8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): November 21, 2014

SPEED COMMERCE, INC.

(Exact name of Registrant as specified in its charter)

               Minnesota                            000-22982                                  41-1704319

(State or other jurisdiction            (Commission                     (I.R.S. Employer

        of incorporation)                   File Number)                  Identification No.)

1303 E. Arapaho Road, Suite 200

Richardson, TX 75081 

(Address of principal executive offices)

Registrant’s telephone number, including area code: (866) 377-3331

                                     Not Applicable                                  

(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

TABLE OF CONTENTS

Item 1.01 Entry into a Material Definitive Agreement.

Item 2.03. Creation of a Direct Financial Obligation.

Item 9.01  Financial Statements and Exhibits.

SIGNATURES

Item 1.01 Entry Into a Material Definitive Agreement.

On November 21, 2014, Speed Commerce, Inc., together with certain of its subsidiaries (collectively, the “Company”), entered into an Asset Purchase Agreement (the “Purchase Agreement”) with Sigma Holdings, LLC, together with certain of its subsidiaries, affiliates and shareholders (collectively, the “Sellers”). Under the Purchase Agreement, concurrent with the date of the Purchase Agreement, the Company purchased substantially all of the assets which were operated under the trade name Fifth Gear (the “Fifth Gear Assets”).

Pursuant to the Purchase Agreement, the consideration paid for the Fifth Gear Assets at closing was $55 million (the “Purchase Price”). Additionally, shares of Speed Commerce, Inc. common stock may be issued to the Sellers as a contingent payment, with the number of shares to be issued, if any, to be determined based upon on the adjusted EBITDA achieved as a result of the financial performance of the Fifth Gear Assets during the 2014 calendar year. The Purchase Agreement contains customary representations, warranties and indemnification provisions, as well as a customary escrow holdback in connection with the obligations of Sellers.

The foregoing description of the Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the Purchase Agreement, a copy of which is attached hereto as Exhibit 2.1 and incorporated by reference herein.

On November 21, 2014, the Company entered into an Amended and Restated Credit and Guaranty Agreement in connection with a $100 million term loan credit facility with various lenders and Garrison Loan Agency Services, LLC (“Garrison”) acting as agent (the “Amended and Restated Credit Facility”). Upon the closing of the Amended and Restated Credit Facility, the full $100 million available under this facility was funded to the Company, less certain fees and costs. The Amended and Restated Credit Facility replaced in its entirety the Company’s existing credit facility discussed in that certain Form 8-K filed by the Company on July 9, 2014.

The funds provided to the company pursuant to the Amended and Restated Credit Facility bear an interest rate equal to the LIBOR rate, plus 7.5%, except upon an event of default. The LIBOR rate for all loans under the Credit Facility is subject to a minimum level of 1.0%. The principal amount of the loans provided under the Amended and Restated Credit Facility are subject to repayment through an annual excess cash sweep and will be amortized at a rate of 2.5% annually through September 30, 2015, a rate of 3.0% annually through September 30, 2016, a rate of 3.5% annually through September 30, 2017, a rate of 5.0% annually through the remaining term of the credit facility. The remaining principal balance is due and payable by the Company on November 21, 2019.

The Credit Facility contains customary affirmative and negative covenants. The financial covenants include a limitation on capital expenditures, a minimum EBITDA level, a maximum fixed charge coverage ratio, and a maximum indebtedness to EBITDA ratio. The creation of indebtedness outside the credit facility, creation of liens, making of certain investments, sale of assets, and incurrence of debt are all either limited or require prior approval from Garrison and/or the other lenders under the Amended and Restated Credit Facility. This credit facility also contains customary events of default such as nonpayment, bankruptcy, and change in control, which if they occur may constitute an event of default.

Funds provided pursuant to the Amended and Restated Credit Facility are available to the Company for use in connection with its general corporate purposes. The Credit Facility is secured by a first priority security interest in substantially all of the Company’s assets. The discussion herein regarding the Amended and Restated Credit Facility is qualified in its entirety by reference to the Credit and Guaranty Agreement between the Company and Garrison attached hereto as Exhibit 10.1.

On November 24, 2014, the Company issued a press release announcing the execution and closing of the Purchase Agreement and Amended and Restated Credit Facility discussed in this Item 1.01 below. A copy of this press release is attached hereto as Exhibit 99.1 and incorporated herein by reference.

Item 2.03. Creation of a Direct Financial Obligation

The information set forth in Item 1.01 above with respect to the Credit Facility is incorporated herein by reference.

Item 9.01  Financial Statements and Exhibits.

(a) Financial Statements of Business Acquired.

We intend to file by amendment to this Form 8-K the required historical financial statements of Fifth Gear not later than 71 calendar days after the date that this Form 8-K was required to be filed.

(b) Pro Forma Financial Information.

We intend to file by amendment to this Form 8-K the required pro forma financial information reflecting the acquisition of the Fifth Gear Assets not later than 71 calendar days after the date this Form 8-K was required to be filed.

(c) Exhibits. The following exhibits are filed with this document:

Exhibit            

2.1 Form of Asset Purchase Agreement by and among the Company and Sellers dated November 21, 2014.

10.1 Form of Amended and Restated Credit and Guaranty Agreement by and among the Company, various lenders and Garrison dated November 21, 2014

99.1     Press Release, dated November 24, 2014, issued by the Company.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

	SPEED COMMERCE, INC.
	By:	/s/ Ryan F. Urness
Dated: November 26, 2014	Name:	Ryan F. Urness
	Title:	General Counsel and
		Secretary

EX-2

 Exhibit 2.1

ASSET PURCHASE AGREEMENT

among:

FIFTH GEAR ACQUISITIONS, INC., as Purchaser

SPEED COMMERCE, INC.

and

SIGMA HOLDINGS, LLC,

SIGMA MICRO, LLC and

LEXTON GROUP, L.L.C., as Sellers,

the Members of SIGMA HOLDINGS, LLC

and

Albert Langsenkamp,

In HIS CAPACITY AS SELLERS' REPRESENTATIVE

Dated Effective as of November 21, 2014

TABLE OF CONTENTS

ARTICLE I. DEFINITIONS		1
ARTICLE II. SALE AND PURCHASE OF ASSETS; RELATED TRANSACTIONS		11
Section 2.1.	Sale and Purchase of Assets	11
Section 2.2.	Excluded Assets	13
Section 2.3.	Purchase Price	14
Section 2.4.	Assumed Liabilities	14
Section 2.5.	Earn Out Shares.	15
Section 2.6.	Transfer Taxes; Delivery of Assets	18
Section 2.7.	Allocation of Purchase Price	18
Section 2.8.	Closing	18
Section 2.9.	Working Capital Adjustment	20
Section 2.10.	Prorations	23
Section 2.11.	Escrow Amount.	23
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE SELLING PARTIES		24
Section 3.1.	Organization and Good Standing	24
Section 3.2.	Title to Assets	24
Section 3.3.	Accounts Receivable; Prepaid Amounts	25
Section 3.4.	Intellectual Property	25
Section 3.5.	Material Contracts	28
Section 3.6.	Title; Equipment; Condition of Fixed Assets	29
Section 3.7.	Compliance with Legal Requirements	29
Section 3.8.	Employee Matters	30
Section 3.9.	Employee Benefits	30
Section 3.10.	Certain Liabilities	31
Section 3.11.	Legal Proceedings	31
Section 3.12.	Authority; Binding Nature of Agreement	31
Section 3.13.	Non‑Contravention; Required Consents	33
Section 3.14.	Financial Statements	33
Section 3.15.	Inventory	35
Section 3.16.	Taxes	35
Section 3.17.	Permits.	35
Section 3.18.	Subsequent Events	36
Section 3.19.	Real Property	36
Section 3.20.	Environmental Matters	37
Section 3.21.	Insurance	38
Section 3.22.	Transactions with Related Parties	39
Section 3.23.	Customers and Vendors	39
Section 3.24.	No Brokers or Finders	39
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF PURCHASER		40
Section 4.1.	Due Organization	40
Section 4.2.	Matters	40

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Section 4.3.	Authority; Binding Nature of Agreement	40
Section 4.4.	Non‑Contravention; Consents	40
Section 4.5.	Broker’s and Finder’s Fees.	41
Section 4.6.	Due Diligence Investigation.	41
Section 4.7.	SEC Filings.	41
Section 4.8.	Issuance of Earn Out Shares.	41
ARTICLE V. COVENANTS OF THE PARTIES		42
Section 5.1.	Mutual Cooperation	42
Section 5.2.	Preservation of Records	42
Section 5.3.	Payments	42
Section 5.4.	Litigation Support	43
Section 5.5.	Employment Matters	43
Section 5.6.	Contract Assignment and Consents	44
Section 5.7.	Restrictive Covenants	45
Section 5.8.	Compliance with Rule 144.	46
Section 5.9.	SEC Filings.	47
Section 5.10.	Financial Statements	47
Section 5.11.	Post-Closing Activities.	47
ARTICLE VI. INDEMNIFICATION		48
Section 6.1.	Indemnification by Selling Parties	48
Section 6.2.	Indemnification by Purchaser	48
Section 6.3.	Limitations on Liability	48
Section 6.4.	Indemnification Procedures.	51
Section 6.5.	Payments; Escrow.	52
Section 6.6.	Treatment of Payments	53
ARTICLE VII. MISCELLANEOUS		53
Section 7.1.	Knowledge	53
Section 7.2.	Governing Law	53
Section 7.3.	Venue and Jurisdiction	53
Section 7.4.	Notices	53
Section 7.5.	Public Announcements	54
Section 7.6.	Assignment	54
Section 7.7.	Parties in Interest	55
Section 7.8.	Bulk Sales Laws	55
Section 7.9.	Severability	55
Section 7.10.	Specific Performance	55
Section 7.11.	Entire Agreement	55
Section 7.12.	Waiver	55
Section 7.13.	Amendments	55
Section 7.14.	Counterparts	56
Section 7.15.	Interpretation of Agreement	56
Section 7.16.	Appointment of the Sellers' Representative.	56
Section 7.17.	Expenses.	58

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EXHIBITS AND SCHEDULES

EXHIBIT A CALCULATION OF NET WORKING CAPITAL

EXHIBIT B ALLOCATION

EXHIBIT C REGISTRATION RIGHTS AGREEMENT

SCHEDULE 1 EXAMPLE 2014 ADJUSTED EBITDA CALCULATION

SCHEDULE 2.1(A) PURCHASED FIXED ASSETS

SCHEDULE 2.1(B) PURCHASED MARKS

SCHEDULE 2.1(C) PURCHASED COPYRIGHTS

SCHEDULE 2.1(D) PURCHASED RECEIVABLES

SCHEDULE 2.1(E) PURCHASED PREPAIDS

SCHEDULE 2.1(F) PURCHASED INVENTORY

SCHEDULE 2.1(G) ASSUMED CONTRACTS

SCHEDULE 2.1(H) PURCHASED SOFTWARE

SCHEDULE 2.1(I) REAL PROPERTY FEE PARCELS

SCHEDULE 2.1(J) DOMAIN NAMES; NUMBERS; WEBSITE

SCHEDULE 2.1(K) PURCHASED TRADE SECRETS

SCHEDULE 2.1(L) PERMITS

SCHEDULE 2.1(M) PURCHASED PATENTS

SCHEDULE 2.1(O) OTHER NON-CURRENT ASSETS

SCHEDULE 2.2(D) EXCLUDED ASSETS

SCHEDULE 5.5(A) BUSINESS EMPLOYEES

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ASSET PURCHASE AGREEMENT

THIS ASSET PURCHASE AGREEMENT (this “Agreement”) is being entered into effective as of November 21, 2014 (the “Effective Date”), by and among Fifth Gear Acquisitions, Inc., a Minnesota corporation (“Purchaser”), and Speed Commerce, Inc., a Minnesota corporation (“Parent Company”), on one hand, and Sigma Holdings, LLC, an Indiana limited liability company, Sigma Micro, LLC, an Indiana limited liability company, and Lexton Group, L.L.C., a Missouri limited liability company (collectively, “Sellers”), and Albert Langsenkamp (“Langsenkamp”), Sigma Holdings, Inc., an Indiana corporation, Therese Langsenkamp, Jack Alexander, Jan Alexander, Matthew J. Smith, Joan H. Smith Trust U/A 9/11/1985, Robert L. Richardson Jr., David L. Hecht, Martha S. Moore, Matthew L. Konkle, Donald J.B. Van der Wiel, Jeffrey Dahltorp (collectively, along with Langsenkamp, the “Members” and each individually a “Member”; and collectively with the Sellers, the “Selling Parties” and each individually a “Selling Party”), on the other hand, and Langsenkamp, in his capacity as Sellers' Representative.

RECITAL:

The parties hereto desire to provide for the purchase by Purchaser of substantially all of the assets used by Sellers in connection with Sellers’ e-commerce fulfillment, third party logistics services and call center services businesses as well as Seller’s business of developing, selling and licensing software utilized for order management and warehouse management functions (collectively, the “Business”), and wish to provide for certain related transactions, on the terms and subject to the conditions and other provisions set forth in this Agreement.

NOW, THEREFORE, pursuant to the above recital and in consideration of the mutual covenants and agreements set forth below and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I.
DEFINITIONS

For purposes of this Agreement:

“Administrative Costs” has the meaning set forth in Section 7.17(a).

“Annual Statements” has the meaning set forth in Section 3.14(a).

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“Allocation” has the meaning set forth in Section 2.7(a).

“Assignment and Assumption Agreement” has the meaning set forth in Section 2.8(b).

“Assumed Contracts” has the meaning set forth in Section 2.1(g).

“Assumed Liabilities” has the meaning set forth in Section 2.4(a).

“Average Parent Stock Price” means the Volume-Weighted Average Price (VWAP) (rounded to the nearest thousandth of one cent) of the per share closing prices of Parent Common Stock on The NASDAQ Stock Market during the twenty (20) consecutive trading days ending on (and including) the trading day that is two (2) trading days prior to the date of the applicable calculation.

“Benefit Plan” means all employee benefit plans, employment or severance agreements or other similar arrangements for the benefit of any current or former employee or independent contractor employed or formerly employed or otherwise retained or formerly retained in the operation of the Business and with respect to which one or more of the Sellers or any ERISA Affiliate have or may have any Liability in connection with or relating to the Business, including (a) any “employee benefit plan” (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA), (b) any profit-sharing, stock bonus, deferred compensation, bonus, stock option, stock purchase, restricted stock, equity incentive, phantom equity, pension, retirement, retainer, compensation, consulting, severance, retention, indemnification, welfare or incentive plan, agreement or arrangement, and (c) any plan, agreement or arrangement providing for “fringe benefits” or perquisites to employees, officers, directors or agents, including but not limited to benefits relating to automobiles, clubs, vacation, child care, parenting, sabbatical, sick leave, tuition reimbursement, medical, dental, hospitalization, life insurance, disability insurance and other types of insurance, whether written or unwritten.

“Bill of Sale” has the meaning set forth in Section 2.8(b).

“Business” has the meaning set forth in the recital.

“Business Employee” means any employee of Sellers or any subsidiary of Sellers of the Business.

“Cap” has the meaning set forth in Section 6.3(c).

“Claim Notice” has the meaning set forth in Section 6.4(a).

“Closing” has the meaning set forth in Section 2.8(a).

“Closing Cash” has the meaning set forth in Section 2.3(a).

“Closing Date” has the meaning set forth in Section 2.8(a).

“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, Section 4980B of the Code, Title I Part 6 of ERISA, and any similar state group health plan continuation law.

“COBRA Beneficiaries” has the meaning set forth in Section 5.5(f).

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“COBRA Coverage” has the meaning set forth in Section 5.5(f).

“Code” means the Internal Revenue Code of 1986, as amended.

“Competitive Enterprise” has the meaning set forth in Section 5.7(a).

“Confidentiality Agreement” means the Mutual Non-Disclosure Agreement by and between Purchaser and Sellers, dated as of March 3, 2014.

“Confidential Information” means any information of Sellers related to the Business, including methods of operation, customers, customer lists, products, prices, fees, costs, technology, inventions, trade secrets, know-how, software, marketing methods, plans, and information relating to the Sellers’ personnel, vendors, competitors, markets or other specialized information or proprietary matters.

“Confirmation Certificate” has the meaning set forth in Section 2.9(c).

“Consent” means any consent, approval or waiver.

“Continuing Unresolved Amount” has the meaning set forth in Section 2.11(b)

“Contract” means any legally binding written or oral agreement, contract, subcontract, lease, instrument, note, option, warranty, purchase order, license, sublicense, mortgage or guarantee.

“Damages” means, without duplication, all actual losses, Liabilities, judgments, damages, claims, assessments and awards, including all costs and expenses relating thereto (including reasonable fees and expenses of legal counsel and costs of investigation), whether or not involving a Third Party Claim, expressly including any additional Purchase Price or Earn Out Amount paid to Sellers as a result of a breach of any representation, warranty, or covenant by a Selling Party set forth herein or error or subsequent adjustment in the calculation of any Earn Out Amount paid hereunder, but expressly excluding any incidental, consequential, punitive or exemplary damages, special damages, indirect damages, unrealized expectation, lost profits or other similar items.

“Delinquent Receivables” shall mean, subject to the provisions of Section 2.9, all accounts receivables of the Sellers as of the close of business on the Closing Date, or any portion thereof, that remain uncollected as of the close of business on the 90^th day after the Closing Date.

“Direct Claim” has the meaning set forth in Section 6.4(c).

“Disclosure Schedules” means the disclosure schedules delivered by the Sellers’ Representative to Purchaser contemporaneously with the execution and delivery of the Agreement.

“Dispute Notice” has the meaning set forth in Section 2.9(c).

“Earn Out Amount” has the meaning set forth in Section 2.5(a).

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“Earn Out Shares” has the meaning set forth in Section 2.5(c).

“Effective Date” has the meaning set forth in the Preamble.

“Environmental Documentation” has the meaning set forth in Section 3.20(h).

“Environmental Law” means, collectively, all applicable statutes, regulations, ordinances, codes, Environmental Permits, orders, and all other Legal Requirements of any Governmental Authority relating to Hazardous Substances and the environment (which includes air, water, vapor, surface water, groundwater, soil, surface and subsurface strata, and natural resources), and/or human health.

“Environmental Permits” means all Permits required under any Environmental Law.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“ERISA Affiliate” means any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with any Seller or Sellers, as defined in Section 414 of the Code, or is otherwise required to be aggregated with any Seller or Sellers under Section 414(o) of the Code.

“Escrow Agreement” has the meaning set forth in Section 2.11(a).

“Escrow Account” has the meaning set forth in Section 2.11(a).

“Escrow Amount” has the meaning set forth in Section 2.11(a).

“Escrow Agent” has the meaning set forth in Section 2.11(a).

“Estimated Net Working Capital Payment” means, either the positive amount by which the estimated Net Working Capital as of the Closing Date exceeds the Net Working Capital Target or the negative amount by which the Net Working Capital Target exceeds the estimated Net Working Capital as of the Closing Date, in each case as the estimated Net Working Capital is set forth in the Net Working Capital Certificate.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the regulations promulgated thereunder.

“Excluded Assets” has the meaning set forth in Section 2.2.

“Excluded Contracts” has the meaning set forth in Section 2.2.

“Excluded Liabilities” has the meaning set forth in Section 2.4(b).

“Expiration Date” has the meaning set forth in Section 6.3(a).

“Final Release Date” has the meaning set forth in Section 2.11(b).

“Financial Statements” has the meaning set forth in Section 3.14(a).

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“Fixed Assets” has the meaning set forth in Section 2.1(a).

“Former Selling Party” has the meaning set forth in Section 7.16(c).

“Fundamental Representations” has the meaning set forth in Section 6.3(a).

“GAAP” means United States generally accepted accounting principles.

“Governmental Authority” means any: (a) nation, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (b) federal, state, local, municipal, foreign or other government; (c) governmental authority of any nature (including any governmental division, department, agency, commission, instrumentality, official or ministry and any governmental court or other governmental tribunal); or (d) entity exercising, or entitled to exercise, any executive, legislative, judicial, administrative, regulatory, police, military or taxing authority or power.

“Hazardous Substances” means and includes any materials, chemicals, substances or wastes which, at the time of Closing, are regulated by any Governmental Authority under Environmental Laws now existing, including (a) materials, chemicals, substances and/or wastes regulated as “hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic substances,” “toxic wastes”, “solid wastes,” “regulated wastes,” “pollutants,” “contaminants,” “radioactive materials,” “radioactive wastes,” and other similar terms and/or (b) petroleum and/or petroleum products, PCBs, asbestos, urea formaldehyde.

“Improvements” has the meaning set forth in Section 3.19(d).

“Indebtedness” means the unpaid principal amount of, accrued interest on, and prepayment penalties with respect to, all indebtedness for borrowed money of each Seller, all obligations of each Seller evidenced by bonds, debentures, notes or similar instruments, all obligations, contingent or otherwise, of each Seller as an account party with respect to letters of credit and letters of guarantee (to the extent drawn upon at Closing) and all capital lease obligations of the each Seller.

“Initial Release Date” has the meaning set forth in Section 2.11(b).

“Initial Unresolved Amount” has the meaning set forth in Section 2.11(b).

“Indemnified Party” has the meaning set forth in Section 6.4(a).

“Indemnifying Party” has the meaning set forth in Section 6.4(a).

“Independent Accounting Firm” means a mutually-agreeable nationally recognized firm of independent auditors that has not performed work for, and is otherwise independent of, Purchaser and any Selling Party.

“Intellectual Property” means any of the following and all worldwide statutory and common law rights associated therewith: (a) patents, patent applications, patent disclosures and related patent rights (including any continuations, divisions, reissues, reexaminations, renewals, or extensions thereof); (b) trademarks, trademark registrations, trademark applications, trade dress rights, trade names, service marks, service mark registrations and service mark applications; (c) copyrights, copyright registrations and copyright applications; (d) mask work rights, mask work registrations and mark work applications; (e) Internet domain names, Internet and World Wide Web URLs or addresses and registrations or applications therefor; (f) inventions, unfiled invention disclosures, improvements, trade secrets, know-how and proprietary processes and formulae; (g) moral and economic rights of authors and inventors, however denominated; and (h) any tangible embodiments of the foregoing (e.g., documentation, media, manuals and records).

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“Intellectual Property Assignment” has the meaning set forth in Section 2.8(b).

“Interim Statement” has the meaning set forth in Section 3.14(a).

“Konkle” means Matthew L. Konkle.

“Leasing Agreement” has the meaning set forth in Section 2.8(b).

“Leasing Expiration Date” has the meaning set forth in Section 5.5(a).

“Legal Requirement” means any law, rule, decree, statute, order, regulation, ordinance, directive, code, order, ordinance, judgment, injunction, or binding judicial precedent that is legally promulgated or issued by any Governmental Authority.

“Liabilities” means debts, liabilities and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, determined or determinable, known or unknown, including those arising under any applicable Legal Requirement or Contract, including any liabilities or obligations for Taxes.

“Liens” has the meaning set forth in Section 3.2.

“Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise), prospects or assets of the Business, (b) the value of the Purchased Assets, (c) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis, or (d) Purchaser’s ability to operate the Business immediately after Closing in the manner operated by Sellers prior to Closing; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) changes or developments in financial, economic, political or industry conditions in the United States or any other jurisdiction in which Sellers have substantial business; (ii) changes or developments, after the date hereof, in GAAP; or (iii) changes or developments resulting from or caused by natural disasters, or outbreak of major hostilities in which the United States is involved or any act of war or terrorism within the United States or directed against its facilities or citizens wherever located; provided further, however that any event, occurrence, fact, condition or change referred to in clauses (i) through (iii) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent those changes or developments have a disproportionate effect on Sellers, considered as a single enterprise, relative to other businesses in the industries in which Sellers conduct their business operations.

6

“Matter” means any judicial or administrative or arbitral action, mediation, inquiry, claim (including counterclaim), demand, dispute, action, suit, proceeding, investigation or other similar matter.

“Members” and each individually a “Member” have the meaning set forth in the Preamble.

“Minority Members” shall mean each Member other than Langsenkamp, Jack Alexander and Jan Alexander.

“Most Recent Balance Sheet” has the meaning set forth in Section 3.14(c).

“Net Working Capital” means the current assets included in the Purchased Assets (consisting of the Purchased Receivables but excluding the Delinquent Receivables, the Purchased Prepaids, the Purchased Inventory and the other current assets) minus the current liabilities (excluding deferred revenue) included in the Assumed Liabilities on the Closing Date, in each case, determined in accordance with GAAP, consistently applied, as of the Closing Date. Notwithstanding the foregoing, the “Net Working Capital” shall be subject to the adjustments set forth on Exhibit A attached hereto, even if the same are inconsistent with GAAP. Solely for the purposes of calculating Net Working Capital, the parties hereto shall assume that any amounts paid coincident with Closing to on account of any Liabilities under that certain Revolving Credit and Security Agreement, dated as of June 5, 2012, by and among Sigma Holdings, LLC d/b/a/ Fifth Gear and Restaurant Services, Inc. (“RSI”), as amended, were “current liabilities”.

“Net Working Capital Certificate” has the meaning set forth in Section 2.8(c).

“Net Working Capital Statement” has the meaning set forth in Section 2.9(a).

“Net Working Capital Target” means Three Million Seven Hundred Fifty Thousand and 00/100 Dollars ($3,750,000.00).

“Non-Assignable Contract” has the meaning set forth in Section 5.6.

“Offered Earn Out Shares” has the meaning set forth in Section 5.8.

“Open Source Software” means any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including software licensed or distributed under any of the following licenses or distribution models: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e) the Sun Community Source License (SCSL); (f) the Sun Industry Standards License (SISL); (g) the BSD License; or (h) the Apache License.

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“Order” means any order, injunction, judgment, doctrine, decree, ruling, writ, assessment or arbitration award of a Governmental Authority.

“Outbound License Agreements” means (a) non-exclusive licenses to Purchased Intellectual Property (i) included in any product or service offered by Sellers or (ii) to use any product or service offered by Sellers as a service, in each case (i) or (ii), granted to customers (directly by Sellers or indirectly through third person partners acting as sublicensors, value added resellers, systems integrators, original equipment manufacturers, or other distributors or resellers of any kind), sublicensors, value added resellers, systems integrators, original equipment manufacturers, or other distributors or resellers of any kind, by Sellers in the ordinary course of business, and (b) licenses or other rights of use in respect of Purchased Trademarks to refer to a Third Party as a customer or reseller and rights granted as part of corporate sponsorships, which licenses or rights are not material.

“Parent Common Stock” shall mean the common stock, no par value, of Parent Company.

“Parent Company” has the meaning set forth in the introductory paragraph of the Agreement.

“Patents” has the meaning set forth in Section 2.1(m).

“Permit” means any licenses, permits, certificates and certifications (including certificates of occupancy), variances, exemptions, filings, registrations, declarations, notifications, accreditations, approvals, consents all other authorizations of any Governmental Authority.

“Permitted Liens” has the meaning set forth in Section 3.2(a).

“Person” means any individual, corporation, general partnership, limited partnership, limited liability company, trust, association, firm, organization, company, business, entity, union, society or Governmental Authority.

“Personal Property Leases” has the meaning set forth in Section 3.6(b).

“Purchase Price” has the meaning set forth in Section 2.3.

“Purchased Assets” has the meaning set forth in Section 2.1.

“Purchased Copyrights” has the meaning set forth in Section 2.1(c).

“Purchased Fixed Assets” has the meaning set forth in Section 2.1(a).

“Purchased Intellectual Property” shall mean the Purchased Marks, the Purchased Copyrights, the Purchased Patents, the Purchased Trade Secrets, the Purchased Software, the domain name registrations and URLs identified on Schedule 2.1(j) and the Intellectual Property rights embodied in the Seller Business Software.

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“Purchased Inventory” has the meaning set forth in Section 2.1(f).

“Purchased Marks” has the meaning set forth in Section 2.1(b).

“Purchased Patents” has the meaning set forth in Section 2.1(m).

“Purchased Prepaids” has the meaning set forth in Section 2.1(e).

“Purchased Receivables” has the meaning set forth in Section 2.1(d).

“Purchased Software” has the meaning set forth in Section 2.1(h).

“Purchased Trade Secrets” has the meaning set forth in Section 2.1(k).

“Purchaser” has the meaning set forth in the introductory paragraph of the Agreement.

“Purchaser Indemnified Parties” and “Purchaser Indemnified Party” have the meaning set forth in Section 6.1.

“Purchaser’s Adjusted EBITDA Report” has the meaning set forth in Section 2.5(b).

“Real Property” has the meaning set forth in Section 3.20(a).

“Real Property Fee Parcels” has the meaning set forth in Section 2.1(i).

“Real Property Leases” has the meaning set forth in Section 3.19(b).

“Recipient” has the meaning set forth in Section 3.12(c).

“Receipts” has the meaning set forth in Section 5.3.

“Registered Intellectual Property” means all United States, international and foreign (a) patents and applications for patents, (b) registered trademarks and service marks and applications to register trademarks and service marks (including intent-to-use applications), (c) registered copyrights and applications for copyrights, (d) registered mask works and applications to register mask works, (e) domain name registrations, and (f) any other Intellectual Property that is the subject of a registration, application, certificate or filing issued by, filed with, or recorded by, any Governmental Authority.

“Registration Rights Agreement” has the meaning set forth in Section 2.8(b).

“Related Party” means (i) any Affiliates of any Selling Parties (other than another Seller), or (ii) any director or officer of Sellers and any member of their immediately family or their respective Affiliates.

“Representatives” means Affiliates, directors, officers, employees, prospective financing sources, accountants, counsel, investment bankers, advisors or other agents.

“Required Consent” has the meaning set forth in Section 5.6.

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“Restricted Party” shall mean any of Langsenkamp, Jack Alexander, Jan Alexander, Konkle, or Van der Wiel.

“Restricted Period” has the meaning set forth in Section 5.7(a).

“Rule 144” means 17 CFR 230.144.

“Rule 144 Sale Documentation” has the meaning set forth in Section 5.8.

“Securities Act” means the Securities Act of 1933, as amended, and the regulations promulgated thereunder.

“Seller Indemnified Parties” and “Seller Indemnified Party” have the meaning set forth in Section 6.2.

“Sellers” and “Seller” have the meaning set forth in the Preamble.

“Seller Business Software” means the Purchased Software, excluding Third Party Licensed Intellectual Property.

“Sellers’ Adjusted EBITDA Report” has the meaning set forth in Section 2.5(b).

“Sellers' Flexible Spending Benefits Plan” means the Flexible Benefits Spending Plan established for the eligible employees of the Sellers.

“Sellers' Representative” has the meaning set forth in Section 7.16.

“Selling Parties” and “Selling Party” have the meaning set forth in the Preamble.

“Specifications” has the meaning set forth in Section 3.4(h).

“Successor Selling Party” has the meaning set forth in Section 7.16(c).

“Taxes” means (a) all federal, state, local and foreign taxes (including income or profits taxes, premium taxes, excise taxes, sales taxes, use taxes, gross receipts taxes, franchise taxes, ad valorem taxes, goods and services taxes), severance taxes, capital levy taxes, transfer taxes, value added taxes, employment and payroll-related taxes, real and personal property taxes, real property assessments, business license taxes, occupation taxes, import duties, escheat obligations and other governmental charges and assessments), of any kind whatsoever, including interest, additions to tax and penalties with respect thereto, (b) liability for any such items described in clause (a) that is imposed by reason of U.S. Treasury Regulation §1.1502-6 or similar Legal Requirement, and (c) liability for any such items described in clause (a) imposed on any transferee or indemnitor, by contract or otherwise.

“Third Party” means any Person, other than Purchaser, Sellers, or any of their respective Affiliates.

“Third Party Claim” has the meaning set forth in Section 6.4(a).

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“Third Party Licensed Intellectual Property” means all Intellectual Property licensed to Sellers by any Third Party under the Assumed Contracts.

“Threshold Amount” has the meaning set forth in Section 6.3(b).

“Transaction Documents” means: (a) the Agreement; (b) the Assignment and Assumption Agreement; (c) the Bill of Sale; (d) the Intellectual Property Assignment; (e) the Escrow Agreement; (f) the Leasing Agreement, and (g) any such other assignments, bills of sale, agreements, documents and certificates as may be contemplated hereby.

“Transfer Taxes” has the meaning set forth in Section 2.6.

“Transferred Employees” means any Business Employee listed on Schedule 5.5(a) who, in connection with the transactions contemplated in this Agreement and in the Transaction Documents, continues employment with a Seller and works in the Business under the Leasing Agreement.

“Van der Wiel” means Donald J.B. Van der Wiel.

“2014 Adjusted EBITDA” shall mean, for the period beginning on January 1, 2014 and ending on December 31, 2014, the aggregate earnings before interest, taxes on income, depreciation and amortization expenses of the Sellers and Purchaser, collectively, determined in accordance with GAAP and prepared by the nationally recognized accounting firm that audits Purchaser’s books and records, it being understood that to the extent Purchaser is able to reduce expenses resulting from realizing benefits from Parent Company’s or its affiliate’s freight or shipping rates, 2014 Adjusted EBITDA shall be calculated assuming such expense reductions were not available to Purchaser, even if the same are inconsistent with GAAP. An example calculation of Sellers’ 2014 Adjusted EBITDA, is attached hereto as Schedule 1.

ARTICLE II.     
SALE AND PURCHASE OF ASSETS; RELATED TRANSACTIONS

Section 2.1.     Sale and Purchase of Assets. On the terms and subject to the conditions and other provisions set forth in this Agreement, at the Closing, Sellers will sell, assign, transfer, convey and deliver to Purchaser, free and clear of all Liens (other than Permitted Liens), and Purchaser shall purchase, or cause such Affiliates to purchase, all of the assets, properties and rights used in the operation of or associated with the Business, including the following assets, excluding the Excluded Assets (subject to Section 2.2, the “Purchased Assets”):

(a)     Fixed Assets. all equipment, vehicles, furniture, furnishings, fixtures, computer hardware and all items of personal tangible property used in the operation of or associated with the Business (the “Fixed Assets”), including those items identified on Schedule 2.1(a) of the Disclosure Schedules (the “Purchased Fixed Assets”);

(b)     Trademarks. all trademarks, service marks, trademark registrations, service mark registrations, trademark applications, trade dress, trade names and service mark applications owned by Sellers or used in the operations of or associated with the Business, including those set forth on Schedule 2.1(b) of the Disclosure Schedules, together with all related goodwill, remedies against infringement and rights to protect interests therein (the “Purchased Marks”);

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(c)     Copyrights. all of the copyrights, copyright registrations and copyright applications, and moral rights of authors, however denominated, and any tangible embodiments of the foregoing owned by Sellers or used in the operation of the Business, including those set forth on Schedule 2.1(c) of the Disclosure Schedules, together with all related remedies against infringement and rights to protect interests therein (the “Purchased Copyrights”);

(d)     Accounts Receivable. all accounts receivable arising out of the Business as of the Closing Date set forth on Schedule 2.1(d) of the Disclosure Schedules, updated on the Net Working Capital Certificate and adjusted in accordance with Section 2.9 (the “Purchased Receivables”);

(e)     Prepaids. the prepaid expenses, advance payments (if any), and prepaid items of Sellers arising out of the Business, as of the Closing Date as set forth on Schedule 2.1(e) of the Disclosure Schedules, updated on the Net Working Capital Certificate and adjusted in accordance with Section 2.9 (the “Purchased Prepaids”);

(f)     Inventory. all (i) inventories owned by Sellers and used in the operations of or associated with the Business, as of the Closing Date, and (ii) rights to inventories owned by third parties that are consigned to Sellers, to the extent such inventory is consigned pursuant to an Assumed Contract, in each case, including those items set forth on Schedule 2.1(f) of the Disclosure Schedules, updated on the Net Working Capital Certificate and adjusted in accordance with Section 2.9 (the “Purchased Inventory”);

(g)     Contracts. subject to Section 2.10, all of Sellers’ rights as of the Closing Date under all of the Contracts and other instruments specifically identified on Schedule 2.1(g) of the Disclosure Schedules (the “Assumed Contracts”);

(h)     Software. all of the Intellectual Property rights embodied in the software and firmware (including all source code, object code, design documentation and procedures for product generation and testing of all software and firmware) owned by Sellers and used in the operation of or associated with the Business, including those set forth on Schedule 2.1(h) of the Disclosure Schedules, together with all related remedies or infringement and rights to protect interests therein (the “Purchased Software”);

(i)     Real Property Fee Parcels. the real property with the legal descriptions set forth on Schedule 2.1(i) of the Disclosure Schedules and all buildings, fixtures, equipment and improvements, and all components thereof located on or associated therewith (the “Real Property Fee Parcels”);

(j)     Domain Names; Numbers; Website. all of the Internet domain names, Internet and Worldwide Web URLs or addresses or registrations or applications therefor, telephone numbers, facsimile numbers and website content used in the operations of or associated with the Business, including those items identified on Schedule 2.1(j) of the Disclosure Schedules.

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(k)     Trade Secrets. all the inventions, unfiled invention disclosures, improvements, know-how and proprietary processes and formulae, and any tangible embodiments of the foregoing owned by Sellers and used in the operations of or associated with the Business, including those set forth on Schedule 2.1(k) of the Disclosure Schedules (the “Purchased Trade Secrets”);

(l)     Permits. all of the Permits issued in connection with the Business and pending applications thereof but only to the extent assignable by law, including those set forth on Schedule 2.1(l) of the Disclosure Schedules;

(m)     Patents. all patents, patent applications (including provisional patent applications), utility models, design registrations and certificates of invention and other governmental grants for the protection of inventions or industrial designs (including all related continuations, continuations-in-part, divisional, reissue, renewals, reexaminations, and extensions thereof) owned by Sellers and used in the operations of or associated with the Business (the “Patents”), including those identified on Schedule 2.1(m) of the Disclosure Schedules (the “Purchased Patents”);

(n)     Claims. all claims of Sellers against third parties relating to the Purchased Assets, whether choate or inchoate, known or unknown, contingent or noncontingent, including all rights under or pursuant to any warranties, representations and guarantees made by vendors, contractors or other Persons in connection with any products or services provided to Sellers in connection with the Business and insurance benefits, including rights and proceeds therefrom, arising from or related to the Purchased Assets or the Assumed Liabilities prior to the Closing Date;

(o)     Other Assets. all other assets, tangible or intangible, rights, privileges or interests (other than the Excluded Assets) used in the operations of or associated with the Business, including those items set forth in Schedule 2.1(o) of the Disclosure Schedules; including cash in accounts in which are held with respect to Contracts with RSI which will be transferred at Closing to Purchaser;

(p)     Records. all books, records, manuals, files and other documentation, whether written, electronic or otherwise, used or held for use in the Business, including customer records, vendor lists, distributor lists, purchase and sale records, price lists, correspondence, quality control records, research and development files, drawings, blue prints, and designs but to the extent such records are not transferable under Applicable Law, excluding personnel records for Business Employees; provided, however, that Purchaser shall be entitled to make copies of any excluded records as it reasonably believes pertain to the Purchased Assets; and

(q)     Goodwill. all goodwill of the Business or associated with the foregoing Purchased Assets.

Section 2.2.     Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.1, Sellers will not be required to sell or transfer to Purchaser, and the Purchased Assets will not be deemed to include: (a) cash and cash equivalents and investments in stocks, bonds and other securities (except for cash in accounts in which are held with respect to Contracts with RSI which will be transferred at Closing to Purchaser); (b) any Fixed Assets set forth on Schedule 2.2(b) of the Disclosure Schedules; (c) those Contracts that are set forth on Schedule 2.2(e) of the Disclosure Schedules (the “Excluded Contracts”); (d) Seller’s corporate records and minute book; (e) all Financial Statements, tax returns, and other tax records and related information of Sellers (provided Sellers shall provide copies thereof to Purchaser); (f) all insurance policies owned or maintained by Sellers and all rights thereunder; (g) all claims for refund of Taxes and other governmental charges of whatever nature; (h) all rights in connection with and assets of the Benefit Plans; (i) the rights of Sellers under this Agreement and any of the related agreements; and (j) the assets specifically identified on Schedule 2.2(j) of the Disclosure Schedules (collectively, the “Excluded Assets”).

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Section 2.3.     Purchase Price. As consideration for the sale of the Purchased Assets to Purchaser, Purchaser will:

(a)     pay at the Closing to Sellers, by wire transfer of immediately available funds, an amount in cash equal to: (i) Fifty-Five Million and 00/100 Dollars ($55,000,000.00) (subject to post-Closing adjustment as set forth in Section 2.9 below) (the “Closing Cash”); less (ii) the Escrow Amount deposited with the Escrow Agent; and plus or minus, as applicable, (iii) the Estimated Net Working Capital Payment (it being understood that if such difference is a negative number, such amount shall be subtracted and if such amount is a positive number, such amount shall be added);

(b)     issue the Earn Out Shares, if any, as determined by Section 2.5 below; and

(c)     assume at the Closing and agree to pay, perform and discharge on a timely basis the Assumed Liabilities.

Collectively, the aggregate value of the amounts paid or issued, as applicable, in clauses (a) and (b) above (subject to adjustment as set forth in Section 2.9 below), shall be referred to as the “Purchase Price”.

Section 2.4.     Assumed Liabilities.

(a)     Assumed Liabilities. At the Closing, Purchaser shall assume and agree to pay, perform and discharge on a timely basis only the following Liabilities (collectively, the “Assumed Liabilities”):

(i)     all of the Liabilities of Sellers or any Affiliate of Sellers (excluding Liabilities for any breach or default that occurred prior to the Closing) under or relating to the Assumed Contracts;

(ii)     all of the Liabilities of Sellers to the extent of the amount reflected in the calculation of the Net Working Capital;

(iii)     obligations to fulfill customer orders incurred by Sellers in the ordinary course and outstanding as of the Closing Date; and

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(iv)     Purchaser's portion of transfer, sales, use and other non-income Taxes arising in connection with the consummation of the transactions contemplated hereby, as set forth in Section 2.6 below.

(b)     Excluded Liabilities. Except for the Assumed Liabilities, Purchaser shall not assume or be responsible for any Liabilities of Selling Party or any ERISA Affiliate or other Affiliate of any Selling Party (or any predecessor of Sellers or any prior owner of all or part of their businesses and assets) that are not expressly included in the definition of Assumed Liabilities (all such Liabilities not being assumed by Purchaser being herein referred to as the “Excluded Liabilities”). For the avoidance of doubt, the Excluded Liabilities include all Liabilities of any Selling Party, any ERISA Affiliate and their respective Affiliates: (i) for Taxes (except as set forth in Section 2.6, below), (ii) relating to a Contract of Sellers that is not an Assumed Contract, (iii) arising under this Agreement, (iv) under any Assumed Contract that arises after the Closing but that relates to any breach or default that occurred prior to the Closing (provided that to the extent such breach or default has been cured prior to Closing but Sellers have incurred monetary penalties or interest that are included in the calculation of Net Working Capital, such Liabilities shall constitute an Assumed Liability), (v) to the extent arising out of, relating to or otherwise in respect of any Benefit Plan relating to any events arising prior to Closing, (vi) with respect to any accrued bonuses as of the Closing Date of the Business Employees, (vii) relating to the termination of employment of any Business Employee(s) by Sellers in connection with the transactions contemplated by this Agreement, including any severance payments or change of control payments, any obligations under applicable local, state, federal or foreign legal requirements (including the Worker Adjustment and Retraining Notification Act (WARN) and similar Legal Requirements and any applicable business transfer laws and similar Legal Requirements), (viii) except to the extent such current liabilities are included within Net Working Capital, with respect to any accrued bonuses as of the Closing Date or the Leasing Expiration Date, floating holidays, paid time off (PTO), sick leave, or vacation of the Business Employees, (vii) arising out of any Matters pending as of the Closing or that is commenced after the Closing to the extent arising from any occurrence or event happening prior to the Closing, (viii) arising under or in connection with the Excluded Assets, (ix) pursuant to Environmental Laws, including Liabilities arising from or related to (1) the condition or operation of any Real Property prior to the Closing Date, (2) any other properties or facilities owned, operated, occupied and/or otherwise used by Sellers and their respective Affiliates, or (3) the operation of the Business prior to the Closing Date, (x) related to any Excluded Contract, (xi) arising from any Indebtedness of the Sellers, and (xii) relating to any intercompany Liabilities or amounts due to Affiliates, whether current portion or otherwise (provided that to the extent any Liabilities are included in the calculation of Net Working Capital, such Liabilities shall be Assumed Liabilities). Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement.

Section 2.5.     Earn Out Shares.

(a)     As further described in Section 2.5(c), below Sellers collectively shall receive Parent Company Stock valued at the amount, if any, in which (i) the product of (x) nine (9) times (y) the 2014 Adjusted EBITDA of Sellers and Purchaser, collectively, on a combined and consolidated basis exceeds (ii) Fifty Five Million and 00/100 Dollars ($55,000,000.00) (the dollar amount under this Section 2.5(a) shall be referred to as the “Earn Out Amount”), in an amount not to exceed Seven Million (7,000,000) shares of Parent Common Stock.

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(b)     Within ten (10) business days after filing with the Securities and Exchange Commission (“SEC”) its quarterly report on Form 10-Q for the third quarter of its 2015 fiscal year, Purchaser shall prepare and deliver to Sellers' Representative a written report (the “Purchaser’s Adjusted EBITDA Report”) setting forth its final calculation of the 2014 Adjusted EBITDA and the resulting Earn Out Amount, along with supporting documentation and the basis for determining the same, including financial statements for Sellers for the period beginning on January 1, 2014 and ending on December 31, 2014. Purchaser’s Adjusted EBITDA Report shall be prepared in accordance with GAAP. In the event that Sellers object to any of the calculations set forth in the Purchaser’s Adjusted EBITDA Report, Sellers' Representative may, not later than forty-five (45) calendar days after receipt of the Purchaser’s Adjusted EBITDA Report, deliver a report thereon (the “Sellers’ Adjusted EBITDA Report”) to Purchaser prepared by Sellers’ independent accounting firm. During such forty-five (45) day period, Purchaser shall make reasonably available during normal business hours to Sellers’ accounting firm and other agents such documents and information as may be requested by Sellers’ accounting firm and other agents to prepare the Sellers’ Adjusted EBITDA Report. The Sellers’ Adjusted EBITDA Report shall list all of the items included in the Purchaser’s Adjusted EBITDA Report, if any, to which Sellers take exception and its accounting firm’s proposed adjustment and rationale. If Sellers' Representative (i) delivers Sellers' written acceptance of the Purchaser’s Adjusted EBITDA Report, or (ii) fails to deliver to Purchaser the Sellers’ Adjusted EBITDA Report within forty-five (45) calendar days following Sellers’ Representative's receipt of the Purchaser’s Adjusted EBITDA Report, Sellers shall automatically be deemed to have accepted the Purchaser’s Adjusted EBITDA Report for all purposes of this Agreement (and the calculations set forth in Purchaser’s Adjusted EBITDA Report shall be final and binding upon the parties) upon the earlier of the delivery of Sellers’ written acceptance or the expiration of such forty-five (45) calendar day period. If Purchaser and the Sellers' Representative are unable, within forty-five (45) calendar days after receipt of the Sellers’ Adjusted EBITDA Report, to resolve any disputed exceptions, such disputed exceptions will be referred to an Independent Accounting Firm. The Independent Accounting Firm shall, within forty-five (45) days following its selection, deliver to Purchaser and the Sellers' Representative a written report determining its resolution of such disputed exceptions (and only such disputed exceptions) and its determination of the 2014 Adjusted EBITDA and Earn Out Amount based on such resolution, and its determinations will be final and binding upon the parties hereto for all purposes of this Agreement. The fees and disbursements of the Independent Accounting Firm acting under this Section 2.5(b) shall be apportioned between the Sellers and Purchaser based on the total dollar value of disputed exceptions resolved in favor of each such party, with each such party bearing such percentage of the fees and disbursements of the Independent Accounting Firm as the aggregate disputed exceptions resolved against that party bears to the total dollar value of all disputed exceptions considered by the Independent Accounting Firm. The Independent Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by any party or less than the smallest value claimed for such item by either party.

(c)     Within ten (10) business days following the Earn Out Amount becoming final and binding pursuant to Section 2.5(b), and based upon such final determination, Parent Company shall issue to the Sellers the number of shares of Parent Company Stock equal to the lesser of (i) Seven Million (7,000,000) or (ii) the amount determined by dividing (x) the Earn Out Amount, by (y) the Average Parent Stock Price (calculated as of the date the Earn Out Amount becomes final and binding pursuant to Section 2.5(b)) and (z) rounding the result to the nearest share of Parent Common Stock (the “Earn Out Shares”). The Average Parent Stock Price shall be equitably adjusted to reflect appropriately the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Parent Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Parent Common Stock occurring on or after the Effective Date but prior to the date on which the Earn Out Amount becomes final and binding pursuant to Section 2.5(b).

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(d)     Unless Purchaser and Sellers otherwise agree in writing, during the entire period commencing on the Closing Date and ending on December 31, 2014, Konkle and Van der Wiel shall exercise reasonable day-to-day control of the Purchaser’s business operations in a manner consistent with Sellers’ past practices, subject to the reasonable supervision and direction of the Purchaser’s and Parent Company’s board of directors, chief executive officer and chief financial officer. Notwithstanding the foregoing, unless Parent Company’s board of directors, chief executive officer or chief financial officers otherwise consent or direct, Konkle and Van der Wiel (i) shall use commercially reasonable efforts consistent with the Business' historic practice to (A) preserve the business operations of the Business; (B) maintain good relations with the Business Employees and preserve the relationships with Persons having business relationships with the Business; (C) keep and maintain the Purchased Assets in their then-current condition, ordinary wear and tear excepted; (D) keep and maintain the books, accounts and records of the Business in the ordinary course of business; (E) collect accounts receivable in accordance with Section 2.9(h) and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts; (F) comply with all material obligations under the Assumed Contracts and any additional Contracts entered into with respect to the Business between Purchaser and any other Person; (G) comply with applicable material Legal Requirements; and (H) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of any material Intellectual Property or any other Purchased Asset; and (ii) shall not (A) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of Purchaser’s assets (except for the sale of inventory and services in the ordinary course of business), (B) subject to any Lien or otherwise encumber or permit, allow or suffer to encumbered, any of the properties or assets of Purchaser; (C) enter into transactions other than in the ordinary course of business or any material Contract that limits or otherwise restricts in any material respect the conduct of the Business; (D) enter into, modify, renew, or terminate any material Contracts or fail to notify Parent Company’s chief executive officer of the expiration of any material Contracts of Purchaser; (E) cancel or compromise any debt or claim or waive or release any material right of Purchaser; (F) approve or make any new material capital expenditure; (G) make any changes to the compensation or benefits provided to Purchaser’s salaried employees, or any material changes to the compensation or benefits provided to Purchaser’s hourly employees; (H) create, or materially modify or amend any Benefit Plan; (I) initiate, file, threaten, settle, or offer or propose to settle any Matter; (J) change or modify the Business’s historic credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; or (K) agree to do any of the foregoing listed in clauses (ii)(A) through (ii)(J).

