loans and advances outstanding
under the Revolving Credit attributable to such Revolving Credit Lender, after
giving effect to the subject loan or advance, would exceed the Maximum Revolving
Credit Dollar Commitment of such Revolving Credit Lender.


 


(c)           No Revolving Credit Lender shall have any
liability to the Borrowers on account of the failure of any other Revolving
Credit Lender to provide any loan or advance under the Revolving Credit nor any
obligation to make up any shortfall which may be created by such failure.


 


(d)           The Revolving Credit Dollar Commitments,
Revolving Credit Commitment Percentages, and identities of the Revolving Credit
Lenders may be changed, from time to time by the reallocation or assignment of
Revolving Credit Dollar Commitments and Revolving Credit Commitment Percentages
amongst the Revolving Credit Lenders or with other Persons who determine to
become “Revolving Credit Lenders”, provided, however
unless an Event of Default has occurred (in which event, no consent of the
Borrowers is required) any assignment to a Person not then a Revolving Credit
Lender shall be subject to the prior consent of the Borrowers (not to be
unreasonably withheld), which consent will be deemed given unless the


 


52

















 


Borrowers
provide the Agent with written objection, not more than Five (5) Business Days
after the Agent shall have given the Borrowers written notice of a proposed
assignment).


 


(e)           Upon written notice given the Borrowers from
time to time by the Agent, of any assignment or allocation referenced in
Section 2.22(d):


 


(i)            The Borrowers shall execute one or more
replacement Revolving Credit Notes to reflect such changed Maximum Revolving
Credit Dollar Commitments, Revolving Credit Commitment Percentages, and
identities and shall deliver such replacement Revolving Credit Notes to the
Agent (which promptly thereafter shall deliver to the Borrowers the Revolving
Credit Notes so replaced) provided however,
in the event that a Revolving Credit Note is to be exchanged following its
acceleration or the entry of an order for relief under the Bankruptcy Code with
respect to the Borrowers, the Agent, in lieu of causing the Borrowers to
execute one or more new Revolving Credit Notes, may issue the Agent’s
Certificate confirming the resulting Revolving Credit Dollar Commitments and
Revolving Credit Percentage Commitments.


 


(ii)           Such change shall be effective from the effective date specified in such
written notice and any Person added as a Revolving Credit Lender shall have all
rights and privileges of a Revolving Credit Lender hereunder thereafter as if
such Person had been a signatory to this Agreement and any other Loan Document
to which a Revolving Credit Lender is a signatory and any Person removed as a
Revolving Credit Lender shall be relieved of any obligations or
responsibilities of a Revolving Credit Lender hereunder thereafter.


 


2.23.       REVOLVING
CREDIT FUNDING PROCEDURES. Subject
to Section 2.24:


 


(a)          The Agent shall advise each Revolving Credit
Lender, no later than 2:00PM on a date on which any Revolving Credit Loan
(other than a SwingLine Loan) is to be made on that date. Such advice, in each
instance, may be by telephone or facsimile transmission, provided
that if such advice is by telephone, it shall be confirmed in
writing. Advice of a Revolving Credit Loan shall include the amount of and
interest rate applicable to the subject Revolving Credit Loan.


 


(b)          Subject to that Revolving Credit Lender’s
Revolving Credit Dollar Commitment, each Revolving Credit Lender, by no later
than the end of business on the day on which the subject Revolving Credit Loan
is to be made, shall Transfer that Revolving Credit Lender’s Revolving Credit
Percentage Commitment of the subject Revolving Credit Loan to the Agent.


 


(c)          Unless the Agent shall have received notice
from a Revolving Credit Lender at least one (1) Business Day prior to the
proposed date on which any Revolving Credit Loan (other than a SwingLine Loan)
is to be made that such Revolving Credit Lender will not make available to the
Agent such Revolving Credit Lender’s Revolving Credit Percentage Commitment of
such Revolving Credit Loan, the Agent may assume that such Revolving Credit
Lender has made such Revolving Credit Percentage Commitment of such Revolving
Credit Loan available on such date, and the Agent may, in reliance upon such
assumption, make available to the Borrowers a corresponding amount. In such
event, if a Revolving Credit Lender has not in fact made its


 


53

















 


Revolving Credit Percentage Commitment of
such Revolving Credit Loan available, then the applicable Revolving Credit
Lender and the Borrowers severally agree to pay to the Agent forthwith on
demand such corresponding amount in immediately available funds with interest
thereon, for each day from and including the date such amount is made available
to the Borrowers to but excluding the date of payment to the Agent, at (A) in
the case of a payment to be made by such Revolving Credit Lender, the greater
of the Federal Funds Rate and a rate determined by the Agent in accordance with
banking industry rules on interbank compensation and (B) in the case of a
payment to be made by the Borrowers, the interest rate applicable to Base Rate
Loans. If the Borrowers and such Revolving Credit Lender shall pay such
interest to the Agent for the same or an overlapping period, the Agent shall
promptly remit to the Borrowers the amount of such interest paid by the
Borrowers for such period.


 


(d)          Unless the Agent shall have received notice
from the Lead Borrower at least one (1) Business Day prior to the date on which
any payment is due to the Agent for its account or the account of the Revolving
Credit Lenders hereunder that the Borrowers will not make such payment, the
Agent may assume that the Borrowers have made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute the
amount due. In such event, if the Borrowers have not in fact made such payment,
then each of the Revolving Credit Lenders severally agrees to repay to the
Agent forthwith on demand the amount so distributed to such Revolving Credit
Lender, in immediately available funds with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Agent, at the greater of the Federal Funds Rate and a
rate determined by the Agent in accordance with banking industry rules on
interbank compensation. A statement of the Agent submitted to such Revolving
Credit Lender with respect to any amounts owing under this paragraph shall be
conclusive (absent manifest error) evidence of the amount due and owing to the
Agent by such Revolving Credit Lender.


 


2.24.       SWINGLINE
LOAN PROCEDURES.


 


(a)          In the event that, when a Revolving Credit
Loan is requested, the aggregate unpaid balance of the SwingLine Loan is less
than the SwingLine Loan Ceiling, then the SwingLine Lender may advise the Agent
that the SwingLine Lender has determined to include up to the amount of the
requested Revolving Credit Loan as part of the SwingLine Loan. In such event,
the SwingLine Lender shall Transfer the amount of the requested Revolving
Credit Loan to the Agent.


 


(b)           The SwingLine Loan shall be converted to a
Revolving Credit Loan in which all Revolving Credit Lenders participate as
follows:


 


(i)            At any time and from time to time, the
SwingLine Lender may advise the Agent that all, or any part of the SwingLine
Loan is to be converted to a Revolving Credit Loan in which all Revolving
Credit Lenders participate.


 


(ii)            At the initiation of a Liquidation, the
then entire unpaid principal balance of the SwingLine Loan shall be converted
to a Revolving Credit Loan in which all Revolving Credit Lenders participate.


 


54
















 


In either such event, the Agent shall advise
each Revolving Credit Lender of such conversion as if, and with the same effect
as if such conversion were the making of a Revolving Credit Loan as provided in
Section 2.1.


 


(c)           The SwingLine
Lender, in separate capacities, may also be the Agent and a Revolving Credit
Lender.


 


(d)           The SwingLine
Lender, in its capacity as SwingLine Lender, is not a “Revolving Credit Lender”
for any of the following purposes:


 


(i)             Except as
otherwise specifically provided in the relevant Section, any distribution
pursuant to Section 2.26.


 


(ii)            Determination
of whether the requisite Loan Commitments have Consented to action requiring
such Consent.


 


2.25.       AGENT’S COVERING OF FUNDING.


 


(a)           Subject to the
provisions of Section 2.22 hereof, each Revolving Credit Lender shall make
available to the Agent, as provided herein, that Revolving Credit Lender’s
Revolving Credit Percentage Commitment of the following:


 


(i)            Each Revolving
Credit Loan, up to the maximum amount of that Revolving Credit Lender’s
Revolving Credit Dollar Commitment of the Revolving Credit Loans.


 


(ii)           Up to the maximum
amount of that Revolving Credit Lender’s Revolving Credit Dollar Commitment of
each L/C Drawing (to the extent that such L/C Drawing is not “covered” by a
Revolving Credit Loan as provided herein).


 


(b)           In all
circumstances, the Agent may:


 


(i)            Assume that each
Revolving Credit Lender, subject to Section 2.25(a), timely shall make
available to the Agent that Revolving Credit Lender’s Revolving Credit Percentage
Commitment of each Revolving Credit Loan, notice of which is provided pursuant
to Section 2.23 and shall make available, to the extent not “covered” by a
Revolving Credit Loan, that Revolving Credit Lender’s Revolving Credit
Percentage Commitment of any honoring of an L/C.


 


(ii)           In reliance upon
such assumption, make available the corresponding amount to the Borrowers.


 


(iii)           Assume that each
Revolving Credit Lender timely shall pay, and shall make available, to the
Agent all other amounts which that Revolving Credit Lender is obligated to so
pay and/or make available hereunder or under any of the Loan Documents.


 


55

















 


(c)           In
the event that, in reliance upon any of such assumptions, the Agent makes available,
a Revolving Credit Lender’s Revolving Credit Percentage Commitment of one or
more Revolving Credit Loans, or any other amount to be made available hereunder
or under any of the Loan Documents, which amount a Revolving Credit Lender (a “Delinquent Revolving Credit Lender”) fails to provide to the
Agent within One (1) Business Day of written notice of such failure, then:


 


(i)            The amount which
had been made available by the Agent is an “Agent’s
Cover” (and is so referred to herein).


 


(ii)           All interest paid
by the Borrowers on account of the Revolving Credit Loan or coverage of the
subject L/C Drawing which consist of the Agent’s Cover shall be retained by the
Agent until the Agent’s Cover, with interest, has been paid.


 


(i)            The Delinquent Revolving Credit
Lender shall pay to the Agent, on demand, interest at a rate equal to the
prevailing federal funds rate on any Agent’s Cover in respect of that
Delinquent Revolving Credit Lender.


 


(ii)           The Agent shall have succeeded to all
rights to payment to which the Delinquent Revolving Credit Lender otherwise
would have been entitled hereunder in respect of those amounts paid by or in
respect of the Borrowers on account of the Agent’s Cover together with interest
until it is repaid. Such payments shall be deemed made first towards the
amounts in respect of which the Agent’s Cover was provided and only then
towards amounts in which the Delinquent Revolving Credit Lender is then
participating. For purposes of distributions to be made pursuant to Section
2.26(a) (which relates to ordinary course distributions) or Section 13.6 (which
relates to distributions of proceeds of a Liquidation) below, amounts shall be
deemed distributable to a Delinquent Revolving Credit Lender (and consequently,
to the Agent to the extent to which the Agent is then entitled) at the highest
level of distribution (if applicable) at which the Delinquent Revolving Credit
Lender would otherwise have been entitled to a distribution.


 


(iii)          Subject to Subsection 2.25(c)(iv), the
Delinquent Revolving Credit Lender shall be entitled to receive any payments
from the Borrowers to which the Delinquent Revolving Credit Lender is then
entitled, provided however there shall be deducted
from such amount and retained by the Agent any interest to which the Agent is
then entitled on account of Section 2.25(c)(ii), above.


 


(vi)          A Delinquent
Revolving Credit Lender shall not be relieved of any obligation of such
Delinquent Revolving Credit Lender hereunder (all and each of which shall
constitute continuing obligations on the part of any Delinquent Revolving
Credit Lender).


 


56

















 


(d)           A Delinquent
Revolving Credit Lender may cure its status as a Delinquent Revolving Credit
Lender by paying the Agent the aggregate of the following:


 


(i)            The Agent’s Cover
(to the extent not previously repaid by the Borrowers and retained by the Agent
in accordance with Subsection 2.25(c)(iv), above) with respect to that
Delinquent Revolving Credit Lender.


 


Plus


 


(ii)           The aggregate of
the amount payable under Subsection 2.25(c)(iii), above (which relates to
interest to be paid by that Delinquent Revolving Credit Lender).


 


Plus


 


(iii)           All such costs and
expenses as may be incurred by the Agent in the enforcement of the Agent’s
rights against such Delinquent Revolving Credit Lender.


 


2.26.       ORDINARY COURSE DISTRIBUTIONS. This Section 2.26 applies unless the
provisions of Section 13.6 (which relates to distributions in the event of a
Liquidation) becomes operative.


 


(a)           Weekly, on such day
as may be set from time to time by the Agent (or more frequently at the Agent’s
option) the Agent and each Revolving Credit Lender shall settle up on amounts
advanced under the Revolving Credit and collected funds received in the
Concentration Account.


 


(b)           The Agent shall
distribute to the SwingLine Lender and to each Revolving Credit Lender, such
Person’s respective pro-rata share of interest payments on the Revolving Credit
Loans when applied by the Agent as provided in Section 8.5(a). For purposes of
calculating interest due to a Revolving Credit Lender, that Revolving Credit
Lender shall be entitled to receive interest on the actual amount contributed
by that Revolving Credit Lender towards the principal balance of the Revolving
Credit Loans outstanding during the applicable period covered by the interest
payment made by the Borrowers. Any net principal reductions to the Revolving
Credit Loans received by the Agent in accordance with the Loan Documents during
such period shall not reduce such actual amount so contributed, for purposes of
calculation of interest due to that Revolving Credit Lender, until the Agent
has distributed to that Revolving Credit Lender its pro-rata share thereof.


 


(c)           The Agent shall
distribute to each Term Loan Lender such Person’s respective pro-rata share of
interest payments on the Term Loan when applied by the Agent as provided in
Section 8.5(a). For purposes of calculating interest due to a Term Loan Lender,
that Term Loan Lender shall be entitled to receive interest on the actual amount
contributed by that Term Loan Lender towards the principal balance of the Term
Loan outstanding during the applicable period covered by the interest payment
made by the Borrowers. Any net principal reductions to the Term Loan received
by the Agent in accordance with the Loan Documents during such period shall not
reduce such actual amount so contributed, for purposes of calculation of
interest due to


 


57

















 


that
Term Loan Lender, until the Agent has distributed to that Term Loan Lender its
pro-rata share thereof.


 


(d)           The Agent shall
distribute fees paid on account of the Revolving Credit in accordance with the
terms of the Agreement.


 


(e)           The Agent shall
distribute fees paid on account of the Term Loan in accordance with the terms
of the Agreement.


 


(f)            No Revolving Credit
Lender shall have any interest in, or right to receive any part of, the Agent’s
Fee to be paid by the Borrowers to the Agent pursuant to this Agreement.


 


(g)           Any amount received
by the Agent as reimbursement for any cost or expense (including without
limitation, attorneys’ reasonable fees) shall be distributed by the Agent to
that Person which is entitled to such reimbursement as provided in this
Agreement (and if such Person(s) is (are) the Revolving Credit Lenders or the
Term Loan Lenders, pro-rata based upon their respective Revolving Credit
Commitment Percentages or Term Loan Percentages, as applicable, at the date on
which the expense, in respect of which such reimbursement is being made, was
incurred).


 


(h)          Each
distribution pursuant to this Section 2.26 is subject to Section 2.25(c),
above.


 


2.27.       JOINT AND SEVERAL LIABILITY OF BORROWERS.


 


(a)          Each
Borrower is accepting joint and several liability hereunder and under the other
Loan Documents in consideration of the financial accommodations to be provided
by the Lenders under this Agreement, for the mutual benefit, directly and
indirectly, of each Borrower and in consideration of the undertakings of the
other Borrowers to accept joint and several liability for the Liabilities.


 


(b)          Each
Borrower, jointly and severally, hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and several
liability with the other Borrowers, with respect to the payment and performance
of all of the Liabilities (including any Liabilities arising under this Section
2.27), it being the intention of the parties hereto that all the Liabilities
shall be the joint and several obligations of each Borrower without preferences
or distinction among them.


 


(c)          If
and to the extent that any Borrower shall fail to make any payment with respect
to any of the Liabilities as and when due or to perform any of the Liabilities
in accordance with the terms thereof, then in each such event the other
Borrowers will make such payment with respect to, or perform, such Liability.


 


(d)          The
Liabilities of each Borrower under this Agreement and pursuant to the
provisions of this Section 2.27 constitute the absolute and unconditional, full
recourse Liabilities of each Borrower enforceable against each Borrower to the
full extent of its properties and assets, irrespective of the validity,
regularity or enforceability of this Agreement or any other


 


58

















 


circumstances whatsoever.


 


(e)          Except
as otherwise expressly provided in this Agreement, each Borrower hereby waives
notice of acceptance of its joint and several liability, notice of the
occurrence of any Default, Event of Default, or of any demand for any payment
under this Agreement, notice of any action at any time taken or omitted by
Agent or Lenders under or in respect of any of the Liabilities, any requirement
of diligence or to mitigate damages and, generally, to the extent permitted by
applicable law, all demands, notices and other formalities of every kind in
connection with this Agreement (except as otherwise provided in this Agreement).
Each Borrower hereby assents to, and waives notice of, any extension or
postponement of the time for the payment of any of the Liabilities, the
acceptance of any payment of any of the Liabilities, the acceptance of any
partial payment thereon, any waiver, consent or other action or acquiescence by
Agent or Lenders at any time or times in respect of any default by any Borrower
in the performance or satisfaction of any term, covenant, condition or
provision of this Agreement, any and all other indulgences whatsoever by Agent
or Lenders in respect of any of the Liabilities, and the taking, addition,
substitution or release, in whole or in part, at any time or times, of any
security for any of the Liabilities or the addition, substitution or release,
in whole or in part, of any Borrower. Without limiting the generality of the
foregoing, each Borrower assents to any other action or delay in acting or
failure to act on the part of Agent or any Lender with respect to the failure
by any Borrower to comply with any of its respective Liabilities, including,
without limitation, any failure strictly or diligently to assert any right or
to pursue any remedy or to comply fully with applicable laws or regulations
thereunder, which might, but for the provisions of this Section 2.27 afford
grounds for terminating, discharging or relieving any Borrower, in whole or in
part, from any of its obligations under this Section 2.27, it being the
intention of each Borrower that, so long as any of the Liabilities hereunder
remain unsatisfied, the obligations of each Borrower under this Section 2.27
shall not be discharged except by performance and then only to the extent of
such performance. The obligations of each Borrower under this Section 2.27
shall not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar proceeding
with respect to any Borrower or Agent or any Lender.


 


(f)           Each
Borrower represents and warrants to Agent and Lenders that such Borrower is
currently informed of the financial condition of Borrowers and of all other
circumstances which a diligent inquiry would reveal and which bear upon the
risk of nonpayment of the Liabilities. Each Borrower further represents and
warrants to Agent and Lenders that such Borrower has read and understands the
terms and conditions of the Loan Documents. Each Borrower hereby covenants that
such Borrower will continue to keep informed of the Borrowers’ financial
condition, the financial condition of other guarantors, if any, and of all
other circumstances which bear upon the risk of nonpayment or nonperformance of
the Liabilities.


 


(g)          Each
Borrower waives all rights and defenses arising out of an election of remedies
by Agent or any Lender, even though that election of remedies, such as a
foreclosure with respect to security for a guaranteed obligation, has destroyed
Agent’s or such Lender’s rights of subrogation and reimbursement against such
Borrower.


 


(h)          The
provisions of this Section 2.27 are made for the benefit of Agent, Lenders and


 


59

















 


their respective successors and assigns, and
may be enforced by it or them from time to time against any or all Borrowers as
often as occasion therefor may arise and without requirement on the part of
Agent, Lender, successor or assign first to marshal any of its or their claims
or to exercise any of its or their rights against any Borrower or to exhaust
any remedies available to it or them against any Borrower or to resort to any
other source or means of obtaining payment of any of the Liabilities hereunder
or to elect any other remedy. The provisions of this Section 2.27 shall remain
in effect until all of the Liabilities shall have been paid in full or
otherwise fully satisfied. If at any time, any payment, or any part thereof,
made in respect of any of the Liabilities, is rescinded or must otherwise be
restored or returned by Agent or any Lender upon the insolvency, bankruptcy or
reorganization of any Borrower, or otherwise, the provisions of this Section
2.27 will forthwith be reinstated in effect, as though such payment had not
been made.


 


(i)           Each
Borrower hereby agrees that it will not enforce any of its rights of
contribution or subrogation against any other Borrower with respect to any
liability incurred by it hereunder or under any of the other Loan Documents,
any payments made by it to Agent or Lenders with respect to any of the
Liabilities or any collateral security therefor until such time as all of the
Liabilities have been paid in full in cash. Any claim which any Borrower may
have against any other Borrower with respect to any payments to Agent or any
Lender hereunder or under any other Loan Documents are hereby expressly made
subordinate and junior in right of payment, without limitation as to any
increases in the Liabilities arising hereunder or thereunder, to the prior
payment in full in cash of the Liabilities and, in the event of any insolvency,
bankruptcy, receivership, liquidation, reorganization or other similar
proceeding under the laws of any jurisdiction relating to any Borrower, its
debts or its assets, whether voluntary or involuntary, all such Liabilities
shall be paid in full in cash before any payment or distribution of any
character, whether in cash, securities or other property, shall be made to any
other Borrower therefor.


 


(j)           Each
Borrower hereby agrees that, after the occurrence and during the continuance of
any Default or Event of Default, the payment of any amounts due with respect to
the indebtedness owing by any Borrower to any other Borrower is hereby
subordinated to the prior payment in full in cash of the Liabilities. Each
Borrower hereby agrees that after the occurrence and during the continuance of
any Default or Event of Default, such Borrower will not demand, sue for or
otherwise attempt to collect any indebtedness of any other Borrower owing to
such Borrower until the Liabilities shall have been paid in full in cash. If,
notwithstanding the foregoing sentence, such Borrower shall collect, enforce or
receive any amounts in respect of such indebtedness, such amounts shall be
collected, enforced and received by such Borrower as trustee for Agent, and
such Borrower shall deliver any such amounts to Agent for application to the
Liabilities.


 


ARTICLE III.        THE
TERM LOANS


 


3.1.         COMMITMENT TO LEND. (a) In connection with the Existing Loan
Agreement, each Term Loan A Lender made a loan to Gander in the amount of its
Term Loan Percentage of Term Loan A in the principal amount of $20,000,000.


 


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(b)           Subject to the terms
and conditions set forth in this Agreement, on the Restatement Effective
Date  each Term Loan B Lender agrees to
lend to the Borrowers the amount of its Term Loan Percentage of Term Loan B in
the principal amount of $40,000,000.


 


3.2.         THE TERM NOTES. Term Loan A, issued by Term Loan A Lenders,
shall be evidenced by separate promissory notes of the Borrowers, each in
substantially the form of Exhibit G-1 hereto (each a “Term Note A”), with the Term Notes previously issued to Term
Loan A Lenders under the Existing Loan Agreement being amended and restated on
the Restatement Effective Date to reference the Borrowers. Term Loan B, issued
by Term Loan B Lenders, shall be evidenced by separate promissory notes of the
Borrowers, each in substantially the form of Exhibit G-2 hereto (each a “Term Note B”) and issued to the Term Loan B Lenders on the
Restatement Effective Date. The Borrowers
irrevocably authorize each Term Loan Lender to make or cause to be made a
notation on such Term Loan Lender’s records reflecting the original principal
amount of such Term Loan Lender’s portion of the Term Loan and, at or about the
time of the Term Loan Lender’s receipt of any principal payment on the Term
Note, an appropriate notation on such Term Loan Lender’s records reflecting
such payment. The aggregate unpaid amount set forth on each Term Loan Lender’s
records shall be prima facie evidence of the
principal amount thereof owed and unpaid on such Term Loan Lender’s Term Loan,
but the failure to record, or any error in so recording, any such amount on
such Term Loan Lender’s records shall not affect the obligations of the
Borrowers hereunder or under any Term Notes to make payments of principal of
and interest on the Term Notes when due.


 


3.3.         PAYMENTS OF PRINCIPAL OF TERM LOANS.


 


(a)           Term Loan A.


 


(i)            Except as contemplated by Section
13.6, the Borrowers may not make
any prepayments of principal on account of Term Loan A until the Borrowers’
Revolving Credit Obligations to the Revolving Credit Lenders have been paid in
full and the Revolving Credit Dollar Commitments have been terminated; provided, however, from the period commencing on the first
anniversary of the Restatement Effective Date through the Maturity Date, the
Borrowers may prepay Term Loan A in whole or in part, provided
that at the time of such prepayment:


 


(A)       the Borrowers are not In Default, and no
Event of Default exists or would occur as a result of such prepayment,


 


(B)       the Borrowers shall have delivered to the
Agent evidence for the 2 month period ending immediately prior to the
prepayment of Term Loan A demonstrating, in form and substance satisfactory to
the Agent, that Availability was greater than $50,000,000 at all times during
such 2 month period, and


 


(C)       the Borrowers shall have delivered to the
Agent pro forma financial statements for the succeeding period of 2 months
demonstrating, in form and substance satisfactory to the Agent, that
Availability will exceed $50,000,000 at all times during such 2 month period
after giving effect to the prepayment of Term Loan A.


 


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(b)           Term Loan B.


 


(i)            Mandatory Payments.


 


(A)       The Borrowers shall repay Term Loan B in
the amounts set forth in the table below to the Agent for the account of the
Term Loan B Lenders at the times therein specified: 


 


	
  DATE

  	
   

  	
  AMOUNT

  
	
  December 31,
  2008

  	
   

  	
  $2,500,000

  
	
  July 31,
  2009

  	
   

  	
  $2,500,000

  
	
  December 31,
  2009

  	
   

  	
  $5,000,000

  
	
  July 31,
  2010

  	
   

  	
  $5,000,000

  
	
  December 31,
  2010

  	
   

  	
  $6,250,000

  
	
  March 31,
  2011

  	
   

  	
  $6,250,000

  
	
  June 30,
  2011

  	
   

  	
  $6,250,000

  
	
  September
  30, 2011

  	
   

  	
  $6,250,000

  
	
  Maturity
  Date with respect to

  Term Loan B

  	
   

  	
  Remaining
  Principal Balance of

  Term Loan B

  



 


(B)       The Borrowers shall repay Term Loan B in
an amount equal to 50% of Overton’s Excess Cash Flow (the “Excess Cash
Flow Payment”) (i) for the Fiscal year 2009, on July 31, 2010, and
(ii) for the Fiscal year 2010, on July 31, 2011, so long as the Excess Cash
Flow Payment Condition is satisfied as determined with reference to the then
most recent Borrowing Base Certificate. If 
the Borrowers are unable to meet the Excess Cash Flow Payment Condition
on the applicable date of payment, the 
Borrowers  shall repay Term Loan B
in an amount equal to the Excess Cash Flow Payment plus
any interest that has accrued thereon on the last day of the subsequent Fiscal
quarter so long as the Excess Cash Flow Payment Condition is satisfied as
determined by reference to the then most recent Borrowing Base Certificate. Any
amount of Excess Cash Flow Payment not repaid on the date or dates set forth
above (whether or not the Excess Cash Flow Payment Condition is satisfied) shall
bear interest at LIBOR plus the Term
Loan B Applicable Margin plus 2.0% until
such repayment is made.


 


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(C)       Notwithstanding anything in clause (A) to
the contrary, the Borrowers shall not make any repayment referred to in clause
(A), and no Term Loan B Lender shall accept such repayment, and an Event of
Default shall occur under Section 11.1, (I) if the Borrowers are In Default, or
an Event of Default exists or would occur as a result of such repayment, or
(II) in the event that Availability immediately before or after giving effect
to any repayment referred to in clause (A) would be less than 10% of the lesser
of (1) the then-current Maximum Revolving Credit Ceiling or (2) (x) the
then-current Borrowing Base plus (y) the
Term Loan A to Value Reserve (and, at any time after the Term Loan B Guaranties
have been released or otherwise terminated and so long as Term Loan B is
outstanding, the Term Loan B to Value Reserve) less
(z) Availability Reserves.


 


Prepayments
of Term Loan B shall be applied to reduce mandatory prepayments under clause
(A) above in the direct order of maturity.


