TERM LOAN AND SECURITY AGREEMENT

 

Exhibit 10.17

 

EXECUTION COPY

TERM LOAN AND SECURITY AGREEMENT

Dated as of May 21, 2007

By and Among

WHITEHALL JEWELLERS, INC.,

as Borrower,

THE LENDERS

Listed on Schedule 2.01 hereto,

LASALLE BANK NATIONAL ASSOCIATION,
as Administrative Agent and Collateral Agent,
for the Agents and the Lenders

and

BANK OF AMERICA, N.A.,
WELLS FARGO RETAIL FINANCE, LLC,
as Managing Agents
for the Agents and the Lenders

TABLE OF CONTENTS

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TERM LOAN AND SECURITY AGREEMENT

          This TERM LOAN AND SECURITY AGREEMENT (“ Agreement ”) is entered into as of May 21, 2007, among

           WHITEHALL JEWELLERS, INC. (the “ Borrower ”), a Delaware corporation having its principal place of business at 125 South Wacker, #2600, Chicago, Illinois 60606;

          the lending institutions listed on Schedule 2.01 (collectively, the “ Lenders ”);

           LASALLE BANK NATIONAL ASSOCIATION (“ LaSalle ”), as administrative agent (in such capacity, the “ Administrative Agent ”) and as collateral agent (in such capacity, the “ Collateral Agent ”) for the Agents (as hereinafter defined) and the Lenders; and

           BANK OF AMERICA, N.A. and WELLS FARGO RETAIL FINANCE, LLC, as co-managing agents (collectively, in such capacity, the “ Managing Agents ”).

RECITALS:

          A. Borrower is party to a certain Third Amended and Restated Credit Agreement dated as of February 20, 2007, as amended by that certain First Amendment to Third Amended and Restated Credit Agreement dated as of the date hereof (as the same may be further amended, modified or supplemented from time to time, the “ Revolving Credit Agreement ”), by and among the Borrower, LaSalle Bank National Association, as administrative agent and collateral agent (in such capacity, the “ Revolving Credit Agent ”), and the lenders (the “ Revolving Credit Lenders ”) party thereto.

          B. The Borrower has requested that the Lenders agree to make one or more term loans to the Borrower in order to permit Borrower to repay certain subordinated indebtedness and provide it with additional working capital.

          C. The Lenders are willing to provide term loan financing on the terms and conditions set forth herein.

          NOW THEREFORE, the Borrower, the Lenders and the Agents (as defined herein) agree as follows:

ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS

           1.01 Defined Terms . Terms used and not otherwise defined in this Agreement shall have the meanings provided in the Revolving Credit Agreement. As used in this Agreement, the following terms shall have the meanings set forth below:

          “ ACH ” means automated clearing house transfers.

          “ Administrative Agent ” has the meaning provided in the Recitals to this Agreement.

          “ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 , or such other address or account as the Administrative Agent may from time to time notify the Borrower, the Managing Agents and the Lenders.

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          “ Affiliate ” means, with respect to any Person, (i) another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified, (ii) any director, officer, managing member, partner, trustee, or beneficiary of that Person, (iii) any other Person directly or indirectly holding 10% or more of any class of the Equity Interests of that Person, and (iv) any other Person 10% or more of any class of whose Equity Interests is held directly or indirectly by that Person.

          “ Agent(s) ” means, collectively, the Administrative Agent, Collateral Agent and Managing Agents.

          “ Aggregate Commitments ” means, at any time, the sum of the Commitments at such time. As of the Closing Date, the Aggregate Commitments are $35,000,000.00.

          “ Agreement ” means this Term Loan and Security Agreement as such may be amended, amended and restated, modified or supplemented from time to time.

          “ Applicable Margin ” means (a) 1.25% with respect to LIBOR Loans and (b) (-0.125%) with respect to Base Rate Loans.

          “ Applicable Percentage ” means with respect to each Lender, that percentage of the Commitments of such Lender hereunder to make Loans to the Borrower, in each case as the context provides. If the Commitment of such Lender to make Loans has been terminated pursuant to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 , as modified upon the execution and delivery of an Assignment and Assumption pursuant to which a Person becomes a Lender and a party hereto, as applicable.

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

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

          “ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b) ), and accepted by the Administrative Agent, in substantially the form of Exhibit D or any other form approved by the Administrative Agent.

