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Exhibit 10.14  






 

$28,000,000 


REVOLVING
CREDIT

AND TERM LOAN AGREEMENT 


Dated
as of March 23, 2007 


among 


PROS
REVENUE MANAGEMENT, L.P.,

as Borrower 


PROS
HOLDINGS, INC.,

PROS REVENUE I, LLC, and

PROS REVENUE II, LLC,

as Guarantors 


THE
LENDERS AND L/C ISSUERS PARTY HERETO 


and



CHURCHILL FINANCIAL LLC,

as Administrative Agent and Lead Arranger 


and 


FREEPORT FINANCIAL LLC,

as Syndication Agent 






 







  



 
 

TABLE OF CONTENTS    
    



	 
	 	 
	 	Page

	ARTICLE I    DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS	 	1
	 	
 Section 1.1	
 	

Defined Terms	
 	

1
	 	Section 1.2	 	UCC Terms	 	23
	 	Section 1.3	 	Accounting Terms and Principles	 	23
	 	Section 1.4	 	Payments	 	24
	 	Section 1.5	 	Interpretation	 	24
	

ARTICLE II    THE FACILITIES	
 	

25
	 	
 Section 2.1	
 	

The Commitments	
 	

25
	 	Section 2.2	 	Borrowing Procedures	 	25
	 	Section 2.3	 	Swing Loans	 	26
	 	Section 2.4	 	Letters of Credit	 	27
	 	Section 2.5	 	Reduction and Termination of the Commitments	 	30
	 	Section 2.6	 	Repayment of Loans	 	30
	 	Section 2.7	 	Optional Prepayments	 	30
	 	Section 2.8	 	Mandatory Prepayments	 	30
	 	Section 2.9	 	Interest	 	31
	 	Section 2.10	 	Conversion and Continuation Options	 	32
	 	Section 2.11	 	Fees	 	32
	 	Section 2.12	 	Application of Payments	 	33
	 	Section 2.13	 	Payments and Computations	 	34
	 	Section 2.14	 	Evidence of Debt	 	35
	 	Section 2.15	 	Suspension of Eurodollar Rate Option	 	36
	 	Section 2.16	 	Breakage Costs; Increased Costs; Capital Requirements	 	37
	 	Section 2.17	 	Taxes	 	38
	 	Section 2.18	 	Substitution of Lenders	 	40
	

ARTICLE III    CONDITIONS TO LOANS AND LETTERS OF CREDIT	
 	

41
	 	
 Section 3.1	
 	

Conditions Precedent to Initial Loans and Letters of Credit	
 	

41
	 	Section 3.2	 	Conditions Precedent to Each Loan and Letter of Credit	 	43
	 	Section 3.3	 	Determinations of Initial Borrowing Conditions	 	44
	

ARTICLE IV    REPRESENTATIONS AND WARRANTIES	
 	

44
	 	
 Section 4.1	
 	

Corporate Existence; Compliance with Law	
 	

44
	 	Section 4.2	 	Loan and Related Documents	 	44
	 	Section 4.3	 	Ownership of Group Members	 	45
	 	Section 4.4	 	Financial Statements	 	45
	 	Section 4.5	 	Material Adverse Effect	 	46
	 	Section 4.6	 	Solvency	 	46
	 	Section 4.7	 	Litigation	 	46
	 	Section 4.8	 	Taxes	 	46
	 	Section 4.9	 	Margin Regulations	 	46
	 	Section 4.10	 	No Burdensome Obligations; No Defaults	 	46
	 	Section 4.11	 	Investment Company Act; Public Utility Holding Company Act	 	47
	 	Section 4.12	 	Labor Matters	 	47
	 	Section 4.13	 	ERISA	 	47
	 	Section 4.14	 	Environmental Matters	 	47
	 	 	 	 	 





i







 

	 	Section 4.15	 	Intellectual Property	 	48
	 	Section 4.16	 	Title; Real Property	 	48
	 	Section 4.17	 	Full Disclosure	 	48
	

ARTICLE V    FINANCIAL COVENANTS	
 	

49
	 	
 Section 5.1	
 	

Maximum Consolidated Leverage Ratio	
 	

49
	 	Section 5.2	 	Minimum Consolidated Fixed Charge Coverage Ratio	 	49
	 	Section 5.3	 	Minimum Consolidated EBITDA	 	50
	 	Section 5.4	 	Capital Expenditures	 	50
	

ARTICLE VI    REPORTING COVENANTS	
 	

51
	 	
 Section 6.1	
 	

Financial Statements	
 	

51
	 	Section 6.2	 	Other Events	 	52
	 	Section 6.3	 	Copies of Notices and Reports	 	53
	 	Section 6.4	 	Taxes	 	53
	 	Section 6.5	 	Labor Matters	 	53
	 	Section 6.6	 	ERISA Matters	 	53
	 	Section 6.7	 	Environmental Matters	 	53
	 	Section 6.8	 	Other Information	 	54
	

ARTICLE VII    AFFIRMATIVE COVENANTS	
 	

54
	 	
 Section 7.1	
 	

Maintenance of Corporate Existence	
 	

54
	 	Section 7.2	 	Compliance with Laws, Etc	 	54
	 	Section 7.3	 	Payment of Obligations	 	54
	 	Section 7.4	 	Maintenance of Property	 	55
	 	Section 7.5	 	Maintenance of Insurance	 	55
	 	Section 7.6	 	Keeping of Books	 	55
	 	Section 7.7	 	Access to Books and Property	 	55
	 	Section 7.8	 	Environmental	 	56
	 	Section 7.9	 	Use of Proceeds	 	56
	 	Section 7.10	 	Additional Collateral and Guaranties	 	56
	 	Section 7.11	 	Deposit Accounts; Securities Accounts and Cash Collateral Accounts	 	57
	 	Section 7.12	 	Payment of Taxes	 	57
	

ARTICLE VIII    NEGATIVE COVENANTS	
 	

58
	 	
 Section 8.1	
 	

Indebtedness	
 	

58
	 	Section 8.2	 	Liens	 	59
	 	Section 8.3	 	Investments	 	60
	 	Section 8.4	 	Asset Sales	 	60
	 	Section 8.5	 	Restricted Payments	 	61
	 	Section 8.6	 	Prepayment of Indebtedness	 	61
	 	Section 8.7	 	Fundamental Changes	 	62
	 	Section 8.8	 	Change in Nature of Business	 	62
	 	Section 8.9	 	Transactions with Affiliates	 	62
	 	Section 8.10	 	Third-Party Restrictions on Indebtedness, Liens, Investments or Restricted Payments	 	63
	 	Section 8.11	 	Modification of Certain Documents	 	63
	 	Section 8.12	 	Accounting Changes; Fiscal Year	 	63
	 	Section 8.13	 	Margin Regulations	 	63
	 	Section 8.14	 	Compliance with ERISA	 	63
	 	 	 	 	 



ii







 

	 	Section 8.15	 	Hazardous Materials	 	64
	

ARTICLE IX    EVENTS OF DEFAULT	
 	

64
	 	
 Section 9.1	
 	

Definition	
 	

64
	 	Section 9.2	 	Remedies	 	65
	 	Section 9.3	 	Actions in Respect of Letters of Credit	 	66
	

ARTICLE X    INTENTIONALLY OMITTED	
 	

66
	

ARTICLE XI    THE ADMINISTRATIVE AGENT	
 	

66
	 	
 Section 11.1	
 	

Appointment and Duties	
 	

66
	 	Section 11.2	 	Binding Effect	 	67
	 	Section 11.3	 	Use of Discretion	 	67
	 	Section 11.4	 	Delegation of Rights and Duties	 	68
	 	Section 11.5	 	Reliance and Liability	 	68
	 	Section 11.6	 	Administrative Agent Individually	 	69
	 	Section 11.7	 	Lender Credit Decision	 	69
	 	Section 11.8	 	Expenses; Indemnities	 	69
	 	Section 11.9	 	Resignation of Administrative Agent or L/C Issuer	 	70
	 	Section 11.10	 	Release of Collateral or Guarantors	 	70
	 	Section 11.11	 	Additional Secured Parties	 	71
	

ARTICLE XII    MISCELLANEOUS	
 	

71
	 	
 Section 12.1	
 	

Amendments, Waivers, Etc	
 	

71
	 	Section 12.2	 	Assignments and Participations; Binding Effect	 	73
	 	Section 12.3	 	Costs and Expenses	 	75
	 	Section 12.4	 	Indemnities	 	75
	 	Section 12.5	 	Survival	 	76
	 	Section 12.6	 	Limitation of Liability for Certain Damages	 	76
	 	Section 12.7	 	Lender-Creditor Relationship	 	76
	 	Section 12.8	 	Right of Setoff	 	76
	 	Section 12.9	 	Sharing of Payments, Etc	 	77
	 	Section 12.10	 	Marshaling; Payments Set Aside	 	77
	 	Section 12.11	 	Notices	 	77
	 	Section 12.12	 	Electronic Transmissions	 	78
	 	Section 12.13	 	Governing Law	 	79
	 	Section 12.14	 	Jurisdiction	 	79
	 	Section 12.15	 	Waiver Of Jury Trial	 	80
	 	Section 12.16	 	Severability	 	80
	 	Section 12.17	 	Execution in Counterparts	 	80
	 	Section 12.18	 	Entire Agreement	 	80
	 	Section 12.19	 	Use of Name	 	80
	 	Section 12.20	 	Non-Public Information; Confidentiality	 	81
	 	Section 12.21	 	Patriot Act Notice	 	81




iii







 
SCHEDULES 



	Schedule I	 	—	 	Commitments
	Schedule II	 	—	 	Addresses for Notices
	Schedule 4.2	 	—	 	Consents
	Schedule 4.3	 	—	 	Ownership of Borrower and Subsidiaries
	Schedule 4.7	 	—	 	Litigation
	Schedule 4.12	 	—	 	Labor Matters
	Schedule 4.13	 	—	 	List of Plans
	Schedule 4.14	 	—	 	Environmental Matters
	Schedule 4.16	 	—	 	Real Property
	Schedule 8.1	 	—	 	Existing Indebtedness
	Schedule 8.2	 	—	 	Existing Liens
	Schedule 8.3	 	—	 	Existing Investments




EXHIBITS 



	Exhibit A	 	—	 	Form of Assignment
	Exhibit B	 	—	 	Form of Note
	Exhibit C	 	—	 	Form of Notice of Borrowing
	Exhibit D	 	—	 	Form of Swingline Request
	Exhibit E	 	—	 	Form of L/C Request
	Exhibit F	 	—	 	Form of Notice of Conversion or Continuation
	Exhibit G	 	—	 	Form of Compliance Certificate
	Exhibit H	 	—	 	Form of Guaranty, Pledge and Security Agreement
	Exhibit I	 	—	 	Closing Checklist




iv









  





        This CREDIT AGREEMENT, dated as of March 23, 2007, is entered into among PROS Revenue Management, L.P., a Delaware limited partnership
("Borrower"), PROS Holdings, Inc., a Delaware corporation ("Holdings"), PROS Revenue I, LLC, a
Delaware limited liability company ("General Partner"), PROS Revenue II, LLC, a Delaware limited liability company ("Limited
Partner") (Holdings, General Partner and Limited Partner, each a "Guarantor" and collectively the
"Parent Guarantors"), the Lenders (as defined below), the L/C Issuers (as defined below) and Churchill Financial LLC
("Churchill"), as administrative agent and lead arranger for the Lenders and the L/C Issuers (in such capacity, and together with its successors and
permitted assigns, the "Administrative Agent"). 


        The
parties hereto agree as follows: 


 
 

ARTICLE I    
    
    DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS    
    


        Section 1.1    Defined Terms.    As used in this Agreement, the following terms have the following meanings: 



        "Acquisition Pro Forma" means, with respect to a Proposed Acquisition, a pro forma Consolidated balance sheet, income statement and cash
flow statement of Borrower, based on recent Financial Statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of
operations of Borrower and its Subsidiaries in accordance with GAAP, but taking into account such Proposed Acquisition and the funding of all Loans in connection therewith, and which shall reflect
that (x) the average daily Revolver Availability for the six month period preceding the consummation of such Proposed Acquisition would have exceeded $2,000,000 on a pro forma basis (after
giving effect to such Proposed Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections shall reflect that such Revolver
Availability of $2,000,000 shall continue for at least six months after the consummation of such Proposed Acquisition, and (y) Borrower would have been in compliance with the financial
covenants set forth in Article V on a Pro Forma Basis as of the last day of the last Fiscal Quarter for which Financial Statements have been
delivered hereunder (after giving effect to such
Proposed Acquisition and all Loans funded in connection therewith as if made on the first day of such period). 


        "Acquisition Projections" means, with respect to a Proposed Acquisition, updated versions of the most recently delivered Projections
covering the 3-year period commencing on the date of such Proposed Acquisition and otherwise prepared in accordance with the Projections, and based upon historical financial data of a
recent date reasonably satisfactory to the Administrative Agent, taking into account such Proposed Acquisition. 


        "Adjusted EBITDA" means the Consolidated EBITDA of Borrower, adjusted to reflect such additions and subtractions as shall be reasonably
acceptable to the Required Lenders and the Borrower. 


        "Affected Lender" has the meaning specified in Section 2.18. 



        "Affiliate" means, with respect to any Person, each officer, director, general partner or joint-venturer of such Person and any other
Person that directly or indirectly controls, is controlled by, or is under common control with, such Person; provided,  however, that no Secured Party shall
be an Affiliate of Borrower. For purpose of this definition,
"control" means the possession of either (a) the power to vote, or the beneficial ownership of, 10% or more of the Voting Stock of such Person or
(b) the power to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise. 


        "Agreement" means this Credit Agreement. 


1







 



        "Applicable Margin" means (a) with respect to Revolving Loans and Swing Line Loans (i) in the case of Base Rate Loans, 1.50%
and (ii) in the case of Eurodollar Rate Loans, 2.75% and (b) with respect to the Term Loan (i) in the case of Base Rate Loans, 1.50% and (ii) in the case of Eurodollar Rate
Loans, 2.75%. 


        "Approved Fund" means any Person (other than a natural Person) that (a) 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 and (b) is advised or managed by (i) a Lender, (ii) any Affiliate
of a Lender or (iii) any Person (other than an individual) or any Affiliate of any Person (other than an individual) that administers or manages a Lender. 



        "Assignment" means an assignment agreement entered into by a Lender, as assignor, and any prospective assignee thereof and accepted by the
Administrative Agent, in substantially the form of Exhibit A. 


        "Base Rate" means, at any time, a rate per annum equal to the higher of (a) the rate last quoted by The
Wall Street Journal in its "Money Rates" section as the "base rate on corporate loans posted by at least 75% of the nation's largest banks" in the United States or, if  The Wall Street
Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve
Statistical Release H.15 (519) (Selected Interest Rates) as the "bank prime loan" rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as reasonably determined by
the Administrative Agent) or any similar release by the Federal Reserve Board (as reasonably determined by the Administrative Agent) and (b) the sum of 0.5% per annum and the Federal Funds
Rate. 


        "Base Rate Loan" means any Loan that bears interest based on the Base Rate. 


        "Benefit Plan" means any employee benefit plan as defined in Section 3(3) of ERISA (whether governed by the laws of the United
States or otherwise) to which any Group Member incurs or otherwise has any obligation or liability, contingent or otherwise. 


        "Borrower" has the meaning specified in the preamble to this Agreement. 


        "Borrowing" means a borrowing consisting of Loans (other than Swing Loans and Loans deemed made pursuant to  Section 2.3 or 2.4) made in one Facility on the same day by the Lenders according to their
respective Commitments under such Facility. 


        "Business Day" means any day of the year that is not a Saturday, Sunday or a day on which banks are required or authorized to close in New
York City and, when determined in connection with notices and determinations in respect of any Eurodollar Rate or Eurodollar Rate Loan or any funding, conversion, continuation, Interest Period or
payment of any Eurodollar Rate Loan, that is also a day on which dealings in Dollar deposits are carried on in the London interbank market. 


        "Capital Expenditures" means, for any Person for any period, the aggregate of all expenditures, whether or not made through the incurrence
of Indebtedness, by such Person and its Subsidiaries during such period for the acquisition, leasing (pursuant to a Capital Lease), construction, replacement, repair, substitution or improvement of
fixed or capital assets or additions to equipment, in each case required to be capitalized under GAAP on a Consolidated balance sheet of such Person, excluding (a) interest capitalized during
construction and (b) any expenditure to the extent, for purpose of the definition of Permitted Acquisition, such expenditure is part of the aggregate amounts payable in connection with, or
other consideration for, any Permitted Acquisition consummated during or prior to such period. 


        "Capital Lease" means, with respect to any Person, any lease of, or other arrangement conveying the right to use, any property (whether
real, personal or mixed) by such Person as lessee that has been or should be accounted for as a capital lease on a balance sheet of such Person prepared in accordance with GAAP. 


2







 



        "Capitalized Lease Obligations" means, at any time, with respect to any Capital Lease, any lease entered into as part of any synthetic
lease, the amount of all obligations of such Person that is (or that would be, if such synthetic lease or other lease were accounted for as a Capital Lease) capitalized on a balance sheet of such
Person prepared in accordance with GAAP. 


        "Cash Collateral Account" means a deposit account or securities account in the name of Borrower and under the sole control (as defined in
the applicable UCC) of the Administrative Agent and (a) in the case of a deposit account, from which Borrower may not make withdrawals except as permitted by the Administrative Agent and
(b) in the case of a securities account, with respect to which the Administrative Agent shall be the entitlement holder and the only Person authorized to give entitlement orders with respect
thereto. 


        "Cash Equivalents" means (a) any readily-marketable securities (i) issued by, or directly, unconditionally and fully
guaranteed or insured by the United States federal government or (ii) issued by any agency of the United States federal government the obligations of which are fully backed by the full faith
and credit of the United States federal government, (b) any readily-marketable direct obligations issued by any other agency of the United States federal government, any state of the United
States or any political subdivision of any such state or any public instrumentality thereof, in each case having a rating of at least "A-1" from S&P or at least "P-1" from
Moody's, (c) any commercial paper rated at least "A-1" by S&P or "P-1" by
Moody's and issued by any Person organized under the laws of any state of the United States, (d) any Dollar-denominated time deposit, insured certificate of deposit, overnight bank deposit or
bankers' acceptance issued or accepted by (i) any Lender or (ii) any commercial bank that is (A) organized under the laws of the United States, any state thereof or the District
of Columbia, (B) "adequately capitalized" (as defined in the regulations of its primary federal banking regulators) and (C) has Tier 1 capital (as defined in such regulations) in excess
of $250,000,000 and (e) shares of any United States money market fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in  clause (a), (b), (c) or (d) above with
maturities as set forth in the proviso below, (ii) has net assets in excess of $500,000,000 and (iii) has obtained from either S&P or Moody's the highest rating obtainable for money
market funds in the United States; provided, however, that the maturities of all obligations specified
in any of clauses (a), (b), (c) and  (d) above shall not
exceed 365 days. 


        "CERCLA" means the United States Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C.
§§ 9601 et seq.). 


        "Change of Control" means the occurrence of any of the following: (a) the stockholders of Holdings on the Closing Date, together
with their Affiliates, shall cease to own and control, legally and beneficially, the economic and voting rights associated with ownership of at least 51% of the outstanding shares of Stock of Holdings
on a fully-diluted basis free and clear of all Liens, rights, options, warrants or other similar agreements or understandings, (b) the Sponsor Group collectively shall cease to own and control,
legally and beneficially, the economic and voting rights associated with ownership of at least 20% of the outstanding shares of Stock of Holdings on a fully-diluted basis free and clear of all Liens,
rights, options, warrants or other similar agreements or understandings, (c) Holdings shall cease to own and control, legally and beneficially, all of the economic and voting rights associated
with ownership of all outstanding Stock of General Partner and Limited Partner, or (d) General Partner and Limited Partner shall cease to own and control, legally and beneficially, all of the
economic and voting rights associated with ownership of all outstanding Stock of Borrower. 


        "Churchill" has the meaning specified in the preamble to this Agreement. 


        "Closing Checklist" means the checklist of closing items attached as Exhibit I. 



        "Closing Date" means the first date on which any Loan is made or any Letter of Credit is Issued. 


        "Code" means the U.S. Internal Revenue Code of 1986, as amended. 


3







 



        "Collateral" means all property and interests in property and proceeds thereof now owned or hereafter acquired by any Loan Party in or
upon which a Lien is granted or purported to be granted pursuant to any Loan Document. 


        "Commitment" means, with respect to any Lender, such Lender's Revolving Credit Commitment and Term Loan Commitment. 


        "Compliance Certificate" means a certificate substantially in the form of  Exhibit G. 



        "Consolidated" means, with respect to any Person, the accounts of such Person and its Subsidiaries consolidated in accordance with GAAP. 


        "Consolidated Cash Interest Expense" means, with respect to any Person for any period, the Consolidated Interest Expense of such Person
paid or payable in cash during such fiscal period. 


        "Consolidated EBITDA" means, with respect to any Person for any period, (a) the Consolidated Net Income of such Person for such
period plus (b) the sum of, in each case to the extent included in the calculation of such Consolidated Net Income but without duplication,
(i) any provision for United States federal income taxes or other taxes measured by income, (ii) Consolidated Interest Expense, amortization of debt discount and commissions and other
fees and charges associated with Indebtedness, (iii) any depreciation and amortization expense, (iv) any aggregate net loss on the Sale of property (other than accounts (as defined under
the applicable UCC) and inventory) outside the ordinary course of business, (v) the aggregate amount of all fees, costs or expenses (up to but not exceeding an aggregate amount of $400,000)
paid to the holders of the Notes pursuant to the terms of this Agreement or otherwise incurred in connection with the financing transactions contemplated hereby, and (vi) any other
non-cash expenditure, charge or loss for such period (other than any non-cash expenditure, charge or loss relating to write-offs, write-downs or reserves with
respect to accounts and inventory), including the amount of any compensation deduction as the result of any grant of Stock or Stock Equivalents to employees, officers, directors or consultants made
pursuant to an equity incentive plan approved by the board of directors of such Person, and minus (c) the sum of, in each case to the extent
included in the calculation of such Consolidated Net Income and without duplication, (i) any credit for United States federal income taxes or other taxes measured by income, (ii) any
gain from extraordinary items and any other non-recurring gain, (iii) any aggregate net gain from the Sale of property (other than accounts (as defined in the applicable UCC) and
inventory) outside the ordinary course of business by such Person, (iv) any other non-cash gain, including any reversal of a charge referred to in  clause (b)(vi) above by reason of a decrease
in the value of any Stock or Stock Equivalent, and (v) any other cash payment in respect of
expenditures, charges and losses that have been added to Consolidated EBITDA of such Person pursuant to clause (b)(vi) above in any prior period. 


        In
addition, for purposes of calculating the Consolidated Leverage Ratio for any reference period, Borrower may include without duplication the EBITDA of Permitted Acquisitions during
the reference period as if such transaction had occurred as of the first day of the reference period; provided, however, that (a) only the actual
historical results of operations of the Person so acquired, without adjustment for pro forma expense savings or revenue increases, shall be used for such calculation, (b) such acquired EBITDA
may be included only if (i) the financial statements of such Permitted Acquisitions have been audited for the period sought to be included or (ii) the Required Lenders consent to such
inclusion after being furnished with other acceptable financial statements, (c) such acquired EBITDA shall be adjusted to exclude expenses which are discontinued upon acquisition (including,
without limitation, owner's compensation), as approved by the Required Lenders, and (d) any Indebtedness of such Person that assumed by a Loan Party shall be included during the reference
period as if such Indebtedness had been assumed as of the first day of the reference period. 


4







 



        "Consolidated Fixed Charge Coverage Ratio" means, with respect to any Person for any period, the ratio of (a) Consolidated EBITDA
of such Person for such period minus Non-Financed Capital Expenditures of such Person for such period  minus the total liability for United States federal
income taxes and other taxes measured by net income actually payable by such Person during such
period (other than the Excluded Tax Payment) to (b) the Consolidated Fixed Charges of such Person for such period. 


        "Consolidated Fixed Charges" means, with respect to any Person for any period, the sum, determined on a Consolidated basis, of
(a) Consolidated Cash Interest Expense, (b) the principal amount of Consolidated Total Debt payable during such period, (c) all cash dividends on Stock in respect of such period
paid or payable by such Person and its Subsidiaries other than the Specified Dividend, (d) all commitment fees and other costs, fees and expenses payable in order to effect, or because of, the
incurrence of any Indebtedness and (e) management fees payable during such period. 



        "Consolidated Interest Expense" means, for any Person for any period, (a) Consolidated total interest expense of such Person for
such period and including, in any event, (i) interest capitalized during such period and net costs under Interest Rate Contracts for such period and (ii) all fees, charges, commissions,
discounts and other similar obligations (other than reimbursement obligations) with respect to letters of credit, bank guarantees, banker's acceptances, surety bonds and performance bonds (whether or
not matured) payable during such period minus (b) the sum of (i) Consolidated net gains of such Person under Interest Rate Contracts for such period and (ii) Consolidated interest
income of such Person. 


        "Consolidated Leverage Ratio" means, with respect to any Person as of any date, the ratio of (a) Consolidated Total Debt of such
Person outstanding as of such date to (b) Consolidated EBITDA for such Person for the last period of four consecutive Fiscal Quarters ending on or before such date. 


        "Consolidated Net Income" means, with respect to any Person, for any period, the Consolidated net income (or loss) of such Person and its
Subsidiaries for such period; provided, however, that the following shall be excluded: (a) the
net income of any other Person in which such Person or one of its Subsidiaries has a joint interest with a third-party (which interest does not cause the net income of such other Person to be
Consolidated into the net income of such Person), except to the extent of the amount of cash dividends or distributions paid to such Person or Subsidiary, (b) the net income of any Subsidiary
of such Person that is, on the last day of such period, subject to any restriction or limitation on the payment of dividends or the making of other distributions, to the extent of such restriction or
limitation and (c) the net income of any other Person arising prior to such other Person becoming a Subsidiary of such Person or merging or consolidating into such Person or its Subsidiaries. 


        "Consolidated Total Debt" of any Person means all Indebtedness of a type described in  clause (a), (b), (c)(i),  (d) or (f) of the definition thereof and all Guaranty Obligations with respect to any such Indebtedness,
in each case of such Person and its Subsidiaries on a Consolidated basis. 


        "Constituent Documents" means, with respect to any Person, collectively and, in each case, together with any modification of any term
thereof, (a) the articles of incorporation, certificate of incorporation, constitution or certificate of formation of such Person, (b) the bylaws, operating agreement or joint venture
agreement of such Person, (c) any other constitutive, organizational or governing document of such Person, whether or not equivalent, and (d) any other document setting forth the manner
of election or duties of the directors, officers or managing members of such Person or the designation, amount or relative rights, limitations and preferences of any Stock of such Person. 


        "Contractual Obligation" means, with respect to any Person, any provision of any Security issued by such Person or of any document or
undertaking (other than a Loan Document) to which such Person is a party or by which it or any of its property is bound or to which any of its property is subject. 


5







 



        "Control Agreement" means, with respect to any deposit account, any securities account, commodity account, securities entitlement or
commodity contract, an agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Administrative Agent, the financial institution or other Person at which such
account is maintained or with which such entitlement or contract is carried and the Loan Party maintaining such account, effective to grant "control" (as defined under the applicable UCC) over such
account to the Administrative Agent. 


        "Controlled Deposit Account" means each deposit account (including all funds on deposit therein) that is the subject of an effective
Control Agreement and that is maintained by any Loan Party with a financial institution approved by the Administrative Agent. 


        "Controlled Securities Account" means each securities account or commodity account (including all financial assets held therein and all
certificates and instruments, if any, representing or evidencing such financial assets) that is the subject of an effective Control Agreement and that is maintained by any Loan Party with a securities
intermediary or commodity intermediary approved by the Administrative Agent. 


        "Copyrights" means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in or
relating to copyrights and all mask work, database and design rights, whether or not registered or published, all registrations and recordations thereof and all applications in connection therewith. 



        "Corporate Chart" means a document in form reasonably acceptable to the Administrative Agent and setting forth, as of a date set forth
therein, for each Person that is a Loan Party, that is subject to  Section 7.10 or that is a Subsidiary or joint venture of any of them, (a) the full legal name of such Person, (b) the
jurisdiction
of organization and any organizational number and tax identification number of such Person, (c) the location of such Person's chief executive office (or, if applicable, sole place of business)
and (d) the number of shares of each class of Stock of such Person (other than Holdings) authorized, the number outstanding and the number and percentage of such outstanding shares for each
such class owned, directly or indirectly, by any Loan Party or any Subsidiary or any other equity holder of any of them. 


        "Customary Permitted Liens" means, with respect to any Person, any of the following: 



        (a)   Liens
(i) with respect to the payment of taxes, assessments or other governmental charges or (ii) of suppliers, carriers, materialmen, warehousemen,
workmen or mechanics and other similar Liens, in each case imposed by law or arising in the ordinary course of business, and, for each of the Liens in clauses
(i) and (ii) above for amounts that are not yet due or that are being contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP; 


        (b)   Liens
of a collection bank on items in the course of collection arising under Section 4-208 of the UCC as in effect in the State of New York or any
similar section under any applicable UCC or any similar Requirement of Law of any foreign jurisdiction; 



        (c)   pledges
or cash deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance or other types of social
security benefits (other than any Lien imposed by ERISA), (ii) to secure the performance of bids, tenders, leases (other than Capital Leases), sales or other trade contracts (other than for the
repayment of borrowed money) or (iii) made in lieu of, or to secure the performance of, surety, customs, reclamation or performance bonds (in each case not related to judgments or litigation); 



        (d)   judgment
liens (other than for the payment of taxes, assessments or other governmental charges) securing judgments and other proceedings not constituting an Event of
Default under 



6







 




 Section 9.1(e) and pledges or cash deposits made in lieu of, or to secure the performance of, judgment or appeal bonds in respect of such judgments and proceedings; 


        (e)   Liens
(i) arising by reason of zoning restrictions, easements, licenses, reservations, restrictions, covenants, rights-of-way,
encroachments, minor defects or irregularities in title (including leasehold title) and other similar encumbrances on the use of real property or (ii) consisting of leases, licenses, subleases
or sublicenses granted by a lessor, licensor, sublicensor or
sublessor on its property (in each case other than Capital Leases) otherwise permitted under Section 8.4 that, for each of the Liens in  clauses (i)
and (ii) above, do not, in the aggregate, materially (x) impair the value or
marketability of such real property or (y) interfere with the ordinary conduct of the business conducted and proposed to be conducted at such real property; 



        (f)    Liens
of landlords and mortgagees of landlords (i) arising by statute or under any lease or related Contractual Obligation entered into in the ordinary course of
business, (ii) on fixtures and movable tangible property located on the real property leased or subleased from such landlord, (iii) for amounts not yet due or that are being contested in
good faith by appropriate proceedings diligently conducted and (iv) for which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with
GAAP; and 


        (g)   the
title and interest of a lessor or sublessor in and to personal property leased or subleased (other than through a Capital Lease), in each case extending only to such
personal property. 




        "Default" means any Event of Default and any event that, with the passing of time or the giving of notice or both, would become an Event
of Default. 


        "Disclosure Documents" means, collectively, (a) all confidential information memoranda and related materials prepared in connection
with the syndication of the Facilities and (b) all other documents filed by any Group Member with the United States Securities and Exchange Commission. 


        "Dollars" and the sign "$" each mean the lawful money of the United States of America. 


        "Domestic Person" means any "United States person" under and as defined in
Section 770l(a)(30) of the Code. 


        "Electronic Transmission" means each document, instruction, authorization, file, information and any other communication transmitted,
posted or otherwise made or communicated by e-mail or E-Fax, or otherwise to or from an E-System or other equivalent service. 


        "Employee Stock Buybacks" means the redemption, purchase or other acquisition or retirement for value by Holdings of its common Stock (or
Stock Equivalents with respect to its common Stock) from any present or former employee, director or officer (or the assigns, estate, heirs or current or former spouses thereof) of any Group Member
upon the death, disability or termination of employment of such employee, director or officer. 



        "Environmental Laws" means all Requirements of Law and Permits imposing liability or standards of conduct for or relating to the
regulation and protection of human health, safety, the environment and natural resources, including CERCLA, the SWDA, the Hazardous Materials Transportation Act (49 U.S.C. §§
5101 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 136 et seq.), the Toxic Substances Control Act (15 U.S.C. §§ 2601 et
seq.), the Clean Air Act (42 U.S.C. §§ 7401 et seq.), the Federal Water Pollution Control Act (33 U.S.C. §§ 1251 et seq.), the Occupational Safety and
Health Act (29 U.S.C. §§ 651 et seq.), the Safe Drinking Water Act (42 U.S.C. §§ 300(f) et seq.), all regulations promulgated under any of the
foregoing, all analogous Requirements of Law and Permits and any environmental transfer of ownership notification or approval statutes, including the Industrial Site Recovery Act (N.J. Stat. Ann.
§§ 13:1K-6 et seq.). 


7







 

        "Environmental Liabilities" means all Liabilities (including costs of Remedial Actions, natural resource damages and costs and expenses of
investigation and feasibility studies) that may be imposed on, incurred by or asserted against any Group Member as a result of, or related to, any claim, suit, action, investigation, proceeding or
demand by any Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law or otherwise, arising under any Environmental Law or in
connection with any environmental, health or safety condition or with any Release and resulting from the ownership, lease, sublease or other operation or occupation of property by any Group Member,
whether on, prior or after the date hereof. 


        "ERISA" means the United States Employee Retirement Income Security Act of 1974. 


        "ERISA Affiliate" means, collectively, any Group Member, and any Person under common control, or treated as a single employer, with any
Group Member, within the meaning of Section 414(b), (c), (m) or (o) of the Code. 


        "ERISA Event" means any of the following: (a) a reportable event described in Section 4043(b) of ERISA (or, unless the
30-day notice requirement has been duly waived under the applicable regulations, Section 4043(c) of ERISA) with respect to a Title IV Plan, (b) the withdrawal of any ERISA
Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA, (c) the
complete or partial withdrawal of any ERISA Affiliate from any Multiemployer Plan, (d) with respect to any Multiemployer Plan, the filing of a notice of reorganization, insolvency or
termination (or treatment of a plan amendment as termination) under Section 4041A of ERISA, (e) the filing of a notice of intent to terminate a Title IV Plan (or treatment of a plan
amendment as termination) under Section 4041 of ERISA, (f) the institution of proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC, (g) the failure to make
any required contribution to any Title IV Plan or Multiemployer Plan
when due, (h) the imposition of a lien under Section 412 of the Code or Section 302 or 4068 of ERISA on any property (or rights to property, whether real or personal) of any ERISA
Affiliate, (i) the failure of a Benefit Plan or any trust thereunder intended to qualify for tax exempt status under Section 401 or 501 of the Code or other Requirements of Law to
qualify thereunder and (j) any other event or condition that might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of
a trustee to administer, any Title IV Plan or Multiemployer Plan or for the imposition of any liability upon any ERISA Affiliate under Title IV of ERISA other than for PBGC premiums due but not
delinquent. 


        "E-Signature" means the process of attaching to or logically associating with an Electronic Transmission an electronic symbol,
encryption, digital signature or process (including the name or an abbreviation of the name of the party transmitting the Electronic Transmission) with the intent to sign, authenticate or accept such
Electronic Transmission. 


        "E-System" means any electronic system, including Intralinks® and any other Internet or extranet-based site,
whether such electronic system is owned, operated or hosted by the Administrative Agent, any of its Related Persons or any other Person, providing for access to data protected by passcodes or other
security system. 