 


(ii)           Optional Prepayments. Except as
contemplated by Section 13.6, the Borrowers
may not make any prepayments of principal on account of Term Loan B until the
Borrowers’ Revolving Credit Obligations to the Revolving Credit Lenders and
Borrowers’ Term Loan A Obligations to the Term Loan A Lenders have been paid in
full and the Revolving Credit Dollar Commitments and Term Loan A Commitments
have been terminated; provided, however,
that the Borrowers may prepay
Term Loan B in whole or in part at any time without penalty or premium, subject
to, in the case of prepayment of LIBOR borrowings, reimbursement of the Term B
Lenders’ breakage and redeployment costs, provided further
that: 


 


(A)       the Borrowers are not In Default, and no
Event of Default exists or would occur as a result of such prepayment;


 


(B)       the Borrowers shall have delivered to the
Agent evidence demonstrating, in form and substance satisfactory to the Agent,
that Availability for the period ending immediately prior to the prepayment of
the Term Loan B was equal to or greater than 20% of the lesser of (1) the
then-current Maximum Revolving Credit Ceiling or (2) (x) the then-current
Borrowing Base plus (y) the Term Loan A to Value
Reserve (and, at any time after the Term Loan B Guaranties have been released
or otherwise terminated and so long as Term Loan B is outstanding, the Term
Loan B to Value Reserve) less (z)
Availability Reserves; and


 


(C)       the Borrowers shall have delivered to the
Agent pro forma financial statements for the succeeding period of six months
demonstrating, in form and substance satisfactory to the Agent, that
Availability will equal or exceed 20% of the lesser of (1) the then-current
Maximum Revolving Credit Ceiling or (2) (x) the then-current Borrowing Base plus (y) the Term Loan A to Value Reserve (and, at any time
after the Term Loan B Guaranties have been released or otherwise terminated and
so long as Term Loan B is outstanding, the


 


63

















 


Term
Loan B to Value Reserve) less (z)
Availability Reserves at all times during such six month period after giving
effect to such prepayment of the Term Loan B.


 


Prepayments
of Term Loan B shall be applied to reduce mandatory prepayments under clause
(b)(i)(A) above in the direct order of maturity.


 


(c)           No amount repaid
with respect to the Term Loan may be reborrowed. In the event of any repayment
or prepayment of any Term Loan on any day other than an Interest Payment Date,
such payment shall be accompanied by all interest accrued with respect to the
principal amount being repaid.


 


(d)           The Borrowers promise to pay (a) on the
Maturity Date for Term Loan A, and there shall become absolutely due and
payable on such Maturity Date, the amount outstanding under the Term Loan A
facility on such date, together with any and all accrued and unpaid interest
thereon and fees in connection with Term Loan A, and (b) subject to the provisions
of Section 3.3(b)(i)(C), on the Maturity Date for Term Loan B, and there shall
become absolutely payable on such Maturity Date, the amount outstanding under
the Term Loan B facility on such date, together with any and all accrued and
unpaid interest thereon and fees in connection with Term Loan B.


 


3.4.         TERM LOAN A EARLY TERMINATION FEE. If the Termination Date occurs, on or prior
to July 1, 2008, the Borrowers
shall pay to the Agent for the pro  rata accounts of the Term Loan
A Lenders, in view of the impracticality and extreme difficulty of ascertaining
the actual amount of damages to the Term Loan A Lenders or profits lost by the
Term Loan A Lenders as a result thereof, and by mutual agreement of the parties
as to a reasonable estimation and calculation of the lost profits or damages of
the Term Loan A Lenders, a fee with respect to each such prepayment (the “Term Loan A Early Termination Fee”) in an amount equal to
0.50% of the aggregate outstanding principal amount of the Term Loan A if the
Termination Date occurs on or before July 1, 2008. There shall be no Term Loan
A Early Termination Fee payable if the Termination Date occurs after July 1,
2008.


 


3.5.         INTEREST ON TERM LOAN.


 


(a) Term Loan A


 


(i)            The outstanding amount of Term Loan
A shall bear interest until repaid at the rate per annum equal to the sum of
Base plus 1.25% unless timely
notice is given that all or a portion of Term Loan A is to be converted to a
LIBOR Loan; and


 


(ii)           each portion of the Term Loan A which
consists of a LIBOR Loan shall bear interest at the sum of LIBOR plus 2.75%


 


(b)  Term Loan B


 


(i)            The outstanding amount of Term Loan
B shall bear interest until repaid at the rate per annum equal to the sum of
Base plus the Term Loan B Applicable Margin


 


64

















 


unless
timely notice is given that all or a portion of Term Loan B is to be converted
to a LIBOR Loan; and


 


(ii)           each portion of Term Loan B which
consists of a LIBOR Loan shall bear interest at the sum of LIBOR plus the Term Loan B Applicable Margin.


 


(c)  Subject to, and in
accordance with, the provisions of this Agreement, the Borrowers may cause all
or a part of the unpaid principal balance of any Term Loan to bear interest
determined by reference to Base or LIBOR as specified from time to time by the
Borrowers. The Borrowers shall notify the Agent, such notice to be irrevocable,
at least two (2) LIBOR Business Days prior to the Drawdown Date if all or any
portion of such Term Loan is to bear interest at the LIBOR Offer Rate. After a
Term Loan has been made, the provisions of Section 2.5 shall apply mutatis mutandis with respect to all or any portion of such
Term Loan so that the Borrowers may have the same interest rate options with
respect to all or any portion of the Term Loan as it would be entitled to with
respect to Revolving Credit Loans.


 


(d)  The Borrowers shall not
select, renew, or convert any interest rate for all or any portion of the Term
Loan such that there are more than four (4) portions of the Term Loans which
are LIBOR Loans at any one time.


 


(e)  The Borrowers shall pay
accrued and unpaid interest on each Term Loan in arrears as follows:


 


(i) on the applicable Interest Payment Date for the relevant portion of
the Term Loan,


 


(ii) on the applicable Termination Date and on the End Date, and


 


(iii) following the occurrence of any Event of Default, with such
frequency as may be determined by the Agent.


 


(f)  Following the occurrence and
continuance of any Event of Default, at the option of the Agent or at the
instruction of the SuperMajority Term Loan A Lenders or SuperMajority Term Loan
B Lenders, as the case may be, interest shall accrue and shall be payable on
the unpaid principal balance of the Term Loan A or Term Loan B, as the case may
be, at a rate which is the aggregate of the rate applicable to the unpaid
principal balance of such Term Loan as provided in clause (a) or (b) herein, as
the case may be, plus three
percent (3%) per annum.


 


3.6.         PAYMENTS ON ACCOUNT OF TERM LOAN. The Borrowers authorize the Agent to determine
and to pay over directly to the Term Loan Lenders any and all amounts due and
payable from time to time under or on account of the Term Loan as advances
under the Revolving Credit of the Borrowers, it being
understood, however, that the authorization of
the Agent provided in this Section 3.6 shall not excuse the Borrowers from fulfilling its
obligations to the Term Loan Lenders on account of the Term Loan nor place any
obligation on the Agent to do so. The Agent shall provide prompt advice to the
Borrowers of any amount which is so paid over by the Agent to the Term Loan
Lenders pursuant to this Section 3.6. The Borrowers shall not be entitled to any credit, rebate or repayment
of any fee or assessment previously earned by


 


65

















 


the
Term Loan Lenders pursuant to this Agreement notwithstanding any termination of
this Agreement or suspension or termination of the Agent’s and any Lender’s
respective obligation to make loans and advances hereunder.


 


ARTICLE IV.        CONDITIONS
PRECEDENT


 


Except as
otherwise agreed to by the Borrowers and the Agent in writing, as a condition
to the amendment and restatement of this Agreement, each of the documents
respectively described in Sections 4.1 through and including 4.4 and 4.11
through and including 4.15, (each in form and substance satisfactory to the
Agent and each of the Revolving Credit Lenders and the Term Loan Lenders) shall
have been delivered to the Agent, and the conditions respectively described in
Sections 4.5 through and including 4.10, and 4.16, shall have been satisfied:


 


4.1.         CORPORATE DUE DILIGENCE. Each Borrower and Holiday Stationstores
shall deliver to the Agent:


 


(a)           A Certificate of
corporate good standing issued as of a recent date by the Secretary of State of
the such Borrower’s or Holiday Stationstores’ jurisdiction of organization.


 


(b)           Certificates of due
qualification, in good standing, issued as of a recent date by the Secretary of
State of each State in which the nature of such Borrower’s or Holiday
Stationstores’ business conducted or assets owned could require such
qualification.


 


(c)           A Certificate from a
duly authorized officer of such Borrower or Holiday Stationstores (i) of the
due adoption, continued effectiveness, and setting forth the texts of, each
corporate resolution adopted in connection with the establishment of the loan
arrangement contemplated by the Loan Documents, (ii) attesting to the true
signatures of each Person authorized as a signatory to any of the Loan
Documents (iii) attaching such Borrower’s or Holiday Stationstores’ articles of
organization or formation, certified as of a recent date by the Secretary of
State of the such Borrower’s or Holiday Stationstores’ jurisdiction of
organization, and confirming that there has been no change thereto since the
date of such certification, and (iv) attaching such Borrower’s or Holiday
Stationstores’ bylaws or operating agreement and any other organizational
documents.


 


4.2.         OPINIONS. Opinions of (a) Faegre & Benson LLP,
counsel to the Borrowers, (b) internal legal counsel to the Borrowers, each in
form and substance satisfactory to the Agent (c) Robinson, Bradshaw &
Hinson, P.A., local counsel to certain of the Borrowers in North Carolina and
(d) Montgomery, McCracken, Walker & Rhoads, LLP, local counsel to certain
of the Borrowers in New Jersey.


 


4.3.         LOAN DOCUMENTS AND ADDITIONAL DOCUMENTS. The Agent shall have received each of this
Agreement, the Pratt Guaranty, the Holiday Guaranty, the Notes, the Pledge
Agreement, the Trademark Security Agreements, the Copyright Security Agreement,
the Patent Security Agreement and any other Loan Documents, each duly executed
and delivered by the respective parties thereto, in full force and effect and
in form and substance satisfactory to the Agent, along with such additional
instruments and documents as the Agent or its counsel


 


66

















 


reasonably
may require or request, including, without limitation, the following: the
Closing Certificate, the Agent’s Fee Letter, the Lenders’ Fee Letter and any
UCC financing statements.


 


4.4.         OFFICERS’ CERTIFICATES. Certificates executed by the President and
the Chief Financial Officer of each Borrower which states that:


 


(a)           Such officer, acting
on behalf of such Borrower, has reviewed each of the Loan Documents and has had
the benefit of independent counsel of the Borrowers’ selection (attorney Samuel
P. Verduci) in connection with the
review and negotiation of the Loan Documents. In particular, and without
limiting the generality of such review, the following provisions of the Loan
Documents have been brought to the attention of such officer by such counsel:


 


(i)            The waiver of the right to a trial
by jury in connection with controversies arising out of the loan arrangement contemplated
by the Loan Documents.


 


(ii)           The designation of, and submission to
the exclusive jurisdiction and venue of, certain courts.


 


(iii)          Various other waivers and
indemnifications included therein.


 


(iv)          The circumstances under which the
Liabilities could be accelerated and the grace periods available with respect
to certain Events of Default.


 


(b)           The representations
and warranties made by such Borrower to the Agent, the Revolving Credit Lenders
and the Term Loan Lenders in the Loan Documents are true and complete as of the
date of such certificate, and that no event has occurred which is or which,
solely with the giving of notice or passage of time (or both), would be an
Event of Default.


 


4.5.         REPRESENTATIONS AND WARRANTIES. Each of the representations made by or on
behalf of the Borrowers in this Agreement or in any of the other Loan Documents
or in any other report, statement, document, or paper provided by or on behalf
of the Borrowers shall be true and complete in all material respects as of the
date as of which such representation or warranty was made.


 


4.6.         MINIMUM DAY ONE AVAILABILITY. After giving effect to any Revolving Credit
Loans to be made or otherwise outstanding on the Restatement Effective Date;
all then held checks (if any); accounts payable which are overdue by more than
Fifteen (15) days beyond credit terms then accorded the Borrowers; overdrafts;
any charges to the Loan Account made in connection with the credit facility
contemplated hereby; and L/Cs to be outstanding as of or issued on or
immediately subsequent to, the Restatement Effective Date, Availability shall
not be less than $35,000,000.


 


4.7.         CAPITAL STRUCTURE. The Agent shall be satisfied with the
capital structure of the Borrowers.


 


4.8.         ALL FEES AND EXPENSES PAID. All fees due under or with respect to the
credit facility provided to the Borrowers by the Agent prior to the amendment
and restatement of this


 


67

















 


Agreement,
all fees specified in the Agent’s Fee Letter and the Lenders’ Fee Letter and
all costs and expenses incurred by the Agent in connection with such credit
facility (including the fees and expenses of counsel to the Agent) shall have
been paid in full.


 


4.9.         BORROWER NOT IN DEFAULT. The Borrowers are not and will not be In
Default.


 


4.10.       NO ADVERSE CHANGE. Other than as set forth on SCHEDULE 5.18 to
the Closing Certificate, no event shall have occurred or failed to occur, which
occurrence or failure is or could have a materially adverse effect upon any
Borrower’s financial condition when compared with such Borrower’s financial
condition at the end of such Borrower’s prior fiscal year.


 


4.11.       PERFECTION CERTIFICATE AND LIEN SEARCH RESULTS. The Agent shall have received from each
Borrower a completed and fully executed Perfection Certificate and the results
of UCC, intellectual property and other lien searches with respect to its
Collateral, indicating no liens other than Permitted Encumbrances, and
otherwise in form and substance satisfactory to the Agent.


 


4.12.       CERTIFICATES OF INSURANCE. The Agent shall have received (i)
certificates of insurance from the Borrowers’ independent insurance brokers
dated as of the Restatement Effective Date, identifying insurers, types of
insurance, insurance limits, and policy terms, , and otherwise describing the
insurance obtained in accordance with the provisions of this Agreement, and
(ii) copies of endorsements to the Borrowers’ policies naming the Agent, in its
capacity as Agent, as additional insured or Lenders’ loss payee, as applicable.


 


4.13.       BLOCKED ACCOUNT AGREEMENTS AND NOTIFICATIONS. The Agent shall have received (i) copies of
the notifications and the Blocked Account Agreements required by Section
8.1(b).


 


4.14.       NOTIFICATIONS
TO CREDIT CARD CLEARING HOUSES AND PROCESSORS. The Agent shall have received copies of the
notifications sent to the credit card clearing houses and processors of the
Borrowers as required by Section 8.2.


 


4.15.       BORROWING BASE CERTIFICATE. The Agent shall have received from the Lead
Borrower a Borrowing Base Certificate dated as of the Restatement Effective
Date.


 


4.16.       ACQUISITION AGREEMENT. The Agent shall have received from the
Borrowers:


 


(a)           a copy, certified by
an authorized officer of the Gander, of duly executed copies of the Acquisition
Agreement and each of the other transaction documents with respect to the
Acquisition, each in full force and effect and in form and substance
satisfactory to the Agent, with no provision thereof having been waived,
amended, supplemented or otherwise modified without the consent of the Agent,
which consent may not be unreasonably withheld;


 


(b)           confirmation that
the Acquisition has been consummated or will be concurrently consummated with
the funding of Term Loan B strictly in accordance with all applicable requirements
of law and the terms of the Acquisition Agreement and the other Acquisition
documentation delivered in accordance with clause (a) above for total
consideration not to


 


68

















 


exceed
$73,000,000 with the post-Acquisition capitalization and structure of the
Borrowers being reasonably satisfactory to the Agent in all respects; and


 


(c)           evidence that the
Pratt Parties and the Holiday Companies have made a common equity contribution
to Gander in a minimum aggregate amount of $24,000,000 to be applied by Gander
to consummate the Acquisition.


 


4.17.       EQUITY DOCUMENTS. The Agent shall have received from the
Borrowers all original share certificates evidencing such Borrower’s existing
equity interests represented in certificated form and stock transfer powers
with respect to such certificates, each duly executed in blank.


 


4.18.       BENEFIT OF CONDITIONS PRECEDENT. The conditions set forth in this Article 4
are for the sole benefit of the Agent, each Revolving Credit Lender and each
Term Loan Lender and may be waived by the Agent (in consultation with the
Lenders), in whole or in part without prejudice to the Agent, any Revolving
Credit Lender or any Term Loan Lender.


 


No document
shall be deemed delivered to the Agent, any Revolving Credit Lender or any Term
Loan Lender until received and accepted by the Agent at its offices in Boston,
Massachusetts. The execution and delivery of this Agreement or any other Loan
Document shall not be deemed a waiver of any of the conditions set forth in
this Article 4. Under no circumstances shall this Agreement take effect until
executed and accepted by the Agent at said offices. For purposes of determining
compliance with the conditions specified in this Article 4, each Revolving
Credit Lender and Term Loan Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Revolving Credit Lender or Term Loan Lender
unless the Agent shall have received notice from such Revolving Credit Lender
or Term Loan Lender prior to the proposed Restatement Effective Date specifying
its objections thereto.


 


ARTICLE V.         GENERAL
REPRESENTATIONS, COVENANTS AND WARRANTIES


 


To induce each
Revolving Credit Lender and Term Loan Lender to amend and restate the credit
facility as contemplated herein and to induce the Revolving Credit Lenders and
the Term Loan Lenders to provide loans and advances under the Revolving Credit
and the Term Loan (each of which loans shall be deemed to have been made in
reliance thereupon) the Borrowers, in addition to all other representations,
warranties, and covenants made by the Borrowers in any other Loan Document,
make those representations, warranties, and covenants included in this
Agreement.


 


5.1.         PAYMENT AND PERFORMANCE OF LIABILITIES. The Borrowers shall pay each payment
Liability when due (or when demanded, if payable on demand) and shall promptly,
punctually, and faithfully perform each other Liability.


 


69

















 


5.2.         DUE ORGANIZATION,
AUTHORIZATION, NO CONFLICTS.


 


(a)           Each Borrower
presently is and shall hereafter remain in good standing in its jurisdiction of
organization and is and shall hereafter remain duly qualified and in good
standing in every other State in which, by reason of the nature or location of
such Borrower’s assets or operation of such Borrower’s business, such
qualification may be necessary, except where the failure to so qualify would
not have a material adverse effect on the business or assets of such Borrower.


 


(b)           Each Borrower’s
exact legal name and organizational identification number assigned to it by its
applicable state of organization are listed in the Perfection Certificate.


 


(c)           Each Borrower shall
not change its State of organization; type of organization; any organizational
identification number assigned to such Borrower by that State; or such Borrower’s
federal taxpayer identification number.


 


(d)           Each Affiliate is
listed on SCHEDULE 5.2
to the Closing Certificate. Each Borrower shall provide the Agent with prior
written notice of any entity’s becoming or ceasing to be an Affiliate.


 


(e)           Each Borrower has
all requisite power and authority to execute and deliver all Loan Documents to
which such Borrower is a party and has and will hereafter retain all requisite
power to perform all Liabilities.


 


(f)            The execution and
delivery by each Borrower of each Loan Document to which it is a party; such
Borrower’s consummation of the transactions contemplated by such Loan Documents
(including, without limitation, the creation of Collateral Interests by such
Borrower to secure the Liabilities); such Borrower’s performance under those of
the Loan Documents to which it is a party; the borrowings hereunder; and the
use of the proceeds thereof:


 


(i)            Have been duly authorized by all
necessary action.


 


(ii)           Do not, and will not, contravene in
any material respect any provision of any Requirement of Law or obligation of
such Borrower.


 


(iii)          Will not result in the creation or
imposition of, or the obligation to create or impose, any Encumbrance upon any
assets of such Borrower pursuant to any Requirement of Law or obligation,
except pursuant to the Loan Documents.


 


(g)           The Loan Documents
have been duly executed and delivered by each Borrower and are the legal, valid
and binding obligations of such Borrower, enforceable against such Borrower in
accordance with their respective terms.


 


5.3.         TRADE NAMES. Each Borrower will provide the Agent with
not less than Twenty-One (21) days prior written notice (with reasonable
particularity) of any change to such Borrower’s name from that under which such
Borrower is conducting its business at the


 


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execution
of this Agreement and will not effect such change if an Event of Default has
occurred and is continuing.


 


5.4.         INFRASTRUCTURE.


 


(a)           Each Borrower has
and will maintain a sufficient infrastructure to conduct its business as
presently conducted and as contemplated to be conducted following its execution
of this Agreement.


 


(b)           Each Borrower owns
and possesses, or has the right to use (and will hereafter own, possess, or
have such right to use) all patents, industrial designs, trademarks, trade
names, trade styles, brand names, service marks, logos, copyrights, trade
secrets, know-how, confidential information, and other intellectual or
proprietary property of any third Person necessary for such Borrower’s conduct
of such Borrower’s business.


 


(c)           The conduct by each
Borrower of such Borrower’s business does not presently infringe (nor will such
Borrower conduct its business in the future so as to infringe) the patents,
industrial designs, trademarks, trade names, trade styles, brand names, service
marks, logos, copyrights, trade secrets, know-how, confidential information, or
other intellectual or proprietary property of any third Person, except for such
infringement which would not have a material adverse effect on such Borrower’s
business or assets.


 


5.5.         LOCATIONS.


 


(a)           The Collateral, and
the books, records, and papers of each Borrower pertaining thereto, are kept
and maintained solely at (i) such Borrower’s chief executive offices, (ii)
other locations set forth in the Perfection Certificate, (iii) temporary
locations in connection with sales at trade shows, provided,
however, that the aggregate amount of Collateral at such locations
shall not exceed $1,000,000 in the aggregate at any time, and (iv) other
locations, provided, however, such Borrower
provides the Agent with prior written notice at least Fourteen (14) days before
moving any Collateral into such location.


 


(b)           No Borrower shall
remove any of the Collateral from said chief executive office, those locations
listed in the Perfection Certificate, temporary locations in connection with
trade shows to the extent permitted by Section 5.5(a), temporary staging areas
in connection with new store openings the location of which has been disclosed
to the Agent, or those other locations for which such Borrower has provided the
Agent notice in accordance with Section 5.5(a), except for the following
purposes:


 


(i)            To accomplish sales of Inventory in
the ordinary course of business (including, without limitation, any catalog or
e-commerce business).


 


(ii)           To move Inventory or other Collateral
from one such location to another such location.


 


(iii)          To utilize such of the Collateral as
is removed from such locations in the ordinary course of business (such as
motor vehicles).


 


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(iv)          To sell, lease or dispose of the
Collateral as permitted by Section 5.13(d).


 


(c)           No Borrower will
open or close any location at which such Borrower maintains, offers for sales,
or stores any of the Collateral without providing the Agent with prior written
notice at least Fourteen (14) days before moving any Collateral into or out of
such location.


 


(d)           Except as otherwise
disclosed pursuant to, or permitted by, this Section 5.5, no tangible personal
property of such Borrower is in the care or custody of any third party or
stored or entrusted with a bailee or other third party and none shall hereafter
be placed under such care, custody, storage, or entrustment, all except for any
property in transit to such Borrower, and any Collateral not to exceed
$1,000,000 at any one time.


 


5.6.         TITLE TO ASSETS.


 


(a)           The Borrowers are,
and shall hereafter remain, the owners of the Collateral free and clear of all
Encumbrances with the exceptions of the following (the “Permitted
Encumbrances”):


 


(i)            Encumbrances in favor of the Agent.


 


(ii)           purchase money security interests in
or purchase money mortgages on real or personal property acquired after the
date hereof to secure purchase money Indebtedness of the type and amount
permitted by Section 5.7(a)(iii) or so called “floor plan financings” permitted
by Section 5.7(a)(iv), incurred in connection with the acquisition of such
property or within sixty (60) days following the acquisition of such property,
which security interests or mortgages cover only the real or personal property
so acquired.


 


(iii)          Liens to secure taxes, assessments and
other government charges in respect of obligations not overdue or which are
being contested in good faith by appropriate proceedings or liens on properties
to secure claims for labor, material or supplies in respect of obligations not
overdue or which are being contested in good faith by appropriate proceedings, provided that the Borrowers will pay all such taxes,
assessments, charges or claims forthwith upon the commencement of proceedings
to foreclose any lien that may have attached as security therefor.


 


(iv)          deposits or pledges made in connection
with, or to secure payment of, workmen’s compensation, unemployment insurance,
old age pensions or other social security obligations.


 


(v)           Liens of carriers, warehousemen,
mechanics and materialmen, and other like Liens on properties, in existence
less than One Hundred Twenty (120) days from the date of creation thereof in
respect of obligations not overdue.


 


(vi)          Those Encumbrances (if any) listed on SCHEDULE 5.6 to the
Closing Certificate.


 


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(b)           The Borrowers do not
and shall not have possession of any property on consignment to any Borrower
having a value in excess of $4,000,000 in the aggregate at any time.


 


5.7.         INDEBTEDNESS.


 


The Borrowers
do not and shall not hereafter have any Indebtedness with the exceptions of:


 


(i)            Any Indebtedness on account of the
Revolving Credit or the Term Loan.


 


(ii)           Endorsements for collection, deposit
or negotiation and warranties of products or services, in each case incurred in
the ordinary course of business.


 


(iii)          Indebtedness incurred after the
Restatement Effective Date in connection with the holding of any real or
personal property by the Borrowers or the acquisition of any real or personal
property or under any Capitalized Lease, provided  that the aggregate principal amount of such Indebtedness of
the Borrowers shall not exceed the aggregate amount of $20,000,000, or with the
consent of the Agent $35,000,000, at any one time.


 


(iv)          Indebtedness incurred in connection
with so called “floor plan financing” arrangements to finance the acquisition
of Inventory of the Borrowers; provided that
(A) such financing arrangements shall be reasonably satisfactory to the Agent
and (B) if requested by the Agent, the Agent shall have entered into
intercreditor arrangements, reasonably satisfactory to the Agent, with each
holder of any such Indebtedness.


 


(v)           The Indebtedness (if any) listed on SCHEDULE 5.7 to the
Closing Certificate.


 


(vi)          Indebtedness consisting of obligations
to purchase, redeem, retire or otherwise acquire for value any shares of a
Borrower’s capital stock from current and former employees, directors and
consultants of such Borrower or any of its Affiliates, and any estate or
personal representative of such employee, director or consultant, provided, however, that no Borrower shall have an obligation
to purchase, redeem, retire or otherwise acquire any such shares to the extent
that such purchase, redemption, retirement or other acquisition is not
permitted by Section 5.20(b) of this Agreement.


 


(vii)         Other unsecured Indebtedness in an
aggregate amount not to exceed $50,000,000 outstanding at any one time; provided that the Borrowers shall not be In Default (A)
immediately prior to the incurrence of such Indebtedness or (B) as a result of
the incurrence of such Indebtedness; and provided, further, that such Indebtedness shall be
upon terms and conditions, including without limitation covenants and events of
default, no more restrictive in the reasonable determination of the Agent than
the terms and conditions set forth in the Loan Documents.


 


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(viii)        Indebtedness assumed in connection with
a Permitted Acquisition, which Indebtedness exists at the time of such
Permitted Acquisition and is not created in contemplation of such Permitted
Acquisition.


 


5.8.         INSURANCE.


 


(a)           SCHEDULE 5.8 to the Closing Certificate, is a schedule of
all insurance policies owned by each Borrowers or under which any Borrower is
the named insured. Each of such policies is in full force and effect. Neither
the issuer of any such policy nor any Borrower is in default or violation of any
such policy.


 


(b)           The Borrowers shall
have and maintain at all times insurance covering such risks, in such amounts,
containing such terms, in such form and with such endorsements, for such
periods, and written by such companies as may be satisfactory to the Agent.


 


(c)           All insurance
carried by any Borrower shall provide for a minimum of thirty (30) days’ prior
written notice of cancellation to the Agent and all such insurance which covers
the Collateral and liability shall:


 


(i)            Be payable to the Agent as loss
payee and/or additional insured under a “standard” or “New York” loss payee
clause for the benefit of the Revolving Credit Lenders, the Term Loan Lenders
and the Agent.


 


(ii)           Not include an endorsement in favor
of any other Person with respect to insured Collateral.


 


(d)           The coverage
reflected on SCHEDULE 5.8
to the Closing Certificate, presently satisfies the foregoing requirements, it being recognized by the Borrowers, however, that such
requirements may change hereafter to reflect changing circumstances.


 


(e)           The Borrowers shall
furnish the Agent from time to time with certificates or other evidence
satisfactory to the Agent regarding compliance by the Borrowers with the
foregoing requirements.


