Schedule 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, K+2PBRp8so+tZtraClZ3jKMHJK3Eebak3FL6y+umuALnvSidpoJALkAbN4im6lKB CU7Inlr68a0Pw8sPu4HPvg== 0001193125-07-180994.txt : 20070814 0001193125-07-180994.hdr.sgml : 20070814 20070813184932 ACCESSION NUMBER: 0001193125-07-180994 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 20070814 DATE AS OF CHANGE: 20070813 GROUP MEMBERS: CCG OPERATIONS, LLC GROUP MEMBERS: CCP A, L.P. GROUP MEMBERS: JOSE E. FELICIANO GROUP MEMBERS: STEVEN C. CHANG SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GOAMERICA INC CENTRAL INDEX KEY: 0001101268 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 223693371 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-60637 FILM NUMBER: 071050697 BUSINESS ADDRESS: STREET 1: C/O GOAMERICA, INC. STREET 2: 433 HACKENSACK AVENUE CITY: HACKENSACK STATE: NJ ZIP: 07601 BUSINESS PHONE: 2019961717 MAIL ADDRESS: STREET 1: C/O GOAMERICA STREET 2: 401 HACKENSACK AVENUE CITY: HACKENSACK STATE: NJ ZIP: 07601 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Clearlake Capital Partners, LLC CENTRAL INDEX KEY: 0001409591 IRS NUMBER: 208563474 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 650 MADISON AVENUE 23RD FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 212-610-9000 MAIL ADDRESS: STREET 1: 650 MADISON AVENUE 23RD FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D 1 dsc13d.htm SCHEDULE 13D Schedule 13D

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

GoAmerica, Inc.

(Name of Issuer)

Common Stock, par value $0.01 per share

(Title of Class of Securities)

380 20R 30 4

(CUSIP Number)

CCP A, L.P.

650 Madison Avenue, 23^rd Floor

New York, NY 10022

Attn: José E. Feliciano

Fax: (212) 610-9121

with a copy to:

Melainie K. Mansfield, Esq.

Milbank, Tweed, Hadley & McCloy LLP

601 S. Figueroa Street, 30^th Floor

Los Angeles, California 90017

(213) 892-4000

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

August 1, 2007

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

SCHEDULE 13D

CUSIP No. 380 20R 30 4


1.		Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) CCP A, L.P.
2.		Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.		SEC Use Only
4.		Source of Funds (See Instructions) WC
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
6.		Citizenship or Place of Organization Delaware


Number of Shares Beneficially Owned by Each Reporting Person With		7. Sole Voting Power 290,135 shares ⁽¹⁾
		8. Shared Voting Power 0
		9. Sole Dispositive Power 290,135 shares ⁽¹⁾
		10. Shared Dispositive Power 0


11.		Aggregate Amount Beneficially Owned by Each Reporting Person 290,135 shares ⁽¹⁾
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
13.		Percent of Class Represented by Amount in Row (11) 9.9%
14.		Type of Reporting Person (See Instructions) PN

⁽¹⁾	Represents 290,135 shares of Series A Preferred Stock initially convertible into common stock of the Issuer as noted above.

SCHEDULE 13D

CUSIP No. 380 20R 30 4


1.		Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Clearlake Capital Partners, LLC
2.		Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.		SEC Use Only
4.		Source of Funds (See Instructions) AF, WC
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
6.		Citizenship or Place of Organization Delaware


Number of Shares Beneficially Owned by Each Reporting Person With		7. Sole Voting Power 0
		8. Shared Voting Power 290,135 shares ⁽¹⁾
		9. Sole Dispositive Power 0
		10. Shared Dispositive Power 290,135 shares ⁽¹⁾


11.		Aggregate Amount Beneficially Owned by Each Reporting Person 290,135 shares ⁽¹⁾
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
13.		Percent of Class Represented by Amount in Row (11) 9.9%
14.		Type of Reporting Person (See Instructions) HC, IA

⁽¹⁾	Represents 290,135 shares of Series A Preferred Stock initially convertible into common stock of the Issuer as noted above.

SCHEDULE 13D

CUSIP No. 380 20R 30 4


1.		Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) CCG Operations, LLC
2.		Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.		SEC Use Only
4.		Source of Funds (See Instructions) AF, WC
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
6.		Citizenship or Place of Organization Delaware


Number of Shares Beneficially Owned by Each Reporting Person With		7. Sole Voting Power 0
		8. Shared Voting Power 290,135 shares ⁽¹⁾
		9. Sole Dispositive Power 0
		10. Shared Dispositive Power 290,135 shares ⁽¹⁾


11.		Aggregate Amount Beneficially Owned by Each Reporting Person 290,135 shares ⁽¹⁾
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
13.		Percent of Class Represented by Amount in Row (11) 9.9%
14.		Type of Reporting Person (See Instructions) HC, OO

⁽¹⁾	Represents 290,135 shares of Series A Preferred Stock initially convertible into common stock of the Issuer as noted above.

SCHEDULE 13D

CUSIP No. 380 20R 30 4


1.		Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Steven C. Chang
2.		Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.		SEC Use Only
4.		Source of Funds (See Instructions) WC, AF
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
6.		Citizenship or Place of Organization United States


Number of Shares Beneficially Owned by Each Reporting Person With		7. Sole Voting Power 0
		8. Shared Voting Power 290,135 shares ⁽¹⁾
		9. Sole Dispositive Power 0
		10. Shared Dispositive Power 290,135 shares ⁽¹⁾


11.		Aggregate Amount Beneficially Owned by Each Reporting Person 290,135 shares ⁽¹⁾
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
13.		Percent of Class Represented by Amount in Row (11) 9.9%
14.		Type of Reporting Person (See Instructions) IN, HC

⁽¹⁾	Represents 290,135 shares of Series A Preferred Stock initially convertible into common stock of the Issuer as noted above.

SCHEDULE 13D

CUSIP No. 380 20R 30 4


1.		Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) José E. Feliciano
2.		Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) x
3.		SEC Use Only
4.		Source of Funds (See Instructions) WC, AF
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
6.		Citizenship or Place of Organization United States


Number of Shares Beneficially Owned by Each Reporting Person With		7. Sole Voting Power 0
		8. Shared Voting Power 290,135 shares ⁽¹⁾
		9. Sole Dispositive Power 0
		10. Shared Dispositive Power 290,135 shares ⁽¹⁾


11.		Aggregate Amount Beneficially Owned by Each Reporting Person 290,135 shares ⁽¹⁾
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
13.		Percent of Class Represented by Amount in Row (11) 9.9%
14.		Type of Reporting Person (See Instructions) IN, HC

⁽¹⁾	Represents 290,135 shares of Series A Preferred Stock initially convertible into common stock of the Issuer as noted above.

SCHEDULE 13D

ITEM 1.

SECURITY AND ISSUER.

This Statement (this “Schedule 13D”) relates to the Common Stock, par value $0.01 per share (the “Common Stock”), of GoAmerica, Inc., a Delaware corporation (“GoAmerica” or “Issuer”). The principal executive offices of the Issuer are located at 433 Hackensack Avenue, Hackensack, NJ 07601.

ITEM 2.

IDENTITY AND BACKGROUND.

(a) This Schedule 13D is being filed jointly on behalf of CCP A, L.P., a Delaware limited partnership (“CCP A”), Clearlake Capital Partners, LLC, a Delaware limited liability company (“CCP”), CCG Operations, LLC, a Delaware limited liability company (“CCG”), Steven C. Chang, a United States Citizen (“Mr. Chang”) and José E. Feliciano, a United States citizen (“Mr. Feliciano”). CCP A, CCP, CCG, Mr. Chang and Mr. Feliciano (collectively, the “Reporting Persons”) are filing this statement jointly, pursuant to the provisions of Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, and not as separate persons. A Joint Filing Agreement among the Reporting Persons is attached hereto as Exhibit 1.

(b) The address of each Reporting Person’s principal office is located at 650 Madison Avenue, 23^rd Floor, New York, NY, 10022.

(c) The principal business of CCP A is making investments and managing assets. The principal business of CCP is serving as General Partner of CCP A and similar funds. The principal business of CCG is serving as Managing Member of CCP. The Managers of CCG are Mr. Chang and Mr. Feliciano. The principal occupation of each of Mr. Chang and Mr. Feliciano is to serve as a principal of CCG.

(d) During the last five years, none of the Reporting Persons has been convicted in any criminal proceeding (excluding traffic violations and other similar misdemeanors).

(e) During the last five years, none of the Reporting Persons has been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which such person was or is subject to any judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or finding any violation with respect to such laws.

(f) Each of Mr. Chang and Mr. Feliciano is a Unites States citizen.

ITEM 3.

SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.

On August 1, 2007, the Issuer entered into a stock purchase arrangement (the “Transaction”) with CCP A, whereby the Issuer issued to CCP A 290,135 shares of Series A Preferred Stock (the “Series A Preferred Stock”) which, as of August 1, 2007, is convertible into 290,135 shares of Common Stock. CCP A paid the Issuer $1,499,997.95 in cash consideration for the 290,135 shares of Series A Preferred Stock. The funds for such purchase were obtained from the working capital of CCP A.

ITEM 4.

PURPOSE OF TRANSACTION.

On August 1, 2007, CCP A entered into agreements with the Issuer to finance the Issuer’s acquisition of the assets of Verizon’s Telecommunications Relay Services (“TRS”) division for $50 million in cash and up to an additional $8 million in contingent cash consideration (the “Acquisition”). In addition to the 290,135 shares of Series A Preferred Stock acquired by CCP A on August 1, 2007, CCP A has agreed to purchase an additional 6,479,691 shares of Series A Preferred Stock at a price of $5.17 per share, subject to certain conditions, upon consummation of the Acquisition (the “Additional Investment”). CCP A has made a further time-specific commitment, subject to certain conditions, to purchase up to 2,901,354 shares of Series A Preferred Stock at a purchase price of $5.17 per share.

The Series A Preferred Stock accrues cumulative cash dividends at the rate of 8% per annum, compounded quarterly. Upon conversion of the Series A Preferred Stock into Common Stock, any accrued and unpaid dividends

on the Series A Preferred Stock will be converted into additional shares of Common Stock at an initial conversion price of $5.17 per share subject to specified limitations in the Certificate of Designation for the Series A Preferred Stock.

The terms of the Series A Preferred Stock provide CCP A with an immediate right to one new seat on the Issuer’s Board of Directors. Upon the closing of the Additional Investment, CCP A is expected to have the right to appoint three members of the Issuer’s Board of Directors.

The Reporting Persons acquired the Series A Preferred Stock for investment purposes. They intend to monitor and evaluate their investment in the Series A Preferred Stock on a continuing basis. The Reporting Persons may, however, at any time and from time to time in their discretion, review or reconsider their position with respect to the Series A Preferred Stock and any such matters. In addition to the additional investments identified above, the Reporting Persons retain the right to (a) change their investment intent, (b) make further acquisitions of the Series A Preferred Stock and/or Common Stock from one or more sellers in the open market or otherwise, (c) dispose of all or a portion of the Issuer’s Series A Preferred Stock and/or Common Stock in the open market or otherwise, (d) acquire or dispose of beneficial ownership of other securities of the Issuer, (e) review the performance of the Issuer with the Issuer’s management and/or board of directors, (f) communicate with other stockholders of the Issuer, and/or (g) take any other action with respect to the Issuer, its stockholders or any of the Issuer’s debt or equity securities, including, but not limited to, the Series A Preferred Stock and Common Stock, in any manner permitted by law.

ITEM 5.

INTEREST IN SECURITIES OF THE ISSUER.

(a)-(b) The shares of Common Stock identified pursuant to Item 1 currently constitute approximately 9.9% of the outstanding shares of Common Stock of the Issuer, based on 2,944,314 shares of Common Stock (including options and warrants exercisable for shares of Common Stock) outstanding as of August 1, 2007, as reported by the Issuer in the 290,135 Series A Preferred Stock Purchase Agreement, and include 290,135 shares of Common Stock issuable upon conversion of the Series A Preferred Stock (the “Beneficially Owned Stock”), computed in accordance with Rule 13d-3(d)(1). CCP, CCG, Mr. Chang and Mr. Feliciano may be deemed to beneficially own 290,135 shares of Common Stock (9.9% of the outstanding shares), and each of the Reporting Persons has shared voting and dispositive power of such beneficially owned shares with all of the other Reporting Persons.

(c) Other than as described in Item 6 below, no Reporting Person has effected any transaction in the Series A Preferred Stock or Common Stock of the Issuer within the past 60 days.

(d)-(e) Not applicable.

ITEM 6.

CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.

Other than as set forth herein or in the Stock Purchase Agreement (as shown on Exhibit 7.02, the “First Stock Purchase Agreement”), the Stock Purchase Agreement (as shown on Exhibit 7.03, the “Second Stock Purchase Agreement”), the Credit Agreement (as shown on Exhibit 7.04, the “Credit Agreement”), the Investor Rights Agreement (as shown on Exhibit 7.05, the “Investor Rights Agreement”), the Guarantee and Collateral Agreement (as shown on Exhibit 7.06, the “Guarantee and Collateral Agreement”), the First Lien Debt Commitment Letter (as shown on Exhibit 7.07, the “First Lien Debt Commitment Letter”), and the Second Lien Debt Commitment Letter (as shown on Exhibit 7.08, the “Second Lien Debt Commitment Letter”), which are incorporated herein by reference, the Reporting Persons have no plans or proposals that relate to or would result in any of the events set forth in Item 4 of this Schedule 13D.

First Stock Purchase Agreement:

On August 1, 2007, the Issuer entered into the First Stock Purchase Agreement with CCP A. Under the agreement, CCP A paid the Issuer $1,499,997.95 in cash consideration for the 290,135 shares of Series A Preferred Stock.

Second Stock Purchase Agreement:

On August 1, 2007, the Issuer entered into the Second Stock Purchase Agreement with CCP A. Under the agreement, CCP A has agreed to purchase 6,479,691 shares of Series A Preferred Stock at a price of $5.17 per share, subject to certain conditions , upon consummation of the Acquisition, and CCP A has made a further time-specific commitment, subject to certain conditions, to purchase up to 2,901,354 shares of Series A Preferred Stock at a purchase price of $5.17 per share.

Credit Agreement:

On August 1, 2007, the Issuer entered into a Credit Agreement with CCP A, as lender, and CCG, as administrative agent and collateral agent. Under the Credit Agreement, CCP A extended an initial loan in the aggregate principal amount of $1,000,000.00 to the Issuer and agreed to extend an additional aggregate principal amount of $2,500,000.00 in loans to the Issuer thereafter, subject to the satisfaction of certain conditions. All obligations under the Credit Agreement are secured by the Guarantee and Collateral Agreement. The maturity date of the loans is the earlier of August 2, 2008, the consummation of the Acquisition, or the date 90 days after the termination of the definitive asset purchase agreement for the Acquisition.

Investor Rights Agreement:

On August 1, 2007, the Issuer entered into an Investor Rights Agreement with CCP A, as sponsor. The Investor Rights Agreement provides CCP A with certain demand, shelf and piggyback registration rights. The Issuer is responsible for the expenses in connection with exercises of any of the foregoing registration rights. In addition, under the terms of the Investor Rights Agreement, CCP A has preemptive rights in the event the Issuer issues any new equity securities.

Guarantee and Collateral Agreement:

On August 1, 2007, the Issuer and certain of its subsidiaries entered into a Guarantee and Collateral Agreement with CCG, as collateral agent, in order to secure the obligations under the Credit Agreement. The Guarantee and Collateral Agreement creates a lien on substantially all of the assets of the Issuer and the subsidiaries party to the agreement in favor of CCG.

First Lien Debt Commitment:

On August 1, 2007, the Issuer entered into a First Lien Debt Commitment Letter with CCP A giving the Issuer the right to require CCP A, subject to the satisfaction of certain conditions, to provide certain debt financing for the Issuer to finance the Acquisition, for the Issuer’s expenses and working capital purposes and for the repayment of certain of the Issuer’s existing secured debt. The financing is to be structured as a $30 million first lien term loan or note issuance.

Second Lien Debt Commitment Letter:

On August 1, 2007, the Issuer entered into a Second Lien Debt Commitment Letter with CCP A giving the Issuer the right to require CCP A, subject to the satisfaction of certain conditions, to provide certain debt financing for the Issuer for the Issuer’s working capital purposes and to finance investments and acquisitions other than the Acquisition. The requested financing is to be structured as a $40 million second lien term loan or note issuance.

ITEM 7.

MATERIALS TO BE FILED AS EXHIBITS.

Exhibit 7.01 Joint Filing Agreement

Exhibit 7.02 Stock Purchase Agreement, dated as of August 1, 2007

Exhibit 7.03 Stock Purchase Agreement, dated as of August 1, 2007

Exhibit 7.04 Credit Agreement, dated as of August 1, 2007

Exhibit 7.05 Investor Rights Agreement, dated as of August 1, 2007

Exhibit 7.06 Guarantee and Collateral Agreement, dated as of August 1, 2007

Exhibit 7.07 First Lien Debt Commitment Letter, dated as of August 1, 2007

Exhibit 7.08 Second Lien Debt Commitment Letter, dated as of August 1, 2007

[Signature Pages Follow]

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.


Date: August 13^th, 2007	CCP A, L.P., a Delaware limited partnership

	By:	Clearlake Capital Partners, LLC
	Its:	General Partner

	By:	CCG Operations, LLC
	Its:	Managing Member

	Clearlake Capital Partners, LLC

	By:	CCG Operations, LLC
	Its:	Managing Member

	CCG Operations, LLC

	Each of the above by:



								/s/ Behdad Eghbali
								Name: Behdad Eghbali
								Its: Authorized Person


						STEVEN CHANG



								/s/ Steven Chang
								Name: Steven Chang


						JOSÉ FELICIANO



								/s/ José Feliciano
								Name: José Feliciano

EX-7.01 2 dex701.htm JOINT FILING AGREEMENT Joint Filing Agreement

EXHIBIT 7.01

JOINT FILING AGREEMENT

In accordance with Rule 13d-1(k)(1) of the Securities Exchange Act of 1934, as amended, the undersigned agree to the joint filing on behalf of each of them of a Statement on Schedule 13D (including any and all amendments thereto) with respect to the Common Stock of GoAmerica, Inc., and further agree that this Agreement shall be included as an exhibit to such joint filings.

The undersigned further agree that each party hereto is responsible for timely filing of such Statement on Schedule 13D and any amendments thereto, and for the completeness and accuracy of the information concerning such party contained therein; provided that no party is responsible for the completeness or accuracy of the information concerning the other party, unless such party knows or has reason to believe that such information is inaccurate.

This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original instrument, but all of such counterparts together shall constitute but one agreement.

[Signature Page Follows]

In evidence thereof the undersigned, being duly authorized, hereby execute this Joint Filing Agreement this __ of August, 2007.


						CCP A, L.P., a Delaware limited partnership

						By:		Clearlake Capital Partners, LLC
						Its:		General Partner

						By:		CCG Operations, LLC
						Its:		Managing Member

						Clearlake Capital Partners, LLC

						By:		CCG Operations, LLC
						Its:		Managing Member

						CCG Operations, LLC

						Each of the above by:

						By:		/s/ Behdad Eghbali
						Name: Behdad Eghbali
						Its: Authorized Person

						STEVEN CHANG

						By:		/s/ Steven Chang
						Name: Steven Chang

						JOSÉ FELICIANO

						By:		/s/ José Feliciano
						Name: José Feliciano

EX-7.02 3 dex702.htm STOCK PURCHASE AGREEMENT Stock Purchase Agreement

Exhibit 7.02

Execution Copy

GOAMERICA, INC.

STOCK PURCHASE AGREEMENT

290,135 SHARES OF SERIES A PREFERRED STOCK

August 1, 2007

SCHEDULES AND EXHIBITS



SCHEDULE A		Schedule of Investors

SCHEDULE B		Schedule of Exceptions

SCHEDULE C		Operating Subsidiaries

SCHEDULE D		Insurance

EXHIBIT A		Certificate of Designations

EXHIBIT B		Investor Rights Agreement

EXHIBIT C		Opinion of Company Counsel

EXHIBIT D		Compliance Certificate

SERIES A PREFERRED STOCK PURCHASE AGREEMENT

THIS SERIES A PREFERRED STOCK PURCHASE AGREEMENT (this “Agreement”) is made as of August 1, 2007, by and between GoAmerica, Inc., a Delaware corporation (the “Company”), and the investors listed on Schedule A hereto (each, an “Investor” and collectively, the “Investors”).

THE PARTIES HEREBY AGREE AS FOLLOWS:

1. Purchase and Sale of Stock.

1.1 Sale and Issuance of Series A Preferred Stock.

(a) The Board of Directors of the Company has approved, and the Company shall file with the Secretary of State of the State of Delaware on or before the Closing (as defined below), a Certificate of Designations in the form attached hereto as Exhibit A (the “Certificate of Designations”).

(b) The Board of Directors of the Company has authorized (i) the sale and issuance to the Investors of the Series A Preferred Stock (as defined below) and (ii) the issuance of the shares of Common Stock (as defined below) to be issued upon conversion of the Series A Preferred Stock (the “Conversion Shares”). The Series A Preferred Stock and the Conversion Shares shall have the rights, preferences, privileges and restrictions set forth in the Certificate of Designations.

(c) Subject to the terms and conditions of this Agreement, each Investor agrees, severally and not jointly, to purchase at the Closing (as defined below) and the Company agrees to sell and issue to each Investor at the Closing, that number of shares of the Company’s Series A Preferred Stock set forth opposite each Investor’s name on Schedule A hereto for a purchase price of $5.17 per share.

1.2 Signing and Closing. This Agreement is being executed concurrently with the signing of that certain asset purchase agreement (the “Asset Purchase Agreement”), dated as the date hereof, by and between Acquisition 1 Corp., a wholly-owned subsidiary of the Company, and MCI Communications Services, Inc., providing for the Company’s purchase of a telecommunications relay services business (the “Business”). The purchase and sale of the Series A Preferred Stock hereunder shall take place at the offices of Lowenstein Sandler PC, 65 Livingston Avenue, Roseland, New Jersey 07068 promptly following the filing of the Certificate of Designations with the Secretary of State of the State of Delaware (which time and place are designated as the “Closing”). At the Closing, the Company shall deliver to each Investor a certificate representing the Series A Preferred Stock that such Investor is purchasing against payment of the purchase price therefor by wire transfer of immediately available funds to an account designated by the Company.

1.3 Use of Proceeds. The Company shall use the proceeds from the sale of the Series A Preferred Stock to the Investors (a) for general working capital purposes, (b) to pay the $1,000,000 deposit payable upon execution of the Asset Purchase Agreement and (c) to pay fees and expenses incurred in connection with the foregoing.

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1.4 Transaction Fee. Concurrently with the Closing, the Company shall pay to the Investors by wire transfer of immediately available funds (to the account or accounts designated by the Investors prior to the Closing), an aggregate transaction fee of $40,000.

2. Representations and Warranties of the Company. The Company hereby represents and warrants to each Investor that, except as set forth in the SEC Reports (as defined below) or on the Schedule of Exceptions (the “Schedule of Exceptions”) furnished to each Investor prior to execution hereof and attached hereto as Schedule B, which exceptions shall be deemed to be representations and warranties as if made hereunder:

2.1 Organization, Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse change in the assets, liabilities, customer or supplier relationships, financial condition, operations or results of operations of the Company and the Business taken as a whole, provided, however, in each case, not including any change that (A) is generally applicable to the U.S. economy, (B) is generally applicable to Internet protocol data and voice providers, (C) results from the execution of the Asset Purchase Agreement, the announcement of the Asset Purchase Agreement or the consummation of the transactions contemplated by the Asset Purchase Agreement or (D) relates to changes in generally accepted accounting principles generally applicable to companies serving as Internet protocol data and voice providers occurring after the date of the Asset Purchase Agreement (a “Material Adverse Effect”).

2.2 Capitalization and Voting Rights.

(a) Authorized Stock. The authorized capital of the Company consists of:

(i) Preferred Stock. 4,351,943 shares of Preferred Stock, par value $.01 per share (the “Preferred Stock”), none of which are issued or outstanding as of the date hereof. Upon filing the Certificate of Designations with the Secretary of State of the State of Delaware, 290,135 shares of Preferred Stock shall be designated Series A Preferred Stock (the “Series A Preferred Stock”), all of which shall be sold pursuant to this Agreement; and

(ii) Common Stock. 200,000,000 shares of Common Stock, par value $.01 per share (“Common Stock”), of which 2,486,668 shares are issued and outstanding as of the date hereof, and 24,063 shares are held in treasury as of the date hereof.

(b) Valid Issuance. The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable, and were issued in compliance with all applicable state and federal laws concerning the issuance of securities.

(c) Rights to Acquire. Except for (i) options to purchase an aggregate of 83,191 shares of Common Stock granted and outstanding under the GoAmerica Communications Corp. 1999 Stock Option Plan, the

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GoAmerica, Inc. 1999 Stock Plan, the GoAmerica, Inc. Employee Stock Purchase Plan and the GoAmerica, Inc. 2005 Equity Compensation Plan (collectively, the “Company Option Plans”) and (ii) warrants to purchase an aggregate of 84,320 shares of Common Stock granted and outstanding, there are not outstanding any options, warrants, rights (including conversion or preemptive rights) or agreements for the purchase or acquisition from the Company of any shares of its capital stock as of the date hereof. The Company has reserved a total of 272,478 shares of Common Stock for issuance under the Company Option Plans (including the shares described above).

(d) Voting of Shares. Other than the Investor Rights Agreement, dated as of the date hereof, a copy of which is attached hereto as Exhibit B (the “Investor Rights Agreement”), the Company is not a party or subject to any agreement or understanding and, to the Company’s knowledge, there is no agreement or understanding between any persons and/or entities which affects or relates to the voting or giving of written consents with respect to any security of the Company.

2.3 Operating Subsidiaries.

(a) Schedule C hereto sets forth the name of each operating subsidiary of the Company (each, an “Operating Subsidiary” and collectively, the “Operating Subsidiaries”) and the jurisdiction in which such Operating Subsidiary is incorporated. Each Operating Subsidiary is a duly organized and validly existing corporation or other entity and has all requisite corporate power and authority to carry on its business as now conducted. Each Operating Subsidiary is duly qualified to transact business and is in good standing in each jurisdiction in which the failure so to qualify would have a Material Adverse Effect.

