Amended and Restated Credit Agreement

$90,000,000 CREDIT FACILITY AMENDED AND RESTATED CREDIT AGREEMENT Dated as of January 11, 2006 by and among PANTHER II TRANSPORTATION, INC., as the Borrower, ANTARES CAPITAL CORPORATION, for itself, as a Lender, and as Agent for all Lenders, GE CAPITAL ...

Exhibit 10.1

EXECUTION COPY

 

 

$90,000,000 CREDIT FACILITY

AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of January 11, 2006

by and among

PANTHER II TRANSPORTATION, INC.,

as the Borrower,

ANTARES CAPITAL CORPORATION,

for itself, as a Lender, and as Agent for all Lenders,

GE CAPITAL MARKETS, INC.,

as the Lead Arranger,

and

THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO,

as Lenders

 

 


 

 

 

TABLE OF CONTENTS

 

ARTICLE I - THE CREDITS    1

1.1

 

Amounts and Terms of Commitments

   1

1.2

 

Notes

   5

1.3

 

Interest

   5

1.4

 

Loan Accounts

   7

1.5

 

Procedure for Revolving Credit Borrowing

   7

1.6

 

Conversion and Continuation Elections

   8

1.7

 

Optional Prepayments

   9

1.8

 

Mandatory Prepayments of Loans and Commitment Reductions

   10

1.9

 

Fees

   14

1.10

 

Payments by the Borrower

   15

1.11

 

Payments by the Lenders to the Agent; Settlement

   16
ARTICLE II - CONDITIONS PRECEDENT    18

2.1

 

Conditions of Effectiveness

   18

2.2

 

Conditions to All Borrowings

   21
ARTICLE III - REPRESENTATIONS AND WARRANTIES    22

3.1

 

Corporate Existence and Power

   22

3.2

 

Corporate Authorization; No Contravention

   23

3.3

 

Governmental Authorization

   23

3.4

 

Binding Effect

   24

3.5

 

Litigation

   24

3.6

 

No Default

   24

3.7

 

ERISA Compliance

   24

3.8

 

Use of Proceeds; Margin Regulations

   25

3.9

 

Title to Properties

   25

3.10

 

Taxes

   25

3.11

 

Financial Condition

   26

3.12

 

Environmental Matters

   26

3.13

 

Collateral Documents

   27

3.14

 

Regulated Entities

   27

3.15

 

Solvency

   27

3 16

 

Labor Relations

   27

3.17

 

Copyrights, Patents, Trademarks and Licenses, etc.

   27

3.18

 

Subsidiaries

   28

3.19

 

Brokers’ Fees; Transaction Fees

   28

3.20

 

Insurance

   28

3.21

 

Full Disclosure

   28

3.22

 

Certain Other Representations and Warranties

   29

3.23

 

Foreign Assets Control Regulations and Anti-Money Laundering

   29

3.24

 

Material Contracts

   29
ARTICLE IV - AFFIRMATIVE COVENANTS    30

4.1

 

Financial Statements

   30

 

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4.2

 

Certificates; Borrowing Base Certificates; Other Information

   30

4.3

 

Notices

   32

4.4

 

Preservation of Corporate Existence, Etc.

   34

4.5

 

Maintenance of Property

   34

4.6

 

Insurance

   35

4.7

 

Payment of Obligations

   36

4.8

 

Compliance with Laws

   36

4.9

 

Inspection of Property and Books and Records

   36

4.10

 

Use of Proceeds

   37

4.11

 

Solvency

   37

4.12

 

Further Assurances

   37

4.13

 

Interest Rate Protection

   38
ARTICLE V - NEGATIVE COVENANTS    39

5.1

 

Limitation on Liens

   39

5.2

 

Disposition of Assets

   40

5.3

 

Consolidations and Mergers

   41

5.4

 

Loans and Investments

   41

5.5

 

Limitation on Indebtedness

   42

5.6

 

Transactions with Affiliates

   43

5.7

 

Management Fees and Compensation

   43

5.8

 

Use of Proceeds

   44

5.9

 

Contingent Obligations

   45

5.10

 

Compliance with ERISA

   45

5.11

 

Restricted Payments

   46

5.12

 

Change in Business

   48

5.13

 

Change in Structure

   48

5.14

 

Accounting Changes

   48

5.15

 

Amendments to Related Agreements and Subordinated Indebtedness

   48

5.16

 

No Negative Pledges

   48

5.17

 

OFAC

   49

5.18

 

Integration

   49

5.19

 

Stay, Extension and Usury Laws

   49
ARTICLE VI - FINANCIAL COVENANTS    49

6.1

 

Capital Expenditures

   50

6.2

 

Senior Leverage Ratio

   50

6.3

 

Fixed Charge Coverage Ratio

   51

6.4

 

Interest Coverage Ratio

   51
ARTICLE VII - EVENTS OF DEFAULT    52

7.1

 

Event of Default

   52

7.2

 

Remedies

   55

7.3

 

Rights Not Exclusive

   56

7.4

 

Cash Collateral for Letters of Credit

   56

 

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ARTICLE VIII - THE AGENT    56

8.1

 

Appointment and Authorization

   56

8.2

 

Delegation of Duties

   56

8.3

 

Liability of Agent

   56

8.4

 

Reliance by Agent

   57

8.5

 

Notice of Default

   57

8.6

 

Credit Decision

   58

8.7

 

Indemnification

   58

8.8

 

Agent in Individual Capacity

   59

8.9

 

Successor Agent

   59

8.10

 

Collateral Matters

   59

8.11

 

Documentation Agent and Syndication Agent

   60
ARTICLE IX - MISCELLANEOUS    60

9.1

 

Amendments and Waivers

   60

9.2

 

Notices

   61

9.3

 

No Waiver; Cumulative Remedies

   62

9.4

 

Costs and Expenses

   63

9.5

 

Indemnity

   63

9.6

 

Marshaling; Payments Set Aside

   64

9.7

 

Successors and Assigns

   65

9.8

 

Assignments, Participations, etc.

   65

9.9

 

Confidentiality

   67

9.10

 

Set-off; Sharing of Payments

   68

9.11

 

Notification of Addresses, Lending Offices, Etc.

   69

9.12

 

Counterparts

   69

9.13

 

Severability; Facsimile Signature

   69

9.14

 

Captions

   69

9.15

 

Independence of Provisions

   69

9.16

 

Interpretation

   69

9.17

 

No Third Parties Benefited

   69

9.18

 

Governing Law and Jurisdiction

   69

9.19

 

Waiver of Jury Trial

   70

9.20

 

Entire Agreement; Release

   71

9.21

 

Patriot Act

   71

9.22

 

Replacement of Lender

   71

9.23

 

Continued Effectiveness; No Novation

   72

9.24

 

Press Release and Related Matters

   72
ARTICLE X - TAXES, YIELD PROTECTION AND ILLEGALITY    72

10.1

 

Taxes

   72

10.2

 

Illegality

   76

10.3

 

Increased Costs and Reduction of Return

   76

10.4

 

Funding Losses

   77

10.5

 

Inability to Determine Rates

   78

10.6

 

Reserves on LIBOR Rate Loans

   78

10.7

 

Certificates of Lenders

   78

10.8

 

Survival

   78
ARTICLE XI - DEFINITIONS    79

11.1

 

Defined Terms

   79

11.2

 

Other Interpretive Provisions

   98

11.3

 

Accounting Principles

   99

 

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SCHEDULES   

Schedule 1.1 (a)

 

Term Loan Commitments

  

Schedule 1.1 (b)

 

Revolving Loan Commitments

  

Schedule 3.2

 

Capitalization

  

Schedule 3.5

 

Litigation

  

Schedule 3.7

 

ERISA

  

Schedule 3.9

 

Title to Properties

  

Schedule 3.10

 

Taxes

  

Schedule 3.17

 

Intellectual Property

  

Schedule 3.19

 

Brokers Fees; Transaction Fees

  

Schedule 3.24

 

Material Contracts

  

Schedule 5.1

 

Liens

  

Schedule 5.5

 

Indebtedness

  

Schedule 5.6

 

Affiliate Transactions

  

Schedule 5.9

 

Contingent Obligations

  
EXHIBITS   

Exhibit 1.8(e)

 

Excess Cash Flow Certificate

  

Exhibit 4.2(b)

 

Compliance Certificate

  

Exhibit 5.7

 

Performance Bonuses

  

Exhibit 11.1(a)

 

Borrowing Base Certificate

  

Exhibit 11.1(b)

 

Notice of Borrowing

  

Exhibit 11.1(c)

 

Notice of Continuation/Conversion

  

Exhibit 11.1(d)

 

Revolving Note

  

Exhibit 11.1(e)

 

Term Note

  

Exhibit 11.1(f)

 

Swing Line Note

  

 

iv


 

 

 

AMENDED AND RESTATED CREDIT AGREEMENT

This AMENDED AND RESTATED CREDIT AGREEMENT (including all exhibits and schedules hereto, as the same may be amended, modified and/or restated from time to time, this “Agreement”) is entered into as of January 11, 2006, by and among PANTHER II TRANSPORTATION, INC., an Ohio corporation (the “Borrower”), ANTARES CAPITAL CORPORATION, a Delaware corporation, as agent for the several financial institutions from time to time party to this Agreement (collectively, the “Lenders” and individually each a “Lender”) and for itself as a Lender, and such other Lenders.

W I T N E S S E T H:

WHEREAS, Panther Acquisition, Inc., an Ohio corporation and predecessor of the Borrower (“Acquisition Co.”), the Agent and certain of the Lenders are parties to a Credit Agreement dated as of June 10, 2005 (as heretofore amended, modified and supplemented, including, without limitation, pursuant to that certain First Amendment to Loan Documents dated as of September 21, 2005, the “Original Credit Agreement”); and

WHEREAS, the Borrower, the Agent and the Lenders desire to amend and restate in its entirety the Original Credit Agreement, without constituting a novation, all on the terms and subject to the conditions contained herein.

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties hereto amend and restate the Original Credit Agreement in its entirety as follows:

ARTICLE I - THE CREDITS

1.1 Amounts and Terms of Commitments.

(a) The Term Loan. Borrower acknowledges and agrees that, immediately prior to the effectiveness of this Agreement, the outstanding principal amount of the “Term Loan A” under the Original Credit Agreement is $49,350,000 and of the “Term Loan B” under the Original Credit Agreement is $8,000,000 (collectively, the “Existing Term Loans”), in each case all of which Existing Term Loans hereby shall be deemed to have been, and hereby is, converted into a portion of the outstanding Term Loan hereunder in like amount without constituting a novation, and Borrower hereby represents, warrants, agrees, covenants and reaffirms that it has no defense, set off, claim or counterclaim against the Agent and the Lenders with regard to its Obligations in respect of such Existing Term Loans. Each Lender with a Term Loan Commitment severally and not jointly agrees, on the terms and conditions hereinafter set forth, to lend to Borrower on the Restatement Effective Date, the additional amount set forth opposite such Lender’s name in Schedule 1.1(a) under the heading “Term Loan Commitment” (such amount, together with the amount of the Existing Term Loans of such Lender, being referred to herein as such Lender’s “Term Loan Commitment”). Amounts borrowed, or deemed borrowed, under this subsection 1.1(a) are referred to as the “Term Loan”. Amounts borrowed, or deemed borrowed, as the Term Loan which are repaid or prepaid by the Borrower may not be reborrowed.


 

 

 

(b) The Revolving Credit. Each Lender with a Revolving Loan Commitment severally and not jointly agrees, on the terms and conditions hereinafter set forth, to make Loans to the Borrower (each such Loan, a “Revolving Loan”) from time to time on any Business Day during the period from the Restatement Effective Date to the Revolving Termination Date, in an aggregate amount not to exceed at any time outstanding the amount set forth opposite such Lender’s name in Schedule 1.1(b) under the heading “Revolving Loan Commitment” (such amount as the same may be reduced from time to time pursuant to subsection 1.8(f) hereof or as a result of one or more assignments pursuant to Section 9.8, being referred to herein as such Lender’s “Revolving Loan Commitment”); provided, however, that, after giving effect to any Borrowing of Revolving Loans, the aggregate principal amount of all outstanding Revolving Loans shall not exceed the Maximum Revolving Loan Balance. Subject to the other terms and conditions hereof, amounts borrowed under this subsection 1.1(b) may be repaid and reborrowed from time to time. The “Maximum Revolving Loan Balance” from time to time will be the lesser of:

(i) the “Borrowing Base” (as calculated pursuant to the Borrowing Base Certificate) in effect from time to time, or

(ii) the Aggregate Revolving Loan Commitment then in effect;

less , in either case, the sum of (a) the aggregate amount of Letter of Credit Participation Liability and (b) the Swing Line Commitment in effect at such time.

If at any time the then outstanding balance of Revolving Loans exceeds the Maximum Revolving Loan Balance, then Borrower shall immediately prepay outstanding Revolving Loans in an amount sufficient to eliminate such excess. Borrower and each Lender with a Revolving Loan Commitment under the Original Credit Agreement hereby acknowledge and agree that, immediately prior to the effectiveness of this Agreement, except for Letter of Credit Participation Liability arising under the Existing Letters of Credit, there are no “Revolving Loans” outstanding under the Original Credit Agreement.

(c) Lender Letters of Credit and Letter of Credit Participation Agreements. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of Borrower herein set forth, the Revolving Loan Commitment may, in addition to advances of Revolving Loans, be utilized, upon the request of Borrower, for (i) the issuance of letters of credit by the Agent or an Affiliate of the Agent (each such letter of credit, a “Lender Letter of Credit”) or (ii) the issuance of letter of credit participation agreements by Agent (each such letter of credit participation, a “Letter of Credit Participation Agreement”) to confirm payment to banks (whether or not such banks are Lenders) which issue letters of credit for the account of Borrower on behalf of each Lender having a Revolving Loan Commitment (severally and not jointly) according to such Lender’s Revolving Loan Commitment. The aggregate amount of Letter of Credit Participation Liability with respect to all Lender Letters of Credit and Letter of Credit Participation Agreements outstanding at any time shall not exceed $7,500,000. As of the Restatement Effective Date, all of the Lender Letters of Credit and Letter of Credit Participation Agreements issued under the Original Credit Agreement (collectively, the “Existing Letters of Credit”) shall be deemed to be Lender Letters of Credit and Letter of Credit Participation Agreements, as the case may be, issued hereunder and shall be subject to all of the

 

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terms and provisions of this Agreement and the other Loan Documents applicable to Lender Letters of Credit and Letter of Credit Participation Agreements issued hereunder. Each Lender with a Revolving Loan Commitment agrees that its obligations with respect to Lender Letters of Credit and Letter of Credit Participation Agreements pursuant to this subsection 1.1(c) shall include the Existing Letters of Credit and the Borrower hereby (x) represents, warrants, agrees, covenants and reaffirms that it has no defense, set off, claim or counterclaim against the Agent and the Lenders with regard to its Obligations in respect of such Existing Letters of Credit and (y) reaffirms its obligation to reimburse the Agent (or Affiliate of the Agent) for honored drawings under such Existing Letters of Credit in accordance with the terms and provisions of this Agreement and the other Loan Documents.

The Borrower shall be irrevocably and unconditionally obligated forthwith without presentment, demand, protest or other formalities of any kind, to reimburse the Agent immediately for any amounts paid by the Agent (or Affiliate of the Agent) under any Lender Letter of Credit or Letter of Credit Participation Agreement. All amounts paid by the Agent (or Affiliate of the Agent) with respect to any Lender Letter of Credit or Letter of Credit Participation Agreement that are not immediately repaid by Borrower with the proceeds of a Revolving Loan or otherwise shall bear interest at the interest rate then applicable to Revolving Loans, calculated using the Base Rate and the Applicable Margin then in effect. The Borrower hereby authorizes and directs the Lenders with Revolving Loan Commitments (or if the Revolving Loan Commitments have terminated, who had a Revolving Loan Commitment at the time of such termination), at the Agent’s option, to make a Revolving Loan in the amount of any payment made by the Agent (or Affiliate of the Agent) with respect to any Lender Letter of Credit or Letter of Credit Participation Agreement. Each Lender agrees to fund its Commitment Percentage of any Revolving Loan made pursuant to this subsection 1.1(c) and, if no such Revolving Loans are made, each Lender with a Revolving Loan Commitment (or if the Revolving Loan Commitments have terminated, who had a Revolving Loan Commitment at the time of such termination) agrees to purchase, and shall be deemed to have purchased on the date on which it pays to the Agent its ratable portion of any payments made by the Agent (or Affiliate of the Agent), a participation in such Lender Letter of Credit or Letter of Credit Participation Agreement in an amount equal to its ratable share of such Lender Letter of Credit or Letter of Credit Participation Agreement based upon the Revolving Loan Commitments then in effect (or which were in effect at the time the Revolving Loan Commitments terminated) and each Lender agrees to pay to the Agent promptly such share of any payments made by the Agent (or Affiliate of the Agent) under such Lender Letter of Credit or Letter of Credit Participation Agreement. The obligations of each Lender under the preceding two (2) sentences shall be absolute and unconditional and such remittance shall be made notwithstanding the occurrence or continuation of an Event of Default or Default or the failure to satisfy any condition set forth in Section 2.2 hereof.

In addition to all other terms and conditions set forth in this Agreement, the issuance by the Agent (or Affiliate of the Agent) of any Lender Letter of Credit or Letter of Credit Participation Agreement shall be subject to the condition precedent that the Lender Letter of Credit, Letter of Credit Participation Agreement or the letter of credit or written contract for which Borrower requests a Letter of Credit Participation Agreement shall support a transaction entered into by Borrower or one of its Subsidiaries in the Ordinary Course of Business, or

 

3


 

 

 

otherwise be reasonably acceptable to Agent, and shall be in such form, be for such amount, and contain such terms as are reasonably satisfactory to Agent.

The expiration date of each Lender Letter of Credit shall be on a date which is the earlier of (a) one year from its date of issuance, or (b) the thirtieth (30th) day before the Revolving Termination Date. Each Letter of Credit Participation Agreement shall provide that the Letter of Credit Participation Agreement terminates and all demands or claims for payment must be presented by a date certain, which date will be the earlier of (a) one year from its date of issuance, or (b) the thirtieth (30th) day before the Revolving Termination Date.

Borrower shall give Agent at least seven (7) Business Days’ prior written notice specifying the date a Lender Letter of Credit or Letter of Credit Participation Agreement is to be issued, identifying the beneficiary and describing the nature of the transactions proposed to be supported thereby. The notice shall be accompanied by the drawing terms for the Lender Letter of Credit or form of each letter of credit signed by the Borrower as applicant and account party.

(d) Swing Line Loans. The Swing Line Lender may, in its sole and absolute discretion, make Loans to the Borrower (each such Loan, a “Swing Line Loan”) from time to time on any Business Day during the period from the Restatement Effective Date to the Revolving Termination Date, in an aggregate amount not to exceed at any time outstanding the amount set forth opposite such Swing Line Lender’s name in Schedule 1.1(d) under the heading “Swing Line Commitment” or in an Assignment and Acceptance pursuant to which Swing Line Lender first becomes a party hereto (such amount as the same may be reduced from time to time pursuant to subsection 1.7(c) hereof or as a result of one or more assignments pursuant to Section 9.8, being referred to herein as such Lender’s “Swing Line Commitment”); provided, however, that, after giving effect to any Borrowing of Swing Line Loans, (i) the aggregate principal amount of all outstanding Swing Line Loans shall not exceed the Swing Line Commitment and (ii) the sum of the aggregate amount of all outstanding Swing Line Loans, outstanding Revolving Loans and the aggregate amount of Letter of Credit Participation Liability shall not exceed the lesser of:

(i) the “Borrowing Base” (as calculated pursuant to the Borrowing Base Certificate) in effect from time to time, or

(ii) the Aggregate Revolving Loan Commitment then in effect.

Subject to the other terms and conditions hereof, amounts borrowed under this subsection 1.1(d) may be repaid and reborrowed from time to time.

If at any time the then outstanding principal balance of Swing Line Loans exceeds the Swing Line Commitment, then the Borrower shall immediately prepay outstanding Swing Line Loans in an amount sufficient to eliminate such excess. Outstanding Swing Line Loans shall not be deemed outstanding Revolving Loans. Notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, Swing Line Lender agrees that, without the prior written consent of Required Revolving Lenders, it will not make any Swing Line Loan to Borrower, and Borrower agrees that it shall not be entitled to receipt of proceeds of a Swing Line Loan, after Swing Line Lender has received written notice from the Borrower or Agent (either individually or at the direction of Required Revolving Lenders) that an Event of Default has occurred and is continuing.

 

4


 

 

 

(e) Lender Assignments. Each Lender, severally and not jointly, hereby agrees that the Lenders’ pro rata shares of the Revolving Loan Commitment and the Term Loan Commitment as of the Restatement Effective Date shall be as set forth on Schedules 1.1 (a) and 1.1(b) attached hereto. The Assigning Lenders and the Assignee Lenders, severally and not jointly, hereby agree, on the Restatement Effective Date, to effect any inter-Lender transfers necessary to cause each Lender to hold the portion of the Revolving Loan Commitment and the portion of the Term Loan set forth beside such Lender’s name on Schedules 1.1(a) and 1.1(b). To the extent necessary to give effect to the provisions of the preceding sentences, each Lender under and as defined in the Original Credit Agreement (to the extent such Lender is assigning Loans in accordance with this subsection 1.1(e), an “Assigning Lender”), severally and not jointly, hereby agrees on the date hereof to sell and to assign to each Lender hereunder (each Lender, in such capacity is referred to herein as an “Assignee Lender”), without recourse, representation or warranty, and each Assignee Lender, severally and not jointly, hereby purchases and assumes from the applicable Assigning Lender, a percentage interest in the Revolving Loan Commitment and the Term Loan in amounts required to give effect to the pro rata shares set forth on Schedules 1.1(a) and 1.1(b) hereto. Upon the effectiveness of the assignments and acceptances described in this subsection 1.1(e), the Agent shall thereafter make all payments in respect of the interests assigned hereby (including payments of principal, interest, fees and other amounts) to the Assignee Lenders. The Lenders shall make all appropriate adjustments in payment for periods prior to the effectiveness of the assignment and acceptance described in this subsection 1.1(e) by the Agent or with respect to the making of this assignment directly between themselves.

1.2 Notes.

(a) The Term Loan made, or deemed made, by each Lender with a Term Loan Commitment shall, at the option of such Lender, be evidenced by a Term Note payable to the order of such Lender in an amount equal to such Lender’s Term Loan Commitment.

(b) The Revolving Loans made, or deemed made, by each Lender with a Revolving Loan Commitment shall, at the option of such Lender, be evidenced by a Revolving Note payable to the order of such Lender in an amount equal to such Lender’s Revolving Loan Commitment.

(c) The Swing Line Loans made, or deemed made, by the Swing Line Lender with a Swing Line Loan Commitment shall, at the option of such Lender, be evidenced by a Swing Line Note payable to the order of such Lender in an amount equal to such Swing Line Lender’s Swing Line Commitment.

1.3 Interest.

(a) Subject to subsections 1.3(c) and 1.3(d), each Loan shall bear interest on the outstanding principal amount thereof from the date when made at a rate per annum equal to the LIBOR or the Base Rate, as the case may be, plus the Applicable Margin; provided, that Swing

 

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Line Loans may not be LIBOR Rate Loans. Commencing on the fifth (5th) Business Day following the date of delivery of the monthly financial statements and the Compliance Certificate for June 2006, and continuing thereafter, the Applicable Margin for the Loans shall be subject to adjustment as set forth in the definition of Applicable Margin. The Agent will with reasonable promptness notify the Borrower and the Lenders of the effective date and the amount of each such change (other than changes affecting the Swing Line Notes); provided, that any failure to do so shall not relieve the Borrower of any liability hereunder or provide the basis for any claim against the Agent. Each determination of an interest rate by the Agent (or, with respect to the Swing Line Loans, the Swing Line Lender) shall be conclusive and binding on Borrower and the Lenders in the absence of demonstrable error. All computations of fees (other than the Agent’s annual fee) and interest payable under this Agreement shall be made on the basis of a 360-day year and actual days elapsed. Interest and fees shall accrue during each period during which interest or such fees are computed from the first day thereof to the last day thereof. The Borrower hereby agrees that all accrued and unpaid interest due and owing to the Lenders under the Original Credit Agreement as of the Restatement Effective Date shall be deemed accrued and continued hereunder and shall be paid in cash by the Borrower to the Agent, for the benefit of the Lenders, on the Restatement Effective Date.

(b) Interest on each Loan shall be paid in arrears on each Interest Payment Date. Interest shall also be paid on the date of any payment or prepayment of Loans in full.

(c) At the election of the Agent or the Required Lenders while any Event of Default under subsections 4.1, 4.2(b), 7.1(a) or, as a result of the Borrower’s failure to observe any of the covenants contained in Article VI hereof, 7.1(c) exists (or automatically while any Event of Default under subsections 7.1(f), 7.1(g) or 7.1(m)(iv) exists), the Borrower shall pay interest (after as well as before entry of judgment thereon to the extent permitted by law) on the Obligations from and after the date of occurrence and during the continuance of such Event of Default, at a rate per annum which is determined by adding two percent (2.0%) per annum to the Applicable Margin then in effect for such Loans (plus the LIBOR or Base Rate, as the case may be) and, in the case of Obligations not subject to an Applicable Margin (other than the fees described in subsection 1.9(c)), at a rate per annum equal to the rate per annum applicable to Revolving Loans which are Base Rate Loans (including the Applicable Margin with respect thereto) plus two percent (2.0%); provided, however, that, on and after the expiration of any Interest Period applicable to any LIBOR Rate Loan outstanding during the continuance of such Event of Default, the principal amount of such Loan shall, during the continuation of such Event of Default, bear interest at a rate per annum equal to the Base Rate plus the Applicable Margin plus two percent (2.0%). All such interest shall be payable on demand of the Agent or the Required Lenders.

(d) Anything herein to the contrary notwithstanding, the obligations of the Borrower hereunder shall be subject to the limitation that payments of interest shall not be required, for any period for which interest is computed hereunder, to the extent (but only to the extent) that contracting for or receiving such payment by the respective Lender would be contrary to the provisions of any law applicable to such Lender limiting the highest rate of interest which may be lawfully contracted for, charged or received by such Lender, and in such event the Borrower shall pay such Lender interest at the highest rate permitted by applicable law.

 

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1.4 Loan Accounts.

(a) The Agent, on behalf of the Lenders, shall record on its books and records the amount of each Loan (other than Swing Line Loans) made, the interest rate applicable, all payments of principal and interest thereon and the principal balance thereof from time to time outstanding. The Agent shall deliver to the Borrower on a monthly basis a loan statement setting forth such record for the immediately preceding month. Such record shall, absent demonstrable error, be conclusive evidence of the amount of the Loans (other than Swing Line 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, or any failure to deliver such loan statement shall not, however, limit or otherwise affect the obligation of the Borrower hereunder (and under any Note) to pay any amount owing with respect to the Loans or provide the basis for any claim against the Agent.

(b) Swing Line Lender shall record on its books and records the amount of each Swing Line Loan made by it, the interest rate applicable, all payments of principal and interest thereon and the principal balance thereof from time to time outstanding. The Swing Line Lender shall deliver to the Borrower and Agent on a monthly basis (no later than ten (10) Business Days after the end of the previous month) a loan statement setting forth such record for the immediately preceding month. Such records shall, absent demonstrable error, be conclusive evidence of the amount of the Swing Line Loans made by the Swing Line Lender to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so, or any failure to deliver such loan statement shall not, however, limit or otherwise affect the obligation of the Borrower hereunder (and under any Swing Line Note) to pay any amount owing with respect to the Swing Line Loans or provide the basis for any claim against the Swing Line Lender. Except as specifically set forth in this Agreement, in no event shall Agent have any responsibility whatsoever for administration of the Swing Line Commitment and Swing Line Loans.

1.5 Procedure for Revolving Credit Borrowing.

(a) Each Borrowing of a Revolving Loan shall be made upon the Borrower’s irrevocable (subject to Section 10.5 hereof) written notice delivered to the Agent in the form of a Notice of Borrowing, which notice must be received by the Agent prior to 11:00 a.m. (Chicago time) (i) on the requested Borrowing date in the case of each Base Rate Loan equal to or less than $1,000,000 and in the case of the Loans to be made on the Restatement Effective Date, (ii) on the date which is one (1) Business Day prior to the requested Borrowing date of each Base Rate Loan in excess of $1,000,000 but equal to or less than $3,000,000 and (iii) on the day which is three (3) Business Days prior to the requested Borrowing date in the case of each LIBOR Rate Loan and each Base Rate Loan in excess of $3,000,000; provided, that with respect to Loans subsequent to the Loans to be made on the Restatement Effective Date, the Borrower may give notice of the requested Borrowing to the Agent by telephone call, with such notice confirmed not later than the following Business Day by delivery to the Agent of a signed Notice of Borrowing. Such Notice of Borrowing shall specify:

(i) the amount of the Borrowing (which shall be in an aggregate minimum principal amount of $100,000 and multiples of $50,000 in excess thereof);

 

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

(iii) whether the Borrowing is to be comprised of LIBOR Rate Loans or Base Rate Loans; and

(iv) if the Borrowing is to be LIBOR Rate Loans, the Interest Period applicable to such Loans;

provided , however , that with respect to the Borrowing to be made on the Restatement Effective Date, such Borrowing will consist of Base Rate Loans only and shall remain so for not less than three (3) Business Days after the Restatement Effective Date. Thereafter, Borrower may request that Revolving Loans be made as LIBOR Rate Loans and that Loans be converted to or continued as LIBOR Rate Loans.

(b) Upon receipt of the Notice of Borrowing, Agent will promptly notify each Lender with a Commitment affected thereby of such Notice of Borrowing and of the amount of such Lender’s Commitment Percentage of the Borrowing.

(c) Unless Agent is otherwise directed in writing by Borrower, the proceeds of each requested Borrowing after the Restatement Effective Date will be made available to the Borrower by the Agent by wire transfer (or ACH transfer) of such amount to the Borrower pursuant to the wire transfer instructions specified on the signature page hereto.

(d) Each Borrowing of Swing Line Loans shall be made upon the Borrower’s irrevocable notice delivered to the Swing Line Lender in a form acceptable to the Swing Line Lender (such notice, a “Notice of Swing Line Borrowing”), which notice must be received by the Swing Line Lender prior to 12:00 p.m. (Chicago time) on the requested Borrowing date.

1.6 Conversion and Continuation Elections.

(a) The Borrower may upon irrevocable (subject to subsection 10.2(c) and Section 10.5) written notice to the Agent in accordance with subsection 1.6(b) elect to convert on any Business Day, any Base Rate Loans into LIBOR Rate Loans or elect to continue on the last day of the applicable Interest Period any LIBOR Rate Loans having Interest Periods maturing on such day, in each instance, in whole or in part in an amount not less than $100,000, or that is in an integral multiple of $50,000 in excess thereof.

(b) The Borrower shall deliver a Notice of Continuation/Conversion to be received by the Agent not later than 11:00 a.m. (Chicago time) at least three (3) Business Days in advance of the requested Conversion Date or continuation date, specifying:

(i) the proposed Conversion Date or continuation date;

(ii) the aggregate amount of Loans to be converted or continued; and

(iii) the duration of the requested Interest Period with respect to the Loans to be converted or continued as LIBOR Rate Loans.

 

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(c) If upon the expiration of any Interest Period applicable to LIBOR Rate Loans, the Borrower has failed to select timely a new Interest Period to be applicable to such LIBOR Rate Loans or if any Event of Default shall then exist, the Borrower shall be deemed to have elected to convert such LIBOR Rate Loans into Base Rate Loans effective as of the expiration date of such current Interest Period.

(d) Upon receipt of a Notice of Continuation/Conversion, the Agent will promptly notify each Lender thereof. In addition, the Agent will, with reasonable promptness, notify the Borrower and the Lenders of each determination of LIBOR; provided that any failure to do so shall not relieve the Borrower of any liability hereunder or provide the basis for any claim against the Agent. All conversions and continuations shall be made pro rata according to the respective outstanding principal amounts of the Loans held by each Lender with respect to which the notice was given.

(e) Unless the Required Lenders shall otherwise agree, during the existence of an Event of Default, the Borrower may not elect to have a Loan converted into or continued as a LIBOR Rate Loan.

(f) Notwithstanding any other provision contained in this Agreement, after giving effect to any Borrowing, or to any continuation or conversion of any Loans, there shall not be more than eight (8) different Interest Periods in effect. LIBOR Rate Loans that shall have been evidenced by the Original Credit Agreement and remain outstanding as of the Restatement Effective Date shall continue as LIBOR Rate Loans hereunder and the Interest Periods relating thereto shall continue as Interest Periods hereunder.

(g) Notwithstanding anything herein to the contrary, Swing Line Loans shall at all times be Base Rate Loans and no Swing Line Loans may be borrowed as, or converted into, a LIBOR Rate Loan.

1.7 Optional Prepayments.

(a) The Borrower may at any time upon at least two (2) Business Days’ (one (1) Business Day for Revolving Loans) prior written notice to the Agent, prepay the Loans in whole or in part in an amount greater than or equal to $100,000, in each instance, without penalty or premium except as provided in Section 10.4. Optional partial prepayments of the Term Loan shall be applied in the manner set forth in subsection 1.8(f) hereof. Optional partial prepayments of the Term Loan in amounts less than $100,000 shall not be permitted.

(b) The notice of any prepayment shall not thereafter be revocable by the Borrower and the Agent will promptly notify each Lender thereof and of such Lender’s Commitment Percentage of such prepayment. The payment amount specified in such notice shall be due and payable on the date specified therein. Together with each prepayment under this Section 1.7, the Borrower shall pay any amounts required pursuant to Section 10.4.

(c) The Borrower shall be permitted at any time and from time to time from and after the Restatement Effective Date, to reduce voluntarily the Swing Line Commitment in the minimum amount of $500,000 and in integral multiples of $100,000 in excess thereof for each such reduction; provided , that the Borrower shall only be permitted to make two (2) such

 

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voluntary reductions in the Swing Line Commitment pursuant to the provisions of this subsection 1.7(c). All requests for a reduction in the Swing Line Commitment shall be made by irrevocable written notice of the Borrower to Agent and the Swing Line Lender stating the amount and effective date of such reduction and shall be received by Agent and the Swing Line Lender not less than three (3) Business Days prior to the effective date of such reduction and Agent shall promptly notify each Lender thereof. All reductions in the Swing Line Commitment made pursuant to the terms of this subsection 1.7(c) shall be permanent. In addition to the foregoing, if and to the extent the Revolving Loan Commitment is reduced (whether pursuant to subsection 1.7(a) or otherwise to an amount less than the Swing Line Commitment, the Swing Line Commitment shall automatically be reduced by an amount equal to the excess of the Swing Line Commitment over the Revolving Loan Commitment, such that the Swing Line Commitment never exceeds the Revolving Loan Commitment.