 


(f)            In the event of the
failure by the Borrowers to maintain insurance as required herein, the Agent,
at its option, may obtain such insurance, provided, however,
the Agent’s obtaining of such insurance shall not constitute a cure or waiver
of any Event of Default occasioned by the Borrowers’ failure to have maintained
such insurance.


 


5.9.         LICENSES. Each license, distributorship, franchise,
and similar agreement issued to, or to which a Borrower is a party and is
material to the business of such Borrower is in full force and effect. No party
to any such license or agreement is in default or violation thereof. The
Borrowers have not received any notice or threat of cancellation of any such
license or agreement.


 


5.10.       LEASES. SCHEDULE 5.6 to the Closing Certificate lists all
presently effective Capital Leases and SCHEDULE 4 to the Perfection Certificate lists all
other presently effective


 


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Leases.
Each of such Leases and Capital Leases is in full force and effect. No Borrower
and, to the knowledge of the Borrowers, no other party to any such Lease or
Capital Lease is in default or violation of any such Lease or Capital Lease
which is material to the business of the Borrowers. No Borrower has received
any notice or threat of cancellation of any such Lease or Capital Lease. Each
Borrowers hereby authorizes the Agent at any time and from time to time to
contact any of such Borrower’s landlords in order to confirm such Borrower’s
continued compliance with the terms and conditions of the Lease(s) between the
such Borrower and that landlord and to discuss such issues, concerning the such
Borrower’s occupancy under such Lease(s), as the Agent may determine.


 


5.11.       REQUIREMENTS OF LAW. The Borrowers are in compliance with, and
shall hereafter comply with and use its assets in compliance with, all
Requirements of Law except where the failure of such compliance will not have a
material  adverse effect on the Borrowers’
business or assets. The Borrowers have not received any notice of any violation
of any Requirement of Law (other than of a violation which has no material  adverse effect on the Borrowers’ business or assets), which
violation has not been cured or otherwise remedied.


 


5.12.       LABOR RELATIONS.


 


(a)           No Borrowers is
presently a party to any collective bargaining or other labor contract.


 


(b)           There is not
presently pending and, to each Borrower’s knowledge, there is not threatened
any of the following:


 


(i)            Any strike, slowdown, picketing,
work stoppage, or employee grievance process.


 


(ii)           Any proceeding against or affecting
the Borrowers relating to the alleged violation of any Applicable Law
pertaining to labor relations or before National Labor Relations Board, the
Equal Employment Opportunity Commission, or any comparable governmental body,
organizational activity, or other labor or employment dispute against or
affecting the Borrowers, which, if determined adversely to the Borrowers could
have more than a material adverse effect on the Borrowers.


 


(iii)          Any lockout of any employees by such
Borrowers (and no such action is contemplated by such Borrower).


 


(iv)          Any application for the certification
of a collective bargaining agent.


 


(c)           No event has
occurred or circumstance exists which could provide the basis for any work
stoppage or other labor dispute.


 


(d)           Each Borrower:


 


(i)            Has complied in all material
respects with all Applicable Law relating to employment, equal employment
opportunity, nondiscrimination, immigration, wages,


 


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hours,
benefits, collective bargaining, the payment of social security and similar
taxes, occupational safety and health, and plant closing.


 


(ii)           Is not liable for the payment of any
material amount of compensation, damages, taxes, fines, penalties, or other
amounts, however designated, for the Borrower’s failure to comply with any
Applicable Law referenced in Section 5.12(d)(i).


 


5.13.       MAINTAIN PROPERTIES. Each Borrower shall:


 


(a)           Keep the Collateral
in good order and repair (ordinary reasonable wear and tear and insured
casualty excepted).


 


(b)           Not suffer or cause
the waste or destruction of any material part of the Collateral.


 


(c)           Not use any of the
Collateral in violation of law or any policy of insurance thereon.


 


(d)           Not sell, lease, or
otherwise dispose of any of the Collateral, other than the following:


 


(i)            The sale of Inventory in the
ordinary course of business.


 


(ii)           The disposal of property which is
obsolete, worn out, or damaged beyond repair, in the ordinary course of
business consistent with past practices.


 


(iii)          Any sale, lease or other disposal if
the Borrowers turn over to the Agent all Receipts from such sale, lease or
other disposal.


 


(iv)          The disposition of all or
substantially all of the assets of any Borrower (upon voluntary liquidation or
otherwise) to another Borrower.


 


5.14.       TAXES.


 


(a)           With respect to each
Borrower’s federal, state, and local tax liability and obligations:


 


(i)            Each Borrower, in compliance with
all Applicable Law, has properly filed all returns due to be filed up to the
date of this Agreement.


 


(ii)           Except as described on SCHEDULE 5.14 to the
Closing Certificate:


 


(A)       At no time since December 31, 1998 has a
Borrower received from any taxing authority any request to perform any
examination of or with respect to such Borrower nor any other written notice in
any way relating to any claimed failure by any Borrower to comply with all
Applicable Law concerning payment of any taxes or other amounts in the nature
of taxes.


 


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(B)       No agreement is extant which waives or
extends any statute of limitations applicable to the right of any taxing
authority to assert a deficiency or make any other claim for or in respect to
federal income taxes.


 


(C)       No issue has been raised in any tax
examination of any Borrower which, by application of similar principles,
reasonably could be expected to result in the assertion of a deficiency for any
fiscal year open for examination, assessment, or claim by any taxing authority.


 


(b)           The Borrowers have,
and hereafter shall: pay, as they become due and payable, all taxes and
unemployment contributions and other charges of any kind or nature levied,
assessed or claimed against the Borrowers or the Collateral by any person or
entity whose claim could result in an Encumbrance upon any asset of the
Borrowers or by any governmental authority; properly exercise any trust
responsibilities imposed upon the Borrowers by reason of withholding from
employees’ pay or by reason of the Borrowers’ receipt of sales tax or other
funds for the account of any third party; timely make all contributions and
other payments as may be required pursuant to any Employee Benefit Plan now or
hereafter established by the Borrowers; and timely file all tax and other
returns and other reports with each governmental authority to whom the
Borrowers are obligated to so file.


 


5.15.       NO MARGIN STOCK. The Borrowers are not engaged in the
business of extending credit for the purpose of purchasing or carrying any
margin stock (within the meaning of Regulations U, T, and X of the Board of
Governors of the Federal Reserve System of the United States). No part of the
proceeds of any borrowing hereunder will be used at any time to purchase or
carry any such margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock.


 


5.16.       ERISA.


 


(a)           No Borrower nor any
ERISA Affiliate has ever:


 


(i)            Violated or failed to be in
compliance in any material respect with such Borrower’s Employee Benefit Plan.


 


(ii)           Failed timely to file all reports and
filings required by ERISA to be filed by such Borrower, which failure has
resulted or could result in a material liability to such Borrower.


 


(iii)          Engaged in any material nonexempt “prohibited
transactions” or any “reportable event” (respectively as described in ERISA)
for which a report has not been waived under applicable regulations.


 


(iv)          Engaged in, or committed, any act such
that a material tax or penalty reasonably could be imposed upon such Borrower
on account thereof pursuant to ERISA.


 


(v)           Accumulated any material cumulative
funding deficiency within the meaning of ERISA.


 


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(vi)          Terminated any Employee Benefit Plan
such that a lien could be asserted against any assets of such Borrower on
account thereof pursuant to ERISA.


 


(b)           As to any
multiemployer plan (as defined in Section 3(37) of ERISA), no Borrower nor any
ERISA Affiliate has (x) incurred any material liability (including secondary
liability) to such multiemployer plan as a result of a complete or partial
withdrawal from such multiemployer plan under §4201 of ERISA or as a result of
a sale of assets described in §4204 of ERISA, or (y) been notified that such
multiemployer plan is in reorganization or insolvent under and within the
meaning of §4241 or §4245 of ERISA or is at risk of entering reorganization or
becoming insolvent, or that such multiemployer plan intends to terminate or has
been terminated under §4041A of ERISA.


 


(c)           No Borrower nor any
ERISA Affiliate shall ever engage in any action of the type described in
Section 5.16(a) and (b).


 


5.17.       HAZARDOUS MATERIALS.


 


(a)           No Borrower has
ever: (i) been notified it is legally responsible for any release or threat of
release of any Hazardous Material which would have a material adverse effect on
such Borrower’s business or assets or (ii) received notification of the
incurrence of any expense in connection with the assessment, containment, or
removal of any Hazardous Material for which such Borrower would be responsible
which would have a material adverse effect on such Borrower’s business or
assets.


 


(b)           Each Borrower shall:
(i) dispose of any Hazardous Material only in compliance with all Environmental
Laws and (ii) have possession of any Hazardous Material only in the ordinary
course of the Borrowers’ business and in compliance with all Environmental
Laws.


 


5.18.       LITIGATION. Except as described in SCHEDULE 5.18 to
the Closing Certificate, there is not presently pending or threatened by or
against any Borrower any suit, action, proceeding, or investigation which, if
determined adversely to such Borrower, would have a material adverse effect
upon such Borrower’s financial condition or ability to conduct its business as
such business is presently conducted or is contemplated to be conducted in the
foreseeable future.


 


5.19.       BUSINESS PLAN. The Borrowers have provided to the Agent
and the Lenders their Business Plan for the remainder of Fiscal 2007 and for
Fiscals 2008, 2009 and 2010.


 


5.20.       DIVIDENDS. INVESTMENTS. CORPORATE ACTION. No Borrower shall:


 


(a)           Pay any cash
dividend in respect of any class of such Borrower’s capital stock other than
dividends payable to another Borrower.


 


(b)           Own, redeem, retire,
purchase, or acquire any of such Borrower’s capital stock, other than (i)
repurchases of capital stock from current or former employees, directors or
consultants of such Borrower or any of its Affiliates and any estate or
personal representative of such employee, director or consultant in an
aggregate amount not to exceed $2,500,000 in any


 


78

















 


fiscal
year, provided  that
Term Loan B has been paid in full; and (ii) purchases of capital stock of such
Borrower made pursuant to an employee stock purchase plan.


 


(c)           Invest in or
purchase any stock or securities or rights to purchase any such stock or
securities, of any Person (other than those of another Borrower), except for
(i) marketable direct or guaranteed obligations of the United States of America
that mature within one (1) year from the date of purchase by the Borrowers;
(ii) demand deposits, certificates of deposit, bank acceptances and time
deposits of United States banks having total assets in excess of
$1,000,000,000, (iii) securities commonly known as “commercial paper” issued by a corporation organized and existing
under the laws of the United States of America or any state thereof that at the
time of purchase have been rated and the ratings for which are not less than “P-1”
if rated by Moody’s Investors Services, Inc., and not less than “A 1” if rated
by Standard & Poor’s Ratings Group (“Permitted Investments”).


 


(d)           Merge or consolidate
or be merged or consolidated with or into any other corporation or other
entity; provided that such Borrower may merge
with any other Borrower.


 


(e)           Consolidate any of
such Borrower’s operations with those of any other Person except as otherwise
provided in clause (d) above.


 


(f)            Organize or create
any Affiliate, other than a wholly-owned Subsidiary or Majority-Owned
Subsidiary of such Borrower, provided that, in
each case, (i) such Borrower and such Subsidiary shall comply with Section 5.29
and (ii) such Subsidiary shall be organized under the laws of a State or other
political subdivision of the United States of America.


 


(g)           Subordinate any
debts or obligations owed to such Borrower by any third party to any other
debts owed by such third party to any other Person.


 


(h)           Acquire any assets
other than (i) in the ordinary course and conduct of such Borrower’s business
as described in Section 5.23 hereof, (ii) in connection with a Permitted
Acquisition or (iii) in connection with the Acquisition.


 


5.21.       LOANS. No Borrower shall make any loans or
advances to, nor acquire the Indebtedness of, any Person, provided, however, the foregoing does not
prohibit any of the following:


 


(a)           Advance payments
made to such Borrower’s suppliers in the ordinary course.


 


(b)           Advances to such
Borrower’s officers, employees, and salespersons with respect to reasonable
expenses to be incurred by such officers, employees, and salespersons for the
benefit of such Borrower, which expenses are properly substantiated by the
person seeking such advance and properly reimbursable by such Borrower.


 


(c)           Advances to current
or former employees, directors or consultants of such Borrower or any of its
Affiliates and any estate or personal representative of such employee, director
or consultant in connection with the purchase of capital stock of such
Borrower, provided that such Advances shall not
exceed $500,000 in any fiscal year.


 


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(d)           Advances by such
Borrower to another Borrower.


 


5.22.       PROTECTION OF ASSETS. The Agent, in the Agent’s discretion, and
from time to time, may discharge any tax or Encumbrance on any of the
Collateral, or take any other action which the Agent may deem necessary or
desirable to repair, insure, maintain, preserve, collect, or realize upon any
of the Collateral. The Agent shall not have any obligation to undertake any of
the foregoing and shall have no liability on account of any action so
undertaken except where there is a specific finding in a judicial proceeding
(in which the Agent has had an opportunity to be heard), from which finding no
further appeal is available, that the Agent had acted in actual bad faith or in
a grossly negligent manner. The Borrowers shall pay to the Agent, on demand, or
the Agent, in its discretion, may add to the Loan Account, all amounts paid or
incurred by the Agent pursuant to this Section 5.22.


 


5.23.       LINE OF BUSINESS. No Borrower shall engage in any business
other than the business in which it is currently engaged or a business
reasonably related thereto (the conduct of which reasonably related business is
reflected in the Business Plan), which may include, without limitation, any
catalog or e-commerce business.


 


5.24.       AFFILIATE TRANSACTIONS. No Borrower shall make any payment, or give
any value to any Affiliate (other than another Borrower) except for (a) goods
and services described on SCHEDULE 5.24 to the Closing Certificate, and (b) other goods
and services which are actually purchased by such Borrower from, or sold by
such Borrower to, such Affiliate for a price and on terms which shall be no
less favorable to such Borrower than those which would have been charged and
imposed in an arms length transaction.


 


5.25.       COLLATERAL.


 


(a)           None of the
Collateral constitutes, or is the proceeds of, “farm products” as defined in
§9-102(a)(34).


 


(b)           None of the account
debtors or other persons obligated on any of the Collateral is a governmental
authority covered by the Federal Assignment of Claims Act or like federal,
state or local statute or rule in respect of such Collateral.


 


(c)           No Borrower holds
any commercial tort claim except as indicated on the Perfection Certificate.


 


(d)           Each Borrower has at
all times operated its business in compliance with all applicable provisions of
federal, state and local statutes and ordinances dealing with the control,
shipment, storage or disposal of hazardous materials or substances, except for
such noncompliance which would not have a material adverse effect, individually
or in the aggregate, on the Borrowers’ business or assets.


 


5.26.       ADEQUACY OF DISCLOSURE.


 


(a)           Except as set forth
on SCHEDULE 5.26 to the
Closing Certificate, all financial statements furnished to the Agent, to each
Revolving Credit Lender and to each Term Loan


 


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Lender
by the Borrowers have been prepared in accordance with GAAP consistently
applied and present fairly the condition of the Borrowers at the date(s)
thereof and the results of operations and cash flows for the period(s) covered
(provided however, that unaudited
financial statements are subject to normal year end adjustments and to the
absence of footnotes). There has been no change in the financial condition,
results of operations, or cash flows of the Borrowers since the date of the
most recent financial statements, other than changes in the ordinary course of
business, which changes have not been materially adverse, either singularly or
in the aggregate.


 


(b)           Except as set forth
on SCHEDULE 5.26 to the
Closing Certificate, as of the date of this Agreement, the Borrowers do not
have any material contingent obligations or material obligation under any Lease
or Capital Lease which is not noted in the Borrowers’ financial statements
furnished to the Agent, to each Revolving Credit Lender and to each Term Loan
Lender prior to the execution of this Agreement.


 


(c)           No document,
instrument, agreement, or paper now or hereafter given to the Agent, to any
Revolving Credit Lender or to any Term Loan Lender by or on behalf of the
Borrowers in connection with the execution of this Agreement by the Agent, each
Revolving Credit Lender and each Term Loan Lender (other than projections or
forecasts, which are and will be made in good faith using reasonable
assumptions taken as a whole) contains or will contain any untrue statement of
a material fact or omits or will omit to state a material fact necessary in
order to make the statements therein not misleading. There is no fact known to
the Borrowers which has, or which, in the foreseeable future would reasonably
be expected to have, a material adverse effect on the financial condition of
the Borrowers which has not been disclosed in writing to the Agent, to each
Revolving Credit Lender and to each Term Loan Lender.


 


(d)           Since
the date of each Borrower’s most recent financial statements, no Internal
Control Event has occurred.


 


5.27.       NO RESTRICTIONS ON LIABILITIES. No Borrower shall not enter into or
directly or indirectly become subject to any agreement which prohibits or
restricts, in any manner, such Borrower’s:


 


(a)           Creation of, and
granting of Collateral Interests in favor of the Agent.


 


(b)           Incurrence of
Liabilities.


 


5.28.       OTHER COVENANTS. No Borrower shall not indirectly do or
cause to be done any act which, if done directly by such Borrower, would breach
any covenant contained in this Agreement.


 


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5.29.       ADDITIONAL SUBSIDIARIES. The Borrowers shall notify the Agent at the
time that any Person becomes a Subsidiary (including, without limitation, a
wholly-owned Subsidiary or Majority-Owned Subsidiary), and promptly thereafter
(and in any event within 10 Business Days), cause such Person to become a “Borrower”
under this Agreement and to execute and deliver such documents, instruments and
agreement and to take such other actions as the Agent shall require to become a
Borrower hereunder and to evidence and perfect a first priority Lien in favor
of the Agent (for the benefit of the Lenders) on all assets of such Person
(subject only to any Permitted Encumbrances on such assets).


 


5.30.       FURTHER ASSURANCES.


 


(a)           No Borrower is the
owner of, nor has it any interest in, any material Collateral which,
immediately upon the satisfaction of the conditions precedent to the
effectiveness of the credit facility contemplated hereby (Article 4) will not
be subject to a perfected Collateral Interest in favor of the Agent (subject
only to Permitted Encumbrances) to secure the Liabilities.


 


(b)           The Borrowers will
not hereafter acquire any material Collateral which is not, immediately upon
such acquisition, subject to such a perfected Collateral Interest in favor of
the Agent to secure the Liabilities (subject only to Permitted Encumbrances).


 


(c)           The Borrowers shall
execute and deliver to the Agent such instruments, documents, and papers, and
shall do all such things from time to time hereafter as the Agent may request
to carry into effect the provisions and intent of this Agreement; to protect
and perfect the Agent’s Collateral Interests in the Collateral; and to comply
with all applicable statutes and laws, and facilitate the collection of the
Receivables Collateral. The Borrowers shall execute all such instruments as may
be required by the Agent with respect to the recordation and/or perfection of
the Collateral Interests created or contemplated herein.


 


(d)           The Borrowers hereby
irrevocably constitute and appoint the Agent as and for the Borrowers’ true and
lawful attorney, with full power of substitution, to file any financing
statements in order to perfect or protect the Agent’s Collateral Interests in
the Collateral.


 


(e)           This Agreement
constitutes an authenticated record which authorizes the Agent to file such
financing statements as the Agent determines as appropriate to perfect or
protect the Collateral Interests created by this Agreement.


 


(f)            A carbon,
photographic, or other reproduction of this Agreement or of any financing
statement or other instrument executed pursuant to this Section 5.30 shall be
sufficient for filing to perfect the security interests granted herein.


 


5.31.       REPRESENTATIONS AND WARRANTIES RELATED TO THE
ACQUISITION. (a)
The representations and warranties made in the Acquisition Agreement and any of
the other Acquisition documents by or on behalf of Gander, as buyer, were true,
complete and correct in all respects as of the date that the Acquisition was
consummated and (b) to the best of the knowledge of Gander, the representations
and warranties made in the Acquisition Agreement and any of the other
Acquisition documents by or on behalf of the Sellers and Holdings were true and
complete in all respects as of the date that the Acquisition was consummated.


 


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5.32.       POST CLOSING COVENANTS. Within sixty (60) days of the Restatement
Effective Date, the Borrowers shall cooperate with the Agent in conducting (a)
an appraisal of the Collateral conducted by such appraisers as are satisfactory
to the Agent and (b) a commercial finance field exam of the Borrowers’ books
and records, in each case at the expense of the Borrowers.


 


ARTICLE VI.        FINANCIAL
REPORTING AND PERFORMANCE COVENANTS


 


6.1.         MAINTAIN RECORDS. The Borrowers shall:


 


(a)           At all times, keep
proper books of account, in which full, true, and accurate entries shall be
made of all of the Borrowers’ financial transactions, all in accordance with
GAAP applied consistently with prior periods (except as required by changes in
GAAP) to fairly reflect the financial condition of the Borrowers at the close
of, and its results of operations for, the periods in question.


 


(b)           Timely provide the
Agent with those financial reports, statements, and schedules required by this
Article 6 or otherwise, each of which reports, statements and schedules shall
be prepared, to the extent applicable, in accordance with GAAP applied
consistently with prior periods (except as required by changes in GAAP) to
fairly reflect the  financial condition
of the Borrowers at the close of, and the results of operations for, the
period(s) covered therein, (provided, however,
that unaudited financial statements are subject to normal year end adjustments
and to the absence of footnotes).


 


(c)           At all times, keep
accurate current records of the Collateral including, without limitation,
accurate current stock, cost, and sales records of its Inventory, accurately
and sufficiently itemizing and describing the kinds, types, and quantities of
Inventory and the cost and selling prices thereof.


 


(d)           At all times, retain
independent certified public accountants who are reasonably satisfactory to the
Agent and instruct such accountants to fully cooperate with, and be available
to, the Agent to discuss the Borrowers’ financial performance, financial
condition, operating results, controls, and such other matters, within the
scope of the retention of such accountants, as may be raised by the Agent.


 


(e)           Within forty-five
(45) days of the Restatement Effective Date, adjust the Fiscal Years of each of
the Overton’s Borrowers to be the same as Gander; thereafter, not change a
Borrower’s fiscal year without the consent of the Agent.


 


The Borrowers
hereby acknowledge that (a) the Agent and/or the Arranger will make available
to the Revolving Credit Lenders and the Term Loan Lenders materials and/or
information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Revolving
Credit Lenders and the Term Loan Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to the Borrowers or their
securities) (each, a “Public Lender”).
The Borrowers hereby agree that so long as the Borrowers are the issuers of any
outstanding debt or equity


 


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securities
that are registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities (w) all Borrower Materials that are
to be made available to Public Lenders shall be clearly and conspicuously
marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower Materials
“PUBLIC,” the Borrowers shall be deemed to have authorized the Agent, the
Arranger, the Issuer, the Revolving Credit Lenders and the Term Loan Lenders to
treat such Borrower Materials as either publicly available information or not
material information (although it may be sensitive and proprietary) with
respect to the Borrowers or their securities for purposes of United States
Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC”
are permitted to be made available through a portion of the Platform designated
“Public Investor;” and (z) the Agent and the Arranger shall be entitled to
treat any Borrower Materials that are not marked “PUBLIC” as being suitable
only for posting on a portion of the Platform not designated “Public Investor. Notwithstanding
the foregoing, the Borrowers shall be under no obligation to mark any Borrower
Materials “PUBLIC.”


 


6.2.         ACCESS TO RECORDS.


 


(a)           The Borrowers shall
accord the Agent with access from time to time as the Agent may require to all
properties owned by or over which the Borrowers have control. The Agent shall
have the right, and the Borrowers will permit the Agent from time to time as
Agent may request, to examine, inspect, copy, and make extracts from any and
all of the Borrowers’ books, records, electronically stored data, papers, and
files. The Borrowers shall make all of the Borrower’s copying facilities
available to the Agent.


 


(b)           The Borrowers hereby
authorize the Agent to:


 


(i)            Inspect, copy, duplicate, review,
cause to be reduced to hard copy, run off, draw off, and otherwise use any and
all computer or electronically stored information or data which relates to the
Borrowers, or any service bureau, contractor, accountant, or other person, and
directs any such service bureau, contractor, accountant, or other person fully
to cooperate with the Agent with respect thereto.


 


(ii)           Verify at any time the Collateral or
any portion thereof, including verification with Account Debtors, and/or with
the Borrowers’ computer billing companies, collection agencies, and accountants
and to sign the name of the Borrowers on any notice to the Borrowers’ Account
Debtors or verification of the Collateral.


 


(c)           The Agent from time
to time may designate one or more representatives to exercise the Agent’s
rights under this Section 6.2 as fully as if the Agent were doing so.


 


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6.3.         NOTICE TO AGENT.


 


(a)           The Lead Borrower
shall provide the Agent with written notice within Three (3) Business Days
after the occurrence of any of the following events, which written notice shall
be with reasonable particularity as to the facts and circumstances in respect
of which such notice is being given:


 


(i)            Any change in a Borrower’s
President, Chief Executive Officer, Chief Operating Officer, and Chief
Financial Officer (without regard to the title(s) actually given to the Persons
discharging the duties customarily discharged by officers with those titles).


 


(ii)           Any ceasing of any Borrower’s making
of payment, in the ordinary course, to any of its creditors (other than its
ceasing of making of such payments on account of an immaterial dispute).


 


(iii)          Any failure by any Borrower to pay
rent at any of such Borrower’s locations, which failure continues for more than
Three (3) days following the last day on which such rent was payable without a
material adverse effect to the Borrowers.


 


(iv)          Any material adverse change in the
business, operations, or financial affairs of the Borrowers.


 


(v)           The Borrowers’ becoming In Default.


 


(vi)          Any intention on the part of the
Borrowers to discharge the Borrowers’ present independent accountants or any
withdrawal or resignation by such independent accountants from their acting in
such capacity (as to which, see Subsection
6.1(d)).


 


(vii)         Any litigation which, if determined
adversely to the Borrowers, might have a material adverse effect on the
financial condition of the Borrowers.


 


(viii)        The occurrence of any Internal Control
Event.


 


(ix)           The incurrence of any Indebtedness
after the Restatement Effective Date if, after giving effect to such
incurrence, the Borrowers shall have additional unsecured Indebtedness in
aggregate principal amount exceeding $10,000,000.


 


(x)            The receipt of any notices under the
Acquisition Agreement.


 


(b)           The Borrowers shall:


 


(i)            At the request of the Agent, add the
Agent as an addressee on all mailing lists maintained by or for the Borrowers.


 


(ii)           At the request of the Agent, from
time to time, provide the Agent with copies of all advertising (including
copies of all print advertising and duplicate tapes of all video and radio
advertising).


 


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(iii)          Provide the Agent, when received by
the Borrowers, with a copy of any management letter or similar communications from
any accountant of the Borrowers.


 


6.4.         BORROWING BASE CERTIFICATE. Weekly, on Wednesday of each week (as of
the then immediately preceding Saturday) the Lead Borrower shall provide the
Agent with a certificate (in the form of EXHIBIT C,
annexed hereto, as such form may be revised from time to time by the Agent)
(the “Borrowing Base Certificate”).
Such Borrowing Base Certificate may be sent to the Agent by facsimile
transmission, provided that the
original thereof is forwarded to the Agent on the date of such transmission.


 


6.5.         MONTHLY REPORTS. Monthly, following the end of each of the
Borrowers’ fiscal months, the Lead Borrower shall provide the Agent with those
financial statements and reports described in SCHEDULE 6.5, annexed hereto, such
financial statements and reports to be delivered at the times set forth on SCHEDULE 6.5.


 


6.6.         QUARTERLY REPORTS. Quarterly, within Forty-Five (45) days
following the end of each of the Borrowers’ fiscal quarters, the Lead Borrower
shall provide the Agent with the following:


 


(a)           A management
prepared financial statement of the Borrowers for the period from the beginning
of the Borrowers’ then current fiscal year through the end of the subject
quarter, with comparative information for the same period of the previous fiscal
year, which statement shall include, at a minimum, a balance sheet, income
statement (on a store specific and on a “consolidated” basis), statement of
changes in shareholders’ equity, and cash flows and comparisons for the
corresponding quarter of the then immediately previous year, as well as to the
Business Plan.


 


(b)           The officer’s
compliance certificate described in Section 6.8.