          “ Base Rate ” means the higher of (a) the annual rate of interest announced from time to time by LaSalle at its head office in Chicago, Illinois, as its “Prime Rate” and (b) the Federal Funds Effective Rate plus 0.5% per annum. “Prime Rate” shall mean on any day a fluctuating rate per annum equal to the higher of (a) the rate of interest designated by the Agent from time to time as its “Prime Rate,” and (b) a rate of interest equal to the sum of (i) the Federal Funds Rate, plus (ii) 0.5%. The Prime Rate is not necessarily the lowest rate of interest charged by the Administrative Agent in connection with extensions of credit. Changes in the rate of interest on a Base Rate Loan shall take effect simultaneously with each change in the Prime Rate. The applicable Prime Rate shall be determined by the Administrative Agent in its sole judgment, and such determination shall be conclusive absent manifest error.

          “ Base Rate Loan ” means a Loan that bears interest based on the Base Rate.

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          “ Borrower ” has the meaning provided in the introductory paragraph hereto.

          “ Borrowing ” means a borrowing consisting of simultaneous Loans of the same Type and, in the case of LIBOR Loans, having the same Interest Period, made by each of the Lenders pursuant to Section 2.01 .

          “ Business Day ” means (i) any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, (ii) if such day relates to any LIBOR Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank market.

          “ Cash Management Services ” means any one or more of the following types or services or facilities provided to any Loan Party by the Administrative Agent or any of its Affiliates: (a) ACH transactions, (b) cash management services, including, without limitation, controlled disbursement services, treasury, depository, overdraft, and electronic funds transfer services, (c) foreign exchange facilities, (d) credit or debit cards, and (e) merchant services.

          “ CFC ” means a Person that is a controlled foreign corporation under Section 957 of the Code.

          “ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

          “ Closing Date ” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 11.01 .

          “ Code ” means the Internal Revenue Code of 1986, and the regulations promulgated thereunder, as amended and in effect.

          “ Collateral ” shall have the meaning assigned to such term in Section 9.01 .

          “ Collateral Agent ” has the meaning provided in the Recitals to this Agreement.

          “ Commitment ” means, as to each Lender, its obligation to make Loans to the Borrower pursuant to Section 2.01 , in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or in an executed Assignment and Assumption pursuant to which a Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

          “ Consent ” means actual consent given by a Lender from whom such consent is sought; or the passage of seven (7) Business Days from receipt of written notice to a Lender from the Administrative Agent of a proposed course of action to be followed by the Administrative Agent without such Lender’s giving the Administrative Agent written notice of that Lender’s objection to such course of action.

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

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          “ Credit Party ” or “ Credit Parties ” means (a) individually, (i) each Lender and its Affiliates, (ii) each of the Agents, (iii) each beneficiary of each indemnification obligation undertaken by any Loan Party under any Loan Document, (iv) any other Person to whom Obligations under this Agreement and any other Loan Documents are owing, and (v) the successors and assigns of each of the foregoing, and (b) collectively, all of the foregoing.

          “ Credit Party Expenses ” means, without limitation:

           (a) all reasonable out-of-pocket expenses incurred by the Agents in connection with this Agreement and the other Loan Documents, including without limitation

           (b) all reasonable out-of-pocket expenses incurred by the Credit Parties who are not the Agents, after the occurrence and during the continuance of an Event of Default, provided that such Credit Parties shall be entitled to reimbursement for no more than one counsel representing all such Credit Parties.

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

          “ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

          “ Default Rate ” means:

           (a) with respect to a LIBOR Loan, an interest rate equal to the interest rate (including any Applicable Margin) otherwise applicable to such LIBOR Loan plus two percent (2%) per annum;

           (b) with respect to a Base Rate Loan, an interest rate equal to the interest rate (including any Applicable Margin) otherwise applicable to such Base Rate Loan, plus (iii) two percent (2%) per annum;

           (c) with respect to all Obligations other than those specified above, an interest rate equal to (i) the Base Rate plus (ii) the highest Applicable Margin, if any, applicable to Base Rate Loans, plus (iii) two percent (2%) per annum.

          “ Defaulting Lender ” means any Lender that (a) has failed to fund any portion of the Loans, within one Business Day of the date required to be funded by it hereunder, (b) has otherwise failed to pay

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over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.

          “ Delayed Draw Advance ” has the meaning provided in Section 2.01(b) .

          “ Delayed Draw Advance Borrowing Request ” has the meaning provided in Section 2.01(b) .

          “ Delayed Draw Advance Amount ” means:

           (a) $-0- if Borrower shall receive an aggregate of $10,000,000 or more in Equity Proceeds and the proceeds of Subordinated Indebtedness after the Closing Date and on or prior to May 31, 2007; and

           (b) if Borrower shall not receive an aggregate of $10,000,000 or more in Equity Proceeds and the proceeds of Subordinated Indebtedness after the Closing Date and on or prior to May 31, 2007, the positive difference between (x) $10,000,000 and (y) the aggregate amount of Equity Proceeds and proceeds of Subordinated Indebtedness actually received by Borrower during such period (which amount under clause (y) shall never be calculated as less than $-0-).