1.8 Mandatory Prepayments of Loans and Commitment Reductions.

(a) Scheduled Term Loan Payments. The principal amount of the Term Loan shall be paid in installments on the dates and in the respective amounts shown below:

 

Date of Payment:

   Amount of Term Loan Payment:

March 31, 2006

   $625,000

June 30, 2006

   $625,000

September 30, 2006

   $625,000

December 31, 2006

   $625,000

March 31, 2007

   $750,000

June 30, 2007

   $750,000

September 30, 2007

   $750,000

December 31, 2007

   $750,000

March 31, 2008

   $875,000

June 30, 2008

   $875,000

September 30, 2008

   $875,000

December 31, 2008

   $875,000

March 31, 2009

   $1,000,000

June 30, 2009

   $1,000,000

September 30, 2009

   $1,000,000

December 31, 2009

   $1,000,000

March 31, 2010

   $1,125,000

June 30, 2010

   $1,125,000

September 30, 2010

   $1,125,000

December 31, 2010

   $1,125,000

March 31, 2011

   $13,125,000

June 30, 2011

   $13,125,000

September 30, 2011

   $13,125,000

December 31, 2011

   Remaining outstanding balance of Term Loan

 

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(b) Revolving Loan and the Swing Line Loan. The Borrower shall repay to the Lenders in full on the date specified in clause (a) of the definition of “Revolving Termination Date” the aggregate principal amount of the Revolving Loans outstanding on the Revolving Termination Date. The Borrower shall repay to the Swing Line Lender in full on the date specified in clause (a) of the definition of “Revolving Termination Date” the aggregate principal amount of the Swing Line Loans outstanding on the Revolving Termination Date.

(c) Asset Dispositions. If the Borrower or any of its Subsidiaries shall at any time or from time to time:

(i) make or agree to make a Disposition; or

(ii) suffer an Event of Loss;

and the aggregate amount of the Net Proceeds received by Borrower and its Subsidiaries in connection with such Disposition or Event of Loss and all other Dispositions and Events of Loss occurring during the fiscal year exceeds $500,000, then (A) the Borrower shall promptly notify Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Proceeds to be received by the Borrower and/or any of its Subsidiaries in respect thereof) and (B) promptly upon receipt by the Borrower and/or any of its Subsidiaries of the Net Proceeds of such Disposition or Event of Loss, the Borrower shall deliver, or cause to be delivered, such Net Proceeds to the Agent for distribution (i) first, to the Swing Line Lender as a prepayment of the Swing Line Loans (but not as a permanent reduction of the Swing Line Commitment) until the Swing Line Loans are repaid in full and (ii) following the repayment in full of the Swing Line Loans, thereafter to the Lenders as a prepayment of the Loans, which prepayment shall be applied in accordance with subsection 1.8(f) hereof. Notwithstanding the foregoing, provided no Default or Event of Default has occurred and is continuing and such reinvestment of Net Proceeds is permitted under the Subordinated Indebtedness Documents, such prepayment shall not be required to the extent the Borrower reinvests the Net Proceeds of such Disposition or Event of Loss, or a portion thereof, in productive assets of a kind then used or usable in the business of the Borrower, within one hundred eighty (180) days after the date of such Disposition or Event of Loss or enters into a binding commitment thereof within said one hundred eighty (180) day period and subsequently makes such reinvestment. Pending such reinvestment, the Net Proceeds shall be delivered to the Agent, for distribution to the Lenders, as a prepayment of the Revolving Loans (to the extent of Revolving Loans then outstanding), but not as a permanent reduction of the Revolving Loan Commitment.

(d) Issuance of Securities. Immediately upon the receipt by Holdings, Borrower or any of its respective Subsidiaries of the Net Issuance Proceeds of the issuance of equity securities or debt securities (other than Net Issuance Proceeds from the issuance of (i) debt securities in respect of Indebtedness permitted hereunder, (ii) equity securities to employees of

 

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Holdings, the Borrower and its Subsidiaries, (iii) equity securities to the Sponsor and its Controlled Investment Affiliates and (iv) equity securities, the proceeds of which are used to finance a Permitted Acquisition), the Borrower shall deliver, or cause to be delivered, to Agent an amount equal to such Net Issuance Proceeds, for application to the Loans in accordance with subsection 1.8(f).

(e) Excess Cash Flow. Within five (5) days after the annual financial statements are required to be delivered pursuant to subsection 4.1(a) hereof, commencing with such annual financial statements for the fiscal year ending December 31, 2006, the Borrower shall deliver to the Agent a written calculation of Excess Cash Flow of the Borrower for such fiscal year or, with respect to the fiscal year ending December 31, 2006, for the period from the Restatement Effective Date through the last day of such fiscal year, in the form of Exhibit 1.8(e) and certified as correct on behalf of Borrower by a Responsible Officer and concurrently therewith shall deliver to the Agent, for distribution to the Lenders, an amount equal to the applicable ECF Percentage of such Excess Cash Flow, for application to the Loans in accordance with the provisions of subsection 1.8(f) hereof. Excess Cash Flow prepayments shall be calculated in the manner set forth in Exhibit 1.8(e).

(f) Application of Prepayments. Any prepayment pursuant to subsection 1.8(e) shall be applied as follows: (i) the first fifty percent (50%) of such prepayment shall be applied to prepay all remaining scheduled installments of the Term Loan in the order of their maturity and (ii) the remaining fifty percent (50%) of such prepayment shall be applied to prepay all remaining scheduled installments of the Term Loan in the inverse order of their maturity. Any prepayments of Term Loan pursuant to Section 1.7(a) and any prepayments pursuant to subsections 1.8(c) (other than prepayments of Swing Line Loans and Revolving Loans as set forth therein) or 1.8(d) shall be applied as follows: (i) first, to prepay all remaining installments of the Term Loan pro rata against all such scheduled installments based upon the respective amounts thereof until the Term Loan shall have been paid in full, and (ii) second, to prepay the Swing Line Loans and thereafter in permanent reduction of the Revolving Loans (along with a corresponding permanent reduction of the Swing Line Commitment solely at such time as the Revolving Loan Commitment is reduced to an amount equal to the Swing Line Commitment so that at no time will the Revolving Loan Commitment be less than the Swing Line Commitment), whereupon the Revolving Loan Commitment of each Lender shall automatically and permanently be reduced by an amount equal to such Lender’s ratable share of the aggregate of principal repaid, effective as of the earlier of the date that such prepayment is made or the date by which such prepayment is due and payable hereunder. To the extent permitted by the foregoing sentences, amounts prepaid shall be applied first to any Base Rate Loans then outstanding and then to outstanding LIBOR Rate Loans with the shortest Interest Periods remaining, or as the Borrower may otherwise specify in writing at the time of such prepayment. Together with each prepayment under this Section 1.8, the Borrower shall pay any amounts required pursuant to Section 10.4 hereof.

(g) Refunding Swing Line Loans. With respect to any outstanding Swing Line Loans incurred in accordance with the terms of this Agreement (for the sake of clarity, any Swing Line Loans incurred without the prior written consent of Required Revolving Lenders as required pursuant to subsection 1.1(d) after the Borrower or Agent gives notice to Swing Line Lender of an Event of Default, and any Swing Line Loans made in excess of the Swing Line Commitment

 

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at the time of making of such Swing Line Loan shall not be deemed to be Swing Line Loans incurred in accordance with the terms of this Agreement), at the request of the Swing Line Lender in its sole and absolute discretion, the Swing Line Lender may, at any time, and is hereby authorized and empowered by the Borrower to, request a Borrowing of Revolving Loans to be made for the purpose of repaying such Swing Line Loans by delivering to the Agent (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m. (Chicago time), one (1) Business Day prior to the proposed Borrowing date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders with Revolving Loan Commitments to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing date in an aggregate amount equal to the amount of the Swing Line Loans requested to be paid (the “Refunded Swing Line Loans”). Upon receipt of any such notice, the Agent will promptly notify each Lender with a Revolving Loan Commitment (or, if such Revolving Loan Commitments shall have been terminated, with a Revolving Loan Commitment immediately prior to such termination) thereof (which notice shall be given either telephonically (promptly confirmed thereafter by telecopy) or by telecopy). Whether or not the conditions set forth in Section 2.2 or any other condition set forth in this Agreement have been satisfied, and notwithstanding any termination or reduction of the Revolving Loan Commitments, no later than 3:00 p.m. (Chicago time) on the requested Borrowing date, each Lender with a Revolving Loan Commitment (other than the Swing Line Lender, which shall be deemed to have funded its portion of the Revolving Loan requested through a book entry reduction of an equal amount of the outstanding Swing Line Loans) will make available to the Agent an amount, in Dollars in immediately available funds, equal to the amount of the Revolving Loans to be made by such Lender. To the extent the Lenders with Revolving Loan Commitments have made such amounts available to the Agent as provided hereinabove, the Agent will make the aggregate of such amounts available to the Swing Line Lender in like funds as received by the Agent, which shall apply such amounts in repayment of the Refunded Swing Line Loans.

If any Lender with a Revolving Loan Commitment fails for any reason whatsoever (other than with respect to Swing Line Loans not incurred in accordance with the terms of this Agreement as described in the preceding paragraph) to make a Revolving Loan when requested by the Swing Line Lender pursuant to this subsection 1.8(g), such Lender will, by the time and in the manner such Revolving Loan was to have been funded to the Swing Line Lender, purchase from the Swing Line Lender an undivided participating interest in the outstanding Swing Line Loans and pay to the Swing Line Lender an amount equal to its Commitment Percentage (based on the Revolving Loan Commitments of the Lenders or, if the Revolving Loan Commitments shall have been terminated, the Revolving Loan Commitments immediately prior to such termination) of the aggregate principal amount of Swing Line Loans that were to have been paid with Revolving Loans. Each Lender with a Revolving Loan Commitment that so purchases a participation in a Swing Line Loan shall thereafter be entitled to receive its pro rata share (based on the amount of such Lender’s participation interest in the Swing Line Loans that were to have been paid with Revolving Loans) of each payment of principal received on such Swing Line Loans and of interest received thereon accruing from the date such Lender funded to the Swing Line Lender its participation in such Swing Line Loan. The several obligations of the Lenders with a Revolving Loan Commitment (or, if such Revolving Loan Commitments shall have been terminated, with a Revolving Loan Commitment immediately prior to such termination) under this subsection 1.8(g) shall be absolute, irrevocable and unconditional under any and all circumstances whatsoever and shall not be subject to any set-off, counterclaim or defense to

 

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payment which any such Lender may have or have had against the Borrower, any other Lender or any other Person whatsoever. Without limiting the generality of the foregoing, each payment made by a Lender with a Revolving Loan Commitment (or, if such Revolving Loan Commitments shall have been terminated, with a Revolving Loan Commitment immediately prior to such termination) under this subsection 1.8(g) shall be made without any offset, abatement, withholding or reduction whatsoever.

1.9 Fees.

(a) Agent’s Fees. The Borrower shall pay to the Agent for the Agent’s own account the fees in the amounts and at the times set forth in an amended and restated letter agreement between the Borrower and the Agent dated of even date herewith (as further amended from time to time, the “Fee Letter”).

(b) Commitment Fee. Borrower shall pay to Agent, for the ratable benefit of the Lenders having Revolving Loan Commitments, a fee (the “Commitment Fee”) in an amount equal to

(i) the Aggregate Revolving Loan Commitment, less

(ii) the sum of (x) the average daily balance of all Revolving Loans outstanding plus (y) the average daily amount of Letter of Credit Participation Liability, in each case, during the preceding month,

multiplied by one-half of one percent (0.5%) per annum, such fee to be payable monthly in arrears on the first day of the month following the date hereof and the first day of each month thereafter. The Commitment Fee provided in this subsection 1.9(b) shall accrue at all times from and after the Restatement Effective Date. The Borrower hereby agrees that accrued and unpaid Commitment Fees under the Original Credit Agreement as of the Restatement Effective Date shall be deemed accrued and continued hereunder and shall be paid in full in cash by the Borrower to the Agent, for the benefit of the Lenders, on the first day of the month following the date hereof.

(c) Letter of Credit Participation Fee. Borrower shall pay to Agent, for the ratable benefit of the Lenders having Revolving Loan Commitments, fees for each Lender Letter of Credit and each Letter of Credit Participation Agreement (the “Letter of Credit Participation Fee”) for the period from and including the date of issuance of same to and excluding the date of expiration or termination, equal to the average daily amount of Letter of Credit Participation Liability multiplied by the Applicable Margin then in effect for Revolving Loans outstanding as LIBOR Loans; provided, however, at the Agent’s or the Required Lenders’ option, while an Event of Default under subsections 4.1, 4.2(b), 7.1(a) or, as a result of the Borrower’s failure to observe any of the covenants contained in Article VI hereof, 7.1(c), exists (or automatically while any Event of Default under subsections 7.1(f), 7.1(g) or 7.1(m)(iv) exists), such percent shall be increased by two percent (2.0%) per annum. The Letter of Credit Participation Fee is payable monthly in arrears on the first day of the month following the date hereof and the first day of each month thereafter. Borrower shall also reimburse Agent for any and all fees and expenses, if any, paid by Agent to the issuer of any letter of credit subject to a Letter of Credit

 

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Participation Agreement. The Borrower hereby agrees that all accrued and unpaid Letter of Credit Participation Fees due and owing to the Lenders that have Revolving Loan Commitments under the Original Credit Agreement as of the Restatement Effective Date shall be deemed accrued and continued hereunder and shall be paid in full in cash by the Borrower to the Agent, for the benefit of the Lenders that have Revolving Loan Commitments, on the first day of the month following the date hereof.

1.10 Payments by the Borrower.

(a) All payments (including prepayments) to be made by the Borrower on account of principal, interest, fees and other amounts required hereunder shall be made without set-off, recoupment, counterclaim or deduction of any kind, shall, except as otherwise expressly provided herein, be made to the Agent for the ratable account of the Lenders in accordance with subsection 1.10(c) at the address for payment specified in the signature page hereof in relation to the Agent (or such other address as Agent may from time to time specify in accordance with Section 9.2), and shall be made in dollars and in immediately available funds, no later than 11:00 a.m. (Chicago time) on the date due; provided, that any payments made by the Borrower to the Swing Line Lender in respect of Swing Line Loans (other than in accordance with subsection 1.8(g)), shall be paid directly to Swing Line Lender. Any payment which is received by the Agent later than 11:00 a.m. (Chicago time) shall be deemed to have been received on the immediately succeeding Business Day and any applicable interest or fee shall continue to accrue. Borrower hereby authorizes Agent and each Lender to make a Revolving Loan (which shall be a Base Rate Loan) to pay (i) interest, principal, Agent fees, Commitment Fees and Letter of Credit Participation Fees, in each instance, on the date due and, with respect to Swing Line Loans, in accordance with subsection 1.8(g), or (ii) after five (5) days’ prior notice to Borrower, other fees, costs or expenses payable by Borrower or any of its Subsidiaries hereunder or under the other Loan Documents.

(b) Subject to the provisions set forth in the definition of “Interest Period” herein, if any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of interest or fees, as the case may be.

(c) All amounts collected or received by the Agent after the Obligations have been accelerated (so long as such acceleration has not been rescinded) and all proceeds received by the Agent as a result of the exercise of its remedies under the Collateral Documents after the occurrence and during the continuance of an Event of Default shall be applied, as follows:

first, to payment of costs and expenses, including Attorney Costs, of Agent payable or reimbursable by Borrower under the Loan Documents;

second, to payment of Attorney Costs of Lenders payable or reimbursable by Borrower under this Agreement;

third, to payment of all accrued unpaid interest on the Obligations and fees owed to the Agent and the Lenders (including, without limitation, regularly scheduled periodic payments under any Rate Contract between Borrower and a Lender or an Affiliate of a

 

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Lender (or a Person who was a Lender or an Affiliate of a Lender at the time of execution and delivery thereof) required hereunder);

fourth, to payment of principal of the Obligations (including any termination payment under any Rate Contract between the Borrower and a Lender or an Affiliate of a Lender (or a Person who was a Lender or an Affiliate of a Lender at the time of execution and delivery thereof) required hereunder and, if an Event of Default has occurred and is continuing, cash collateralization of Letter of Credit Participation Liability);

fifth, to payment of any other amounts owing constituting Obligations; and

sixth, any remainder shall be for the account of and paid to whoever may be lawfully entitled thereto.

In carrying out the foregoing, (i) amounts received shall be applied in the numerical order provided until exhausted prior to the application to the next succeeding category; (ii) each of the Lenders or other Persons entitled to payment shall receive an amount equal to its pro rata share (based on the Commitment Percentages of the Lenders, as applicable) of amounts available to be applied pursuant to clauses second, third, fourth and fifth above; and (iii) to the extent that the Revolving Loan Commitments shall not have been terminated either before or after such application of any amounts applied to the Revolving Loans pursuant to this subsection 1.10(c), any such amounts applied to the Revolving Loans shall act as a permanent reduction of the Revolving Loans, whereupon the Revolving Loan Commitment of each Lender shall automatically and permanently be reduced by an amount equal to such Lender’s ratable share of the aggregate of principal repaid, effective as of the date that such application is made.

1.11 Payments by the Lenders to the Agent; Settlement.

(a) As set forth in subsection 1.5(b), upon receipt of a Notice of Borrowing, the Agent will promptly notify each Lender of such Lender’s Commitment Percentage of the Borrowing requested thereby. Each Lender with a Revolving Loan Commitment will fund its Commitment Percentage of Borrowings of Revolving Loans to Agent at Agent’s account specified on its signature page hereto, or to such other account as Agent may designate in writing, no later than 1:00 p.m. (Chicago time) on the scheduled Borrowing date.

(b) Unless the Agent shall have received notice from a Lender on the Restatement Effective Date or, with respect to each Borrowing after the Restatement Effective Date by 12:00 p.m. (Chicago time) on the date of any proposed Borrowing, that such Lender will not make available to the Agent as and when required hereunder for the account of the Borrower the amount of such Lender’s Commitment Percentage of the proposed Borrowing, the Agent may assume that each Lender has made such amount available to the Agent in immediately available funds on the applicable Borrowing date and the Agent may (but shall not be so required), in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent any Lender shall not have made its full amount available to the Agent in immediately available funds and the Agent in such circumstances has made available to the Borrower such amount, that Lender shall on the next Business Day following the date of such Borrowing make such amount available to the Agent, together with interest at the Federal Funds

 

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Rate for and determined as of each day during such period. A notice of the Agent submitted to any Lender with respect to amounts owing under this subsection 1.11(b) shall be conclusive, absent manifest error. If such amount is so made available, such payment to the Agent shall constitute such Lender’s Loan on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to the Agent on the next Business Day following the date of such Borrowing, the Agent shall notify the Borrower of such failure to fund and, upon demand by the Agent, the Borrower shall pay such amount to the Agent for the Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Loans comprising such Borrowing.

(c) The failure of any Lender to make any Loan on any date of Borrowing shall not relieve any other Lender of any obligation hereunder to make a Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing. Without limiting the generality of the foregoing, each Lender shall be obligated to fund its Commitment Percentage of any Revolving Loan made after any acceleration of the Obligations with respect to any draw on any Lender Letter of Credit or any payment made under any Letter of Credit Participation Agreement.

(d) Provided that such Lender has made all payments required to be made by it under this Agreement, the Agent will pay to such Lender, by wire transfer to such Lender’s account (as specified by such Lender on such Lender’s respective signature page to this Agreement or the applicable Assignment and Acceptance) such Lender’s Commitment Percentage of principal, interest, Commitment Fees and Letter of Credit Participation Fees, in each instance, received by Agent, promptly after Agent’s receipt thereof.

(e) Unless the Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Lenders hereunder that the Borrower will not make such payment in full as and when required hereunder, the Agent may assume that the Borrower has made such payment in full to the Agent on such date in immediately available funds and the Agent may (but shall not be so required), in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender. If the Agent pays an amount to a Lender under this Agreement in the belief or expectation that a related payment has been or will be received by the Agent from the Borrower and such related payment is not received by the Agent, the Agent shall be entitled to recover such amount from such Lender, and such Lender shall repay to Agent on demand such amount, together with interest thereon for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Agent, at the Federal Funds Rate, without setoff, recoupment, counterclaim or deduction of any kind. If the Agent determines at any time that any amount received by the Agent under this Agreement must be returned to the Borrower or paid to any other Person pursuant to any solvency, fraudulent conveyance or similar law or otherwise, then, notwithstanding any other term or condition of this Agreement, the Agent will not be required to distribute any portion of such payment to any Lender. In addition, each Lender will repay to the Agent on demand any portion of such amount that the Agent has distributed to such Lender, together with interest thereon at such rate, if any, as the Agent is required to pay to the Borrower or such other Person, without setoff, recoupment, counterclaim or deduction of any kind.

 

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ARTICLE II - CONDITIONS PRECEDENT

2.1 Conditions of Effectiveness. The effectiveness of this Agreement and the obligation of each Lender to make Loans and of the Agent (or Affiliate of the Agent) to issue Lender Letters of Credit or Letter of Credit Participation Agreements hereunder is subject to the condition that the Agent shall have received on or before the Restatement Effective Date all of the following, in form and substance reasonably satisfactory to the Agent and each Lender and (except for the Notes and any instruments or documents which are Pledged Collateral) in sufficient counterparts for each Lender, duly executed by all parties thereto:

(a) Credit Agreement and Notes. This Agreement executed by the Borrower, the Agent and each of the Lenders, and the Notes executed by the Borrower;

(b) Secretary’s Certificates; Resolutions; Incumbency. A certificate of the Secretary or Assistant Secretary (or other authorized officer reasonably acceptable to the Agent) of Holdings, the Borrower, and each Subsidiary of the Borrower which is a party to any Loan Document, certifying:

(i) the names and true signatures of the officers of Holdings, the Borrower and each such Subsidiary authorized to execute, deliver and perform, as applicable, this Agreement, and all other Loan Documents to be delivered hereunder; and

(ii) copies of the resolutions of the board of directors or other governing body of Holdings, the Borrower and each such Subsidiary approving and authorizing the execution, delivery and performance, as applicable, by Holdings, the Borrower or such Subsidiary of this Agreement and the other Loan Documents to be executed or delivered by it hereunder;

(c) Organization Documents and Good Standing. Each of the following documents:

(i) the Organization Documents of Holdings, the Borrower and each Subsidiary of the Borrower, as such Organization Documents are in effect on the Restatement Effective Date, certified by the Secretary of State (or similar, applicable Governmental Authority) of the state of incorporation or formation of Holdings, the Borrower or such Subsidiary as of a recent date, if and as applicable, all certified by the Secretary or Assistant Secretary (or other authorized officer reasonably acceptable to the Agent) of Holdings, the Borrower or such Subsidiary as of the Restatement Effective Date; and

(ii) a good standing and, if available, tax good standing certificate for Holdings, the Borrower and each Subsidiary of the Borrower from the Secretary of State (or similar, applicable Governmental Authority) of its state of incorporation or formation, as applicable, and each state where Holdings, Borrower or such Subsidiary is qualified to do business as a foreign entity as of a recent date;

(d) Collateral Documents. The Collateral Documents, to the extent not previously delivered to the Agent under the Original Credit Agreement, executed by Holdings, the Borrower or any Subsidiary of the Borrower, as applicable, in appropriate form for recording, where

 

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necessary, together with (to the extent not previously delivered to the Agent under the Original Credit Agreement):

(i) acknowledgment copies of all uniform commercial code financing statements filed, registered or recorded to perfect the security interests of the Agent, for the benefit of Agent and the Lenders, granted pursuant to the Collateral Documents, or other evidence reasonably satisfactory to the Agent that there has been filed, registered or recorded all financing statements and other filings, registrations and recordings reasonably necessary and advisable to perfect the Liens of the Agent, for the benefit of Agent and the Lenders, granted pursuant to the Collateral Documents, in accordance with applicable law;

(ii) uniform commercial code financing statement, federal and state tax lien, pending litigation, and judgment searches as the Agent shall have reasonably requested of Holdings and the Borrower, its Subsidiaries, and such other Persons as Agent may reasonably request, and such termination statements, releases or other documents as may be reasonably necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);

(iii) all certificates and instruments representing the Pledged Collateral, irrevocable proxies and stock transfer powers executed in blank or other executed endorsements reasonably satisfactory to the Agent, with signatures guaranteed as the Agent may reasonably require;

(iv) evidence that all other actions reasonably necessary or, in the reasonable opinion of the Agent, desirable to perfect and protect the Liens created by the Collateral Documents have been taken;

(v) funds sufficient to pay any filing or recording tax or fee in connection with any and all uniform commercial code financing statements and, if applicable, the Mortgages, or amendments thereto, all title insurance premiums, documentary stamp or intangible taxes, recording fees and mortgage taxes payable in connection with the recording of any Mortgage, amendment thereto, or filing of any uniform commercial code financing statements or the issuance of the title insurance policies (whether due on the Restatement Effective Date or in the future) including sums due in connection with any future advances;

(vi) with respect to each parcel of real Property in respect of which there is delivered a Mortgage, if any (or, with respect to mortgagee policies of title insurance delivered in connection with the Original Credit Agreement, date down endorsements), an A.L.T.A. mortgagee policy of title insurance or a binder issued by a title insurance company reasonably satisfactory to the Agent insuring (or undertaking to insure, in the case of a binder) that the Mortgage creates and constitutes a valid first Lien against such real Property in favor of the Agent, for the benefit of the Agent and the Lenders, in an amount and subject only to exceptions reasonably acceptable to the Agent, with such endorsements and affirmative insurance as the Agent may reasonably request;

 

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(vii) if reasonably required by the Agent, flood insurance and earthquake insurance on terms reasonably satisfactory to the Agent;

(viii) current A.L.T.A. surveys and surveyor’s certifications as to all real Property in respect of which there is delivered a Mortgage, if any, each in form and substance reasonably satisfactory to the Agent; and

(ix) such consents, estoppels, subordination agreements and other documents and instruments executed by landlords, tenants and other Persons party to material contracts relating to any Collateral as to which the Agent shall be granted a Lien for the benefit of Agent and the Lenders, as reasonably requested by the Agent;

(e) Legal Opinions. Such opinions of counsel to Holdings, Borrower and its Subsidiaries, in each instance addressed to Agent and the Lenders, and opinions of counsel to Holdings, Borrower and its Subsidiaries in connection with the consummation of the transactions contemplated by the Subordinated Loan Agreement with reliance language in favor of the Agent and the Lenders, in each case, in form and substance reasonably satisfactory to Agent;

(f) Payment of Fees. The Borrower shall have paid all accrued and unpaid fees, costs and expenses to the extent then due and payable on the Restatement Effective Date, together with Attorney Costs of the Agent;

(g) Certificate. A certificate signed on behalf of Borrower by a Responsible Officer, dated as of the Restatement Effective Date, stating that:

(i) the representations and warranties contained in Article III hereof are true and correct in all material respects on and as of such date, as though made on and as of such date; and

(ii) no Default or Event of Default exists or would result from the consummation of the transactions contemplated hereby.

(h) Financial Statements. Copies of all of the financial statements and projections of the Borrower and its Subsidiaries referred to in Section 3.11 together with a pro forma balance sheet giving effect to the transactions contemplated hereby and by the Related Agreements, including, without limitation, the Restatement Effective Date Transactions, certified on behalf of Borrower by a Responsible Officer;

(i) Insurance Policies. Standard lenders’ or mortgagees’ (as applicable) loss payable endorsements in favor of the Agent, for the benefit of Agent and Lenders, with respect to the insurance policies or other instruments or documents evidencing insurance coverage on the properties of the Borrower and its Subsidiaries in accordance with Section 4.6 and endorsements to all liability insurance policies naming the Agent and the Lenders as additional insureds thereunder;

(j) Borrowing Base Certificate. A duly completed Borrowing Base Certificate setting forth the Borrowing Base as of a date not more than thirty (30) days prior to the Restatement Effective Date. No more than $4,750,000 in Revolving Loans shall be outstanding

 

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on the Restatement Effective Date, and after giving effect to the funding (or deemed funding) of all Loans on the Restatement Effective Date, the consummation of the Restatement Effective Date Transactions and payment of all costs and expenses in connection therewith, Availability is not less than $5,000,000;

(k) Restatement Effective Date Transactions. The Borrower shall have delivered evidence to the satisfaction of the Agent and each Lender that the Restatement Effective Date Transactions shall have been consummated or shall be consummated simultaneously with the funding (or deemed funding) of all Loans on the Restatement Effective Date;

(l) Subordination Agreement. The Subordination Agreement, executed by the parties thereto, in form and substance acceptable to the Agent;

(m) Related Transactions. The Related Transactions shall have closed in the manner contemplated by the Related Agreements and shall otherwise be in form and substance reasonably satisfactory to the Agent and, after giving effect to the Related Transactions, (i) there shall be not more than $25,100,000 of funded Subordinated Indebtedness, (ii) not less than $10,000,000 in cash equity capital shall have been contributed to Holdings, and (iii) Holdings shall have contributed not less than $10,000,000 in cash to the capital of the Borrower. The Agent shall have received executed copies of the Related Agreements certified by a Responsible Officer as true, correct and complete;

(n) EBITDA and Leverage. Borrower shall have delivered evidence to the satisfaction of Agent and each Lender demonstrating that (i) adjusted EBITDA of Borrower for the twelve month period ended December 31, 2005 shall be not less than $23,000,000, (ii) the ratio of (x) the total Indebtedness of the Borrower as of, and after giving effect to the funding (or deemed funding) of all Loans on the Restatement Effective Date, the consummation of the Related Transactions and the payment of all costs and expenses in connection therewith, to (y) adjusted EBITDA of the Borrower for the twelve month period ended December 31, 2005 shall be not greater than 4.40 to 1.00; and (iii) the ratio of (x) total Indebtedness of the Borrower less Subordinated Indebtedness of the Borrower, in each instance, as of, and after giving effect to the funding (or deemed funding) of all Loans on the Restatement Effective Date, the consummation of the Related Transactions and the payment of all costs and expenses in connection therewith, to (y) adjusted EBITDA of the Borrower for the twelve month period ended December 31, 2005 shall be not greater than 3.25 to 1.00; and

(o) Other Documents. Such other approvals, opinions, documents or materials as the Agent or any Lender may reasonably request.

2.2 Conditions to All Borrowings. The obligation of each Lender to make any Loan and of the Agent (or Affiliate of the Agent) to issue any Lender Letter of Credit or Letter of Credit Participation Agreement, or to continue a Loan as, or convert any Loan to, a LIBOR Rate Loan, is subject to the satisfaction of the following conditions precedent on the relevant Borrowing date, continuation date, Conversion Date or issuance date:

(a) Notices of Borrowing, Swing Line Borrowing or Continuation/Conversion. The Agent shall have received (with, in the case of the Loans made on the Restatement Effective

 

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Date only, a copy for each Lender) a Notice of Borrowing, a Notice of Swing Line Borrowing or a Notice of Continuation/Conversion, as applicable in accordance with Section 1.5 or Section 1.6;

(b) Continuation of Representations and Warranties. The representations and warranties made by the Borrower contained in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of such Borrowing date, continuation date, Conversion Date or issuance date, with the same effect as if made on and as of such Borrowing date, continuation date, Conversion Date or issuance date (except to the extent such representations and warranties (i) expressly refer to an earlier date, in which case they shall be true and correct as of such earlier date, (ii) are not true and correct due to events or conditions, the occurrence or existence of which are not prohibited by this Agreement or the other Loan Documents and which do not, in and of themselves, constitute a Default or an Event of Default, or (iii) are qualified by materiality, contain dollar thresholds or have Material Adverse Effect qualifiers, in which case, such representations and warranties shall be true and correct in all respects); and

(c) No Existing Default. No Default or Event of Default shall exist or shall result from such Borrowing, continuation, conversion or issuance.

Each Notice of Borrowing, Notice of Swing Line Borrowing and Notice of Continuation/Conversion submitted by the Borrower hereunder shall constitute a representation and warranty by the Borrower hereunder, as of the date of each such notice or application and as of the date of each Borrowing, continuation, conversion or issuance, as applicable, that the conditions in Section 2.2 are satisfied.

ARTICLE III - REPRESENTATIONS AND WARRANTIES

The Borrower represents and warrants to the Agent and each Lender that the following are, and after giving effect to the consummation of the Related Transactions will be, true, correct and complete:

3.1 Corporate Existence and Power. Holdings, the Borrower and each of its Subsidiaries:

(a) is a corporation, limited liability company or limited partnership, as applicable, duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable;

(b) has the power and authority and all governmental licenses, authorizations, consents and approvals to (i) own its assets and carry on its business, (ii) execute, deliver, and perform its obligations under, the Loan Documents and the Related Agreements to which it is a party and (iii) consummate the Restatement Effective Date Transactions;

(c) is duly qualified as a foreign corporation, limited liability company or limited partnership, as applicable, and licensed and in good standing under the laws of each jurisdiction where its ownership, lease or operation of Property or the conduct of its business requires such qualification or license; and

 

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(d) is in compliance with all Requirements of Law;

except, in each case referred to in clause (c) or clause (d), to the extent that the failure to do so could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

3.2 Corporate Authorization; No Contravention.

(a) The execution, delivery and performance by the Borrower of this Agreement, and Holdings, the Borrower and its Subsidiaries of any other Loan Document and Related Agreement to which such Person is party, and the consummation of the Restatement Effective Date Transactions, have been duly authorized by all necessary action, and do not and will not:

(i) contravene the terms of any of that Person’s Organization Documents;

(ii) conflict with or result in any material breach or contravention of, or the creation of any Lien (other than Liens in favor of Agent, for the benefit of Agent and the Lenders) under, any document evidencing any material Contractual Obligation to which such Person is a party or any order, injunction, writ or decree of any Governmental Authority to which such Person or its Property is subject; or

(iii) violate any material Requirement of Law in any material respect.

(b) Schedule 3.2 sets forth the authorized equity securities of each of Holdings, the Borrower and its Subsidiaries as of the Restatement Effective Date after giving effect to the consummation of the Restatement Effective Date Transactions. After giving effect to the consummation of the Restatement Effective Date Transactions, all issued and outstanding equity securities of each of Holdings, Borrower and its Subsidiaries are duly authorized and validly issued, fully paid, non-assessable, and free and clear of all Liens other than, with respect to the equity securities of Borrower and its Subsidiaries, those in favor of Agent, for the benefit of Agent and Lenders, and such securities were issued in compliance with all applicable state and federal laws concerning the issuance of securities. All of the issued and outstanding capital stock of Panther Sub is owned by the Borrower. As of the Restatement Effective Date, all of the issued and outstanding equity securities of Holdings are owned by the Persons and in the amounts set forth on Schedule 3.2. Except as set forth on Schedule 3.2, there are no pre-emptive or other outstanding rights, options, warrants, conversion rights or other similar agreements or understandings for the purchase or acquisition of any shares of capital stock or other securities of Borrower, its Subsidiaries or, as of the Restatement Effective Date, Holdings.