 


6.7.         ANNUAL REPORTS.


 


(a)           Annually, within
Ninety (90) days following the end of the Borrowers’ Fiscal year, the Lead Borrower
shall furnish the Agent with the following (for distribution to the Lenders):


 


(i)            The Borrowers’ audited annual
financial statements, which statements shall bear the unqualified opinion of a
Registered Public Accounting Firm, which opinion shall be prepared in
accordance with generally accepted auditing standards and applicable Securities
Laws and shall not be subject to any “going concern” or like qualification or
exception or any qualification or exception as to the scope of such audit, and,
to the extent applicable and the required of the Borrowers under applicable
Securities Law, an attestation report of such Registered Public Accounting Firm
as to the Borrowers’ internal controls pursuant to Section 404 of
Sarbanes-Oxley expressing a conclusion to which the Majority Lenders do not
object, and in each case shall include, at a minimum (with comparative
information for the then prior fiscal year) a balance sheet, income statement,
statement of changes in shareholders’ equity, and cash flows.


 


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(ii)           The officer’s compliance certificate
described in Section 6.8.


 


(iii)          A certificate showing the calculation
of Overton’s Excess Cash Flow for the prior Fiscal Year in reasonable detail
and in form and substance reasonably satisfactory to the Agent.


 


(b)           The Borrowers have
been advised that the Agent, each Revolving Credit Lender and each Term Lender
will rely thereon with respect to the administration of, and transactions
under, the credit facility contemplated by this Agreement.


 


6.8.         OFFICERS’ CERTIFICATES. The Lead Borrower shall cause its President
or its Chief Financial Officer, in each instance, to provide such Person’s
Certificate with those monthly, quarterly, and annual statements to be
furnished pursuant to this Agreement, which Certificate shall:


 


(a)           Indicate that the
subject statement was prepared in accordance with GAAP consistently applied
(except for any required changes in GAAP) and presents fairly the financial
condition of the Borrowers at the close of, and the results of the Borrowers’
operations and cash flows for, the period(s) covered, subject,
however to the following:


 


(i)            Usual year end adjustments (this
exception shall not be included in the certificate which accompanies such
annual statement).


 


(ii)           Material Accounting Changes (in which
event, such certificate shall include a schedule (in reasonable detail) of the
effect of each such Material Accounting Change) not previously specifically
taken into account in the determination of the financial performance covenant
imposed pursuant to Section 6.11.


 


(b)           Indicate either that
(i) the Borrowers are not In Default, or (ii) if such an event has occurred,
its nature (in reasonable detail) and the steps (if any) being taken or
contemplated by the Borrowers to be taken on account thereof.


 


(c)           Include calculations
concerning the Borrowers’ compliance (or failure to comply) at the date of the
subject statement with each of the financial performance covenants included in
Sections 6.11 and 6.12 hereof.


 


6.9.         INVENTORIES, APPRAISALS, AND AUDITS.


 


(a)           The Agent, at the
expense of the Borrowers, may participate in and/or observe each physical count
and/or inventory of so much of the Collateral as consists of Inventory which is
undertaken on behalf of the Borrowers.


 


(b)           The Borrowers, at
their own expense, shall cause not less than One (1) physical inventory (which
may include cycle counts of different locations at different times) to be
undertaken during any Fifteen (15) month period during which this Agreement is
in effect (the spacing of the scheduling of which inventories shall be subject
to the Agent’s discretion) 


 


87

















 


conducted by such inventory takers as are satisfactory to the Agent and
following such methodology as may be satisfactory to the Agent.


 


(i)            The Borrowers shall provide the
Agent with a copy of the preliminary results of each such inventory (as well as
of any other physical inventory undertaken by the Borrowers) at the time the
Borrowers next deliver the reports required pursuant to Section 6.5
following the completion of such inventory.


 


(ii)           The Borrowers, at the time the Lead
Borrower next delivers the reports required pursuant to Section 6.5
following the completion of such inventory, shall provide the Agent with a
reconciliation of the results of each such inventory (as well as of any other
physical inventory undertaken by the Borrowers) and shall post such results to
the Borrower’s stock ledger and, as applicable to the Borrowers’ other
financial books and records.


 


(c)           The Agent, in its
discretion, if the Borrowers are In Default, may cause such additional
inventories to be taken as the Agent determines (each, at the expense of the
Borrowers).


 


(d)           The Agent
contemplates conducting Two (2) appraisals of the Collateral (in each event, at
the Borrowers’ expense) during any Twelve (12) month period during which this
Agreement is in effect conducted by such appraisers as are satisfactory to the
Agent, but in its discretion, may undertake additional such appraisals during
such period. Notwithstanding the foregoing, at any time Availability shall be
less than $50,000,000 during any Twelve (12) month period during which this
Agreement is in effect, the Agent contemplates conducting Three (3) such
appraisals of the Collateral during such period; provided
that the Agent may, in its reasonable discretion, conduct such additional
appraisals as it deems necessary (in each event, at the Borrowers’ expense).


 


(e)           The Agent
contemplates conducting Two (2) commercial finance field examinations (in each
event, at the Borrowers’ expense) of the Borrowers’ books and records during
any Twelve (12) month period during which this Agreement is in effect, but in
its discretion, may undertake additional such audits during such period. Notwithstanding
the foregoing, at any time Availability shall be less than $50,000,000 during
any Twelve (12) month period during which this Agreement is in effect, the
Agent contemplates conducting Three (3) such field examinations of the
Borrowers’ books and records during such period; provided
that the Agent may, in its reasonable discretion, conduct such additional field
examinations as it deems necessary (in each event, at the Borrowers’ expense).


 


6.10.       ADDITIONAL FINANCIAL INFORMATION.


 


(a)           In addition to all
other information required to be provided pursuant to this Article 6, the
Borrowers promptly shall provide the Agent (and any guarantor of the
Liabilities), with such other and additional information concerning the
Borrowers, the Collateral, the operation of the Borrowers’ business, and the
Borrowers’ financial condition, including original counterparts of financial
reports and statements, as the Agent may from time to time reasonably request
from the Borrowers.


 


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(b)           The Borrowers may
provide the Agent, from time to time hereafter, with updated forecasts of the
Borrowers’ anticipated performance and operating results.


 


(c)           In all events, the
Borrowers, no earlier than Sixty (60) days prior to the end of each of the
Borrowers’ fiscal years and no later than the last day of each such fiscal
year, shall provide the Agent with an updated and extended forecast which shall
go out at least through the end of the then next fiscal year and shall include
an income statement, balance sheet, and statement of cash flow, by month, each
prepared in conformity with GAAP and consistent with the Borrowers’ then
current practices and acceptable to the Agent (the “Projections”).


 


(d)           The Borrowers
recognize that all appraisals, inventories, analysis, financial information,
and other materials which the Agent may obtain, develop, or receive with
respect to the Borrowers are confidential to the Agent and that, except as
otherwise provided herein, the Borrowers are not entitled to receipt of any of
such appraisals, inventories, analysis, financial information, and other
materials, nor copies or extracts thereof or therefrom.


 


6.11.       MINIMUM AVAILABILITY. Availability shall at no time between the
date hereof up to and including July 31, 2009 be less than Five Percent (5%)
of, and shall at no time after July 31, 2009 be less than Seven and a Half
Percent (7.5%) of, the lesser of (A) the then-current Maximum Revolving Credit
Ceiling or (B) (x) the then-current Borrowing Base plus
(y) the Term Loan A to Value Reserve (and, at any time after the Term Loan B
Guaranties have been released or otherwise terminated and so long as Term Loan
B is outstanding, the Term Loan B to Value Reserve) less
(z) Availability Reserves.


 


6.12.       CAPITAL EXPENDITURES.


 


(a)           The Borrowers will
not make Capital Expenditures that exceed, in the aggregate, (i) $25,000,000
for Fiscal 2008; (ii) $31,500,000 for Fiscal 2009 (plus any Unused Amount from
Fiscal 2008); (iii) $61,500,000 for Fiscal 2010 (plus any Unused Amount from
Fiscal 2008 and Fiscal 2009); and (iv) $35,000,000 for Fiscal 2011 (plus any
Unused Amount from Fiscal 2008 Fiscal 2009 and Fiscal 2010); provided that,
so long as any Term Loan B Obligations shall remain outstanding, the Borrowers
must demonstrate, by the date on which the Borrowers’ monthly reports are due
for the month of July pursuant to Section 6.5, that their EBITDA for the
previous 12 month period ending on or about July 31 of the current Fiscal year
was greater than or equal to 80% of EBITDA as set forth in the Borrowers’
Projections for such period and if the Borrowers are unable to make such
demonstration for such period the Agent may, in its absolute discretion, adjust
downward the amount of Capital Expenditures the Borrowers may make during the succeeding
Fiscal year, provided that the amount of Capital Expenditures for the
subsequent Fiscal year shall at no time be adjusted to an amount that is less
than 10% of the Borrowers’ EBITDA for the previous 12 month period ending on or
about July 31 of the then current Fiscal year.


 


(b)           For purposes of this
Section 6.12, “Unused Amount” shall mean the difference between the maximum
amount for Capital Expenditures for a given Fiscal year as set forth in clause
(a) above and the actual Capital Expenditures made by the Borrowers for such
Fiscal year (if such actual amount is less than such maximum).


 


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ARTICLE VII.      USE
OF COLLATERAL


 


7.1.         USE OF INVENTORY COLLATERAL.


 


(a)           Except as otherwise
permitted by Sections 5.5(b) or 5.13(d), the Borrowers shall not engage in:


 


(i)            Any sale of the Inventory other than
for fair consideration in the conduct of the Borrowers’ business in the
ordinary course (which ordinary course conduct shall include, without
limitation, closure during any Fiscal year of the Borrowers of up to Five
Percent (5%) of the number of Borrowers’ retail outlets operating at the
commencement of such Fiscal year).


 


(ii)           Sales or other dispositions to
creditors.


 


(iii)          Sales or other dispositions in bulk.


 


(iv)          Sales of any Collateral in breach of
any provision of this Agreement.


 


(b)           No sale of Inventory
shall be on consignment, approval, or under any other circumstances such that,
with the exception of the Borrowers’ customary return policy applicable to the
return of inventory purchased by the Borrowers’ retail customers in the
ordinary course, such Inventory may be returned to the Borrowers without the
consent of the Agent.


 


7.2.         INVENTORY QUALITY. All Inventory now owned or hereafter
acquired by the Borrowers is and will be of good and merchantable quality and
free from defects (other than defects within customary trade tolerances).


 


7.3.         ADJUSTMENTS AND ALLOWANCES. The Borrowers may grant such allowances or
other adjustments to the Borrowers’ Account Debtors (exclusive of extending the
time for payment of any Account or Account Receivable, which shall not be done
without first obtaining the Agent’s prior written consent in each instance) as
the Borrowers may reasonably deem to accord with sound business practice; provided, however, that during the
continuance of an Event of Default, the authority granted the Borrowers
pursuant to this Section 7.3 may be limited or terminated by the Agent at any
time in the Agent’s discretion.


 


7.4.         VALIDITY OF ACCOUNTS.


 


(a)           The amount of each
Account shown on the books, records, and invoices of the Borrowers represented
as owing by each Account Debtor is and will be the correct amount actually
owing by such Account Debtor and shall have been fully earned by performance by
the Borrowers, subject to such Account Debtor’s rights to return merchandise in
the normal course of the Borrowers’ business.


 


(b)           The Borrowers have
no knowledge of any impairment of the validity or collectibility of any of the
Eligible Credit Card Receivables other than impairments arising in the ordinary
course of business. The Borrowers shall notify the Agent of any impairment
outside the


 


90

















 


ordinary
course of business immediately after the Borrowers become aware of any such
impairment.


 


7.5.         NOTIFICATION TO ACCOUNT DEBTORS. The Agent shall have the right during the
continuance of an Event of Default to notify any of the Borrowers’ Account
Debtors to make payment directly to the Agent and to collect all amounts due on
account of the Collateral.


 


ARTICLE VIII.     CASH
MANAGEMENT. PAYMENT OF LIABILITIES


 


8.1.         DEPOSITORY ACCOUNTS.


 


(a)           SCHEDULE 8.1 to the Closing Certificate lists all present
DDAs, which Schedule includes, with respect to each depository (i) the name and
ABA routing number of that depository; (ii) the account number(s) of the
account(s) maintained with such depository; and (iii) a description of the type
of account and (iv) whether such DDA is a Local Account, a Blocked Account or
an Exempt DDA. The Borrowers shall provide the Agent with the name of a contact
person at such depository.


 


(b)           The Borrowers shall
deliver the following to the Agent, as a condition to the effectiveness of this
Agreement:


 


(i)            Notification, executed on behalf of
each Borrower, to each depository institution with which any DDA is maintained
(other than any Exempt DDA and any Blocked Account), in form satisfactory to
the Agent of the Agent’s interest in such DDA.


 


(ii)           A Blocked Account Agreement with any
depository institution at which either of the following conditions applies:


 


(A)       Both any DDA (other than the Operating
Account) and the Operating Account is maintained.


 


(B)       A Blocked Account is maintained.


 


(iii)          With respect to each DDA maintained by
any of the Overton’s Borrowers, such cash management arrangements and actions
to perfect the Lenders’ security interest therein as may be agreed with the
Agent, all in form and substance satisfactory to the Agent.


 


(c)           The Borrowers will
not establish any DDA hereafter (other than an Exempt DDA) unless,
contemporaneous with such establishment, the Borrowers deliver the following to
the Agent:


 


(i)            Notification to the depository at
which such DDA is established if the same would have been required pursuant to
Section 8.1(b)(ii)(A) if the subject DDA were open at the execution of this
Agreement.


 


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(ii)           A Blocked Account Agreement executed
on behalf of the depository at which such DDA is established if the same would
have been required pursuant to Section 8.1(b)(ii)(B) if the subject DDA were
open at the execution of this Agreement.


 


8.2.         CREDIT CARD RECEIPTS.


 


(a)           SCHEDULE 8.2 to the Closing Certificate lists all
arrangements to which each Borrower is a party with respect to the payment to
such Borrower of the proceeds of credit card charges for sales by such
Borrower.


 


(b)           Each Borrower shall
deliver to the Agent, as a condition to the effectiveness of this Agreement,
notification, executed on behalf of such Borrower, to each of such Borrower’s
credit card clearinghouses and processors (in form satisfactory to the Agent),
which notification provides that payment of all credit card charges submitted
by such Borrower to that clearinghouse or other processor and any other amount
payable to such Borrower by such clearinghouse or other processor shall be
directed to a Blocked Account or as otherwise designated from time to time by
the Agent. The Borrowers shall not change such direction or designation except
upon and with the prior written consent of the Agent.


 


8.3.         CASH MANAGEMENT.


 


(a)           The following
checking accounts have been or will be established (and are so referred to
herein):


 


(i)            The “Concentration
Account” (so referred to herein): Established by the Agent with Bank
of America or an Affiliate thereof.


 


(ii)           The “Local
Accounts” (so referred to herein): as set forth on SCHEDULE 8.1 to the
Closing Certificate.


 


(iii)          The “Blocked
Accounts” (so referred to herein): as set forth on SCHEDULE 8.1 to the
Closing Certificate.


 


(iv)          The “Operating
Account” (so referred to herein): 
as set forth in SCHEDULE
8.1 to the Closing Certificate.


 


(b)           The contents of each
DDA (other than Exempt DDA) and of the Blocked Account constitute Collateral
and Proceeds of Collateral. The contents of the Concentration Account
constitute the Agent’s property.


 


(c)           The Borrowers shall
pay all fees and charges of, and maintain such impressed balances as may be
required by the depository in which any account is opened as required hereby
(even if such account is opened by and/or is the property of the Agent).


 


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8.4.         PROCEEDS AND COLLECTIONS.


 


(a)           All Receipts and all
cash proceeds of any sale or other disposition of any Collateral:


 


(i)            Constitute Collateral and Proceeds
of Collateral.


 


(ii)           Shall be held in trust by the
Borrowers for the Agent.


 


(iii)          Shall not be commingled with the
Borrowers’ other funds, except as provided in Section 8.4(c).


 


(iv)          Shall be deposited and/or transferred
only to the Local Accounts, the Blocked Accounts or the Concentration Account.


 


(b)           The Borrowers shall
cause the then contents of each Local Account (other than any Exempt DDA) to be
transferred to a Blocked Account or the Concentration Account, by ACH or wire
transfer, no less frequently than daily on each Business Day.


 


(c)           In the event that,
notwithstanding the provisions of this Section 8.4, the Borrowers receive or
otherwise have dominion and control of any Receipts, or any proceeds or
collections of any Collateral, such Receipts, proceeds, and collections shall
be held in trust by the Borrowers for the Agent and shall not be commingled
with any of the Borrowers’ other funds and shall be deposited and/or
transferred to a Blocked Account or the Concentration Account directly or as
provided in paragraph (b).


 


8.5.         PAYMENT OF LIABILITIES.


 


(a)           On each Business
Day, the Agent shall apply the then collected balance of the Concentration
Account (net of fees charged, and of such impressed balances as may be required
by the bank at which the Concentration Account is maintained) on the day
following the receipt of such funds: First, towards the SwingLine Loans and
Second, towards the unpaid balance of the Loan Account and all other
Liabilities.


 


(b)           The following rules
shall apply to deposits and payments under and pursuant to this Section 8.5:


 


(i)            Funds shall be deemed to have been
deposited to the Concentration Account on the Business Day on which deposited, provided that notice of such deposit is available to the
Agent by 2:00PM on that Business Day.


 


(ii)           Funds paid to the Agent, other than
by deposit to the Concentration Account, shall be deemed to have been received
on the Business Day when they are good and collected funds, provided that notice of such payment is available to the
Agent by 2:00PM on that Business Day.


 


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(iii)          If notice of a deposit to the
Concentration Account (Section 8.5(b)(i)) or payment (Section 8.5(b)(ii)) is
not available to the Agent until after 2:00PM on a Business Day, such deposit
or payment shall be deemed to have been made at 9:00AM on the then next
Business Day.


 


(iv)          All deposits to the Concentration
Account and other payments to the Agent are subject to clearance and
collection.


 


(c)           The Agent shall
transfer to the Operating Account any surplus in the Concentration Account
remaining after any application towards the Liabilities required by Section
8.5(a), above (less those amounts which are to be netted out, as provided
therein); provided, however, in the event that


 


(i)            an Event of Default has occurred and
is continuing; and


 


(ii)           one or more L/Cs are then
outstanding,


 


then the Agent
may establish a funded reserve of up to 105% of the aggregate Stated Amounts of
such L/Cs. Such funded reserve shall either be (i) returned to the Borrowers provided that the Borrowers are not In Default or (ii)
applied towards the Liabilities following the occurrence of any Event of
Default described in Section 11.11 or acceleration following the occurrence of
any other Event of Default.


 


8.6.         THE OPERATING ACCOUNT.


 


Except as
otherwise specifically provided in, or permitted by, this Agreement, all checks
shall be drawn by the Borrowers upon, and other disbursements shall be made by
the Borrowers solely from, the Operating Account or an Exempt DDA.


 


ARTICLE IX.        GRANT
OF SECURITY INTEREST


 


9.1.         GRANT OF SECURITY INTEREST.


 


(a)           The Borrowers hereby
grant to the Agent, for the benefit of the Revolving Credit Lenders, the Term
Loan Lenders and the Agent, to secure the payment and performance in full of
all of the Liabilities, a security interest in and so pledge and assign to the
Agent, for the benefit of the Lenders and the Agent, the following properties,
assets and rights, wherever located, whether now owned or hereafter acquired or
arising, and all proceeds and products thereof (all of the same being
hereinafter called the “Collateral”):


 


All personal
property of every kind and nature including without limitation all goods
(including inventory, equipment and any accessions thereto), instruments
(including promissory notes), documents, accounts (including
health-care-insurance receivables), chattel paper (whether tangible or
electronic), deposit accounts, letter-of-credit rights (whether or not the
letter of credit is evidenced by a writing), commercial tort claims, securities
and all other investment property, supporting obligations, any other contract


 


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rights or
rights to the payment of money, insurance claims and proceeds, and all general
intangibles (including all payment intangibles).


 


(b)           Notwithstanding the
foregoing, “Collateral” shall not include Gander’s Real Estate, Leases,
fixtures or Equipment or any license, permit or similar rights granted to
Gander by any governmental authority which either by its terms or under
Applicable Law is not assignable or in which the granting of a security
interest is prohibited (the “Excluded Gander Collateral”).
For the avoidance of doubt, the term “Collateral” shall include the Real
Estate, Leases, fixtures and Equipment of the Overton’s Borrowers and any
license, permit or similar rights granted to any of the Overton’s Borrowers by
any governmental authority which either by its terms or under Applicable Law is
not assignable or in which the granting of a security interest is prohibited.


 


9.2.         EXTENT AND DURATION OF SECURITY INTEREST.


 


(a)           The security
interest created and granted herein is in addition to, and supplemental of, any
security interest previously granted by the Borrowers to the Agent and shall
continue in full force and effect applicable to all Liabilities until both (i)
all Liabilities have been paid and/or satisfied in full and (ii) the security
interest created herein is specifically terminated in writing by a duly authorized
officer of the Agent.


 


(b)           It is intended that
the Collateral Interests created herein extend to and cover all assets of the
Borrowers other than the Excluded Gander Collateral.


 


9.3.         AUTHORIZATION TO FILE FINANCING STATEMENTS. The Agent may at any time and from time to
time, pursuant to the provisions of Section 9.4(c), file financing statements,
continuation statements and amendments thereto that describe the Collateral as
all assets of the Borrowers or words of similar effect and which contain any
other information required by Part 5 of Article 9 of the UCC or such other
jurisdiction for the sufficiency or filing office acceptance of any financing
statement, continuation statement or amendment, including whether the Borrowers
is an organization, the type of organization and any organizational
identification number issued to the Borrowers. The Borrowers agree to furnish
any such information to the Agent promptly upon request.


 


9.4.         FURTHER ASSURANCES. The Borrowers shall at any time and from
time to time, take such steps as the Agent may reasonably request for the Agent
(i) to obtain an acknowledgement, in form and substance satisfactory to the
Agent, of any bailee or any warehouseman having possession of any of the
Collateral that the bailee or warehouseman holds such Collateral for the
benefit of the Agent, (ii) to obtain “control” of any investment property,
deposit accounts, promissory notes or tangible chattel paper, electronic
chattel paper or any “transferable record” as that term is defined in Section
201 of the federal Electronic Signatures in Global and National Commerce Act,
or in Section 16 of the Uniform Electronic Transactions Act as in effect in any
relevant jurisdiction, with any agreements establishing control to be in form
and substance satisfactory to the Agent, and (iii) otherwise to insure the
continued attachment perfection and priority of, and the ability of the Agent
to enforce, the Agent’s security interest in any and all of the Collateral and
of the preservation of its rights therein.


 


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(a)           If the Borrowers
shall at any time hold or acquire a commercial tort claim in excess of
$250,000, the Borrowers shall immediately notify the Agent in a writing signed
by the Borrowers of the brief details thereof and grant to the Agent, for the
benefit of the Revolving Credit Lenders and the Term Loan Lenders, in such
writing a security interest therein and in the proceeds thereof, all upon the
terms of the Agreement, with such writing to be in form and substance
satisfactory to the Agent.


 


(b)           If the Borrowers
shall at any time be a beneficiary under a letter of credit in excess of
$250,000, the Lead Borrower shall immediately notify the Agent thereof and, of
the request of the Agent, shall take such steps to (i) arrange for the issuer
and any confirmed or other nominated person of such letter of credit to consent
to an assignment to the Agent of the proceeds of such letter of credit and (ii)
arrange for the Agent to become the transferee beneficiary of such letter of
credit, such arrangements to be a form and substance satisfactory to the Agent.


 


(c)           Nothing contained in
this Section 9.4 shall be construed to narrow the scope of the Agent’s security
interest in any of the Collateral or the perfection or priority thereof or to
impair or otherwise limit any of the rights, powers, privileges or remedies of
the Agent, any Revolving Credit Lender or any Term Loan Lender hereunder.


 


ARTICLE X.         AGENT
AS BORROWERS’ ATTORNEY-IN-FACT


 


10.1.       APPOINTMENT AS ATTORNEY-IN-FACT. The Borrowers hereby irrevocably constitute
and appoint the Agent (acting through any of its officers) as the Borrowers’
true and lawful attorney, with full power of substitution, following the
occurrence and during the continuance of an Event of Default, to convert the
Collateral into cash at the sole risk, cost, and expense of the Borrowers, but
for the sole benefit of the Agent, the Revolving Credit Lenders and the Term
Loan Lenders. The rights and powers granted the Agent by this appointment
include but are not limited to the right and power to:


 


(a)           Prosecute, defend,
compromise, or release any action relating to the Collateral.


 


(b)           Sign change of
address forms to change the address to which the Borrowers’ mail is to be sent
to such address as the Agent shall designate; receive and open the Borrowers’
mail; remove any Receivables Collateral and Proceeds of Collateral therefrom
and turn over the balance of such mail either to the Borrowers or to any
trustee in bankruptcy or receiver of the Borrowers, or other legal
representative of the Borrowers whom the Agent determines to be the appropriate
person to whom to so turn over such mail.


 


(c)           Endorse the name of
the Borrowers in favor of the Agent upon any and all checks, drafts, notes, acceptances,
or other items or instruments; sign and endorse the name of the Borrowers on,
and receive as secured party, any of the Collateral, any invoices, schedules of
Collateral, freight or express receipts, or bills of lading, storage receipts,
warehouse receipts, or other documents of title respectively relating to the
Collateral.


 


(d)           Sign the name of the
Borrowers on any notice to the Borrowers’ Account Debtors or verification of
the Receivables Collateral; sign the Borrowers’ name on any Proof of Claim in


 


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Bankruptcy
against Account Debtors, and on notices of lien, claims of mechanic’s liens, or
assignments or releases of mechanic’s liens securing the Accounts.


 


(e)           Take all such action
as may be necessary to obtain the payment of any letter of credit and/or banker’s
acceptance of which the Borrowers are a beneficiary.


 


(f)            Repair,
manufacture, assemble, complete, package, deliver, alter or supply goods, if
any, necessary to fulfill in whole or in part the purchase order of any
customer of the Borrowers.


 


(g)           Use, license or
transfer any or all General Intangibles of the Borrowers.


 


10.2.       NO OBLIGATION TO ACT. The Agent shall not be obligated to do any
of the acts or to exercise any of the powers authorized by Section 10.1 herein,
but if the Agent elects to do any such act or to exercise any of such powers,
it shall not be accountable for more than it actually receives as a result of
such exercise of power, and shall not be responsible to the Borrowers for any
act or omission to act except for any act or omission to act as to which there
is a final determination made in a judicial proceeding (in which proceeding the
Agent has had an opportunity to be heard) which determination includes a
specific finding that the subject act or omission to act had been grossly
negligent or in actual bad faith.


 


ARTICLE XI.        EVENTS
OF DEFAULT


 


The occurrence
of any event described in this Article 11 respectively shall constitute an “Event of Default” herein. Upon the occurrence of any Event
of Default described in Section 11.11, any and all Liabilities shall become due
and payable without any further act on the part of the Agent. Upon the
occurrence of any other Event of Default, the Agent may, and on the instruction
of the SuperMajority Lenders as provided in Section 13.1(b) shall, declare any
and all Liabilities immediately due and payable. The occurrence of any Event of
Default shall also constitute, without notice or demand, a default under all
other agreements between the Agent, any Revolving Credit Lender, or any Term
Loan Lender and the Borrowers and instruments and papers heretofore, now, or
hereafter given the Agent, any Revolving Credit Lender or any Term Loan Lender
by the Borrowers.


 


11.1.       FAILURE TO PAY THE REVOLVING CREDIT OR THE TERM
LOANS. The
failure by the Borrowers to pay when due any principal of, interest on, or fees
in respect of, the Revolving Credit or any Term Loan.


 


11.2.       FAILURE TO MAKE OTHER PAYMENTS. The failure by the Borrowers to pay when
due (or within Two (2) days after demand, if payable on demand) any payment
Liability other than any payment liability on account of the principal of, or
interest on, or fees in respect of, the Revolving Credit or any Term Loan.