          “ Dollars ” and “ $ ” mean lawful money of the United States.

          “ Domestic Subsidiary ” means any Subsidiary that is organized under the laws of any political subdivision or jurisdiction subject to the laws of the United States.

          “ Eligible Assignee ” means (a) a Credit Party or any of its Affiliates; (b) a bank, insurance company, or company engaged in the business of making commercial loans, which Person, together with its Affiliates, has a combined capital and surplus in excess of $250,000,000; (c) an Approved Fund; (d) any Person to whom a Credit Party assigns its rights and obligations under this Agreement as part of an assignment and transfer of such Credit Party’s rights in and to a material portion of such Credit Party’s portfolio of asset based credit facilities, and (e) any other Person (other than a natural person) approved by (i) the Administrative Agent, and (ii) unless an Event of Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include a Loan Party or any of the Loan Parties’ Affiliates or Subsidiaries.

          “ Equity Interests ” means, with respect to any Person, all of the shares of capital stock, limited partnership interests, limited liability company interests, general partnership interests or other ownership or profit interests in, such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of such shares or interests of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

          “ Equity Proceeds ” means proceeds received by the Borrower from the issuance or sale of its Equity Interests or capital contributions from the holders of its Equity Interests, in each case on terms and conditions acceptable to Administrative Agent in its reasonable credit discretion.

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          “ Event of Default ” has the meaning provided in Section 8.01 . An Event of Default shall be deemed to be continuing unless and until that Event of Default has been duly waived as provided in Section 11.03 hereof.

          “ Excluded Taxes ” means, with respect to the Administrative Agent, any Lender, or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 11.13 ), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e) , except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 3.01(a) .

          “ Facility Fee ” has the meaning provided in Section 2.06 .

          “ Federal Funds Effective Rate ” means, for any day, the rate set forth in the weekly statistical release designated as H. 15(519), or any successor publication, published by the Federal Reserve Bank of New York (including any such successor publication, “H. l5(519)”) on the preceding Business Day opposite the caption “Federal Funds (Effective)”; or, if for any relevant day such rate is not so published on any such preceding Business Day, the rate for such day will be the arithmetic mean as determined by the Administrative Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York, New York time) on that day by each of three leading brokers of Federal Funds transactions in New York, New York selected by the Administrative Agent.

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

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

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

          “ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

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

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regulatory or administrative powers or functions of or pertaining to government (including any supranational bodies such as the European Union or the European Central Bank).

          “ Guarantee ” means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

          “ Indemnified Taxes ” means Taxes other than Excluded Taxes.

          “ Indemnitees ” has the meaning provided in Section 11.04(b) .

          “ Information ” has the meaning provided in Section 11.07 .

          “ Initial Term Advance ” means the initial Loan made by the Lenders on the Closing Date in the Initial Term Advance Amount, as provided in Section 2.01(a) .

          “ Initial Term Advance Amount ” means $25,000,000.

          “ Intellectual Property ” means all present and future: trade secrets, know-how and other proprietary information; trademarks, trademark applications, internet domain names, service marks, trade dress, trade names, business names, designs, logos, slogans (and all translations, adaptations, derivations and combinations of the foregoing) indicia and other source and/or business identifiers, and all registrations or applications for registrations which have heretofore been or may hereafter be issued thereon throughout the world; copyrights and copyright applications; (including copyrights for computer programs) and all tangible and intangible property embodying the copyrights, unpatented inventions (whether or not patentable); patents and patent applications; industrial design applications and registered industrial designs; license agreements related to any of the foregoing and income therefrom; books, records, writings, computer tapes or disks, flow diagrams, specification sheets, computer software, source codes, object codes, executable code, data, databases and other physical manifestations, embodiments or incorporations of any of the foregoing; all other intellectual property; and all common law and other rights throughout the world in and to all of the foregoing.

          “ Intercreditor Agreement ” means the Third Amended and Restated Intercreditor and Lien Subordination Agreement date as of the Closing Date by and among the Administrative Agent, on behalf of the Lenders and the Agents, the Revolving Credit Agent, on behalf of the Revolving Credit Lenders

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and Revolving Credit Agent, PWJ Lending LLC, as agent for the lenders under the Subordinate Facility, PWJ Lending LLC, in its individual capacity as creditor under the Term Loan L/C Reimbursement Agreement, and certain other parties thereto, acknowledged by the Borrower, as amended, modified or supplemented from time to time.

          “ Interest Payment Date ” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided , however , that if any Interest Period for a LIBOR Loan exceeds three months, the date that falls every three months after the beginning of such Interest Period shall also be an Interest Payment Date; and (b) as to any Base Rate Loan, the last Business Day of each month and the Maturity Date.