3.3 Governmental Authorization. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority is necessary or required in connection with the execution, delivery or performance by, or enforcement against, Holdings, the Borrower or any of its Subsidiaries of this Agreement, any other Loan Document or any Related Agreement except (a) for recordings and filings in connection with the Liens granted to the Agent under the Collateral Documents, (b) those obtained or made on or prior to the Restatement Effective Date and (c) in the case of any other Related Agreement, those which, if not obtained or made, could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

 

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3.4 Binding Effect. This Agreement and each other Loan Document and Related Agreement to which Holdings, the Borrower or any of its Subsidiaries is a party constitute the legal, valid and binding obligations of Holdings, the Borrower and each Subsidiary which is a party thereto, enforceable against such Person in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles.

3.5 Litigation. Except as specifically disclosed in Schedule 3.5, there are no actions, suits, proceedings, claims or disputes pending, or to the knowledge of the Borrower, threatened, at law, in equity, in arbitration or before any Governmental Authority, against Holdings, the Borrower, or any of its Subsidiaries or any of their respective Properties which:

(a) purport to affect or pertain to this Agreement, any other Loan Document or Related Agreement, or any of the transactions contemplated hereby or thereby; or

(b) if determined adversely to Holdings, Borrower or any of its Subsidiaries, could reasonably be expected to result in equitable relief or monetary judgment(s), individually or in the aggregate, in excess of $500,000 (other than with respect to claims relating to ordinary course traffic accidents, to the extent covered by independent third-party insurance; provided, that such third-party insurer has acknowledged coverage with respect thereto).

No injunction, writ, temporary restraining order or any order of any nature has been issued by any court or other Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of this Agreement, any other Loan Document or any Related Agreement, or directing that the transactions provided for herein or therein not be consummated as herein or therein provided.

3.6 No Default. No Default or Event of Default exists or would result from the incurring of any Obligations by the Borrower or the grant or perfection of the Agent’s Liens on the Collateral or the consummation of the Related Transactions. Neither Holdings, the Borrower nor any of its Subsidiaries is in default under or with respect to any Contractual Obligation in any respect which, individually or together with all such defaults, could reasonably be expected to have a Material Adverse Effect or that would, if such default had occurred after the Restatement Effective Date, create an Event of Default under subsection 7.1(e).

3.7 ERISA Compliance.

(a) Schedule 3.7 lists all Qualified Plans and Multiemployer Plans. Borrower and each of its Subsidiaries is in compliance in all respects with all requirements of each Plan, and each Plan complies in all respects, and is operated in compliance in all respects, with all applicable provisions of law, except to the extent such non-compliance would not reasonably be expected to result in, either individually or in the aggregate, a Material Adverse Effect. Borrower is not aware, after due inquiry, of any item of non-compliance which would reasonably be expected to result in the loss of Plan qualification or tax-exempt status, or which could not be corrected under any correction program of any Governmental Authority without resulting in a Material Adverse Effect, or which would give rise to an excise tax or other penalty imposed by a Governmental Authority that would reasonably be expected to result in a Material Adverse

 

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Effect. No proceeding, claim, lawsuit and/or investigation is pending concerning any Plan which would reasonably be expected to result in a Material Adverse Effect. Except to the extent that it could not reasonably be expected to give rise to a material liability to Borrower or any of its Subsidiaries, all required contributions have been and will be made in accordance with the provisions of each Qualified Plan and Multiemployer Plan, and with respect to Borrower or any ERISA Affiliate, there are, have been and will be no material Unfunded Pension Liabilities or Withdrawal Liabilities.

(b) No ERISA Event has occurred or is expected to occur with respect to any Qualified Plan, Multiemployer Plan or Plan that could reasonably be expected to give rise to a material liability to Borrower or any of its Subsidiaries.

(c) Members of the Controlled Group currently comply and have complied in all respects with the notice and continuation coverage requirements of Section 4980B of the Code, except such noncompliance as could not reasonably be expected to give rise to a material liability to Borrower or any of its Subsidiaries.

(d) The expected post-retirement benefit obligation (determined as of the last day of the Borrower’s most recently ended fiscal year in accordance with Financial Accounting Standards Board Statement No. 106, without regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code) of the Borrower and its Subsidiaries is not material.

3.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans are intended to be and shall be used solely for the purposes set forth in and permitted by Section 4.10, and are intended to be and shall be used in compliance with Section 5.8. Neither the Borrower nor any of its Subsidiaries is generally engaged in the business of purchasing or selling Margin Stock or extending credit for the purpose of purchasing or carrying Margin Stock. Proceeds of the Loans shall not be used for the purpose of purchasing or carrying Margin Stock.

3.9 Title to Properties. As of the Restatement Effective Date, neither the Borrower nor any of its Subsidiaries own any real Property. Except as disclosed in Schedule 3.9, the Borrower and each of its Subsidiaries have valid leasehold interests in all real Property, and good and valid title to all owned personal property and valid leasehold interests in all leased personal property, in each instance, necessary or used in the ordinary conduct of their respective businesses. The Property of the Borrower and its Subsidiaries is subject to no Liens, other than Permitted Liens.

3.10 Taxes. Except as disclosed in Schedule 3.10, the Borrower and its Subsidiaries have filed all Federal income and other material tax returns and reports required to be filed, and have paid all Federal income and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their Properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently prosecuted and for which adequate reserves have been provided in accordance with GAAP and no notice of Lien has been filed or recorded. There is no proposed tax assessment against the Borrower or any of its Subsidiaries which would, if the assessment were made, either individually or in the aggregate, have a Material Adverse Effect.

 

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3.11 Financial Condition.

(a) Each of (i) the audited consolidated balance sheet of Panther and its Subsidiaries dated December 31, 2004, and the related audited consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal year ended on that date and (ii) the unaudited interim consolidated balance sheet of the Borrower and its Subsidiaries dated November 30, 2005 (and, to the extent available, December 31, 2005) and the related unaudited consolidated statements of income, shareholders’ equity and cash flows for the eleven (11) months (and twelve (12) months, as applicable) then ended:

(x) were prepared in accordance with GAAP consistently applied throughout the respective periods covered thereby, except as otherwise expressly noted therein, subject to, in the case of the unaudited interim financial statements, normal year-end adjustments and the lack of footnote disclosures; and

(y) present fairly in all material respects the consolidated financial condition of (1) Panther and its Subsidiaries, in the case of clause (i) of this subsection 3.1 l(a), or (2) the Borrower and its Subsidiaries, in the case of clause (ii) of this subsection 3.11 (a), in each case, as of the dates thereof and results of operations for the periods covered thereby.

(b) Since December 31, 2004 there has been no Material Adverse Effect.

(c) Borrower and its Subsidiaries have no Indebtedness other than Indebtedness permitted pursuant to Section 5.5 and have no Contingent Obligations other than Contingent Obligations permitted pursuant to Section 5.9.

(d) The projections for Holdings, Borrower and its Subsidiaries for the period January 1, 2005 through December 31, 2010 heretofore delivered to Agent represent the Borrower’s good faith estimate of future financial performance and are based on assumptions believed by the Borrower to be fair and reasonable in light of current market conditions; provided, the Borrower can give no assurances that such projections will be attained.

3.12 Environmental Matters.

(a) The on-going operations of the Borrower and each of its Subsidiaries comply in all respects with all Environmental Laws, except as would not reasonably be expected to result in, either individually or in the aggregate, a Material Adverse Effect.

(b) The Borrower and each of its Subsidiaries have obtained all licenses, permits, authorizations and registrations required under any Environmental Law (“Environmental Permits”) and necessary for their respective Ordinary Course of Business, all such Environmental Permits are in good standing and in full force and effect, and the Borrower and each of its Subsidiaries are in compliance with all material terms and conditions of such Environmental Permits, except where the failure to obtain, to maintain in good standing and in full force and effect, or to be in compliance with such Environmental Permits would not reasonably be expected to result in material liability to the Borrower or any of its Subsidiaries

 

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and could not reasonably be expected to result in, either individually or in the aggregate, a Material Adverse Effect.

(c) None of the Borrower, any of its Subsidiaries or any of their respective present Property or operations, is subject to any outstanding written order from or agreement with any Governmental Authority, nor subject to any judicial or docketed administrative proceeding, respecting non-compliance with any Environmental Law, any Environmental Claim or any Hazardous Material.

(d) There are no Hazardous Materials or other conditions or circumstances existing with respect to any Property, or arising from operations prior to the Restatement Effective Date, of the Borrower or any of its Subsidiaries, that would reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect. In addition, neither the Borrower nor any of its Subsidiaries has any underground storage tanks (i) that are not properly registered or permitted under applicable Environmental Laws, or (ii) that are leaking or disposing of Hazardous Materials, the result of which would reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect.

3.13 Collateral Documents. All representations and warranties of Holdings, the Borrower or any of its Subsidiaries and any other party to any Collateral Document (other than the Agent and/or any Lender) contained in the Collateral Documents are true and correct in all material respects.

3.14 Regulated Entities. None of the Borrower, any Person controlling the Borrower, or any Subsidiary of the Borrower, is (a) an “investment company” within the meaning of the Investment Company Act of 1940; or (b) subject to regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, any state public utilities code, or any other Federal or state statute or regulation limiting its ability to incur Indebtedness.

3.15 Solvency. Each of Holdings and the Borrower, individually, is and the Borrower and its Subsidiaries, on a consolidated basis, are, Solvent.

3.16 Labor Relations. There are no strikes, lockouts or other labor disputes against the Borrower or any of its Subsidiaries, or, to the best of the Borrower’s knowledge, threatened against or affecting the Borrower or any of its Subsidiaries, in any case which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect and no significant unfair labor practice complaint is pending against the Borrower or any of its Subsidiaries or, to the best knowledge of the Borrower, threatened against any of them before any Governmental Authority in any case which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

3.17 Copyrights, Patents, Trademarks and Licenses, etc. Schedule 3.17 identifies all registrations and applications for registration of any United States and foreign patents, trademarks, service marks, trade names and copyrights, and all licenses thereof, owned or held by Borrower or any of its Subsidiaries on the Restatement Effective Date, and identifies the jurisdictions in which such registrations and applications have been filed. Except as otherwise

 

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disclosed in Schedule 3.17, as of the Restatement Effective Date, Borrower and its Subsidiaries are the sole beneficial owners of, or have the right to use, free from any Liens, restrictions or burdens, the intellectual property identified on Schedule 3.17 and all other processes, designs, formulas, computer programs, computer software packages, trade secrets, inventions, product manufacturing instructions, technology, research and development, know-how and all other intellectual property that are necessary for the operation of Borrower’s and its Subsidiaries’ businesses as being operated on the Restatement Effective Date, except to the extent any such failure will not and would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. Each patent, trademark, service mark, trade name, copyright and license listed on Schedule 3.17 is in full force and effect except to the extent the failure to be in effect will not and would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. Except as set forth in Schedule 3.17, to the best knowledge of Borrower, as of the Restatement Effective Date (a) none of the present or contemplated products or operations of Borrower or its Subsidiaries infringes any patent, trademark, service mark, trade name, copyright, license of intellectual property or other right owned by any other Person, and (b) there is no pending or threatened claim or litigation against or affecting Borrower or any of its Subsidiaries contesting the right of any of them to manufacture, process, sell or use any such product or to engage in any such operation except for infringements, claims and/or litigation which will not and could not reasonably be expected to have a Material Adverse Effect. None of the trademark applications set forth on Schedule 3.17 is an “intent-to-use” application.

3.18 Subsidiaries. The Borrower has no Subsidiaries or equity investments in any other corporation or entity other than those specifically disclosed in Schedule 3.2.

3.19 Brokers’ Fees; Transaction Fees. Except as disclosed in Schedule 3.19 and except for fees payable to the Agent and the Lenders, neither the Borrower nor any of its Subsidiaries has any obligation to any Person in respect of any finder’s, broker’s or investment banker’s fee in connection with the transactions contemplated hereby.

3.20 Insurance. The Borrower and each of its Subsidiaries and their respective Properties are insured with financially sound and reputable insurance companies, and which are not Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar Properties in localities where the Borrower or such Subsidiary operates. A true and complete listing of such insurance, including issuers, coverages and deductibles, has been provided to the Agent.

3.21 Full Disclosure. None of the representations or warranties made by the Borrower or any of its Subsidiaries in the Loan Documents as of the date such representations and warranties are made or deemed made, and none of the statements contained in each exhibit, report, statement or certificate furnished by or on behalf of the Borrower or any of its Subsidiaries in connection with the Loan Documents (including, as of the respective dates thereof, the offering and disclosure materials, if any, delivered by or on behalf of the Borrower to the Lenders prior to the Restatement Effective Date), taken as a whole, contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary

 

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to make the statements made therein, in light of the circumstances under which they are made, not misleading as of the time when made or delivered.

3.22 Certain Other Representations and Warranties. As of the (a) Original Closing Date and any other date on which representations and warranties are otherwise remade or deemed remade thereunder, (i) each of the representations and warranties contained in the Panther Purchase Agreement made by Holdings and Acquisition Co. is true and correct, and (ii) to the knowledge of the Borrower, each of the representations and warranties contained in the Panther Purchase Agreement made by Persons other than Holdings and Acquisition Co. is true and correct and (b) Restatement Effective Date and any other date on which representations and warranties are otherwise remade or deemed remade thereunder, each of the representations and warranties contained in the Subordinated Indebtedness Documents made by Holdings and the Borrower is true and correct. The Borrower agrees that, by this reference, such representations and warranties contained in the Panther Purchase Agreement and in the Subordinated Indebtedness Documents, without limiting any of the representations and warranties otherwise contained herein or in any other Loan Document, hereby are incorporated herein, mutatis mutandis, for the benefit of the Agent and each Lender.

3.23 Foreign Assets Control Regulations and Anti-Money Laundering.

(a) OFAC. Neither Holdings, Borrower nor any Subsidiary of Holdings (i) is a person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise associated with any such person in any manner violative of Section 2, or (iii) is a person on the list of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or executive order.

(b) Patriot Act. Holdings and each of its Subsidiaries are in compliance, in all material respects, with the Patriot Act. No part of the proceeds of the Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.

3.24 Material Contracts. Schedule 3.24 accurately and completely lists all Material Contracts to which any of Holdings, Borrower or its Subsidiaries is a party that are in effect on the Restatement Effective Date in connection with the operation of the business conducted thereby and Borrower has delivered to the Agent complete and correct copies of all such Material Contracts, including any amendments, supplements or modifications with respect thereto.

 

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ARTICLE IV - AFFIRMATIVE COVENANTS

The Borrower covenants and agrees that, so long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) shall remain unpaid or unsatisfied, unless the Required Lenders waive compliance in writing:

4.1 Financial Statements. The Borrower shall maintain, and shall cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit the preparation of financial statements in conformity with GAAP (provided that monthly financial statements shall not be required to have footnote disclosure and are subject to normal year-end adjustments). The Borrower shall deliver to the Agent and each Lender in electronic form and in detail reasonably satisfactory to the Agent and the Required Lenders:

(a) as soon as available, but not later than one hundred twenty (120) days after the end of each fiscal year, a copy of the audited consolidated and consolidating balance sheets of Borrower and its Subsidiaries as at the end of such year and the related consolidated and consolidating statements of income or operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, and accompanied by the unqualified opinion of any “Big Four” or other nationally-recognized independent public accounting firm reasonably acceptable to the Agent (provided, that solely with respect to such opinion for the fiscal year ending December 31, 2005, in setting forth in comparative form the figures for the fiscal year ending December 31, 2004 in such opinion, such “Big Four” or other nationally-recognized independent public accounting firm shall be entitled to rely upon, and such opinion may be qualified by reference to, the audited consolidated and consolidating balance sheets of Borrower and its Subsidiaries as at the end of December 31, 2004 and the related consolidated and consolidating statements of income or operations, shareholders’ equity and cash flows for such fiscal year that have been prepared by Moore, Stephens Apple), which report shall state that such consolidated financial statements present fairly in all material respects the financial position for the periods indicated in conformity with GAAP applied on a basis consistent with prior years; and

(b) as soon as available, but not later than thirty (30) days after the end of each fiscal month, a copy of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries, and the related consolidated statements of income, shareholders’ equity and cash flows as of the end of such month and for the portion of the fiscal year then ended, all certified on behalf of Borrower by an appropriate Responsible Officer as being complete and correct and fairly presenting, in accordance with GAAP, the financial position and the results of operations of the Borrower and the Subsidiaries, subject to normal year-end adjustments and absence of footnote disclosure.

4.2 Certificates; Borrowing Base Certificates; Other Information. The Borrower shall furnish, in electronic form, to the Agent, Swing Line Lender and each Lender:

(a) intentionally omitted;

 

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(b) concurrently with the delivery of the financial statements referred to in subsections 4.1(a) and 4.1(b) above, a fully and properly completed Compliance Certificate in the form of Exhibit 4.2(b), certified on behalf of Borrower by a Responsible Officer;

(c) promptly after the same are sent, copies of all financial statements and reports which Holdings or the Borrower sends to its shareholders or other equity holders, as applicable, generally; and promptly after the same are filed, copies of all financial statements and regular, periodic or special reports which Holdings or the Borrower may make to, or file with, the Securities and Exchange Commission or any successor or similar Governmental Authority;

(d) as soon as available and in any event within ten (10) days after the end of each calendar month, and at such other times as the Agent may reasonably require, a Borrowing Base Certificate, certified on behalf of Borrower by a Responsible Officer, setting forth the Borrowing Base of Borrower as at the end of the most-recently ended fiscal month or as at such other date as the Agent may reasonably require;

(e) (i) as soon as available, but not later than forty-five (45) days after the end of each fiscal quarter, a management report, in reasonable detail, signed by the chief financial officer or controller of the Borrower, describing the operations and financial condition of the Borrower and its Subsidiaries for the quarter and the portion of the fiscal year then ended (or for the fiscal year then ended in the case of annual financial statements), and (ii) together with each delivery of financial statements pursuant to subsection 4.1(a) and (b), a report setting forth in comparative form the corresponding figures for the corresponding periods of the previous fiscal year and the corresponding figures from the most recent projections for the current fiscal year delivered pursuant to subsection 4.2(g) and discussing the reasons for any significant variations;

(f) upon the request of the Agent, at any time if an Event of Default shall have occurred and be continuing but otherwise not more often than once a year, the Borrower will obtain and deliver to the Agent a report of an independent collateral auditor satisfactory to the Agent with respect to the Accounts and Inventory, which report shall indicate whether or not the information set forth in the Borrowing Base Certificate most recently delivered is accurate and complete in all material respects;

(g) as soon as available and in any event no later than the earlier of (i) thirty (30) days following the first day of each fiscal year of the Borrower and (ii) ten (10) days after the same shall have been approved by the board of directors of the Borrower, projections of the Borrower’s (and its Subsidiaries’) consolidated and consolidating financial performance for the forthcoming fiscal year on a month by month basis;

(h) annually, concurrently with the Borrower’s delivery of the projections under subsection 4.2(g), the Borrower shall supplement in writing and deliver to the Agent revisions of and supplements to the Schedules hereto related to Article III hereof to the extent necessary to disclose new or changed facts or circumstances after the Restatement Effective Date; provided that delivery or receipt of such subsequent disclosure shall not constitute a waiver by the Agent or any Lender or a cure of any Default or Event of Default resulting in connection with the matters disclosed;

 

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(i) promptly upon receipt thereof, copies of any reports submitted by the Borrower’s certified public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or internal control systems of the Borrower made by such accountants, including any comment letters submitted by such accountants to management of the Borrower in connection with their services;

(j) from time to time, if the Agent determines in good faith that obtaining appraisals is necessary in order for the Agent or any Lender to comply with applicable laws or regulations, and at any time if an Event of Default shall have occurred and be continuing, the Agent may, or may require the Borrower to, in either case at the Borrower’s expense, obtain appraisals in form and substance and from appraisers reasonably satisfactory to the Agent stating the then current fair market value of all or any portion of the real or personal property of the Borrower or any of its Subsidiaries;

(k) promptly from time to time, copies of all material notices, reports and certificates received or given by Holdings, the Borrower or any of its Subsidiaries under the Subordinated Loan Agreement;

(1) promptly from time to time, copies of any material notices or other deliveries from time to time made or received by Holdings, the Borrower or any of its Subsidiaries under or pursuant to the Panther Purchase Agreement, including, without limitation, post-closing deliveries in connection with any material indemnification claims and disbursements of any escrowed funds in accordance with the Panther Purchase Agreement;

(m) the occurrence of a “Default” or an “Event of Default” under the Subordinated Indebtedness Documents; and

(n) promptly, such additional business, financial, corporate affairs, perfection certificates and other information as the Agent may from time to time reasonably request.

4.3 Notices. The Borrower shall notify promptly the Agent, Swing Line Lender and each Lender of each of the following (and in no event later than five (5) Business Days after a Responsible Officer becoming aware thereof):

(a) the occurrence or existence of any Default or Event of Default, or any event or circumstance that will become a Default or Event of Default;

(b) any breach or non-performance of, or any default under, any Contractual Obligation of the Borrower or any of its Subsidiaries, or any violation of, or non-compliance with, any Requirement of Law, which could reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect, including a description of such breach, non-performance, default, violation or non-compliance and the steps, if any, the Borrower or such Subsidiary has taken, is taking or proposes to take in respect thereof;

(c) any dispute, litigation, investigation, proceeding or suspension which may exist at any time between the Borrower or any of its Subsidiaries and any Governmental Authority which could reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect;

 

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(d) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower or any of its Subsidiaries (i) in which the amount of damages claimed is $500,000 (or its equivalent in another currency or currencies) or more (other than with respect to claims relating to ordinary course traffic accidents, to the extent covered by independent third-party insurance; provided, that such third-party insurer has acknowledged coverage with respect thereto), (ii) in which injunctive or similar relief is sought and which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, or (iii) in which the relief sought is an injunction or other stay of the performance of this Agreement, any Loan Document or any Related Agreement;

(e) any of the following if the same would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect: (i) any enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against the Borrower or any of its Subsidiaries or any of their respective Properties pursuant to any applicable Environmental Laws, (ii) any other Environmental Claims, and (iii) any environmental or similar condition on any real property adjoining the Property of the Borrower or any Subsidiary of the Borrower that could reasonably be anticipated to cause Borrower’s or any of its Subsidiaries’ Property or any part thereof to be subject to any material restrictions on the ownership, occupancy, transferability or use of such Property under any Environmental Laws;

(f) any of the following if the same would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, together with a copy of any notice with respect to such event that was required, on or before the date of such notice, to be filed with a Governmental Authority and any notice delivered by a Governmental Authority to the Borrower or any member or its Controlled Group with respect to such event:

(i) an ERISA Event;

(ii) the adoption of any new Qualified Plan that is subject to Title IV of ERISA or Section 412 of the Code by any member of the Controlled Group;

(iii) the adoption of any amendment to a Qualified Plan that is subject to Title IV of ERISA or Section 412 of the Code, if such amendment results in a material increase in benefits or unfunded liabilities, except to the extent any such amendment is required by law; or

(iv) the commencement of contributions by any member of the Controlled Group to any Multiemployer Plan or any Qualified Plan that is subject to Title IV of ERISA or Section 412 of the Code;

(g) any Material Adverse Effect subsequent to the date of the most recent audited financial statements of the Borrower delivered to the Agent and Lenders pursuant to this Agreement;

(h) any material change in accounting policies or financial reporting practices by the Borrower or any of its Subsidiaries;

 

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(i) any labor controversy resulting in or threatening to result in any strike, work stoppage, boycott, shutdown or other labor disruption against or involving the Borrower or any of its Subsidiaries if the same would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and

(j) the creation, establishment or acquisition of any Subsidiary or the issuance by the Borrower of any capital stock or warrant, option or similar agreement in respect thereof.

Each notice pursuant to this Section shall be in electronic form accompanied by a statement by a Responsible Officer on behalf of Borrower setting forth details of the occurrence referred to therein, and stating what action the Borrower proposes to take with respect thereto and at what time. Each notice under subsection 4.3(a) shall describe with particularity any and all clauses or provisions of this Agreement or other Loan Document that have been breached or violated in reasonable detail the nature of the Default or Event of Default.

4.4 Preservation of Corporate Existence, Etc. The Borrower shall, and shall cause each of its Subsidiaries to:

(a) preserve and maintain in full force and effect its organizational existence and good standing under the laws of its state or jurisdiction of incorporation, organization or formation as applicable, except, with respect to the Borrower’s Subsidiaries, in connection with transactions permitted by Section 5.3;

(b) preserve and maintain in full force and effect all rights, privileges, qualifications, permits, licenses and franchises necessary in the normal conduct of its business except in connection with transactions permitted by Section 5.3 and sales of assets permitted by Section 5.2 and except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect;

(c) use its reasonable efforts, in the Ordinary Course of Business, to preserve its business organization (except as otherwise expressly permitted by this Agreement) and preserve the goodwill and business of the customers, suppliers and others having material business relations with it; and

(d) preserve or renew all of its registered trademarks, trade names and service marks, the non-preservation of which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

4.5 Maintenance of Property. The Borrower shall maintain, and shall cause each of its Subsidiaries to maintain, and preserve all its Property which is used or useful in its business in good working order and condition, ordinary wear and tear excepted and shall make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

 

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4.6 Insurance.

(a) The Borrower shall maintain, and shall cause each of its Subsidiaries to maintain, with financially sound and reputable independent insurers, insurance with respect to its Properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons, including workers’ compensation insurance, public liability and property and casualty insurance, which amounts shall not be reduced by the Borrower or any of its Subsidiaries in the absence of thirty (30) days’ prior notice to the Agent, and business interruption insurance (i) with respect to the one (1) year period following the Original Closing Date in an amount not less than $1,500,000, and (ii) thereafter, in such amounts as are proposed by the Borrower and agreed to by the Agent in consultation with Agent’s insurance consultants; provided, that at no time shall such amount be less than $1,500,000. Such business interruption insurance shall cover lost Business Income (as hereinafter defined) as determined by a currently valued comprehensive exposure analysis (business interruption worksheet), which takes into account each insured location where earnings are generated, prepared by the Borrower in connection with its obtaining such insurance and reviewed and approved prior to the Original Closing Date and annually thereafter by Agent in consultation with Agent’s insurance consultants. “Business Income” means, for the Borrower and its Subsidiaries on a consolidated basis, the sum of total net profit plus all operating expenses, including, without limitation, all payroll expenses, taxes, interest expenses and rent expenses.

(b) All property damage and casualty insurance shall name the Agent, for the benefit of Agent and Lenders, as loss payee/mortgagee, all liability insurance shall name the Agent and the Lenders as additional insureds and all business interruption insurance shall name Agent, for the benefit of Agent and Lenders, as assignee. Upon request of the Agent or any Lender, the Borrower shall furnish the Agent, with sufficient copies for each Lender, at reasonable intervals (but not more than once per calendar year) a certificate of a Responsible Officer on behalf of Borrower (and, if requested by the Agent, any insurance broker of the Borrower) setting forth the nature and extent of all insurance maintained by the Borrower and its Subsidiaries in accordance with this Section 4.6.

(c) Unless Borrower provides Agent with evidence of the insurance coverage required by this Agreement, Agent may purchase insurance at Borrower’s expense to protect Agent’s and Lenders’ interests in Borrower’s and its Subsidiaries’ properties. This insurance may, but need not, protect Borrower’s and its Subsidiaries’ interests. The coverage that Agent purchases may not pay any claim that Borrower or any Subsidiary of Borrower makes or any claim that is made against Borrower or any Subsidiary of Borrower in connection with said property. Borrower may later cancel any insurance purchased by Agent, but only after providing Agent with evidence that Borrower has obtained insurance as required by this Agreement. If Agent purchases insurance, Borrower will be responsible for the costs of that insurance, including interest and any other charges Agent may impose in connection with the placement of insurance, until the effective date of the cancellation or expiration of the insurance. The costs of the insurance shall be added to the Obligations. The costs of the insurance must be reasonable, but may be more than the cost of insurance Borrower may be able to obtain on its own.

 

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4.7 Payment of Obligations. The Borrower shall, and shall cause its Subsidiaries (and any Joint Venture which is less than fifty percent (50%) owned by the Borrower or any of its Subsidiaries, if the Borrower or such Subsidiary is a general partner, or treated as a general partner, of such Joint Venture resulting in general liability to the Borrower or such Subsidiary) to, pay, discharge and perform as the same shall become due and payable or required to be performed, all their respective obligations and liabilities, including:

(a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP are being maintained by the Borrower or such Subsidiary;

(b) all lawful claims which, if unpaid, would by law become a Lien upon its Property unless the same are being contested in good faith by appropriate proceedings diligently prosecuted which stay the imposition or enforcement of the Lien and for which adequate reserves in accordance with GAAP are being maintained by Borrower;

(c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained herein and/or in any instrument or agreement evidencing such Indebtedness, the non-payment of which would constitute an Event of Default under subsection 7.1(e); and

(d) the performance of all obligations under any Contractual Obligation to which Borrower or any of its Subsidiaries is bound, or to which it or any of its properties is subject, including the Related Agreements, except where the failure to perform would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

4.8 Compliance with Laws. The Borrower shall comply, and shall cause each of its Subsidiaries to comply, in all material respects, with all Requirements of Law of any Governmental Authority having jurisdiction over it or its business (including, without limitation, all Environmental Laws), except (a)(i) such as may be contested in good faith by appropriate proceedings diligently prosecuted without risk of loss of any material portion of the Collateral, (ii) as to which a bona fide dispute exists, and (iii) for which appropriate reserves have been established on the Borrower’s financial statements, or (b) where the failure to comply could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

4.9 Inspection of Property and Books and Records. The Borrower shall maintain and shall cause each of its Subsidiaries to maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Borrower and such Subsidiaries. The Borrower shall permit, and shall cause each of its Subsidiaries to permit, representatives and independent contractors of the Agent (at the expense of the Borrower; provided that the Borrower shall be responsible for such expenses not more than one (1) time per year unless an Event of Default has occurred and is continuing), or any Lender (at such Lender’s expense unless an Event of Default shall have occurred and be continuing), to visit and inspect any of their respective Properties, to examine their respective corporate, financial and operating

 

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records, and make copies thereof or abstracts therefrom, and to discuss their respective affairs, finances and accounts with their respective directors, officers, and independent public accountants, at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower; provided, however, that the foregoing shall not give rise to an independent right to conduct or cause to be conducted a collateral audit (it being agreed that subsection 4.2(f) hereof shall be the sole provision of this Agreement governing Agent and Lenders’ right to conduct such a collateral audit); and provided, further, however, when an Event of Default exists the Agent or any Lender may do any of the foregoing at the expense of the Borrower at any time during normal business hours and without advance notice.

4.10 Use of Proceeds. The Borrower shall use the proceeds of the Loans solely as follows: (a) first, to pay a portion of the costs and expenses of the Related Transactions and costs and expenses required to be paid pursuant to Section 2.1, (b) second, on the Restatement Effective Date, to make a dividend to Holdings, the proceeds of which dividend shall be immediately used by Holdings to pay a portion of the repurchase price relating to the shares of capital stock of Holdings being repurchased pursuant to the Restatement Effective Date Transactions, (c) third, for financing the purchase price of, and the costs and expenses incurred in connection with, Permitted Acquisitions to the extent permitted by clause (g) of the definition thereof, and (d) fourth, for working capital and other general corporate purposes not in contravention of any Requirement of Law and not in violation of this Agreement. The Borrowers shall use the proceeds of the Subordinated Indebtedness evidenced by the Subordinated Notes solely as follows: (a) first, to pay a portion of the costs and expenses of the Related Transactions and costs and expenses required to be paid pursuant to Section 2.1, and (b) second, on the Restatement Effective Date, to make a dividend to Holdings, the proceeds of which dividend shall be immediately used by Holdings to pay a portion of the repurchase price relating to the shares of capital stock of Holdings being repurchased pursuant to the Restatement Effective Date Transactions.

4.11 Solvency. The Borrower, individually, and the Borrower and its Subsidiaries, on a consolidated basis, shall at all times be Solvent.

4.12 Further Assurances.

(a) The Borrower shall ensure that all written information, exhibits and reports furnished to the Agent or the Lenders do not and will not contain any untrue statement of a material fact and do not and will not omit to state any material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances in which made, and will promptly disclose to the Agent and the Lenders and correct any defect or error that may be discovered therein or in any Loan Document or in the execution, acknowledgement or recordation thereof.

(b) Promptly upon request by the Agent, the Borrower shall (and shall cause each of its Subsidiaries to) take such additional actions as the Agent may reasonably require from time to time in order (i) to carry out more effectively the purposes of this Agreement or any other Loan Document, (ii) to subject to the Liens created by any of the Collateral Documents any of the Properties, rights or interests covered by any of the Collateral Documents, (iii) to perfect and

 

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maintain the validity, effectiveness and priority of any of the Collateral Documents and the Liens intended to be created thereby, and (iv) to better assure, convey, grant, assign, transfer, preserve, protect and confirm to the Agent and Lenders the rights granted or now or hereafter intended to be granted to the Agent and the Lenders under any Loan Document or under any other document executed in connection therewith. Without limiting the generality of the foregoing and except as otherwise approved in writing by Required Lenders, Borrower shall cause each of its Subsidiaries (other than Foreign Subsidiaries if and to the extent a guaranty by such Subsidiary of the Obligations would result in adverse tax consequences to the Borrower under Section 956 of the Code) to guaranty the Obligations and to cause each such Subsidiary to grant to Agent, for the benefit of Agent and Lenders, a security interest in all of such Subsidiary’s Property to secure such guaranty (other than Foreign Subsidiaries if and to the extent any such grant would result in adverse tax consequences to the Borrower under Section 956 of the Code). Furthermore and except as otherwise approved in writing by the Required Lenders, Borrower shall pledge the stock or other equity interests of each of its Subsidiaries to Agent, for the benefit of Agent and Lenders, to secure the Obligations; provided , that with respect to any Foreign Subsidiary, no more than sixty-five percent (65%) of the voting stock or other voting equity interests of any such Subsidiary and no voting stock or other voting equity interests of any Subsidiary of such Subsidiary shall be pledged to the Agent for the benefit of the Agent and the Lenders if and to the extent any pledge of more than sixty-five percent (65%) of the voting stock or other voting equity securities of any such Subsidiary or the pledge of any voting stock or other voting equity interests of any Subsidiary of any such Subsidiary, as applicable, would result in adverse tax consequences to the Borrower under Section 956 of the Code. In connection with each pledge of stock or other equity interests, Borrower shall deliver, or cause to be delivered, to Agent, the items described in subsection 2.1(d)(iii), if applicable. In the event the Borrower or any of its Subsidiaries (other than Foreign Subsidiaries if and to the extent any such grant of a Mortgage would result in adverse tax consequences to the Borrower under Section 956 of the Code) acquires any real Property, simultaneously with such acquisition, the Borrower or such Subsidiary shall, if requested by the Agent, execute and/or deliver, or cause to be executed and/or delivered, to the Agent, (x) a fully executed Mortgage, in form and substance reasonably satisfactory to the Agent together with an A.L.T.A. lender’s title insurance policy issued by a title insurer reasonably satisfactory to the Agent, in form and substance and in an amount reasonably satisfactory to the Agent insuring that the Mortgage is a valid and enforceable first priority Lien on the respective property, free and clear of all defects, encumbrances and Liens (other than Permitted Liens), (y) then current A.L.T.A. surveys, certified to the Agent and the Lenders by a licensed surveyor sufficient to allow the issuer of the lender’s title insurance policy to issue such policy without a survey exception and (z) an environmental site assessment prepared by a qualified firm reasonably acceptable to the Agent, in form and substance reasonably satisfactory to the Agent. With respect to each new Subsidiary of Holdings or the Borrower acquired or created after the date hereof, the Borrower shall deliver an opinion of counsel, in form and substance reasonably acceptable to the Agent, to the Agent within ten (10) Business Days of the date on which such Subsidiary was acquired or created to the effect that the Loan Documents to be executed by such Subsidiary have been duly authorized, executed and delivered by such Subsidiary and constitute valid and binding agreements by such Subsidiary, enforceable in accordance with its terms (subject to customary exceptions).