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Section 2.6.     Transfer Taxes; Delivery of Assets. Sellers, on the one hand and Purchaser, on the other, shall each bear and pay fifty percent (50%) of any sales taxes, use taxes, transfer taxes, documentary charges, value added taxes, recording fees, filing fees or similar taxes, charges, fees or expenses that may become payable (whether by Sellers or Purchaser) in connection with the sale or purchase of the Purchased Assets from Sellers, the assumption by Purchaser of the Assumed Liabilities or any of the other transactions contemplated by this Agreement (“Transfer Taxes”). The party required by any Legal Requirement to file a tax return with respect to such Transfer Taxes shall do so within the time period prescribed by such Legal Requirement. Purchaser and Sellers shall use commercially reasonable efforts, to the extent permitted by applicable Legal Requirements, to minimize any applicable Transfer Taxes.

Section 2.7.     Allocation of Purchase Price.

(a)     For purposes of complying with the requirements of Section 1060 of the Code and the Treasury Regulations thereunder, the consideration for the Purchased Assets shall be allocated among the Purchased Assets in accordance with their respective fair market values as agreed to and as provided in the allocation schedule (the “Allocation”) to be determined as provided herein and attached as Exhibit B to this Agreement. For the avoidance of doubt, the Allocation shall not apply for purposes of GAAP.

(b)     Each party hereto agrees to prepare its federal, state and foreign income tax returns for all current and future tax reporting periods and file Form 8594 (and corresponding state forms) with respect to the purchase of the Purchased Assets in a manner consistent with the Allocation. If any state, federal or foreign taxing authority challenges the Allocation, the party receiving notice of such challenge shall give the other party prompt written notice of such challenge, and the parties shall cooperate in good faith in responding to it in order to preserve the effectiveness of the Allocation.

Section 2.8.     Closing.

(a)     The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place concurrently with the execution of this Agreement on the date hereof (the “Closing Date”) and shall be effective as of 12:01 a.m. (Eastern Time) on the Closing Date. In lieu of an in-person Closing, the Closing may instead be accomplished by facsimile or email (in PDF format) transmission to the respective offices of legal counsel for the parties of the requisite documents, duly executed where required, delivered upon actual confirmed receipt.

(b)     At the Closing, Sellers shall deliver (or cause to be delivered) to Purchaser, originals or copies, if specified, of the following:

(i)     one or more bills of sale (the “Bill of Sale”), transferring the tangible personal property included in the Purchased Assets to Purchaser;

(ii)     one or more assignment and assumption agreements (the “Assignment and Assumption Agreement”) effecting the assignment to and the assumption by Purchaser of the Purchased Assets and the Assumed Liabilities;

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(iii)     one or more assignments (the “Intellectual Property Assignment”) transferring all of Sellers’ right, title and interest in and to the Purchased Intellectual Property to Purchaser;

(iv)     with respect to each Real Property Lease, an assignment and assumption of lease and consents from relevant landlords thereon in form and substance reasonably acceptable to Purchaser and the applicable Seller;

(v)     the Escrow Agreement;

(vi)     General Warranty Deeds conveying the Real Property Fee Parcels to Purchaser, free and clear of all encumbrances, except the Permitted Liens attributed to the Real Property Fee Parcels;

(vii)     a non-foreign affidavit, properly executed, containing such information as is required by IRC Section 1445(b)(2) and its regulations with regard to the Real Property Fee Parcels;

(viii)     certificates of good standing (or similar certificates) for each Seller, dated not more than ten (10) calendar days prior to the Closing Date, issued by the Secretary of State of the state of each respective Seller’s formation;

(ix)     all instruments and documents necessary to release any and all Liens (other than Permitted Liens) on the Purchased Assets;

(x)     the Consents set forth in Schedule 3.13(a) of the Disclosure Schedules;

(xi)     employment agreements for Konkle and Van der Wiel; and

(xii)     an Indemnity and Contribution Agreement by and among Langsenkamp and the Minority Members;

(xiii)     a Registration Rights Agreement, in the form attached hereto as Exhibit C (the “Registration Rights Agreement”), executed by each of the Selling Parties; and

(xiv)     an Employee Leasing Agreement (the “Leasing Agreement”) executed by each Seller.

(c)     Sellers’ Representative has delivered to Purchaser a certificate setting forth the estimated Net Working Capital as of the Closing Date (the “Net Working Capital Certificate”).

(d)     At the Closing, Purchaser shall deliver (or cause to be delivered) the following agreements, documents and other items:

(i)     to the Sellers, the Closing Cash.

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(ii)     the Leasing Agreement, executed by Purchaser.

(iii)     to the Escrow Agent, the Escrow Amount.

(iv)     to the Sellers’ Representative, a signed counterpart to each Assignment and Assumption Agreement(s);

(v)     to the Sellers’ Representative, a signed counterpart to each Intellectual Property Assignment(s);

(vi)     to the Sellers’ Representative, a signed counterpart to each assignment and assumption of any Real Property Lease;

(vii)     to the Sellers’ Representative, a counterpart to the Escrow Agreement signed by Purchaser and the Escrow Agent;

(viii)     to the Sellers’ Representative, certificates of good standing (or similar certificates) for the Purchaser and the Parent Company, dated not more than ten (10) calendar days prior to the Closing Date, issued by the Secretary of State of Minnesota;

(ix)     the Registration Rights Agreement, executed by Parent Company; and

(x)     to Konkle and Van der Wiel, signed counterparts of their respective employment agreements.

(e)     As a condition to each party’s obligation to close the transaction contemplated hereby, Parent Company shall have received an opinion from an investment bank that Parent Company has reasonably determined to be reputable that the Purchase Price is fair to Parent Company from a financial point of view, based upon the assumptions and qualifications contained therein.

Section 2.9.     Working Capital Adjustment.

(a)     Not more than ninety (90) days following the Closing Date, Purchaser shall deliver to Sellers’ Representative a statement of the actual Net Working Capital (the “Net Working Capital Statement”) determined as of the Closing Date along with a list of the Delinquent Receivables. During such ninety (90) day period, Purchaser and its Representatives shall be given all such access as they may reasonably require during Sellers’ normal business hours (or such other times as the parties hereto may agree) and upon reasonable advance notice, to those work papers, books and records of Sellers and access to such personnel or Representatives of Sellers as they may reasonably require for the purposes of preparing the Net Working Capital Statement and the list of Delinquent Receivables. The Net Working Capital Statement shall be prepared in the manner and consistent with the basis, including the basis of calculation of individual line items and the determination of allowances and reserves, used to prepare Exhibit A and in a manner that fairly and accurately reflects the current assets and current liabilities included in the Purchased Assets and Assumed Liabilities, respectively, as of the Closing Date.

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(b)     Following the delivery by Purchaser of the Net Working Capital Statement and the list of Delinquent Receivables, Sellers' Representative and his Representatives shall be given all such access as they may reasonably require during Purchaser’s normal business hours (or such other times as the parties may agree) and upon reasonable advance notice to those books and records of Purchaser and access to such personnel or Representatives of Purchaser they may reasonably require for the purposes of resolving any disputes or responding to any matters or inquiries raised concerning the Net Working Capital Statement, the calculation of the Net Working Capital, or the list of Delinquent Receivables as proposed by Purchaser.

(c)     Sellers' Representative shall have sixty (60) days following the date of delivery of the Net Working Capital Statement and the list of Delinquent Receivables to provide Purchaser with a written certificate confirming that the Net Working Capital and the list of Delinquent Receivables as proposed by Purchaser is acceptable (the “Confirmation Certificate”) or notifying Purchaser in writing of any good faith objections to the calculation of the Net Working Capital or the list of Delinquent Receivables as proposed by Purchaser (a “Dispute Notice”) setting forth a reasonably specific and detailed description of such objections. If a Confirmation Certificate is delivered by Sellers' Representative pursuant to this Section 2.9(c), the Net Working Capital and the list of Delinquent Receivables proposed by Purchaser shall be binding on the parties hereto.

(d)     If Sellers' Representative objects to the Net Working Capital Statement, the list of Delinquent Receivables, or Purchaser’s calculation of the Net Working Capital as reflected in a Dispute Notice, Sellers' Representative, on the one hand, and Purchaser, on the other, shall attempt in good faith to resolve any such objection within thirty (30) days of the receipt by Purchaser of such Dispute Notice.

(e)     If Purchaser and Sellers' Representative are unable to resolve any such dispute within such thirty (30) day period, Purchaser and Sellers' Representative (either together or separately) shall be entitled to submit the dispute to an Independent Accounting Firm. Each of the parties hereto shall, and shall cause their respective Representatives to, provide full cooperation to the Independent Accounting Firm. The Independent Accounting Firm shall (i) consider only those matters as to which there is a dispute between the parties hereto, and (ii) be instructed to reach its conclusions regarding any such dispute within thirty (30) days after its appointment and provide a written explanation of its decision. In the event that Purchaser and Sellers' Representative shall submit any dispute to an Independent Accounting Firm, each such party may submit a “position paper” to the Independent Accounting Firm setting forth the position of such party with respect to such dispute, to be considered by such Independent Accounting Firm as it deems fit. The fees and disbursements of the Independent Accounting Firm acting under this Section 2.9(e) shall be apportioned between Sellers and Purchaser based on the total dollar value of disputed exceptions resolved in favor of each such party, with each such party bearing such percentage of the fees and disbursements of the Independent Accounting Firm as the aggregate disputed exceptions resolved against that party bears to the total dollar value of all disputed exceptions considered by the Independent Accounting Firm. The Independent Accounting Firm’s determination of Net Working Capital shall not be less than the amount proposed by Purchaser in the Net Working Capital Statement nor shall it be greater than the amount proposed by Sellers' Representative in the Dispute Notice.

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(f)     If Sellers' Representative does not deliver a Dispute Notice in accordance with the procedures set forth in Section 2.9(c) above (i.e., within the sixty (60) day period specified therein), the Net Working Capital Statement (together with the list of Delinquent Receivables and Purchaser’s calculation of the Net Working Capital) shall be deemed to have been accepted by the parties hereto and such calculation of the Net Working Capital and such list of Delinquent Receivables shall be binding. In the event that Sellers' Representative delivers a Dispute Notice in accordance with the provisions above and Purchaser and Sellers' Representative are able to resolve such dispute by mutual agreement, the Net Working Capital Statement, together with the list of Delinquent Receivables and calculation of the Net Working Capital, as modified by the mutual agreement of parties hereto, shall be deemed to have been accepted by the parties and such revised calculation of the Net Working Capital and the list of Delinquent Receivables shall be binding on the parties for all purposes hereof. In the event that Sellers' Representative delivers a Dispute Notice in accordance with the provisions set forth above and Purchaser and the Sellers' Representative are unable to resolve such dispute by mutual agreement, the determination of the Independent Accounting Firm shall be final and binding on the parties hereto, and the Net Working Capital Statement, together with the list of Delinquent Receivables and calculation of the Net Working Capital, as modified by the report of the Independent Accounting Firm, shall be deemed to have been accepted by the parties hereto and such revised calculation of the Net Working Capital and list of Delinquent Receivables shall be final and binding on the parties for all purposes hereof.

(g)     Within five (5) business days after the determination of the actual Net Working Capital becomes final and binding, either:

(i)     if the actual Net Working Capital is greater than the estimated Net Working Capital that was set forth on the Net Working Capital Certificate, Purchaser shall pay an amount equal to the difference to Sellers; or

(ii)     if the actual Net Working Capital is less than the estimated Net Working Capital that was set forth on the Net Working Capital Certificate, Sellers, on a several basis, shall pay an amount equal to the difference to Purchaser.

(h)     Between the Closing Date and the date that is one hundred eighty (180) days after the Closing Date, Purchaser shall, consistent with the Sellers' historical practices use commercially reasonable efforts to attempt to collect all of the Purchased Receivables. Amounts received by Purchaser (or any Seller) from any customer of a Seller shall in all cases be allocated as follows: first, if the payment specifically references an invoice, to that invoice, second, if the amount of the payment matches up with the amount of a given invoice, to that invoice, and third, to the oldest outstanding invoice from such customer. Unless otherwise approved by Konkle or Van der Wiel or unless Parent Company’s chief executive officer or chief financial officer otherwise directs in the exercise of their reasonable business judgment, during the one hundred eighty-day period beginning with the Closing, no Representative of Purchaser or Parent Company other than Konkle and Van der Wiel shall contact any customer of Seller regarding the Purchased Receivables. In the event that as of the 90th day after the Closing Date there are Delinquent Receivables, after considering the allocation herein, the amounts received from Delinquent Receivables collected after the 90th day after the Closing Date but on or before the 180th day after the Closing Date shall be remitted to Sellers in cash before the 195th day after the Closing Date. Proceeds from any remaining Delinquent Receivables outstanding may be retained by Purchaser.

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Section 2.10.     Prorations. All Taxes, assessments, utilities, insurance, rents and water charges for any leased premises that is the subject of an Assumed Contract and the Real Property Fee Parcels (excluding any past due charges, late charges and/or penalties) will be prorated as of the Closing Date between Purchaser and Sellers at Closing. At Closing, Purchaser will pay and reimburse Sellers for the total amount of all prepaid rents, security deposits (and any accrued interest), any other prepaid occupancy expenses and any other prepaid expenses related to the Purchased Assets or Assumed Liabilities paid by Sellers on or before the Closing in connection with any period after the Closing. Following Closing, Sellers will reimburse Purchaser for the total amount of any occupancy expenses charged to the Purchaser after Closing by landlords of any leased premises that is the subject of an Assumed Contract that relate to any period prior to the Closing, such as annual reconciliations for common area maintenance charges and real estate taxes.

Section 2.11.     Escrow Amount.

(a)     At Closing, Purchaser shall deposit Four Million Four Hundred Thousand and 00/100 Dollars ($4,400,000.00) of the Closing Cash (the “Escrow Amount”) into escrow pursuant to the Escrow Agreement. Wilmington Trust, N.A., as the escrow agent (the “Escrow Agent”), shall hold the Escrow Amount and all interest and other amounts earned thereon in an escrow account (the “Escrow Account”) for purposes of securing any amounts payable by the Selling Parties on account of any and all indemnification obligations under Section 6.1 hereof and certain other amounts payable hereunder in accordance with this Agreement and the Escrow Agreement among Sellers, Purchaser and Escrow Agent (the “Escrow Agreement”).

(b)     Within three (3) business days following the twelve (12) month anniversary of the Closing Date (the “Initial Release Date”), a portion of the Escrow Amount equal to Two Million Nine Hundred Thirty Three Thousand Three Hundred Thirty Three and 33/100 Dollars ($2,933,333.33), minus (x) the amount of any Damages previously offset against the Escrow Amount pursuant to the Escrow Agreement and Section 6.5, minus (y) the amount of any costs and expenses previously paid out of the Escrow Account in accordance with this Agreement, and minus (z) the amount of any indemnity claims asserted by the Purchaser Indemnified Parties in good faith pursuant to Section 6.1 prior to the Initial Release Date and which remain in dispute as of the Initial Release Date (any amount described in clause (z) of this sentence, an “Initial Unresolved Amount”), shall be released from the Escrow Account and paid over to the Sellers by confirmed wire transfer of immediately available funds, with the costs of such disbursement paid from the Escrow Account. In the event it is finally determined, in accordance with Article VI, that any Initial Unresolved Amount withheld from release pursuant to the preceding sentence is not subject to indemnification by the Selling Parties under Section 6.1, such amount shall be released from the Escrow Account and paid over to the Sellers, by confirmed wire transfer of immediately available funds, within three (3) business days following such determination. All remaining portions of the Escrow Amount (except for the amount of any indemnity claims asserted by the Purchaser Indemnified Parties in good faith pursuant to Section 6.1 prior to the Final Release Date and which remain in dispute (a “Continuing Unresolved Amount”)) and any interest accrued thereon shall be released from the Escrow Account and paid over to the Sellers, by confirmed wire transfer of immediately available funds, on the date that is eighteen (18) months following the Closing Date (the “Final Release Date”). Any Continuing Unresolved Amount withheld from release after the Final Release Date and finally determined not to be subject to indemnification by the Selling Parties in accordance with this Agreement, shall be released to the Sellers by confirmed wire transfer of immediately available funds within three (3) business days following such determination.

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(c)     Purchaser, on one hand, and the Sellers, on the other hand, shall each pay fifty percent (50%) of the fees, expenses and costs associated with establishing and maintaining the Escrow Account in accordance with this Agreement and the Escrow Agreement, provided that the costs of disbursements shall paid from the Escrow Account.

(d)     Purchaser and the Sellers agree to promptly provide the Escrow Agent with jointly-executed written instructions to disburse or retain the Escrow Amount (or a portion thereof, as applicable) from the Escrow Account in accordance with this Agreement and the Escrow Agreement.

ARTICLE III.     
REPRESENTATIONS AND WARRANTIES OF THE SELLING PARTIES

Each Selling Party, on a joint and several basis (except with respect to Sections 3.12(b)-(d), which are made on a several, but not joint and several basis), represents and warrants to Purchaser, except as set forth in the Disclosure Schedules, as follows:

Section 3.1.     Organization and Good Standing. Each Seller is a limited liability company duly organized, validly existing and in good standing under the laws of its state of organization and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now conducted. Each Seller is duly qualified or authorized to do business as a foreign limited liability company and is in good standing under the laws of each jurisdiction in which it owns or leases real property and each other jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification or authorization, except where the failure to be so qualified or authorized would not reasonably be expected to have a Material Adverse Effect. Sellers have delivered to Purchaser true, complete and correct copies of each of its certificates/articles of incorporation and by-laws or comparable organizational documents as in effect on the date hereof.

Section 3.2.     Title to Assets.

(a)     Sellers have good, marketable and valid title to the Purchased Assets, free and clear of any security interest, mortgage, pledge, lien (including liens under any mortgage or deed of trust, mechanic’s or materialmen’s liens and judgment liens), option, debt, charge, encumbrance, covenant or restriction of any kind or character (collectively, “Liens”), except for (a) any Lien for current Taxes not yet due and payable, (b) liens and encumbrances arising under the Assumed Contracts, (c) minor liens and encumbrances that have arisen in the ordinary course of business and that do not materially, individually or in the aggregate, detract from the value of the Purchased Assets subject thereto and which do not secure the payment of any amounts owed, (d) easements or rights of way set forth on Schedule 3.3(a) of the Disclosure Schedules, zoning ordinances and other similar encumbrances affecting the Real Property Fee Parcels, or (e) any Lien under the Transaction Documents ((a) – (e) collectively, the “Permitted Liens”).

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(b)     The Purchased Assets constitute substantially all of the properties, assets and leasehold estates, real, personal and mixed, tangible and intangible, comprising or used in the operation of or associated with the Business and are sufficient for Purchaser to conduct the Business from and after the Closing Date without interruption and in the ordinary course of business, as it has been conducted by Sellers, except for the Excluded Assets.

Section 3.3.     Accounts Receivable; Prepaid Amounts.

(a)     All of the Purchased Receivables represent valid obligations of customers of Sellers or their respective Affiliates arising in the ordinary course of business and in connection with bona fide transactions and are payable on ordinary terms. The Purchased Receivables arose in the ordinary course of business, consistent with past practices and represented bona fide claims against obligors for sales and other charges. None of the Purchased Receivables are subject to any claim of offset, recoupment, setoff or counter claim, other than agreements relating to a right of return, price protection, post-audits, marketing development funds, freight & handling, shortages, goods and services taxes (GST) and other taxes, defective allowances, volume incentive rebates, terms discounts, destroyed-in-field credits, compliance charges and other charges and setoffs given in the ordinary course of the Business. None of the Purchased Receivables are subject to prior assignment.

(b)     The Purchased Prepaids represent advance payments in respect of expenses that could reasonably be expected to be incurred in connection with the Business. The Purchased Prepaids have been paid to a Person with whom Sellers or their respective Affiliates deals at arm’s length. The Purchased Prepaids arose in the ordinary course of business, consistent with past practices, represented bona fide claims against Sellers’ counterparties.

Section 3.4.     Intellectual Property.

(a)     There are no third party joint owners of any Purchased Intellectual Property and Sellers are the sole and exclusive owners of all Purchased Intellectual Property, free and clear of any Liens other than Permitted Liens. Each item of Purchased Intellectual Property and Third Party Intellectual Property will be owned or available for use by Purchaser immediately following the Closing on substantially identical terms and conditions as it was immediately prior to the Closing. The Purchased Intellectual Property and the Third Party Licensed Intellectual Property constitutes all Intellectual Property necessary to conduct the business of Sellers, taken as a whole, as currently conducted in all respects.

(b)     Schedule 3.4(b) of the Disclosure Schedules sets forth each item of Registered Intellectual Property that is included in the Purchased Intellectual Property, the jurisdiction in which such item of Registered Intellectual Property has been registered or filed and the applicable registration or serial number title, date of filing or issuance, names of all current applicant(s) and registered owner(s); provided, however, that domain names alone will be listed without accompanying disclosures. All assignments of Purchased Intellectual Property to Sellers have been properly executed and recorded. All issuance, renewal, maintenance and other payments that are or have become due with respect to Registered Intellectual Property have been timely paid by or on behalf of Sellers.

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(c)     Sellers have received no notice of nor are there currently any inventorship challenges, interference, opposition or nullity proceedings, reissue, reexamination or other similar proceeding declared, commenced or provoked with respect to any Purchased Intellectual Property, or threatened (excluding, for the avoidance of doubt, office actions issued by Governmental Authority with respect to applications for Purchased Intellectual Property). Sellers have complied with their duty of candor and disclosure to the United States Patent and Trademark Office and any relevant foreign patent office with respect to all Purchased Patents filed by or on behalf of Sellers and have made no material misrepresentation in such applications.

(d)     Sellers have protected the secrecy, confidentiality and value of the Purchased Trade Secrets. No unauthorized disclosure of any Purchased Trade Secret, including any portion of the source code of any Seller Business Software, has been delivered or disclosed to any third party escrow agent or any other Person who is not a Representative or contractor of Sellers or their respective Affiliates.

(e)     Sellers have taken commercially reasonable measures to (i) police the use of the Purchased Marks and (ii) enforce adequate quality control measures to ensure that no Purchased Marks that they have licensed to Third Parties have been abandoned.

(f)     Neither the conduct of the Business, nor the sale or use of any product, service or the Purchased Intellectual Property as conducted by Sellers has infringed or misappropriated, and do not currently infringe or misappropriate any Intellectual Property rights of any Third Party. There is no action, suit, arbitration, proceeding, claim or investigation pending or threatened against Sellers including before any Governmental Authority or arbitrator that (i) alleges that the Purchased Intellectual Property or the conduct of Sellers infringes or misappropriates the Intellectual Property of any Third Party, or (ii) challenges the validity or enforceability of any Purchased Intellectual Property, other than routine office actions of a Governmental Authority in connection with the registration, maintenance or renewal of any Registered Intellectual Property. Each item of Purchased Intellectual Property is valid and enforceable.

(g)     No person or entity (including any current or former employee or consultant of Sellers) is infringing, violating or misappropriating any of the Purchased Intellectual Property. Sellers have made available to Purchaser copies of all correspondence, complaints, claims, notices or threats concerning the infringement, violation or misappropriation of any Purchased Intellectual Property sent by Sellers to any Third Party since May 1, 2008.

(h)     Sellers maintain machine-readable copies of all Purchased Software that conforms to the corresponding source code listing in all material respects. Seller Business Software currently being sold meets, in all material respects, the specifications and feature descriptions set forth in current written specifications provided by Sellers on any product packaging, Sellers’ website, product manual and/or in any user guide (collectively, the “Specifications”). The Seller Business Software (excluding Software under development) functions, repeatedly, without interruption, loss of data or erroneously or improperly formatted output in substantial conformance with the Specifications. There are no pending or threatened claims that any Purchased Software fails to comply with any applicable warranty contained in the Assumed Contracts relating to the use, functionality or performance of such product.

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(i)     Except as disclosed in Schedule 3.4(i) of the Disclosure Schedules, each Person who is or was an employee or independent contractor of a Seller and who is or was involved in the creation or development of any Purchased Intellectual Property (to the extent developed by Seller) has executed and delivered a valid and enforceable written agreement containing an irrevocable (subject to the limitations of any Legal Requirements) assignment of all right, title and interest in any inventions, discoveries, improvements thereof, works of authorship, whether or not patentable, invented, created, developed, authored, conceived or reduced to practice during the term of such Person’s employment and all Intellectual Property rights therein. All of the agreements referenced in the preceding sentence will continue to be in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing.

(j)     Schedule 3.4(j) of the Disclosure Schedules identifies all material Open Source Software that is incorporated in any of the Purchased Intellectual Property that are being used or maintained by Sellers as of the date of this Agreement. Except as set forth on Schedule 3.4(j) of the Disclosure Schedules, Sellers have not (i) incorporated Open Source Software into, or combined Seller Business Software with, such versions of the Open Source Software, or (ii) used Seller Business Software in such a way that, with respect to clause (i) or (ii), creates material obligations for Sellers with respect to any Open Source Software or grants to any Third Party any current or contingent rights or immunities under any Purchased Intellectual Property (including using any Open Source Software that require, as a condition of use, modification or distribution of such Open Source Software that other software incorporated into, derived from or distributed with such Open Source Software be (1) disclosed or distributed in source code form, (2) be licensed for the purpose of making derivative works, or (3) be redistributable at no charge). Sellers are not in breach of any of the material terms or conditions of any license to any Open Source Software.

(k)     Schedule 3.4(k) of the Disclosure Schedules sets forth a complete list of all software (including object code and/or source code) that is incorporated in the Purchased Software and is not solely owned by Sellers.

(l)     The Purchased Software does not contain any disabling device, virus, worm, back door, Trojan horse or other disruptive or malicious code that may or are intended to materially impair their intended performance or otherwise permit unauthorized access to, hamper, delete or damage any computer system, software, network or data.

(m)     Schedule 3.4(m) of the Disclosure Schedules identifies each material license, covenant or other agreement pursuant to which Sellers have assigned, transferred, licensed, distributed or otherwise granted any right or access to any person or entity, or covenanted not to assert any right, with respect to any past existing or future Purchased Intellectual Property, other than Outbound License Agreements. Sellers have not agreed to indemnify any person or entity against any infringement, violation or misappropriation of any Intellectual Property rights with respect to any products or services offered by Sellers or any Third Party Intellectual Property rights other than indemnification obligations of Sellers pursuant to Outbound License Agreements.

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Section 3.5.     Material Contracts.

(a)     Section 3.5(a) of the Disclosure Schedules lists each of the following Contracts (x) by which any of the Purchased Assets are bound or affected or (y) to which a Seller is a party or by which it is bound in connection with the Business or the Purchased Assets (together with all Leases listed in Schedule 2.1(g) of the Disclosure Schedules and all Intellectual Property Licenses listed in Schedule 2.1(g) of the Disclosure Schedules, collectively, the “Material Contracts”):

(i)     all Contracts involving consideration for the trailing twelve month period ending on July 31, 2014 in excess of $100,000, which cannot be cancelled without penalty or without more than 60 days' notice;

(ii)     all Contracts that relate to the sale of any of the Purchased Assets, other than in the ordinary course of business, for consideration for the trailing twelve month period ending on July 31, 2014 in excess of $100,000;

(iii)     all Contracts that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);

(iv)     except for agreements relating to trade receivables, all Contracts relating to indebtedness (including, without limitation, guarantees);

(v)     all Contracts between or among any of the Sellers on the one hand and any Affiliate of such Seller on the other hand;

(vi)     all collective bargaining agreements or Contracts with any labor organization, union or association.

(b)     Sellers have made available to Purchaser true and complete copies of each Material Contract. Each Material Contract constitutes the valid and legally binding obligation of Sellers and of the other parties thereto, and is enforceable in accordance with its terms. Each Material Contract constitutes the entire agreement of the respective parties thereto relating to the subject matter thereof. All material obligations required to be performed under the terms of the Material Contracts by the Closing Date will have been performed.

Except as set forth in Schedule 3.5(b) of the Disclosure Schedule, there exists no default or event of default or event, occurrence, condition or act, with respect to Sellers or which, with the giving of notice or the lapse of time (or both), or the consummation of the transactions contemplated by the Transaction Documents, would constitute (i) a breach, default or event of default under any Assumed Contract, or (ii) give any Third Party (A) the right to declare a material breach or default or exercise any material remedy under any Assumed Contract, (B) the right to any rebate, chargeback, refund, credit, penalty or change in delivery schedule under any Assumed Contract in excess of $100,000.00 individually or in the aggregate, (C) the right to accelerate the maturity or performance of any obligation of Sellers under any Assumed Contract, (D) the right to cancel, terminate or modify any Assumed Contract, or (E) the right to an ownership interest in the Business Intellectual Property. To Sellers’ knowledge, no other party to any Assumed Contract is in breach of, violation of, or in default under the terms of any such Assumed Contract. The Assumed Contracts and the Excluded Contracts, collectively, constitute all of the Contracts, or which are necessary or useful for the current use and operation, of the Business.

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(c)     Except as set forth in Schedule 3.5(c) of the Disclosure Schedule, Sellers have not received any notice regarding any actual or possible violation or breach or default under, or intention to cancel or modify any Assumed Contract.

Section 3.6.     Title; Equipment; Condition of Fixed Assets.

(a)     Except as set forth on Section 3.6(a) of the Disclosure Schedules, Sellers have good and marketable title to all of the items of personal property used in the Business by Sellers, free and clear of all Liens, other than Permitted Liens. Except as set forth on Section 3.6(a) of the Disclosure Schedules, Sellers hold good and transferable interests in all such personal property that is physically located at the places of Business and is owned outright by Sellers or their respective Affiliates.

(b)     Section 3.6(b) of the Disclosure Schedules sets forth all leases of personal property (“Personal Property Leases”) relating to the property used by Sellers in the Business or to which Sellers are a party or by which the properties or assets of Sellers are bound. All of the items of personal property under the Personal Property Leases are in all material respects in the condition required of such property by the terms of the lease applicable thereto during the term of the lease. Sellers have delivered to the Purchaser true, correct and complete copies of the Personal Property Leases, together with all amendments, modifications or supplements thereto.

(c)     No Seller is in material breach of, or material default under, any Personal Property Lease. Each of the Personal Property Leases is in full force and effect and Sellers have not received or given any written notice of any default or event that with notice or lapse of time, or both, would constitute a material default by Sellers under any of the Personal Property Leases, and to Sellers’ knowledge, no other party is in material default thereof, and no party to the Personal Property Leases has exercised any termination rights with respect thereto.

(d)     All items of personal property included in the Purchased Fixed Assets are in reasonably good operating condition and repair, ordinary wear and tear excepted.

Section 3.7.     Compliance with Legal Requirements. Sellers are in material compliance with all material Legal Requirements relating to the use of the Purchased Assets or applicable to their respective operations of the Business. Since January 1, 2011, Sellers have not received any written notice from any Governmental Authority alleging any failure to comply with any Legal Requirement relating to the use of the Purchased Assets or applicable to their respective operations of the Business. Sellers are not, to their knowledge, under investigation by a Governmental Authority with respect to any violation of any Legal Requirement relating to the Purchased Assets or the Business.

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Section 3.8.     Employee Matters.

(a)     Schedule 3.8(a) of the Disclosure Schedules specifies, with respect to each of the Business Employees listed on Schedule 5.5(a), (a) the base salary and bonus opportunity of such employee as of the date of this Agreement, (b) the original date of employment of such employee, (c) the position held by such employee as of the date of this Agreement, and (d) whether such employee is not available to perform work as of the date of this Agreement because of disability or other leave, and if so, specifying the nature of the disability or leave and the date such employee is expected to be available to perform work. Sellers have made available to Purchaser (except to the extent prohibited under applicable Legal Requirements) accurate copies of all employment agreements as well as policies with respect to severance payments, change in control payments and other contractual obligations or obligations under Sellers’ Benefit Plans.

(b)     Since January 1, 2011, Sellers have complied, and are currently in compliance, in all material respects with all applicable Legal Requirements relating to employment or labor, including all applicable Legal Requirements relating to wages, hours, collective bargaining, employment discrimination, civil rights, leave, safety and health, workers’ compensation, pay equity, classification of employees and/or independent contractors, and the withholding, collection and payment of social security and other employment-related Taxes. Sellers have not, within the three years prior to the date of this Agreement, taken any action that alone or combined with any other action of Sellers, could reasonably be construed as a “plant closing” or “mass layoff” within the meaning of WARN (or any similar applicable state or local plant closing or mass layoff law), and Schedule 3.8(b) of the Disclosure Schedule identifies all Business Employees who experienced an “employment loss” within the meaning of WARN (or any similar applicable state or local plant closing or mass layoff law) within the ninety (90) days prior to the date of this Agreement.

(c)     No collective bargaining agreement or other labor union contract currently applies, or since January 1, 2011 has applied, to any of the Business Employees, and, to Sellers’ knowledge, since January 1, 2011 there have been, and there currently are, no organizational campaigns, petitions or other unionization activities seeking recognition of a collective bargaining unit that could affect Business Employees. Since January 1, 2011, there has been no, and there currently is no, pending or, to Sellers’ knowledge, threatened, labor strike, dispute, walkout, work stoppage, unfair labor practice allegation, slow-down or lockout involving or affecting any Business Employees.

(d)     As of the date of this Agreement there are no material disputes, claims, controversies, audits, suits or investigations, whether internal or external, pending or, to the knowledge of Sellers, threatened against Sellers involving the Business Employees.

Section 3.9.     Employee Benefits.

(a)     Section 3.9(a) of the Disclosure Schedules lists each Benefit Plan maintained or contributed to for the benefit of the Business Employees or any Seller.

(b)     None of the Benefit Plans are, and no Seller or ERISA Affiliate has ever contributed to or had any obligation to contribute to for the benefit of Business Employees or any former employee of the Business: (i) a plan subject to Title IV of ERISA or Section 412 of the Code; (ii) a “multiemployer plan” (within the meaning of Section 3(37) of ERISA); (iii) a plan that provides welfare benefits that continue after retirement or other termination of employment (excluding benefits which continue only to the extent required by COBRA); or (iv) except as set forth on Schedule 3.9(b) of the Disclosure Schedule, a pension, retirement or supplementary retirement plan, program, agreement or arrangement or superannuation of retirement savings arrangement, including pension plans or supplemental pensions, and there has been no communication to any Person that could reasonably be expected to promise or guarantee any such benefits.

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(c)     Each Benefit Plan has been maintained in all material respects in accordance with its terms and the requirements of ERISA and the Code, and Sellers, the Sellers or any ERISA Affiliates have performed the material obligations required to be performed by them under any Benefit Plan and are not in any material respect in default under or in violation of any such Benefit Plan.

(d)     Following the Closing, neither the Purchaser nor any of its Affiliates shall have any Liabilities with respect to any Benefit Plan, except as otherwise provided in Section 5.7, regarding certain COBRA obligations.

Section 3.10.     Certain Liabilities. As of the date of this Agreement, Sellers have no Liabilities relating to the Purchased Assets or the Business Employees other than (a) Liabilities incurred in the ordinary course of business and consistent with past practices incurred since January 1, 2014, (b) Liabilities set forth on Schedule 3.10 of the Disclosure Schedules, (c) Liabilities set forth in the Financial Statements, and (d) Liabilities that would not be required to be disclosed on a balance sheet prepared in accordance with GAAP.

Section 3.11.     Legal Proceedings. Except as disclosed on Schedule 3.11 of the Disclosure Schedules, (a) there is no Matter pending or, to Sellers’ knowledge, threatened against any Seller or its Affiliates as of the date of this Agreement, or to which Sellers are otherwise a party; (b) there is no Matter pending or, to Sellers’ knowledge, being threatened against Sellers that challenges or could reasonably be expected to effect, prevent, delay or make illegal any of the transactions contemplated by this Agreement or the Transaction Documents or reasonably be expected to result in a Material Adverse Effect; (c) Sellers are not subject to any Order, and Sellers are not in breach of any Order; (d) Sellers are not engaged in any legal action to recover monies due it or for Damages sustained by it; and (e) to Sellers’ knowledge, no investigation is threatened by any Governmental Authority in respect of the Business or the Purchased Assets.

Section 3.12.     Authority; Binding Nature of Agreement.

(a)     Each Seller has all necessary company power, authority and legal capacity to execute and deliver this Agreement and the Transaction Documents to which it is a party and to perform its respective obligations under this Agreement and the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby; and the execution, delivery and performance by such Seller of this Agreement and the Transaction Documents have been duly authorized by all necessary action on the part of such Sellers and their respective boards of directors or members and managers, as applicable. This Agreement has been, and each Transaction Document will be at or prior to Closing duly and validly executed and delivered by each Seller which is a party thereto and his Agreement constitutes, and, upon execution thereof, each of the Transaction Documents to which a Seller is a party will constitute, the valid and binding obligation of such Seller, enforceable against such party in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.

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(b)     Each Member has all necessary authority and legal capacity to execute and deliver this Agreement and the Transaction Documents to which it is a party and to perform its respective obligations under this Agreement and the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby; and the execution, delivery and performance by such Member of this Agreement and the to which it is a party have been duly authorized by all necessary action on the part of such Member. This Agreement has been, and each Transaction Document to which it is a party will be at or prior to Closing duly and validly executed and delivered by each Member which is a party thereto and his Agreement constitutes, and, upon execution thereof, each of the Transaction Documents to which a Member is a party will constitute, the valid and binding obligation of such Member, enforceable against such party in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.

(c)     Except as set forth on Schedule 3.12(c) of the Disclosure Schedules, each Selling Party being issued any Earn Out Shares, whether directly by Parent Company or indirectly following a distribution by a Seller (each, a “Recipient”) is an “accredited investor” within the meaning of SEC Rule 501 of Regulation D, as presently in effect, under the Securities Act. Such Recipient is acquiring the Earn Out Shares for investment for such Recipient’s own account, not as a nominee or agent, and not with the view to, or for resale in connection with, any distribution thereof. Such Recipient further represents that it does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to any third person with respect to any of the Earn Out Shares. Such Recipient acknowledges that the Earn Out Shares must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is available. Such Recipient is aware of the provisions of Rule 144 promulgated under the Securities Act which permit limited resale of shares subject to the satisfaction of certain conditions. Such Recipient has such knowledge and experience in financial and business matters so that Recipient is capable of evaluating the merits and risks of its investment in the Parent Company. Such Recipient has had an opportunity to ask questions of, and receive answers from, the officers of the Parent Company concerning the Parent Company’s business, management and financial affairs, which questions were answered to such Person’s complete and total satisfaction. Such Recipient has received all the information it considers necessary or appropriate for deciding whether to acquire the Earn Out Shares. Except as set forth herein, such Recipient is not relying on any statements or representations of the Parent Company or its agents for legal advice with respect to the acquisition of Earn Out Shares.

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(d)     Each Recipient acknowledges that, to the extent applicable, each certificate evidencing the Earn Out Shares shall be endorsed with the legends substantially in the form set forth below, as well as any additional legend imposed or required by the Parent Company’s Bylaws or applicable state securities laws:

THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SUCH ACT, OR UNLESS SPEED COMMERCE, INC. HAS RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE, SATISFACTORY TO ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.

Section 3.13.     Non-Contravention; Required Consents.

(a)     Except as set forth on Schedule 3.13(a) of the Disclosure Schedules, the execution and delivery by Sellers of this Agreement and the Transaction Documents, the consummation of the transactions contemplated hereby and thereby, or compliance by Sellers with any of the provisions hereof or thereof will not (i) result in any violation or breach of any provision of the articles of incorporation or organization, bylaws, operating agreement or other charter or organizational documents of any Seller, (ii) result in a violation or breach of any provision of any Legal Requirement applicable to Sellers, the Business or the Purchased Assets; or (iii) except as set forth on Section 3.13(a) of the Disclosure Schedules, require the consent, notice or other action by any Person under, conflict with, result in a material violation or material breach of, constitute a default under or result in the acceleration of any Material Contract.

(b)     No Consent, Permit or authorization of or filing with, or notification to, any Person or Governmental Authority is required on the part of Sellers in connection with the execution and delivery of this Agreement or the Transaction Documents, the compliance by Sellers with any of the provisions hereof and thereof, the consummation of the transactions contemplated hereby and thereby or the taking by Sellers of any action contemplated hereby except for such consents, approval, Permits, Governmental Orders, declarations, filings, or notices which, in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

Section 3.14.     Financial Statements.

(a)     Sellers’ fiscal year ends on December 31 of each year. Attached as Schedule 3.14(a) of the Disclosure Schedules contains true and complete copies of (i) the audited consolidated balance sheet for the annual period ended December 31, 2011, (ii) the audited consolidated balance sheet and consolidated statements of operations, consolidated statements of changes in stockholders’ equity and consolidated statements of cash flows of Sellers as of, and for the annual periods ended, December 31, 2012 and December 31, 2013 (the “Annual Statements”), and (iii) the unaudited consolidated balance sheet and consolidated statement of income, consolidated statement of cash flow and consolidated statement of changes in stockholders’ equity of Sellers as of, and for the period ended September 30, 2014 (the “Interim Statement,” and collectively with the Annual Statements, the “Financial Statements”).

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(b)     Each of the Financial Statements was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated and each fairly presents, in all material respects, the consolidated financial position, results of operations and cash flows of Sellers as at the respective dates thereof and for the respective periods indicated therein, except as otherwise noted therein; provided, however, that the Interim Statement is subject to normal year-end adjustments and lacks footnotes.

(c)     Except as and to the extent set forth on the consolidated balance sheet of Sellers included in the Interim Statement (the “Most Recent Balance Sheet”), no Seller has any liability or obligation (whether accrued, absolute, contingent or otherwise) required to be disclosed in accordance with GAAP, except for liabilities and obligations incurred in the ordinary course of business consistent with past practice since the date of the Most Recent Balance Sheet or liabilities permitted or required to be undertaken or incurred in accordance with this Agreement.

(d)     Sellers maintain a standard system of accounting established and administered in accordance with GAAP. Except as set forth on Schedule 3.14(d) of the Disclosure Schedules, Sellers maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Sellers have made available to Purchaser, complete and correct copies of, all written descriptions of, and all policies, manuals and other documents promulgating, such internal accounting controls.

(e)     Since January 1, 2014: (i) neither Sellers nor, to Sellers’ knowledge, any director, officer, employee, auditor, or accountant of Sellers, have received any written complaint or claim regarding the accounting or auditing practices, procedures, methodologies or methods of Sellers or their respective internal accounting controls, including any such complaint or claim that Sellers has engaged in illegal accounting or auditing practices; (ii) no attorney representing Sellers, whether or not employed by Sellers, has reported evidence of a material violation of securities laws, breach of fiduciary duty or similar violation by Sellers or any of its officers, directors, employees or agents to any Sellers’ board of directors or any committee thereof, Sellers’ accountants (in any written response letter) or to any director or officer of Sellers; and (iii) there have been no internal investigations regarding accounting or revenue recognition discussed with, reviewed by or initiated at the direction of Sellers’ chief executive officer, chief financial officer, general counsel, any Sellers’ board of directors or any committee thereof.

(f)     Sellers have provided Purchaser with certain projections about the future performance of the Business which have been prepared in good faith. Except as set forth in the foregoing sentence, Sellers make no representation about the accuracy of such projections or about the accuracy of the data upon which such projections were based.

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Section 3.15.     Inventory. All items of Purchased Inventory, whether or not reflected in the Financial Statements, consists of a quality and quantity usable and salable in the ordinary course of business consistent with past practice, except for obsolete, damaged, defective or slow-moving items that have been written off or written down to fair market value or for which reserves in accordance with GAAP have been established. All items of Purchased Inventory reflected in the Financial Statements are valued at the lower of cost or market. Schedule 3.15 of the Disclosure Schedules describes the rights of Sellers and certain third parties with respect to the Purchased Inventory that is owned by Sellers. There have been no material disputes between Sellers and their respective customers, other than ordinary course disagreements regarding nonmaterial issues, regarding the quantity and nature of inventories consigned by such customers to the Sellers.

Section 3.16.     Taxes. All Tax returns required to be filed by Sellers with respect to the Business and the Purchased Assets for all taxable periods ending prior to the date hereof have been or will be duly and timely (within any applicable extension periods) filed with the appropriate governmental authorities in all jurisdictions in which such Tax returns are required to be filed and have been prepared in material compliance with applicable Legal Requirements. All Taxes that are due and payable with respect to the Business, including any applicable sales taxes with respect to sales of products, have been timely paid. All Taxes that Sellers are required to withhold or collect pursuant to Legal Requirements have been duly and timely withheld or collected and have been timely paid over to the appropriate Governmental Authority to the extent due and payable. All Taxes required to be withheld or collected by Sellers on or prior to the Closing Date from the Transferred Employees (including Persons designated as independent contractors) have been properly withheld and, if required on or prior to the Closing Date, have been deposited with, or paid as directed by, the appropriate Governmental Authority. There are no audits of Tax returns of Sellers pending or, to the knowledge of Sellers, threatened, and all past audits of Tax returns of Sellers, if any, have been settled. There are no deficiencies proposed or assessed as a result of any pending audit. Sellers are not a party to any pending or, to the knowledge of Sellers, threatened action or proceeding against Sellers for the assessment or collection of Taxes by any Legal Requirements, and there is no basis for any such action or proceeding. There are no Liens on the Purchased Assets for Taxes (other than Taxes that are not yet due and payable). Sellers have not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a tax assessment or deficiency. Sellers are not the beneficiary of any extension of time within which to file any Tax Return with respect to the Business. No claim has ever been made by an authority in a jurisdiction where Sellers do not file Tax Returns that the Business is or may be subject to taxation by that jurisdiction. Sellers have not been a party to any “listed transaction”, as defined in Code §6707A(c)(1) and Reg. §1.6011-4(b). Sellers have made available complete copies of all material Tax returns relating to the Purchased Assets or the Business relating to the taxable periods that ended after December 31, 2010.

Section 3.17.      Permits. Each Seller is in possession of all Permits reasonably necessary for each of the Sellers to own, lease and operate its properties or to carry on its business as it is now being conducted. As of the date of this Agreement, no suspension or cancellation of any of such Permits is pending or, to Sellers’ knowledge, threatened. No Seller is, in any material respect, in conflict with, or in default, breach or violation of any such Permit.

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Section 3.18.     Subsequent Events. From the date of the Interim Statement until the date of this Agreement, (a) Sellers have conducted the Business in the ordinary course of business in all material respects and (b) there has not been, with respect to the Business, any event, change, occurrence or circumstance that, individually or in the aggregate with any such events, changes, occurrences or circumstances, has had or could reasonably be expected to have, a Material Adverse Effect. Without limiting the generality of the foregoing, since the date of the Interim Statement, Sellers have not: (a) sold, leased, transferred, pledged, encumbered or assigned any of the assets of the Business outside the ordinary course of business; (b) entered into any material Contract (or series of related material Contracts) other than in the ordinary course of business; (c) accelerated, terminated, modified or canceled any material Contract except in the ordinary course of business and, to Sellers’ knowledge, no other party has done so as a result of any default by Sellers; (d) accelerated, waived, wrote-off or canceled the payment of any accounts receivable outside the ordinary course of business; (e) canceled, compromised, waived or released any material right or claim (or series of related rights and claims) outside the ordinary course of business; (f) granted any license or sublicense of any rights under or with respect to any Intellectual Property outside the ordinary course of business; (g) experienced any material damage, destruction or loss to the assets of the Business; (h) experienced any material change in personnel or relationships with third parties, including customers and vendors, other than immaterial changes which occur in the ordinary course of business; (i) changed accounting or Tax reporting principles, methods or policies; or (j) entered into any commitment to do any of the foregoing.

Section 3.19.     Real Property.

(a)     Except as set forth on Schedule 3.19(a) of the Disclosure Schedules, Seller owns good, marketable and insurable title to the Real Property Fee Parcels, free and clear of Liens, except Permitted Liens. Schedule 2.1(i) of the Disclosure Schedules sets forth the legal descriptions for the Real Property Fee Parcels.

(b)     Schedule 3.19(b) of the Disclosure Schedules sets forth a complete list of each real property lease and all amendments, extensions, supplements, letter agreements, renewals, waivers and writings exercising rights therewith, to which Sellers are a party or by which it is bound (collectively, the “Real Property Leases”). Sellers have provided to Purchaser true, correct and complete copies of each the Real Property Leases.

(c)     The Real Property Leases and the Real Property Fee Parcels constitute all interests in real property currently used, occupied or currently held for use in connection with the Business and which are necessary for the continued operation of the Business as currently conducted.

(d)     Except as set forth on Schedule 3.19(d) of the Disclosure Schedules, all of the buildings, fixtures, equipment and improvements, and all components thereof located on the Real Property Fee Parcels and the land associated with the Real Property Leases (the “Improvements”) (i) are in reasonably good operating condition without known structural defects and all mechanical and other systems located thereon are in reasonably good operating condition, and, to Sellers' knowledge, no condition exists requiring material repairs, alterations or corrections and (ii) are suitable, sufficient and appropriate in all material respects for their current uses. There are no known structural deficiencies or latent defects affecting any of the Improvements, and to Sellers’ knowledge, there are no facts or conditions affecting any of the Improvements which would, individually or in the aggregate, interfere in any material respect with the use or occupancy of the Improvements or any portion thereof in the operation of the Business.