 


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11.3.       FAILURE TO PERFORM COVENANT OR LIABILITY (NO
GRACE PERIOD).
The failure by the Borrowers to promptly, punctually, faithfully and timely
perform, discharge, or comply with any covenant or Liability included in any of
the following provisions hereof:


 


	
  Section

  	
   

  	
  Relates to

  
	
   

  	
   

  	
   

  
	
  5.7

  	
   

  	
  Indebtedness

  
	
   

  	
   

  	
   

  
	
  5.8(b)

  	
   

  	
  Maintenance of Insurance

  
	
   

  	
   

  	
   

  
	
  5.14

  	
   

  	
  Pay taxes

  
	
   

  	
   

  	
   

  
	
  5.20

  	
   

  	
  Dividends. Investments. Other Corporate
  Actions

  
	
   

  	
   

  	
   

  
	
  5.24

  	
   

  	
  Affiliate Transactions

  
	
   

  	
   

  	
   

  
	
  Article 6:

  	
   

  	
  Financial Reporting and Performance
  Covenants

  
	
   

  	
   

  	
   

  
	
  Article 8:

  	
   

  	
  Cash Management; Payment of Liabilities

  



 


11.4.       FAILURE TO PERFORM COVENANT OR LIABILITY (GRACE
PERIOD). The
failure by the Borrowers; within Ten (10) days following the earlier of the
Borrowers’ knowledge of a breach of any covenant or Liability not described in
any of Sections 11.1, 11.2, or 11.3 or of its receipt of written notice from
the Agent of the breach of any of such covenants or Liabilities to perform
discharge or comply with any such covenants or liabilities.


 


11.5.       MISREPRESENTATION. The determination by the Agent that any
representation or warranty at any time made by the Borrowers to the Agent, any
Revolving Credit Lender or any Term Loan Lender was not true or complete in all
material respects when given.


 


11.6.       ACCELERATION OF OTHER DEBT. BREACH OF LEASE. The occurrence of any event such that any
Indebtedness in excess of $2,500,000 of the Borrowers to any creditor other
than the Agent, any Revolving Credit Lender or any Term Loan Lender could be
accelerated or, without the consent of the Borrowers, any Capital Lease valued
in excess of $2,500,000 or more than Three (3) Leases could be terminated
(whether or not the subject creditor or lessor takes any action on account of
such occurrence).


 


11.7.       DEFAULT UNDER OTHER AGREEMENTS. The occurrence of any breach of any
covenant or Liability imposed by, or of any default under, any agreement
(including any Loan Document) between the Agent, any Revolving Credit Lender or
any Term Loan Lender and the Borrowers or instrument given by the Borrowers to
the Agent, any Revolving Credit Lender or any Term Loan Lender and the expiry,
without cure, of any applicable grace period 
(notwithstanding that the subject Agent, Revolving Credit Lender or Term
Loan Lender may not have exercised all or any of its rights on account of such
breach or default).


 


11.8.       UNINSURED CASUALTY LOSS. The occurrence of any uninsured loss,
theft, damage, or destruction of or to any portion of the Collateral valued at
$2,500,000 or greater.


 


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11.9.       ATTACHMENT. Judgment. Restraint of Business.


 


(a)           The service of
process upon the Agent, any Revolving Credit Lender or any Term Loan Lender or
any Participant seeking to attach, by trustee, mesne, or other process, any
funds of any Borrower on deposit with, or assets of any Borrower in the
possession of, the Agent, that Revolving Credit Lender, that Term Loan Lender
or such Participant, which funds or other assets are valued at $2,500,000 or
greater.


 


(b)           The entry of any
judgment in excess of $2,500,000 against any Borrower, which judgment is not
satisfied (if a money judgment) or appealed from (with execution or similar
process stayed) within Thirty (30) days of its entry.


 


(c)           The entry of any
order or the imposition of any other process having the force of law, the
effect of which is to restrain in any material way the conduct by any Borrower
of its business in the ordinary course.


 


11.10.     BUSINESS FAILURE. Any act by, against, or relating to any Borrower, or its property or
assets, which act constitutes the determination, by any Borrower, to initiate a
program of partial or total self-liquidation; application for, consent to, or
sufferance of the appointment of a receiver, trustee, or other person, pursuant
to court action or otherwise, over all, or any material part of any Borrower’s
property (and if commenced against any Borrower, is not timely contested by
such Borrower in good faith by appropriate proceedings, and if not contested is
not dismissed within Forty-Five (45) days); the granting of any trust mortgage
or execution of an assignment for the benefit of the creditors of any Borrower,
or the occurrence of any other voluntary or involuntary liquidation or
extension of debt agreement for any Borrower; the offering by or entering into
by any Borrower of any composition, extension, or any other arrangement seeking
relief from or extension of the debts of any Borrower; or the initiation of any
judicial or non-judicial proceeding or agreement by, against, or including any
Borrower which seeks or intends to accomplish a reorganization or arrangement
with creditors; and/or the initiation by or on behalf of any Borrower of the
liquidation or winding up of all or any material part of any Borrower’s
business or operations.


 


11.11.     BANKRUPTCY. The failure by any Borrower or Term Loan B Guarantor to generally pay
the debts of any Borrower or Term Loan B Guarantor as they mature; adjudication
of bankruptcy or insolvency relative to any Borrower or Term Loan B Guarantor;
the entry of an order for relief or similar order with respect to any Borrower
or Term Loan B Guarantor in any proceeding pursuant to the Bankruptcy Code or
any other federal bankruptcy law; the filing of any complaint, application, or
petition by any Borrower or Term Loan B Guarantor initiating any matter in
which any Borrower or Term Loan B Guarantor is or may be granted any relief
from the debts of any Borrower or Term Loan B Guarantor pursuant to the
Bankruptcy Code or any other insolvency statute or procedure; the filing of any
complaint, application, or petition against any Borrower or Term Loan B
Guarantor initiating any matter in which any Borrower or Term Loan B Guarantor
is or may be granted any relief from the debts of any Borrower or Term Loan B
Guarantor pursuant to the Bankruptcy Code or any other insolvency statute or
procedure, which complaint, application, or petition is not timely contested in
good faith by any Borrower


 


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or
Term Loan B Guarantor by appropriate proceedings or, if so contested, is not
dismissed within Forty-Five (45) days of when filed.


 


11.12.     INDICTMENT - FORFEITURE. The indictment of, or institution of any
legal process or proceeding against, any Borrower, under any Applicable Law
where the relief, penalties, or remedies sought or available include the
forfeiture of any property of any Borrower and/or the imposition of any stay or
other order, the effect of which could be to restrain in any material way the
conduct by any Borrower of their business in the ordinary course.


 


11.13.     CHALLENGE TO LOAN DOCUMENTS.


 


(a)           Any challenge by or
on behalf of any party to the Loan Documents (other than the Agent or a Lender)
to the validity of any Loan Document or the applicability or enforceability of
any Loan Document strictly in accordance with the subject Loan Document’s terms
or which seeks to void, avoid, limit, or otherwise adversely affect any
security interest created by or in any Loan Document or any payment made
pursuant thereto.


 


(b)           Any determination by
any court or any other judicial or government authority that any Loan Document
is not enforceable strictly in accordance with the subject Loan Document’s
terms or which voids, avoids, limits, or otherwise adversely affects any
security interest created by any Loan Document or any payment made pursuant
thereto.


 


11.14.     CHANGE IN CONTROL. Any Change in Control.


 


ARTICLE XII.      RIGHTS
AND REMEDIES UPON DEFAULT


 


12.1.       ACCELERATION. Upon the occurrence of any Event of Default
as described in Section 11.11, all Liabilities of the Borrowers to the
Revolving Credit Lenders and the Term Loan Lenders shall be immediately due and
payable. Upon the occurrence of any Event of Default other than as described in
Section 11.11, the Agent may (and on the issuance of Acceleration Notice(s)
requisite to the causing of Acceleration, the Agent shall) declare all
Liabilities of the Borrowers to the Revolving Credit Lenders and the Term Loan
Lenders to be immediately due and payable and may exercise all of the Agent’s
Rights and Remedies as the Agent from time to time thereafter determines as
appropriate.


 


12.2.       RIGHTS OF ENFORCEMENT. The Agent shall have all of the rights and
remedies of a secured party upon default under the UCC, in addition to which
the Agent shall have all and each of the following rights and remedies:


 


(a)           To give notice to
any bank at which any DDA or Blocked Account is maintained and in which
Proceeds of Collateral are deposited, to turn over such Proceeds directly to
the Agent.


 


(b)           To give notice to
any of the Borrowers’ customs brokers to follow the instructions of the Agent
as provided in any written agreement or undertaking of such broker in favor of
the Agent.


 


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(c)           To collect the
Receivables Collateral with or without the taking of possession of any of the
Collateral.


 


(d)           To take possession
of all or any portion of the Collateral.


 


(e)           To sell, lease, or
otherwise dispose of any or all of the Collateral, in its then condition or
following such preparation or processing as the Agent deems advisable and with
or without the taking of possession of any of the Collateral.


 


(f)            To conduct one or
more going out of business sales which include the sale or other disposition of
the Collateral.


 


(g)           To apply the
Receivables Collateral or the Proceeds of the Collateral towards (but not
necessarily in complete satisfaction of) the Liabilities.


 


(h)           To exercise all or
any of the rights, remedies, powers, privileges, and discretions under all or
any of the Loan Documents.


 


12.3.       SALE OF COLLATERAL.


 


(a)           Any sale or other
disposition of the Collateral may be at public or private sale upon such terms
and in such manner as the Agent deems advisable, having due regard to
compliance with any statute or regulation which might affect, limit, or apply
to the Agent’s disposition of the Collateral.


 


(b)           The Agent, in the
exercise of the Agent’s rights and remedies upon default, may conduct one or
more going out of business sales, in the Agent’s own right or by one or more
agents and contractors. Such sale(s) may be conducted upon any premises owned,
leased, or occupied by the Borrowers. The Agent and any such agent or
contractor, in conjunction with any such sale, may augment the Inventory with
other goods (all of which other goods shall remain the sole property of the
Agent or such agent or contractor). Any amounts realized from the sale of such
goods which constitute augmentations to the Inventory (net of an allocable
share of the costs and expenses incurred in their disposition) shall be the
sole property of the Agent or such agent or contractor and neither the
Borrowers nor any Person claiming under or in right of the Borrowers shall have
any interest therein.


 


(c)           Unless the
Collateral is perishable or threatens to decline speedily in value, or is of a
type customarily sold on a recognized market (in which event the Agent shall
provide the Borrowers such notice as may be practicable under the
circumstances), the Agent shall give the Borrowers at least Ten (10) days prior
written notice of the date, time, and place of any proposed public sale, and of
the date after which any private sale or other disposition of the Collateral
may be made. The Borrowers agree that such written notice shall satisfy all requirements
for notice to the Borrowers which are imposed under the UCC or other applicable
law with respect to the exercise of the Agent’s rights and remedies upon
default.


 


(d)           The Agent, any
Revolving Credit Lender and any Term Loan Lender may purchase the Collateral,
or any portion of it at any sale held under this Article 12.


 


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(e)           If any of the
Collateral is sold, leased, or otherwise disposed of by the Agent on credit,
the Liabilities shall not be deemed to have been reduced as a result thereof
unless and until payment is finally received thereon by the Agent.


 


(f)            The Agent shall
apply the proceeds of the Agent’s exercise of its rights and remedies upon
default pursuant to this Article 12 in accordance with Sections 13.6 and 13.7.


 


12.4.       OCCUPATION OF BUSINESS LOCATION. In connection with the Agent’s exercise of
the Agent’s rights under this Article 12, the Agent may enter upon, occupy, and
use any premises owned or occupied by the Borrowers, and may exclude the
Borrowers from such premises or portion thereof as may have been so entered
upon, occupied, or used by the Agent. The Agent shall not be required to remove
any of the Collateral from any such premises upon the Agent’s taking possession
thereof, and may render any Collateral unusable to the Borrowers. In no event
shall the Agent be liable to the Borrowers for use or occupancy by the Agent of
any premises pursuant to this Article 12, nor for any charge (such as wages for
the Borrowers’ employees and utilities) incurred in connection with the Agent’s
exercise of the Agent’s Rights and Remedies.


 


12.5.       GRANT OF NONEXCLUSIVE LICENSE. The Borrowers hereby grant to the Agent a
royalty free nonexclusive irrevocable license to use, apply, and affix any trademark,
trade name, logo, or the like in which the Borrowers now or hereafter have
rights, such license being with respect to the Agent’s exercise of the rights
hereunder including, without limitation, in connection with any completion of
the manufacture of Inventory or sale or other disposition of Inventory.


 


12.6.       ASSEMBLY OF COLLATERAL. The Agent may require the Borrowers to
assemble the Collateral and make it available to the Agent at the Borrowers’
sole risk and expense at a place or places which are reasonably convenient to
both the Agent and the Borrowers.


 


12.7.       RIGHTS AND REMEDIES. The rights, remedies, powers, privileges,
and discretions of the Agent hereunder (herein, the “Agent’s Rights and Remedies”) shall be cumulative and not
exclusive of any rights or remedies which it would otherwise have. No delay or
omission by the Agent in exercising or enforcing any of the Agent’s Rights and
Remedies shall operate as, or constitute, a waiver thereof. No waiver by the
Agent of any Event of Default or of any default under any other agreement shall
operate as a waiver of any other default hereunder or under any other agreement.
No single or partial exercise of any of the Agent’s Rights or Remedies and no
express or implied agreement or transaction of whatever nature entered into
between the Agent and any person, at any time, shall preclude the other or
further exercise of the Agent’s Rights and Remedies. No waiver by the Agent of
any of the Agent’s Rights and Remedies on any one occasion shall be deemed a waiver
on any subsequent occasion, nor shall it be deemed a continuing waiver. The
Agent’s Rights and Remedies may be exercised at such time or times and in such
order of preference as the Agent may determine. The Agent’s Rights and Remedies
may be exercised without resort or regard to any other source of satisfaction
of the Liabilities.


 


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ARTICLE XIII.     ACCELERATION
AND LIQUIDATION


 


13.1.       ACCELERATION NOTICES.


 


(a)           The Agent may give
the Lenders an Acceleration Notice at any time during the continuance of an
Event of Default.


 


(b)           The SuperMajority
Lenders may give the Agent an Acceleration Notice at any time during the
continuance of an Event of Default. Such notice may be by multiple
counterparts; provided  that
counterparts executed by the requisite Lenders are received by the Agent within
a period of Five (5) consecutive Business Days.


 


(c)           The SuperMajority
Term Loan A Lenders may give the Agent an Acceleration Notice at any time
during the continuance of an Event of Default under Sections 11.1 or 11.2, in
each case in relation to Term Loan A. Such notice may be by multiple
counterparts; provided  that
counterparts executed by the requisite Term Loan A Lenders are received by the
Agent within a period of Five (5) consecutive Business Days.


 


(d)           The SuperMajority
Term Loan B Lenders may give the Agent an Acceleration Notice at any time
during the continuance of an Event of Default under Sections 11.1 or 11.2, in
each case in relation to Term Loan B. Such notice may be by multiple
counterparts; provided  that
counterparts executed by the requisite Term Loan B Lenders are received by the
Agent within a period of Five (5) consecutive Business Days.


 


13.2.       ACCELERATION. Unless stayed by judicial or statutory
process, the Agent shall Accelerate the Obligations within a commercially
reasonable time following:


 


(a)           The Agent’s giving
of an Acceleration Notice to the Lenders as provided in Section 13.1(a).


 


(b)           The Agent’s receipt
of an Acceleration Notice from the SuperMajority Lenders, in compliance with
Section 13.1(b).


 


(c)           The Agent’s receipt
of an Acceleration Notice from the SuperMajority Term Loan A Lenders, in
compliance with Section 13.1(c).


 


(d)           The Agent’s receipt
of an Acceleration Notice from the SuperMajority Term Loan B Lenders, in
compliance with Section 13.1(d).


 


13.3.       INITIATION OF LIQUIDATION. Unless stayed by judicial or statutory
process, a Liquidation shall be initiated by the Agent within a commercially
reasonable time following Acceleration of the Obligations.


 


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13.4.       ACTIONS AT AND FOLLOWING INITIATION OF
LIQUIDATION.


 


(a)           At the initiation of
a Liquidation:


 


(i)            The unpaid principal balance of the
SwingLine Loan (if any) shall be converted, pursuant to Section 2.24(b)(ii), to
a Revolving Credit Loan in which all Revolving Credit Lenders participate.


 


(ii)           The Agent and the Revolving Credit
Lenders shall “net out” each Revolving Credit Lender’s respective contributions
towards the Revolving Credit Loans, so that each Revolving Credit Lender holds
that Revolving Credit Lender’s Revolving Credit Percentage Commitment of the
Revolving Credit Loans and advances.


 


(b)           Following the
initiation of a Liquidation, each Revolving Credit Lender shall contribute
(absent any Issuer’s gross negligence or willful misconduct), towards any L/C
thereafter honored and not immediately reimbursed by the Borrowers, that
Revolving Credit Lender’s Revolving Credit Percentage Commitment of such
honoring.


 


13.5.       AGENT’S CONDUCT OF LIQUIDATION.


 


(a)           Any Liquidation
shall be conducted by the Agent, with the advice and assistance of the Lenders.


 


(b)           The Agent may
establish one or more Nominees to “bid in” or otherwise acquire ownership to
any Post Foreclosure Asset.


 


(c)           The Agent shall
manage the Nominee and manage and dispose of any Post Foreclosure Assets with a
view towards the realization of the economic benefits of the ownership of the
Post Foreclosure Assets and in such regard, the Agent and/or the Nominee may
operate, repair, manage, maintain, develop, and dispose of any Post Foreclosure
Asset in such manner as the Agent determines as appropriate under the
circumstances.


 


(d)           The Agent may
decline to undertake or to continue taking a course of action or to execute an
action plan (whether proposed by the Agent or any Lender) unless indemnified to
the Agent’s satisfaction by the Lenders against any and all liability and
expense which may be incurred by the Agent by reason of taking or continuing to
take that course of action or action plan.


 


(e)           Each Lender shall
execute all such instruments and documents not inconsistent with the provisions
of this Agreement as the Agent and/or the Nominee reasonably may request with
respect to the creation and governance of any Nominee, the conduct of the
Liquidation, and the management and disposition of any Post Foreclosure Asset.


 


13.6.       DISTRIBUTION OF LIQUIDATION PROCEEDS.


 


(a)           The Agent may
establish one or more reasonably funded reserve accounts into which proceeds of
the conduct of any Liquidation may be deposited in anticipation of future


 


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expenses
which may be incurred by the Agent in the exercise of rights as a secured
creditor of the Borrowers and prior claims which the Agent anticipates may need
to be paid.


 


(b)           The Agent shall
distribute the net proceeds of Liquidation in accordance with the relative
priorities set forth in Section 13.7.


 


(c)           Each Revolving
Credit Lender and Term Loan Lender, on the written request of the Agent and/or
any Nominee, not more frequently than once each month, shall reimburse the
Agent and/or any Nominee, pro-rata in proportion to their respective Revolving
Credit Percentage Commitment and Term Loan Percentage, for any cost or expense
reasonably incurred by the Agent and/or the Nominee in the conduct of a
Liquidation, which amount is not covered out of current proceeds of the
Liquidation, which reimbursement shall be paid over to and distributed by the
Agent.


 


(d)           All prepayments of
LIBOR Loans prior to the end of an Interest Period shall obligate the Borrowers
to pay any breakage costs associated with such LIBOR Loans in accordance with
Section 2.10(e). Prior to the occurrence of any Event of Default, the Borrowers
may elect to avoid such breakage costs by providing to the Agent cash in an
amount sufficient to cash collateralize such LIBOR Loans, but in no event shall
the Borrowers be deemed to have paid such LIBOR Loans until such cash has been
paid to the Agent for application to such LIBOR Loans. The Agent may elect to
cause such cash collateral to be deposited into either (i) a cash collateral
account pursuant to the terms of a cash collateral agreement executed by the
Borrowers and the Agent and in form and substance satisfactory to the Agent or
(ii) the Borrowers’ Operating Account with appropriate instructions prohibiting
the Borrowers’ withdrawal of such funds so long as they remain cash collateral.
In each such case, the Borrowers agree to execute and deliver to the Agent such
instruments and documents, including Uniform Commercial Code financing
statements and agreements with any third party depository banks, as the Agent
may request.


 


13.7.       RELATIVE PRIORITIES TO PROCEEDS OF LIQUIDATION.


 


(a)           With respect to the
to the proceeds of a Liquidation of Collateral (excluding Term Loan B Priority
Collateral and proceeds of the Term Loan B Guaranties) the relative priorities
are as follows:


 


(i)            To the Agent as reimbursement for
all reasonable third party costs and expenses incurred by the Agent and to the
Lenders’ Special Counsel and to any funded reserve established pursuant to
Section 13.6(a); and then


 


(ii)           To the SwingLine Lender, on account
of any SwingLine loans not converted to Revolving Credit Loans pursuant to
Section 13.4(a)(i); and then


 


(iii)          To the payment of that portion of the
Obligations constituting accrued and unpaid L/C fees and interest on the
Revolving Credit Loans and Reimbursement Obligations (including post-petition
interest and L/C fees, whether or not permitted in a bankruptcy proceeding),
ratably among the Revolving Credit Lenders in proportion to the respective
amounts described in this clause payable to them; and then


 


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(iv)          To the Revolving Credit Lenders (other
than any Delinquent Revolving Credit Lender), to the payment of that portion of
the Obligations constituting unpaid principal of the Revolving Credit Loans and
Reimbursement Obligations, and to the Agent, to cash collateralize that portion
of the undrawn Stated Amount of L/Cs outstanding, ratably in proportion to the
respective amounts described in this clause held by them; and then


 


(v)           To any Delinquent Revolving Credit
Lenders, pro-rata to amounts to which such Revolving Credit Lenders otherwise
would have been entitled pursuant to Section 13.7(d), and then


 


(vi)          To the Revolving Credit Lenders, pro-rata,
to those fees (other than the Revolving Credit Early Termination Fee)
(including post-petition fees, whether or not permitted in a bankruptcy
proceeding) distributable hereunder to the Revolving Credit Lenders; and then


 


(vii)         To the payment of that portion of the
Obligations constituting accrued and unpaid interest on Term Loan A (including
post-petition interest and L/C fees, whether or not permitted in a bankruptcy
proceeding), ratably among the Term Loan A Lenders in proportion to the
respective amounts described in this clause payable to them; and then


 


(viii)        To the Term Loan A Lenders, to the
payment of that portion of the Obligations constituting unpaid principal of
Term Loan A, ratably in proportion to the respective amounts described in this
clause held by them; and then


 


(ix)           To the Term Loan A Lenders, pro-rata,
to those fees (other than the Term Loan A Early Termination Fee) (including
post-petition fees, whether or not permitted in a bankruptcy proceeding)
distributable hereunder to the Term Loan A Lenders; and then


 


(x)            To the payment of that portion of
the Obligations constituting accrued and unpaid interest on Term Loan B
(including post-petition interest and L/C fees, whether or not permitted in a
bankruptcy proceeding), ratably among the Term Loan B Lenders in proportion to
the respective amounts described in this clause payable to them; and then


 


(xi)           To the Term Loan B Lenders, to the
payment of that portion of the Obligations constituting unpaid principal of
Term Loan B, ratably in proportion to the respective amounts described in this
clause held by them; and then


 


(xii)          To the Term Loan B Lenders, pro-rata,
to those fees (other than any early termination fees payable in respect of Term
Loan B) (including post-petition fees, whether or not permitted in a bankruptcy
proceeding) distributable hereunder to the Term Loan B Lenders; and then


 


(xiii)         To Liabilities owed to the Agent
pursuant to clause (b) of the definition of Liabilities relating to cash
management services; and then


 


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(xiv)        To the Revolving Credit Lenders, pro-rata,
to the extent of the Revolving Credit Early Termination Fee; and then


 


(xv)         To the Term Loan A Lenders, pro-rata,
to the extent of the Term Loan A Early Termination Fee; and then


 


(xvi)        To the Term Loan B Lenders, pro-rata, to
the extent of any termination fees in respect of Term Loan B; and then


 


(xvii)       To any other Liabilities.


 


(b)           With respect to the
proceeds of a Liquidation of Term Loan B Priority Collateral and all proceeds
of the Term Loan B Guaranties, the relative priorities are as follows:


 


(i)            To the payment of that portion of
the Obligations constituting accrued and unpaid interest on Term Loan B,
ratably among the Term Loan B Lenders in proportion to the respective amounts
described in this clause payable to them; and
then


 


(ii)           To the Term Loan B Lenders, to the
payment of that portion of the Obligations constituting unpaid principal of
Term Loan B, ratably in proportion to the respective amounts described in this
clause held by them; and then


 


(iii)          To the Term Loan B Lenders, pro-rata,
to those fees (other than any early termination fees payable in respect of Term
Loan B) (including post-petition fees, whether or not permitted in a bankruptcy
proceeding) distributable hereunder to the Term Loan B Lenders; and then


 


(iv)          To any other Liabilities under this
Agreement in accordance with Section 13.7(a)(i) through (ix) above and (xiii)
through (xvii).


 


ARTICLE XIV.     THE
AGENT


 


14.1.       APPOINTMENT OF THE AGENT.


 


(a)           Each of the
Revolving Credit Lenders, the Term Loan Lenders and the Issuer appoints and
designates Bank of America to
act on its behalf as the “Agent” hereunder and under the other Loan Documents.


 


(b)           Each Revolving
Credit Lender and Term Loan Lender authorizes the Agent:


 


(i)            To execute those of the Loan
Documents and all other instruments relating thereto to which the Agent is a
party.


 


(ii)           To take such action on behalf of the
Revolving Credit Lenders and the Term Loan Lenders and to exercise all such
powers as are expressly delegated to the Agent hereunder and in the other Loan
Documents and all related documents, together with such other powers as are
reasonably incident thereto.


 


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The provisions
of this Article 14 are solely for the benefit of the Agent, the Revolving
Credit Lenders, the Term Loan Lenders and the Issuer, and the Borrowers shall not have rights as
a third party beneficiary of any of such provisions.


 


14.2.       RESPONSIBILITIES OF AGENT.


 


(a)           The Agent shall not
have any duties or responsibilities to any Revolving Credit Lender or any Term
Loan Lender except for those expressly set forth in this Agreement and in the
other Loan Documents. Neither the Syndication Agent, the Documentation Agent
nor the Collateral Agent shall have any duties or responsibilities under this
Agreement.


 


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


 


(c)           Neither the Agent
nor any of its Affiliates shall be responsible to any Revolving Credit Lender
or Term Loan Lender for any of the following:


 


(i)            Any recitals, statements, representations
or warranties made by the Borrowers or any other Person.


 


(ii)           Any appraisals or other assessments
of the assets of the Borrowers or of any other Person responsible for or on
account of the Liabilities.


 


(iii)          The value, validity, effectiveness, genuineness,
enforceability, or sufficiency of the Loan Agreement, the Loan Documents or any
other document referred to or provided for therein.


 


(iv)          Any failure by the Borrowers or any
other Person (other than the Agent) to perform its obligations under the Loan
Documents.


 


(d)           The Agent may employ
attorneys, accountants, and other professionals and agents and attorneys-in-fact
and shall not be responsible for the negligence or misconduct of any such
attorneys, accountants, and other professionals or agents or attorneys-in-fact
selected by the Agent with reasonable care. No such attorney, accountant, other
professional, agent, or attorney-in-fact shall be responsible for any action
taken or omitted to be taken by any other such Person.


 


(e)           Neither the Agent,
nor any of its directors, officers, or employees shall be responsible for any
action taken or omitted to be taken or omitted to be taken by any other of them
in connection herewith in reliance upon advice of its counsel nor, in any other
event except for any action taken or omitted to be taken as to which a final
judicial determination has been or is made (in a proceeding in which such
Person has had an opportunity to be heard) that such Person had acted in a
grossly negligent manner, in actual bad faith, or in willful misconduct.


 


(f)            The Agent shall not
have any responsibility in any event for more funds than the Agent actually
receives and collects.


 


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


 


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


 


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


 


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


 


(k)           The Agent shall not
be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein
or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or (v) the satisfaction of any
condition set forth in Article 4 or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Agent.


 


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14.3.       CONCERNING DISTRIBUTIONS BY THE AGENT.


 


(a)           The Agent in the
Agent’s reasonable discretion based upon the Agent’s determination of the
likelihood that additional payments will be received, expenses incurred, and/or
claims made by third parties to all or a portion of such proceeds, may delay
the distribution of any payment received on account of the Liabilities.