4.13 Interest Rate Protection. Within ninety (90) days of the Restatement Effective Date, the Borrower shall enter into, and thereafter maintain, Rate Contracts providing protection

 

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against fluctuations in interest rates with one or more financial institutions with respect to at least fifty percent (50%) of the sum of the amount of the Aggregate Term Loan Commitment on the date hereof, which agreements shall provide for not less than a three (3) year term and containing such other terms as are customary and are reasonably satisfactory to the Agent.

ARTICLE V - NEGATIVE COVENANTS

The Borrower covenants and agrees that, so long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) shall remain unpaid or unsatisfied, unless the Required Lenders waive compliance in writing:

5.1 Limitation on Liens. The Borrower shall not, and shall not suffer or permit any of its Subsidiaries to, directly or indirectly, make, create, incur, assume or suffer to exist any Lien upon or with respect to any part of its Property, whether now owned or hereafter acquired, other than the following, in each instance solely to the extent permitted under the Subordinated Loan Agreement (“Permitted Liens”):

(a) any Lien existing on the Property of the Borrower or its Subsidiaries on the Restatement Effective Date and set forth in Schedule 5.1 securing Indebtedness outstanding on such date and permitted by subsection 5.5(c), including replacement Liens on the Property currently subject to such Liens securing Indebtedness permitted by Section 5.5(c);

(b) any Lien created under any Loan Document;

(c) Liens for taxes, fees, assessments or other governmental charges (i) which are not delinquent or remain payable without penalty, or (ii) the non-payment of which is permitted by Section 4.7, provided that, in respect of this clause (ii), all such Liens secure claims in the aggregate at any time outstanding for Borrower and its Subsidiaries not exceeding $500,000;

(d) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other similar Liens arising in the Ordinary Course of Business which are not delinquent for more than ninety (90) days or remain payable without penalty or which are being contested in good faith and by appropriate proceedings diligently prosecuted, which proceedings have the effect of preventing the forfeiture or sale of the Property subject thereto and for which adequate reserves in accordance with GAAP are being maintained;

(e) Liens (other than any Lien imposed by ERISA) consisting of pledges or deposits required in the Ordinary Course of Business in connection with workers’ compensation, unemployment insurance and other social security legislation or to secure the performance of tenders, statutory obligations, surety, stay, customs and appeals bonds, bids, leases, governmental contract, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money) or to secure liability to insurance carriers;

(f) Liens consisting of judgment or judicial attachment liens, provided that the enforcement of such Liens is effectively stayed and all such Liens secure claims in the aggregate at any time outstanding for the Borrower and its Subsidiaries not exceeding $500,000;

 

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(g) easements, rights-of-way, zoning and other restrictions, minor defects or other irregularities in title, and other similar encumbrances which, either individually or in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the Property subject thereto or interfere in any material respect with the ordinary conduct of the businesses of the Borrower and its Subsidiaries;

(h) Liens on any Property acquired or held by the Borrower or its Subsidiaries in the Ordinary Course of Business, securing Indebtedness incurred or assumed for the purpose of financing (or refinancing) all or any part of the cost of acquiring such Property and permitted under subsection 5.5(d); provided that (i) any such Lien attaches to such Property concurrently with or within ninety (90) days after the acquisition thereof, (ii) such Lien attaches solely to the Property so acquired in such transaction, and (iii) the principal amount of the debt secured thereby does not exceed 100% of the cost of such Property;

(i) Liens securing Capital Lease Obligations permitted under subsection 5.5(d);

(j) any interest or title of a lessor or sublessor under any lease permitted by this Agreement;

(k) Liens arising from precautionary uniform commercial code financing statements filed under any lease permitted by this Agreement; and

(l) other Liens not described above that secure obligations other than Indebtedness, provided the aggregate outstanding amount of the obligations secured thereby does not exceed $500,000 in the aggregate at any one time.

5.2 Disposition of Assets. The Borrower shall not, and shall not suffer or permit any of its Subsidiaries to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except, in each instance solely to the extent permitted under the Subordinated Loan Agreement:

(a) dispositions of inventory, or used, worn-out or surplus equipment, all in the Ordinary Course of Business;

(b) upon not less than five (5) Business Days prior written notice to Agent, transfers of assets by one Foreign Subsidiary to another Foreign Subsidiary;

(c) upon not less than five (5) Business Days prior written notice to Agent, transfers of assets by (i) any Subsidiary of the Borrower to (x) a Wholly-Owned Subsidiary of the Borrower that is a Domestic Subsidiary (with respect to which there has been compliance with Section 4.12), or (y) the Borrower and (ii) the Borrower to a Wholly-Owned Subsidiary of the Borrower that is a Domestic Subsidiary (with respect to which there has been compliance with Section 4.12);

(d) dispositions not otherwise permitted hereunder which are made for fair market value and the mandatory prepayment in the amount of the Net Proceeds of such disposition is made as provided in Section 1.8; provided, that (i) at the time of any disposition, no Event of

 

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Default shall exist or shall result from such disposition, (ii) no less than seventy five percent (75%) of the aggregate sales price from such disposition shall be paid in cash, and (iii) the aggregate fair market value of all assets so sold by the Borrower and its Subsidiaries, together, shall not exceed in any fiscal year $500,000 and (iv) after giving effect to such disposition, Borrower is in compliance on a pro forma basis with the covenants set forth in Article VI, recomputed for the most recent quarter for which financial statements have been delivered; and

(e) so long as no Event of Default has occurred and is continuing, the sale without recourse and consistent with the industry practice of accounts receivable, not in excess of $500,000 in aggregate stated amount during any fiscal year, arising in the Ordinary Course of Business which are at least ninety (90) days’ past due.

5.3 Consolidations and Mergers. The Borrower shall not, and shall not suffer or permit any of its Subsidiaries to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that upon not less than five (5) Business Days prior written notice to Agent, in each instance solely to the extent permitted under the Subordinated Loan Agreement:

(a) any Subsidiary of the Borrower may merge with, or dissolve or liquidate into, the Borrower or a Wholly-Owned Subsidiary of the Borrower that is a Domestic Subsidiary (with respect to which there has been compliance with Section 4.12); provided that the Borrower or such Wholly-Owned Subsidiary that is a Domestic Subsidiary shall be the continuing or surviving entity; and

(b) any Foreign Subsidiary of the Borrower may merge with, or dissolve or liquidate into, any Wholly-Owned Subsidiary of the Borrower that is also a Foreign Subsidiary; provided that such Wholly-Owned Subsidiary that is a Foreign Subsidiary shall be the continuing or surviving entity.

5.4 Loans and Investments. The Borrower shall not and shall not suffer or permit any of its Subsidiaries to (i) purchase or acquire, or make any commitment to purchase or acquire, any capital stock, equity interest, or any obligations or other securities of, or any interest in, any Person, including the establishment or creation of a Subsidiary, or (ii) make or commit to make any Acquisitions, or any other acquisition of all or substantially all of the assets of another Person, or of any business or division of any Person, including without limitation, by way of merger, consolidation or other combination or (iii) make or commit to make any advance, loan, extension of credit or capital contribution to or any other investment in, any Person including any Affiliate of the Borrower or any Subsidiary of the Borrower (the items described in clauses (i), (ii) and (iii) are referred to as “Investments”), except for, in each instance solely to the extent permitted under the Subordinated Loan Agreement:

(a) Investments in cash and Cash Equivalents;

(b) extensions of credit by the Borrower or any Wholly-Owned Subsidiaries that are Domestic Subsidiaries (with respect to which there has been compliance with Section 4.12) to any other Wholly-Owned Subsidiaries that are Domestic Subsidiaries (with respect to which

 

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there has been compliance with Section 4.12); provided, that if the aggregate amount of all extensions of credit by the Borrower or any such Wholly-Owned Subsidiaries to any other Wholly-Owned Subsidiaries exceeds $500,000 outstanding at any one time, such obligations of such obligor shall be evidenced by notes, which notes shall be pledged to the Agent, for the benefit of the Agent and Lenders, and have such other terms as the Agent may reasonably require;

(c) loans and advances to employees and independent contractors in the Ordinary Course of Business not to exceed $500,000 in the aggregate at any time outstanding;

(d) Investments constituting Permitted Acquisitions;

(e) Investments in Joint Ventures in an aggregate amount not to exceed $500,000, which amount shall be reduced, on a dollar-for-dollar basis, by the amount by which the total consideration paid or payable (including, without limitation, any Seller Paper) in connection with Permitted Acquisitions consummated by the Borrower during the term of this Agreement exceeds $2,500,000;

(f) to the extent constituting Investments, Rate Contracts entered into in the Ordinary Course of Business (i) for bona fide hedging purposes and not for speculation upon prior written notice to the Agent or (ii) pursuant to Section 4.13; and

(g) Investments in the form of promissory notes received in connection with dispositions of assets permitted under subsection 5.2(d); provided, that such notes shall be pledged to the Agent, for the benefit of the Lenders.

5.5 Limitation on Indebtedness. The Borrower shall not, and shall not suffer or permit any of its Subsidiaries to (and shall not suffer or permit any Joint Venture which is less than fifty percent (50%) owned by the Borrower or any of its Subsidiaries, if the Borrower or such Subsidiary is a general partner, or treated as a general partner, of such Joint Venture resulting in general liability to the Borrower or such Subsidiary, to) create, incur, assume, suffer to exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except, in each instance solely to the extent permitted under the Subordinated Loan Agreement:

(a) Indebtedness incurred pursuant to this Agreement;

(b) Indebtedness consisting of Contingent Obligations described in clause (i) of the definition thereof and permitted pursuant to Section 5.9;

(c) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 5.5 including extensions and refinancings thereof which do not increase the principal amount of such Indebtedness as of the date of such extension or refinancing;

(d) Indebtedness not to exceed $750,000 in the aggregate at any time outstanding, consisting of Capital Lease Obligations or secured by Liens permitted by subsection 5.1(h);

(e) unsecured intercompany Indebtedness permitted pursuant to subsection 5.4(b);

 

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(f) unsecured Indebtedness (including earnouts) owing to sellers incurred in connection with Permitted Acquisitions, which Indebtedness (i) is subordinated to the Obligations on terms and conditions reasonably acceptable to the Agent, (ii) does not require payment of principal (other than any earn out obligation) prior to payment in full of the Loans, (iii) pays cash interest no more frequently than quarterly at a rate no greater than ten percent (10%) per annum, and (iv) does not exceed $500,000 in the aggregate at any time outstanding for all such Indebtedness (assuming for such purpose that earnouts shall be deemed to equal the maximum amount thereof) (the foregoing Indebtedness being referred to as “Seller Paper”);

(g) Subordinated Indebtedness not to exceed the original principal amount of $25,100,000, as the same may be increased due to capitalized interest, evidenced by the Subordinated Notes; and

(h) other unsecured Indebtedness not exceeding in the aggregate at any time outstanding $500,000.

5.6 Transactions with Affiliates. The Borrower shall not, and shall not suffer or permit any of its Subsidiaries to, enter into any transaction with any Affiliate of the Borrower or of any such Subsidiary, except, in each instance solely to the extent permitted under the Subordinated Loan Agreement:

(a) as expressly permitted by this Agreement; or

(b) in the Ordinary Course of Business and pursuant to the reasonable requirements of the business of the Borrower or such Subsidiary provided that in the case of this clause (b), upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary than would be obtained in a comparable arm’s-length transaction with a Person not an Affiliate of the Borrower or such Subsidiary and which are disclosed in writing to the Agent or as set forth in Schedule 5.6.

5.7 Management Fees and Compensation. The Borrower shall not, and shall not permit any of its Subsidiaries to pay any management, consulting or similar fees to any Affiliate of the Borrower or to any officer, director or employee of the Borrower or any of its Subsidiaries or any Affiliate of the Borrower except, in each instance solely to the extent permitted under the Subordinated Loan Agreement:

(a) payment of reasonable compensation to officers and employees for actual services rendered to the Borrower and its Subsidiaries and reimbursement for actual, reasonable, out-of-pocket expenses of employees of the Borrower and its Subsidiaries, in each case in the Ordinary Course of Business;

(b) payment of performance bonuses to officers and employees, not to exceed $2,500,000 in the aggregate, pursuant to one or more agreements or plans, each in form and substance acceptable to the Agent (it being acknowledged and agreed that the terms and conditions specified on Exhibit 5.7 are acceptable to the Agent), and which agreements or plans will in any event contain the EBITDA targets set forth on Schedule 5.7; provided, that

 

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(i) prior to the making of any such payment, the Borrower shall have delivered to the Agent the audited financial statements and the Compliance Certificate required to be delivered pursuant to subsections 4.1(b) and 4.2(b) hereof, respectively; and

(ii) at the time of, and after giving effect to, the making of any such payment (A) no Default or Event of Default exists and (B) the Borrower is in compliance on a pro forma basis with the covenants set forth in Article VI recomputed for the most recent quarter for which financial statements have been delivered; provided, that for purposes of calculating the Fixed Charge Coverage Ratio as required by this subsection 5.7(b)(ii)(B), the amount of such payments shall constitute Fixed Charges;

(c) payment of directors’ fees at prevailing market rates in the Borrower’s industry and reimbursement of actual, reasonable, out-of-pocket expenses incurred in connection with attending board of director meetings, in each case to individuals who are not employees, consultants or independent contractors of the Borrower, any of its Subsidiaries, the Sponsor, or any of their respective Affiliates (including, with respect to the Sponsor, any Controlled Investment Affiliates); provided, that notwithstanding the foregoing, the Borrower may continue to pay directors’ fees to John Anderson in an amount not to exceed $250,000 in any fiscal year of the Borrower;

(d) payment of management fees to Sponsor and its Controlled Investment Affiliates pursuant to the Management Agreement, as in effect on the Original Closing Date, not to exceed, in the aggregate, per annum, the greater of (i) $1,500,000 or (ii) five percent (5%) of EBITDA for the applicable calendar year, payable in equal quarterly installments as provided in the Management Agreement, as in effect on the Original Closing Date, together with reimbursement of actual, reasonable, out-of-pocket expenses and payment of customary investment banking fees in connection with Permitted Acquisitions and financings pursuant to the Management Agreement, as in effect on the Original Closing Date; provided, that no other investment banking fees (other than customary brokers’ fees) have been or will be paid by the Borrower or its Subsidiaries in connection with any such Permitted Acquisition or financing; and provided, further, however, that (A) if payments of principal, interest or other amounts due and owing to the Lenders hereunder are not being paid when due, (B) upon notice from the Agent that any Event of Default under subsections 4.1, 4.2(b) or 7.1(c) has occurred and is continuing or would arise as a result of such payment (or automatically while any Event of Default under subsections 7.1(a), 7.1(f), 7.1(g) or 7.1(m)(iv) has occurred and is continuing or would arise as a result of such payment), or (C) the Borrower has elected to pay the entire amount of interest on the Subordinated Indebtedness evidenced by the Subordinated Notes in kind (and not in cash) at the 16% interest rate in accordance with Section 1.1 of the Subordinated Loan Agreement, the fees and expenses (other than actual, reasonable, out-of-pocket expenses) described in this clause (d) shall not be paid; and

(e) transactions permitted by subsection 5.6(b).

5.8 Use of Proceeds. The Borrower shall not and shall not suffer or permit any of its Subsidiaries to use any portion of the Loan proceeds, directly or indirectly, to purchase or carry Margin Stock or repay or otherwise refinance Indebtedness of the Borrower or others incurred to

 

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purchase or carry Margin Stock, or otherwise in any manner which is in contravention of any Requirement of Law or in violation of this Agreement.

5.9 Contingent Obligations. The Borrower shall not, and shall not suffer or permit any of its Subsidiaries to (and shall not suffer or permit any Joint Venture which is less than fifty percent (50%) owned by the Borrower or any of its Subsidiaries, if the Borrower or such Subsidiary is a general partner, or treated as a general partner, of such Joint Venture resulting in general liability to the Borrower or such Subsidiary, to), create, incur, assume or suffer to exist any Contingent Obligations except in respect of the Obligations and except, in each instance solely to the extent permitted under the Subordinated Loan Agreement:

(a) endorsements for collection or deposit in the Ordinary Course of Business;

(b) Rate Contracts entered into in the Ordinary Course of Business for bona fide hedging purposes and not for speculation upon prior written notice to the Agent or pursuant to Section 4.13;

(c) Contingent Obligations of the Borrower and its Subsidiaries existing as of the Restatement Effective Date and listed in Schedule 5.9, including extension and renewals thereof which do not increase the amount of such Contingent Obligations as of the date of such extension or renewal;

(d) Contingent Obligations incurred in the Ordinary Course of Business with respect to surety and appeal bonds, performance bonds and other similar obligations;

(e) Contingent Obligations arising under indemnity agreements to title insurers to cause such title insurers to issue to Agent title insurance policies;

(f) Contingent Obligations arising with respect to customary indemnification obligations in favor of (i) sellers in connection with Permitted Acquisitions and (ii) purchasers in connection with dispositions permitted under subsection 5.2(d);

(g) Contingent Obligations arising under Lender Letters of Credit and other letters of credit which are the subject of a Letter of Credit Participation Agreement; and

(h) Contingent Obligations of Borrower with respect to any obligations of any of its Wholly-Owned Subsidiaries that are Domestic Subsidiaries (with respect to which there has been compliance with Section 4.12) permitted by this Agreement; provided, if such obligation is subordinated to the Obligations, such Contingent Obligation shall be subordinated to the same extent.

5.10 Compliance with ERISA. The Borrower shall not, and shall not suffer or permit any of its Subsidiaries to:

(a) terminate any Plan subject to Title IV of ERISA so as to result in any material liability to the Borrower;

 

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(b) permit to exist any ERISA Event or any other event or condition, which would reasonably be expected to have a Material Adverse Effect;

(c) make a complete or partial withdrawal (within the meaning of ERISA Section 4201) from any Multiemployer Plan so as to result in any material liability to the Borrower;

(d) enter into any new Plan or modify any existing Plan so as to increase its obligations thereunder which would reasonably be expected to have a Material Adverse Effect; or

(e) permit the present value of all nonforfeitable accrued benefits under any Plan subject to Title IV of ERISA (using the actuarial assumptions utilized by the PBGC upon termination of a Title IV Plan) materially to exceed the fair market value of Plan assets allocable to such benefits, all determined as of the most recent valuation date for each such Plan that is subject to Title IV of ERISA.

5.11 Restricted Payments. The Borrower shall not, and shall not suffer or permit any of its Subsidiaries to, (i) declare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any shares of any class of its capital stock, partnership interests, membership interests or other equity securities, (ii) purchase, redeem or otherwise acquire for value any shares of its capital stock, partnership interests, membership interests or other equity securities or any warrants, rights or options to acquire such shares, interests or securities now or hereafter outstanding, or (iii) make any payment or prepayment of principal of, premium, if any, interest, fees, redemption, exchange, purchase, retirement, defeasance, sinking fund or similar payment with respect to, Subordinated Indebtedness (the items described in clauses (i), (ii) and (iii) above are referred to as “Restricted Payments”); except that any Wholly-Owned Subsidiary of the Borrower may declare and pay dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower that is a Domestic Subsidiary, and except that the Borrower may, in each instance solely to the extent permitted under the Subordinated Loan Agreement:

(a) declare and make dividend payments or other distributions payable solely in its common stock or other equity securities;

(b) make distributions to Holdings which are immediately used by Holdings to redeem from employee (or former employee) stockholders shares of Holdings common stock or warrants or options to acquire any such shares provided all of the following conditions are satisfied:

(i) no Default or Event of Default has occurred and is continuing or would arise as a result of such Restricted Payment;

(ii) after giving effect to such Restricted Payment, the Borrower is in compliance on a pro forma basis with the covenants set forth in Article VI, recomputed for the most recent quarter for which financial statements have been delivered; provided, that for purposes of calculating the Fixed Charge Coverage Ratio as required by this subsection 5.1 l(b)(ii), the amount of such payments shall constitute Fixed Charges;

 

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(iii) the aggregate Restricted Payments permitted (x) in any fiscal year of Borrower shall not exceed $250,000 and (y) during the term of this Agreement shall not exceed $750,000; and

(iv) after giving effect to such Restricted Payment, Availability is not less than $3,000,000;

(c) in the event Borrower files a consolidated income tax return with Holdings, make distributions to Holdings to permit Holdings to pay federal and state income taxes then due and owing, franchise taxes and other similar licensing expenses incurred in the Ordinary Course of Business provided, that the amount of such distribution shall not be greater, nor the receipt by Borrower of tax benefits less, than they would have been had Borrower not filed a consolidated return with Holdings;

(d) pay as and when due and payable, regularly scheduled payments of interest at the non-default rate of interest and payments of earnouts in respect of Seller Paper, to the extent permitted under the subordination terms with respect thereto;

(e) make distributions to Holdings at such times and in such amounts as are necessary to permit payment of actual, reasonable, out-of-pocket overhead and administrative expenses payable by Holdings in the Ordinary Course of Business, not to exceed $500,000 in the aggregate in any fiscal year;

(f) consummate, on the Restatement Effective Date, the Restatement Effective Date Transactions; and

(g) (i) until such time as the Borrower shall have exercised its option under Section 1.1 of the Subordinated Loan Agreement to make all payments of interest on the Subordinated Indebtedness evidenced by the Subordinated Notes in-kind (and not in cash), make regularly scheduled cash payments of interest at the non-default cash pay rate of interest with respect to the Subordinated Indebtedness evidenced by the Subordinated Notes, (ii) reimburse out-of- pocket fees and expenses required to be paid pursuant to the Subordinated Loan Agreement, in each case, to the extent permitted under, and subject to the terms and conditions set forth in, the Subordination Agreement and (iii) on any regularly scheduled interest payment date for the Subordinated Notes, commencing with any such interest payment date following the fifth anniversary of the Restatement Effective Date, if the aggregate amount which would be includible in income of the holders of the Subordinated Notes for periods ending on or before such interest payment date (within the meaning of Section 163(i) of the Code) (the “Aggregate Accrual”) would exceed an amount equal to the sum of (x) the aggregate amount of interest to be paid (within the meaning of Section 163(i) of the Code) under the Subordinated Notes on or before such interest payment date (determined without regard to the amounts payable on such interest payment date under Section 1.1 of the Subordinated Loan Agreement), and (y) the product of (A) the issue price (as defined in Sections 1273(b) and 1274(a) of the Code) of the Subordinated Notes and (B) the yield to maturity (interpreted in accordance with Section 163(i) of the Code) of the Subordinated Notes (such sum, the “Maximum Accrual”), then the Borrower may pay to the holders of the Subordinated Notes in cash an aggregate amount equal to the excess, if any, of the Aggregate Accrual over the Maximum Accrual; provided , that solely for

 

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purposes of this clause (iii), (A) no Default or Event of Default then exists or would arise as a result thereof, (B) after giving effect to such payment, the Borrower is in compliance on a pro forma basis with the covenants set forth in Article VI (using the covenant thresholds for the immediately preceding testing date), recomputed for the most recent fiscal quarter for which financial statements have been delivered and (C) after giving effect to such payment, Availability is not less than $5,000,000.

5.12 Change in Business. The Borrower shall not, and shall not permit any of its Subsidiaries to, engage in any material line of business substantially different from and unrelated to those lines of business carried on by it on the Original Closing Date.

5.13 Change in Structure. Except as expressly permitted under Section 5.3, the Borrower shall not and shall not permit any of its Subsidiaries to, make any material changes in its equity capital structure (including in the terms of its outstanding stock), or amend any of its Organization Documents in any material respect or in any respect adverse to the Agent or Lenders.

5.14 Accounting Changes. The Borrower shall not, and shall not suffer or permit any of its Subsidiaries to, make any significant change in accounting treatment or reporting practices, except as required by GAAP, or change the fiscal year of the Borrower or of any of its consolidated Subsidiaries, except with the prior written consent of the Agent.

5.15 Amendments to Related Agreements and Subordinated Indebtedness.

(a) The Borrower shall not and shall not permit any of its Subsidiaries, to (i) amend, supplement, waive or otherwise modify any provision of, any Related Agreement (other than the Subordinated Indebtedness Documents) in a manner adverse to the Agent or Lenders or which could reasonably be expected to have a Material Adverse Effect, or (ii) take or fail to take any action under any Related Agreement (other than the Subordinated Indebtedness Documents) that could reasonably be expected to have a Material Adverse Effect.

(b) Borrower shall not and shall not permit any of its Subsidiaries directly or indirectly to change or amend the terms of the Subordinated Indebtedness evidenced by the Subordinated Indebtedness Documents except in accordance with the terms of the Subordination Agreement.

5.16 No Negative Pledges. Borrower will not, and will not permit any of its Subsidiaries, directly or indirectly, to create or otherwise cause or suffer to exist or become effective any consensual restriction or encumbrance of any kind on the ability of any such Subsidiary to pay dividends or make any other distribution on any of such Subsidiary’s equity securities or to pay fees, including management fees, or make other payments and distributions to Borrower or any of its Subsidiaries. Borrower will not, and will not permit any of its Subsidiaries, directly or indirectly, to enter into, assume or become subject to any Contractual Obligation prohibiting or otherwise restricting the existence of any Lien upon any of its assets in favor of the Agent, whether now owned or hereafter acquired except in connection with any document or instrument governing Liens permitted pursuant to subsections 5.1(h) and (i)

 

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provided that any such restriction contained therein relates only to the asset or assets subject to such permitted Liens.

5.17 OFAC. Neither Holdings, the Borrower nor any Subsidiary of the Borrower (i) will become a person whose property or interests in property are blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit or Support Terrorism (66 Fed. Reg. 49079(2001), (ii) will engage in any dealings or transactions prohibited by Section 2 of such executive order, or be otherwise associated with any such person in any manner violative of Section 2, or (iii) will otherwise become a person on the list of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other OFAC regulation or executive order.

5.18 Integration. Notwithstanding anything in this Article V to the contrary, no action otherwise permitted under this Article V shall be permitted if such action is prohibited or is otherwise not permitted under any of the Subordinated Indebtedness Documents and the Agent shall have the right, at any time, to require the Borrower, to deliver a certificate executed by a Responsible Officer of the Borrower and otherwise in form and substance reasonably satisfactory to Agent which certifies to Agent and Lenders that any such action, at the time such action is to be taken, is permitted under the Subordinated Indebtedness Documents. Furthermore, all covenants contained in each of the Subordinated Indebtedness Documents hereby are incorporated herein, mutatis mutandis, as if such covenants were set forth in this Agreement, and shall be deemed in addition to, and not in substitution of, the covenants contained in the Loan Documents.

5.19 Stay. Extension and Usury Laws. None of Holdings, Borrower or its Subsidiaries shall (to the extent that they may lawfully covenant not to do so) at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Agreement; and each of Holdings, Borrower and its Subsidiaries (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, but shall suffer and permit the execution of every such power as though no such law has been enacted.

ARTICLE VI - FINANCIAL COVENANTS

The Borrower covenants and agrees that, so long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted) shall remain unpaid or unsatisfied, unless the Required Lenders waive compliance in writing:

 

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6.1 Capital Expenditures. The Borrower and its Subsidiaries shall not make or commit to make Capital Expenditures for any fiscal year (or shorter period commencing on the Restatement Effective Date) set forth below to exceed the amount set forth in the table below with respect to such fiscal year (or shorter period commencing on the Restatement Effective Date):

 

Fiscal Period

   Capital Expenditure
Limitation

For the fiscal December 31, 2006 year ending

   $ 3,000,000

For the fiscal December 31, 2007 year ending

   $ 2,000,000

For the fiscal December 31,2008 year ending

   $ 2,000,000

For the fiscal December 31, 2009 year ending

   $ 2,000,000

For the fiscal December 31, 2010 and for each fiscal year thereafter

   $ 2,500,000

“Capital Expenditures” shall be calculated in the manner set forth in Exhibit 4.2(b).

6.2 Senior Leverage Ratio. The Borrower shall not permit its Senior Leverage Ratio for the twelve month period ending on any date set forth below to be greater than the maximum ratio set forth in the table below opposite such date:

 

Date

   Maximum  Senior
Leverage

Ratio

March 31, 2006

   3.50 to 1.00

June 30, 2006

   3.50 to 1.00

September 30, 2006

   3.50 to 1.00

December 31,2006

   3.50 to 1.00

March 31, 2007

   3.35 to 1.00

June 30, 2007

   3.20 to 1.00

September 30,2007

   3.10 to 1.00

December 31,2007

   3.00 to 1.00

March 31, 2008

   2.75 to 1.00

June 30, 2008

   2.50 to 1.00

September 30, 2008

   2.50 to 1.00

December 31, 2008

   2.25 to 1.00

March 31, 2009

   2.25 to 1.00

June 30, 2009 and the last day of each fiscal quarter thereafter

   2.00 to 1.00

 

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“Senior Leverage Ratio” shall be calculated in the manner set forth in Exhibit 4.2(b).

6.3 Fixed Charge Coverage Ratio. The Borrower shall not permit its Fixed Charge Coverage Ratio for the twelve month period ending on any date set forth below to be less than the minimum ratio set forth in the table below opposite such date:

 

Date

   Minimum Fixed Charge
Ratio

March 31, 2006

   1.10 to 1.00

June 30,2006

   1.10 to 1.00

September 30, 2006

   1.10 to 1.00

December 31, 2006

   1.10 to 1.00

March 31, 2007

   1.10 to 1.00

June 30, 2007

   1.10 to 1.00

September 30, 2007

   1.10 to 1.00

December 31, 2007

   1.10 to 1.00

March 31,2008

   1.15 to 1.00

June 30, 2008

   1.15 to 1.00

September 30,2008

   1.15 to 1.00

December 31,2008

   1.15 to 1.00

March 31, 2009

   1.15 to 1.00

June 30,2009

   1.15 to 1.00

September 30, 2009

   1.15 to 1.00

December 31, 2009

   1.20 to 1.00

March 31, 2010

   1.20 to 1.00

June 30, 2010

   1.20 to 1.00

September 30, 2010

   1.20 to 1.00

December 31, 2010

   1.20 to 1.00

“Fixed Charge Coverage Ratio” shall be calculated in the manner set forth in Exhibit 4.2(b).

6.4 Interest Coverage Ratio. The Borrower shall not permit its Interest Coverage Ratio for the twelve month period ending on any date set forth below to be less than the minimum ratio set forth in the table below opposite such date:

 

Date

   Minimum Interest
Coverage Ratio

March 31, 2006

   2.25 to 1.00

June 30,2006

   2.25 to 1.00

September 30, 2006

   2.35 to 1.00

December 31, 2006

   2.40 to 1.00

 

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March 31, 2007

   2.45 to 1.00

June 30, 2007

   2.50 to 1.00

September 30, 2007

   2.50 to 1.00

December 31, 2007

   2.60 to 1.00

March 31, 2008

   2.65 to 1.00

June 30, 2008

   2.65 to 1.00

September 30, 2008

   2.70 to 1.00

December 31, 2008

   2.75 to 1.00

March 31, 2009

   2.75 to 1.00

June 30, 2009

   3.00 to 1.00

September 30, 2009

   3.00 to 1.00

December 31, 2009 and the last day of each fiscal quarter thereafter

   3.25 to 1.00

“Interest Coverage Ratio” shall be calculated in the manner set forth in Exhibit 4.2(b).