(b) All of the outstanding shares of capital stock of each Operating Subsidiary of the Company are duly and validly authorized and issued, fully paid and non-assessable and are owned directly by the Company, free and clear of all liens, encumbrances, preemptive rights, subscription rights, other rights to purchase, voting or transfer restrictions and other claims, except as set forth in or contemplated by the Credit Agreement. There are no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any equity interests of any Operating Subsidiary.

(c) Each subsidiary of the Company that is not an Operating Subsidiary (i) has consolidated gross revenues for the period of four fiscal consecutive quarters most recently ended of less than $5,000, (ii) has consolidated total assets on the last day of the fiscal quarter most recently ended of less than $5,000 and (iii) does not own or possess the right to use any Intellectual Property Rights or other assets that are material to the business of the Company and its subsidiaries, taken as a whole. For purposes of this Agreement, the terms “subsidiary” and “subsidiaries” of any person means any corporation, partnership, joint venture, limited liability company, association or other legal entity of which such person (either alone or through or together with any other subsidiary), owns, directly or indirectly, 50% or more of the stock or other equity interests the holder of which is generally entitled to vote for the election of the board of directors or other governing body of such corporation, partnership, joint venture, limited liability company, association or other legal entity.

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2.4 Authorization. Other than the filing of the Certificate of Designations with the Secretary of State of the State of Delaware and filings required under federal and state securities laws, all corporate action on the part of the Company, its directors and stockholders necessary for the authorization, execution and delivery by the Company of this Agreement and the Investor Rights Agreement, the performance of all obligations of the Company hereunder and thereunder, and the authorization, sale, issuance and delivery of the Series A Preferred Stock being sold hereunder and the Conversion Shares issuable upon conversion of the Series A Preferred Stock has been taken or will be taken prior to the Closing. This Agreement and the Investor Rights Agreement constitute valid and legally binding obligations of the Company, enforceable in accordance with their respective terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.

2.5 Valid Issuance of Preferred Stock. The Series A Preferred Stock that is being purchased by the Investors hereunder, when issued, sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued, fully paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer (a) under this Agreement and the Investor Rights Agreement, (b) under applicable state and federal securities laws and (c) otherwise imposed as a result of actions taken by the Investors. The Conversion Shares have been duly and validly reserved for issuance and, upon issuance in accordance with the terms of the Certificate of Designations, will be duly and validly issued, fully paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer (a) under this Agreement and the Investor Rights Agreement, (b) under applicable state and federal securities laws and (c) otherwise imposed as a result of actions taken by the Investors.

2.6 Governmental Consents. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority on the part of the Company is required in connection with the consummation of the transactions contemplated by this Agreement, except for (i) such consents, approvals, orders, authorizations, registrations, qualifications, designations, declarations or filings which are not required to be obtained prior to the Closing, (ii) the filing of the Certificate of Designations with the Secretary of State of the State of Delaware, (iii) the filing with The Nasdaq Stock Market, Inc. (“Nasdaq”) of an application to list the Conversion Shares and (iv) such filings as are required pursuant to applicable federal and state securities laws and blue sky laws, which filings will be effected within the required statutory period.

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2.8 Litigation. There is no action, suit, proceeding or investigation pending or, to the Company’s knowledge, currently threatened against the Company that questions the validity of this Agreement, the Asset Purchase Agreement, the Managed Services Agreement (as defined below) or the Investor Rights Agreement, or the right of the Company to enter into such agreements or to consummate the transactions contemplated hereby, or that would reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect or in any change in the current equity ownership of the Company. Neither the Company nor any Operating Subsidiary is a party or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality.

2.9 Asset Purchase Agreement and Managed Services Agreement. The Company has delivered to counsel to the Investors true and complete copies of the Managed Services Agreement, dated as of the date hereof, by and between the Company and Stellar Nordia Services LLC, a Nevada limited liability company (the “Managed Services Agreement” and, together with the Asset Purchase Agreement and the documents referenced in both of the Asset Purchase Agreement and the Managed Services Agreement pertaining to the acquisition described in the Asset Purchase Agreement, the “Operative Agreements”). All corporate action on the part of the Company, its directors and stockholders necessary for the authorization, execution and delivery by the Company of the Operative Agreements and the performance of all obligations of the Company thereunder has been taken or will be taken prior to the closing provided for in the Asset Purchase Agreement. The Operative Agreements will constitute, when executed, valid and legally binding obligations of the Company, and will be enforceable in accordance with their respective terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority on the part of the Company is required in connection with the consummation of the transactions contemplated by the Operative Agreements, except as described in the Asset Purchase Agreement and the Schedules thereto as of the date hereof.

2.10 Intellectual Property. Except as would not have a Material Adverse Effect:

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items as have yet to be conceived or developed or that are expected to be available for licensing on reasonable terms. Since January 1, 2006, there have been no written claims made against the Company or any subsidiary asserting the invalidity, misuse or unenforceability of any Intellectual Property Rights that the Company or any subsidiary owns and, to the Company’s knowledge, there are no valid grounds for the same. Since January 1, 2006, neither the Company nor any subsidiary has received any communications alleging that the Company or any subsidiary has violated, infringed or misappropriated any Intellectual Property Rights of any other person or entity. To the Company’s knowledge, neither the Company nor any subsidiary is violating, infringing or misappropriating the Intellectual Property Rights of any other person or entity. Since January 1, 2006, to the Company’s knowledge, no third party has interfered with, infringed upon, violated, misappropriated, or otherwise come into conflict with any of the Company’s or any of its Operating Subsidiary’s Intellectual Property Rights, or of any right of any third party (to the extent licensed by or through the Company or its Operating Subsidiaries), or breached any license or agreement involving Intellectual Property Rights. Except as set forth on the Schedule of Exceptions, the Company has not brought any action, suit or proceeding or asserted any claim against any person or entity related to the foregoing. The Company is not aware that any of its employees is obligated under any contract (including licenses, covenants or commitments of any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency, that would interfere with the use of his or her best efforts to promote the interests of the Company or that would prevent the employee from assigning his/her inventions to the Company.

(b) Neither the execution nor delivery of this Agreement, the Operative Agreements or the Investor Rights Agreement, nor the carrying on of the Company’s business by the employees of the Company, nor the employment of any employee of the Company, will, to the Company’s knowledge, conflict with or result in a breach of the terms, conditions or provisions of, or constitute a default under, any contract, covenant or instrument under which any of such employees is now obligated, including but not limited to, any employment contract, patent disclosure agreement, confidentiality agreement or any other contract or agreement relating to the relationship of any such employee with the Company.

(c) For purposes of this Agreement, “Intellectual Property Rights” means all (i) patents, patent applications, patent disclosures and inventions, (ii) trademarks, service marks, trade names, logos and corporate names and registrations and applications for registration thereof, (iii) copyrights (registered and unregistered) and copyrightable works and registrations and applications for registration thereof, (iv) mask works and registrations and applications for registration thereof, (v) computer software, data, databases and documentation thereof, (vi) trade secrets and other confidential information (including, without limitation, ideas, formulas, compositions, inventions (whether patentable or unpatentable and whether or not reduced to practice), know-how, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, financial and marketing plans and customer and supplier lists and information) and (vii) other intellectual property rights. As used in this Agreement, the phrases “to the Company’s knowledge” and “the Company is not aware” or any similar expression or phrase refers to the actual knowledge of the executive officers of the Company (and does not include any constructive or imputed notice of any information).

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2.11 Compliance with Other Instruments. The Company is not in violation of any provision of its certificate of incorporation or Bylaws. Neither the Company nor any of its subsidiaries is in violation of any instrument, judgment, order, writ, decree or contract, statute, rule or regulation to which the Company or any subsidiary is subject and a violation of which would reasonably be expected to result in a Material Adverse Effect. The execution, delivery and performance of this Agreement, the Operative Agreements and the Investor Rights Agreement, and the consummation of the transactions contemplated hereby and thereby will not result in any such violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision, instrument, judgment, order, writ, decree or contract or an event that results in the creation of any lien, charge or encumbrance upon any assets of the Company or any subsidiary or the suspension, revocation, impairment, forfeiture or nonrenewal of any material permit, license, authorization or approval applicable to the Company or any subsidiary, their business or operations or any of their assets or properties, other than conflicts, defaults or other results which would not reasonably be expected to result in a Material Adverse Effect.

2.12 Agreements; Action.

(a) Except for agreements explicitly contemplated hereby, there are no agreements, written or oral, between the Company and any subsidiary and any of their officers, directors or affiliates.

(b) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company or any subsidiary is a party or by which any of them is bound that may involve the license of any Intellectual Property Rights or other proprietary right to or from the Company (other than licenses entered into in the ordinary course of business).

(c) There are no agreements, commitments, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company or any subsidiary is a party or by which they are bound that may involve (i) obligations (contingent or otherwise), or payments to the Company or any subsidiary, in excess of $250,000, other than obligations of, or payments to, the Company or any subsidiary arising from agreements entered into in the ordinary course of business, or (ii) provisions materially restricting the development, manufacture or distribution of the Company’s products or services (collectively, “Material Contracts”). The Material Contracts are valid and in full force and effect as to the Company and any Operating Subsidiary, and, to the Company’s knowledge, to the other parties thereto.

(d) With the exception of the indebtedness of the Company and its subsidiaries under that certain Credit Agreement of even date herewith (the “Credit Agreement”) by and among the Company, Clearlake Capital Group, LP, as Administrative Agent and Collateral Agent and the Lenders party thereto (the “Debt Financing”), neither the Company nor any subsidiary has outstanding any indebtedness for money borrowed (which, for clarity, the parties agree does not include accounts payables or other trade payables, capital leases or accrued expenses) in excess of $250,000 or, in the case of indebtedness for money borrowed individually less than $250,000, in excess of $5,000,000 in the aggregate, other than liabilities incurred in the ordinary course of business.

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(e) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

2.13 Related Party Transactions Since the filing of the last SEC Report (as defined below), there have been no related party transactions that would be required to be disclosed in the SEC Reports pursuant to Item 404(a) of the SEC’s Regulation S-K that have not been so disclosed in the SEC Reports.

2.14 SEC Filings; Financial Statements

(a) The Company has timely filed all reports and proxy statements (including all information incorporated therein, amendments and supplements thereto) required to be filed by the Company with the Securities and Exchange Commission (the “SEC”) since January 1, 2005 (all reports filed by the Company under the Securities Exchange Act of 1934, and the applicable rules and regulations promulgated thereunder since January 1, 2006, including any amendments thereto, collectively, the “SEC Reports”). As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Exchange Act of 1934, and the applicable rules and regulations promulgated thereunder. As of the time of filing with the SEC, none of the SEC Reports so filed contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(b) The audited consolidated financial statements of the Company (including any related notes thereto) included in the SEC Reports (the “Year-End Statements”) have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of the Company and its subsidiaries at the respective dates thereof and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company and its subsidiaries for the periods indicated. The unaudited consolidated financial statements of the Company (including any related notes thereto) for all interim periods included in the SEC Reports (together with the Year-End Statements, the “Financial Statements”) have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of the Company and its subsidiaries at of the respective dates thereof and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company and its subsidiaries for the periods indicated (subject to normal and recurring period-end adjustments that have not been and are not expected to be material to the Company and its subsidiaries taken as a whole).

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(c) To the Company’s knowledge, except as set forth in the Financial Statements, the Schedule of Exceptions or the Operative Agreements, or with respect to the Debt Financing, the Company has no material liabilities, contingent or otherwise, other than (a) liabilities incurred in the ordinary course of business subsequent to March 31, 2007 and (b) liabilities or obligations under contracts and commitments incurred in the ordinary course of business or otherwise not required under generally accepted accounting principles to be reflected in the Financial Statements. Except as disclosed in the Financial Statements, neither the Company nor any subsidiary is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation, other than the Company or any subsidiary. The Company maintains a system of accounting established and administered in accordance with generally accepted accounting principles.

2.15 Changes. Since March 31, 2007, except as would not reasonably be expected to have a Material Adverse Effect and except as contemplated by the transactions associated with the Operative Agreements and the Debt Financing, there has not been:

(a) any change in the assets, liabilities, financial condition or operating results of the Company and its subsidiaries, taken as a whole, from that reflected in the Financial Statements, except changes in the ordinary course of business;

(b) any material change or amendment to a material contract or arrangement by which the Company or any of its assets or properties is bound or subject;

(c) any sale, assignment, pledge, grant of security interest or transfer of any patents, trademarks, copyrights, trade secrets or other intangible assets;

(d) any resignation or termination of employment of any key employee of the Company and its Operating Subsidiaries;

(e) any mortgage, pledge, transfer of a security interest in, or lien, created by the Company or any subsidiary, with respect to any of its material properties or assets, except liens for taxes not yet due or payable; or

(f) any agreement or commitment by the Company or any subsidiary to do any of the things described in this Section 2.15.

2.16 Tax Returns, Payments and Elections. The Company has timely filed all tax returns (federal, state and local) required to be filed by it, which tax returns are true and correct in all material respects. The Company has paid all taxes and other assessments due, if any, except those contested by it in good faith that are listed in the Schedule of Exceptions. Except as set forth in the Schedule of Exceptions, none of the Company’s federal income tax returns and none of its state income or franchise tax or sales or use tax returns has ever been audited by governmental authorities and, as of the date hereof, to the Company’s knowledge, there is no such audit pending or threatened. Since March 31, 2007, the Company has not incurred any taxes, assessments or governmental charges other than in the ordinary course of business and the Company has made adequate provisions on its books of account for all taxes, assessments and governmental charges with respect to its business, properties and operations for such period. Except as would not constitute a Material Adverse Effect, the Company has

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withheld or collected from each payment made to each of its employees, the amount of all taxes (including, but not limited to, federal income taxes, Federal Insurance Contribution Act taxes and Federal Unemployment Tax Act taxes) required to be withheld or collected therefrom, and has paid the same to the proper tax receiving officers or authorized depositories.

2.17 Permits. The Company and its Operating Subsidiaries have all franchises, permits, licenses and any similar authority necessary for the conduct of their respective businesses as now being conducted by them, the lack of which would result in a Material Adverse Effect. Neither the Company nor any Operating Subsidiary is in default in any material respect under any of such franchises, permits, licenses or other similar authority. To the Company’s knowledge, neither the Company nor any Operating Subsidiary has received notification of proceedings relating to revocation or modification of any such franchises, permits, licenses or other similar authority.

2.18 Environmental and Safety Laws. To the Company’s knowledge, the Company and its subsidiaries are in compliance in all material respects with all applicable statutes, laws and regulations relating to the environment or occupational health and safety and, to the Company’s knowledge, no material expenditures are or will be required in order to comply with any such existing statute, law or regulation. Neither the Company nor any subsidiary has received any written communication from a governmental authority with respect to any material violation of such statutes, laws or regulations.

2.19 Disclosure. Neither this Agreement (including all the exhibits and schedules hereto) nor any certificates made or delivered in connection herewith contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements herein or therein not misleading in light of the circumstances under which they were made.

2.20 Title to Property and Assets. The property and assets that the Company or any subsidiary owns are owned by the Company or that subsidiary free and clear of all mortgages, liens, loans and encumbrances, except (i) for statutory liens for the payment of current taxes that are not yet delinquent, (ii) for liens, encumbrances and security interests that arise in the ordinary course of business and that do not secure indebtedness for borrowed money (which, for clarity, the parties agree does not include accounts payables or other trade payables, capital leases or accrued expenses) or guarantees thereof, and (iii) defects in title, none of which, individually or in the aggregate, materially impair the Company’s or the subsidiary’s ownership or use of such property or assets. With respect to the property and assets the Company or any subsidiary leases, the Company or the subsidiary, as applicable, is in compliance with such leases except where the failure to be in compliance would not constitute a Material Adverse Effect and, to its knowledge, holds a valid leasehold interest free of any liens, claims or encumbrances, subject to clauses (i), (ii) and (iii).

2.21 Employee Benefit Plans. The Company does not have or contribute to any “employee benefit plan” as such term is defined in the Employee Retirement Income Security Act of 1974 (“ERISA”) that is subject to Title IV of ERISA or the funding requirements of Section 412 of the Internal Revenue Code of 1986, as amended.

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2.22 Labor Agreements and Actions. Neither the Company nor any subsidiary is bound by or subject to any contract, commitment or arrangement with any labor union. Except as disclosed in the SEC Reports, neither the Company nor any subsidiary is a party to or bound by any currently effective material employment contract, deferred compensation agreement, bonus plan, incentive plan, profit sharing plan, retirement agreement or other employee compensation agreement. To the Company’s knowledge, the Company and each subsidiary has complied in all material respects with all applicable state and federal equal employment opportunity and other laws related to employment.

2.23 Insurance. The Company and its Operating Subsidiaries have in full force and effect the insurance policies listed on Schedule D hereto. There are no claims in excess of $100,000 in the aggregate pending against the Company under any insurance policies currently in effect, or by the Company against any of its insurance carriers and covering the property, business or employees of the Company, and all premiums due and payable with respect to the policies maintained by the Company have been paid.

2.24 Fees. Except as set forth in the Schedule of Exceptions, the Company has no contract, arrangement or understanding with any broker, finder or similar agent with respect to the transactions contemplated by this Agreement.

3. Representations and Warranties of the Investors. Each Investor severally and not jointly hereby represents, warrants and covenants that:

3.1 Authorization. Such Investor has full power and authority to enter into this Agreement and the Investor Rights Agreement, and each such agreement constitutes its valid and legally binding obligation, enforceable in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (b) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, and (c) to the extent the indemnification provisions contained in the Investor Rights Agreement may be limited by applicable federal or state securities laws.

3.2 Purchase Entirely for Own Account. This Agreement is made with such Investor in reliance upon such Investor’s representation to the Company, which by such Investor’s execution of this Agreement such Investor hereby confirms, that the Series A Preferred Stock to be received by such Investor and the Conversion Shares issuable upon conversion thereof (collectively, the “Securities”) will be acquired for investment for such Investor’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that such Investor has no present intention of selling, granting any participation in or otherwise distributing the same. By executing this Agreement, such Investor further represents that such Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Securities.

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questions and receive answers from the Company regarding the terms and conditions of the offering of the Series A Preferred Stock and the business, properties, prospects and financial condition of the Company. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement or the right of the Investors to rely thereon.

3.4 Investment Experience. Such Investor is an investor in public companies with relatively low market capitalizations and acknowledges that it is able to fend for itself, can bear the economic risk of its investment, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Series A Preferred Stock. If other than an individual, such Investor also represents it has not been organized for the purpose of acquiring the Series A Preferred Stock.

3.5 Accredited Investor. Such Investor is an “accredited investor” within the meaning of SEC Rule 501 of Regulation D, as presently in effect.

3.6 Restricted Securities. Such Investor understands that the Securities it is purchasing are characterized as “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such Securities may be resold without registration under the Act only in certain limited circumstances. In the absence of an effective registration statement covering the Securities or an available exemption from registration under the Act, the Securities must be held indefinitely. In this connection, such Investor represents that it is familiar with SEC Rule 144, as presently in effect, and understands the resale limitations imposed thereby and by the Act, including without limitation the Rule 144 condition that current information about the Company be available to the public.

3.7 Further Limitations on Disposition. Without in any way limiting the representations set forth above, such Investor further agrees not to make any disposition of all or any portion of the Securities unless and until the transferee has agreed in writing for the benefit of the Company to be bound by this Section 3 and the Investor Rights Agreement, provided and to the extent that this Section 3 and the Investor Rights Agreement are then applicable, and:

(a) There is then in effect a registration statement under the Act covering such proposed disposition and such disposition is made in accordance with such registration statement; or

(b) (i) Such Investor shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and (ii) if requested by the Company, such Investor shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company that such disposition will not require registration of such shares under the Act.

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partner of such partnership or a retired partner of such partnership who retires after the date hereof, or to the estate of any such partner or retired partner or the transfer by gift, will or intestate succession of any partner to his or her spouse or to the siblings, lineal descendants or ancestors of such partner or his or her spouse, if the transferee agrees in writing to be subject to the terms hereof to the same extent as if he or she were an original Investor hereunder.

3.8 Legends. It is understood that the certificates evidencing the Securities may bear one or all of the following legends:

(a) “THESE SECURITIES HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED UNLESS (A) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS, COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES, (B) THE COMPANY RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY STATING THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION, OR (C) THE COMPANY OTHERWISE SATISFIES ITSELF THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION.”

(b) Any legend required by applicable laws.

3.9 Tax Advisors. Such Investor has reviewed with such Investor’s own tax advisors the federal, state and local tax consequences of this investment, where applicable, and the transactions contemplated by this Agreement. Each such Investor is relying solely on such advisors and not on any statements or representations of the Company or any of its agents and understands that each such Investor (and not the Company) shall be responsible for such Investor’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement.

3.10 Legal Advisors. Such Investor acknowledges that such Investor has had the opportunity to review this Agreement, the exhibits and the schedules attached hereto and the transactions contemplated by this Agreement, the Debt Financing and the Asset Purchase Agreement with such Investor’s own legal counsel. Each such Investor is relying solely on such Investor’s legal counsel and, except with respect to the opinion to be delivered to the Investors pursuant to Section 4.1 hereof, not on any statements or representations of the Company or any of the Company’s agents, including Lowenstein Sandler PC or Chadbourne & Parke LLP, for legal advice with respect to this investment or the transactions contemplated by this Agreement.

4. Other Documents Delivered/Actions Taken Upon Signing. Prior to or concurrently with the signing of this Agreement, the following actions shall occur:

4.1 Opinion of Company Counsel. Each Investor shall receive from Lowenstein Sandler PC, counsel for the Company, an opinion in the form attached hereto as Exhibit C.

4.2 Compliance Certificate. The President of the Company shall deliver to each Investor a certificate in the form attached hereto as Exhibit D.

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4.3 Board of Directors. The Company shall take all necessary corporate action such that immediately following the Closing, Behdad Eghbali shall be appointed to the Company’s board of directors. The Company shall execute and deliver an indemnification agreement with such person in form and substance satisfactory to the Investors.

4.4 Secretary’s Certificate. Investors shall receive from the Company’s Secretary a certificate in form and substance reasonably satisfactory to the Investors having attached thereto (a) the Company’s Certificate of Incorporation as in effect at the time of the signing of this Agreement, (b) the Certificate of Designations that will be filed with the Secretary of State of the State of Delaware, (c) the Company’s Bylaws as in effect at the time of the signing of this Agreement and (c) resolutions approved by the Company’s board of directors authorizing the transactions contemplated hereby.

4.5 Qualifications.

All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Series A Preferred Stock in the Closing pursuant to this Agreement shall be obtained and shall be effective, other than such authorizations, approvals or permits or other filings which may be timely made after the Closing or which, if not obtained, would not materially adversely affect the Company upon consummation of the closings contemplated by this Agreement, the Asset Purchase Agreement and the Debt Financing.

4.6 Debt Financing. All conditions precedent to the consummation of the Debt Financing, as set forth in the Credit Agreement, shall be satisfied.

5. Conditions of Investors’ and Company’s Obligations at the Closing. The obligations of each Investor and the Company under Section 1.1(c) of this Agreement are subject to the satisfaction or, where permitted by law, waiver on or before the Closing of each of the following conditions:

5.1 Filing of Certificate of Designations. The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware.

5.2 No Prohibition. No law, statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any United States or state court or any governmental entity which prohibits, restrains or enjoins the consummation of the transactions contemplated hereunder.

6. Covenants.

6.1 Listing. After the Closing, the Company will make all required filings so that the Conversion Shares are authorized for quotation on Nasdaq, subject to official notice of issuance.

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6.2 Further Assurances. Subject to the terms and conditions of this Agreement, each party will use its reasonable commercial efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable laws and regulations to consummate the transactions contemplated by this Agreement.

6.3 Public Statements. Each of the Company and the Investors agrees that no public release or announcement concerning the transactions contemplated hereby shall be issued without the prior written consent of the Company or the Investors, except as such release or announcement may be required by law or the rules or regulations of any applicable securities exchange or regulatory or governmental body to which the relevant party is subject, wherever situated, in which case the party required to make the release or announcement shall use its reasonable commercial efforts to provide the Company or the Investors, as the case may be, reasonable time to comment on such release or announcement in advance of such issuance, it being understood that the final form and content of any such release or announcement, to the extent so required, shall be at the final discretion of the disclosing party.

7. Termination, Expenses

7.1 Termination. This Agreement may be terminated:

(a) by mutual written consent of the Investors and the Company;

(b) by the Investors or the Company if any court of competent jurisdiction or other governmental entity shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the transactions contemplated hereunder and such order, decree, ruling or other action is or shall have become final and nonappealable; or

(c) by either the Investors or the Company if the Closing shall not have occurred on or before December 31, 2007; provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(c) shall not be available to the party seeking to terminate unless the party seeking to terminate pursuant to this Section 7.1(c) shall not have been the cause of the failure of the Closing to occur on or before such date and such action or failure to perform constitutes a breach of this Agreement.

7.2 Effect of Termination. In the event of the termination of this Agreement pursuant to Section 7.1, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of any party hereto, except as provided in this Section 7.2, and Section 8, which shall survive such termination; provided, however, that nothing herein shall relieve any party from liability for any breach of this Agreement.

8. Miscellaneous.

8.1 Survival. The warranties, representations and covenants of the Company and Investors contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing and shall in no way be affected by any investigation of the subject matter thereof made by or on behalf of the Investors or the Company.

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8.2 Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties (including transferees of any securities). Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

8.3 Governing Law. This Agreement shall be governed by and construed under the laws of the State of New York without regard to principles of conflicts of law.

8.4 Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

8.5 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified; (b) when sent by confirmed telex or facsimile or by electronic mail if sent during normal business hours of the recipient, if not, then on the next business day; (c) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the address as set forth on the signature page hereof or at such other address as such party may designate by ten days’ advance written notice to the other parties hereto.