        "Eurodollar Base Rate" means, with respect to any Interest Period for any Eurodollar Rate Loan, the rate determined by the Administrative
Agent to be the offered rate for deposits in Dollars for the applicable Interest Period appearing on the Reuters Screen LIBOR01 Page as of 11:00 a.m. (London time) on the second full Business
Day next preceding the first day of each Interest Period. In the event that such rate does not appear on the Reuters Screen LIBOR01 Page (or otherwise on the Reuters screen) at such time, the
"Eurodollar Base Rate" shall be determined by reference to such other page as may replace that page on that service or such other comparable publicly
available service for displaying the offered rate for deposit in Dollars in the London interbank market as may be selected by 


8







 



the
Administrative Agent and, in the absence of availability, such other method to determine such offered rate as may be selected by the Administrative Agent in its reasonable discretion. 


        "Eurodollar Rate" means, with respect to any Interest Period and for any Eurodollar Rate Loan, an interest rate per annum determined as
the ratio of (a) the Eurodollar Base Rate with respect to such Interest Period for such Eurodollar Rate Loan to (b) the difference between the number one and the Eurodollar Reserve
Requirements with respect to such Interest Period and for such Eurodollar Rate Loan. 


        "Eurodollar Rate Loan" means any Loan that bears interest based on the Eurodollar Rate. 


        "Eurodollar Reserve Requirements" means, with respect to any Interest Period and for any Eurodollar Rate Loan, a rate per annum equal to
the aggregate, without duplication, of the maximum rates (expressed as a decimal number) of reserve requirements in effect 2 Business Days prior to the first day of such Interest Period (including
basic, supplemental, marginal and emergency reserves) under any regulations of the Federal Reserve Board or other Governmental Authority having jurisdiction with respect thereto dealing with reserve
requirements prescribed for eurocurrency funding (currently referred to as "eurocurrency liabilities" in Regulation D of the Federal Reserve Board) maintained by a member bank of the United
States Federal Reserve System. 


        "Event of Default" has the meaning specified in Section 9.1. 


        "Excess Cash Flow" means, for any period, Consolidated EBITDA of Holdings for such period  plus (minus) reductions
(additions) to Working Capital for such period,  minus, without duplication, (i) any cash principal payment on the Loans during such period (but only, in the case of payment in respect of
Revolving Loans, to the extent that the Revolving Credit Commitments are permanently reduced by the amount of such payment) including any mandatory prepayments made to the Administrative Agent
pursuant to Sections 2.8(b) or Section 2.8(c), (ii) any scheduled cash principal payment
made by Borrower or any of its Subsidiaries during such period on any Capitalized Lease Obligation or other Indebtedness (but only, if such Indebtedness may be reborrowed, to the extent such payment
results in a permanent reduction in commitments thereof), (iii) any Capital Expenditure made by Holdings or any of its Subsidiaries during such period to the extent permitted by this Agreement,
excluding the portion thereof financed with Indebtedness payable over a period in excess of 12 months, (iv) the Consolidated Cash Interest Expense of Holdings for such period,
(v) any cash payment made during such period to satisfy obligations for United States federal income taxes or other taxes measured by income, and (vi) the aggregate amount of all fees,
costs or expenses (up to but not exceeding an aggregate amount of $400,000) paid to the holders of the Notes pursuant to the terms of this Agreement or otherwise incurred in connection with the
financing transactions contemplated hereby. 


        "Excluded Foreign Subsidiary" means any Subsidiary of Holdings that is not a Domestic Person and in respect of which any of (a) the
pledge of all of the Stock of such Subsidiary as Collateral for the Obligations, (b) the grant by such Subsidiary of a Lien on any of its property as Collateral for any Obligation of Holdings
or any Subsidiary thereof or (c) such Subsidiary incurring Guaranty Obligations with respect to any Obligation of Holdings, Borrower or any Domestic Person would, in the good faith judgment of
Holdings, result in incremental adverse income tax consequences to the Loan Parties and their Subsidiaries, taken as a whole under Section 956 of the Code taking into account actual anticipated
repatriation of funds, foreign tax credits and all relevant factors; provided, however, that
(x) the Required Lenders and Holdings may agree that, despite the foregoing, any such Subsidiary shall not be an "Excluded Foreign Subsidiary"
and (y) no such Subsidiary shall be an "Excluded Foreign Subsidiary" if, with substantially similar tax consequences, such Subsidiary has entered
into any Guaranty Obligations with respect to, such Subsidiary has granted a security interest in any of its property to secure, or more than 66% of the Voting Stock of such Subsidiary was pledged to
secure, directly or indirectly, any Indebtedness (other than the Obligations) of any Loan Party. 


9







 



        "Excluded Tax Payment" means the cash tax payment in an amount of up to $1,200,000 made or to be made by Borrower during the Fiscal
Quarter ended March 31, 2007 relating to earnings during the Fiscal Year ended December 31, 2006. 


        "Facilities" means (a) the Term Loan Facility and (b) the Revolving Credit Facility. 


        "Federal Funds Rate" means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as determined by the Administrative Agent in its sole
discretion. 


        "Federal Reserve Board" means the Board of Governors of the United States Federal Reserve System and any successor thereto. 


        "Fee Letter" means the letter agreement from Borrower and addressed to and accepted by Churchill, with respect to certain fees to be paid
from time to time to Churchill as the Administrative Agent and its Related Persons. 


        "Financial Statement" means each financial statement delivered pursuant to  Section 4.4 or 6.1. 



        "Fiscal Quarter" means each 3 fiscal month period ending on March 31, June 30, September 30 or December 31. 


        "Fiscal Year" means the twelve month period ending on December 31. 


        "GAAP" means generally accepted accounting principles in the United States of America, as in effect from time to time, set forth in the
opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants, in the statements and pronouncements of the Financial Accounting Standards
Board and in such other statements by such other entity as may be in general use by significant segments of the accounting profession that are applicable to the circumstances as of the date of
determination. Subject to Section 1.3, all references to "GAAP" shall be to GAAP applied
consistently with the principles used in the preparation of the Financial Statements described in Section 4.4(a). 


        "General Partner" means PROS Revenue I, LLC, a Delaware limited liability company. 



        "Governmental Authority" means any nation, sovereign or government, any state or other political subdivision thereof, any agency,
authority or instrumentality thereof and any entity or authority exercising executive, legislative, taxing, judicial, regulatory or administrative functions of or pertaining to government, including
any central bank, stock exchange, regulatory body, arbitrator, public sector entity, supra-national entity (including the European Union and the European Central Bank) and any
self-regulatory organization (including the National Association of Insurance Commissioners). 


        "Group Members" means, collectively, Holdings and each of its Subsidiaries (including Borrower). 



        "Group Members' Accountants" means PricewaterhouseCoopers LLC or other nationally-recognized independent registered certified public
accountants acceptable to the Administrative Agent. 


        "Guarantor" means Holdings, each Subsidiary of Holdings, each Wholly Owned Subsidiary of Borrower that is not an Excluded Foreign
Subsidiary, and each other Person that enters into any Guaranty Obligation with respect to any Obligation of any Loan Party. As of the Closing Date, the Guarantors are: Holdings, General Partner and
Limited Partner. 


        "Guaranty, Pledge and Security Agreement" means a guaranty, pledge and security agreement, in substantially the form of  Exhibit H, among the Administrative Agent,
Borrower and Guarantors from time to time party thereto. 


10









   
        "Guaranty Obligation" means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of such Person for any
Indebtedness, lease, dividend or other obligation (the "primary obligation") of another Person (the "primary
obligor"), if the purpose or intent of such Person in incurring such liability, or the economic effect thereof, is to guarantee such primary obligation or provide support,
assurance or comfort to the holder of such primary obligation or to protect or indemnify such holder against loss with respect to such primary obligation, including (a) the direct or indirect
guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of any primary
obligation, (b) the incurrence of reimbursement obligations with respect to any letter of credit or bank guarantee in support of any primary obligation, (c) the existence of any Lien, or
any right, contingent or otherwise, to receive a Lien, on the property of such Person securing any part of any primary obligation and (d) any liability of such Person for a primary obligation
through any Contractual Obligation (contingent or otherwise) or other arrangement (i) to purchase, repurchase or otherwise acquire such primary obligation or any security therefor or to provide
funds for the payment or discharge of such primary obligation (whether in the form of a loan, advance, stock purchase, capital contribution or otherwise), (ii) to maintain the solvency, working
capital, equity capital or any balance sheet item, level of income or cash flow, liquidity or financial condition of any primary obligor, (iii) to make take-or-pay or
similar payments, if required, regardless of non-performance by any other party to any Contractual Obligation, (iv) to purchase, sell or lease (as lessor or lessee) any property, or
to purchase or sell services, primarily for the purpose of enabling the primary obligor to satisfy such primary obligation or to protect the holder of such primary obligation against loss or
(v) to supply funds to or in any other manner invest in, such primary obligor (including to pay for property or services irrespective of whether such property is received or such services are
rendered); provided, however, that "Guaranty
Obligations" shall not include (x) endorsements for collection or deposit in the ordinary course of business and (y) product warranties given in the ordinary
course of business. The outstanding amount of any Guaranty Obligation shall equal the outstanding amount of the primary obligation so guaranteed or otherwise supported or, if lower, the stated maximum
amount for which such Person may be liable under such Guaranty Obligation. 


        "Hazardous Material" means any substance, material or waste that is classified, regulated or otherwise characterized under any
Environmental Law as hazardous, toxic, a contaminant or a pollutant or by other words of similar meaning or regulatory effect, including petroleum or any fraction thereof, asbestos, polychlorinated
biphenyls and radioactive substances. 


        "Hedging Agreement" means any Interest Rate Contract, foreign exchange, swap, option or forward contract, spot, cap, floor or collar
transaction, any other derivative instrument and any other similar speculative transaction and any other similar agreement or arrangement designed to alter the risks of any Person arising from
fluctuations in any underlying variable. 


        "Holdings" means PROS Holdings, Inc., a Delaware corporation. 



        "Indebtedness" of any Person means, without duplication, any of the following, whether or not matured: (a) all indebtedness for
borrowed money, (b) all obligations evidenced by notes, bonds, debentures or similar instruments, (c) all reimbursement and all obligations with respect to (i) letters of credit,
bank guarantees or bankers' acceptances or (ii) surety, customs, reclamation or performance bonds (in each case not related to judgments or litigation), (d) all obligations to pay the
deferred purchase price of property or services, other than trade payables incurred in the ordinary course of business that are unsecured and not overdue by more than 60 days unless being
contested in good faith, (e) all obligations created or arising under any conditional sale or other title retention agreement, regardless of whether the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession or sale of such property, (f) all Capitalized Lease Obligations and the net present value (discounted at the Base
Rate as in effect on the Closing Date) of future rental payments under all synthetic leases, (g) all obligations, whether or not contingent, to purchase, redeem, 


11







 



retire,
defease or otherwise acquire for value any of its own Stock or Stock Equivalents (or any Stock or Stock Equivalent of a direct or indirect parent entity thereof) prior to the date that is one
year after the Scheduled Maturity Date, valued at, in the case of redeemable preferred Stock, the greater of the voluntary liquidation preference and the involuntary liquidation preference of such
Stock plus accrued and unpaid dividends, (h) all payments that would be required to be made in respect of any Hedging Agreement in the event of a termination (including an early termination) on
the date of determination, (i) "earnouts" and similar payment obligations, and (j) all Guaranty Obligations for obligations of any other Person constituting Indebtedness of such other
Person; provided, however, that the items in each of clauses
(a) through (j) above shall constitute "Indebtedness" of such Person solely to
the extent, directly or indirectly, (x) such Person is liable for any part of any such item, (y) any such item is secured by a Lien on such Person's property or (z) any other
Person has a right, contingent or otherwise, to cause such Person to become liable for any part of any such item or to grant such a Lien. 


        "Indemnified Matter" has the meaning specified in Section 12.4. 



        "Indemnitee" has the meaning specified in Section 12.4. 


        "Initial Projections" means those financial projections, dated March 2, covering the Fiscal Years ending in 2007 through 2011 and
delivered to the Administrative Agent by Borrower prior to the date hereof. 


        "Intellectual Property" means all rights, title and interests in or relating to intellectual property and industrial property arising
under any Requirement of Law and all IP Ancillary Rights relating thereto, including all Copyrights, Patents, Trademarks, Internet Domain Names, Trade Secrets and IP Licenses. 


        "Interest Period" means, with respect to any Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is made or
converted to a Eurodollar Rate Loan or, if such loan is continued, on the last day of the immediately preceding Interest Period therefor and, in each case, ending 1, 2, 3, 6 or, if available to all
Lenders, 9 or 12 months thereafter, as selected by Borrower pursuant hereto; provided, however,
that (a) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless the result of such
extension would be to extend such Interest Period into another such Business Day falls in the next calendar month, in which case such Interest Period shall end on the immediately preceding Business
Day, (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar month, (c) Borrower may not select any Interest Period (i) in the case of Revolving Loans, ending after the Scheduled
Maturity Date and (ii) in the case of Term Loans, ending after the Term Loan Maturity Date, (d) Borrower may not select any Interest Period in respect of Loans having an aggregate
principal amount of less than $1,000,000 and (e) there shall be outstanding at any one time no more than 8 Interest Periods. 


        "Interest Rate Contracts" means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and
interest rate insurance. 


        "Internet Domain Names" means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law
in or relating to Internet domain names. 


        "Investment" means, with respect to any Person, directly or indirectly, (a) to own, purchase or otherwise acquire, in each case
whether beneficially or otherwise, any investment in, including any interest in, any Security of any other Person (other than any evidence of any Obligation), (b) to purchase or otherwise
acquire, whether in one transaction or in a series of transactions, all or a significant part of the property of any other Person or a business conducted by any other Person or all or substantially
all of the assets constituting the business of a division, branch, brand or other unit operation of any other Person, (c) to incur, or to remain liable under, any Guaranty Obligation for
Indebtedness of any other Person, to assume the Indebtedness of any other Person or to make, hold, 


12







 



purchase
or otherwise acquire, in each case directly or indirectly, any deposit, loan, advance, commitment to lend or advance, or other extension of credit (including by deferring or extending the
date of, in each case outside the ordinary course of business, the payment of the purchase price for Sales of property or services to any other Person, to the extent such payment obligation
constitutes Indebtedness of such other Person), excluding deposits with financial institutions available for withdrawal on demand, prepaid expenses, accounts receivable and similar items created in
the ordinary course of business, (d) to make, directly or indirectly, any contribution to the capital of any other Person or (e) to Sell any property for less than fair market value
(including a disposition of cash or Cash Equivalents in exchange for consideration of lesser value); provided,  however, that such Investment shall be
valued at the difference between the value of the consideration for such Sale and the fair market value of the
property Sold. 


        "IP Ancillary Rights" means, with respect to any Intellectual Property, as applicable, all foreign counterparts to, and all divisionals,
reversions, continuations, continuations-in-part, reissues, reexaminations, renewals and extensions of, such Intellectual Property and all income, royalties, proceeds and
Liabilities at any time due or payable or asserted under or with respect to any of the foregoing or otherwise with respect to such Intellectual Property, including all rights to sue or recover at law
or in equity for any past, present or future infringement, misappropriation, dilution, violation or other impairment thereof, and, in each case, all rights to obtain any other IP Ancillary Right. 


        "IP License" means all Contractual Obligations (and all related IP Ancillary Rights), whether written or oral, granting any right title
and interest in or relating to any Intellectual Property. 


        "IRS" means the Internal Revenue Service of the United States and any successor thereto. 



        "Issue" means, with respect to any Letter of Credit, to issue, extend the expiration date of, renew (including by failure to object to any
automatic renewal on the last day such objection is permitted), increase the face amount of, or reduce or eliminate any scheduled decrease in the face amount of, such Letter of Credit, or to cause any
Person to do any of the foregoing. The terms "Issued" and "Issuance" have correlative meanings. 


        "Landlord Waiver" means the waiver executed by Houston Community College System as lessor of office space located at ComTech Center, 3100
South Main Street, Houston, Harris County, Texas, in a form reasonably acceptable to the Administrative Agent. 


        "L/C Cash Collateral Account" means any Cash Collateral Account (a) specifically designated as such by the applicable Borrower in a
notice to the Administrative Agent and (b) from and after the effectiveness of such notice, not containing any funds other than those required under the Loan Documents to be placed therein. 


        "L/C Issuer" means (a) the Administrative Agent or any of its Affiliates and (b) each Person that hereafter becomes an L/C
Issuer with the approval of, and pursuant to an agreement with and in form and substance satisfactory to, the Administrative Agent and Borrower, in each case in their capacity as L/C Issuers hereunder
and together with their successors. 


        "L/C Obligations" means, for any Letter of Credit at any time, the sum of (a) the L/C Reimbursement Obligations at such time for
such Letter of Credit and (b) the aggregate maximum undrawn face amount of such Letter of Credit outstanding at such time. 


        "L/C Reimbursement Agreement" has the meaning specified in Section 2.4(a). 



        "L/C Reimbursement Date" has the meaning specified in Section 2.4(e). 


        "L/C Reimbursement Obligation" means, for any Letter of Credit, the obligation of Borrower to the L/C Issuer thereof, as and when matured,
to pay all amounts drawn under such Letter of Credit. 


        "L/C Request" has the meaning specified in Section 2.4(b). 


13







 



        "L/C Sublimit" means $1,000,000. 


        "Lender" means, collectively, the Swingline Lender and any other financial institution or other Person that (a) is listed on the
signature pages hereof as a "Lender" or (b) from time to time becomes a party hereto by execution of an Assignment, in each case together with
its successors. 


        "Letter of Credit" means any letter of credit Issued pursuant to Section 2.4. 


        "Liabilities" means all claims, actions, suits, judgments, damages, losses, liability, obligations, responsibilities, fines, penalties,
sanctions, costs, fees, taxes, commissions, charges, disbursements and expenses, in each case of any kind or nature (including interest accrued thereon or as a result thereto and fees, charges and
disbursements of financial, legal and other advisors and consultants), whether joint or several, whether or not indirect, contingent, consequential, actual, punitive, treble or otherwise. 


        "Lien" means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, easement, lien
(statutory or other), security interest or other security arrangement and any other preference, priority or preferential arrangement of any kind or nature whatsoever, including any conditional sale
contract or other title retention agreement, the interest of a lessor under a Capital Lease and any synthetic or other financing lease having substantially the same economic effect as any of the
foregoing. 


        "Limited Partner" means PROS Revenue II, LLC, a Delaware limited liability company. 


        "Loan" means any loan made or deemed made by any Lender hereunder. 


        "Loan Documents" means, collectively, this Agreement, any Notes, the Guaranty, Pledge and Security Agreement, any Mortgages, the Control
Agreements, the Fee Letter, the L/C Reimbursement Agreements, the Landlord Waiver, and, when executed, each document executed by a Loan Party and delivered to the Administrative Agent, any Lender or
any L/C Issuer in connection with or pursuant to any of the foregoing or the Obligations, together with any modification of any term, or any waiver with respect to, any of the foregoing. 


        "Loan Party" means Borrower and each Guarantor. 


        "Material Adverse Effect" means an effect that results in or causes, or could reasonably be expected to result in or cause, a material
adverse change in any of (a) the condition (financial or otherwise), business, performance, operations or property of the Group Members, taken as a whole, (b) the ability of any Loan
Party to perform its obligations under any Loan Document and (c) the validity or enforceability of any Loan Document or the rights and remedies of the Administrative Agent, the Lenders and the
other Secured Parties under any Loan Document. 


        "Material Contract" means with respect to any Person, each contract or agreement to which such Person is a party as to which the breach,
nonperformance, cancellation or failure to renew by any party thereto would reasonably be expected to have a Material Adverse Effect. 


        "Material Environmental Liabilities" means Environmental Liabilities exceeding $250,000 in the aggregate. 


        "Moody's" means Moody's Investors Service, Inc. 


        "Mortgage" means any mortgage, deed of trust or other document executed or required herein to be executed by any Loan Party and granting a
security interest over real property in favor of the Administrative Agent as security for the Obligations. 


        "Mortgage Supporting Documents" means, with respect to any Mortgage for a parcel of real property, each document (including title policies
or marked-up unconditional insurance binders (in each case, together with copies of all documents referred to therein), maps, ALTA (or TLTA, if applicable) as-built surveys (in
form and as to date that is sufficiently acceptable to the title insurer issuing title 


14







 



insurance
to the Administrative Agent for such title insurer to deliver endorsements to such title insurance as reasonably requested by the Administrative Agent), environmental assessments and reports
and evidence regarding recording and payment of fees, insurance premium and taxes) that the Administrative Agent may reasonably request, to create, register, perfect, maintain, evidence the existence,
substance, form or validity of or enforce a valid lien on such parcel of real property in favor of the Administrative Agent for the benefit of the Secured Parties, subject only to such Liens as the
Administrative Agent may approve. 


        "Multiemployer Plan" means any multiemployer plan, as defined in Section 400l(a)(3) of ERISA, to which any ERISA Affiliate incurs
or otherwise has any obligation or liability, contingent or otherwise. 


        "Net Cash Proceeds" means proceeds received in cash from (a) any Sale of, or Property Loss Event with respect to, property, net of
(i) the customary reasonable out-of-pocket cash costs, fees and expenses paid in connection therewith, (ii) taxes paid or reasonably estimated to be payable as a
result thereof and (iii) any amount required to be paid or prepaid on Indebtedness (other than the Obligations and Indebtedness owing to any Group Member) secured by the property subject
thereto or (b) any sale or issuance of Stock or incurrence of Indebtedness, in each case net of brokers', advisors', legal, printing and investment banking fees and other customary reasonable
out-of-pocket underwriting discounts, commissions and other customary reasonable out-of-pocket cash costs, fees and expenses, in each case incurred in
connection with such transaction; provided, however, that any such proceeds received by any Subsidiary
of Holdings that is not a Wholly Owned Subsidiary of Holdings shall constitute "Net Cash Proceeds" only to the extent of the aggregate direct and
indirect beneficial ownership interest of Holdings therein. 


        "Non-Financed Capital Expenditures" means Capital Expenditures that are not financed by the incurrence of Indebtedness. 


        "Non-Funding Lender" has the meaning specified in Section 2.2(c). 



        "Non-U.S. Lender Party" means each of the Administrative Agent, each Lender, each L/C Issuer, each SPV and each participant,
in each case that is not a Domestic Person. 


        "Note" means a promissory note of Borrower, in substantially the form of Exhibit B,
payable to the order of a Lender in any Facility in a principal amount equal to the amount of such Lender's Commitment under such Facility (or, in the case of the Term Loan Facility, the aggregate
initial principal amount of the Term Loans). 


        "Notice of Borrowing" has the meaning specified in Section 2.2. 


        "Notice of Conversion or Continuation" has the meaning specified in Section 2.10. 


        "Obligations" means, with respect to any Loan Party, all amounts, obligations, liabilities, covenants and duties of every type and
description owing by such Loan Party to the Administrative Agent, any Lender, any L/C Issuer, any other Indemnitee, any participant or any SPV arising out of, under, or in connection with, any Loan
Document, whether direct or indirect (regardless of whether acquired by assignment), absolute or contingent, due or to become due, whether liquidated or not, now existing or hereafter arising and
however acquired, and whether or not evidenced by any instrument or for the payment of money, including, without duplication, (a) if such Loan Party is a Borrower, all Loans and L/C Obligations
of such Loan Party, (b) all interest, whether or not accruing after the filing of any petition in bankruptcy or after the commencement of any insolvency, reorganization or similar proceeding,
and whether or not a claim for post-filing or post-petition interest is allowed in any such proceeding, and (c) all other fees, expenses (including reasonable fees,
charges and disbursement of counsel), interest, commissions, charges, costs, disbursements, indemnities and reimbursement of amounts paid and other sums chargeable to such Loan Party under any Loan
Document (including those payable to L/C Issuers as described in Section 2.11). 


15







 



        "Other Taxes" has the meaning specified in Section 2.17(c). 



        "Parent Guarantors" means, collectively, Holdings, General Partner and Limited Partner. 


        "Patents" means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating
to letters patent and applications therefor. 


        "PBGC" means the United States Pension Benefit Guaranty Corporation and any successor thereto. 



        "Permit" means, with respect to any Person, any permit, approval, authorization, license, registration, certificate, concession, grant,
franchise, variance or permission from, and any other Contractual Obligations with, any Governmental Authority, in each case whether or not having the force of law and applicable to or binding upon
such Person or any of its property or to which such Person or any of its property is subject. 


        "Permitted Acquisition" means any Proposed Acquisition satisfying each of the following conditions: (a) the aggregate amounts
payable in connection with, and other consideration for (in each case, including all transaction costs and all Indebtedness, liabilities and Guaranty Obligations incurred or assumed in connection
therewith or otherwise reflected in a Consolidated balance sheet of Holdings and the Proposed Acquisition Target), such Proposed Acquisition shall not exceed $2,000,000 individually and $4,000,000
when aggregated with all other Permitted Acquisitions, (b) the Administrative Agent shall have received reasonable advance notice of such Proposed Acquisition including a reasonably detailed
description thereof at least 15 days prior to the consummation of such Proposed Acquisition (or such later date as may be agreed by the Administrative Agent) and on or prior to the date of such
Proposed Acquisition, the Administrative Agent shall have received copies of the acquisition agreement and related Contractual Obligations and other documents (including financial information and
analysis, environmental assessments and reports, opinions, certificates and lien searches) and information reasonably requested by the Administrative Agent, (c) as of the date of consummation
of such Proposed Acquisition and after giving effect to all transactions to occur on such date as part of such Proposed Acquisition, all conditions set forth in clauses
(i) and (ii) of Section 3.2(b) shall be satisfied or duly waived,
(d) as of the date of consummation of such Proposed Acquisition and after giving effect to all transactions to occur on such date as part of such Proposed Acquisition, there shall be not less
than $2,000,000 Revolver Availability, (e) such Proposed Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type
engaged in by Borrower as of the Closing Date, (f) such Proposed Acquisition shall be consensual and shall have been approved by the Proposed Acquisition Target's board of directors,
(g) the Proposed Acquisition Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Proposed Acquisition, as determined based upon the
Target's financial statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such
Proposed Acquisition, (h) at or prior to the closing of any Proposed Acquisition, the Administrative Agent will be granted a first priority perfected Lien in all assets acquired pursuant
thereto or in the assets and Stock of the Target to the extent required under Section 7.10, and Loan Parties shall have executed such documents
and taken such actions as may be reasonably required by the Administrative Agent in connection therewith, (i) as of the date of consummation of such Proposed Acquisition and after giving effect
to all transactions to occur on such date as part of such Proposed Acquisition, Borrower and its Subsidiaries shall continue to be in compliance with the financial covenants set forth in  Article V,
provided, however, that the
Consolidated Leverage Ratio of Borrower shall be at least 0.25 below the maximum Consolidated Leverage Ratio permitted as of the applicable date (for example, if the maximum Consolidated Leverage
Ratio then permitted under Article V is 3.50 to 1.0, then, after giving effect to the Proposed Acquisition, the Consolidated Leverage Ratio could
not greater than 3.25 to 


16







 



1.0);
and (j) Borrower shall have delivered to Administrative Agent, in form and substance reasonably satisfactory to Administrative Agent: 



	1.
	the
Acquisition Pro Forma;



	2.
	the
Acquisition Projections; and



	3.
	a
certificate of the most senior financial officer of Borrower to the effect that: (w) Borrower will be Solvent upon the consummation of the Proposed Acquisition, (x) the
Acquisition Pro Forma fairly presents in all material respects the financial condition of Borrower and its Subsidiaries (on a consolidated basis) as of the date thereof after giving effect to the
Proposed Acquisition, (y) the Acquisition Projections are good faith estimates based on assumptions believed by management of Borrower to be reasonable at the time made of the future financial
performance of Borrower and its Subsidiaries subsequent to the date thereof based upon the historical performance of Borrower and its Subsidiaries and the Proposed Acquisition Target (provided,
however, that Borrower gives no assurances whatsoever that such projections will be attained) and show that Borrower and its Subsidiaries shall continue to be in compliance with the financial
covenants set forth in Article V and clause (i) of the definition of Permitted Acquisitions, and (z) Borrower and its Subsidiaries
have completed their due diligence investigation with respect to the Proposed Acquisition Target and such Proposed Acquisition, which investigation was conducted in a manner similar to that which
would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to the Administrative Agent and the Lenders. 




        "Permitted Indebtedness" means any Indebtedness of any Group Member that is not prohibited by  Section 8.1 or any other provision of any Loan Document. 



        "Permitted Investment" means any Investment of any Group Member that is not prohibited by  Section 8.3 or any other provision of any Loan Document. 


        "Permitted Lien" means any Lien on or with respect to the property of any Group Member that is not prohibited by  Section 8.2 or any other provision of any Loan
Document. 


        "Permitted Redemptions" means, collectively, the redemption of Holdings' redeemable preferred stock on or before April 6, 2007 in
an amount not to exceed $17,618,212 and a subsequent redemption at a date selected by Holdings in an amount not to exceed $1,000. 


        "Permitted Refinancing" means Indebtedness constituting a refinancing or extension of Permitted Indebtedness that (a) has an
aggregate outstanding principal amount not greater than the aggregate principal amount of such Permitted Indebtedness outstanding at the time of such refinancing or
extension, (b) has a weighted average maturity (measured as of the date of such refinancing or extension) and maturity no shorter than that of such Permitted Indebtedness, (c) is not
secured by any property or any Lien other than those securing such Permitted Indebtedness, (d) is subordinated to the Obligations on terms no less favorable (in the reasonable judgment of the
Administrative Agent) to the holders of the Obligations as the Indebtedness being refinanced or extended and (e) is otherwise on terms no less favorable to the Group Members, taken as a whole,
than those of such Permitted Indebtedness; provided, however, that, notwithstanding the foregoing,
(x) the terms of such Permitted Indebtedness may be modified as part of such Permitted Refinancing if such modification would have been permitted pursuant to  Section 8.11 and (y) no
Guaranty Obligation for such Indebtedness shall constitute part of such Permitted Refinancing unless similar
Guaranty Obligations with respect to such Permitted Indebtedness existed and constituted Permitted Indebtedness prior to such refinancing or extension. 


        "Permitted Reinvestment" means, with respect to the Net Cash Proceeds received by any Group Member from any Sale or Property Loss Event,
to acquire (or make Capital Expenditures to finance 


17







 



the
acquisition, repair, improvement or construction of), to the extent otherwise permitted hereunder, property useful in the business of Borrower or any of its Subsidiaries or, if such Property Loss
Event involves loss or damage to property, to repair such loss or damage. 


        "Person" means any individual, partnership, corporation (including a business trust and a public benefit corporation), joint stock
company, estate, association, firm, enterprise, trust, limited liability company, unincorporated association, joint venture and any other entity or Governmental Authority. 



        "Primary Syndication" means the assignment by Churchill of Commitments to one or more Lenders such that the amount of Churchill's total
Commitment does not exceed $15,000,000. 


        "Pro Forma Balance Sheet" has the meaning specified in Section 4.4(d). 


        "Pro Forma Basis" means, with respect to any determination for any period and any Pro Forma Transaction, that such determination shall be
made by giving pro forma effect to each such Pro Forma Transaction, as if each such Pro Forma Transaction had been consummated on the first day of such
period, based on historical results accounted for in accordance with GAAP and, to the extent applicable, reasonable assumptions that are specified in detail in the relevant Compliance Certificate,
Financial Statement or other document provided to the Administrative Agent or any Lender in connection herewith in accordance with Regulation S-X of the Securities Act of 1933. 


        "Pro Forma Transaction" means any transaction consummated as part of any Permitted Acquisition, together with each other transaction
relating thereto and consummated in connection therewith, including any incurrence or repayment of Indebtedness. 



        "Projections" means, collectively, the Initial Projections and any document delivered pursuant to  Section 6.1(f). 


        "Property Loss Event" means, with respect to any property, any loss of or damage to such property or any taking of such property or
condemnation thereof. 


        "Proposed Acquisition" means (a) any proposed acquisition that is consensual and approved by the board of directors of the
applicable Proposed Acquisition Target, of all or substantially all of the assets or Stock of such Proposed Acquisition Target by Borrower or any Subsidiary (that is a Loan Party) of Borrower (or by
Holdings to the extent such assets and Stock are transferred to Borrower or any Subsidiary (that is a Loan Party) of Borrower contemporaneously with such acquisition) or (b) any proposed merger
of any Proposed Acquisition Target with or into Borrower or any Subsidiary (that is a Loan Party) of Borrower (and, in the case of a merger with Borrower, with Borrower being the surviving
corporation). 


        "Proposed Acquisition Target" means any Person or any brand, line of business, division, branch, operating division or other unit
operation of any Person. 


        "Pro Rata Outstandings", of any Lender at any time, means (a) in the case of the Term Loan Facility, the outstanding principal
amount of the Term Loans owing to such Lender and (b) in the case of the Revolving Credit Facility, the sum of (i) the outstanding principal amount of Revolving Loans owing to such
Lender and (ii) the amount of the participation of such Lender in the L/C Obligations outstanding with respect to all Letters of Credit. 


        "Pro Rata Share" means, with respect to any Lender and any Facility or Facilities at any time, the percentage obtained by dividing
(a) the sum of the Commitments (or, if such Commitments in any such Facility are terminated, the Pro Rata Outstandings therein) of such Lender then in effect under such Facilities by
(b) the sum of the Commitments (or, if such Commitments in any such Facility are terminated, the Pro Rata Outstandings therein) of all Lenders then in effect under such Facilities;  provided,
however, that, if there are no Commitments and no Pro Rata Outstandings in any of such
Facilities, such Lender's Pro Rata Share in such Facilities shall be determined based on the Pro Rata 


18








 



Share
in such Facilities most recently in effect, after giving effect to any subsequent assignment and any subsequent non-pro rata payments of any Lender pursuant to  Section 2.18. 


        "Register" has the meaning specified in Section 2.14(b). 


        "Reinvestment Prepayment Amount" means, with respect to any Net Cash Proceeds received by any Group Member and on the Reinvestment
Prepayment Date therefor, the amount of such Net Cash Proceeds less any amount actually paid by any Group Member to make Permitted Reinvestments with
such Net Cash Proceeds pursuant to a Contractual Obligation entered into prior to such Reinvestment Prepayment Date with any Person that is not an Affiliate of Borrower. 


        "Reinvestment Prepayment Date" means, with respect to any portion of any Net Cash Proceeds received by any Group Member from any Sale or
Loss Event, the earliest of (a) the 180th day after the completion of the portion of such Sale or Property Loss Event corresponding to such Net Cash Proceeds, (b) the date
that is 5 Business Days after the date on which Borrower shall have notified the Administrative Agent of the determination of the applicable Group Member not to make Permitted Reinvestments with such
Net Cash Proceeds, (c) the occurrence of any Event of Default set forth in Section 9.1(e)(ii) and (d) 5 Business Days after the
delivery of a notice by the Administrative Agent or the Required Lenders to such Group Member during the continuance of any other Event of Default. 


        "Related Person" means, with respect to any Person, each Affiliate of such Person and each director, officer, employee, agent, trustee,
representative, attorney, accountant and each insurance, environmental, legal, financial and other advisor (including those retained in connection with the satisfaction or attempted satisfaction of
any condition set forth in Article III) and other consultants and agents of or to such Person or any of its Affiliates, together with, if such
Person is the Administrative Agent, each other Person or individual designated, nominated or otherwise mandated by or helping the Administrative Agent pursuant to and in accordance with  Section 11.4 or any comparable provision of any Loan Document. 