ARTICLE VII - EVENTS OF DEFAULT

7.1 Event of Default. Any of the following shall constitute an “ Event of Default ” :

(a) Non-Pavment. The Borrower fails to pay, (i) when and as required to be paid herein, any amount of principal of on any Loan, including after maturity of the Loans, whether by acceleration or otherwise, or (ii) within five (5) days after the same shall become due, any interest on any Loan or any fee or any other amount payable hereunder or pursuant to any other Loan Document; or

(b) Representation or Warranty. Any representation, warranty or certification by or on behalf of Holdings, the Borrower or any of its Subsidiaries made or deemed made herein, in any Loan Document, or which is contained in any certificate, document or financial or other statement by Holdings, the Borrower, any of its Subsidiaries, or their respective Responsible Officers, furnished at any time under this Agreement, or in or under any Loan Document, shall prove to have been incorrect in any material respect on or as of the date made or deemed made; or

(c) Specific Defaults. Holdings or the Borrower fails to perform or observe any term, covenant or agreement contained in Sections 4.1, 4.2(b), 4.2(d), 4.3(a), 4.6, 4.10, 4.13 or Article V or Article VI hereof or the Fee Letter; or

(d) Other Defaults. Holdings, the Borrower or any of its Subsidiaries fails to perform or observe any other term, covenant or agreement contained in this Agreement or any Loan Document, and such default shall continue unremedied for a period of thirty (30) days after the earlier to occur of (i) the date upon which a Responsible Officer becomes aware of such default

 

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and (ii) the date upon which written notice thereof is given to the Borrower by the Agent or Required Lenders; or

(e) Cross-Default , (i) Holdings, the Borrower or any of its Subsidiaries (A) fails to make any payment in respect of any Indebtedness (other than the Obligations) or Contingent Obligation having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $500,000 when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) and such failure continues after the applicable grace or notice period, if any, specified in the document relating thereto on the date of such failure; or (B) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such Indebtedness or Contingent Obligation, if the effect of such failure, event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to be declared to be due and payable prior to its stated maturity (without regard to any subordination terms with respect thereto), or such Contingent Obligation to become payable or cash collateral in respect thereof to be demanded, or (ii) any default or event of default occurs under or in respect of the Subordinated Indebtedness evidenced by the Subordinated Indebtedness Documents; or

(f) Insolvency; Voluntary Proceedings , (i) The Borrower or, except solely as a result of the consummation of any transactions expressly permitted by subsections 5.3(a) or 5.3(b), any of its Subsidiaries, ceases or fails to be Solvent, (ii) the Borrower or any of its Subsidiaries generally fails to pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any, whether at stated maturity or otherwise; (iii) the Borrower or, except solely as a result of the consummation of any transactions expressly permitted by subsections 5.3(a) or 5.3(b), any of its Subsidiaries, voluntarily ceases to conduct its business in the ordinary course; (iv) the Borrower or any of its Subsidiaries commences any Insolvency Proceeding with respect to itself; or (v) the Borrower or any of its Subsidiaries takes any action to effectuate or authorize any of the foregoing; or

(g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is commenced or filed against the Borrower or any Subsidiary of the Borrower, or any writ, judgment, warrant of attachment, execution or similar process, is issued or levied against a substantial part of the Borrower’s or any of its Subsidiaries’ Properties, and any such proceeding or petition shall not be dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded within sixty (60) days after commencement, filing or levy; (ii) the Borrower or any of its Subsidiaries admits the material allegations of a petition against it in any Insolvency Proceeding, or an order for relief (or similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or (iii) the Borrower or any of its Subsidiaries acquiesces in the appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or agent therefor), or other similar Person for itself or a substantial portion of its Property or business; or

(h) ERISA. (i) A member of the Controlled Group shall fail to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its

 

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Withdrawal Liability under a Multiemployer Plan; (ii) a member of the Controlled Group shall fail to satisfy its contribution requirements under Section 412(c)(11) of the Code, whether or not it has sought a waiver under Section 412(d) of the Code; (iii) the occurrence of an ERISA Event; (iv) a Plan that is intended to be qualified under Section 401(a) of the Code shall lose its qualification; (v) any member of the Controlled Group engages in or otherwise becomes liable for a non-exempt prohibited transaction; (vi) a violation of Section 404 or 405 of ERISA or the exclusive benefit rule under Section 401(a) of the Code; (vii) any member of the Controlled Group is assessed a tax under Section 4980B of the Code or incurs a liability under Section 601 et seq. of ERISA; and, the occurrence of any such event listed in clauses (i) through (vii), or the occurrence of any combination of events listed in clauses (i) through (vii) results in, or could reasonably be expected to result in, a Material Adverse Effect or result in exposure to Borrower in an amount in excess of $500,000; or

(i) Monetary Judgments. One or more judgments, non-interlocutory orders, decrees or arbitration awards shall be entered against Holdings, the Borrower or any of its Subsidiaries involving in the aggregate a liability (to the extent not covered by independent
third-party insurance) as to any single or related series of transactions, incidents or conditions, of $500,000 or more, and the same shall remain unsatisfied, unvacated and unstayed pending appeal for a period of forty-five (45) days after the entry thereof; or

(j) Non-Monetary Judgments. One or more non-monetary judgments, orders or decrees shall be rendered against Holdings, the Borrower or any of its Subsidiaries which does or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (determined after giving effect to the proceeds of any business interruption insurance), and there shall be any period of twenty (20) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or

(k) Collateral Any material provision of any Collateral Document shall for any reason cease to be valid and binding on or enforceable against Holdings, the Borrower or any Subsidiary of the Borrower party thereto or Holdings, the Borrower or any Subsidiary of the Borrower shall so state in writing or bring an action to limit its obligations or liabilities thereunder; or any Collateral Document shall for any reason (other than pursuant to the terms thereof) cease to create a valid security interest in the Collateral purported to be covered thereby or such security interest shall for any reason (other than the failure of the Agent to take any action within its control) cease to be a perfected and first priority security interest subject only to Permitted Liens; or

(1) Ownership , (i) Sponsor at any time fails to own beneficially, directly or indirectly, at least fifty-one percent (51%) of the issued and outstanding voting capital stock of Holdings or, in any event, capital stock representing voting control of the Borrower, or (ii) Holdings ceases to own one hundred percent (100%) of the issued and outstanding equity securities of the Borrower occurs in each instance in clauses (i) and (ii), free and clear of all Liens, rights, options, warrants or other similar agreements or understandings, other than Liens in favor of the Agent, for the benefit of the Agent and Lenders; or (iii) a “Change of Control” or terms of similar import occurs under the Subordinated Loan Agreement or the Borrower delivers a “Control Change Notice” (as such term is defined in the Subordinated Loan Agreement) under the Subordinated Loan Agreement; or

 

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(m) Holdings Defaults. (i) Holdings shall fail in any material respect to perform or observe any term, covenant or agreement in the Guaranty, the Holdings Pledge Agreement or the Security Agreement; or (ii) the Guaranty, the Holdings Pledge Agreement or the Security Agreement shall for any reason be partially (including with respect to future advances) or wholly revoked or invalidated, or otherwise ceases to be in full force and effect; or (iii) Holdings or any other Person shall contest in any manner the validity or enforceability thereof or deny that it has any further liability or obligation thereunder; or (iv) any event described in subsections 7.1(f) or 7.1(g) shall occur with respect to Holdings; or (v) Holdings shall engage in any business activities other than (A) its ownership of the equity securities of Borrower, (B) activities incidental to maintenance of its corporate existence, and (C) performance of its obligations under the Related Transaction Documents to which it is a party; or

(n) Invalidity of Subordination Provisions. The subordination provisions of the Subordination Agreement or any other agreement or instrument governing any Subordinated Indebtedness shall for any reason be revoked or invalidated, or otherwise cease to be in full force and effect, or any Person shall contest in any manner the validity or enforceability thereof or deny that it has any further liability or obligation thereunder, or the Obligations for any reason shall not have the priority contemplated by this Agreement or such subordination provisions; or

(o) Joint Venture Defaults. Any event described in subsections 7.1(f) or 7.1(g) shall occur with respect to any Joint Venture which is less than fifty percent (50%) owned by the Borrower or any of its Subsidiaries if the Borrower or such Subsidiary is a general partner, or treated as a general partner, of such Joint Venture resulting in general liability to the Borrower or such Subsidiary.

7.2 Remedies. Upon the occurrence and during the continuance of any Event of Default, the Agent may, and shall at the request of the Required Lenders:

(a) declare all or any portion of the Commitment of each Lender to make Loans or issue Lender Letters of Credit or Letter of Credit Participation Agreements to be terminated, whereupon such Commitments shall forthwith be terminated;

(b) declare all or any portion of the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable; without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; and

(c) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable law;

provided , however , that upon the occurrence of any event specified in subsections 7.1(f), 7.1(g) or 7.1(m)(iv) above (in the case of clause (i) of subsection 7.1(g) upon the expiration of the sixty (60) day period mentioned therein), the obligation of each Lender to make Loans and the obligation of Agent to issue Lender Letters of Credit and Letter of Credit Participation Agreements shall automatically terminate and the unpaid principal amount of all outstanding

 

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Loans and all interest and other amounts as aforesaid shall automatically become due and payable without further act of the Agent or any Lender.

7.3 Rights Not Exclusive. The rights provided for in this Agreement and the other Loan Documents are cumulative and are not exclusive of any other rights, powers, privileges or remedies provided by law or in equity, or under any other instrument, document or agreement now existing or hereafter arising.

7.4 Cash Collateral for Letters of Credit. If an Event of Default has occurred and is continuing or this Agreement (or the Revolving Loan Commitment) shall be terminated for any reason, then the Agent may, and upon request of Lenders holding more than fifty percent (50%) of the Revolving Loan Commitments shall, demand (which demand shall be deemed to have been delivered automatically upon any acceleration of the Loans and other obligations hereunder pursuant to Section 7.2 hereof or upon payment in full of the Term Loan), and Borrower shall thereupon deliver to the Agent, to be held for the benefit of the Agent and the Lenders entitled thereto, an amount of cash equal to one hundred two percent (102%) of the amount of Letter of Credit Participation Liability (determined in accordance with subsection 1.1(c) hereof) as additional collateral security for Borrower’s Obligations in respect of any outstanding Lender Letter of Credit and Letter of Credit Participation Agreement. The Agent may at any time apply any or all of such cash and cash collateral to the payment of any or all of Borrower’s Obligations in respect of any Lender Letters of Credit or Letter of Credit Participation Agreements. Pending such application, the Agent may (but shall not be obligated to) invest the same in an interest bearing account in the Agent’s name, for the benefit of the Agent and the Lenders entitled thereto, under which deposits are available for immediate withdrawal, at such bank or financial institution as the Agent may, in its discretion, select.

ARTICLE VIII - THE AGENT

8.1 Appointment and Authorization. Each Lender hereby irrevocably appoints, designates and authorizes the Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document, the Agent shall not have any duties or responsibilities, except those expressly set forth herein, nor shall the Agent have or be deemed to have any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Agent.

8.2 Delegation of Duties. The Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects with reasonable care.

8.3 Liability of Agent. None of the Agent-Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or

 

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any other Loan Document (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Lenders for any recital, statement, representation or warranty made by the Borrower or any Subsidiary or Affiliate of the Borrower, or any officer thereof, contained in this Agreement or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Agent under or in connection with, this Agreement or any other Loan Document, or for the value of any Collateral or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or for any failure of the Borrower or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the Properties, books or records of the Borrower or any of the Borrower’s Subsidiaries or Affiliates. Agent shall have no obligation whatsoever to any Lender or any other Person to assure that the property covered by the Collateral Documents exists or is owned by the Borrower or any other Credit Party or is cared for, protected or insured or has been encumbered or that the Liens granted to the Agent have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority. No Agent-Related Person shall be liable for any action taken or omitted to be taken by Swing Line Lender under this Agreement (including, without limitation, Swing Line Lender’s failure to adjust the Applicable Margin (with respect to Swing Line Loans) following any changes thereto).

8.4 Reliance by Agent. The Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile or telephone message, statement or other document or conversation believed by it to be genuine and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Borrower), independent accountants and other experts selected by the Agent. The Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Lenders (or, where an action or waiver need only be approved by the Required Lenders, by the Required Lenders) as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Lenders (or, where an action or waiver need only be approved by the Required Lenders, by the Required Lenders) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Lenders.

8.5 Notice of Default. The Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, except with respect to defaults in the payment of principal, interest and fees required to be paid to the Agent for the account of the Lenders, unless the Agent shall have received written notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Agent receives such a notice, the Agent shall give notice thereof to the Lenders. The Agent shall take such action with respect to such Default or Event of Default as shall be requested by the Required Lenders in accordance with Article VII; provided , however , that unless and until the Agent shall have received any such request, the

 

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Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable or in the best interest of the Lenders.

8.6 Credit Decision. Each Lender expressly acknowledges that none of the Agent-Related Persons has made any representation or warranty to it and that no act by the Agent hereinafter taken, including any review of the affairs of the Borrower and its Subsidiaries shall be deemed to constitute any representation or warranty by the Agent to any Lender. Each Lender represents to the Agent that it has, independently and without reliance upon the Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower and its Subsidiaries, and all applicable bank regulatory laws relating to the transactions contemplated thereby, and made its own decision to enter into this Agreement and extend credit to the Borrower hereunder. Each Lender also represents that it will, independently and without reliance upon the Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower. Except for notices, reports and other documents expressly herein required to be furnished to the Lenders by the Agent, the Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of the Borrower which may come into the possession of the Agent.

8.7 Indemnification. Whether or not the transactions contemplated hereby shall be consummated, upon demand therefor the Lenders shall indemnify the Agent and each Affiliate of Agent issuing Lender Letters of Credit (in each instance, to the extent not reimbursed by or on behalf of the Borrower and without limiting the obligation of the Borrower to do so), ratably from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements of any kind whatsoever which may at any time (including at any time following the repayment of the Loans and the termination or resignation of the Agent) be imposed on, incurred by or asserted against the Agent or such Affiliate in any way relating to or arising out of this Agreement or any document contemplated by or referred to herein or the transactions contemplated hereby or thereby or any action taken or omitted by the Agent (or such Affiliate) under or in connection with any of the foregoing; provided , however , that no Lender shall be liable for the payment to the Agent (or such Affiliate) of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements to the extent resulting from the Agent’s (or such Affiliate’s) gross negligence or willful misconduct. In addition, each Lender shall reimburse the Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including Attorney Costs) incurred by the Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein to the extent that the Agent is not reimbursed for such expenses by or on behalf of the Borrower. Without limiting the generality of the foregoing, if the Internal Revenue Service or any other

 

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Governmental Authority of the United States or other jurisdiction asserts a claim that the Agent did not properly withhold tax from amounts paid to or for the account of any Lender (because the appropriate form was not delivered, was not properly executed, or because such Lender failed to notify the Agent of a change in circumstances which rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason) such Lender shall indemnify the Agent fully for all amounts paid, directly or indirectly, by the Agent as tax or otherwise, including penalties and interest, and including any taxes imposed by any jurisdiction on the amounts payable to the Agent under this Section 8.7, together with all related costs and expenses (including Attorney Costs). The obligation of the Lenders in this Section 8.7 shall survive the payment of all Obligations hereunder.

8.8 Agent in Individual Capacity. Antares and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory or other business with Holdings, the Borrower and its Subsidiaries and Affiliates as though Antares were not the Agent hereunder and without notice to or consent of the Lenders. With respect to its Loans, Antares shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though it were not the Agent, and the terms “Lender” and “Lenders” shall include Antares in its individual capacity.

8.9 Successor Agent. The Person then acting as the Agent may resign as Agent upon thirty (30) days’ prior notice to the Lenders and to Borrower. If such Person shall resign as Agent under this Agreement, the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders which appointment shall, so long as no Event of Default has occurred and is continuing, be subject to the approval of the Borrower (which approval shall not be unreasonably withheld or delayed). If no successor agent is appointed prior to the effective date of the resignation of the Agent, the Agent may thereupon appoint a successor agent from among the Lenders reasonably acceptable to Borrower. Upon the acceptance of its appointment as successor agent hereunder, such successor agent shall succeed to all the rights, powers and duties of the retiring Agent and the term “Agent” shall mean such successor agent and the retiring Agent’s appointment, powers and duties as Agent shall be terminated. After any retiring Agent’s resignation hereunder as Agent, the provisions of this Article VIII and Sections 9.4 and 9.5 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement. If no successor agent has accepted appointment as Agent by the date which is thirty (30) days following a retiring Agent’s notice of resignation (or, if later, ten (10) days after the date upon which the Agent designates a successor agent), the retiring Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of the Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above.

8.10 Collateral Matters.

(a) The Agent is authorized (but not required) on behalf of all the Lenders, without the necessity of any notice to or further consent from the Lenders, from time to time to take any action with respect to any Collateral or the Collateral Documents which may be necessary to perfect and maintain perfected the security interest in and Liens upon the Collateral granted pursuant to the Collateral Documents.

 

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(b) The Agent is hereby authorized, at its option and in its discretion, to release any Lien granted to or held by the Agent upon any Collateral:

(i) upon termination of the Commitments and payment in full of all Loans and all other Obligations then payable under this Agreement and under any other Loan Document;

(ii) constituting Property sold or to be sold or disposed of as part of or in connection with any disposition permitted hereunder;

(iii) consisting of an instrument evidencing Indebtedness or of any other debt instrument, if the Indebtedness evidenced thereby has been paid in full; or

(iv) if approved, authorized or ratified in writing by the Required Lenders or all the Lenders, as the case may be, as provided in subsection 9.1(f).

Upon request by the Agent at any time, the Lenders will confirm in writing the Agent’s authority to release particular types or items of Collateral pursuant to this subsection 8.10(b).

(c) Each Lender agrees with and in favor of each other Lender (which agreement shall not be for the benefit of the Borrower or any of its Subsidiaries) that the Borrower’s obligation to such Lender under this Agreement and the other Loan Documents shall be equally and ratably secured by any real property and/or other collateral now or hereafter securing any obligations of the Borrower or any of its Subsidiaries to such Lender, whether or not the same constitutes Collateral hereunder.

8.11 Documentation Agent and Syndication Agent. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Loan Documents, neither the Documentation Agent nor the Syndication Agent shall have any duties or responsibilities, nor shall the Document Agent or the Syndication Agent have or be deemed to have any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Documents or otherwise exist against the Documentation Agent or the Syndication Agent.

ARTICLE IX – MISCELLANEOUS

9.1 Amendments and Waivers.

(a) No amendment or waiver of any provision of this Agreement or any other Loan Document (or the Subordination Agreement or any subordination provisions applicable to Subordinated Indebtedness), and no consent with respect to any departure by the Borrower therefrom, shall be effective unless the same shall be in writing and signed by the Required Lenders, the Borrower and acknowledged by the Agent, and then such waiver shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such waiver, amendment, or consent shall, unless in writing and signed by all the Lenders, the Borrower and acknowledged by the Agent, do any of the following:

(i) increase or extend the Commitment of any Lender (or reinstate any Commitment terminated pursuant to subsection 7.2(a));

 

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(ii) postpone or delay any date fixed for, or waive, any payment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document (other than any postponement or delay of any date fixed for any mandatory prepayment of the Loans pursuant to subsection 1.8(c) or 1.8(d));

(iii) reduce the principal of, or the rate of interest specified herein or the amount of interest payable in cash specified herein on any Loan, or of any fees or other amounts payable hereunder or under any other Loan Document;

(iv) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Loans which shall be required for the Lenders or any of them to take any action hereunder;

(v) amend this Section 9.1(a) or the definition of Required Lenders or any provision providing for consent or other action by all Lenders;

(vi) discharge Holdings or any Subsidiary of the Borrower from their respective Obligations under the Loan Documents, or release all or substantially all of the Collateral except as otherwise may be provided in this Agreement or the other Loan Documents; or

(vii) amend or waive any provision of subsection 1.10(c);

(b) No amendment, waiver or consent shall, unless in writing and signed by the Agent in addition to the Required Lenders or all the Lenders, as the case may be, affect the rights or duties of the Agent under this Agreement or any other Loan Document;

(c) No amendment or waiver shall, unless signed by Agent, Required Lenders, Borrowers and Required Revolving Lenders: (i) amend or waive compliance with the conditions precedent to the obligations of Lenders to make any Revolving Loan (or to issue any Lender Letter of Credit or Letter of Credit Participation Agreement) in Section 2.2; (ii) amend or waive non-compliance with any provision of subsection 1.1(c); (iii) amend or waive this subsection 9.1(c) or the definitions of the terms used in this subsection 9.1(c) insofar as the definitions affect the substance of this subsection 9.1(c) or (iv) increase the Swing Line Commitment; and

(d) No amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender, affect the rights or duties of the Swing Line Lender (in its capacity as such), under this Agreement or any other Loan Document.

9.2 Notices.

(a) All notices, requests and other communications provided for hereunder shall be in writing (including, unless the context expressly otherwise provides, by facsimile or electronic transmission) and mailed by certified or registered mail, faxed or delivered by personal or overnight delivery, to the address or facsimile number specified for notices on the applicable

 

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signature page hereof (or, with respect to communications permitted or required to be delivered hereunder to the Agent electronically, to bsommerfeld@antareslev.com and dglickman@antareslev.com, or to such other e-mail addresses as may be designated by the Agent in a written notice to each of the other parties hereto given in compliance herewith); or, if directed to the Borrower or the Agent, to such other address as shall be designated by such party in a written notice to each of the other parties hereto given in compliance herewith, or, if directed to any other party hereto, to such other address as shall be designated by such party in a written notice given in compliance herewith to the Borrower and the Agent. The address for notices, requests and other communication to the Swing Line Lender shall be as follows or to such other address as shall be designated by the Swing Line Lender in a written notice to each of the other parties hereto given in compliance herewith:

Antares Capital Corporation

311 South Wacker Drive

Suite 4400

Attention: Portfolio Manager - Panther

Facsimile: (312) 697-3998

(b) All such notices, requests and communications shall be effective (i) if delivered in person, when delivered, (ii) if delivered by facsimile transmission, on the date of transmission if transmitted on a Business Day before 4:00 p.m. Chicago time, otherwise on the next Business Day, (iii) if delivered electronically, upon receipt thereof by the recipient; (iv) if delivered by overnight courier, one (1) Business Day after delivery to the courier properly addressed and (v) if mailed, upon the third (3rd) Business Day after the date deposited into the U.S. Mail, certified or registered; except that notices pursuant to Article I shall not be effective until actually received by the Agent.

(c) The Borrower acknowledges and agrees that any agreement of the Agent and the Lenders in Article I hereof to receive certain notices by telephone, facsimile and other electronic transmission is solely for the convenience and at the request of the Borrower. The Agent and the Lenders shall be entitled to rely on the authority of any Person purporting to be a Person authorized by the Borrower to give such notice and the Agent and the Lenders shall not have any liability to the Borrower or other Person on account of any action taken or not taken by the Agent or the Lenders in reliance upon such telephonic, facsimile or other electronic notice. The obligation of the Borrower to repay the Loans shall not be affected in any way or to any extent by any failure by the Agent and the Lenders to receive written confirmation of any telephonic or facsimile notice or the receipt by the Agent and the Lenders of a confirmation which is at variance with the terms understood by the Agent and the Lenders to be contained in the telephonic or facsimile notice.

9.3 No Waiver: Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Agent or any Lender, any right, remedy, power or privilege hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. No course of dealing between Borrower, any Affiliate of Borrower, Agent or any Lender shall be effective to amend, modify or discharge any provision of this Agreement or any of the other Loan Documents.

 

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9.4 Costs and Expenses. Whether or not the transactions contemplated hereby shall be consummated, the Borrower shall pay or reimburse:

(a) Antares (including in its capacity as Agent) within five (5) Business Days after demand (except as otherwise provided in subsection 2.1(f)) for all actual, reasonable, out-of-pocket costs and expenses incurred by Antares (including in its capacity as Agent) in connection with the development, preparation, syndication, delivery, administration and execution of, and any amendment, supplement, waiver or modification to (in each case, whether or not consummated), this Agreement, any Loan Document and any other documents prepared in connection herewith or therewith, and the consummation of the transactions contemplated hereby and thereby, including the Attorney Costs incurred by Antares (including in its capacity as Agent) with respect thereto and for all out-of-pocket costs and expenses incurred by it in connection with the enforcement, attempted enforcement, or preservation of any rights or remedies during the existence of an Event of Default (including in connection with any “workout” or restructuring regarding the Loans, and including in any Insolvency Proceeding or appellate proceeding) under this Agreement, any other Loan Document, and any such other documents;

(b) Lenders within five (5) Business Days after demand for all Attorney Costs of one law firm, on behalf of all Lenders (other than Antares) incurred by them in connection with the enforcement, attempted enforcement, or preservation of any rights or remedies during the existence of an Event of Default (including in connection with any “workout” or restructuring regarding the Loans, and including in any Insolvency Proceeding or appellate proceeding) under this Agreement, any other Loan Document; and

(c) Agent within five (5) Business Days after demand for all actual, reasonable, out-of-pocket appraisal, audit, environmental inspection and review (including the allocated cost of such internal services), search and filing costs, fees and expenses, incurred or sustained by Agent in connection with the matters referred to under subsection (a) of this Section 9.4.

The obligations of this Section 9.4 shall survive payment of all other Obligations.

9.5 Indemnity. Whether or not the transactions contemplated hereby shall be consummated, the Borrower shall indemnify, defend and hold harmless each Lender, the Swing Line Lender (in its capacity as such), the Agent, each Affiliate of Agent providing Lender Letters of Credit and each of their respective officers, directors, employees, counsel, agents and attorneys-in-fact (each, an “Indemnified Person”) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, and reasonable expenses or disbursements (including Attorney Costs):

(a) of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement and any other Loan Documents, or the transactions contemplated hereby and thereby, and with respect to any investigation, litigation or proceeding (including any Insolvency Proceeding or appellate proceeding) related to this Agreement or the Loans or the transactions contemplated hereby or the use of the proceeds thereof, whether or not any Indemnified Person is a party thereto; and

 

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(b) which may be incurred by or asserted against such Indemnified Person in connection with or arising out of any pending or threatened investigation, litigation or proceeding, or any action taken by any Person, with respect to any Environmental Claim arising out of or related to any Property of Borrower or any of its Subsidiaries;

(all the foregoing, collectively, the “Indemnified Liabilities”); provided , that the Borrower shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities to the extent arising from the gross negligence or willful misconduct of such Indemnified Person as determined by a court of competent jurisdiction.

No action taken by legal counsel chosen by the Agent or any Lender in defending against any investigation, litigation or proceeding or requested remedial, removal or response action shall vitiate or in any way impair the Borrower’s obligation and duty hereunder to indemnify and hold harmless the Agent and each Lender. In no event shall any site visit, observation, or testing by the Agent or any Lender (or any contractee of the Agent or any Lender) be deemed a representation or warranty that Hazardous Materials are or are not present in, on, or under, the site, or that there has been or shall be compliance with any Environmental Law. Neither the Borrower nor any other Person is entitled to rely on any site visit, observation, or testing by the Agent or any Lender. Neither the Agent nor any Lender owes any duty of care to protect the Borrower or any other Person against, or to inform the Borrower or any other Person of, any Hazardous Materials or any other adverse condition affecting any site or Property. Neither the Agent nor any Lender shall be obligated to disclose to the Borrower or any other Person any report or findings made as a result of, or in connection with, any site visit, observation, or testing by the Agent or any Lender.

The obligations in this Section 9.5 shall survive payment of all other Obligations. At the election of any Indemnified Person, the Borrower shall defend such Indemnified Person using legal counsel satisfactory to such Indemnified Person in such Person’s reasonable discretion, at the sole cost and expense of the Borrower. All amounts owing under this Section 9.5 shall be paid within thirty (30) days after demand.

9.6 Marshaling; Payments Set Aside. Neither the Agent nor any Lender shall be under any obligation to marshal any assets in favor of the Borrower or any other Person or against or in payment of any or all of the Obligations. To the extent that the Borrower makes a payment or payments to the Agent or any Lender, or the Agent or any Lender enforces its Liens or exercises its rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Agent in its discretion) to be repaid to a trustee, receiver or any other party in connection with any Insolvency Proceeding, or otherwise, then:

(a) to the extent of such recovery the Obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred; and

(b) each Lender severally agrees to pay to the Agent upon demand its ratable share of the total amount so recovered from or repaid by the Agent.

 

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The agreement and obligations of this Section shall survive payment of all other Obligations.

9.7 Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that any assignment by any Lender shall be subject to the provisions of Section 9.8 hereof, and provided further that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agent and each Lender.

9.8 Assignments, Participations, etc.

(a) Any Lender may, with the written consent of the Borrower, which consent shall not be unreasonably withheld (provided that such consent shall not be required at any time that a Default or an Event of Default exists or in connection with any assignment by a Lender to another Lender or to an Eligible Assignee that is an Affiliate of a Lender or a Related Fund of a Lender), and the Agent, at any time assign and delegate to one or more Eligible Assignees (provided that such consent of the Agent or the Borrower shall not be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender) (each an “Assignee”) all, or any part of the Loans, the Commitments and the other rights and obligations of such Lender hereunder, in a minimum amount of $1,000,000 (or such lesser amount to which the Agent, in its sole discretion, may agree) or, if less, the entire Commitment or Loan(s) of such Lender; provided, however, that any assignment of the Swing Line Commitment and Swing Line Loans thereunder (x) shall require the prior written consent of Agent which may be granted or withheld in its sole discretion and (y) shall be in the full amount of the Swing Line Commitment and outstanding Swing Line Loans at such time; provided, further, however, that in no event shall more than one Lender hold the Swing Line Commitment and Swing Line Loans at any time; and provided, further, however, in all instances, that the Borrower and the Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until:

(i) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to the Borrower and the Agent by such Lender and the Assignee;

(ii) such Lender and its Assignee shall have delivered to the Borrower and the Agent an Assignment and Acceptance in form and substance reasonably satisfactory to Agent, such Lender and its Assignee (an “Assignment and Acceptance”); and

(iii) the assignor Lender or the Assignee has paid to the Agent a processing fee in the amount of $3,500, provided no processing fee shall be required to be paid in connection with an assignment by a Lender to an Eligible Assignee that is an Affiliate of such Lender.

No less frequently than once every fiscal quarter, Agent shall notify Swing Line Lender of any assignments made to an entity that was not previously a Lender.

(b) Subject to the provisions of subsection 9.8(f) below, from and after the date that the Agent notifies the assignor Lender that the Agent has received and provided its consent with

 

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respect to an executed Assignment and Acceptance and payment of the above-referenced processing fee:

(i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents; and

(ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents.

(c) Subject to the provisions of subsection 9.8(f) below, immediately upon the making of the processing fee payment to the Agent in respect of the Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitment of the assigning Lender to the same extent.

(d) Any Lender may at any time sell to one or more commercial banks or other Persons not Affiliates of the Borrower (a “Participant”) participating interests in any Loans, the Commitment of that Lender and the other interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided , however, that:

(i) the Originating Lender’s obligations under this Agreement shall remain unchanged;

(ii) the Originating Lender shall remain solely responsible for the performance of such obligations;

(iii) the Borrower and the Agent shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s rights and obligations under this Agreement and the other Loan Documents; and

(iv) no Lender shall transfer or grant any participating interest under which the Participant shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to subsection 9.1(a).

In the case of any such participation, the Participant shall not have any rights under this Agreement, or any of the other Loan Documents, and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation.

(e) Notwithstanding any other provision contained in this Agreement or any other Loan Document to the contrary, any Lender may (i) assign all or any portion of the Loans held by it to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to

 

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Regulation A of the Federal Reserve Board and any Operating Circular issued by such Federal Reserve Bank, (ii) in the case of any Lender that is a fund, trust or similar entity, assign or pledge all or any portion of the Loans held by it (and Notes evidencing such Loans) to the trustee under any indenture to which such Lender is a party in support of its obligations to the trustee for the benefit of the applicable trust beneficiaries, or (iii) pledge all or any portion of the Loans held by it (and Notes evidencing such Loans) to its lenders for collateral security purposes, provided that any payment in respect of such assigned Loans made by the Borrower to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect to such assigned or pledged Loans to the extent of such payment. No such assignment or pledge shall release the assigning Lender from its obligations hereunder.

(f) The Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 9.2 a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of demonstrable error, and the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Commitments, Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Commitment and/or Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Commitment and/or Loan evidenced by a Note shall be registered on the Register only upon a surrender or registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated assignee and, if applicable, assignor, and the old Notes shall be returned by the Agent to the Borrower marked “cancelled”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Commitments and Loans) at any reasonable time and from time to time upon reasonable prior notice.

9.9 Confidentiality. Each of the Agent and the Lenders shall, until the second anniversary of the Revolving Termination Date, maintain in confidence in accordance with its customary procedures for handling confidential information, all written information that Borrower or any of its Subsidiaries, or any of their authorized representatives, furnishes to the Agent or any Lender on a confidential basis clearly marked as such (“Confidential Information”), other than any such Confidential Information that becomes generally available to the public other than as a result of a breach by the Agent or any Lender of its obligations hereunder or that is or becomes available to the Agent or such Lender from a source other than Borrower or any of its Subsidiaries, or any of their authorized representatives, and that is not, to the actual knowledge of the recipient thereof, subject to obligations of confidentiality with respect thereto; provided , however, that the Agent and each Lender shall in any event have the right to deliver copies of any such documents, and to disclose any such information, to:

(a) on a confidential basis, its directors, officers, trustees, partners, employees, agents, attorneys and professional consultants;

 

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(b) portfolio management services and rating agencies;

(c) any other Lender and any successor Agent;

(d) any Person to which such Lender offers to sell any Loan or any part thereof or interest or participation therein ( provided such Person agrees to keep such information confidential on the terms set forth in this Section 9.9);

(e) any federal or state regulatory authority or examiner, or any insurance industry association, regulating or having jurisdiction over the Agent or such Lender; and

(f) any other Person to which such delivery or disclosure may be necessary or appropriate (i) in compliance with any applicable law, rule, regulation or order, (ii) in response to any subpoena or other legal process or informal investigative demand, (iii) in connection with any litigation to which the Agent or such Lender is a party, or (iv) in connection with the enforcement of the rights and remedies of the Agent or the Lenders under this Agreement and the other Loan Documents at any time when an Event of Default shall have occurred and be continuing.

9.10 Set-off; Sharing of Payments. In addition to any rights and remedies now or hereafter granted under applicable law, and not by way of limitation of any such rights or remedies at any time and from time to time, upon the occurrence and during the continuance of any Event of Default, each Lender is hereby authorized by the Borrower, with reasonably prompt subsequent notice to the Borrower (any prior or contemporaneous notice being hereby expressly waived by the Borrower) to set off and to appropriate and to apply any and all

(a) balances held by such Lender at any of its offices for the account of the Borrower or any of its Subsidiaries (regardless of whether such balances are then due to the Borrower or any of its Subsidiaries); and

(b) other Property at any time held or owing by such Lender to or for the credit or for the account of the Borrower or any of its Subsidiaries;

against and on account of any and all Obligations which are not paid when due; except that no Lender shall exercise such right without the prior written consent of the Agent. Any Lender having a right to set off shall purchase for cash (and the other Lenders shall sell) participations in each such other Lender’s pro rata share of the Obligations as would be necessary to cause such Lender to share the benefit of such right of set-off with each other Lender in accordance with their respective pro rata shares of the Obligations. The Borrower agrees, to the fullest extent permitted by law, that (i) any Lender may exercise its right to set off with respect to amounts in excess of its pro rata share of the Obligations and may sell participations to other Lenders, and (ii) any Lender so purchasing a participation in the Obligations held by other Lenders may exercise all rights of setoff, bankers’ lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Obligations in the amount of such participation. The Borrower hereby grants to each Lender a security interest in all such deposits and other Property, whether now existing or hereafter arising, held by each Lender for the purposes set forth herein.

 

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9.11 Notification of Addresses, Lending Offices, Etc. Each Lender shall notify the Agent in writing of any changes in the address to which notices to such Lender should be directed, of addresses of its Lending Office, of payment instructions in respect of all payments to be made to it hereunder and of such other administrative information as the Agent shall reasonably request.

9.12 Counterparts. This Agreement may be executed by one or more of the parties to this Agreement in any number of separate counterparts, each of which, when so executed, shall be deemed an original, and all of said counterparts taken together shall be deemed to constitute but one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be lodged with each of the Borrower and the Agent.

9.13 Severability; Facsimile Signature. The illegality or unenforceability of any provision of this Agreement or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Agreement or any instrument or agreement required hereunder. Any Loan Document, or other agreement, document or instrument, delivered by facsimile transmission shall have the same force and effect as if the original thereof had been delivered.

9.14 Captions. The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.

9.15 Independence of Provisions. The parties hereto acknowledge that this Agreement and other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters, and that such limitations, tests and measurements are cumulative and must each be performed, except as expressly stated to the contrary in this Agreement.

9.16 Interpretation. This Agreement is the result of negotiations among and has been reviewed by counsel to the Agent, the Borrower and other parties hereto, and is the product of all parties hereto. Accordingly, this Agreement and the other Loan Documents shall not be construed against the Lenders or the Agent merely because of the Agent’s or Lenders’ involvement in the preparation of such documents and agreements.

9.17 No Third Parties Benefited. This Agreement is made and entered into for the sole protection and legal benefit of the Borrower, the Lenders and the Agent, and their permitted successors and assigns, and no other Person shall be a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement or any of the other Loan Documents. Neither the Agent nor any Lender shall have any obligation to any Person not a party to this Agreement or the other Loan Documents.

9.18 Governing Law and Jurisdiction.

(A) THIS AGREEMENT AND EACH NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THAT WOULD CAUSE THE LAWS OF ANY OTHER STATE

 

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TO APPLY; PROVIDED THAT THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.