8.6 Finder’s Fee. Each party represents that, except as set forth in the Schedule of Exceptions or in this Section 8.6, it neither is nor will be obligated for any finder’s fee or commission in connection with this transaction. Each Investor agrees to indemnify and to hold harmless the Company from any liability for any commission or compensation in the nature of a finder’s fee (and the costs and expenses of defending against such liability or asserted liability) for which such Investor or any of its officers, partners, employees or representatives is responsible. The Company agrees to indemnify and hold harmless each Investor from any liability for any commission or compensation in the nature of a finders’ fee (and the costs and expenses of defending against such liability or asserted liability) for which the Company or any of its officers, employees or representatives is responsible. 8.7 Expenses; Attorneys’ Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the Certificate of Designations, or the Investor Rights Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

8.8 Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), (i) prior to the Closing, only with the written consent of the Company and Investors acquiring in the aggregate more than half the shares of Series A Preferred Stock to be sold pursuant hereto, and (ii) after the Closing, only

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with the written consent of the Company and the holders of a majority of the Common Stock issuable or issued upon conversion of the Series A Preferred Stock sold pursuant to this Agreement. Any amendment or waiver effected in accordance with this Section 8.8 shall be binding upon each holder of any securities purchased under this Agreement (including securities into which such securities are convertible) at the time outstanding, each future holder of all such Series A Preferred Stock and the Company. The failure of any party to assert any rights or remedies shall not constitute a waiver of such rights or remedies.

8.9 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.

8.10 Aggregation of Stock. All shares of the Series A Preferred Stock held or acquired by affiliated entities or persons shall be aggregated together for the purpose of determining the availability of any rights under this Agreement.

8.11 Entire Agreement. This Agreement and the documents, schedules and exhibits referred to herein constitute the entire agreement among the parties and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or therein.

8.12 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.


COMPANY:

GOAMERICA, INC.

By:	/s/ Daniel R. Luis
	Name:	Daniel R. Luis
	Title:	Chief Executive Officer


Address:		433 Hackensack Avenue Hackensack, NJ 07601

Attn.:		Chief Executive Officer

With a copy to:

		Lowenstein Sandler PC 65 Livingston Avenue Roseland, NJ 07068 Attn.: Peter H. Ehrenberg, Esq. Fax No. (973) 597-2400

[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]


INVESTOR:

CCP A, L.P.

By:	CLEARLAKE CAPITAL PARTNERS, LLC Its General Partner

By:	CCG Operations, LLC Its Managing Member

By:	/s/ Behdad Eghbali
	Name:	Behdad Eghbali
	Title:	Manager


Address:		650 Madison Avenue, 26th Floor New York, NY 10022 Fax No. (212) 610-9121

With a copy to:

		Milbank, Tweed, Hadley & McCloy LLP 601 S. Figueroa St., 30th Floor Los Angeles, CA 90017 Attn.: Melainie K. Mansfield, Esq. Fax No. (213) 892-4711

[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]

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SCHEDULE A

Schedule of Investors


Investor	Shares of Series A Preferred Stock	Purchase Price
CCP A, L.P.	290,135	$	1,500,000

Total	290,135	$	1,500,000

Schedule A-1

EX-7.03 4 dex703.htm STOCK PURCHASE AGREEMENT Stock Purchase Agreement

Exhibit 7.03

Execution Copy

GOAMERICA, INC.

STOCK PURCHASE AGREEMENT

UP TO 9,381,045 SHARES OF SERIES A PREFERRED STOCK

August 1, 2007

SCHEDULES AND EXHIBITS


SCHEDULE A		Schedule of Investors

SCHEDULE B		Schedule of Exceptions

SCHEDULE C		Operating Subsidiaries

SCHEDULE D		Insurance

EXHIBIT A		Form of Amended and Restated Certificate of Incorporation

EXHIBIT B		Investor Rights Agreement

EXHIBIT C		Form of Opinion of Company Counsel

EXHIBIT D		Compliance Certificate

SERIES A PREFERRED STOCK PURCHASE AGREEMENT

THE PARTIES HEREBY AGREE AS FOLLOWS:

1. Purchase and Sale of Stock.

1.1 Sale and Issuance of Series A Preferred Stock.

(a) The Board of Directors of the Company has approved, and upon receipt of all necessary stockholder approvals, the Company shall file with the Secretary of State of the State of Delaware on or before the Closing (as defined below), an Amended and Restated Certificate of Incorporation in the form attached hereto as Exhibit A (the “Restated Certificate”).

(b) The Board of Directors of the Company has authorized, subject to the receipt of all necessary stockholder approvals, (i) the sale and issuance to the Investors of the Series A Preferred Stock (as defined below) and (ii) the issuance of the shares of Common Stock (as defined below) to be issued upon conversion of the Series A Preferred Stock (the “Conversion Shares”). The Series A Preferred Stock and the Conversion Shares shall have the rights, preferences, privileges and restrictions set forth in the Restated Certificate.

(d) If requested by the Company pursuant to Section 1.1(e) hereof, the Investors may, in the sole discretion of the Investors holding a majority of the Series A Preferred Stock, purchase additional shares of the Company’s Series A Preferred Stock from time to time at a per share purchase price equal to the Per Share Price (such purchase, an “Additional Investment”) for aggregate cash consideration not to exceed $15,000,000, in order to finance the Company’s working capital needs and to finance investments and acquisitions other than the acquisition described in the Asset Purchase Agreement (as defined below).

(e) If the Company wishes to request that the Investors make an Additional Investment, the Company shall notify each Investor within 45 days of the date hereof. Such notice shall be irrevocable and shall specify (i) the estimated closing date of the Additional Investment (which shall be a Business Day and shall be on or after the date of the Closing), (ii) the number of shares each Investor would buy (pro rata, based on the amount of such Investor’s original purchase, or as otherwise agreed by the Investors) and the aggregate consideration each Investor would pay in such Additional Investment, (iii) a reasonably detailed description of the anticipated use of proceeds of such Additional Investment, and (iv) to the

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extent the proceeds of the Additional Investment are to be used for investments or acquisitions, the conditions to consummation of such transaction or transactions. In addition, the Company shall provide the Investors with such other information as the Investors may reasonably request after they have received such notice.

(f) If, within 45 days of the date hereof, (a) the Company provides the notice described in Section 1.1(e) and (b) Investors whose pro rata portions of the requested Additional Investment together represent a majority of the Shares of Series A Preferred Stock to be sold in connection with such Additional Investment shall have notified the Company that they (i) waive the condition to Closing set forth in Section 8.8(b) hereof, and (ii) are willing to provide their respective portions of the Additional Investment (subject to satisfaction of the remaining conditions to the Subsequent Closing), such Investor(s) shall, subject to the satisfaction of the conditions set forth in Sections 7 and 8 hereof and relying on the representations and warranties herein set forth, purchase from the Company at the Per Share Price that number of shares of the Company’s Series A Preferred Stock representing such Investors’ respective pro rata portions of the Additional Investment on the requested closing date. If Investors who have agreed to purchase a majority of the shares of Preferred Stock sold pursuant to this Agreement so request, the Company and the Investors shall work together in good faith to agree on modifications to the conditions precedent to the Subsequent Closing, and the Company shall deliver an amended notice pursuant to Section 1.1(e) incorporating such agreed conditions precedent.

1.2 Closing and Subsequent Closing. Assuming that all other conditions of Closing have been satisfied or waived, the purchase and sale of the Series A Preferred Stock to be sold at the Closing pursuant to Section 1.1(c) shall take place at the offices of Lowenstein Sandler PC, 65 Livingston Avenue, Roseland, New Jersey 07068 concurrently with the consummation of the closing provided for in that certain asset purchase agreement (the “Asset Purchase Agreement”) of even date herewith, by and between Acquisition 1 Corp. and MCI Communications Services, Inc., providing for the Company’s purchase of a telecommunications relay services business (the “Business”), or at such other time and place as the Company and Investors acquiring in the aggregate more than half of the shares of Series A Preferred Stock sold pursuant hereto mutually agree upon orally or in writing (which time and place are designated as the “Closing”). At the Closing, the Company shall deliver to each Investor a certificate representing the Series A Preferred Stock that such Investor is purchasing against payment of the purchase price therefor by wire transfer of immediately available funds to an account designated by the Company.

Assuming that all conditions of the Subsequent Closing have been satisfied or waived, the purchase and sale of the Series A Preferred Stock to take place at the Subsequent Closing shall take place at the offices of Lowenstein Sandler PC, 65 Livingston Avenue, Roseland, New Jersey 07068 at such time on or after the date of the Closing as the Company and Investors acquiring in the aggregate more than half of the shares of Series A Preferred stock sold pursuant hereto mutually agree upon orally or in writing (such time and place are designated as the “Subsequent Closing”, it being understood that there may be more than one Subsequent Closing hereunder). At the Subsequent Closing, the Company shall deliver to each Investor a certificate representing the Series A Preferred Stock that such Investor is purchasing at the Subsequent

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Closing against payment of the purchase price therefor by wire transfer of immediately available funds to an account designated by the Company.

1.3 Use of Proceeds. The Company shall use the proceeds from the sale of the Series A Preferred Stock to the Investors at the Closing (a) to fund the cash purchase price payable by the Company pursuant to the Asset Purchase Agreement, (b) for general working capital purposes and (c) for the repayment of certain of the Company’s existing secured debt. The Company shall use the proceeds from the sale of Series A Preferred Stock at the Subsequent Closing for the purposes set forth in the notice the Company delivered to the Investors with respect to the Subsequent Closing pursuant to Section 1.1(e) hereof.

1.4 Transaction Fee. Concurrently with the Closing, the Company shall pay the Investors by wire transfer of immediately available funds (to the account or accounts designated by the Investors prior to Closing) an aggregate transaction fee of $960,000.

2.2 Capitalization and Voting Rights.

(a) Authorized Stock. The authorized capital of the Company consists of:

(i) Preferred Stock. 4,351,943 shares of Preferred Stock, par value $.01 per share (the “Preferred Stock”), none of which are issued or outstanding as of the date hereof (but 290,135 of which shall be issued and outstanding after giving effect to the closing of that certain $1,500,000 Stock Purchase Agreement of even date herewith (the “$1.5 million Stock Purchase Agreement”), by and among the Company and the Investors). Upon filing the Restated Certificate with the Secretary of State of the State of Delaware, 9,671,180 shares of Preferred Stock shall be designated Series A Preferred Stock (the “Series A

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Preferred Stock”), all of which may be sold pursuant to this Agreement (other than the Series A Preferred Stock issued on the date hereof pursuant to the $1.5 million Stock Purchase Agreement). As of the date of the Subsequent Closing, the only shares of Series A Preferred Stock issued and outstanding are (A) the shares issued to the Investors pursuant hereto on the date of the Closing, and (B) the shares issued to the Investors pursuant to the $1.5 million Stock Purchase Agreement; and

(ii) Common Stock. 200,000,000 shares of Common Stock, par value $.01 per share (“Common Stock”), and, after the filing of the Restated Certificate, 50,000,000 shares of Common Stock, of which 2,486,668 shares are issued and outstanding as of the date hereof, and 24,063 shares are held in treasury as of the date hereof.

(c) Rights to Acquire. Except for (i) options to purchase an aggregate of 83,191 shares of Common Stock granted and outstanding under the GoAmerica Communications Corp. 1999 Stock Option Plan, the GoAmerica, Inc. 1999 Stock Plan, the GoAmerica, Inc. Employee Stock Purchase Plan and the GoAmerica, Inc. 2005 Equity Compensation Plan (collectively, the “Company Option Plans”) and (ii) warrants to purchase an aggregate of 84,320 shares of Common Stock granted and outstanding, there are not outstanding any options, warrants, rights (including conversion or preemptive rights) or agreements for the purchase or acquisition from the Company of any shares of its capital stock as of the date hereof. The Company has reserved a total of 272,478 shares of Common Stock for issuance under the Company Option Plans (including the shares described above).

(d) Voting of Shares. Other than the Investor Rights Agreement entered into by the Company and the Investors on the date hereof in connection with the $1.5 million Stock Purchase Agreement and any amendments thereto that may be entered into in connection with any Subsequent Closing hereunder, the Company is not a party or subject to any agreement or understanding and, to the Company’s knowledge, there is no agreement or understanding between any persons and/or entities which affects or relates to the voting or giving of written consents with respect to any security of the Company.

2.3 Operating Subsidiaries.

(b) All of the outstanding shares of capital stock of each Operating Subsidiary of the Company are duly and validly authorized and issued, fully paid and

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non-assessable and are owned directly by the Company, free and clear of all liens, encumbrances, preemptive rights, subscription rights, other rights to purchase, voting or transfer restrictions and other claims, except as set forth in or contemplated by the Credit Agreement, the First Lien Debt Commitment Letter and the Second Lien Debt Commitment Letter. There are no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any equity interests of any Operating Subsidiary.

2.4 Authorization. Other than the stockholder approvals described in Section 2.4 of the Schedule of Exceptions, the filing of the Restated Certificate with the Secretary of State of the State of Delaware and filings required under federal and state securities laws, all corporate action on the part of the Company, its directors and stockholders necessary for the authorization, execution and delivery by the Company of this Agreement and the Investor Rights Agreement, a copy of which is attached hereto as Exhibit B, the performance of all obligations of the Company hereunder and thereunder, and the authorization, sale, issuance and delivery of the Series A Preferred Stock being sold hereunder and the Conversion Shares issuable upon conversion of the Series A Preferred Stock has been taken or will be taken prior to the Closing or, in respect of the Additional Investment, the Subsequent Closing. This Agreement and the Investor Rights Agreement constitute valid and legally binding obligations of the Company, enforceable in accordance with their respective terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.

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2.5 Valid Issuance of Preferred Stock. Assuming receipt of all stockholder approvals described in Section 2.4 of the Schedule of Exceptions, the Series A Preferred Stock that is being purchased by the Investors hereunder, when issued, sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued, fully paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer (a) under this Agreement and the Investor Rights Agreement, (b) under applicable state and federal securities laws and (c) otherwise imposed as a result of actions taken by the Investors. The Conversion Shares have been duly and validly reserved for issuance and, upon issuance in accordance with the terms of the Restated Certificate, will be duly and validly issued, fully paid and nonassessable and will be free of restrictions on transfer, other than restrictions on transfer (a) under this Agreement and the Investor Rights Agreement, (b) under applicable state and federal securities laws and (c) otherwise imposed as a result of actions taken by the Investors.

2.6 Governmental Consents. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority on the part of the Company is required in connection with the consummation of the transactions contemplated by this Agreement, except for (i) such consents, approvals, orders, authorizations, registrations, qualifications, designations, declarations or filings which are not required to be obtained prior to the Closing, (ii) the filing of the Restated Certificate with the Secretary of State of the State of Delaware, (iii) the filing with The Nasdaq Stock Market, Inc. (“Nasdaq”) of an application to list the Conversion Shares and (iv) such filings as are required pursuant to applicable federal and state securities laws and blue sky laws, which filings will be effected within the required statutory period.

2.7 Offering. Subject in part to the truth and accuracy of each Investor’s representations set forth in Section 3 of this Agreement, the offer, sale and issuance of the Series A Preferred Stock and Conversion Shares as contemplated by this Agreement are exempt from the registration requirements of the Securities Act of 1933, as amended (the “Act”), and the qualification or registration requirements of applicable state blue sky laws, as such registration requirements and laws currently exist. Neither the Company nor any authorized agent acting on its behalf will take any action hereafter that would cause the loss of such exemption. 2.8 Litigation. There is no action, suit, proceeding or investigation pending or, to the Company’s knowledge, currently threatened against the Company that questions the validity of this Agreement, the Asset Purchase Agreement, the Managed Services Agreement (as defined below) or the Investor Rights Agreement, or the right of the Company to enter into such agreements or to consummate the transactions contemplated hereby, or that would reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect or in any change in the current equity ownership of the Company. Neither the Company nor any Operating Subsidiary is a party or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality.

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Nordia Services LLC, a Nevada limited liability company (the “Managed Services Agreement” and, together with the Asset Purchase Agreement and the documents referenced in both of the Asset Purchase Agreement and the Managed Services Agreement pertaining to the acquisition described in the Asset Purchase Agreement, the “Operative Agreements”). All corporate action on the part of the Company, its directors and stockholders necessary for the authorization, execution and delivery by the Company of the Operative Agreements and the performance of all obligations of the Company thereunder has been taken or will be taken prior to the closing provided for in the Asset Purchase Agreement. The Operative Agreements will constitute, when executed, valid and legally binding obligations of the Company, and will be enforceable in accordance with their respective terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority on the part of the Company is required in connection with the consummation of the transactions contemplated by the Operative Agreements, except as described in the Asset Purchase Agreement and the Schedules thereto as of the date hereof.

2.10 Intellectual Property. Except as would not have a Material Adverse Effect:

(a) To its knowledge, the Company and each Operating Subsidiary owns sufficient right, title and interest in and to, or has sufficient right to use pursuant to a valid license, option, assignment or agreement, all of the Intellectual Property Rights (as defined below) used by them and which the Company believes are necessary for the operation of the business of the Company and each Operating Subsidiary as presently conducted, and the lack of which would conflict with or infringe the rights of any third party, except for such items as have yet to be conceived or developed or that are expected to be available for licensing on reasonable terms. The Company and each Operating Subsidiary has taken reasonable actions to maintain and protect the confidentiality of Intellectual Property Rights consisting of trade secrets that it owns. The Intellectual Property Rights that the Company or any Operating Subsidiary owns, consisting of patents, copyrights, trademarks, service marks and trade names, do not, to the Company’s knowledge, conflict with or infringe upon the rights of third parties, except for such items as have yet to be conceived or developed or that are expected to be available for licensing on reasonable terms. Since January 1, 2006, there have been no written claims made against the Company or any subsidiary asserting the invalidity, misuse or unenforceability of any Intellectual Property Rights that the Company or any subsidiary owns and, to the Company’s knowledge, there are no valid grounds for the same. Since January 1, 2006, neither the Company nor any subsidiary has received any communications alleging that the Company or any subsidiary has violated, infringed or misappropriated any Intellectual Property Rights of any other person or entity. To the Company’s knowledge, neither the Company nor any subsidiary is violating, infringing or misappropriating the Intellectual Property Rights of any other person or entity. Since January 1, 2006, to the Company’s knowledge, no third party has interfered with, infringed upon, violated, misappropriated, or otherwise come into conflict with any of the Company’s or any of its Operating Subsidiary’s Intellectual Property Rights, or of any right of any third party (to the

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extent licensed by or through the Company or its Operating Subsidiaries), or breached any license or agreement involving Intellectual Property Rights. Except as set forth on the Schedule of Exceptions, the Company has not brought any action, suit or proceeding or asserted any claim against any person or entity related to the foregoing. The Company is not aware that any of its employees is obligated under any contract (including licenses, covenants or commitments of any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency, that would interfere with the use of his or her best efforts to promote the interests of the Company or that would prevent the employee from assigning his/her inventions to the Company.

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the Company or any subsidiary, their business or operations or any of their assets or properties, other than conflicts, defaults or other results which would not reasonably be expected to result in a Material Adverse Effect.

2.12 Agreements; Action.

(a) Except for agreements explicitly contemplated hereby, there are no agreements, written or oral, between the Company and any subsidiary and any of their officers, directors or affiliates.

(d) With the exception of (i) indebtedness of the Company and its subsidiaries under that certain Credit Agreement of even date herewith (the “Credit Agreement”) by and among the Company, Clearlake Capital Group, LP, as Administrative Agent and Collateral Agent and the Lenders party thereto, and (ii) the indebtedness contemplated by that certain First Lien Debt Commitment Letter of even date herewith (the “First Lien Debt Commitment Letter”) and Second Lien Debt Commitment Letter of even date herewith (the “Second Lien Debt Commitment Letter”), between the Company and Clearlake Capital Group, LP (the Credit Agreement, First Lien Debt Commitment Letter and Second Lien Debt Commitment Letter, collectively, the “Debt Financings”), neither the Company nor any subsidiary has outstanding any indebtedness for money borrowed (which, for clarity, the parties agree does not include accounts payables or other trade payables, capital leases or accrued expenses) in excess of $250,000 or, in the case of indebtedness for money borrowed individually less than $250,000, in excess of $5,000,000 in the aggregate, other than liabilities incurred in the ordinary course of business.

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2.13 Related Party Transactions. Since the filing of the last SEC Report (as defined below), there have been no related party transactions that would be required to be disclosed in the SEC Reports pursuant to Item 404(a) of the SEC’s Regulation S-K that have not been so disclosed in the SEC Reports.

2.14 SEC Filings; Financial Statements.

(c) To the Company’s knowledge, except as set forth in the Financial Statements, the Schedule of Exceptions or the Operative Agreements, or as contemplated by the Debt Financings, the Company has no material liabilities, contingent or otherwise, other than (a) liabilities incurred in the ordinary course of business subsequent to March 31, 2007 and (b) liabilities or obligations under contracts and commitments incurred in the ordinary course of business or otherwise not required under generally accepted accounting principles to be reflected in the Financial Statements. Except as disclosed in the Financial Statements, neither the Company nor any subsidiary is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation, other than the Company or any subsidiary.

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The Company maintains a system of accounting established and administered in accordance with generally accepted accounting principles.

(b) any material change or amendment to a material contract or arrangement by which the Company or any of its assets or properties is bound or subject;

(c) any sale, assignment, pledge, grant of security interest or transfer of any patents, trademarks, copyrights, trade secrets or other intangible assets;

(d) any resignation or termination of employment of any key employee of the Company and its Operating Subsidiaries;

(f) any agreement or commitment by the Company or any subsidiary to do any of the things described in this Section 2.15.

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material respect under any of such franchises, permits, licenses or other similar authority. To the Company’s knowledge, neither the Company nor any Operating Subsidiary has received notification of proceedings relating to revocation or modification of any such franchises, permits, licenses or other similar authority.

2.20 Title to Property and Assets. The property and assets that the Company or any subsidiary owns are owned by the Company or that subsidiary free and clear of all mortgages, liens, loans and encumbrances, except (i) for statutory liens for the payment of current taxes that are not yet delinquent, (ii) for liens, encumbrances and security interests that arise in the ordinary course of business and that do not secure indebtedness for borrowed money (which, for clarity, the parties agree does not include accounts payables or other trade payables, capital leases or accrued expenses) or guarantees thereof, (iii) defects in title, none of which, individually or in the aggregate, materially impair the Company’s or the subsidiary’s ownership or use of such property or assets, and (iv) liens created in connection with the Debt Financings. With respect to the property and assets the Company or any subsidiary leases, the Company or the subsidiary, as applicable, is in compliance with such leases except where the failure to be in compliance would not constitute a Material Adverse Effect and, to its knowledge, holds a valid leasehold interest free of any liens, claims or encumbrances, subject to clauses (i), (ii) and (iii).

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3. Representations and Warranties of the Investors. Each Investor severally and not jointly hereby represents, warrants and covenants that:

3.3 Disclosure of Information. Such Investor believes it has received all the information it considers necessary or appropriate for deciding whether to purchase the Series A Preferred Stock. Such Investor further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Series A Preferred Stock and the business, properties, prospects and financial condition of the Company. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement or the right of the Investors to rely thereon.

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financial or business matters that it is capable of evaluating the merits and risks of the investment in the Series A Preferred Stock. If other than an individual, such Investor also represents it has not been organized for the purpose of acquiring the Series A Preferred Stock.

3.5 Accredited Investor. Such Investor is an “accredited investor” within the meaning of SEC Rule 501 of Regulation D, as presently in effect.

(a) There is then in effect a registration statement under the Act covering such proposed disposition and such disposition is made in accordance with such registration statement; or

Notwithstanding the provisions of subsections (a) and (b) above, no such registration statement or opinion of counsel shall be necessary for a transfer by an Investor to any affiliated venture capital fund or investment fund, or by an Investor that is a partnership to a partner of such partnership or a retired partner of such partnership who retires after the date hereof, or to the estate of any such partner or retired partner or the transfer by gift, will or intestate succession of any partner to his or her spouse or to the siblings, lineal descendants or ancestors of such partner or his or her spouse, if the transferee agrees in writing to be subject to the terms hereof to the same extent as if he or she were an original Investor hereunder.

3.8 Legends. It is understood that the certificates evidencing the Securities may bear one or all of the following legends:

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(b) Any legend required by applicable laws.

3.10 Legal Advisors. Such Investor acknowledges that such Investor has had the opportunity to review this Agreement, the exhibits and the schedules attached hereto and the transactions contemplated by this Agreement, the Debt Financings and the Asset Purchase Agreement with such Investor’s own legal counsel. Each such Investor is relying solely on such Investor’s legal counsel and, except with respect to the opinions to be delivered to the Investors pursuant to Sections 5.5 and 8.4 hereof, not on any statements or representations of the Company or any of the Company’s agents, including Lowenstein Sandler PC or Chadbourne & Parke LLP, for legal advice with respect to this investment or the transactions contemplated by this Agreement.

4. Conditions of Investors’ and Company’s Obligations at the Closing. The obligations of each Investor and the Company under Section 1.1(c) of this Agreement are subject to the satisfaction or, where permitted by law, waiver on or before the Closing of each of the following conditions:

4.1 Stockholder Approval. At a duly convened meeting of the stockholders of the Company, the stockholders of the Company shall have approved (i) the Restated Certificate, (ii) the issuance of the Series A Preferred Stock to be issued at the Closing and the underlying Conversion Shares, (iii) the change of control involved in issuing the Series A Preferred Stock to the Investors hereunder, (iv) the Asset Purchase Agreement and (v) such other matters as shall be required by the rules of Nasdaq.

4.2 Asset Purchase. The closing contemplated by the Asset Purchase Agreement shall have been consummated concurrently with the Closing hereunder.

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4.3 No Prohibition. No law, statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any United States or state court or any governmental entity which prohibits, restrains or enjoins the consummation of the transactions contemplated hereunder.

4.4 Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Series A Preferred Stock in the Closing pursuant to this Agreement or that are required to consummate the closing under the Asset Purchase Agreement shall have been duly obtained and shall be effective as of the Closing, other than such authorizations, approvals or permits or other filings which may be timely made after the Closing or which, if not obtained, would not materially adversely affect the Company upon consummation of the closings contemplated by this Agreement, the Asset Purchase Agreement and the Debt Financings.

4.5 Listing. The Conversion Shares underlying the Series A Preferred Stock to be issued at the Closing, and the shares of Common Stock underlying the Series A Preferred Stock issued at the $1.5 million Stock Purchase Agreement closing, shall have been authorized for listing for quotation on Nasdaq, subject to official notice of issuance.

4.6 Restated Certificate. The Restated Certificate shall have been filed with the Secretary of State of the State of Delaware.