          “ Interest Period ” means, as to each LIBOR Loan, the period commencing on the date such LIBOR Loan is disbursed or converted to or continued as a LIBOR Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its Loan Notice; provided that:

For purposes hereof, the date of a Borrowing that is a LIBOR Loan initially shall be the date on which such Borrowing as a LIBOR Loan is made and thereafter shall be the effective date of the most recent conversion or continuation of such LIBOR Loan.

          “ IRS ” means the United States Internal Revenue Service.

          “ Joinder Agreement ” means an agreement, in the form attached hereto as Exhibit E pursuant to which, among other things, a Subsidiary of the Borrower becomes a party to, and bound by the terms of, this Agreement and/or the other Loan Documents in the same capacity and to the same extent as either a Borrower or a guarantor, as the Administrative Agent may determine.

          “ LaSalle ” has the meaning provided in the preamble to this Agreement

          “ Laws ” means each international, foreign, Federal, state and local statute, treaty, rule, guideline, regulation, ordinance, code and administrative or judicial precedent or authority, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and each applicable administrative order, directed duty, request, license, authorization and permit of, and agreement with, any Governmental Authority, in each case whether or not having the force of law.

          “ Lender ” has the meaning provided in the introductory paragraph hereto.

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          “ Lending Office ” means, as to any Lender, the office or offices of which such Lender may from time to time notify the Borrower and the Administrative Agent.

          “ LIBOR ” means a rate of interest determined by Administrative Agent equal to the offered rate for deposits in US Dollars for the applicable Interest Period that appears on Telerate Page 3750 as of 11:00 a.m. (London time), on the second full LIBOR Business Day next preceding the first day of such Interest Period (unless such date is not a Business Day, in which event the next succeeding Business Day will be used). If such interest rates shall cease to be available from Telerate News Service, LIBOR shall be determined from such financial reporting service or other information as shall be acceptable to Administrative Agent.

          “ LIBOR Business Day ” means a Business Day on which banks in the City of London are generally open for interbank or foreign exchange transactions.

          “ LIBOR Loan ” means a Loan or any portion thereof bearing interest by reference to LIBOR.

          “ Loan ” means an extension of credit by a Lender to the Borrower.

          “ Loan Account ” has the meaning assigned to such term in Section 2.08(a) .

          “ Loan Documents ” means this Agreement, each Term Note, and any other instrument or agreement now or hereafter executed and delivered in connection herewith, each as amended and in effect from time to time.

          “ Loan Notice ” means a notice of (a) a Borrowing (including a Delayed Draw Advance Borrowing Request), (b) a conversion of Loans from one Type to the other, or (c) a continuation of LIBOR Loans, which, if in writing, shall be substantially in the form of Exhibit A .

          “ Loan Parties ” means, collectively, the Borrower and each guarantor.

          “ Majority Lenders ” means, as of any date of determination, Lenders holding 51% or more of the Aggregate Commitments or, if the commitment of each Lender to make Loans have been terminated pursuant to Section 8.02 , Lenders holding in the aggregate 51% or more of the Obligations; provided that the Commitment of, and the portion of the Obligations held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Majority Lenders.

          “ Managing Agents ” shall have the meaning provided in the Recitals to this Agreement.

          “ Master Letter of Credit Agreement ” means the Master Letter of Credit Agreement dated the date hereof between PWJ Lending LLC and LaSalle, pursuant to which the Term Loan Letter of Credit was issued by LaSalle.

          “ Material Adverse Effect ” means (a) a material adverse change in, or a material adverse effect upon, the business, assets, properties, or financial condition of the Loan Parties and their Subsidiaries taken as a whole; (b) a material impairment of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a material impairment of the rights and remedies of the Agents or the Lenders under any Loan Document or a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party. In determining whether any individual event would result in a Material Adverse Effect, notwithstanding that such event in and of itself does not have such effect, a Material Adverse Effect shall

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be deemed to have occurred if the cumulative effect of such event and all other then existing events would result in a Material Adverse Effect.

          “ Maturity Date ” means November 19, 2007.

          “ Maximum Rate ” has the meaning provided therefor in Section 11.09 .

          “ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

          “ Non-Consenting Lender ” has the meaning provided therefor in Section 11.01 .

          “ Obligations ” means (a) all advances to, and debts (including principal, interest, fees, costs, and expenses), liabilities, obligations, covenants, indemnities, and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan (including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral therefor), whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, and (b) any Other Liabilities.