(B) BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT AND BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY BORROWER AGAINST AGENT OR ANY LENDER OR ANY AFFILIATE THEREOF INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.

(C) IF ANY AGENT APPOINTED BY BORROWER REFUSES TO ACCEPT SERVICE, BORROWER HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

9.19 Waiver of Jury Trial. THE BORROWER, THE LENDERS AND THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE BORROWER, THE LENDERS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.

 

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9.20 Entire Agreement; Release. This Agreement, together with the other Loan Documents, embodies the entire agreement and understanding among Holdings, the Borrower, the Lenders and the Agent, and supersedes all prior or contemporaneous Agreements and understandings of such Persons, oral or written, relating to the subject matter hereof and thereof and any prior arrangements made with respect to the payment by the Borrower of (or any indemnification for) any fees, costs or expenses payable to or incurred (or to be incurred) by or on behalf of the Agent or the Lenders. Borrower has relied exclusively on the terms and provisions contained in this Agreement and the other Loan Documents in its execution and delivery hereof and thereof and entering into the transactions which are the subject hereof and thereof. Execution of this Agreement by the Borrower constitutes a full, complete and irrevocable release of any and all claims which the Borrower may have at law or in equity in respect of all prior discussions and understandings, oral or written, relating to the subject matter of this Agreement and the other Loan Documents. Neither Agent nor any Lender shall be liable to Borrower or any other Person on any theory of liability for any special, indirect, consequential or punitive damages.

9.21 Patriot Act. Each Lender that is subject to the Patriot Act hereby notifies Borrower that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies Borrower, which information includes the name and address of Borrower and other information that will allow such Lender to identify Borrower in accordance with the Patriot Act.

9.22 Replacement of Lender. Within forty-five (45) days after: (i) receipt by the Borrower of written notice and demand from any Lender (an “Affected Lender”) for payment of additional costs as provided in Sections 10.1,10.3 and/or 10.6; (ii) any default by a Lender in its obligation to make Loans hereunder after all conditions thereto have been satisfied, provided such default shall not have been cured; or (iii) any failure by any Lender to consent to a requested amendment, waiver or modification to any Loan Document in which Required Lenders have already consented to such amendment, waiver or modification but the consent of each Lender (or each Lender having Revolving Loans or Term Loan or each Lender directly affected thereby, as applicable) is required with respect thereto, the Borrower may, at its option, notify the Agent and such Affected Lender (or such defaulting or non-consenting Lender, as the case may be) of the Borrower’s intention to obtain, at the Borrower’s expense, a replacement Lender (“Replacement Lender”) for such Affected Lender (or such defaulting or non-consenting Lender, as the case may be), which Replacement Lender shall be reasonably satisfactory to the Agent. In the event the Borrower obtains a Replacement Lender within forty-five (45) days following notice of its intention to do so, the Affected Lender (or defaulting or non-consenting Lender, as the case may be) shall sell and assign its Loans and Commitments to such Replacement Lender, at par, provided that the Borrower has reimbursed such Affected Lender for its increased costs for which it is entitled to reimbursement under this Agreement through the date of such sale and assignment. In the event that a replaced Lender does not execute an Assignment and Acceptance pursuant to Section 9.8 within five (5) Business Days after receipt by such replaced Lender of notice of replacement pursuant to this Section 9.22 and presentation to such replaced Lender of an Assignment and Acceptance evidencing an assignment pursuant to this Section 9.22, the Borrower shall be entitled (but not obligated) to execute such an Assignment and Acceptance on behalf of such replaced Lender, and any such Assignment and Acceptance so executed by the Borrower, the Replacement Lender and the Agent, shall be effective for purposes of this

 

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Section 9.22 and Section 9.8. Upon any such assignment and payment and compliance with the other provisions of Section 9.8, such replaced Lender shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such replaced Lender to indemnification hereunder shall survive as to such replaced Lender.

9.23 Continued Effectiveness; No Novation. Anything contained herein to the contrary notwithstanding, this Agreement is not intended to and shall not serve to effect a novation of the Obligations under the Original Credit Agreement. Instead, it is the express intention of the parties hereto to reaffirm the indebtedness created under the Original Credit Agreement which is evidenced by the notes provided for therein and secured by the Collateral. Borrower acknowledges and confirms that it has no defense, set off, claim or counterclaim against the Agent and the Lenders with regard to the indebtedness, liabilities and obligations created under the Original Credit Agreement and the liens and security interests granted pursuant to the Loan Documents secure the indebtedness, liabilities and obligations of the Borrower to the Agent and the Lenders under the Original Credit Agreement, as amended and restated hereby, and that the term “Obligations” as used in the Loan Documents (or any other term used therein to describe or refer to the indebtedness, liabilities and obligations of the Borrower to the Agent and the Lenders) includes, without limitation, the indebtedness, liabilities and obligations of the Borrower under the Notes to be delivered hereunder, and under the Original Credit Agreement, as amended and restated hereby, as the same further may be amended, modified, supplemented and/or restated from time to time. The Loan Documents and all agreements, instruments and documents executed or delivered in connection with any of the foregoing shall each be deemed to be amended to the extent necessary to give effect to the provisions of this Agreement. Cross-references in the Loan Documents to particular section numbers in the Original Credit Agreement shall be deemed to be cross-references to the corresponding sections, as applicable, of this Agreement.

9.24 Press Release and Related Matters. Borrower agrees that neither it nor its Affiliates will in the future issue any press releases or other public disclosure using the name “GE Capital” or its affiliates or referring to this Agreement, the other Loan Documents or the Related Agreements without at least two (2) Business Days’ prior notice to the Agent and without the prior written consent of the Agent unless (and only to the extent that) Borrower or such Affiliate is required to do so under law and then, in any event, Borrower or such Affiliate will consult with the Agent before issuing such press release or other public disclosure. Borrower consents to the publication by Agent or any Lender of advertising material relating to the financing transactions contemplated by this Agreement using Borrower’s name, product photographs, logo or trademark. Agent or such Lender shall provide a draft of any advertising material to Borrower for review and comment prior to the publication thereof. Agent reserves the right to provide to industry trade organizations information necessary for inclusion in league table measurements.

ARTICLE X - TAXES, YIELD PROTECTION AND ILLEGALITY

10.1 Taxes.

(a) Subject to subsection 10.1(g) or to the extent required by applicable law, any and all payments by the Borrower to each Lender or the Agent under this Agreement shall be made

 

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free and clear of, and without deduction or withholding for, any and all present or future taxes, levies, imposts, deductions, charges or withholdings imposed by any Governmental Authority, and all interest, additions to tax or penalties applicable thereto, excluding, in the case of each Lender and the Agent, such taxes (including income taxes, franchise taxes branch profits taxes or similar taxes) as are imposed on or measured by each Lender’s net income by the jurisdiction under the laws of which such Lender or the Agent, as the case may be, is organized or maintains a Lending Office or any political subdivision thereof or imposed as a result of any present or former connection between the jurisdiction imposing such tax and such Lender other than a connection arising solely as a result of such Lender having performed its obligations or received payment hereunder or under any Loan Document (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and interest, additions to tax or penalties applicable thereto being hereinafter referred to as “Non-Excluded Taxes,” and all such excluded taxes being hereinafter referred to as “Excluded Taxes”).

(b) In addition, the Borrower shall pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies imposed by any Governmental Authority which arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or any other Loan Document (hereinafter referred to as “Other Taxes”).

(c) Subject to subsection 10.1(g), the Borrower shall indemnify and hold harmless each Lender and the Agent for the full amount of Non-Excluded Taxes or Other Taxes (including any Non-Excluded Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 10.1) paid by such Lender or the Agent and any liability (including penalties, interest, additions to tax and expenses) arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes or Other Taxes were correctly or legally asserted. Payment under this indemnification shall be made within thirty (30) days from the date any Lender or the Agent makes written demand therefor.

(d) If the Borrower shall be required by law to deduct or withhold any Non-Excluded Taxes or Other Taxes from or in respect of any sum payable hereunder to any Lender or the Agent, then, subject to subsection 10.1(g):

(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 10.1) such Lender or the Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made;

(ii) the Borrower shall make such deductions; and

(iii) the Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.

(e) Within thirty (30) days after the date of any payment by the Borrower of Non- Excluded Taxes or Other Taxes, the Borrower shall furnish to the Agent (and the applicable Lender) the original or a certified copy of a receipt evidencing payment thereof, or other evidence of payment satisfactory to the Agent (and the applicable Lender).

 

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(f) Each Lender that is not a “United States person” as defined under Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) shall deliver to the Borrower and the Agent either (i) two completed copies of either (x) U.S. Internal Revenue Service Form W-8BEN claiming eligibility of the Non-U.S. Lender for benefits of an income tax treaty to which the United States is a party or (y) U.S. Internal Revenue Service Form W-8ECI, or in either case any subsequent versions thereof or successor forms thereto; or (ii) in the case of a Non-U.S. Lender that is entitled to claim and is claiming exemption from U.S. federal withholding tax under Section 871(h) or Section 881(c) of the Code with respect to payments of “portfolio interest,” (x) a certificate representing that such Non-U.S. Lender is not (A) a “bank” for purposes of Section 881(c)(3)(A) of the Code, (B) a ten percent (10%) shareholder of Borrower within the meaning of Section 871(h)(3)(B) of the Code, or (C) a controlled foreign corporation related to Borrower within the meaning of Section 864(d)(4) of the Code (referred to as an “Exemption Certificate”) and (y) two completed copies of U.S. Internal Revenue Service Form W-8BEN or any subsequent versions thereof or successor forms thereto, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S. federal withholding tax on all payments by Borrower under this Agreement and the other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender to the Borrower on or before the date such Non-U.S. Lender becomes a party to this Agreement. In addition, each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender (but only for so long as such Non-U.S. Lender is legally available to deliver such form). Each Non-U.S. Lender shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any other form of certification adopted by the U.S. taxing authorities for such purpose).

Each Lender that is a “United States person” as defined under Section 7701(a)(30) of the Code (a “U.S. Lender”) shall deliver to the Borrower and the Agent such form or forms, certificates or documentation, including two original copies of United States Internal Revenue Service Form W-9, as reasonably requested by any Borrower to confirm or establish that such U.S. Lender is not subject to deduction, withholding, or backup withholding of United States federal income tax with respect to any payments to such U.S. Lender. Such forms shall be delivered by each U.S. Lender to the Borrower on or before the date such U.S. Lender becomes a party to this Agreement.

(g) The Borrower will not be required to pay any additional amounts to any Lender pursuant to Section 10.1(d)(i), or to indemnify any Lender pursuant to Section 10.1(c), in respect of any United States federal withholding taxes:

(i) if the obligation to pay such additional amounts or to indemnify a Lender would not have arisen but for a failure by such Lender to comply with its obligations under subsection 10.1(f), including the failure of such Lender to deliver to Borrower the form or forms and/or an Exemption Certificate, as applicable to such Lender;

(ii) if such Lender shall have delivered to the Borrower a Form W-8BEN and/or Form W-8ECI (or any subsequent versions thereof or successors thereto) in respect of such Lending Office pursuant to subsection 10.1(f), and such Lender shall not at any time be entitled to complete exemption from deduction or withholding of United

 

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States Federal income tax in respect of payments by the Borrower hereunder for the account of such Lending Office for any reason, including if such forms or Exemption Certificate fail to establish a complete exemption from United States federal withholding tax or if the information or certifications made therein by such Lender being untrue or inaccurate on the date delivered, other than to the extent that such reason is attributable to a change in United States law, treaty or regulations or in the official interpretation of such law or regulations by any Governmental Authority charged with the interpretation or administration thereof (whether or not having the force of law) after the date of delivery of such Form W-8BEN and/or Form W-8ECI (or any subsequent versions thereof or successors thereto); or

(iii) if such Lender designates a successor Lending Office at which it maintains its loans which has the effect of causing such Lender to become obligated for Non-Excluded Taxes or payments to such Lender to be subject to deduction or withholding in excess of those in effect immediately prior to such designation.

(h) If, at any time, the Borrower requests any Lender to deliver any forms or other documentation pursuant to subsection 10.1(f), then the Borrower shall, on demand of such Lender through the Agent, reimburse such Lender for any costs and expenses (including Attorney Costs) reasonably incurred by such Lender in the preparation or delivery of such forms or other documentation.

(i) If the Borrower is required to pay additional amounts to any Lender or the Agent pursuant to subsection 10.1(d), then such Lender shall use its reasonable best efforts (consistent with legal and regulatory restrictions) to change the jurisdiction of its Lending Office so as to eliminate any such additional payment by the Borrower which may thereafter accrue if such change in the judgment of such Lender is not otherwise disadvantageous to such Lender.

(j) If the Borrower pays any amounts under this Section 10.1 to a Lender or a Governmental Authority with respect to such Lender and such Lender becomes aware that it has actually received any refund of such amounts, such Lender shall within thirty (30) Business Days pay such refund to the Borrower (but only to the extent of the amounts paid by the Borrower to such Lender in respect of the amounts giving rise to such refund), net of all out-of-pocket expenses incurred in obtaining such refund; provided , however , that (i) the Borrower agrees to repay the amount it received from such Lender in the event such Lender is required to repay such refund for any reason; (ii) nothing in this Section 10.1 shall require any Lender to disclose to the Borrower or to any other Person any information it deems to be confidential in its sole discretion (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 10.1 at any time in which a Default or Event of Default shall have occurred and be continuing.

(k) If any Non-Excluded Tax or Other Tax was not correctly or legally asserted, the relevant Lender shall, upon the Borrower’s reasonable request and at the expense of Borrower, provide such documents to Borrower as are necessary to enable Borrower to contest such Non-Excluded Tax or Other Tax pursuant to appropriate proceedings then available to the relevant Lender (so long as providing such documents shall not, in the good faith determination of the

 

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relevant Lender, result in any liability to the relevant Lender and doing so is otherwise permitted under applicable law as determined by such Lender).

10.2 Illegality. (a) If after the date hereof any Lender shall determine that the introduction of any Requirement of Law, or any change in any Requirement of Law or in the interpretation or administration thereof, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for any Lender or its Lending Office to make LIBOR Rate Loans, then, on notice thereof by such Lender to the Borrower through the Agent, the obligation of that Lender to make LIBOR Rate Loans shall be suspended until such Lender shall have notified the Agent and the Borrower that the circumstances giving rise to such determination no longer exists.

(b) Subject to clause (c) below, if any Lender shall determine that it is unlawful to maintain any LIBOR Rate Loan, the Borrower shall prepay in full all LIBOR Rate Loans of such Lender then outstanding, together with interest accrued thereon, either on the last day of the Interest Period thereof if such Lender may lawfully continue to maintain such LIBOR Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such LIBOR Rate Loans, together with any amounts required to be paid in connection therewith pursuant to Section 10.4.

(c) If the obligation of any Lender to make or maintain LIBOR Rate Loans has been terminated, the Borrower may elect, by giving notice to such Lender through the Agent that all Loans which would otherwise be made by any such Lender as LIBOR Rate Loans shall be instead Base Rate Loans.

(d) Before giving any notice to the Agent pursuant to this Section 10.2, the affected Lender shall designate a different Lending Office with respect to its LIBOR Rate Loans if such designation will avoid the need for giving such notice or making such demand and will not, in the judgment of the Lender, be illegal or otherwise disadvantageous to the Lender.

10.3 Increased Costs and Reduction of Return.

(a) If any Lender shall determine that, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law), in the case of either clause (i) or (ii) subsequent to the date hereof, there shall be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining any LIBOR Rate Loans, then the Borrower shall be liable for, and shall from time to time, within thirty (30) days of demand therefor by such Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender, additional amounts as are sufficient to compensate such Lender for such increased costs.

(b) If any Lender shall have determined that:

(i) the introduction of any Capital Adequacy Regulation;

(ii) any change in any Capital Adequacy Regulation;

 

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(iii) any change in the interpretation or administration of any Capital Adequacy Regulation by any central bank or other Governmental Authority charged with the interpretation or administration thereof; or

(iv) compliance by such Lender (or its Lending Office) or any corporation controlling the Lender, with any Capital Adequacy Regulation;

affects the amount of capital required or expected to be maintained by such Lender or any entity controlling such Lender and (taking into consideration such Lender’s or such entity’s policies with respect to capital adequacy and such Lender’s desired return on capital) determines that the amount of such capital is increased as a consequence of its Commitment(s), loans, credits or obligations under this Agreement, then, within thirty (30) days of demand of such Lender (with a copy to the Agent), the Borrower shall pay to such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender (or the entity controlling such Lender) for such increase; provided , the Borrower shall not be required to compensate a Lender pursuant to this subsection for any such increase incurred more than one (1) year prior to the date that such Lender notifies the Borrower of the Capital Adequacy Regulation (whether or not having the force of law) giving rise to such increase and of such Lender’s intention to claim payment therefor; provided , further , if such Capital Adequacy Regulation or interpretation or administration thereof giving rise to such increase is retroactive, then the one (1) year period referred to above shall be extended to include the period of retroactive effect thereof. Each Lender agrees that if the Borrower is required to pay additional amounts to such Lender or the Agent pursuant to this subsection 10.3(b), it will, if requested by the Borrower, use reasonable good faith efforts (subject to overall policy considerations of such Lender) to designate another Lending Office so as to eliminate any such additional payment by the Borrower which may thereafter accrue if such designation would not require such Lender to disclose any information such Lender deems confidential and would not, in the sole determination of such Lender, be otherwise disadvantageous to such Lender.

10.4 Funding Losses. The Borrower agrees to reimburse each Lender and to hold each Lender harmless from any loss or expense (excluding lost profits) which such Lender may sustain or incur as a consequence of:

(a) the failure of the Borrower to make any payment or mandatory prepayment of principal of any LIBOR Rate Loan (including payments made after any acceleration thereof);

(b) the failure of the Borrower to borrow, continue or convert a Loan after the Borrower has given (or is deemed to have given) a Notice of Borrowing or a Notice of Continuation/Conversion;

(c) the failure of the Borrower to make any prepayment after the Borrower has given a notice in accordance with Section 1.7;

(d) the prepayment (including pursuant to Section 1.8) of a LIBOR Rate Loan on a day which is not the last day of the Interest Period with respect thereto; or

(e) the conversion pursuant to Section 1.6 of any LIBOR Rate Loan to a Base Rate Loan on a day that is not the last day of the applicable Interest Period;

 

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including any such loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain its LIBOR Rate Loans hereunder or from fees payable to terminate the deposits from which such funds were obtained. Solely for purposes of calculating amounts payable by the Borrower to the Lenders under this Section 10.4 and under subsection 10.3(a): each LIBOR Rate Loan made by a Lender (and each related reserve, special deposit or similar requirement) shall be conclusively deemed to have been funded at the LIBOR used in determining the interest rate for such LIBOR Rate Loan by a matching deposit or other borrowing in the interbank eurodollar market for a comparable amount and for a comparable period, whether or not such LIBOR Rate Loan is in fact so funded.

10.5 Inability to Determine Rates. If the Agent shall have determined in good faith that for any reason adequate and reasonable means do not exist for ascertaining the LIBOR for any requested Interest Period with respect to a proposed LIBOR Rate Loan or that the LIBOR applicable pursuant to subsection 1.3(a) for any requested Interest Period with respect to a proposed LIBOR Rate Loan does not adequately and fairly reflect the cost to the Lenders of funding such Loan, the Agent will forthwith give notice of such determination to the Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain LIBOR Rate Loans hereunder shall be suspended until the Agent revokes such notice in writing. Upon receipt of such notice, the Borrower may revoke any Notice of Borrowing or Notice of Continuation/Conversion then submitted by it. If the Borrower does not revoke such notice, the Lenders shall make, convert or continue the Loans, as proposed by the Borrower, in the amount specified in the applicable notice submitted by the Borrower, but such Loans shall be made, converted or continued as Base Rate Loans.

10.6 Reserves on LIBOR Rate Loans. The Borrower shall pay to each Lender, as long as such Lender shall be required under regulations of the Federal Reserve Board to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional costs on the unpaid principal amount of each LIBOR Rate Loan equal to 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 absent demonstrable error), payable on each date on which interest is payable on such Loan provided the Borrower shall have received at least fifteen (15) days’ prior written notice (with a copy to the Agent) of such additional interest from the Lender. If a Lender fails to give notice fifteen (15) days prior to the relevant Interest Payment Date, such additional interest shall be payable fifteen (15) days from receipt of such notice.

10.7 Certificates of Lenders. Any Lender claiming reimbursement or compensation pursuant to this Article X shall deliver to the Borrower (with a copy to the Agent) a certificate setting forth in reasonable detail the amount payable to such Lender hereunder and such certificate shall be conclusive and binding on the Borrower in the absence of manifest error.

10.8 Survival. The agreements and obligations of the Borrower in this Article X shall survive the payment of all other Obligations.

 

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ARTICLE XI - DEFINITIONS

11.1 Defined Terms. The following terms are defined in the Sections or subsections referenced opposite such terms:

 

“Acquisition Co.”

     Recitals

“Affected Lender”

     9.22

“Aggregate Accrual”

     5.11(g)

“Assignee”

     9.8(a)

“Assignee Lender”

     1.1(e)

“Assigning Lender”

     1.1(e)

“Assignment and Acceptance”

     9.8(a)(ii)

“Borrower”

     Preamble

“Borrowing Base”

     1.1(b)

“Commitment Fee”

     1.9(b)

“Confidential Information”

     9.9

“Documentation Agent”

     Preamble

“EBITDA”

     Exhibit 4.2(b)

“Event of Default”

     7.1

“Excluded Taxes”

     10.1 (a)

“Excess Cash Flow”

     Exhibit 1.8(d)

“Exemption Certificate”

     10.1(f)

“Existing Letters of Credit”

     1.1(c)

“Existing Term Loans”

     1.1(a)

“Fee Letter”

     1.9(a)

“Fixed Charge Coverage Ratio”

     Exhibit 4.2(b)

“Indemnified Person”

     9.5

“Indemnified Liabilities”

     9.5

“Interest Coverage Ratio”

     Exhibit 4.2(b)

“Lender” and “Lenders”

     Preamble

“Lender Letter of Credit”

     1.1(c)

“Letter of Credit Participation Agreement”

     1.1(c)

“Letter of Credit Participation Fee”

     1.9(c)

“Leverage Ratio”

     Exhibit 4.2(b)

“Maximum Accrual”

     5.11(g)

“Maximum Revolving Loan Balance”

     1.1(b)

“Non-Excluded Taxes”

     10.1 (a)

“Non-U.S. Lender”

     10.1(f)

“Notice of Swing Line Borrowing”

     1.5(d)

“Original Credit Agreement”

     Recitals

“Originating Lender”

     9.8

“Other Taxes”

     10.1(b)

“Participant”

     9.8(d)

“Permitted Liens”

     5.1

“Refunded Swing Line Loans”

     1.8(g)

“Restricted Payments”

     5.11

“Replacement Lender”

     9.22

“Revolving Loan Commitment”

     1.1(b)

“Revolving Loan”

     1.1(b)

“Seller Paper”

     5.5

“Senior Leverage Ratio”

     Exhibit 4.2(b)

“Swing Line Commitment”

     1.1(d)

“Swing Line Loan”

     1.1(d)

“Syndication Agent”

     Preamble

“Term Loan”

     1.1(a)

“Term Loan Commitment”

     1.1(a)

“U.S. Lender”

     10.1(f)

 

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In addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:

“Account” means, as at any date of determination, all “accounts” (as such term is defined in the UCC) of the Borrower and its Subsidiaries, including, without limitation, the unpaid portion of the obligation of a customer of the Borrower or any of its Subsidiaries in respect of Inventory purchased by and shipped to such customer and/or the rendition of services by the Borrower or such Subsidiary, as stated on the respective invoice of the Borrower or such Subsidiary, net of any credits, rebates or offsets owed to such customer.

“Account Debtor” means the customer of the Borrower or any of its Subsidiaries who is obligated on or under an Account.

“Acquired Entity” has the meaning ascribed to such term in the definition of “Permitted Acquisitions.”

“Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of fifty percent (50%) of the capital stock, partnership interests or equity of any Person or otherwise causing any Person to become a Subsidiary of the Borrower, or (c) a merger or consolidation or any other combination with another Person.

“Affiliate” means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, by contract or otherwise. Without limitation, any director, executive officer or beneficial owner of ten percent (10%) or more of the equity of a Person shall for the purposes of this Agreement, be deemed to control the other Person. Notwithstanding the foregoing, neither the Agent nor any Lender shall be deemed an “Affiliate” of Holdings, the Borrower or of any Subsidiary of the Borrower.

“Agent” means Antares in its capacity as the administrative agent for the Lenders hereunder, and any successor agent.

 

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“Agent-Related Persons” means Antares and any successor agent arising under Section 8.9, together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.

“Aggregate Revolving Loan Commitment” means the combined Revolving Loan Commitments of the Lenders, which shall initially be in the amount of $20,000,000, as such amount may be reduced from time to time pursuant to this Agreement.

“Aggregate Term Loan Commitment” means the combined Term Loan Commitments of the Lenders, which shall initially be in the amount of $70,000,000, as such amount may be reduced from time to time pursuant to this Agreement.

“Antares” means Antares Capital Corporation, a Delaware corporation.

“Applicable Margin” means

(a) for the period commencing on the Restatement Effective Date through the fifth (5th) Business Day following the date of delivery of the monthly financial statements and the Compliance certificate for June 2006,

(i) with respect to Base Rate Loans, two and one-half percent (2.50%) per annum, and

(ii) with respect to LIBOR Rate Loans, three and three-quarters percent (3.75%) per annum; and

(b) thereafter, the Applicable Margin shall equal the applicable LIBOR margin or Base Rate margin in effect from time to time determined as set forth below based upon the applicable Leverage Ratio then in effect pursuant to the appropriate column under the table below:

 

Leverage Ratio

   LIBOR Margin     Base Rate Margin  

greater than 4.50 to 1.0

   4.00   2.75

greater than 4.00 to 1.0, but less than or equal to 4.50 to 1.0

   3.75   2.50

greater than 3.50 to 1.0, but less than or equal to 4.00 to 1.0

   3.50   2.25

less than or equal to 3.50 to 1.0

   3.00   1.75

The Applicable Margin shall be adjusted from time to time upon delivery to the Agent of the monthly financial statements for the last month of each fiscal quarter and the Compliance

 

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Certificate required to be delivered pursuant to Section 4.1 hereof, in each case accompanied by a written calculation of the Leverage Ratio certified on behalf of the Borrower by a Responsible Officer as of the end of the fiscal month for which such financial statements are delivered. If such calculation indicates that the Applicable Margin shall increase or decrease, then on the fifth (5 th ) Business Day following the date of delivery of such financial statements, Compliance Certificate and written calculation the Applicable Margin shall be adjusted in accordance therewith; provided , however , that if the Borrower shall fail to deliver any such financial statements and Compliance Certificate for any such fiscal month by the date required pursuant to Section 4.1, then, at the Agent’s election, effective as of the date such financial statements and Compliance Certificate were to have been delivered, and continuing through the fifth (5 th ) Business Day following the date (if ever) when such financial statements, Compliance Certificate and such written calculation are finally delivered, the Applicable Margin shall be conclusively presumed to equal the highest Applicable Margin specified in the pricing table set forth above.

“Attorney Costs” means and includes all reasonable fees and disbursements of any law firm or other external counsel and all disbursements of internal counsel.

“Availability” means as of any date of determination, the amount by which (a) the Maximum Revolving Loan Balance, exceeds (b) the aggregate outstanding principal balance of Revolving Loans.

“Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq. ), as amended and in effect from time to time and the regulations issued from time to time thereunder.

“Base Rate” means, for any day, a rate of interest equal to the greater of (a) the rate of interest which is identified as the “Prime Rate” and normally published in the Money Rates section of The Wall Street Journal (or, if such rate ceases to be so published, as quoted from such other generally available and recognizable source as the Agent may select) and (b) the sum of the Federal Funds Rate plus one half of one percent (0.5%). Any change in the Base Rate due to a change in the “Prime Rate” or the Federal Funds Rate shall be effective on the effective date of such change in the “Prime Rate” or the Federal Funds Rate.

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

“Borrower Pledge Agreement” means that certain Pledge Agreement, dated as of the Original Closing Date made by the Borrower in favor of the Agent, for the benefit of Agent and the Lenders, pursuant to which, among other things, the Borrower pledged one hundred percent (100%) of the issued and outstanding capital stock of Panther Sub, as reaffirmed on the Restatement Effective Date pursuant to the Master Reaffirmation.

“Borrowing” means a borrowing hereunder consisting of Loans made to the Borrower on the same day by the Lenders pursuant to Article I.

 

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“Borrowing Base Certificate” means a certificate of the Borrower, in substantially the form of Exhibit 11.1 (a) hereto, duly completed as of a date acceptable to the Agent in its sole discretion.

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks in Chicago, Illinois or New York, New York are authorized or required by law to close and , if the applicable Business Day relates to any LIBOR Rate Loan, a day on which dealings are carried on in the London interbank market.

“Capital Adequacy Regulation” means any guideline, request or directive of any central bank or other Governmental Authority, or any other law, rule or regulation, whether or not having the force of law, in each case, regarding capital adequacy of any Lender or of any corporation controlling a Lender.

“Capital Lease” means any leasing or similar arrangement which, in accordance with GAAP, is classified as a capital lease.

“Capital Lease Obligations” means all monetary obligations of the Borrower or any of its Subsidiaries under any Capital Leases.

“Cash Equivalents” means: (a) securities issued or fully guaranteed or insured by the United States Government or any agency thereof having maturities of not more than six (6) months from the date of acquisition; (b) certificates of deposit, time deposits, repurchase agreements, reverse repurchase agreements, or bankers’ acceptances, having in each case a tenor of not more than six (6) months, issued by any Lender, or by any U.S. commercial bank or any branch or agency of a non-U.S. bank licensed to conduct business in the U.S. having combined capital and surplus of not less than $250,000,000; (c) commercial paper of an issuer rated at least A-1 by Standard & Poor’s Corporation or P-1 by Moody’s Investors Service Inc. and in either case having a tenor of not more than nine (9) months and (d) money market mutual funds provided that substantially all of the assets of such fund are comprised of securities of the type described in clauses (a) through (c).

“Code” means the Internal Revenue Code of 1986, and regulations promulgated thereunder.

“Collateral” means all Property and interests in Property and proceeds thereof now owned or hereafter acquired by the Borrower, Holdings or any other Person as debtor and their respective Subsidiaries and any other Person who has granted a Lien to Agent, in or upon which a Lien now or hereafter exists in favor of any Lender or the Agent for the benefit of the Agent and Lenders, whether under this Agreement or under any other documents executed by any such Persons and delivered to the Agent.

“Collateral Documents” means, collectively, the Security Agreements, the Master Reaffirmation, the Mortgages, the Guaranty, the Pledge Agreements and all other security agreements, pledge agreements, patent and trademark assignments, lease assignments, guarantees and other similar agreements, and all amendments, restatements, modifications or supplements thereof or thereto, by or between any one or more of Holdings, the Borrower, its Subsidiaries or any other Person pledging or granting a lien on Collateral or guaranteeing the

 

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payment and performance of the Obligations, and any Lender or the Agent for the benefit of the Agent and Lenders now or hereafter delivered to the Lenders or the Agent pursuant to or in connection with the transactions contemplated hereby, and all financing statements (or comparable documents now or hereafter filed in accordance with the UCC or comparable law) against Holdings, the Borrower, its Subsidiaries or any other Person as debtor in favor of any Lender or the Agent for the benefit of Agent and the Lenders, as secured party.

“Commitment” means, for each Lender, the sum of its Revolving Loan Commitment and Term Loan Commitment.

“Commitment Percentage” means, as to any Lender, the percentage equivalent of such Lender’s Revolving Loan Commitment or Term Loan Commitment divided by the Aggregate Revolving Loan Commitment or Aggregate Term Loan Commitment, as applicable.

“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person: (i) with respect to any Indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; (ii) with respect to any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (iii) under any Rate Contracts; (iv) to make take-or-pay or similar payments if required regardless of nonperformance by any other party or parties to an agreement; or (v) for the obligations of another Person through any agreement to purchase, repurchase or otherwise acquire such obligation or any Property constituting security therefor, to provide funds for the payment or discharge of such obligation or to maintain the solvency, financial condition or any balance sheet item or level of income of another Person. The amount of any Contingent Obligation shall be equal to the amount of the obligation so guaranteed or otherwise supported or, if not a fixed and determined amount, the maximum amount so guaranteed or supported.

“Contractual Obligations” means, as to any Person, any provision of any security issued by such Person or of any agreement, undertaking, contract, indenture, mortgage, deed of trust or other instrument, document or agreement to which such Person is a party or by which it or any of its Property is bound.

“Controlled Group” means the Borrower and all Persons (whether or not incorporated) under common control or treated as a single employer with the Borrower pursuant to Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.

“Controlled Investment Affiliates” means, with respect to Sponsor, any fund or investment vehicle that (i) is organized by Sponsor for the purpose of making equity investments in one or more companies and is controlled by Sponsor or (ii) has the same principal fund advisor as the Sponsor. For purposes of this definition “control” means the power to direct or cause the direction of management and policies of a Person, whether by contract or otherwise.

 

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“Conversion Date” means any date on which the Borrower converts a Base Rate Loan to a LIBOR Rate Loan or a LIBOR Rate Loan to a Base Rate Loan.

“Default” means any event or circumstance which, with the giving of notice, the lapse of time, or both, would (if not cured or otherwise remedied during such time) constitute an Event of Default.

“Disposition” means (a) the sale, lease, conveyance or other disposition of Property, other than sales or other dispositions expressly permitted under subsection 5.2(a), and (b) the sale or transfer by the Borrower or any Subsidiary of the Borrower of any equity securities issued by any Subsidiary of the Borrower and held by such transferor Person.

“Dollars”, “dollars” and “$” each mean lawful money of the United States of America.

“Domestic Subsidiary” means a Subsidiary incorporated, organized or otherwise formed under the laws of any state of the United States of America or the District of Columbia.

“ECF Percentage” means (a) if the Leverage Ratio, determined as of the last day of a fiscal year, is equal to or greater than 3.0 to 1.0, seventy five percent (75%) or (b) if such Leverage Ratio, as so determined, is less than 3.0 to 1.0, fifty percent (50%).

“Eligible Assignee” means any of: (a) a commercial bank organized under the laws of the United States, or any state thereof; (b) a commercial bank organized under the laws of any other country; (c) a finance company, insurance company or other financial institution or fund which is engaged in making, purchasing or otherwise investing in commercial loans for its own account in the ordinary course of its business; and (d) a Related Fund. In connection with an assignment of the Swing Line Commitment and all Swing Line Loans made thereunder, an “Eligible Assignee” shall be further required to be an existing Lender at such time of assignment or an Affiliate or Related Fund of an existing Lender at such time of assignment, or such assignee shall be simultaneously purchasing all or any portion of the Swing Line Lender’s Revolving Loan Commitment.