5. Conditions of Investors’ Obligations at the Closing. The obligations of each Investor under Sections 1.1(c) of this Agreement are also subject to the satisfaction or, where permitted by law, waiver on or before the Closing of each of the following conditions:

5.1 Representations and Warranties. The representations and warranties of the Company set forth in this Agreement shall be true and correct in all respects (without giving effect to any “materiality,” “Material Adverse Effect” or similar qualifiers contained in any such representations and warranties, other than any qualifiers contained in any representation or warranty requiring disclosure in the Schedule of Exceptions of a list of items qualified as to materiality) as of the Closing as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be so true and correct as of such specified date), except where the failure of any such representations and warranties to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect.

5.2 Performance. The Company shall have performed and complied in all material respects with all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or before the Closing.

5.3 Compliance Certificate. The President of the Company shall deliver to each Investor at the Closing a certificate in the form attached hereto as Exhibit D stating that the conditions specified in Sections 5.1 and 5.2 have been fulfilled.

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5.4 Board of Directors. The Company shall have taken all necessary corporate action such that immediately following the Closing, Behdad Eghbali and two other well respected business people designated by the Investors shall be elected to the Company’s board of directors.

5.5 Opinion of Company Counsel. Each Investor shall have received from Lowenstein Sandler PC, counsel for the Company, an opinion, dated as of the Closing, substantially in the form attached hereto as Exhibit C.

5.6 Secretary’s Certificate. Investors shall have received from the Company’s Secretary a certificate in form and substance reasonably satisfactory to the Investors having attached thereto (a) the Company’s Certificate of Incorporation as in effect at the time of the Closing, (b) the Company’s Bylaws as in effect at the time of the Closing, and (c) resolutions approved by the Company’s board of directors authorizing the transactions contemplated hereby.

5.7 Operative Agreements. Since the date hereof, there shall have been no material amendment of, or material waiver under, any of the Operative Agreements other than amendments and waivers approved by Investors who have agreed to purchase a majority of the shares of Preferred Stock sold pursuant to this Agreement, such approval not to be unreasonably withheld or delayed. The Operative Agreements, any agreement required to be executed pursuant to any of the Operative Agreements which is not an exhibit to one or more of the Operative Agreements and all other proceedings in connection with the transactions contemplated at the Closing shall be in form and substance acceptable to Investors who have agreed to purchase a majority of the shares of Preferred Stock sold pursuant to this Agreement, such acceptance not to be unreasonably withheld or delayed. Each Investor shall have received copies of each of the executed Operative Agreements, including any exhibits and schedules thereto.

5.8 Debt Financing. All conditions precedent to the consummation of the debt financing contemplated by the First Lien Debt Commitment Letter shall have been satisfied, unless the failure to satisfy any such condition precedent is due to any act or failure to act by the Investors.

5.9 Material Adverse Effect. Since the date hereof, no event shall have occurred which shall have had a Material Adverse Effect.

5.10 Amendment to Bylaws. The Company’s Bylaws shall have been amended to eliminate all provisions pertaining to a staggered board of directors.

6. Conditions of the Company’s Obligations at the Closing. The obligations of the Company under Sections 1.1(c) of this Agreement are also subject to the satisfaction or, where permitted by law, waiver on or before the Closing of each of the following conditions:

6.1 Representations and Warranties. The representations and warranties of the Investors set forth in this Agreement shall be true and correct in all respects (without giving effect to any “materiality,” “Material Adverse Effect” or similar qualifiers contained in any such representations and warranties as of the Closing as though made on and as

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of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be so true and correct as of such specified date), except where the failure of any such representations and warranties to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect.

6.2 Performance. The Investors shall have performed and complied in all material respects with all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or before the Closing.

6.3 Payment of Purchase Price at Closing. The Investors shall have delivered to the Company the aggregate purchase price owed by such Investors for the Series A Preferred Stock being sold hereunder at the Closing.

6.4 Debt Financings. The closing of the transactions contemplated by the First Lien Debt Commitment Letter shall have been consummated concurrently with the Closing hereunder.

7. Conditions of Investors’ and Company’s Obligations at the Subsequent Closing. With respect to the Subsequent Closing, the obligations of each Investor and the Company under Section 1.1(f) of this Agreement are subject to the satisfaction or, where permitted by law, waiver on or before the Subsequent Closing of each of the following conditions:

7.1 Closing. The Closing shall have occurred.

7.2 Stockholder Approval. To the extent required by law, at a duly convened meeting of the stockholders of the Company, the stockholders of the Company shall have approved (i) the issuance of the Series A Preferred Stock to be issued at the Subsequent Closing and the underlying Conversion Shares, (ii) the documentation underlying any investments or acquisitions related to the Additional Investment and (iii) such other matters as shall be required by the rules of Nasdaq.

7.3 Use of Proceeds. To the extent the proceeds of the Additional Investment are to be used for investments or acquisitions, each of the conditions to such transaction or transactions (including, without limitation, the conditions set forth in the applicable notice delivered pursuant to Section 1.1(e) hereof) shall have been satisfied or waived and the closing contemplated by the definitive documentation for such transaction or transactions shall have been consummated concurrently with the Subsequent Closing hereunder.

7.4 No Prohibition. No law, statute, rule, regulation, executive order, decree, ruling, injunction or other order (whether temporary, preliminary or permanent) shall have been enacted, entered, promulgated or enforced by any United States or state court or any governmental entity which prohibits, restrains or enjoins the consummation of the transactions contemplated hereunder.

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7.5 Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Series A Preferred Stock in the Subsequent Closing pursuant to this Agreement or that are required to consummate the closing of any investment or acquisition related to the Additional Investment shall have been duly obtained and shall be effective as of the Subsequent Closing, other than such authorizations, approvals or permits or other filings which may be timely made after the Subsequent Closing or which, if not obtained, would not materially adversely affect the Company upon consummation of the closings contemplated by this Agreement, the documentation underlying any investment or acquisition related to the Additional Investment and the Debt Financings.

7.6 Listing. The Conversion Shares underlying the Series A Preferred Stock to be issued at the Subsequent Closing shall have been authorized for listing for quotation on Nasdaq, subject to official notice of issuance.

8. Conditions of Investors’ Obligations at the Subsequent Closing. The obligations of each Investor under Section 1.1(f) of this Agreement are also subject to the satisfaction or, where permitted by law, waiver on or before the Subsequent Closing of each of the following conditions:

8.1 Representations and Warranties. The representations and warranties of the Company set forth in this Agreement shall be true and correct in all respects (without giving effect to any “materiality,” “Material Adverse Effect” or similar qualifiers contained in any such representations and warranties, other than any qualifiers contained in any representation or warranty requiring disclosure in the Schedule of Exceptions of a list of items qualified as to materiality) as of the Subsequent Closing as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be so true and correct as of such specified date), except where the failure of any such representations and warranties to be so true and correct, in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect.

8.2 Performance. The Company shall have performed and complied in all material respects with all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or before the Subsequent Closing.

8.3 Compliance Certificate. The President of the Company shall deliver to each Investor at the Subsequent Closing a certificate in the form attached hereto as Exhibit D stating that the conditions specified in Sections 8.1 and 8.2 have been fulfilled.

8.4 Opinion of Company Counsel. Each Investor shall have received from Lowenstein Sandler PC, counsel for the Company, an opinion, dated as of the Subsequent Closing, substantially in the form attached hereto as Exhibit C.

8.5 Secretary’s Certificate. Investors shall have received from the Company’s Secretary a certificate in form and substance reasonably satisfactory to the Investors having attached thereto (a) the Company’s Certificate of Incorporation as in effect at the time of the Subsequent Closing, (b) the Company’s Bylaws as in effect at the time of

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the Subsequent Closing, and (c) resolutions approved by the Company’s board of directors authorizing the transactions contemplated hereby.

8.6 Debt Financings. All conditions precedent to the consummation of the debt financing contemplated by the First Lien Debt Commitment Letter and the Second Lien Debt Commitment Letter shall have been satisfied, unless the failure to satisfy any such condition precedent is due to any act or failure to act by the Investors.

8.7 Material Adverse Effect. Since the date hereof, no event shall have occurred which shall have had a Material Adverse Effect.

8.8 Use of Proceeds.

(a) To the extent the proceeds of the Additional Investment are to be used for investments or acquisitions, each of the conditions to such transaction or transactions (including, without limitation, the conditions set forth in the applicable notice delivered pursuant to Section 1.1(e) hereof) shall have been satisfied.

(b) The Company shall have provided the Investors with a reasonably detailed written description of the use of proceeds for the Second Lien Debt Financing and the Investors shall be satisfied, in their sole discretion, with such use of proceeds.

9. Conditions of the Company’s Obligations. The obligations of the Company to the Investors under this Agreement in connection with the Subsequent Closing are subject to the satisfaction or, where permitted by law, waiver on or before the Subsequent Closing of each of the following conditions by that Investor:

9.1 Representations and Warranties. The representations and warranties of the Investors contained in Section 3 shall be true on and as of the Subsequent Closing with the same effect as though such representations and warranties had been made on and as of the Subsequent Closing.

9.2 Performance. The Investors shall have performed and complied in all materials respects with all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by them before the Subsequent Closing.

9.3 Payment of Purchase Price at Subsequent Closing. The Investors shall have delivered to the Company the aggregate purchase price owed by such Investors for the Series A Preferred Stock being sold hereunder at the Subsequent Closing.

9.4 Debt Financings. The closing of the transactions contemplated by the Second Lien Debt Commitment Letter shall have been consummated concurrently with the Subsequent Closing hereunder.

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10. Covenants.

10.1 Documents. Subject to satisfaction of the conditions to Closing, the Company and the Investors shall execute the Investor Rights Agreement at or prior to the Closing.

10.2 Conduct of Business of the Company Pending the Closing. Between the date of this Agreement and the Closing, except as otherwise contemplated by this Agreement, the Operative Agreements, the Debt Financings, the First Lien Debt Commitment Letter or the Second Lien Debt Commitment Letter, as disclosed in the SEC Reports filed prior to the date of this Agreement, as set forth in Section 5.1 of the Schedule of Exceptions, as required by law or unless Investors who have agreed to purchase a majority of the shares of Preferred Stock sold pursuant to this Agreement shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed), (i) the business of the Company and its Operating Subsidiaries shall be conducted in the ordinary course of business and the Company shall use its commercially reasonable efforts to preserve substantially intact its business organization, and material business relationships, and (ii) neither the Company nor any of its subsidiaries shall:

(a) amend or otherwise change its Certificate of Incorporation or By-Laws or any similar governing instruments (except for any subsidiaries that are not Operating Subsidiaries);

(b) enter into any agreement outside the ordinary course of business other than agreements relating to a transaction contemplated by a notice delivered pursuant to Section 1.1(e) approved by Investors who have agreed to purchase a majority of the shares of Preferred Stock sold pursuant to this Agreement;

(c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for any dividend or distribution by a subsidiary of the Company to the Company or another wholly owned subsidiary of the Company);

(d) reclassify, combine, split, subdivide, redeem, purchase or otherwise acquire any shares of capital stock of the Company (except for the acquisition of shares in connection with cashless exercises of options and warrants and customary repurchases effected in accordance with the Company’s employee benefit plans);

(e) authorize any material new capital expenditures which are, in the aggregate, in excess of the Company’s capital expenditure budget set forth on Section 5.1 of the Schedule of Exceptions; or

(f) agree to take any of the actions described in Sections 10.2(a) through 10.2(e).

10.3 Stockholders Meeting. The Company, acting through its Board of Directors, shall (a) as soon as reasonably practicable following the date of this Agreement, take all action necessary to duly call, give notice of, convene and hold a meeting of its stockholders

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(the “Stockholders Meeting”) for the purpose of obtaining stockholder approval of the proposals contemplated by Section 4.1 (the “Company Proposals”), (b) include in the Proxy Statement the recommendation of the Board of Directors that the stockholders of the Company grant such approvals (the “Recommendation”) and (c) use its reasonable commercial efforts to obtain such approvals; provided that the Board of Directors of the Company may fail to make or may withdraw, modify or change the Recommendation and/or may fail to use such efforts if in the absence of an Alternate Financing Proposal, the Board of Directors of the Company determines in good faith (after having consulted with outside counsel) that such conduct is required for the Board to comply with its fiduciary duties under applicable law. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is terminated in accordance with Section 11.1, the Company, regardless of whether the Board of Directors of the Company has approved, endorsed or recommended an Alternate Financing Proposal or has withdrawn, modified or amended the Recommendation, but in compliance with the DGCL, shall promptly call, give notice of, convene and hold the Stockholders Meeting as soon as reasonably practicable after the date of this Agreement and will submit the Company Proposals for approval by the stockholders of the Company at the Stockholders Meeting.

10.4 Proxy Statement. Promptly following the date of this Agreement, the Company shall prepare and file with the SEC a proxy statement describing the Company Proposals (the “Proxy Statement”). The Company shall use reasonable commercial efforts to resolve all SEC comments with respect to the Proxy Statement as promptly as practicable after receipt thereof and to cause the Proxy Statement in definitive form to be cleared by the SEC and mailed to the Company’s stockholders as promptly as reasonably practicable following filing with the SEC.

10.5 Alternate Financing Proposals.

(a) The Company shall not, nor shall the Company authorize or permit any of its subsidiaries or any of the directors, officers, employees, attorneys or investment bankers (collectively, “Representatives”) of the Company or any of its subsidiaries to, (i) directly or indirectly, initiate, solicit or knowingly encourage any inquiries with respect to, or the making of, any Alternate Financing Proposal, (ii) engage in any negotiations or discussions concerning, or provide access to its properties, books and records or any confidential information or data to, any person relating to an Alternate Financing Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Alternate Financing Proposal or (iv) execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to any Alternate Financing Proposal; provided, however, it is understood and agreed that any determination or action by the Board of Directors of the Company permitted under Section 10.5(b) or Section 10.5(c), shall not be deemed to be a breach or violation of this Section 10.5(a) or, in the case of Section 10.5(b), give the Investors a right to terminate this Agreement pursuant to Section 11.1(e)(ii). The Company shall, and shall direct each of its Representatives to, immediately cease any solicitations, discussions or negotiations with any person (other than the parties hereto) that has made or indicated an intention to make an Alternate Financing Proposal, in each case that exist as of the date hereof, subject in each case to the rights of the Company set forth in Sections 10.5(b) and 10.5(c).

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(b) Notwithstanding anything to the contrary in Section 10.5(a), nothing contained in this Agreement shall prevent the Company or its Board of Directors from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer) or from making any legally required disclosure to stockholders with regard to an Alternate Financing Proposal (provided that neither the Company nor its Board of Directors may recommend any Alternate Financing Proposal unless permitted by Section 10.5(c) and the Company may not fail to make, or withdraw, modify or change in a manner adverse to the Investors all or any portion of, the Recommendation unless permitted by Section 10.3); (ii) providing access to its properties, books and records and providing information or data in response to a request therefor by a person or group who has made an unsolicited Alternate Financing Proposal that the Board of Directors of the Company determines in good faith is credible if the Board of Directors receives from the person so requesting such information an executed confidentiality agreement; (iii) contacting and engaging in discussions with any person or group and their respective Representatives who has made an unsolicited Alternate Financing Proposal solely for the purpose of clarifying such Alternate Financing Proposal and any material terms thereof and the conditions to consummation so as to determine whether there is a reasonable possibility that such Alternate Financing Proposal could lead to a Superior Proposal; (iv) contacting and engaging in any negotiations or discussions with any person or group and their respective Representatives who has made an unsolicited Alternate Financing Proposal that the Board of Directors of the Company determines in good faith is credible (which negotiations or discussions are not solely for clarification purposes); or (v) prior to obtaining all necessary stockholder approvals, (A) withdrawing, modifying or changing in any adverse manner the Recommendation (which, in the event of an Alternate Financing Proposal, shall be permitted only to the extent permitted by Section 10.5(c)) or (B) recommending an unsolicited Alternate Financing Proposal that the Board of Directors of the Company determines in good faith is credible, if and only to the extent that in connection with the foregoing clauses (ii), (iv) and (v)(B), the Board of Directors of the Company shall have determined in good faith, after consultation with its legal counsel and financial advisors that, (x) in the case of clause (v)(B) above only, such Alternate Financing Proposal would, if consummated, result in a Superior Proposal and (y) in the case of clauses (ii) and (iv) above only, such Alternate Financing Proposal constitutes a Superior Proposal or there is a reasonable possibility that such actions in respect of such Alternate Financing Proposal could lead to a Superior Proposal. The Company shall also promptly notify the Investors within 48 hours of the receipt of any Alternate Financing Proposal after the date hereof, which notice shall include the material terms of such Alternate Financing Proposal.

(c) Notwithstanding anything in this Section 10.5 to the contrary, if (A) the Company’s Board of Directors determines in good faith, after consultation with its financial advisors and outside legal counsel, in response to an unsolicited Alternate Financing Proposal that did not otherwise result from a material breach of Section 10.5(a), that such proposal is a Superior Proposal, (B) the Company notifies the Investors in writing of the terms of the Superior Proposal and the determinations described in clause (A) above and of its intent to terminate this Agreement, (C) the Company’s Board of Directors takes into account any revised proposal made by the Investors to the Company (a “Revised Investor Proposal”) within three business days after the Investors’ receipt of such notice and again determines in good faith

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after consultation with its outside legal counsel and independent financial advisors that such Alternate Financing Proposal (as the same may have been modified or amended) remains a Superior Proposal, and (D) the Company’s Board of Directors, if a Revised Investor Proposal has been made, and such Alternate Financing Proposal had been modified or amended prior to the Board’s re-determination referred to in clause (C) above, (x) first, notifies the Investors of the revised terms of such Alternate Financing Proposal; (y) second, establishes a deadline, and notifies the Investors and the person making such Alternate Financing Proposal thereof, to occur not less than three nor more than seven business days after giving such notice, for the submission of final proposals from both the Investors and such person; and (z) within seven business days after such deadline, again determines in good faith after consultation with its outside legal counsel and independent financial advisors that such Alternate Financing Proposal remains a Superior Proposal and notifies the Investors of such determination, the Company or its Board of Directors may terminate this Agreement in order to enter into a definitive agreement with respect to such Superior Proposal and may withdraw, modify or change the Recommendation; provided, however, that the Company shall not terminate this Agreement pursuant to this Section 10.5(c), and any purported termination pursuant to this Section 10.5(c) shall be void and of no force or effect, unless the Company prior to or concurrently with such termination pursuant to this Section 10.5(c) pays to the Investors the Company Termination Fee.

(d) For purposes of this Agreement, the following terms shall have the meanings assigned below:

(i) “Alternate Financing Proposal” means any inquiry, proposal or offer from any Person or group of Persons (other than the Investors) relating to any proposal or offer concerning an alternate financing for the transactions contemplated by the Asset Purchase Agreement together with any Additional Investment that the Investors have agreed to provide (subject to the terms and conditions hereof) as of the date of such alternate financing proposal.

(ii) “Superior Proposal” means any Alternate Financing Proposal (x) on terms more favorable to the Company than the transactions contemplated by this Agreement, taking into account all of the terms and conditions of such proposal and this Agreement (including any proposal by the Investors to amend the terms of the transactions contemplated by this Agreement, the First Lien Debt Commitment Letter or the Second Lien Debt Commitment Letter), and (y) that the Board of Directors of the Company determines in good faith is reasonably capable of being completed, taking into account the identity of the person or persons making the proposal and all financial, regulatory, legal and other aspects of such proposal.

10.6 Further Assurances. Subject to the terms and conditions of this Agreement, each party will use its reasonable commercial efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable laws and regulations to consummate the transactions contemplated by this Agreement.

10.7 Public Statements. Each of the Company and the Investors agrees that no public release or announcement concerning the transactions contemplated hereby shall be issued without the prior written consent of the Company or the Investors, except as such release

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or announcement may be required by law or the rules or regulations of any applicable securities exchange or regulatory or governmental body to which the relevant party is subject, wherever situated, in which case the party required to make the release or announcement shall use its reasonable commercial efforts to provide the Company or the Investors, as the case may be, reasonable time to comment on such release or announcement in advance of such issuance, it being understood that the final form and content of any such release or announcement, to the extent so required, shall be at the final discretion of the disclosing party.

11. Termination, Expenses

11.1 Termination. This Agreement may be terminated:

(a) by mutual written consent of the Investors and the Company;

(c) by either the Investors or the Company if the Closing shall not have occurred on or before December 31, 2007; provided, however, that, if one or more Governmental Consents (as defined in the Asset Purchase Agreement as in effect on the date hereof) have not been obtained by December 31, 2007 and the Company exercises its option under the Asset Purchase Agreement to extend the Termination Date thereunder to March 31, 2008, Investors who have agreed to purchase a majority of the Shares of Series A Preferred Stock to be sold in connection with the Closing may, in their sole discretion, extend the date after which this Agreement may be terminated pursuant to this clause (c) to March 31, 2008 by delivering written notice of such extension to the Company; provided, further, that the right to terminate this Agreement pursuant to this Section 11.1(c) shall not be available to the party seeking to terminate unless (x) the Asset Purchase Agreement shall have terminated and (y) the party seeking to terminate pursuant to this Section 11.1(c) shall not have been the cause of the failure of the Closing to occur on or before such date and such action or failure to perform constitutes a breach of this Agreement.

(d) by the Company:

(i) if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Investors such that the conditions set forth in Sections 4, 6, 7 and 9 would not be satisfied and, in either such case, such breach is not cured or curable by the date on which all conditions to consummate the Asset Purchase Agreement have been satisfied; or

(ii) in accordance with, and subject to the terms and conditions of, Section 10.5(c);

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(e) by Investors who have agreed to purchase a majority of the Shares of Series A Preferred Stock to be sold in connection with the Closing:

(i) if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in Sections 4, 5, 7 and 8 would not be satisfied and, in either such case, such breach is not cured or curable by the date on which all conditions to consummate the Asset Purchase Agreement have been satisfied; or

(ii) if the Board of Directors of the Company shall have withdrawn, modified or changed the Recommendation in a manner adverse to the Investors (it being understood and agreed that, for all purposes of this Agreement (including Sections 10.3 and 10.5), a communication by the Board of Directors of the Company to the stockholders of the Company in accordance with Rule 14d-9(f) of the Exchange Act, or any similar communication to the stockholders of the Company in connection with the commencement of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification or change of the Recommendation) or shall have recommended to the stockholders of the Company an Alternate Financing Proposal, or shall have resolved to effect any of the foregoing (it being agreed that the taking of any action by the Company, its Board of Directors or any of its Representatives of any of the actions permitted by Section 10.5(b) shall not give rise to a right to terminate pursuant to this clause (ii)).

(f) by either the Company or by Investors who have agreed to purchase a majority of the Shares of Series A Preferred Stock to be sold hereunder if, upon a vote taken on the Company Proposals at the Stockholders Meeting or any postponement or adjournment thereof, the Company Proposals shall not have been approved by the requisite vote of the stockholders of the Company.

11.2 Effect of Termination.

(a) In the event of the termination of this Agreement pursuant to Section 11.1, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of any party hereto, except as provided in this Section 11.2 and Section 12, which shall survive such termination; provided, however, that nothing herein shall relieve any party from liability for any breach of this Agreement.

(b) In the event that this Agreement is terminated by the Company pursuant to Section 11.1(d)(ii), then no later than two (2) Business Days of the execution of any letter of intent, agreement in principal, commitment letter or definitive agreement with respect to an alternative financing or similar agreement relating to any Alternative Financing Proposal, the Company shall pay $2,000,000 (the “Company Termination Fee”) to the Investors, at or prior to the time of termination, payable by wire transfer of same day funds. Such amount shall be allocated among the Investors in proportion to the number of shares of Series A Preferred Stock that each Investor has agreed to purchase pursuant to this Agreement.

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(c) Each of the Company and the Investors acknowledges that the agreements contained in this Section 11.2 are an integral part of the transactions contemplated by this Agreement. In the event that the Company shall fail to pay the Company Termination Fee when due, the Company shall reimburse the Investors for all reasonable costs and expenses actually incurred or accrued by the Investors (including reasonable fees and expenses of one law firm) in connection any action (including the filing of any lawsuit) taken to collect payment of such amount, together with interest on such unpaid amount at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid to the date of actual payment.

11.3 Right to Rescind Election to Provide Additional Financing. The Investors who have agreed to purchase a majority of the Shares of Series A Preferred Stock to be sold in connection with an Additional Investment may, in their sole and absolute discretion, rescind their election to provide such Additional Investment associated therewith if there shall have been a material breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any of the conditions to such Additional Investment set forth in Section 7 or Section 8 would not be satisfied and such breach is not cured or curable by the date on which all conditions to consummate any Additional Investment have been satisfied.

12. Miscellaneous.

12.1 Survival. The warranties, representations and covenants of the Company and Investors contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing and shall in no way be affected by any investigation of the subject matter thereof made by or on behalf of the Investors or the Company.

12.2 Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties (including transferees of any securities). Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

12.3 Governing Law. This Agreement shall be governed by and construed under the laws of the State of New York without regard to principles of conflicts of law.

12.4 Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

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12.5 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified; (b) when sent by confirmed telex or facsimile or by electronic mail if sent during normal business hours of the recipient, if not, then on the next business day; (c) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the address as set forth on the signature page hereof or at such other address as such party may designate by ten days’ advance written notice to the other parties hereto.

12.6 Finder’s Fee. Each party represents that, except as set forth in the Schedule of Exceptions or in this Section 12.6, it neither is nor will be obligated for any finder’s fee or commission in connection with this transaction. Each Investor agrees to indemnify and to hold harmless the Company from any liability for any commission or compensation in the nature of a finders’ fee (and the costs and expenses of defending against such liability or asserted liability) for which such Investor or any of its officers, partners, employees or representatives is responsible. The Company agrees to indemnify and hold harmless each Investor from any liability for any commission or compensation in the nature of a finders’ fee (and the costs and expenses of defending against such liability or asserted liability) for which the Company or any of its officers, employees or representatives is responsible.

12.7 Expenses; Attorneys’ Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the Restated Certificate, or the Investor Rights Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

12.8 Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), (i) prior to the Closing, only with the written consent of the Company and Investors acquiring in the aggregate more than half the shares of Series A Preferred Stock to be sold pursuant hereto, and (ii) after the Closing, only with the written consent of the Company and the holders of a majority of the Common Stock issuable or issued upon conversion of the Series A Preferred Stock sold pursuant to this Agreement. Any amendment or waiver effected in accordance with this Section 12.8 shall be binding upon each holder of any securities purchased under this Agreement (including securities into which such securities are convertible) at the time outstanding, each future holder of all such Series A Preferred Stock and the Company. The failure of any party to assert any rights or remedies shall not constitute a waiver of such rights or remedies.