 


(b)           The Agent may
disburse funds prior to determining that the sums which the Agent expects to
receive have been finally and unconditionally paid to the Agent. If and to the
extent that the Agent does disburse funds and it later becomes apparent that
the Agent did not then receive a payment in an amount equal to the sum paid
out, then any Revolving Credit Lender or Term Loan Lender to whom the Agent
made the funds available, on demand from the Agent, shall refund to the Agent
the sum paid to that person.


 


(c)           If, in the opinion
of the Agent, the distribution of any amount received by the Agent might
involve the Agent in liability, or might be prohibited hereby, or might be
questioned by any Person, then the Agent may refrain from making distribution
until the Agent’s right to make distribution has  been adjudicated by a court of competent
jurisdiction.


 


(d)           The proceeds of any
Lender’s exercise of any right of, or in the nature of, set-off shall be
deemed, First, to the extent that such Lender is
entitled to any distribution hereunder, to constitute such distribution and Second, shall be shared with the other Lenders as if
distributed pursuant to (and shall be deemed as distributions under) Section
13.7.


 


(e)           Each Lender
recognizes that the crediting of the Borrowers with the “proceeds” of any
transaction in which a Post Foreclosure Asset is acquired is a non-cash transaction
and that, in consequence, no distribution of such “proceeds” will be made by
the Agent to any Lender.


 


(f)            In the event that
(x) a court of competent jurisdiction shall adjudge that any amount received
and distributed by the Agent is to be repaid or disgorged or (y) the
SuperMajority Lenders determine to effect such repayment or disgorgement, then
each Lender to which any such distribution shall have been made shall repay, to
the Agent which had made such distribution, that Lender’s pro-rata share of the
amount so adjudged or determined to be repaid or disgorged.


 


14.4.       DISPUTE RESOLUTION. Any dispute among the Lenders and/or the
Agent concerning the interpretation, administration, or enforcement of the
financing arrangements contemplated by this or any other Loan Document or the
interpretation or administration of this or any other Loan Document which
cannot be resolved amicably shall be resolved in the United States District
Court for the District of Massachusetts, sitting in Boston or in the  Superior Court of Suffolk County,
Massachusetts, to the jurisdiction of which courts each Lender  hereto hereby submits.


 


14.5.       DISTRIBUTIONS OF NOTICES AND OF DOCUMENTS. The Agent will forward to each Lender,
promptly after the Agent’s receipt thereof, a copy of each notice or other
document furnished to the Agent pursuant to this Agreement, including monthly,
quarterly, and annual


 


110

















 


financial
statements and borrowing base certificates received from the Borrowers pursuant
to Article 6, other than any of the following:


 


(a)           Routine
communications associated with requests for Revolving Credit Loans and/or the
issuance of L/Cs.


 


(b)           Routine or
nonmaterial communications.


 


(c)           Any notice or
document required by any of the Loan Documents to be furnished to the Lenders
by the Borrowers.


 


(d)           Any notice or
document of which the Agent has knowledge that such notice or document had been
forwarded to the Lenders other than by the Agent.


 


14.6.       CONFIDENTIAL INFORMATION.


 


(a)           Each Lender will
maintain, as confidential, all of the following:


 


(i)            Proprietary approaches, techniques,
and methods of analysis which are applied by the Agent in the administration of
the credit facility  contemplated by this
Agreement.


 


(ii)           Proprietary forms and formats
utilized by the Agent in providing reports to the Lenders pursuant hereto,
which forms or formats are not of general currency.


 


(b)           Nothing included
herein shall prohibit the disclosure of any such information as may be required
to be provided by judicial process or which may be required or requested by
regulatory authorities having jurisdiction over any party to this Agreement.


 


14.7.       RELIANCE BY AGENT. The Agent shall be entitled to rely upon,
and shall not incur any liability for relying upon, any certificate, notice or
other document (including any cable, telegram, telex, or facsimile) reasonably
believed by the Agent to be genuine and correct and to have been signed or sent
by or on behalf of the proper person or persons. The Agent also may rely upon
any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying
thereon. In determining compliance with any condition hereunder to the making
of a Loan, or the issuance of a L/C, that by its terms must be fulfilled to the
satisfaction of a Revolving Credit Lender, a Term Loan Lender or the Issuer,
the Agent may presume that such condition is satisfactory to such Revolving
Credit Lender, Term Loan Lender or the Issuer unless the Agent shall have
received notice to the contrary from such Revolving Credit Lender, Term Loan
Lender or the Issuer prior to the making of such Loan or the issuance of such
L/C. The 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. As to any matters not
expressly provided for in this Agreement, any Loan Document, or in any other
document referred to therein, the Agent shall in all events be fully protected
in acting, or in refraining from acting, in accordance


 


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with
the applicable Consent required by this Agreement. Instructions given with the
requisite Consent shall be binding on all Lenders.


 


14.8.       NON-RELIANCE ON AGENT AND OTHER LENDERS.


 


(a)           Each Lender
represents to all other Lenders and to the Agent that such Lender:


 


(i)            Independently and without reliance
on any representation or act by Agent or by any other Lender, and based on such
documents and information as that Lender has deemed appropriate, has made such
Lender’s own appraisal of the financial condition and affairs of the Borrowers
and decision to enter into this Agreement.


 


(ii)           Has relied upon that Lender’s review
of the Loan Documents by that Lender and by counsel to that Lender as that
Lender deemed appropriate under the circumstances.


 


(b)           Each Lender agrees
that such Lender, independently and without reliance upon Agent or any other
Lender, and based upon such documents and information as such Lender shall deem
appropriate at the time, will continue to make such Lender’s own appraisals of
the financial condition and affairs of the Borrowers when determining whether
to take or not to take any discretionary action under this Agreement.


 


(c)           Except as otherwise
required by the provisions of this Agreement, the Agent, in the discharge of
that Agent’s duties hereunder, shall not be required to make inquiry of, or to
inspect the properties or books of, any Person.


 


(d)           Except for notices,
reports, and other documents and information expressly required to be furnished
to the Lenders by the Agent hereunder (as to which, see
Section 14.5), the Agent shall not have any affirmative duty or responsibility
to provide any Lender with any credit or other information concerning any
Person, which information may come into the possession of Agent or any
Affiliate of the Agent.


 


(e)           Each Lender, at such
Lender’s request, shall have reasonable access to all nonprivileged documents
in the possession of the Agent, which documents relate to the Agent’s
performance of its duties hereunder.


 


14.9.       INDEMNIFICATION. Without limiting the liabilities of the
Borrowers under Section 19.9(b), or any other Section of this Agreement or any
of the other Loan Documents, each Lender shall indemnify the Agent, pro-rata,
for any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including attorneys’ reasonable fees and expenses and other out-of-pocket
expenditures) which may at any time be imposed on, incurred by, or asserted
against the Agent and in any way relating to or arising out of this Agreement
or any other Loan Document or any documents contemplated by or referred to
therein or the transactions contemplated thereby or the enforcement of any of
terms hereof or thereof or of any such other documents, provided, however, no Lender shall be
liable for any of the foregoing to the extent that any of the foregoing arises
from any action taken or omitted to be taken by the Agent as to which a final
judicial


 


112

















 


determination
has been or is made (in a proceeding in which the Agent has had an opportunity
to be heard) that the Agent had acted in a grossly negligent manner, in actual
bad faith, or in willful misconduct.


 


14.10.     RESIGNATION OF AGENT.


 


(a)           The Agent may resign
at any time by giving Sixty (60) days prior written notice thereof to the
Revolving Credit Lenders, the Term Loan Lenders, the Issuer, and the Borrowers.
Upon receipt of any such notice of resignation, the SuperMajority Lenders shall
have the right to appoint a successor to such Agent (and if no Event of Default
has occurred, with the consent of the Borrowers, not to be unreasonably
withheld and, in any event, deemed given by the Borrowers if no written
objection is provided by the Borrowers to the (resigning) Agent within Seven
(7) Business Days notice of such proposed appointment), which shall be a
Revolving Credit Lender, Term Loan Lender or a bank with an office in the
United States, or an Affiliate of any such bank with an office in the United
States. If a successor Agent shall not have been so appointed and accepted such
appointment within Thirty (30) days after the giving of notice by the resigning
Agent, then the resigning Agent may appoint a successor Agent, which shall be a
Revolving Credit Lender, Term Loan Lender or a financial institution having a
rating of not less than “A” or its equivalent if rated by Standard & Poor’s
Ratings Group, provided that if the Agent shall
notify the Borrowers and the Lenders that no qualifying Person has accepted
such appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Agent shall be discharged
from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Agent on behalf of the Revolving Credit Lenders, the Term
Loan Lenders or the Issuer under any of the Loan Documents, the retiring Agent
shall continue to hold such collateral security until such time as a successor
Agent is appointed) and (2) all payments, communications and
determinations provided to be made by, to or through the Agent shall instead be
made by or to each Revolving Credit Lender, Term Loan Lender and the Issuer
directly, until such time as the SuperMajority Lenders appoint a successor
Agent as provided for above in this Section 14.10(a). The consent of the
Borrowers otherwise required by this Section 14.10(a) shall not be required if
an Event of Default has occurred and is continuing.


 


(b)           Upon the acceptance
of any appointment as Agent hereunder by a successor Agent, such successor
shall thereupon succeed to, and become vested with, all the rights, powers,
privileges, and duties of the (resigning) Agent so replaced, and the (resigning)
Agent shall be discharged from the (resigning) Agent’s duties and obligations
hereunder or under the other Loan Documents (if not already discharged
therefrom as provided in this Section 14.10), other than on account of any
responsibility for any action taken or omitted to be taken by the (resigning)
Agent as to which a final judicial determination has been or is made (in a
proceeding in which the (resigning) Person has had an opportunity to be heard)
that such Person had acted in a grossly negligent manner or in bad faith.


 


(c)           The fees payable by
the Borrowers to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrowers and such successor.


 


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(d)           After any retiring
Agent’s resignation, the provisions of this Article 14 and Section 19.8 shall
continue in effect for the benefit of such retiring Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while the retiring Agent was acting as Agent.


 


(e)           Any resignation by Bank of America as Agent pursuant to
this Section 14.10 shall also constitute its resignation as Issuer and
SwingLine Lender. Upon the acceptance of a successor’s appointment as Agent
hereunder, (a) such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring Issuer and SwingLine
Lender, (b) the retiring Issuer and SwingLine Lender shall be discharged from
all of their respective duties and obligations hereunder or under the other
Loan Documents, and (c) the successor Issuer shall issue letters of credit in
substitution for the L/Cs, if any, outstanding at the time of such succession
or make other arrangements satisfactory to the retiring Issuer to effectively
assume the obligations of the retiring Issuer with respect to such L/Cs.


 


14.11.     DELEGATION OF DUTIES. The Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub-agents appointed by the Agent. The
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties. The
exculpatory provisions of this Article 14 shall apply to any such sub-agent and
to the Related Parties of the 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 Agent.


 


14.12.     AGENT MAY FILE PROOFS OF CLAIM.


 


(a)           In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Agent (irrespective of whether the
principal of any Loan or Reimbursement Obligation or Unpaid Reimbursement
Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Agent shall have made any demand
on the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise:


 


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


 


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


 


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(b)           Any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Revolving Credit
Lender, Term Loan Lender and the Issuer to make such payments to the Agent and,
in the event that the Agent shall consent to the making of such payments
directly to the Revolving Credit Lenders, the Term Loan Lenders and the Issuer,
to pay to the Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Agent and its agents and counsel, and any
other amounts due the Agent under this Agreement.


 


(c)           Nothing contained
herein shall be deemed to authorize the Agent to authorize or consent to or
accept or adopt on behalf of any Revolving Credit Lender, Term Loan Lender or
the Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Liabilities or the rights of any Revolving Credit Lender or any
Term Loan Lender, or to authorize the Agent to vote in respect of the claim of
any Revolving Credit Lender in any such proceeding.


 


14.13.     COLLATERAL MATTERS.


 


The Revolving
Credit Lenders, the Term Loan Lenders and the Issuer irrevocably authorize the
Agent, at its option and in its discretion:


 


(a)           to release any Lien
on any property granted to or held by the Agent under any Loan Document (i)
upon termination of the Loan Commitments and payment in full, in cash, of all
Liabilities (other than contingent indemnification obligations) and the
expiration or termination of all L/Cs, (ii) that is sold or to be sold as part
of or in connection with any sale permitted hereunder or under any other Loan
Document, or (iii) subject to Section 19.5, if approved, authorized or ratified
in writing by the SuperMajority Lenders;


 


(b)           to subordinate any
Lien on any property granted to or held by the Agent under any Loan Document to
the holder of any Lien on such property that is permitted by Section
5.6(a)(ii); and


 


(c)           to release any
Subsidiary that is a Borrower from its obligations hereunder if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder.


 


Upon request
by the Agent at any time, the SuperMajority Lenders shall confirm in writing
the Agent’s authority to release or subordinate its interest in particular
types or items of property, or to release any Subsidiary that is a Borrower
from its obligations hereunder pursuant to this Section 14.13.


 


ARTICLE XV.      ACTION
BY AGENTS - CONSENTS - AMENDMENTS - WAIVERS


 


15.1.       ADMINISTRATION OF CREDIT FACILITIES.


 


(a)           Except as otherwise
specifically provided in this Agreement, 
the Agent may take any action with respect to the credit facility
contemplated by the Loan Documents as the Agent determines to be appropriate, provided, however, the Agent is not under any affirmative


 


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obligation
to take any action which it is not required by this Agreement or the Loan
Documents specifically to so take.


 


(b)           Except as specifically
provided in the following Sections of this Agreement, whenever a Loan Document
or this Agreement  provides that action
may be taken or omitted to be taken in the Agent’s discretion, the Agent shall
have the sole right to take, or refrain from taking, such action without, and
notwithstanding, any vote of the Lenders:


 


	
  Actions Described in Section

  	
   

  	
  Type of Consent Required

  
	
   

  	
   

  	
   

  
	
  15.2

  	
   

  	
  Majority Lenders

  
	
   

  	
   

  	
   

  
	
  15.3

  	
   

  	
  SuperMajority Lenders

  
	
   

  	
   

  	
   

  
	
  15.4

  	
   

  	
  Certain Consent

  
	
   

  	
   

  	
   

  
	
  15.5

  	
   

  	
  Unanimous Consent

  
	
   

  	
   

  	
   

  
	
  15.6

  	
   

  	
  Consent of SwingLine Lender

  
	
   

  	
   

  	
   

  
	
  15.7

  	
   

  	
  Consent of the Agent

  



 


(c)           The rights granted
to the Lenders in those sections referenced in Section 15.1(b) shall not
otherwise limit or impair the Agent’s exercise of its discretion under the Loan
Documents.


 


15.2.       ACTIONS REQUIRING OR ON DIRECTION OF MAJORITY
LENDERS. Except
as otherwise provided in this Agreement, the Consent or direction of the
Majority Lenders is required for any amendment, waiver, or modification of any
Loan Document.


 


15.3.       ACTIONS REQUIRING OR ON DIRECTION OF
SUPERMAJORITY LENDERS. The Consent or direction of the SuperMajority Lenders is required as
follows:


 


(a)           The Revolving Credit
Lenders agree that any loan or advance under the Revolving Credit which results
in a Protective OverAdvance may be made by the Agent in its discretion without
the Consent of the Revolving Credit Lenders and that each Revolving Credit
Lender shall be bound thereby, provided, however,
the Consent or direction of the SuperMajority Lenders is required to permit a
Protective OverAdvance to be outstanding for more than Forty-Five (45)
consecutive Business Days or more than twice in any twelve month period.


 


(b)           If the Borrowers are
then In Default, the SuperMajority Lenders may direct the Agent to suspend the
Revolving Credit (including the making of any Protective OverAdvances),
whereupon, as long as the Borrowers are In Default, the only Revolving Credit
Loans which may be made are the following:


 


(i)            Revolving Credit Loans made to “cover”
the honoring of L/Cs.


 


(ii)           Revolving Credit Loans made with
Consent of the SuperMajority  Lenders.


 


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(c)           If an Event of
Default has occurred and has not been duly waived, the SuperMajority Lenders
may:


 


(i)            Give the Agent an Acceleration Notice
in accordance with Section 13.1(b).


 


(ii)           Direct the Agent to increase the rate
of interest to the default rate of interest as provided in, and to the extent
permitted by, this Agreement.


 


(d)           If an Event of
Default has occurred and has not been duly waived, the SuperMajority Term Loan
A Lenders may:


 


(i)            Give the Agent an Acceleration
Notice in accordance with Section 13.1(c).


 


(ii)           Direct the Agent to increase the rate
of interest on Term Loan A to the default rate of interest for Term Loan A as
provided in, and to the extent permitted by, this Agreement.


 


(e)           If an Event of
Default has occurred and has not been duly waived, the SuperMajority Term Loan
B Lenders may:


 


(i)            Give the Agent an Acceleration
Notice in accordance with Section 13.1(d).


 


(ii)           Direct the Agent to increase the rate
of interest on Term Loan B to the default rate of interest for Term Loan B as
provided in, and to the extent permitted by, this Agreement.


 


15.4.       ACTION REQUIRING CERTAIN CONSENT.


 


(a)           The consent of the
SwingLine Lender and Lenders (other than Delinquent Revolving Credit Lenders)
holding 51% or more of the Aggregate Loan Commitments of the Lenders (other
than any Loan Commitments held by Delinquent Revolving Credit Lenders) shall be
required to increase the SwingLine Loan Ceiling.


 


(b)           The consent of the
SuperMajority Lenders shall be required to amend, modify or waive Section 6.11.


 


(c)           The consent of the
SuperMajority Lenders and each of the Term Loan A Lenders shall be required to
amend, modify or waive Section 3.3(a) or to amend the definition of Term Loan A
to Value Reserve.


 


(d)           The consent of each
of the Term Loan B Lenders shall be required to amend, modify or waive Section
3.3(b) or to amend the definition of Term Loan B to Value Reserve, provided, however, that the
consent of the SuperMajority Lenders shall also be required in connection with
(i) any amendment to shorten the amortization schedule for Term Loan B, (ii)


 


117

















 


any
amendment to Sections 3.3(b)(i)(B) or 3.3(b)(i)(C)(II) or (iii) any amendment
to Section 3.3(b)(ii) which would have the effect of permitting any payment
otherwise restricted thereby.


 


(e)           The consent of each
of the Term Loan B Lenders shall be required to (i) amend, modify or waive any
provision of the Pratt Guaranty or the Holiday Guaranty; or (ii) release any
material portion of the Term B Priority Collateral to the extent not otherwise
required or provided for in the Loan Documents or to facilitate a Liquidation.


 


15.5.       ACTIONS REQUIRING OR DIRECTED BY UNANIMOUS
CONSENT. None
of the following may take place except with Unanimous Consent; provided that, the actions contemplated by clause (a)
(except to the extent any such action would increase the Aggregate Loan
Commitment), (b), (c), (d) and (e) of this Section 15.5, shall only require the
consent of each Lender affected thereby:


 


(a)           Any increase in any
Lender’s Revolving Credit Dollar Commitment or Term Loan Commitment, Maximum
Revolving Credit Dollar Commitment, Revolving Credit Percentage Commitment or
Term Loan Percentage (other than by reason of the application of Section 15.10
(which deals with NonConsenting Lenders) or Section 16.1 (which deals with
assignments and participations)).


 


(b)           Any decrease in any
interest rate or fee payable to the Lenders on account of the Loans.


 


(c)           Any extension of any
Maturity Date.


 


(d)           Any forgiveness of
all or any portion of any payment Liability, provided,
however, that the Agent shall be
permitted to forgive fees owed to it and not to any other Lender without any
consent being required.


 


(e)           Any decrease in any
interest rate or fee payable under any of the Loan Documents (other than any
Agent’s Fee (for which the consent of the Agent shall also be required)).


 


(f)            Any release of a
material portion of the Collateral not otherwise required or provided for in
the Loan Documents or to facilitate a Liquidation.


 


(g)           Any amendment of the
definition of the terms “Borrowing Base” or “Availability” or of any definition
of any component thereof, such that more credit would be available to the
Borrowers, based on the same assets, as would have been available to the
Borrowers immediately prior to such amendment, it being
understood, however, that:


 


(i)            The foregoing shall not limit the
adjustment by the Agent of any Reserve in the Agent’s administration of the
Revolving Credit as otherwise permitted by this Agreement.


 


(ii)           The foregoing shall not prevent the
Agent, in its administration of the Revolving Credit, from restoring any
component of Borrowing Base which had been


 


118






 












 


lowered
by the Agent back to the value of such component, as stated in this Agreement
or to an intermediate value.


 


(h)           Any release of any Person obligated on
account of the Liabilities.


 


(i)            The making of any Revolving Credit Loan
which, when made, exceeds Availability and is not a Protective OverAdvance, provided, however,


 


(i)            no Consent shall be required in connection
with the making of any Revolving Credit Loan to “cover” any honoring of a
drawing under any L/C; and


 


(ii)           each Revolving Credit Lender recognizes that subsequent to the making
of a Revolving Credit Loan which does not constitute a Protective OverAdvance,
the unpaid principal balance of the Loan Account may exceed the Borrowing Base
on account of changed circumstances beyond the control of the Agent (such as a
drop in collateral value).


 


(j)            The waiver of the obligation of the Borrowers
to reduce the unpaid principal balance of loans under the Revolving Credit to
an amount so that no OverAdvance (other than a Protective OverAdvance) is outstanding
or, subject to the time limits included in Section 15.3(a) (which places time
and frequency limits on Protective OverAdvance), to eliminate a Protective
OverAdvance.


 


(k)           The incurrence of any additional Indebtedness
of the Borrowers which is secured by an Encumbrance not otherwise permitted by
Section 5.6 hereof.


 


(l)            Any amendment to clauses (a), (d) or (h) of
Section 5.20.


 


(m)          Any amendment of this Article 15 or Section
13.7.


 


(n)           Amendment of any of the following
Definitions:


 


“Appraised Inventory Liquidation Value”


“Appraised Inventory Percentage”


“Majority Lender”


“Protective OverAdvance”


“SuperMajority Lenders”


“SuperMajority Term Loan A Lenders”


“SuperMajority Term Loan B Lenders”


“Unanimous Consent”


 


15.6.       ACTIONS
REQUIRING SWINGLINE LENDER CONSENT. No action, amendment, or waiver of compliance with, any provision of
the Loan Documents or of this Agreement which affects the SwingLine Lender may
be undertaken without the Consent of the SwingLine Lender.


 


119

















 


15.7.       ACTIONS
REQUIRING AGENT’S CONSENT.


 


(a)           No action, amendment, or waiver of compliance
with, any provision of the Loan Documents or of this Agreement which affects
the Agent in its capacity as Agent may be undertaken without the written
consent of the Agent.


 


(b)           No action referenced herein which affects the
rights, duties, obligations, or liabilities of the Agent shall be effective
without the written consent of the Agent.


 


15.8.       MISCELLANEOUS
ACTIONS.


 


(a)           Notwithstanding any other provision of this
Agreement, no single Lender independently may exercise any right of action or
enforcement against or with respect to the Borrowers.


 


(b)           The Agent shall be fully justified in failing
or refusing to take action under this Agreement or any Loan Document on behalf
of any Lender unless the Agent shall first:


 


(i)            receive such clear, unambiguous, written
instructions as the Agent deems appropriate; and


 


(ii)           be indemnified to the Agent’s satisfaction by the Lenders against any
and all liability and expense which may be incurred by the Agent by reason of
taking or continuing to take any such action, unless such action had been
grossly negligent, in willful misconduct, or in bad faith.


 


(c)           The Agent may establish reasonable procedures
for the providing of direction and instructions from the Lenders to the Agent,
including its reliance on multiple counterparts, facsimile transmissions, and
reasonable time limits within which such direction and instructions must be
received in order to be included in a determination of whether the requisite
Loan Commitments has provided its direction, Consent, or instructions.


 


15.9.       ACTIONS
REQUIRING BORROWERS’ CONSENT.
The Borrowers’ consent is required for any amendment of this Agreement, except
that each of the following Articles (or Sections, as applicable) of this
Agreement may be amended without the consent of the Borrower:


 


	
  Article

  	
   

  	
  Title of Article

  
	
   

  	
   

  	
   

  
	
  2 (only Sections 2.23, 2.24, 2.25 and
  2.26):

  	
   

  	
  The Revolving Credit

  
	
   

  	
   

  	
   

  
	
  13:

  	
   

  	
  Acceleration and Liquidation

  
	
   

  	
   

  	
   

  
	
  14: (other than Section 14.10(a))

  	
   

  	
  The Agent

  
	
   

  	
   

  	
   

  
	
  16: (other than Sections 16.1(c)(iii) and
  (c)(iv))

  	
   

  	
  Successors and Assigns

  



 


120

















 


15.10.     NONCONSENTING
LENDER.


 


(a)           In the event that a Lender (in this Section
15.10, a “NonConsenting Lender”) does not provide
its Consent to a proposal by the Agent to take action which requires consent
under this Article 15, then one or more Lenders who provided Consent to such
action may require the assignment, without recourse and in accordance with the
procedures outlined in Section 16.1, below, of the NonConsenting Lender’s
commitment hereunder on Fifteen (15) days written notice to the Agent and to
the NonConsenting Lender.


 


(b)           At the end of such Fifteen (15) days, and provided
that the NonConsenting Lender delivers the Notes held by the
NonConsenting Lender to the Agent, the Lenders who have given such written
notice shall Transfer the following to the NonConsenting Lender:


 


(i)            Such NonConsenting Lender’s pro-rata share of
the principal and interest of the Loans to the date of such assignment.


 


(ii)           All fees distributable hereunder to the NonConsenting Lender to the
date of such assignment.


 


(iii)          Any out-of-pocket costs and expenses for which the NonConsenting Lender
is entitled to reimbursement from the Borrowers.


 


(c)           In the event that the NonConsenting Lender
fails to deliver to the Agent the Notes held by the NonConsenting Lender as
provided in Section 15.10(b), then:


 


(i)            The amount otherwise to be Transferred to the
NonConsenting Lender shall be Transferred to the Agent and held by the Agent,
without interest, to be turned over to the NonConsenting Lender upon delivery
of the Note held by that NonConsenting Lender.


 


(ii)           The Note held by the NonConsenting Lender shall have no force or effect
whatsoever.


 


(iii)          The NonConsenting Lender shall cease to be a “Lender”.


 


(iv)          The Lender(s) which have Transferred the amount to the Agent as
described above shall have succeeded to all rights and become subject to all of
the obligations of the NonConsenting Lender as “Lender”.


 


(d)           In the event that more than One (1) Lender
wishes to require such assignment, the NonConsenting Lender’s commitment
hereunder shall be divided among such Lenders, pro-rata based upon their respective
Revolving Credit Percentage Commitments and Term Loan Percentages, with the
Agent coordinating such transaction.


 


(e)           The Agent shall coordinate the retirement of
the Note held by the NonConsenting Lender and the issuance of Notes to those
Lenders which “take-out” such NonConsenting


 


121

















 


Lender,
provided, however, no processing fee
otherwise to be paid as provided in Section 16.2(b) shall be due under such
circumstances.


 


ARTICLE XVI.     SUCCESSORS AND ASSIGNS


 


16.1.       ASSIGNMENTS
AND ASSUMPTIONS.


 


(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, except that the Borrowers
may not assign or otherwise transfer any of their rights or obligations
hereunder without the prior written consent of the Agent and each Lender, and
no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to one or more Eligible Assignees (in this Section
16.1(a), each an “Assignee Lender”)
in accordance with the provisions of subsection (c) of this Section, (ii) by
way of participation in accordance with the provisions of Section 16.3, (iii)
by way of pledge or assignment of a security interest subject to the
restrictions of Section 16.5, or (iv) to an SPC in accordance with the
provisions of Section 16.7.


 


(b)           Nothing in this Agreement, express or
implied, shall be construed to confer upon any Person (other than the Parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the Agent, the
Issuer, and the Lenders) any legal or equitable right, remedy or claim under or
by reason of this Agreement.


 


(c)           Assignments by Lenders. Any Lender may at any
time assign to one or more Eligible Assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Revolving Credit Dollar Commitment and the Loans made by it (including for
purposes of this subsection (b), participations in L/C Obligations and in
SwingLine Loans at the time owing to it); provided
that


 


(i)            The Agent and, in the case of assignments of
Revolving Credit Dollar Commitments, the Issuer and the SwingLine Lender, shall
have given its prior written consent to such assignment, which consent shall
not be unreasonably withheld, but need not be given if the proposed assignee is
itself a Lender or an Affiliate of a Lender (whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee).