          “ Organization Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity, and (d) in each case, all shareholder or other equity holder agreements, voting trusts and similar arrangements to which such Person is a party or which is applicable to its Equity Interests and all other arrangements relating to the Control or management of such Person.

          “ Other Liabilities ” means (a) any Cash Management Services furnished to any of the Loan Parties or any of their Subsidiaries and/or (b) any transaction with any Agent, any Lender or any of their respective Affiliates, which arises out of any bank product entered into with any Loan Party and any such Person, as each may be amended from time to time

          “ Other Taxes ” means all present or future stamp or documentary taxes or any other excise, franchise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

          “ Participant ” has the meaning provided in Section 11.06(d) .

          “ Participation Register ” has the meaning provided therefor in Section 11.06(d) .

          “ Permitted Restricted Subordinated Debt Payments ” has the meaning provided in the Intercreditor Agreement.

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

          “ Register ” has the meaning provided in Section 11.06(c) .

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

          “ Reports ” has the meaning provided in Section 10.11(a) .

          “ Responsible Officer ” means the chief executive officer, president, chief financial officer, vice president, treasurer or assistant treasurer of a Loan Party or any of the other individuals designated in writing to the Administrative Agent by an existing Responsible Officer of a Loan Party as an authorized signatory of any certificate or other document to be delivered hereunder. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership, limited liability company and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

          “ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

          “ Securities Laws ” means the Securities Act of 1933, the Securities Exchange Act of 1934, Sarbanes-Oxley, and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the SEC or the PCAOB, in each case as they may be amended from time to time.

          “ Settlement Date ” has the meaning provided in Section 2.10 .

          “ Subordinate Facility ” means that certain Second Amended and Restated Term Loan Credit Agreement dated as of February 20, 2007 by and among the Borrower, PWJ Lending LLC, as agent, and the lenders from time to time party thereto, as amended, modified or supplemented from time to time.

          “ Subordinated Indebtedness ” means Indebtedness which is expressly subordinated in right of payment to the prior payment in full of the Obligations and which is in form and on terms reasonably satisfactory to the Administrative Agent.

          “ Subsidiary ” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the Equity Interests having ordinary voting power for the election of directors or other governing body or control of such subsidiary are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of a Loan Party.

          “ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

          “ Term Loan ” has the meaning provided in Section 2.01 .

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          “ Term Loan Facility ” means the credit facility provided by the Lenders with respect to the Term Loan.

          “ Term Loan Facility Amount ” means the amount of up to $35,000,000.

          “ Term Loan Letter of Credit ” means the standby letter of credit issued by LaSalle for the benefit of, and the original of which has been delivered to, the Administrative Agent, for the benefit of the Credit Parties, which is acceptable in all respects to the Administrative Agent and which provides, without limitation, the following:

           (a)  an original face amount of $35,000,000, with multiple draws permitted upon the occurrence of any Event of Default and on the Termination Date in an amount equal to the lesser of such face amount and the then outstanding principal amount of the Term Loan;

           (b)  an expiry date of November 21, 2007;

           (c)  issuance fees customary for letters of credit of this type and size; and

           (d)  a letter of credit fee in the amount of $131,250.00 (a portion of which may be rebated in accordance with the term of the Master Letter of Credit Agreement).

          “ Term Loan L/C Reimbursement Agreement ” means the Reimbursement Agreement between the Borrower and PWJ Lending LLC with respect to draws made under the Term Loan Letter of Credit.

          “ Term Note ” has the meaning provided in Section 2.08(b) .

          “ Termination Date ” means the earliest to occur of (i) the Maturity Date, (ii) the date on which the maturity of the Obligations is accelerated (or deemed accelerated) and the Commitments are irrevocably terminated (or deemed terminated) in accordance with Article VII.

          “ Type ” means, with respect to a Loan, its character as a Base Rate Loan or a LIBOR Loan.

          “ UCC ” or “ Uniform Commercial Code ” means the Uniform Commercial Code as in effect from time to time in the State of Illinois; provided , however , that if a term is defined in Article 9 of the Uniform Commercial Code differently than in another article thereof, the term shall have the meaning set forth in Article 9; provided further that, if by reason of mandatory provisions of law, perfection, or the effect of perfection or non-perfection, of a security interest in any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of Illinois, “Uniform Commercial Code” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection or availability of such remedy, as the case may be.

          “ Unanimous Lenders ” means, as of any date of determination, Lenders holding 100% of the Aggregate Commitments or, if the Commitment of each Lender to make Loans have been terminated pursuant to Section 8.02 , Lenders holding in the aggregate 100% of the Obligations; provided that the Commitment of, and the portion of the Obligations held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Unanimous Lenders.

          “ United States ” and “ U.S. ” mean the United States of America.