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12.9 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.

12.10 Aggregation of Stock. All shares of the Series A Preferred Stock held or acquired by affiliated entities or persons shall be aggregated together for the purpose of determining the availability of any rights under this Agreement.

12.11 Entire Agreement. This Agreement and the documents, schedules and exhibits referred to herein constitute the entire agreement among the parties and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or therein.

12.12 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.


COMPANY:

GOAMERICA, INC.

By:		/s/ Daniel R. Luis
		Name: Daniel R. Luis Title: Chief Executive Officer



Address:		433 Hackensack Avenue Hackensack, NJ 07601 Attn.: Chief Executive Officer

With a copy to:

		Lowenstein Sandler PC 65 Livingston Avenue Roseland, NJ 07068 Attn.: Peter H. Ehrenberg, Esq. Fax No. (973) 597-2400

[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]


INVESTOR:

CCP A, L.P.

By:		CLEARLAKE CAPITAL PARTNERS, LLC
		Its General Partner

By:		CCG Operations, LLC
		Its Managing Member

By:		/s/ Behdad Eghbali
		Name: Behdad Eghbali
		Title: Manager


Address:		650 Madison Avenue, 26th Floor
		New York, NY 10022 Fax No. (212) 610-9121

With a copy to:

		Milbank, Tweed, Hadley & McCloy LLP 601 S. Figueroa St., 30th Floor Los Angeles, CA 90017 Attn.: Melainie K. Mansfield, Esq. Fax No. (213) 892-4711

[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]

SCHEDULE A

Schedule of Investors


Investor	Shares of Series A Preferred Stock	Purchase Price
CCP A, L.P.	6,479,691	$	33,500,000

Total	6,479,691	$	33,500,000

Schedule A-1

EX-7.04 5 dex704.htm CREDIT AGREEMENT Credit Agreement

Exhibit 7.04

Execution Version

CREDIT AGREEMENT

dated as of

August 1, 2007,

among

GOAMERICA, INC.,

THE LENDERS PARTY HERETO

and

CLEARLAKE CAPITAL GROUP, LP,

as Administrative Agent and Collateral Agent

Table of Contents


		Page
ARTICLE I

Definitions

SECTION 1.01.	Defined Terms	1
SECTION 1.02.	Terms Generally	18
SECTION 1.03.	Independence of Covenants	18

ARTICLE II

The Credits

SECTION 2.01.	Commitments	18
SECTION 2.02.	Loans	19
SECTION 2.03.	Evidence of Debt; Repayment of Loans	19
SECTION 2.04.	Interest on Loans	20
SECTION 2.05.	Default Interest	20
SECTION 2.06.	Termination of Commitments	20
SECTION 2.07.	Repayment of Loans	20
SECTION 2.08.	Prepayment	21
SECTION 2.09.	Reserve Requirements; Change in Circumstances	21
SECTION 2.10.	Indemnity	22
SECTION 2.11.	Pro Rata Treatment	23
SECTION 2.12.	Sharing of Setoffs	23
SECTION 2.13.	Payments	23
SECTION 2.14.	Taxes	24
SECTION 2.15.	Assignment of Loans Under Certain Circumstances; Duty to Mitigate	25

ARTICLE III

Representations and Warranties

SECTION 3.01.	Organization; Powers	26
SECTION 3.02.	Authorization	27
SECTION 3.03.	Enforceability	27
SECTION 3.04.	Governmental Approvals	27
SECTION 3.05.	Financial Statements	27
SECTION 3.06.	No Material Adverse Change	28
SECTION 3.07.	Title to Properties; Possession Under Leases; Intellectual Property	28
SECTION 3.08.	Subsidiaries	28
SECTION 3.09.	Litigation; Compliance with Laws	28
SECTION 3.10.	Agreements	29


		Page
SECTION 3.11.	Federal Reserve Regulations	29
SECTION 3.12.	Government Regulation	29
SECTION 3.13.	Use of Proceeds	29
SECTION 3.14.	Taxes	29
SECTION 3.15.	Disclosure	30
SECTION 3.16.	Employee Benefit Plans	30
SECTION 3.17.	Environmental Matters	31
SECTION 3.18.	Insurance	31
SECTION 3.19.	Security Documents	31
SECTION 3.20.	Location of Real Property and Leased Premises	32
SECTION 3.21.	Labor Matters	32
SECTION 3.22.	Solvency	32
SECTION 3.23.	Transaction Documents	32
SECTION 3.24.	Financial Advisors	33
SECTION 3.25.	Foreign Assets Control Regulations, Etc	33
SECTION 3.26.	Representations of other Loan Parties	33
SECTION 3.27.	Loans to Officers and Directors	34
SECTION 3.28.	Internal Controls	34
SECTION 3.29.	Subordinated Indebtedness; Ranking	34

ARTICLE IV

Conditions of Lending

SECTION 4.01.	Conditions to Tranche A Loans	34
SECTION 4.02.	Conditions to Tranche B Loans	37

ARTICLE V

Affirmative Covenants

SECTION 5.01.	Existence; Compliance with Laws; Businesses and Properties	38
SECTION 5.02.	Insurance	39
SECTION 5.03.	Obligations and Taxes	39
SECTION 5.04.	Financial Statements, Reports, etc	39
SECTION 5.05.	Litigation and Other Notices	40
SECTION 5.06.	Information Regarding Collateral	41
SECTION 5.07.	Maintaining Records; Access to Properties and Inspections	41
SECTION 5.08.	Use of Proceeds	42
SECTION 5.09.	Employee Benefits	42
SECTION 5.10.	Compliance with Environmental Laws	42
SECTION 5.11.	Preparation of Environmental Reports	42
SECTION 5.12.	Further Assurances	42
SECTION 5.13.	Assignability of Contracts	43


		Page
SECTION 5.14.	Ranking	44
SECTION 5.15.	Post-Closing Covenants	44

ARTICLE VI

Negative Covenants

SECTION 6.01.	Indebtedness	45
SECTION 6.02.	Liens	46
SECTION 6.03.	Sale and Lease-Back Transactions	49
SECTION 6.04.	Investments, Loans and Advances	49
SECTION 6.05.	Acquisitions, Consolidations, Sales of Assets and Acquisitions	51
SECTION 6.06.	Restricted Payments; Restrictive Agreements	51
SECTION 6.07.	Transactions with Affiliates	52
SECTION 6.08.	Business of the Borrower and its Subsidiaries	52
SECTION 6.09.	Other Indebtedness and Agreements	52
SECTION 6.10.	Minimum Liquidity	53
SECTION 6.11.	Fiscal Year	53
SECTION 6.12.	Certain Equity Securities	53
SECTION 6.13.	Amendments or Waivers of Documents Relating to Indebtedness	53
SECTION 6.14.	Wholly-Owned Subsidiaries	53
SECTION 6.15.	Excluded Subsidiaries	53

ARTICLE VII

Events of Default

ARTICLE VIII

The Administrative Agent and the Collateral Agent

ARTICLE IX

Miscellaneous

SECTION 9.01.	Notices	59
SECTION 9.02.	Survival of Agreement	60
SECTION 9.03.	Binding Effect	60
SECTION 9.04.	Successors and Assigns	61
SECTION 9.05.	Expenses; Indemnity	64
SECTION 9.06.	Right of Setoff	66
SECTION 9.07.	Applicable Law	66
SECTION 9.08.	Waivers; Amendment	66

iii


		Page
SECTION 9.09.	Interest Rate Limitation	67
SECTION 9.10.	Entire Agreement	67
SECTION 9.11.	WAIVER OF JURY TRIAL	67
SECTION 9.12.	Severability	68
SECTION 9.13.	Counterparts	68
SECTION 9.14.	Headings	68
SECTION 9.15.	Jurisdiction; Consent to Service of Process	68
SECTION 9.16.	Confidentiality	69
SECTION 9.17.	USA PATRIOT Act Notice	70


SCHEDULES

Schedule 1.01(a)	-	Excluded Subsidiaries
Schedule 1.01(b)	-	Subsidiary Guarantors
Schedule 2.01	-	Lenders and Commitments
Schedule 3.08	-	Subsidiaries
Schedule 3.18	-	Insurance
Schedule 3.19	-	UCC Filing Offices
Schedule 3.20	-	Leased Real Property
Schedule 3.24	-	Financial Advisors
Schedule 6.01	-	Existing Indebtedness
Schedule 6.02	-	Existing Liens
Schedule 6.04	-	Existing Investments

EXHIBITS

Exhibit A	-	Form of Administrative Questionnaire
Exhibit B	-	Form of Assignment and Acceptance
Exhibit C	-	Form of Guarantee and Collateral Agreement
Exhibit D	-	Form of Promissory Note
Exhibit E	-	Form of Opinion of Lowenstein Sandler PC
Exhibit F	-	Form of Borrowing Notice

CREDIT AGREEMENT dated as of August 1, 2007, among GOAMERICA, INC., a Delaware corporation (the “Borrower”), the Lenders (as defined in Article I), and CLEARLAKE CAPITAL GROUP, LP, a Delaware limited partnership, as administrative agent (in such capacity, the “Administrative Agent”) and as collateral agent (in such capacity, the “Collateral Agent”) for the Lenders.

PRELIMINARY STATEMENT

The Borrower seeks to acquire all or substantially all of the assets of the Tele Relay Services division of Verizon Communications Inc. (the “TRS Division” and such acquisition, the “Acquisition”).

In connection with the signing of the definitive asset purchase agreement for the Acquisition (the “Acquisition Agreement”), the Borrower has requested the Lenders to extend credit in the form of (i) Loans made on the Closing Date in an aggregate principal amount of $1,000,000 and (ii) Loans made from time to time thereafter in an aggregate principal amount of up to $2,500,000. The proceeds of the Loans made on the Closing Date are to be used solely (a) to pay the $1,000,000 deposit payable by the Borrower upon the signing of the Acquisition Agreement (the “Deposit”), (b) for working capital and (c) to pay fees and expenses incurred in connection with the foregoing.

The Lenders are willing to extend such credit to the Borrower on the terms and subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:

ARTICLE I

Definitions

SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have the meanings specified below:

“Acquired Entity” shall have the meaning assigned to such term in Section 6.04(g).

“Acquisition” shall have the meaning assigned to such term in the preliminary statement to this Agreement.

“Acquisition Agreement” shall have the meaning assigned to such term in the preliminary statement to this Agreement.

“Acquisition Documents” shall mean the Acquisition Agreement, the Managed Services Agreement, the Debt Commitment Letter and the Stock Purchase Agreement (including, in each case, the Exhibits, Annexes and Schedules thereto).

“Adjusted LIBO Rate” shall mean, with respect to any Interest Period, an interest rate per annum equal to the product of (a) the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves.

“Administrative Agent” shall have the meaning assigned to such term in the Preamble.

“Administrative Questionnaire” shall mean an Administrative Questionnaire in the form of Exhibit A, or such other form as may be supplied from time to time by the Administrative Agent.

“Affiliate” shall mean, when used with respect to a specified person, another person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the person specified; provided, however, that, for purposes of Section 6.07, the term “Affiliate” shall also include any person that directly or indirectly owns 5% or more of any class of Equity Interests of the person specified or that is an officer or director of the person specified.

“Agents” shall have the meaning assigned to such term in Article VIII.

“Agreement” shall mean this Credit Agreement.

“Applicable Cash Percentage” shall mean, for any day, with respect to any Loan, 4.00% per annum.

“Applicable Percentage” shall mean, for any day, with respect to any Loan, the sum of the Applicable Cash Percentage and the Applicable PIK Percentage.

“Applicable PIK Percentage” shall mean, for any day, with respect to any Loan, 4.00% per annum.

“Article 9 Collateral” shall have the meaning assigned to such term in the Guarantee and Collateral Agreement.

“Asset Sale” shall mean the sale, transfer or other disposition (by way of acquisition, casualty, condemnation or otherwise) by the Borrower or any Subsidiary to any person other than the Borrower or any Subsidiary Guarantor of (a) any Equity Interests of any Subsidiary (other than directors’ qualifying shares and shares required by applicable law to be held by foreign nationals (but only to the extent of such requirement)) or (b) any other assets of the Borrower or any Subsidiary (other than (i) inventory, damaged, obsolete, excess or worn out assets, scrap and Permitted Investments, in each case disposed of in the ordinary course of business, (ii) dispositions between or among Foreign Subsidiaries and (iii) any sale, transfer or other disposition (including casualty losses and condemnations) or series of related sales, transfers or other dispositions having a value not in excess of $5,000).

“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an assignee, and accepted by the Administrative Agent, in the form of Exhibit B or such other form as shall be approved by the Administrative Agent.

“Board” shall mean the Board of Governors of the Federal Reserve System of the United States of America.

“Borrowing” means a borrowing of Tranche B Loans made by the Lenders pursuant to Sections 2.01(b) to (d).

“Borrowing Notice” means a written request for a Borrowing delivered pursuant to Section 2.01(c), substantially in the form of Exhibit F.

“Borrower” shall have the meaning assigned to such term in the Preamble.

“Breakage Event” shall have the meaning assigned to such term in Section 2.10.

“Business Day” shall mean any day other than a Saturday, Sunday or day on which banks in New York City are authorized or required by law to close and any day on which banks are not open for dealings in dollar deposits in the London interbank market.

“Called Principal” means, with respect to any Loan, the principal of such Loan that is to be prepaid pursuant to Section 2.08 or has become or is declared to be immediately due and payable pursuant to Article VII.

“Capital Lease Obligations” of any person shall mean the obligations of such person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

“Change in Control” shall mean the occurrence of any of the following on or after the Closing Date:

(a) the direct or indirect sale, lease, transfer conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole;

(b) any “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) becomes the “beneficial owner” (within the meaning of Rule 13d-3 of the SEC under the Exchange Act) of more than 30% of the Equity Interests of the Borrower having the right to vote for the election of members of the Board of Directors thereof;

(c) individuals who on the Closing Date constitute the Board of Directors of the Borrower (together with any new directors whose appointment by the Board of Directors of the Borrower or whose nomination by the Board of Directors of the Borrower for election by the Borrower’s stockholders was approved by a vote of at least a majority of the members of the Board of Directors then in office who either were members of the Board of Directors on the Closing Date or whose appointment or nomination for election was previously so approved) cease for any reason to constitute a majority of the members of the board of directors then in office; and

(d) any change in control (or similar event, however denominated) with respect to the Borrower or any other Subsidiary shall occur under and as defined in any indenture or agreement in respect of Material Indebtedness to which the Borrower or any other Subsidiary is a party to the extent such change in control constitutes an “event of default” thereunder.

“Change in Law” shall mean (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender (or, for purposes of Section 2.09, by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement.

“Charges” shall have the meaning assigned to such term in Section 9.09.

“Closing Date” shall mean August 1, 2007.

“Closing Date Projections” shall have the meaning assigned to such term in Section 4.01.

“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

“Collateral” shall mean all the “Collateral” as defined in any Security Document and shall also include the Mortgaged Properties, if any.

“Collateral Agent” shall have the meaning assigned to such term in the Preamble.

“Commitment” shall mean, with respect to each Lender, such Lender’s Tranche A Commitment and such Lender’s Tranche B Commitment. The initial aggregate amount of the Lenders’ Commitments is $3,500,000.

“Contingent Obligation”, as applied to any person, means any direct or indirect liability, contingent or otherwise, of that person (i) with respect to any Indebtedness, lease, dividend or other obligation of another if the primary purpose or intent thereof by the person incurring the Contingent Obligation is to provide assurance to the obligee of such obligation of another that such obligation of another will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such obligation will be protected (in whole or in part) against loss in respect thereof, (ii) with respect to any acceptance, letter of credit or surety bond or similar facility issued for the account of that person or as to which that person is otherwise liable for reimbursement of drawings, or (iii) under Hedging Agreements. Contingent Obligations shall include (a) the direct or indirect Guarantee, 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, (b) the obligation to make take-or-pay or similar payments if required regardless of non-performance by any other party or parties to an agreement, and (c) any liability of such person for the obligation of another

through any agreement (contingent or otherwise) (1) 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 (2) 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 (1) or (2) of this sentence, the primary purpose or intent thereof is as described in the preceding sentence. The amount of any Hedging Agreement shall be the amount determined in respect thereof as of the end of the then most recently ended fiscal quarter of such person, based on the assumption that such Hedging Agreement had terminated at the end of such fiscal quarter, and in making such determination, if any agreement relating to such Hedging Agreement provides for the netting of amounts payable by and to such person thereunder or if any such agreement provides for the simultaneous payment of amounts by and to such person, then in each such case, the amount of such obligation shall be the net amount so determined. The amount of any other Contingent Obligation shall be equal to the amount of the obligation so guaranteed or otherwise supported or, if less, the amount to which such Contingent Obligation is specifically limited.

“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.

“Credit Facilities” shall mean the loan facilities provided for by this Agreement.

“Debt Commitment Letter” shall mean that certain Debt Financing Commitment Letter of even date herewith, by and between Clearlake Capital Group, LP and the Borrower.

“Default” shall mean any event or condition which upon notice, lapse of time or both would constitute an Event of Default.

“Deposit” shall have the meaning assigned to such term in the preliminary statement to this Agreement.

“Disqualified Stock” shall mean any Equity Interest that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, or requires the payment of any cash dividend or any other scheduled payment constituting a return of capital, in each case at any time on or prior to the six-month anniversary of the Stated Maturity, or (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interest referred to in clause (a) above, in each case at any time prior to the six-month anniversary of the Stated Maturity.

“dollars” or “$” shall mean lawful money of the United States of America.

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

“Employee” means any current officer, director, consultant, employee, independent contractor, agent and other person, who renders services to the Borrower or any of its Subsidiaries.

“Environmental Laws” shall mean all applicable former, current and future Federal, state, local and foreign laws (including common law), treaties, regulations, rules, ordinances, codes, decrees, judgments, directives, orders (including consent orders), and agreements in each case, relating to protection of the environment, natural resources, human health and safety or the presence, Release of, or exposure to, Hazardous Materials, or the generation, manufacture, processing, distribution, use, treatment, storage, transport, recycling or handling of, or the arrangement for such activities with respect to, Hazardous Materials.

“Environmental Liability” shall mean all liabilities, obligations, damages, losses, claims, actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including administrative oversight costs, natural resource damages and remediation costs), whether contingent or otherwise, arising out of or relating to (a) compliance or non-compliance with any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Equity Interests” shall mean shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity interests in any person, and any option, warrant or other right entitling the holder thereof to purchase or otherwise acquire any such equity interest.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time.

“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

“ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day notice period is waived), (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived, (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum

funding standard with respect to any Plan, (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan or the withdrawal or partial withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan, (e) the receipt by the Borrower or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, (f) the receipt by the Borrower or any of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from the Borrower or any of its ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (g) the occurrence of a “prohibited transaction” with respect to which the Borrower or any of the Subsidiaries is a “disqualified person” (within the meaning of Section 4975 of the Code) or with respect to which the Borrower or any such Subsidiary could otherwise be liable or (h) any other event or condition with respect to a Plan or Multiemployer Plan that could result in liability of the Borrower or any Subsidiary.

“Event of Default” shall have the meaning assigned to such term in Article VII.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

“Excluded Subsidiary” means each Subsidiary set forth on Schedule 1.01(a) that has been designated by the Borrower as an Excluded Subsidiary (and as to which such designation has not been withdrawn by the Borrower in a written notice to the Administrative Agent or deemed withdrawn pursuant to Section 6.15); provided that (a) the combined gross revenue of all Excluded Subsidiaries for the period of four fiscal consecutive quarters most recently ended does not exceed $5,000, (b) the combined total assets of the Excluded Subsidiaries at any time is less than $5,000 and (c) no Excluded Subsidiary owns or possesses any Intellectual Property or other assets that are material to the business of the Borrower and its Subsidiaries, taken as a whole.

“Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income, profits or gains (however denominated) by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (a) above and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 2.15(a)), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Foreign Lender’s failure to comply with Section 2.14(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 2.14(a).

“Expense Reimbursement Letter” shall mean that certain letter agreement regarding expense reimbursement of even date herewith, between the Borrower and the Administrative Agent.

“Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“Financial Officer” of any person shall mean the chief financial officer, principal accounting officer, treasurer or controller of such person.

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

“Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.

“GAAP” shall mean United States generally accepted accounting principles applied on a consistent basis.

“Governmental Authority” shall mean any Federal, state, local or foreign court or governmental agency, authority, instrumentality, regulatory body, board or commission.

“Granting Lender” shall have the meaning assigned to such term in Section 9.04(i).

“Guarantee” of or by any person shall mean any obligation, contingent or otherwise, of such person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other person (the ”primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such person, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness or other obligation, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment of such Indebtedness or other obligation or (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation; provided, however, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.

“Guarantee and Collateral Agreement” shall mean the Guarantee and Collateral Agreement, substantially in the form of Exhibit C, among the Borrower, the Subsidiaries party thereto, and the Collateral Agent for the benefit of the Secured Parties.

“Hazardous Materials” shall mean (a) any petroleum products or byproducts and all other hydrocarbons, coal ash, radon gas, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, chlorofluorocarbons and all other ozone-depleting substances and (b) any chemical, material, substance or waste that is prohibited, limited or regulated by or pursuant to any Environmental Law.

“Hedging Agreement” shall mean any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.

“Indebtedness” of any person shall mean, without duplication, (a) all obligations of such person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such person upon which interest charges are customarily paid, (d) all obligations of such person under conditional sale or other title retention agreements relating to property or assets purchased by such person, (e) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding accounts payable incurred in the ordinary course of business and not more than 120 days overdue except to the extent such accounts payable are being contested in good faith by the Borrower or the applicable Subsidiary), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such person, whether or not the obligations secured thereby have been assumed, (g) all Guarantees by such person of Indebtedness of others, (h) all Capital Lease Obligations of such person, (i) all obligations of such person as an account party in respect of letters of credit and (j) all obligations of such person in respect of bankers’ acceptances. The Indebtedness of any person shall include the Indebtedness of any partnership in which such person is a general partner.

“Indemnified Taxes” shall mean Taxes other than Excluded Taxes.

“Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).

“Information” shall have the meaning assigned to such term in Section 9.16.

“Intellectual Property” shall have the meaning assigned to such term in the Guarantee and Collateral Agreement.

“Interest Payment Date” means (a) the 1st day of each month, commencing September 1, 2007, provided if any such day is not a Business Day, such Interest Payment Date shall be extended to the next succeeding Business Day and interest shall accrue for each day of such extension and (b) the date of any payment of principal in accordance with this Agreement.

“Interest Period” means a period commencing on an Interest Payment Date and ending on the next succeeding Interest Payment Date determined under clause (a) of the definition thereof; provided that (x) the first Interest Period for any Tranche A Loan shall commence on the Closing Date and end on the next succeeding Interest Payment Date, (y) the first Interest Period for any Tranche B Loan shall commence on the date such Tranche B Loan is funded by the Lenders and end on the next succeeding Interest Payment Date, and (z) no Interest Period with respect to any portion of the Loans shall extend beyond the Maturity Date. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.

“Lenders” shall mean (a) the persons listed on Schedule 2.01 (other than any such person that has ceased to be a party hereto pursuant to an Assignment and Acceptance) and (b) any person that has become a party hereto pursuant to an Assignment and Acceptance.

“LIBO Rate” means, with respect to any Interest Period, the rate appearing on Reuters Page LIBOR01 (or on any successor or substitute page or service providing rate quotations comparable to those currently provided on such page, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., New York time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a three-month maturity (rounded upward to the nearest 1/16 of one percent). In the event that such rate is not available at such time for any reason, then the “LIBO Rate” with respect to such Interest Period shall be the three-month London Interbank Offered Rate (rounded upward to the nearest 1/16 of one percent) as published in The Wall Street Journal on such date of determination, and if this later index ceases to exist or is no longer published or announced, then the term “LIBO Rate” means the Prime Rate (rounded upward to the nearest 1/16 of one percent) as published in The Wall Street Journal on such date of determination. The LIBO Rate shall be determined on any date of determination by the Administrative Agent or, if no Administrative Agent then exists, by the Lender of the Loan on which interest is owed.

“Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest in or on such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

“Liquidity” shall mean, as of any date, the aggregate amount of cash and Permitted Investments owned by the Loan Parties on such date.

“Loan Documents” shall mean this Agreement, the Security Documents and the promissory notes executed and delivered pursuant to Section 2.03(d).

“Loan Parties” shall mean collectively, the Borrower and the Subsidiary Guarantors (including, for the avoidance of doubt, each Subsidiary that has ceased to be an Excluded Subsidiary and is required to execute and deliver the Guarantee and Collateral Agreement pursuant to Section 5.12).

“Loans” shall mean the Tranche A Loans, the Tranche B Loans and any PIK interest paid hereunder.

“Make-Whole Amount” means, with respect to any Loan, an amount equal to the aggregate amount of interest that would have otherwise been payable from and including the date of prepayment through but excluding the Stated Maturity on the Called Principal (taking into account the capitalization of PIK interest), minus the aggregate amount of interest the Lenders would earn if the Called Principal were reinvested for the period from the date of prepayment through the Stated Maturity at the Treasury Rate plus 0.50%.

“Managed Services Agreement” shall mean that certain Managed Services Agreement of even date herewith, by and between the Borrower and Stellar Nordia Services LLC, a Nevada limited liability company.

“Margin Stock” shall have the meaning assigned to such term in Regulation U. “Material Adverse Change” shall mean a Material Adverse Effect or the existence of any action, suit, investigation, litigation or proceeding pending or threatened that (i) would reasonably be expected to (A) have a material adverse effect on the assets, liabilities, customer or supplier relationships, financial condition, operations or results of operations of the Borrower and its Subsidiaries and the TRS Division taken as a whole, (B) materially adversely affect the ability of the Borrower and its Subsidiaries to perform its obligations under the Acquisition Agreement or the Loan Documents or (ii) would reasonably be expected to materially adversely affect the Acquisition or the Transactions or prevent the anticipated use of the proceeds of the Loans.