        "Release" means any release, threatened release, spill, emission, leaking, pumping, pouring, emitting, emptying, escape, injection,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Material into or through the environment. 



        "Remedial Action" means all actions required to (a) clean up, remove, treat or in any other way address any Hazardous Material in
the indoor or outdoor environment, (b) prevent or minimize any Release so that a Hazardous Material does not migrate or endanger or threaten to endanger public health or welfare or the indoor
or outdoor environment or (c) perform pre-remedial studies and investigations and post-remedial monitoring and care with respect to any Hazardous Material. 


        "Required Lenders" means, at any time, Lenders having at such time at least 51% of the sum of the aggregate Revolving Credit Commitments
(or, if such Commitments are terminated, the sum of the amounts of the participations in Swing Loans, the principal amount of unparticipated portions of the Swing Loans and the Pro Rata Outstandings
in the Revolving Credit Facility) and Term Loan Commitments (or, if such Commitments are terminated, the Pro Rata Outstandings in the Term Loan Facility) then in effect, ignoring, in such calculation,
the amounts held by any Non-Funding Lender; provided, however, that if at any time there are
only two (2) Lenders, then "Required Lenders" shall mean each of the Lenders; provided that each
Lender and its Approved Funds and Affiliates shall be deemed to be a single Lender for all purposes of this definition. 



        "Required Revolving Credit Lenders" means, at any time, Lenders having at such time at least 51% of the aggregate Revolving Credit
Commitments (or, if such Commitments are terminated, the sum of the amounts of the participations in Swing Loans, the principal amount of the unparticipated portions of the Swing Loans and the Pro
Rata Outstandings in the Revolving Credit Facility) then in effect, ignoring, in such calculation, the amounts held by any Non-Funding Lender;  provided, however, that if at any time there are only two (2) Revolving Credit Lenders, then
"Required Revolving Credit Lenders" 


19







 



shall
mean each of the Revolving Credit Lenders; provided that each Lender and its Approved Funds and Affiliates shall be deemed to be a single Lender
for all purposes of this definition. 


        "Required Term Loan Lenders" means, at any time, Lenders having at such time at least 51% of the aggregate Term Loan Commitments (or, if
such Commitments are terminated, the Pro Rata Outstandings in the Term Loan Facility) then in effect, ignoring, in such calculation, the Commitments and Pro Rata Outstandings of any
Non-Funding Lender; provided, however, that if at any time there are only two
(2) Term Loan Lenders, then "Required Term Loan Lenders" shall mean each of the Term Loan Lenders;  provided that each Lender and its Approved Funds
and Affiliates shall be deemed to be a single Lender for all purposes of this definition. 


        "Requirements of Law" means, with respect to any Person, collectively, the common law and all federal, state, local, foreign,
multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or
judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case
whether or not having the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. 


        "Responsible Officer" means, with respect to any Person, any of the president, chief executive officer, treasurer, assistant treasurer,
controller, managing member or general partner of such Person but, in any event, with respect to financial matters, any such officer that is responsible for preparing the Financial Statements
delivered hereunder and, with respect to the Corporate Chart and other documents delivered pursuant to Section 6.1(e), documents delivered on the
Closing Date and documents delivered pursuant to Section 7.10, the secretary or assistant secretary of such Person or any other officer
responsible for maintaining the corporate and similar records of such Person. 


        "Restricted Payment" means (a) any dividend, return of capital, distribution or any other payment or Sale of property for less than
fair market value, whether direct or indirect (including through the use of Hedging Agreements, the making, repayment, cancellation or forgiveness of Indebtedness and similar Contractual Obligations)
and whether in cash, Securities or other property, on account of any Stock or Stock Equivalent of any Group Member, in each case now or hereafter outstanding, including with respect to a claim for
rescission of a Sale of such Stock or Stock Equivalent, (b) any redemption, retirement, termination, defeasance, cancellation, purchase or other acquisition for value, whether direct or
indirect (including through the use of Hedging Agreements, the making, repayment, cancellation or forgiveness of Indebtedness and similar Contractual Obligations), of any Stock or Stock Equivalent of
any Group Member or of any direct or indirect parent entity of Borrower, now or hereafter outstanding, and any payment or other transfer setting aside funds for any such redemption, retirement,
termination, cancellation, purchase or other acquisition, whether directly or indirectly and whether to a sinking fund, a similar fund or otherwise and (c) any payment of a consulting or
management fee (or other fee of a similar nature) or out-of-pocket expenses in connection therewith by any Group Member to any holder of Stock of such Group Member or its
Affiliates. 


        "Revolver Availability" means, as of any date of determination, the amount by which the then effective aggregate Revolving Credit
Commitments exceeds the aggregate Revolving Credit Outstandings at such time. 


        "Revolving Credit Commitment" means, with respect to each Revolving Credit Lender, the commitment of such Lender to make Revolving Loans
and acquire interests in other Revolving Credit Outstandings, which commitment is in the amount set forth opposite such Lender's name on  Schedule I under the caption "Revolving Credit Commitment", as amended to reflect Assignments and
as such amount may be reduced pursuant to this Agreement. The aggregate amount of the Revolving Credit Commitments on the date hereof equals $8,000,000. 


20









  





        "Revolving Credit Facility" means the Revolving Credit Commitments and the provisions herein related to the Revolving Loans, Swing Loans
and Letters of Credit. 


        "Revolving Credit Lender" means each Lender that has a Revolving Credit Commitment, holds a Revolving Loan or participates in any Swing
Loan or Letter of Credit. 


        "Revolving Credit Outstandings" means, at any time, the sum of, in each case to the extent outstanding at such time, (a) the
aggregate principal amount of the Revolving Loans and Swing Loans and (b) the L/C Obligations for all Letters of Credit. 


        "Revolving Credit Termination Date" shall mean the earliest of (a) the Scheduled Maturity Date, (b) the date of termination
of the Revolving Credit Commitments pursuant to Section 2.5 or 9.2 and (c) the date on
which the Obligations become due and payable pursuant to Section 9.2. 


        "Revolving Loan" has the meaning specified in Section 2.1. 


        "Rollover Amount" has the meaning specified in Section 5.4(b). 


        "S&P" means Standard & Poor's Rating Services. 



        "Sale and Leaseback Transaction" means, with respect to any Person (the "obligor"), any
Contractual Obligation or other arrangement with any other Person (the "counterparty") consisting of a lease by such obligor of any property that,
directly or indirectly, has been or is to be Sold by the obligor to such counterparty or to any other Person to whom funds have been advanced by such counterparty based on a Lien on, or an assignment
of, such property or any obligations of such obligor under such lease. 


        "Scheduled Maturity Date" means the fifth anniversary of the Closing Date. 



        "Secured Parties" means the Lenders, the L/C Issuers, the Administrative Agent, each other Indemnitee and any other holder of any
Obligation of any Loan Party. 


        "Security" means all Stock, Stock Equivalents, voting trust certificates, bonds, debentures, instruments and other evidence of
Indebtedness, whether or not secured, convertible or subordinated, all certificates of interest, share or participation in, all certificates for the acquisition of, and all warrants, options and other
rights to acquire, any Security. 


        "Sell" means, with respect to any property, to sell, convey, transfer, assign, license, lease or otherwise dispose of, any interest
therein or to permit any Person to acquire any such interest, including, in each case, through a Sale and Leaseback Transaction or through a sale, factoring at maturity, collection of or other
disposal, with or without recourse, of any notes or accounts receivable. Conjugated forms thereof and the noun "Sale" have correlative meanings. 


        "Solvent" means, with respect to any Person as of any date of determination, that, as of such date, on a Consolidated basis,
(a) such Person is able to pay all liabilities of such Person as such liabilities mature and (b) such Person does not have unreasonably small capital for the normal obligations
reasonably foreseeable in a business of its size and in light of its contemplated business operations. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities
shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. 


        "Specified Dividend" means a distribution or distributions to be made (a) by Borrower to General Partner and Limited Partner,
(b) by General Partner and Limited Partner to Holdings, and (c) by Holdings (i) to be paid as a ratable dividend by Holdings to the holders of Stock in an aggregate amount up to
but not exceeding $41,600,000, which will occur on or before March 31, 2007, and (ii) to fund the Permitted Redemptions. 


21







 



        "Sponsor Group" means, collectively, JMI Equity Fund III, L.P., TA / Advent VIII, L.P., Advent Atlantic and Pacific III, L.P., TA
Executive Fund, L.L.C., and TA Venture Investors, L.P. 


        "SPV" means any special purpose funding vehicle identified as such in a writing by any Lender to the Administrative Agent. 


        "Stock" means all shares of capital stock (whether denominated as common stock or preferred stock), equity interests, beneficial,
partnership or membership interests, joint venture interests, participations or other ownership or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an
individual), whether voting or non-voting. 


        "Stock Equivalents" means all securities convertible into or exchangeable for Stock or any other Stock Equivalent and all warrants,
options or other rights to purchase, subscribe for or otherwise acquire any Stock or any other Stock Equivalent, whether or not presently convertible, exchangeable or exercisable. 


        "Subordinated Debt" means any Indebtedness that is subordinated to the payment in full of the Obligations on terms and conditions
satisfactory to the Administrative Agent and otherwise satisfactory to the Administrative Agent. 



        "Subsidiary" means, with respect to any Person, any corporation, partnership, joint venture, limited liability company, association or
other entity, the management of which is, directly or indirectly, controlled by, or of which an aggregate of more than 50% of the outstanding Voting Stock is, at the time, owned or controlled directly
or indirectly by, such Person or one or more Subsidiaries of such Person. 


        "Substitute Lender" has the meaning specified in Section 2.18(a). 



        "SWDA" means the Solid Waste Disposal Act (42 U.S.C. §§ 6901 et seq.). 


        "Swingline Commitment" means $500,000. 


        "Swingline Lender" means, each in its capacity as Swingline Lender hereunder, Churchill Financial Cayman Ltd., by its agent,
Churchill, or, upon the resignation of Churchill as Administrative Agent hereunder, any Lender (or Affiliate or Approved Fund of any Lender) that agrees, with the approval of the Administrative Agent
(or, if there is no such successor Administrative Agent, the Required Lenders) and Borrower, to act as the Swingline Lender hereunder. 



        "Swingline Request" has the meaning specified in Section 2.3(b). 


        "Swing Loan" has the meaning specified in Section 2.3. 


        "Tax Affiliate" means, (a) each Group Member and (b) any Affiliate of any Group Member with which such Group Member files or
is eligible to file consolidated, combined or unitary tax returns. 


        "Tax Return" has the meaning specified in Section 4.8. 


        "Taxes" has the meaning specified in Section 2.17(a). 


        "Term Loan" has the meaning specified in Section 2.1(b). 



        "Term Loan Commitment" means, with respect to each Term Loan Lender, the commitment of such Lender to make Term Loans to Borrower, which
commitment is in the amount set forth opposite such Lender's name on Schedule I under the caption "Term Loan
Commitment", as amended to reflect Assignments and as such amount may be reduced pursuant to this Agreement. The aggregate amount of the Term Loan Commitments on the date
hereof equals $20,000,000. 


        "Term Loan Facility" means the Term Loan Commitments and the provisions herein related to the Term Loans. 


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        "Term Loan Lender" means each Lender that has a Term Loan Commitment or that holds a Term Loan. 


        "Title IV Plan" means a pension plan subject to Title IV of ERISA, other than a Multiemployer Plan, to which any ERISA Affiliate incurs or
otherwise has any obligation or liability, contingent or otherwise. 


        "Trademarks" means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in or
relating to trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers and, in each
case, all goodwill associated therewith, all registrations and recordations thereof and all applications in connection therewith. 


        "Trade Secrets" means all right, title and interest (and all related IP Ancillary Rights) arising under any Requirement of Law in or
relating to trade secrets. 


        "UCC" means the Uniform Commercial Code of any applicable jurisdiction and, if the applicable jurisdiction shall not have any Uniform
Commercial Code, the Uniform Commercial Code as in effect in the State of New York. 


        "United States" means the United States of America. 


        "Unused Commitment Fee" has the meaning specified in Section 2.11. 



        "U.S. Lender Party" means each of the Administrative Agent, each Lender, each L/C Issuer, each SPV and each participant, in each case that
is a Domestic Person. 


        "Voting Stock" means Stock of any Person having ordinary power to vote in the election of members of the board of directors, managers,
trustees or other controlling Persons, of such Person (irrespective of whether, at the time, Stock of any other class or classes of such entity shall have or might have voting power by reason of the
occurrence of any contingency). 


        "Wholly Owned Subsidiary" of any Person means any Subsidiary of such Person, all of the Stock of which (other than nominal holdings and
director's qualifying shares) is owned by such Person, either directly or through one or more Wholly Owned Subsidiaries of such Person. 


        "Withdrawal Liability" means, at any time, any liability incurred (whether or not assessed) by any ERISA Affiliate and not yet satisfied
or paid in full at such time with respect to any Multiemployer Plan pursuant to Section 4201 of ERISA. 



        "Working Capital" means, as at any date of determination and in conformity with GAAP, the excess, if any, of (i) Borrower's
Consolidated current assets, except cash and Cash Equivalents, over (ii) Borrower's Consolidated current liabilities, except current maturities
of Indebtedness due within 12 months of the date of determination. 


        Section 1.2    UCC Terms.    The following terms have the meanings given to them in the applicable UCC:
"account", "commodity account", "commodity contract",
"commodity intermediary", "deposit account",
"entitlement holder", "entitlement order", "equipment",
"financial asset", "general intangible", "goods",
"instruments", "inventory", "securities account",
"securities intermediary" and "security entitlement". 



        Section 1.3    Accounting Terms and Principles.    (a)  GAAP.    All accounting determinations required
to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in
accordance with GAAP. No change in the accounting principles used in the preparation of any Financial Statement hereafter adopted by Borrower shall be given effect if such change would affect a
calculation that measures compliance with any provision of Article V or VIII unless Borrower, the
Administrative Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, 


23







 



unless
such provisions are modified, all Financial Statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the
calculations and amounts set forth therein before and after giving effect to such change in GAAP. 


        (b)    Pro Forma.    All components of financial calculations made to determine compliance with  Article V shall be adjusted on
a Pro Forma Basis to include or exclude, as the case may be, without duplication, such components of such
calculations attributable to any Pro Forma Transaction consummated after the first day of the applicable period of determination and prior to the end of such period, as determined in good faith by
Borrower based on assumptions expressed therein and that were reasonable based on the information available to Borrower at the time of preparation of the Compliance Certificate setting forth such
calculations. 


        Section 1.4    Payments.    The Administrative Agent may set up standards and procedures to determine or
redetermine the equivalent in Dollars of any amount expressed in any currency other than Dollars and otherwise may, but shall not be obligated to, rely on any determination made by any Loan Party or
any L/C Issuer. Any such determination or redetermination by the Administrative Agent shall be conclusive and binding for all purposes, absent manifest error. No determination or redetermination by
any Secured Party or Loan Party and no other currency conversion shall change or release any obligation of any Loan Party or of any Secured Party (other than the Administrative Agent and its Related
Persons) under any Loan Document, each of which agrees to pay separately for any shortfall remaining after any conversion and payment of the amount as converted. The Administrative Agent may round up
or down, and may set up appropriate mechanisms to round up or down, any amount hereunder to nearest higher or lower amounts and may determine reasonable de minimis payment thresholds. 



        Section 1.5    Interpretation.    (a) Certain
Terms.    Except as set forth in any Loan Document, all accounting terms not specifically defined herein shall be construed in accordance with GAAP (except for the
term "property", which shall be interpreted as broadly as possible, including, in any case, cash, Securities, other assets, rights under Contractual
Obligations and Permits and any right or interest in any property). The terms "herein", "hereof" and
similar terms refer to this Agreement as a whole. In the computation of periods of time from a specified date to a later specified date in any Loan Document, the terms
"from" means "from and including" and the words "to" and
"until" each mean "to but excluding" and the word "through" means "to and including." In any other case,
the term "including"
when used in any Loan Document means "including without limitation." The term "documents" means all writings, however evidenced and whether in physical
or electronic form, including all documents, instruments, agreements, notices, demands, certificates, forms, financial statements, opinions and reports. The term
"incur" means incur, create, make, issue, assume or otherwise become directly or indirectly liable in respect of or responsible for, in each case
whether directly or indirectly, and the terms "incurrence" and "incurred" and similar derivatives shall have correlative meanings. 


        (b)    Certain References.    Unless otherwise expressly indicated, references (i) in this Agreement to an
Exhibit, Schedule, Article, Section or clause refer to the appropriate Exhibit or Schedule to, or Article, Section or clause in, this Agreement and (ii) in any Loan Document, to (A) any
agreement shall include, without limitation, all exhibits, schedules, appendixes and annexes to such agreement and, unless the prior consent of any Secured Party required therefor is not obtained, any
modification, amendment, restatement or amendment and restatement to any term of such agreement, (B) any statute shall be to such statute as modified from time to time and to any successor
legislation thereto, in each case as in effect at the time any such reference is operative and (C) any time of day shall be a reference to New York time. Titles of articles, sections, clauses,
exhibits, schedules and annexes contained in any Loan Document are without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto. Unless
otherwise expressly indicated, 


24








 



the
meaning of any term defined (including by reference) in any Loan Document shall be equally applicable to both the singular and plural forms of such term. 


 
 

ARTICLE II    
    
    THE FACILITIES    
    


        Section 2.1    The Commitments.    (a) Revolving Credit
Commitments. On the terms and subject to the conditions contained in this Agreement, each Revolving Credit Lender, severally but not jointly, agrees to make loans in Dollars
(each a "Revolving Loan") to Borrower from time to time on any Business Day during the period from the date hereof until the Revolving Credit
Termination Date in an aggregate principal amount at any time outstanding for all such loans by such Lender not to exceed such Lender's Revolving Credit Commitment;  provided, however, that (i) at no time shall any Revolving Credit Lender be obligated to make a
Revolving Loan in excess of such Lender's Pro Rata Share of the amount by which the then effective Revolving Credit Commitments exceeds the aggregate Revolving Credit Outstandings at such time and
(ii) none of the Revolving Credit Commitments (including Letters of Credit) may be utilized on the Closing Date. Within the limits set forth in the first sentence of this  clause (a), amounts
of Revolving Loans repaid may be reborrowed under this Section 2.1. 


        (b)    Term Loan Commitments.    On the terms and subject to the conditions contained in this Agreement, each Term
Loan Lender, severally but not jointly, agrees to make, on March 29, 2007 (or such earlier date as may be requested by Borrower by delivery of a Notice of Borrowing at least 48 hours in
advance), a loan (each a "Term Loan") in Dollars to Borrower in an amount not to exceed such Lender's Term Loan Commitment. Amounts of Term Loans repaid
may not be reborrowed. 


        Section 2.2    Borrowing Procedures.    (a) Notice From the Applicable
Borrower.    Each Borrowing shall be made on notice given by Borrower to the Administrative Agent not later than 11:00 a.m. on (i) the first Business
Day, in the case of a Borrowing of Base Rate Loans and (ii) the third Business Day, in the case of a Borrowing of Eurodollar Rate Loans, prior to the date of the proposed Borrowing;  provided,
however, that Borrower may not request a Eurodollar Rate Loan until the earlier to occur of
(x) the date that is 45 days after the Closing Date and (y) the date of completion of the Primary Syndication. Each such notice may be made in a writing substantially in the form
of Exhibit C (a "Notice of Borrowing") duly completed or by telephone if confirmed promptly, but
in any event confirmed in writing prior to such Borrowing. Loans shall be made as Base Rate Loans unless, outside of a suspension period pursuant to  Section 2.15, the Notice of Borrowing specifies
that all or a portion thereof shall be Eurodollar Rate Loans. Each Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000. 


        (b)    Notice to Each Lender.    The Administrative Agent shall give to each Lender prompt notice of the
Administrative Agent's receipt of a Notice of Borrowing and, if Eurodollar Rate Loans are properly requested in such Notice of Borrowing, prompt notice of the applicable interest rate. Each Lender
shall, before 11:00 a.m. on the date of the proposed Borrowing, make available to the Administrative Agent at its address referred to in  Section 12.11 such Lender's Pro Rata Share of such
proposed Borrowing. Upon fulfillment or due waiver (i) on the Closing Date, of the
applicable conditions set forth in Section 3.1 and (ii) on the Closing Date and any time thereafter, of the applicable conditions set
forth in Section 3.2, the Administrative Agent shall make such funds available to the applicable Borrower. 


        (c)    Non-Funding Lenders.    Unless the Administrative Agent shall have received notice from any Lender
prior to the date such Lender is required to make any payment hereunder with respect to any Loan or any participation in any Swing Loan or Letter of Credit that such Lender will not make such payment
(or any portion thereof) available to the Administrative Agent, the Administrative Agent may assume that such Lender has made such payment available to the Administrative Agent on the date 


25







 



such
payment is required to be made in accordance with this Article II and the Administrative Agent may, in reliance upon such assumption, make
available to Borrower on such date a corresponding amount. The Borrower agrees to repay to the Administrative Agent on demand such amount (until repaid by such Lender) with respect to Loans and
Letters of Credit of Borrower with interest thereon for each day from the date such amount is made available to Borrower until the date such amount is repaid to the Administrative Agent, at the
interest rate applicable to the Obligation that would have been created when the Administrative Agent made available such amount to Borrower had such Lender made a corresponding payment available;  provided, however, that such payment shall not relieve such Lender of any obligation it may have to
Borrower, the Swingline Lender or any L/C Issuer. In addition, any Lender that shall not have made available to the Administrative Agent any portion of any payment described above (any such Lender, a
"Non-Funding Lender") agrees to pay such amount to the Administrative Agent on demand together with interest thereon, for each day from the
date such amount is made available to the applicable Borrower until the date such amount is repaid to the Administrative Agent, at the Federal Funds Rate for the first Business Day and thereafter
(i) in the case of a payment in respect of a Loan, at the interest rate applicable at the time to such Loan and (ii) otherwise, at the interest rate applicable to Base Rate Loans under
the Revolving Credit Facility. Such repayment shall then constitute the funding of the corresponding Loan (including any Loan deemed to have been made hereunder with such payment) or participation.
The existence of any Non-Funding Lender shall not relieve any other Lender of its obligations under any Loan Document, but no other Lender shall be responsible for the failure of any
Non-Funding Lender to make any payment required under any Loan Document. 



        Section 2.3    Swing Loans    (a) Availability.    On
the terms and subject to the conditions contained in this Agreement, the Swingline Lender may, in its sole discretion, make loans in Dollars (each a "Swing
Loan") available to Borrower under the Revolving Credit Facility from time to time on any Business Day during the period from the date hereof until the Revolving Credit
Termination Date in an aggregate principal amount at any time outstanding not to exceed its Swingline Commitment; provided,  however, that the Swingline
Lender may not make any Swing Loan (x) to the extent that after giving effect to such Swing Loan, the aggregate
Revolving Credit Outstandings would exceed the Revolving Credit Commitments and (y) in the period commencing on the first Business Day after it receives notice from the Administrative Agent or
the Required Revolving Credit Lenders that one or more of the conditions precedent contained in Section 3.2 are not satisfied and ending when
such conditions are satisfied or duly waived. In connection with the making of any Swing Loan, the Swingline Lender may but shall not be required to determine that, or take notice whether, the
conditions precedent set forth in Section 3.2 have been satisfied or waived. Each Swing Loan shall be a Base Rate Loan and must be repaid in full
on the earliest of (i) the funding date of any Borrowing of Revolving Loans and (ii) the Revolving Credit Termination Date. Within the limits set forth in the first sentence of this  clause (a), amounts of Swing Loans repaid may be reborrowed under this clause (a).
 


        (b)    Borrowing Procedures.    In order to request a Swing Loan, Borrower shall give to the Administrative Agent a
notice to be received not later than 1:00 p.m. on the day of the proposed borrowing, which may be made in a writing substantially in the form of  Exhibit D duly completed (a "Swingline Request") or by telephone if confirmed promptly but, in
any event, prior to such borrowing, with such a Swingline Request. In addition, if any Notice of Borrowing from Borrower requests a Borrowing of Base Rate Loans, the Swing Line Lender may,
notwithstanding anything else to the contrary in Section 2.2, make a Swing Loan available to Borrower in an aggregate amount not to exceed such
proposed Borrowing, and the aggregate amount of the corresponding proposed Borrowing shall be reduced accordingly by the principal amount of such Swing Loan. The Administrative Agent shall promptly
notify the Swingline Lender of the details of the requested Swing Loan. Upon receipt of such notice and subject to the terms of this Agreement, the Swingline Lender may make a Swing Loan available to
Borrower by making the proceeds thereof available to the Administrative Agent and, in 


26







 



turn,
the Administrative Agent shall make such proceeds available to Borrower on the date set forth in the relevant Swingline Request. 



        (c)    Refinancing Swing Loans.    The Swingline Lender may at any time, and shall no less frequently than once each
week, forward a demand to the Administrative Agent (which the Administrative Agent shall, upon receipt, forward to each Revolving Credit Lender) that each Revolving Credit Lender pay to the
Administrative Agent, for the account of the Swingline Lender, such Revolving Credit Lender's Pro Rata Share of all or a portion of the outstanding Swing Loans. Each Revolving Credit Lender shall pay
such Pro Rata Share to the Administrative Agent for the account of the Swingline Lender. Upon receipt by the Administrative Agent of such payment (other than during the continuation of any Event of
Default under Section 9.1(e)), such Revolving Credit Lender shall be deemed to have made a Revolving Loan to Borrower, which, upon receipt of
such payment by the Swingline Lender from the Administrative Agent, Borrower shall be deemed to have used in whole to refinance such Swing Loan. In addition, regardless of whether any such demand is
made, upon the occurrence of any Event of Default under Section 9.1(e), each Revolving Credit Lender shall be deemed to have acquired, without
recourse or warranty, an undivided interest and participation in each Swing Loan in an amount equal to such Lender's Pro Rata Share of such Swing Loan. If any payment made by any Revolving Credit
Lender as a result of any such demand is not deemed a Revolving Loan, such payment shall be deemed a funding by such Lender of such participation. Such participation shall not be otherwise required to
be funded. Upon receipt by the Swingline Lender of any payment from any Revolving Credit Lender pursuant to this clause (c) with respect to any
portion of any Swing Loan, the Swingline Lender shall promptly pay over to such Revolving Credit Lender all payments of principal (to the extent received after such payment by such Lender) and
interest (to the extent accrued with respect to periods after such payment) received by the Swingline Lender with respect to such portion. 


        (d)    Obligation to Fund Absolute.    Each Revolving Credit Lender's obligations pursuant to  clause (c) above shall be
absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement
under any and all circumstances whatsoever, including (A) the existence of any setoff, claim, abatement, recoupment, defense or other right that such Lender, any Affiliate thereof or any other
Person may have against the Swing Loan Lender, any other Secured Party or any other Person, (B) the failure of any condition precedent set forth in  Section 3.2 to be satisfied or the failure
of Borrower to deliver any notice set forth in  Section 2.2(a) (each of which requirements the Revolving
Credit Lenders hereby irrevocably waive) and (C) any adverse change in the condition (financial or otherwise) of any Loan Party. 


        Section 2.4    Letters of Credit.    (a) Commitment and
Conditions.    On the terms and subject to the conditions contained herein, each L/C Issuer agrees to Issue, at the request of Borrower on behalf of Borrower, in
accordance with such L/C Issuer's usual and customary business practices, and for the account of Borrower (or, as long as Borrower remains responsible for the payment in full of all amounts drawn
thereunder and related fees, costs and expenses, for the account of any Group Member), Letters of Credit (denominated in Dollars and with face amounts that are multiples of $100,000) from time to time
on any Business Day during the period from the Closing Date through the earlier of the Revolving Credit Termination Date and 7 days prior to the Scheduled Maturity Date;  provided, however, that such L/C Issuer shall not be under any obligation to Issue any Letter of Credit
for the account of Borrower upon the occurrence of any of the following, after giving effect to such Issuance: 



          (i)  (A)
the aggregate Revolving Credit Outstandings would exceed the aggregate Revolving Credit Commitments or (B) the L/C Obligations for all Letters of Credit
would exceed the L/C Sublimit; 



27







 

         (ii)  the
expiration date of such Letter of Credit (A) is not a Business Day, (B) is more than one year after the date of issuance thereof or (C) is
later than 7 days prior to the Scheduled Revolving Credit Termination Date; provided, however,
that any Letter of Credit with a term not exceeding one year may provide for its renewal for additional periods not exceeding one year as long as (x) each of Borrower and such L/C Issuer has
the option to prevent such renewal before the expiration of such term or any such period and (y) neither such L/C Issuer nor Borrower shall permit any such renewal to extend such expiration
date beyond the date set forth in clause (C) above; or 


        (iii)  (A)
any fee due in connection with, and on or prior to, such Issuance has not been paid (after giving effect to any applicable grace period), (B) such Letter of
Credit is requested to be Issued in a form that is not acceptable to such L/C Issuer or (C) such L/C Issuer shall not have received, each in form and substance reasonably acceptable to it and
duly executed by Borrower (and, if such Letter of Credit is Issued for the account of any other Group Member, such Group Member), the documents that such L/C Issuer generally uses in the ordinary
course of its business for the Issuance of letters of credit of the type of such Letter of Credit (collectively, the "L/C Reimbursement Agreement"). 




For
each such Issuance, the applicable L/C Issuer may, but shall not be required to, determine that, or take notice whether, the conditions precedent set forth in  Section 3.2 have been satisfied or
waived in connection with the Issuance of any Letter of Credit;  provided, however, that no Letter of Credit shall be Issued during the period starting on
the first
Business Day after the receipt by such L/C Issuer of notice from the Administrative Agent or the Required Revolving Credit Lenders that any condition
precedent contained in Section 3.2 is not satisfied and ending on the date all such conditions are satisfied or duly waived. 


        (b)    Notice of Issuance.    The Borrower shall give the relevant L/C Issuer and the Administrative Agent a notice of
any Issuance of any Letter of Credit requested on behalf of Borrower, which shall be effective only if received by such L/C Issuer and the Administrative Agent not later than 11:00 a.m. on the
third Business Day prior to the date of such requested Issuance. Such notice may be made in a writing substantially the form of Exhibit E duly
completed or in a writing in any other form acceptable to such L/C Issuer (an "L/C Request") or by telephone if confirmed promptly, but in any event
within one Business Day and prior to such Issuance, with such an L/C Request. 


        (c)    Reporting Obligations of L/C Issuers.    Each L/C Issuer agrees to provide the Administrative Agent (which,
after receipt, the Administrative Agent shall provide to each Revolving Credit Lender), in form and substance satisfactory to the Administrative Agent, each of the following on the following dates:
(i) on or prior to (A) any Issuance of any Letter of Credit by such L/C Issuer, (B) any drawing under any such Letter of Credit or (C) any payment (or failure to pay when
due) by the applicable Loan Party of any related L/C Reimbursement Obligation, notice thereof, which shall contain a reasonably detailed description of such Issuance, drawing or payment,
(ii) upon the request of the Administrative Agent (or any Revolving Credit Lender through the Administrative Agent), copies of any Letter of Credit Issued by such L/C Issuer and any related L/C
Reimbursement Agreement and such other documents and information as may reasonably be requested by the Administrative Agent and (iii) on the first Business Day of each calendar week, a schedule
of the Letters of Credit Issued by such L/C Issuer, in form and substance reasonably satisfactory to the Administrative Agent, setting forth the L/C Obligations for such Letters of Credit outstanding
on the last Business Day of the previous calendar week. 



        (d)    Acquisition of Participations.    Upon any Issuance of a Letter of Credit in accordance with the terms of this
Agreement resulting in any increase in the L/C Obligations, each Revolving Credit Lender shall be deemed to have acquired, without recourse or warranty, an undivided interest and participation 


28







 



in
such Letter of Credit and the related L/C Obligations in an amount equal to such Lender's Pro Rata Share of such L/C Obligations. 



        (e)    Reimbursement Obligations of Borrower.    Borrower agrees to pay to the L/C Issuer of any Letter of Credit
Issued for the account of any Loan Party each L/C Reimbursement Obligation owing with respect to such Letter of Credit no later than the first Business Day after Borrower receives notice from such L/C
Issuer that payment has been made under such Letter of Credit or that such L/C Reimbursement Obligation is otherwise due (the "L/C Reimbursement Date")
with interest thereon computed as set forth in clause (i) below. In the event that any L/C Issuer incurs any L/C Reimbursement Obligation not
repaid by Borrower as provided in this clause (e) (or any such payment by Borrower is rescinded or set aside for any reason), such L/C Issuer
shall promptly notify the Administrative Agent of such failure (and, upon receipt of such notice, the Administrative Agent shall forward a copy to each Revolving Credit Lender) and, irrespective of
whether such notice is given, such
L/C Reimbursement Obligation shall be payable on demand by Borrower with interest thereon computed (i) from the date on which such L/C Reimbursement Obligation arose to the L/C Reimbursement
Date, at the interest rate applicable during such period to Revolving Loans that are Base Rate Loans and (ii) thereafter until payment in full, at the interest rate applicable during such
period to past due Revolving Loans that are Base Rate Loans. 


        (f)    Reimbursement Obligations of the Revolving Credit Lenders.    Upon receipt of the notice described in  clause (e) above
from the Administrative Agent, each Revolving Credit Lender shall pay to the Administrative Agent for the account of such L/C
Issuer its Pro Rata Share of such L/C Reimbursement Obligation. By making such payment (other than during the continuation of an Event of Default under  Section 9.1(e)), such Lender shall be deemed
to have made a Revolving Loan to Borrower, which, upon receipt thereof by such L/C Issuer, Borrower
shall be deemed to have used in whole to repay such L/C Reimbursement Obligation. Any such payment that is not deemed a Revolving Loan shall be deemed a funding by such Lender of its participation in
the applicable Letter of Credit and the related L/C Obligations. Such participation shall not otherwise be required to be funded. Upon receipt by any L/C Issuer of any payment from any Lender pursuant
to this clause (f) with respect to any portion of any L/C Reimbursement Obligation, such L/C Issuer shall promptly pay over to such Lender all
payments received after such payment by such L/C Issuer with respect to such portion. 


        (g)    Obligations Absolute.    The obligations of Borrower and the Revolving Credit Lenders pursuant to  clauses (d), (e) and (f) above shall be absolute,
unconditional and irrevocable and performed strictly in accordance with the terms of this Agreement irrespective of (i) (A) the invalidity or unenforceability of any term or provision in any
Letter of Credit, any document transferring or purporting to transfer a Letter of Credit, any Loan Document (including the sufficiency of any such instrument), or any modification to any provision of
any of the foregoing, (B) any document presented under a Letter of Credit being forged, fraudulent, invalid, insufficient or inaccurate in any respect or failing to comply with the terms of
such Letter of Credit or (C) any loss or delay, including in the transmission of any document, (ii) the existence of any setoff, claim, abatement, recoupment, defense or other right that
any Person (including any Group Member) may have against the beneficiary of any Letter of Credit or any other Person, whether in connection with any Loan Document or any other Contractual Obligation
or transaction, or the existence of any other withholding, abatement or reduction, (iii) in the case of the obligations of any Revolving Credit Lender, (A) the failure of any condition
precedent set forth in Section 3.2 to be satisfied (each of which conditions precedent the Revolving Credit Lenders hereby irrevocably waive) or
(B) any adverse change in the condition (financial or otherwise) of any Loan Party and (iv) any other act or omission to act or delay of any kind of any Secured Party or any other Person
or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this  Section 2.4, constitute a legal or equitable discharge of
any obligation of Borrower or any Revolving Credit Lender hereunder. 