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(e)     Sellers have a valid, binding and enforceable leasehold interest under each Real Property Lease under which it is a lessee, free and clear of all Liens, except any landlord lien or lien on landlord’s interest. Each of the Real Property Leases is in full force and effect. Sellers are not in default under any Real Property Lease, and no event has occurred and no circumstances exist which, if not remedied, and whether with or without notice or the passage of time or both, would result in such a default. Sellers have not received or given any notice of any default or event that with notice or lapse of time, or both, would constitute a default by Sellers under any of the Real Property Leases, and, to Sellers’ knowledge, no other party is in default thereof, and no party to any Real Property Lease has exercised any termination rights with respect thereto.

(f)     Sellers have all material Permits issued by any applicable Governmental Authority necessary or useful for the current use and operation of each Real Property Lease and Real Property Fee Parcel, and Sellers have fully complied with all material conditions of the Permits applicable to them. No default or violation, or event that with the lapse of time or giving notice or both would become a default or violation, has occurred in the due observance of any Permit.

(g)     To Sellers' knowledge, there is no action, litigation, investigation, condemnation or proceeding of any kind pending or threatened against the Sellers, or any current or pending Tax assessments, with respect to all or any portion of the Real Property. To Sellers' knowledge, sufficient electrical power, natural gas and water supplies, all supplied by public utilities, and adequate storm water and sanitary sewage, waste disposal, and air emission systems are available for the operation of the Business on the Real Property and, to Sellers’ knowledge, all such supplies and systems will be available to Purchaser after the Closing. To Sellers’ knowledge, there are no property interests or other improvements that are owned by Sellers and which are necessary for the operation of the Real Property that are not being conveyed pursuant to this Agreement.

Section 3.20.     Environmental Matters.

(a)     Neither the leased real property which is the subject of each Real Property Lease or the Real Property Fee Parcels (collectively, the “Real Property”) nor the Business are in material violation of any Environmental Laws or Environmental Permits and Sellers and their Affiliates are not in material violation of any Environmental Laws or Environmental Permits with respect to the Real Property or the Business.

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(b)     There have been no releases, discharges, disposal or other handling of Hazardous Substances at any Real Property by Sellers and/or by the Business (i) except in compliance with Environmental Laws and/or (ii) in a manner that has resulted in Liabilities under Environmental Laws.

(c)     Except as set forth in Schedule 3.20(c) of the Disclosure Schedules, none of the Real Property have (i) any underground storage tanks, whether empty, filled or partially filled with any substance, or (ii) any asbestos containing materials.

(d)     Neither Sellers nor any of their Affiliates have received any written request for information and/or any notice, order or other communication alleging that they may have Liabilities under any Environmental Laws with respect to Sellers' ownership of the Real Property or operation of the Business

(e)     To Sellers’ and their Affiliates’ knowledge, there is no notice, Lien, Proceeding or threatened Proceeding relating to an alleged Liabilities under Environmental Laws with respect to the Real Property or the Business.

(f)     Prior to the Closing Date, Sellers shall promptly notify Purchaser should Sellers or their respective Affiliates receive any such written request for information, notice, order, or other communication or become aware of any notice, Lien, Proceeding or threatened Proceeding.

(g)     The Real Property, the Business, Sellers and/or their Affiliates hold all Environmental Permits required in connection with the occupancy, use or operation of the Real Property and the operation of the Business and, to the extent permitted by law, Sellers and/or their Affiliates shall transfer to Purchaser (with Purchaser’s necessary cooperation and assistance) all such Environmental Permits, all of which are in good standing.

(h)     Schedule 3.20(h) of the Disclosure Schedules contains a list of all Environmental Permits and all written reports, correspondence, and other documentation in Sellers’ and their Affiliates’ possession regarding Hazardous Substances, Environmental Permits, and any environmental conditions with respect to the Real Property and/or the Business (collectively, “Environmental Documentation”) and Sellers and their Affiliates have provided Purchaser with copies of all such Environmental Documentation prior to the date hereof.

Section 3.21.     Insurance.

(a)     Section 3.21(a) of the Disclosure Schedules sets forth, with respect to each insurance policy under which any Seller is currently an insured or otherwise the principal beneficiary of coverage, (i) the names of the insurer, the principal insured and each named insured, (ii) the policy number, (iii) the period, scope and amount of coverage and (iv) the premium charged.

(b)     With respect to each insurance policy required to be set forth on Section 3.21(a) of the Disclosure Schedules: (i) the policy is in full force and effect in all material respects; (ii) no Seller is in material breach or default under any material provisions of any Policy; and (iii) Sellers have not received written notice of cancellation of any Policy.

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(c)     At no time subsequent to December 31, 2011 have the Sellers (i) been denied any material insurance or indemnity bond coverage which it has requested, (ii) made any material reduction in the scope or amount of its insurance coverage, or (iii) received written or oral notice from any of its insurance carriers that any insurance premiums will be subject to increase in an amount materially disproportionate to the amount of the increases with respect thereto (or with respect to similar insurance) in prior years or that any insurance coverage listed on Section 3.21(a) of the Disclosure Schedules will not be available in the future substantially on the same terms as are now in effect.

Section 3.22.     Transactions with Related Parties.

(a)     Except as otherwise disclosed on Section 3.22(a) of the Disclosure Schedules, (i) none of the customers, vendors, distributors or sales representatives of Sellers is a Related Party; (ii) none of the Purchased Assets is owned or used by or leased to or from any Related Party; (iii) no Related Party owes any amount to Sellers nor do Sellers owe any amount to, or have Sellers committed to make any loan or extend or guarantee credit to or for the benefit of, any Related Party; (iv) no Related Party has any claim or cause of action against any Sellers; (v) no Related Party owns any direct or indirect interest of any kind, controls or is a director, officer, employee or partner of, or consultants to, or lender to or borrower from or has the right to participate in the profits of, any Person which is a competitor, vendor, customer, landlord, tenants, creditor or debtor of Sellers; (vi) no Related Party is a party to any Assumed Contract with Sellers; and (vii) no Related Party provides any administrative, legal, accounting or other services to Sellers except in the ordinary course of business on arm’s length terms.

(b)     Except as set forth on Schedule 3.22(b) of the Disclosure Schedules, any Assumed Contracts required to be disclosed on Schedule 3.22(a) of the Disclosure Schedules are on arms-length terms.

Section 3.23.     Customers and Vendors. Schedule 3.23 of the Disclosure Schedules sets forth the names of the ten (10) vendors and twenty five (25) customers to whom Sellers paid or from whom Sellers have received the greatest sum of money in respect of services, products or materials provided to or from Sellers in respect of the Business during the twelve (12) month period ending July 31, 2014. Except as set forth on Schedule 3.23 of the Disclosure Schedules, in the past twelve (12) months, no such vendor or customer set forth on Schedule 3.23 of the Disclosure Schedules has notified Sellers that it is canceling or otherwise terminating, or that it intends to cancel or otherwise terminate, its relationship with Sellers.

Section 3.24.     No Brokers or Finders. Other than G2 Capital Advisors, LLC, neither any Selling Party nor any of their respective Affiliates have incurred any obligation or liability, contingent or otherwise, for brokerage or finders’ fees or agents’ commissions or other similar payment in connection with the transactions contemplated by this Agreement.

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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF PURCHASER

Purchaser and Parent Company, on a joint and several basis, hereby represent and warrant to the Selling Parties as follows:

Section 4.1.     Due Organization. Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Minnesota and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now conducted and as currently proposed to be conducted. Purchaser is duly qualified or authorized to do business as a foreign corporation and is in good standing under the laws of each jurisdiction in which it owns or leases real property and each other jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification or authorization.

Section 4.2.     Matters. There is no Matter pending or, to Purchaser’s knowledge, being threatened against Purchaser that challenges or could reasonably be expected to effect, prevent, delay or make illegal any of the transactions contemplated by this Agreement or the Transaction Documents.

Section 4.3.     Authority; Binding Nature of Agreement. Each of Purchaser and Parent Company has all necessary corporate power and authority, authority and legal capacity to execute and deliver this Agreement and the Transaction Documents and to perform their respective obligations under this Agreement and the Transaction Documents and to consummate the transactions contemplated hereby and thereby; and the execution, delivery and performance by Purchaser and Parent Company, as applicable, of this Agreement and the Transaction Documents have been duly authorized by all necessary action on the part of Purchaser and Parent Company, as applicable, and their respective boards of directors. No vote of Purchaser’s stockholders or Parent Company's stockholders is required to authorize the transactions contemplated by this Agreement. This Agreement has been, and each Transaction Document will be at or prior to Closing, duly and validly executed and delivered by Purchaser and Parent Company, as applicable, and this Agreement constitutes, and, upon execution thereof, each of the Transaction Documents to which Purchaser or Parent Company is a party will constitute, the valid and binding obligation of Purchaser or Parent Company, as applicable, enforceable against such party in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.

Section 4.4.     Non-Contravention; Consents. The execution and delivery by Purchaser and Parent Company of this Agreement and the Transaction Documents, the consummation of the transactions contemplated hereby and thereby, or compliance by Purchaser and Parent Company with any of the provisions hereof or thereof will not result in any violation or breach of, or conflict with or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation of the loss of a material benefit under, or give rise to any obligation of Purchaser or Parent Company, as applicable, to make any payment under, or to the increased, additional, accelerated or guaranteed rights or entitlements of any Person under, or result in the creation of any Liens upon any of the properties or assets of Purchaser or Parent Company under any provision of: (a) any provision of the articles of incorporation, bylaws or other charter or organizational documents of Purchaser or Parent Company; or (b) any Legal Requirement applicable to the Purchased Assets or any material Contract to which Purchaser or Parent Company is a party. Neither Purchaser nor Parent Company is required to obtain any Consent from any Person at or prior to the Closing in connection with the execution and delivery of this Agreement or the Transaction Documents or the sale of the Purchased Assets to Purchaser.

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Section 4.5.     Broker’s and Finder’s Fees. Other than Lake Street Capital Markets, LLC, neither Purchaser nor any of its Affiliates have incurred any obligation or liability, contingent or otherwise, for brokerage or finders’ fees or agents’ commissions or other similar payment in connection with the transactions contemplated by this Agreement.

Section 4.6.     Due Diligence Investigation. Purchaser acknowledges that it has had the opportunity to conduct its due diligence investigation with respect to the transactions contemplated by this Agreement. Purchaser further acknowledges that, except for the specific representations and warranties made by the Selling Parties in Article III hereof, it is not relying upon any representation or warranty of the Selling Parties or any of their respective officers, managers, directors, employees, Affiliates or Representatives. Purchaser participated in a process by which it is acquiring the Purchased Assets that involved competitive marketing and bidding and arms-length negotiations between sophisticated parties.

Section 4.7.     SEC Filings. The consolidated financial statements (including all related notes and schedules) of Purchaser included in Parent Company's annual report filed June 23, 2014, for the fiscal year ended March 31, 2014 (including the notes thereto) and Parent Company's quarterly report on Form 10-Q for the period ended June 30, 2014 fairly present in all material respects the consolidated financial position of Purchaser and its consolidated subsidiaries as at the respective dates thereof and their consolidated results of operations and consolidated cash flows for the respective periods then ended (subject, in the case of unaudited statements, to normal year end audit adjustments, to the absence of notes and to any other adjustments described therein, including any notes thereto) in conformity with GAAP (except in the case of the unaudited statements, as permitted by Form 10-Q or other rules and regulations of the SEC) applied on a consistent basis during the period involved (except as may be indicated therein or in the notes thereto). Parent Company is, and has been for a period of at least ninety (90) days immediately prior to the Closing Date, subject to the reporting requirements of section 13 or 15(d) of the Exchange Act and has: (i) filed all required reports under section 13 or 15(d) of the Exchange Act, as applicable, during the past twelve (12) months, other than Form 8-K reports; and (ii) submitted electronically and posted on its corporate web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T, during the past twelve (12) months.

Section 4.8.     Issuance of Earn Out Shares. Except as set forth herein, the Earn Out Shares to be issued in accordance with Section 2.5 will, when issued, be duly authorized, validly issued, fully paid and nonassessable, free and clear of Liens and not subject to preemptive rights created by statute, the Parent Company’s Articles of Incorporation or By-Laws or any agreement to which the Parent Company is a party or is bound.

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ARTICLE V.
COVENANTS OF THE PARTIES

Section 5.1.     Mutual Cooperation. Purchaser and Sellers agree to work together and cooperate to the extent reasonably necessary so as to facilitate closing on the transactions contemplated by the Transaction Documents. Further, subsequent to Closing, Purchaser and Sellers, at the request of the other, shall each execute, deliver and acknowledge all such further instruments and documents and do and perform all such other acts and deeds as may be reasonably required to consummate the transactions contemplated by the Transaction Documents. Specifically, Sellers shall render all reasonable assistance to the Purchaser to ensure that the Assumed Contracts are assigned to the Purchaser; and shall reasonably work with the Purchaser to limit disruption to the Business during the transitionary period. Sellers shall maintain all Permits on behalf of Purchaser (including, without limitation, Seller’s Medicare accreditation) after the Closing until such time as Purchaser obtains such Permits in its own name, and Sellers shall execute any agreements with Purchaser as may be reasonably necessary or advisable in connection therewith.

Section 5.2.     Preservation of Records. To the extent not transferred to Purchaser, Sellers agree to preserve and keep records held by them or their Affiliates relating to the Business for a period of three (3) years from the Closing Date and shall make such records and personnel available to Purchaser as may be reasonably required by Purchaser in connection with, among other things, any insurance claims by, Matters against or governmental investigations of Sellers or Purchaser or any of their Affiliates or in order to enable Sellers or Purchaser to comply with their respective obligations under this Agreement and the Transaction Documents. To the extent transferred to Purchaser and except to the extent destroyed under Parent Company’s regularly scheduled document destruction policies or practices, Purchaser agrees to preserve and keep records held by them or their Affiliates relating to the Business for a period of three (3) years from the Closing Date and shall make such records reasonably available to Sellers' Representative as may be reasonably required in connection with, among other things, winding up of any Seller's operations, preparing the financial statements of any Selling Party, filing of a tax return by any Selling Party, any insurance claims by, Matters against or governmental investigations of a Selling Party, or in order to enable Selling Parties to comply with their respective obligations under this Agreement and the Transaction Documents. After the expiration of such three (3) year period, except, with respect to Purchaser, to the extent destroyed under Parent Company’s regularly scheduled document destruction policies or practices, Sellers nor Purchaser will destroy any of such books or records of the Business without giving the other the opportunity, at the other party’s sole expense, to take possession thereof within ninety (90) days following the expiration of such period.

Section 5.3.     Payments. Following Closing, Sellers shall transfer by wire to bank accounts designated in writing by Purchaser any and all cash, wire and other forms of monetary receipts that may be received by Sellers representing payments on any Purchased Receivable, received by Sellers or credited to Sellers pursuant to any Assumed Contract, or that relate to a Purchased Asset (“Receipts”) within the next business day along with associated details, including the name of the customer or other payor, the document number(s) (if any) associated with the Receipt and the amount of the Receipt.  Sellers will transmit to Purchaser such information via e-mail in Microsoft Excel files. For the avoidance of doubt, this Section 5.3 does not modify Sellers' right to Delinquent Receivables as set forth in Section 2.9(h) above.

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Section 5.4.     Litigation Support. In the event and for so long as any party is actively contesting or defending against any Matter in connection with any fact, situation, condition, activity, occurrence, incident, action, failure to act, or transaction arising prior to the Closing Date involving one or more Sellers, each of the parties will cooperate in the contest or defense, make available its personnel, and provide such testimony and access to their books and records as may be necessary in connection with the contest or defense, all at the sole cost and expense of the contesting or defending party (unless the contesting or defending party is entitled to indemnification therefor under Article VI below).

Section 5.5.     Employment Matters.

(a)     On and after the Closing and until the expiration of the Leasing Agreement (the “Leasing Expiration Date”), the Business Employees will be leased by the Sellers to the Purchaser pursuant to the terms of the Leasing Agreement, and Purchaser will pay Sellers for the use of the Business Employees pursuant to the terms thereof. Upon the Leasing Expiration Date, Seller shall terminate the employment of all Business Employees. Purchaser shall extend to all Business Employees identified on Schedule 5.5(a) of the Disclosure Schedule who remain employees of Sellers until the Leasing Expiration Date, an individualized written offer of employment, effective as of the Closing Date, that, if accepted, would provide each such Business Employee with (i) base salary or an hourly wage rate that is no less than the base salary or hourly wage rate provided by Sellers immediately before Closing and (ii) coverage under Parent’s Benefit Plans to the extent such Transferred Employees are eligible as set forth in Section 5.5(b) below. Purchaser retains the right to terminate the employment of any Transferred Employee in accordance with its employment practices, whether in the ordinary course or otherwise. Purchaser will, effective as of the Leasing Expiration Date, hire each Business Employee who accepts the written offer of employment extended to such Business Employee by Purchaser, subject to the terms of such written offer. On the Leasing Expiration Date, Sellers shall pay any and all accrued bonuses as of the Leasing Expiration Date, severance payments or change of control payments of the Business Employees accrued as of the Closing Date and payable upon a change of control and/or termination of employment.

(b)     Purchaser agrees to give each Transferred Employee service credit for such Transferred Employee’s employment with Sellers or their respective Affiliates prior to the Leasing Expiration Date for purposes of calculating eligibility to participate and vesting credit (but not for accrual of benefits) under each applicable Benefit Plan of Purchaser or one of its Affiliates or as required by applicable statutory law, as if such service had been performed with Purchaser or one of its Affiliates. Nothing in this Section 5.5(b) is intended to prevent Purchaser from amending or terminating any of Purchaser’s Benefit Plans. At the end of the Leasing Expiration Date, Purchaser shall give credit to each Transferred Employees hired by Purchaser for any accrued but unused paid time off (PTO) to the extent that Seller does not pay such employee the same out at Closing or Leasing Expiration Date and provided the accrued costs and expenses are accrued therefor as a current liability within the Net Working Capital.

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(c)     Sellers shall use commercially reasonable efforts to cooperate with Purchaser in connection with Purchaser’s good faith efforts to hire the Business Employees, including allowing Representatives of Purchaser and its Affiliates reasonable access during normal business hours, upon reasonable advance notice, to meet with and distribute to such Business Employee such forms and other documents relating to his or her proposed employment with Purchaser, provided such access does not unreasonably interfere with Sellers’ conduct of the Business. Sellers and Purchaser shall use commercially reasonable efforts to achieve an orderly transfer of the Business Employees to the employment of Purchaser as contemplated by this Agreement.

(d)     Within five (5) days of the Leasing Expiration Date, Sellers shall terminate their 401(k) Benefit Plans effective as of the Leasing Expiration Date and promptly apply for and obtain a favorable determination letter, upon termination, for such plans. Further, Sellers shall take action to cause the Transferred Employees’ account balances, if any, under any Benefit Plan providing for retirement benefits to become fully vested as of the Closing Date.

(e)     Notwithstanding the foregoing, nothing contained herein shall (i) be treated as an amendment to any particular Benefit Plan of Purchaser or any Seller, (ii) obligate Purchaser or any of its Affiliates to maintain any particular Benefit Plan or arrangement beyond December 31, 2014, (iii) prevent Purchaser or any of its Affiliates from amending or terminating any Benefit Plan or arrangement, or (iv) give any third party the right to enforce any of the provisions of this Agreement.

(f)     After the Leasing Expiration Date, Purchaser agrees to assume and provide continuing health benefit coverage as described in Sections 601 through 608 of ERISA and Code Section 4980B (hereinafter referred to as “COBRA Coverage”) to all “M&A qualified beneficiaries” (as described in IRS Regulation Section 54.4980B-9, Question and Answer 4) with respect to the transactions contemplated by this Agreement (hereinafter referred to as “COBRA Beneficiaries”). Specifically, Purchaser agrees that all obligations to provide COBRA Coverage to COBRA Beneficiaries are being allocated to Purchaser, as permitted by Question and Answer 7 of IRS Regulation Section 54.4980B-9.

Section 5.6.     Contract Assignment and Consents. Notwithstanding anything to the contrary contained in this Agreement, if the assignment or attempted assignment to Purchaser of any Assumed Contract is: (i) prohibited by any applicable law; or (ii) would require any Consent of a Third Party (a “Required Consent”), such Required Consent shall not have been obtained prior to the Closing Date (each, a “Non-Assignable Contract”), then the Closing shall not constitute the assignment of such Non-Assignable Contract, and this Agreement shall not constitute an assignment of such Non-Assignable Contract, unless and until such Required Consent is obtained. Following the Closing, (1) Sellers, to the maximum extent permitted by Legal Requirement, will use commercially reasonable efforts to act as Purchaser’s agent in order to obtain for Purchaser the benefits thereunder (including enforcement for the account of Purchaser of such rights against the other party to the Non-Assignable Contract) and will reasonably cooperate, to the maximum extent permitted by Legal Requirement, with Purchaser in any other reasonable arrangement designed to provide such benefits to Purchaser; and (2) Purchaser will, to the maximum extent permitted by Legal Requirement, perform, on Sellers’ behalf, the applicable Sellers’ obligations under the Non-Assignable Contract in accordance with the terms and conditions thereof. Once a Required Consent for the assignment of any Non-Assignable Contract is obtained, Sellers shall promptly assign and transfer such Non-Assignable Contract to Purchaser at no additional cost to Purchaser. Purchaser shall not assume any Liabilities under a Non-Assignable Contract until it has been assigned to Purchaser; provided, however, that such Purchaser shall be liable to Sellers for performing its obligations under the arrangements described in this Section 5.6.

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Section 5.7.     Restrictive Covenants.

(a)     To induce Purchaser to enter into this Agreement, each Restricted Party covenants and agrees that during the period commencing on the Closing Date and ending on (i) with respect to Langsenkamp, Jack Alexander and Jan Alexander, the fifth (5th) anniversary of the Closing Date, and (ii) with respect to Konkle and Van der Wiel, the second (2^nd) anniversary of the Closing Date (in each case, the “Restricted Period”), such Restricted Party will cause each of its Affiliates not to, directly or indirectly, own, invest in, lend to, engage in, manage, consult to, operate, control, maintain any interest in (proprietary, financial or otherwise), otherwise affiliate with, or participate in the ownership, management, operation or control of, any business, whether corporate, proprietorship or partnership form or otherwise, engaged in any Competitive Enterprise in North America. “Competitive Enterprise” shall mean each of the following activities, to the extent that such activities contributed to Fifth Gear’s historical revenue prior to the Transaction Date: (i) the provision of third-party logistics services to facilitate the distribution of goods to retailers, (ii) the provision of third-party logistics services in connection with e-commerce fulfillment or catalog fulfillment, (iii) the provision of call center services in connection with e-commerce fulfillment or catalog fulfillment, and/or (iv) the sale or licensing of software utilized for order management and warehouse management functions. Nothing contained in this Section 5.7(a) shall prohibit Langsenkamp from continuing to serve as a director of DEFENDER Direct, Inc.

(b)     During the Restricted Period, each Restricted Party will not, and shall cause each of its Representatives not to, directly or indirectly on behalf of any other Person, solicit, induce, encourage any employee of any Seller who was employed by such Seller immediately prior to Closing to leave his or her employment with such Seller or Purchaser, or hire, employ or otherwise engage any such individual. Nothing contained in this Section 5.7(b) shall prohibit generalized solicitations of potential employees by use of advertisements in the media that are not targeted at the employees of any Seller or Purchaser.

(c)     From and after the Closing Date, the Restricted Parties shall, and shall cause each of their Representatives, (i) not to, directly or indirectly, disclose, reveal, divulge or communicate to any Person other than authorized officers, directors and employees of Purchaser or use or otherwise exploit for its own benefit or for the benefit of anyone other than Purchaser, any Confidential Information used in the operations of or associated with the Business and (ii) to keep confidential any Confidential Information used in the operations of or associated with the Business, except for any such information that (A) is available to the public on the Closing Date, (B) thereafter becomes available to the public other than as a result of a disclosure by the Restricted Parties or their Representatives (other than pursuant to a legal obligation to do so or in connection with the enforcement of its rights under this Agreement), or (iii) is or becomes available to the Restricted Parties or their Representatives on a non-confidential basis from a source that is not prohibited from disclosing such information to such Representative by legal, contractual or fiduciary obligation to any other Person; provided, that nothing contained in this Section 5.7(c) shall prohibit the Restricted Parties from disclosing any information should such Restricted Parties or its Representative be required to disclose any such information in response to an Order or as otherwise required by Legal Requirements; provided, that in any such case it shall inform Purchaser in writing of such request or obligation as soon as possible after such Selling Party is informed of it and, if possible, before any information is disclosed, so that a protective order or other appropriate remedy may be obtained by Purchaser. If any Restricted Party or its Representatives are obligated to make such disclosure, it shall only make such disclosure to the extent to which it is so obligated, but not further or otherwise.

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(d)     Notwithstanding anything to the contrary, in the case of breach of the covenants in this Section 5.7, (i) Purchaser may seek specific performance to cause Restricted Parties to cease such breach and refrain from any such future breaches and (ii) the claiming of damages for any losses incurred by Purchaser due to actions prohibited by the aforesaid covenants shall remain unaffected.

(e)     The parties hereto acknowledge that the covenants set forth in this Section 5.7 are an essential element to this Agreement and that, but for these covenants, the parties hereto would not have entered into this Agreement. The parties hereto specifically acknowledge and agree that each party has received adequate consideration in exchange for entering into these covenants, the foregoing restrictions are reasonable and necessary to protect the legitimate interest of Purchaser post-Closing, including the goodwill that Purchaser shall be purchasing from Sellers pursuant to the transactions contemplated by this Agreement and the Transaction Documents. The parties hereto acknowledge that this Section 5.7 constitutes an independent covenant and shall not be affected by performance or nonperformance of any other provisions of this Agreement or any other document contemplated by this Agreement.

(f)     It is the intention of the parties hereto that if any of the restrictions or covenants contained in this Section 5.7 is held to cover a geographic area or to be for length of time which is not permitted by Legal Requirements, or is in any way construed to be too broad or to any extent invalid, such restrictions or covenants shall be construed to be null, void, and of no effect, but to the extent such restrictions or covenants would be valid or enforceable under applicable Legal Requirements, a court of competent jurisdiction shall construe and interpret this Section 5.7 to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (not greater than those contain in this Section 5.7 that would be valid and enforceable under law.

Section 5.8.     Compliance with Rule 144. On or after the date that the Earn Out Shares first become saleable under Rule 144, any Selling Party may submit then normal and customary Rule 144 sale documentation to Purchaser for any Earn Out Shares such Selling Party wishes to sell (“Offered Earn Out Shares”). Within three (3) business days after Purchaser's receipt of such normal and customary Rule 144 sale documentation for such Offered Earn Out Shares, Parent Company's counsel shall, at Parent Company's expense, provide Parent Company's transfer agent with an opinion authorizing the removal of the restrictive legend on the certificates of such Offered Earn Out Shares for sale.

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Section 5.9.     SEC Filings. From and after the date the Earn Out Shares first become saleable under Rule 144 until the one (1) year anniversary of such date, (a) Parent Company shall use commercially reasonable efforts to: (i) make all filings necessary under the Exchange Act, as and when required by the Exchange Act, (ii) take all other actions required by the Exchange Act, and (iii) refrain from taking any action prohibited by the Exchange Act such that (b) each Selling Party may, on or after the date that the Earn Out Shares first become saleable under Rule 144, sell such Earn Out Shares in reliance upon Rule 144.

Section 5.10.     Financial Statements. Within sixty (60) days following the Closing Date, Seller shall deliver to Purchaser true, complete and correct copies of Sellers’ consolidated balance sheet and consolidated statement of income, consolidated statement of cash flow and consolidated statement of changes in stockholders’ equity which may be required to be filed by Parent Company with the SEC with respect to the transactions contemplated hereby on Form 8-K, with such Financial Statements being in the form and content set forth in Regulation S-X and Form 8-K, which among other things will include an unqualified audit opinion by an independent public accounting firm registered with the Public Company Accounting Oversight Board (PCAOB) and shall include any required consent of such accounting firm.

Section 5.11.     Post-Closing Activities.

(a)     After the Closing but provided the same does not interfere with the performance of such persons’ duties to Purchaser or Parent Company after Closing, Purchaser and Parent Company shall permit Konkle and Van der Wiel, along with certain other Transferred Employees selected by Konkle or Van der Wiel, to, during normal business hours, to reasonably assist Sellers' Representative with activities related to the wind-down and liquidation of any Seller, including, but not limited to, to providing information reasonably necessary for the preparation by a third party of Sellers’ financial statements and tax returns, it being understood that neither Purchaser nor Parent Company shall be obligated to incur any costs or expenses in accordance therewith or to pay any overtime to any employees resulting hereunder.

(b)     Purchaser acknowledges that the post-Closing activities contemplated in Section 5.1 will be performed by certain Transferred Employees, and Purchaser agrees that such Transferred Employees shall be afforded the time reasonably necessary during normal business hours to perform the post-Closing activities as and when requested by the Sellers' Representative, it being understood that neither Purchaser nor Parent Company shall be obligated to incur any costs or expenses in accordance therewith or to pay any overtime to any employees resulting hereunder.

(c)     In the event that Purchaser or Parent Company shall become obligated to pay for any incremental third party expenses incurred by Sellers or any overtime to any employees resulting from Section 5.1 or Section 5.11, such amount shall be reimbursed by the Sellers' Representative.

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ARTICLE VI.
INDEMNIFICATION

Section 6.1.     Indemnification by Selling Parties. Subject to the limitations set forth in this Article VI, from and after the Closing, (i) Langsenkamp, on a joint and several basis (except with respect to Sections 3.12(b)-(d), in which each Member shall indemnify the Purchaser Indemnifying Parties on a several, but not joint and several basis), and (ii) each other Selling Party, on a several basis, shall indemnify Purchaser, its Affiliates and their respective successors, assignees, officers, directors, principals, attorneys, agents, employees or other Representatives (collectively, the “Purchaser Indemnified Parties” and each individually a “Purchaser Indemnified Party”) against any Damages that a Purchaser Indemnified Party incurs arising out of or as a result of:

(a)     any breach of the representations and warranties of any Selling Party set forth in Article III of this Agreement;

(b)     any breach by any Selling Party of its respective covenants or agreements set forth in this Agreement;

(c)     any Liability of any Selling Party related to any Excluded Liability; and

(d)     any Liability of any Selling Party related to any Excluded Asset.

Section 6.2.     Indemnification by Purchaser. Subject to the limitations set forth in this Article VI, from and after the Closing, Purchaser and Parent Company, jointly and severally, shall indemnify the Selling Parties, their Affiliates and their respective successors, assignees, officers, directors, principals, attorneys, agents, employees or other Representatives (collectively, the “Seller Indemnified Parties” and each individually a and “Seller Indemnified Party”) against any Damages that a Seller Indemnified Party incurs arising out of or as a result of:

(a)     any breach of the representations and warranties of Purchaser or Parent Company set forth in Article IV of this Agreement;

(b)     any breach by Purchaser or Parent Company of the covenants or agreements of Purchaser set forth in this Agreement;

(c)     any Assumed Liability; and

(d)     the use, ownership, operation or maintenance of the Business and the ownership of the Purchased Assets from and after the Closing.

Section 6.3.     Limitations on Liability.

(a)     The Indemnified Party’s indemnification rights with respect to breaches of the representations and warranties of the Indemnifying Party, other than the representations and warranties set forth in Section 3.1, Section 3.2(a), Section 3.6(a), Section 3.9, Section 3.12, Section 3.16, Section 3.20, Section 3.24, Section 4.1, Section 4.3, Section 4.4 and Section 4.5 (the “Fundamental Representations”) will survive the Closing but will terminate and expire, and will cease to be of any force or effect, on the date that is eighteen (18) months following the Closing Date (the “Expiration Date”), and all Liability of the Indemnifying Party with respect to such representations and warranties will thereupon be extinguished; provided, however, that if, prior to the Expiration Date in the case of representations and warranties other than the Fundamental Representations, the Indemnified Party shall have duly delivered to the Indemnifying Party, in conformity with all of the applicable procedures set forth in Section 6.4, a Claim Notice setting forth a claim for indemnification based upon a breach by the Indemnifying Party of any of such representations or warranties, then the specific claim set forth in such Claim Notice will survive (and will not be extinguished upon) the Expiration Date. Any other claim for indemnification by any party under this Article VI may be asserted until expiration of the applicable statute of limitations under which a Third Party could assert a claim against the Indemnified Party plus 60 days.

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(b)     Other than with respect to the Fundamental Representations, the Indemnifying Party will not be required to indemnify the Indemnified Party with respect to any breach by the Indemnifying Party of any of the representations and warranties of the Indemnifying Party set forth in this Agreement, except to the extent that the cumulative amount of the Damages actually incurred by the Indemnified Party as a result of all such breaches actually exceeds one and 25/100 percent (1.25%) of the Purchase Price (the “Threshold Amount”); after which time the entire amount of such Damages occurring hereunder will be indemnifiable, including the Threshold Amount, subject to the limitations set forth in Section 6.1 and in clause (c) below.

(c)     Other than with respect to the Fundamental Representations, the total amount of the payments that the Indemnifying Party can be required to make with respect to any breach by the Indemnifying Party of any of the representations and warranties of the Indemnifying Party set forth in this Agreement will be limited in the aggregate to a maximum of fifteen percent (15%) of the Purchase Price (the “Cap”), and the Indemnifying Party’s cumulative Liability will in no event exceed such amount. In no event shall the Threshold and Cap apply to any claims by any Indemnified Party for indemnification pursuant to (i) Section 6.1(b), Section 6.1(c), Section 6.1(d), Section 6.2(b), Section 6.2(c), Section 6.2(d) or (ii) Damages any Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by fraud or intentional misrepresentation. In addition, prior to and in conjunction with seeking indemnification, an Indemnified Party shall use commercially reasonable efforts to mitigate the amount of Damages for which it may be entitled to indemnification hereunder.

(d)     Notwithstanding anything contained herein or in the Transaction Documents to the contrary, the aggregate liability of the Sellers under the Transaction Documents or relating to the Business, the Excluded Liabilities and/or the transactions contemplated by the Transaction Documents, shall never exceed the Purchase Price.

(e)     Each Member’s obligation to indemnify the Purchaser Indemnified Parties pursuant to this Article VI shall be limited to each such Member's allocable portion of the Purchase Price actually received by such Member, and each such Member shall be liable to the Purchaser Indemnified Party for a portion of each Claim only up to its allocable portion of the Purchase Price actually received relative to the Purchase Price received by all Members (except with respect to Sections 3.12(b)-(d), in which the Member shall indemnify the Purchaser Indemnified Parties for the entire amount of such Damages, subject to the other limitations contained herein). Notwithstanding the above, each Seller and Langsenkamp shall be jointly and severally liable for each Minority Member's allocable portion (based on the portion of the Purchase Price actually received by such Minority Member relative to the Purchase Price received by all Members) of any indemnification obligation under this Article VI (except with respect to Sections 3.12(b)-(d), in which each Minority Member shall indemnify the Purchaser Indemnified Parties for the entire amount of such Damages, subject to the other limitations contained herein).

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(f)     The amount of any Damages that are subject to indemnification under this Article VI shall be calculated net of the amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements actually received by the Indemnified Party or any Affiliate of the Indemnified Party in connection with such Damages (less the costs incurred by the Indemnified Party and its Affiliates in collecting such amounts, including any resulting increases in insurance premiums). In the event that an insurance recovery is made by the Indemnified Party or any Affiliate of the Indemnified Party with respect to any Damages for which the Indemnified Party has been indemnified hereunder, the Indemnified Party shall promptly pay to the Indemnifying Party, a sum equal to the lesser of (i) the actual amount of such insurance proceeds recoveries or (ii) the actual amount of the indemnification payment previously paid with respect to such Damages..

(g)     To the extent the Indemnifying Party makes or is required to make any indemnification payment to the Indemnified Party, no right of subrogation against the Indemnifying Party will accrue hereunder to or for the benefit of the Indemnifying Party or any Third Party.

(h)     Except with respect to specific performance for the breach of any Restricted Party of the restrictive covenants contained in Section 5.7, the right to indemnification under this Article VI, subject to all of the terms, conditions and limitations hereof, shall constitute the sole and exclusive right and remedy available to any party hereto for any actual or threatened breach of the representations, warranties, covenants and obligations set forth in this Agreement, and none of the parties hereto shall initiate or maintain any legal action at law or in equity against any other party hereto which is directly or indirectly related to any breach or threatened breach of the representations, warranties, covenants or obligations set forth in this Agreement, except in the case of intentional misrepresentation or fraud. In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in this Article VI.

(i)     Neither the condition set forth in Section 2.8(e) nor the receipt of the opinion described therein shall adversely affect any Purchaser Indemnified Party’s rights to recover any Damages under this Article VI or otherwise.

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Section 6.4.     Indemnification Procedures. Third Party Claims. If a party entitled to be indemnified under this Article VI (an “Indemnified Party”) receives notice of the assertion or commencement of any action, suit, claim or other legal proceeding made or brought by a Third Party (a “Third Party Claim”) against such Indemnified Party with respect to which the Indemnified Party wishes to assert an indemnification claim against the party subject to such indemnification obligation under this Article VI (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof (“Claim Notice”). The failure to promptly provide such a Claim Notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. A Claim Notice shall describe the Third Party Claim in reasonable detail, and shall indicate the estimated amount, if reasonably practicable, of the Damages that have been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third Party Claim at the Indemnifying Party's expense and by the Indemnifying Party's own counsel (as reasonably acceptable to the Indemnified Party), and the Indemnified Party shall use commercially reasonable efforts to cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 6.4(b), it shall have the right to take such action as it deems necessary to defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right, at its own cost and expense, to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying Party's right to control the defense thereof. If the Indemnifying Party elects not to compromise or defend such Third Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, the Indemnified Party may, subject to Section 6.4(b) pay, compromise, defend such Third Party Claim and seek indemnification for any and all Damages based upon, arising from or relating to such Third Party Claim. Sellers and Purchaser shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim.

(b)     Settlement of Third Party Claims. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not enter into settlement of any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), except as provided in this Section 6.4(b). If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party or others or providing any restrictions on the operation of such Person’s business as conducted, and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to consent to such firm offer within ten (10) days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer and also fails to assume defense of such Third Party Claim, the Indemnifying Party may settle the Third Party Claim upon the terms set forth in such firm offer to settle such Third Party Claim. If the Indemnified Party has assumed the defense pursuant to Section 6.4(a) it shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).

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(c)     Direct Claims. Any claim by an Indemnified Party on account of Damages which do not result from a Third Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party giving the Indemnifying Party prompt written notice thereof. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, and shall indicate the estimated amount, if reasonably practicable, of the Damages that have been or may be sustained by the Indemnified Party. The Indemnifying Party shall have thirty (30) days after its receipt of such notice to respond in writing to such Direct Claim. During such 30-day period, the Indemnified Party shall allow the Indemnifying Party and its Representatives a reasonable opportunity to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall use commercially reasonable efforts to assist the Indemnifying Party's investigation by giving such information and assistance (including access to the Indemnified Party's premises and personnel and the right to examine and copy any accounts, documents or records) as the Indemnifying Party or any of its Representatives may reasonably request. If the Indemnifying Party does not so respond within such 30-day period, the Indemnifying Party shall be deemed to have accepted such claim.

Section 6.5.     Payments; Escrow.

(a)     Within fifteen (15) business days after both (i) the resolution of any indemnification claim by any Purchaser Indemnified Party hereunder pursuant to which such Purchaser Indemnified Party is entitled to any payment from a Selling Party pursuant to Section 6.1 and (ii) the delivery by such Purchaser Indemnified Party of a written request for payment to such Selling Party, such payment shall be made by the applicable Selling Party. Subject to the terms of the Escrow Agreement, the Escrow Amount will be available to compensate the Purchaser Indemnified Parties for Damages for which such Purchaser Indemnified Parties are entitled to indemnification pursuant to Section 6.1 and in accordance with the Escrow Agreement.

(b)     Within fifteen (15) business days after both (i) the resolution of any indemnification claim by any Seller Indemnified Party hereunder pursuant to which such Seller Indemnified Party is entitled to any payment from Purchaser and (ii) the delivery by such Seller Indemnified Party of a written request for payment to Purchaser, such payment shall be made by the Purchaser.

(c)     The Indemnifying Party shall reimburse the Indemnified Party for any and all reasonable costs or expenses of any nature or kind whatsoever (including, but not limited to, all reasonable attorneys’ fees) incurred in seeking to collect any payments due under this Section 6.5.

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Section 6.6.     Treatment of Payments. Any indemnification payments made by any party hereto pursuant to this Agreement and any payments made pursuant to Section 2.9 shall be treated by all other parties as an adjustment to the Purchase Price set forth in Section 2.3.

ARTICLE VII.
MISCELLANEOUS

Section 7.1.     Knowledge. The term “knowledge” with respect to Sellers means the knowledge of each Member, Jonathan Kusnitz, Rick Hall, Robert McIlvaine, and Blake Vaughn after due inquiry of those Business Employees reporting directly to the Persons listed in this Section 7.1. In addition, a Person shall be deemed to have “knowledge” of any fact or matter set forth in documents or other materials that have been actually delivered to or have been in such Person’s actual possession (whether physical or electronic).

Section 7.2.     Governing Law. This Agreement will be construed in accordance with, and governed in all respects by, the laws of the State of Delaware (without giving effect to principles of conflicts of law).

Section 7.3.     Venue and Jurisdiction.

(a)     If any Matter or other legal action relating to this Agreement is brought or otherwise initiated, the venue therefor will be in the state court located in the Borough of Manhattan, New York, New York or the U.S. Federal District Court, Southern District of New York, which will be deemed to be a convenient forum. Purchaser and the Selling Parties hereby expressly and irrevocably consent and submit to the jurisdiction of the state court located in the Borough of Manhattan, New York, New York or the U.S. Federal District Court, Southern District of New York.

(b)     To the extent permitted by applicable Legal Requirements, each of the parties hereto hereby irrevocably waives any and all right to a trial by jury in any Matter arising out of or related to this Agreement or the Transaction Documents or the transactions contemplated hereby or thereby.

Section 7.4.     Notices. Any notice or other communication required or permitted to be delivered to a party under this Agreement must be in writing and will be deemed properly delivered, given and received when delivered (by hand, by registered mail, by courier or express delivery service, by facsimile or, with respect to Selling Parties, via electronic mail) to the address, facsimile telephone number, or with respect to the Selling Parties, the electronic mail address set forth beneath the name of such party below (or to such other address or facsimile telephone number as such party shall have specified in a written notice given to the other party):

if to Purchaser or Parent Company:

Fifth Gear Acquisitions, Inc.

Speed Commerce, Inc.

1303 E. Arapaho Rd.

Richardson, Texas 75081

Attn: General Counsel

53

with a copy (which shall not constitute notice) to:

Winthrop & Weinstine, P.A.

Suite 3500

225 South Sixth Street

Minneapolis, MN 55402

Attn: Scott J. Dongoske

If to Sellers, a Member or to Sellers' Representative:

Albert Langsenkamp

14254 Dove Drive
Carmel, IN 46033

with a copy (which shall not constitute notice) to:

Ice Miller LLP

One American Square

Suite 2900

Indianapolis, IN 46282

Attn: Steven K. Humke

Section 7.5.     Public Announcements. The initial press release with respect to the execution of this Agreement shall be a joint press release acceptable to Purchaser and Sellers' Representative, except as Purchaser reasonably believes, after receiving the advice of outside counsel and after informing all other parties to this Agreement, another form of press release may be required by Legal Requirement or by any listing agreement with a national securities exchange or trading market. Thereafter, so long as this Agreement is in effect, neither Sellers nor Purchaser shall issue or cause the publication of any press release or other announcement with respect to this Agreement or the transactions contemplated hereby without the prior consultation of the other party, except as Purchaser reasonably believes, after receiving the advice of outside counsel and after informing all other parties to this Agreement, another form of press release may be required by Legal Requirement or by any listing agreement with a national securities exchange or trading market.

Section 7.6.     Assignment. No party hereto may assign any of its rights or delegate any of its obligations under this Agreement (whether voluntarily, involuntarily, by way of merger or otherwise) to any other Person without the prior written consent of the other party; provided, however, that Sellers may, prior to the Closing, assign to any Person its right to receive all or any portion of the cash payment to be made by Purchaser at the Closing; and provided, further, that (a) Purchaser shall have the right to assign any of its rights or obligations under this Agreement to one or more of its Affiliates, and Purchaser and each such Affiliate shall have the right to assign any of its rights or obligations under this Agreement to any purchaser of a material portion of its assets or a successor as part of purchaser’s reorganization, sale or merger to or with such successor, so long as such party remains liable for such Affiliate’s or Purchaser’s obligations hereunder and (b) Purchaser may assign its rights hereunder for collateral security purposes to any lender or lenders, or agent therefor, providing financing to Purchaser or any of its Affiliates in connection with the transactions contemplated hereby, or to any assignee or assignees of any such lender, lenders or agent.

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Section 7.7.     Parties in Interest. Nothing in this Agreement is intended to provide any rights or remedies to any Person other than the parties hereto.

Section 7.8.     Bulk Sales Laws. The parties hereby waive compliance with the provisions of any bulk sales, bulk transfer or similar Laws of any jurisdiction that may otherwise be applicable with respect to the sale of any or all of the Purchased Assets to Purchaser. As between Purchaser and Sellers, Purchaser shall have no obligation to give bulk transfer notices to creditors, claimants or other Persons.

Section 7.9.     Severability. In the event that any provision of this Agreement, or the application of such provision to any Person or set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Agreement, and the application of such provision to Persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, will not be affected and will continue to be valid and enforceable to the fullest extent permitted by law.

Section 7.10.     Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof in any state court located in the Borough of Manhattan, New York, New York or the U.S. Federal District Court, Southern District of New York in addition to any other remedy to which they are entitled at law or in equity.

Section 7.11.     Entire Agreement. This Agreement, the Confidentiality Agreement (which remains in full force and effect) and the Transaction Documents set forth the entire understanding of the parties hereto and supersede all other agreements and understandings among the parties relating to the subject matter hereof and thereof.

Section 7.12.     Waiver. No failure on the part of a party hereto to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of such party in exercising any power, right, privilege or remedy under this Agreement, will operate as a waiver thereof; and no single or partial exercise of any such power, right, privilege or remedy will preclude any other or further exercise thereof or of any other power, right, privilege or remedy. Any waiver of any provision of this Agreement and any consent given hereunder must be in writing signed by the party sought to be bound. The waiver by any party of breach or violation of any provision of this Agreement will not operate as, or be construed to constitute, a waiver of any subsequent breach or violation of the same or any other provision hereof.

Section 7.13.     Amendments. This Agreement may not be amended, modified, altered or supplemented except by means of a written instrument executed on behalf of each parties.

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Section 7.14.     Counterparts. This Agreement may be executed in several counterparts, each of which will constitute an original and all of which, when taken together, will constitute one agreement.

Section 7.15.     Interpretation of Agreement.

(a)     Each party hereto acknowledges that it has participated in the drafting of this Agreement, and any applicable rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of this Agreement.

(b)     Whenever required by the context hereof, the singular number will include the plural, and vice versa; the masculine gender will include the feminine and neuter genders; and the neuter gender will include the masculine and feminine genders.

(c)     As used in this Agreement, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, and will be deemed to be followed by the words “without limitation.”

(d)     Unless the context otherwise requires, references in this Agreement to “Sections,” “Schedules” and “Exhibits” are intended to refer to Sections of and Schedules and Exhibits to this Agreement.

(e)     The table of contents of this Agreement and the headings contained in this Agreement are for convenience of reference only, will not be deemed to be a part of this Agreement and will not be referred to in connection with the construction or interpretation of this Agreement.

Section 7.16.     Appointment of the Sellers' Representative.

(a)     By the execution and delivery of this Agreement, each Selling Party hereby irrevocably constitutes and appoints Albert Langsenkamp as the initial true and lawful agent and attorney in fact (the “Sellers' Representative”) of such Selling Party with full authority and power of substitution to act in the name, place and stead of such Selling Party with respect to the consummation of the transactions contemplated hereunder. Without limiting the generality of the foregoing, the Sellers' Representative has full power and authority, on behalf of each Selling Party and his or its successors and assigns, to (i) interpret the terms and provisions of this Agreement and the Escrow Agreement, (ii) execute and deliver and receive deliveries of the Escrow Agreement and all agreements, amendments, certificates, statements, notices, approvals, extensions, waivers, undertakings and other documents required or permitted to be given in connection with the consummation of the transactions contemplated by this Agreement, (iii) negotiate and settle any dispute related to any post Net Working Capital adjustments as contemplated by Section 2.9, including by making or authorizing any payment to Purchaser on behalf of the Selling Parties in connection therewith, (iv) receive service of process in connection with any indemnification claims under this Agreement, (v) agree to, negotiate, enter into settlements and compromises of, and assume the defense of, indemnification claims (other than claims with respect to Sections 3.12(b)-(d) for which such authority shall vest only in the applicable Selling Party) and initiate claims and comply with orders and judgments with respect to such indemnification claims (other than claims arising under Sections 3.12(b)-(d) which shall be the sole responsibility of the applicable Seller), and to take all actions necessary or appropriate in the judgment of the Sellers' Representative for the accomplishment of the foregoing, (vi) give and receive notices and communications, (vii) authorize delivery or object to delivery to any Purchaser Indemnified Party of the Escrow Amount or any portion thereof in satisfaction of indemnification claims brought by any Purchaser Indemnified Party hereunder, and (viii) take all actions necessary or appropriate in the judgment of the Sellers' Representative on behalf of the Sellers in connection with this Agreement.