 


(ii)           Each partial assignment shall be made as an assignment of a
proportionate part of all the Assigning Lender’s rights and obligations under
this Agreement with respect to the Loans or the Revolving Credit Dollar
Commitment assigned, as the case may be, except that this clause (ii) shall not
apply to rights in respect of SwingLine Loans.


 


(iii)          Except in the case of an assignment of the entire remaining amount of
the Assigning Lender’s Revolving Credit Dollar Commitment and the Loans at the
time owing to it or in the case of an assignment to a Lender or an Affiliate of
a Lender or an Approved Fund, the aggregate amount of the Revolving Credit
Dollar Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the Revolving


 


122

















 


Credit
Dollar Commitment of such Lender is not then in effect, the principal outstanding
balance of the Revolving Credit Loans and/or the Term Loan 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
Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of
the Trade Date, shall be at least $5,000,000 unless each of the Agent and, so
long as no Event of Default has occurred and is continuing, the Borrowers
otherwise consent (each such consent not to be unreasonably withheld or
delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has
been met.


 


(iv)          The parties to such an assignment shall execute and deliver to the
Agent, for recording in the Register, an Assignment and Assumption substantially
in the form of EXHIBIT D, annexed hereto, or
any other form approved by the Agent (an  “Assignment and Assumption”) together with a processing and
recordation fee in the amount set forth in SCHEDULE 16.1, and the Eligible Assignee, if it
shall not be a Lender, shall deliver to the Agent an Administrative
Questionnaire.


 


(d)           The Agent, acting solely for this purpose as
an agent of the Borrowers, shall maintain at the Agent’s office a copy of each
Assignment and Assumption delivered to it and a register or similar list (the “Register”) for the recordation of the names and addresses of
the Lenders and of the Revolving Credit Percentage Commitment and Maximum
Revolving Credit Dollar Commitment of each Revolving Credit Lender, and
principal amounts of the Loans and L/C Obligations owing to, each Lender. The
Register shall be available for inspection by each of the Borrowers, the Issuer
and each Lender (with respect only to such Lender’s interest) at any reasonable
time and from time to time upon reasonable prior notice. The entries in the
Register shall be conclusive and binding on all Lenders. The Borrowers, the
Agent, and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a “Lender” hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary.


 


16.2.       EFFECT OF
ASSIGNMENT.


 


(a)           Subject to acceptance and recording thereof
by the Agent pursuant to Section 16.1, from and after the effective date
specified in an Assignment and Assumption which has been executed, delivered,
and recorded:


 


(i)            The Assignee Lender shall be a party to this
Agreement and the Loan Documents (and to any amendments thereof) and, to the
extent of the interest assigned by the Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement and the Loan Documents.


 


(ii)           The Assigning Lender 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


 


123

















 


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 19.8 and
19.9 with respect to facts and circumstances occurring prior to the effective
date of such assignment.


 


(b)           By executing and delivering an Assignment and
Assumption, the parties thereto confirm to and agree with each other and with
all parties to this Agreement as to those matters which are set forth in the
subject Assignment and Assumption.


 


16.3.       PARTICIPATIONS. Any Lender may, at any time, without the
consent of, or notice to, the Borrowers or the Agent, sell participations to
one or more Persons (other than a natural person or the Borrowers or any of the
Borrowers’ Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of that Lender’s rights
and/or obligations herein (including all or a portion of its Revolving Credit
Dollar Commitment and/or the Loans (including such Lender’s participations in
L/C Obligations and/or SwingLine Loans) owing to it); provided that such Lender’s obligations
under this Agreement shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, and the Borrowers, the Agent, the Lenders, and the Issuer shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement.


 


Any agreement
or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement
and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other
modification described in Section 15.5(a), (b), (c), (d) or (e) that affects
such Participant. The Borrowers agree that each Participant shall be entitled
to the benefits of Section 19.8 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to Section 16.1. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 19.17 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.22 as though it were a
Lender.


 


16.4.       LIMITATIONS
UPON PARTICIPANT RIGHTS.


 


A Participant
shall not be entitled to receive any greater payment hereunder 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 Borrowers’ prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 19.8 unless the Borrowers are notified of
the participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with Section 19.8 as though it were a
Lender.


 


16.5.       CERTAIN
PLEDGES.


 


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


 


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16.6.       ELECTRONIC
EXECUTION OF ASSIGNMENTS.


 


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


 


16.7.       SPECIAL
PURPOSE FUNDING VEHICLES.


 


Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle identified
as such in writing from time to time by the Granting Lender to the Agent and
the Borrowers (an “SPC”) the
option to provide all or any part of any Loan that such Granting Lender would
otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to fund any Revolving Credit Loan, and (ii)
if an SPC elects not to exercise such option or otherwise fails to make all or
any part of such Revolving Credit Loan, the Granting Lender shall be obligated
to make such Revolving Credit Loan pursuant to the terms hereof or, if it fails
to do so, to make such payment to the Agent as is required under Section 2.23. Each
party hereto hereby agrees that (i) neither the grant to any SPC nor the
exercise by any SPC of such option shall increase the costs or expenses or
otherwise increase or change the obligations of the Borrowers under this
Agreement, (ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Lender would be liable, and (iii)
the Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Revolving Credit Loan by
an SPC hereunder shall utilize the Revolving Credit Dollar Commitment of the
Granting Lender to the same extent, and as if, such Revolving Credit Loan were
made by such Granting Lender. In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior debt of any
SPC, it will not institute against, or join any other Person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State thereof.
Notwithstanding anything to the contrary contained herein, any SPC may (i) with
notice to, but without prior consent of the Borrowers and the Agent, and with
the payment of a processing fee in the amount of $2,500, assign all or any
portion of its right to receive payment with respect to any Loan to the Granting
Lender and (ii) disclose on a confidential basis any non-public information
relating to its funding of Loans to any rating agency, commercial paper dealer
or provider of any surety or Guarantee or credit or liquidity enhancement to
such SPC.


 


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16.8.       RESIGNATION AFTER ASSIGNMENT.


 


Notwithstanding
anything to the contrary contained herein, if at any time Bank of America
assigns all of its Revolving Credit Dollar Commitment and Loans pursuant to
Section 16.1 above, Bank of America may, (i) upon 30 days’ notice to the
Borrowers and the Lenders, resign as Issuer and/or (ii) upon 30 days’ notice to
the Borrowers, resign as SwingLine Lender. In the event of any such resignation
as Issuer or SwingLine Lender, the Borrowers
shall be entitled to appoint from among the Lenders a successor Issuer
or SwingLine Lender hereunder; provided,
however, that no failure by the Borrowers to appoint any such
successor shall affect the resignation of Bank of America as Issuer or SwingLine
Lender, as the case may be. If Bank of America resigns as Issuer, it shall
retain all the rights, powers, privileges and duties of the Issuer hereunder
with respect to all L/Cs outstanding as of the effective date of its
resignation as Issuer and all L/C Obligations with respect thereto (including
the right to require the Lenders to make Base Margin Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.20. If Bank of
America resigns as SwingLine Lender, it shall retain all the rights of the
SwingLine Lender provided for hereunder with respect to SwingLine Loans made by
it and outstanding as of the effective date of such resignation, including the
right to require the Lenders to make Base Margin Loans or fund risk participations
in outstanding SwingLine Loans pursuant to Section 2.24. Upon the appointment
of a successor Issuer and or SwingLine Lender, (a) such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of
the retiring Issuer or SwingLine Lender, as the case may be, and (b) the
successor Issuer shall issue letters of credit in substitution for the Letters
of Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to Bank of America to assume effectively the
obligations of Bank of America with respect to such Letters of Credit.


 


16.9.       ACCESSION. Subject to the terms of Section 16.10
herein, the Borrowers may, with the consent of the Agent, request Eligible
Assignees (each such Eligible Assignee, an “Acceding
Lender”) to become party to this Credit Agreement by entering into
an Instrument of Accession in substantially the form of EXHIBIT F  hereto (an “Instrument of Accession”) with the
Borrowers and the Agent and assuming thereunder a Revolving Credit Dollar
Commitment, in an amount to be agreed upon by the Borrowers, such Acceding
Lender and the Agent, to make Revolving Credit Loans and participate in the
risk relating to the Letters of Credit pursuant to the terms hereof, and the Maximum
Revolving Credit Ceiling shall thereupon be increased by the amount of such
Acceding Lender’s Revolving Credit Dollar Commitment; provided, however, that (a) the Agent
shall have given its prior written consent to such accession and (b) in no
event shall the Maximum Revolving Credit Ceiling be increased under any one or
more of such Instruments of Accession so as to exceed, in the aggregate,
$400,000,000. On the effective date specified in any Instrument of Accession, SCHEDULE 2.22 hereto
shall be deemed to be amended to reflect (a) the name, address, Revolving
Credit Dollar Commitment and Revolving Credit Percentage Commitment of such
Acceding Lender, (b) the Maximum Revolving Credit Ceiling as increased by such
Acceding Lender’s Revolving Credit Dollar Commitment, and (c) the changes to
the other Lenders’ respective Revolving Credit Percentage Commitments and any
changes to the other Lenders’ respective Revolving Credit Dollar Commitments
(in the event such Lender is also the Acceding Lender) resulting from such
assumption and such increased Maximum Revolving Credit Ceiling.


 


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If on the
effective date specified in any Instrument of Accession, there are Revolving
Credit Loans then outstanding or exposure in respect of then outstanding L/Cs,
the Acceding Lender shall purchase Revolving Credit Loans and exposure in
respect of outstanding L/Cs from each other Lender in an amount such that,
after such purchase or purchases, the amount of outstanding Revolving Credit
Loans and exposure in respect of outstanding L/Cs from each Lender shall equal
such Lender’s respective Revolving Credit Percentage Commitment, as set forth
on SCHEDULE 2.22
multiplied by the aggregate amount of Revolving Credit Loans outstanding and
exposure in respect of outstanding L/Cs from all Lenders. To the extent that
any outstanding Revolving Credit Loans bear interest at the LIBOR Rate, the Borrowers shall pay any additional
costs described in Section 2.10(e) incurred by any Lender.


 


16.10.     OPTIONAL
INCREASE OF MAXIMUM REVOLVING CREDIT CEILING.


 


So long as an Event of Default shall not have occurred
and be continuing or would result therefrom, and subject to all terms and
conditions set forth in the Loan Agreement, the Lead Borrower may request, by
prior written notice to the Agent, that the Maximum Revolving Credit Ceiling be
increased up to $400,000,000; provided, however, that the Maximum Revolving Credit Ceiling shall not
be increased pursuant to this provision so long as any Term Loan B Obligations
remain outstanding. The Lead Borrower may, after initially requesting the
existing Revolving Credit Lenders to increase on a pro rata basis their
respective Revolving Credit Dollar Commitments and after receiving no response
from such Revolving Credit Lenders after a period of five (5) Business Days (in
which case the Lead Borrower may conclusively presume such Revolving Credit
Lenders do not wish to increase their respective Revolving Credit Dollar
Commitments) or after receiving confirmation in writing that such Revolving
Credit Lenders do not wish to increase their respective Revolving Credit Dollar
Commitments (or if the aggregate desired increase in Revolving Credit Dollar
Commitment by the existing Revolving Credit Lenders is not sufficient to
satisfy the increase in the Maximum Revolving Credit Ceiling requested by the
Lead Borrower), solicit Eligible Assignees to become new Revolving Credit
Lenders pursuant to the terms of Section 16.9 herein, provided
that (a) each Person that becomes a new Revolving Credit Lender
shall agree to become a party to, and shall assume and agree to be bound by,
this Agreement, subject to all terms and conditions thereof; (b) no Revolving
Credit Lender shall have an obligation to the Borrowers to increase its Revolving
Credit Dollar Commitment; and (c) in no event shall the addition of any
Revolving Credit Lender increase the Maximum Revolving Credit Ceiling to an
amount greater than $400,000,000.


 


ARTICLE XVII.   NOTICES


 


17.1.       NOTICE
ADDRESSES. All notices, demands,
and other communications made in respect of any Loan Document (other than a
request for a loan or advance or other financial accommodation under the
Revolving Credit or the Term Loan or a notice or other communication expressly
permitted to be given by telephone) shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by telecopier (and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone numbers) to the following addresses, each of which may be changed
upon Seven (7) days written notice to all others given by certified mail,
return receipt requested:


 


127

















 


 


	
  If to the Agent:

  
	
   

  
	
   

  	
  Bank of America, N.A.

  
	
   

  	
  100 Federal Street

  
	
   

  	
  Boston, Massachusetts 02110

  
	
   

  	
  Attention:

  	
  Peter A. Foley

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
  Fax:

  	
  (617) 434-4339

  
	
   

  
	
  With a copy to:

  
	
   

  
	
   

  	
  Bingham McCutchen LLP

  
	
   

  	
  150 Federal Street

  
	
   

  	
  Boston, Massachusetts 02110

  
	
   

  	
  Attention:

  	
  Robert A. J. Barry, Esquire

  
	
   

  	
  Fax:

  	
  (617) 951-8736

  
	
   

  
	
  If to the Borrowers:

  
	
   

  
	
   

  	
  c/o Gander Mountain Company

  
	
   

  	
  180 East Fifth Street, Suite 1300

  
	
   

  	
  St. Paul, Minnesota 55101

  
	
   

  	
  Attention:

  	
  Chief Financial Officer

  
	
   

  	
  Fax:

  	
  (651) 325-2001

  
	
   

  
	
  With a copy to:

  
	
   

  
	
   

  	
  Gander Mountain Company

  
	
   

  	
  180 East Fifth Street, Suite 1300

  
	
   

  	
  St. Paul, Minnesota 55101

  
	
   

  	
  Attention:

  	
  Legal Department

  
	
   

  	
  Fax:

  	
  (651) 325-2006

  



 


In addition,
each Lender agrees to notify the Agent from time to time to ensure that the
Agent has on record (i) an effective address, contact name, telephone number
and electronic mail address to which notices and other communications may be
sent and (ii) accurate wire instructions for such Lender.


 


17.2.       NOTICE
GIVEN.


 


(a)           Except as otherwise specifically provided
herein, notices shall be deemed made and correspondence received, as follows
(all times being local to the place of delivery or receipt):


 


(i)            By mail: the sooner of when actually received
or Three (3) days following deposit in the United States mail, postage prepaid.


 


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(ii)           By recognized overnight express delivery: the Business Day following
the day when sent.


 


(iii)          By Hand: If delivered on a Business Day after 9:00AM and no later than
Three (3) hours prior to the close of customary business hours of the
recipient, when delivered. Otherwise, at the opening of the then next Business
Day.


 


(iv)          By Facsimile transmission (which must include a header on which the
party sending such transmission is indicated): If sent on a Business Day after
9:00AM and no later than Three (3) hours prior to the close of customary
business hours of the recipient, One (1) hour after being sent. Otherwise, at
the opening of the then next Business Day.


 


(b)           Rejection or refusal to accept delivery and
inability to deliver because of a changed address or Facsimile Number for which
no due notice was given shall each be deemed receipt of the notice sent.


 


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


 


17.3.       WIRE
INSTRUCTIONS NOTICE GIVEN. Subject
to change in the same manner that a notice address may be changed (as to which,
see Section 17.1), wire transfers to the Agent shall be made in accordance with
the following wire instructions:


 


	
  Bank of America, N.A.

  
	
  ABA Number:

  	
   

  	
  026-009-593

  
	
  Account Number:

  	
   

  	
  530-39952

  
	
  Reference:

  	
   

  	
  Gander Mountain

  



 


ARTICLE XVIII.  TERM


 


18.1.       TERMINATION
OF REVOLVING CREDIT AND TERM LOAN. The Revolving Credit and Term Loan A shall remain in effect (subject
to suspension as provided in Section 2.5(g) hereof) until the Termination Date.
Term Loan B shall remain in effect until the earlier of (i) the Maturity Date
with respect to Term Loan B and (ii) the Termination Date.


 


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18.2.       ACTIONS
ON TERMINATION.


 


(a)           On the Termination Date, the Borrowers shall
pay the Agent (whether or not then due), in immediately available funds, all
then Liabilities including, without limitation: the following:


 


(i)            The entire balance of the Loan Account
(including the unpaid principal balance of the Revolving Credit Loans, and the
SwingLine Loan ) and the Term Loan.


 


(ii)           Any then remaining installments of the Upfront Fee.


 


(iii)          Any then remaining installments of the Agent’s Fee.


 


(iv)          Any payments due on account of the indemnification obligations included
in Section 2.10(e).


 


(v)           Any accrued and unpaid Unused Line Fee.


 


(vi)          Any applicable Revolving Credit Early Termination Fee or Term Loan A
Early Termination Fee.


 


(vii)         All unreimbursed costs and expenses of the Agent and of Lenders’
Special Counsel for which the Borrowers are responsible.


 


(b)           On the Termination Date, the Borrowers shall
also make such arrangements concerning any L/Cs then outstanding as are
reasonably satisfactory to the Agent.


 


(c)           Until such payment (Section 18.2(a)) and
arrangements concerning L/Cs (Section 18.2(b)), all provisions of this
Agreement, other than those included in Article 2 which place any obligation on
the Agent or any Lender to make any loans or advances or to provide any
financial accommodations to the Borrowers shall remain in full force and effect
until all Liabilities shall have been paid in full.


 


(d)           The release by the Agent of the Collateral
Interests granted the Agent by the Borrowers hereunder may be upon such
conditions and indemnifications as the Agent may require.


 


ARTICLE XIX.     GENERAL


 


19.1.       PROTECTION
OF COLLATERAL. The Agent’s
sole duty with respect to the custody, safe keeping and physical preservation
of the Collateral in its possession, under §9-207 of the UCC or otherwise,
shall be to deal with such Collateral in the same manner as the Agent deals
with similar property for its own account.


 


19.2.       PUBLICITY. Subject to the approval of the Borrowers,
such approval not to be unreasonably withheld, the Agent may issue a “tombstone”
notice of the establishment of the credit facility contemplated by this
Agreement and may make reference to the Borrowers (and


 


130

















 


may
utilize any logo or other distinctive symbol associated with the Borrower) in
connection with any advertising, promotion, or marketing undertaken by the
Agent.


 


19.3.       SEVERABILITY. Any determination that any provision of
this Agreement or any application thereof is invalid, illegal, or unenforceable
in any respect in any instance shall not affect the validity, legality, or
enforceability of such provision in any other instance, or the validity,
legality, or enforceability of any other provision of this Agreement.


 


19.4.       THE
PLATFORM. THE PLATFORM IS
PROVIDED “AS IS” AND “AS AVAILABLE.”  THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
ANY BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM ANY BORROWER MATERIALS. NO WARRANTY
OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY
AGENT PARTY IN CONNECTION WITH ANY BORROWER MATERIALS OR THE PLATFORM. IN NO
EVENT SHALL THE AGENT OR ANY OF ITS RELATED PARTIES (COLLECTIVELY, THE “AGENT PARTIES”) HAVE ANY LIABILITY TO THE
BORROWERS, ANY LENDER, THE ISSUER OR ANY OTHER PERSON FOR LOSSES, CLAIMS,
DAMAGES, LIABILITIES OR EXPENSES OF ANY KIND (WHETHER IN TORT, CONTRACT OR
OTHERWISE) ARISING OUT OF THE BORROWERS’ OR THE AGENT’S TRANSMISSION OF
BORROWER MATERIALS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THAT SUCH LOSSES,
CLAIMS, DAMAGES, LIABILITIES OR EXPENSES ARE DETERMINED BY A COURT OF COMPETENT
JURISDICTION BY A FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH AGENT PARTY; PROVIDED, THAT IN NO EVENT SHALL ANY AGENT
PARTY HAVE ANY LIABILITY TO THE BORROWERS, ANY LENDER, THE ISSUER OR ANY OTHER
PERSON FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS
OPPOSED TO DIRECT OR ACTUAL DAMAGES).


 


19.5.       AMENDMENTS. COURSE
OF DEALING.


 


(a)           This Agreement and the
other Loan Documents incorporate all discussions and negotiations between the
Borrowers and the Agent and each Lender, either express or implied, concerning
the matters included herein and in such other instruments, any custom, usage,
or course of dealings to the contrary notwithstanding. No such discussions,
negotiations, custom, usage, or course of dealings shall limit, modify, or
otherwise affect the provisions thereof. No failure by the Agent or any Lender
to give notice to the Borrowers of the Borrowers’ having failed to observe and
comply with any warranty or covenant included in any Loan Document shall
constitute a waiver of such warranty or covenant or the amendment of the
subject Loan Document. No change made by the Agent to the manner by which
Borrowing Base is determined shall obligate the Agent to continue to determine
Borrowing Base in that manner.


 


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(b)           The Borrowers may undertake
any action otherwise prohibited hereby, and may omit to take any action
otherwise required hereby, upon and with the express prior written consent of
the Agent given in accordance with the provisions of this Agreement. Subject to
Article 15, no modification, amendment, or waiver of any provision of any Loan
Document and no consent to any departure by the Borrowers or any other Loan
Party therefrom, shall be effective unless executed in writing by or on behalf
of the party to be charged with such modification, amendment, or waiver (and if
such party is the Agent then by a duly authorized officer thereof). Any
modification, amendment, or waiver provided by the Agent shall be in reliance
upon all representations and warranties theretofore made to the Agent by or on
behalf of the Borrowers (and any guarantor, endorser, or surety of the
Liabilities) and consequently may be rescinded in the event that any of such
representations or warranties was not true and complete in all material
respects when given. Any such amendment, waiver or consent as described in this
Section 19.5(b) shall be effective only in the specific instance and for the
specific purpose for which given.


 


(c)           No amendment, waiver or
consent shall, unless in writing and signed by the Issuer in addition to the
Revolving Credit Lenders and the Term Loan Lenders required above, affect the
rights or duties of the Issuer under this Agreement or any Issuer Document
relating to any L/C issued or to be issued by it. No amendment, waiver or
consent shall, unless in writing and signed by the SwingLine Lender in addition
to the Revolving Credit Lenders and the Term Loan Lenders required above,
affect the rights or duties of the SwingLine Lender under this Agreement. No
amendment, waiver or consent shall, unless in writing and signed by the Agent
in addition to the Revolving Credit Lenders and Term Loan Lenders required
above, affect the rights or duties of the Agent under this Agreement or any
other Loan Document. Notwithstanding anything to the contrary herein, no
Delinquent Revolving Credit Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the Loan
Commitment of such Revolving Credit Lender may not be increased or extended
without the consent of such Revolving Credit Lender.


 


19.6.       POWER OF
ATTORNEY. In connection with
all powers of attorney included in this Agreement, the Borrowers hereby grant
unto the Agent (acting through any of its officers) full power to do any and
all things necessary or appropriate in connection with the exercise of such
powers as fully and effectually as the Borrowers might or could do, hereby
ratifying all that said attorney shall do or cause to be done by virtue of this
Agreement. No power of attorney set forth in this Agreement shall be affected
by any disability or incapacity suffered by the Borrowers and each shall
survive the same. All powers conferred upon the Agent by this Agreement, being
coupled with an interest, shall be irrevocable until this Agreement is terminated
by a written instrument executed by a duly authorized officer of the Agent.


 


19.7.       APPLICATION
OF PROCEEDS. The proceeds of
any collection, sale, or disposition of the Collateral, or of any other
payments received hereunder, shall be applied towards the Liabilities in such
order and manner as the Agent determines in its sole discretion, consistent,
however, with Sections 13.6 and 13.7 and any other applicable provisions of
this Agreement. The Borrowers shall remain liable for any deficiency remaining
following such application.


 


132

















 


19.8.       INCREASED
COSTS. If, as a result of
any change arising after the Restatement Effective Date in any Requirement of
Law, or of the interpretation or application thereof by any court or by any
governmental or other authority or entity charged with the administration
thereof, whether or not having the force of law, which:


 


(a)           subjects any Lender to any taxes or changes
the basis of taxation, or increases any existing taxes, on payments of
principal, interest or other amounts payable by the Borrowers to the Agent or
any Lender under this Agreement (except for taxes on the Agent or any Lender
based on net income or capital);


 


(b)           imposes, modifies or deems applicable any
reserve, cash margin, special deposit or similar requirements against assets
held by, or deposits in or for the account of or loans by or any other
acquisition of funds by the relevant funding office of any Lender;


 


(c)           imposes on any Lender any other condition
with respect to any Loan Document; or


 


(d)           imposes on any Lender a requirement to
maintain or allocate capital in relation to the Liabilities;


 


and the result
of any of the foregoing, in such Lender’s reasonable opinion, is to increase
the cost to that Lender of making or maintaining any loan, advance or financial
accommodation or to reduce the income receivable by that Lender in respect of
any loan, advance or financial accommodation by an amount which that Lender
deems to be material, then upon written notice from the Agent, from time to
time, to the Borrowers (such notice to set out in reasonable detail the facts
giving rise to and a summary calculation of such increased cost or reduced
income), the Borrowers shall forthwith pay to the Agent, for the benefit of the
subject Lender, upon receipt of such notice, that amount which shall compensate
the subject Lender for such additional cost or reduction in income.


 


19.9.       EXPENSES; INDEMNITY; DAMAGE
WAIVER.


 


(a)           Costs and Expenses.  The Borrowers shall pay (i) all reasonable
out-of-pocket expenses incurred by the Agent and its Affiliates (including the
reasonable fees, charges, and disbursements of counsel for the Agent), in
connection with the syndication of the credit facilities provided for herein,
the preparation, negotiation, execution, delivery, and administration of this
Agreement and the other Loan Documents or any amendments, modifications,
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Agent in connection with the issuance,
amendment, renewal or extension of any L/C or any demand for payment
thereunder, and (iii) all out-of-pocket expenses incurred by the Agent or any
Lender (including the fees, charges, and disbursement of any counsel for the
Agent or any Lender), and shall pay all fees and time charges for attorneys who
may be employees of the Agent or any Lender, in connection with the enforcement
or protection of its rights (A) in connection with this Agreement and the other
Loan Documents, including its rights under this Section 19.9, or (B) in
connection with the Loans made or L/Cs issued


 


133

















 


hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or L/Cs.


 


(b)           Indemnification by
the Borrowers.  The
Borrowers shall indemnify the Agent (and any sub-agent thereof) and each
Lender, and each Related Party of any of the foregoing Persons (each such
Person, an “Indemnified Person”)
against, and hold each Indemnified Person harmless from, any and all losses,
claims, damages, liabilities, and related expenses (including the fees,
charges, and disbursements of any counsel for any Indemnified Person), and
shall indemnify and hold harmless each Indemnified Person from all fees and
time charges and disbursements for attorneys who may be employees of any
Indemnified Person, incurred by any Indemnified Person or asserted against any
Indemnified Person by any third party or by the Borrowers or any other Loan
Party arising out of, in connection with, or as a result of (i) the execution
or delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties
hereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, or, in the
case of the Agent (and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents, (ii) any
Revolving Credit Loan or L/C, all or any portion of the Term Loan, or the use
or proposed use of the proceeds therefrom (including any refusal by the Agent
to honor a demand for payment under a L/C if the documents presented in
connection with such demand do not strictly comply with the terms of such L/C),
(iii) any actual or alleged presence or release of Hazardous Substances on or
from any property owned or operated by the Borrowers or any of their
Subsidiaries, or any Environmental Liability related in any way to the
Borrowers or any of their Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought
by a third party or by the Borrowers or any other Loan Party, and regardless of
whether any Indemnified Person is a party thereto, in all cases, whether or not
caused by or arising, in whole or in part, out of the comparative, contributory
or sole negligence of the Indemnified Person; provided
that such indemnity shall not, as to any Indemnified Person, be
available to the extent that such losses, claims, damages, liabilities or
related expenses (x) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnified Person or (y) result from a claim brought
by the Borrowers or any other Loan Party against an Indemnified Person for
breach in bad faith of such Indemnified Person’s obligations hereunder or under
any other Loan Document, if the Borrowers or such Loan Party has obtained a
final and nonappealable judgment in its favor on such claim as determined by a
court of competent jurisdiction.


 


(c)           Waiver of
Consequential Damages, Etc. To
the fullest extent permitted by applicable law, the Borrowers shall not assert,
and hereby waives, any claim against any Indemnified Person, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan
or L/C or the use of the proceeds thereof. No Indemnified Person referred to in
subsection (b) above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission


 


134

















 


systems
in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.