29







 



        Section 2.5    Reduction and Termination of the Commitments.    (a)  Optional.    The Borrower may, upon
notice to the Administrative Agent, terminate in whole or reduce in part ratably any unused portion of the
Revolving Credit Commitments; provided, however, that each partial reduction shall be in an aggregate
amount that is an integral multiple of $100,000. 



        (b)    Mandatory.     All outstanding Commitments shall terminate (i) in the case of the Term Loan Facility, on
the Closing Date (after giving effect to any Borrowing occurring on such date) and (ii) in the case of the Revolving Credit Facility, on the Scheduled Revolving Credit Termination Date. 


        Section 2.6    Repayment of Loans.    (a) The Borrower promises to repay the entire unpaid principal amount of
the Revolving Loans and the Swing Loans advanced to Borrower on the Scheduled Revolving Credit Termination Date. 



        (b)   The
Borrower promises to repay the Term Loans on the Term Loan Maturity Date and at the dates and in the amounts set forth below: 



	DATE
 
	 	AMOUNT

	June 30, 2007	 	$	50,000
	September 30, 2007	 	$	50,000
	December 31, 2007	 	$	50,000
	March 31, 2008	 	$	50,000
	June 30, 2008	 	$	50,000
	September 30, 2008	 	$	50,000
	December 31, 2008	 	$	50,000
	March 31, 2009	 	$	50,000
	June 30, 2009	 	$	50,000
	September 30, 2009	 	$	50,000
	December 31, 2009	 	$	50,000
	March 31, 2010	 	$	50,000
	June 30, 2010	 	$	50,000
	September 30, 2010	 	$	50,000
	December 31, 2010	 	$	50,000
	March 31, 2011	 	$	50,000
	June 30, 2011	 	$	50,000
	September 30, 2011	 	$	50,000
	December 31, 2011	 	$	50,000
	March 22, 2012	 	$	19,050,000






Amounts
repaid on the Term Loan may not be reborrowed. 


        Section 2.7    Optional Prepayments.    (a) The Borrower may prepay the outstanding principal amount of any
Loan advanced to it in whole or in part at any time (together with any breakage costs that may be owing pursuant to Section 2.16(a) after giving
effect to such prepayment) upon at least two (2) Business Days' prior written notice to the Administrative Agent; provided,  however, that each partial
prepayment that is not of the entire outstanding amount under any Facility shall be in an aggregate amount that is an
integral multiple of $100,000. 


        (b)   Any
payments made to the Administrative Agent pursuant to this Section 2.7 shall be applied to the Obligations in
accordance with Section 2.12(a). 


        Section 2.8    Mandatory Prepayments.    (a) Excess Cash
Flow.    (a) The Borrower shall pay or cause to be paid to the Administrative Agent, on the earlier of (x) the date on which Financial Statements are
delivered pursuant to Section 6.1(c) for any Fiscal Year ending after the Closing Date and (y) the last date Financial Statements can be delivered pursuant to  Section 6.1(c) for any
Fiscal Year ending 


30







 



after
the Closing Date, an amount equal to 50% of the Excess Cash Flow for such Fiscal Year; provided,  however, that (i) in the event that the Consolidated
Leverage Ratio for any Fiscal Year is less than 2.00 to 1 and greater than or equal to 1.50
to 1, then the percentage of Excess Cash Flow required to be paid under this Section 2.8(a) in the immediately succeeding Fiscal Year shall be
25%), and (ii) in the event that the Consolidated Leverage Ratio for any Fiscal Year is less than 1.50 to 1, then the percentage of Excess Cash Flow required to be paid under this  Section 2.8(a) in the immediately succeeding Fiscal Year shall be 0%. 


        (b)    Equity and Debt Issuances.    Upon receipt on or after the Closing Date by any Group Member or any of its
Subsidiaries of Net Cash Proceeds arising from either (i) the issuance or Sale by any Group Member of its own Stock or (ii) the incurrence by any Group Member of Indebtedness for
borrowed money, Borrower shall immediately pay or cause to be paid to the Administrative Agent an amount equal to the amount of such Net Cash Proceeds;  provided, however, that there shall be excluded from the requirements of this paragraph the following:
(x) Net Cash Proceeds arising from sales of its Stock by Holdings to the Sponsor Group, to the other Persons (and their Affiliates) that are stockholders of Holdings on the Closing Date, and to
officers, directors and employees of Borrower pursuant to an equity incentive plan approved by the board of directors of Holdings, and (y) Net Cash Proceeds of any Indebtedness permitted
hereunder in reliance upon any of clauses (a) through (h) of  Section 8.1. 



        (c)    Asset Sales and Property Loss Events.    Upon receipt on or after the Closing Date by any Loan Party or any of
its Subsidiaries of Net Cash Proceeds arising from (i) any Sale by any Group Member of any of its property other than (i) Sales of its own Stock and (ii) Sales of property
permitted hereunder in reliance upon any of clauses (a) through (d) of Section 8.4 or (ii) any Property Loss Event with
respect to any property of any Group Member to the extent resulting in the aggregate with all other such Property Loss Events in the receipt by any of them of Net Cash Proceeds in excess of $250,000,
Borrower shall immediately pay or cause to be paid to the Administrative Agent an amount equal to the amount of such Net Cash Proceeds; provided,
however, that, upon any such receipt, as long as no Event of Default shall be continuing, any Group Member may make Permitted Reinvestments with such Net Cash Proceeds and
Borrower shall not be required to make or cause such payment on such Loans with such Net Cash Proceeds to the extent (x) such Net Cash Proceeds are intended to be used to make Permitted
Reinvestments and (y) on each Reinvestment Prepayment Date for such Net Cash Proceeds, Borrower shall pay or cause to be paid to the Administrative Agent an amount equal to the Reinvestment
Prepayment Amount applicable to such Reinvestment Prepayment Date. 


        (d)    Excess Outstandings.    On any date on which the aggregate principal amount of Revolving Credit Outstandings
exceeds the aggregate Revolving Credit Commitments, Borrower shall pay to the Administrative Agent an amount equal to such excess. 


        (e)    Application of Payments.    Any payments made to the Administrative Agent pursuant to this  Section 2.8 shall be applied
to the Obligations in accordance with Section 2.12(b). 



        Section 2.9    Interest.    (a) Rate.    All Loans
and the outstanding amount of all other Obligations shall bear interest, in the case of Loans, on the unpaid principal amount thereof from the date such Loans are made and, in the case of such other
Obligations, from the date such other Obligations are due and payable until, in all cases, paid in full, except as otherwise provided in  clause (c) below, as follows: (i) in the case of Base
Rate Loans, at a rate per annum equal to the sum of the Base Rate and the Applicable
Margin, each as in effect from time to time, (ii) in the case of Eurodollar Rate Loans, at a rate per annum equal to the sum of the Eurodollar Rate and the Applicable Margin, each as in effect
for the applicable Interest Period, and (iii) in the case of other Obligations, at a rate per annum equal to the sum of the Base Rate and the Applicable Margin for Revolving Loans that are Base
Rate Loans, each as in effect from time to time. 


31









  





        (b)    Payments.    Interest accrued shall be payable in arrears (i) if accrued on the principal amount of any
Loan, (A) at maturity (whether by acceleration or otherwise), (B) if such Loan is a Term Loan, upon the payment or prepayment of the principal amount on which such interest has accrued
and (C)(1) if such Loan is a Base Rate Loan (including a Swing Loan), on the last day of each calendar quarter commencing on the first such day following the making of such Loan, (2) if such
Loan is a Eurodollar Rate Loan, on the last day of each Interest Period applicable to such Loan and, if applicable, on each date during such Interest Period occurring every 3 months from the
first day of such Interest Period and (ii) if accrued on any other Obligation, on demand after the time such Obligation is due and payable (whether by acceleration or otherwise). 


        (c)    Default Interest.    Notwithstanding the rates of interest specified in  clause (a) above or elsewhere in any Loan
Document, effective immediately upon (A) the occurrence of any Event of Default under  Section 9.1(e) or (B) the delivery of a notice by the Administrative Agent or the Required Lenders to
Borrower during the continuance of
any other Event of Default arising under Section 9.1(a) or Section 9.1(c) as a result of a
breach of Article V, and, in each case, for as long as such Event of Default shall be continuing, all Obligations (including any Obligation that
bears interest by reference to the rate applicable to any other Obligation) shall bear interest at a rate that is 2% per annum in excess of the interest rate applicable to such Obligations from time
to time (e.g., an Applicable Margin of 1.50% would become an Applicable Margin of 3.50%), payable on demand or, in the absence of demand, on the date
that would otherwise be applicable. 


        Section 2.10    Conversion and Continuation Options.    (a)  Option.    The Borrower may elect
(i) in the case of any Eurodollar Rate Loan advanced to Borrower, upon 3 Business Days' prior written
notice given to the Administrative Agent not later than 11:00 a.m. (A) to continue such Eurodollar Rate Loan or any portion thereof for an additional Interest Period on the last day of
the Interest Period applicable thereto and (B) to convert such Eurodollar Rate Loan or any portion thereof into a Base Rate Loan at any time on any Business Day, subject to the payment of any
breakage costs required by Section 2.16(a), and (ii) in the case of Base Rate Loans (other than Swing Loans) advanced to Borrower, to
convert such Base Rate Loans or any portion thereof into Eurodollar Rate Loans at any time on any Business Day upon 3 Business Days' prior written notice given to the Administrative Agent not later
than 11:00 a.m.; provided, however, that, (x) for each Interest Period, the aggregate
amount of Eurodollar Rate Loans having such Interest Period must be an integral multiple of $500,000 and (y) no conversion in whole or in part of Base Rate Loans to Eurodollar Rate Loans and no
continuation in whole or in part of Eurodollar Rate Loans shall be permitted at any time at which (1) a Default or Event of Default shall be continuing and the Administrative Agent or the
Required Lenders shall have determined in their sole discretion not to permit such conversions or continuations or (2) such continuation or conversion would be made during a suspension imposed
by Section 2.15. 


        (b)    Procedure.    Each such election shall be made by giving the Administrative Agent at least 3 Business Days'
prior notice in substantially the form of Exhibit F (a "Notice of Conversion or Continuation")
duly
completed. The Administrative Agent shall promptly notify each Lender of its receipt of a Notice of Conversion or Continuation and of the options selected therein. If the Administrative Agent does not
receive a timely Notice of Conversion or Continuation from Borrower containing a permitted election to continue or convert any Eurodollar Rate Loan, then, upon the expiration of the applicable
Interest Period, such Loan shall be automatically converted to a Base Rate Loan. Each partial conversion or continuation shall be allocated ratably among the Lenders in the applicable Facility in
accordance with their Pro Rata Share. 


        Section 2.11    Fees.    (a) Unused Commitment
Fee.    The Borrower agrees to pay to each Revolving Credit Lender a commitment fee on the average daily amount by which the Revolving Credit Commitment of such
Lender exceeds its Pro Rata Share of the sum of (i) the aggregate outstanding principal amount of Revolving Loans and (ii) the outstanding amount of the L/C Obligations for all Letters
of Credit from the date hereof through the Revolving Credit Termination Date at a rate of 


32







 



0.50%
per annum, payable in arrears (x) on the last day of each calendar quarter and (y) on the Revolving Credit Termination Date (the "Unused Commitment
Fee"). 


        (b)    Letter of Credit Fees.    The Borrower agrees to pay, with respect to all Letters of Credit Issued by any L/C
Issuer, (i) to such L/C Issuer, certain fees, documentary and processing charges as separately agreed between Borrower and such L/C Issuer or otherwise in accordance with such L/C Issuer's
standard schedule in effect at the time of determination thereof and (ii) to the Administrative Agent, for the benefit of the Revolving Credit Lenders according to their Pro Rata Shares, a fee
accruing at a rate per annum equal to the Applicable Margin for Revolving Loans that are Eurodollar Rate Loans on the maximum undrawn face amount of such Letters of Credit, payable in arrears
(A) on the last day of each calendar quarter, ending after the issuance of such Letter of Credit and (B) on the Revolving Credit Termination Date;  provided, however, that the fee payable under this  clause (ii) shall be increased by 2% per annum and shall be payable, in addition to being payable on any date it is
otherwise required to be paid
hereunder, on demand effective immediately upon (x) the occurrence of any Event of Default under Section 9.1(e) or (y) the delivery
of a notice by the Administrative Agent or the Required Lenders to Borrower during the continuance of any Event of Default arising under  Section 9.1(a) or Section 9.1(c)
 as a result of a breach of  Article V, and, in each case, for as long as such Event of Default shall be continuing.
 


        (c)    Additional Fees.    The Borrower (i) shall pay to the Administrative Agent and its Related Persons its
reasonable and customary fees and expenses in connection with any payments made pursuant to Section 2.16(a) (Breakage
Costs) and (ii) has agreed to pay the additional fees described in the Fee Letter. 


        Section 2.12    Application of Payments.    (a) Application of Voluntary
Prepayments.    Unless otherwise provided in this Section 2.12 or elsewhere in any Loan Document, all payments
and any other amounts received by the Administrative Agent from or for the benefit of Borrower as a voluntary prepayment of the Term Loan shall be applied as directed by Borrower. 


        (b)    Application of Mandatory Prepayments.    Subject to the provisions of  clause (c) below with respect to the application
of payments during the continuance of an Event of Default, any payment made by Borrower to the
Administrative Agent pursuant to Section 2.8 or any other prepayment of the Obligations required to be applied in accordance with this  clause (b)
shall be applied first, (other than in respect of any payment required pursuant to  Section 2.8(d)) to repay the outstanding principal balance of the
Term Loans, ratably among all remaining scheduled payments of principal thereof
until the Term Loan is repaid in full, second, to repay the outstanding principal balance of the Revolving Loans and the Swing Loans (which shall not
effect a permanent reduction in the Revolving Credit Commitment unless Borrower so elects), third, in the case of any payment required pursuant to  Section 2.8(d)
, to provide cash collateral to the extent and in the manner set forth in  Section 9.3 and, then, any excess shall be retained
by the applicable Borrower. 


        (c)    Application of Payments During an Event of Default.    Borrower and each Parent Guarantor hereby irrevocably
waives, and agrees to cause each Loan Party and each other Group Member to waive, the right to direct the application during the continuance of an Event of Default of any and all payments in respect
of any Obligation and any proceeds of Collateral and agrees that, notwithstanding the provisions of clauses (a) and  (b) above, the Administrative Agent may,
 and, upon either (A) the direction of the Required Lenders or (B) the termination of any
Commitment or the acceleration of any Obligation pursuant to Section 9.2, shall, apply all payments in respect of any Obligation, all funds on
deposit in any Cash Collateral Account and all other proceeds of Collateral (i) first, to pay Obligations in respect of any cost or expense
reimbursements, fees or indemnities then due to the Administrative Agent, (ii) second, to pay Obligations in respect of any cost or expense
reimbursements, fees or indemnities then due to the Lenders and the L/C Issuers, (iii) third, to pay interest then due and payable in respect of
the Loans and L/C Reimbursement Obligations, (iv) fourth, to repay the 


33







 



outstanding
principal amounts of the Loans and L/C Reimbursement Obligations, to provide cash collateral for Letters of Credit in the manner and to the extent described in  Section 9.3, and (v)
 fifth, to the ratable payment of all other Obligations. 



        (d)    Application of Payments Generally.    All payments that would otherwise be allocated to the Revolving Credit
Loans pursuant to this Section 2.12 shall instead be allocated first, to repay interest on Swing
Loans, on any portion of the Revolving Loans that the Administrative Agent may have advanced on behalf of any Lender and on any L/C Reimbursement Obligation, in each case for which the Administrative
Agent or, as the case may be, the L/C Issuer has not then been reimbursed by such Lender or the applicable Borrower, second to pay the outstanding
principal amount of the foregoing obligations and third, to repay the Revolving Loans. All repayments of any Revolving Loans or the Term Loan shall be
applied first, to repay such Loans outstanding as Base Rate Loans and then, to repay such Loans
outstanding as Eurodollar Rate Loans, with those Eurodollar Rate Loans having earlier expiring Interest Periods being repaid prior to those having later expiring Interest Periods. All repayments of
the Term Loan shall be applied to reduce ratably the remaining installments of such outstanding principal amounts of the Term Loan. If sufficient amounts are not available to repay all outstanding
Obligations described in any priority level set forth in this Section 2.12, the available amounts shall be applied, unless otherwise expressly
specified herein, to such Obligations ratably based on the proportion of the Secured Parties' interest in such Obligations. Any priority level set forth in
this Section 2.12 that includes interest shall include all such interest, whether or not accruing after the filing of any petition in bankruptcy
or the commencement of any insolvency, reorganization or similar proceeding, and whether or not a claim for post-filing or post-petition interest is allowed in any such
proceeding. 


        Section 2.13    Payments and Computations.    (a)  Procedure.    The Borrower shall make each payment to
be made by it under any Loan Document not later than 11:00 a.m. on the day when
due to the Administrative Agent by wire transfer to the following account (or at such other account or by such other means to such other address as the Administrative Agent shall have notified
Borrower in writing within a reasonable time prior to such payment) in immediately available Dollars and without setoff or counterclaim: 




ABA
No. 091000022

Account Number 173103781352 (Attn: Roy Vorrelli)

U.S. Bank N.A.

Account Name: Churchill Financial LLC

Reference: PROS Revenue Management, L.P. 





The
Administrative Agent shall promptly thereafter cause to be distributed immediately available funds relating to the payment of principal, interest or fees to the Lenders, in accordance with the
application of payments set forth in Section 2.12. The Lenders shall make any payment under any Loan Document in immediately available Dollars
and without setoff or counterclaim. Each Revolving Credit Lender shall make each payment for the account of any L/C Issuer or Swingline Lender required pursuant to  Section 2.3 or 2.4 (A) if the notice or demand therefor was received by such Lender prior
to 11:00 a.m. on any Business Day, on such Business Day and (B) otherwise, on the Business Day following such receipt. Payments received by the Administrative Agent after
11:00 a.m. shall be deemed to be received on the next Business Day. 



        (b)    Computations of Interests and Fees.    All computations of interest and of fees shall be made by the
Administrative Agent on the basis of a year of 360 days (or, in the case of Base Rate Loans whose interest rate is calculated based on the rate set forth in  clause (a) of the definition of
"Base Rate", 365/366 days), in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest and fees are payable. Each determination of an interest rate or the amount of a fee hereunder shall be made by the
Administrative Agent (including 


34







 



determinations
of a Eurodollar Rate or Base Rate in accordance with the definitions of "Eurodollar Rate" and "Base Rate", respectively) and shall be conclusive, binding and final for all purposes,
absent manifest error. 


        (c)    Payment Dates.    Whenever any payment hereunder shall be stated to be due on a day other than a Business Day,
the due date for such payment shall be extended to the next succeeding Business Day without any increase in such payment as a result of additional interest or fees;  provided, however, that such interest and fees shall continue accruing as a result of such extension of
time. 


        (d)    Advancing Payments.    Unless the Administrative Agent shall have received notice from Borrower to the Lenders
prior to the date on which any payment is due hereunder that Borrower will not make such payment in full, the Administrative Agent may assume that Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due
such Lender. If and to the extent that Borrower shall not have made such payment in full to the Administrative Agent, each Lender shall repay to the Administrative Agent on demand such amount
distributed to such Lender together with interest thereon (at the Federal Funds Rate for the first Business Day and thereafter, at the rate applicable to Base Rate Loans under the applicable Facility)
for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent. 


        Section 2.14    Evidence of Debt.    (a) Records of
Lenders.    Each Lender shall maintain in accordance with its usual practice accounts evidencing Indebtedness of Borrower to such Lender resulting from each Loan of
such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement. In addition, each Lender having sold a
participation in any of its Obligations or having identified an SPV as such to the Administrative Agent, acting as agent of Borrower solely for this purpose and solely for tax purposes, shall
establish and maintain at its address referred to in Section 12.11 (or at such other address as such Lender shall notify Borrower) a record of
ownership, in which such Lender shall register by book entry (A) the name and address of each such participant and SPV (and each change thereto, whether by assignment or otherwise) and
(B) the rights, interest or obligation of each such participant and SPV in any Obligation, in any Commitment and in any right to receive any payment hereunder. 



        (b)    Records of Administrative Agent.    The Administrative Agent, acting as agent of Borrower solely for tax
purposes and solely with respect to the actions described in this Section 2.14, shall establish and maintain at its address referred to in  Section 12.11 (or at such other address as the Administrative Agent may notify Borrower) (A) a record of ownership (the
"Register") in which the Administrative Agent agrees to register by book entry the interests (including any rights to receive payment hereunder) of the
Administrative Agent, each Lender and each L/C Issuer in the Term Loan advanced to, and the Revolving Credit Outstandings of, Borrower, its obligations under this Agreement to participate in each Loan
to be advanced to, Letter of Credit to be Issued for the amount of, and L/C Reimbursement Obligation of, Borrower, and any assignment of any such interest, obligation or right and (B) accounts
in the Register in accordance with its usual practice in which it shall record (1) the names and addresses of the Lenders and the L/C Issuers (and each change thereto pursuant to  Section 2.18
(Substitution of Lenders) and  Section 12.2 (Assignments and Participations; Binding Effect)),
(2) the Commitments of
each Lender, (3) the amount of each Loan advanced to Borrower and each funding of any participation described in clause (A) above and, for
Eurodollar Rate Loans, the Interest Period applicable thereto, (4) the amount of any principal or interest due from, and payable or paid by, Borrower, (5) the amount of the L/C
Reimbursement Obligations of Borrower due and payable or paid and (6) any other payment received by the Administrative Agent from Borrower and its application to the Obligations. 


35







 



        (c)    Registered Obligations.    Notwithstanding anything to the contrary contained in this Agreement, the Loans
(including any Notes evidencing such Loans and, in the case of Revolving Loans, the corresponding obligations to participate in L/C Obligations and Swing Loans) and the L/C Reimbursement Obligations
are registered obligations, the right, title and interest of the Lenders and the L/C Issuers and their assignees in and to such Loans or L/C Reimbursement Obligations, as the case may be, shall be
transferable only upon notation of such transfer in the Register and no assignment thereof shall be effective until recorded therein. This  Section 2.14 and Section 12.2 shall be construed so that the Loans and L/C Reimbursement
Obligations are at all times maintained in "registered form" within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related
regulations (and any successor provisions). 


        (d)    Prima Facie Evidence.    The entries made in the Register and in the accounts maintained pursuant to  clauses (a) and
(b) above shall, to the extent permitted by applicable Requirements of Law, be prima
facie evidence of the existence and amounts of the obligations recorded therein; provided, however, that
no error in such account and no failure of any Lender or the Administrative Agent to maintain any such account shall affect the obligations of any Loan Party to repay the Loans in accordance with
their terms. In addition, the Loan Parties, the Administrative Agent, the Lenders and the L/C Issuers shall treat each Person whose name is recorded in the Register as a Lender or L/C Issuer, as
applicable, for all purposes of this Agreement. Information contained in the Register with respect to any Lender or L/C Issuer shall be available for inspection by Borrower, the Administrative Agent,
such Lender or such L/C Issuer at any reasonable time and from time to time upon reasonable prior notice. 



        (e)    Notes.    Upon any Lender's request, Borrower shall promptly execute and deliver Notes to such Lender
evidencing the Loans of such Lender in a Facility and substantially in the form of Exhibit B;  provided, however, that only one Note for each Facility shall be issued by Borrower to each Lender,
except (i) to an existing Lender exchanging existing Notes to reflect changes in the Register relating to such Lender, in which case the new Notes delivered to such Lender shall be dated the
date of the original Notes and the original Notes shall forthwith be cancelled and destroyed, and (ii) in the case of loss, destruction or mutilation of existing Notes and similar
circumstances. Each Note, if issued, shall only be issued as means to evidence the right, title or interest of a Lender or a registered assignee in and to the related Loan, as set forth in the
Register, and in no event shall any Note be considered a bearer instrument or obligation. 


        Section 2.15    Suspension of Eurodollar Rate Option.    Notwithstanding any provision to the contrary in this  Article II, the following shall apply: 



        (a)    Interest Rate Unascertainable, Inadequate or Unfair.    In the event that (A) the Administrative Agent
determines that adequate and fair means do not exist for ascertaining the applicable interest rates by reference to which the Eurodollar Rate is determined or (B) the Required Lenders notify
the Administrative Agent that the Eurodollar Rate for any Interest Period will not adequately reflect the cost to the Lenders of making or maintaining such Loans for such Interest Period, the
Administrative Agent shall promptly so notify Borrower and the Lenders, whereupon the obligation of each Lender to make or to continue Eurodollar Rate Loans shall be suspended as provided in  clause (c) below until the Administrative Agent shall notify Borrower that the Required Lenders have determined that the circumstances causing
such suspension no longer exist. 


        (b)    Illegality.    If any Lender determines that the introduction of, or any change in or in the interpretation of,
any Requirement of Law after the date of this Agreement shall make it unlawful, or any Governmental Authority shall assert that it is unlawful, for any Lender or its applicable lending office to make
Eurodollar Rate Loans or to continue to fund or maintain Eurodollar Rate Loans, then, on notice thereof and demand therefor by such Lender to Borrower through the 



36







 




Administrative
Agent, the obligation of such Lender to make or to continue Eurodollar Rate Loans shall be suspended as provided in clause (c)
below until such Lender shall, through the Administrative Agent, notify Borrower that it has determined that it may lawfully make Eurodollar Rate Loans. 


        (c)    Effect of Suspension.    If the obligation of any Lender to make or to continue Eurodollar Rate Loans is
suspended, (A) the obligation of such Lender to convert Base Rate Loans into Eurodollar Rate Loans shall be suspended, (B) such Lender shall make a Base Rate Loan at any time such Lender
would otherwise be obligated to make a Eurodollar Rate Loan, (C) Borrower may revoke any pending Notice of Borrowing or Notice of Conversion or Continuation delivered on behalf of Borrower to
make or continue any Eurodollar Rate Loan or to convert any Base Rate Loan into a Eurodollar Rate Loan and (D) each Eurodollar Rate Loan of such Lender shall automatically and immediately (or,
in the case of any suspension pursuant to clause (a) above, on the last day of the current Interest Period thereof) be converted into a Base Rate
Loan. 




        Section 2.16    Breakage Costs; Increased Costs; Capital Requirements.    (a) Breakage
Costs.    The Borrower shall compensate each Lender, upon demand from such Lender to Borrower (with copy to the Administrative Agent), for all Liabilities (including,
in each case, those incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to prepare to fund, to fund or to maintain the Eurodollar Rate Loans of
such Lender to Borrower but excluding any loss of the Applicable Margin on the relevant Loans) that such Lender may incur (A) to the extent, for any reason other than solely by reason of such
Lender being a Non-Funding Lender, a proposed Borrowing, conversion into or continuation of Eurodollar Rate Loans by Borrower does not occur on a date specified therefor in a Notice of
Borrowing or a Notice of Conversion or Continuation or in a similar request made by telephone by Borrower, (B) to the extent any Eurodollar Rate Loan is paid (whether through a scheduled,
optional or mandatory prepayment) or converted to a Base Rate Loan (including because of Section 2.15) on a date that is not the last day of the
applicable Interest Period or (C) as a consequence of any failure by Borrower to repay Eurodollar Rate Loans when required by the terms hereof. For purposes of this  clause (a), each Lender
shall be deemed to have funded each Eurodollar Rate Loan made by it using a matching deposit or other borrowing in the
London interbank market. 


        (b)    Increased Costs.    If at any time any Lender or L/C Issuer determines that, after the date hereof, the
adoption of, or any change in or in the interpretation, application or administration of, or compliance with, any Requirement of Law (other than any imposition or increase of Eurodollar Reserve
Requirements) from any Governmental Authority shall have the effect of (i) increasing the cost to such Lender of making, funding or maintaining any Eurodollar Rate Loan to Borrower or to agree
to do so or of participating, or agreeing to participate, in extensions of credit to Borrower, (ii) increasing the cost to such L/C Issuer of Issuing or maintaining any Letter of Credit for the
account of Borrower or of agreeing to do so or (iii) imposing any other cost to such Lender or L/C Issuer with respect to compliance with its obligations under any Loan Document, then, upon
demand by such Lender or L/C Issuer (with copy to the Administrative Agent), Borrower shall pay to the Administrative Agent for the account of such Lender or L/C Issuer amounts sufficient to
compensate such Lender or L/C Issuer for such increased cost. 


        (c)    Increased Capital Requirements.    If at any time any Lender or L/C Issuer determines that, after the date
hereof, the adoption of, or any change in or in the interpretation, application or administration of, or compliance with, any Requirement of Law (other than any imposition or increase of Eurodollar
Reserve Requirements) from any Governmental Authority regarding capital adequacy, reserves, special deposits, compulsory loans, insurance charges against property of, deposits with or for the account
of, Obligations of Borrower owing to, or other credit extended or participated in by, any Lender or L/C Issuer or any similar requirement (in each case other than any imposition or increase of
Eurodollar Reserve Requirements) shall have the effect of reducing the rate of return on the capital of 


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such
Lender's or L/C Issuer (or any corporation controlling such Lender or L/C Issuer) as a consequence of its obligations under or with respect to any Loan Document or Letter of Credit for the
account of Borrower to a level below that which, taking into account the capital adequacy policies of such Lender, L/C Issuer or corporation, such Lender, L/C Issuer or corporation could have achieved
but for such adoption or change, then, upon demand from time to time by such Lender or L/C Issuer (with a copy of such demand to the Administrative Agent), Borrower shall pay to the Administrative
Agent for the account of such Lender amounts sufficient to compensate such Lender for such reduction. 


        (d)    Compensation Certificate.    Each demand for compensation under this  Section 2.16 shall be accompanied by a certificate
of the Lender or L/C Issuer claiming such compensation, setting forth the amounts to be paid
hereunder, which certificate shall be conclusive, binding and final for all purposes, absent manifest error. In determining such amount, such Lender or L/C Issuer may use any reasonable averaging and
attribution methods. 


        (e)   Failure
or delay on the part of any Lender or L/C Issuer to demand compensation pursuant to clauses (b) or (c) of this  Section 2.16 shall not constitute a waiver of such Lender's or L/C Issuer's
right to demand such compensation;  provided that Borrower shall not be required to compensate a Lender or L/C Issuer pursuant to this Section for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender or L/C Issuer, as the case may be, notifies Borrower of the change in law giving rise to such increased costs or reductions and of
such Lender's or L/C Issuer's intention to claim compensation therefor; provided further that, if the change in law giving rise to such increased costs
or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. 


        Section 2.17    Taxes.    (a) Payments Free and Clear of
Taxes.    Except as otherwise provided in this Section 2.17, each payment by any Loan Party under any Loan
Document shall be made free and clear of all present or future taxes, levies, imposts, deductions, charges or withholdings and all liabilities with respect thereto (and without deduction for any of
them) (collectively "Taxes") other than (i) Taxes measured by net income (including branch profits taxes) and franchise taxes imposed in lieu of
net income taxes, in each case imposed on any Secured Party as a result of a present or former connection between such Secured Party and the jurisdiction of the Governmental Authority imposing such
Tax or any political subdivision or taxing authority thereof or therein (other than such connection arising from any Secured Party having executed, delivered or performed its obligations or received a
payment under, or enforced, any Loan Document), (ii) U.S. federal withholding Taxes that are imposed on amounts payable to a
Secured Party to the extent that the obligation to withhold amounts existed on the date that such Secured Party became a "Secured Party" under this Agreement in the capacity under which such Secured
Party makes a claim under clause (b), except in each case to the extent such Secured Party is a direct or indirect assignee (other than pursuant
to Section 2.18 (Substitution of Lenders)) of any other Secured Party that was entitled, at the time the assignment of such other Secured Party
became effective, to receive additional amounts under clause (b) or (iii) Taxes that are directly attributable to the failure (other than
as a result of a change in any Requirement of Law) by any Secured Party to deliver the documentation required to be delivered pursuant to  clause (f) below (collectively, "Excluded Taxes" and all such non-Excluded Taxes,
"Non-Excluded Taxes"). 



        (b)    Additional Payments.    If any Taxes shall be required by law to be deducted from or in respect of any amount
payable under any Loan Document to any Secured Party (i) in the case of Non-Excluded Taxes, such amount shall be increased as necessary to ensure that, after all required deductions
for Non-Excluded Taxes are made (including deductions applicable to any increases to any amount under this Section 2.17), such
Secured Party receives on, an after-Tax basis, the amount it would have received had no such deductions been made, (ii) the relevant Loan Party shall make such deductions,
(iii) the relevant Loan Party shall timely pay the full amount deducted to the relevant taxing authority or other authority in accordance with applicable Requirements of Law and
(iv) within 


38







 



30 days
after such payment is made, the relevant Loan Party shall deliver to the Administrative Agent an original or certified copy of a receipt evidencing such payment. 


        (c)    Other Taxes.    In addition, Borrower agrees to pay, and authorize the Administrative Agent to pay in their
name, any stamp, documentary, excise or property tax, charges or similar levies imposed by any applicable Requirement of Law or Governmental Authority and all Liabilities with respect thereto
(including by reason of any delay in payment thereof), in each case arising from the execution, delivery or registration of, or otherwise with respect to, any Loan Document or any transaction
contemplated therein (collectively, "Other Taxes"). The Swingline Lender may, without any need for notice, demand or consent from Borrower, by making
funds available to the Administrative Agent in the amount equal to any such payment, make a Swing Loan to Borrower in such amount, the proceeds of which shall be used by the Administrative Agent in
whole to make such payment. Within 30 days after the date of any payment of Taxes or Other Taxes by any Loan Party, Borrower shall furnish to the Administrative Agent, at its address referred
to in Section 12.11, the original or a certified copy of a receipt evidencing payment thereof. 


        (d)    Indemnification.    The Borrower shall reimburse and indemnify, within 30 days after receipt of demand
therefor (with copy to the Administrative Agent), each Secured Party for all Non-Excluded Taxes and Other Taxes (including any Non-Excluded Taxes and Other Taxes imposed by any
jurisdiction on amounts payable under this Section 2.17) paid by such Secured Party and any Liabilities arising therefrom or with respect
thereto, whether or not such Non-Excluded Taxes or Other Taxes were correctly or legally asserted. A certificate of the Secured Party (or of the Administrative Agent on behalf of such
Secured Party) claiming any compensation under this clause (d), setting forth the amounts to be paid thereunder and delivered to
Borrower with copy to the Administrative Agent, shall be conclusive, binding and final for all purposes, absent manifest error. In determining such amount, the Administrative Agent and such Secured
Party may use any reasonable averaging and attribution methods. 


        (e)    Mitigation.    Any Lender claiming any additional amounts payable pursuant to this  Section 2.17 shall use its
reasonable efforts (consistent with its internal policies and Requirements of Law) to change the jurisdiction of its
lending office if such a change would reduce any such additional amounts (or any similar amount that may thereafter accrue) and would not, in the sole determination of such Lender, be otherwise
disadvantageous to such Lender. 