56

(b)     Purchaser, and any other Person, may conclusively and absolutely rely, without inquiry, upon any consent, approval or action of the Sellers' Representative as the consent, approval or action, as the case may be, of each Selling Party individually and all Selling Parties as a group in all matters referred to herein, and each Selling Party confirms all that the Sellers' Representative shall do or cause to be done by virtue of his appointment as the Sellers' Representative. Notwithstanding the foregoing, the parties acknowledge that the Sellers' Representative shall have no authority or duty to any Person with respect to claims made with respect to Section 3.12(d), other than to receive service of process and notices with respect thereto.

(c)     This power of attorney, and all authority hereby conferred, is irrevocable and will not be terminated by any act of any Selling Party or by operation of Law, whether by the death or incapacity of any Selling Party or by the occurrence of any other event. To the extent the preceding sentence is deemed unenforceable, each Selling Party covenants and agrees that he or it shall not voluntarily revoke the power of attorney conferred in this Section 7.16. If any Selling Party dies or becomes incapacitated, disabled or incompetent (such deceased, incapacitated, disabled or incompetent Selling Party being a “Former Selling Party”) and, as a result, the power of attorney conferred by this Section 7.16 is revoked by operation of law, it shall not be a breach by such Former Selling Party under this Agreement if the heirs, beneficiaries, estate, administrator, executor, guardian, conservator or other legal representative of such Former Selling Party (each a “Successor Selling Party”) confirm the appointment of the Sellers' Representative as agent and attorneys in fact for such Successor Selling Party.

(d)     Each Selling Party hereby consents and agrees to all actions or inactions taken or omitted to be taken in good faith by the Sellers' Representative under this Agreement. In connection with the exercise of his duties, the Sellers' Representative will be entitled to consult with and rely upon legal counsel and other professional advisors, with the costs thereof (and all other out-of-pocket costs reasonably incurred by the Sellers' Representative incident to discharging its duties under this Agreement or the Transaction Documents) to be allocated among the Selling Parties in accordance with their respective pro-rata ownership of the Sellers (the amount of which may be withheld from any payment due to such Selling Parties hereunder). Each Selling Party shall indemnify, defend and hold the Sellers' Representative harmless from and against its pro-rata share of any and all claims, losses, liabilities, damages and expenses (including reasonable attorneys' fees and costs) which the Sellers' Representative may suffer or sustain as a result of any action taken, or not taken, in good faith hereunder. The Sellers' Representative shall have no duties except those which are expressly set forth herein. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL THE SELLERS' REPRESENTATIVE BE LIABLE TO ANY SELLING PARTY FOR ANY SPECIAL, SPECULATIVE, REMOTE, EXEMPLARY, INDIRECT, INCIDENTAL, TREBLE, CONSEQUENTIAL OR PUNITIVE DAMAGES.

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Section 7.17.     Expenses. Except as otherwise expressly provided herein, each party hereto shall bear his, her, or its own costs and expenses (including legal fees and expenses) incurred in connection with the Transaction Documents and transactions contemplated thereby.

[SIGNATURE PAGES TO FOLLOW]

58

The parties hereto have caused this Asset Purchase Agreement to be executed as of the date first set forth above.

SELLERS:
SIGMA HOLDINGS, LLC By:                                                                                              Print Name:                                                                                   Title:	SIGMA MICRO, LLC By:  Print Name:                                                                             Title:
LEXTON GROUP, L.L.C. By:                                                                                                  Print Name:                                                                                    Title:
MEMBERS:

The parties hereto have caused this Asset Purchase Agreement to be executed as of the date first set forth above.

SELLERS' REPRESENTATIVE:

Albert Langsenkamp

The parties hereto have caused this Asset Purchase Agreement to be executed as of the date first set forth above.

PURCHASER:

FIFTH GEAR ACQUISITIONS, INC.

PARENT COMPANY:

SPEED COMMERCE, INC.

EX-10

Exhibit 10.1

 Execution Copy

AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT

dated as of November 21, 2014

among

SPEED COMMERCE, INC,

as the Company,

CERTAIN SUBSIDIARIES OF THE COMPANY
as Guarantors,

VARIOUS LENDERS,

GARRISON LOAN AGENCY SERVICES LLC
as Administrative Agent, Collateral Agent, Lead Arranger, Syndication Agent and Documentation Agent

$100,000,000 Senior Secured Credit Facilities

8824/32156-011 current/45453051v18

 Execution Copy

TABLE OF CONTENTS

		Page
SECTION 1.	DEFINITIONS AND INTERPRETATION	2
1.1	Definitions	2
1.2	Accounting Terms	30
1.3	Interpretation, etc	30
1.4	Rounding	30
SECTION 2.	LOANS	31
2.1	Closing Date Term Loans	31
2.2	Restatement Date Term Loans	31
2.3	[Reserved]	31
2.4	Pro Rata Shares	31
2.5	Use of Proceeds	32
2.6	Evidence of Debt; Register; Lenders’ Books and Records; Notes	32
2.7	Interest on Loans	33
2.8	[Reserved]	33
2.9	Default Interest	33
2.10	Fees	34
2.11	Scheduled Installments	34
2.12	Voluntary Prepayments/Commitment Reductions	35
2.13	Mandatory Prepayments/Commitment Reductions	36
2.14	Application of Prepayments/Reductions	38
2.15	General Provisions Regarding Payments	38
2.16	Ratable Sharing	39
2.17	Making or Maintaining LIBOR Rate Loans	40
2.18	Increased Costs; Capital Adequacy	41
2.19	Taxes; Withholding, etc.	42
2.20	Obligation to Mitigate	44
2.21	Removal or Replacement of a Lender	44
2.22	Tax Treatment	45
SECTION 3.	CONDITIONS PRECEDENT	45
3.1	Closing Date	45
3.2	Restatement Date	49
SECTION 4.	REPRESENTATIONS AND WARRANTIES	53
4.1	Organization; Requisite Power and Authority; Qualification	53
4.2	Capital Stock and Ownership	54
4.3	Due Authorization	54
4.4	No Conflict	54
4.5	Governmental Consents	54
4.6	Binding Obligation	54
4.7	Historical Financial Statements	54
4.8	Projections	55
4.9	No Restricted Junior Payments	55
4.10	Adverse Proceedings, etc.	55

 i

 Execution Copy

4.11	Payment of Taxes	55
4.12	Properties	55
4.13	Environmental Matters	56
4.14	No Defaults	56
4.15	Material Contracts	56
4.16	Governmental Regulation	56
4.17	Margin Stock	57
4.18	Employee Matters	57
4.19	Employee Benefit Plans	57
4.20	Certain Fees	58
4.21	Solvency	58
4.22	Divested Business Documents and Fifth Gear Acquisition Documents	58
4.23	Conditions Precedent	59
4.24	Disclosure	59
4.25	Anti-Terrorism Laws	60
4.26	Independent Contractors	60
SECTION 5.	AFFIRMATIVE COVENANTS	60
5.1	Financial Statements and Other Reports	61
5.2	Existence	64
5.3	Payment of Taxes and Claims	64
5.4	Maintenance of Properties	65
5.5	Insurance	65
5.6	Inspections	65
5.7	Lenders Meetings	65
5.8	Compliance with Laws and Material Contracts	66
5.9	Environmental	66
5.10	Subsidiaries	67
5.11	Additional Material Real Estate Assets and Material Leasehold Properties	67
5.12	Further Assurances	69
5.13	Miscellaneous Business Covenants	69
5.14	Post-Closing Matters	69
SECTION 6.	NEGATIVE COVENANTS.	70
6.1	Indebtedness	70
6.2	Liens	71
6.3	Equitable Lien	73
6.4	No Further Negative Pledges	73
6.5	Restricted Junior Payments	73
6.6	Restrictions on Subsidiary Distributions	73
6.7	Investments	74
6.8	Financial Covenants	74
6.9	Fundamental Changes; Disposition of Assets; Acquisitions	78
6.10	Disposal of Subsidiary Interests	79
6.11	Sales and Lease Backs	80
6.12	Transactions with Shareholders and Affiliates	80
6.13	Conduct of Business; Foreign Subsidiaries	80
6.14	Amendments to or Waivers of Divested Business Documents and Fifth Gear Acquisition Documents	80

ii 

 Execution Copy

6.15	Amendments or Waivers with respect to Certain Indebtedness	81
6.16	Fiscal Year	81
6.17	Deposit Accounts	81
6.18	Amendments to Organizational Agreements and Material Contracts	81
6.19	Prepayments of Certain Indebtedness	81
SECTION 7.	GUARANTY	82
7.1	Guaranty of the Obligations	82
7.2	Contribution by Guarantors	82
7.3	Payment by Guarantors	82
7.4	Liability of Guarantors Absolute	83
7.5	Waivers by Guarantors	84
7.6	Guarantors’ Rights of Subrogation, Contribution, etc.	85
7.7	Subordination of Other Obligations	85
7.8	Continuing Guaranty	86
7.9	Authority of Guarantors or Company	86
7.10	Financial Condition of Company	86
7.11	Bankruptcy, etc.	86
SECTION 8.	EVENTS OF DEFAULT	87
8.1	Events of Default	87
SECTION 9.	AGENTS	89
9.1	Appointment of Agents	89
9.2	Powers and Duties	90
9.3	General Immunity	90
9.4	Agents Entitled to Act as Lender	91
9.5	Lenders’ Representations, Warranties and Acknowledgment	91
9.6	Right to Indemnity	91
9.7	Successor Administrative Agent and Collateral Agent	92
9.8	Collateral Documents and Guaranty	93
9.9	Protective Advances	93
SECTION 10.	MISCELLANEOUS	94
10.1	Notices	94
10.2	Expenses	94
10.3	Indemnity	95
10.4	Set Off	95
10.5	Amendments and Waivers	95
10.6	Successors and Assigns; Participations	97
10.7	Independence of Covenants	100
10.8	Survival of Representations, Warranties and Agreements	100
10.9	No Waiver; Remedies Cumulative	100
10.10	Marshaling; Payments Set Aside	100
10.11	Severability	100
10.12	Obligations Several; Independent Nature of Lenders’ Rights	101
10.13	Headings	101
10.14	APPLICABLE LAW	101
10.15	CONSENT TO JURISDICTION	101

 Execution Copy

10.16	WAIVER OF JURY TRIAL	102
10.17	Confidentiality	102
10.18	Usury Savings Clause	103
10.19	Counterparts	104
10.20	Effectiveness	104
10.21	Patriot Act	104
10.22	Agreements Among Lenders	104
10.23	Continued Effectiveness	104

 Execution Copy

APPENDICES:	A	Commitments
	B	Notice Addresses
ANNEX:	A	Certain Add-backs to Consolidated Adjusted EBITDA
SCHEDULES:	1.1	Certain Material Real Estate Assets
	4.1	Jurisdictions of Organization and Qualification
	4.2	Capital Stock and Ownership
	4.12	Real Estate Assets
	4.15	Material Contracts
	5.14	Certain Post Closing Matters
	6.1	Certain Indebtedness
	6.2	Certain Liens
	6.7	Certain Investments
	6.12	Certain Affiliate Transactions
EXHIBITS:	A	Funding Notice
	B-1	Closing Date Term Loan Note
	B-2	Restatement Date Term Loan Note
	C	Compliance Certificate
	D	Assignment Agreement
	E	Certificate Regarding Non-bank Status
	F-1	Closing Date Certificate
	F-2	Restatement Date Certificate
	F-3	Solvency Certificate
	G	Counterpart Agreement
	H	Landlord Personal Property Collateral Access Agreement
	I	Joinder Agreement

v 

 Execution Copy

AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT

This CREDIT AND GUARANTY AGREEMENT (this “Agreement”), dated as of November 21, 2014, is entered into by and among SPEED COMMERCE, INC., a Minnesota corporation (“Company”) and CERTAIN SUBSIDIARIES OF COMPANY, as Guarantors, the Lenders party hereto from time to time, GARRISON LOAN AGENCY SERVICES LLC (“GLAS”), as Administrative Agent (in such capacity, “Administrative Agent”), Collateral Agent (in such capacity, “Collateral Agent”), Lead Arranger, as Syndication Agent (in such capacity, “Syndication Agent”) and as Documentation Agent (in such capacity, “Documentation Agent”).

RECITALS:

WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in Section 1.1 hereof;

WHEREAS, the Administrative Agent, Collateral Agent, Syndication Agent, Documentation Agent, Company, certain Guarantors and certain Lenders (the “Original Lenders”) previously entered into that certain Credit Agreement (the “Original Credit Agreement”), dated as of July 9, 2014 (the “Closing Date”), pursuant to which, on the Closing Date, the Original Lenders made Closing Date Term Loans A (as defined in the Original Credit Agreement) in the aggregate principal of $15,000,000 and Closing Date Term Loans B (as defined in the Original Credit Agreement) in the aggregate principal of $20,000,000 to the Company;

WHEREAS, the parties hereto wish to combine the Closing Date Term Loans A (as defined in the Original Credit Agreement) and Closing Date Term Loans B (as defined in the Original Credit Agreement) on the date hereof into a single tranche of term loans referred to as the Closing Date Term Loans, on the terms and conditions set forth in this Agreement;

WHEREAS, on the Closing Date, the Original Lenders also committed to make up to an additional $15,000,000 of delayed draw term loans, and the parties hereto wish to terminate such commitments to make delayed draw term loans on the date hereof;

WHEREAS, the Company has formed a wholly-owned Subsidiary Fifth Gear Acquisitions, Inc., a Minnesota corporation (“Fifth Gear”), for the purpose of acquiring (the “Fifth Gear Acquisition”) substantially all of the assets of Sigma Holdings, LLC, an Indiana limited liability company (“Sigma Holdings”), Sigma Micro, LLC, an Indiana limited liability company (“Sigma Micro”) and Lexton Group, L.L.C., a Missouri limited liability company (“Lexton”, and together with Sigma Holdings and Sigma Micro, the “Fifth Gear Sellers”), pursuant to that certain Asset Purchase Agreement, dated as of the date hereof, by and among Fifth Gear, the Company, the Fifth Gear Sellers, and certain other parties thereto (as may be amended, restated or otherwise modified from time to time, the “Fifth Gear Acquisition Agreement”);

WHEREAS, to finance a portion of the consideration payable in connection with the Fifth Gear Acquisition and certain fees and expenses associated therewith and with the consummation of this Agreement, the lenders party to the Original Credit Agreement on the Restatement Date before giving effect to this Agreement (the “Existing Lenders”) have agreed to make additional term loans to the Company on the date hereof, and certain other Lenders party hereto have also agreed to make term loans to the Company on the date hereof, in an aggregate principal amount of $65,000,000 for all such term loans, such that upon the effectiveness of this Agreement the outstanding principal amount of all Term Loans is $100,000,000;

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WHEREAS, Company agreed to secure all of its Obligations and granted, on the Closing Date, to Collateral Agent, for the benefit of Secured Parties, a First Priority Lien on substantially all of its then-existing or after-acquired assets, including a pledge of all of the Capital Stock of each of its then-existing or thereafter created or acquired Domestic Subsidiaries and Foreign Subsidiaries that are not CFCs, and 65% of all the voting Capital Stock and 100% of all the non-voting Capital Stock of each of its then-existing or thereafter created or acquired Foreign Subsidiaries that is a CFC;

WHEREAS, Guarantors (including Company) agreed to guarantee the obligations of Company hereunder and to secure their respective Obligations by granting to Collateral Agent, on the Closing Date, for the benefit of Secured Parties, a First Priority Lien on their respective assets, including a pledge of all of the Capital Stock of each of their respective then-existing or thereafter created or acquired Subsidiaries and 65% of all the voting Capital Stock and 100% of all the non-voting Capital Stock of each of their respective then-existing or thereafter created or acquired Foreign Subsidiaries that is a CFC;

WHEREAS, on the date hereof (the “Restatement Date”), the Company and each of the Guarantors existing as of the Restatement Date reaffirm each of the grants, pledges and guarantees described in the foregoing two clauses; and

WHEREAS, on the Restatement Date, Fifth Gear agrees to guarantee the obligations of Company hereunder and to secure its Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a First Priority Lien on its assets, including a pledge of all of the Capital Stock of each of its existing or hereafter created or acquired Subsidiaries and 65% of all the voting Capital Stock and 100% of all the non-voting Capital Stock of each of its existing or hereafter created or acquired Foreign Subsidiaries that is a CFC.

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

SECTION 1. DEFINITIONS AND INTERPRETATION

1.1     Definitions. The following terms used herein, including in the preamble, recitals, exhibits and schedules hereto, shall have the following meanings:

“Act” as defined in Section 4.26.

“Additional Cash Collateralized Letter of Credit” means the letter of credit issued on behalf of the Company for the benefit of Welsh Navarre MN, LLC, on August 8, 2014, in the amount of $576,424, which is cash collateralized.

“Adjusted LIBOR Rate” means, for any Interest Rate Determination Date with respect to an Interest Period for a LIBOR Rate Loan, the rate per annum obtained by dividing (and rounding upward to the next whole multiple of 1/16 of 1%) (i) (a) the rate per annum equal to the Intercontinental Exchange Benchmark Administration Ltd (or any other successor entity to the Intercontinental Exchange Benchmark Administration Ltd) LIBO Rate (“ICE LIBOR”) as appearing on LIBOR01 Page published by Reuters (or other commercially available sources providing quotations of ICE LIBOR as determined by the Administrative Agent from time to time) at approximately 11:00 A.M. (London time) on such Interest Rate Determination Date for deposits in Dollars with a maturity comparable to such Interest Period, or (b) in the event the rate referenced in the preceding clause (a) is not available for any reason, the rate per annum (rounded to the nearest 1/100 of 1%) determined by Administrative Agent to be the average (rounded to the nearest 1/16^th of 1%) of the rates per annum at which deposits Dollars in an amount equal to the amount of such LIBOR Rate Loan are offered to major banks in the London interbank for contracts that would be entered into at the commencement of such Interest Period for the same duration as such Interest Period, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, by (ii) an amount equal to (a) one, minus (b) the Applicable Reserve Requirement. Notwithstanding anything to the contrary contained herein, in no event shall the Adjusted LIBOR Rate with respect to any Term Loan ever be less than one percent (1.00%) per annum.

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“Administrative Agent” as defined in the preamble hereto.

“Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Company or any of its Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the knowledge of Company or any of its Subsidiaries, threatened against or affecting Company or any of its Subsidiaries or any property of Company or any of its Subsidiaries.

“Affected Lender” as defined in Section 2.17(b).

“Affected Loans” as defined in Section 2.17(b).

“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling (including any member of the senior management group of such Person), controlled by, or under common control with, that Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power (i) to vote ten percent (10.0%) or more of the Securities having ordinary voting power for the election of directors of such Person, or (ii) to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise. Notwithstanding anything herein to the contrary, no Agent and no Lender shall be deemed to be an Affiliate of any Credit Party solely by virtue of the transactions contemplated by this Agreement and the other Credit Documents.

“Agent” means each of Syndication Agent, Administrative Agent, Collateral Agent and Documentation Agent.

“Aggregate Payments” as defined in Section 7.2.

“Agreement” means this Amended and Restated Credit and Guaranty Agreement, as it may be amended, supplemented or otherwise modified from time to time.

“Applicable Margin” means:

(i)     with respect to Closing Date Term Loans, a percentage, per annum, equal to seven and one-half percent (7.50%); and

(ii)     with respect to Restatement Date Term Loans, a percentage, per annum, equal to seven and one-half percent (7.50%).

“Applicable Reserve Requirement” means, at any time, for any LIBOR Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including, without limitation, any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the Board of Governors of the Federal Reserve System or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (i) any category of liabilities which includes deposits by reference to which the applicable Adjusted LIBOR Rate or any other interest rate of a Loan is to be determined, or (ii) any category of extensions of credit or other assets which include LIBOR Rate Loans. A LIBOR Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on LIBOR Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.

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“Asset Sale” means a sale, lease or sub lease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer, license or other disposition to, or any exchange of property with, any Person (other than to or with a Credit Party), in one transaction or a series of transactions, of all or any part of any Credit Party’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, including, without limitation, the Capital Stock of any of Credit Party, other than inventory sold, licensed for periods of 1 year or less or leased in the ordinary course of business. For purposes of clarification, “Asset Sale” shall include (x) the sale or other disposition for value of any contracts or (y) the early termination or modification of any contract resulting in the receipt by any Credit Party of a cash payment or other consideration in exchange for such event.

“Asset Sale Reinvestment Amounts” has the meaning given to such term in Section 2.13(a).

“Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit D, with such amendments or modifications as may be approved by Administrative Agent.

“Authorized Officer” means, as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president or one of its vice presidents (or the equivalent thereof), and such Person’s chief financial officer or treasurer; provided, that, with respect to financial reporting and other financial matters (including Compliance Certificates, Consolidated Excess Cash Flow calculations and Solvency Certificates), “Authorized Officer” means the president or chief financial officer (or another officer with comparable duties) of such Credit Party.

“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.

“Base Rate” means, for any day, a rate per annum equal to the greatest of (i) the Prime Rate in effect on such day, (ii) the Federal Funds Effective Rate in effect on such day plus one-half percent (0.50%). Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively. Notwithstanding anything to the contrary contained herein, in no event shall the Base Rate with respect to any Term Loan ever be less than one percent (1.00%) per annum.

“Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base Rate.

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“Beneficiary” means each Agent and each Lender.

“Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in either such state are authorized or required by law or other governmental action to close, and (ii) with respect to all notices, determinations, fundings and payments in connection with the Adjusted LIBOR Rate or any LIBOR Rate Loans, the term “Business Day” means any day which is a Business Day described in clause (i) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market.

“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person.

“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including, without limitation, partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.

“Cash” means money, currency or a credit balance in any demand or Deposit Account; provided, however, that notwithstanding anything to the contrary contained herein, for purposes of calculating compliance with the requirements of Sections 3 and 6 hereof “Cash” shall exclude any amounts that would not be considered “cash” under GAAP or “cash” as recorded on the books of the Company and the Guarantors.

“Cash Equivalents” means, as at any date of determination, (i) marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government, or (b) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such date; (ii) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iii) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iv) certificates of deposit or bankers’ acceptances maturing within one year after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia that (a) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator), and (b) has Tier 1 capital (as defined in such regulations) of not less than $100,000,000; and (v) shares of any money market mutual fund that (a) has substantially all of its assets invested continuously in the types of investments referred to in clauses (i) and (ii) above, (b) has net assets of not less than $500,000,000, and (c) has the highest rating obtainable from either S&P or Moody’s.

“Certificate Regarding Non Bank Status” means a certificate substantially in the form of Exhibit E.

“CFC” means a “controlled foreign corporation” as defined in Section 957(a) of the Internal Revenue Code.

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“Change of Control” means, at any time, (i) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) (a) shall have acquired beneficial ownership of forty percent (40.0%) or more on a fully diluted basis of the voting and/or economic interest in the Capital Stock of Company or (b) shall have obtained the power (whether or not exercised) to elect a majority of the members of the board of directors (or similar governing body) of Company; (ii) any “change of control” or similar event under any Material Contract shall occur.

“Closing Date” has the meaning set forth in the recitals.

“Closing Date Certificate” means a Closing Date Certificate substantially in the form of Exhibit F-1.

“Closing Date Term Loan” means a term loan made on the Closing Date in the form of a Closing Date Term Loan A (as defined in the Original Credit Agreement) or a Closing Date Term Loan B (as defined in the Original Credit Agreement), which, as of the Restatement Date by operation of this Agreement, shall be combined into a single tranche of term loan on the terms and conditions set forth herein. The principal amount of each Lender’s outstanding Closing Date Term Loan as of the Restatement Date, if any, is set forth on Appendix A. The aggregate amount of the Closing Date Term Loans on the Restatement Date is Thirty Five Million Dollars ($35,000,000).

“Closing Date Transaction Costs” means the fees, costs and expenses payable by Company or any of Company’s Subsidiaries on or before the Closing Date in connection with the transactions contemplated by the Credit Documents and the Divested Business Documents, to the extent approved in writing by Administrative Agent.

“Collateral” means, collectively, all of the real, personal and mixed property (including Capital Stock) in which Liens are purported to be granted pursuant to the Collateral Documents as security for the Obligations.

“Collateral Agent” as defined in the preamble hereto.

“Collateral Assignment of Fifth Gear Acquisition Agreement” means that certain Collateral Assignment Agreement, dated as of the Restatement Date, by Fifth Gear in favor of Administrative Agent, as the same may be amended, restated or otherwise modified from time to time in accordance with the terms thereof.

“Collateral Documents” means the Pledge and Security Agreement, the Mortgages, the Landlord Personal Property Collateral Access Agreements, the Collateral Assignment of Fifth Gear Acquisition Agreement, if any, and all other instruments, documents and agreements delivered by any Credit Party pursuant to this Agreement or any of the other Credit Documents in order to grant to Collateral Agent, for the benefit of Secured Parties, a Lien on any real, personal or mixed property of that Credit Party as security for the Obligations.

“Commitment” means any Restatement Date Term Loan Commitment. For the avoidance of doubt, commitments in respect of the Closing Date Term Loans were fully funded on the Closing Date and terminated at such time.

“Company” as defined in the preamble hereto.

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“Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C.

“Consolidated Adjusted EBITDA” means, subject to Section 6.8(f), for any period, an amount determined for Company and its Subsidiaries on a consolidated basis equal to:

(i) the sum, without duplication (including without duplication of any adjustments made pursuant to Section 6.8(f)), of the amounts for such period of:

(a) Consolidated Net Income, plus

(b) Consolidated Interest Expense, plus

(c) provisions for taxes based on income, plus

(d) total depreciation expense, plus

(e) total amortization expense, plus

(f) non-recurring expenses and losses (to be offset by any corresponding income or gains) resulting from Company’s sale of the Divested Business, including personnel costs, lease costs for Company’s location at 7400 49^th Avenue North, New Hope, MN 55428, and the buy-back of certain accounts receivable, in each case as approved by Administrative Agent, incurred prior to September 30, 2014, and in an amount to be determined after completion of financial statements for the Fiscal Quarter of the Company ending on June 30, 2014 (provided that the cash outlay in connection therewith on and after July 1, 2014 shall not exceed an aggregate amount of Eight Million Dollars ($8,000,000)); plus

(g) one-time reasonable and documented out-of-pocket physical moving expenses and transportation expenses relating to the relocation of certain customers from Company’s warehouse at 10300 Sanden Road, Suite 100, Dallas, Texas 75081 to Company’s warehouse at 175 Heritage Drive, Pataskala, Ohio 43062 incurred during the Fiscal Quarters ending June 30, 2014 and September 30, 2014, in an aggregate amount not to exceed Five Hundred Thousand Dollars ($500,000), plus

(h) (i) one-time out-of-pocket expenses incurred during the Fiscal Quarters ending June 30, 2014 and September 30, 2014 and relating to the amendment of the Existing Indebtedness and related refinancing of debt, including advisory, legal and consulting fees, and the write-off of unamortized prepayment fees, in an aggregate amount not to exceed One Million Two Hundred Fifty Thousand Dollars ($1,250,000) and (ii) one-time out-of-pocket expenses incurred during the Fiscal Quarter ending December 31, 2014 and relating to the Restatement Date Transactions, including advisory, legal and consulting fees, in an aggregate amount not to exceed Four Million Dollars ($4,000,000), plus

(i) one-time expenses resulting from credits issued to vendors relating to services previously rendered in an aggregate amount not to exceed (i) One Million Six Hundred Thousand Dollars ($1,600,000) incurred during the Fiscal Quarters ending June 30, 2014 and September 30, 2014 and (ii) Six Hundred Thousand Dollars ($600,000) during the Fiscal Quarter ending December 31, 2014, plus

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(j) non-cash expense resulting from the mark-to-market adjustment relating to preferred Capital Stock of Company, plus

(k) any amount deducted from Consolidated Net Income resulting from any non-cash grant of Capital Stock to any members of the management of Company, in an aggregate amount not to exceed Four Million Dollars ($4,000,000) in any Fiscal Year, plus

(l) losses resulting from fluctuations in currency exchange rates, plus

(m) non-cash losses from extraordinary, non-recurring items for such period, plus

(n) non-cash items decreasing Consolidated Net Income for such period,

minus (ii) the sum, without duplication of the amounts for such period of:

(a) non-Cash items increasing Consolidated Net Income for such period (excluding any such non Cash item to the extent it represents the reversal of an accrual or reserve for potential Cash item in any prior period), plus

(b) interest income, plus

(c) gains resulting from fluctuations in currency exchange rates, plus

(d) non-cash gains from extraordinary, non-recurring items for such period, plus

(e) non-cash income resulting from the mark-to-market adjustment relating to preferred Capital Stock of Company, plus

(f) other income,

plus (iii) the sum, without duplication of the amounts for such period of:

(a) non-cash losses resulting from fluctuations in currency exchange rates, plus

(b) non-cash losses from extraordinary, non-recurring items for such period, plus

(c) the add-backs and synergies scheduled on Annex A, plus

(d) one-time expenses incurred by the Company and Fifth Gear Sellers in connection with the Fifth Gear Acquisition (both before and after, but within thirty (30) days, of the Fifth Gear Acquisition.

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Notwithstanding the foregoing, it is acknowledged and agreed that for all purposes under this Agreement, Consolidated Adjusted EBITDA shall be deemed to be the amount set forth in the table below for the periods indicated therein.

Fiscal Quarter ending March 31, 2014	$6,409,000
Fiscal Quarter ending June 30, 2014	$2,794,000
Fiscal Quarter ending September 30, 2014	$4,605,000

“Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures of Company and its Subsidiaries during such period determined on a consolidated basis that, in accordance with GAAP, are or should be included in “purchase of property and equipment or which should otherwise be capitalized” or similar items reflected in the consolidated statement of cash flows of Company and its Subsidiaries.

“Consolidated Cash Interest Expense” means, subject to Section 6.8(f), for any period, Consolidated Interest Expense for such period based upon GAAP, excluding any paid-in-kind interest, amortization of deferred financing costs, and any realized or unrealized gains or losses attributable to Interest Rate Agreements.

“Consolidated Current Assets” means, as at any date of determination, the total assets of Company and its Subsidiaries on a consolidated basis that may properly be classified as current assets in conformity with GAAP, excluding Cash and Cash Equivalents and any assets of the Divested Business that were sold on the Closing Date pursuant to the Divested Business Agreement.

“Consolidated Current Liabilities” means, as at any date of determination, the total liabilities of Company and its Subsidiaries on a consolidated basis that may properly be classified as current liabilities in conformity with GAAP, excluding the current portion of long term debt and any liabilities of the Divested Business that were transferred on the Closing Date pursuant to the Divested Business Agreement.

“Consolidated EBITDA” means, subject to Section 6.8(f), for any period, an amount determined for Company and its Subsidiaries on a consolidated basis equal to

(i) the sum, without duplication (including without duplication of any adjustments made pursuant to Section 6.8(f)) of the amounts for such period of:

(a) Consolidated Net Income, plus

(b) Consolidated Interest Expense, plus

(c) provisions for taxes based on income, plus

(d) total depreciation expense, plus

(e) total amortization expense, plus

(f) non-cash items decreasing Consolidated Net Income for such period, plus

(g) one-time expenses incurred by Company and Fifth Gear Sellers in connection with the Fifth Gear Acquisition (both before and after closing of the Fifth Gear Acquisition), plus

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(h) any amount deducted from Consolidated Net Income resulting from any non-cash grant of Capital Stock to any members of the management of Company, in an aggregate amount not to exceed Four Million Dollars ($4,000,000) in any Fiscal Year, plus

(i) software development expenses incurred by the Fifth Gear Seller between October 1, 2014, through the closing of the Fifth Gear Acquisition,

minus (ii) the sum, without duplication of the amounts for such period of:

(a) non-Cash items increasing Consolidated Net Income for such period (excluding any such non Cash item to the extent it represents the reversal of an accrual or reserve for potential Cash item in any prior period), plus

(b) interest income, plus

(c) gains resulting from fluctuations in currency exchange rates, plus

(d) non-cash gains from extraordinary, non-recurring items for such period, plus

(e) other income.

Notwithstanding the foregoing, it is acknowledged and agreed that for all purposes of this Agreement, Consolidated EBITDA shall be deemed to be in the amount of $3,434,000 for the Fiscal Quarter ending September 30, 2014.

“Consolidated Excess Cash Flow” means, for any period, an amount (if positive) determined for Company and its Subsidiaries on a consolidated basis equal to: (i) the sum, without duplication, of the amounts for such period of (a) Consolidated EBITDA, plus (b) interest income, plus (c) other income (excluding any gains or losses attributable to Asset Sales and non-cash other income), plus (d) the Consolidated Working Capital Adjustment, minus (ii) the sum, without duplication, of the amounts for such period of (a) voluntary and scheduled repayments of Consolidated Total Debt, plus (b) Consolidated Capital Expenditures to the extent permitted to be incurred hereunder (net of any proceeds of (x) Net Asset Sale Proceeds to the extent reinvested in accordance with Section 2.13(a), (y) Net Insurance/Condemnation Proceeds to the extent reinvested in accordance with Section 2.13(b), and (z) any proceeds of related financings with respect to such expenditures), plus (c) Consolidated Cash Interest Expense, plus (d) provisions for current taxes based on income of Company and its Subsidiaries and payable in cash with respect to such period, plus (e) any adjustments made to Consolidated EBITDA pursuant to Section 6.8(f) in connection with the Fifth Gear Acquisition, plus (f) the amount of the items set forth in Section (i)(f), (g), (h) and (i) in the definition of Consolidated EBITDA.

“Consolidated Fixed Charges” means, subject to Section 6.8(f) (including in respect of the Divested Business and the Fifth Gear Acquisition), for any period, the sum, without duplication, of the amounts determined for Company and its Subsidiaries on a consolidated basis equal to (i) Consolidated Cash Interest Expense, (ii) scheduled payments of principal on Consolidated Total Debt, (iii) Consolidated Capital Expenditures, (iv) the current portion of taxes provided for with respect to such period in accordance with GAAP, and (v) Restricted Junior Payments paid in cash to any Person (other than a Credit Party) during such period; provided, that, with respect to clause (iii) of this definition, for the purposes of determining compliance with Section 6.8(b), Consolidated Capital Expenditures in an amount up to $1,000,000 shall be excluded from the calculation of Consolidated Fixed Charges for each of the Fiscal Quarters ending March 31, 2015, June 30, 2015 and September 30, 2015.

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“Consolidated Interest Expense” means, subject to Section 6.8(f), for any period, total interest expense (including that portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of Company and its Subsidiaries on a consolidated basis with respect to all outstanding Consolidated Total Debt, including all commissions, discounts and other fees and charges owed with respect to letters of credit and net costs under Interest Rate Agreements, but excluding, however, any amounts referred to in Section 2.10(d) payable on or before the Closing Date.

“Consolidated Net Income” means, subject to Section 6.8(f) (including in respect of the Divested Business and the Fifth Gear Acquisition), for any period, (i) the net income (or loss) of Company and its Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP, minus (without duplication) (ii) the sum of (a) the income (or loss) of any Person (other than a Subsidiary of Company) in which any other Person (other than Company or any of its Subsidiaries) has a joint interest, plus (b) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of Company or is merged into or consolidated with Company or any of its Subsidiaries or that Person’s assets are acquired by Company or any of its Subsidiaries, plus (c) the income of any Subsidiary of Company to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary, plus (d) any gains or losses attributable to Asset Sales or returned surplus assets of any Pension Plan, plus (e) (to the extent not included in clauses (a) through (d) above) any net extraordinary gains or net extraordinary losses.

“Consolidated Total Debt” means, subject to Section 6.8(f), as at any date of determination, the aggregate stated balance sheet amount of all Indebtedness of Company and its Subsidiaries determined on a consolidated basis in accordance with GAAP, but shall exclude preferred Capital Stock of the Company issued and outstanding on the Closing Date.

“Consolidated Working Capital” means, as at any date of determination, the excess or deficiency of Consolidated Current Assets over Consolidated Current Liabilities.

“Consolidated Working Capital Adjustment” means, for any period of determination on a consolidated basis, the amount (which may be a negative number) by which Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period.

“Continuing” or “Continuance” means (i) with respect to a Default, the occurrence of a Default that neither has been cured in accordance with the Credit Documents nor has become an Event of Default, and (ii) with respect to an Event of Default, the occurrence of an Event of Default that has not expressly been waived in writing by the Persons required in accordance with Section 10.5

“Contractual Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.

“Contributing Guarantors” as defined in Section 7.2.

“Controlled Account” means a Deposit Account of a Credit Party which is subject to the sole dominion and control of the Collateral Agent, for the benefit of the Secured Parties, in accordance with the terms of the Pledge and Security Agreement.

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“Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit G delivered by a Credit Party pursuant to Section 5.10.

“Credit Document” means any of this Agreement, the Notes, if any, the Collateral Documents, the Fee Letter, the Reaffirmation Agreement and all other documents, instruments or agreements executed and delivered by a Credit Party for the benefit of any Agent or any Lender in connection herewith.

“Credit Party” means each Person (other than any Agent or any Lender or any other representative thereof) from time to time party to a Credit Document.

“Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.

“Default Rate” means any interest payable pursuant to Section 2.9.

“Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.

“Divested Business” means the business and assets of Company and its Subsidiaries conveyed, sold, transferred or otherwise disposed of pursuant to the Divested Business Documents.

“Divested Business Agreement” means that certain Asset Purchase Agreement, dated as of the Closing Date, by and among Company and certain of its Subsidiaries, as sellers, and Wynit Distribution, LLC, WD Encore Software, LLC, WD Navarre Distribution, LLC, WD Navarre Digital Services, LLC, WD Navarre Canada, ULC and WD Navarre Holdings, LLC, as purchasers, as it may be amended, supplemented or otherwise modified from time to time in accordance with this Agreement.

“Divested Business Documents” means, collectively, the Divested Business Agreement, and all other documents to be executed or delivered in connection with the consummation of the transactions contemplated thereby.

“Divested Business Note” means that certain Secured Promissory Note, dated as of July 9, 2014, executed by the purchasers under the Divested Business Agreement in favor of Company in the original principal amount of $10,000,000.

“Documentation Agent” as defined in the preamble hereto.

“Dodd-Frank Act” means the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203, H.R. 4173) signed into law on July 21, 2010, as amended from time to time.

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

“Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of America, any State thereof or the District of Columbia.

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“Eligible Assignee” means (i) any Lender, any Affiliate of any Lender and any Related Fund (any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof), (ii) any commercial bank, insurance company, investment or mutual fund or other entity who is an “accredited investor” (as defined in Regulation D under the Securities Act), who is approved by Administrative Agent, such approval not to be unreasonably withheld, conditioned or delayed, and (iii) any other Person (other than a natural Person) approved by Administrative Agent, such approval not to be unreasonably withheld, conditioned or delayed; provided, that, no Person shall be an Eligible Assignee that fails or refuses to join, acknowledge and agree to the Intercreditor Agreement; provided, further, that (x) neither (A) Company nor any Affiliate of Company nor (B) any Person who beneficially owns more than ten percent (10.0%) of the voting and/or economic interest in the Capital Stock of Company (on a fully diluted basis) nor any Affiliate of any such Person shall, in any event, be an Eligible Assignee and (y) no Person owning or controlling any trade debt or Indebtedness of any Credit Party other than the Obligations or any Capital Stock of any Credit Party (in each case, unless approved by the Administrative Agent) shall, in any event, be an Eligible Assignee.

“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to by, or required to be contributed by, Company, any of its Subsidiaries or any of their respective ERISA Affiliates.

“Environmental Claim” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the environment.

“Environmental Laws” means any and all current or future foreign or domestic, federal or state (or any subdivision of either of them), statutes, ordinances, orders, rules, regulations, judgments, Governmental Authorizations, or any other requirements of Governmental Authorities relating to (i) environmental matters, including those relating to any Hazardous Materials Activity; (ii) the generation, use, storage, transportation or disposal of Hazardous Materials; or (iii) occupational safety and health, industrial hygiene, land use or the protection of human, plant or animal health or welfare, in any manner applicable to Company or any of its Subsidiaries or any Facility.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.

“ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above is a member. Any former ERISA Affiliate of Company or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of Company or any such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of Company or such Subsidiary and with respect to liabilities arising after such period for which Company or such Subsidiary could be liable under the Internal Revenue Code or ERISA.

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“ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for thirty day notice to the PBGC has been waived by regulation); (ii) the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(d) of the Internal Revenue Code) or the failure to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by Company, any of its Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to Company, any of its Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which might constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on Company, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of Company, any of its Subsidiaries or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by Company, any of its Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or omission which could give rise to the imposition on Company, any of its Subsidiaries or any of their respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against Company, any of its Subsidiaries or any of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien pursuant to Section 401(a)(29) or 430(k) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan.

“Event of Default” means each of the conditions or events set forth in Section 8.1.

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.

“Existing Cash Collateralized Letters of Credit” means letters of credit provided Wells Fargo Capital Finance, LLC and outstanding on the Closing Date, which shall be cash collateralized in an aggregate amount equal to $660,000 on the Closing Date.

“Existing Indebtedness” means Indebtedness and other obligations outstanding under that certain Credit Agreement, dated as of November 12, 2009, among Company, certain Subsidiaries of Company, the lenders party thereto and Wells Fargo Capital Finance, LLC, as agent for such lenders, as amended prior to the Closing Date.

“Extraordinary Receipts” means any payments received by Company or any of its Subsidiaries not in the ordinary course of business consisting of (a) proceeds of judgments, proceeds of settlements or other consideration of any kind in connection with any cause of action, (b) pension plan reversions, and (c) any purchase price adjustment (other than a working capital adjustment) received in connection with any purchase agreement (including without limitation the Divested Business Documents and the Fifth Gear Acquisition Documents), in each case net of reasonable fees, commissions and expenses (including taxes paid or payable to any taxing authorities) required to be paid by Company or such Subsidiary in connection with the events described in clauses (a) through (b) above.

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“Facility” means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by Company or any of its Subsidiaries or any of their respective predecessors or Affiliates.

“Fair Share Contribution Amount” as defined in Section 7.2.

“Fair Share” as defined in Section 7.2.

“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date hereof (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), and any regulations or official interpretations thereof (including any Revenue Ruling, Revenue Procedure, notice or similar guidance issued by the Internal Revenue Service thereunder as a precondition to relief or exemption from Taxes under such provisions).

“Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal, rounded upwards, if necessary, to the next higher 1/100 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 such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, (i) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to GLAS or any financial institution selected by Administrative Agent on such day on such transactions as determined by Administrative Agent.

“Fee Letter” means that certain amended and restated fee letter agreement dated as of the Restatement Date between Company and Administrative Agent.

“Fifth Gear” has the meaning set forth in the Recitals.

“Fifth Gear Acquisition” has the meaning set forth in the Recitals.

“Fifth Gear Acquisition Agreement” has the meaning set forth in the Recitals.

“Fifth Gear Acquisition Documents” means, collectively, the Fifth Gear Acquisition Agreement and all other documents to be executed or delivered in connection with the consummation of the transactions contemplated thereby.

“Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of the chief financial officer of Company that such financial statements fairly present, in all material respects, the financial condition of Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments.

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“Financial Plan” as defined in Section 5.1(i).

“First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is subject, other than any Permitted Lien.

“Fiscal Quarter” means a fiscal quarter of the Company and its Subsidiaries.

“Fiscal Year” means the fiscal year of Company and its Subsidiaries ending on March 31 of each calendar year.

“Fixed Charge Coverage Ratio” means the ratio as of the last day of (i) the first Fiscal Quarter ending after the Closing Date of (a) Consolidated Adjusted EBITDA for such Fiscal Quarter, to (b) Consolidated Fixed Charges for such Fiscal Quarter, (ii) the second Fiscal Quarter ending after the Closing Date of (a) Consolidated Adjusted EBITDA for the two Fiscal Quarters period ending on such date, to (b) Consolidated Fixed Charges for such two Fiscal Quarters, (iii) the third Fiscal Quarter period ending after the Closing Date of (a) Consolidated Adjusted EBITDA for the three Fiscal Quarter period ending on such date, to (b) Consolidated Fixed Charges for such three Fiscal Quarter period, and (iv) any other Fiscal Quarter of (a) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ending, to (b) Consolidated Fixed Charges for such four-Fiscal Quarter period.

“Flood Hazard Property” means any Real Estate Asset subject to a mortgage in favor of Collateral Agent, for the benefit of the Secured Parties, and located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.

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

“Funding Guarantors” as defined in Section 7.2.

“Funding Notice” means a notice substantially in the form of Exhibit A.

“GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2, United States generally accepted accounting principles in effect as of the date of determination thereof.

“Garrison Capital” means Garrison Capital LLC, a Delaware limited liability company.

“Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority.

“Governmental Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government.

“Governmental Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.

“Grantor” as defined in the Pledge and Security Agreement.

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“Guaranteed Obligations” as defined in Section 7.1.

“Guarantor” means each Guarantor Subsidiary and any other Person that may guaranty the Obligations from time to time.

“Guarantor Subsidiary” means each Subsidiary of Company (other than any Foreign Subsidiary that is a CFC).

“Guaranty” means the guaranty of each Guarantor set forth in Section 7.

“Hazardous Materials” means any chemical, material or substance, exposure to which is prohibited, limited or regulated by any Governmental Authority or which may or could pose a hazard to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or to the indoor or outdoor environment.

“Hazardous Materials Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing.

“Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.

“Historical Financial Statements” means, (a) as of the Closing Date, (i) the audited financial statements of Company and its Subsidiaries, for the Fiscal Year ended March 31, 2014 consisting of balance sheets and the related consolidated statements of income, stockholders’ equity and cash flows for such Fiscal Year, and (ii) for the interim period from March 31, 2014 to the Closing Date, internally prepared, unaudited financial statements of Company and its Subsidiaries, consisting of a balance sheet and the related consolidated statements of income, stockholders’ equity and cash flows for each quarterly period completed prior to forty-six (46) days before the Closing Date, in the case of clauses (a)(i) and (a)(ii), certified by the chief financial officer of Company that they fairly present, in all material respects, the financial condition of Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject, if applicable, to changes resulting from audit and normal year-end adjustments, and (b) as of the Restatement Date, (i) the audited financial statements of the Fifth Gear Sellers, for their fiscal year ended December 31, 2013 consisting of balance sheets and the related consolidated statements of income, stockholders’ equity and cash flows for such fiscal year, and (ii) for the interim period from January 1, 2014 through September 30, 2014, internally prepared, unaudited financial statements of the Fifth Gear Sellers, consisting of a balance sheet and the related consolidated statements of income, stockholders’ equity and cash flows for each quarterly period, in the case of clauses (b)(i) and (b)(ii), that fairly present, in all material respects, the financial condition of the Fifth Gear Sellers as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject, if applicable, to changes resulting from audit and normal year-end adjustments.

“Increased Cost Lenders” as defined in Section 2.22.

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“Indebtedness,” as applied to any Person, means, without duplication, (i) all indebtedness for borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP; (iii) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of property or services (excluding any such obligations incurred under ERISA); (v) any obligation incurred for all or any part of the deferred purchase price (including, without limitation, any seller financing, any purchase price adjustment or any earn-out obligation or similar obligation); (vi) all indebtedness secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person; (vii) the face amount of any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; (viii) the direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of business), co making, discounting with recourse or sale with recourse by such Person of the obligation of another; (ix) any obligation of such Person the primary purpose or intent of which is to provide assurance to an obligee that the obligation of the obligor thereof will be paid or discharged, or any agreement relating thereto will be complied with, or the holders thereof will be protected (in whole or in part) against loss in respect thereof; (x) any liability of such Person for an obligation of another through any agreement (contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions or otherwise) or (b) to maintain the solvency or any balance sheet item, level of income or financial condition of another if, in the case of any agreement described under subclauses (a) or (b) of this clause (xi), the primary purpose or intent thereof is as described in clause (viii) above; and (xii) all obligations of such Person in respect of any exchange traded or over the counter derivative transaction, including, without limitation, any Interest Rate Agreement, whether entered into for hedging or speculative purposes. Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or a limited liability company) in which such Person is a general partner or a joint venturer, except to the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would be included in the calculation of Consolidated Total Debt.

“Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages (including natural resource damages), penalties, claims (including Environmental Claims), costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or other response action necessary to remove, remediate, clean up or abate any Hazardous Materials Activity), expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of (i) this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby (including the Lenders’ agreement to make Loans or the use or intended use of the proceeds thereof, or any enforcement of any of the Credit Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty)); or (ii) any Environmental Claim or any Hazardous Materials Activity relating to or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of Company or any of its Subsidiaries.

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“Indemnitee” as defined in Section 10.3.

“Indemnitee Agent Party” as defined in Section 9.6.

“Installment” as defined in Section 2.11.

“Installment Date” as defined in Section 2.11.

“Intercreditor Agreement” means that certain Second Amended and Restated Intercreditor Agreement, dated as of the date hereof, by and among the Lenders and the Administrative Agent, as acknowledged and agreed to by Company, which amends and restates the Intercreditor Agreement (as defined in the Original Credit Agreement), as may be further amended, restated or otherwise modified from time to time.

“Interest Payment Date” means the last day of each Fiscal Quarter, commencing on the first such date to occur after the Closing Date, and the final maturity date of such Loan.

“Interest Period” means, in connection with a LIBOR Rate Loan, an interest period of one month, (i) initially, commencing on the Closing Date, with respect to Closing Date Term Loans, or the Restatement Date, with respect to Restatement Date Term Loans, and in each such case ending on the last Business Day of the month during which such Loans were made; (ii) thereafter, each Interest Period shall begin on the last Business Day of a calendar month and shall, subject to clause (iii) of this definition, end on the last Business Day of a calendar month; and (iii) no Interest Period shall extend beyond the Term Loan Maturity Date.

“Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement, each of which is (i) for the purpose of hedging the interest rate exposure associated with Company’s and its Subsidiaries’ operations, (ii) approved by Administrative Agent, and (iii) not for speculative purposes.

“Interest Rate Determination Date” means (1) with respect to any Interest Period, the date that is two (2) Business Days prior to the first day of such Interest Period or (ii) with respect to any determination of the Adjusted LIBOR Rate for purposes of the Base Rate definition, the current Business Day (or if the current day is not a Business Day, the most recent Business Day).

“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter, and any successor statute.

