THIS JOINDER
AGREEMENT (this “ Agreement ”), dated as of
December 30, 2005, is entered into among NSA General
Partnership, a Kentucky general partnership (the “
Partnership ”), the Lenders party hereto, the existing
Borrowers party hereto, and Bank of America, N.A., in its capacity
as Agent (the “ Agent ”), under that certain
Loan and Security Agreement, dated as of September 19, 2005,
among the Agent, the Lenders party thereto from time to time, and
the existing Borrowers (as amended, restated, supplemented, or
otherwise modified from time to time, the “ Loan
Agreement ”). Capitalized terms used in this Agreement
and not otherwise specifically defined herein have the meanings
assigned to them in the Loan Agreement.
WHEREAS, pursuant
to the Loan Agreement, the Lenders have agreed to make the Loans
and other financial accommodations to the existing Borrowers;
and
WHEREAS, the
Partnership is a wholly-owned Subsidiary of a Loan Party and
Borrower Representative has requested that the Partnership become a
“Borrower” under the Loan Agreement and the other Loan
Documents;
NOW, THEREFORE, on
the terms and subject to the conditions set forth herein, the
Partnership, the Lenders, the existing Borrowers, and the Agent
hereby agree as follows:
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1.
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The
Partnership, the Lenders, the existing Borrowers, and the Agent
hereby acknowledge, agree and confirm that, by its execution of
this Agreement, the Partnership will be a Borrower under the Loan
Agreement and the other Loan Documents and shall have all of the
rights and obligations of a Borrower thereunder as if it had
executed the Loan Agreement and the other Loan Documents. The
Partnership hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions, covenants, promises,
agreements, obligations, duties, liabilities, and conditions
contained in the Loan Documents that are applicable to Borrowers,
including without limitation (a) all of the representations
and warranties of the Borrowers set forth in Section 7 of the
Loan Agreement (provided that with respect to the representations
and warranties set forth in Sections 7.1.5 and 7.1.6, the
applicable information for the Partnership is set forth on
Schedule 1 hereto), and (b) all of the affirmative and
negative covenants of the Borrowers set forth in Sections 5.3,
6, and 8 of the Loan Agreement.
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Upon the effectiveness of this
Agreement, all references to “Borrower” or
“Borrowers” in each of the Loan Documents shall be
deemed to include the Partnership.
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2.
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Without limiting the generality of
the terms of the foregoing paragraph 1 , to secure the
prompt payment and performance to the Secured Parties of the
Obligations, the Partnership hereby grants to the Agent, for the
benefit of the Secured Parties, a continuing lien upon and security
interest in all of the following
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assets of the
Partnership, whether now owned or existing or hereafter created,
acquired or arising and wheresoever located:
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(i)
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Accounts; and
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(ii)
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Inventory;
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together with all books, records,
writings, data bases, information, Documents, and Supporting
Obligations directly relating to or evidencing, embodying, or
incorporating any of the foregoing, and all Proceeds of and from
any of the foregoing. Notwithstanding the foregoing, Collateral
shall not include real property, Fixtures, Equipment, Securities of
Subsidiaries, the Proceeds and products of any of the foregoing
Property or any other Property not specifically designated as
Collateral hereby.
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3.
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The
Partnership hereby authorizes the Agent to file financing
statements that indicate the Collateral as being of an equal or
lesser scope, or with greater or lesser detail, than as set forth
in the foregoing paragraph 2 . The Partnership also hereby
ratifies its authorization for the Agent to have filed in any
jurisdiction any such financing statements or amendments thereto if
filed prior to the date hereof.
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4.
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This Agreement shall be effective as
of the date hereof (the “ Effective Date ”), but
only upon the satisfaction of the following conditions
precedent:
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(a)
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Agent shall have received a duly
executed copy of this Agreement.
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(b)
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The
representations and warranties of the Borrowers and Guarantors set
forth in each of the Loan Documents shall be true and correct in
all
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