        (f)    Tax Forms.    (i) Each Non-U.S. Lender Party that, at any of the following times, is
entitled to an exemption from United States withholding tax or, after a change in any Requirement of Law, is subject to such withholding tax at a reduced rate under an applicable tax treaty, shall
(w) on or prior to the date such Non-U.S. Lender Party becomes a "Non-U.S. Lender Party" hereunder, (x) upon reasonable request of Borrower or Administrative
Agent, on or prior to the date on which any such form or certification expires or becomes obsolete, (y) after the occurrence of any event requiring a change in the most recent form or
certification previously delivered by it pursuant to this clause (i) and (z) from time to time if otherwise reasonably requested by
Borrower or the Administrative Agent (or, in the case of a participant or SPV, the relevant Lender), provide the Administrative Agent and Borrower (or, in the case of a participant or SPV, the
relevant Lender) with two properly completed originals of each of the following, as applicable: (A) Forms W-8ECI (claiming exemption from U.S. withholding tax because the income is
effectively connected with a U.S. trade or business), W-8BEN (claiming exemption from, or a reduction of, U.S. withholding tax under an income tax treaty) or any successor forms,
(B) in the case of a Non-U.S. Lender Party claiming exemption under Sections 871(h) or 881(c) of the Code, Form W-8BEN (claiming exemption from U.S. withholding
tax under the portfolio interest exemption) or any successor form and a certificate in form and substance acceptable to the Administrative Agent that such Non-U.S. Lender Party is not
(1) a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (2) a "10 percent shareholder" of Borrower within the meaning of Section 881(c)(3)(B) of the
Code or (3) a "controlled foreign corporation" described in 


39







 



Section 881(c)(3)(C)
of the Code or (C) any other applicable document prescribed by the IRS properly certifying as to the entitlement of such Non-U.S. Lender Party to such
exemption from United States withholding tax or reduced rate with respect to all payments to be made to such Non-U.S. Lender Party under the Loan Documents. Unless Borrower and the
Administrative Agent have received forms or other documents satisfactory to them indicating that payments under any Loan Document to or for a Non-U.S. Lender Party are not subject to
United States withholding tax, the Loan Parties and the Administrative Agent shall withhold amounts required to be withheld by applicable Requirements of Law from such payments at the applicable
statutory rate. 



         (ii)  Each
U.S. Lender Party shall (A) on or prior to the date such U.S. Lender Party becomes a "U.S. Lender Party" hereunder, (B) upon reasonable request of
Borrower or Administrative Agent, on or prior to the date on which any such form or certification expires or becomes obsolete, (C) after the
occurrence of any event requiring a change in the most recent form or certification previously delivered by it pursuant to this clause (f) and
(D) from time to time if otherwise reasonably requested by Borrower or the Administrative Agent (or, in the case of a participant or SPV, the relevant Lender), provide the Administrative Agent
and Borrower (or, in the case of a participant or SPV, the relevant Lender) with two properly completed originals of Form W-9 (certifying that such U.S. Lender Party is entitled to
an exemption from U.S. backup withholding tax) or any successor form. 


        (iii)  Each
Lender having sold a participation in any of its Obligations or identified an SPV as such to the Administrative Agent shall collect from such participant or SPV
the documents described in this clause (f) and provide them to the Administrative Agent. 




        Section 2.18    Substitution of Lenders.    (a) Substitution
Right.    In the event that any Lender in any Facility that is not an Affiliate of the Administrative Agent (an "Affected
Lender"), (i) makes a claim under clause (b)(Increased Costs) or  (c)
(Increased Capital Requirements) of  Section 2.16, (ii) notifies Borrower pursuant to Section 2.15(b)
(Illegality) that it becomes illegal for such Lender to continue to fund or make any Eurodollar Rate Loan in such Facility, (iii) makes a claim
for payment pursuant to Section 2.17(b)(Taxes), (iv) becomes a Non-Funding
Lender with respect to such Facility or (v) does not consent to any amendment, waiver or consent to any Loan Document for which the consent of the Required Lenders is obtained but that requires
the consent of other Lenders in such Facility, Borrower or the Administrative Agent may either pay in full such Affected Lender with respect to amounts due in such Facility with the consent of the
Administrative Agent or substitute for such Affected Lender in such Facility any Lender or any Affiliate or Approved Fund of any Lender or any other Person acceptable (which acceptance shall not be
unreasonably withheld or delayed) to the Administrative Agent (in each case, a "Substitute Lender"). 



        (b)    Procedure.    To substitute such Affected Lender or pay in full the Obligations owed to such Affected Lender
under such Facility, Borrower shall deliver a notice to the Administrative Agent and such Affected Lender. The effectiveness of such payment or substitution shall be subject to the delivery to the
Administrative Agent by Borrower (or, as may be applicable in the case of a substitution, by the Substitute Lender) of (i) payment for the account of such Affected Lender, of, to the extent
accrued through, and outstanding on, the effective date for such payment or substitution, all Obligations owing to such Affected Lender with respect to such Facility (including those that will be owed
because of such payment and all Obligations that would be owed to such Lender if it was solely a Lender in such Facility), (ii) in the case of a payment in full of the Obligations owing to such
Affected Lender in the Revolving Credit Facility, payment of any amount that, after giving effect to the termination of the Commitment of such Affected Lender, is required to be paid pursuant to  Section 2.8(e)
 (Excess Outstandings) and (iii) in the case of a substitution,
(A) payment of the assignment fee set forth in Section 12.2(c) and (B) an assumption agreement in form and substance satisfactory
to the Administrative Agent whereby the Substitute Lender shall, among other things, agree to be bound by 


40







 



the
terms of the Loan Documents and assume the Commitment of the Affected Lender under such Facility. 


        (c)    Effectiveness.    Upon satisfaction of the conditions set forth in  clause (b) above, the Administrative Agent shall
record such substitution or payment in the Register, whereupon (i) in the case of any
payment in full in any Facility, such Affected Lender's Commitments in such Facility shall be terminated and (ii) in the case of any substitution in any Facility, (A) the Affected Lender
shall sell and be relieved of, and the Substitute Lender shall purchase and assume, all rights and claims of such Affected Lender under the Loan Documents with respect to such Facility, except that
the Affected Lender shall retain such rights expressly providing that they survive the repayment of the Obligations and the termination of the Commitments, (B) the Substitute Lender shall
become a "Lender" hereunder having a Commitment in such Facility in the amount of such Affected Lender's Commitment in such Facility and (C) the
Affected Lender shall execute and deliver to the Administrative Agent an Assignment to evidence such substitution and deliver any Note in its possession with respect to such Facility;  provided,
however, that the failure of any Affected Lender to execute any such Assignment or deliver any
such Note shall not render such sale and purchase (or the corresponding assignment) invalid. 


 
 

ARTICLE III    
    
    CONDITIONS TO LOANS AND LETTERS OF CREDIT    
    


        Section 3.1    Conditions Precedent to Initial Loans and Letters of Credit.    The obligation of each Lender
to make any Loan on the Closing Date and the obligation of each L/C Issuer to Issue any Letter of Credit on the Closing Date is subject to the satisfaction or written waiver of each of the following
conditions precedent on or before March 23, 2007: 



        (a)    Certain Documents.    The Administrative Agent shall have received on or prior to the Closing Date each of the
following, each dated the Closing Date unless otherwise agreed by the Administrative Agent, in form and substance satisfactory to the Administrative Agent and each Lender: 



          (i)  this
Agreement duly executed by Holdings and Borrower and, for the account of each Lender having requested the same, by notice to the Administrative Agent and Borrower
received by each at least 3 Business Days prior to the Closing Date (or such later date as may be agreed by Borrower), Notes in each applicable Facility conforming to the requirements set forth in  Section 2.14(e)
; 


         (ii)  the
Guaranty, Pledge and Security Agreement, duly executed by each Guarantor, together with (A) copies of UCC, Intellectual Property and other appropriate search
reports and of all effective prior filings listed therein, together with evidence of the termination of such prior filings and other documents with respect to the priority of the security interest of
the Administrative Agent in the
Collateral, in each case as may be reasonably requested by the Administrative Agent, (B) all documents representing all Securities being pledged pursuant to such Guaranty, Pledge and Security
Agreement and related undated powers or endorsements duly executed in blank (C) all Control Agreements that, in the reasonable judgment of the Administrative Agent, are required for the Loan
Parties to comply with the Loan Documents as of the Closing Date, each duly executed by, in addition to the applicable Loan Party, the applicable financial institution (it being agreed, however, that
such Control Agreements may be delivered up to 30 days following the Closing Date or such later date as the Administrative Agent may in writing agree), and (D) properly completed
perfection certificates with respect to Borrower and each Guarantor; 




41













  





        (iii)  a
duly executed favorable opinion of DLA Piper US LLP, counsel to the Loan Parties, addressed to the Administrative Agent, the L/C Issuers and the Lenders and
addressing such matters as the Administrative Agent may reasonably request; 


        (iv)  a
copy of each Constituent Document of each Loan Party that is on file with any Governmental Authority in any jurisdiction, certified as of a recent date by such
Governmental Authority, together with, if applicable, certificates attesting to the good standing of such Loan Party in such jurisdiction and each other jurisdiction where such Loan Party is qualified
to do business as a foreign entity or where such qualification is necessary (and, if appropriate in any such jurisdiction, related tax certificates), except where the failure to be so qualified would
not be materially adverse to such Loan Party; 


         (v)  a
certificate of the secretary or other officer of each Loan Party in charge of maintaining books and records of such Loan Party certifying as to (A) the names
and signatures of each officer of such Loan Party authorized to execute and deliver any Loan Document, (B) the Constituent Documents of such Loan Party attached to such certificate are complete
and correct copies of such Constituent Documents as in effect on the date of such certification (or, for any such Constituent Document delivered pursuant to  clause (v) above, that there have been
no changes from such Constituent Document so delivered), and (C) the resolutions of such Loan
Party's board of directors or other appropriate governing body approving and authorizing the execution, delivery and performance of each Loan Document to which such Loan Party is a party; 


        (vi)  a
certificate of a Responsible Officer of Borrower to the effect that (A) each condition set forth in  Section 3.2(b) has been satisfied with respect to Borrower, and (B) Borrower and each
other Loan Party on a Consolidated basis, are
Solvent after giving effect to the Term Loan, the application of the proceeds thereof in accordance with Section 7.9, the payment of the
Specified Dividend, and the payment of all estimated legal, accounting and other fees and expenses related hereto and thereto; 



       (vii)  insurance
certificates in form and substance satisfactory to the Administrative Agent demonstrating that the insurance policies required by  Section 7.5 are in full force and effect and have all endorsements
required by such  Section 7.5; 


      (viii)  satisfactory
completion of the Administrative Agent's legal, accounting and financial due diligence investigations, including receipt and review of the Initial
Projections, review of Borrower's insurance, review of employment and noncompetition agreements of Borrower's key employees, review of Borrower's standard forms of customer contracts and its actual
contracts with its major customers, and review of such other documents as the Administrative Agent or any Lender may reasonably request to
determine that all third-party and regulatory approvals and consents necessary to consummate the transactions contemplated on the Closing Date and the Specified Dividend shall have been obtained and
shall be final and non-appealable, 


        (ix)  the
other documents listed on the Closing Checklist; and 


         (x)  such
other documents and information as any Lender through the Administrative Agent may reasonably request. 




        (b)    Fee and Expenses.    There shall have been paid to the Administrative Agent, for the account of the
Administrative Agent, its Related Persons, any L/C Issuer or any Lender, as the case may be, all fees and all reimbursements of costs or expenses, in each case due and payable under any Loan Document
on or before the Closing Date. 



42







 

        (c)    Consents.    Each Group Member shall have received all material consents and authorizations required pursuant
to any material Contractual Obligation with any other Person and shall have obtained all material Permits of, and effected all material notices to and filings with, any Governmental Authority, in each
case, as may be necessary in connection with the consummation of the transactions contemplated in any Loan Document and the payment of the Specified Dividend. 


        (d)    No Initial Revolving Loans.    On the Closing Date, after giving effect to the Loans and payment in full of the
Specified Dividend, there shall be no Revolving Loans or L/Cs outstanding and none shall be required to pay in full the Specified Dividend. 


        (e)    Opening Cash Balance    On the Closing Date, Borrower will have an opening unencumbered amount of cash and Cash
Equivalents of at least $4,500,000 after giving effect to payment in full of the Specified Dividend and the borrowing of the Term Loan, and assuming that no Revolving Loans or L/Cs are outstanding. 


        (f)    Minimum Consolidated EBITDA.    On the Closing Date, the aggregate Adjusted EBITDA of Borrower for the 12
consecutive preceding months for which financial statements are available shall be no less than $7,800,000. 


        (g)    Consolidated Total Debt.    On the Closing Date, after giving effect to the transactions occurring on the
Closing Date and the payment of the Specified Dividend, (i) the Consolidated Total Debt of Borrower shall not exceed $20,000,000, and (ii) the ratio of Consolidated Total Debt to
Adjusted EBITDA shall be less than 2.60 to 1. 


        (h)    No Material Adverse Change.    (x) No event shall have occurred (including with respect to the contracts
or other Collateral of Borrower and the other Loan Parties) that would cause or in the reasonable judgment of the Administrative Agent be reasonably likely to result in a Material Adverse Effect, and
(y) no litigation, suit or investigation by any Governmental Authority shall have commenced or been threatened in writing against any Loan Party that in the reasonable judgment of the
Administrative Agent could reasonably be expected to have a Material Adverse Effect if determined adversely to such Loan Party. 




        Section 3.2    Conditions Precedent to Each Loan and Letter of Credit.    The obligation of each Lender on any
date (including the Closing Date) to make any Loan and of each L/C Issuer on any date (including the Closing Date) to Issue any Letter of Credit is subject to the satisfaction of each of the following
conditions precedent: 



        (a)    Request.    The Administrative Agent (and, in the case of any Issuance, the relevant L/C Issuer) shall have
received, to the extent required by Article II, a written, timely and duly executed and completed Notice of Borrowing, Swingline Request or, as
the case may be, L/C Request. 


        (b)    Representations and Warranties; No Defaults.    The following statements shall be true on such date, both
before and after giving effect to such Loan or, as applicable, such Issuance: (i) the representations and warranties set forth in any Loan Document shall be true and correct (A) if such
date is the Closing Date, on and as of such date and (B) otherwise, in all material respects (if not qualified as to materiality or Material Adverse Effect) or in any respect (if so qualified)
on and as of such date or, to the extent such representations and warranties expressly relate to an earlier date, on and as of such earlier date and (ii) no Default or Event of Default shall be
continuing. 


        (c)    Additional Matters.    The Administrative Agent shall have received such additional documents and information
as any Lender, through the Administrative Agent, may reasonably request. 



43







 





The
representations and warranties set forth in any Notice of Borrowing, Swingline Request or L/C Request (or any certificate delivered in connection therewith) shall be deemed to be made again on and
as of the date of the relevant Loan or Issuance and the acceptance of the proceeds thereof or of the delivery of the relevant Letter of Credit. 



        Section 3.3    Determinations of Initial Borrowing Conditions.    For purposes of determining compliance with
the conditions specified in Section 3.1, each Lender shall be deemed to be satisfied with each document and each other matter required to be
satisfactory to such Lender unless, prior to the Closing Date, the Administrative Agent receives notice from such Lender specifying such Lender's objections and such Lender has not made available its
Pro Rata Share of any Borrowing scheduled to be made on the Closing Date. 


 
 

ARTICLE IV    
    
    REPRESENTATIONS AND WARRANTIES    
    


        To induce the Lenders, the L/C Issuers and the Administrative Agent to enter into the Loan Documents, Borrower and each Parent Guarantor (and, to the extent set
forth in any other Loan Document, each other Loan Party) represents and warrants to each of them each of the following on and as of each date applicable pursuant to  Section 3.2: 



        Section 4.1    Corporate Existence; Compliance with Law.    Each Group Member (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization, (b) is duly qualified to do business as a foreign entity and in good standing under the laws of
each jurisdiction where such qualification is necessary, except where the failure to be so qualified or in good standing would not, in the aggregate, have a Material Adverse Effect, (c) has all
requisite power and authority and the legal right to own, pledge, mortgage and operate its property, to lease or sublease any property it operates under lease or sublease and to conduct its business
as now or currently proposed to be conducted, (d) is in compliance with its Constituent Documents, (e) is in compliance with all applicable Requirements of Law except where the failure
to be in compliance would not have a Material Adverse Effect and (f) has all necessary Permits from or by, has made all necessary filings with, and has given all necessary notices to, each
Governmental Authority having jurisdiction, to the extent required for such ownership, lease, sublease, operation, occupation or conduct of business, except where the failure to obtain such Permits,
make such filings or give such notices would not, in the aggregate, have a Material Adverse Effect. 


        Section 4.2    Loan and Related Documents.    (a) Power and
Authority.    The execution, delivery and performance by each Loan Party of the Loan Documents to which it is a party and the payment of the Specified Dividend
(i) are within such Loan Party's corporate or similar powers and, at the time of execution thereof, have been duly authorized by all necessary corporate and similar action (including, if
applicable, consent of holders of its Securities), (ii) do not (A) contravene such Loan Party's Constituent Documents, (B) violate any applicable Requirement of Law,
(C) conflict with, contravene, constitute a default or breach under, or result in or permit the termination or acceleration of, any material Contractual Obligation of any Loan Party or any of
its Subsidiaries (including other Loan Documents) other than those that would not, in the aggregate, have a Material Adverse Effect and are not created or caused by, or a conflict, breach, default or
termination or acceleration event under, any Loan Document or (D) result in the imposition of any Lien (other than a Permitted Lien) upon any property of any Loan Party or any of its
Subsidiaries and (iii) do not require any Permit of, or filing with, any Governmental Authority or any consent of, or notice to, any Person, other than (A) with respect to the Loan
Documents, the filings required to perfect the Liens created by the Loan Documents, and (B) those listed on Schedule 4.2 and that have
been, or will be prior to the Closing Date, obtained or made, copies of which have been, or will be prior to the Closing Date, delivered to the Administrative Agent, and each of which on the Closing
Date will be in full force and effect. 


44







 



        (b)    Due Execution and Delivery.    From and after its delivery to the Administrative Agent, each Loan Document has
been duly executed and delivered to the other parties thereto by each Loan Party thereto, is the legal, valid and binding obligation of such Loan Party and is enforceable against such Loan Party in
accordance with its terms except as such enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws affecting creditors' rights generally and by
general principles of equity. 


        Section 4.3    Ownership of Group Members.    Set forth on  Schedule 4.3 is a complete and accurate list showing, as of
the Closing Date, for each Group Member and each Subsidiary of any Group Member and
each joint venture of any of them, its jurisdiction of organization, the number of shares of each class of Stock authorized (if applicable), the number outstanding on the Closing Date and the number
and percentage of the outstanding shares of each such class owned (directly or indirectly) by Borrower and each Parent Guarantor. All outstanding Stock of each of them has been validly issued, is
fully paid and non-assessable (to the extent applicable) and, except in the case of Holdings, is owned beneficially and of record by a Group Member free and clear of all Liens other than
the security interests created by the Loan Documents and, in the case of joint ventures, Permitted Liens. There are no Stock Equivalents with respect to the Stock of any Group Member (other than
Holdings) or any Subsidiary of any Group Member or any joint venture of any of them and, as of the Closing Date, except as set forth on  Schedule 4.3, there are no Stock Equivalents with respect to
the Stock of Holdings. There are no Contractual Obligations or other understandings
to which any Group Member, any Subsidiary of any Group Member or any joint venture of any of them is a party with respect to (including any restriction on) the issuance, voting, Sale or pledge of any
Stock or Stock Equivalent of any Group Member or any such Subsidiary or joint venture. 


        Section 4.4    Financial Statements.    (a) Each of (i) the audited Consolidated balance sheet of
Borrower as at December 31, 2006, and the related Consolidated statements of income, retained earnings and cash flows of Borrower for the Fiscal Year then ended, certified by
PricewaterhouseCoopers LLP, and (ii) subject to the absence of footnote disclosure and normal recurring year-end audit adjustments, the unaudited Consolidated balance sheets of
Borrower as at January 31, 2007 and the related Consolidated statements of income, retained earnings and cash flows of Borrower for the one month then ended, copies of each of which have been
furnished to the Administrative Agent, fairly present in all material respects the Consolidated financial position, results of operations and cash flow of Borrower as at the dates indicated and for
the periods indicated in accordance with GAAP. 


        (b)   On
the Closing Date, (i) Holdings has no material property (other than the Stock of General Partner and Limited Partner), liabilities or Contractual Obligations
other than the Loan Documents, and (ii) General Partner and Limited Partner have no property (other than the Stock of Borrower), liabilities or Contractual Obligations other than the Loan
Documents. On the Closing Date, (x) neither Borrower nor any of its Subsidiaries has any material liability or other obligation (including Indebtedness, Guaranty Obligations, contingent
liabilities and liabilities for taxes, long-term leases and unusual forward or long-term commitments) that is not reflected in the Financial Statements referred to in  clause (a) above or in the
notes thereto and not otherwise permitted by this Agreement and (y) since the date of the unaudited Financial
Statements referenced in clause (a)(ii) above, there has been no Sale of any material property of Borrower or any of its Subsidiaries and no
purchase or other acquisition of any material property. 


        (c)   The
Initial Projections have been prepared by Borrower in light of the past operations of the business of Borrower and its Subsidiaries and reflect projections for the
5-year period beginning as of January 1, 2007 on a year by year basis. As of the Closing Date, the Initial Projections are based upon estimates and assumptions stated therein, all
of which Borrower believes to be reasonable and fair in light of conditions and facts known to Borrower as of the Closing Date and reflect the good faith, reasonable and fair estimates by Borrower of
the future Consolidated financial performance of 


45







 



Borrower
and the other information projected therein for the periods set forth therein; provided, however, that Borrower gives no assurances whatsoever
that such projections will be attained. 


        (d)   The
unaudited Consolidated balance sheet of Holdings (the "Pro Forma Balance Sheet") delivered to the Administrative
Agent prior to the date hereof has been prepared as of March 31, 2007 and reflects as of such date, on a Pro Forma Basis for the Related Transactions and the other transactions contemplated
herein to occur on the Closing Date, the Consolidated financial condition of Holdings, and the assumptions expressed therein are reasonable based on the information available to Holdings and Borrower
at such date and on the Closing Date. 


        Section 4.5    Material Adverse Effect.    Since December 31, 2006, there have been no events,
circumstances, developments or other changes in facts that could reasonably be expected, in the aggregate, to have a Material Adverse Effect. 


        Section 4.6    Solvency.    Both before and after giving effect to (a) the Loans and Letters of Credit
made or Issued on or prior to the date this representation and warranty is made, (b) the disbursement of the proceeds of such Loans, (c) the payment of the Specified Dividend and
(d) the payment and accrual of all transaction costs in connection with the foregoing, all of the Loan Parties on a Consolidated basis are Solvent. 


        Section 4.7    Litigation.    There are no pending (or, to the knowledge of any Group Member, threatened in
writing) actions, investigations, suits, proceedings, audits, claims, demands, orders or disputes affecting Borrower or any of its Subsidiaries or any Guarantor with, by or before any Governmental
Authority other than those that cannot reasonably be expected to affect the Obligations, the Loan Documents, the Letters of Credit, and the other transactions contemplated in any of the foregoing and
would not, in the aggregate, have a Material Adverse Effect. 


        Section 4.8    Taxes.    All federal, state, local and foreign income and franchise and other material tax
returns, reports and statements (collectively, the "Tax Returns") required to be filed by any Tax Affiliate have been filed with the appropriate
Governmental Authorities in all jurisdictions in which such Tax Returns are required to be filed, all such Tax Returns are true and correct in all material respects, and all taxes, charges and other
impositions reflected therein or otherwise due and payable have been paid prior to the date on which any Liability may be added thereto for non-payment thereof except for those contested
in good faith by appropriate proceedings diligently conducted and for which adequate reserves are maintained on the books of the appropriate Tax Affiliate in accordance with GAAP. No Tax Return is
under audit or examination by any Governmental Authority and no notice of such an audit or examination or any assertion of any claim for Taxes has been given or made by any Governmental Authority.
Proper and accurate amounts have been withheld by each Tax Affiliate from their respective employees for all periods in full and complete compliance with the tax, social security and unemployment
withholding provisions of applicable Requirements of Law and such withholdings have been timely paid to the respective Governmental Authorities. No Tax Affiliate has participated in a "reportable
transaction" within the meaning of Treasury Regulation Section 1.6011-4(b) or has been a member of an affiliated, combined or unitary group other than the group of which a Tax
Affiliate is the common parent. 


        Section 4.9    Margin Regulations.    No Loan Party is engaged in the business of extending credit for the
purpose of, and no proceeds of any Loan or other extensions of credit hereunder will be used for the purpose of, buying or carrying margin stock (within the meaning of Regulation U of the
Federal Reserve Board) or extending credit to others for the purpose of purchasing or carrying any such margin stock, in each case in contravention of Regulation T, U or X of the Federal
Reserve Board. 


        Section 4.10    No Burdensome Obligations; No Defaults.    No Group Member is a party to any Contractual
Obligation, no Group Member has Constituent Documents containing obligations, and, to the knowledge of any Group Member, there are no applicable Requirements of Law, in each case the 


46







 



compliance
with which would have, in the aggregate, a Material Adverse Effect. No Group Member (and, to the knowledge of each Group Member, no other party thereto) is in default under or with respect
to any Contractual Obligation of any Group Member, other than those that would not, in the aggregate, have a Material Adverse Effect. 


        Section 4.11    Investment Company Act.    No Group Member is an "investment company" or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment company", as such terms are defined in the Investment Company Act of 1940. 



        Section 4.12    Labor Matters.    There are no strikes, work stoppages, slowdowns or lockouts existing, pending
(or, to the knowledge of any Group Member, threatened in writing) against or involving any Group Member, except for those that would not, in the aggregate, have a Material Adverse Effect. Except as
set forth on Schedule 4.12, as of the Closing Date, (a) there is no collective bargaining or similar agreement with any union, labor
organization, works council or similar representative covering any employee of any Group Member, (b) no petition for certification or election of any such representative is existing or pending
with respect to any employee of any Group Member and (c) no such representative has sought certification or recognition with respect to any employee of any Group Member. 


        Section 4.13    ERISA.    Schedule 4.13 sets forth, as
of the Closing Date, a complete and correct list of, and that separately identifies, (a) all Title IV Plans, (b) all Multiemployer Plans and (c) all material Benefit Plans. Each
Benefit Plan, and each trust thereunder, intended to qualify for tax exempt status under Section 401 or 501 of the Code or other Requirements of Law so qualifies. Except for those that would
not, in the aggregate, have a Material Adverse Effect, (x) each Benefit Plan is in compliance with applicable provisions of ERISA, the Code and other Requirements of Law, (y) there are
no existing or pending (or, to the knowledge of any Group Member, threatened in writing) claims (other than routine claims for benefits in the normal course), sanctions, actions, lawsuits or other
proceedings or investigation involving any Benefit Plan to which any Group Member incurs or otherwise has or could have an obligation or any Liability and (z) no ERISA Event is reasonably
expected to occur. On the Closing Date, no ERISA Event has occurred in connection with which obligations and liabilities (contingent or otherwise) remain outstanding. No ERISA Affiliate would have any
Withdrawal Liability as a result of a complete withdrawal from any Multiemployer Plan on the date this representation is made. 



        Section 4.14    Environmental Matters.    Except as set forth on  Schedule 4.14, (a) the operations of each Group
Member are and have been in compliance with all applicable Environmental Laws, including
obtaining, maintaining and complying with all Permits required by any applicable Environmental Law, other than non-compliances that, in the aggregate, would not have a reasonable
likelihood of resulting in Material Environmental Liabilities, (b) no Group Member is party to, and no Group Member and no real property currently (or to the knowledge of any Group Member
previously) owned, leased, subleased, operated or otherwise occupied by or for any Group Member is subject to or the subject of, any Contractual Obligation or any pending (or, to the knowledge of any
Group Member, threatened) order, action, investigation, suit, proceeding, audit, claim, demand, dispute or notice of violation or of potential liability or similar notice under or pursuant to any
Environmental Law other than those that, in the aggregate, are not reasonably likely to result in Material Environmental Liabilities, (c) no Lien in favor of any Governmental Authority
securing, in whole or in part, Environmental Liabilities has attached to any property of any Group Member and, to the knowledge of any Group Member, no facts, circumstances or conditions exist that
could reasonably be expected to result in any such Lien attaching to any such property, (d) no Group Member has caused or suffered to occur a Release of Hazardous Materials at, to or from any
real property of any Group Member and each such real property is free of contamination by any Hazardous Materials except for such Release or contamination that could not reasonably be expected to
result, in the aggregate, in Material Environmental Liabilities, (e) no Group Member (i) is or has been engaged in, or has permitted any 


47







 



current
or former tenant to engage in, operations, or (ii) knows of any facts, circumstances or conditions, including receipt of any information request or notice of potential responsibility
under CERCLA or similar Environmental Laws, that, in the aggregate, would have a reasonable likelihood of resulting in Material Environmental Liabilities and (f) each Group Member has made
available to the Administrative Agent copies of all existing environmental reports, reviews and audits and all documents pertaining to actual or potential Environmental Liabilities, in each case to
the extent such reports, reviews, audits and documents are in their possession, custody or control. 


        Section 4.15    Intellectual Property.    Each Group Member owns or licenses all Intellectual Property that is
necessary for the operations of its businesses. The conduct and operations of the businesses of each Group Member does not, to the knowledge of any Group Member, infringe, misappropriate, dilute,
violate or otherwise impair any Intellectual Property owned by any other Person and (b) no other Person has contested any right, title or interest of any Group Member in, or relating to, any
Intellectual Property, other than, in each case, as cannot reasonably be expected to affect the Loan Documents and the transactions contemplated therein and would not, in the aggregate, have a
Material Adverse Effect. In addition, (x) there are no pending (or, to the knowledge of any Group Member, threatened) actions, investigations, suits, proceedings, audits, claims, demands,
orders or disputes affecting any Group Member with respect to, (y) no judgment or order regarding any such claim has been rendered by any competent Governmental Authority, no settlement
agreement or similar Contractual Obligation has been entered into by any Group Member, with respect to and (z) no Group Member knows or has any reason to know of any valid basis for any claim
based on, any such infringement, misappropriation, dilution, violation or impairment or contest, other than, in each case, as cannot reasonably be expected to affect the Loan Documents and the
transactions contemplated therein and would not, in the aggregate, have a Material Adverse Effect. 


        Section 4.16    Title; Real Property.    (a) As of the Closing Date, no Group Member owns any real property.
Each Group Member owns all personal property, in each case that is purported to be owned or leased by it, including those reflected on the most recent Financial Statements delivered by Borrower, and
none of such property is subject to any Lien except Permitted Liens. 


        (b)   Set
forth on Schedule 4.16 is, as of the Closing Date, a complete and accurate list of all real property in which
any Group Member owns a leasehold interest setting forth, for each such real property, the current street address (including, where applicable, county, state and other relevant jurisdictions) and the
record owner thereof. 


        Section 4.17    Full Disclosure.    The written information prepared or furnished by or on behalf of any Group
Member in connection with any Loan Document (including the information contained in any Financial Statement or Disclosure Document), taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements contained therein, taken as a whole, in light of the circumstances when made, not materially misleading;  provided,
however, that projections contained therein are not to be viewed as factual and that actual
results during the periods covered thereby may differ from the results set forth in such projections by a material amount. All projections that are part of such information (including those set forth
in any Projections delivered subsequent to the Closing Date) are based upon good faith estimates and stated assumptions believed to be reasonable and fair as of the date made in light of conditions
and facts then known and, as of such date, reflect good faith, reasonable and fair estimates of the information projected for the periods set forth therein. All facts known to any Group Member and
material to an understanding of the financial condition, business, property or prospects of the Group Member taken as one enterprise have been disclosed to the Lenders. 


48







 


 
 

ARTICLE V    
    
    FINANCIAL COVENANTS    
    


        Borrower and each Parent Guarantor (and, to the extent set forth in any other Loan Document, each other Loan Party) agrees with the Lenders, the L/C Issuers and
the Administrative Agent to each of the following, as long as any Obligation or any Commitment remains outstanding: 


        Section 5.1    Maximum Consolidated Leverage Ratio.    Holdings shall not have, on the last day of each Fiscal
Quarter set forth below, a Consolidated Leverage Ratio greater than the maximum ratio set forth opposite such Fiscal Quarter: 



	FISCAL QUARTER ENDING
 
	 	MAXIMUM CONSOLIDATED

LEVERAGE RATIO

	March 31, 2007	 	3.50 to 1
	June 30, 2007	 	3.50 to 1
	September 30, 2007	 	3.50 to 1
	December 31, 2007	 	3.50 to 1
	March 31, 2008	 	3.30 to 1
	June 30, 2008	 	3.10 to 1
	September 30, 2008	 	2.90 to 1
	December 31, 2008	 	2.80 to 1
	March 31, 2009	 	2.65 to 1
	June 30, 2009	 	2.50 to 1
	September 30, 2009	 	2.35 to 1
	December 31, 2009	 	2.25 to 1
	March 31, 2010	 	2.10 to 1
	June 30, 2010	 	1.95 to 1
	September 30, 2010	 	1.80 to 1
	December 31, 2010	 	1.75 to 1
	March 31, 2011	 	1.70 to 1
	June 30, 2011	 	1.60 to 1
	September 30, 2011	 	1.60 to 1
	December 31, 2011	 	1.50 to 1






        Section 5.2    Minimum Consolidated Fixed Charge Coverage Ratio.    Holdings shall not have, on the last day of
any Fiscal Quarter, a Consolidated Fixed Charge Coverage Ratio for the four (4) Fiscal Quarter period ending on such day less than 1.40 to 1 (taking into account, for the applicable periods,
the carve-out for the Excluded Tax Payment that is contained within the definition of such ratio). 


49







 



        Section 5.3    Minimum Consolidated EBITDA.    Holdings shall not have, on the last day of each Fiscal Quarter
set forth below, a Consolidated EBITDA for the four (4) Fiscal Quarter period ending on such day less than the minimum Consolidated EBITDA set forth opposite such Fiscal Quarter: 



	FISCAL QUARTER ENDING
 
	 	MINIMUM CONSOLIDATED

EBITDA

	March 31, 2007	 	$	7,200,000
	June 30, 2007	 	$	7,300,000
	September 30, 2007	 	$	6,800,000
	December 31, 2007	 	$	6,700,000
	March 31, 2008	 	$	7,100,000
	June 30, 2008	 	$	7,600,000
	September 30, 2008	 	$	8,000,000
	December 31, 2008	 	$	8,500,000
	March 31, 2009	 	$	8,500,000
	June 30, 2009	 	$	8,600,000
	September 30, 2009	 	$	8,600,000
	December 31, 2009	 	$	8,700,000
	March 31, 2010	 	$	8,900,000
	June 30, 2010	 	$	9,200,000
	September 30, 2010	 	$	9,500,000
	December 31, 2010	 	$	9,800,000
	March 31, 2011	 	$	10,100,000
	June 30, 2011	 	$	10,500,000
	September 30, 2011	 	$	10,800,000
	December 31, 2011	 	$	11,100,000






        Section 5.4    Capital Expenditures.    


        (a)   The
Group Members shall not, on a Consolidated basis, incur or permit to be incurred Capital Expenditures in the aggregate during any Fiscal Year set forth below in
excess of the maximum amount set forth below for such Fiscal Year: 



	FISCAL YEAR ENDING
 
	 	MAXIMUM CAPITAL

EXPENDITURES

	Fiscal Year 2007	 	$	2,200,000
	Fiscal Year 2008	 	$	3,025,000
	Fiscal Year 2009	 	$	3,135,000
	Fiscal Year 2010	 	$	3,300,000
	Fiscal Year 2011	 	$	3,300,000






        (b)   Notwithstanding
anything to the contrary contained in clause (a) above, to the extent that the aggregate amount of
Capital Expenditures made by the Group Members in any Fiscal Year pursuant to Section 5.5(a) is less than the amount set forth for such fiscal year, an amount equal to 50% of such difference
(the "Rollover Amount") may be carried forward and used to make Capital Expenditures in the immediately succeeding fiscal year (with the Rollover Amount
being used after the current year's amount). 