“Investment” means (i) any direct or indirect purchase or other acquisition by Company or any of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person (other than a Guarantor Subsidiary); (ii) any direct or indirect redemption, retirement, purchase or other acquisition for value, by any Subsidiary of Company from any Person (other than Company or any Guarantor Subsidiary), of any Capital Stock of such Person; and (iii) any direct or indirect loan, advance (other than advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contributions by Company or any of its Subsidiaries to any other Person (other than Company or any Guarantor Subsidiary), including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write ups, write downs or write offs with respect to such Investment.

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“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form; provided, in no event shall any corporate Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.

“Landlord Personal Property Collateral Access Agreement” means a Landlord Waiver and Consent Agreement substantially in the form of Exhibit H with such amendments or modifications as may be approved by Collateral Agent.

“Lead Arranger” as defined in the preamble hereto.

“Leasehold Property” means any leasehold interest of any Credit Party as lessee under any lease of real property, other than any such leasehold interest designated from time to time by Collateral Agent in its sole discretion as not being required to be included in the Collateral.

“Lender” means each financial institution listed on the signature pages hereto as a Lender, and any other Person that becomes a party hereto pursuant to an Assignment Agreement.

“Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter or any other date of determination of (i) Consolidated Total Debt as of such day, to (ii) Consolidated Adjusted EBITDA for the four Fiscal Quarter period ending on such date (or if such date of determination is not the last day of a Fiscal Quarter, for the four-Fiscal Quarters period ending as of the most recently concluded Fiscal Quarter).

“LIBOR Rate Loan” means a Loan bearing interest at a rate determined by reference to the Adjusted LIBOR Rate.

“Lien” means (i) any lien, mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing, and (ii) in the case of Securities, any purchase option, call or similar right of a third party with respect to such Securities.

“Loan” means any Term Loan.

“Margin Stock” as defined in Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.

“Material Adverse Effect” means a material adverse effect on and/or material adverse developments with respect to (i) the business operations, properties, assets, condition (financial or otherwise) or prospects of Company and its Subsidiaries taken as a whole; (ii) a significant portion of the industry or business segment in which Holding or its Subsidiaries operate or rely upon if such effect or development is reasonably likely to have a material adverse effect on Company and its Subsidiaries taken as a whole; (iii) the ability of any Credit Party to fully and timely perform its Obligations; (iv) the legality, validity, binding effect, or enforceability against a Credit Party of a Credit Document to which it is a party; (iv) the rights, remedies and benefits available to, or conferred upon, any Agent and any Lender or any Secured Party under any Credit Document; or (v) the perfection or priority of any Liens granted to any Agent in or to Collateral with a value in excess of $100,000.

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“Material Contract” means (i) any contract or other arrangement to which Company or any of its Subsidiaries is a party (other than the Credit Documents) for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to have a Material Adverse Effect, (ii) each contract and arrangement listed on Schedule 4.15, (iii) the Divested Business Agreement and (iv) the Fifth Gear Acquisition Agreement.

“Material Leasehold Property” means any Leasehold Property that is the chief executive office of any Credit Party, where any books and records of any Credit Party are located, or where a material portion of the Collateral is located (as reasonably determined by the Administrative Agent).

“Material Real Estate Asset” means (i) any fee owned Real Estate Asset having a fair market value in excess of $500,000 as of the date of the acquisition thereof, or (ii) any Real Estate Asset that the Requisite Lenders have determined is material to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company or any Subsidiary thereof, including Company and any listed on Schedule 1.1.

“Moody’s” means Moody’s Investor Services, Inc.

“Mortgage” means a Mortgage substantially in the form of Exhibit J, as it may be amended, supplemented or otherwise modified from time to time.

“Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA.

“NAIC” means The National Association of Insurance Commissioners, and any successor thereto.

“Narrative Report” means, with respect to the financial statements for which such narrative report is required, a narrative report describing the operations of Company and its Subsidiaries in the form prepared for presentation to senior management thereof for the applicable month, Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the end of such period to which such financial statements relate with comparison to and variances from the immediately preceding period and budget.

“Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) Cash payments received by Company or any of its Subsidiaries from such Asset Sale, minus (ii) any bona fide direct costs incurred in connection with such Asset Sale to the extent paid or payable to non-Affiliates, including (a) income or gains taxes payable by the seller as a result of any gain recognized in connection with such Asset Sale during the tax period the sale occurs, (b) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans) that is secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of such Asset Sale, and (c) a reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Company or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds.

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“Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or proceeds received by Company or any of its Subsidiaries (a) under any casualty, business interruption or “key man” insurance policies in respect of any covered loss thereunder, or (b) as a result of the taking of any assets of Company or any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (ii) (a) any actual and reasonable costs incurred by Company or any of its Subsidiaries in connection with the adjustment or settlement of any claims of Company or such Subsidiary in respect thereof, and (b) any bona fide direct costs incurred in connection with any sale of such assets as referred to in clause (i)(b) of this definition to the extent paid or payable to non-Affiliates, including income taxes payable as a result of any gain recognized in connection therewith.

“Non-US Lender” as defined in Section 2.19(c).

“Note” means a Closing Date Term Loan Note or a Restatement Date Term Loan Note.

“Obligations” means all obligations of every nature of each Credit Party from time to time owed to the Agents (including former Agents), the Lenders or any of them, under any Credit Document or Interest Rate Agreement (including, without limitation, with respect to the Closing Date Term Loans, the Restatement Date Term Loans, any Protective Advances, and obligations owed under an Interest Rate Agreement to any Person who was a Lender or an Affiliate of a Lender at the time such Interest Rate Agreement was entered into), whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Credit Party, would have accrued on any Obligation, whether or not a claim is allowed against such Credit Party for such interest in the related bankruptcy proceeding), reimbursement of fees, expenses, indemnification or otherwise.

“Obligee Guarantor” as defined in Section 7.7.

“Ordinary Course of Business” or “ordinary course of business” means, in respect of any transaction involving any Credit Party or any Subsidiary of any Credit Party, the ordinary course of such Person’s business, as undertaken by such Person in good faith.

“Organizational Documents” means (i) with respect to any corporation, its certificate or articles of incorporation or organization, as amended, and its by-laws, as amended, (ii) with respect to any limited partnership, its certificate of limited partnership, as amended, and its partnership agreement, as amended, (iii) with respect to any general partnership, its partnership agreement, as amended, and (iv) with respect to any limited liability company, its articles of organization, as amended, and its operating agreement, as amended. In the event any term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document.

“Patriot Act” as defined in Section 4.26.

“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.

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“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.

“Perfection Certificate” means a certificate in form satisfactory to Collateral Agent that provides information with respect to the personal or mixed property of each Credit Party.

“Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.

“Permitted Acquisition” means any acquisition after the Restatement Date by Company or any of its wholly-owned Subsidiaries, whether by purchase, merger or otherwise, of all or substantially all of the assets of, all of the Capital Stock of, or a business line or unit or a division of, any Person that is incorporated, formed or organized in the United States; provided,

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

(c)     all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable laws and in conformity with all applicable Governmental Authorizations;

(d)     in the case of the acquisition of Capital Stock, all of the Capital Stock (except for any such Securities in the nature of directors’ qualifying shares required pursuant to applicable law) acquired or otherwise issued by such Person or any newly formed Subsidiary of Company in connection with such acquisition shall be owned 100% by Company or a Subsidiary thereof, and Company shall have taken, or caused to be taken, as of the date such Person becomes a Subsidiary of Company, each of the actions set forth in Sections 5.10 and/or 5.11, as applicable;

(e)     Company and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 6.8 on a pro forma basis after giving effect to such acquisition as of the last day of the Fiscal Quarter most recently ended (as determined in accordance with Section 6.8(d));

(f)     Company shall have delivered to Administrative Agent, (i) promptly when available, drafts of term sheets, commitment letters or other relevant proposals with respect to such acquisition, (ii) at least thirty (30) Business Days prior to such proposed acquisition, a Compliance Certificate evidencing compliance with Section 6.8 on a pro forma basis as required under clause (d) above, together with all relevant financial information with respect to such acquired assets, including, without limitation, the aggregate consideration for such acquisition and any other information required to demonstrate pro forma compliance with Section 6.8, (iii) at least ten (10) Business Days prior to such proposed acquisition, a due diligence package reasonably satisfactory to Administrative Agent, (iv) at least five (5) Business Days prior to such proposed acquisition, drafts of all material acquisition documents and (v) promptly once available, final executed copies of all material acquisition documents;

(g)     any Person or assets or division as acquired in accordance herewith (y) shall be the type of business (or assets used in a type of business) permitted to be engaged in by the Credit Parties and their Subsidiaries pursuant to Section 6.13 hereto and (z) for the four quarter period most recently ended prior to the date of such acquisition, shall have generated earnings before income taxes, depreciation, and amortization during such period that shall exceed zero (calculated in substantially the same manner as Consolidated Adjusted EBITDA is calculated);

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(h)     such acquisition shall not be a “hostile” acquisition and the acquisition shall have been approved by (a) the board of directors, shareholders or other governing body or controlling Person of the Person acquired or the Person from whom such assets or division is acquired and (b) the Board of Directors of the applicable Credit Party;

(i)     Collateral Agent, on behalf of the Lenders, shall have received (or shall receive in connection with the closing of such acquisition) a First Priority perfected security interest in all property (including, without limitation, Capital Stock) acquired with respect to Target (and in the Capital Stock issued and outstanding in Target);

(j)     on or prior to the date of such proposed acquisition, Administrative Agent shall have received, in form and substance reasonably satisfactory to Administrative Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Administrative Agent; and

(k)     the aggregate consideration (including any Indebtedness incurred or assumed (including under Section 6.1(c) and the maximum amount of any contingent obligations) paid in connection with such proposed acquisition in connection with such acquisition) and any other Permitted Acquisition shall not exceed an amount equal to Forty Million Dollars ($40,000,000) in the aggregate since the Closing Date; and

(l)     after giving effect to the proposed acquisition (including after giving effect to any Indebtedness incurred, assumed or owing (whether on a non-recourse basis or otherwise) by Company or any of its Subsidiaries immediately after the consummation of the such acquisition), Consolidated Total Debt shall not in any event exceed the lesser of (i) 4.00 times the trailing twelve months Consolidated Adjusted EBITDA or (ii) the ratio specified in Section 6.8(c) for the then-current Fiscal Quarter, in each case as determined in accordance with Section 6.8(e) as of the last day of the most recently ended month for which financial statements have been delivered pursuant to Section 5.1(a) and taking into account any Indebtedness under Section 6.1(c).

“Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities.

“Phase I Report” means, with respect to any Facility, a report that (i) conforms to the ASTM Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, E 1527, (ii) was conducted no more than six months prior to the date such report is required to be delivered hereunder, by one or more environmental consulting firms reasonably satisfactory to Administrative Agent, (iii) includes an assessment of asbestos containing materials at such Facility, (iv) is accompanied by (a) an estimate of the reasonable worst case cost of investigating and remediating any Hazardous Materials Activity identified in the Phase I Report as giving rise to an actual or potential material violation of any Environmental Law or as presenting a material risk of giving rise to a material Environmental Claim, and (b) a current compliance audit setting forth an assessment of Company’s, its Subsidiaries’, and such Facility’s current and past compliance with Environmental Laws and an estimate of the cost of rectifying any non-compliance with current Environmental Laws identified therein and the cost of compliance with reasonably anticipated future Environmental Laws identified therein.

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“Pledge and Security Agreement” means the Pledge and Security Agreement, dated as of the Closing Date, executed in favor of Collateral Agent by Company and each Guarantor as of the Closing Date, and to be executed or joined by each Guarantor after the Closing Date and reaffirmed by all parties thereto on the Restatement Date, as it may be amended, supplemented or otherwise modified from time to time.

“Prepayment Premium” has the meaning set forth in Section 2.12(d).

“Prime Rate” means the rate of interest quoted in The Wall Street Journal, Money Rates Section as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 70% of the nation’s largest banks), as in effect from time to time, provided that Agent may elect to determine the Prime Rate from another publication or database at any time and from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. Agent or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.

“Principal Office” means Administrative Agent’s “Principal Office” as set forth on Appendix B, or such other office as Administrative Agent may from time to time designate in writing to Company and each Lender; provided, however, that for the purpose of making any payment on the Obligations or any other amount due hereunder or any other Credit Document, the Principal Office of Administrative Agent shall be 1350 Avenue of the Americas, 9^th Floor, New York, New York (or such other location within the City and State of New York as Administrative Agent may from time to time designate in writing to Company and each Lender).

“Projections” as defined in Section 4.8.

“Pro Rata Share” means, as of any date of determination, with respect to all payments, computations and other matters relating to the (a) Closing Date Term Loan of any Lender, the percentage obtained by dividing (i) the outstanding principal amount of the Closing Date Term Loans of such Lender, by (ii) the aggregate outstanding principal amount of the Closing Date Term Loans of all Lenders, (b) Restatement Date Term Loan of any Lender, the percentage obtained by dividing (i) the outstanding principal amount of the Restatement Date Term Loans of such Lender, by (ii) the aggregate outstanding principal amount of the Restatement Date Term Loans of all Lenders, and (c) Term Loans of any Lender, the percentage obtained by dividing (i) the outstanding principal amount of the Term Loans of such Lender, by (ii) the aggregate outstanding principal amount of the Term Loans of all Lenders; provided, that, unless the context of such term’s use provides otherwise, clause (c) of this definition shall apply.

“Protective Advance” as defined in Section 9.9.

“Reaffirmation Agreement” means that certain Ratification and Reaffirmation Agreement, dated as of the Restatement Date, pursuant to which the Credit Parties ratify and reaffirm their obligations under the Credit Documents to which they are a party on the Restatement Date, as the same may be amended, restated or otherwise modified from time to time in accordance with its terms.

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“Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by any Credit Party in any real property.

“Record Document” means, with respect to any Leasehold Property, (i) the lease evidencing such Leasehold Property or a memorandum thereof, executed and acknowledged by the owner of the affected real property, as lessor, or (ii) if such Leasehold Property was acquired or subleased from the holder of a Recorded Leasehold Interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to Collateral Agent.

“Recorded Leasehold Interest” means a Leasehold Property with respect to which a Record Document has been recorded in all places necessary or desirable, in Administrative Agent’s reasonable discretion, to give constructive notice of such Leasehold Property to third party purchasers and encumbrancers of the affected real property.

“Register” as defined in Section 2.6(b).

“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

“Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater.

“Replacement Lender” as defined in Section 2.22.

“Required Prepayment Date” as defined in Section 2.14(c).

“Requisite Lenders” means, at any time of determination, but subject to the provisions of Section 2.21 and the Intercreditor Agreement, Lenders whose Pro Rata Shares (calculated under clause (c) of the definition thereof) exceed fifty percent (50.0%).

“Restatement Date” has the meaning set forth in the Recitals.

“Restatement Date Certificate” means a Restatement Date Certificate substantially in the form of Exhibit F-2.

“Restatement Date Term Loan” has the meaning set forth in Section 2.2(a).

“Restatement Date Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a Restatement Date Term Loan and “Restatement Date Term Loan Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Restatement Date Term Loan Commitment, if any, is set forth on Appendix A, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Restatement Date Term Loan Commitments as of the Restatement Date is Sixty Five Million Dollars ($65,000,000).

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“Restatement Date Transactions” means the disbursement of the Restatement Date Term Loans pursuant hereto on the Restatement Date, the consummation of the amendments to the Original Credit Agreement contained herein, the consummation of the Fifth Gear Acquisition in accordance with the terms of the Fifth Gear Acquisition Agreement, and the payment of fees and expenses in connection with the foregoing.

“Restatement Date Transaction Costs” means the fees, costs and expenses payable by Company or any of Company’s Subsidiaries on or before the Restatement Date in connection with the transactions contemplated by the Credit Documents and the Fifth Gear Acquisition Agreement, to the extent approved in writing by Administrative Agent.

“Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect, on account of any shares of any class of Capital Stock of Company now or hereafter outstanding, except (A) a non-Cash dividend or distribution payable solely in shares of that class of Capital Stock to the holders of that class, and (B) to the extent no Event of Default exists, any regularly scheduled required payment of interest after March 31, 2015 under the preferred Capital Stock of Company that is issued and outstanding on, and as in effect on, the Closing Date; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of Capital Stock of Company now or hereafter outstanding; (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Capital Stock of Company now or hereafter outstanding; and (iv) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in substance or legal defeasance), sinking fund or similar payment with respect to, any Subordinated Indebtedness.

“RSI” means Restaurant Services, Inc., a Delaware corporation.

“RSI Collateral” means the following collateral that is purchased by Fifth Gear and financed by RSI under the RSI Loan Documents: (i) all Burger King Uniform Inventory (as defined in the RSI Loan Documents on the Restatement Date), including without limitation, all Burger King Uniform Inventory ordered from time to time by Fifth Gear from Approved Suppliers (as defined in the RSI Loan Documents on the Restatement Date) for sale and distribution to Customers (as defined in the RSI Loan Documents on the Restatement Date), (ii) all rights to receive payment, credits and other compensation (including rebates, allowances, and additional “factory” or “manufacturers” credits), from the Approved Suppliers and any manufacturer, distributor or supplier of Burger King Uniform Inventory, or from any of their subsidiaries or affiliates, with respect to the sale of Burger King Uniform Inventory to Customers pursuant to the Distribution Agreement (as defined in the RSI Loan Documents on the Restatement Date), (iii) all payments and credits that RSI, Burger King Corporation and Customers owe and may owe to Fifth Gear, in connection with the sale and distribution of Burger King Uniform Inventory to Customers pursuant to the Distribution Agreement, including any Surcharge (as defined in the RSI Loan Documents on the Restatement Date), whether in the form of cash collateral, reserve, contingency or escrow accounts, or otherwise, and (iv) the Collateral Account (as defined in the RSI Loan Documents on the Restatement Date), and (v) all proceeds of the foregoing, including, without limitation, proceeds of proceeds, goods received in trade, claims and torts recoveries, insurance proceeds, refunds of insurance premiums, and all cash and other funds held in all deposit accounts in which proceeds may be deposited, in case of clauses (i) through (v) above, to the fullest extent defined and described in the UCC. The foregoing notwithstanding, RSI Collateral shall not include any Distribution Charges (as defined in the RSI Loan Documents on the Restatement Date) and/or Freight Costs (as defined in the RSI Loan Documents on the Restatement Date). As used herein, the term “Surcharge” means such additional amounts Fifth Gear shall charge to each and every Customer, at the written request of RSI, with regard to any or all of the Burger King Uniform Inventory and as further defined in the Distribution Agreements (as defined in the RSI Loan Documents).

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“RSI Credit Agreement” means that certain Revolving Credit and Security Agreement, by and between Fifth Gear and RSI, dated as of the Restatement Date and as in effect on the Restatement Date or as amended, restated or otherwise modified from time to time to the extent permitted by Section 6.15(b) and the RSI Intercreditor Agreement.

“RSI Loan Documents” means the RSI Credit Agreement and all other documents or agreements executed in connection therewith and in any way evidencing or documenting the RSI Indebtedness, as the same may be amended, restated or otherwise modified from time to time to the extent permitted by Section 6.15(b) and the RSI Intercreditor Agreement.

“RSI Indebtedness” means the Indebtedness under the RSI Credit Agreement, which may be secured by the RSI Collateral pursuant to the RSI Loan Documents, in an aggregate principal amount not to exceed Three Million Five Hundred Thousand Dollars ($3,500,000) and subject at all times to the RSI Intercreditor Agreement.

“RSI Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the Restatement Date, by and between the Administrative Agent and RSI, as in effect on the Restatement Date or as amended with the written consent of the Requisite Lenders in their sole discretion.

“S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation.

“Secured Parties” has the meaning assigned to that term in the Pledge and Security Agreement.

“Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.

“Solvency Certificate” means a Solvency Certificate of the chief financial officer of Company substantially in the form of Exhibit F-3.

“Solvent” means, with respect to any Credit Party, that as of the date of determination, both (i) (a) the sum of such Credit Party’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Credit Party’s present assets; (b) such Credit Party’s capital is not unreasonably small in relation to its business as contemplated on the Closing Date and reflected in the Projections or with respect to any transaction contemplated or undertaken after the Closing Date; and (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (ii) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).

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“Subject Transaction” as defined in Section 6.8(i).

“Subordinated Indebtedness” means unsecured Indebtedness of Company and its Subsidiaries (provided that any such Indebtedness incurred or assumed by a Subsidiary that is not a Guarantor shall not be guaranteed by, or recourse to, any Credit Party), which does not require any cash interest or principal payments prior to the termination of all Commitments and the payment in full of all Obligations (other than contingent indemnification Obligations for which no claim has been asserted), is unsecured and is subordinated to the Obligations in a manner and pursuant to documentation satisfactory to Administrative Agent.

“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than fifty percent (50.0%) of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided, in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.

“Syndication Agent” as defined in the preamble hereto.

“Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction or withholding of any nature and whatever called, by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or assessed, including any interest, additions to tax or penalties applicable thereto; provided, “Tax on the overall net income” of a Person shall be construed as a reference to a tax imposed by the jurisdiction in which that Person is organized or in which that Person’s applicable principal office (and/or, in the case of a Lender, its lending office) is located or in which that Person (and/or, in the case of a Lender, its lending office) is deemed to be doing business on all or part of the net income, profits or gains (whether worldwide, or only insofar as such income, profits or gains are considered to arise in or to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in the case of a Lender, its applicable lending office).

“Term Loan” means a Closing Date Term Loan and/or a Restatement Date Term Loan, as the context requires, and “Term Loans” means the Closing Date Term Loans and Restatement Date Term Loans, collectively.

“Term Loan Maturity Date” means the earlier of (i) November 21, 2019, and (ii) the date that all Term Loans shall become due and payable in full hereunder, whether by acceleration or otherwise.

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“Terminated Lender” as defined in Section 2.22.

“Title Policy” as defined in Section 3.1(h).

“Type of Loan” means a Base Rate Loan or a LIBOR Rate Loan.

“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.

1.2     Accounting Terms. Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. Financial statements and other information required to be delivered by Company to Lenders pursuant to Section 5.1(a), 5.1(b) and 5.1(c) shall be prepared in accordance with GAAP as in effect at the time of such preparation (and delivered together with the reconciliation statements provided for in Section 5.1(e), if applicable); provided, however, that no change in the accounting principles used in the preparation of any financial statement hereafter adopted by the Company or any of its Subsidiaries shall be given effect for purposes of measuring compliance with any provision of Article 6 or any provision of this agreement governed by Leverage Ratio or other financial covenant, unless Company, the Administrative Agent and the Requisite Lenders agree in writing to modify such provisions to reflect such changes in GAAP, and, unless such provisions are modified, all financial statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to in Article 6 shall be made, without giving effect to any election under Accounting Standards Codification 825-10 (or any other financial accounting standard having a similar result or effect) to value any Indebtedness or other liabilities of any Credit Party or any Subsidiary of any Credit Party at “fair value”. Anything in this Agreement or any other Credit Document to the contrary notwithstanding, any obligation of a Person under a lease (whether existing as of the Closing Date or entered into after the Closing Date) that is not (or would not be) required to be classified and accounted for as a Capital Lease on the balance sheet of such Person under GAAP as in effect on the Closing Date shall not be treated as a Capital Lease solely as a result of (x) the adoption of any changes in, or (y) changes in the application of, GAAP after the Closing Date.

1.3     Interpretation, etc. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the word “include” or “including,” when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not no limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter.

1.4     Rounding Any financial ratios required to be maintained or complied with by Company or any of its Subsidiaries pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

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SECTION 2. LOANS

2.1     Closing Date Term Loans. Subject to the terms and conditions of the Original Credit Agreement (including, without limitation, the satisfaction of the conditions precedent set forth in Section 3.1 and Section 3.2 of the Original Credit Agreement), each Original Lender severally made, on the Closing Date, a term loan to Company in an amount equal to such lender’s commitment in respect thereof (a “Closing Date Term Loan”). Each Closing Date Term Loan was denominated as either a Closing Date Term Loan A (as defined in the Original Credit Agreement) or a Closing Date Term Loan B (as defined in the Original Credit Agreement). Without effecting a repayment or novation of any such Closing Date Term Loan, as of the Restatement Date, the terms of the Closing Date Term Loans A (as defined in the Original Credit Agreement) and Closing Date Term Loans B (as defined in the Original Credit Agreement) are amended and restated as set forth in this Agreement to eliminate the distinctions between them and shall hereafter be deemed to be a single tranche of Term Loans called the “Closing Date Term Loans”. Company may make only one borrowing under the commitments in respect of the Closing Date Term Loans, which occurred on the Closing Date, and each Lender’s commitment in respect of its Closing Date Term Loan terminated on the Closing Date after giving effect to the funding of such Lender’s Closing Date Term Loan on such date. Any Closing Date Term Loan repaid or prepaid may not be reborrowed. All amounts owed hereunder with respect to the Closing Date Term Loans shall be paid in full no later than the Term Loan Maturity Date.

2.2     Restatement Date Term Loans.

(a)     Restatement Date Term Loan Commitments. Subject to the terms and conditions hereof (including, without limitation, the satisfaction of the conditions precedent set forth in Section 3.2), each Lender severally agrees to make, on the Restatement Date, a term loan to Company in an aggregate amount not to exceed such Lender’s Restatement Date Term Loan Commitment (each, a “Restatement Date Term Loan”). Company may make only one borrowing under the Restatement Date Term Loan Commitment which shall be on the Restatement Date. Any amount borrowed under this Section 2.2(a) and subsequently repaid or prepaid may not be reborrowed. All amounts owed hereunder with respect to the Restatement Date Term Loans shall be paid in full no later than the Term Loan Maturity Date. Each Lender’s Restatement Date Term Loan Commitment shall terminate immediately and without further action on the Restatement Date after giving effect to the funding of such Lender’s Restatement Date Term Loan Commitment on such date.

(b)     Borrowing Mechanics for Restatement Date Term Loans. Each Lender shall make its Restatement Date Term Loan available to Administrative Agent not later than 12:00 p.m. (New York City time) on the Restatement Date, by wire transfer of same day funds in Dollars, at Administrative Agent’s Principal Office. Upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds of the Restatement Date Term Loans available to Company on the Restatement Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Restatement Date Term Loans received by Administrative Agent from Lenders to be credited to the account of Company at Administrative Agent’s Principal Office or to such other account as may be designated in writing to Administrative Agent by Company.

2.3     [Reserved].

2.4     Pro Rata Shares. All Loans shall be made, and all participations purchased, by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall any Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby.

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2.5     Use of Proceeds. The proceeds of the Closing Date Term Loans made on the Closing Date shall be applied by Company to refinance the Existing Indebtedness, finance the general corporate purposes of Company and to pay certain fees and expenses associated with the credit facilities described herein. The proceeds of the Restatement Date Term Loans made on the Restatement Date shall be applied by Company to consummate the Fifth Gear Acquisition and to pay costs and expenses in connection therewith or for permitted capital expenditures or other corporate purposes. No portion of the proceeds of any Loan shall be used in any manner that causes or might cause such Loan or the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof or to violate the Exchange Act.

2.6     Evidence of Debt; Register; Lenders’ Books and Records; Notes.

(a)     Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of Company to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be conclusive and binding on Company, absent manifest error; provided, that the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Commitments or Company’s Obligations in respect of any applicable Loans; and provided, further, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.

(b)     Register. Administrative Agent shall maintain at its Principal Office a register for the recordation of the names and addresses of Lenders and the Commitments and Loans of each Lender from time to time (the “Register”). The Register shall be available for inspection by Company or any Lender at any reasonable time and from time to time upon reasonable prior notice. Administrative Agent shall record in the Register the Commitments and the Loans, and each repayment or prepayment in respect of the principal amount of the Loans, and any such recordation shall be conclusive and binding on Company and each Lender, absent manifest error; provided, failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Commitments or Company’s Obligations in respect of any Loan. Company hereby designates the entity serving as Administrative Agent to serve as Company’s agent solely for purposes of maintaining the Register as provided in this Section 2.6, and Company hereby agrees that, to the extent such entity serves in such capacity, the entity serving as Administrative Agent and its officers, directors, employees, agents and affiliates shall, for purposes of Section 10.3, constitute Indemnitees.

(c)     Notes.

(i)     Each Existing Lender holding a Closing Date Term Loan A Note (as defined in the Original Credit Agreement) or a Closing Date Term Loan B Note (as defined in the Original Credit Agreement) shall have delivered each such note to the Administrative Agent on or before the Restatement Date for cancellation. If requested by any Existing Lender by written notice to Company (with a copy to Administrative Agent) at least two (2) Business Days prior to the Restatement Date, or if requested by any Lender holding a Closing Date Term Loan at any time thereafter, Company shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6) on the Restatement Date (or, if such notice is delivered after the Restatement Date, promptly after Company’s receipt of such notice) a Note or Notes to evidence such Lender’s Closing Date Term Loan in the form attached hereto as Exhibit B-1 (a “Closing Date Term Loan Note”).

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(ii)     If so requested by any Lender holding a Restatement Date Term Loan by written notice to Company (with a copy to Administrative Agent) at least two (2) Business Days prior to the Restatement Date, or at any time thereafter, Company shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6) on the Restatement Date (or, if such notice is delivered after the Restatement Date, promptly after Company’s receipt of such notice) a Note or Notes to evidence such Lender’s Restatement Date Term Loan in the form attached hereto as Exhibit B-2 (a “Restatement Date Term Loan Note”).

2.7     Interest on Loans.

(a)     Subject only to Section 2.17(a) and Section 2.17(b), each Term Loan shall be a LIBOR Rate Loan.

(b)     Except as otherwise set forth herein, each Term Loan shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) as follows: (i) if a LIBOR Rate Loan, at the Adjusted LIBOR Rate plus the Applicable Margin; and (ii) if a Base Rate Loan, at the Base Rate plus the Applicable Margin.

(c)     As soon as practicable after 10:00 a.m. (New York City time) on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the LIBOR Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to Company and each Lender.

(d)     Interest payable pursuant to Section 2.7(a) shall be computed on the basis of a 360-day year, in each case for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a LIBOR Rate Loan pursuant to Section 2.17, the date of conversion of such LIBOR Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a LIBOR Rate Loan pursuant to Section 2.17, the date of conversion of such Base Rate Loan to such LIBOR Rate Loan, as the case may be, shall be excluded; provided, if a Loan is repaid on the same day on which it is made, one (1) day’s interest shall be paid on that Loan.

(e)     Except as otherwise expressly set forth herein, interest on each Loan shall be payable in arrears on and to (i) each Interest Payment Date; (ii) upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the principal amount being prepaid; and (iii) at maturity, including final maturity.

2.8     [Reserved].

2.9     Default Interest. Upon the occurrence and during the Continuance of an Event of Default, the principal amount of all Loans outstanding and, to the extent not prohibited by applicable law, any interest payments on the Loans or any fees or other amounts owed hereunder, shall thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand at a rate that is two percent (2.00%) per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable Loans (or, in the case of any such fees and other amounts, at a rate which is two percent (2.00%) per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans); provided, in the case of LIBOR Rate Loans, upon the expiration of the Interest Period in effect at the time any such increase in interest rate is effective such LIBOR Rate Loans shall thereupon become Base Rate Loans and shall thereafter bear interest payable upon demand at a rate which is two percent (2.00%) per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans. Payment or acceptance of the increased rates of interest provided for in this Section 2.9 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent or any Lender.

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2.10     Fees. Company agrees to pay to Agents all fees in the amounts and at the times separately agreed upon, including, without limitation, each fee set forth in the Fee Letter.

2.11     Scheduled Installments. The principal amounts of the Term Loans shall be repaid in consecutive quarterly installments (each, an “Installment”) in the amounts set forth below for the applicable Fiscal Quarters, with each such installment to be made on the last day of each such Fiscal Quarter (each, an “Installment Date”).

Installment Date	Aggregate Amount of Installment
December 31, 2014	$625,000
March 31, 2015	$625,000
June 30, 2015	$625,000
September 30, 2015	$625,000
December 31, 2015	$750,000
March 31, 2016	$750,000
June 30, 2016	$750,000
September 30, 2016	$750,000
December 31, 2016	$875,000
March 31, 2017	$875,000
June 30, 2017	$875,000
September 30, 2017	$875,000
December 31, 2017	$1,250,000
March 31, 2018	$1,250,000
June 30, 2018	$1,250,000
September 30, 2018	$1,250,000
December 31, 2018	$1,250,000
March 31, 2019	$1,250,000
June 30, 2019	$1,250,000
September 30, 2019	$1,250,000

The full amount of each such payment shall be applied to the Term Loans, ratably as between the Closing Date Term Loans and the Restatement Date Term Loans. Such Installments shall be reduced in connection with any voluntary or mandatory prepayments of the Term Loans only to the extent provided in Section 2.14. For the avoidance of doubt, the Term Loans, together with all other Obligations, shall, in any event, be paid in full no later than the Term Loan Maturity Date.

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2.12     Voluntary Prepayments/Commitment Reductions.

(a)     Voluntary Prepayments.

(i)     Any time and from time to time:

(A)     with respect to Base Rate Loans, Company may prepay any such Loans on any Business Day in whole or in part, in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount; and

(B)     with respect to LIBOR Rate Loans, Company may prepay any such Loans on any Business Day in whole or in part (together with any amounts due pursuant to Section 2.17(c)) in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount.

(C)     All such prepayments shall be made upon not less than five (5) Business Days’ prior irrevocable written notice, given to Administrative Agent by 12:00 p.m. (New York City time) on the date required (and Administrative Agent will promptly transmit such notice to each Lender). Upon the giving of any such notice, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein. Any such voluntary prepayment shall be applied as specified in Section 2.14(b).

(b)     [Reserved].

(c)     [Reserved].

(d)     Call Protection. If all or any part of the principal balance of any Term Loan is repaid or prepaid pursuant to Section 2.12(a), or Section 2.13(d), and if the provisions of Section 2.13(a) and Section 2.13(c) so require, whether or not during the Continuance of a Default or Event of Default and whether before or after acceleration, on or prior to the date that is two (2) years following the Restatement Date, Company shall pay to Administrative Agent, for the benefit of Lenders in accordance with their Pro Rata Shares in respect of the Term Loans so repaid or prepaid, a prepayment premium (the “Prepayment Premium”) on the amount of Term Loans so prepaid or accelerated as follows:

Relevant period (number of calendar months elapsed since Restatement Date)	Prepayment Premium as a percentage of the amount so prepaid
prior to 12	Two percent (2.0%)
on or after 12 and prior to 24	One percent (1.0%)
thereafter	Zero (0.0%)

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2.13     Mandatory Prepayments/Commitment Reductions.

(a)     Asset Sales.

(i)     No later than the first Business Day following the date of receipt by any Credit Party of any Net Asset Sale Proceeds in excess of $250,000 in the aggregate since the Closing Date, Company shall prepay the Obligations as set forth in Section 2.14(b) in an aggregate amount equal to such Net Asset Sale Proceeds (which amount shall not include any Prepayment Premium on the Obligations so prepaid); provided, that so long as no Default or Event of Default shall have occurred and be Continuing, upon delivery of a written notice to Administrative Agent, Company shall have the option, directly or through one or more Subsidiaries, to invest Net Asset Sale Proceeds (the “Asset Sale Reinvestment Amounts”) in long-term productive assets of the general type used in the business of Company if such assets are purchased or constructed within one hundred eighty (180) days following receipt of such Net Asset Sale Proceeds (and so long as any such individual or aggregate investment in the amount of $250,000 or more has been consented to by Administrative Agent); provided, further, pending any such reinvestment all Asset Sale Reinvestment Amounts shall be held at all times prior to such reinvestment in a Controlled Account. In the event that the Asset Sale Reinvestment Amounts are not reinvested by Company prior to the earlier of (i) the last day of such one hundred eighty (180) day period, and (ii) the date of the occurrence of an Event of Default, Company shall remit, and Administrative Agent shall apply, such Asset Sale Reinvestment Amounts to the Obligations as set forth in Section 2.14(b). Notwithstanding anything to the contrary set forth above, if any Net Asset Sale Proceeds required to be prepaid under this Section 2.13(a)(i) result in the prepayment of greater than twenty five percent (25.0%) of the outstanding Term Loans in connection with any Asset Sale, or in the aggregate in connection with any series of related Asset Sales, Company shall pay the applicable Prepayment Premium in respect of all amounts so prepaid in excess of twenty five percent (25.0%) of the outstanding Term Loans.

(ii)     No later than the first Business Day following the date of receipt by any Credit Party of any Net Asset Sale Proceeds in respect of the Divested Business Note, Company shall prepay the Obligations as set forth in Section 2.14(b) in an aggregate amount equal to such Net Asset Sale Proceeds (which amount shall include the applicable Prepayment Premium, if any); provided, that no such prepayment shall be required to the extent that, as of the date of receipt of such Net Asset Sale Proceeds, no Event of Default exists under Sections 8.1(a), 8.1(c) due to a breach of Section 6.8, 8.1(f) or 8.1(g). Any credit received by the makers of the Divested Business Note against amounts owed under the Divested Business Note pursuant to the terms of the Divested Business Documents shall not be considered Net Asset Sale Proceeds for purposes of this Section 2.13(a)(ii).

(b)     Insurance/Condemnation Proceeds. No later than the first Business Day following the date of receipt by Company or any of its Subsidiaries, or Administrative Agent as loss payee, of any Net Insurance/Condemnation Proceeds, Company shall prepay the Obligations as set forth in Section 2.14(b) in an aggregate amount equal to such Net Insurance/Condemnation Proceeds; provided, (i) so long as no Default or Event of Default shall have occurred and be Continuing, and (ii) to the extent that aggregate Net Insurance/Condemnation Proceeds from the Closing Date through the applicable date of determination do not exceed $250,000, Company shall have the option, directly or through one or more of its Subsidiaries to invest such Net Insurance/Condemnation Proceeds within one hundred eighty (180) days of receipt thereof in long term productive assets of the general type used in the business of Company and its Subsidiaries, which investment may include the repair, restoration or replacement of the applicable assets thereof; provided, further, pending any such investment all such Net Insurance/Condemnation Proceeds shall be held at all times prior to such investment in a Controlled Account. In the event that the Asset Sale Reinvestment Amounts are not reinvested by Company prior to the earlier of (i) the last day of such one hundred eighty (180) day period, and (ii) the date of the occurrence of an Event of Default, Company shall remit, and Administrative Agent shall apply, such Net Insurance/Condemnation Proceeds to the Obligations as set forth in Section 2.14(b).

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(c)     Issuance of Equity Securities. On the date of receipt by Company or its Subsidiaries of any Cash proceeds from a capital contribution to, or the issuance of any Capital Stock of, Company or any of its Subsidiaries (other than Capital Stock issued (i) pursuant to any employee stock or stock option compensation plan, (ii) for, and applied only to, Permitted Acquisitions and to pay transactions costs and expenses in connection therewith, (iii) pursuant to the Fifth Gear Acquisition Documents, (iv) to holders of preferred Capital Stock in lieu of cash dividends (which Company agrees to do for dividends payable between the Restatement Date and March 31, 2015), or (v) for purposes approved in writing by Administrative Agent), Company shall prepay the Obligations as set forth in Section 2.14(b) in an aggregate amount equal to fifty percent (50.0%) of such proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, in each case, paid to non-Affiliates, including reasonable legal fees and expenses, which amount shall not include any Prepayment Premium on the Obligations so prepaid. Notwithstanding anything to the contrary set forth above, if any Cash proceeds required to be prepaid under this Section 2.13(c) result in the prepayment of greater than twenty five percent (25.0%) of the outstanding Term Loans in connection with any issuance of Capital Stock, or in the aggregate in connection with any series of related issuances of Capital Stock, Company shall pay the applicable Prepayment Premium in respect of all amounts so prepaid in excess of twenty five percent (25.0%) of the outstanding Term Loans.

(d)     Issuance of Debt. On the date of receipt by Company or any of its Subsidiaries of any Cash proceeds from the incurrence of any Indebtedness of Company or any of its Subsidiaries (other than with respect to any Indebtedness permitted to be incurred pursuant to Section 6.1), Company shall prepay the Obligations as set forth in Section 2.14(b) in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, in each case, paid to non-Affiliates, including reasonable legal fees and expenses, which amount shall include the applicable Prepayment Premium (if any) on the Obligations so prepaid.

(e)     Consolidated Excess Cash Flow. In the event that there shall be Consolidated Excess Cash Flow for the Fiscal Year ending on March 31, 2015 or any subsequent Fiscal Year, Company shall, no later than one hundred (100) days after the end of each such Fiscal Year, prepay the Obligations as set forth in Section 2.14(b) in an aggregate amount equal to (i) seventy five percent (75.0%) of such Consolidated Excess Cash Flow if the Leverage Ratio as of the end of such Fiscal Year is equal to or greater than 2.00:1.00, (ii) fifty percent (50.0%) of such Consolidated Excess Cash Flow if the Leverage Ratio as of the end of such Fiscal Year is equal to or greater than 1.00:1.00 and less than 2.00:1:00, and (iii) zero percent (0.0%) of such Consolidated Excess Cash Flow if the Leverage Ratio as of the end of such Fiscal Year is less than 1.00:1.00. Any amounts prepaid pursuant to this Section 2.13(e)(i) with respect to any Fiscal Year in excess of the amounts required by the preceding sentence shall be treated as voluntary prepayments made pursuant to Section 2.12(a).

(f)     [Reserved].

(g)     Extraordinary Receipts. On the date of receipt by Company or any of its Subsidiaries of any Extraordinary Receipts in excess of $500,000 in the aggregate in any Fiscal Year, Company shall prepay the Obligations as set forth in Section 2.14(b) in the amount of such Extraordinary Receipts in excess of $500,000.

(h)     Prepayment Certificate. Concurrently with any prepayment of the Obligations pursuant to Sections 2.13(a) through 2.13(g), Company shall deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds or Consolidated Excess Cash Flow. In the event that Company or Administrative Agent shall subsequently determine that the actual amount required to be prepaid pursuant to any such section exceeded the amount set forth in such certificate and actually prepaid, Company shall promptly make an additional prepayment of the Obligations shall be permanently reduced in an amount equal to such excess, and Company shall concurrently therewith deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the derivation of such excess.

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2.14     Application of Prepayments/Reductions.

(a)     [Reserved].

(b)     Application of Other Prepayments. Subject to the Intercreditor Agreement, any voluntary prepayments of the Obligations pursuant to Section 2.12 and any mandatory prepayment of the Obligations pursuant to Section 2.13 shall be applied to the prepayment of the Term Loans (pro rata as between the Closing Date Term Loans and the Restatement Date Term Loans, and pro rata as between the Lenders holding such Term Loans) in the inverse order of maturity until paid in full. Each such prepayment shall include all accrued and unpaid interest in respect of such Term Loans so prepaid.

2.15     General Provisions Regarding Payments.

(a)     All payments by Company of principal, interest, fees and other Obligations shall be made in Dollars in immediately available funds, without defense, recoupment, setoff or counterclaim, free of any restriction or condition, and delivered to Administrative Agent, for the account of Lenders, not later than 12:00 p.m. (New York City time) on the date due at 1350 Avenue of the Americas, 9^th Floor, New York, New York or via wire transfer of immediately available funds to the account specified on Schedule or as otherwise noticed to Company from time to time; funds received by Administrative Agent after that time on such due date shall be deemed to have been paid by Company on the next Business Day.

(b)     All payments in respect of the principal amount of any Loan (other than pursuant to Section 2.14(c)) shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid.

(c)     Administrative Agent shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due with respect thereto, including, without limitation, all fees payable with respect thereto, to the extent received by Administrative Agent.

(d)     Notwithstanding the foregoing provisions hereof, if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any LIBOR Rate Loans, Administrative Agent shall give effect thereto in apportioning payments received thereafter.

(e)     Subject to the provisos set forth in the definition of “Interest Period,” whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of the payment of interest hereunder or of the commitment fees hereunder.

(f)     Administrative Agent shall deem any payment by or on behalf of Company hereunder that is not made in same day funds prior to 12:00 p.m. (New York City time) to be a non-conforming payment. Any such payment shall not be deemed to have been received by Administrative Agent until the later of (i) the time such funds become available funds, and (ii) the applicable next Business Day. Administrative Agent shall give prompt telephonic notice to Company and each applicable Lender (confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute or become a Default or an Event of Default in accordance with the terms of Section 8.1(a). Interest shall continue to accrue on any principal as to which a non-conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the Default Rate determined pursuant to Section 2.9 from the date such amount was due and payable until the date such amount is paid in full.

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(g)     Subject to the Intercreditor Agreement, if an Event of Default shall have occurred and is Continuing, and the maturity of the Obligations shall have been accelerated pursuant to Section 8.1, all payments or proceeds received by any Agent hereunder or under any Collateral Document in respect of any of the Obligations, including, but not limited to all proceeds received by any Agent in respect of any sale, any collection from, or other realization upon all or any part of the Collateral, shall be applied in full or in part as follows: first, to the payment of all costs and expenses of such sale, collection or other realization, including reasonable compensation to each Agent and its agents and counsel, and all other expenses, liabilities and advances made or incurred by any Agent in connection therewith, and all amounts for which any Agent is entitled to indemnification hereunder or under any Collateral Document (in its capacity as an Agent and not as a Lender) and all advances made by any Agent under any Collateral Document for the account of the applicable Grantor, and to the payment of all costs and expenses paid or incurred by any Agent in connection with the exercise of any right or remedy hereunder or under any Collateral Document, all in accordance with the terms hereof or thereof; second, to the extent of any excess of such proceeds, to the payment of all other Obligations in accordance with Section 2.14(b); and third, to the extent of any excess of such proceeds, to the payment to or upon the order of such Grantor or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.

2.16     Ratable Sharing. Lenders hereby agree among themselves that, except as otherwise provided in the Intercreditor Agreement, Fee Letter, in Section 2.19 or in Section 2.22, if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, fees and other amounts then due and owing to such Lender hereunder or under the other Credit Documents which is greater than the amount such Lender would have been entitled to receive if all payments had gone to, and been distributed by, the Administrative Agent in accordance with the provisions of the Credit Documents, such Lender shall purchase for cash from other Lenders such participations in their Obligations as necessary for such Lender to share such excess payment with such Lenders to ensure such payment is applied as though it had been received by the Administrative Agent and applied in accordance with this Agreement (or, if such application would then be at the discretion of Company, applied to repay the Obligations in accordance herewith); provided, however, that (a) if such payment is rescinded or otherwise recovered from such Lender in whole or in part, such purchase shall be rescinded and the purchase price therefor shall be returned to such Lender without interest and (b) such Lender shall, to the fullest extent permitted by applicable law and subject to terms of this Agreement, be able to exercise all its rights of payment (including the right of setoff) with respect to such participation as fully as if such Lender were the direct creditor of the applicable Credit Party in the amount of such participation.

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2.17     Making or Maintaining LIBOR Rate Loans.

(a)     Inability to Determine Applicable Interest Rate. In the event that Administrative Agent shall have determined (which determination shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any LIBOR Rate Loans, that by reason of circumstances affecting the London interbank market adequate and fair means do not exist for ascertaining the interest rate applicable to such LIBOR Rate Loans on the basis provided for in the definition of Adjusted LIBOR Rate, Administrative Agent shall on such date give notice (by telefacsimile or by telephone confirmed in writing) to Company and each Lender of such determination, whereupon no Loans may be made as, or converted to, LIBOR Rate Loans until such time as Administrative Agent notifies Company and Lenders that the circumstances giving rise to such notice no longer exist, and.

(b)     Illegality or Impracticability of LIBOR Rate Loans. In the event that on any date any Lender shall have determined (which determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with Company and Administrative Agent) that the making, maintaining or continuation of its LIBOR Rate Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result of contingencies occurring after the date hereof which materially and adversely affect the London interbank market or the position of such Lender in that market, then, and in any such event, such Lender shall be an “Affected Lender” and it shall on that day give notice (by telefacsimile or by telephone confirmed in writing) to Company and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each other Lender). Thereafter (1) the obligation of the Affected Lender to make Loans as, or to convert Loans to, LIBOR Rate Loans shall be suspended until such notice shall be withdrawn by the Affected Lender, (2) to the extent such determination by the Affected Lender relates to a LIBOR Rate Loan then being requested by Company pursuant to a Funding Notice, the Affected Lender shall make such Loan as a Base Rate Loan, (3) the Affected Lender’s obligation to maintain its outstanding LIBOR Rate Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (4) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a LIBOR Rate Loan then being requested by Company pursuant to a Funding Notice, Company shall have the option, subject to the provisions of Section 2.17(c), to rescind such Funding Notice as to all Lenders by giving notice (by telefacsimile or by telephone confirmed in writing) to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission Administrative Agent shall promptly transmit to each other Lender). Except as provided in the immediately preceding sentence, nothing in this Section 2.17(b) shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, LIBOR Rate Loans in accordance with the terms hereof.

(c)     Compensation for Breakage or Non-Commencement of Interest Periods. Company shall compensate each Lender, upon written request by such Lender (which request shall set forth the basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including any interest paid or calculated to be due and payable by such Lender to lenders of funds borrowed by it to make or carry its LIBOR Rate Loans and any loss, expense or liability sustained by such Lender in connection with the liquidation or re-employment of such funds but excluding loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any LIBOR Rate Loan does not occur on a date specified therefor in a Funding Notice; (ii) if any prepayment or other principal payment of, or any conversion of, any of its LIBOR Rate Loans occurs on any day other than the last day of an Interest Period applicable to that Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or (iii) if any prepayment of any of its LIBOR Rate Loans is not made on any date specified in a notice of prepayment given by Company.

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(d)     Booking of LIBOR Rate Loans. Any Lender may make, carry or transfer LIBOR Rate Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.

(e)     Assumptions Concerning Funding of LIBOR Rate Loans. Calculation of all amounts payable to a Lender under this Section 2.17 and under Section 2.18 shall be made as though such Lender had actually funded each of its relevant LIBOR Rate Loans through the purchase of a LIBOR deposit bearing interest at the rate obtained pursuant to clause (i) of the definition of Adjusted LIBOR Rate in an amount equal to the amount of such LIBOR Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such LIBOR deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided, however, each Lender may fund each of its LIBOR Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 2.17 and under Section 2.18.