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          1.02  Other Interpretive Provisions . With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

           (a)  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “ include ,” “ includes ” and “ including ” shall be deemed to be followed by the phrase “without limitation.” The word “ will ” shall be construed to have the same meaning and effect as the word “ shall .” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “ herein ,” “ hereof and “ hereunder ,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “ asset ” and “ property ” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

           (b)  In the computation of periods of time from a specified date to a later specified date, the word “ from ” means “ from and including ;” the words “ to ” and “ until ” each mean “ to but excluding ;” and the word “ through ” means “ to and including .”

           (c)  Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

          1.03  Accounting Terms

           (a)   Generally . All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.

           (b)   Changes in GAAP . If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Majority Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Majority Lenders); provided that , until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

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           1.04  Rounding . Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

          1.05  Times of Day . Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

          1.06  UCC Terms . When used herein, (a) the terms “Account”, “Account Debtor”, “Certificated Security”, “Chattel Paper”, “Commercial Tort Claim”, “Deposit Account”, “Document”, “Electronic Chattel Paper”, “Equipment”, “Financial Asset”, “Fixtures”, “General Intangibles”, “Goods”, “Health-Care-Insurance Receivable”, “Inventory”, “Instrument”, “Investment Property”, “Letter-of-Credit Rights”, “Payment Intangibles”, “Proceeds”, “Security Entitlement”, “Supporting Obligations” and “Uncertificated Security” have the respective meanings assigned thereto in the UCC.

ARTICLE II.
TERM LOAN FACILITY

          2.01  Term Loan.

           (a)  Subject to the terms and conditions set forth in this Agreement, each Lender agrees to loan (the “ Term Loan ”), to Borrower such Lender’s Applicable Percentage of the Term Loan Facility Amount. The Initial Term Advance will be funded on the Closing Date and the balance may be funded in the form of a Delayed Draw Advance subject to the terms hereof. The aggregate amount of the Initial Term Advance and the Delayed Draw Advance shall never exceed the Term Loan Facility Amount and the Applicable Percentage of amount outstanding under the Term Loan of any Lender shall not at any time exceed its separate Commitment therefor. Other than with respect to the Delayed Draw Advance (described in Section 2.01(b) below), the Term Loan is not a revolving credit facility and may not be redrawn, and any repayments or prepayments of principal on the Term Loan shall permanently reduce the Term Loan. The obligations of the Lenders hereunder are several and not joint nor joint and several. The Borrower irrevocably authorizes the Administrative Agent and Lenders to disburse the proceeds of the Initial Term Advance on the Closing Date in accordance with the terms of this Agreement.

           (b)  Subject to the terms and conditions of this Agreement, at any time prior to May 30, 2007, the Lenders agree to make one additional advance (the “ Delayed Draw Advance ”) to the Borrower in an amount not to exceed the Delayed Draw Advance Amount. The Delayed Draw Advance shall be requested by an irrevocable written notice in the form of the borrowing request attached as Exhibit C (a “ Delayed Draw Advance Borrowing Request ”) by an Authorized Person specifying the amount and proposed date of the Delayed Draw Advance, delivered to the Administrative Agent at least thirty (30) days prior to the requested funding date (such request becoming effective upon receipt). After receipt of the Delayed Draw Advance Borrowing Request, Lenders shall make the requested Delayed Draw Advance available to Borrower on the requested funding date, subject to the conditions set forth herein to the making of all financial accommodations and in Section 4.02 with respect to the Delayed Draw Advance.

          2.02  Borrowings, Conversions and Continuations of Loans.

           (a)  Loans shall be either Base Rate Loans or LIBOR Loans as the Borrower may request subject to and in accordance with this Section 2.02 . Subject to the other provisions of this Section 2.02 , Borrowings of more than one Type may be incurred at the same time.

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           (b)  Each Loan, each conversion of Loans from one Type to the other, and each continuation of LIBOR Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than 12:00 noon (i) three (3) Business Days prior to the requested date of any Loan of, conversion to or continuation of LIBOR Loans or of any conversion of LIBOR Loans to Base Rate Loans, and (ii) one (1) Business Day prior to the requested date of any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(b) must be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of LIBOR Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof. Each Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Loan, a conversion of Loans from one Type to the other, or a continuation of LIBOR Loans, (ii) the requested date of the Loan, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBOR Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of LIBOR Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.

           (c)  Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in Section 2.02(b) . In the case of a Loan, each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 12:00 noon on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the Initial Term Advance, Section 4.01 ), the Administrative Agent shall use reasonable efforts to make all funds so received available to the Borrower in like funds by no later than 3:00 p.m. on the day of receipt by the Administrative Agent either by (i) crediting the account of the Borrower on the books of the Administrative Agent with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.