        Section 5.5    Make-Well Payments.    Notwithstanding anything to the contrary contained in
Section 5.1, the stockholders of Holdings shall have the right, but not the obligation, to cure any Default of the Maximum Consolidated Leverage Ratio occurring at the end of a Fiscal Quarter
by contributing additional equity to Holdings, which shall contribute such equity to Borrower (each such equity investment by the stockholders, a "Make-Well
Payment"); provided, however, that such right to 


50







 



cure
the Maximum Consolidated Leverage Ratio shall be limited to two such occasions during any period of four consecutive Fiscal Quarters. Any Make-Well Payment must, as a condition to
curing a Default, (a) be contributed to Borrower within 5 Business Days of the occurrence of such Default, (b) be used by Borrower solely to repay the Term Loan, and (c) be equal
to, but not exceed, the amount necessary to effect a cure of the applicable Default. For the purposes of calculating the Maximum Consolidated Leverage Ratio for any Fiscal Quarter with respect to
which a Make-Well Payment is being made, the Consolidated Total Debt for such Fiscal Quarter shall be reduced by the amount of the Make-Well Payment. 


 
 

ARTICLE VI    
    
    REPORTING COVENANTS    
    


        Borrower and each Parent Guarantor (and, to the extent set forth in any other Loan Document, each other Loan Party) agrees with the Lenders, the L/C Issuers and
the Administrative Agent to each of the following, as long as any Obligation or any Commitment remains outstanding: 



        Section 6.1    Financial Statements.    The Borrower shall deliver to the Administrative Agent each of the
following: 



        (a)    Monthly Reports.    As soon as available, and in any event within 30 days after the end of each fiscal
month (other than any fiscal month constituting the last month of a Fiscal Quarter), the Consolidated and consolidating unaudited balance sheet of Holdings as of the close of such fiscal month and
related Consolidated and consolidating statements of income and cash flow for such fiscal month and that portion of the Fiscal Year ending as of the close of such fiscal month, setting forth in
comparative form the figures for the corresponding periods in the prior Fiscal Year and the figures contained in the latest Projections, in each case certified by a Responsible Officer of Borrower as
fairly presenting in all material respects the Consolidated financial position, results of operations and cash flow of Holdings as at the dates indicated and for the periods indicated in accordance
with GAAP (subject to the absence of footnote disclosure and normal year-end audit adjustments). 


        (b)    Quarterly Reports.    As soon as available, and in any event within 45 days after the end of each Fiscal
Quarter, the Consolidated and consolidating unaudited balance sheet of Holdings as of the close of such Fiscal Quarter and related Consolidated and consolidating statements of income and cash flow for
such Fiscal Quarter and that portion of the Fiscal Year ending as of the close of such Fiscal Quarter, setting forth in comparative form the figures for the corresponding periods in the prior Fiscal
Year and the figures contained in the latest Projections, in each case certified by a Responsible Officer of Borrower as fairly presenting in all material respects the Consolidated and consolidating
financial position, results of operations and cash flow of Holdings as at the dates indicated and for the periods indicated in accordance with GAAP (subject to the absence of footnote disclosure and
normal year-end audit adjustments). 


        (c)    Annual Reports.    As soon as available, and in any event within 90 days after the end of each Fiscal
Year, the Consolidated and consolidating balance sheet of Holdings as of the end of such year and related Consolidated and consolidating statements of income, stockholders' equity and cash flow for
such Fiscal Year, each prepared in accordance with GAAP, together with a certification by the Group Members' Accountants that (i) such Consolidated Financial Statements fairly present in all
material respects the Consolidated financial position, results of operations and cash flow of Holdings as at the dates indicated and for the periods indicated therein in accordance with GAAP without
qualification as to the scope of the audit or as to going concern and without any other similar qualification and (ii) in the course of the regular audit of the businesses of the Group Members,
which audit was conducted in accordance with the standards of the United States' Public Company Accounting Oversight Board (or any successor entity), such Group 



51







 




Members'
Accountants have obtained no knowledge that a Default in respect of any financial covenant contained in Article V is continuing or, if
in the opinion of the Group Members' Accountants such a Default is continuing, a statement as to the nature thereof. 


        (d)    Compliance Certificate.    Together with each delivery of any Financial Statement pursuant to  clause (b) or
(c) above, a Compliance Certificate duly executed by a Responsible Officer of
Borrower that, among other things, (i) shows in reasonable detail the calculations used in determining Excess Cash Flow, if delivered together with any Financial Statement pursuant to  clause (c) above, (ii) demonstrates compliance with each financial covenant contained in  Article V that is tested at least on a quarterly basis and (iii) states that no Default is continuing
as of the date of delivery of such
Compliance Certificate or, if a Default is continuing, states the nature thereof and the action that Borrower proposes to take with respect thereto. 


        (e)    Additional Projections.    As soon as available and in any event not later than 30 days after the end of
each Fiscal Year, (i) the annual business plan of the Group Members for the Fiscal Year next succeeding such Fiscal Year and (ii) forecasts prepared by management of Borrower
(A) for each Fiscal Quarter in such next succeeding Fiscal Year and (B) for each other succeeding Fiscal Year through the Fiscal Year containing the Scheduled Maturity Date, in each case
including in such forecasts (x) a projected year-end Consolidated balance sheet, income statement and statement of cash flows, (y) a statement of all of the material
assumptions on which such forecasts are based and (z) substantially the same type of financial information as that contained in the Initial Projections. 


        (f)    Management Discussion and Analysis.    Together with each delivery of any Financial Statement pursuant to  clause (b)
above, a discussion and analysis of the financial condition and results of operations of the Group Members for the portion of the
Fiscal Year then elapsed and discussing the reasons for any significant variations from the Projections for such period and the figures for the corresponding period in the previous Fiscal Year. In
addition, Borrower and its senior management will be available to discuss with the Administrative Agent and the Lenders any monthly Financial Statement that, in the reasonable judgment of the
Administrative Agent, requires discussion. 


        (g)    Audit Reports, Management Letters, Etc.    Together with each delivery of any Financial Statement for any
Fiscal Year pursuant to clause (c) above, copies of each management letter, audit report or similar letter or report received by any Group Member
from any independent registered certified public accountant (including the Group Members' Accountants) in connection with such Financial Statements or any audit thereof, each certified to be complete
and correct copies by a Responsible Officer of Borrower as part of the Compliance Certificate delivered in connection with such Financial Statements. 


        (h)    Insurance.    Together with each delivery of any Financial Statement for any Fiscal Year pursuant to  clause (c) above,
each in form and substance satisfactory to the Administrative Agent and certified as complete and correct by a Responsible
Officer of Borrower as part of the Compliance Certificate delivered in connection with such Financial Statements, a summary of all material insurance coverage maintained as of the date thereof by any
Group Member, together with such other related documents and information as the Administrative Agent may reasonably require. 




        Section 6.2    Other Events.    The Borrower shall give the Administrative Agent notice of each of the
following (which may be made by telephone if promptly confirmed in writing) promptly after any Responsible Officer of any Group Member knows or has reason to know of it: (a)(i) any Default or
Event of Default and (ii) any event or condition that could reasonably be expected to have a Material Adverse Effect, specifying, in each case, the nature and anticipated effect thereof and any
action proposed to be taken in connection therewith, (b) any event (other than any event involving loss or 


52







 

damage
to property) reasonably expected to result in a mandatory payment of the Obligations pursuant to Section 2.8, stating the material terms
and conditions of such transaction and estimating the Net Cash Proceeds thereof, (c) the commencement of, or any material developments in, any action, investigation, suit, proceeding, audit,
claim, demand, order or dispute with, by or before any Governmental Authority affecting any Group Member or any property of any Group Member that (i) seeks injunctive or similar relief,
(ii) in the reasonable judgment of Borrower exposes any Group Member to liability in an aggregate amount in excess of $250,000 or (iii) if adversely determined would have a Material
Adverse Effect, and (d) the acquisition of any material real property or the entering into of any material lease. 


        Section 6.3    Copies of Notices and Reports.    The Borrower shall promptly deliver to the Administrative
Agent copies of each of the following: (a) all reports that Holdings transmits to its security holders generally, (b) all documents that any Group Member files with the Securities and
Exchange Commission, the National Association of Securities Dealers, Inc., any securities exchange or any Governmental Authority exercising similar functions, (c) all press releases not
made available directly to the general public, (d) all material documents transmitted or received pursuant to, or in connection with, any Related Document, (e) any material document
transmitted or received pursuant to, or in connection with, any default, termination, waiver or material amendment of any Contractual Obligation governing Indebtedness of any Group Member and
(f) any material notices that any Loan Party executes or receives in connection with any Material Contract. 


        Section 6.4    Taxes.    The Borrower shall give the Administrative Agent notice of each of the following
(which may be made by telephone if promptly confirmed in writing) promptly after any Responsible Officer of any Group Member knows or has reason to know of it: (a) the creation, or filing with
the IRS or any other Governmental Authority, of any Contractual Obligation or other document extending, or having the effect of extending, the period for assessment or collection of any taxes with
respect to any Tax Affiliate and (b) the creation of any Contractual Obligation of any Tax Affiliate, or the receipt of any request directed to any Tax Affiliate, to make any adjustment under
Section 481(a) of the Code, by reason of a change in accounting method or otherwise, which would have a Material Adverse Effect. 


        Section 6.5    Labor Matters.    The Borrower shall give the Administrative Agent notice of each of the
following (which may be made by telephone if promptly confirmed in writing), promptly after any Responsible Officer of any Group Member knows or has reason to know of it: (a) the commencement
of any material labor dispute to which any Group Member is or may become a party, including any strikes, lockouts or other disputes relating to any of such Person's plants and other facilities and
(b) the incurrence by any Group Member of any Worker Adjustment and Retraining Notification Act or related or similar liability incurred with respect to the closing of any plant or other
facility of any such Person (other than, in the case of this clause (b), those that would not, in the aggregate, have a Material Adverse Effect). 



        Section 6.6    ERISA Matters.    The Borrower shall give the Administrative Agent (a) on or prior to any
filing by any ERISA Affiliate of any notice of intent to terminate any Title IV Plan, a copy of such notice and (b) promptly, and in any event within 10 days, after any Responsible
Officer of any ERISA Affiliate knows or has reason to know that a request for a minimum funding waiver under Section 412 of the Code has been filed with respect to any Title IV Plan or
Multiemployer Plan, a notice (which may be made by telephone if promptly confirmed in writing) describing such waiver request and any action that any ERISA Affiliate proposes to take with respect
thereto, together with a copy of any notice filed with the PBGC or the IRS pertaining thereto. 



        Section 6.7    Environmental Matters.    (a) The Borrower shall provide the Administrative Agent notice of each
of the following (which may be made by telephone if promptly confirmed by the Administrative Agent in writing) promptly after any Responsible Officer of any Group Member knows 


53







 



or
has reason to know of it (and, upon reasonable request of the Administrative Agent, documents and information in connection therewith): (i)(A) unpermitted Releases, (B) the receipt by any
Group Member of any notice of violation of or potential liability or similar notice under, or the existence of any condition that could reasonably be expected to result in violations of or liabilities
under, any Environmental Law or (C) the commencement of, or any material change to, any action, investigation, suit, proceeding, audit, claim, demand, dispute alleging a violation of or
liability under any Environmental Law, that, for each of clauses (A), (B) and  (C) above (and, in the case of
clause (C), if adversely determined), in the aggregate for each
such clause, could reasonably be expected to result in Environmental Liabilities in excess of $250,000, (ii) the receipt by any Group Member of notification that any property of any Group
Member is subject to any Lien in favor of any Governmental Authority securing, in whole or in part, Environmental Liabilities and (iii) any proposed acquisition or lease of real property
(except as part of any Permitted Acquisition) if such acquisition or lease would have a reasonable likelihood of resulting in aggregate Environmental Liabilities in excess of $250,000. 


        (b)   Upon
the reasonable request of the Administrative Agent, Borrower shall provide the Administrative Agent a report containing an update as to the status of any
environmental, health or safety compliance, hazard or liability issue identified in any document delivered to any Secured Party pursuant to any Loan Document or as to any condition reasonably believed
by the Administrative Agent to result in or to be reasonably likely to result in material Environmental Liabilities. 



        Section 6.8    Other Information.    Borrower shall provide the Administrative Agent with updates to the
information disclosed herein and in the Perfection Certificate as and when any information contained herein or therein becomes obsolete or incomplete. Borrower shall also provide the Administrative
Agent such other documents and information with respect to the business, property, condition (financial or otherwise), legal, financial or corporate or similar affairs or operations of any Group
Member as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request. 


 
 

ARTICLE VII    
    
    AFFIRMATIVE COVENANTS    
    


        Each of Holdings and Borrower (and, to the extent set forth in any other Loan Document, each other Loan Party) agrees with the Lenders, the L/C Issuers and the
Administrative Agent to each of the following, as long as any Obligation or any Commitment remains outstanding: 


        Section 7.1    Maintenance of Corporate Existence.    Each Group Member shall (a) preserve and maintain
its legal existence, except in the consummation of transactions expressly permitted by Sections 8.4 and  8.7, and (b) preserve and maintain it rights
(charter and statutory), privileges, franchises and Permits necessary or desirable in the conduct of
its business, except, in the case of this clause (b), where the failure to do so would not, in the aggregate, have a Material Adverse Effect. 


        Section 7.2    Compliance with Laws, Etc.    Each Group Member shall comply with all applicable Requirements of
Law, Contractual Obligations and Permits, except for such failures to comply that would not, in the aggregate, have a Material Adverse Effect. 



        Section 7.3    Payment of Obligations.    Each Group Member shall pay or discharge before they become due
(a) all material claims, taxes, assessments, charges and levies imposed by any Governmental Authority and (b) all other lawful claims that if unpaid would, by the operation of applicable
Requirements of Law, become a Lien (other than a Permitted Lien) upon any property of any Group Member, except, in each case, for those whose amount or validity is being contested in good faith by
proper proceedings diligently conducted and for which adequate reserves are maintained on the books of the appropriate Group Member in accordance with GAAP. 


54









  





        Section 7.4    Maintenance of Property.    Each Group Member shall maintain and preserve (a) in good
working order and condition all of its property necessary in the conduct of its business and (b) all rights, permits, licenses, approvals and privileges (including all Permits) necessary, used
or useful, whether because of its ownership, lease, sublease or other operation or occupation of property or other conduct of its business, and shall make all necessary or appropriate filings with,
and give all required notices to, Government Authorities, except for such failures to maintain and preserve the items set forth in clauses (a)
and (b) above, and the failures to make filings or give notices, that would not in the aggregate have a Material Adverse Effect. 



        Section 7.5    Maintenance of Insurance.    Each Group Member shall (a) maintain or cause to be
maintained in full force and effect all policies of insurance of any kind with respect to the property and businesses of the Group Members (including policies of life, fire, theft, errors and
omissions, product liability, public liability, property damage, other casualty, employee fidelity, workers' compensation, business interruption and employee health and welfare insurance) with
financially sound and reputable insurance companies or associations (in each case that are not Affiliates of Borrower) of a nature and providing such coverage as is sufficient and as is customarily
carried by businesses of the size and character of the business of the Group Members and (b) cause all such insurance relating to any property or business of any Loan Party to name the
Administrative Agent on behalf of the Secured Parties as additional insured or loss payee, as appropriate, and to provide that no cancellation, material addition in amount or material change in
coverage shall be effective until after 30 days' notice thereof to the Administrative Agent; provided,  however, that with respect to business
interruption insurance, Borrower's obligation to cause such policies to name the Administrative Agent as loss
payee or additional insured shall be limited to Borrower's use of its commercially reasonable efforts. 



        Section 7.6    Keeping of Books.    The Group Members shall keep proper books of record and account, in which
full, true and correct entries shall be made in accordance with GAAP and all other applicable Requirements of Law of all financial transactions and the assets and business of each Group Member. 


        Section 7.7    Access to Books and Property.    Each Group Member shall permit the Administrative Agent, the
Lenders and any Related Person of any of them, at any reasonable time during normal business hours and with reasonable advance notice (except that, during the continuance of an Event of Default, no
such notice shall be required) to: 



        (a)   visit
and inspect the property of each Group Member and examine and make copies of and abstracts from, the corporate, partnership, financial, operating and other books
and records of each Group Member; provided, however, that in the absence of any Event of Default
hereunder, such visits shall (i) be undertaken solely by Administrative Agent and its Related Persons, and shall occur no more than twice in any 12-month period, or (ii) be
undertaken by another Lender at its sole
expense after the Company's completion of its own audit and no more than once in any 12-month period, 


        (b)   discuss
the affairs, finances and accounts of each Group Member with any officer or director of any Group Member, and 


        (c)   communicate
directly with any registered certified public accountants (including the Group Members' Accountants) of any Group Member. 




Each
Group Member shall maintain the authorization of their respective registered certified public accountants (including the Group Members' Accountants) to communicate directly with the
Administrative Agent, the Lenders and their Related Persons and to disclose to the Administrative Agent, the Lenders and their Related Persons all financial statements and other financial documents
and information as they might have and the Administrative Agent or any Lender reasonably requests with respect to any Group Member. 


55







 

        Section 7.8    Environmental.    Each Group Member shall comply with, and maintain its real property, whether
owned, leased, subleased or otherwise operated or occupied, in compliance with, all applicable Environmental Laws (including by implementing any Remedial Action necessary to achieve such compliance or
that is required by orders and directives of any Governmental Authority) except for failures to comply that would not, in the aggregate, have a Material Adverse Effect or be reasonably likely to cause
a Material Adverse Effect. Without limiting the foregoing, if an Event of Default is continuing or if the Administrative Agent at any time has a reasonable basis to believe that there exist violations
of Environmental Laws by any Group Member or that there exist any Environmental Liabilities, in each case, that would have or be reasonably likely to cause, in the aggregate, a Material Adverse
Effect, then each Group Member shall, promptly upon receipt of request from the Administrative Agent, cause the performance of, and allow the Administrative Agent and its Related Persons access to
such real property for the purpose of conducting, such environmental audits and assessments, including subsurface sampling of soil and groundwater, and cause the preparation of such reports, in each
case as the Administrative Agent may from time to time reasonably request. Such audits, assessments and reports, to the extent not conducted by the Administrative Agent or any of its Related Persons,
shall be conducted and prepared by reputable environmental consulting firms reasonably acceptable to the Administrative Agent and shall be in form and substance reasonably acceptable to the
Administrative Agent. 


        Section 7.9    Use of Proceeds.    The proceeds of the Loans shall be used by Borrower (and, to the extent
distributed to them by Borrower, each other Group Member) solely (a) to pay the Specified Dividend, (b) for the payment of transaction costs, fees and expenses incurred in connection
with the Loan
Documents and the transactions contemplated therein and (c) for working capital and general corporate purposes. 



        Section 7.10    Additional Collateral and Guaranties.    To the extent not delivered to the Administrative
Agent on or before the Closing Date (including in respect of after-acquired property and Persons that become Subsidiaries of any Loan Party after the Closing Date), each Group Member shall, promptly,
do each of the following, unless otherwise agreed by the Administrative Agent: 



        (a)   deliver
to the Administrative Agent such modifications to the terms of the Loan Documents (or, to the extent applicable as determined by the Administrative Agent, such
other documents), in each case in form and substance reasonably satisfactory to the Administrative Agent and as the Administrative Agent reasonably deems necessary or advisable in order to ensure the
following: 



          (i)  (A)
each Subsidiary of any Loan Party that has entered into Guaranty Obligations with respect to any Indebtedness of Borrower and (B) each Wholly Owned
Subsidiary of any Loan Party shall guaranty, as primary obligor and not as surety, the payment of the Obligations of Borrower; and 


         (ii)  each
Loan Party (including any Person required to become a Guarantor pursuant to clause (i) above) shall
effectively grant to the Administrative Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in all of its property, including all of its Stock and Stock
Equivalents and other Securities owned by it, as security for the Obligations of such Loan Party; 




provided, however, that, unless Borrower and the Administrative Agent otherwise agree, in no event shall
(x) any Excluded Foreign Subsidiary be required to guaranty the payment of any Obligation, (y) the Loan Parties, individually or collectively, be required to pledge in excess of 66% of
the outstanding Voting Stock of any Excluded Foreign Subsidiary or (z) a security interest be required to be granted on any property of any Excluded Foreign Subsidiary as security for any
Obligation; 



56







 

        (b)   deliver
to the Administrative Agent all documents representing all Stock, Stock Equivalents and other Securities pledged pursuant to the documents delivered pursuant to  clause (a) above, together with
undated powers or endorsements duly executed in blank; 



        (c)   upon
request of the Administrative Agent, deliver to it a Mortgage on any real property owned by any Loan Party and on any of its leases, together with all Mortgage
Supporting Documents relating thereto (or, if such real property or the real property subject to such lease is located in a jurisdiction
outside the United States, similar documents deemed appropriate by the Administrative Agent to obtain the equivalent in such jurisdiction of a first-priority mortgage on such real property or lease); 


        (d)   to
take all other actions reasonably necessary or advisable to ensure the validity or continuing validity of any guaranty for any Obligation or any Lien securing any
Obligation, to perfect, maintain, evidence or enforce any Lien securing any Obligation or to ensure such Liens have the same priority as that of the Liens on similar Collateral set forth in the Loan
Documents executed on the Closing Date, including the filing of UCC financing statements in such jurisdictions as may be required by the Loan Documents or applicable Requirements of Law or as the
Administrative Agent may otherwise reasonably request; and 


        (e)   deliver
to the Administrative Agent legal opinions relating to the matters described in this Section 7.10, which
opinions shall be as reasonably required by, and in form and substance and from counsel reasonably satisfactory to, the Administrative Agent. 




        Section 7.11    Deposit Accounts; Securities Accounts and Cash Collateral Accounts.    (a) The Borrower
and each of its Subsidiaries (other than Excluded Foreign Subsidiaries that are not required to provide a guaranty of the Obligations) shall, within 30 days following the Closing Date (or such
later date as the Administrative Agent may agree to in writing): 



          (i)  deposit
all of its cash in deposit accounts that are Controlled Deposit Account, and 


         (ii)  deposit
all of its Cash Equivalents in securities accounts that are Controlled Securities Accounts, 




in
each case except for cash and Cash Equivalents the aggregate value of which does not exceed $25,000 at any time, and provided,  however, that each Group
Member may maintain payroll accounts and may maintain zero-balance accounts for the purpose of managing local
disbursements. 


        (b)   The
Administrative Agent shall not have any responsibility for, or bear any risk of loss of, any investment or income of any funds in any Cash Collateral Account. At any
time and from time to time after and during the continuance of an Event of Default, the Administrative Agent may apply funds then held in such Cash Collateral Accounts to the payment of Obligations in
accordance with Section 2.12. During the continuance of an Event of Default, no Group Member and no Person claiming on behalf of or through any
Group Member shall have any right to demand payment of any funds held in any Cash Collateral Account. 


        Section 7.12    Payment of Taxes.    Each Tax Affiliate shall properly prepare and file all material tax
returns and shall timely pay and discharge (or cause to be paid and discharged) all material taxes, assessments and governmental and other charges or levies imposed upon it or upon its income or
profits, or upon property belonging to it; provided that such Tax Affiliate shall not be required to pay any such tax, assessment, charge or levy that is being contested in good faith by appropriate
proceedings and for which the affected Tax Affiliate shall have set aside on its books adequate reserves with respect thereto in conformance with GAAP. 


57







 


 
 

ARTICLE VIII    
    
    NEGATIVE COVENANTS    
    



        Borrower and each Parent Guarantor (and, to the extent set forth in any other Loan Document, each other Loan Party) agrees with the Lenders, the L/C Issuers and
the Administrative Agent to each of the following, as long as any Obligation or any Commitment remains outstanding: 


        Section 8.1    Indebtedness.    No Group Member shall, directly or indirectly, incur or otherwise remain liable
with respect to or responsible for, any Indebtedness except for the following: 



        (a)   the
Obligations; 


        (b)   Indebtedness
existing on the date hereof and set forth on Schedule 8.1, together with any Permitted Refinancing of
any Indebtedness permitted pursuant to this clause (b); 


        (c)   Indebtedness
consisting of Capitalized Lease Obligations and purchase money Indebtedness, in each case incurred by any Group Member (other than Holdings) to finance the
acquisition, repair, improvement or construction of fixed or capital assets of such Group Member, together with any Permitted Refinancing of any Indebtedness permitted pursuant to this  clause (c);
provided, however, that
(i) the aggregate outstanding principal amount of all such Indebtedness does not exceed $500,000 at any time and (ii) the principal amount of such Indebtedness does not exceed the lower
of the cost or fair market value of the property so acquired or built or of such repairs or improvements financed, whether directly or through a Permitted Refinancing, with such Indebtedness (each
measured at the time such acquisition, repair, improvement or construction is made); 


        (d)   Indebtedness
of Holdings on account of Employee Stock Buybacks; provided,  however, that the amount of such Indebtedness incurred shall not exceed $150,000 in any Fiscal
Year and $200,000 in the aggregate for all Fiscal Years;
and provided further, that all such Indebtedness incurred under this clause (d) shall be subordinated to the payment in full of the Obligations
on terms and conditions satisfactory to the Administrative Agent; 


        (e)   intercompany
loans owing to any Group Member and constituting Permitted Investments of such Group Member; 


        (f)    obligations
under Hedging Agreements entered into for the sole purpose of hedging in the normal course of business and consistent with industry practices; 


        (g)   Indebtedness
in respect of appeal, bid, performance or surety or similar bonds, workers' compensation claims, self-insurance obligations and bankers
acceptances issued for the account of any Group Member in the ordinary course of business, including guarantees or obligations of any Group Member with respect to letters of credit supporting such
bid, performance or surety bonds, workers' compensation claims, self-insurance obligations and bankers acceptances (in each case other than for an obligation for money borrowed); 


        (h)   Indebtedness
arising in connection with endorsement of instruments for deposit in the ordinary course of business; 


        (i)    Guaranty
Obligations of (i) any Loan Party with respect to Indebtedness of any other Loan Party, or (ii) any Loan Party with respect to Indebtedness of any
Group Member that is not a Loan Party; provided that the aggregate outstanding amount of all Indebtedness guaranteed pursuant to this clause (ii) shall not exceed $50,000 at any time; 


        (j)    Indebtedness
of any Loan Party assumed in connection with a Permitted Acquisition in an aggregate amount not greater than $250,000;  provided that (A) after giving pro forma effect to the assumption or existence
of such Indebtedness and the use of proceeds thereof, the Loan
Parties 



58







 




would,
on a pro forma basis, for the Fiscal Quarter immediately preceding such assumption, be in compliance with the requirements of Article V
and the proviso of clause (i) of the definition of Permitted Acquisition, (B) the Loan Parties shall, prior to such assumption, have provided to the Administrative Agent calculations
showing compliance with this clause (j), (C) the credit documentation with respect to such Indebtedness shall not contain covenants or default provisions relating to any Loan Party that
are more restrictive than the covenants and default provisions contained in the Loan Documents, (D) no Default or Event of Default exists or would exist immediately after giving effect thereto,
and (E) for purposes of this clause (j), the Loan Party shall be deemed to have assumed any Indebtedness of the Person acquired pursuant to such Permitted Acquisition at such time
outstanding; 


        (k)   any
unsecured Subordinated Debt that the Administrative Agent permits in its sole discretion; and 


        (l)    any
unsecured Indebtedness of any Group Member; provided, however, that
the aggregate outstanding principal amount of all such unsecured Indebtedness shall not exceed $250,000 at any time. 




        Section 8.2    Liens.    No Group Member shall incur, maintain or otherwise suffer to exist any Lien upon or
with respect to any of its property, whether now owned or hereafter acquired, or assign any right to receive income or profits, except for the following: 



        (a)   Liens
created pursuant to any Loan Document; 


        (b)   Customary
Permitted Liens of Group Members; 


        (c)   Liens
existing on the date hereof and set forth on Schedule 8.2; 


        (d)   Liens
on the property of Borrower or any of its Subsidiaries securing Indebtedness permitted hereunder in reliance upon  Section 8.1(c); provided,
however, that
(i) such Liens exist prior to the acquisition of, or attach substantially simultaneously with, or within 90 days after, the acquisition, repair, improvement or construction of, such
property financed, whether directly or through a Permitted Refinancing, by such Indebtedness and (ii) such Liens do not extend to any property of any Group Member other than the property (and
proceeds thereof) acquired or built, or the improvements or repairs, financed, whether directly or through a Permitted Refinancing, by such Indebtedness; 


        (e)   Liens
on the property of Borrower or any of its Subsidiaries securing the Permitted Refinancing of any Indebtedness secured by any Lien on such property permitted
hereunder in reliance upon clause (c) or (d) above or this  clause (e) without any change in the
property subject to such Liens; 



        (f)    any
Lien existing on any asset of any Person at the time such Person becomes a Subsidiary of any Loan Party in connection with a Permitted Acquisition, provided that
(A) such Lien shall be less than the fair market value of the asset secured thereby, (B) such Lien shall not have been created in contemplation of such event, (C) such Lien does
not at any time encumber any property other than the property financed by such applicable Indebtedness, (D) such Lien does not extend to any inventory or accounts of any Loan Party, and
(E) the amount of the Indebtedness secured thereby is not increased; and 


        (g)   other
Liens on any property of Borrower or any of its Subsidiaries securing any of their Indebtedness or their other liabilities;  provided, however, that the
aggregate outstanding principal amount of all such Indebtedness and other
liabilities shall not exceed $50,000 at any time. 



59







 





        Section 8.3    Investments.    No Group Member shall make or maintain, directly or indirectly, any Investment
except for the following: 



        (a)   Investments
existing on the date hereof and set forth on Schedule 8.3; 


        (b)   Investments
in cash and Cash Equivalents; 


        (c)   (i) endorsements
for collection or deposit in the ordinary course of business consistent with past practice, (ii) extensions of trade credit (other than to
Affiliates of Borrower) arising or acquired in the ordinary course of business and (iii) Investments received in settlements in the ordinary course of business of such extensions of trade
credit; 


        (d)   Investments
made as part of a Permitted Acquisition; 


        (e)   Investments
by (i) Holdings in General Partner and Limited Partner, (ii) General Partner and Limited Partner in Borrower, (iii) Borrower in any Loan
Party that is a Subsidiary of Borrower, (iv) any Group Member that is not a Loan Party in any Group Member (other than a Parent Guarantor) or in any joint venture or (v) Borrower or any
Subsidiary of Borrower in any Group Member that is not a Loan Party or in any joint venture; provided,  however, that the aggregate outstanding amount of
all Investments permitted pursuant to this  clause (v) shall not exceed $25,000 at any time; and provided,  further, that any Investment consisting of loans or advances to any Loan Party pursuant to  clause (iv) above shall be subordinated in full to the payment of the
Obligations of such Loan Party on terms and conditions satisfactory to the
Administrative Agent; 


        (f)    loans
or advances to employees of Borrower or any of its Subsidiaries to finance travel, entertainment and relocation expenses and other ordinary business purposes in
the ordinary course of business as presently conducted; provided, however, that the aggregate
outstanding principal amount of all loans and advances permitted pursuant to this clause (f) shall not exceed $50,000 at any time; 


        (g)   Investments
in Excluded Foreign Subsidiaries in an aggregate amount not to exceed $250,000 for all Excluded Foreign Subsidiaries; 



        (h)   equity
interests of an account debtor distributed to a Loan Party under such account debtor's confirmed chapter 11 plan of reorganization in respect of such Loan Party's
allowed unsecured claim in such account debtor's case under chapter 11 of the Bankruptcy Code; 


        (i)    to
the extent they accrue, assets accruing or arising under any Hedging Agreement; and 


        (j)    any
Investment by Borrower or any of its Subsidiaries; provided, however,
that the aggregate outstanding amount of all such Investments shall not exceed $250,000 at any time. 




        Section 8.4    Asset Sales.    No Group Member shall Sell any of its property (other than cash) or issue shares
of its own Stock, except for the following: 



        (a)   Sales
of inventory in the ordinary course of business and, in each case to the extent entered into in the ordinary course of business and made to a Person that is not an
Affiliate of Borrower, (i) Sales of Cash Equivalents or property that has become obsolete or worn out and (ii) non-exclusive licenses of Intellectual Property; 



        (b)   Intentionally
Omitted; 


        (c)   Intentionally
Omitted; 


        (d)   (i) any
Sale or issuance by Holdings of its own Stock, (ii) any Sale or issuance by Borrower of its own Stock to a Loan Party that is a Subsidiary of
Holdings, (iii) any Sale or issuance by any Subsidiary of Borrower of its own Stock to any Group Member (other than 



60







 




Holdings),  provided, however, that the proportion of such Stock and of each class of such Stock (both on
an outstanding and fully-diluted basis) held by the Loan Parties, taken as a whole, does not change as a result of such Sale or issuance and (iv) to the extent necessary to satisfy any
Requirement of Law in the jurisdiction of incorporation of any Subsidiary of Borrower, any Sale or issuance by such Subsidiary of its own Stock constituting directors' qualifying shares or nominal
holdings; and 


        (e)   as
long as no Default is continuing or would result therefrom, any Sale of property of, or Sale or issuance of its own Stock by, any Group Member (other than Holdings)
for fair market value payable in cash upon such sale; provided, however, that the aggregate
consideration received during any Fiscal Year for all such Sales shall not exceed $50,000. 




Without
limiting the foregoing, no Group Member shall engage in any Sale and Leaseback Transaction. 


        Section 8.5    Restricted Payments.    No Group Member (other than Holdings) shall directly or indirectly
declare, order, pay, make or set apart any sum for any Restricted Payment except for the following (and Holdings shall not use the proceeds of any Restricted Payment permitted pursuant to  clause (c) below other than as set forth in such clause (c)):
 



        (a)   (i) Restricted
Payments by any Subsidiary of Borrower to Borrower or any Wholly Owned Subsidiary of Borrower and (ii) dividends and distributions by any
Subsidiary of Borrower that is not a Loan Party to any holder of its Stock, to the extent made to all such holders ratably according to their ownership interests in such Stock; 


        (b)   the
Specified Dividend (including the Permitted Redemptions); 


        (c)   cash
distributions on the Stock of Borrower to General Partner and Limited Partner, and cash distributions by General Partner and Limited Partner to Holdings, paid and
declared solely for the purpose of funding the following: 



          (i)  payments
by Holdings in respect of taxes currently payable by Holdings in respect of the other Group Members; provided,
that each Group Member's aggregate contribution to taxes as a result of filing a consolidated or combined return by Holdings or of having its income otherwise includable on a tax return of Holdings
shall not be greater than it would have been had such Group Member filed a stand-alone return; 



         (ii)  ordinary
operating expenses of Holdings; provided, however, that the
amount of such cash dividends paid in any Fiscal Year shall not exceed $100,000 in the aggregate; and 


        (iii)  for
Employee Stock Buybacks; provided, however, that the amount of such
cash distributions shall not exceed $100,000 in any Fiscal Year and $300,000 in the aggregate for all Fiscal Years; and provided further that the
aggregate amount of all cash distributions for Employee Stock Buybacks, together with the Indebtedness incurred under Section 8.1(d) for Employee Stock Buybacks, shall not exceed $250,000 in
any Fiscal Year and $500,000 in the aggregate for all Fiscal Years; 





provided, however, that no action that would otherwise be permitted pursuant to  clauses (ii) and (iii) of this clause (c) shall
be permitted if a Default or Event of Default is then continuing or would result therefrom. 