2.18     Increased Costs; Capital Adequacy

(a)     Compensation for Increased Costs and Taxes. Subject to the provisions of Section 2.19 (which shall be controlling with respect to the matters covered thereby), in the event that any Lender shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that any law, treaty or governmental rule, regulation or order, or any change therein or in the interpretation, administration or application thereof (including the introduction of any new law, treaty or governmental rule, regulation or order), or any determination of a court or governmental authority, in each case that becomes effective after the date hereof, or compliance by such Lender with any guideline, request or directive issued or made after the date hereof by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law): (i) subjects such Lender (or its applicable lending office) to any additional Tax (other than any Tax on the overall net income of such Lender) with respect to this Agreement or any of the other Credit Documents or any of its obligations hereunder or thereunder or any payments to such Lender (or its applicable lending office) of principal, interest, fees or any other amount payable hereunder; (ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to LIBOR Rate Loans that are reflected in the definition of Adjusted LIBOR Rate); or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or its obligations hereunder or the London interbank market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending office) with respect thereto; then, in any such case, Company shall promptly pay to such Lender, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to Company (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this Section 2.18(a), which statement shall be conclusive and binding upon all parties hereto absent manifest error. For purposes of this Section 2.18, the Dodd-Frank Act and any and all rules, regulations, orders, requests, guidelines and directives adopted, promulgated or implemented in connection therewith are deemed to have been introduced and adopted after the date of this Agreement.

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(b)     Capital Adequacy Adjustment. In the event that any Lender shall have determined that the adoption, effectiveness, phase in or applicability after the Closing Date of any law, rule or regulation (or any provision thereof) regarding capital adequacy, or any change therein or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or its applicable lending office) with any guideline, request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of, or with reference to, such Lender’s Loans or Commitments, or participations therein or other obligations hereunder with respect to the Loans to a level below that which such Lender or such controlling corporation could have achieved but for such adoption, effectiveness, phase in, applicability, change or compliance (taking into consideration the policies of such Lender or such controlling corporation with regard to capital adequacy), then from time to time, within five (5) Business Days after receipt by Company from such Lender of the statement referred to in the next sentence, Company shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling corporation on an after tax basis for such reduction. Such Lender shall deliver to Company (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to Lender under this Section 2.18(b), which statement shall be conclusive and binding upon all parties hereto absent manifest error.

2.19     Taxes; Withholding, etc.

(a)     Payments to Be Free and Clear. All sums payable by any Credit Party hereunder and under the other Credit Documents shall (except to the extent required by law) be paid free and clear of, and without any deduction or withholding on account of, any Tax (other than a Tax on the overall net income of any Lender) imposed, levied, collected, withheld or assessed by or within the United States of America or any political subdivision in or of the United States of America or any other jurisdiction from or to which a payment is made by or on behalf of any Credit Party or by any federation or organization of which the United States of America or any such jurisdiction is a member at the time of payment.

(b)     Withholding of Taxes. If any Credit Party or any other Person is required by law to make any deduction or withholding on account of any such Tax from any sum paid or payable by any Credit Party to Administrative Agent or any Lender under any of the Credit Documents: (i) Company shall notify Administrative Agent of any such requirement or any change in any such requirement as soon as Company becomes aware of it; (ii) Company shall pay any such Tax before the date on which penalties attach thereto, such payment to be made (if the liability to pay is imposed on any Credit Party) for its own account or (if that liability is imposed on Administrative Agent or such Lender, as the case may be) on behalf of and in the name of Administrative Agent or such Lender; (iii) the sum payable by such Credit Party in respect of which the relevant deduction, withholding or payment is required shall be increased to the extent necessary to ensure that, after the making of that deduction, withholding or payment, Administrative Agent or such Lender, as the case may be, receives on the due date a net sum equal to what it would have received had no such deduction, withholding or payment been required or made; and (iv) within thirty (30) days after paying any sum from which it is required by law to make any deduction or withholding, and within thirty (30) days after the due date of payment of any Tax which it is required by clause (ii) above to pay, Company shall deliver to Administrative Agent evidence satisfactory to the other affected parties of such deduction, withholding or payment and of the remittance thereof to the relevant taxing or other authority; provided, no such additional amount shall be required to be paid to any Lender under clause (iii) above except to the extent that any change after the date hereof (in the case of each Lender listed on the signature pages hereof on the Closing Date) or after the effective date of the Assignment Agreement pursuant to which such Lender became a Lender (in the case of each other Lender) in any such requirement for a deduction, withholding or payment as is mentioned therein shall result in an increase in the rate of such deduction, withholding or payment from that in effect at the date hereof or at the date of such Assignment Agreement in respect of payments to such Lender.

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(c)     The Credit Parties will timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent, timely reimburse it for payment of, any Other Taxes.

(d)     Evidence of Exemption From U.S. Withholding Tax. Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) shall deliver to Administrative Agent for transmission to Company, on or prior to the Closing Date (in the case of each Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date of the assignment Agreement pursuant to which it becomes a Lender (in the case of each other Lender), and at such other times as may be necessary in the determination of Company or Administrative Agent (each in the reasonable exercise of its discretion), two original copies of Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax. Each Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for U.S. federal income tax purposes (a “Non-US Lender”) shall deliver to Administrative Agent for transmission to Company, on or prior to the Closing Date (in the case of each Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date of the Assignment Agreement pursuant to which it becomes a Lender (in the case of each other Lender), and at such other times as may be necessary in the determination of Company or Administrative Agent (each in the reasonable exercise of its discretion), (i) two original copies of Internal Revenue Service Form W-8BEN, W-8BEN-E or W-8ECI (or any successor forms), properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Company to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payments to such Lender of principal, interest, fees or other amounts payable under any of the Credit Documents, or (ii) if such Lender is not a “bank” or other Person described in Section 881(c)(3) of the Internal Revenue Code and cannot deliver Internal Revenue Service Form W-8ECI pursuant to clause (i) above, a Certificate Regarding Non Bank Status together with two original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor form), properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Company to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payments to such Lender of interest payable under any of the Credit Documents. Each Lender required to deliver any forms, certificates or other evidence with respect to United States federal income tax withholding matters pursuant to this Section 2.19(d) hereby agrees, from time to time after the initial delivery by such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any material respect, that such Lender shall promptly deliver to Administrative Agent for transmission to Company two new original copies of Internal Revenue Service Form W-8BEN, W-8BEN-E or W-8ECI, or a Certificate Regarding Non Bank Status and two original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor form), as the case may be, properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Company to confirm or establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to payments to such Lender under the Credit Documents, or notify Administrative Agent and Company of its inability to deliver any such forms, certificates or other evidence. Without limiting the foregoing, each Non-US Lender shall comply with any certification, documentation, information or other reporting necessary to establish relief or an exemption from withholding under FATCA and shall provide any other documentation reasonably requested by Credit Party or Administrative Agent sufficient for the Credit Party and Administrative Agent to comply with their obligations under FATCA and to determine that such Non-US Lender has complied with such applicable reporting requirements. For purposes of this Section 2.19, “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Company shall not be required to pay any additional amount to any Non-US Lender under Section 2.19(b)(iii) if such Lender shall have failed (1) to deliver the forms, certificates or other evidence referred to in the second sentence of this Section 2.19(c), or (2) to notify Administrative Agent and Company of its inability to deliver any such forms, certificates or other evidence, as the case may be; provided, if such Lender shall have satisfied the requirements of the first sentence of this Section 2.19(c) on the Closing Date or on the date of the Assignment Agreement pursuant to which it became a Lender, as applicable, nothing in this last sentence of Section 2.19(c) shall relieve Company of its obligation to pay any additional amounts pursuant this Section 2.19 in the event that, as a result of any change in any applicable law, treaty or governmental rule, regulation or order, or any change in the interpretation, administration or application thereof, such Lender is no longer properly entitled to deliver forms, certificates or other evidence at a subsequent date establishing the fact that such Lender is not subject to withholding as described herein.

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2.20     Obligation to Mitigate. Each Lender agrees that, as promptly as practicable after the officer of such Lender responsible for administering its Loans becomes aware of the occurrence of an event or the existence of a condition that would cause such Lender to become an Affected Lender or that would entitle such Lender to receive payments under Section 2.17, 2.18 or 2.19, it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or maintain its Loans, including any Affected Loans, through another office of such Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof the circumstances which would cause such Lender to be an Affected Lender would cease to exist or the additional amounts which would otherwise be required to be paid to such Lender pursuant to Section 2.17, 2.18 or 2.19 would be materially reduced and if, as determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of such Commitments or Loans through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect such Commitments or Loans or the interests of such Lender; provided, such Lender will not be obligated to utilize such other office pursuant to this Section 2.20 unless Company agrees to pay all incremental expenses incurred by such Lender as a result of utilizing such other office as described above. A certificate as to the amount of any such expenses payable by Company pursuant to this Section 2.20 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to Company (with a copy to Administrative Agent) shall be conclusive absent manifest error.

2.21     Removal or Replacement of a Lender. Anything contained herein to the contrary notwithstanding, in the event that: (a) (i) any Lender (an “Increased Cost Lender”) shall give notice to Company that such Lender is an Affected Lender or that such Lender is entitled to receive payments under Section 2.17, 2.18 or 2.19, (ii) the circumstances which have caused such Lender to be an Affected Lender or which entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five (5) Business Days after Company’s request for such withdrawal; or (b) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 10.5(b), the consent of Administrative Agent and Requisite Lenders shall have been obtained but the consent of one or more of such other Lenders (each a “Non Consenting Lender”) whose consent is required shall not have been obtained; then, with respect to each such Increased Cost Lender or Non Consenting Lender (the “Terminated Lender”), Administrative Agent may (which, in the case of an Increased-Cost Lender, only after receiving written request from Company to remove such Increased-Cost Lender), by giving written notice to Company and any Terminated Lender of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding Loans and its Commitments, if any, in full to one or more Eligible Assignees (each a “Replacement Lender”) in accordance with the provisions of Section 10.6, and Terminated Lender shall pay any fees payable thereunder in connection with such assignment; provided, (1) on the date of such assignment, the Replacement Lender shall pay to Terminated Lender an amount equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Terminated Lender, (B) an amount equal to all unreimbursed drawings or participations that have been funded by such Terminated Lender, together with all then unpaid interest with respect thereto at such time and (C) an amount equal to all accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.10; (2) on the date of such assignment, Company shall pay any amounts payable to such Terminated Lender pursuant to Section 2.18 or 2.19; and (3) in the event such Terminated Lender is a Non Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non Consenting Lender. Upon the prepayment of all amounts owing to any Terminated Lender and the termination of such Terminated Lender’s Commitments, if any, such Terminated Lender shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such Terminated Lender to indemnification hereunder shall survive as to such Terminated Lender.

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2.22     Tax Treatment. Company, Lenders and Administrative Agent each agree (a) that the Loans are intended to be treated as debt for U.S. federal income tax purposes, (b) that the issue price of the Term Loans is equal to par, (c) that the Term Loans are not governed by the rules set out in Treasury Regulations Section 1.1275-4 and (d) to adhere to this Agreement for U.S. federal income tax purposes and not to take any action or file any tax return, report or declaration inconsistent herewith. The inclusion of this Section 2.23 is not an admission by any Lender that it is subject to U.S. taxation.

SECTION 3. CONDITIONS PRECEDENT

3.1     Closing Date. The obligation of each Lender to make the Closing Date Term Loans on the Closing Date was subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions on or before the Closing Date:

(a)     Credit Documents. Administrative Agent shall have received sufficient copies of each Credit Document originally executed and delivered by each applicable Credit Party for each Lender.

(b)     Organizational Documents; Incumbency. Administrative Agent shall have received (i) sufficient copies of each Organizational Document executed and delivered by each Credit Party, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, for each Lender, each dated the Closing Date or a recent date prior thereto; (ii) signature and incumbency certificates of the officers of such Person executing the Credit Documents and Divested Business Documents to which it is a party; (iii) resolutions of the Board of Directors or similar governing body of each Credit Party approving and authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party or by which it or its assets may be bound as of the Closing Date, certified as of the Closing Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (iv) a good standing certificate from the applicable Governmental Authority of each Credit Party’s jurisdiction of incorporation, organization or formation and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a recent date prior to the Closing Date; and (v) such other documents as Administrative Agent may reasonably request.

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(c)     Existing Indebtedness. On the Closing Date, Company and its Subsidiaries shall have (i) repaid in full all Existing Indebtedness other than the Existing Cash Collateralized Letters of Credit, (ii) terminated any commitments to lend or make other extensions of credit thereunder, (iii) delivered to Administrative Agent all documents or instruments necessary to release all Liens securing Existing Indebtedness or other obligations of Company and its Subsidiaries thereunder being repaid on the Closing Date, and (iv) made arrangements satisfactory to Administrative Agent with respect to the cancellation of any letters of credit outstanding thereunder.

(d)     Closing Date Transaction Costs. On or prior to the Closing Date, Company shall have delivered to Administrative Agent Company’s reasonable best estimate of the Closing Date Transaction Costs (other than fees payable to any Agent).

(e)     Governmental Authorizations and Consents. Each Credit Party shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable in connection with the transactions contemplated by the Credit Documents and the Divested Business Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Administrative Agent. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Credit Documents and the Divested Business Documents and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired.

(f)     [reserved].

(g)     Personal Property Collateral. In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the personal property Collateral, Collateral Agent shall have received:

(i)     evidence satisfactory to Collateral Agent of the compliance by each Credit Party of their obligations under the Pledge and Security Agreement and the other Collateral Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein);

(ii)     A completed Perfection Certificate dated the Closing Date and executed by an Authorized Officer of each Credit Party, together with all attachments contemplated thereby, including (A) the results of a recent search, by a Person satisfactory to Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Credit Party in the jurisdictions specified in the Perfection Certificate, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens);

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(iii)     opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) with respect to the creation and perfection of the security interests in favor of Collateral Agent in such Collateral and such other matters governed by the laws of each jurisdiction in which any Credit Party or any personal property Collateral is located as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; and

(iv)     evidence that each Credit Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including without limitation, (i) a Landlord Personal Property Collateral Access Agreement executed by the landlord and the applicable Credit Party with respect to any Material Leasehold Property, and (ii) any intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 6.1(b)) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.

(h)     Environmental Reports. Administrative Agent shall have received reports and other information, in form, scope and substance satisfactory to Administrative Agent, regarding environmental matters relating to the Facilities, which reports shall include a Phase I Report for each of the Facilities specified by Administrative Agent.

(i)     Financial Statements; Projections. Lenders shall have received from Company (i) the Historical Financial Statements, (ii) pro forma consolidated and consolidating balance sheets of Company and its Subsidiaries as at the Closing Date, and reflecting the consummation of the transactions contemplated by the Credit Documents to occur on or prior to the Closing Date, which pro forma financial statements shall be in form and substance satisfactory to Administrative Agent, and (iii) the Projections (as such term is defined in the Original Credit Agreement).

(j)     Evidence of Insurance. Collateral Agent shall have received a certificate from Company’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 5.5 is in full force and effect, together with endorsements naming the Collateral Agent, for the benefit of Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 5.5.

(k)     Opinions of Counsel to Credit Parties. Lenders and their respective counsel shall have received originally executed copies of the favorable written opinions of Winthrop & Weinstine, P.A., counsel for Credit Parties, and such local counsel(s) as Administrative Agent shall reasonably require, and as to such matters as Administrative Agent may reasonably request, dated as of the Closing Date and otherwise in form and substance reasonably satisfactory to Administrative Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and Lenders).

(l)     Fees. Company shall have paid to Syndication Agent, Administrative Agent and Documentation Agent, the fees payable on the Closing Date referred to in Section 2.10.

(m)     Solvency Certificate. On the Closing Date, Administrative Agent shall have received a Solvency Certificate from Company dated as of the Closing Date and addressed to Administrative Agent and Lenders, and in form, scope and substance satisfactory to Administrative Agent, with appropriate attachments and demonstrating that after giving effect to the Closing Date Term Loans to be made on the Closing Date, Company and its Subsidiaries are and will be Solvent.

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(n)     Closing Date Certificate. Company shall have delivered to Administrative Agent an originally executed Closing Date Certificate, together with all attachments thereto.

(o)     No Litigation. There shall not exist any action, suit, investigation, litigation or proceeding or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or Governmental Authority that, in the reasonable discretion of Administrative Agent, singly or in the aggregate, materially impairs the transactions contemplated by the Credit Documents or the Divested Business Documents, or that could have a Material Adverse Effect.

(p)     Due Diligence. Other than changes occurring in the ordinary course of business, no information or materials are or should have been available to Company and its Subsidiaries as of the Closing Date that are materially inconsistent with the material previously provided to Administrative Agent for its due diligence review of Company and its Subsidiaries.

(q)     Maximum Leverage Ratio. The pro forma balance sheet delivered pursuant to Section 3.1(i) shall demonstrate in form and substance reasonably satisfactory to Administrative Agent that on the Closing Date and immediately after giving effect to the Closing Date Term Loans to be made on the Closing Date, including the payment of all Closing Date Transaction Costs required to be paid in Cash, the ratio of (i) total Indebtedness for the Company and its Subsidiaries as of the Closing Date to (ii) pro forma Consolidated Adjusted EBITDA for the twelve-month period ending May 31, 2014 shall not be greater than 2.90:1.00.

(r)     No Material Adverse Change. Since March 31, 2014, no event, circumstance or change shall have occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect.

(s)     Completion of Proceedings. All partnership, corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent, and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.

(t)     Minimum EBITDA. The pro forma balance sheet delivered pursuant to Section 3.1(i) shall demonstrate in form and substance reasonably satisfactory to Administrative Agent that on the Closing Date and immediately after giving effect to the Closing Date Term Loans, including the payment of all Closing Date Transaction Costs required to be paid in Cash, the Company shall have generated trailing twelve-month Consolidated Adjusted EBITDA for the period ended on May 31, 2014 of at least $12,200,000.

(u)     Consummation of Transactions Contemplated by Divested Business Documents.

(i)     (A) All conditions to the divestiture of the Divested Business set forth in the Divested Business Agreement and the other Divested Business Documents shall have been satisfied or the fulfillment of any such conditions shall have been waived with the consent of Administrative Agent, and (B) the divestiture of the Divested Business shall have become effective in accordance with the terms of the Divested Business Agreement and the other Divested Business Documents.

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(ii)     Administrative Agent shall have received a fully executed or conformed copy of each Divested Business Document, together with copies of each of the opinions of counsel delivered (if any) to the parties under the Divested Business Documents, accompanied by a letter from each such counsel (to the extent not inconsistent with such counsel’s established internal policies) authorizing Lenders to rely upon such opinion to the same extent as though it were addressed to Lenders. Each Divested Business Document shall be in full force and effect, shall include terms and provisions reasonably satisfactory to Administrative Agent and no provision thereof shall have been modified or waived in any respect determined by Administrative Agent to be material, in each case without the consent of Administrative Agent.

(v)     Service of Process. On the Closing Date, Administrative Agent shall have received evidence that each Credit Party has appointed an agent in New York City for the purpose of service of process in New York City and such agent shall agree in writing to give Administrative Agent notice of any resignation of such service agent or other termination of the agency relationship.

3.2     Restatement Date. The obligation of each Lender to make a Restatement Date Term Loan on the Restatement Date is subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions on or before the Restatement Date:

(a)     Credit Documents. Administrative Agent shall have received sufficient copies of each Credit Document originally executed and delivered by each applicable Credit Party for each Lender.

(b)     Organizational Documents; Incumbency. Administrative Agent shall have received (i) sufficient copies of each Organizational Document executed and delivered by each Credit Party, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, for each Lender, each dated the Restatement Date or a recent date prior thereto; (ii) signature and incumbency certificates of the officers of such Person executing the Credit Documents and Fifth Gear Acquisition Documents to which it is a party; (iii) resolutions of the Board of Directors or similar governing body of each Credit Party approving and authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party or by which it or its assets may be bound as of the Restatement Date, certified as of the Restatement Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (iv) a good standing certificate from the applicable Governmental Authority of each Credit Party’s jurisdiction of incorporation, organization or formation and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a recent date prior to the Restatement Date; and (v) such other documents as Administrative Agent may reasonably request.

(c)     Existing Indebtedness of Fifth Gear Sellers. On the Restatement Date, Company and its Subsidiaries shall have (i) repaid in full all existing indebtedness of the Fifth Gear Sellers (other than the RSI Indebtedness), (ii) terminated any commitments to lend or make other extensions of credit thereunder, (iii) delivered to Administrative Agent all documents or instruments necessary to release all Liens securing such existing indebtedness or other obligations of the sellers thereunder being repaid on the Restatement Date, and (iv) made arrangements satisfactory to Administrative Agent with respect to the cancellation of any letters of credit outstanding thereunder.

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(d)     Restatement Date Transaction Costs. On or prior to the Restatement Date, Company shall have delivered to Administrative Agent Company’s reasonable best estimate of the Restatement Date Transactions Costs (other than fees payable to any Agent).

(e)     Governmental Authorizations and Consents. Each Credit Party shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable in connection with the transactions contemplated by the Credit Documents and the Fifth Gear Acquisition Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Administrative Agent. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Credit Documents and the Fifth Gear Acquisition Documents and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired.

(f)     [reserved].

(g)     Personal Property Collateral. In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the personal property Collateral, Collateral Agent shall have received:

(i)     evidence satisfactory to Collateral Agent of the compliance by each Credit Party of their obligations under the Pledge and Security Agreement and the other Collateral Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein);

(ii)     A completed Perfection Certificate dated the Restatement Date and executed by an Authorized Officer of each Credit Party, together with all attachments contemplated thereby, including (A) the results of a recent search, by a Person satisfactory to Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Credit Party in the jurisdictions specified in the Perfection Certificate, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens);

(iii)     opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) with respect to the creation and perfection of the security interests in favor of Collateral Agent in such Collateral and such other matters governed by the laws of each jurisdiction in which any Credit Party or any personal property Collateral is located as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; and

(iv)     evidence that each Credit Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including without limitation, (i) a Landlord Personal Property Collateral Access Agreement executed by the landlord and the applicable Credit Party with respect to any Material Leasehold Property, and (ii) any intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 6.1(b)) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.

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(h)     Environmental Reports. Administrative Agent shall have received reports and other information, in form, scope and substance satisfactory to Administrative Agent, regarding environmental matters relating to the Facilities, which reports shall include a Phase I Report for each of the Facilities specified by Administrative Agent.

(i)     Financial Statements; Projections. Lenders shall have received from Company or the Fifth Gear Sellers, as applicable, (i) the Historical Financial Statements, (ii) pro forma consolidated and consolidating balance sheets of Company and its Subsidiaries as at the Closing Date, and reflecting the consummation of the Restatement Date Transactions, which pro forma financial statements shall be in form and substance satisfactory to Administrative Agent, and (iii) the Projections.

(j)     Evidence of Insurance. Collateral Agent shall have received a certificate from Company’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 5.5 is in full force and effect, together with endorsements naming the Collateral Agent, for the benefit of Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 5.5.

(k)     Opinions of Counsel to Credit Parties. Lenders and their respective counsel shall have received originally executed copies of the favorable written opinions of Winthrop & Weinstine, P.A., counsel for Credit Parties, and such local counsel(s) as Administrative Agent shall reasonably require, and as to such matters as Administrative Agent may reasonably request, dated as of the Restatement Date and otherwise in form and substance reasonably satisfactory to Administrative Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and Lenders).

(l)     Fees. Company shall have paid to Syndication Agent, Administrative Agent and Documentation Agent, the fees payable on the Restatement Date referred to in Section 2.10.

(m)     Solvency Certificate. On the Restatement Date, Administrative Agent shall have received a Solvency Certificate from Company dated as of the Restatement Date and addressed to Administrative Agent and Lenders, and in form, scope and substance satisfactory to Administrative Agent, with appropriate attachments and demonstrating that after giving effect to the Restatement Date Transactions to be made on the Restatement Date, Company and its Subsidiaries are and will be Solvent.

(n)     Restatement Date Certificate. Company shall have delivered to Administrative Agent an originally executed Restatement Date Certificate, together with all attachments thereto.

(o)     No Litigation. There shall not exist any action, suit, investigation, litigation or proceeding or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or Governmental Authority that, in the reasonable discretion of Administrative Agent, singly or in the aggregate, materially impairs the transactions contemplated by the Credit Documents or the Divested Business Documents, or that could have a Material Adverse Effect.

(p)     Due Diligence. Other than changes occurring in the ordinary course of business, no information or materials are or should have been available to Company and its Subsidiaries as of the Restatement Date that are materially inconsistent with the material previously provided to Administrative Agent for its due diligence review of Company and its Subsidiaries.

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(q)     Maximum Leverage Ratio. The pro forma balance sheet delivered pursuant to Section 3.2(i) shall demonstrate in form and substance reasonably satisfactory to Administrative Agent that on the Restatement Date and immediately after giving effect to the Restatement Date Transactions, including the payment of all Restatement Date Transaction Costs required to be paid in Cash, the ratio of (i) total Indebtedness for the Company and its Subsidiaries as of the Restatement Date to (ii) pro forma Consolidated Adjusted EBITDA for the twelve-month period ending September 30, 2014 shall not be greater than 4.50:1.00.

(r)     No Material Adverse Change. Since March 31, 2014, no event, circumstance or change shall have occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect.

(s)     Completion of Proceedings. All partnership, corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by Administrative Agent and its counsel shall be satisfactory in form and substance to Administrative Agent and such counsel, and Administrative Agent, and such counsel shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request.

(t)     Minimum EBITDA. The pro forma balance sheet delivered pursuant to Section 3.2(i) shall demonstrate in form and substance reasonably satisfactory to Administrative Agent that on the Restatement Date and immediately after giving effect to the Restatement Date Transactions on the Restatement Date, including the payment of all Restatement Date Transaction Costs required to be paid in Cash, the Company shall have generated (i) trailing twelve-month Consolidated Adjusted EBITDA for the period ended on September 30, 2014 of at least $19,800,000 and (ii) trailing twelve-month Consolidated EBITDA for the period ended on September 30, 2014 of at least $7,000,000.

(u)     Consummation of Transactions Contemplated by Fifth Gear Acquisition Documents.

(i)     (A) All conditions to the Fifth Gear Acquisition set forth in the Fifth Gear Acquisition Agreement and the other Fifth Gear Acquisition Documents shall have been satisfied or the fulfillment of any such conditions shall have been waived with the consent of Administrative Agent, and (B) the Fifth Gear Acquisition shall have been consummated in accordance with the terms of the Fifth Gear Acquisition Agreement and the other Fifth Gear Acquisition Documents.

(ii)     Administrative Agent shall have received a fully executed or conformed copy of each Fifth Gear Acquisition Document, together with copies of each of the opinions of counsel delivered (if any) to the parties under the Fifth Gear Acquisition Documents, accompanied by a letter from each such counsel (to the extent not inconsistent with such counsel’s established internal policies) authorizing Lenders to rely upon such opinion to the same extent as though it were addressed to Lenders. Each Fifth Gear Acquisition Document shall be in full force and effect, shall include terms and provisions reasonably satisfactory to Administrative Agent and no provision thereof shall have been modified or waived in any respect determined by Administrative Agent to be material, in each case without the consent of Administrative Agent.

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(v)     Service of Process. On the Restatement Date, Administrative Agent shall have received evidence that each Credit Party has appointed an agent in New York City for the purpose of service of process in New York City and such agent shall agree in writing to give Administrative Agent notice of any resignation of such service agent or other termination of the agency relationship.

(w)     Administrative Agent shall have received fully executed and delivered Funding Notice(s) in accordance with Section 2.1(b) or Section 2.2(b), as applicable; any Funding Notice shall be executed by an Authorized Officer in a writing delivered to Administrative Agent. Neither Administrative Agent nor any Lender shall incur any liability to Company in acting upon any notice referred to above that Administrative Agent believes in good faith to have been given by a duly authorized officer or other person authorized on behalf of Company or for otherwise acting in good faith.;

(x)     the representations and warranties contained herein and in the other Credit Documents shall be true and correct, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date;

(y)     as of the Restatement Date, no event has occurred and is Continuing or would result from the consummation of the Restatement Date Term Loans that would constitute a Default or an Event of Default; and

(z)     Administrative Agent shall have received evidence (including an officer’s certificate of an Authorized Officer of Company) satisfactory to it that all conditions set forth in this Section 3.2 have been satisfied.

Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Loan, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances.

SECTION 4. REPRESENTATIONS AND WARRANTIES

In order to induce Agents and Lenders to enter into this Agreement and to make each Loan to be made thereby, each Credit Party represents and warrants to each Agent and Lender, on the Closing Date and on the Restatement Date, that the following statements are true and correct in all respects, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct on and as of such earlier date, and it being understood and agreed that on the Restatement Date the representations and warranties shall be deemed to be made concurrently with, but in each case after giving effect to, the Restatement Date Transactions.

4.1     Organization; Requisite Power and Authority; Qualification. Each of Company and its Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization as identified in Schedule 4.1, (b) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Credit Documents to which it is a party and to carry out the transactions contemplated thereby, and (c) is qualified to do business and in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations.

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4.2     Capital Stock and Ownership. The Capital Stock of each of Company and its Subsidiaries has been duly authorized and validly issued and is fully paid and non-assessable. Except as set forth on Schedule 4.2, as of the date hereof, there is no existing option, warrant, call, right, commitment or other agreement to which Company or any of its Subsidiaries is a party requiring, and there is no membership interest or other Capital Stock of Company or any of its Subsidiaries outstanding which upon conversion or exchange would require, the issuance by Company or any of its Subsidiaries of any additional membership interests or other Capital Stock of Company or any of its Subsidiaries or other Securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase, a membership interest or other Capital Stock of Company or any of its Subsidiaries. Schedule 4.2 correctly sets forth the ownership interest of Company and each of its Subsidiaries in their respective Subsidiaries as of the Closing Date and the Restatement Date both before and after giving effect to the transactions contemplated by the Original Credit Agreement on the Closing Date and the Restatement Date Transactions to take place on the Restatement Date.

4.3     Due Authorization. The execution, delivery and performance of the Credit Documents have been duly authorized by all necessary action on the part of each Credit Party that is a party thereto.

4.4     No Conflict. The execution, delivery and performance by Credit Parties of the Credit Documents to which they are parties and the consummation of the transactions contemplated by the Credit Documents do not and will not (a) violate any provision of any law or any governmental rule or regulation applicable to Company or any of its Subsidiaries, any of the Organizational Documents of Company or any of its Subsidiaries, or any order, judgment or decree of any court or other agency of government binding on Company or any of its Subsidiaries; (b) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation of Company or any of its Subsidiaries; (c) result in or require the creation or imposition of any Lien upon any of the properties or assets of Company or any of its Subsidiaries (other than any Liens created under any of the Credit Documents in favor of Collateral Agent, on behalf of Secured Parties); or (d) require any approval of stockholders, members or partners or any approval or consent of any Person under any Contractual Obligation of Company or any of its Subsidiaries, except for such approvals or consents which were obtained on or before the Closing Date or will be obtained on or before the Restatement Date, as applicable, and disclosed in writing to Administrative Agent.

4.5     Governmental Consents. The execution, delivery and performance by Credit Parties of the Credit Documents to which they are parties and the consummation of the transactions contemplated by the Credit Documents do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority except for filings and recordings with respect to the Collateral to be made, or otherwise delivered to Collateral Agent for filing and/or recordation, as of the Closing Date or Restatement Date, as applicable.

4.6     Binding Obligation. Each Credit Document has been duly executed and delivered by each Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

4.7     Historical Financial Statements. The Historical Financial Statements were prepared in conformity with GAAP and fairly present, in all material respects, the financial position, on a consolidated basis, of the Persons described in such financial statements as at the respective dates thereof and the results of operations and cash flows, on a consolidated basis, of the entities described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments. As of the Closing Date and Restatement Date, neither Company nor any of its Subsidiaries has any contingent liability or liability for taxes, long term lease or unusual forward or long term commitment that is not reflected in the Historical Financial Statements or the notes thereto and which in any such case is material in relation to the business, operations, properties, assets, condition (financial or otherwise) or prospects of Company and any of its Subsidiaries taken as a whole.

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4.8     Projections. On and as of the Closing Date and Restatement Date, the Projections of Company and its Subsidiaries for the period of the Fiscal Year ending March 31, 2015 through and including the Fiscal Year ending March 31, 2018 (the “Projections”) are based on good faith estimates and assumptions made by the management of Company (including, but not limited to the calculation of Consolidated Adjusted EBITDA for each period, inclusive of all estimated add-backs set forth in the definition thereof) and, to their knowledge, management of Company believed that the Projections were reasonable and attainable; provided, the Projections are not to be viewed as facts and that actual results during the period or periods covered by the Projections may differ from such Projections and that the differences may be material.

4.9     No Restricted Junior Payments. Neither Company nor any of its Subsidiaries has directly or indirectly declared, ordered, paid or made, or set apart any sum or property for, any Restricted Junior Payment or agreed to do so except as permitted pursuant to Section 6.5.

4.10     Adverse Proceedings, etc.. There are no Adverse Proceedings, individually or in the aggregate, that would reasonably be expected to have a Material Adverse Effect. Neither Company nor any of its Subsidiaries (a) is in violation of any applicable laws (including Environmental Laws) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, or (b) is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

4.11     Payment of Taxes. Except as otherwise permitted under Section 5.3, all tax returns and reports of Company and its Subsidiaries required to be filed by any of them have been timely filed, and all taxes shown on such tax returns to be due and payable and all assessments, fees and other governmental charges upon Company and its Subsidiaries and upon their respective properties, assets, income, businesses and franchises which are due and payable have been paid when due and payable. Company knows of no proposed tax assessment against Company or any of its Subsidiaries which is not being actively contested by Company or such Subsidiary in good faith and by appropriate proceedings; provided, such reserves or other appropriate provisions, if any, as shall be required in conformity with GAAP shall have been made or provided therefore and such proceedings have the effect of preventing the forfeiture or sale of the Collateral subject thereto.

4.12     Properties.

(a)     Title. Each of Company and its Subsidiaries has (i) good, sufficient and legal title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the case of leasehold interests in real or personal property), and (iii) good title to (in the case of all other personal property), all of their respective properties and assets reflected in their respective Historical Financial Statements referred to in Section 4.5 and in the most recent financial statements delivered pursuant to Section 5.1, in each case except for assets disposed of since the date of such financial statements in the ordinary course of business or as otherwise permitted under Section 6.9. Except as permitted by this Agreement, all such properties and assets are free and clear of Liens.

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(b)     Real Estate. As of the Closing Date and Restatement Date, Schedule 4.12 contains a true, accurate and complete list of (i) all Real Estate Assets, and (ii) all leases, subleases or assignments of leases (together with all amendments, modifications, supplements, renewals or extensions of any thereof) affecting each Real Estate Asset of any Credit Party, regardless of whether such Credit Party is the landlord or tenant (whether directly or as an assignee or successor in interest) under such lease, sublease or assignment. Each agreement listed in clause (ii) of the immediately preceding sentence is in full force and effect and Company does not have knowledge of any default that has occurred and is continuing thereunder, and each such agreement constitutes the legally valid and binding obligation of each applicable Credit Party, enforceable against such Credit Party in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles.

4.13     Environmental Matters. Neither Company nor any of its Subsidiaries nor any of their respective Facilities or operations are subject to any outstanding written order, consent decree or settlement agreement with any Person relating to any Environmental Law, any Environmental Claim, or any Hazardous Materials Activity that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. Neither Company nor any of its Subsidiaries has received any letter or request for information under Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable state law. There are and, to each of Company’s and its Subsidiaries’ knowledge, have been, no conditions, occurrences, or Hazardous Materials Activities which would reasonably be expected to form the basis of an Environmental Claim against Company or any of its Subsidiaries that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. Neither Company nor any of its Subsidiaries nor, to any Credit Party’s knowledge, any predecessor of Company or any of its Subsidiaries has filed any notice under any Environmental Law indicating past or present treatment of Hazardous Materials at any Facility, and none of Company’s or any of its Subsidiaries’ operations involves the generation, transportation, treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260 270 or any state equivalent. Compliance with all current or reasonably foreseeable future requirements pursuant to or under Environmental Laws could not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. No event or condition has occurred or is occurring with respect to Company or any of its Subsidiaries relating to any Environmental Law, any Release of Hazardous Materials, or any Hazardous Materials Activity which individually or in the aggregate has had, or would reasonably be expected to have, a Material Adverse Effect.

4.14     No Defaults. Neither Company nor any of its Subsidiaries is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any of its Contractual Obligations, and no condition exists which, with the giving of notice or the lapse of time or both, could constitute such a default, except where the consequences, direct or indirect, of such default or defaults, if any, would not reasonably be expected to have a Material Adverse Effect.

4.15     Material Contracts. Schedule 4.15 contains a true, correct and complete list of all the Material Contracts in effect on the Closing Date and Restatement Date, as applicable, which, together with any updates provided pursuant to Section 5.1(l), all such Material Contracts are in full force and effect and no defaults currently exist thereunder (other than as described in Schedule 4.15 or in such updates).

4.16     Governmental Regulation. Neither Company nor any of its Subsidiaries is subject to regulation under the Public Utility Holding Company Act of 2005, the Federal Power Act or the Investment Company Act of 1940 or under any other federal or state statute or regulation which may limit its ability to incur Indebtedness or which may otherwise render all or any portion of the Obligations unenforceable. Neither Company nor any of its Subsidiaries is a “registered investment company” or a company “controlled” by a “registered investment company” or a “principal underwriter” of a “registered investment company” as such terms are defined in the Investment Company Act of 1940.

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4.17     Margin Stock. Neither Company nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No part of the proceeds of the Loans made to such Credit Party will be used to purchase or carry any such Margin Stock or to extend credit to others for the purpose of purchasing or carrying any such Margin Stock or for any purpose that violates, or is inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System.

4.18     Employee Matters. Neither Company nor any of its Subsidiaries is engaged in any unfair labor practice that would reasonably be expected to have a Material Adverse Effect. There is (a) no unfair labor practice complaint pending against Company or any of its Subsidiaries, or to the best knowledge of Company and Company, threatened against any of them before the National Labor Relations Board and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement that is so pending against Company or any of its Subsidiaries or to the best knowledge of Company and Company, threatened against any of them, (b) no strike or work stoppage in existence or threatened involving Company or any of its Subsidiaries, and (c) to the best knowledge of Company and Company, no union representation question existing with respect to the employees of Company or any of its Subsidiaries and, to the best knowledge of Company and Company, no union organization activity that is taking place, except (with respect to any matter specified in clause (a), (b) or (c) above, either individually or in the aggregate) such as is not reasonably likely to have a Material Adverse Effect.

4.19     Employee Benefit Plans. Company, each of its Subsidiaries and each of their respective ERISA Affiliates are in compliance with all applicable provisions and requirements of ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder with respect to each Employee Benefit Plan, and have performed all their obligations under each Employee Benefit Plan. Each Employee Benefit Plan which is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the Internal Revenue Service indicating that such Employee Benefit Plan is so qualified and nothing has occurred subsequent to the issuance of such determination letter which would cause such Employee Benefit Plan to lose its qualified status. No liability to the PBGC (other than required premium payments and there are no premium payments which have become due which are unpaid), the Internal Revenue Service, any Employee Benefit Plan or any trust established under Title IV of ERISA has been or is expected to be incurred by Company, any of its Subsidiaries or any of their ERISA Affiliates. No ERISA Event has occurred or is reasonably expected to occur. Except to the extent required under Section 4980B of the Internal Revenue Code or similar state laws, no Employee Benefit Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of Company, any of its Subsidiaries or any of their respective ERISA Affiliates. The present value of the aggregate benefit liabilities under each Pension Plan sponsored, maintained or contributed to by Company, any of its Subsidiaries or any of their ERISA Affiliates (determined as of the end of the most recent plan year on the basis of the actuarial assumptions specified for funding purposes in the most recent actuarial valuation for such Pension Plan), did not exceed the aggregate current value of the assets of such Pension Plan. No Pension Plan is subject to the at-risk requirements in Section 303 of ERISA and Section 430 of the Code and no Multiemployer Plan is subject to the additional funding rules in Section 305 of ERISA and Section 432 of the Code. As of the most recent valuation date for each Multiemployer Plan for which the actuarial report is available, the potential liability of Company, its Subsidiaries and their respective ERISA Affiliates for a complete withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when aggregated with such potential liability for a complete withdrawal from all Multiemployer Plans, based on information available pursuant to Section 4221(e) of ERISA is zero. Company, each of its Subsidiaries and each of their ERISA Affiliates have complied with the requirements of Section 515 of ERISA with respect to each Multiemployer Plan and are not in material “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan. Neither any Credit Party, any of its Subsidiaries or ERISA Affiliates nor any fiduciary of or trustee to any Employee Benefit Plan has engaged in a prohibited transaction as described in Section 406 of ERISA or Section 4975 of the Code.

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4.20     Certain Fees. Other than fees payable by Company to Stifel Nicolaus and disclosed to Administrative Agent, no broker’s or finder’s fee or commission will be payable with respect hereto or any of the transactions contemplated hereby.

4.21     Solvency. Each Credit Party (i) was Solvent on the Closing Date, (ii) is Solvent on the Restatement Date before the consummation of the Restatement Date Transactions, (iii) will be Solvent on the Restatement Date after giving effect to the Restatement Date Transactions and (iv) will be Solvent upon the consummation of, and after giving effect to, any Permitted Acquisition.

4.22     Divested Business Documents and Fifth Gear Acquisition Documents.

(a)     Divested Business Documents.

(i)     Delivery. Company has delivered to Administrative Agent complete and correct copies of (i) each Divested Business Document and of all exhibits and schedules thereto as of the Closing Date, and (ii) copies of any material amendment, restatement, supplement or other modification to or waiver of each Divested Business Document entered into after the Closing Date.

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(ii)      Representations and Warranties. Except to the extent otherwise expressly set forth herein or in the schedules hereto, and subject to the qualifications set forth therein, each of the representations and warranties given by Company or any of its Subsidiaries in any Divested Business Document is true and correct in all material respects as of the Closing Date (or as of any earlier date to which such representation and warranty specifically relates). Notwithstanding anything in the Divested Business Agreement to the contrary, the representations and warranties of Company and each of its Subsidiaries set forth in this Section 4.22 shall, solely for purposes hereof, survive the Closing Date for the benefit of the Lenders.

(iii)     Governmental Approvals. All Governmental Authorizations and all other authorizations, approvals and consents of any other Person required by the Divested Business Documents or to consummate the transactions contemplated thereby have been obtained and are in full force and effect.

(b)     Fifth Gear Acquisition Documents.

(i)     Delivery. Company has delivered to Administrative Agent complete and correct copies of (i) each Fifth Gear Acquisition Document and of all exhibits and schedules thereto as of the Restatement Date, and (ii) copies of any material amendment, restatement, supplement or other modification to or waiver of each Fifth Gear Acquisition Document entered into after the Restatement Date.

(ii)     Representations and Warranties. Except to the extent otherwise expressly set forth herein or in the schedules hereto, and subject to the qualifications set forth therein, each of the representations and warranties given by Company or any of its Subsidiaries in any Fifth Gear Acquisition Document is true and correct in all material respects as of the Restatement Date (or as of any earlier date to which such representation and warranty specifically relates). Notwithstanding anything in the Fifth Gear Acquisition Agreement to the contrary, the representations and warranties of Company and each of its Subsidiaries set forth in this Section 4.22 shall, solely for purposes hereof, survive the Restatement Date for the benefit of the Lenders.

(iii)     Governmental Approvals. All Governmental Authorizations and all other authorizations, approvals and consents of any other Person required by the Fifth Gear Acquisition Documents or to consummate the transactions contemplated thereby have been obtained and are in full force and effect.

4.23     Conditions Precedent.

(a)     Divested Business. On the Closing Date, (i) all of the conditions to effecting or consummating the sale of the Divested Business set forth in the Divested Business Documents have been duly satisfied or, with the consent of Administrative Agent, waived, and (ii) the sale of the Divested Business has been consummated in accordance with the Divested Business Documents and all applicable laws. Each of Company and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any Real Estate Asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such Real Estate Asset or the operations of Company or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

(b)     Fifth Gear Acquisition. On the Restatement Date, (i) all of the conditions to effecting or consummating the Fifth Gear Acquisition set forth in the Fifth Gear Acquisition Documents have been duly satisfied or, with the consent of Administrative Agent, waived, and (ii) the Fifth Gear Acquisition has been consummated in accordance with the Fifth Gear Acquisition Documents and all applicable laws. Each of Company and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any Real Estate Asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such Real Estate Asset or the operations of Company or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect

4.24     Disclosure. No representation or warranty of any Credit Party contained in any Credit Document or in any other documents, certificates or written statements furnished to Lenders by or on behalf of Company or any of its Subsidiaries for use in connection with the transactions contemplated hereby, when taken as a whole, contains any untrue statement of a material fact or omits to state a material fact (known to Company, in the case of any document not furnished by either of them) necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made. Any projections and pro forma financial information contained in such materials are based upon good faith estimates and assumptions believed by Company to be reasonable at the time made, it being recognized by Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results. There are no facts known (or which should upon the reasonable exercise of diligence be known) to Company (other than matters of a general economic nature) that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect and that have not been disclosed herein or in such other documents, certificates and statements furnished to Lenders for use in connection with the transactions contemplated hereby.

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4.25     Anti-Terrorism Laws. Neither Company nor any of its Subsidiaries is in violation of any law relating to terrorism or money laundering (“Anti-Terrorism Laws”), including USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended), and Executive Order No. 13224 on Terrorism Financing, effective September 24, 2001 (the “Executive Order”). Neither Company nor any of its Subsidiaries or other agents acting or benefiting in any capacity in connection with the Loans is (a) a Person that is listed in the Annex to, or is otherwise subject to the provisions of, the Executive Order, (b) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the Annex to, or is otherwise subject to the provisions of, the Executive Order, (c) a Person with whom any Agent or Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, (d) a Person who commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order, (e) an “enemy” or an “ally of the enemy” within the meaning of Section 2 of the Trading with the Enemy Act of the United States of America (50 U.S.C. App. §§1 et seq.), as amended, or (f) a Person that is named as a “specially designated national and blocked person” on the most current list published by the United States Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list. Neither Company nor any of its Subsidiaries or other agents acting or benefiting in any capacity in connection with the Loans (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Person described in the preceding sentence, (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in any property blocked pursuant to the Executive Order, or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in the Anti-Terrorism Laws.

4.26     Independent Contractors. All independent contractors, consultants, temporary employees, leased employees or other servants or agents classified by Company or any of its Subsidiaries as other than employees or compensated other than through wages paid by Company or any of its Subsidiaries and reported on a form W-2 or W-3 (collectively, “Contingent Workers”) employed or used with respect to the operation of Company or any of its Subsidiaries have been properly classified and treated in accordance with applicable laws and for purposes of all employee benefit plans and perquisites, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.

SECTION 5. AFFIRMATIVE COVENANTS

Each Credit Party covenants and agrees that so long as any Commitment is in effect and until payment in full of all Obligations (other than contingent indemnification Obligations for which no claim has been asserted), each Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 5.

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5.1     Financial Statements and Other Reports. Unless otherwise provided below, Company will deliver to Administrative Agent and Lenders:

(a)     Monthly Reports. As soon as available, and in any event within thirty (30) days after the end of each month (excluding any month that is also the end of a Fiscal Quarter) commencing with the month of November 2014, the consolidated and consolidating balance sheet of Company and its Subsidiaries as at the end of such month and the related consolidated and consolidating statements of income, consolidated statements of stockholders’ equity and consolidated statements of cash flows of Company and its Subsidiaries for such month and for the period from the beginning of the then current Fiscal Year to the end of such month, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the Financial Plan for the current Fiscal Year, all in reasonable detail, together with a schedule of reconciliations for any reclassifications with respect to prior months or periods (and, in connection therewith, copies of any restated financial statements for any impacted month or period) a Financial Officer Certification and a Narrative Report with respect thereto and any other operating reports prepared by management for such period;

(b)     Quarterly Financial Statements. As soon as available, and in any event within forty-five (45) days after the end of each Fiscal Quarter of each Fiscal Year (excluding any Fiscal Quarter that is also the end of a Fiscal Year), the consolidated and consolidating balance sheets of Company and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated (and with respect to statements of income, consolidating) statements of income, stockholders’ equity and cash flows of Company and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the Financial Plan for the current Fiscal Year, all in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto;

(c)     Annual Financial Statements. As soon as available, and in any event within ninety (90) days after the end of each Fiscal Year, (i) the consolidated and consolidating balance sheets of Company and its Subsidiaries as at the end of such Fiscal Year and the related consolidated (and with respect to statements of income, consolidating) statements of income, stockholders’ equity and cash flows of Company and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year and the corresponding figures from the Financial Plan for the Fiscal Year covered by such financial statements, in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto; and (ii) with respect to such consolidated financial statements a report thereon of Grant Thornton LLP or other independent certified public accountants of recognized national standing selected by Company, and reasonably satisfactory to Administrative Agent (which report shall be unqualified as to going concern and scope of audit, and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial position of Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards) together with a written statement by such independent certified public accountants stating (1) that their audit examination has included a review of the terms of the Credit Documents, (2) whether, in connection therewith, any condition or event that constitutes a Default or an Event of Default has come to their attention and, if such a condition or event has come to their attention, specifying the nature and period of existence thereof, and (3) that nothing has come to their attention that causes them to believe that the information contained in any Compliance Certificate is not correct or that the matters set forth in such Compliance Certificate are not stated in accordance with the terms hereof (such report shall also include (x) a detailed summary of any audit adjustments; (y) a reconciliation of any audit adjustments or reclassifications to the previously provided monthly or quarterly financials; and (z) restated monthly or quarterly financials for any impacted periods);

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(d)     Compliance Certificate. Together with each delivery of financial statements of Company and its Subsidiaries pursuant to Sections 5.1(b) and 5.1(c), a duly executed and completed Compliance Certificate;

(e)     Statements of Reconciliation after Change in Accounting Principles. If, as a result of any change in accounting principles and policies from those used in the preparation of the Historical Financial Statements, the consolidated financial statements of Company and its Subsidiaries delivered pursuant to Section 5.1(b) or 5.1(c) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then, together with the first delivery of such financial statements after such change, one or more statements of reconciliation for all such prior financial statements in form and substance satisfactory to Administrative Agent;

(f)     Notice of Default; Public Filings.