           (d)  The failure of any Lender to make any Loan shall neither relieve any other Lender of its obligation to fund its Loan in accordance with the provisions of this Agreement nor increase the obligation of any such other Lender.

           (e)  Except as otherwise provided herein, a LIBOR Loan may be continued or converted only on the last day of an Interest Period for such LIBOR Loan. During the existence of an Event of Default, no Loans may be requested as, converted to or continued as LIBOR Loans without the Consent of the Majority Lenders.

           (f)  The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for LIBOR Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in LaSalle’s Prime Rate used in determining the Base Rate promptly following the public announcement of such change.

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           (g)  After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than five (5) Interest Periods in effect with respect to LIBOR Loans.

          2.03  Prepayments . The Borrower may, upon irrevocable notice from the Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty with Equity Proceeds or with the proceeds of Subordinated Indebtedness; provided that (i) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of LIBOR Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of LIBOR Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if LIBOR Loans, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a LIBOR Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 . Each such prepayment shall be applied to the Loans of the Lenders in accordance with their respective Applicable Percentage and shall permanently reduce the Term Loan amount.

          2.04  Repayment of Loans

          (a)  If for any reason, at any time the aggregate outstanding amount of Loans exceeds the amount available to be drawn under the Term Loan Letter of Credit, Borrower shall immediately cause such excess to be paid to the Administrative Agent for the benefit of the Lenders.

           (b)  The Borrower shall repay to the Administrative Agent, for the benefit of the Lenders, on the Termination Date, the aggregate principal amount of Loans and all other Obligations outstanding on such date.

          2.05  Interest .

           (a)  Subject to the provisions of Section 2.05(b) , (i) each LIBOR Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to LIBOR for such Interest Period plus the Applicable Margin; and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Margin.

          (b)  (i) If any amount payable under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

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          (c)  Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Laws.

          2.06   Facility Fee . On the Closing Date, the Borrower shall pay the Administrative Agent for the ratable benefit of the Lenders, a facility fee (the “ Facility Fee ”) in the amount of $50,000.00.

           2.07   Computation of Interest and Fees . All computations of interest for Base Rate Loans when the Base Rate is determined by LaSalle’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.09(a) , bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

          2.08  Evidence of Debt .

           (a)  The Loans made by each Lender shall be evidenced by one or more accounts or records maintained by the Administrative Agent (the “ Loan Account ”) in the ordinary course of business. In addition, each Lender may record in such Lender’s internal records, an appropriate notation evidencing the date and amount of each Loan from such Lender, each payment and prepayment of principal of any such Loan, and each payment of interest, fees and other amounts due in connection with the Obligations due to such Lender. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Loans made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

          (b)  The Borrower shall execute and deliver to each Lender (through the Administrative Agent) a promissory note (as each may be amended, modified, supplemented or replaced from time to time, each a “ Term Note ” and, collectively, the “ Term Notes ”) in the form of Exhibit B hereto, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Term Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto. Upon receipt of an affidavit of a Lender as to the loss, theft, destruction or mutilation of such Lender’s Term Note and upon cancellation of such Term Note, the Borrower will issue, in lieu thereof, a replacement Term Note in favor of such Lender, in the same principal amount thereof and otherwise of like tenor.

          2.09   Payments Generally; Administrative Agent’s Clawback .

           (a)  All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the

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respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

           (b)  Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of LIBOR Loans (or in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02 ) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation plus any administrative processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

           (c)  A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this Section 2.09 shall be conclusive, absent manifest error.

          (d)  If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II , and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Loan set forth in Article IV are not satisfied or waived in accordance with the terms hereof (subject to the provisions of the last paragraph of Section 4.02 ), the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

           (e)  The obligations of the Lenders hereunder to make Loans and to make payments pursuant to Section 11.04(c) are several and not joint nor joint and several. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 11.04(c) .

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           (f)  Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

          2.10 Sharing of Payments by Lenders . If any Credit Party shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of, interest on, or other amounts with respect to, any of the Obligations resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Obligations greater than its pro rata share thereof as provided herein (including as in contravention of the priorities of payment set forth in Section 8.03) , then the Credit Party receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Obligations of the other Credit Parties, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Credit Parties ratably and in the priorities set forth in Section 8.03 , provided that:

          Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.

                    2.11 Settlement Among Lenders .

           (a)  The amount of each Lender’s Applicable Percentage of outstanding Loans shall be computed weekly (or more frequently in the Administrative Agent’s discretion) and shall be adjusted upward or downward based on all Loans and repayments of Loans received by the Administrative Agent as of 3:00 p.m. on the first Business Day (such date, the “ Settlement Date ”) following the end of the period specified by the Administrative Agent.