        Section 8.6    Prepayment of Indebtedness.    No Group Member shall (x) prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof any Indebtedness, (y) set apart any property for such purpose, whether directly or indirectly and whether to a sinking fund,
a similar fund or otherwise, or (z) make any payment in violation of any subordination terms of any Indebtedness; 


61







 



 provided, however, that each Group Member may, to the extent otherwise permitted by the Loan Documents, do each of the
following: 



        (a)   (i) prepay
the Obligations, and (ii) consummate a Permitted Refinancing; 


        (b)   prepay,
redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof (or set apart any property for such purpose) (A) in the case of any
Group Member that is not a Loan Party, any Indebtedness owing by such Group Member to any other Group Member (other than the Parent Guarantors) and (B) otherwise, any Indebtedness owing to any
Loan Party (other than to any of the Parent Guarantors); and 


        (c)   make
regularly scheduled or otherwise required repayments or redemptions of Indebtedness (other than Indebtedness owing to any Affiliate of Borrower) but only, in the
case of Subordinated Debt, to the extent permitted by the subordination provisions thereof. 




        Section 8.7    Fundamental Changes.    No Group Member shall (a) merge, consolidate or amalgamate with
any Person, (b) acquire all or substantially all of the Stock or Stock Equivalents of any Person or (c) acquire any brand or all or substantially all of the assets of any Person or all
or substantially all of the assets constituting any line of business, division, branch, operating division or other unit operation of any Person, in each case except for the following: (x) to
consummate any Permitted Acquisition, (y) the merger, consolidation or amalgamation of any Subsidiary of Borrower into any Loan Party (excluding any Parent Guarantor) and (z) the merger,
consolidation or amalgamation of any Group Member (other than Holdings) for the sole purpose, and with the sole material effect, of changing its State of organization within the United States;  provided,
however, that (A) in the case of any merger, consolidation or amalgamation involving
Borrower, Borrower shall be the surviving Person and (B) in the case of any merger, consolidation or amalgamation involving any other Loan Party, a Loan Party shall be the surviving entity and
all actions required to maintain the perfection of the Lien of the Administrative Agent on the Stock or property of such Loan Party shall have been made. 


        Section 8.8    Change in Nature of Business.    (a) Except as permitted by Section 8.8(b), no Group
Member shall carry on any business, operations or activities (whether directly, through a joint venture, in connection with a Permitted Acquisition or otherwise) substantially different from those
carried on by Borrower and its Subsidiaries at the date hereof and business, operations and activities reasonably related thereto. 



        (b)   None
of the Parent Guarantors shall engage in any business, operations or activity, or hold any property, other than (i) Holdings holding Stock and Stock
Equivalents in General Partner and Limited Partner, (ii) General Partner and Limited Partner owning Stock and Stock Equivalents in Borrower, (iii) issuing, selling and redeeming its own
Stock, (iv) paying taxes, (v) holding directors', shareholders' and partners' meetings, preparing corporate and similar records and other activities required to maintain its separate
corporate, partnership or other legal structure, (vi) preparing reports to, and preparing and making notices to and filings with, Governmental Authorities and to its holders of Stock and Stock
Equivalents, (vii) receiving, and holding proceeds of, Restricted Payments from Borrower and its Subsidiaries and distributing the proceeds thereof to the extent permitted in  Section 8.5 and
(viii) as necessary to consummate any Permitted Acquisition or any other action permitted hereunder.
 


        Section 8.9    Transactions with Affiliates.    No Group Member shall, except as otherwise expressly permitted
herein, enter into any other transaction directly or indirectly with, or for the benefit of, any Affiliate of Borrower that is not a Loan Party (including Guaranty Obligations with respect to any
obligation of any such Affiliate), except for (a) transactions in the ordinary course of business on a basis no less favorable to such Group Member as would be obtained in a comparable arm's
length transaction with a Person not an Affiliate of Borrower, (b) Restricted Payments, the proceeds of which, 


62







 



if
received by Holdings, are used as required by Section 8.5 and (c) reasonable salaries and other reasonable director or employee
compensation to officers and directors of any Group Member. 


        Section 8.10    Third-Party Restrictions on Indebtedness, Liens, Investments or Restricted Payments.    No
Group Member shall incur or otherwise suffer to exist or become effective or remain liable on or responsible for any Contractual Obligation limiting the ability of (a) any Subsidiary of
Borrower to make Restricted Payments to, or Investments in, or repay Indebtedness or otherwise Sell property to, any Group Member (other than any Parent Guarantor) or (b) any Group Member to
incur or suffer to exist any Lien upon any property of any Group Member, whether now owned or hereafter acquired, securing any of its Obligations (including any "equal and ratable" clause and any
similar Contractual Obligation requiring, when a Lien is granted on any property, another Lien to be granted on such property or any other property), except, in respect of each of  clauses (a) and
(b) above, (x) pursuant to the Loan Documents, and (y) limitations on
Liens (other than those securing any Obligation) on any property whose acquisition, repair, improvement or construction is financed by purchase money Indebtedness, Capitalized Lease Obligations or
Permitted Refinancings permitted pursuant to Section 8.1(b) or (c) set forth in the Contractual
Obligations governing such Indebtedness, Capitalized Lease Obligations or Permitted Refinancing or Guaranty Obligations with respect thereto. 


        Section 8.11    Modification of Certain Documents.    No Group Member shall do any of the following: 



        (a)   waive
or otherwise modify any term of any Constituent Document of, or otherwise change the capital structure of, any Group Member (including the terms of any of their
outstanding Stock or Stock Equivalents), except for those modifications and waivers that do not materially affect the rights and privileges of any Group Member and do not materially affect the
interests of any Secured Party under the Loan Documents or in the Collateral; 


        (b)   waive
or otherwise modify any term of any Subordinated Debt if the effect thereof on such Subordinated Debt is to (i) increase the interest rate,
(ii) change the due dates for principal or interest, other than to extend such dates, (iii) modify any default or event of default, other than to delete it or make it less restrictive,
(iv) add any covenant with respect thereto, (v) modify any subordination provision, (vi) modify any redemption or prepayment provision, other than to extend the dates therefor or
to reduce the premiums payable in connection therewith or (vii) materially increase any obligation of any Group Member or confer additional rights to the holder of such Subordinated Debt in a
manner adverse to any Group Member or any Secured Party; 




        Section 8.12    Accounting Changes; Fiscal Year.    No Group Member shall (a) change its accounting
treatment or reporting practices, except as required by GAAP or any Requirement of Law, or (b) its fiscal year or its method for determining fiscal quarters or fiscal months, except that a
Group Member may change its accounting treatment or reporting practices in a manner permitted by GAAP if it receives the prior written consent of the Administrative Agent, which consent shall not be
unreasonably withheld. 


        Section 8.13    Margin Regulations.    No Group Member shall use all or any portion of the proceeds of any
credit extended hereunder to purchase or carry margin stock (within the meaning of Regulation U of the Federal Reserve Board) in contravention of Regulation U of the Federal Reserve
Board. 


        Section 8.14    Compliance with ERISA.    No ERISA Affiliate shall cause or suffer to exist (a) any
event that could result in the imposition of a Lien with respect to any Title IV Plan or Multiemployer Plan or (b) any other ERISA Event, that would, in the aggregate, have a Material Adverse
Effect. No Group Member shall cause or suffer to exist any event that could result in the imposition of a Lien with respect to any Benefit Plan. 


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        Section 8.15    Hazardous Materials.    No Group Member shall cause or suffer to exist any Release of any
Hazardous Material at, to or from any real property owned, leased, subleased or otherwise operated or occupied by any Group Member that would violate any Environmental Law, form the basis for any
Environmental Liabilities or otherwise adversely affect the value or marketability of any real property (whether or not owned by any Group Member), other than such violations, Environmental
Liabilities and effects that would not, in the aggregate, have or be reasonably likely to cause a Material Adverse Effect. 


 
 

ARTICLE IX    
    
    EVENTS OF DEFAULT    
    



        Section 9.1    Definition.    Each of the following shall be an Event of Default: 



        (a)   Borrower
shall fail to pay (i) any principal of any Loan advanced to Borrower or any L/C Reimbursement Obligation of Borrower or any other Loan Party when the
same becomes due and payable or (ii) any interest on any Loan advanced to Borrower, any fee under any Loan Document or any other Obligation (other than those set forth in  clause (i) above) and,
 in the case of this clause (ii), such non-payment
continues for a period of 3 Business Days after the due date therefor; or 



        (b)   any
representation, warranty or certification made or deemed made by or on behalf of any Loan Party in any Loan Document or by or on behalf of any Loan Party (or any
Responsible Officer thereof) in connection with any Loan Document (including in any document delivered in connection with any Loan Document) shall prove to have been incorrect in any material respect
when made or deemed made; or 


        (c)   any
Loan Party shall fail to comply with (i) any provision of Article V (Financial
Covenants), Section 6.1 (Financial Statements),  6.2(a)(i) (Other Events), 7.1
(Maintenance of Corporate Existence), 7.5 (Maintenance of
Insurance), 7.9 (Application of Loan Proceeds) or  Article VIII (Negative Covenants) or (ii) any other provision of any Loan Document if, in
the case of this clause (ii), such failure shall remain unremedied for 30 days after the earlier of (A) the date on which a
Responsible Officer of Borrower becomes aware of such failure and (B) the date on which notice thereof shall have been given to Borrower by the Administrative Agent or the Required Lenders; or 



        (d)   (i) any
Group Member shall fail to make any payment when due (whether due because of scheduled maturity, required prepayment provisions, acceleration, demand or
otherwise) on any Indebtedness of any Group Member (other than the Obligations) and, in each case, such failure relates to Indebtedness having a principal amount of $100,000 or more, (ii) any
other event shall occur or condition shall exist under any Contractual Obligation relating to any such Indebtedness, if the effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness or (iii) any such Indebtedness shall become or be declared to be due and payable, or be required to be prepaid, redeemed, defeased or
repurchased (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof; or 



        (e)   (i) any
Group Member shall generally not pay its debts as such debts become due, shall admit in writing its inability to pay its debts generally or shall make a
general assignment for the benefit of creditors, (ii) any proceeding shall be instituted by or against any Group Member seeking to adjudicate it a bankrupt or insolvent or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, composition of it or its debts or any similar order, in each case under any Requirement of Law relating to bankruptcy,
insolvency or reorganization or relief of debtors or seeking the entry of an order for relief or the appointment of a custodian, receiver, trustee, conservator, liquidating agent, liquidator, other
similar official or other official 



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with
similar powers, in each case for it or for any substantial part of its property and, in the case of any such proceedings instituted against (but not by or with the consent of) any Group Member,
either such proceedings shall remain undismissed or unstayed for a period of 60 days or more or any action sought in such proceedings shall occur, (iii) any Group Member shall take any
corporate or similar action or any other action to authorize any action described in clause (i) or  (ii) above or (iv) the Loan Parties, taken as
a whole, or Borrower, individually, ceases to be Solvent; or 



        (f)    one
or more judgments, orders or decrees (or other similar process) shall be rendered against any Group Member (i)(A) in the case of money judgments, orders and decrees,
involving an aggregate amount (excluding amounts adequately covered by insurance payable to any Group Member, to the extent the relevant insurer has not denied coverage therefor) in excess of $100,000
or (B) otherwise, that would have, in the aggregate, a Material Adverse Effect and (ii)(A) enforcement proceedings shall have been commenced by any creditor upon any such judgment, order or
decree or (B) such judgment, order or decree shall not have been vacated or discharged for a period of 30 consecutive days and there shall not be in effect (by reason of a pending appeal or
otherwise) any stay of enforcement thereof; or 


        (g)   except
pursuant to a valid, binding and enforceable termination or release permitted under the Loan Documents and executed by the Administrative Agent or as otherwise
expressly permitted under any Loan Document, (i) any provision of any Loan Document shall, at any time after the delivery of such Loan Document, fail to be valid and binding on, or enforceable
against, any Loan Party thereto, or (ii) any Loan Document purporting to grant a Lien to secure any Obligation shall, at any time after the delivery of such Loan Document, fail to create a
valid and enforceable Lien on any Collateral purported to be covered thereby or such Lien shall fail or cease to be a perfected Lien with the priority required in the relevant Loan Document or any
Group Member shall state in writing that any of the events described in clause (i) or (ii) of
this paragraph shall have occurred; or 


        (h)   the
failure of any Group Member to comply with the terms of any subordination or intercreditor agreement or any subordination provisions of any note or other document
running to the benefit of Administrative Agent or Lenders, or if any such document becomes null and void or any Group Member denies further liability under any such document or provides notice to that
effect or any holder of Subordinated Debt or other obligation under such note, agreement or document shall so state in writing; or 


        (i)    there
shall occur any Change of Control. 




        Section 9.2    Remedies.    During the continuance of any Event of Default, the Administrative Agent may, and,
at the request of the Required Lenders, shall, in each case by notice to Borrower and in addition to any other right or remedy provided under any Loan Document or by any applicable Requirement of Law,
do each or any of the following: 



        (a)   declare
all or any portion of the Commitments terminated, whereupon the Commitments shall immediately be reduced by such portion or, in the case of a termination in
whole, shall terminate together with any obligation any Lender may have hereunder to make any Loan and any L/C Issuer may have hereunder to Issue any Letter of Credit; 


        (b)   declare
immediately due and payable all or part of the Obligations (including any accrued but unpaid interest thereon), whereupon the same shall become immediately due
and payable, without presentment, demand, protest or further notice or other requirements of any kind, all of which are hereby expressly waived by Holdings and Borrower (and, to the extent provided in
any other Loan Document, other Loan Parties); provided, however, that, effective immediately upon the
occurrence of any Event of Default specified in Section 9.1(e), (x) the Commitments of each 



65







 




Lender
to make Loans and the commitment of each L/C Issuer to Issue Letters of Credit shall each automatically be terminated and (y) the Obligations (including in each case all accrued but
unpaid interest thereon) shall automatically become and be due and payable, without presentment, demand, protest or further notice or other requirement of any kind, all of which are hereby expressly
waived by Borrower and each Parent Guarantor (and, to the extent provided in any other Loan Document, any other Loan Party), 


        (c)   take
the actions described in Section 9.3, and 


        (d)   exercise
any other remedies which may be available under the Loan Documents or applicable law. 




Notwithstanding
the foregoing, if at any applicable time there are only two Lenders, the Administrative Agent shall not take any of the actions describe in clauses (a) through (d) of
this Section 9.2 without the consent of the other Lender, such consent not to be unreasonably withheld or delayed. 


        Section 9.3    Actions in Respect of Letters of Credit.    (i) Upon the Revolving Credit Termination
Date, (ii) at any time after the Revolving Credit Termination Date when the aggregate funds on deposit in L/C Cash Collateral Accounts shall be less than 105% of the L/C Obligations for all
Letters of Credit at such time, (iii) during the continuance of any Event of Default and (iv) as required by Section 2.12, Borrower
shall pay to the Administrative Agent in immediately available funds at the Administrative Agent's office referred to in Section 12.11, for
deposit in a L/C Cash Collateral Account, the amount required so that, after such payment, the aggregate funds on deposit in the L/C Cash Collateral Accounts equals or exceeds 105% of the L/C
Obligations for all Letters of Credit at such time Issued for the account of Borrower (not to exceed, in the case of clause (iv) above, the payment to be applied pursuant to  Section 2.12 to
provide cash collateral for such Letters of Credit). Borrower hereby grants to the Administrative Agent, for the benefit of L/C
Issuers and each Lender with a participation in any Letters of Credit then outstanding, a security interest in such cash collateral to secure all of the L/C Obligations. Any such cash collateral shall
be made available by the Administrative Agent to the L/C Issuers to reimburse L/C Issuers for payments of drafts drawn under such Letters of Credit, and any fees, charges and expenses of L/C Issuers
with respect to such Letters of Credit and the unused portion thereof, after all such Letters of Credit shall have expired or been fully drawn upon, shall be applied to repay any other Obligations.
After all such Letters of Credit shall have expired or been fully drawn upon and all Obligations shall have been satisfied and paid in full, the balance, if any, of such cash collateral shall be
returned to Borrower. Borrower shall from time to time execute and deliver to Administrative Agent such further documents and instruments as Administrative Agent may request with respect to such cash
collateral. 


 
 

ARTICLE X    
    
    INTENTIONALLY OMITTED    
    


 
 

ARTICLE XI    
    
    THE ADMINISTRATIVE AGENT    
    


        Section 11.1    Appointment and Duties.    (a) Appointment of Administrative
Agent.    Each Lender and each L/C Issuer hereby appoints Churchill (together with any successor Administrative Agent pursuant to  Section 11.9) as the
Administrative Agent hereunder and authorizes the Administrative Agent to (i) execute and deliver the Loan Documents
and accept delivery thereof on its behalf from any Group Member, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform
the duties as are expressly delegated to the Administrative Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto. 


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        (b)    Duties as Collateral and Disbursing Agent.    Without limiting the generality of  clause (a) above, the Administrative Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders and L/C
Issuers), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders and the L/C Issuers with respect to all payments and collections arising in connection with
the Loan Documents (including in any proceeding described in Section 9.1(e)(ii) or any other bankruptcy, insolvency or similar proceeding), and
each Person making any payment in connection with any Loan Document to any Secured Party is hereby authorized to make such payment to the Administrative Agent, (ii) file and prove claims and
file other documents necessary or desirable to allow the claims of the Secured Parties with respect to any Obligation in any proceeding described in  Section 9.1(e)(ii) or any other bankruptcy,
insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Secured
Party), (iii) act as collateral agent for each Secured Party for purposes of the perfection of all Liens created by such agreements and all other purposes stated therein, (iv) manage,
supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created
by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to the Administrative Agent and the other Secured Parties with respect to the
Collateral, whether under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender
that has consented in writing to such amendment, consent or waiver; provided, however, that the
Administrative Agent hereby appoints, authorizes and directs each Lender and L/C Issuer to act as collateral sub-agent for the Administrative Agent, the Lenders and the L/C Issuers for
purposes of the perfection of all Liens with respect to the Collateral, including any deposit account maintained by a Loan Party with, and cash and Cash Equivalents held by, such Lender or L/C Issuer,
and may further authorize and direct the Lenders and the L/C Issuers to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the
Collateral subject thereto to the Administrative Agent, and each Lender and L/C Issuer hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed. 



        (c)    Limited Duties.    Under the Loan Documents, the Administrative Agent (i) is acting solely on behalf of
the Lenders and the L/C Issuers (except to the limited extent provided in Section 2.14(b) with respect to the Register and in  Section 11.11),
with duties that are entirely administrative in nature, notwithstanding the use of the defined term "Administrative Agent", the
terms "agent", "administrative agent" and "collateral agent" and similar terms in any Loan Document to refer to the Administrative Agent, which terms are used for title purposes only, (ii) is
not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender, L/C Issuer or any other Secured Party and
(iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender and L/C Issuer hereby waives and agrees not to assert
any claim against the Administrative Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (i) through  (iii) above.



        Section 11.2    Binding Effect.    Each Lender and each L/C Issuer agrees that (i) any action taken by
the Administrative Agent or the Required Lenders (or, if expressly required hereby, a greater proportion of
the Lenders) in accordance with the provisions of the Loan Documents, (ii) any action taken by the Administrative Agent in reliance upon the instructions of Required Lenders (or, where so
required, such greater proportion) and (iii) the exercise by the Administrative Agent or the Required Lenders (or, where so required, such greater proportion) of the powers set forth herein or
therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Secured Parties. 



        Section 11.3    Use of Discretion.    (a) No Action without
Instructions. The Administrative Agent shall not be required to exercise any discretion or take, or to omit to take, any action, including with respect to enforcement or
collection, except any action it is required to take or omit to take (i) under any 


67







 



Loan
Document or (ii) pursuant to instructions from the Required Lenders (or, where expressly required by the terms of this Agreement, a greater proportion of the Lenders). 



        (b)    Right Not to Follow Certain Instructions.    Notwithstanding  clause (a) above, the Administrative Agent shall not be
required to take, or to omit to take, any action (i) unless, upon demand, the
Administrative Agent receives an indemnification satisfactory to it from the Lenders (or, to the extent applicable and acceptable to the Administrative Agent, any other Secured Party) against all
Liabilities that, by reason of such action or omission, may be imposed on, incurred by or asserted against the Administrative Agent or any Related Person thereof or (ii) that is, in the opinion
of the Administrative Agent or its counsel, contrary to any Loan Document or applicable Requirement of Law. 



        Section 11.4    Delegation of Rights and Duties.    The Administrative Agent may, upon any term or condition it
specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any
trustee, co-agent, employee, attorney-in-fact and any other Person (including any Secured Party). Any such Person shall benefit from this  Article XI to the extent provided by the Administrative
Agent. 


        Section 11.5    Reliance and Liability.    (a) The Administrative Agent may, without incurring any liability
hereunder, (i) treat the payee of any Note as its holder until such Note has been assigned in accordance with Section 12.2(e),
(ii) rely on the Register to the extent set forth in Section 2.14, (iii) consult with any of its Related Persons and, whether or
not selected by it, any other advisors, accountants and other experts (including advisors to, and accountants and experts engaged by, any Loan Party) and (iv) rely and act upon any document and
information (including those transmitted by Electronic Transmission) and any telephone message or conversation, in each case believed by it to be genuine and transmitted, signed or otherwise
authenticated by the appropriate parties. 


        (b)   None
of the Administrative Agent and its Related Persons shall be liable for any action taken or omitted to be taken by any of them under or in connection with any Loan
Document, and each Lender, L/C Issuer, Borrower and each Parent Guarantor hereby waives and shall not assert (and Borrower and each Parent Guarantor shall cause each other Loan Party to waive and
agree not to assert) any right, claim or cause of action based thereon, except to the extent of liabilities resulting primarily from the gross negligence or willful misconduct of the Administrative
Agent or, as the case may be, such Related Person (each as determined in a final, non-appealable judgment by a court of competent jurisdiction) in connection with the duties expressly set
forth herein. Without limiting the foregoing, the Administrative Agent: 



          (i)  shall
not be responsible or otherwise incur liability for any action or omission taken in reliance upon the instructions of the Required Lenders or for the actions or
omissions of any of its Related Persons selected with reasonable care (other than employees, officers and directors of the Administrative Agent, when acting on behalf of the Administrative Agent); 


         (ii)  shall
not be responsible to any Secured Party for the due execution, legality, validity, enforceability, effectiveness, genuineness, sufficiency or value of, or the
attachment, perfection or priority of any Lien created or purported to be created under or in connection with, any Loan Document; 


        (iii)  makes
no warranty or representation, and shall not be responsible, to any Secured Party for any statement, document, information, representation or warranty made or
furnished by or on behalf of any Related Person, in or in connection with any Loan Document or any transaction contemplated therein, whether or not transmitted by the Administrative Agent, including
as to completeness, accuracy, scope or adequacy thereof, or for the scope, nature or results of any due diligence performed by the Administrative Agent in connection with the Loan Documents; and 



68







 




        (iv)  shall
not have any duty to ascertain or to inquire as to the performance or observance of any provision of any Loan Document, whether any condition set forth in any
Loan Document is satisfied or waived, as to the financial condition of any Loan Party or as to the existence or continuation or possible occurrence or continuation of any Default or Event of Default
and shall not be deemed to have notice or knowledge of such occurrence or continuation unless it has received a notice from Borrower, any Lender or L/C Issuer describing such Default or Event of
Default clearly labeled "notice of default" (in which case the Administrative Agent shall promptly give notice of such receipt to all Lenders); 




and,
for each of the items set forth in clauses (i) through (iv) above, each Lender, L/C Issuer,
Borrower and each Parent Guarantor hereby waives and agrees not to assert (and Borrower and each Parent Guarantor shall cause each other Loan Party to waive and agree not to assert) any right, claim
or cause of action it might have against the Administrative Agent based thereon. 



        Section 11.6    Administrative Agent Individually.    The Administrative Agent and its Affiliates may make
loans and other extensions of credit to, acquire Stock and Stock Equivalents of, engage in any kind of business with, any Loan Party or Affiliate thereof as though it were not acting the
Administrative Agent and may receive separate fees and other payments therefor. To the extent the Administrative Agent or any of its Affiliates makes any Loan or otherwise becomes a Lender hereunder,
it shall have and may exercise the same rights and powers hereunder and shall be subject to the same obligations and liabilities as any other Lender and the terms "Lender", "Revolving Credit Lender",
"Term Loan Lender", "Required Lender", "Required Revolving Credit Lender" and "Required Term Loan Lender" and any similar terms shall, except where otherwise expressly provided in any Loan Document,
include, without limitation, the Administrative Agent or such Affiliate, as the case may be, in its individual capacity as Lender, Revolving Credit Lender, Term Loan Lender or as one of the Required
Lenders, Required Revolving Credit Lenders or Required Term Loan Lenders, respectively. Any Person designated as Syndication Agent shall have no rights or duties hereunder other than those applicable
to any other Lender. 


        Section 11.7    Lender Credit Decision.    Each Lender and each L/C Issuer acknowledges that it shall,
independently and without reliance upon the Administrative Agent, any Lender or L/C Issuer or any of their Related Persons or upon any document (including the Disclosure Documents) solely or in part
because such document was transmitted by the Administrative Agent or any of its Related Persons, conduct its own independent investigation of the financial condition and affairs of each Loan Party and
make and continue to make its own credit decisions in connection with entering into, and taking or not taking any action under, any Loan Document or with respect to any transaction contemplated in any
Loan Document, in each case based on such documents and information as it shall deem appropriate. 


        Section 11.8    Expenses; Indemnities.    (a) Each Lender agrees to reimburse the Administrative Agent and each
of its Related Persons (to the extent not reimbursed by any Loan Party) promptly upon demand for such Lender's Pro Rata Share with respect to the Facilities of any costs and expenses (including fees,
charges and disbursements of financial, legal and other advisors and Other Taxes paid in the name of, or on behalf of, any Loan Party) that may be incurred by the Administrative Agent or any of its
Related Persons in connection with the preparation, syndication, execution, delivery, administration, modification, consent, waiver or enforcement (whether through negotiations, through any
work-out, bankruptcy, restructuring or other legal or other proceeding or otherwise) of, or legal advice in respect of its rights or responsibilities under, any Loan Document. 



        (b)   Each
Lender further agrees to indemnify the Administrative Agent and each of its Related Persons (to the extent not reimbursed by any Loan Party), from and against such
Lender's aggregate Pro Rata Share with respect to the Facilities of the Liabilities (including taxes, interests and penalties imposed for not properly withholding or backup withholding on payments
made to on or for the account of any Lender) that may be imposed on, incurred by or asserted against the Administrative 


69







 



Agent
or any of its Related Persons in any matter relating to or arising out of, in connection with or as a result of any Loan Document, any Related Document or any other act, event or transaction
related, contemplated in or attendant to any such document, or, in each case, any action taken or omitted to be taken by the Administrative Agent or any of its Related Persons under or with respect to
any of the foregoing; provided, however, that no Lender shall be liable to the Administrative Agent or
any of its Related Persons to the extent such liability has resulted primarily from the gross negligence or willful misconduct of the Administrative Agent or, as the case may be, such Related Person,
as determined by a court of competent jurisdiction in a final non-appealable judgment or order. 



        Section 11.9    Resignation of Administrative Agent or L/C Issuer.    (a) The Administrative Agent may resign
at any time by delivering notice of such resignation to the Lenders and Borrower, effective on the date set forth in such notice or, if not such date is set forth therein, upon the date such notice
shall be effective. If the Administrative Agent delivers any such notice, the Required Lenders shall have the right to appoint a successor Administrative Agent. If, within 30 days after the
retiring Administrative Agent having given notice of resignation no successor Administrative Agent has been appointed by the Required Lenders that has accepted such appointment, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent from among the Lenders. Each appointment under this clause (a) shall be subject to the prior consent
of Borrower, which may not be unreasonably withheld, conditioned or delayed but shall not be required during the continuance of a Default or Event of Default. 


        (b)   Effective
immediately upon its resignation, (i) the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documents,
(ii) the Lenders shall assume and perform all of the duties of the Administrative Agent until a successor Administrative Agent shall have accepted a valid appointment hereunder,
(iii) the retiring Administrative Agent and its Related Persons shall no longer have the benefit of any provision of any Loan Document other than with respect to any actions taken or omitted to
be taken while such retiring Administrative Agent was, or because such Administrative Agent had been, validly acting as Administrative Agent under the Loan Documents and (iv) subject to its
rights under Section 11.3, the retiring Administrative Agent shall take such action as may be reasonably necessary to assign to the successor
Administrative Agent its rights as Administrative Agent under the Loan Documents. Effective immediately upon its acceptance of a valid appointment as Administrative Agent, a successor Administrative
Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Administrative Agent under the Loan Documents. 



        (c)   Any
L/C Issuer may resign at any time by delivering notice of such resignation to the Administrative Agent, effective on the date set forth in such notice or, if no such
date is set forth therein, on the date such notice shall be effective. Upon such resignation, the L/C Issuer shall remain an L/C Issuer and shall retain its rights and obligations in its capacity as
such (other than any obligation to Issue Letters of Credit but including the right to receive fees or to have Lenders participate in any L/C Reimbursement Obligation thereof) with respect to Letters
of Credit Issued by such L/C Issuer prior to the date of such resignation and shall otherwise be discharged from all other duties and obligations under the Loan Documents. 



        Section 11.10    Release of Collateral or Guarantors.    Each Lender and L/C Issuer hereby consents to the
release and hereby directs the Administrative Agent to release (or, in the case of clause (b)(ii) below, release or subordinate) the following: 



        (a)   any
Subsidiary of Borrower from its guaranty of any Obligation of any Loan Party if all of the Securities of such Subsidiary owned by any Group Member are Sold in a Sale
permitted under the Loan Documents (including pursuant to a waiver or consent), to the extent that, after giving effect to such Sale, such Subsidiary would not be required to guaranty any Obligations
pursuant to Section 7.10; and 



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        (b)   any
Lien held by the Administrative Agent for the benefit of the Secured Parties against (i) any Collateral that is Sold by a Loan Party in a Sale permitted by
the Loan Documents (including pursuant to a valid waiver or consent), to the extent all Liens required to be granted in such Collateral pursuant to  Section 7.10 after giving effect to such Sale
have been granted, (ii) any property subject to a Lien permitted pursuant to
Section 8.2(d) or (e) and (iii) all of the Collateral and all Loan Parties, upon
(A) termination of the Commitments, (B) payment and satisfaction in full of all Loans, all L/C Reimbursement Obligations and all other Obligations that the Administrative Agent has been
notified in writing are then due and payable, (C) deposit of cash collateral with respect to all contingent Obligations (or, in the case of any L/C Obligation, a back-up letter of
credit has been issued), in amounts and on terms and conditions and with parties satisfactory to the Administrative Agent and each Indemnitee that is owed such Obligations and (D) to the extent
requested by the Administrative Agent, receipt by the Secured Parties of liability releases from the Loan Parties each in form and substance acceptable to the Administrative Agent. 




Each
Lender and L/C Issuer hereby directs the Administrative Agent, and the Administrative Agent hereby agrees, upon receipt of reasonable advance notice from Borrower, to execute and deliver or file
such documents and to perform other actions reasonably necessary to release the guaranties and Liens when and as directed in this Section 11.10. 


        Section 11.11    Additional Secured Parties.    Subject to  Section 12.2, the benefit of the provisions of the Loan
Documents directly relating to the Collateral or any Lien granted thereunder shall extend
to and be available to any Secured Party that is not a Lender or L/C Issuer as long as, by accepting such benefits, such Secured Party agrees, as among the Administrative Agent and all other Secured
Parties, that such Secured Party is bound by (and, if requested by the Administrative Agent, shall confirm such agreement in a writing in form and substance acceptable to the Administrative Agent)
this Article XI, Section 12.8 (Right of
Setoff), Section 12.9 (Sharing of Payments) and  Section 12.20
(Confidentiality) and the decisions and actions of the Administrative Agent and the
Required Lenders (or, where expressly required by the terms of this Agreement, a greater proportion of the Lenders) to the same extent a Lender is bound; provided, however, that, notwithstanding the
foregoing, (a) such Secured Party shall be bound by Section 11.8 only to the extent of Liabilities, costs and expenses with respect to or
otherwise relating to the Collateral held for the benefit of such Secured Party, in which case the obligations of such Secured Party thereunder shall not be limited by any concept of Pro Rata Share or
similar concept, (b) each of the Administrative Agent, the Lenders and the L/C Issuers shall be entitled to act at its sole discretion, without regard to the interest of such Secured Party,
regardless of whether any Obligation to such Secured Party thereafter remains outstanding, is deprived of the benefit of the Collateral, becomes unsecured or is otherwise affected or put in jeopardy
thereby, and without any duty or liability to such Secured Party or any such Obligation and (c) such Secured Party shall not have any right to be notified of, consent to, direct, require or be
heard with respect to, any action taken or omitted in respect of the Collateral or under any Loan Document. 


 
 

ARTICLE XII    
    
    MISCELLANEOUS    
    


        Section 12.1    Amendments, Waivers, Etc.    (a) No amendment or waiver of any provision of any Loan Document
and no consent to any departure by any Loan Party therefrom shall be effective unless the same shall be in writing and signed (i) in the case of an amendment, consent or waiver to cure any
ambiguity, omission, defect or inconsistency or granting a new Lien for the benefit of the Secured Parties or extending an existing Lien over additional property, by the Administrative Agent and
Borrower, (ii) in the case of any other waiver or consent, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and (iii) in the case of any
other amendment, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and Borrower; provided,  however, that
amendments to or waivers of any provision of 


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the
Fee Letter, the Control Agreements, the Landlord Waiver and the L/C Reimbursement require only the written consent of the Borrower, the Administrative Agent and any third parties thereto, and  provided,
further, that no amendment, consent or waiver described in clause (ii) or
(iii) above shall, unless in writing and signed by each Lender directly affected thereby (or by the Administrative Agent with the consent of such Lender), in addition to any other Person the
signature of which is otherwise required pursuant to any Loan Document, do any of the following: 



          (i)  waive
any condition specified in Section 3.1, except any condition referring to any other provision of any Loan
Document; 


         (ii)  increase
the Commitment of such Lender or subject such Lender to any additional obligation; 


        (iii)  reduce
(including through release, forgiveness, assignment or otherwise) (A) the principal amount of, the interest rate on, or any obligation of Borrower to
repay (whether or not on a fixed date), any outstanding Loan owing to such Lender, (B) any fee or accrued interest payable to such Lender or (C) if such Lender is a Revolving Credit
Lender, any L/C Reimbursement Obligation or any obligation of Borrower to repay (whether or not on a fixed date) any L/C Reimbursement Obligation;  provided, however, that this clause (iii) does
not apply to (x) any change to any provision increasing any interest rate or fee during the continuance of an Event of Default or to any payment of any such increase or (y) any
modification to any financial covenant set forth in Article V or in any definition set forth therein or principally used therein; 


        (iv)  waive
or postpone any scheduled maturity date or other scheduled date fixed for the payment, in whole or in part, of principal of or interest on any Loan or fee owing
to such Lender or for the reduction of such Lender's Commitment; provided, however, that this clause (iv) does not apply to any change to
mandatory prepayments required by Section 2.8(b) or Section 2.8(c)(ii); 


         (v)  except
as provided in Section 11.10, release all or substantially all of the Collateral or any Guarantor from its
guaranty of any Obligation of Borrower; 


        (vi)  reduce
or increase the proportion of Lenders required for the Lenders (or any subset thereof) to take any action hereunder or change the definition of the terms
"Required Lenders", "Pro Rata Share" or "Pro Rata Outstandings"; or 


       (vii)  amend  Section 11.10 (Release of Collateral or Guarantor),  Section 12.9 (Sharing of Payments) or this  Section 12.1; 




and
provided, further, that (x)(A) any waiver of any payment applied pursuant to  Section 2.12(b)
(Application of Mandatory Prepayments) to, and any modification of the application
of any such payment to, (1) the Term Loans shall require the consent of the Required Term Loan Lenders and (2) the Revolving Loans shall require the consent of the Required Revolving
Credit Lenders, (B) any change to the definition of the term "Required Term Loan Lender" shall require the consent of the Required Term Loan Lenders and (C) any change to the definition
of the term "Required Revolving Credit Lender" shall require the consent of the Required Revolving Credit Lenders, (y) no amendment, waiver or consent shall affect the rights or duties under
any Loan Document of, or any payment to, the Administrative Agent (or otherwise modify any provision of Article X or the application thereof),
the Swingline Lender, any L/C Issuer or any SPV that has been granted an option pursuant to Section 12.2(f) unless in writing and signed by the
Administrative Agent, the Swingline Lender, such L/C Issuer or, as the case may be, such SPV in addition to any signature otherwise required and (z) the consent of Borrower shall not be
required to change any order of priority set forth in Section 2.12. 