“Employment Agreements” means those certain Employment Agreements dated as of the Original Closing Date by and between the Borrower and each of John Sliter and Daniel K. Sokolowski, as amended, restated, supplemented or otherwise modified to the extent permitted hereunder.

“Environmental Claims” means all claims, however asserted, by any Governmental Authority or other Person alleging potential liability or responsibility for violation of any Environmental Law, or for injury to the environment or threat to public health, personal injury (including sickness, disease or death), property damage, natural resources damage, or otherwise alleging liability or responsibility for damages (punitive or otherwise), cleanup, removal, remedial or response costs, restitution, civil or criminal penalties, injunctive relief, or other type of relief, resulting from or based upon the presence, placement, discharge, emission or release (including intentional and unintentional, negligent and non-negligent, sudden or non-sudden, accidental or non-accidental, placement, spills, leaks, discharges, emissions or releases) of any Hazardous Material at, in, or from Property, whether or not owned by the Borrower.

 

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“Environmental Laws” means all federal, state or local laws, statutes, common law duties, rules, regulations, ordinances and codes, together with all administrative orders, directed duties, licenses, authorizations and permits of, and agreements with, any Governmental Authorities, in each case relating to environmental, health, safety and land use matters; including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Clean Air Act, the Federal Water Pollution Control Act of 1972, the Solid Waste Disposal Act, the Federal Resource Conservation and Recovery Act, the Toxic Substances Control Act, the Emergency Planning and Community Right-to-Know Act.

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

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or 414(c) or 414(m) or 414(o) of the Code or Section 4001 of ERISA.

“ERISA Event” means (a) a Reportable Event with respect to a Qualified Plan or a Multiemployer Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Qualified Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA); (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan; (d) the filing of a notice of intent to terminate, the treatment of a plan amendment as a termination under Section 4041 or 4041A of ERISA or the commencement of proceedings by the PBGC to terminate a Qualified Plan or Multiemployer Plan subject to Title IV of ERISA; (e) a failure by the Borrower or any member of the Controlled Group to make required contributions to a Qualified Plan or Multiemployer Plan; (f) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Qualified Plan or Multiemployer Plan; (g) the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate; (h) an application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code with respect to any Plan; (i) a non-exempt prohibited transaction occurs with respect to any Plan for which the Borrower or any Subsidiary of the Borrower may be directly or indirectly liable; or (j) a violation of the applicable requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under Section 401 (a) of the Code by any fiduciary or disqualified person with respect to any Plan for which the Borrower or any member of the Controlled Group may be directly or indirectly liable.

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

“Federal Funds Rate” means, for any day, the rate per annum (rounded upward to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers on

 

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such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to the Agent on such day on such transactions as determined by the Agent in a commercially reasonable manner.

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System, or any entity succeeding to any of its principal functions.

“Foreign Subsidiary” means a Subsidiary that is not a Domestic Subsidiary.

“GAAP” means generally accepted accounting principles set forth from time to time 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 agencies with similar functions of comparable stature and authority within the accounting profession), which are applicable to the circumstances as of the date of determination.

“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.

“Guaranty” means, collectively, (i) that certain Guaranty, dated as of the Original Closing Date made by Holdings, Panther Sub and any other Person who becomes a party to such agreement by execution of a joinder thereto in favor of the Agent, for the benefit of the Agent and Lenders, as reaffirmed on the Restatement Effective Date pursuant to the Master Reaffirmation, and (ii) any other guaranty made by any Subsidiary of Holdings or the Borrower, or any other Person, in favor of the Agent, on behalf of the Lenders in respect of the Obligations.

“Hazardous Materials” means all those substances which are regulated by, or which may form the basis of liability under, any Environmental Law.

“Holdings” means PTHR Holdings, Inc., a Delaware corporation.

“Holdings Pledge Agreement” means that certain Pledge Agreement, dated as of the Original Closing Date made by Holdings in favor of the Agent, for the benefit of Agent and the Lenders, pursuant to which Holdings pledged one hundred percent (100%) of the issued and outstanding capital stock of the Borrower, as reaffirmed on the Restatement Effective Date pursuant to the Master Reaffirmation.

“Indebtedness” of any Person means, without duplication: (a) all indebtedness for borrowed money; (b) all obligations issued, undertaken or assumed as the deferred purchase price of Property or services (other than trade payables entered into in the Ordinary Course of Business); (c) the face amount of all letters of credit issued for the account of such Person and without duplication, all drafts drawn thereunder and all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments issued by such

 

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Person; (d) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of Property, assets or businesses; (e) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to Property acquired by the Person (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such Property); (f) all Capital Lease Obligations; (g) the principal balance outstanding under any synthetic lease, off balance sheet loan or similar off balance sheet financing products; (h) all indebtedness referred to in clauses (a) through (g) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in Property (including accounts and contracts rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness; and (i) all Contingent Obligations described in clause (i) of the definition thereof in respect of indebtedness or obligations of others of the kinds referred to in clauses (a) through (h) above.

“Insolvency Proceeding” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors; in each case in (a) and (b) above, undertaken under U.S. federal, state or foreign law, including the Bankruptcy Code.

“Interest Payment Date” means, (a) with respect to any LIBOR Rate Loan (other than a LIBOR Rate Loan having an Interest Period of six (6) months) the last day of each Interest Period applicable to such Loan, (b) with respect to any LIBOR Rate Loan having an Interest Period of six (6) months, the last day of each three (3) month interval and, without duplication, the last day of such Interest Period, and (c) with respect to Base Rate Loans, the first day of each calendar month.

“Interest Period” means, with respect to any LIBOR Rate Loan, the period commencing on the Business Day such Loan is disbursed or continued or on the Conversion Date on which such Base Rate Loan is converted to the LIBOR Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its Notice of Borrowing or Notice of Conversion/Continuation; provided that:

(a) if any Interest Period pertaining to a LIBOR Rate Loan would otherwise end on a day which is not a Business Day, that Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day;

(b) any Interest Period pertaining to a LIBOR Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period;

 

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(c) no Interest Period for any Term Loan shall extend beyond the last scheduled payment date therefor and no Interest Period for any Revolving Loan shall extend beyond the Revolving Termination Date; and

(d) no Interest Period applicable to a Term Loan or portion thereof shall extend beyond any date upon which is due any scheduled principal payment in respect of the Term Loan unless the aggregate principal amount of the Term Loan represented by Base Rate Loans or by LIBOR Rate Loans having Interest Periods that will expire on or before such date is equal to or in excess of the amount of such principal payment.

“Inventory” means all of the “inventory” (as such term is defined in the UCC) of the Borrower and its Subsidiaries, including, but not limited to, all merchandise, raw materials, parts, supplies, work-in-process and finished goods intended for sale, together with all the containers, packing, packaging, shipping and similar materials related thereto, and including such inventory as is temporarily out of the Borrower’s or such Subsidiaries’ custody or possession, including inventory on the premises of others and items in transit.

“Joint Venture” means any partnership, association, company, community of interest, or joint venture entered into by the Borrower or one of its Subsidiaries with an unrelated, non-Affiliated third party on an arm’s length basis to engage in the joint undertaking of a business, which such business shall be in the same line of business as the Borrower or any of its Subsidiaries, or any business reasonably related thereto.

“Lending Office” means, with respect to any Lender, the office or offices of such Lender specified as its “Lending Office” opposite its name on the applicable signature page hereto, or such other office or offices of such Lender as it may from time to time notify the Borrower and the Agent.

“Letter of Credit Participation Liability” means, as to each Lender Letter of Credit and each Letter of Credit Participation Agreement, all reimbursement obligations and all other liabilities of Borrower or any of its Subsidiaries to Agent and the Lenders in connection with the Lender Letter of Credit or to the obligee with respect to the transaction for which the Letter of Credit Participation Agreement was issued, whether contingent or otherwise, including with respect to any letter of credit: (a) the amount available to be drawn or which may become available to be drawn; (b) without duplication, all amounts which have been paid or made available by the issuing bank or by the Agent (or Affiliate of the Agent) under such Lender Letters of Credit or Letter of Credit Participation Agreement, in each instance, to the extent not reimbursed; and (c) all unpaid interest, fees and expenses.

“LIBOR” means, for each Interest Period, the offered rate per annum for deposits of Dollars for the applicable Interest Period that appears on Telerate Page 3750 as of 11:00 A.M. (London, England time) two (2) Business Days prior to the first day in such Interest Period. If no such offered rate exists, such rate will be the rate of interest per annum, as determined by the Agent (rounded upwards, if necessary, to the nearest 1/100 th of 1%) at which deposits of Dollars in immediately available funds are offered at 11:00 A.M. (London, England time) two (2) Business Days prior to the first day in such Interest Period by major financial institutions

 

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reasonably satisfactory to the Agent in the London interbank market for such Interest Period for the applicable principal amount on such date of determination.

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

“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge or deposit arrangement, encumbrance, lien (statutory or otherwise) or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including those created by, arising under or evidenced by any conditional sale or other title retention agreement, the interest of a lessor under a Capital Lease, any financing lease having substantially the same economic effect as any of the foregoing, or the filing of any financing statement naming the owner of the asset to which such lien relates as debtor, under the UCC or any comparable law) and any contingent or other agreement to provide any of the foregoing, but not including the interest of a lessor under a lease which is not a Capital Lease.

“Loan” means an extension of credit by a Lender to the Borrower pursuant to Article I hereof, and may be a Base Rate Loan or a LIBOR Rate Loan.

“Loan Documents” means this Agreement, the Notes, the Subordination Agreement, the Fee Letter, the Collateral Documents and all documents delivered to the Agent and/or any Lender in connection with any of the foregoing.

“Management Agreement” means that certain Management Advisory Agreement dated as of the Original Closing Date by and among Holdings, Borrower and Fenway Partners, Inc.

“Margin Stock” means “margin stock” as such term is defined in Regulation T, U or X of the Federal Reserve Board.

“Master Reaffirmation” means that certain Master Reaffirmation Agreement dated as of the date hereof by and among Holdings, the Borrower and each Subsidiary of the Borrower in favor of the Agent, for the benefit of the Agent and the Lenders.

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties or condition (financial or otherwise) of Holdings, the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the ability of Holdings, the Borrower, any of its Subsidiaries, or any other Person (other than the Agent or Lenders) to perform in any material respect its obligations under any Loan Document; or (c) a material adverse effect upon (i) the legality, validity, binding effect or enforceability of any Loan Document, or (ii) the perfection or priority of any Lien granted to the Lenders or to the Agent for the benefit of the Lenders under any of the Collateral Documents.

“Material Contracts” means any contract or other agreement (other than the Loan Documents and the Subordinated Indebtedness Documents), to which any of Holdings, Borrower or its Subsidiaries is a party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto would have a Material Adverse Effect.

 

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“Mortgage” means any deed of trust, leasehold deed of trust, mortgage, leasehold mortgage, deed to secure debt, leasehold deed to secure debt or other document creating a Lien on real Property or any interest in real Property.

“Multiemployer Plan” means a “multiemployer plan” (within the meaning of Section 4001(a)(3) of ERISA) and to which Borrower or any member of the Controlled Group may have any liability.

“Net Issuance Proceeds” means, in respect of any issuance of debt or equity, cash proceeds and non-cash proceeds received or receivable in connection therewith, net of underwriting discounts and actual, reasonable, out-of-pocket costs and expenses (including reasonable attorneys fees) paid or incurred in connection therewith.

“Net Proceeds” means proceeds in cash, checks or other cash equivalent financial instruments (including Cash Equivalents) as and when received by the Person making a Disposition and insurance proceeds received on account of an Event of Loss, net of: (a) in the event of a Disposition (i) transaction costs relating to such Disposition (including reasonable attorneys fees) excluding amounts payable to the Borrower, (ii) sale, use or other transaction taxes paid or payable as a result thereof, (iii) income taxes paid or payable as a result thereof, (iv) amounts required to be applied to repay principal, interest and prepayment premiums and penalties on Indebtedness secured by a Lien on the asset which is the subject of such Disposition, and (v) reasonable amounts required to repair or prepare any Property that is the subject of such Disposition for sale, and (b) in the event of an Event of Loss (i) all money actually applied to repair or reconstruct the damaged Property or Property affected by the condemnation or taking, (ii) all of the costs and expenses (including reasonable attorneys fees) reasonably incurred in connection with the collection of such proceeds, award or other payments, and (iii) any amounts retained by or paid to parties having superior rights to such proceeds, awards or other payments.

“Note” means any Revolving Note or Term Note and “Notes” means all such Notes.

“Notice of Borrowing” means a notice given by the Borrower to the Agent pursuant to Section 1.5, in substantially the form of Exhibit 11.1(b) hereto.

“Notice of Continuation/Conversion” means a notice given by the Borrower to the Agent pursuant to Section 1.6, in substantially the form of Exhibit 11.1(c) hereto.

“Obligations” means all Loans, and other Indebtedness, advances, debts, liabilities, obligations, covenants and duties owing by the Borrower to any Lender, the Agent, or any other Person required to be indemnified, that arises under any Loan Document or any Rate Contract between the Borrower and a Lender (or an Affiliate of a Lender) required hereunder, whether or not for the payment of money, whether arising by reason of an extension of credit, loan, guaranty, indemnification or in any other manner, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising and however acquired.

“Ordinary Course of Business” means, in respect of any transaction involving Holdings, the Borrower or any Subsidiary of the Borrower, the ordinary course of such Person’s business, as conducted by any such Person in accordance with past practice and undertaken by such Person

 

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in good faith and not for purposes of evading any covenant or restriction in any Loan Document or Subordinated Indebtedness Document.

“Organization Documents” means, (a) for any corporation, the certificate or articles of incorporation, the bylaws, any certificate of determination or instrument relating to the rights of preferred shareholders of such corporation, any shareholder rights agreement, and all applicable resolutions of the board of directors (or any committee thereof) of such corporation, (b) for any partnership, the partnership agreement and, if applicable, certificate of limited partnership or (c) for any limited liability company, the operating agreement and articles or certificate of formation.

“Original Closing Date” means June 10, 2005.

“Panther” means Panther II Transportation, Inc., an Ohio corporation and predecessor of the Borrower.

“Panther Purchase Agreement” means that certain Contribution and Share Purchase Agreement dated as of May 22, 2005 by and among Holdings, Panther and the Shareholders, as amended, restated, supplemented or otherwise modified to the extent permitted hereunder.

“Panther Sub” means Panther II, Inc., an Ohio corporation f/k/a Sokolowski, Inc.

“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, P.L. 107-56, as amended.

“PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any of its principal functions under ERISA.

“Permitted Acquisition” means any Acquisition by (i) the Borrower or any Wholly-Owned Subsidiary of the Borrower that is a Domestic Subsidiary of substantially all of the assets of a Person, which assets are located in the United States or (ii) the Borrower or any Wholly-Owned Subsidiary of the Borrower that is a Domestic Subsidiary of one hundred percent (100%) of the equity interests of a Person incorporated under the laws of any State in the United States or the District of Columbia (such assets, in the case of an asset acquisition, or entity, in the case of an acquisition of equity securities, are referred to herein as the “Acquired Entity”), to the extent that each of the following conditions shall have been satisfied:

(a) to the extent the Acquisition will be financed in whole or in part with the proceeds of any Loan, the conditions set forth in Section 2.2 shall have been satisfied;

(b) the Borrower shall have furnished to the Agent and Lenders at least ten (10) Business Days prior to the consummation of such Acquisition (i) an executed term sheet and/or commitment letter (setting forth in reasonable detail the terms and conditions of such Acquisition) and, at the request of the Agent, such other information and documents that the Agent may request, including, without limitation, executed counterparts of the respective agreements, documents or instruments pursuant to which such Acquisition is to be consummated (including, without limitation, any related management, non-compete, employment, option or

 

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other material agreements), any schedules to such agreements, documents or instruments and all other material ancillary agreements, instruments and documents to be executed or delivered in connection therewith, (ii) pro forma financial statements of Borrower and its Subsidiaries after giving effect to the consummation of such Acquisition, (iii) a certificate of a Responsible Officer of the Borrower demonstrating on a pro forma basis compliance with the covenants set forth in Section 6.2 hereof after giving effect to the consummation of such Acquisition (and the incurrence of any Indebtedness (including, without limitation, any Subordinated Indebtedness) in connection therewith) and (iv) copies of such other agreements, instruments and other documents (including, without limitation, the Loan Documents required by Section 4.12) as the Agent reasonably shall request;

(c) the Borrower and its Subsidiaries (including any new Subsidiary, which new Subsidiary shall be a Wholly-Owned Subsidiary of the Borrower that is a Domestic Subsidiary or any other Wholly-Owned Subsidiary of a Borrower that is a Domestic Subsidiary) shall execute and deliver the agreements, instruments and other documents required by Section 4.12 and the Agent shall have received, for the benefit of the Agent and Lenders, a collateral assignment of the seller’s representations, warranties and indemnities to the Borrower or any of its Subsidiaries under the acquisition documents;

(d) such Acquisition shall not be hostile and shall have been approved by the board of directors (or other similar body) and/or the stockholders or other equityholders of the Acquired Entity;

(e) no Default or Event of Default shall then exist or would exist after giving effect thereto;

(f) after giving effect to such Acquisition, Availability shall be not less than $3,000,000;

(g) no more than $1,000,000 in the aggregate principal amount of Revolving Loans may be used during any calendar year and no more than $3,000,000 in the aggregate principal amount of Revolving Loans may be used during the term of this Agreement to consummate all such Acquisitions;

(h) the total consideration paid or payable (including, without limitation, any Seller Paper) for (i) any individual Acquisition shall not exceed $1,000,000 and (ii) all Acquisitions consummated during the term of this Agreement shall not exceed $3,000,000 in the aggregate for all such Acquisitions, less the amount of any Investments made under subsection 5.4(e);

(i) the Acquired Entity has EBITDA, the calculation and determination of which shall be reasonably acceptable to the Agent, and which EBITDA shall be subject to proforma adjustments acceptable to the Agent, for the most recent four (4) quarters prior to the acquisition date for which financial statements are available, greater than zero; and

(j) such Acquisition is permitted, and solely to the extent permitted, under the Subordinated Indebtedness Documents.

 

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“Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or Governmental Authority.

“Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) which the Borrower or any member of the Controlled Group sponsors or maintains or to which the Borrower or any member of the Controlled Group is reasonably expected to have liability (whether contingent or otherwise).

“Pledge Agreements” means (i) the Holdings Pledge Agreement, (ii) the Borrower Pledge Agreement and (iii) any other pledge agreement entered into by any Subsidiary of Holdings or the Borrower, the Borrower, or any other Person, and the Agent, on behalf of the Lenders in respect of the Obligations.

“Pledged Collateral” has the meaning specified in the Pledge Agreements and shall include any other Collateral required to be delivered to Agent pursuant to the terms of any Collateral Document.

“Property” means any interest in any kind of property or asset, whether real, personal or mixed, and whether tangible or intangible.

“Qualified Plan” means a pension plan (as defined in Section 3(2) of ERISA) intended to be tax-qualified under Section 401 (a) of the Code and which any member of the Controlled Group sponsors, maintains, or to which it makes, is making or is obligated to make contributions, or in the case of a multiple employer plan (as described in Section 4064(a) of ERISA) has made contributions at any time during the immediately preceding period covering at least five (5) plan years, but excluding any Multiemployer Plan.

“Rate Contracts” means swap agreements (as such term is defined in Section 101 of the Bankruptcy Code) and any other agreements or arrangements designed to provide protection against fluctuations in interest or currency exchange rates.

“Related Agreements” means the Management Agreement, the Subordinated Indebtedness Documents, the Panther Purchase Agreement, the Employment Agreements, the Sponsor Guaranty, the Repurchase Agreement and the Services Agreement.

“Related Fund” means (a) any fund, trust or similar entity that invests in commercial loans in the ordinary course of its business and is advised or managed by (i) a Lender, (ii) an Affiliate of a Lender, (iii) the same investment advisor that manages a Lender or (iv) an Affiliate of an investment advisor that manages a Lender or (b) any finance company, insurance company or other financial institution which temporarily warehouses loans for any Lender or any Person described in clause (a) above.

“Related Transactions” means the transactions contemplated by the Related Agreements and includes, without limitation, the funding of the Subordinated Indebtedness evidenced by the Subordinated Indebtedness Documents and the consummation of the Restatement Effective Date Transactions.

 

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“Reportable Event” means, as to any Plan, (a) any of the events set forth in Section 4043(b) of ERISA or the regulations thereunder, other than any such event for which the thirty (30) day notice requirement under ERISA has been waived in regulations issued by the PBGC, (b) a withdrawal from a Plan described in Section 4063 of ERISA, or (c) a cessation of operations described in Section 4062(e) of ERISA.

“Required Lenders” means at any time (a) Lenders then having greater than fifty percent (50%) of the sum of the Aggregate Revolving Loan Commitment then in effect plus the aggregate unpaid principal balance of the Term Loan then outstanding, or (b) if the Revolving Loan Commitments have been terminated, Lenders then having greater than fifty percent (50%) of the sum of the aggregate unpaid principal amount of Loans then outstanding plus outstanding Letter of Credit Participation Liability.

“Required Revolving Lenders” means at any time (a) Lenders then having greater than fifty percent (50%) of the Aggregate Revolving Loan Commitment then in effect or (b) if the Revolving Loan Commitments have been terminated, Lenders then having greater than fifty percent (50%) of the sum of the aggregate unpaid principal amount of the Revolving Loan then outstanding plus outstanding Letter of Credit Participation Liability.

“Requirement of Law” means, as to any Person, any law (statutory or common), ordinance, treaty, rule, regulation, order, policy, other legal requirement or determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon Person or any of its Property or to which such Person or any of its Property is subject.

“Responsible Officer” means the chief executive officer, the president or any vice president of the Borrower, or any other officer having substantially the same authority and responsibility; or, with respect to compliance with financial covenants or delivery of financial information, the chief financial officer, the treasurer or the controller of the Borrower, or any other officer having substantially the same authority and responsibility.

“Restatement Effective Date” means the date on which all conditions precedent set forth in Section 2.1 are satisfied or waived by the Agent and all Lenders.

“Restatement Effective Date Transactions” means a dividend made by the Borrower to Holdings on the Restatement Effective Date in an aggregate amount equal to $47,179,385.43, the proceeds of which dividend shall be immediately used by Holdings to pay a portion of the repurchase price relating to the repurchase of an aggregate of 44,015.64 shares of its Preferred Stock, par value $0.01 per share, on the Restatement Effective Date from the Sponsor and certain other holders pursuant to that certain Repurchase Agreement dated as of the date hereof by and among Holdings, the Sponsor and such other holders (the “Repurchase Agreement”).

“Revolving Note” means an amended and restated promissory note of the Borrower payable to the order of a Lender in substantially the form of Exhibit 11.1(d) hereto, evidencing Indebtedness of the Borrower under the Revolving Loan Commitment of such Lender.

“Revolving Termination Date” means the earlier to occur of: (a) December 31, 2011; and (b) the date on which the Aggregate Revolving Loan Commitment shall terminate in accordance with the provisions of this Agreement.

 

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“Security Agreements” means, collectively, (i) that certain Security Agreement dated as of the Original Closing Date made by Holdings, the Borrower, Panther Sub and any other Person who becomes a party to such agreement following the date hereof by execution of a joinder thereto, in favor of the Agent for the benefit of the Lenders, as reaffirmed on the Restatement Effective Date pursuant to the Master Reaffirmation, and (ii) any other security agreement entered into by any Subsidiary of Holdings or the Borrower, the Borrower, or any other Person, and the Agent, on behalf of the Lenders, in respect of the Obligations.

“Services Agreement” means that certain Services Agreement dated as of the Original Closing Date by and between the Borrower and Fusion Software, Inc., as amended, restated, supplemented or otherwise modified to the extent permitted hereunder.

“Shareholders” means each of Ellen A. Amato, as trustee of the Amato FLIT Trust U/A/D 12/31/03, Craig T. Amato, individually and as trustee of the 1999 Craig T. Amato Grantor Retained Annuity Trust and Daniel K. Sokolowski, individually and as trustee of the Daniel K. Sokolowski Revocable Trust U/A/D 2/16/98.

“Solvent” means, as to any Person at any time, that (a) the fair value of the Property of such Person is greater than the amount of such Person’s liabilities (including disputed, contingent and unliquidated liabilities) as such value is established and liabilities evaluated for purposes of Section 101(32)(A) of the Bankruptcy Code and, in the alternative, for purposes of the Uniform Fraudulent Transfer Act; (b) the present fair saleable value of the Property of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured; (c) such Person is able to realize upon its Property and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of business; (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature; and (e) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute unreasonably small capital.

“Sponsor” means Fenway Partners Capital Fund II, L.P.

“Sponsor Guaranty” means that certain Limited Guaranty dated as of May 22, 2005 by the Sponsor in favor of the Shareholders, as amended, restated, supplemented or otherwise modified to the extent permitted hereunder.

“Subordinated Indebtedness” means the Indebtedness of Borrower or any of its Subsidiaries which is subordinated in right of payment to the Obligations and shall include, without limitation, the Indebtedness evidenced by the Subordinated Indebtedness Documents.

“Subordinated Indebtedness Documents” means the Subordinated Loan Agreement, the Subordinated Notes, any guaranties of the Indebtedness under the Subordinated Loan Agreement and all other agreements, documents and instruments executed and delivered in connection therewith.

“Subordinated Lenders” means, York Street Mezzanine Partners, L.P., a Delaware limited partnership, CUNA Mutual Insurance Society, CUMIS Insurance Society Inc., Members

 

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Life Insurance Company, CUNA Mutual Life Insurance Company, their successors and assigns and each other holder of Subordinated Notes from time to time.

“Subordinated Loan Agreement” means the Note Purchase Agreement dated as of the Restatement Effective Date among the Borrower and the Subordinated Lenders, as the same may be amended, supplemented, restated or otherwise modified from time to time as permitted by the Subordination Agreement and this Agreement.

“Subordinated Notes” means the 14% Senior Subordinated Notes dated as of the Restatement Effective Date, issued by the Borrower to the Subordinated Lenders in the original aggregate principal amount of $25,100,000, as the same may be amended, supplemented, restated or otherwise modified from time to time as permitted by the Subordination Agreement and this Agreement, including any notes issued in exchange or substitution thereafter.

“Subordination Agreement” means that certain Subordination Agreement of even date herewith among Holdings, Borrower, Agent and Subordinated Lenders, as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms thereof.

“Subsidiary” of a Person means any corporation, association, limited liability company, partnership, joint venture or other business entity of which more than fifty percent (50%) of the voting stock or other equity interests (in the case of Persons other than corporations), is owned or controlled directly or indirectly by the Person, or one or more of the Subsidiaries of the Person, or a combination thereof.

“Swing Line Lender” means the Lender holding the Swing Line Commitment, including its successors and assigns in such capacity.

“Swing Line Note” means a promissory note of the Borrower payable to the order of the Swing Line Lender, in substantially the form of Exhibit 11.1(f) hereto, evidencing the Indebtedness of the Borrower to the Swing Line Lender under the Swing Line Commitment.

“Swing Line Participation Liability” means, without duplication, all funding and participation obligations of the Lenders with Revolving Loan Commitments owing to Swing Line Lender pursuant to subsection 1.8(g) of this Agreement (including, without duplication, outstanding amounts funded to Swing Line Lender in respect of participation obligations under subsection 1.8(g) of this Agreement) in connection with the principal balance of Swing Line Loans, in each case to the extent not funded with proceeds of a Revolving Loan.

“Term Note” means an amended and restated promissory note of the Borrower payable to the order of a Lender, in substantially the form of Exhibit 11.1(e) hereto, evidencing the Indebtedness of the Borrower to such Lender resulting from the Term Loan made to the Borrower by such Lender.

“UCC” means the Uniform Commercial Code as in effect from time to time in the State of Illinois.

 

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“Unfunded Pension Liabilities” means the excess of a Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Plan’s assets, determined in accordance with the assumptions used by the Plan’s actuaries for funding the Plan pursuant to section 412 for the applicable plan year.

“United States” and “U.S.” each means the United States of America.

“Wholly-Owned Subsidiary” means any Subsidiary in which (other than directors’ qualifying shares required by law) one hundred percent (100%) of the equity securities, at the time as of which any determination is being made, is owned, beneficially and of record, by the Borrower, or by one or more of the other Wholly-Owned Subsidiaries, or both.

“Withdrawal Liabilities” means, as of any determination date, the aggregate amount of the liabilities, if any, pursuant to Section 4201 of ERISA if the Controlled Group made a complete withdrawal from all Multiemployer Plans and any increase in contributions pursuant to Section 4243 of ERISA.

11.2 Other Interpretive Provisions.

(a) Defined Terms. Unless otherwise specified herein or therein, all terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto. The meanings of defined terms shall be equally applicable to the singular and plural forms of the defined terms. Terms (including uncapitalized terms) not otherwise defined herein and that are defined in the UCC shall have the meanings therein described.

(b) The Agreement. The words “hereof, “herein”, “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; and subsection, section, schedule and exhibit references are to this Agreement unless otherwise specified. All references herein to schedules shall mean such schedules as updated from time to time by written notice from the Borrower to the Agent.

(c) Certain Common Terms. The term “documents” includes any and all instruments, documents, agreements, certificates, indentures, notices and other writings, however evidenced. The term “including” is not limiting and means “including without limitation.”

(d) Performance; Time. Whenever any performance obligation hereunder (other than a payment obligation) shall be stated to be due or required to be satisfied on a day other than a Business Day, such performance shall be made or satisfied on the next succeeding Business Day. 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.” If any provision of this Agreement refers to any action taken or to be taken by any Person, or which such Person is prohibited from taking, such provision shall be interpreted to encompass any and all means, direct or indirect, of taking, or not taking, such action.

(e) Contracts. Unless otherwise expressly provided herein, references to agreements and other contractual instruments, including this Agreement and the other Loan Documents, shall

 

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be deemed to include all subsequent amendments, thereto, restatements and substitutions thereof and other modifications and supplements thereto which are in effect from time to time, but only to the extent such amendments and other modifications are not prohibited by the terms of any Loan Document.

(f) Laws. References to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting the statute or regulation.

11.3 Accounting Principles.

(a) Unless the context otherwise clearly requires, all accounting terms not expressly defined herein shall be construed, and all financial computations required under this Agreement shall be made, in accordance with GAAP, consistently applied.

(b) References herein to “fiscal year”, “fiscal quarter” and “fiscal month” refer to such fiscal periods of the Borrower.

(c) If any change in GAAP results in a change in the calculation of the financial covenants or interpretation of related provisions of this Agreement or any other Loan Document, then the Borrower, the Agent and the Lenders agree to amend such provisions of this Agreement so as to equitably reflect such changes in GAAP with the desired result that the criteria for evaluating the Borrower’s financial condition shall be the same after such change in GAAP as if such change had not been made, provided that, notwithstanding any other provision of this Agreement, the Required Lenders’ agreement to any amendment of such provisions shall be sufficient to bind all Lenders; and, provided further, until such time as the financial covenants and the related provisions of this Agreement have been amended in accordance with the terms of this subsection 11.3(c), the calculations of financial covenants and the interpretation of any related provisions shall be calculated and interpreted in accordance with GAAP as in effect immediately prior to such change in GAAP.

[Balance of page intentionally left blank; signature page follows.]

 

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

 

PANTHER II TRANSPORTATION, INC.

an Ohio corporation

By:  

/s/ John J. Sliter

Name:   John J. Sliter
Title:  

 

Borrower’s FEIN:  

 

Address for notices:

c/o Fenway Partners, Inc.

152 W. 57th Street

New York, New York 10029

Attn: Timothy P. Mayhew and Joseph Domonkos

Facsimile: (212) 581-1205

Address for Wire Transfers:

M&I Bank

Milwaukee,Wisconsin

ABA # xxxxxxxxx

Acct. # xxxxxxxxxx

Reference – Panther II Transportation, Inc.

Credit Agreement


 

 

 

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

 

ANTARES CAPITAL CORPORATION,

as Agent, as the Swing Line Lender and as a Lender

By:

 

/s/ Michael P. King

Name:

  Michael P. King

Title:

  Director
Address for notices:

311 South Wacker Drive, Suite 4400

Chicago, IL 60606

Attn: Portfolio Manager – Panther

Facsimile: (312) 697-3998

Telephone: (312) 697-3999

Address for payments:

 

Antares Capital Corporation

Account # xxxx-xxxx

Citibank N.A., NY

ABA # xxxxxxxxx

Reference: Panther

Please advise Jim Luchansky at

(312) 697-3991 upon receipt

Credit Agreement


 

 

 

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

 

M&I MARSHALL & ILSLEY BANK,

as a Lender

By:

 

/s/ Stephen F. Geimer

Name:

  Stephen F. Geimer

Title:

  Senior Vice President

M&I MARSHALL & ILSLEY BANK,

as a Lender

By:  

/s/ Stephen E. Kalmer

Name:

  Stephen E. Kalmer

Title:

  Vice President

Address for notices:

M&I Marshall & Ilsley Bank

770N. Water Street

Milwaukee, WI 53202-2035

Attn: Stephen E. Kalmer

Facsimile: (414) 765-7670

Address for payments:

M&I Marshall & Ilsley Bank

Milwaukee, WI

ABA #: xxxxxxxxx

Account #: xxxxxxxx

Beneficiary: Panther II Transportation, Inc.

Credit Agreement


 

 

 

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

 

LASALLE BANK NATIONAL ASSOCIATION,

as a Lender

By:

 

/s/ Anna C. Faford

Name:

  Anna C. Faford

Title:

  Corporate Banking Officer
Address for notices:
Credit:

LaSalle Bank National Association

135 South LaSalle Street

Suite 842

Chicago, Illinois 60603

Attn: David J. Thomas

Facsimile: (312) 904-2903

Admin./Operations

LaSalle Bank National Association

135 South LaSalle Street

Suite 1425

Chicago, Illinois 60603

Attn: Angela Larkin

Facsimile: (312) 904-6373

Address for payments:

Bank: LaSalle National Bank

ABA Number: xxxxxxxxx

Account Number: xxxxxxx-xxxx

Account Name: Commercial Loan Wires

Ref: Panther II Transportation Inc.

Further credit to: Parti. - Bought

Credit Agreement


 

 

 

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

 

ORIX FINANCE CORP., as a Lender

By:

 

/s/ Kenneth Moore

Name:

  Kenneth Moore

Title:

  Managing Director
Address for notices:

ORIX Finance Corp.

1717 Main Street, Suite 900

Dallas, TX 75201

Attention: Stephen Bassett

Address for payments:

Mellon Bank, N.A.

Pittsburgh, PA

ABA Acct.# : xxxxxxxxx

Name on Acct.: ORIX Financial Services, Inc.

Further Credit to: Panther II Transportation, Inc.