(i)     Promptly upon any officer of Company obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that notice has been given to Company with respect thereto; (ii) that any Person has given any notice to Company or any of its Subsidiaries or taken any other action with respect to any event or condition set forth in Section 8.1(b); or (iii) of the occurrence of any event or change that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, a certificate of its Authorized Officers specifying the nature and period of existence of such condition, event or change, or specifying the notice given and action taken by any such Person and the nature of such claimed Event of Default, Default, default, event or condition, and what action Company has taken, is taking and proposes to take with respect thereto;

(ii)     Promptly upon the filing thereof, notice to the Administrative Agent of the filing of all Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, and any other filings made by Company or any of its Subsidiaries with the U.S. Securities and Exchange Commission.

(g)     Notice of Litigation. Promptly upon any officer of Company obtaining knowledge of (i) the institution of, or non-frivolous threat of, any Adverse Proceeding not previously disclosed in writing by Company to Lenders, or (ii) any material development in any Adverse Proceeding that, in the case of either clause (i) or (ii) if adversely determined, would be reasonably expected to result in a Material Adverse Effect, would be reasonably expected to result in a liability of greater than $500,000, or seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby, written notice thereof together with such other information as may be reasonably available to Company to enable Lenders and their counsel to evaluate such matters;

(h)     ERISA. (i) Promptly upon becoming aware of the occurrence of or forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof, what action Company, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (ii) with reasonable promptness, copies of (1) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by Company, any of its Subsidiaries or any of their respective ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan; (2) all notices received by Company, any of its Subsidiaries or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event; and (3) copies of such other documents or governmental reports or filings relating to any Employee Benefit Plan as Administrative Agent shall reasonably request;

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(i)     Financial Plan. As soon as practicable and in any event no later than the beginning of each Fiscal Year, a consolidated plan and financial forecast for such Fiscal Year and each Fiscal Year (or portion thereof) through the final maturity date of the Loans, reported on both an annual and monthly basis (a “Financial Plan”), including (i) a forecasted consolidated balance sheet and forecasted consolidated statements of income and cash flows of Company and its Subsidiaries for each such Fiscal Year, together with pro forma Compliance Certificates for each such Fiscal Year and an explanation of the assumptions on which such forecasts are based, (ii) forecasted consolidated statements of income and cash flows of Company and its Subsidiaries for each month of each such Fiscal Year, (iii) forecasts demonstrating projected compliance with the requirements of Section 6.8 through the final maturity date of the Loans, and (iv) forecasts demonstrating adequate liquidity through the final maturity date of the Loans, together, in each case, with an explanation of the assumptions on which such forecasts are based all in form and substance reasonably satisfactory to Agents;

(j)     Insurance Report. As soon as practicable and in any event by the last day of each Fiscal Year, a report in form and substance satisfactory to Administrative Agent outlining all material insurance coverage maintained as of the date of such report by Company and its Subsidiaries and all material insurance coverage planned to be maintained by Company and its Subsidiaries in the immediately succeeding Fiscal Year;

(k)     Notice of Change in Board of Directors. With reasonable promptness, written notice of any change in the board of directors (or similar governing body) of Company;

(l)     Notice Regarding Material Contracts. Promptly, and in any event within ten (10) Business Days (i) after any Material Contract of Company or any of its Subsidiaries is terminated or materially amended, or (ii) any new Material Contract is entered into, a written statement describing such event, with copies of such material amendments or new contracts, delivered to Administrative Agent (to the extent such delivery is permitted by the terms of any such Material Contract, provided, no such prohibition on delivery shall be effective if it were bargained for by Company or its applicable Subsidiary with the intent of avoiding compliance with this Section 5.1(l)), and an explanation of any actions being taken with respect thereto or (iii) any notice of default or termination is issued as to a Material Contract;

(m)     Environmental Reports and Audits. As soon as practicable following receipt thereof, copies of all environmental audits and reports with respect to environmental matters at any Facility or which relate to any environmental liabilities of Company or its Subsidiaries which, in any such case, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect;

(n)     Information Regarding Collateral. (a) Company will furnish to Collateral Agent prior written notice of any change (i) in any Credit Party’s organizational name, (ii) in any Credit Party’s identity or organizational structure, or (iii) in any Credit Party’s Federal Taxpayer Identification Number. Company agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the UCC or otherwise that are required in order for Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral and for the Collateral at all times following such change to have a valid, legal and perfected security interest as contemplated in the Collateral Documents. Company also agrees promptly to notify Collateral Agent if any material portion of the Collateral is damaged or destroyed;

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(o)     Annual Collateral Verification. Each year, at the time of delivery of annual financial statements with respect to the preceding Fiscal Year pursuant to Section 5.1(c), Company shall deliver to Collateral Agent an Officer’s Certificate (i) either confirming that there has been no change in such information since the date of the Perfection Certificate delivered on the Restatement Date or the date of the most recent certificate delivered pursuant to this Section and/or identifying such changes, or (ii) certifying that all UCC financing statements (including fixtures filings, as applicable) or other appropriate filings, recordings or registrations, have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction identified in the Perfection Certificate or pursuant to clause (i) above to the extent necessary to protect and perfect the security interests under the Collateral Documents for a period of not less than 18 months after the date of such certificate (except as noted therein with respect to any continuation statements to be filed within such period);

(p)     Aging Reports. Together with each delivery of financial statements of Company and each other Credit Party pursuant to Sections 5.1(a), 5.1(b), and 5.1(c), (i) a summary of the accounts receivable aging report of each Credit Party as of the end of such period, and (ii) a summary of accounts payable aging report of each Credit Party as of the end of such period;

(q)     Tax Returns. As soon as practicable and in any event within fifteen (15) days following the filing thereof, copies of each federal income tax return filed by or on behalf of any Credit Party; and

(r)     Other Information. (i) Promptly upon their becoming available, copies of (A) all financial statements, reports, notices and proxy statements sent or made available generally by Company to its security holders acting in such capacity or by any Subsidiary of Company to its security holders other than Company or any of its Subsidiaries and (B) all press releases and other statements made available generally by Company or any of its Subsidiaries to the public concerning material developments in the business of Company or any of its Subsidiaries, and (ii) such other information and data with respect to Company or any of its Subsidiaries as from time to time may be reasonably requested by Administrative Agent.

5.2     Existence. Except as otherwise permitted under Section 6.9 or the extent a Material Adverse Effect would not reasonably be expected to occur, each Credit Party will, and will cause each of its Subsidiaries to, at all times preserve and keep in full force and effect its existence and all rights and franchises, licenses and permits material to its business; provided that no Credit Party or any of its Subsidiaries shall be required to preserve any such existence, right or franchise, licenses and permits if such Person’s board of directors (or similar governing body) shall determine that the preservation thereof is no longer desirable in the conduct of the business of such Person, and that the loss thereof is not disadvantageous in any material respect to such Person or to Lenders.

5.3     Payment of Taxes and Claims. Each Credit Party will, and will cause each of its Subsidiaries to, pay all Taxes in excess of $25,000 imposed upon it or any of its properties or assets or in respect of any of its income, businesses or franchises before any penalty or fine accrues thereon, and all claims (including claims for labor, services, materials and supplies) for sums that have become due and payable and that by law have or may become a Lien upon any of its properties or assets, prior to the time when any penalty or fine shall be incurred with respect thereto; provided, no such Tax or claim need be paid if it is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so long as (a) adequate reserve or other appropriate provision, as shall be required in conformity with GAAP shall have been made therefor, and (b) in the case of a Tax or claim which has or may become a Lien against any of the Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the Collateral to satisfy such Tax or claim and such Lien does not have priority over any Lien securing the Obligations. No Credit Party will, nor will it permit any of its Subsidiaries to, file or consent to the filing of any consolidated income tax return with any Person (other than Company or any of its Subsidiaries).

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5.4     Maintenance of Properties. Each Credit Party will, and will cause each of its Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear excepted, all material properties used or useful in the business of Company and its Subsidiaries and from time to time will make or cause to be made all appropriate repairs, renewals and replacements thereof.

5.5     Insurance. Company will maintain or cause to be maintained, with financially sound and reputable insurers, (i) business interruption insurance reasonably satisfactory to Administrative Agent, and (ii) casualty insurance, such public liability insurance, third party property damage insurance with respect to liabilities, losses or damage in respect of the assets, properties and businesses of Company and its Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons of established reputation engaged in similar businesses, in each case in such amounts (giving effect to self-insurance), with such deductibles, covering such risks and otherwise on such terms and conditions as shall be customary for such Persons. Without limiting the generality of the foregoing, Company will maintain or cause to be maintained (a) flood insurance with respect to each Flood Hazard Property that is located in a community that participates in the National Flood Insurance Program, in each case in compliance with any applicable regulations of the Board of Governors of the Federal Reserve System, and (b) replacement value casualty insurance on the Collateral under such policies of insurance, with such insurance companies, in such amounts, with such deductibles, and covering such risks as are at all times carried or maintained under similar circumstances by Persons of established reputation engaged in similar businesses. Each such policy of insurance shall (i) name Collateral Agent, on behalf of Lenders as an additional insured thereunder as its interests may appear, and (ii) in the case of each casualty insurance policy, contain a loss payable clause or endorsement, satisfactory in form and substance to Collateral Agent, that names Collateral Agent, on behalf of Secured Parties as the loss payee thereunder and provides for at least thirty (30) days’ prior written notice to Collateral Agent of any modification or cancellation of such policy.

5.6     Inspections. Each Credit Party will, and will cause each of its Subsidiaries to, permit any authorized representatives designated by any Agent or any Lender to visit and inspect, at Company’s expense, any of the properties of any Credit Party and any of its respective Subsidiaries, to inspect, copy and take extracts from its and their financial and accounting records, and to discuss its and their affairs, finances and accounts with its and their officers and independent public accountants, all upon reasonable notice and at such reasonable times during normal business hours and as often as may reasonably be requested and Company shall reimburse Agent and the Lenders for their actual and reasonable costs and expenses incurred in connection with such visits and inspections; provided, that, to the extent no Event of Default exists, Company shall only be obligated to reimburse Agent for one (1) such visit or inspection in any Fiscal Year.

5.7     Lenders Meetings. Company will, upon the request of Administrative Agent or Requisite Lenders, participate in a meeting of Administrative Agent and Lenders once during each Fiscal Year to be held at Company’s corporate offices (or at such other location as may be agreed to by Company and Administrative Agent) at such time as may be agreed to by Company and Administrative Agent, and Company shall reimburse Agent and the Lenders for their actual and reasonable costs and expenses incurred in connection with such meetings.

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5.8     Compliance with Laws and Material Contracts. Each Credit Party will (a) comply, and shall cause each of its Subsidiaries and all other Persons, if any, on or occupying any Facilities to comply, with the requirements of all applicable laws, rules, regulations and orders of any Governmental Authority (including all Environmental Laws), in each case, to the extent that non-compliance with which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and (b) perform, and shall cause each of its Subsidiaries to perform, in accordance with the terms of each Material Contract, in each case, noncompliance with which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

5.9     Environmental.

(a)     Environmental Disclosure. Company will deliver to Administrative Agent and Lenders:

(i)     as soon as practicable following receipt thereof, copies of all environmental audits, investigations, analyses and reports of any kind or character, whether prepared by personnel of Company or any of its Subsidiaries or by independent consultants, Governmental Authorities or any other Persons, with respect to significant environmental matters at any Facility or with respect to any Environmental Claims;

(ii)     promptly upon the occurrence thereof, written notice describing in reasonable detail (1) any Release required to be reported to any federal, state or local governmental or regulatory agency under any applicable Environmental Laws, (2) any remedial action taken by Company or any other Person in response to (A) any Hazardous Materials Activities the existence of which has a reasonable possibility of resulting in one or more Environmental Claims having, individually or in the aggregate, a Material Adverse Effect, or (B) any Environmental Claims that, individually or in the aggregate, have a reasonable possibility of resulting in a Material Adverse Effect, and (3) Company’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of any Facility that could cause such Facility or any part thereof to be subject to any material restrictions on the ownership, occupancy, transferability or use thereof under any Environmental Laws;

(iii)     as soon as practicable following the sending or receipt thereof by Company or any of its Subsidiaries, a copy of any and all written communications with respect to (1) any Environmental Claims that, individually or in the aggregate, have a reasonable possibility of giving rise to a Material Adverse Effect, (2) any Release required to be reported to any Governmental Authority, and (3) any request for information from any Governmental Authority that suggests such agency is investigating whether Company or any of its Subsidiaries may be potentially responsible for any Hazardous Materials Activity;

(iv)     prompt written notice describing in reasonable detail (1) any proposed acquisition of stock, assets, or property by Company or any of its Subsidiaries that would reasonably be expected to (A) expose Company or any of its Subsidiaries to, or result in, Environmental Claims that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (B) affect the ability of Company or any of its Subsidiaries to maintain in full force and effect all material Governmental Authorizations required under any Environmental Laws for their respective operations and (2) any proposed action to be taken by Company or any of its Subsidiaries to modify current operations in a manner that would reasonably be expected to subject Company or any of its Subsidiaries to any additional material obligations or requirements under any Environmental Laws; and

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(v)     with reasonable promptness, such other documents and information as from time to time may be reasonably requested by Administrative Agent in relation to any matters disclosed pursuant to this Section 5.9(a).

(b)     Hazardous Materials Activities, Etc. Each Credit Party shall promptly take, and shall cause each of its Subsidiaries promptly to take, any and all actions necessary to (i) cure any violation of applicable Environmental Laws by such Credit Party or its Subsidiaries that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (ii) make an appropriate response to any Environmental Claim against such Credit Party or any of its Subsidiaries and discharge any obligations it may have to any Person thereunder where failure to do so would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

5.10     Subsidiaries. In the event that any Person becomes a Subsidiary of Company, Company shall (a) concurrently with such Person becoming a Subsidiary (other than a Foreign Subsidiary that is a CFC) cause such Subsidiary to become a Guarantor hereunder, (b) concurrently with such Person becoming a Subsidiary of Company cause such Subsidiary to become a Grantor under the Pledge and Security Agreement by executing and delivering to Administrative Agent and Collateral Agent a Counterpart Agreement, and (c) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, and certificates as are similar to those described in Sections 3.1(b), 3.1(e), 3.1(f), 3.1(g), 3.1(j) and 3.1(k), and all other such documents as may be necessary to further effectuate the transactions contemplated by this Agreement and the other Credit Documents. In the event that any Person becomes a Foreign Subsidiary of Company that is a CFC, and the ownership interests of such Foreign Subsidiary are owned by Company or by any Domestic Subsidiary thereof, Company shall, or shall cause such Domestic Subsidiary to, deliver, all such documents, instruments, agreements, and certificates as are similar to those described in Section 3.1(b), and Company shall take, or shall cause such Domestic Subsidiary to take, all of the actions referred to in Section 3.1(g)(i) necessary to grant and to perfect a First Priority Lien in favor of Collateral Agent, for the benefit of Secured Parties, under the Pledge and Security Agreement in 65% of the voting ownership interests and 100% of the non-voting ownership interests in such Foreign Subsidiary that is a CFC. With respect to each such Subsidiary, Company shall promptly send to Administrative Agent written notice setting forth with respect to such Person (i) the date on which such Person became a Subsidiary of Company, and (ii) all of the data required to be set forth in Schedules 4.1 and 4.2 with respect to all Subsidiaries of Company; provided, such written notice shall be deemed to supplement Schedule 4.1 and 4.2 for all purposes hereof.

5.11     Additional Material Real Estate Assets and Material Leasehold Properties.

(a)     In the event that any Credit Party acquires a Material Real Estate Asset, or a Real Estate Asset owned on the Closing Date becomes a Material Real Estate Asset, and such interest has not otherwise been made subject to the Lien of the Collateral Documents in favor of Collateral Agent, for the benefit of Secured Parties, then such Credit Party, contemporaneously with acquiring such Material Real Estate Asset, or promptly after a Real Estate Asset becomes a Material Real Estate Asset, shall take all such actions and execute and deliver, or cause to be executed and delivered, all mortgages, documents, instruments, agreements, opinions and certificates similar to those described in Sections 3.1(g), 3.1(h), 3.1(j), 3.1(k) and 5.11(b) with respect to each such Material Real Estate Asset that Collateral Agent shall reasonably request to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in such Material Real Estate Assets. In addition to the foregoing, Company shall, at the request of Requisite Lenders, deliver, from time to time, to Administrative Agent such appraisals as are required by law or regulation of Real Estate Assets with respect to which Collateral Agent has been granted a Lien.

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(b)     In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in the owned Material Real Estate Assets of the Credit Parties, Company shall deliver to Administrative Agent and Collateral Agent the following:

(i)     fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Material Real Estate Asset;

(ii)     an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in each state in which a Material Real Estate Asset is located with respect to the enforceability of the form(s) of Mortgages to be recorded in such state and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent;

(iii)     (A) ALTA mortgagee title insurance policies or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Material Real Estate Asset (each, a “Title Policy”), in amounts not less than the fair market value of each Material Real Estate Asset, together with a title report issued by a title company with respect thereto, dated not more than thirty (30) days prior to the Closing Date or Restatement Date, as applicable, and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral Agent that such Credit Party has paid to the title company or to the appropriate Governmental Authorities all expenses and premiums of the title company and all other sums required in connection with the issuance of each Title Policy and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages for each Material Real Estate Asset in the appropriate real estate records;

(iv)     evidence of flood insurance with respect to each Flood Hazard Property that is located in a community that participates in the National Flood Insurance Program, in each case in compliance with any applicable regulations of the Board of Governors of the Federal Reserve System, in form and substance reasonably satisfactory to Collateral Agent; and

(v)     ALTA surveys of all Material Real Estate Assets, certified to Collateral Agent and dated not more than thirty (30) days prior to the recordation of the applicable Mortgage.

(c)     In the event that any Credit Party acquires a Material Leasehold Property, or a Leasehold Property owned on the Closing Date becomes a Material Leasehold Property, contemporaneously with acquiring such Material Leasehold Property, or promptly after a Leasehold Property becomes a Material Leasehold Property, shall cause to be executed and delivered to Administrative Agent and Collateral Agent, a Landlord Personal Property Collateral Access Agreement with respect to such Material Leasehold Property.

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5.12     Further Assurances. At any time or from time to time upon the request of Administrative Agent, each Credit Party will, at its expense, promptly execute, acknowledge and deliver such further documents and do such other acts and things as Administrative Agent or Collateral Agent may reasonably request in order to effect fully the purposes of the Credit Documents, including providing Lenders with any information reasonably requested pursuant to Section 10.21. In furtherance and not in limitation of the foregoing, each Credit Party shall take such actions as Administrative Agent or Collateral Agent may reasonably request from time to time to ensure that the Obligations are guaranteed by the Guarantors and are secured by substantially all of the assets of Company, and its Subsidiaries and all of the outstanding Capital Stock of Company and its Subsidiaries (subject to limitations contained in the Credit Documents with respect to Foreign Subsidiaries).

5.13     Miscellaneous Business Covenants. Unless otherwise consented to by Agents and Requisite Lenders:

(a)     Non-Consolidation. Company will and will cause each of its Subsidiaries to: (i) maintain entity records and books of account separate from those of any other entity which is an Affiliate of such entity; (ii) not commingle its funds or assets with those of any other entity which is an Affiliate of such entity; and (iii) provide that its board of directors or other analogous governing body will hold all appropriate meetings to authorize and approve such entity’s actions, which meetings will be separate from those of other entities.

(b)     Cash Management Systems. Company and its Subsidiaries shall establish and maintain cash management systems reasonably acceptable to Administrative Agent, including, without limitation, with respect to blocked account arrangements.

(c)     Communication with Accountants. Each Credit Party executing this Agreement authorizes Administrative Agent to communicate directly with such Credit Party’s independent certified public accountants and authorizes and shall instruct those accountants to communicate (including the delivery of audit drafts and letters to management) with Administrative Agent and each Lender information relating to any Credit Party with respect to the business, results of operations and financial condition of any Credit Party; provided however, that Administrative Agent or the applicable Lender, as the case may be, shall provide such Credit Party with notice at least two (2) Business Days prior to first initiating any such communication.

(d)     Activities of Management. Each member of the senior management team of each Credit Party shall devote all or substantially all of his or her professional working time, attention, and energies to the management of the businesses of the Credit Parties.

5.14     Post-Closing Matters. Company shall, and shall cause each of the Credit Parties to, satisfy the requirements set forth on Schedule 5.14 on or before the date specified for such requirement or such later date to be determined by the Agent.

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SECTION 6. NEGATIVE COVENANTS.

Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until payment in full of all Obligations (other than contingent indemnification Obligations for which no claim has been asserted), such Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 6.

6.1     Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:

(a)     the Obligations;

(b)     Indebtedness of any Guarantor Subsidiary to Company or to any other Guarantor Subsidiary, or of Company to any Guarantor Subsidiary; provided, (i) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a First Priority Lien in favor of Collateral Agent pursuant to the Pledge and Security Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to Administrative Agent, and (iii) any payment by any such Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to Company or to any of its Subsidiaries for whose benefit such payment is made;

(c)     unsecured Indebtedness of any Person that becomes a Subsidiary after the date hereof pursuant to a Permitted Acquisition, which Indebtedness exists at the time such Person becomes a Subsidiary (other than Indebtedness incurred in contemplation of such Person becoming a Subsidiary);

(d)     Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business, other than any obligations owed by a Credit Party to a Subsidiary that is not a Guarantor;

(e)     Indebtedness in respect of netting services, overdraft protections and otherwise in connection with Deposit Accounts;

(f)     guaranties in the ordinary course of business of the obligations of third-party suppliers, customers, franchisees and licensees of Company and its Subsidiaries;

(g)     Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is Continuing or would result therefrom;

(h)     Indebtedness in an aggregate amount not to exceed (i) at any time on or prior to December 31, 2015, Two Million Five Hundred Thousand Dollars ($2,500,000), (ii) at any time after December 31, 2015 and on or prior to December 31, 2016, Three Million Five Hundred Thousand Dollars ($3,500,000) and (iii) at any time after December 31, 2016, Five Million Dollars ($5,000,000), in each case with respect to (x) Capital Leases and (y) purchase money Indebtedness (including any Indebtedness acquired in connection with a Permitted Acquisition); provided, in the case of clause (x), that any such Indebtedness shall be secured only by the asset subject to such Capital Lease, and, in the case of clause (y), that any such Indebtedness shall (1) be secured only by the asset acquired in connection with the incurrence of such Indebtedness and (2) constitute not more than one hundred percent (100.0)% of the aggregate consideration paid with respect to such asset; provided, further, that any such Indebtedness incurred or assumed by a Subsidiary that is not a Guarantor shall not be guaranteed by or recourse to any Credit Party or secured by any assets of a Credit Party);

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(i)     Subordinated Indebtedness in an amount not to exceed One Million Dollars ($1,000,000) at any time outstanding;

(j)     the Existing Cash Collateralized Letters of Credit and the Additional Cash Collateralized Letter of Credit;

(k)     additional letters of credit, in an aggregate amount not to exceed $1,500,000, which are fully cash collateralized; and

(l)     the RSI Indebtedness, which shall, for the avoidance of doubt, be subject at all times to the RSI Intercreditor Agreement.

6.2     Liens. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of Company or any of its Subsidiaries, whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property, asset, income or profits under the UCC of any State or under any similar recording or notice statute, except:

(a)     Liens in favor of Collateral Agent for the benefit of Secured Parties granted pursuant to any Credit Document;

(b)     Liens for Taxes that do not have priority over any Lien securing the Obligations, if the obligations with respect to such Taxes are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted so long as the aggregate amount of such Taxes does not exceed Two Hundred Fifty Thousand Dollars ($250,000) and so long as such proceedings have the effect of preventing the forfeiture or sale of the Collateral subject thereto;

(c)     statutory Liens of landlords so long as such Liens are subject to a Landlord Personal Property Collateral Access Agreement, banks (and rights of set off) so long as such Liens and rights are subject to a Deposit Account control agreement in favor of Collateral Agent, of carriers, warehousemen so long as such Liens are subject to a reasonably acceptable ware houseman’s agreement in favor of a Collateral Agent, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other than any such Lien imposed pursuant to Section 401 (a)(29) or 430(k) of the Internal Revenue Code or by ERISA), in each case incurred in the ordinary course of business (i) for amounts not yet overdue, or (ii) for amounts that are overdue and that (in the case of any such amounts overdue for a period in excess of five (5) days) are being contested in good faith by appropriate proceedings, so long as such reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made for any such contested amounts;

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(d)     Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money or other Indebtedness), so long as no foreclosure, sale or similar proceedings have been commenced with respect to any portion of the Collateral on account thereof;

(e)     easements, rights of way, restrictions, encroachments, and other minor defects or irregularities in title as to real property owned or leased by a Credit Party, in each case which do not and will not interfere in any material respect with the ordinary conduct of the business of Company or any of its Subsidiaries;

(f)     any interest or title of a lessor or sublessor under any lease of real estate permitted hereunder;

(g)     Liens solely on any cash earnest money deposits made by Company or any of its Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;

(h)     purported Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases of personal property entered into in the ordinary course of business;

(i)     Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties as to specific goods in connection with the importation of goods in the ordinary course of business;

(j)     any zoning or similar law or right reserved to or vested in any governmental office or agency to control or regulate the use of any real property;

(k)     licenses of patents, trademarks and other intellectual property rights granted by Company or any of its Subsidiaries in the ordinary course of business and not interfering in any respect with the ordinary conduct of the business of Company or such Subsidiary;

(l)     Liens described in Schedule 6.2 or on a title report delivered pursuant to Section 3.2(f)(iv);

(m)     Liens securing purchase money Indebtedness permitted pursuant to Section 6.1(h); provided, any such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness;

(n)     Liens arising from judgments, decrees or attachments the existence of which does not constitute an Event of Default hereunder;

(o)     other Liens on assets other than the Collateral securing Indebtedness in an aggregate amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000) at any time outstanding;

(p)     Liens on cash collateral in respect of (i) the Existing Cash Collateralized Letters of Credit in an amount not to exceed $660,000 at any time outstanding, (ii) the Additional Cash Collateralized Letter of Credit in an amount not to exceed $576,424 at any time outstanding and (iii) letters of credit permitted under Section 6.1(k); and

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(q)     Liens on the RSI Collateral securing the RSI Indebtedness, which shall, for the avoidance of doubt, be subject at all times to the RSI Intercreditor Agreement.

6.3     Equitable Lien. If any Credit Party or any of its Subsidiaries shall create or assume any Lien upon any of its properties or assets, whether now owned or hereafter acquired, other than Permitted Liens, it shall make or cause to be made effective provisions whereby the Obligations will be secured by such Lien equally and ratably with any and all other Indebtedness secured thereby as long as any such Indebtedness shall be so secured; provided, notwithstanding the foregoing, this covenant shall not be construed as a consent by Requisite Lenders to the creation or assumption of any such Lien not otherwise permitted hereby.

6.4     No Further Negative Pledges. Except with respect to (a) specific property encumbered to secure payment of particular Indebtedness or to be sold pursuant to an executed agreement with respect to a permitted Asset Sale and (b) restrictions by reason of customary provisions restricting assignments, subletting or other transfers contained in leases, licenses and similar agreements entered into in the ordinary course of business (provided that such restrictions are limited to the property or assets secured by such Liens or the property or assets subject to such leases, licenses or similar agreements, as the case may be) no Credit Party nor any of its Subsidiaries shall enter into any agreement prohibiting the creation or assumption of any Lien upon any of its properties or assets, whether now owned or hereafter acquired.

6.5     Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, become liable in respect of, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; provided, that Company shall be entitled to (a) repurchase up to Two Million Dollars ($2,000,000) in accounts receivable and settle a working capital adjustment pursuant to the terms of the Divested Business Agreement as in effect on the Closing Date or as amended with the consent of the Administrative Agent and (b) make Restricted Junior Payments as required for working capital adjustments by the Fifth Gear Acquisition Documents as in effect on the Closing Date or as amended with the consent of the Administrative Agent.

6.6     Restrictions on Subsidiary Distributions. Except as provided herein, no Credit Party shall, nor shall it permit any of its Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary of Company to (a) pay dividends or make any other distributions on any of such Subsidiary’s Capital Stock owned by Company or any other Subsidiary of Company, (b) repay or prepay any Indebtedness owed by such Subsidiary to Company or any other Subsidiary of Company, (c) make loans or advances to Company or any other Subsidiary of Company, or (d) transfer any of its property or assets to Company or any other Subsidiary of Company other than restrictions (i) in agreements evidencing purchase money Indebtedness permitted by Section 6.1(h) that impose restrictions on the property so acquired, (ii) by reason of customary provisions restricting assignments, subletting or other transfers contained in leases, licenses, joint venture agreements and similar agreements entered into in the ordinary course of business, and (iii) that are or were created by virtue of any transfer of, agreement to transfer or option or right with respect to any property, assets or Capital Stock not otherwise prohibited under this Agreement.

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6.7     Investments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any Person, including without limitation any Joint Venture and any Foreign Subsidiary, except:

(a)     Investments in Cash and Cash Equivalents;

(b)     equity Investments owned as of the Closing Date in any Subsidiary and Investments made after the Closing Date in any wholly owned Guarantor Subsidiaries of Company;

(c)     Investments in (i) any Securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors, and (ii) deposits, prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of Company and its Subsidiaries;

(d)     intercompany loans to the extent permitted under Section 6.1(b);

(e)     Consolidated Capital Expenditures permitted by Section 6.8(e);

(f)     loans and advances to employees of Company and its Guarantor Subsidiaries (i) made in the ordinary course of business and described on Schedule 6.7, and (ii) any refinancings of such loans after the Closing Date in an aggregate amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000);

(g)     Investments (i) made in connection with Permitted Acquisitions permitted pursuant to Section 6.9 and (ii) evidenced by the Divested Business Note;

(h)     Investments described in Schedule 6.7; and

(i)     Investments in Foreign Subsidiaries not to exceed Seven Million Dollars ($7,000,000) in the aggregate in any Fiscal Year.

(j)     other Investments in an aggregate amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000) outstanding in the aggregate at any time.

Notwithstanding the foregoing, in no event shall any Credit Party make any Investment which results in or facilitates in any manner any Restricted Junior Payment not otherwise permitted under the terms of Section 6.5.

6.8     Financial Covenants.

(a)     [Reserved].

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(b)     Fixed Charge Coverage Ratio. Company shall not permit the Fixed Charge Coverage Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending December 31, 2014, to be less than the correlative ratio indicated:

Fiscal Quarter	Fixed Charge Coverage Ratio
December 31, 2014	1.15:1.00
March 31, 2015	1.15:1.00
June 30, 2015	1.15:1.00
September 30, 2015	1.15:1.00
December 31, 2015	1.20:1.00
March 31, 2016	1.25:1.00
June 30, 2016	1.25:1.00
September 30, 2016	1.25:1.00
December 31, 2016	1.25:1.00
March 31, 2017	1.30:1.00
June 30, 2017	1.30:1.00
September 30, 2017	1.30:1.00
December 31, 2017	1.30:1.00
March 31, 2018	1.35:1.00
June 30, 2018	1.35:1.00
September 30, 2018	1.35:1.00
December 31, 2018	1.35:1.00
March 31, 2019 and each Fiscal Quarter thereafter	1.50:1.00

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(c)     Leverage Ratio. Company shall not permit the Leverage Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending December 31, 2014, to exceed the correlative ratio indicated:

Fiscal Quarter Ending	Leverage Ratio
December 31, 2014	4.50:1.00
March 31, 2015	4.50:1.00
June 30, 2015	4.50:1.00
September 30, 2015	4.45:1.00
December 31, 2015	4.10:1.00
March 31, 2016	4.00:1.00
June 30, 2016	3.50:1.00
September 30, 2016	3.40:1.00
December 31, 2016	3.30:1.00
March 31, 2017	3.10:1.00
June 30, 2017	3.00:1.00
September 30, 2017	3.00:1.00
December 31, 2017	3.00:1.00
March 31, 2018	2.60:1.00
June 30, 2018 and each Fiscal Quarter thereafter	2.50:1.00

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(d)     Minimum Consolidated EBITDA. Company shall not permit Consolidated EBITDA as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending December 31, 2014, to be less than the correlative amount indicated:

Four Fiscal Quarter period (unless otherwise noted below) Ending	Consolidated EBITDA
one Fiscal Quarter period ending December 31, 2014	$3,000,000
two Fiscal Quarter period ending March 31, 2015	$5,750,000
June 30, 2015	$10,700,000
September 30, 2015	$12,800,000
December 31, 2015	$16,000,000
March 31, 2016	$20,900,000
June 30, 2016	$21,000,000
September 30, 2016	$22,500,000
December 31, 2016	$22,500,000
March 31, 2017	$25,000,000
June 30, 2017	$25,000,000
September 30, 2017	$25,000,000
December 31, 2017	$25,000,000
March 31, 2018	$25,000,000
June 30, 2018	$25,000,000
September 30, 2018	$25,000,000
December 31, 2018	$25,000,000
March 31, 2019	$25,000,000

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(e)     Maximum Consolidated Capital Expenditures. Company shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal Year indicated below, in an aggregate amount for Company and its Subsidiaries in excess of the corresponding amount set forth below opposite such Fiscal Year:

Fiscal Year	Consolidated Capital Expenditures
March 31, 2015	$12,000,000
March 31, 2016	$12,000,000
March 31, 2017	$12,000,000
March 31, 2018	$12,000,000
March 31, 2019	$13,000,000

; provided, that to the extent that the amount of Consolidated Capital Expenditures made in any Fiscal Year is less than the maximum amount permitted above (without giving effect to any additional amount available as a result of this proviso), (i) up to fifty percent (50.0%) of such difference may be carried forward and used in the immediately succeeding fiscal year (but not any subsequent fiscal year), and (ii) in such immediately succeeding Fiscal Year Consolidated Capital Expenditures shall be applied, first, to the permissible amount of Consolidated Capital Expenditures for such Fiscal Year and, second, to the portion so carried forward.

(f)     Certain Calculations. With respect to any period during which a Permitted Acquisition or an Asset Sale (including, without limitation, the Divested Business pursuant to the Divested Business Documents and the Fifth Gear Acquisition) has occurred (each, a “Subject Transaction”), for purposes of determining compliance with the financial covenants set forth in this Section 6.8 and for all other purposes which such calculations may be used under this Agreement, Consolidated Adjusted EBITDA, Consolidated EBITDA, Consolidated Fixed Charges, and the components of each, shall be calculated with respect to such period on a pro forma basis (such calculations, including pro forma adjustments approved by Administrative Agent in its sole discretion) using the historical financial statements of any business so acquired or to be acquired, or divested or to be divested, and the consolidated financial statements of Company and its Subsidiaries which shall be reformulated as if such Subject Transaction, and any Indebtedness incurred or repaid in connection therewith, had been consummated or incurred or repaid at the beginning of such period (and assuming that such Indebtedness bears interest during any portion of the applicable measurement period prior to the relevant acquisition at the weighted average of the interest rates applicable to outstanding Loans incurred during such period).

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6.9     Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or sub lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any part of its business, assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course of business) the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division or line of business or other business unit of any Person, except:

(a)     any Subsidiary of Company may be merged with or into Company or any Guarantor Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Company or any Guarantor Subsidiary; provided, in the case of such a merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving Person;

(b)     sales or other dispositions of assets that do not constitute Asset Sales;

(c)     Asset Sales, the proceeds of which (i) are less than One Hundred Fifty Thousand Dollars ($150,000) with respect to any single Asset Sale or series of related Asset Sales, and (ii) when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than Two Hundred Fifty Thousand Dollars ($250,000); provided (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of Company (or similar governing body)), (2) no less than one hundred percent (100.0%) thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.13(a);

(d)     disposals of obsolete or worn out property;

(e)     Investments made in accordance with Section 6.7.

6.10     Disposal of Subsidiary Interests. Except for any sale of all of its interests in the Capital Stock of any of its Subsidiaries in compliance with the provisions of Section 6.9, no Credit Party shall, nor shall it permit any of its Subsidiaries to, (a) directly or indirectly sell, assign, pledge or otherwise encumber or dispose of any Capital Stock of any of its Subsidiaries, except to qualify directors if required by applicable law; or (b) permit any of its Subsidiaries directly or indirectly to sell, assign, pledge or otherwise encumber or dispose of any Capital Stock of any of its Subsidiaries, except to another Credit Party (subject to the restrictions on such disposition otherwise imposed hereunder), or to qualify directors if required by applicable law.

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6.11     Sales and Lease Backs. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease of any property (whether real, personal or mixed), whether now owned or hereafter acquired, which such Credit Party (a) has sold or transferred or is to sell or to transfer to any other Person (other than Company or any of its Subsidiaries), or (b) intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by such Credit Party to any Person (other than Company or any of its Subsidiaries) in connection with such lease.

6.12     Transactions with Shareholders and Affiliates. Except as set forth in Schedule 6.12, no Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any holder of ten percent (10.0%) or more of any class of Capital Stock of Company or any of its Subsidiaries (or any Affiliate of such holder) or with any Affiliate of Company or of any such holder; provided, however, that the Credit Parties and their Subsidiaries may enter into or permit to exist any such transaction if both (i) the Administrative Agent has consented thereto in writing prior to the consummation thereof and (ii) the terms of such transaction are not less favorable to Company or that Subsidiary, as the case may be, than those that might be obtained at the time from a Person who is not such a holder or Affiliate; further, provided, that the foregoing restrictions shall not apply to (a) reasonable and customary fees paid to members of the board of directors (or similar governing body) of Company and its Subsidiaries; (b) compensation arrangements for officers and other employees of Company and its Subsidiaries entered into in the ordinary course of business; and (c) transactions described in Schedule 6.12. Company shall disclose in writing each transaction with any holder of ten percent (10.0%) or more of any class of Capital Stock of Company or any of its Subsidiaries (other than a Credit Party) or with any Affiliate of Company (other than a Credit Party) or of any such holder to Administrative Agent.

6.13     Conduct of Business; Foreign Subsidiaries. From and after the Restatement Date, no Credit Party shall, nor shall it permit any of its Subsidiaries to, engage in any business other than the businesses engaged in by such Credit Party on the Restatement Date. No Credit Party shall form, create, or incorporate any Foreign Subsidiary. In addition, no Subsidiary organized in Canada shall (a) incur, directly or indirectly, any Indebtedness or any other obligation or liability whatsoever other than the Indebtedness and obligations under the Credit Documents, (b) create or suffer to exist any Lien upon any property or assets now owned or hereafter acquired by it other than the Liens created under the Collateral Documents to which it is a party or (c) engage in any business or activity.

6.14     Amendments to or Waivers of Divested Business Documents and Fifth Gear Acquisition Documents.

(a)     Divested Business Documents. No Credit Party shall nor shall it permit any of its Subsidiaries to, agree to any material amendment, restatement, supplement or other modification to, or waiver of, any of its material rights under any Divested Business Document after the Closing Date without in each case obtaining the prior written consent of Administrative Agent and Requisite Lenders to such amendment, restatement, supplement or other modification or waiver.

(b)     Fifth Gear Acquisition Documents. No Credit Party shall nor shall it permit any of its Subsidiaries to, agree to any material amendment, restatement, supplement or other modification to, or waiver of, any of its material rights under any Fifth Gear Acquisition Document after the Restatement Date without in each case obtaining the prior written consent of Administrative Agent and Requisite Lenders to such amendment, restatement, supplement or other modification or waiver.

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6.15     Amendments or Waivers with respect to Certain Indebtedness.

(a)     Subordinated Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, amend or otherwise change the terms of any Subordinated Indebtedness, or make any payment consistent with an amendment thereof or change thereto, if the effect of such amendment or change is to increase the interest rate on such Subordinated Indebtedness, increase the principal amount thereof, change (to earlier dates) any dates upon which payments of principal or interest are due thereon, change any event of default or condition to an event of default with respect thereto (other than to eliminate any such event of default or increase any grace period related thereto), change the redemption, prepayment or defeasance provisions thereof, change the subordination provisions of such Subordinated Indebtedness (or of any guaranty thereof), or if the effect of such amendment or change, together with all other amendments or changes made, is to increase materially the obligations of the obligor thereunder or to confer any additional rights on the holders of such Subordinated Indebtedness (or a trustee or other representative on their behalf) which would be adverse to any Credit Party or Lenders.

(b)     RSI Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, amend or otherwise change the terms of any of the RSI Loan Documents, or make any payment consistent with an amendment thereof or change thereto, if the effect of such amendment or change is to increase the interest rate on the RSI Indebtedness, increase the principal amount thereof, change (to earlier dates) any dates upon which payments of principal or interest are due thereon, change any event of default or condition to an event of default with respect thereto (other than to eliminate any such event of default or increase any grace period related thereto), change the redemption, prepayment or defeasance provisions thereof, change the intercreditor provisions of such RSI Indebtedness (or of any guaranty thereof), grant a lien on any collateral other than the RSI Collateral, or if the effect of such amendment or change, together with all other amendments or changes made, is to increase materially the obligations of the obligor thereunder or to confer any additional rights on the holders of such RSI Indebtedness (or a trustee or other representative on their behalf) which would be adverse to any Credit Party or Lenders.

6.16     Fiscal Year. No Credit Party shall, nor shall it permit any of its Subsidiaries to change its Fiscal Year end from March 31.

6.17     Deposit Accounts. Other than as explicitly permitted by the Pledge and Security Agreement, no Credit Party shall establish or maintain a Deposit Account that is not a Controlled Account and no Credit Party will deposit proceeds in a Deposit Account which is not a Controlled Account.

6.18     Amendments to Organizational Agreements and Material Contracts. No Credit Party shall (a) amend or permit any amendments to any Credit Party’s Organizational Documents that would be adverse to Administrative Agent or the Lenders; or (b) amend or permit any amendments to, or terminate or waive any provision of, any Material Contract if such amendment, termination, or waiver would be adverse to Administrative Agent or the Lenders.

6.19     Prepayments of Certain Indebtedness. No Credit Party shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable in respect of any Indebtedness that is purported to be subordinated to all or part of the Obligations.

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SECTION 7. GUARANTY

7.1     Guaranty of the Obligations. Subject to the provisions of Section 7.2, Guarantors jointly and severally hereby irrevocably and unconditionally guaranty to Administrative Agent for the ratable benefit of the Beneficiaries the due and punctual payment in full of all Obligations when the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively, the “Guaranteed Obligations”).

7.2     Contribution by Guarantors. All Guarantors desire to allocate among themselves (collectively, the “Contributing Guarantors”), in a fair and equitable manner, their obligations arising under this Guaranty. Accordingly, in the event any payment or distribution is made on any date by a Guarantor (a “Funding Guarantor”) under this Guaranty such that its Aggregate Payments exceeds its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor, to (ii) the aggregate of the Fair Share Contribution Amounts with respect to all Contributing Guarantors multiplied by, (b) the aggregate amount paid or distributed on or before such date by all Funding Guarantors under this Guaranty in respect of the obligations Guaranteed. “Fair Share Contribution Amount” means, with respect to a Contributing Guarantor as of any date of determination, the maximum aggregate amount of the obligations of such Contributing Guarantor under this Guaranty that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any comparable applicable provisions of state law; provided, solely for purposes of calculating the “Fair Share Contribution Amount” with respect to any Contributing Guarantor for purposes of this Section 7.2, any assets or liabilities of such Contributing Guarantor arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder shall not be considered as assets or liabilities of such Contributing Guarantor. “Aggregate Payments” means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (1) the aggregate amount of all payments and distributions made on or before such date by such Contributing Guarantor in respect of this Guaranty (including, without limitation, in respect of this Section 7.2), minus (2) the aggregate amount of all payments received on or before such date by such Contributing Guarantor from the other Contributing Guarantors as contributions under this Section 7.2. The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution is made by the applicable Funding Guarantor. The allocation among Contributing Guarantors of their obligations as set forth in this Section 7.2 shall not be construed in any way to limit the liability of any Contributing Guarantor hereunder. Each Guarantor is a third party beneficiary to the contribution agreement set forth in this Section 7.2.

7.3     Payment by Guarantors. Subject to Section 7.2, Guarantors hereby jointly and severally agree, in furtherance of the foregoing and not in limitation of any other right which any Beneficiary may have at law or in equity against any Guarantor by virtue hereof, that upon the failure of Company to pay any of the Guaranteed Obligations when and as the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)), Guarantors will upon demand pay, or cause to be paid, in Cash, to Administrative Agent for the ratable benefit of Beneficiaries, an amount equal to the sum of the unpaid principal amount of all Guaranteed Obligations then due as aforesaid, accrued and unpaid interest on such Guaranteed Obligations (including interest which, but for Company’s becoming the subject of a case under the Bankruptcy Code, would have accrued on such Guaranteed Obligations, whether or not a claim is allowed against Company for such interest in the related bankruptcy case) and all other Guaranteed Obligations then owed to Beneficiaries as aforesaid.

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7.4     Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:

(a)     this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;

(b)     Administrative Agent may enforce this Guaranty during the Continuance of an Event of Default notwithstanding the existence of any dispute between Company and any Beneficiary with respect to the existence of such Event of Default;

(c)     the obligations of each Guarantor hereunder are independent of the obligations of Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Company, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Company or any of such other guarantors and whether or not Company is joined in any such action or actions;

(d)     payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of the Guaranteed Obligations;

(e)     any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent herewith or the applicable Interest Rate Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Company or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Credit Documents or Interest Rate Agreements; and

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(f)     this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guaranteed Obligations), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Credit Documents or any Interest Rate Agreement, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Credit Documents, any of the Interest Rate Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Credit Document, such Interest Rate Agreement or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Credit Documents or any of the Interest Rate Agreements or from the proceeds of any security for the Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guaranteed Obligations) to the payment of indebtedness other than the Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Beneficiary’s consent to the change, reorganization or termination of the corporate structure or existence of Company or any of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses, set offs or counterclaims which Company may allege or assert against any Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.

7.5     Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of Beneficiaries: (a) any right to require any Beneficiary, as a condition of payment or performance by such Guarantor, to (i) proceed against Company, any other guarantor (including any other Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security held from Company, any such other guarantor or any other Person, (iii) proceed against or have resort to any balance of any Deposit Account or credit on the books of any Beneficiary in favor of Company or any other Person, or (iv) pursue any other remedy in the power of any Beneficiary whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of Company or any other Guarantor including any defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of Company or any other Guarantor from any cause other than payment in full of the Guaranteed Obligations; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon any Beneficiary’s errors or omissions in the administration of the Guaranteed Obligations; (e) (i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or equitable discharge of such Guarantor’s obligations hereunder, (ii) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (iii) any rights to set offs, recoupments and counterclaims, and (iv) promptness, diligence and any requirement that any Beneficiary protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of default hereunder, the Interest Rate Agreements or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement related thereto, notices of any extension of credit to Company and notices of any of the matters referred to in Section 7.4 and any right to consent to any thereof; and (g) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms hereof.

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7.6     Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed Obligations shall have been indefeasibly paid in full and the Commitments shall have terminated, each Guarantor hereby waives any claim, right or remedy, direct or indirect, that such Guarantor now has or may hereafter have against Company or any other Guarantor or any of its assets in connection with this Guaranty or the performance by such Guarantor of its obligations hereunder, in each case whether such claim, right or remedy arises in equity, under contract, by statute, under common law or otherwise and including without limitation (a) any right of subrogation, reimbursement or indemnification that such Guarantor now has or may hereafter have against Company with respect to the Guaranteed Obligations, (b) any right to enforce, or to participate in, any claim, right or remedy that any Beneficiary now has or may hereafter have against Company, and (c) any benefit of, and any right to participate in, any collateral or security now or hereafter held by any Beneficiary. In addition, until the Guaranteed Obligations shall have been indefeasibly paid in full and the Commitments shall have terminated, each Guarantor shall withhold exercise of any right of contribution such Guarantor may have against any other guarantor (including any other Guarantor) of the Guaranteed Obligations, including, without limitation, any such right of contribution as contemplated by Section 7.2. Each Guarantor further agrees that, to the extent the waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement, indemnification and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification such Guarantor may have against Company or against any collateral or security, and any rights of contribution such Guarantor may have against any such other guarantor, shall be junior and subordinate to any rights any Beneficiary may have against Company, to all right, title and interest any Beneficiary may have in any such collateral or security, and to any right any Beneficiary may have against such other guarantor. If any amount shall be paid to any Guarantor on account of any such subrogation, reimbursement, indemnification or contribution rights at any time when all Guaranteed Obligations shall not have been finally and indefeasibly paid in full, such amount shall be held in trust for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of Beneficiaries to be credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof.

7.7     Subordination of Other Obligations. Any Indebtedness of Company or any Guarantor now or hereafter held by any Guarantor (the “Obligee Guarantor”) is hereby subordinated in right of payment to the Guaranteed Obligations, and any such indebtedness collected or received by the Obligee Guarantor after an Event of Default has occurred and is Continuing shall be held in trust for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of Beneficiaries to be credited and applied against the Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of the Obligee Guarantor under any other provision hereof.

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7.8     Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect until all of the Guaranteed Obligations shall have been indefeasibly paid in full and the Commitments shall have terminated. Each Guarantor hereby irrevocably waives any right to revoke this Guaranty as to future transactions giving rise to any Guaranteed Obligations.

7.9     Authority of Guarantors or Company. It is not necessary for any Beneficiary to inquire into the capacity or powers of any Guarantor or Company or the officers, directors or any agents acting or purporting to act on behalf of any of them.

7.10     Financial Condition of Company. Any Loan may be made to Company or continued from time to time, and any Interest Rate Agreements may be entered into from time to time, in each case without notice to or authorization from any Guarantor regardless of the financial or other condition of Company at the time of any such grant or continuation or at the time such Interest Rate Agreement is entered into, as the case may be. No Beneficiary shall have any obligation to disclose or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the financial condition of Company. Each Guarantor has adequate means to obtain information from Company on a continuing basis concerning the financial condition of Company and its ability to perform its obligations under the Credit Documents and the Interest Rate Agreements, and each Guarantor assumes the responsibility for being and keeping informed of the financial condition of Company and of all circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor hereby waives and relinquishes any duty on the part of any Beneficiary to disclose any matter, fact or thing relating to the business, operations or conditions of Company now known or hereafter known by any Beneficiary.