“Material Adverse Effect” shall mean a material adverse change in the assets, liabilities, customer or supplier relationships, financial condition, operations or results of operations of the Borrower and its Subsidiaries and the TRS Division taken as a whole, provided, however, in each case, not including any change that (A) is generally applicable to the U.S. economy, (B) is generally applicable to Internet protocol data and voice providers, (C) results from the execution of the Acquisition Agreement or the announcement of the Acquisition Agreement or (D) relates to changes in generally accepted accounting principles generally applicable to companies serving as Internet protocol data and voice providers occurring after the date of the Acquisition Agreement.

“Material Indebtedness” shall mean Indebtedness (other than the Loans), or obligations in respect of one or more Hedging Agreements, of any one or more of the Borrower or any Subsidiary in an aggregate principal amount exceeding $250,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Subsidiary in respect of any Hedging Agreement at any time shall

be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.

“Maturity Date” shall mean the earliest of (i) consummation of the Acquisition, (ii) the date that is 90 days after the termination of the Acquisition Agreement or (iii) Stated Maturity.

“Maximum Rate” shall have the meaning assigned to such term in Section 9.09.

“Moody’s” shall mean Moody’s Investors Service, Inc., or any successor thereto.

“Mortgaged Properties” shall mean each parcel of real property and improvements thereto with respect to which a Mortgage is granted pursuant to Section 5.12.

“Mortgages” shall mean the mortgages, deeds of trust, leasehold mortgages, assignments of leases and rents, modifications and other security documents delivered pursuant to Section 5.12.

“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

“Net Cash Proceeds” shall mean, with respect to any Asset Sale, the cash proceeds (including cash proceeds subsequently received (as and when received) in respect of noncash consideration initially received), net of (i) selling expenses (including reasonable broker’s fees or commissions, legal and other professional fees, transfer and similar taxes and the Borrower’s good faith estimate of income taxes paid or payable in connection with such sale), (ii) amounts provided as a reserve, in accordance with GAAP, against any liabilities under any indemnification obligations or purchase price adjustment associated with such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds) and (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness which is secured by the asset sold in such Asset Sale and which is required to be repaid with such proceeds (other than any such Indebtedness assumed by the purchaser of such asset); provided, however, that, if (x) the Borrower shall deliver a certificate of a Financial Officer to the Administrative Agent at the time of receipt thereof setting forth the Borrower’s intent to reinvest such proceeds in productive assets of a kind then used or usable in the business of the Borrower and its Subsidiaries within 180 days of receipt of such proceeds and (y) no Default or Event of Default shall have occurred and shall be continuing at the time of such certificate or at the proposed time of the application of such proceeds, such proceeds shall not constitute Net Cash Proceeds except to the extent not so used at the end of such 180-day period, at which time such proceeds shall be deemed to be Net Cash Proceeds.

“Obligations” shall mean all obligations of every nature of each Loan Party from time to time owed to the Collateral Agent, the Administrative Agent, the Lenders or any of them under the Loan Documents, whether for principal, interest, Make-Whole Amount, fees, expenses, indemnification or otherwise.

“OFAC” shall have the meaning assigned to such term in Section 3.25(d).

“Organizational Documents” means with respect to any person, its charter, certificate or articles of incorporation, bylaws, articles of organization, operating agreement, members agreement, partnership agreement, voting trust, or similar agreement or instrument governing the formation or operation of such person.

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

“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.

“Perfection Certificate” shall mean the Perfection Certificate substantially in the form of Exhibit B to the Guarantee and Collateral Agreement.

“Permitted Acquisition” shall have the meaning assigned to such term in Section 6.04(g).

“Permitted Investments” shall mean:

(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;

(b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;

(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof that has a combined capital and surplus and undivided profits of not less than $500,000,000;

(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria of clause (c) above;

(e) investments in “money market funds” within the meaning of Rule 2a-7 of the Investment Company Act of 1940, as amended, substantially all of whose assets are invested in investments of the type described in clauses (a) through

(d)	above; and

(f) investments in so-called “auction rate” securities rated AAA or higher by S&P or Aaa or higher by Moody’s and which have a reset date not more than 90 days from the date of acquisition thereof.

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

“PIK” shall have the meaning assigned to such term in Section 2.04(b).

“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“Qualified Capital Stock” of any person shall mean any Equity Interest of such person that is not Disqualified Stock.

“Register” shall have the meaning assigned to such term in Section 9.04(d).

“Regulation T” shall mean Regulation T of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“Regulation U” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“Regulation X” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

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

“Related Parties” shall mean, with respect to any specified person, such person’s Affiliates and the respective directors, trustees, officers, employees, agents and advisors of such person and such person’s Affiliates.

“Release” shall mean any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or within or upon any building, structure, facility or fixture.

“Required Lenders” shall mean, at any time, Lenders having Loans and Commitments representing more than 50% of the sum of all Loans and Commitments at such time; provided that, for purposes of any determination to provide a requested Tranche B Loan under Section 2.01(d), “Required Lenders” shall mean Lenders having Commitments representing more than 50% of all Commitments at such time.

“Responsible Officer” of any person shall mean any executive officer or Financial Officer of such person and any other officer or similar official thereof responsible for the administration of the obligations of such person in respect of this Agreement.

“Restricted Indebtedness” shall mean Indebtedness of the Borrower or any Subsidiary, the payment, prepayment, repurchase or defeasance of which is restricted under Section 6.09(b).

“Restricted Payment” shall mean any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in the Borrower or any Subsidiary.

“S&P” shall mean Standard & Poor’s Ratings Service, or any successor thereto.

“SEC” shall mean the United States Securities and Exchange Commission.

“Secured Parties” shall have the meaning assigned to such term in the Guarantee and Collateral Agreement.

“Security Documents” shall mean the Guarantee and Collateral Agreement, the Mortgages, if any, and each of the security agreements, mortgages and other instruments and documents executed and delivered pursuant to any of the foregoing or pursuant to Section 5.12.

“Solvent” shall have the meaning assigned to such term in Section 3.22.

“SPC” shall have the meaning assigned to such term in Section 9.04(i).

“Stated Maturity” shall mean August 2, 2008.

“Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board and any other banking authority, domestic or foreign, to which the Administrative Agent or any Lender (including any branch, Affiliate or other fronting office making or holding a Loan) is subject for Eurocurrency Liabilities (as defined in Regulation D of the Board). Loans bearing interest at a rate determined by reference to the Adjusted LIBO

Rate shall be deemed to constitute Eurocurrency Liabilities as defined in Regulation D of the Board and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D. Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

“Stock Purchase Agreement” shall mean that certain Stock Purchase Agreement of even date herewith, by and between CCP A, L.P. and the Borrower.

“Subsidiary” shall mean, with respect to any person (herein referred to as the “parent”), any corporation, partnership, limited liability company, association or other business entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, owned, Controlled or held, or (b) that is, at the time any determination is made, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Borrower after giving effect to the transactions contemplated by the Transaction Documents.

“Subsidiary Guarantor” shall mean each Subsidiary listed on Schedule 1.01(b), and each other Subsidiary that is or becomes a party to the Guarantee and Collateral Agreement or otherwise provides a guarantee in respect of the Obligations.

“Synthetic Purchase Agreement” shall mean any swap, derivative or other agreement or combination of agreements pursuant to which the Borrower or any Subsidiary is or may become obligated to make (a) any payment in connection with a purchase by any third party from a person other than the Borrower or any Subsidiary of any Equity Interest or Restricted Indebtedness or (b) any payment (other than on account of a permitted purchase by it of any Equity Interest or Restricted Indebtedness) the amount of which is determined by reference to the price or value at any time of any Equity Interest or Restricted Indebtedness; provided that no phantom stock or similar plan providing for payments only to current or former directors, officers or employees of the Borrower or the Subsidiaries (or to their heirs or estates) shall be deemed to be a Synthetic Purchase Agreement.

“Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.

“Terrorism Order” shall have the meaning assigned to such term in Section 3.25.

“Tranche A Commitment” shall mean, with respect to each Lender, the commitment of such Lender to make Tranche A Loans hereunder as set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender assumed its Tranche A Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.06 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial aggregate amount of the Lenders’ Tranche A Commitments is $1,000,000.

“Tranche B Commitment” shall mean, with respect to each Lender, the commitment of such Lender to make Tranche B Loans hereunder as set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender assumed its Tranche B Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.06 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial aggregate amount of the Lenders’ Tranche B Commitments is $2,500,000.

“Tranche A Loans” shall mean the loans made by the Lenders to the Borrower pursuant to Section 2.01(a) hereof and any PIK interest paid thereon.

“Tranche B Loans” shall mean the loans made by the Lenders to the Borrower pursuant to Section 2.01(b) through (d) hereof and any PIK interest paid thereon.

“Transaction Documents” shall mean the Acquisition Agreement and all material exhibits and schedules thereto and all agreements expressly contemplated thereby and the Loan Documents, in each case as amended from time to time in accordance with the terms hereof and thereof.

“Transactions” shall mean, collectively, the transactions to occur on or about the Closing Date pursuant to the Transaction Documents, including (a) the signing of the Acquisition Agreement; (b) the signing of the Managed Services Agreement; (c) the payment of the Deposit; (d) the execution and delivery of the Loan Documents and the borrowings hereunder; and (e) the payment of related fees and expenses.

“Treasury Rate” shall mean a rate per annum (computed on the basis of actual days elapsed over a year of 360 days) equal to the rate determined by the Required Lenders on the date 3 Business Days prior to the date of prepayment, to be the yield expressed as a rate listed in The Wall Street Journal for United States Treasury securities having a term ending closest to, but prior to, the Stated Maturity.

“TRS Division” shall have the meaning assigned to such term in the preliminary statement to this Agreement.

“USA PATRIOT Act” shall mean The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)).

“wholly owned Subsidiary” of any person shall mean a subsidiary of such person of which securities (except for directors’ qualifying shares) or other ownership interests representing 100% of the Equity Interests are, at the time any determination is being made, owned, Controlled or held by such person or one or more wholly owned Subsidiaries of such person or by such person and one or more wholly owned Subsidiaries of such person.

“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”; and the words “asset” and “property” shall be construed as having the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Except as otherwise expressly provided herein, (a) any reference in this Agreement to any Loan Document shall mean such document as amended, restated, supplemented or otherwise modified from time to time and (b) all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided, however, that if the Borrower notifies the Administrative Agent that the Borrower wishes to amend any covenant in Article VI or any related definition to eliminate the effect of any change in GAAP occurring after the date of this Agreement on the operation of such covenant (or if the Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article VI or any related definition for such purpose), then the Borrower’s compliance with such covenant shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Borrower and the Required Lenders.

SECTION 1.03. 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 as an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of an Event of Default or Default if such action is taken or condition exists.

ARTICLE II

The Credits

SECTION 2.01. Commitments. (a) Subject to the terms and conditions and relying upon the representations and warranties herein set forth, each Lender agrees, severally and not jointly, to make a Tranche A Loan to the Borrower on the Closing Date in a principal amount not to exceed its Tranche A Commitment, at a purchase price of 96.5% of par.

(b) If requested by the Borrower pursuant to Section 2.01(c) after the Closing Date but prior to the termination or expiration of the Commitments, the Lenders may, in the sole discretion of the Required Lenders, make Tranche B Loans to the Borrower from time to time in an aggregate principal amount not to exceed their respective Tranche B Commitments, at a purchase price of 100.0% of par.

(c) If the Borrower wishes to request that the Lenders make a Tranche B Loan, the Borrower shall deliver to the Administrative Agent and the Lenders a duly completed Borrowing Notice not later than 1:00 p.m. New York City time on a Business Day that is not less than ten (10) Business Days prior to the requested funding date for such Borrowing. Each such Borrowing Notice shall be irrevocable and shall specify (i) the requested date of the Borrowing (which shall be a Business Day), (ii) the principal amount of Tranche B Loans requested to be borrowed in such Borrowing (which shall not be less than the lesser of (A) $500,000, and (B) all remaining Tranche B Commitments), (iii) the expected use of proceeds of such Tranche B Loans and (iv) such other information relating to the Borrowing set forth in the Borrowing Notice.

(d) If, within seven (7) Business Days of receipt of a Borrowing Notice, Lenders constituting the Required Lenders shall have notified the Administrative Agent and the Borrower that they are willing to provide the requested Tranche B Loan, the Lenders shall, subject to satisfaction of the conditions set forth in Section 4.02 hereof and relying upon the representations and warranties herein set forth, fund their respective pro rata portions of such Tranche B Loan on the requested funding date in accordance with their respective Tranche B Commitments.

(e) Amounts paid or prepaid in respect of Loans may not be reborrowed.

SECTION 2.02. Loans. (a) The failure of any Lender to make any Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to make any Loan required to be made by such other Lender).

(b) Each Lender shall make the Tranche A Loan to be made by it hereunder on the Closing Date by wire transfer of immediately available funds to such account in New York City as the Borrower may designate not later than 1:00 p.m., New York City time. Each Lender shall make any Tranche B Loan to be made by it hereunder on the requested funding date by wire transfer of immediately available funds to such account in New York City as the Borrower may designate not later than 1:00 p.m., New York City time.

SECTION 2.03. Evidence of Debt; Repayment of Loans. (a) The Borrower hereby unconditionally promises to pay to each Lender the principal amount of each Loan of such Lender as provided in Section 2.07.

(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from the Loan made by such Lender, including the amounts of principal and cash and PIK interest payable and paid to such Lender from time to time under this Agreement.

(c) The entries made in the accounts maintained pursuant to paragraph (b) above shall be prima facie evidence of the existence and amounts of the obligations therein recorded; provided, however, that the failure of any Lender to maintain such accounts or any error therein shall not in any manner affect the obligations of the Borrower to repay the Loans in accordance with their terms.

(d) On the Closing Date, the Borrower shall execute and deliver to each Lender a promissory note payable to such Lender and its registered assigns in substantially the form attached hereto as Exhibit D.

SECTION 2.04. Interest on Loans. (a) Subject to the provisions of Section 2.05, the Loans shall bear interest (computed on the basis of the actual number of days elapsed over a year of 360 days) at a rate per annum equal to the Adjusted LIBO Rate then in effect plus the Applicable Percentage.

(b) Interest on each Loan shall be payable in cash on the Interest Payment Dates except as otherwise provided in this Agreement; provided that a portion of the interest on the Loans representing interest at a rate per annum equal to the Applicable PIK Percentage shall be payable in kind (“PIK”) on the Interest Payment Dates in the form of additional Loans (valued at 100% of the face amount thereof, which shall be rounded upward to the nearest $1.00). The applicable Adjusted LIBO Rate for each Interest Period or day within an Interest Period, as the case may be, shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

SECTION 2.05. Default Interest. If any Event of Default occurs and continues unremedied for two Business Days, to the extent permitted by law, the Obligations shall, while such Event of Default exists, bear cash interest (after as well as before judgment), payable on demand, at the rate otherwise applicable to a Loan pursuant to Section 2.04 plus 2.00% per annum.

SECTION 2.06. Termination of Commitments. The Tranche A Commitments shall automatically terminate upon the making of the Loans on the Closing Date. All Commitments shall automatically terminate at 5:00 p.m., New York City time, on December 31, 2007 if the Closing Date shall not have occurred by such time.

SECTION 2.07. Repayment of Loans. To the extent not previously paid, all Loans (including capitalized PIK interest) shall be due and payable on the Maturity Date together with accrued and unpaid cash and PIK interest on the principal amount to be paid to but excluding the date of payment. The Borrower shall pay all such amounts to the Lenders on the Maturity Date or, if the Maturity Date is not a Business Day, on the next preceding Business Day. Notwithstanding anything to the contrary in the foregoing or in the definition of “Maturity Date”, any repayment of the Loans on the date of consummation of the Acquisition shall be deemed an optional prepayment of the Loans pursuant to Section 2.08(a) hereof (but not subject to Section 2.08(b)) unless (i) the Loans are repaid with the proceeds of a debt financing provided by the Agent or its Affiliates or (ii) the Loans are not repaid with the proceeds of a debt financing provided by the Agent or its Affiliates solely as a result of a breach by the Agent or such Affiliates of its obligation to provide such debt financing under the Debt Commitment Letter.

SECTION 2.08. Prepayment. (a) The Borrower shall have the right at any time and from time to time to prepay any of the Loans, in whole or in part, at 100% of the principal amount so prepaid, plus the Make-Whole Amount and accrued and unpaid cash and PIK interest thereon, to but excluding the applicable prepayment date (provided, however, that each partial prepayment shall be in an amount that is an integral multiple of $100,000 and not less than $500,000). The Borrower will give at least 5 Business Days’ prior written notice of each optional prepayment under this Section 2.08(a) to the Administrative Agent and the Lenders. Each such notice shall specify the prepayment date, the aggregate principal amount of the Loans to be prepaid on such date, the principal amount of each Loan owned by such Lender to be prepaid (determined in accordance with Section 2.11), and the interest to be paid on the prepayment date with respect to such principal amount being prepaid, and shall be accompanied by a certificate of a Financial Officer as to the estimated Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth the details of such computation. Such notice shall be irrevocable unless the Required Lenders agree otherwise in writing, and shall commit the Borrower to prepay the Loans by the amount stated therein on the date stated therein. Two Business Days prior to such prepayment, the Borrower shall deliver to each Lender and the Administrative Agent a certificate of a Financial Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date.

(b) Not later than the 20th Business Day following the receipt of Net Cash Proceeds in respect of any Asset Sale, the Borrower shall apply 100% of the Net Cash Proceeds received with respect thereto to prepay outstanding Loans at 100% of the principal amount so prepaid, plus the Make-Whole Amount and accrued and unpaid cash and PIK interest thereon, to but excluding the date of payment. Two Business Days prior to such prepayment, the Borrower shall deliver to each Lender and the Administrative Agent a certificate of a Financial Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date.

SECTION 2.09. Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision of this Agreement, if any Change in Law shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of or credit extended by any Lender (except any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the London interbank market any other condition affecting this Agreement or Loans made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Loan or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise) by an amount deemed by such Lender to be material, then the Borrower will pay to such Lender, upon demand, such additional amount or amounts as will compensate such Lender for such additional costs incurred or

(b) If any Lender shall have determined that any Change in Law regarding capital adequacy has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made by such Lender pursuant hereto to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

(c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as applicable, as specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate delivered by it within 10 days after its receipt of the same.

(d) Failure or delay on the part of any Lender to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender under paragraph (a) or (b) above with respect to increased costs or reductions with respect to any period prior to the date that is 90 days prior to such request if such Lender knew or could reasonably have been expected to know of the circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would result in a claim for increased compensation by reason of such increased costs or reductions; provided further that the foregoing limitation shall not apply to any increased costs or reductions arising out of the retroactive application of any Change in Law within such 90-day period. The protection of this Section shall be available to each Lender and regardless of any possible contention of the invalidity or inapplicability of the Change in Law that shall have occurred or been imposed.

SECTION 2.10. Indemnity. The Borrower shall indemnify each Lender against any loss or expense that such Lender may sustain or incur as a consequence of (a) any event, other than a default by such Lender in the performance of its obligations hereunder, which results in such Lender receiving or being deemed to receive any amount on account of the principal of any Loan prior to the end of the Interest Period in effect therefor (a “Breakage Event”) or (b) any default in the making of any payment or prepayment required to be made hereunder. In the case of any Breakage Event, such loss shall include an amount equal to the excess, as reasonably determined by such Lender, of (i) its cost of obtaining funds for the Loan that is the subject of such Breakage Event for the period from the date of such Breakage Event to the last day of the Interest Period in effect (or that would have been in effect) for such Loan over (ii) the amount of interest likely to be realized by such Lender in redeploying the funds released or not utilized by reason of such Breakage Event for such period. A certificate of any Lender setting forth any amount or amounts which such Lender is entitled to receive pursuant to this Section 2.10 shall be delivered to the Borrower and shall be conclusive absent manifest error.

SECTION 2.11. Pro Rata Treatment. Each payment or prepayment of principal of the Loans and each payment of cash or PIK interest or Make-Whole Amount on the Loans shall be allocated pro rata among the Lenders in accordance with the respective principal amounts of their outstanding Loans.

SECTION 2.12. Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise of a right of banker’s lien, setoff or counterclaim against the Borrower or any other Loan Party, or pursuant to a secured claim under Section 506 of Title 11 of the United States Code or other security or interest arising from, or in lieu of, such secured claim, received by such Lender under any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means, obtain payment (voluntary or involuntary) in respect of any Loan as a result of which the unpaid principal portion of its Loans shall be proportionately less than the unpaid principal portion of the Loans of any other Lender, it shall be deemed simultaneously to have purchased from such other Lender at face value, and shall promptly pay to such other Lender the purchase price for, a participation in the Loans of such other Lender, so that the aggregate unpaid principal amount of the Loans and participations in Loans held by each Lender shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding as the principal amount of its Loans prior to such exercise of banker’s lien, setoff or counterclaim or other event was to the principal amount of all Loans outstanding prior to such exercise of banker’s lien, setoff or counterclaim or other event; provided, however, that if any such purchase or purchases or adjustments shall be made pursuant to this Section 2.12 and the payment giving rise thereto shall thereafter be recovered, such purchase or purchases or adjustments shall be rescinded to the extent of such recovery and the purchase price or prices or adjustment restored without interest. The Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding a participation in a Loan deemed to have been so purchased may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender by reason thereof as fully as if such Lender had made a Loan directly to the Borrower in the amount of such participation.

SECTION 2.13. Payments. (a) The Borrower shall make each payment (including principal of or interest on any Loan or any fees or other amounts but excluding PIK interest paid in accordance with the terms hereof) hereunder and under any other Loan Document not later than 1:00 pm, New York City time, on the date when due in immediately available dollars, without setoff, defense or counterclaim. Each such payment that is payable to a Lender shall be paid directly to such Lender at the office identified on Schedule 2.01 for such Lender or as otherwise directed by such Lender in writing from time to time, and each such payment that is payable to the Administrative Agent or the Collateral Agent shall be paid directly to the Administrative Agent or Collateral Agent, as applicable, at their respective offices identified on Schedule 2.01 or as otherwise directed by the Administrative Agent or Collateral Agent, as applicable, in writing from time to time.

(b) Except as otherwise expressly provided herein, whenever any payment (including principal of or cash or PIK interest or the Make-Whole Amount on any Loan or any fees or other amounts) hereunder or under any other Loan Document shall become

due, or otherwise would occur, on a day that is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of interest or fees, if applicable.

SECTION 2.14. Taxes. Any and all payments by or on account of any obligation of the Borrower or any other Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that, if the Borrower or any other Loan Party shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower or such Loan Party shall make such deductions and (iii) the Borrower or such Loan Party shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.

(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

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

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

(e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law, such properly completed and executed

documentation prescribed by applicable law or reasonably requested by the Borrower as will permit such payments to be made without withholding or at a reduced rate.

(f) If the Administrative Agent or any Lender determines, in its sole discretion, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.14, it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 2.14 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Borrower or any other person.

SECTION 2.15. Assignment of Loans Under Certain Circumstances; Duty to Mitigate. In the event (i) any Lender delivers a certificate requesting compensation pursuant to Section 2.09, (ii) the Borrower is required to pay any additional amount to any Lender or any Governmental Authority on account of any Lender pursuant to Section 2.14, (iii) if any Lender defaults on its obligations to make Loans hereunder, or (iv) any Lender refuses to consent to any amendment, waiver or other modification of any Loan Document requested by the Borrower that requires the consent of a greater percentage of the Lenders than the Required Lenders and such amendment, waiver or other modification is consented to by the Required Lenders, the Borrower may, at its sole expense and effort (including with respect to the processing and recordation fee referred to in Section 9.04(b)), upon notice to such Lender and the Administrative Agent, require such Lender to transfer and assign, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all of its interests, rights and obligations under this Agreement to an assignee that shall assume such assigned obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (w) in the case of an assignment resulting from a Lender’s default on its obligation to make Loans hereunder, such assignment shall not preclude the Borrower from pursuing any other remedies Borrower may have against such assigning Lender, (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority having jurisdiction, (y) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld or delayed, and (z) the Borrower or such assignee shall have paid to the affected Lender in immediately available funds an amount equal to the sum of the principal of and cash and PIK interest accrued to the date of such payment on the outstanding Loans of such Lender, plus all fees and other amounts accrued for the account of such Lender hereunder with respect thereto (including any amounts under

Section 2.09 and 2.10); provided further that, if prior to any such transfer and assignment the circumstances or event that resulted in such Lender’s claim for compensation under Section 2.09 or the amounts paid pursuant to Section 2.14, as the case may be, cease to cause such Lender to suffer increased costs or reductions in amounts received or receivable or reduction in return on capital or cease to result in amounts being payable under Section 2.14, as the case may be (including as a result of any action taken by such Lender pursuant to paragraph (b) below), or if such Lender shall waive its right to claim further compensation under Section 2.09 in respect of such circumstances or event or shall waive its right to further payments under Section 2.14 in respect of such circumstances or event or shall consent to the proposed amendment, waiver, consent or other modification, as the case may be, then such Lender shall not thereafter be required to make any such transfer and assignment hereunder. Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender as assignor, any Assignment and Acceptance necessary to effectuate any assignment of such Lender’s interests hereunder in the circumstances contemplated by this Section 2.15(a).

(b) If (i) any Lender shall request compensation under Section 2.09 or (ii) the Borrower is required to pay any additional amount to any Lender or any Governmental Authority on account of any Lender pursuant to Section 2.14, then such Lender shall use reasonable efforts (which shall not require such Lender to incur an unreimbursed loss or unreimbursed cost or expense or otherwise take any action inconsistent with its internal policies or legal or regulatory restrictions or suffer any disadvantage or burden deemed by it to be significant) (x) to file any certificate or document reasonably requested in writing by the Borrower or (y) to assign its rights and delegate and transfer its obligations hereunder to another of its offices, branches or affiliates, if such filing or assignment would reduce its claims for compensation under Section 2.09 or would reduce amounts payable pursuant to Section 2.14, as the case may be, in the future. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such filing or assignment, delegation and transfer.

ARTICLE III

Representations and Warranties

The Borrower represents and warrants to the Administrative Agent, the Collateral Agent and each of the Lenders that:

SECTION 3.01. Organization; Powers. Except as expressly permitted by Section 5.15(d), each of the Loan Parties (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has all requisite power and authority to own its property and assets and to carry on its business as now conducted and as proposed to be conducted, (c) is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except where the failure so to qualify could not reasonably be expected to result in a Material Adverse Effect, and (d) has the power and authority to execute, deliver and perform its obligations under each of the Loan Documents and each other agreement or instrument contemplated thereby to which it is or will be a party and, in the case of the Borrower, to borrow hereunder.