Acct. Name./No.: xxx-xxxx

Credit Agreement


 

 

 

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

 

NAVIGATOR CDO 2005, LTD., as a Lender

By:

  Antares Asset Management Inc., as Collateral Manager

By:

 

/s/ David Schmuck

Name:

  David Schmuck

Title:

  Treasurer
Address for notices:

LaSalle Bank N.A., as custodian

135 South LaSalle Street, Suite 1625

Chicago, IL 60603

Attention: CDO Trust Services – Joe Iannone

Fax: 312.873.3830

Address for payments:

Bank: LaSalle Bank N.A.

ABA# : xxxxxxxxx

Account # : xxxxxxx

Account Name: Navigator Collection Account

Reference: Loan Name / Description Principal or Interest

Attention: Joe Iannone / Navigator CDO 2005, Ltd.

Credit Agreement


 

 

 

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

 

NAVIGATOR CDO 2003, LTD, as a Lender

By:

  Antares Asset Management Inc., as Collateral Manager

By:

 

/s/ David Schmuck

Name:   David Schmuck
Title:   Treasurer
Address for notices:

LaSalle Bank N.A., as custodian

135 South LaSalle Street, Suite 1625

Chicago, IL 60603

Attention: CDO Trust Services – Matt Massier

Fax: 312.261.5290

Address for payments:

Bank: LaSalle Bank N.A.

ABA# : xxxxxxxxx

Account # : xxxxxxxxx

Account Name: Navigator Collection Account

Reference: Loan Name / Description Principal or Interest

Attention: Matthew Massier / Navigator

Credit Agreement


 

 

 

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

 

MARINER CDO 2002, LTD., as a Lender

By:

  Antares Asset Management Inc., as Collateral Manager

By:

 

/s/ David Schmuck

Name:

  David Schmuck

Title:

  Treasurer
Address for notices:

Mariner CDO 2002, Ltd.

c/o LaSalle Bank National Association

135 South LaSalle Street, Suite 1625

Chicago, IL 60603

Attention: CDO Trust Services – Mariner 2002-1

Attention: Matt Messier

Fax: 312.261.5290

Address for payments:

Bank: LaSalle Bank N.A.

ABA# : xxxxxxxxx

Account # : xxxxxxxxx

Account Name: Mariner Collection Account

Reference: Loan Name/ Description Principal or

Interest

Attention: Matthew Massier / Mariner CDO 2002

Ltd.

Credit Agreement


 

 

 

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

 

ANTARES FUNDING, L.P., as a Lender

By:

  JP Morgan Chase Bank, N A., As Trustee of the Antares Funding Trust created under the Trust Agreement dated as of November 30, 1999

By:

 

/s/ Leslie Hundley

Name:

  Leslie Hundley

Title:

  AVP
Address for notices:

Leslie Hundley

JPMorgan Chase

600 Travis Street, 48th Floor

Houston, TX 77002

Fax: 713.437.8104

Address for payments:

Bank: JPMorgan Chase Bank

City: Houston, TX 77002

ABA# : xxx-xxx-xxx

Account# : xxxxxxxxx

Account Name: Wire Clearing – ABS #2

For Further Credit: Antares Funding LP /10200760

Attention: Leslie Hundley/ Antares Funding

Reference: Panther II Transportation, Inc.

Credit Agreement


 

 

 

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

 

BABSON CLO LTD. 2005-II, as a Lender

By:

  Babson Capital Management LLC, as Collateral Manager

By:

 

/s/ Adrienne Musgnug

Name:

  Adrienne Musgnug

Title:

  Managing Director
Address for notices:

Robert Lozano

JPMorgan

600 Travis Street, 51st Floor

Houston, TX 77002

Fax: (281) 582-7927

Address for payments:

Bank: JPMorgan Chase Bank

City: Houston, TX

ABA# : xxxxxxxxx

Account: xxxxxxxxx

Attention: Curtis Holden

Account Name: Babson CLO Ltd. 2005-II

Reference: Asset Backed Structured #2 –

PANTHER II TRANSPORTATION

Credit Agreement


 

 

 

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

 

BABSON CLO LTD. 2005-I, as a Lender

By:

  Babson Capital Management LLC, as Collateral Manager

By:

 

/s/ Adrienne Musgnug

Name:

  Adrienne Musgnug

Title:

  Managing Director
Address for notices:

Curtis Holden

JPMorgan

600 Travis Street, 51st Floor

Houston, TX 77002

Fax: (713) 229-4998

Address for payments:

Bank: JPMorgan Chase Bank

City: Houston, TX

ABA# : xxxxxxxxx

Account: xxxxxxxxx

Attention: Curtis Holden

Account Name: BNF Asset Backed Structured #2,

JPMorgan: Chasetower, Houston TX

Reference: FFC Babson CLO 2005-I AC#

10221241.2 – PANTHER II TRANSPORTATION

Credit Agreement


 

 

 

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

 

MASSACHUSETTS MUTUAL

LIFE INSURANCE COMPANY, as a Lender

By:

 

/s/ Adrienne Musgnug

Name:

  Adrienne Musgnug

Title:

  Managing Director
Address for notices:
Joe Li

Babson Capital Management LLC

201 South College Street, Suite 2400

Charlotte, NC 28244

Fax: (413) 226-2987

Address for payments:

Bank: Citibank, N.A.

City: New York, NY

ABA#: xxx xxx xxx

Account: xxxxxxxxx

Account Name: Escrow Administration

Concentrate Account

Reference: MassMutual Life Insurance Company –

PANTHER II TRANSPORTATION

Credit Agreement


 

 

 

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

 

WB LOAN FUNDING 3, LLC, as a Lender

By:

 

/s/ Adrienne Musgnug

Name:

  Adrienne Musgnug

Title:

  Managing Director
Address for notices:

Heathe J. Clark

201 S. College Street

NC0601

Charlotte, NC 28244-0002

Fax: (704) 715-1982

Address for payments:

 

Bank: Wachovia/CIB Group

City: Charlotte, NC

ABA# : xxx-xxx-xxx

Account: xxxxxxxxx

Account Attention: Credit Derivatives

Account Name: WB Loan Funding 3

Reference: PANTHER II TRANSPORTATION

Credit Agreement


 

 

 

Schedule 1.1 (a)

Term Loan Commitments

Term Loan Commitment

 

Antares Capital Corporation

   $ 24,329,105.77

M&I Marshall & Ilsley Bank

   $ 12,250,000.00

LaSalle Bank National Association

   $ 11,795,000.00

Orix Leveraged Finance Corp.

   $ 4,200,000.00

WB Loan Funding, LLC

   $ 1,726,063.70

Massachusetts Mutual Life Insurance Company

   $ 1,726,063.70

Babson CLO Ltd. 2005-I

   $ 2,514,951.92

Babson CLO Ltd. 2005-II

   $ 1,150,709.13

Antares Funding, L.P.

   $ 3,796,153.85

Mariner CDO 2002, Ltd.

   $ 2,429,673.08

Navigator CDO 2003, Ltd.

   $ 2,138,336.54

Navigator CDO 2005, Ltd.

   $ 1,943,942.31

TOTAL

   $ 70,000,000


 

 

 

Schedule 1.1 (b)

Revolving Loan Commitments

Revolving Loan Commitment

 

Antares Capital Corporation

   $  11,210,000

M&I Marshall & Ilsley Bank

   $ 3,500,000

LaSalle Bank National Association

   $ 3,890,000

Orix Leveraged Finance Corp.

   $ 1,400,000

TOTAL

   $ 20,000,000


 

 

 

Schedule 1.1 (d)

Swing Line Commitments

Swing Line Commitment

 

Antares Capital Corporation

   $  2,000,000

TOTAL

   $ 2,000,000


 

 

 

Schedule 3.2

Capitalization

PTHR Holdings, Inc.

 

     Common Stock    Preferred Stock

Fenway Panther Holdings, LLC

   2,355,000    16,335.84

Daniel K. Sokolowski Revocable Trust U/A/D 2/16/98

   291,300    2,020.65

Richard J. Buffington

   11,550    80.12

John J. Sliter

   11,550    80.12

Michael F. Stopka

   7,800    182

Stephen D. Wharton

   7,800    182

Antares Capital Corporation

   15,000    104.05

York Street Mezzanine Partners L.P.

   232,707.79    1,599.31

CUNA Mutual Insurance Society

   27,924.94    —  

CUMIS Mutual Insurance Society Inc.

   13,962.47    639.73

Members Life Insurance Company

   9,308.31    —  

CUNA Mutual Life Insurance Company

   41,887.40    —  
         

Total

   3,025,790.91    21,223.81
         

Authorized Shares

 

PTHR Holdings, Inc.

   4,000,000 shares Common Stock
100,000 shares Preferred Stock

Panther II Transportation, Inc.

   1,010 shares Class A Common Stock
9,090 shares Class B Common Stock

Panther II, Inc.

   500 shares Common Stock

Outstanding Options

 

Holder

   Share Class    Number of Shares    Exercise Price

Richard J. Buffington

   Common    23,823.53    $ 10.00

Steven D. Wharton

   Common    15,882.35    $ 10.00

Christopher T. French

   Common    3,970.59    $ 10.00


 

 

 

Christopher D. Koehring

   Common    3,970.59    $  10.00

Paul D. Ratcliff

   Common    3,970.59    $ 10.00

John J. Sliter

   Common    23,823.53    $ 10.00

Jeffrey M. Sokolowski

   Common    3,970.59    $ 10.00

Michael F. Stopka

   Common    15,882.35    $ 10.00

Jeffrey S. St. Pierre

   Common    15,882.35    $ 10.00

Daniel Sokolowski

   Common    95,294.12    $ 10.00

Jon P. Garity

   Common    7,941.18    $ 10.00

 

 

PTHR Holdings, Inc. Stock Subscription Agreement by and among PTHR Holdings, Inc., Fenway Panther Holdings, LLC, and Antares Capital Corporation dated as June 10, 2005.

 

 

Amended and Restated Stockholders Agreement among PTHR Holdings, Inc. and the Stockholders named therein dated as of the date hereof.

 

 

PTHR Holdings, Inc. 2005 Stock Option Plan


 

 

 

Schedule 3.5

Litigation

 

 

Scanware, Inc. v. Panther II Transportation, Inc.: Scanware, Inc. claims damages in the amount of approximately $30,000 against Panther II Transportation, Inc. for its sale of software products to Panther II Transportation, Inc. Panther II Transportation, Inc. has estimated that Scanware’s case has a settlement value of approximately $7,500.00-$15,000.00.

 

 

With regard to the outstanding claims arising out of automobile liability, Panther II Transportation, Inc. has the following limited loss reserve estimates: (1) $0 as of December 31, 2001, (2) $150,974 as of September 1, 2002, (3) $60,614 as of September 1, 2003, (4) $255,239 as of September 1, 2004 (5) $72,398 as of January 3, 2006. See attached Table 3.5 for a complete listing of outstanding automobile liability claims.


 

 

 

Customer Name

   Policy
Year
   Coverage    Claim Number    Data of
Loss
  

Claimant Name

   Claim status   

Accident

Narrative

   Paid
Total
   Reserves
Total
   Net
Incurred
Total

Panther II Transportation, Inc

   2000    AUTOMOBILE    1700051415    20010128    Panther II Transportation, Inc    Closed    Unknown accident    $     0    $     0    $     0

Panther II Transportation, Inc

   2000    AUTOMOBILE    1700051578    20010315    Panther II Transportation, Inc    Closed    IV lost control and hit guard rail, damage to IV.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    1700051880    20010209    Panther II Transportation, Inc    Closed    IV ran off roadway and struck a telephone pole.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    4620078225    20010711    JJ Nursery,    Closed    IV door swung open hit Parked OV.XREF 162 0080954    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    4640067200    20010821    S.N.E.T Company,    Closed    IV pulled down some power lines    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    4640070935    20011205    Unknown,    Closed    IV Hit OV and pushed OV Into OV2.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    4660074058    20010517    C & S Transportation,    Closed    OV slowed down, IV hit OV    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    4880077020    20010818    Kimala Vesey,    Closed    IV rearend OV.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700049881    20010313    Head, Charles    Closed    Drive shaft fell off IV and OV2 ran over it causing damage.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700049742    20010313    Head, Charles    Closed    Drive shall fell off IV and OV2 ran over it causing damage.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700050051    20010315    Viar, Julian    Closed    IV lost control and hit guard rail, damage to IV.    $ 0    $ 0    $ 0

Partner II Transportation, Inc

   2000    AUTOMOBILE    4700052071    20010518    logram, Betty    Closed    IV struck OV2 causing OV2 to have collision with OV3.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    47000523X1    20010612    Heald, Robert    Closed    IV rear-ended OV1, pushing them into OV2.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700054159    20010716    Lomas, Raymond and MIc    Closed    OV rear-ended IV    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700055X41    20010920    Shephard, Cynthia    Closed    OV ran stop sign, IV struck OV    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700055X41    20010920    Unknown,    Closed    OV ran stop sign, IV struck OV    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700057X22    20011004    Castrejon, Cecilia    Closed    Unknown auto accident    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700058560    20011207    Jackson, David    Closed    IV struck OV While parked    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700058912    20011222    Barb,    Closed    Freezing rain - slid into guardrails- flipped Die duck.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    47000589X2    20011222    State of Indiana,    Closed    Freezing rain - slid into guardrails- flipped Die duck.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700080743    20011213    Intreal Inc,    Closed    Insured truck tore down cimt fence    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2000    AUTOMOBILE    4710062958    20010820    Wheeler, Amanda    Closed    IV failed to yield right of way and was sideswiped by OV    $ 0    $ 0    $ 0


Panther II Transportation, Inc

   2000    AUTOMOBILE    4710062302    20010804    GraybBeal, Andrew E    Closed    IV swerved into OV.    $ 78    $ 0    $ 78

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700052007    20010524    Bowlus Trucking,    Closed    IV was struck by OV    $ 77    $ 0    $ 77

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700052855    20010X08    Little, Dennis    Closed    IV Struck OVs mirror    $ 100    $ 0    $ 100

Panther II Transportation, Inc

   2000    AUTOMOBILE    4710060272    20010625    Little, Dennis    Closed    Passed around Dennis & barely bumped board, or driver    $ 158    $ 0    $ 158

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700053011    20010702    Dufour, Carol    Closed    IV back into OV    $ 250    $ 0    $ 250

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700051129    20010502    Cluppa, Salvatore    Closed    IV caught phone one and pulled it down out of house    $ 285    $ 0    $ 285

Panther II Transportation, Inc

   2000    AUTOMOBILE    4880097715    20010518    Banks, Lucas    Closed    IV rearend OV.    $ 301    $ 0    $ 301

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700053800    20010723    Astro Enterprises,    Closed    IV backed up trailer, struck parked OV    $ 323    $ 0    $ 323

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700057310    20011018    Roman, Francisco    Closed    IV rearend OV in stopped traffic    $ 325    $ 0    $ 325

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700050530    20010117    ADM Trucking Inc,    Closed    IV rolled into OV    $ 364    $ 0    $ 364

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700054204    20010807    Ponton, Barry    Closed    IV backing to into parking space and hit OV passenger XXX    $ 374    $ 0    $ 374

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700054849    20010217    Smith, Rick    Closed    IV damaged cimt’s property.    $ 375    $ 0    $ 375

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700057489    20011102    Wesaw, Sheryl    Closed    IV backed into front end of parked OV.    $ 451    $ 0    $ 451

Partner II Transportation. Inc

   2000    AUTOMOBILE    4840051329    20010228    Canberra Industrial,    Closed    IV struck a tree    $ 477    $ 0    $ 477

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700049551    20010228    Klein, John    Closed    IV and OV2 collided while turning a sharp corner.    $ 497    $ 0    $ 497

Panther II Transportation, Inc

   2000    AUTOMOBILE    4840056321    20010319    National Railroad Passenger Corporation    Closed    IV truck damaged railroad bridge    $ 588    $ 0    $ 588

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700050760    20010326    CSI,    Closed    IV Pulled down light pole wire    $ 588    $ 0    $ 588

Panther II Transportation, Inc

   2000    AUTOMOBILE    4820072594    20010331    Dickerson, Dixle    Closed    IV turned & struck OV.    $ 838    $ 0    $ 838

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700054341    20010607    Maiden Regional Airport    Closed    IV hit power lines and pulled them down    $ 702    $ 0    $ 702

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700052558    20010601    McHenry Recreation XXX Alley    Closed    IV XXX Cimt building: insure left scene of crime    $ 725    $ 0    $ 725

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700051122    20010412    LaXXX, David    Closed    IV struck OV    $ 790    $ 0    $ 790

Panther II Transportation, Inc

   2000    AUTOMOBILE    4860074201    20010520    Brumfield, Barbara    Closed    IV was turning around in park, scratched OV rear XXX pannel.    $ 868    $ 0    $ 868

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700054826    20010825    Golden Hawk Transportation Services LLC    Closed    IV backed into parked OV hitting L front side    $ 872    $ 0    $ 872

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700048933    20010205    McKinney, Danielle    Closed    IV hit parked OV    $ 907    $ 0    $ 907

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700054703    20010817    Click, Kathlean    Closed    After top or box hit a low bridge, box red off & hit a car    $ 998    $ 0    $ 998

Panther II Transportation, Inc

   2000    AUTOMOBILE    4860077020    20010818    Sheila Kennedy,    Closed    IV rearend OV.    $ 1,000    $ 0    $ 1,000

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700060431    20010406    Woods, Margie L    Closed    Insd veh switched lines & hit over veh mirror    $ 1,160    $ 0    $ 1,160


Panther II Transportation, Inc

   2000    AUTOMOBILE    4700060431    20010406    Woods, Margie L    Closed    Insd veh switched lines & hit over veh mirror    $ 1,160    $ 0    $ 1,160

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700050376    20010208    Boone Rural Electric, Membership Corporal    Closed    IV ran off roadway and struck a telephone pole.    $ 1,181    $ 0    $ 1,181

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700082404    20011206    Queen City Steel,    Closed    Took out a door at shipper    $ 1,248    $ 0    $ 1,248

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700057094    20011015    Posphonan, David J    Closed    IV tried to turn-backed up and hit OV.    $ 1,352    $ 0    $ 1,352

Partner II Transportation, Inc

   2000    AUTOMOBILE    4240031423    20010301    Mitsubishi Motor,    Closed    IV backing hit concrete column    $ 1,369    $ 0    $ 1,369

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700050051    20010315    Missouri Highway and , Transportation Comm    Closed    IV lost control and hit guard rail, damage to IV.    $ 1,385    $ 0    $ 1,385

Panther II Transportation, Inc

   2000    AUTOMOBILE    4880072288    20010330    Adkins, Ruby    Closed    IV backing, hit traffic pole which fell onto a vehicle and    $ 1,557    $ 0    $ 1,557

Panther II Transportation, Inc

   2000    AUTOMOBILE    4620073733    20010418    Borchardi, Albert    Closed    IV turned L in front of OV and they colided    $ 1,587    $ 0    $ 1,587

Panther II Transportation, inc

   2000    AUTOMOBILE    4680072440    20010405    Cherry, Nancy    Closed    IV backed into OV    $ 1,830    $ 0    $ 1,830

Panther II Transportation. Inc

   2000    AUTOMOBILE    4700049012    20010217    Brumbough, Clifford    Closed    IV backing and struck OV, no injuries    $ 1,961    $ 0    $ 1,961

Partner Transportation. Inc

   2000    AUTOMOBILE    4700051014    20010409    Bakery Unlimited,    Closed    Insured drove into bakery sign.    $ 1,971    $ 0    $ 1,971

Panther II Transportation, Inc

   2000    AUTOMOBILE    4680070794    20010214    Hughes, Nancy    Closed    IV rear ended OV when OV stopped suddenly    $ 1,989    $ 0    $ 1,989

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700054181    20010803    Borden, Robert    Closed    Parked to close to the sign & top of truck hit the sign    $ 2,087    $ 0    $ 2,087

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700048827    20010212    Adkins, Chris    Closed    IV hit parked OV    $ 2,117    $ 0    $ 2,117

Panther II Transportation, Inc

   2000    AUTOMOBILE    4880071641    20010310    Haubrick, MaXXX    Closed    IV backed into OV2.    $ 2,133    $ 0    $ 2,133

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700052071    20010518    Sims, Malissa    Closed    IV struck OV2 causing OV2 to have collision with OV3.    $ 2,142    $ 0    $ 2,142

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700080301    20010828    Fish, Mary    Closed    IV rear-ended OV at a red light.    $ 2,519    $ 0    $ 2,519

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700049256    20010120    Ohio Department of Transportation    Closed    IV entering highway, hit Ice, hit guardrail and flipped    $ 2,232    $ 0    $ 2,232


 

 

 

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700051160    20010427    Danner, Trent    Closed    IV apparently Involved In side-swipe accident.    $ 2,307    $ 0    $ 2,307

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700056834    20011024    Parks, XXX    Closed    IV rear-ended other vehicle causing OV driver Stiff neck    $ 2,340    $ 0    $ 2,340

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700048833    20010115    XXXX Gas,    Closed    IV backed up and struck light post    $ 2,358    $ 0    $ 2,350

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700056834    20011024    Parks, XX    Closed    IV rear-ended other vehicle causing OV driver stiff neck.    $ 2,367    $ 0    $ 2,367

Panther II Transportation, Inc

   2000    AUTOMOBILE    4780007603    20011227    Proctor, XXXX    Closed    IV felt hit on front passenger side-OV1 hit OV2 us result.    $ 2.401    $ 0    $ 2,381

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700052391    20010612    Jung, Paul    Closed    IV rear-ended OV1, pushing them Into OV2    $ 2,187    $ 0    $ 2,531

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700048512    20010130    TownXXXXX,    Closed    IVallegedly hit building while trying to turn around    $ 2,558    $ 0    $ 2,556

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700059764    20011028    Gilbert, Titus    Closed    IV hit parked OV.    $ 2,571    $ 0    $ 2,571

Panther II Transportation. Inc

   2000    AUTOMOBILE    4700052974    200106__    Johns, Troy    Closed    IVrolled back into OV    $ 2,579    $ 0    $ 2,579

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700059746    20011201    Ebling, Edward    Closed    IV backed into OV    $ 2,378    $ 0    $ 2,579

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700052585    20010607    Jaussaud, Jeff    Closed    OVwas sideswiped by IV    $ 2,972    $ 0    $ 2,972

Panther II Transportation, Inc

   2000    AUTOMOBILE    4620079677    20010607    Brookside Funeral Home    Closed    IV turned around in funeral home parking lot, and hit pole.    $ 3,487    $ 0    $ 3,457

Panther II Transportation, Inc

   2000    AUTOMOBILE    47100_7534    20010611    Interstate Distribution    Closed    IV backed into parked OV    $ 3,509    $ 0    $ 3,509

Panther II Transportation, Inc

   2000    AUTOMOBILE    4600071235    20010227    Crown Cleaners Inc.    Closed    IV side wiped OV    $ 4,015    $ 0    $ 4,015

Panther II Transportation, Inc

   2000    AUTOMOBILE    4640065775    20010622    Eoolab Inc.    Closed    IV XXXXXX OV.    $ 4,104    $ 0    $ 4,104

Panther II Transportation, Inc

   2000    AUTOMOBILE    4120001281    20010629    JO WOOD TRUCKING,    Closed    IV DRIVER TURNED CORNER LOAD SHIFTED, TRUCK FLIPPED OVER    $ 4,108    $ 0    $ 4,109

Panther II Transportation, Inc

   2000    AUTOMOBILE    47000___40    20011222    Gonzalez. Jose    Closed    Unknown cause to unknown accident    $ 4,126    $ 0    $ 4,126

Panther II Transportation, Inc

   2000    AUTOMOBILE    4640073543    20011219    Angus, Both    Closed    OV struck IV while iv entering driveway.    $ 4,677    $ 0    $ 4,677

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700056529    20011214    Mllam, James E    Closed    IV hit parked OV.    $ 4,901    $ 0    $ 4,901

Panther II Transportation, Inc

   2000    AUTOMOBILE    4710061042    20010713    Jeffries, Curtis    Closed    IV struck parked OV    $ 5,117    $ 0    $ 5,117

Panther II Transportation, Inc

   2000    AUTOMOBILE    4660077020    20010816    Byers, sharrod    Closed    IV XXX OV.    $ 5,140    $ 0    $ 5,140

Panther II Transportation, Inc

   2000    AUTOMOBILE    470005_765    20011004    Lindsey, James    Closed    IV pulled out of truck stop-OV lost control & hit IV.    $ 8,102    $ 0    $ 8,102

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700051354    20010510    Joseph installation.    Closed    IV XXXX struck parked OV at loading dock    $ 7,309    $ 0    $ 7,308

Panther II Transportation, Inc

   2000    AUTOMOBILE    4660073356    201501    Martinex Moving,    Closed    IV hacking out of parting spot end hit OV    $ 7,657    $ 0    $ 7,657

Panther II Transportation, Inc

   2000    AUTOMOBILE    47000536633    20010628    XXXXX Management    Closed    IV backed into parking gate    $ 7,817    $ 0    $ 7,817

Panther II Transportation, Inc

   2000    AUTOMOBILE    471006295_    20010858    Wheeler, Leon    Closed    IV failed to yield right of way and was sideswiped by OV    $ 7,528    $ 0    $ 8,764

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700051299    200105    Coldwell. Robert    Closed    IV hit OV while trying to XXXX at a bee.    $ 8,885    $ 0    $ 8,865

Panther II Transportation, Inc

   2000    AUTOMOBILE    4710060701    2001070    Beckham, Barry    Closed    IV rearended OV A pushed OV through XXXX    $ 9,070    $ 0    $ 9,070


Panther II Transportation, Inc

   2000    AUTOMOBILE    4700049_07    2001012    XXXXX XXX    Closed    XXX same direction    $ 9,449    $ 0    $ 9,449

Panther II Transportation, Inc

   2000    AUTOMOBILE    4_40070935    2OOI120    XXXX, Tenance    Closed    IV hit OV and pushed OV into OV2.    $ 11,384    $ 0    $ 11,384

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700090526    2001030    XXXX Department of transportation    Closed    IV merged L struck construction equipment    $ 14,784    $ 0    $ 14,784

Panther II Transportation, Inc

   2000    AUTOMOBILE    4710060701    2001070    Beckham, Barry & sheila    Closed    IV rear-ended OV and pushed OV through intersection    $ 15,128    $ 0    $ 15,708

Panther II Transportation, Inc

   2000    AUTOMOBILE    4_40074954    2001112    Durosa.LynronJ    Closed    IV backing Into loading dock, hit Clmnt by standard    $ 16,560    $ 0    $ 16,560

Panther II Transportation, Inc

   2000    AUTOMOBILE    4_00007603    20O112X    HaupnchXXXXX    Closed    IVfelt hit on front passenger side-OV1 hit OV2 as result    $ 20,145    $ 0    $ 20,145

Panther II Transportation, Inc

   2000    AUTOMOBILE    4860074058    2001051    McCoy, Andrea    Closed    OV slowed down, IV hit OV    $ 21,858    $ 0    $ 21,483

Panther II Transportation, Inc

   2000    AUTOMOBLE    4800007503    2001122    XXXX,    Closed    IV felt hit on front passenger side-OV1 hit OV2 as result    $ 23,200    $ 0    $ 23,200

Panther II Transportation, Inc

   2000    AUTOMOBILE    4700048067    2001011    Bradford, Lathan    Closed    IV backed into OV while parked    $ 29,858    $ 0    $ 28,859

Panther II Transportation, Inc

   2000    AUTOMOBILE    4000007603    2001122    Brooks, Dennis    Closed    IV felt hit on front passenger side - OV1 hit OV2 as result    $ 34,520    $ 0    $ 34,520

Panther II Transportation, Inc

   2000    AUTOMOBILE    4710054948    2001012    Wells, Robert    Closed    Clmt on bike, struck Insured tractor on side    $ 113,061    $ 0    $ 113,061
   2000
Total
                     $ 483,408    $ 0    $ 481,172

Panther II Transportation, Inc

   2001    AUTOMOBILE    1620060954    20010711    Panther II Transportation, Inc.,    Closed    IV door swung open hit parked OV, XREF 462 0078225    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    16_0063069    20010601    Nestec, Michael    Closed    IV mirror hit mirror of OV which was parked.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    1660066956    2001100;    Panther II Transportation, Inc    Closed    IV struck parked OV.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    1660075151    2002080:    Panther II Transportation, Inc    Closed    IV to middle lane of 3 lane highway - IVwent to change    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    1660076627    2M209K    Panther II Transportation, Inc    Closed    Unknown    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    1700059322    20011104    Panther II Transportation, Inc    Closed    IV hit deer    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    1700085720    2D020531    Panther II Transportation, Inc    Closed    Ins heading down 1 -75 - did not see car slowing in front a    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    1700069727    20020723    Panther II Transportation, Inc    Closed    Driver #1 stated that she was backing out of parking space    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    1700070920    20021111    Panther II Transportation, Inc    Closed    Insured backed into clmt    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    1700071853    20021223    Panther II Transportation, Inc    Closed    Claimant rear ended Insured. Insured went to hospital No d    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4620096639    20011117    Hartford, Pete    Closed    OV alleges vehicle was hit by IV.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4640071443    20011121    Co-Worker, unknown    Closed    Driver hit coworker with truck while backing.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    464007427J    20020J31    Speedy    Closed    OV hit the IV while at the shipper.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4640089609    20020506    Dollar RentACar,    Closed    IV ran over power pole causing a power outage.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4660083259    20020211    Britney.XXXXX    Closed    Unknown accident. both drivers say the other ran red light    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4660083J59    20020211    Dunn,XXXX    Closed    Unknown accident -both drivers say the other ran red light    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4680089275    20020723    Hughes, Alton    Closed    Claimant states that Insured backed Into Insured while prkd    $ 0    $ 0    $ 0


Panther II Transportation, Inc

   2001    AUTOMOBILE    4660009396    420020807    Neville. Victor    Closed    IV In the middle lane ct3 lane highway-IV went to change    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4660089494    20020810    Unknown,    Closed    Ins trailer hit and broke pole.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4660089908    20020821    Hauss, Henry    Closed    #3 possibly an SUV putting a XXX. Was trying to pass #2.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4660091777    20020721    Brawn, Tim    Closed    IV backing into parking space & struck claimants vehicle    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4080097937    20021222    Jackson. Jeans    Closed    OV lost control and impacted IV front bumper and skidded of    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700052393    20010612    Jung. Paul    Closed    IV rear ends V2 and V2 rear ended V3    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700059356    20020109    Cenelo,XXXX    Closed    IV backing ino repair shop, OV pulled in turning radius    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700080461    20020216    Case Tractor Corp.    Closed    Insured damaged inside dock door paneling and rubber trim    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700060462    20020216    Brawn, Robert    Closed    IV was turning around and struck OV    $ 0    $ 0    $ 0


 

 

 

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700051932    20020405    Aggressive Transportation    Closed    IV backed into parked OV trailer and left the scene.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700062059    20020227    Jenks, Scott    Closed    IV “Turfed” Clients lawn while turning around.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700062328    20020329    Plelfer. Bus    Closed    Clmt is alleges that rock was kicked up by our unit    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700063287    20020522    Jennifer Foster.    Closed    OV ran a stop sign and struck IV. Both parties were taken    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700063287    20020522    Nanlam,Kulap    Closed    OV ran a stop sign and struck IV. Both parties were taken    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700063837    20020531    Vistson Automotive,    Closed    IV knocked over sign with trailer threw trailer axles out o    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700063776    20020605    Sunflower Express,    Closed    IV hit OV (tractor/trailer) In the rear in the middle of the    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700064010    20020509    Miller, Angela    Closed    IV hit OV side by side - both IV & OV sidewiped, Unable to    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700064540    20020525    May, Sue    Closed    Insured backed into Clmt    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700065254    20020712    Gordon, Karma    Closed    Insured pulled over into claimants lane - forcing claimant    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700065630    20020417    Lee, Paul D    Closed    IV backing into dock bumped OV    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700067607    20020722    Vance, Kara    Closed    Driver #1 stated that she was backing out of parking space    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700069718    20020620    XXX, Brian    Closed    IV proceeded thru 4-way/hit in middle of Intersec. by clmt.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700069914    20021223    Smith, Dianna    Closed    Claimant rear ended Insured. Insured went to hospital No d    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700069914    20021223    Unknown,    Closed    Claimant rear ended Insured. Insured went to hospital. No d    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4710069720    20020327    Scott, Kenneth W    Closed    Flatbed changed lanes in front of IV & slammed on brakes &    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4710071827    20020316    Metro Airport,    Closed    Insured unit went over bump in parking lot ripped overhang    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4710072897    20020708    Guthrie, John    Closed    Clmt is alleging that Insured sideswlped his car    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4720006903    20020712    Ventura, Edwing    Closed    Conflicting stories, clmt alleges Ins backed into him - in    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4720007565    20020810    Unknown,    Closed    Insured was merging on Americans Ave. Back of our truck hit    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4720014326    20020516    Bacon, Guy    Closed    Insured backed into door.    $ 0    $ 0    $ 0

Panther II Transportation, Inc

   2001    AUTOMOBILE    4800090783    20020806    Unknown,    Closed    IV’s driver thought person said to back up - struck OV.    $ 5    $ 0    $ 5

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700066185    20020809    Michael Bellamy,    Closed    Insured coming off exit ramp - traffic backed -up - Insured    $ 10    $ 0    $ 10

Panther II Transportation, Inc

   2001    AUTOMOBILE    4660065222    20020212    Brinkley, Thereita    closed    OV entered four way Intersection and was struck by IV    $ 17    $ 0    $ 17

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700062810    20020108    Mooney, Latisha    Closed    Claimant pulled out in front of Insured from on ramp causin    $ 51    $ 0    $ 51

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700066048    20020809    Wilczak, Jacqueline    Closed    Backed out of shipper- nicked bumper of lady pulling in.    $ 242    $ 0    $ 242

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700061058    20020212    Anderson, Tecora    Closed    IV struck OVand left the scene    $ 267    $ 0    $ 267

Panther II Transportation, Inc

   2001    AUTOMOBILE    46500751S5    20010607    Liggies, Larry    Closed    IV mirror hit mirror or OV which wns parked.    $ 299    $ 0    $ 299

Panther II Transportation, Inc

   2001    AUTOMOBILE    4710974537    20020709    Cade, symphone    Closed    #2 pulled out In front of #1 -1H pushed #2 down the road th    $ 300    $ 0    $ 300

Panther II Transportation, Inc

   2001    AUTOMOBILE    4710074537    20020709    Rounds, Oarlan    Closed    #2 pulled out In front of #1 -1H pushed #2 down the road th    $ 300    $ 0    $ 300

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700055117    20010904    Automotive, Dow    Closed    IV ran over clmt. trailer jack    $ 312    $ 0    $ 312

Panther II Transportation, Inc

   2001    AUTOMOBILE    4700066455    20020821    Johnson, Dwayne    Closed    IV in parking lot - didn’t swing trailer wide enough-sera    $ 377    $ 0    $ 377

Panther II Transportation, Inc

   2001    AUTOMOBILE    4880088850    20020728    Ushman, Chris    Closed    IV rear ended OV and pushed him into vehicle OV2.    $ 400    $ 0    $ 400

Panther II Transportation, Inc