 


(d)           Payments. All amounts due under this Section 19.9
shall be payable not later than Ten (10) Business Days after demand therefor.


 


(e)           Survival. The agreements in this Section 19 shall
survive the resignation of the Agent, the replacement of any Revolving Credit
Lender or Term Loan Lender, the termination of the Loan Commitments and the
repayment, satisfaction or discharge of all the other Liabilities.


 


19.10.     COPIES
AND FACSIMILES. Each Loan
Document and all documents and papers which relate thereto which have been or
may be hereinafter furnished the Agent or any Lender may be reproduced by that
Lender or by the Agent by any photographic, microfilm, xerographic, digital
imaging, or other process, and such Person making such reproduction may destroy
any document so reproduced. Any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made in the regular course of business). Any facsimile which
bears proof of transmission shall be binding on the party which or on whose
behalf such transmission was initiated and likewise shall be so admissible in
evidence as if the original of such facsimile had been delivered to the party
which or on whose behalf such transmission was received.


 


19.11.     MASSACHUSETTS
LAW. This Agreement and all
rights and obligations hereunder, including matters of construction, validity,
and performance, shall be governed by the laws of The Commonwealth of
Massachusetts.


 


19.12.     CONSENT
TO JURISDICTION.


 


(a)           Each Borrower agrees that any legal action,
proceeding, case, or controversy against the Borrowers with respect to any Loan
Document may be brought in the Superior Court of Suffolk County Massachusetts
or in the United States District Court, District of Massachusetts, sitting in
Boston, Massachusetts, as the Agent may elect in the Agent’s sole discretion. By
execution and delivery of this Agreement, each Borrower, for itself and in
respect of its property, accepts, submits, and consents generally and
unconditionally, to the jurisdiction of the aforesaid courts.


 


(b)           Each Borrower WAIVES
personal service of any and all process upon it, and irrevocably consents to
the service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by certified mail,
postage prepaid, to such Borrower at the Borrower’s address for notices as
specified herein, such service to become effective Five (5) Business Days after
such mailing.


 


(c)           Each Borrower WAIVES
any objection based on forum non conveniens
and any objection to venue of any action or proceeding instituted under any of
the Loan Documents and consents to the granting of such legal or equitable
remedy as is deemed appropriate by the Court.


 


135

















 


(d)           Nothing herein shall affect the right of the
Agent to bring legal actions or proceedings in any other competent
jurisdiction.


 


(e)           Each Borrower agrees that any action
commenced by the Borrowers asserting any claim arising under or in connection
with this Agreement or any other Loan Document shall be brought solely in the
Superior Court of Suffolk County Massachusetts or in the United States District
Court, District of Massachusetts, sitting in Boston, Massachusetts, and that
such Courts shall have exclusive jurisdiction with respect to any such action.


 


19.13.     CONFIDENTIALITY. Each of the Revolving Credit Lenders, the
Term Loan Lenders, the Issuer, and the Agent agrees, on behalf of itself and
each of its affiliates, directors, officers, employees and representatives, to
use reasonable precautions to keep confidential, in accordance with their
customary procedures for handling Information (as defined below) of the same
nature and in accordance with safe and sound banking practices, any
Information, provided that
nothing herein shall limit the disclosure of any such Information (a) after
such Information shall have become public other than through a violation of
this Section 19.13, or becomes available to any of the Lenders or the Agent on
a nonconfidential basis from a source other than the Borrowers, (b) to the
extent required by statute, rule, regulation or judicial process, (c) to
counsel for any of the Lenders or the Agent, (d) to bank examiners or any other
regulatory authority having jurisdiction over any Lender or the Agent, or to
auditors or accountants, (e) to the Agent or any Lender, (f) in connection with
any litigation to which any one or more of the Lenders or the Agent is a party,
or in connection with the enforcement of rights or remedies hereunder or under
any other Loan Document, (g) to an affiliate of any Lender or the Agent, or (h)
to any actual or prospective assignee or participant or any actual or
prospective counterparty (or its advisors) to any swap or derivative
transactions referenced to credit or other risks or events arising under this
Agreement or any other Loan Document so long as such assignee, participant or
counterparty, as the case may be, agrees to be bound by the provisions of this
Section 19.13.


 


For purposes
of this Section, “Information”
means all information received from the Borrowers or any Subsidiary relating to
the Borrowers or any Subsidiary or any of their respective businesses, other
than any such information that is available to the Agent, any Lender or the
Issuer on a nonconfidential basis prior to disclosure by the Borrowers or any
Subsidiary, provided that, in the
case of information received from the Borrowers or any Subsidiary 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 of the
Agent, the Lenders and the Issuer acknowledges that (a) the Information may
include material non-public information concerning the Borrowers or a
Subsidiary, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle
such material non-public information in accordance with Applicable Law.


 


136

















 


19.14.     SURVIVAL
OF REPRESENTATIONS AND WARRANTIES. All representations and warranties made hereunder and in any other
Loan Document or other document delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery
hereof and thereof. Such representations and warranties have been or will be
relied upon by the Agent and each Lender, regardless of any investigation made
by the Agent or any Lender or on their behalf and notwithstanding that the
Agent or any Lender may have had notice or knowledge of any Event of Default at
the time of any issuance, extension or renewal of any L/Cs, and shall continue
in full force and effect as long as any Loan or any other Liability hereunder
shall remain unpaid or unsatisfied or any L/C shall remain outstanding.


 


19.15.     RULES OF
CONSTRUCTION. The following
rules of construction shall be applied in the interpretation, construction, and
enforcement of this Agreement and of the other Loan Documents:


 


(a)           Unless otherwise specifically provided for
herein, interest on Base Margin Loans and all or any relevant portion of the
Term Loan, and any fee or charge which is stated as a per annum percentage
shall be calculated based on a 365 day year and actual days elapsed and
interest on LIBOR Loans and all or any relevant portion of the Term Loan shall
be calculated based on a 360 day year and actual days elapsed.


 


(b)           Words in the singular include the plural and
words in the plural include the singular.


 


(c)           Cross references to Sections in this
Agreement begin with the Article in which that Section appears, followed by a
colon, and then the Section to which reference is made. (For example, a
reference to “Section 6.6” is to Section 6.6, which appears in Article 6 of
this Agreement).


 


(d)           Titles, headings (indicated by being underlined
or shown in SMALL CAPITALS) and
any Table of Contents are solely for convenience of reference; do not
constitute a part of the instrument in which included; and do not affect such
instrument’s meaning, construction, or effect.


 


(e)           The words “includes” and “including” are not
limiting.


 


(f)            Text which follows the words “including,
without limitation” (or similar words) is illustrative and not limitational.


 


(g)           Text which is shown in italics
(except for parenthesized italicized text), underlined, shown in bold, shown IN ALL CAPITAL LETTERS, or in any combination of
the foregoing, shall be deemed to be conspicuous.


 


(h)           The words “may not” are prohibitive and not
permissive.


 


(i)            Any reference to a Person’s “knowledge” (or
words of similar import) are to such Person’s knowledge assuming that such
Person has undertaken reasonable and diligent


 


137

















 


investigation
with respect to the subject of such “knowledge” (whether or not such
investigation has actually been undertaken).


 


(j)            Terms which are defined in one section of any
Loan Document are used with such definition throughout the instrument in which
so defined.


 


(k)           The symbol “$” refers to United States
Dollars.


 


(l)            Unless limited by reference to a particular
Section or provision, any reference to “herein”, “hereof”, or “within” is to
the entire Loan Document in which such reference is made.


 


(m)          References to “this Agreement” or to any
other Loan Document is to the subject instrument as amended to the date on
which application of such reference is being made.


 


(n)           Except as otherwise specifically provided,
all references to time are to Boston time.


 


(o)           In the determination of any notice, grace, or
other period of time prescribed or allowed hereunder:


 


(i)            Unless otherwise provided (A) the day of the
act, event, or default from which the designated period of time begins to run
shall not be included and the last day of the period so computed shall be
included unless such last day is not a Business Day, in which event the last
day of the relevant period shall be the then next Business Day and (B) the
period so computed shall end at 5:00 PM on the relevant Business Day.


 


(ii)           The word “from” means “from and including”.


 


(iii)          The words “to” and “until” each mean “to, but excluding”.


 


(iv)          The word “through” means “to and including”.


 


(p)           The Loan Documents shall be construed and
interpreted in a harmonious manner and in keeping with the intentions set forth
in Section 19.16 hereof, provided, however,
in the event of any inconsistency between the provisions of this Agreement and
any other Loan Document, the provisions of this Agreement shall govern and
control.


 


(q)           This Agreement and the other Loan Documents
are the result of negotiation among, and have been reviewed by counsel to,
among others, the Agent and the Borrowers, and are the product of discussions
and negotiations among all parties. Accordingly, this Agreement and the other
Loan Documents are not intended to be construed against the Agent or any of the
Lenders merely on account of the Agent’s or any Lender’s involvement in the
preparation of such documents


 


19.16.     INTENT. It is intended that:


 


(a)           This Agreement take effect as a sealed
instrument.


 


138

















 


(b)           The scope of all Collateral Interests created
by the Borrowers to secure the Liabilities be broadly construed in favor of the
Agent and that they cover all assets of the Borrowers, other than the Excluded
Gander Collateral.


 


(c)           All Collateral Interests created in favor of
the Agent at any time and from time to time secure all Liabilities, whether now
existing or contemplated or hereafter arising.


 


(d)           All reasonable costs, expenses, and
disbursements incurred by the Agent, the Lead Arranger and, to the extent
provide in Section 19.9 each Lender, in connection with such Person’s
relationship(s) with the Borrowers shall be borne by the Borrowers.


 


(e)           Unless otherwise explicitly provided herein,
the Agent’s consent to any action of the Borrowers which is prohibited unless
such consent is given may be given or refused by the Agent in its sole
discretion and without reference to Section 2.17 hereof.


 


19.17.     RIGHT OF
SET-OFF. Any and all
deposits or other sums at any time credited by or due to the Borrowers from the
Agent or any Lender or any Participant or from any Affiliate of any of the
foregoing, and any cash, securities, instruments or other property of the
Borrowers in the possession of any of the foregoing, whether for safekeeping or
otherwise (regardless of the reason such Person had received the same) shall at
all times constitute security for all Liabilities and for any and all
obligations of the Borrowers to the Agent and such Lender or any Participant or
such Affiliate and may be applied or set off against the Liabilities and against
such obligations at any time, whether or not such are then due and whether or
not other collateral is then available to the Agent or that Lender.


 


19.18.     MAXIMUM
INTEREST RATE. Regardless of
any provision of any Loan Document, neither the Agent nor any Lender shall be
entitled to contract for, charge, receive, collect, or apply as interest on any
Liability, any amount in excess of the maximum rate imposed by Applicable Law. Any
payment which is made which, if treated as interest on a Liability would result
in such interest’s exceeding such maximum rate shall be held, to the extent of
such excess, as additional collateral for the Liabilities as if such excess
were “Collateral.”


 


19.19.     WAIVERS.


 


(a)           Each Borrower (and all guarantors, endorsers,
and sureties of the Liabilities) makes each of the waivers included in Section
19.19(b), below, knowingly, voluntarily, and intentionally, and understands
that Agent and each Lender, in establishing the facilities contemplated hereby
and in providing loans and other financial accommodations to or for the account
of the Borrowers as provided herein, whether not or in the future, is relying
on such waivers.


 


(b)           EACH BORROWER, AND EACH SUCH GUARANTOR,
ENDORSER, AND SURETY RESPECTIVELY WAIVES THE
FOLLOWING:


 


(i)            Except as otherwise specifically required
hereby, notice of non-payment, demand, presentment, protest and all forms of
demand and notice, both with respect to the Liabilities and the Collateral.


 


139

















 


(ii)           Except as otherwise specifically required hereby, the right to notice
and/or hearing prior to the Agent’s exercising of the Agent’s rights upon
default.


 


(iii)          THE RIGHT TO A JURY IN ANY
TRIAL OF ANY CASE OR CONTROVERSY IN WHICH THE AGENT OR ANY LENDER IS OR BECOMES
A PARTY (WHETHER SUCH CASE OR CONTROVERSY IS INITIATED BY OR AGAINST THE AGENT
OR ANY LENDER OR IN WHICH THE AGENT OR ANY LENDER IS JOINED AS A PARTY
LITIGANT), WHICH CASE OR CONTROVERSY ARISES OUT OF OR IS IN RESPECT OF, ANY
RELATIONSHIP AMONGST OR BETWEEN THE BORROWERS OR ANY OTHER PERSON AND THE AGENT
AND EACH LENDER LIKEWISE WAIVES THE RIGHT TO A JURY IN ANY TRIAL OF ANY SUCH
CASE OR CONTROVERSY).


 


(iv)          The benefits or availability of any stay, limitation, hindrance, delay,
or restriction (including, without limitation, any automatic stay which
otherwise might be imposed pursuant to Section 362 of the Bankruptcy Code) with
respect to any action which the Agent may or may become entitled to take
hereunder.


 


(v)           Any defense, counterclaim, set-off, recoupment, or other basis on which
the amount of any Liability, as stated on the books and records of the Agent,
could be reduced or claimed to be paid otherwise than in accordance with the
tenor of and written terms of such Liability.


 


(vi)          Any claim to consequential, special, or punitive damages.


 


(c)           For the avoidance of doubt, the Agent and the
Lenders hereby waive any Default or Event of Default arising pursuant to Section
6.11(a) of the Existing Loan Agreement for the Reference Period (as defined
in the Existing Loan Agreement) ending on November 3, 2007.


 


19.20.     US
PATRIOT ACT NOTICE.


 


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


 


19.21.     TRANSITIONAL
ARRANGEMENTS.


 


(a)          Existing Loan Agreement Superseded. On the
Restatement Effective Date, this Agreement shall supersede the Existing Loan
Agreement in its entirety, except as provided in this Section 19.21. On the
Restatement Effective Date, the rights and obligations of the parties evidenced
by the Existing Loan Agreement shall be evidenced by this Agreement and the
other Loan Documents, the Existing Loans shall be continued as Revolving Credit
Loans and Term


 


140

















 


Loan A as defined herein, respectively, and
the Existing Letters of Credit issued by the Agent for the account of the
Borrowers prior to the Restatement Effective Date shall be treated as L/Cs
under this Agreement. The parties hereto agree that the changes to the terms
and conditions of the Existing Loan Agreement set out herein and the execution
of these presents shall not constitute novation and all the security interests,
pledges and other collateral of whatever nature securing any of the Liabilities
shall continue to apply to the Existing Loan Agreement, as amended and restated
by these presents, and to the other Loan Documents. Without limiting the
generality of the foregoing and to the extent necessary, the Lenders and the
Agent reserve all of their rights under each of the Loan Documents.


 


(b)          Interest and Fees under Superseded Existing
Loan Agreement. All interest and fees and expenses, if any, owing or accruing
under or in respect of the Existing Loan Agreement through the Restatement
Effective Date shall be calculated as of the Restatement Effective Date (pro
rated in the case of any fractional periods). Commencing on the Restatement
Effective Date, the fees hereunder shall be payable by the Borrowers to the
Agent in accordance with Article 2.


 


19.22.     LEAD
BORROWER.


 


Each Borrower hereby irrevocably appoints
Gander as the borrowing agent and attorney-in-fact for all Borrowers (the “Lead Borrower”) which appointment shall remain in full force
and effect unless and until the Agent shall have received prior written notice
signed by each Borrower that such appointment has been revoked and that another
Borrower has been appointed Lead Borrower. Each Borrower hereby irrevocably
appoints and authorizes the Lead Borrower (i) to provide the Agent with
all notices with respect to Loans obtained for the benefit of any Borrower and
all other notices and instructions under this Agreement and (ii) to take
such action as the Lead Borrower deems appropriate on its behalf to obtain
Loans and to exercise such other powers as are reasonably incidental thereto to
carry out the purposes of this Agreement. It is understood that the handling of
the Loan Account and Collateral of the Borrowers in a combined fashion, as more
fully set forth herein, is done solely as an accommodation to the Borrowers in
order to utilize the collective borrowing powers of Borrowers in the most
efficient and economical manner and at their request, and that Lenders shall
not incur liability to any Borrower as a result hereof. Each Borrower expects
to derive benefit, directly or indirectly, from the handling of the Loan
Account and the Collateral in a combined fashion since the successful operation
of each Borrower is dependent on the continued successful performance of the
integrated group. To induce the Lenders to do so, and in consideration thereof,
each Borrower hereby jointly and severally agrees to indemnify each member of
the Lenders and hold each member of the Lenders harmless against any and all
liability, expense, loss or claim of damage or injury, made against the Lenders
by any Borrower or by any third party whosoever, arising from or incurred by
reason of (a) the handling of the Loan Account and Collateral of the
Borrowers as herein provided, (b) the Lenders’ relying on any instructions
of the Lead Borrower, or (c) any other action taken by the Agent or the Lenders
hereunder or under the other Loan Documents in reliance upon any notice or
instruction given by the Lead Borrower, except that Borrowers will have no
liability to the Agent or any Lender or any of their respective Affiliates,
officers, directors, employees, attorneys, and agents under this Section 19.22
with respect to any liability that has been finally determined by a court of
competent jurisdiction to have resulted


 


141

















 


solely from the gross negligence or willful
misconduct of the Agent or the applicable Lender, as the case may be.


 


[Signature Pages
Follow]


 


142
















 


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


 


	
   

  	
  GANDER MOUNTAIN COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Robert J. Vold

  
	
   

  	
   

  	
  Name: Robert J. Vold

  
	
   

  	
   

  	
  Title: Treasurer

  
	
   

  	
   

  
	
   

  	
  OVERTON’S HOLDING COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Robert J. Vold

  
	
   

  	
   

  	
  Name: Robert J. Vold

  
	
   

  	
   

  	
  Title: Treasurer

  
	
   

  	
   

  
	
   

  	
  OVERTON’S ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Robert J. Vold

  
	
   

  	
   

  	
  Name: Robert J. Vold

  
	
   

  	
   

  	
  Title: Treasurer

  
	
   

  	
   

  
	
   

  	
  OVERTON’S, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Robert J. Vold

  
	
   

  	
   

  	
  Name: Robert J. Vold

  
	
   

  	
   

  	
  Title: Treasurer

  
	
   

  	
   

  
	
   

  	
  CONSUMERS MARINE ELECTRONICS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Robert J. Vold

  
	
   

  	
   

  	
  Name: Robert J. Vold

  
	
   

  	
   

  	
  Title: Treasurer

  
	
   

  	
   

  
	
   

  	
  OVERTON’S MANAGEMENT COMPANY,

  LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Robert J. Vold

  
	
   

  	
   

  	
  Name: Robert J. Vold

  
	
   

  	
   

  	
  Title: Treasurer

  



 

















 


	
   

  	
  BANK OF AMERICA, N.A.,
  as Agent and as a

  
	
   

  	
  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Peter A. Foley

  
	
   

  	
   

  	
  Name: Peter A. Foley

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


	
   

  	
  GENERAL ELECTRIC CAPITAL

  
	
   

  	
  CORPORATION, as
  Documentation Agent and as a

  
	
   

  	
  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Rebecca A. Ford

  
	
   

  	
   

  	
  Name: Rebecca A. Ford

  
	
   

  	
   

  	
  Title: Duly Authorized Signatory

  



 

















 


	
   

  	
  THE CIT GROUP/BUSINESS CREDIT, INC.,

  
	
   

  	
  as Collateral Agent and as a Revolving Credit

  
	
   

  	
  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Adrian Avalos

  
	
   

  	
   

  	
  Name: Adrian Avalos

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


	
   

  	
  UBS AG, STAMFORD BRANCH,  as a Revolving

  
	
   

  	
  Credit Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ David B. Julie

  
	
   

  	
  Name: David B. Julie

  
	
   

  	
  Title: Associate Director, Banking Products

  
	
   

  	
   Services, US

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Mary E. Evans

  
	
   

  	
   

  	
  Name: Mary E. Evans

  
	
   

  	
   

  	
  Title: Associate Director, Banking Products

  
	
   

  	
   

  	
   Services, US

  
				



 

















 


	
   

  	
  WELLS FARGO FOOTHILL, INC.,  (f/k/a

  
	
   

  	
  Foothill Capital Corporation), as Syndication Agent

  
	
   

  	
  and as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Rina Shinoda

  
	
   

  	
   

  	
  Name: Rina Shinoda

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


	
   

  	
  LASALLE RETAIL FINANCE,
  a division of

  
	
   

  	
  LaSalle Business Credit, LLC, as agent for LaSalle

  
	
   

  	
  Bank Midwest N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Jeff Ryan

  
	
   

  	
   

  	
  Name:  Jeff Ryan

  
	
   

  	
   

  	
  Title:  Vice President

  



 

















 


	
   

  	
  TD BANKNORTH, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Matthew Leighton

  
	
   

  	
   

  	
  Name:  Matthew Leighton

  
	
   

  	
   

  	
  Title:  Vice President

  



 

















 


	
   

  	
  NATIONAL CITY BUSINESS CREDIT, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Kathryn C. Ellero

  
	
   

  	
   

  	
  Name:  Kathryn C. Ellero

  
	
   

  	
   

  	
  Title:  Vice President

  



 

















 


	
   

  	
  WEBSTER BUSINESS CREDIT CORPORATION

  
	
   

  	
  (f/k/a Whitehall Business Credit Corporation), as a

  
	
   

  	
  Revolving Credit Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Joseph A. Klapkowski

  
	
   

  	
   

  	
  Name:  Joseph A. Klapkowski

  
	
   

  	
   

  	
  Title:  Vice President,
  Authorized Signatory

  



 

















 


	
  Schedule 2.22

  
	
   

  
	
   

  
	
  REVOLVING  CREDIT  LENDERS; TERM
  LOAN  LENDERS; COMMITMENT  PERCENTAGES; ADDRESSES

  
	
   

  
	
  LENDER

  	
   

  	
  Maximum

  Revolving

  Credit Dollar

  Commitment

  	
   

  	
  Revolving Credit

  Percentage

  Commitment

  	
   

  	
  Term Loan A

  Commitment

  	
   

  	
  Term Loan A

  Percentage

  	
   

  	
  Term Loan B

  Commitment

  	
   

  	
  Term Loan B

  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BANK OF

  AMERICA, N.A.

  100 Federal
  Street

  Boston, MA 02110

  Attention: Peter Foley

  Fax: (617) 434-4339

  	
   

  	
  $

  	
  68,500,000

  	
   

  	
  19.855072464

  	
  %

  	
  $

  	
  6,500,000

  	
   

  	
  32.500000000

  	
  %

  	
  $

  	
  40,000,000

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GENERAL ELECTRIC CAPITAL CORPORATION

  201 Merritt
  7

  PO Box 5201

  Norwalk, CT 06856

  Attention: Paul Vitti

  Fax: (203) 956-4006

  	
   

  	
  $

  	
  64,500,000

  	
   

  	
  18.695652174

  	
  %

  	
  $

  	
  5,700,000

  	
   

  	
  28.500000000

  	
  %

  	
  $

  	
  0

  	
   

  	
  0

  	
  %

  



 

















 


	
  LENDER

  	
   

  	
  Maximum

  Revolving

  Credit Dollar

  Commitment

  	
   

  	
  Revolving Credit

  Percentage

  Commitment

  	
   

  	
  Term Loan A

  Commitment

  	
   

  	
  Term Loan A

  Percentage

  	
   

  	
  Term Loan B

  Commitment

  	
   

  	
  Term Loan B

  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  THE CIT GROUP/ BUSINESS
  CREDIT, INC.

  300 South
  Grand Ave.,

  10th Floor

  Los Angeles, CA

  90071-3109

  Attention: Adrian Avalos

  Fax: (213) 613-2599

  	
   

  	
  $

  	
  45,000,000

  	
   

  	
  13.043478261

  	
  %

  	
  $

  	
  0

  	
   

  	
  0.000000000

  	
  %

  	
  $

  	
  0

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NATIONAL CITY BUSINESS CREDIT, INC.

  1965 East
  6th Street,

  4th Floor

  Cleveland, OH 44114

  Fax: 216.222.9555

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  11.594202899

  	
  %

  	
  $

  	
  0

  	
   

  	
  0.000000000

  	
  %

  	
  $

  	
  0

  	
   

  	
  0

  	
  %

  



 


2

















 


	
  LENDER

  	
   

  	
  Maximum

  Revolving

  Credit Dollar

  Commitment

  	
   

  	
  Revolving Credit

  Percentage

  Commitment

  	
   

  	
  Term Loan A

  Commitment

  	
   

  	
  Term Loan A

  Percentage

  	
   

  	
  Term Loan B

  Commitment

  	
   

  	
  Term Loan B

  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UBS AG, STAMFORD BRANCH

  677 Washington Blvd.

  Stamford, CT 06901

  Attention:    Thomas Watson

  Fax: (203) 719-5259

  	
   

  	
  $

  	
  36,000,000

  	
   

  	
  10.434782609

  	
  %

  	
  $

  	
  0

  	
   

  	
  0.000000000

  	
  %

  	
  $

  	
  0

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WELLS FARGO FOOTHILL, INC.

  2450 Colorado Avenue,

  Suite 3000 West Santa Monica, CA 90404  Attention: Donna Arenson

  Fax: (310) 453-7446

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  8.695652174

  	
  %

  	
  $

  	
  2,100,000

  	
   

  	
  10.500000000

  	
  %

  	
  $

  	
  0

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TD BANKNORTH, N.A.

  7 New England Executive Park- 10th Floor

  Burlington, MA 01803

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  7.2463768116

  	
  %

  	
  $

  	
  0

  	
   

  	
  0.000000000

  	
  %

  	
  $

  	
  0

  	
   

  	
  0

  	
  %

  



 


3

















 


	
  LENDER

  	
   

  	
  Maximum

  Revolving

  Credit Dollar

  Commitment

  	
   

  	
  Revolving Credit

  Percentage

  Commitment

  	
   

  	
  Term Loan A

  Commitment

  	
   

  	
  Term Loan A

  Percentage

  	
   

  	
  Term Loan B

  Commitment

  	
   

  	
  Term Loan B

  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LASALLE RETAIL FINANCE,
  a division of LaSalle Business Credit, LLC, as agent for LaSalle Bank Midwest
  N.A.

  25 Braintree Hill Office

  Park, Suite 205

  Braintree, MA 02184

  Attention: Andy Cerussi

  Fax: (781) 353-6101

  	
   

  	
  $

  	
  21,000,000

  	
   

  	
  6.086956522

  	
  %

  	
  $

  	
  5,700,000

  	
   

  	
  28.500000000

  	
  %

  	
  $

  	
  0

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WEBSTER BUSINESS CREDIT CORPORATION

  73 Belmont Street,

  2nd Floor

  South Easton, MA 02375

  Attention: Chris O’Connor

  Fax: (508) 513-1339

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  4.347826087

  	
  %

  	
  $

  	
  0

  	
   

  	
  0.000000000

  	
  %

  	
  $

  	
  0

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  345,000,000

  	
   

  	
  100.000000000

  	
  %

  	
  $

  	
  20,000,000

  	
   

  	
  100.000000000

  	
  %

  	
  $

  	
  40,000,000

  	
   

  	
  100.000000000

  	
  %

  



 


4

















 


SCHEDULE
16.1


 


PROCESSING  AND
RECORDATION  FEES


 


The Agent will charge a processing and recordation fee (an “Assignment Fee”) in the amount of $3,500
for each assignment; provided, however,
that in the event of two or more concurrent assignments to members of the same
Assignee Group (which may be effected by a suballocation of an assigned amount
among members of such Assignee Group) or two or more concurrent assignments by
members of the same Assignee Group to a single Eligible Assignee (or to an
Eligible Assignee and members of its Assignee Group), the Assignment Fee will
be $3,500 plus the amount set forth below:


 


	
  Transaction

  	
   

  	
  Assignment Fee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  First four concurrent assignments or
  suballocations to members of an Assignee Group (or from members of an
  Assignee Group, as applicable)

  	
   

  	
  -0-

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Each additional concurrent assignment or
  suballocation to a member of such Assignee Group (or from a member of such
  Assignee Group, as applicable)

  	
   

  	
  $

  	
  500

  	
   

  
					



 


5