SECTION 3.02. Authorization. The Transactions (a) have been duly authorized by all requisite corporate and, if required, stockholder action and (b) will not (i) violate (A) any provision of law, statute, rule or regulation, or of the certificate or articles of incorporation or other constitutive documents or by-laws of the Borrower or any Subsidiary, (B) any order of any Governmental Authority or (C) any provision of any indenture, agreement or other instrument to which the Borrower or any Subsidiary is a party or by which any of them or any of their property is or may be bound, (ii) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, or give rise to any right to accelerate or to require the prepayment, repurchase or redemption of any obligation under any such indenture, agreement or other instrument or (iii) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary (other than any Lien created hereunder or under the Security Documents).

SECTION 3.03. Enforceability. This Agreement has been duly executed and delivered by the Borrower and constitutes, and each other Loan Document when executed and delivered by each Loan Party party thereto will constitute, a legal, valid and binding obligation of such Loan Party enforceable against such Loan Party in accordance with its terms, except as the enforceability of the Loan Documents is subject to the application of general principles of equity (regardless of whether considered in a proceeding in equity or at law) and except as may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer or other similar laws relating to or affecting the rights of creditors generally.

SECTION 3.04. Governmental Approvals. No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the Transactions, except for (a) the filing of Uniform Commercial Code financing statements and filings with the United States Patent and Trademark Office and the United States Copyright Office, and (b) such as have been made or obtained and are in full force and effect.

SECTION 3.05. Financial Statements. The Borrower has heretofore furnished to the Lenders (a) U.S. GAAP audited consolidated or combined, as applicable, balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for the 2004, 2005 and 2006 fiscal years, audited by and accompanied by the opinion of WithumSmith + Brown, P.C., independent public accountants and (b) U.S. GAAP unaudited consolidated or combined, as applicable, balance sheets and related statements of income and cash flows of the Borrower for (i) each subsequent fiscal quarter ended 45 days before the Closing Date and (ii) to the extent available, each fiscal month after the most recent fiscal quarter for which financial statements were received by the Lenders as described above and ended 45 days before the Closing Date and, in each case, certified by the chief financial officer of the Borrower. Such financial statements present fairly the financial condition and results of operations and cash flows of the Borrower as of such dates and for such periods. Such balance sheets and the notes thereto

disclose all material liabilities, direct or contingent, of the Borrower as of the dates thereof required to be disclosed by GAAP. Such financial statements were prepared in accordance with GAAP applied on a consistent basis, subject, in the case of unaudited financial statements, to year-end audit adjustments and the absence of footnotes.

SECTION 3.06. No Material Adverse Change. No Material Adverse Change has occurred since December 31, 2006.

SECTION 3.07. Title to Properties; Possession Under Leases; Intellectual Property. (a) Each of the Loan Parties has good and marketable title to, or valid leasehold interests in, all its properties and assets, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes. All such properties and assets are free and clear of Liens, other than Liens expressly permitted by Section 6.02.

(b) Each of the Loan Parties has complied with all obligations under all leases to which it is a party and all such leases are in full force and effect. Each of the Loan Parties enjoys peaceful and undisturbed possession of the property subject to such leases.

(c) As of the Closing Date, the Borrower and its Subsidiaries own or have the right to use, all Intellectual Property used in the conduct of their business, except where the failure to own or have such right to use in the aggregate could not reasonably be expected to result in a Material Adverse Effect. No claim has been asserted and is pending by any person challenging or questioning the use of any such Intellectual Property or the validity or effectiveness of any such Intellectual Property, nor does the Borrower know of any valid basis for any such claim, except for such claims that in the aggregate could not reasonably be expected to result in a Material Adverse Effect. The use of such Intellectual Property by the Borrower and its Subsidiaries does not infringe on the rights of any person, except for such claims and infringements that, in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. All federal and state and all foreign registrations of and applications for Intellectual Property, and all unregistered Intellectual Property, that are owned or licensed by the Borrower or any of its Subsidiaries on the Closing Date are described on Schedule III to the Guarantee and Collateral Agreement.

SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing Date a list of all Subsidiaries and the percentage ownership interest of the Borrower or any other Subsidiary therein. The shares of capital stock or other ownership interests so indicated on Schedule 3.08 are fully paid and non-assessable and are owned by the Borrower or such other Subsidiary, directly or indirectly, free and clear of all Liens (other than Liens created under the Security Documents).

SECTION 3.09. Litigation; Compliance with Laws. (a) There are no actions, suits or proceedings at law or in equity or by or before any Governmental Authority now pending or, to the knowledge of the Borrower, threatened against or affecting any of the Loan Parties or any business, property or rights of any such person that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

(b) None of the Loan Parties or any of their respective material properties or assets is in violation of, nor will the continued operation of their material properties and assets as currently conducted violate, any law, rule or regulation (including any zoning, building, Environmental Law, ordinance, code or approval or any building permits), or is in default with respect to any judgment, writ, injunction, decree or order of any Governmental Authority, where such violation or default could reasonably be expected to result in a Material Adverse Effect.

(c) None of the Loan Parties is, in any material respect, in conflict or default with respect to or in violation of any applicable laws, regulations, orders or non-monetary judgments.

SECTION 3.10. Agreements. (a) None of the Loan Parties is a party to any agreement or instrument or subject to any corporate restriction that has resulted or could reasonably be expected to result in a Material Adverse Effect.

(b) None of the Loan Parties is or has been in any material respect in default under or in violation of the performance of any of its obligations under any material agreement, and, to the knowledge of the Loan Parties, no other party thereto is in default under or in violation of the performance of any of its obligations under any such material agreement.

SECTION 3.11. Federal Reserve Regulations. (a) None of the Loan Parties is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock.

(b) No part of the proceeds of any Loan will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board, including Regulation T, U or X.

SECTION 3.12. Government Regulation. None of the Loan Parties is an ”investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940. None of the Loan Parties is subject to regulation under the Federal Power Act, the Interstate Commerce Act, the ICC Termination Act, as amended, or under any other federal or state statute or regulation which may limit its ability to incur Indebtedness or Contingent Obligations or which may otherwise render all or any portion of the Obligations unenforceable.

SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of the Loans only for the purposes specified in the introductory statement to this Agreement.

SECTION 3.14. Taxes. Each of the Loan Parties has filed or caused to be filed all Federal, state, local and foreign tax returns or materials required to have been filed by it and has paid or caused to be paid all taxes due and payable by it and all assessments received by it, except (a) taxes that are being contested in good faith by appropriate proceedings and for which the applicable Loan Party shall have set aside on its books adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.

SECTION 3.15. Disclosure. (a) All factual information (taken as a whole) furnished by or on behalf of the Borrower and its Subsidiaries in writing to the Administrative Agent, the Collateral Agent or any Lender (including all information contained in the Schedules hereto or in the other Loan Documents) for purposes of or in connection with this Agreement, the other Loan Documents, or any transaction contemplated herein or therein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of the Borrower or its Subsidiaries in writing to the Administrative Agent, the Collateral Agent or any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and not incomplete by omitting to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided. No representation or warranty of any Loan Party contained in any Loan Document or in any other document, certificate or written statement furnished to the Agent or the Lenders by or on behalf of the Borrower or any of its Subsidiaries for use in connection with the transactions contemplated by this Agreement contains any untrue statement of a material fact. There are no facts known (or which should upon the reasonable exercise of diligence be known) to the Loan Parties (other than matters of a general economic nature) that, individually or in the aggregate, could 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 the Administrative Agent, the Collateral Agent and the Lenders for use in connection with the transactions contemplated hereby.

(b) The Closing Date Projections have been diligently prepared on a basis consistent with the financial statements delivered to the Lenders and the Administrative Agent pursuant to Section 3.05 and are based on good faith estimates and assumptions believed by management of the Borrower to be reasonable as of the date of the Closing Date Projections, and there are no statements or conclusions in any of the Closing Date Projections which are based upon or include information known to any Loan Party or any of their Subsidiaries to be misleading in any material respect or which fail to take into account material information regarding the matters reported therein. On the Closing Date, the Borrower believes that the Closing Date Projections were reasonable, it being recognized by the Lenders and the Administrative Agent, however, that projections as to future events are not to be viewed as facts and that the actual results during the period or periods covered by the Closing Date Projections may differ from the projected results and such differences may be material.

SECTION 3.16. Employee Benefit Plans. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect. The present value of all benefit liabilities under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the last annual valuation date applicable thereto, exceed by more than $250,000 the fair market value of the assets of such Plan, and the present value of all benefit liabilities of all

underfunded Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the last annual valuation dates applicable thereto, exceed by more than $250,000 the fair market value of the assets of all such underfunded Plans.

SECTION 3.17. Environmental Matters. None of the Loan Parties (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability which, in each case, would or could reasonably be expected to have a Material Adverse Effect.

SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and correct description of all insurance maintained by the Loan Parties as of the date hereof and the Closing Date. As of each such date, such insurance is in full force and effect and all premiums have been duly paid. The Loan Parties have insurance in such amounts and covering such risks and liabilities as are in accordance with normal industry practice.

SECTION 3.19. Security Documents. (a) The Guarantee and Collateral Agreement, upon execution and delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral (as defined in the Guarantee and Collateral Agreement) and the proceeds thereof and (i) when the Pledged Collateral (as defined in the Guarantee and Collateral Agreement) is delivered to the Collateral Agent, the Lien created under the Guarantee and Collateral Agreement shall constitute a fully perfected first priority Lien on, and security interest in, all right, title and interest of the Loan Parties in such Pledged Collateral, in each case prior and superior in right to any other person, and (ii) when financing statements in appropriate form are filed in the offices specified on Schedule 3.19, the Lien created under the Guarantee and Collateral Agreement will constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral in which a Lien can be perfected under Article 9 of the Uniform Commercial Code, in each case prior and superior in right to any other person, other than with respect to Liens expressly permitted by Section 6.02.

(b) Upon the recordation of the Guarantee and Collateral Agreement (or a short-form security agreement in form and substance reasonably satisfactory to the Borrower and the Collateral Agent) with the United States Patent and Trademark Office and the United States Copyright Office, together with the financing statements in appropriate form filed in the offices specified on Schedule 3.19, the Lien created under the Guarantee and Collateral Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in the Intellectual Property in which a security interest may be perfected by filing in the United States, in each case prior and superior in right to any other person (it being understood that subsequent recordings in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to perfect a Lien on registered trademarks and patents, trademark and patent applications and registered copyrights acquired by the Loan Parties after the date hereof).

SECTION 3.20. Location of Real Property and Leased Premises. The Borrower and its Subsidiaries do not own any real property. Schedule 3.20 lists completely and correctly as of the Closing Date all real property leased by the Borrower and the Subsidiaries and the addresses thereof. The Borrower and the Subsidiaries have valid leases in all the real property set forth on Schedule 3.20.

SECTION 3.21. Labor Matters. As of the date hereof and the Closing Date, there are no strikes, lockouts or slowdowns against any of the Loan Parties pending or, to the knowledge of the Borrower, threatened. The hours worked by and payments made to employees of the Loan Parties have not been in violation of the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law dealing with such matters. All payments due from any of the Loan Parties, or for which any claim may be made against any of the Loan Parties, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of any of the Loan Parties. The consummation of the Transactions will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which any of the Loan Parties is bound.

SECTION 3.22. Solvency. Immediately after the consummation of the Transactions to occur on the Closing Date and immediately following the making of the Loans and after giving effect to the application of the proceeds of the Loans, each Loan Party will be Solvent. As used herein with respect to any Loan Party, “Solvent” shall mean (a) the fair value of the assets of such Loan Party, at a fair valuation, will exceed its debts and liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the

property of such Loan Party will be greater than the amount that will be required to pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become due; (c) such Loan Party will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become due; and (d) such Loan Party will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted following the Closing Date.

SECTION 3.23. Transaction Documents. The Borrower has delivered to the Administrative Agent a complete and correct copy of the Acquisition Agreement (including all schedules, exhibits, amendments, supplements and modifications thereto). No Loan Party or, to the knowledge of the Borrower, any other person party thereto is in default in the performance or compliance with any material provisions thereof. The Acquisition Agreement complies in all material respects with all applicable laws. All representations and warranties set forth in the Acquisition Agreement were true and correct in all material respects at the time as of which such representations and warranties were made (or deemed made).

SECTION 3.24. Financial Advisors. Except as set forth in Schedule 3.24, no agent, broker, investment banker, finder, financial advisor or other person is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee from the Borrower with respect to this Agreement or any of the other Loan Documents or any of the transactions contemplated hereby, and the Borrower hereby indemnifies the Lenders and the Administrative Agent against, and agrees that it will hold the Lenders and the Administrative Agent harmless from, any claim, demand or liability for any such broker’s or finder’s fees alleged to have been incurred in connection herewith or therewith and any expenses (including reasonable fees, expenses and disbursements of counsel) arising in connection with any such claim, demand or liability.

SECTION 3.25. Foreign Assets Control Regulations, Etc. (a) Neither the borrowing of the Loans by the Borrower hereunder nor its use of the proceeds thereof will violate (i) the United States Trading with the Enemy Act, as amended, (ii) any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, (iii) Executive Order No. 13,224, 66 Fed Reg 49,079 (2001), issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism) (the “Terrorism Order”) or (iv) the USA PATRIOT ACT. No part of the proceeds from the Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.

(b) No Loan Party (i) is or will become a “blocked person” as described in Section 1 of the Terrorism Order or (ii) engages or will engage in any dealings or transactions, or is otherwise associated, with any such blocked person or any such person.

(d) None of the Loan Parties nor, to the knowledge of the Borrower, any director, officer, agent, employee or Affiliate of any of the Loan Parties is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); the Borrower will not directly or indirectly use the proceeds of the Loans or otherwise make available such proceeds to any person, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.

SECTION 3.26. Representations of other Loan Parties. The representations and warranties of each Subsidiary Guarantor contained in the Loan Documents to which it is a party are true and correct in all material respects as of the date they are made and shall be true and correct at the time of the Closing Date.

SECTION 3.27. Loans to Officers and Directors. There are no outstanding loans made by the Borrower or any of its Subsidiaries to any of their officers, directors or shareholders (directly or indirectly) or any of such persons’ Affiliates.

SECTION 3.28. Internal Controls. The Borrower and its Subsidiaries maintain a system of internal control over financial reporting. Such internal controls over financial reporting provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. To the best of the Borrower’s knowledge, there are no significant deficiencies or material weaknesses in the design or operation of the Borrower’s and its Subsidiaries’ ability to record, process, summarize and report financial data. There is and has been no fraud, whether or not material, that involves management or other Employees who have a significant role in the Borrower’s and/or its Subsidiaries’ internal controls.

SECTION 3.29. Subordinated Indebtedness; Ranking. The Obligations constitute senior indebtedness that is entitled to the benefits of the subordination provisions, if any, of all Indebtedness and Contingent Obligations of the Borrower and its Subsidiaries. All liabilities of the Borrower and its Subsidiaries under the Loan Documents constitute direct, unconditional and general obligations of the Borrower and its Subsidiaries and rank in right of payment either pari passu or senior to all other Indebtedness and Contingent Obligations of the Borrower and its Subsidiaries.

ARTICLE IV

Conditions of Lending

SECTION 4.01. Conditions to Tranche A Loans. The obligations of the Lenders to make Tranche A Loans hereunder are subject to the satisfaction of the following conditions on the Closing Date:

(a) (i) The Acquisition Documents shall be executed and delivered by each of the parties thereto and shall be in form and substance reasonably satisfactory to the Administrative Agent, and the representations and warranties made in Article IV of the Acquisition Agreement shall be true and correct in all material respects; (ii) the representations and warranties set forth in Article III of this Agreement and in each other Loan Document shall be true and correct in all material respects; and (iii) the Acquisition Documents shall be in full force and effect.

(b) At the time of and immediately after the Closing Date, no Default or Event of Default shall have occurred and be continuing.

(c) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, a favorable written opinion of Lowenstein Sandler PC, counsel for the Loan Parties, substantially to the effect set forth in Exhibit E, (A) dated the Closing Date, (B) addressed to the Administrative Agent, the Collateral Agent and the Lenders, and (C) covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinions.

(d) All legal matters incident to this Agreement, the extensions of credit hereunder and the other Loan Documents shall be reasonably satisfactory to the Lenders and to the Administrative Agent.

(e) The Administrative Agent shall have received the following from or with respect to each Loan Party:

(i) a copy of the certificate or articles of incorporation or other such Organizational Document, including all amendments thereto, certified as of a recent date by either the Secretary of State of the state of its organization or such Governmental Authority, and, except in respect of Wynd Communications Corporation, a certificate certifying that such Loan Party has paid all franchise taxes due and payable on or prior to the date of such certificate and such Loan Party is duly organized and in good standing under the laws of such jurisdiction;

(ii) a certificate of the Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto are true and complete copies of the Organizational Documents of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or other such Organizational Document of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party;

(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and

(iv) such other documents as the Lenders or the Administrative Agent may reasonably request.

(f) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (a) and (b) of this Section 4.01.

(g) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.

(h) The Security Documents shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Closing Date. The Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document.

(i) The Collateral Agent shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such persons, in which the chief executive office of each such person is located and in the other jurisdictions in which such persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been or will be contemporaneously released or terminated.

(j) [Intentionally omitted]

(k) The Transactions shall have been, or substantially simultaneously with the funding of the Loans on the Closing Date shall be, consummated in accordance with applicable law and on the terms described herein and in the Acquisition Agreement and all other material related documentation, in each case in the form provided to the Administrative Agent.

(l) No stockholder rights plan or “poison pill” shall have been triggered or otherwise become exercisable in connection with the Transactions.

(m) The Lenders shall have received the financial statements and opinions referred to in Section 3.05.

(n) The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower, in form and substance satisfactory to the Administrative Agent, to the effect that each of the Loan Parties, in each case after giving effect to the Transactions and the other transactions contemplated hereby, is Solvent.

(o) All requisite Governmental Authorities and other material third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action, actual or threatened, that could reasonably be expected to restrain, prevent or impose materially burdensome conditions on the Transactions.

(p) The Administrative Agent and the Lenders shall have received, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.

(q) All corporate and other proceedings in connection with the transactions contemplated by this Agreement and the other Loan Documents shall be reasonably satisfactory to the Lenders and the Administrative Agent, and the Lenders and the Administrative Agent shall have received all such counterpart originals or certified or other copies of such documents as the Lenders or Agent may reasonably request.

(r) The Lenders and the Administrative Agent shall have received the forecasted financial statements of the Borrower and its Subsidiaries, consisting of balance sheets, income statements and cash flow statements for the Borrower and its Subsidiaries giving effect to the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, dated as of February, 2007 (the “Closing Date Projections”), in form and substance satisfactory to the Lenders and the Administrative Agent, together with an Officer’s Certificate from the Borrower’s chief executive officer and chief financial officer regarding the Closing Date Projections.

(s) There shall have occurred no Material Adverse Change since December 31, 2006.

(t) The Administrative Agent and the Lenders shall have completed their business, legal and accounting due diligence of the Borrower, its Subsidiaries and the TRS Division with results satisfactory to the Administrative Agent and the Lenders in their sole discretion.

SECTION 4.02. Conditions to Tranche B Loans. In respect of any requested Borrowing that the Required Lenders have elected to provide, the obligation of each Lender to make Tranche B Loans in accordance with its Tranche B Commitment is and shall be subject to and conditioned upon the satisfaction, on and as of the date of such Borrowing, each of the following conditions precedent:

(a) The Commitments shall not have been terminated pursuant to Article VII.

(b) No Default or Event of Default shall have occurred and be continuing.

(c) (i) The representations and warranties made in Article IV of the Acquisition Agreement shall be true and correct in all material respects as of the date of such Borrowing (except that any of such representations and warranties that expressly relate to an earlier date shall be true and correct in all material respects as of such earlier date); (ii) the representations and warranties set forth in Article III of this Agreement and in each other Loan Document shall be true and correct in all material respects as of the date of such Borrowing (except that any of such representations and warranties that expressly relate to an earlier date shall be true and correct in all material respects as of such earlier date); and (iii) the Acquisition Documents shall be in full force and effect.

(d) There shall have occurred no Material Adverse Change since December 31, 2006.

(e) The Administrative Agent shall have received a certificate, dated as of the date of such Borrowing and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of this Section 4.02.

(f) Borrower shall have duly executed and delivered a Borrowing Notice in proper form for such Borrowing;

(h) The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower, in form and substance satisfactory to the Administrative Agent, to the effect that each of the Loan Parties, in each case after giving effect to such Borrowing and the anticipated use of proceeds thereof, is Solvent.

ARTICLE V

Affirmative Covenants

The Borrower covenants and agrees with each Lender that so long as this Agreement shall remain in effect and until the Commitments have been terminated and the principal of and interest and Make-Whole Amount, if any, on each Loan, all fees and all other expenses or amounts payable under any Loan Document shall have been paid in full, unless the Required Lenders (or the Administrative Agent acting at the written direction of the Required Lenders) shall otherwise consent in writing, the Borrower will, and will cause each of the Subsidiaries to:

SECTION 5.01. Existence; Compliance with Laws; Businesses and Properties. Do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence, except as otherwise expressly permitted under Section 6.05.

(b) Do or cause to be done all things necessary to obtain, preserve, renew, extend and keep in full force and effect the rights, licenses, permits, franchises, authorizations, patents, copyrights, trademarks and trade names necessary and material to the conduct of its business; maintain and operate such business in substantially the manner in which it is presently conducted and operated; comply in all material respects with all applicable laws, rules, regulations and decrees and orders of any Governmental Authority, whether now in effect or hereafter enacted; and at all times maintain and preserve all property necessary and material to the conduct of such business and keep such property in good repair, working order and condition and from time to time make, or cause to be made, all needful and proper repairs, renewals, additions, improvements and replacements thereto necessary in order that the business carried on in connection therewith may be properly conducted at all times.

SECTION 5.02. Insurance. (a) Keep its insurable properties adequately insured at all times by financially sound and reputable insurers; maintain such other insurance, to such extent and against such risks, including fire and other risks insured against by extended coverage, as is customary with companies in the same or similar businesses operating in the same or similar locations, including public liability insurance against claims for personal injury or death or property damage occurring upon, in, about or in connection with the use of any properties owned, occupied or controlled by it; and maintain such other insurance as may be required by law.

(b) Cause all such policies covering any Collateral (which, for the avoidance of doubt, shall not include directors and officers liability policies) to be endorsed to the Administrative Agent’s satisfaction for the benefit of the Administrative Agent (as loss payee with respect to personal property and additional insured with respect to general liability and umbrella liability coverage).

SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other obligations promptly and in accordance with their terms and pay and discharge promptly when due all taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its property, before the same shall become delinquent or in default, as well as all lawful claims for labor, materials and supplies or otherwise that, if unpaid, might give rise to a Lien upon such properties or any part thereof; provided, however, that such payment and discharge shall not be required with respect to any such tax, assessment, charge, levy or claim so long as the validity or amount thereof shall be contested in good faith by appropriate proceedings and the Borrower shall have set aside on its books adequate reserves with respect thereto in accordance with GAAP and such contest operates to suspend collection of the contested obligation, tax, assessment or charge and enforcement of a Lien.

SECTION 5.04. Financial Statements, Reports, etc. In the case of the Borrower, furnish to the Administrative Agent and each Lender:

(a) within 90 days after the end of each fiscal year, its consolidated and consolidating balance sheet and related statements of operations, stockholders’ equity and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such Subsidiaries during such year, together with comparative figures for the immediately preceding fiscal year, all audited by WithumSmith + Brown, P.C. or other independent public accountants of recognized national standing reasonably acceptable to the Administrative Agent and accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied;

(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated and consolidating balance sheet

operations and cash flows showing the financial condition of the Borrower and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, together with comparative figures for the same periods in the immediately preceding fiscal year, all certified by one of the Financial Officers of the Borrower as fairly presenting the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments;

(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial Officer (in the case of paragraph (b)) opining on or certifying such statements (which certificate, when furnished by an accounting firm, may be limited to accounting matters and disclaim responsibility for legal interpretations) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;

(d) within 90 days after the beginning of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;

(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with any Governmental Authority or securities exchange, or distributed to its shareholders, as the case may be;

(f) so long as Borrower is not prohibited by law from doing so, promptly after the receipt thereof by the Borrower or any of its Subsidiaries, a copy of any “management letter” received by any such person from its certified public accountants and the management’s response thereto;

(g) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; and

(h) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request.

SECTION 5.05. Litigation and Other Notices. Furnish to the Administrative Agent and each Lender prompt written notice of the following:

(a) any Event of Default or Default, specifying the nature and extent thereof and the corrective action (if any) taken or proposed to be taken with respect thereto;

(b) the filing or commencement of, or any threat or notice of intention of any person to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority, against the Borrower or any Affiliate thereof that could reasonably be expected to result in a Material Adverse Effect;

(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower and the Subsidiaries in an aggregate amount exceeding $250,000; and

(d) any development that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect.

SECTION 5.06. Information Regarding Collateral. (a) Furnish to the Administrative Agent prompt written notice of any change (and in any event within 10 days of such change) (i) in any Loan Party’s corporate name, (ii) in the jurisdiction of organization or formation of any Loan Party, (iii) in any Loan Party’s identity or corporate structure or (iv) in any Loan Party’s Federal Taxpayer Identification Number. The Borrower also agrees promptly to notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed.

(b) In the case of the Borrower, each year, at the time of delivery of the annual financial statements with respect to the preceding fiscal year pursuant to Section 5.04(a), deliver to the Administrative Agent a certificate of a Financial Officer setting forth the information required pursuant to Section 2 of the Perfection Certificate or confirming that there has been no change in such information since the date of the Perfection Certificate delivered on the Closing Date or the date of the most recent certificate delivered pursuant to this Section 5.06.

(c) Maintain, at its own cost and expense, such complete and accurate records with respect to the Article 9 Collateral owned by it as is consistent with its current practices and in accordance with such prudent and standard practices used in industries that are the same as or similar to those in which such Grantor is engaged, but in any event to include accounting records in accordance with such practices indicating all payments and proceeds received with respect to any part of the Article 9 Collateral, and, at such time or times as the Administrative Agent may reasonably request, promptly to prepare and deliver to the Administrative Agent a duly certified schedule or schedules in form and detail satisfactory to the Administrative Agent showing the identity, amount and location of any and all Article 9 Collateral.