7.11     Bankruptcy, etc. So long as any Guaranteed Obligations remain outstanding, no Guarantor shall, without the prior written consent of Administrative Agent acting pursuant to the instructions of Requisite Lenders, commence or join with any other Person in commencing any bankruptcy, reorganization or insolvency case or proceeding of or against Company or any other Guarantor. The obligations of Guarantors hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or terminated by any case or proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of Company or any other Guarantor or by any defense which Company or any other Guarantor may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding.(a)     Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed Obligations which accrues after the commencement of any case or proceeding referred to in clause (a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by operation of law by reason of the commencement of such case or proceeding, such interest as would have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been commenced) shall be included in the Guaranteed Obligations because it is the intention of Guarantors and Beneficiaries that the Guaranteed Obligations which are guaranteed by Guarantors pursuant hereto should be determined without regard to any rule of law or order which may relieve Company of any portion of such Guaranteed Obligations. Guarantors will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar person to pay Administrative Agent, or allow the claim of Administrative Agent in respect of, any such interest accruing after the date on which such case or proceeding is commenced.

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(b)     In the event that all or any portion of the Guaranteed Obligations are paid by Company or otherwise, the obligations of Guarantors hereunder shall continue and remain in full force and effect or be reinstated, as the case may be, in the event that all or any part of such payment(s) are rescinded or recovered directly or indirectly from any Beneficiary as a preference, fraudulent transfer or otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed Obligations for all purposes hereunder. This provision shall survive the repayment of the Obligations and the termination of this Agreement.

SECTION 8. EVENTS OF DEFAULT

8.1     Events of Default. If any one or more of the following conditions or events shall occur:

(a)     Failure to Make Payments When Due. Failure by Company to pay when due, (i) any principal or premium of any Loan, whether at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; or (ii) any interest on any Loan, or any fee or any other amount, under this Agreement or any other Credit Document.

(b)     Default in Other Agreements. (i) Failure of any Credit Party or any of their respective Subsidiaries to pay when due any principal of or interest on or any other amount payable in respect of one or more items of Indebtedness (other than Indebtedness referred to in Section 8.1(a)) in an individual principal amount of Five Hundred Thousand Dollars ($500,000) or more or with an aggregate principal amount of One Million Dollars ($1,000,000) or more, in each case beyond the grace period, if any, provided therefor; or (ii) breach or default by any Credit Party with respect to any other material term of (1) one or more items of Indebtedness in the individual or aggregate principal amounts referred to in clause (i) above, or (2) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness, in each case beyond the grace period, if any, provided therefor, if the effect of such breach or default is to cause, or to permit the holder or holders of that Indebtedness (or a trustee on behalf of such holder or holders), to cause, that Indebtedness to become or be declared due and payable (or subject to a compulsory repurchase or redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be; or

(c)     Breach of Certain Covenants. Failure of any Credit Party to perform or comply with any term or condition contained in Section 2.5, Section 5.1, Section 5.2, Section 5.3, Section 5.4, Section 5.5, Section 5.6, Section 5.7, Section 5.8, Section 5.9, Section 5.10, Section 5.11, Section 5.14 or Section 6; or

(d)     Breach of Representations, etc. Any representation, warranty, certification or other statement made or deemed made by any Credit Party in any Credit Document or in any statement or certificate at any time given by any Credit Party or any of its Subsidiaries in writing pursuant hereto or thereto or in connection herewith or therewith shall be false in any respect as of the date made or deemed made; or

(e)     Other Defaults under Credit Documents. Any Credit Party shall default in the performance of or compliance with any term contained herein or any of the other Credit Documents, other than any such term referred to in any other Section of this Section 8.1, and such default shall not have been remedied or waived within thirty (30) days after the earlier of (i) an officer of such Credit Party becoming aware of such default, or (ii) receipt by Company of notice from Administrative Agent or any Lender of such default; or

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(f)     Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court of competent jurisdiction shall enter a decree or order for relief in respect of Company or any of its Subsidiaries in an involuntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (ii) an involuntary case shall be commenced against Company or any of its Subsidiaries under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Company or any of its Subsidiaries, or over all or a substantial part of its property, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of Company or any of its Subsidiaries for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of Company or any of its Subsidiaries, and any such event described in this clause (ii) shall continue for forty-five (45) days without having been dismissed, bonded or discharged; or

(g)     Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Company or any of its Subsidiaries shall have an order for relief entered with respect to it or shall commence a voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or Company or any of its Subsidiaries shall make any assignment for the benefit of creditors; or (ii) Company or any of its Subsidiaries shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the board of directors (or similar governing body) of Company or any of its Subsidiaries (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions referred to herein or in Section 8.1(f); or

(h)     Judgments and Attachments. Any money judgment, writ or warrant of attachment or similar process involving (i) in any individual case an amount in excess of Two Hundred Fifty Thousand Dollars ($250,000) or (ii) in the aggregate at any time an amount in excess of Five Hundred Thousand Dollars $(500,000) (in either case to the extent not adequately covered by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage) shall be entered or filed against Company or any of its Subsidiaries or any of their respective assets and either (A) there is a period of forty-five (45) consecutive days at any time after the entry of any such judgment, order or award during which (1) the same is not discharged, satisfied, vacated, or bonded pending appeal, or (2) a stay of enforcement thereof is not in effect, or (B) enforcement proceedings are commenced upon such judgment, order, or award; or

(i)     Dissolution. Any order, judgment or decree shall be entered against any Credit Party decreeing the dissolution or split up of such Credit Party and such order shall remain undischarged or unstayed for a period in excess of thirty (30) days; or

(j)     Employee Benefit Plans. (i) There shall occur one or more ERISA Events which individually or in the aggregate results in or might reasonably be expected to result in liability of Company, any of its Subsidiaries or any of their respective ERISA Affiliates in excess of Two Hundred Fifty Thousand Dollars ($250,000) during the term hereof; or (ii) there exists any fact or circumstance that reasonably could be expected to result in the imposition of a Lien or security interest under Section 430(k) of the Internal Revenue Code or under ERISA; or

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(k)     Change of Control. A Change of Control shall occur; or

(l)     Guaranties, Collateral Documents and other Credit Documents. At any time after the execution and delivery thereof, (i) the Guaranty for any reason, other than the satisfaction in full of all Obligations, shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void or any Guarantor shall repudiate its obligations thereunder, (ii) this Agreement or any Collateral Document ceases to be in full force and effect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof or the satisfaction in full of the Obligations in accordance with the terms hereof) or shall be declared null and void, or Collateral Agent shall not have or shall cease to have a valid and perfected Lien in any Collateral purported to be covered by the Collateral Documents with the priority required by the relevant Collateral Document, in each case for any reason other than the failure of Collateral Agent or any Secured Party to take any action within its control, or (iii) any Credit Party shall contest the validity or enforceability of any Credit Document in writing or deny in writing that it has any further liability, including with respect to future advances by Lenders, under any Credit Document to which it is a party;

THEN, (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g), automatically, and (2) at any time during the Continuance of any other Event of Default, Administrative Agent may (or at the direction of Requisite Lenders, shall), (A) issue notice to Company that the Commitments, if any, of each Lender having such Commitments are suspended or terminated; (B) issue notice to Company that each of the following has immediately become due and payable, in each case without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by each Credit Party: (I) the unpaid principal amount of and accrued interest on the Loans, and (II) all other Obligations; and (C) enforce rights and remedies provided under the Credit Documents and applicable law. Additionally, at any time during the Continuance of any Event of Default, Collateral Agent may (or at the direction of the Requisite Lenders, shall) exercise rights and remedies available under the Credit Documents and applicable law as to any of the Collateral.

SECTION 9. AGENTS

9.1     Appointment of Agents. GLAS is hereby appointed Administrative Agent and Collateral Agent hereunder and under the other Credit Documents and each Lender hereby authorizes GLAS, in such capacity, to act as its agent in accordance with the terms hereof and the other Credit Documents. GLAS is hereby appointed Syndication Agent hereunder, and each Lender hereby authorizes Syndication Agent to act as its agent in accordance with the terms hereof and the other Credit Documents. GLAS is hereby appointed Documentation Agent hereunder, and each Lender hereby authorizes Documentation Agent to act as its agent in accordance with the terms hereof and the other Credit Documents. Each Agent hereby agrees to act upon the express conditions contained herein and the other Credit Documents, as applicable. The provisions of this Section 9 are solely for the benefit of Agents and Lenders and no Credit Party shall have any rights as a third party beneficiary of any of the provisions thereof. In performing its functions and duties hereunder, each Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for Company or any of its Subsidiaries. Each of Syndication Agent and Documentation Agent, without consent of or notice to any party hereto, may assign any and all of its rights or obligations hereunder to any of its Affiliates. As of the Restatement Date, neither GLAS, in its capacity as Syndication Agent, nor GLAS, in its capacity as Documentation Agent, shall have any obligations but shall be entitled to all benefits of this Section 9.

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9.2     Powers and Duties. Each Lender irrevocably authorizes each Agent to take such action on such Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other Credit Documents as are specifically delegated or granted to such Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each Agent shall have only those duties and responsibilities that are expressly specified herein and the other Credit Documents. Each Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. No Agent shall have, by reason hereof or any of the other Credit Documents, a fiduciary relationship in respect of any Lender; and nothing herein or any of the other Credit Documents, expressed or implied, is intended to or shall be so construed as to impose upon any Agent any obligations in respect hereof or any of the other Credit Documents except as expressly set forth herein or therein.

9.3     General Immunity.

(a)     No Responsibility for Certain Matters. No Agent shall be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency hereof or any other Credit Document or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by any Agent to Lenders or by or on behalf of any Credit Party to any Agent or any Lender in connection with the Credit Documents and the transactions contemplated thereby or for the financial condition or business affairs of any Credit Party or any other Person liable for the payment of any Obligations, nor shall any Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Credit Documents or as to the use of the proceeds of the Loans or as to the existence or possible existence of any Event of Default or Default or to make any disclosures with respect to the foregoing. Anything contained herein to the contrary notwithstanding, Administrative Agent shall not have any liability arising from confirmations of the amount of outstanding Loans or the component amounts thereof.

(b)     Exculpatory Provisions. No Agent nor any of its officers, partners, directors, employees or agents shall be liable to Lenders for any action taken or omitted by any Agent under or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order. Each Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection herewith or any of the other Credit Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until such Agent shall have received instructions in respect thereof from Requisite Lenders (or such other Lenders as may be required to give such instructions under Section 10.5) and, upon receipt of such instructions from Requisite Lenders (or such other Lenders, as the case may be), such Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions. Without prejudice to the generality of the foregoing, (i) each Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for Company and its Subsidiaries), accountants, experts and other professional advisors selected by it; and (ii) no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or (where so instructed) refraining from acting hereunder or any of the other Credit Documents in accordance with the instructions of Requisite Lenders (or such other Lenders as may be required to give such instructions under Section 10.5).

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9.4     Agents Entitled to Act as Lender. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its individual capacity as a Lender hereunder. With respect to its participation in the Loans, each Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same as if it were not performing the duties and functions delegated to it hereunder, and the term “Lender” shall, unless the context clearly otherwise indicates, include each Agent in its individual capacity. Any Agent and its Affiliates may accept deposits from, lend money to, own securities of, and generally engage in any kind of banking, trust, financial advisory or other business with Company or any of its Affiliates as if it were not performing the duties specified herein, and may accept fees and other consideration from Company for services in connection herewith and otherwise without having to account for the same to Lenders.

9.5     Lenders’ Representations, Warranties and Acknowledgment.

(a)     Each Lender represents and warrants that it has made its own independent investigation of the financial condition and affairs of Company and its Subsidiaries in connection with Loans hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of Company and its Subsidiaries. No Agent shall have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter, and no Agent shall have any responsibility with respect to the accuracy of or the completeness of any information provided to Lenders.

(b)     Each Lender, by delivering its signature page to this Agreement or an Assignment Agreement and funding its Loans on the Closing Date, the Restatement Date or thereafter, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent, Requisite Lenders or Lenders, as applicable on the Closing Date, the Restatement Date or as of the date of its initial funding of such Loans.

(c)     Each Lender (i) represents and warrants that as of the Restatement Date neither such Lender nor its Affiliates or Related Funds owns or controls, or owns or controls any Person owning or controlling, any trade debt or Indebtedness of any Credit Party other than the Obligations or any Capital Stock of any Credit Party and (ii) covenants and agrees that from and after the Restatement Date neither such Lender nor its Affiliates and Related Funds shall purchase any trade debt or Indebtedness of any Credit Party other than the Obligations or Capital Stock described in clause (i) above without the prior written consent of the Administrative Agent.

9.6     Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify each Agent, its Affiliates and its officers, partners, directors, trustees, employees and agents of each Agent (each, an “Indemnitee Agent Party”), to the extent that such Indemnitee Agent Party shall not have been reimbursed by any Credit Party, for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of any kind or nature whatsoever (including any Protective Advances) which may be imposed on, incurred by or asserted against such Indemnitee Agent Party in exercising its powers, rights and remedies or performing its duties hereunder or under the other Credit Documents or otherwise in its capacity as such Indemnitee Agent Party in any way relating to or arising out of this Agreement or the other Credit Documents, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE AGENT PARTY; provided, no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Indemnitee Agent Party’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order. If any indemnity furnished to any Indemnitee Agent Party for any purpose shall, in the opinion of such Indemnitee Agent Party, be insufficient or become impaired, such Indemnitee Agent Party may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided, in no event shall this sentence require any Lender to indemnify any Indemnitee Agent Party against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof; and provided further, this sentence shall not be deemed to require any Lender to indemnify any Indemnitee Agent Party against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence.

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9.7     Successor Administrative Agent and Collateral Agent.

(a)     Administrative Agent and Collateral Agent may resign at any time by giving thirty (30) days’ prior written notice thereof to Lenders and Company. Upon any such notice of resignation, Requisite Lenders shall have the right, upon five (5) Business Days’ notice to Company, to appoint a successor Administrative Agent and Collateral Agent. Upon the acceptance of any appointment as Administrative Agent and Collateral Agent hereunder by a successor Administrative Agent and Collateral Agent, that successor Administrative Agent and Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent and Collateral Agent and the retiring Administrative Agent and Collateral Agent shall promptly (i) transfer to such successor Administrative Agent and Collateral Agent all sums, Securities and other items of Collateral held under the Collateral Documents, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Administrative Agent and Collateral Agent under the Credit Documents, and (ii) execute and deliver to such successor Administrative Agent and Collateral Agent such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Administrative Agent and Collateral Agent of the security interests created under the Collateral Documents, whereupon such retiring Administrative Agent and Collateral Agent shall be discharged from its duties and obligations hereunder. After any retiring Administrative Agent’s and Collateral Agent’s resignation hereunder as Administrative Agent and Collateral Agent, the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent and Collateral Agent hereunder. Administrative Agent may not be removed as an Agent without the then serving Administrative Agent’s written consent.

(b)     Notwithstanding anything herein to the contrary, Administrative Agent and Collateral Agent may assign their rights and duties as Administrative Agent and Collateral Agent hereunder to an Affiliate of GLAS without the prior written consent of, or prior written notice to, Company or the Lenders; provided that Company and the Lenders may deem and treat such assigning Administrative Agent and Collateral Agent as the Administrative Agent and Collateral Agent for all purposes hereof, unless and until such assigning Administrative Agent or Collateral Agent, as the case may be, provides written notice to Company and the Lenders of such assignment. Upon such assignment such Affiliate shall succeed to and become vested with all rights, powers, privileges and duties as Administrative Agent and Collateral Agent hereunder and under the other Credit Documents.

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9.8     Collateral Documents and Guaranty.

(a)     Agents under Collateral Documents and Guaranty. Each Lender hereby further authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the benefit of Lenders, to be the agent for and representative of Lenders with respect to the Guaranty, the Collateral and the Collateral Documents. Subject to Section 10.5, without further written consent or authorization from Lenders, Administrative Agent or Collateral Agent, as applicable may execute any documents or instruments necessary to (i) release any Lien encumbering any item of Collateral that is the subject of a sale or other disposition of assets permitted hereby or to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have otherwise consented, (ii) release any Lien granted to or held by any Agent upon any Collateral upon payment in full of all Obligations (other than contingent Obligations for which no claim has been asserted), or (iii) release any Guarantor from the Guaranty concurrently with such payment in full of all such Obligations or with respect to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have otherwise consented.

(b)     Right to Realize on Collateral and Enforce Guaranty. Anything contained in any of the Credit Documents to the contrary notwithstanding, Company, Administrative Agent, Collateral Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by Administrative Agent, on behalf of Lenders in accordance with the terms hereof and all powers, rights and remedies under the Collateral Documents may be exercised solely by Collateral Agent, and (ii) in the event of a foreclosure by Collateral Agent on any of the Collateral pursuant to a public or private sale, Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and Collateral Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by Collateral Agent at such sale.

9.9     Protective Advances. Subject to the limitations set forth below, during the Continuance of an Event of Default, Administrative Agent is authorized by Company and the Lenders, from time to time in Administrative Agent’s sole discretion (but Administrative Agent shall have absolutely no obligation to), to make additional loans to Company on behalf of the Lenders, which Administrative Agent, in its sole discretion, deems necessary or desirable (i) to preserve or protect the Collateral, or any portion thereof, (ii) to enhance the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations, or (iii) to pay any other amount chargeable to or required to be paid by Company pursuant to the terms of this Agreement and the other Credit Documents, including, without limitation, payments of principal, interest, fees and reimbursable expenses (any of such Loans or advances shall constitute “Protective Advances”), in an aggregate principal amount not to exceed Ten Million Dollars ($10,000,000). All Protective Advances shall bear interest at interest rate applicable to Term Loans. Protective Advances may be made even if the conditions precedent set forth in Section 3 or elsewhere in this Agreement have not been satisfied and without regard to the Commitments of the Lenders. Each Protective Advance shall be secured by the Liens in favor of the Collateral Agent in and to the Collateral and shall constitute Obligations hereunder. Company shall pay the unpaid principal amount and all unpaid and accrued interest of each Protective Advance on the earlier of the Term Loan Maturity Date and the date on which demand for payment is made by Administrative Agent.

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SECTION 10. MISCELLANEOUS

10.1     Notices. Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given to a Credit Party, Syndication Agent, Collateral Agent, Administrative Agent or Documentation Agent, shall be sent to such Person’s address as set forth on Appendix B or in the other relevant Credit Document, and in the case of any Lender, the address as indicated on Appendix B or otherwise indicated to Administrative Agent in writing. Each notice hereunder shall be in writing and may be personally served, telexed or sent by telefacsimile or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of telefacsimile or telex, or three (3) Business Days after depositing it in the United States mail with postage prepaid and properly addressed; provided, no notice to any Agent shall be effective until received by such Agent.

10.2     Expenses. Whether or not the transactions contemplated hereby shall be consummated, Company agrees to pay promptly (a) all the Administrative Agent’s actual and reasonable costs and expenses of preparation of the Credit Documents and any consents, amendments, waivers or other modifications thereto; (b) all the Agents’ costs of furnishing all opinions by counsel for Company and the other Credit Parties; (c) all the reasonable fees, expenses and disbursements of counsel to Agents in connection with the syndication of the Loans and Commitments, the negotiation, preparation, execution and administration of the Credit Documents, the Intercreditor Agreement and any consents, amendments, waivers or other modifications thereto and any other documents or matters requested by Company; (d) all the actual costs and reasonable expenses of creating and perfecting Liens in favor of Collateral Agent, for the benefit of Secured Parties, including filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees, title insurance premiums and reasonable fees, expenses and disbursements of counsel to each Agent and of counsel providing any opinions that any Agent or Requisite Lenders may request in respect of the Collateral or the Liens created pursuant to the Collateral Documents; (e) all the Administrative Agent’s actual costs and reasonable fees, expenses for, and disbursements of any of Administrative Agent’s, auditors, accountants, consultants or appraisers whether internal or external, and all reasonable attorneys’ fees (including allocated costs of internal counsel and expenses and disbursements of outside counsel) incurred by Administrative Agent; (f) all the actual costs and reasonable expenses (including the reasonable fees, expenses and disbursements of any appraisers, consultants, advisors and agents employed or retained by Collateral Agent and its counsel) in connection with the custody or preservation of any of the Collateral; (g) all other actual and reasonable costs and expenses incurred by each Agent in connection with the syndication of the Loans and Commitments and the negotiation, preparation and execution of the Credit Documents and any consents, amendments, waivers or other modifications thereto and the transactions contemplated thereby; and (h) after the occurrence of a Default or an Event of Default, all costs and expenses, including reasonable attorneys’ fees (including allocated costs of internal counsel) and costs of settlement, incurred by any Agent and Lenders in enforcing any Obligations of or in collecting any payments due from any Credit Party hereunder or under the other Credit Documents by reason of such Default or Event of Default (including in connection with the sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty) or in connection with any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a “work out” or pursuant to any insolvency or bankruptcy cases or proceedings.

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10.3     Indemnity. 

(a)     In addition to the payment of expenses pursuant to Section 10.2, whether or not the transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and Lender, their respective Affiliates and their respective officers, partners, directors, trustees, employees and agents of each Agent and each Lender (each, an “Indemnitee”), from and against any and all Indemnified Liabilities, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE; provided, no Credit Party shall have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final, non-appealable order, of that Indemnitee. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be unenforceable in whole or in part because they are violative of any law or public policy, the applicable Credit Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them.

(b)     To the extent not prohibited by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against Lenders, Agents and their respective Affiliates, directors, employees, attorneys or agents, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and Company hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

10.4     Set Off. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, during the Continuance of an Event of Default each Lender and their Affiliates, each of is hereby authorized by each Credit Party at any time or from time to time subject to the consent of Administrative Agent (such consent not to be unreasonably withheld or delayed), without notice to any Credit Party or to any other Person (other than Administrative Agent), any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts (in whatever currency)) and any other Indebtedness at any time held or owing by such Lender to or for the credit or the account of any Credit Party (in whatever currency) against and on account of the obligations and liabilities of any Credit Party to such Lender hereunder, and under the other Credit Documents, including all claims of any nature or description arising out of or connected hereto, or with any other Credit Document, irrespective of whether or not (a) such Lender shall have made any demand hereunder, (b) the principal of or the interest on the Loans or any other amounts due hereunder shall have become due and payable pursuant to the terms of this Agreement and although such obligations and liabilities, or any of them, may be contingent or unmatured or (c) such obligation or liability is owed to a branch or office of such Lender different from the branch or office holding such deposit or obligation or such Indebtedness.

10.5     Amendments and Waivers.

(a)     Requisite Lenders’ Consent. Subject to Sections 10.5(b) and 10.5(c), no amendment, modification, termination or waiver of any provision of the Credit Documents, or consent to any departure by any Credit Party therefrom, shall in any event be effective without the written concurrence of Administrative Agent and the Requisite Lenders.

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(b)     Affected Lenders’ Consent. Without the written consent of each Lender that would be directly affected thereby, no amendment, modification, termination, or consent shall be effective if the effect thereof would:

(i)     extend the scheduled final maturity of any Loan or Note;

(ii)     waive, reduce or postpone any scheduled repayment (but not prepayment);

(iii)     reduce the rate of interest on any Loan (other than any waiver of any increase in the interest rate applicable to any Loan pursuant to Section 2.9) or any fee payable hereunder;

(iv)     extend the time for payment of any such interest or fees;

(v)     amend, modify, terminate or waive any provision of this Section 10.5(b) or Section 10.5(c);

(vi)     amend the definition of “Eligible Assignee”, “Requisite Lenders” or “Pro Rata Share”; provided, with the consent of Administrative Agent and the Requisite Lenders, additional extensions of credit pursuant hereto may be included in the determination of “Requisite Lenders” or “Pro Rata Share” on substantially the same basis as the Closing Date Term Loans and the Restatement Date Term Loans are included on the Restatement Date; provided, further, it is agreed that any change to the definition of the “Eligible Assignee” shall be deemed to affect each Lender;

(vii)     release or subordinate all or substantially all of the Collateral or all or substantially all of the Guarantors from the Guaranty except as expressly provided in the Credit Documents; or

(viii)     consent to the assignment or transfer by any Credit Party of any of its rights and obligations under any Credit Document.

(c)     Other Consents. No amendment, modification, termination or waiver of any provision of the Credit Documents, or consent to any departure by any Credit Party therefrom, shall:

(i)     increase any Commitment of any Lender over the amount thereof then in effect without the consent of such Lender; provided, no amendment, modification or waiver of any condition precedent, covenant, Default or Event of Default shall constitute an increase in any Commitment of any Lender;

(ii)     alter the required application of any repayments or prepayments as pursuant to Section 2.14, 2.17(g) or 2.18 without the consent of each Lender which is being allocated a lesser repayment or prepayment as a result thereof; or

(iii)     amend, modify, terminate or waive any provision of Section 9 as the same applies to any Agent, or any other provision hereof or any other Credit Document as the same applies to the rights or obligations of any Agent, in each case without the consent of such Agent.

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(d)     Execution of Amendments, etc. Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Credit Party in any case shall entitle any Credit Party to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.5 shall be binding upon each Lender at the time outstanding, each future Lender and, if signed by a Credit Party, on such Credit Party. Notwithstanding anything to the contrary in this Section 10.5, Administrative Agent and/or Collateral Agent and any Credit Party may amend or modify this Agreement or any other Credit Documents to (i) cure any ambiguity, omission, defect or inconsistency therein, or (ii) grant a new Lien for the benefit of the Secured Parties, extend an existing Lien over additional property for the benefit of the Secured Parties or join additional Persons as Credit Parties.

10.6     Successors and Assigns; Participations.

(a)     Generally. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and the successors and assigns of Lenders. No Credit Party’s rights or obligations hereunder nor any interest therein may be assigned or delegated by any Credit Party without the prior written consent of all Lenders. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, Indemnitee Agent Parties under Section 9.6, Indemnitees under Section 10.3, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, Affiliates of each of the Agents and Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b)     Register. Company, Administrative Agent and Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any such Commitment or Loan shall be effective, in each case, unless and until an Assignment Agreement effecting the assignment or transfer thereof shall have been delivered to and accepted by Administrative Agent and recorded in the Register as provided in Section 10.6(e). Prior to such recordation, all amounts owed with respect to the applicable Commitment or Loan shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Commitments or Loans.

(c)     Right to Assign. Each Lender shall have the right at any time to sell, assign or transfer all or a portion of its rights and obligations under this Agreement, including, without limitation, all or a portion of its Loans owing to it or other Obligations (provided, however, that each such assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any Loan):

(i)     to any Person meeting the criteria of clause (i) or clause (ii) of the definition of the term of “Eligible Assignee” upon the giving of notice to Administrative Agent; and

(ii)     to any other Person otherwise constituting an Eligible Assignee with the consent of Administrative Agent; provided, each such assignment pursuant to this Section 10.6(c)(ii) shall be in an aggregate amount of not less than (A) $1,000,000 or (B) such lesser amount as (1) may be agreed to by Administrative Agent or (2) shall constitute the entire aggregate amount of the Term Loans of the assigning Lender.

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(d)     Mechanics. The assigning Lender and the assignee thereof shall execute and deliver to Administrative Agent an Assignment Agreement, together with such forms, certificates or other evidence, if any, with respect to United States federal income tax withholding matters as the assignee under such Assignment Agreement may be required to deliver to Administrative Agent pursuant to Section 2.19(c).

(e)     Notice of Assignment. Upon its receipt and acceptance of a duly executed and completed Assignment Agreement, any forms, certificates or other evidence required by this Agreement in connection therewith, Administrative Agent shall record the information contained in such Assignment Agreement in the Register and shall maintain a copy of such Assignment Agreement.

(f)     Representations and Warranties of Assignee. Each Lender, upon execution and delivery hereof or upon executing and delivering an Assignment Agreement, as the case may be, represents and warrants as of the Restatement Date or as of the applicable Effective Date (as defined in the applicable Assignment Agreement) that (i) it is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Commitments or Loans, as the case may be; (iii) it will make or invest in, as the case may be, its Commitments or Loans for its own account in the ordinary course of its business and without a view to distribution of such Commitments or Loans within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it being understood that, subject to the provisions of this Section 10.6, the disposition of such Commitments or Loans or any interests therein shall at all times remain within its exclusive control); and (iv) such Lender does not own or control, or own or control any Person owning or controlling, any trade debt or Indebtedness of any Credit Party other than the Obligations or any Capital Stock of any Credit Party. Administrative Agent, each Lender and each prospective Lender may conclusively rely (without any duty of inquiry or further diligence) on a representation made by another Person that such Person is an Eligible Assignee for the purposes of establishing that such Person is an Eligible Assignee for all purposes under this Agreement (and the Credit Parties shall constitute a third-party beneficiary of such representation and may pursue any claim it may have against the Person that made and breached such representation).

(g)     Effect of Assignment. Subject to the terms and conditions of this Section 10.6, as of the “Effective Date” specified in the applicable Assignment Agreement: (i) the assignee thereunder shall have the rights and obligations of a “Lender” hereunder to the extent such rights and obligations hereunder have been assigned to it pursuant to such Assignment Agreement and shall thereafter be a party hereto and a “Lender” for all purposes hereof; (ii) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned thereby pursuant to such Assignment Agreement, relinquish its rights (other than any rights which survive the termination hereof under Section 10.8) and be released from its obligations hereunder (and, in the case of an Assignment Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations hereunder, such Lender shall cease to be a party hereto; provided, anything contained in any of the Credit Documents to the contrary notwithstanding, and (y) such assigning Lender shall continue to be entitled to the benefit of all indemnities hereunder as specified herein with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder); (iii) the Commitments shall be modified to reflect the Commitment of such assignee and any Commitment of such assigning Lender, if any; and (iv) if any such assignment occurs after the issuance of any Note hereunder, the assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender its applicable Notes to Administrative Agent for cancellation, and thereupon Company shall issue and deliver new Notes, if so requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new Commitments and/or outstanding Loans of the assignee and/or the assigning Lender.

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(h)     Participations. Each Lender shall have the right at any time to sell one or more participations to any Person (other than Company, any of its Subsidiaries or any of its Affiliates) in all or any part of its Commitments, Loans or in any other Obligation. The holder of any such participation, other than an Affiliate of the Lender granting such participation, shall not be entitled to require such Lender to take or omit to take any action hereunder except with respect to any amendment, modification or waiver that would (i) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (ii) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement, or (iii) release all or substantially all of the Collateral under the Collateral Documents or all or substantially all of the Guarantors from the Guaranty (in each case, except as expressly provided in the Credit Documents) supporting the Loans hereunder in which such participant is participating. Company agrees that each participant shall be entitled to the benefits of Sections 2.17(c), 2.18 and 2.19 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (c) of this Section; provided, a participant shall not be entitled to receive any greater payment under Section 2.18 or 2.19 than the applicable Lender would have been entitled to receive with respect to the participation sold to such participant, except to the extent such entitlement to receive a greater payment results from a change in law that occurs after the participant acquired the applicable participation and such participant agrees, for the benefit of Company, to comply with Section 2.19 as though it were a Lender. To the extent not prohibited by law, each participant also shall be entitled to the benefits of Section 10.4 as though it were a Lender, provided such Participant agrees to be subject to Section 2.19 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of Company, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Credit Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Credit Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(i)     Certain Other Assignments. In addition to any other assignment permitted pursuant to this Section 10.6, any Lender may freely assign, pledge and/or grant a security interest in, all or any portion of its Loans, the other Obligations owed by or to such Lender, and its Notes, if any, to secure obligations of such Lender including, without limitation, to (A) its trustee, (B) any Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any operating circular issued by such Federal Reserve Bank or (C) any other funding source or any trustee or agent therefor in support of obligations owing by such Lender to such Persons; provided, no Lender, as between Company and such Lender, shall be relieved of any of its obligations hereunder as a result of any such assignment and pledge, and provided further, in no event shall the applicable Federal Reserve Bank, pledgee or trustee be considered to be a “lender” or be entitled to require the assigning Lender to take or omit to take any action hereunder.

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10.7     Independence of Covenants. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.

10.8     Survival of Representations, Warranties and Agreements. All representations, warranties and agreements made herein shall survive the execution and delivery hereof and the making of any Loan. Notwithstanding anything herein or implied by law to the contrary, the agreements of each Credit Party set forth in Sections 2.17(c), 2.18, 2.19, 10.2, 10.3, 10.4, and 10.10 and the agreements of Lenders set forth in Sections 2.16, 9.3(b) and 9.6 shall survive the payment of the Loans, and the termination hereof.

10.9     No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any Lender in the exercise of any power, right or privilege hereunder or under any other Credit Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege. The rights, powers and remedies given to each Agent and each Lender hereby are cumulative and shall be in addition to and independent of all rights, powers and remedies existing by virtue of any statute or rule of law or in any of the other Credit Documents or any of the Interest Rate Agreements. Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy.

10.10     Marshaling; Payments Set Aside. Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor of any Credit Party or any other Person or against or in payment of any or all of the Obligations. To the extent that any Credit Party makes a payment or payments to Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or Administrative Agent, Collateral Agent, or Lenders enforce any security interests or exercise their 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 and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or federal law, common law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred.

10.11     Severability. In case any provision in or obligation hereunder or any Note or other Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

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10.12     Obligations Several; Independent Nature of Lenders’ Rights. The obligations of Lenders hereunder are several and no Lender shall be responsible for the obligations or Commitment of any Agent or any other Lender hereunder. Nothing contained herein or in any other Credit Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a joint venture or any other kind of entity. Anything in this Agreement or any other Credit Document notwithstanding, each Lender hereby agrees with each other Lender that no Lender shall take any action to protect and enforce its rights arising out of this Agreement or any Note or otherwise with respect to the Obligations without first obtaining the prior written consent of Administrative Agent or Requisite Lenders (as applicable), it being the intent of Lenders that any such action to protect or enforce rights under this Agreement and any Note or otherwise with respect to the Obligations shall be taken in concert and at the direction or with the consent of Administrative Agent or Requisite Lenders (as applicable).

10.13     Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.

10.14     APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) THEREOF.

10.15     CONSENT TO JURISDICTION. (A) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY CREDIT PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (a) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (b) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (c) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1 ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (e) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION.

(B)     EACH CREDIT PARTY HEREBY AGREES THAT PROCESS MAY BE SERVED ON IT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE ADDRESSES PERTAINING TO IT AS SPECIFIED IN SECTION 10.1. ANY AND ALL SERVICE OF PROCESS AND ANY OTHER NOTICE IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE EFFECTIVE AGAINST ANY CREDIT PARTY IF GIVEN BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY ANY OTHER MEANS OR MAIL WHICH REQUIRES A SIGNED RECEIPT, POSTAGE PREPAID, MAILED AS PROVIDED ABOVE.

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10.16     WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT (A) THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, (B) EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND (C) EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

10.17     Confidentiality.

(a)     Each Lender shall hold all non-public information regarding Company and its Subsidiaries and their businesses identified as such by Company and obtained by such Lender pursuant to the requirements hereof in accordance with such Lender’s customary procedures for handling confidential information of such nature, it being understood and agreed by Company that, in any event, a Lender may make (i) disclosures of such information to any party to the Credit Documents and to Affiliates of such Lender and to their agents and advisors (and to other persons authorized by a Lender or Agent to organize, present or disseminate such information in connection with disclosures otherwise made in accordance with this Section 10.17), (ii) disclosures of such information reasonably required by any bona fide or potential assignee, transferee or participant in connection with the contemplated assignment, transfer or participation by such Lender of any Loans or any participations therein or by any direct or indirect contractual counterparties (or the professional advisors thereto) in Interest Rate Agreements (provided, such counterparties and advisors are advised of and agree to be bound by the provisions of this Section 10.17), (iii) disclosure to any rating agency when required by it, (iv) to any Lender’s financing sources, provided that prior to any disclosure, such financing source is informed of the confidential nature of the information, (v) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or any other Credit Document or the enforcement of rights hereunder or thereunder, (vi) disclosures to the extent such information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to an Agent or any Lender on a non-confidential basis from a source other than Company, (vii) as may be required by regulatory authorities so long as such authorities are informed of the confidential nature of such information, and (viii) any other disclosures required or requested by any Governmental Authority or representative thereof or by the NAIC or pursuant to legal or judicial process; provided, unless specifically prohibited by applicable law or court order, each Lender shall make reasonable efforts to notify Company of any request by any Governmental Authority or representative thereof (other than any such request in connection with any examination of the financial condition or other routine examination of such Lender by such Governmental Authority) for disclosure of any such non-public information prior to disclosure of such information. Notwithstanding the foregoing, on or after the Restatement Date, Administrative Agent may, at its own expense issue news releases and publish “tombstone” advertisements and other announcements relating to this transaction (as to the parties involved, the type of industry involved, and the amounts and the types of financial accommodations provided hereunder) in newspapers, trade journals and other appropriate media (which may include use of logos of one or more of the Credit Parties)(collectively, “Trade Announcements”).

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(b)     Each Credit Party shall hold all non-public information regarding Agent and each Lender received by such Credit Party, it being understood and agreed by Agent and each Lender that, in any event, a Credit Party may make (i) disclosures of such information to Affiliates of such Credit Party and to their agents and advisors, in each case, on a confidential and need-to-know basis, (ii) disclosures of such information reasonably required to be delivered to the Sellers (provided, that the Sellers agree to be bound by confidentiality provisions substantially similar to this Section 10.17), (iii) disclosures required or requested by any Governmental Authority or representative thereof or pursuant to legal or judicial process related to the Credit Documents or the Divested Business Documents; provided, unless specifically prohibited by applicable law or court order, each Credit Party shall notify Administrative Agent of any request by any Governmental Authority or representative thereof for disclosure of any such non-public information prior to disclosure of such information, (iv) file a copy of the Credit Documents in any public record in which it is required by law to be filed.

10.18     Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate charged or agreed to be paid with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under applicable law shall not exceed the Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent not prohibited by law, Company shall pay to Administrative Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of Lenders and Company to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding amount of the Loans made hereunder or be refunded to Company. In determining whether the interest contracted for, charged, or received by Administrative Agent or a Lender exceeds the Highest Lawful Rate, such Person may, to the extent not prohibited by applicable law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest, throughout the contemplated term of the Obligations hereunder.

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10.19     Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. The parties hereto agree that delivery of an executed counterpart of a signature page to this Agreement and each other Credit Document by facsimile (or other electronic) transmission shall be effective as delivery of an original executed counterpart of this Agreement or such other Credit Document.

10.20     Effectiveness. This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto and receipt by Company and Administrative Agent of written or telephonic notification of such execution and authorization of delivery thereof.

10.21     Patriot Act. Each Lender hereby notifies each Credit Party that, pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies the Credit Parties, which information includes the name and address of each Credit Party and other information that will allow such Lender to identify each Credit Party in accordance with the Patriot Act. Each Credit Party agrees to provide all such information to the Lenders upon request by any Agent at any time, whether with respect to any Person who is a Credit Party on the Restatement Date or who becomes a Credit Party thereafter.

10.22     Agreements Among Lenders. For the avoidance of doubt and notwithstanding anything herein to the contrary, Company and its Subsidiaries agree and acknowledge that Agents and the Lenders may, without any additional consent of Company or any of its Subsidiaries, enter into the Intercreditor Agreement and any one or more side agreements that affect the relative rights and priorities of Agents and Lenders as between themselves in relation to the Loans, the other Obligations, the Collateral, this Agreement and the other Credit Documents; provided, that no such agreement shall effect an amendment or modification of this Agreement or any other Credit Document or effect any rights or obligations as between Agents and Lenders, on the one hand, and Company and its Subsidiaries, on the other hand.

10.23     Continued Effectiveness. Notwithstanding anything to the contrary contained herein, this Agreement is not intended to and shall not serve to effect a novation of the Obligations under the Original Credit Agreement, as continued hereunder. Instead, it is the express intention of the parties hereto to reaffirm the indebtedness created under the Original Credit Agreement and the notes issued thereunder, if any, which is secured by the Collateral. Each Credit Party acknowledges and confirms that (i) the Liens and security interests granted pursuant to the Credit Documents secure the indebtedness, liabilities and obligations of the Company to Administrative Agent and the Lenders under the Original Credit Agreement, as amended and restated hereby, and that the term “Obligations” as used in the Credit Documents (or any other term used therein to describe or refer to the indebtedness, liabilities and obligations of the Company and the other Credit Parties to Administrative Agent and the Lenders) includes, without limitation, the indebtedness, liabilities and obligations of the Company under this Agreement and the Notes to be delivered hereunder, if any, and under the Original Credit Agreement, as amended and restated hereby, as the same further may be amended, restated, supplemented and/or modified from time to time and (ii) the grants of security interests, mortgages and Liens under and pursuant to the Credit Documents shall continue unaltered, and each other Credit Document shall continue in full force and effect in accordance with its terms unless otherwise amended by the parties thereto, and the parties hereto hereby ratify and confirm the terms thereof as being in full force and effect and unaltered by this Agreement. The Credit 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 Credit 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. Each Credit Party signatory hereto, in the respective capacities, if any, of such Credit Party under each of the “Credit Documents” (as such term is defined in the Original Credit Agreement), other than the Original Credit Agreement (such Credit Documents other than the Original Credit Agreement are referred to herein as the “Original Credit Documents”), to which such Credit Party is a party (including the respective capacities of accommodation party, assignor, grantor, guarantor, indemnitor, mortgagor, obligor and pledgor, as applicable, and each other similar capacity, if any, in which such Credit Party granted Liens on all or any part of its properties and assets, or otherwise acted as an accommodation party, guarantor, indemnitor or surety with respect to all or any part of the Obligations under the Original Credit Agreement), hereby (i) agrees that the terms and provisions hereof shall not affect in any way any payment, performance, observance or other obligations or liabilities of such Credit Party under any of the Original Credit Documents, all of which obligations and liabilities are hereby ratified, confirmed and reaffirmed in all respects, and (ii) to the extent such Credit Party has granted Liens on any of its properties or assets pursuant to any of the Original Credit Documents to secure the payment, performance and/or observance of all or any part of the Obligations, acknowledges, ratifies, confirms and reaffirms such grant of Liens, and acknowledges and agrees that all of such Liens are intended and shall be deemed and construed to secure to the fullest extent set forth therein all now existing and hereafter arising Obligations under and as defined in this Agreement, as hereafter amended, restated, amended and restated, supplemented and otherwise modified and in effect from time to time.

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

SPEED COMMERCE, INC.,

a Minnesota corporation

By: 

Name:                                                                                                       

Title:                                                                                                         

Speed COMMERCE CORP.,

a Minnesota corporation

By:                                                                                                            

Name:                                                                                                       

Title:                                                                                                         

SPEED FC MEXICAN HOLDCO, INC.,

a Delaware corporation

By:                                                                                                            

Name:                                                                                                       

Title:                                                                                                         

FIFTH GEAR ACQUISITIONS, INC.,

a Minnesota corporation

By:                                                                                                            

Name:                                                                                                       

Title:                                                                                                         

 Execution Copy

GARRISON LOAN AGENCY SERVICES LLC,

as Administrative Agent, Collateral Agent, Lead Arranger, Syndication Agent and Documentation Agent

By:                                                                                                            

Name:                                                                                                       

Title:                                                                                                         

Garrison Middle Market Funding Co-Invest LLC,

as a Lender

By:                                                                                                            

Name:                                                                                                       

Title:                                                                                                         

Garrison Opportunity Fund IV A LLC,

as a Lender

By:                                                                                                            

Name:                                                                                                       

Title:                                                                                                         

GARRISON FUNDING 2013-2 LTD.,

as a Lender

By: Garrison Funding 2013-2 Manager LLC, as Collateral Manager

By:                                                                                                            

Name:                                                                                                       

Title:                                                                                                         

GMMF LOAN HOLDINGS LLC,

as a Lender

By:                                                                                                            

Name:                                                                                                       

Title:                                                                                                         

 Execution Copy 

CITY NATIONAL BANK,

as a Lender

By:                                                                                                            

Name:                                                                                                       

Title:                                                                                                         

EAST WEST BANK,

as a Lender

By:                                                                                                            

Name:                                                                                                       

Title:                                                                                                         

Credit Suisse Corporate Credit Solutions, LLC,

as a Lender

By:                                                                                                            

Name:                                                                                                       

Title:                                                                                                         

EX-99

Exhibit 99.1

Speed Commerce Acquires E-Commerce Services Provider Fifth Gear

Transaction Provides Scale, Diverse Customer Base and Significant Cross-Selling Opportunities 

DALLAS, TX – November 24, 2014 – Speed Commerce, Inc. (NASDAQ: SPDC), a leading provider of omni-channel e-commerce services, has completed the acquisition of Fifth Gear, a single-source provider of order management, fulfillment and customer care services. Total consideration included $55 million in cash paid at closing with an additional contingent payment to be made in the form of common shares of Speed Commerce stock, if earned.

The transaction provides Speed Commerce with a diverse list of marquee clients on long-term contracts, adds substantial fulfillment services assets, and solidifies the company’s position as one of the fastest growing providers of end-to-end e-commerce services. Clients added as a result of the transaction include, among others, Burger King, Lens.com, Smithsonian Institute, Zeeberry.com and popular pet specialty companies, Dog.com, Horse.com and Petbox. For the 12 months ended September 30, 2014, Fifth Gear’s net revenue exceeded $50 million.

“The purchase of Fifth Gear provides meaningful scale and value to Speed Commerce on all levels,” said Richard Willis, president and CEO of Speed Commerce. “Our company is now better positioned to deliver on our vision of becoming one of the largest full service e-commerce players in the industry. We are excited about the opportunity to win new accounts and cross-sell our services to existing clients, as well as leverage our newly-acquired capabilities to communicate a unique service offering and further strengthen our brand. Additionally, our sales team now has additional fulfillment expertise and resources to support our aggressive pursuit of a newly-enhanced pipeline of client opportunities.”

“We welcome the Fifth Gear team to our combined organization and look forward to working towards the realization of the clear and ample synergies and opportunities that motivated this transaction,” continued Willis. “We have been impressed with the talented personnel that have been added to our team through this transaction, and together we look forward to continuing to provide high levels of service to our new and long-standing clients.”

Al Langsenkamp, chairman and CEO of Fifth Gear, commented: “Becoming a part of Speed Commerce represents an important strategic step in our go-to-market offering. We believe that Speed’s fully integrated e-commerce services platform, combined with Fifth Gear’s unique capabilities, will allow our combined company to better serve clients and help them deliver a more seamless online shopping experience. Our team’s mission is all about fulfilling the quality ‘brand promise’ that our clients make to their customers every day. Speed Commerce shares this mission and we look forward to driving value for our clients.”

As a result of the acquisition, the organic growth of existing clients and the addition of new client opportunities, the company expects revenues for its fiscal year ending March 31, 2016 ranging between $180 million to $220 million. The company anticipates Adjusted EBITDA margins for fiscal 2016 in the range of 10%-13%, a wide range due to: (a) the timing of the realization of anticipated synergies and cost savings, (b) the impact of additional investments in sales, marketing and technology discussed during its most recent earnings call, and (c) results from the upcoming holiday season, which is still in the early stages. The company anticipates that the acquisition will become accretive to earnings during fiscal 2016.

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Speed Commerce financed the acquisition and refinanced its existing term loan facility with a new $100 million credit facility led by Garrison Capital. Stifel acted as exclusive financial advisor in connection with this credit facility. Lake Street Capital Markets served as financial advisor to the company in connection with the acquisition of Fifth Gear and originated that transaction.

About Speed Commerce

Speed Commerce, Inc. (NASDAQ: SPDC) is a single-source provider of e-commerce service solutions to leading retailers and manufacturers. The company’s omni-channel capabilities unite a digital commerce strategy with traditional retail channels, creating the ultimate branded shopping experience. Services include e-commerce platform development; hosting, managed and marketing services; order and inventory management; pick, pack & ship; returns processing; and 24/7 customer care. For additional information, please visit the company's website at www.speedcommerce.com.

Important Cautions Regarding Forward Looking Statements

The statements in this press release are “forward-looking” statements within the meaning of the Private Securities Litigation Reform Act of 1995 and are intended to be covered by the safe harbors provided therein. These forward-looking statements are subject to risks and uncertainties, and the actual results that the company achieves, or reports in its Form 10-Q in connection with this period, may differ materially from these forward-looking statements due to such risks and uncertainties, including, but not limited to: difficult economic conditions that adversely affect the company or its clients; the company’s revenues being derived from a small group of clients; pending or prospective litigation may subject the company to significant costs; the seasonal nature of the company’s business; the company’s ability to quickly and cost-effectively adapt to the changing demands of its clients; the potential for the company to incur significant costs and to experience operational and logistical difficulties in connection with its information technology systems and fulfillment infrastructure; the company’s dependence on significant clients and vendors; the company’s ability to meet significant working capital requirements; and the company’s ability to compete effectively in the highly competitive markets that it serves. In addition to these, a detailed statement of risks and uncertainties is contained in the company’s reports to the U.S. Securities and Exchange Commission (the “SEC”), including, in particular, the company’s proxy materials, the company’s Form 10-K filings, as well as its other SEC filings and public disclosures.

Investors and shareholders are urged to read this press release carefully. The company can offer no assurances that any projections, assumptions or forecasts made or discussed in this press release, will be met, and investors should understand the risks of investing solely due to such projections. The forward-looking statements included in this press release are made only as of the date of this report and the company undertakes no obligation to update these forward-looking statements to reflect subsequent events or circumstances.

Investors and shareholders may obtain free copies of the public filings through the website maintained by the SEC at www.sec.gov or at one of the SEC’s other public reference rooms in Washington, D.C., New York, New York or Chicago, Illinois. Please contact the SEC at 1-800-SEC-0330 for further information with respect to the SEC’s public reference rooms.

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Investor Relations

Liolios Group, Inc.

Cody Slach

1-949-574-3860

SPDC@liolios.com

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