        (b)   Each
waiver or consent under any Loan Document shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or
demand on any Loan Party shall entitle any Loan Party to any notice or demand in the same, similar or other circumstances. 


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No
failure on the part of any Secured Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other right. 


        Section 12.2    Assignments and Participations; Binding Effect.    (a) Binding
Effect.    This Agreement shall become effective when it shall have been executed by Holdings, General Partner, Limited Partner, Borrower and the Administrative Agent
and when the Administrative Agent shall have been notified by each Lender and L/C Issuer that such Lender or L/C Issuer has executed it. Thereafter, it shall be binding upon and inure to the benefit
of, but only to the benefit of, Holdings, General Partner, Limited Partner, Borrower (in each case except for Article X), the Administrative
Agent, each Lender and L/C Issuer and, to the extent provided in Section 11.11, each other Indemnitee and Secured Party and, in each case, their
respective successors and permitted assigns. Except as expressly provided in any Loan Document (including in Section 11.9), none of Holdings,
General Partner, Limited Partner, Borrower, any L/C Issuer or the Administrative Agent shall have the right to assign any rights or obligations hereunder or any interest herein. 



        (b)    Right to Assign.    Each Lender may sell, transfer, negotiate or assign all or a portion of its rights and
obligations hereunder (including all or a portion of its Commitments and its rights and obligations with respect to Loans and Letters of Credit) to (i) any existing Lender, (ii) any
Affiliate or Approved Fund of any existing Lender or (iii) any other Person (other than any Group Member or any of its Affiliates) acceptable (which acceptance shall not be unreasonably
withheld or delayed) to the Administrative Agent and, as long as no Default or Event of Default is continuing, Borrower; provided,  however, that
(x) such Sales do not have to be ratable between the Facilities but must be ratable among the obligations owing to and owed by such
Lender with respect to a Facility and (y) for each Facility, the aggregate outstanding principal amount (determined as of the effective date of the applicable Assignment) of the Loans,
Commitments and L/C Obligations subject to any such Sale shall be an integral multiple of $1,000,000, unless such Sale is made to an existing Lender or an Affiliate or Approved Fund of any existing
Lender, is of the assignor's (together with its Affiliates and Approved Funds) entire interest in such Facility or is made with the prior consent of Borrower and the Administrative Agent. 


        (c)    Procedure.    The parties to each Sale made in reliance on  clause (b) above (other than those described in clause (e) or  (f) below) shall execute and deliver to the Administrative Agent (which shall keep a copy thereof) an Assignment, together with any existing Note
subject to such Sale (or any affidavit of loss therefor acceptable to the Administrative Agent), any tax forms required to be delivered pursuant to  Section 2.17(f) and payment by the assignee of an
assignment fee in the amount of $3,500; provided that no such fee shall be payable for
assignments among a Lender and its Affiliates and Approved Funds. Upon receipt of all the foregoing, and conditioned upon such receipt and upon the Administrative Agent consenting to such Assignment,
from and after the effective date specified in such Assignment, the Administrative Agent shall record or cause to be recorded in the Register the information contained in such Assignment. 


        (d)    Effectiveness.    Effective upon the entry of such record in the Register, (i) such assignee shall
become a party hereto and, to the extent that rights and obligations under the Loan Documents have been assigned to such assignee pursuant to such Assignment, shall have the rights and obligations of
a Lender, (ii) any applicable Note shall be transferred to such assignee through such entry and (iii) the assignor thereunder shall, to the extent that rights and obligations under this
Agreement have been assigned by it pursuant to such Assignment, relinquish its rights (except for those surviving the termination of the Commitments and the payment in full of the Obligations) and be
released from its obligations under the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment covering all or the
remaining portion of an assigning Lender's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto except that each Lender agrees to remain bound by  Article X,
Section 12.8 (Right of Setoff)
 


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and
Section 12.9 (Sharing of Payments) to the extent provided in  Section 11.11 (Additional Beneficiaries of Collateral)). 


        (e)    Grant of Security Interests.    In addition to the other rights provided in this  Section 12.2, each Lender may grant a
security interest in, or otherwise assign as collateral, any of its rights under this Agreement, whether
now owned or hereafter acquired (including rights to payments of principal or interest on the Loans), to (A) any federal reserve bank (pursuant to Regulation A of the Federal Reserve
Board), without notice to the Administrative Agent or (B) any holder of, or trustee for the benefit of the holders of, such Lender's Securities by notice to the Administrative Agent;  provided,
however, that no such holder or trustee, whether because of such grant or assignment or any
foreclosure thereon (unless such foreclosure is made through an assignment in accordance with clause (b) above), shall be entitled to any rights
of such Lender hereunder and no such Lender shall be relieved of any of its obligations hereunder. 



        (f)    Participants and SPVs.    In addition to the other rights provided in this  Section 12.2, each Lender may, (x) with
notice to the Administrative Agent, grant to an SPV the option to make all or any part of any Loan
that such Lender would otherwise be required to make hereunder (and the exercise of such option by such SPV and the making of Loans pursuant thereto shall satisfy the obligation of such Lender to make
such Loans hereunder) and such SPV may assign to such Lender the right to receive payment with respect to any Obligation and (y) without notice to or consent from the Administrative Agent or
Borrower, sell participations to one or more Persons in or to all or a portion of its rights and obligations under the Loan Documents (including all its rights and obligations with respect to the Term
Loans, Revolving Loans and Letters of Credit); provided, however, that, whether as a result of any term
of any Loan Document or of such grant or participation, (i) no such SPV or participant shall have a commitment, or be deemed to have made an offer to commit, to make Loans hereunder, and,
except as provided in the applicable option agreement, none shall be liable for any obligation of such Lender hereunder, (ii) such Lender's rights and obligations, and the rights and
obligations of the Loan Parties and the Secured Parties towards such Lender, under any Loan Document shall remain unchanged and each other party hereto shall continue to deal solely with such Lender,
which shall remain the holder of the Obligations in the Register, except that (A) each such participant and SPV shall be entitled to the benefit of Sections
2.16 (Breakage Costs; Increased Costs; Capital Requirements) and 2.17
(Taxes), but only to the extent such participant or SPV delivers the tax forms such Lender is required to collect pursuant to  Section 2.17(f) and then
only to the extent of any amount to which such Lender would be entitled in the absence of any such grant or
participation and (B) each such SPV may receive other payments that would otherwise be made to such Lender with respect to Loans funded by such SPV to the extent provided in the applicable
option agreement and set forth in a notice provided to the Administrative Agent by such SPV and such Lender, provided,  however, that in no case (including
pursuant to clause (A) or  (B) above) shall an SPV or participant have the right to enforce any of the terms of any Loan Document, and (iii) the
consent of such SPV or
participant shall not be required (either directly, as a restraint on such Lender's ability to consent hereunder or otherwise) for any amendments, waivers or consents with respect to any Loan Document
or to exercise or refrain from exercising any powers or rights such Lender may have under or in respect of the Loan Documents (including the right to enforce or direct enforcement of the Obligations),
except for those described in clauses (iii) and (iv) of  Section 12.1(a) with respect to amounts, or
dates fixed for payment of amounts, to which such participant or SPV would otherwise be entitled and,
in the case of participants, except for those described in Section 12.1(a)(v) (or amendments, consents and waivers with respect to  Section 11.10
to release all or substantially all of the Collateral). No party hereto shall institute against any SPV grantee of an option
pursuant to this clause (f) any bankruptcy, reorganization, insolvency, liquidation or similar proceeding, prior to the date that is one year and
one day after the payment in full of all outstanding commercial paper of such SPV; provided, however, that each Lender having designated an SPV as such agrees to indemnify each Indemnitee against any
Liability that may be incurred by, or asserted against, such Indemnitee as a result of failing to institute 


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such
proceeding (including a failure to get reimbursed by such SPV for any such Liability). The agreement in the preceding sentence shall survive the termination of the Commitments and the payment in
full of the Obligations. 


        Section 12.3    Costs and Expenses.    Any action taken by any Loan Party under or with respect to any Loan
Document, even if required under any Loan Document or at the request of any Secured Party, shall be at the expense of such Loan Party, and no Secured Party shall be required under any Loan Document to
reimburse any Loan Party or Group Member therefor except as expressly provided therein. In addition, Borrower agrees to pay or reimburse upon demand (a) the Administrative Agent for all
reasonable out-of-pocket costs and expenses incurred by it or any of its Related Persons in connection with the investigation, development, preparation, negotiation,
syndication, execution, interpretation or administration of, any modification of any term of or termination of, any Loan Document, any commitment or proposal letter therefor, any other document
prepared in connection therewith or the consummation and administration of any transaction contemplated therein (including periodic audits in connection therewith and environmental audits and
assessments to the extent permitted hereunder), in each case including the reasonable fees, charges and disbursements of legal counsel to the Administrative Agent or such Related Persons, fees, costs
and expenses incurred in connection with Intralinks® or any other E-System and allocated to the Facilities by the Administrative Agent in its sole discretion, and fees, charges
and disbursements of the auditors, appraisers, printers and other of their Related Persons retained by or on behalf of any of them or any of their Related Persons, (b) the Administrative Agent
for all reasonable costs and expenses incurred by it or any of its Related Persons in connection with internal audit reviews, field examinations and Collateral examinations (which shall be reimbursed,
in addition to the out-of-pocket costs and expenses of such examiners, at the per diem rate per individual charged by the Administrative Agent for its examiners) and
(c) each of the Administrative Agent, its Related Persons, and each Lender and L/C Issuer for all costs and expenses incurred in connection with (i) any refinancing or restructuring of
the credit arrangements provided hereunder in the nature of a "work-out", (ii) the enforcement or preservation of any right or remedy under any Loan Document, any Obligation, with
respect to the Collateral or any other related right or remedy or (iii) the commencement, defense, conduct of, intervention in, or the taking of any other action with respect to, any proceeding
(including any bankruptcy or insolvency proceeding) related to any Group Member, Loan Document, Obligation or Related Transaction (or the response to and preparation for any subpoena or request for
document production relating thereto), including fees and disbursements of counsel (including allocated costs of internal counsel). 


        Section 12.4    Indemnities.    (a) Borrower and each Parent Guarantor agrees to indemnify, hold harmless and
defend the Administrative Agent, each Lender, each L/C Issuer, each Person that each L/C Issuer causes to Issue Letters of Credit hereunder and each of their respective Related Persons (each such
Person being an "Indemnitee") from and against all Liabilities (including brokerage commissions, fees and other compensation) that may be imposed on, incurred by or asserted against any such
Indemnitee in any matter relating to or arising out of, in connection with or as a result of (i) any Loan Document, any Related Document, any Disclosure Document, any Obligation (or the
repayment thereof), any Letter of Credit, the use or intended use of the proceeds of any Loan or the use of any Letter of Credit, any Related Transaction, or any securities filing of, or with respect
to, any Group Member, (ii) any commitment letter, proposal letter or term sheet with any Person or any Contractual Obligation, arrangement or understanding with any broker, finder or
consultant, in each case entered into by or on behalf of the Acquired Company, any Group Member or any Affiliate of any of them in connection with any of the foregoing and any Contractual Obligation
entered into in connection with any E-Systems or other Electronic Transmissions, (iii) any actual or prospective investigation, litigation or other proceeding, whether or not
brought by any such Indemnitee or any of its Related Persons, any holders of Securities or creditors (and including reasonable attorneys' fees of one counsel to all Indemnitees in any case), whether
or not any such Indemnitee, Related Person, holder or creditor is a party thereto, and whether or not based on any securities or commercial law or regulation or any other 


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Requirement
of Law or theory thereof, including common law, equity, contract, tort or otherwise, or (iv) any other act, event or transaction related, contemplated in or attendant to any of the
foregoing (collectively, the "Indemnified Matters"); provided,  however, that no Borrower shall have any
liability under this Section 12.4 to any Indemnitee with
respect to any Indemnified Matter, and no Indemnitee shall have any liability with respect to any Indemnified Matter other than (to the extent otherwise liable), to the extent such liability has
resulted primarily from the gross negligence or willful misconduct of such Indemnitee as determined by a court of competent jurisdiction in a final non-appealable judgment or order.
Furthermore, Borrower and each Parent Company waives and agrees not to assert against any Indemnitee, and shall cause each other Loan Party to waive and not assert against any Indemnitee, any right of
contribution with respect to any Liabilities that may be imposed on, incurred by or asserted against any Related Person. 


        (b)   Without
limiting the foregoing, "Indemnified Matters" includes all Environmental Liabilities, including those arising
from, or otherwise involving, any property of any Related Person or any actual, alleged or prospective damage to property or natural resources or harm or injury alleged to have resulted from any
Release of Hazardous Materials on, upon or into such property or natural resource or any property on or contiguous to any real property of any Related Person, whether or not, with respect to any such
Environmental Liabilities, any Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor-in-interest to any Related Person or the
owner, lessee or operator of any property of any Related Person through any foreclosure action, in each case except to the extent such Environmental Liabilities (i) are incurred solely
following foreclosure by any Secured Party or following any Secured Party having become the successor-in-interest to any Loan Party and (ii) are attributable solely to
acts of such Indemnitee.


        Section 12.5    Survival.    Any indemnification or other protection provided to any Indemnitee pursuant to any
Loan Document (including pursuant to Section 2.17 (Taxes),  Section 2.16 (Breakage Costs; Increased Costs; Capital Requirements),  Article X (The Administrative Agent),  Section 12.3 (Costs and Expenses),
Section 12.4 (Indemnities) or this  Section 12.5) and all representations and warranties made in
any Loan Document shall (A) survive the termination of the Commitments and
the payment in full of other Obligations and (B) inure to the benefit of any Person that at any time held a right thereunder (as an Indemnitee or otherwise) and, thereafter, its successors and
permitted assigns. 


        Section 12.6    Limitation of Liability for Certain Damages.    In no event shall any Indemnitee be liable on
any theory of liability for any special, indirect, consequential or punitive damages (including any loss of profits, business or anticipated savings). Borrower and each Parent Guarantor hereby waives,
releases and agrees (and shall cause each other Loan Party to waive, release and agree) not to sue upon any such claim for any special, indirect, consequential or punitive damages, whether or not
accrued and whether or not known or suspected to exist in its favor. 


        Section 12.7    Lender-Creditor Relationship.    The relationship between the Lenders, the L/C Issuers and the
Administrative Agent, on the one hand, and the Loan Parties, on the other hand, is solely that of lender and debtor. No Secured Party has any fiduciary relationship or duty to any Loan Party arising
out of or in connection with, and there is no agency, tenancy or joint venture relationship between the Secured Parties and the Loan Parties by virtue of, any Loan Document or any transaction
contemplated therein. 


        Section 12.8    Right of Setoff.    Each of the Administrative Agent, each Lender, each L/C Issuer and each
Affiliate (including each branch office thereof) of any of them is hereby authorized, without notice or demand (each of which is hereby waived by Borrower and each Parent Guarantor), at any time and
from time to time during the continuance of any Event of Default and to the fullest extent permitted by applicable Requirements of Law, to set off and apply any and all deposits (whether general or
special, time or demand, provisional or final) at any time held and other Indebtedness, claims or other obligations at any time owing by the Administrative Agent, such Lender, such L/C 


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Issuer
or any of their respective Affiliates to or for the credit or the account of Borrower or any Parent Guarantor against any Obligation of any Loan Party now or hereafter existing, whether or not
any demand was made under any Loan Document with respect to such Obligation and even though such Obligation may be unmatured. Each of the Administrative Agent, each Lender and each L/C Issuer agrees
promptly to notify Borrower and the Administrative Agent after any such setoff and application made by such Lender or its Affiliates; provided, however, that the failure to give such notice shall not
affect the validity of such setoff and application. The rights under this Section 12.8 are in addition to any other rights and remedies (including other rights of setoff) that the
Administrative Agent, the Lenders and the L/C Issuers and their Affiliates and other Secured Parties may have. 


        Section 12.9    Sharing of Payments, Etc.    If any Lender, directly or through an Affiliate or branch office
thereof, obtains any payment of any Obligation of any Loan Party (whether voluntary, involuntary or
through the exercise of any right of setoff or the receipt of any Collateral or "proceeds" (as defined under the applicable UCC) of Collateral) other than pursuant to Sections
2.16 (Breakage Costs; Increased Costs; Capital Requirements), 2.17
(Taxes) and 2.18 (Substitution of Lenders) and such
payment exceeds the amount such Lender would have been entitled to receive if all payments had gone to, and been distributed by, the Administrative Agent in accordance with the provisions of the Loan
Documents, such Lender shall purchase for cash from other Secured Parties such participations in their Obligations as necessary for such Lender to share such excess payment with such Secured Parties
to ensure such payment is applied as though it had been received by the Administrative Agent and applied in accordance with this Agreement (or, if such application would then be at the discretion of
Borrower, applied to repay the Obligations in accordance herewith); provided, however, that (a) if such payment is rescinded or otherwise recovered from such Lender or L/C Issuer in whole or in
part, such purchase shall be rescinded and the purchase price therefor shall be returned to such Lender or L/C Issuer without interest and (b) such Lender shall, to the fullest extent permitted
by applicable Requirements of Law, be able to exercise all its rights of payment (including the right of setoff) with respect to such participation as fully as if such Lender were the direct creditor
of Borrower in the amount of such participation. 


        Section 12.10    Marshaling; Payments Set Aside.    (a) Borrower expressly waives all rights it may have now or
in the future under any statute, or at common law, or at law or in equity, or otherwise, to compel Administrative Agent, any Lender or any L/C Issuer to marshal assets or to proceed in respect of the
Obligations guaranteed hereunder against any other Loan Party, any other party or against any security for the payment and performance of the Obligations before proceeding against, or as a condition
to proceeding against, Borrower. It is agreed among Borrower, Administrative Agent, each Lender and each L/C Issuer that the foregoing waivers are of the essence of the transaction contemplated by
this Agreement and the other Loan Documents and that, but for the provisions of this Article XII and such waivers, Administrative Agent, each
Lender and each L/C Issuer would decline to enter into this Agreement;. 


        (b)   No
Secured Party shall be under any obligation to marshal any property in favor of any Loan Party or any other party or against or in payment of any Obligation. To the
extent that any Secured Party receives a payment from Borrower, from the proceeds of the Collateral, from the exercise of its rights of setoff, any enforcement action or otherwise, and such payment is
subsequently, in whole or in part, invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party, then to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if such payment
had not occurred. 


        Section 12.11    Notices.    (a) Addresses.    All
notices, demands, requests, directions and other communications required or expressly authorized to be made by this Agreement shall, whether or not specified to be in writing but unless otherwise
expressly specified to be given by any other means, be given in writing and (i) addressed to (A) if to Holdings or Borrower, to PROS Revenue Management, 


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L.P.,
3100 Main Street, Suite 900, Houston, TX 77002, Attention: Charlie Murphy, Chief Financial Officer, Tel: (713) 335-5389, Fax: (713) 335-8144, with copy to
DLA Piper US LLP, 1221 South MoPac Expressway, Suite 400, Austin, TX 78746, Attention: John J. Gilluly III, Esq., Tel: (512) 457-7090, Fax: (512) 457-7001,
(B) if to the Administrative Agent or the Swingline Lender, to Churchill Financial LLC, 400 Park Avenue, Suite 1510, New York, NY 10022, Attention: Carey B. Davidson, Tel:
(212) 763-4640, Fax: (212) 763-4641, and Sean McKeever, Tel: (212) 763-4672, Fax: (212) 763-4649, with copy to
Goulston & Storrs, 400 Atlantic Avenue, Boston, MA 02110, Attention: Philip A. Herman, Esq., Tel: (617) 574-4114, Fax: (617) 574-7592, and
(C) otherwise to the party to be notified at its address specified opposite its name on Schedule II or on the signature page of any applicable Assignment, (ii) posted to
Intralinks® (to the extent such system is available and set up by or at the direction of the Administrative Agent prior to posting) in an appropriate location by uploading such notice,
demand, request, direction or other communication to www.intralinks.com, faxing it to 866-545-6600 with an appropriate bar-coded fax coversheet or using such other
means of posting to Intralinks® as may be available and reasonably acceptable to the Administrative Agent prior to such posting, (iii) posted to any other E-System set
up by or at the direction of the Administrative Agent in an appropriate location or (iv) addressed to such other address as shall be notified in writing (A) in the case of Borrower, the
Administrative Agent and the Swingline Lender, to the other parties hereto and (B) in the case of all other parties, to Borrower and the Administrative Agent. Transmission by electronic mail
(including E-Fax, even if transmitted to the fax numbers set forth in clause (i) above) shall not be sufficient or effective to transmit any such notice under this clause (a)
unless such transmission is an available means to post to any E-System. Notwithstanding the foregoing, Notices of Borrowing or Conversion made to the Administrative Agent shall be to such
persons at such addresses as shall be separately specified by the Administrative Agent to Borrower from time to time in writing. 


        (b)    Effectiveness.    All communications described in  clause (a) above and all other notices, demands, requests and other
communications made in connection with this Agreement shall be effective and
be deemed to have been received (i) if delivered by hand, upon personal delivery, (ii) if delivered by overnight courier service, one Business Day after delivery to such courier service,
(iii) if delivered by mail, when deposited in the mails, (iv) if delivered by facsimile (other than to post to an E-System pursuant to  clause (a)(ii) or (a)(iii)
 above), upon sender's receipt of confirmation of proper transmission,
and (v) if delivered by posting to any E-System, on the later of the date of such posting in an appropriate location and the date access to such posting is given to the recipient
thereof in accordance with the standard procedures applicable to such E-System; provided,  however, that no communications to the Administrative Agent
pursuant to Article II or  Article X shall be effective until received by the Administrative Agent. 



        Section 12.12    Electronic Transmissions.    (a)  Authorization.    Subject to the provisions of
Section 12.11(a), each of the Administrative Agent, Borrower, the Lenders, the L/C
Issuers and each of their Related Persons is authorized (but not required) to transmit, post or otherwise make or communicate, in its sole discretion, Electronic Transmissions in connection with any
Loan Document and the transactions contemplated therein. Each of Holdings, General partner, Limited Partner, Borrower and each Secured Party hereby acknowledges and agrees, and each of Holdings,
General Partner, Limited Partner and Borrower shall cause each other Group Member to acknowledge and agree, that the use of Electronic Transmissions is not necessarily secure and that there are risks
associated with such use, including risks of interception, disclosure and abuse and each indicates it assumes and accepts such risks by hereby authorizing the transmission of Electronic Transmissions. 


        (b)    Signatures.    Subject to the provisions of  Section 12.11(a), (i)(A) no posting to any E-System shall be denied legal
effect merely because it is made electronically,
(B) each E-Signature on any such posting shall be deemed sufficient to satisfy any requirement for a "signature" and (C) each such posting shall be deemed sufficient to
satisfy any requirement for a "writing", in each case including pursuant to any Loan Document, any applicable provision of any UCC, the federal Uniform Electronic 


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Transactions
Act, the Electronic Signatures in Global and National Commerce Act and any substantive or procedural Requirement of Law governing such subject matter, (ii) each such posting that
is not readily capable of bearing either a signature or a reproduction of a signature may be signed, and shall be deemed signed, by attaching to, or logically associating with such posting, an
E-Signature, upon which each Secured Party and Loan Party may rely and assume the authenticity thereof, (iii) each such posting containing a signature, a reproduction of a signature
or an E-Signature shall, for all intents and purposes, have the same effect and weight as a signed paper original and (iv) each party hereto or beneficiary hereto agrees not to
contest the validity or enforceability of any posting on any E-System or E-Signature on any such posting under the provisions of any applicable Requirement of Law requiring
certain documents to be in writing or signed; provided, however, that nothing herein shall limit such
party's or beneficiary's right to contest whether any posting to any E-System or E-Signature has been altered after transmission. 


        (c)    Separate Agreements.    All uses of an E-System shall be governed by and subject to, in addition to  Section 12.11 and
this Section 12.12, separate terms and conditions posted or referenced
in such E-System and related Contractual Obligations executed by Secured Parties and Group Members in connection with the use of such E-System. 


        (d)    LIMITATION OF LIABILITY.    ALL E-SYSTEMS AND ELECTRONIC TRANSMISSIONS SHALL BE PROVIDED "AS IS"
AND "AS AVAILABLE". NONE OF ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PERSONS WARRANTS THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY E-SYSTEMS OR ELECTRONIC TRANSMISSION, AND EACH
DISCLAIMS ALL LIABILITY FOR ERRORS OR OMISSIONS THEREIN. NO WARRANTY OF ANY KIND IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PERSONS IN CONNECTION WITH
ANY E-SYSTEMS OR ELECTRONIC COMMUNICATION, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM
VIRUSES OR OTHER CODE DEFECTS. Each of Holdings, Borrower and each Secured Party agrees (and each of Holdings and Borrower shall cause each other Loan Party to agree) that the Administrative Agent has
no responsibility for maintaining or providing any equipment, software, services or any testing required in connection with any Electronic Transmission or otherwise required for any
E-System. 


        Section 12.13    Governing Law.    This Agreement, each other Loan Document that does not expressly set forth
its applicable law, and the rights and obligations of the parties hereto and thereto shall be governed by, and construed and interpreted in accordance with, the law of the State of New York. 



        Section 12.14    Jurisdiction.    (a) Submission to
Jurisdiction.    Any legal action or proceeding with respect to any Loan Document may be brought in the courts of the State of New York located in the City of New
York, Borough of Manhattan, or of the United States of America for the Southern District of New York and, by execution and delivery of this Agreement, Borrower and each Parent Guarantor hereby accepts
for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. The parties hereto (and, to the extent set forth in any other Loan Document, each
other Loan Party) hereby irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, that any of them may now or hereafter have to
the bringing of any such action or proceeding in such jurisdictions. 


        (b)    Service of Process.    Borrower and each Parent Guarantor (and, to the extent set forth in any other Loan
Document, each other Loan Party) hereby irrevocably waives personal service of any and all legal process, summons, notices and other documents and other service of process of any kind and consents to
such service in any suit, action or proceeding brought in the United States of America with respect to or otherwise arising out of or in connection with any Loan Document by any means 


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permitted
by applicable Requirements of Law, including by the mailing thereof (by registered or certified mail, postage prepaid) to the address of Borrower specified in  Section 12.11 (and shall be effective
when such mailing shall be effective, as provided therein). Borrower and each Parent Guarantor (and, to the
extent set forth in any other Loan Document, each other Loan Party) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit
on the judgment or in any other manner provided by law. 


        (c)    Non-Exclusive Jurisdiction.    Nothing contained in this  Section 12.14 shall affect the right of the Administrative
Agent or any Lender to serve process in any other manner permitted by applicable
Requirements of Law or commence legal proceedings or otherwise proceed against any Loan Party in any other jurisdiction. 



        SECTION 12.15    WAIVER OF JURY TRIAL.    EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES TRIAL BY JURY IN ANY SUIT,
ACTION OR PROCEEDING WITH RESPECT TO, OR DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH, ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREIN OR RELATED THERETO (WHETHER
FOUNDED IN CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO OTHER PARTY AND NO RELATED PERSON OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THE LOAN
DOCUMENTS, AS APPLICABLE, BY THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12.15. 



        Section 12.16    Severability.    Any provision of any Loan Document being held illegal, invalid or
unenforceable in any jurisdiction shall not affect any part of such provision not held illegal, invalid or unenforceable, any other provision of any Loan Document or any part of such provision in any
other jurisdiction. 


        Section 12.17    Execution in Counterparts.    This Agreement may be executed in any number of counterparts and
by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature
pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed signature page of this Agreement by facsimile transmission or Electronic
Transmission shall be as effective as delivery of a manually executed counterpart hereof. 


        Section 12.18    Entire Agreement.    The Loan Documents embody the entire agreement of the parties and
supersede all prior agreements and understandings relating to the subject matter thereof and any prior letter of interest, commitment letter, fee letter, confidentiality and similar agreements
involving any Loan Party and any of the Administrative Agent, any Lender or any L/C Issuer or any of their respective Affiliates relating to a financing of substantially similar form, purpose or
effect. In the event of any conflict between the terms of this Agreement and any other Loan Document, the terms of this Agreement shall govern (unless such terms of such other Loan Documents are
necessary to comply with applicable Requirements of Law, in which case such terms shall govern to the extent necessary to comply therewith). 


        Section 12.19    Use of Name.    


        (a)   Borrower
and each Parent Guarantor agrees, and shall cause each other Loan Party to agree, that it shall not, and none of its Affiliates shall, issue any press release
or other public disclosure (other than any document filed with any Governmental Authority relating to a public offering of the Securities of any Loan Party) using the name, logo or otherwise referring
to Churchill or any Lender or of any of their Affiliates, the Loan Documents or any transaction contemplated therein to which the Secured 


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Parties
are party without at least 2 Business Days' prior notice to Churchill and any Lender named in such public disclosure and without the prior consent of Churchill or, if applicable, such named
Lender (such consent not to be unreasonably withheld or delayed), except to the extent required to do so under applicable Requirements of Law and then, only after consulting with Churchill (or such
applicable Lender) prior thereto. 


        (b)   Churchill
and each Lender agrees that it shall not, and none of its Affiliates shall, issue any press release or other public disclosure (other than any document filed
with any Governmental Authority relating to a public offering of the Securities of such Person) using the name, logo or otherwise referring to Borrower or any Loan Party, the Loan Documents or any
transaction contemplated therein without the prior written consent of Borrower and of TA Associates, Inc., which shall be in each of their sole discretion. 



        Section 12.20    Non-Public Information; Confidentiality.    (a) Each Lender and L/C Issuer
acknowledges and agrees that it may receive material non-public information hereunder concerning the Loan Parties and their Affiliates and Securities and agrees to use such information in
compliance with all relevant policies, procedures and Contractual Obligations and applicable Requirements of Laws (including United States federal and state security laws and regulations). 


        (b)   Each
Lender, L/C Issuer and the Administrative Agent agrees to use all reasonable efforts to maintain, in accordance with its customary practices, the confidentiality of
information obtained by it pursuant to any Loan Document and designated in writing by any Loan Party as confidential, except that such information may be disclosed (i) with Borrower's consent,
(ii) to Related Persons of such Lender, L/C Issuer or the Administrative Agent, as the case may be, or to any Person that any L/C Issuer causes to Issue Letters of Credit hereunder, that are
advised of the confidential nature of such information and are instructed to keep such information confidential, (iii) to the extent such information presently is or hereafter becomes available
to such Lender, L/C Issuer or the Administrative Agent, as the case may be, on a non-confidential basis from a source other than any Loan Party, (iv) to the extent disclosure is
required by applicable Requirements of Law or other legal process or requested or demanded by any Governmental Authority, (v) to the extent necessary or customary for inclusion in league table
measurements or in any tombstone or other advertising materials (and the Loan Parties consent to the publication of such tombstone or other advertising materials by the Administrative Agent, any
Lender, any L/C Issuer or any of their Related Persons), (vi) to the National Association of Insurance Commissioners or any similar organization, any examiner or any nationally recognized
rating agency or otherwise to the extent consisting of general portfolio information that does not identify borrowers, (vii) to current or prospective assignees, SPVs grantees of any option
described in Section 12.2(f) or participants, direct or contractual counterparties to any Hedging Agreement permitted hereunder and to their
respective Related Persons, in each case to the extent such assignees, participants, counterparties or Related Persons agree to be bound by the provisions of this  Section 12.20 and (viii) in
connection with the exercise of any remedy under any Loan Document. In the event of any conflict between the
terms of this Section 12.20 and those of any other Contractual Obligation entered into with any Loan Party (whether or not a Loan Document), the
terms of this Section 12.20 shall govern. 


        Section 12.21    Patriot Act Notice.    Each Lender subject to the USA Patriot Act of 2001 (31 U.S.C. 5318 et
seq.) hereby notifies Borrower that, pursuant to Section 326 thereof, it is required to obtain, verify and record information that identifies Borrower, including the name and address of
Borrower and other information allowing such Lender to identify Borrower in accordance with such act. 


[SIGNATURE
PAGES FOLLOW] 


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



	 	 	PROS REVENUE MANAGEMENT, L.P.,
 as Borrower
	

 	
 	

by:	

PROS Revenue I, LLC,

its General Partner
	

 	
 	

By	

/s/  CHARLES H. MURPHY      
 Charles H. Murphy

Chief Financial Officer
	

 	
 	
PROS REVENUE I, LLC,
 as Guarantor
	

 	
 	

By	

/s/  CHARLES H. MURPHY      
 Charles H. Murphy

Chief Financial Officer
	

 	
 	
PROS REVENUE II, LLC,

as Guarantor
	

 	
 	

By	

/s/  CHARLES H. MURPHY      
 Charles H. Murphy

Chief Financial Officer
	

 	
 	
PROS HOLDINGS, INC.,
 as Guarantor
	

 	
 	

By	

/s/  CHARLES H. MURPHY      
 Charles H. Murphy

Chief Financial Officer





S-1







 

	 	 	CHURCHILL FINANCIAL LLC,

as Administrative Agent and Lead Arranger
	

 	
 	

By	

 
	 	 	 	/s/  CHRIS COX      
 Name: Chris Cox

Title: MD



S-2







 

	 	 	CHURCHILL FINANCIAL CAYMAN LTD.,

as Swingline Lender,L/C Issuer and Lender
	

 	
 	

By:	

Churchill Financial LLC, its Agent
	

 	
 	

By	

 
	 	 	 	/s/  CHRIS COX      
 Name: Chris Cox

Title: MD





S-3







 

	 	 	FREEPORT FINANCIAL LLC,

as Syndication Agent and Lender
	

 	
 	

By	

 
	 	 	 	/s/  CHRIS COX      
 Name: Chris Cox

Title: MD




S-4











QuickLinks


TABLE OF CONTENTS


ARTICLE I DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS


ARTICLE II THE FACILITIES


ARTICLE III CONDITIONS TO LOANS AND LETTERS OF CREDIT


ARTICLE IV REPRESENTATIONS AND WARRANTIES

ARTICLE V FINANCIAL COVENANTS

ARTICLE VI REPORTING COVENANTS

ARTICLE VII AFFIRMATIVE COVENANTS



ARTICLE VIII NEGATIVE COVENANTS

ARTICLE IX EVENTS OF DEFAULT

ARTICLE X INTENTIONALLY OMITTED

ARTICLE XI THE ADMINISTRATIVE AGENT


ARTICLE XII MISCELLANEOUS