           (b)  The Administrative Agent shall deliver to each of the Lenders promptly after a Settlement Date a summary statement of the amount of outstanding Loans for the period and the amount of repayments received for the period. As reflected on the summary statement, (i) the Administrative Agent shall transfer to each Lender its Applicable Percentage of repayments, and (ii) each Lender shall transfer to the Administrative Agent (as provided below) or the Administrative Agent shall transfer to each Lender, such amounts as are necessary to insure that, after giving effect to all such transfers, the amount of Loans made by each Lender shall be equal to such Lender’s Applicable Percentage of all Loans outstanding as of such Settlement Date. If the summary statement requires transfers to be made to the Administrative Agent by the Lenders and is received prior to 12 noon on a Business Day, such transfers shall be made in immediately available funds no later than 3:00 p.m. that day; and, if received after 12 noon, then no later than 3:00 p.m. on the next Business Day. The obligation of each Lender to transfer such funds is irrevocable, unconditional and without recourse to or warranty by the Administrative Agent. If and to the extent any Lender shall not have so made its transfer to the Administrative Agent, such Lender agrees to pay to the Administrative Agent, forthwith on demand such

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amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent, equal to the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation plus any administrative, processing, or similar fees customarily charged by the Administrative Agent in connection with the foregoing.

ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY

          3.01 Taxes .

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

           (b)  Without limiting the provisions of subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

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

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

           (e)  Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the

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Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.

          Without limiting the generality of the foregoing, in the event that Borrower is resident for tax purposes in the United States, any Foreign Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:

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

          3.02 Illegality . If any Lender determines that any Law at any time after the Closing Date has made it unlawful, or that any Governmental Authority has at any time after the Closing Date asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund LIBOR Loans, or to determine or charge interest rates based upon LIBOR, or any Governmental Authority has at any time after the Closing Date imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue LIBOR Loans or to convert Base Rate Loans to LIBOR Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such

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determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all LIBOR Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBOR Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such LIBOR Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

          3.03 Inability to Determine Rates . If the Majority Lenders determine that for any reason in connection with any request for a LIBOR Loan or a conversion to or continuation thereof that (a) Dollar deposits are not being offered to banks in the London interbank market for the applicable amount and Interest Period of such LIBOR Loan, (b) adequate and reasonable means do not exist for determining LIBOR for any requested Interest Period with respect to a proposed LIBOR Loan, or (c) LIBOR for any requested Interest Period with respect to a proposed LIBOR Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain LIBOR Loans shall be suspended until the Administrative Agent (upon the instruction of the Majority Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of LIBOR Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.

          3.04 Increased Costs; Reserves on LIBOR Loans .

           (a) If any Change in Law shall:

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Lender within 180 days of the date of such Change in Law, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.

           (b) If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then, upon

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request of such Lender within 180 days of the date of such Change in Law the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

           (c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days after receipt thereof.

          (d) Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except 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).

          (e) The Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each LlBOR Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least 15 days’ prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender. If a Lender fails to give notice 15 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable 15 days from receipt of such notice.

          3.05 Compensation for Losses .

          (a) Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

          including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.

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           (b) For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05 , each Lender shall be deemed to have funded each LIBOR Loan made by it at LIBOR for such Loan by a matching deposit or other borrowing in the London interbank market for a comparable amount and for a comparable period, whether or not such LIBOR Loan was in fact so funded.

          3.06 Mitigation Obligations; Replacement of Lenders .

           (a) If any Lender requests compensation under Section 3.04 , or the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , or if any Lender gives a notice pursuant to Section 3.02 , then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04 , as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02 , as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

           (b) If any Lender requests compensation under Section 3.04 , or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , or any Lender gives notice pursuant to Section 3.02 , the Borrower may replace such Lender in accordance with Section 11.13 .

          3.07 Survival . All of the parties obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.

ARTICLE IV.
CONDITIONS PRECEDENT TO LOANS

          4.01 Conditions of Initial Term Advance . The obligation of the Lenders to make the Initial Term Advance hereunder is subject to satisfaction of the following conditions precedent:

           (a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent:

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          (b) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.

          (c) The Administrative Agent shall have received and found satisfactory a copy of the fully executed Intercreditor Agreement.

          (d) The Administrative Agent shall have received and found satisfactory a copy of the fully executed First Amendment to the Revolving Credit Agreement.

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          (e) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

          (f) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.

          (g) The consummation of the transactions contemplated hereby shall not violate any Applicable Law or any Organization Document.

          (h) All fees required to be paid to the Agents on or before the Closing Date shall have been paid in full or charged to the Loan Account, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full or charged to the Loan Account.

          (i) The Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).

          Without limiting the generality of the provisions of Sectio