SECTION 5.07. Maintaining Records; Access to Properties and Inspections. Keep proper books of record and account in which full, true and correct entries in conformity with GAAP and all requirements of law are made of all dealings and transactions in relation to its business and activities. Upon reasonable notice, each Loan Party will, and will cause each of its Subsidiaries to, permit any representatives

designated by the Administrative Agent or any Lender to visit and inspect the financial records and the properties of such person at reasonable times and as often as reasonably requested and to make extracts from and copies of such financial records, and permit any representatives designated by the Administrative Agent or any Lender to discuss the affairs, finances and condition of such person with the officers thereof and independent accountants therefor; provided that, unless an Event of Default shall have occurred and be continuing, (i) the Agent may exercise such inspection rights not more than once per year and (ii) the Lenders shall not have the right to exercise such inspection rights.

SECTION 5.08. Use of Proceeds. Use the proceeds of the Tranche A Loans only for the purposes specified in the introductory statement to this Agreement and use the proceeds of any Tranche B Loan only for the purposes specified in the applicable Borrowing Notice.

SECTION 5.09. Employee Benefits. Comply in all material respects with the applicable material provisions of ERISA and the Code.

SECTION 5.10. Compliance with Environmental Laws. Comply, and cause all lessees and other persons occupying its properties to comply, in all material respects with all Environmental Laws applicable to its operations and properties; obtain and renew all material environmental permits necessary for its operations and properties; and conduct any remedial action in accordance with Environmental Laws; provided, however, that neither the Borrower nor any Subsidiary shall be required to undertake any remedial action required by Environmental Laws to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP.

SECTION 5.11. Preparation of Environmental Reports. If a Default caused by reason of a breach of Section 3.17 or Section 5.10 shall have occurred and be continuing for more than 20 days without the Borrower or any Subsidiary commencing activities reasonably likely to cure such Default, at the written request of the Required Lenders through the Administrative Agent, provide to the Lenders within 45 days after such request, at the expense of the Loan Parties, an environmental site assessment report regarding the matters which are the subject of such Default prepared by an environmental consulting firm reasonably acceptable to the Administrative Agent and indicating the presence or absence of Hazardous Materials and the estimated cost of any compliance or remedial action in connection with such Default.

SECTION 5.12. Further Assurances. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all further action (including filing Uniform Commercial Code and other financing statements, mortgages and deeds of trust) that may be required under applicable law, or that the Required Lenders, the Administrative Agent or the Collateral Agent may reasonably request, in order to effectuate the transactions contemplated by the Loan Documents and in order to grant, preserve, protect and perfect the validity and first priority of the security interests created or intended to be created by the Security Documents. In addition, from time to time, the Borrower will (and will cause its Subsidiaries to), at its cost and expense,

promptly secure the Obligations by pledging or creating, or causing to be pledged or created, perfected security interests with respect to such of its assets and properties as the Administrative Agent or the Required Lenders shall designate (it being understood that it is the intent of the parties that the Obligations shall be secured by substantially all the assets of the Loan Parties (including real and other properties acquired subsequent to the Closing Date)). Such security interests and Liens will be created under the Security Documents and other security agreements, mortgages, deeds of trust and other instruments and documents in form and substance satisfactory to the Collateral Agent, and the Borrower shall deliver or cause to be delivered to the Lenders all such instruments and documents (including legal opinions, title insurance policies and lien searches) as the Collateral Agent shall reasonably request to evidence compliance with this Section. The Borrower agrees to provide such evidence as the Collateral Agent shall reasonably request as to the perfection and priority status of each such security interest and Lien. In furtherance of the foregoing, the Borrower will give prompt notice to the Administrative Agent of the acquisition by it or any of the Subsidiaries of any real property (or any interest in real property) having a value in excess of $100,000.

(b) Upon the consummation of any Permitted Acquisition of any person by any of the Loan Parties, upon the formation by any of the Loan Parties of any Domestic Subsidiary or upon any Subsidiary ceasing to be an Excluded Subsidiary (either because the Borrower voluntarily withdraws such designation or because such designation is deemed withdrawn pursuant to Section 6.15), the Borrower shall cause the person so acquired or formed, or such Subsidiary that is no longer an Excluded Subsidiary, as the case may be, at the election of the Administrative Agent or Required Lenders, to be designated as a Subsidiary Guarantor of the Obligations. Such person shall become a Loan Party by executing the Guarantee and Collateral Agreement and each applicable Security Document in favor of the Collateral Agent. In addition, (i) such person shall execute and deliver such Security Documents, agreements and documents as the Administrative Agent, Collateral Agent or the Required Lenders may reasonably request to grant a first priority perfected Lien in respect of substantially all of its real and personal property in favor of the Collateral Agent and the Lenders, and (ii) the Loan Parties owning Equity Interests in such person shall pledge all such Equity Interests in such person.

(c) Notwithstanding anything to the contrary in paragraph (a) or (b) of this Section 5.12, no Foreign Subsidiary shall be required to grant a security interest in its assets to secure the Obligations or to guarantee the Obligations to the extent the granting of such security interest or the making of such guarantee (i) would result in adverse tax consequences to the Borrower (as certified to the Administrative Agent by a Financial Officer of the Borrower), (ii) is prohibited by applicable law, or (iii) would, in the reasonable judgment of the Administrative Agent, be unreasonably costly in light of the benefit such security interest or guarantee would provide to the Lenders.

SECTION 5.13. Assignability of Contracts. Use commercially reasonable efforts to exclude from all agreements or documents entered into after the Closing Date, any term or provision that would prevent a Loan Party from granting a Lien in such agreements or documents to the Collateral Agent under the Security Documents.

SECTION 5.14. Ranking. Ensure that, at all times, all liabilities of the Borrower and its Subsidiaries under this Agreement or the other Loan Documents shall rank in right of payment either pari passu or senior to all other Indebtedness and Contingent Obligations of the Borrower and its Subsidiaries.

SECTION 5.15. Post-Closing Covenants.

(a) Within 10 Business Days of the Closing Date, the Borrower shall have delivered to the Administrative Agent a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which shall have been endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Administrative Agent. During such 10 Business Day period, the Borrower shall not be required to comply with the provisions of Section 5.02(b) hereof.

(b) Within 30 days of the Closing Date, the Loan Parties shall have executed and delivered each of the agreements required to be delivered pursuant to Section 4.04(b) of the Guarantee and Collateral Agreement. During such 30 day period, the Borrower shall not be required to comply with the provisions of Section 4.04(b) of the Guarantee and Collateral Agreement.

(c) The Borrower shall use its commercially reasonable efforts to enter into landlord consent, estoppel and collateral access agreements in form and substance reasonably satisfactory to the Administrative Agent with respect to the Borrower’s leased real property located in Hackensack, New Jersey within 30 Business Days of the Closing Date.

(d) Within 10 Business Days of the Closing Date, the Borrower shall have delivered to the Administrative Agent evidence that Wynd Communications Corporation, a California corporation, is in good standing under the laws of the State of California. During such 10 Business Day period, the failure of Wynd Communications Corporation to be in good standing under the laws of the State of California shall not constitute a Default or Event of Default hereunder or a breach of Section 3.01(a) or (c) hereof.

ARTICLE VI

Negative Covenants

The Borrower covenants and agrees with each Lender that, so long as this Agreement shall remain in effect and until the Commitments have been terminated and the principal of and interest and Make-Whole Amount, if any, on each Loan, all fees and all other expenses or amounts payable under any Loan Document have been paid in full, unless the Required Lenders (or the Administrative Agent acting at the written direction of the Required Lenders) shall otherwise consent in writing, the Borrower will not, nor will it cause or permit any of the Subsidiaries to:

SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:

(a) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and any extensions, renewals or replacements of such Indebtedness to the extent the principal amount of such Indebtedness is not increased, neither the final maturity nor the weighted average life to maturity of such Indebtedness is decreased, such Indebtedness, if subordinated to the Obligations, remains so subordinated on terms no less favorable to the Lenders, and the original obligors in respect of such Indebtedness remain the only obligors thereon;

(b) Indebtedness created hereunder and under the other Loan Documents;

(d) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this Section 6.01(d), when combined with the aggregate principal amount of all Capital Lease Obligations incurred pursuant to Section 6.01(e) shall not exceed $250,000 at any time outstanding;

(e) Capital Lease Obligations in an aggregate principal amount, when combined with the aggregate principal amount of all Indebtedness incurred pursuant to Section 6.01(d), not in excess of $250,000 at any time outstanding;

(f) Indebtedness under performance bonds or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business;

(g) Indebtedness owed to any bank consisting of liabilities arising from treasury, depository and cash management services or in connection with any automated clearing house transfers of funds (none of which shall consist of Indebtedness for borrowed money);

(h) Indebtedness existing or arising under Hedging Agreements; provided that such obligations are (or were) entered into in the ordinary course of the Borrower’s business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by the Borrower, and not for the purposes of speculation or taking a “market view”;

(i) Indebtedness consisting of (A) Guarantees by the Borrower or any Guarantor of any Indebtedness of the Borrower or the Guarantors permitted pursuant to this Section 6.01 (disregarding this subsection (i)), and (B) Guarantees

by any Subsidiary that is not a Guarantor of any Indebtedness of any other Subsidiary that is not a Guarantor, so long as such Indebtedness is otherwise permitted pursuant to this Section 6.01 (disregarding this subsection (i));

(j) in each case to the extent (if any) that such obligations constitute Indebtedness, (a) customary indemnification obligations, purchase price or other similar adjustments in connection with acquisitions and dispositions permitted under this Agreement, (b) reimbursement or indemnification obligations owed to any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, (c) obligations in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations, or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case provided in the ordinary course of business, (d) obligations for deferred payment of insurance premiums, (e) take-or-pay obligations contained in supply arrangements; provided, in each case, that such obligation arises in the ordinary course of business and not in connection with the obtaining of financing;

(k) Indebtedness in an aggregate principal amount not in excess of $25,000 at any time consisting of obligations under deferred compensation or other similar arrangements incurred in connection with the Transactions, Permitted Acquisitions or any other Investment expressly permitted hereunder;

(l) Indebtedness consisting of letters of credit or deposits; provided that such obligations (i) are entered into in the ordinary course of the Borrower’s business for the purpose of securing office space and (ii) do not exceed $50,000 at any time outstanding; and

(m) other unsecured Indebtedness of the Borrower and its Subsidiaries in an aggregate principal amount not exceeding $100,000 at any time outstanding.

SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien on any property or assets (including Equity Interests or other securities of any person, including the Borrower or any Subsidiary) now owned or hereafter acquired by it or on any income or revenues or rights in respect of any thereof, except:

(a) Liens on property or assets of the Borrower and the Subsidiaries existing on the date hereof and set forth in Schedule 6.02; provided that such Liens shall secure only those obligations which they secure on the date hereof and extensions, renewals and replacements thereof; provided that the principal amount of the obligation secured thereby is not increased and that any such extension, renewal or replacement is limited to the property originally encumbered thereby;

(b) any Lien created under the Loan Documents;

(c) any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any property or assets of any person that becomes a Subsidiary after the date hereof prior to the time such

person becomes a Subsidiary, as the case may be; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such person becoming a Subsidiary, (ii) such Lien does not apply to any other property or assets of the Borrower or any Subsidiary and (iii) such Lien secures only those obligations which it secures on the date of such acquisition or the date such person becomes a Subsidiary and extensions, renewals and replacements thereof, as the case may be; provided that, in the case of any extension, renewal or replacement of a Lien permitted by this Section 6.2(c), the principal amount of the obligation secured thereby is not increased and such extension, renewal or replacement is limited to the property originally encumbered thereby;

(d) Liens for taxes not yet due or which are being contested in compliance with Section 5.03;

(e) carriers’, landlords’, warehousemen’s, mechanics’, suppliers’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business and securing obligations that are not due and payable or which are being contested in compliance with Section 5.03;

(f) pledges and deposits made in the ordinary course of business in compliance with workmen’s compensation, unemployment insurance and other social security laws or regulations;

(g) deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;

(h) zoning restrictions, easements, rights-of-way, restrictions on use of real property and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and do not materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of the Borrower or any of its Subsidiaries;

(i) purchase money security interests in real property, improvements thereto or equipment hereafter acquired (or, in the case of improvements, constructed) by the Borrower or any Subsidiary; provided that (i) such security interests secure Indebtedness permitted by Section 6.01, (ii) such security interests are incurred, and the Indebtedness secured thereby is created, within 180 days after such acquisition (or construction), (iii) the Indebtedness secured thereby does not exceed 100% of the lesser of the cost or the fair market value of such real property, improvements or equipment at the time of such acquisition (or construction) and (iv) such security interests do not apply to any other property or assets of the Borrower or any Subsidiary;

(j) Liens securing judgments (other than judgments giving rise to an Event of Default) for the payment of money (or securing appeal or other surety bonds related to such judgments);

(k) Liens consisting of set-offs of a customary nature or bankers’ Liens on deposit accounts maintained with, or other property in the custody of, a depositary bank pursuant to its general business terms and in the ordinary course of business;

(l) Any interest or title of a lessor, sublessor, licensee or licensor under any lease or license agreement permitted by this Agreement which do not materially interfere with the ordinary conduct of the business of Borrower or its Subsidiaries and do not secure any Indebtedness;

(m) Liens consisting of pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations to (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to Borrower or its Subsidiaries;

(n) Liens (A) on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 6.04 to be applied against the purchase price for such Investment, and (B) consisting of an agreement to transfer any property in a disposition permitted under Section 6.05, in each case, solely to the extent such Investment or disposition, as the case may be, would have been permitted on the date of the creation of such Lien;

(o) Liens that are contractual rights of set-off relating to purchase orders and other agreements entered into with customers of Borrower or any of its Subsidiaries in the ordinary course of business;

(p) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by Borrower or its Subsidiaries in the ordinary course of business (excluding any general inventory financing) or Liens arising by operation of law under Article 2 of the UCC in favor of a reclaiming seller of goods or buyer of goods;

(q) Liens arising from precautionary UCC financing statements regarding operating leases entered into in the ordinary course;

(r) Liens of a collecting bank arising in the ordinary course of business under Section 4-208 of the Uniform Commercial Code in effect in the relevant jurisdiction covering only the items being collected upon; and

(s) other Liens so long as neither the value of the property subject to such Liens, nor the Indebtedness and other obligations secured thereby, not exceed $100,000 in the aggregate.

SECTION 6.03. Sale and Lease-Back Transactions. Enter into any arrangement, directly or indirectly, with any person whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property which it intends to use for substantially the same purpose or purposes as the property being sold or transferred unless (a) the sale or transfer of such property is permitted by Section 6.05 and (b) any Capital Lease Obligations or Liens arising in connection therewith are permitted by Section 6.01 and 6.02, as the case may be.

SECTION 6.04. Investments, Loans and Advances. Purchase, hold or acquire any Equity Interests, evidences of indebtedness or other securities of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other person, except:

(a) (i) investments existing on the date hereof and set forth on Schedule 6.04 hereto, (ii) investments by the Borrower and the Subsidiaries existing on the date hereof in the Equity Interests of the Subsidiaries and (iii) additional investments by the Borrower and the Subsidiaries in the Equity Interests of the Subsidiaries; provided that (A) any such Equity Interests held by a Loan Party shall be pledged pursuant to the Guarantee and Collateral Agreement (subject to the limitations applicable to voting stock of a Foreign Subsidiary referred to therein) and (B) the aggregate amount of investments by Loan Parties in, and loans and advances by Loan Parties to, Subsidiaries that are not Loan Parties made after the Closing Date (determined without regard to any write-downs or write-offs of such investments, loans and advances) shall not exceed $10,000 at any time outstanding;

(b) Permitted Investments;

(c) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary; provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged to the Collateral Agent for the ratable benefit of the Secured Parties pursuant to the Guarantee and Collateral Agreement, (ii) any such loans and advances made to a Loan Party shall be subordinated to the Obligations on terms satisfactory to the Administrative Agent and (iii) the aggregate amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties (determined without regard to any write-downs or write-offs of such investments, loans and advances) shall not exceed $5,000 at any time outstanding;

(d) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;

(e) the Borrower and the Subsidiaries may make loans and advances in the ordinary course of business to their respective employees, officers and directors so long as the aggregate principal amount thereof at any time outstanding

(determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $10,000;

(f) the Borrower and the Subsidiaries may enter into Hedging Agreements that are not speculative in nature;

(g) any Subsidiary may acquire all or substantially all the assets of a person or line of business of such person, or not less than 100% of the Equity Interests (other than directors’ qualifying shares) of a person (referred to herein as the “Acquired Entity”); provided that (i) such acquisition was not preceded by an unsolicited tender offer for such Equity Interests by, or proxy contest initiated by, the Borrower or any Subsidiary or Affiliate thereof; (ii) the Acquired Entity shall be in a similar or complementary line of business as that of the Borrower and the Subsidiaries as conducted during the current and most recent calendar year; and (iii) at the time of such transaction (A) both before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; (B) the Borrower would be in compliance with the covenant set forth in Section 6.10 after giving pro forma effect to such transaction; (C) the total consideration paid in connection with such acquisition and any other acquisitions pursuant to this Section 6.04(g) (including any Indebtedness of the Acquired Entity that is assumed by the Borrower or any Subsidiary following such acquisition and any payments following such acquisition pursuant to earn-out provisions or similar obligations) shall not in the aggregate exceed $500,000; (D) the Borrower shall have delivered a certificate of a Financial Officer, certifying as to the foregoing and containing reasonably detailed calculations in support thereof, in form and substance satisfactory to the Administrative Agent; and (E) the Borrower shall comply, and shall cause the Acquired Entity to comply, with the applicable provisions of Section 5.12 and the Security Documents (any acquisition of an Acquired Entity meeting all the criteria of this Section 6.04(g) being referred to herein as a “Permitted Acquisition”);

(h) extensions of trade credit in the ordinary course of business in accordance with past practices;

(i) investments consisting of non-cash consideration received from an Asset Sale in compliance with Section 6.05;

(j) the Transactions shall be permitted;

(k) investments of any person existing at the time such person becomes a Subsidiary of Borrower or consolidates or merges with Borrower or any of its Subsidiaries in a transaction expressly permitted hereby so long as such investments were not made in contemplation of such person becoming a Subsidiary or of such merger;

(l) investments in the ordinary course of business consisting of endorsements for collection or deposit;

(m) the Borrower or any other Loan Party may pay the Deposit; and

(n) in addition to investments permitted by paragraphs (a) through (m) above, additional investments, loans and advances by the Borrower and the Subsidiaries so long as the aggregate amount invested, loaned or advanced pursuant to this paragraph (n) (determined without regard to any write-downs or write-offs of such investments, loans and advances) does not exceed $10,000 in the aggregate;

SECTION 6.05. Acquisitions, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory in the ordinary course of business, (ii) the Borrower or another Loan Party may enter into the Acquisition Agreement and (iii) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (x) any wholly owned Subsidiary of the Borrower may merge into or consolidate with any other wholly owned Subsidiary of the Borrower or the Borrower in a transaction in which the surviving entity is a wholly owned Subsidiary of the Borrower or the Borrower, as the case may be, and no person other than the Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party) and (y) the Borrower and the Subsidiaries may make Permitted Acquisitions.

(b) Make any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for consideration at least 75% of which is cash, (ii) such consideration is at least equal to the fair market value of the assets being sold, transferred, leased or disposed of and (iii) the fair market value of all assets sold, transferred, leased or disposed of pursuant to this paragraph (b) shall not exceed $50,000 in the aggregate.

SECTION 6.06. Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) any Subsidiary of the Borrower may declare and pay dividends or make other distributions ratably to its equity holders and (ii) the Borrower and the Subsidiaries may make Restricted Payments in the form of distributions payable solely in the common stock or other common Equity Interests of such person;

(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of the Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Subsidiary to pay dividends or other distributions with respect to

any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions existing on the Closing Date or imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (C) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness and (D) subject to Section 5.13, clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof.

SECTION 6.07. Transactions with Affiliates. Except for transactions between or among Loan Parties, sell or transfer any property or assets to, or purchase or acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except that the Borrower or any Subsidiary may engage in any of the foregoing transactions in the ordinary course of business at prices and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties.

SECTION 6.08. Business of the Borrower and its Subsidiaries. With respect to the Borrower and each of its Subsidiaries, engage at any time in any business or business activity other than the business currently conducted by it and business activities reasonably incidental thereto.

SECTION 6.09. Other Indebtedness and Agreements. (a) Permit (i) any waiver, supplement, modification, amendment, termination or release of any indenture, instrument or agreement pursuant to which any Material Indebtedness of the Borrower or any of the Subsidiaries is outstanding if the effect of such waiver, supplement, modification, amendment, termination or release would materially increase the obligations of the obligor or confer additional material rights on the holder of such Material Indebtedness in a manner adverse to the Borrower, any of the Subsidiaries or the Lenders or (ii) any waiver, supplement, modification or amendment of its certificate of incorporation, by-laws, operating, management or partnership agreement or other organizational documents in a manner adverse to Administrative Agent, the Collateral Agent and the Lenders.

(b) (i) Make any distribution, whether in cash, property, securities or a combination thereof, other than regular scheduled payments of principal and interest as and when due (to the extent not prohibited by applicable subordination provisions), in respect of, or pay, or commit to pay, or directly or indirectly (including pursuant to any Synthetic Purchase Agreement) redeem, repurchase, retire or otherwise acquire for consideration, or set apart any sum for the aforesaid purposes, any Indebtedness (other than the Loans) or (ii) pay in cash any amount in respect of any Indebtedness or preferred Equity Interests that may at the obligor’s option be paid in kind or in other securities.

SECTION 6.10. Minimum Liquidity. Permit Liquidity to be less than $2,000,000 at any time.

SECTION 6.11. Fiscal Year. With respect to the Borrower and each Subsidiary, change their fiscal year-end to a date other than December 31.

SECTION 6.12. Certain Equity Securities. Issue any Equity Interest that is not Qualified Capital Stock.

SECTION 6.13. Amendments or Waivers of Documents Relating to Indebtedness.

(a) Amendments of Documents Relating to Indebtedness. The Borrower will not, and will not permit any of its Subsidiaries to, amend or otherwise change the terms of any 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 Indebtedness, 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 thereof (or of any guaranty thereof), or change any collateral therefor (other than to release such 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 Indebtedness (or a trustee or other representative on their behalf) which would be adverse to any of the Loan Parties, the Lenders or the Administrative Agent.

(b) Amendments of Organizational Documents. The Borrower will not, and will not permit any of its Subsidiaries to, make any amendment, restatement, supplement or other modification to such person’s Organizational Documents in any manner adverse to the Lenders or the Administrative Agent without obtaining the prior written consent of the Required Lenders to such amendment, restatement, supplement or other modification.

SECTION 6.14. Wholly-Owned Subsidiaries. Neither the Borrower nor any Subsidiary of the Borrower will own, form or acquire any Subsidiary other than Subsidiaries that are wholly owned Subsidiaries of the Borrower.

SECTION 6.15. Excluded Subsidiaries. The Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly, permit (a) the combined gross revenue of all Excluded Subsidiaries for the period of four fiscal consecutive quarters most recently ended to exceed $5,000, (b) the combined total assets of the Excluded Subsidiaries at any time to be more than $5,000 or (c) any Excluded Subsidiary to own, or possess the right to use, any Intellectual Property or other assets that individually or in the aggregate are material to the business of the Borrower and its Subsidiaries, taken as a whole. The Borrower may withdraw the designation of any Subsidiary as an Excluded Subsidiary at any time in a written notice to the Administrative Agent. If, at any time, the Borrower is

not in compliance with clauses (a) through (c) above, unless the Borrower has notified the Administrative Agent in writing (1) within 10 Business Days after the date the Borrower is required to deliver financial statements for the applicable fiscal quarter or year pursuant to Section 5.04(a) or (b) (in the case of clause (a) of this Section 6.15) or (2) within 10 Business Days of such occurrence (in the case of clause (b) or (c) of this Section 6.15) that such designation has been withdrawn for one or more Excluded Subsidiaries sufficient to comply with this Section 6.15, then such designation shall be deemed to have been withdrawn as to all such Subsidiaries (in the case of clause (a) or (b)) or the applicable Subsidiary (in the case of clause (c)) and each such Subsidiary as to which such designation is deemed to have been withdrawn shall thereupon be deemed to have ceased to be an Excluded Subsidiary. Any Subsidiary for which such designation has been withdrawn or deemed withdrawn may not be re-designated as an Excluded Subsidiary.

ARTICLE VII

Events of Default

In case of the happening of any of the following events (“Events of Default”):

(a) any representation or warranty made or deemed made in or in connection with any Loan Document or the Loans made hereunder, or any representation, warranty, statement or information contained in any report, certificate, financial statement or other instrument furnished in connection with or pursuant to any Loan Document, shall prove to have been false or misleading in any material respect when so made, deemed made or furnished;

(b) default shall be made in the payment of any principal of, or Make-Whole Amount on, any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;

(c) default shall be made in the payment of any interest on any Loan or any fee or any other amount (other than an amount referred to in (b) above) due under any Loan Document, when and as the same shall become due and payable, and such default shall continue unremedied for a period of three Business Days;

(d) default shall be made in the due observance or performance by the Borrower or any Subsidiary of any covenant, condition or agreement contained in Section 5.01(a), 5.05(a), 5.08 or 5.15 or in Article VI;

(e) default shall be made in the due observance or performance by the Borrower or any Subsidiary of any covenant, condition or agreement contained in any Loan Document (other than those specified in (b), (c) or (d) above) and such default shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent or any Lender to the Borrower;

(f) (i) the Borrower or any Subsidiary shall fail to pay any principal or interest, regardless of amount, due in respect of any Material Indebtedness, when and as the same shall become due and payable, or (ii) any other event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (ii) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;

(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Borrower or any Subsidiary, or of a substantial part of the property or assets of the Borrower or a Subsidiary, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial part of the property or assets of the Borrower or a Subsidiary or (iii) the winding-up or liquidation of the Borrower or any Subsidiary; and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;

(h) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial part of the property or assets of the Borrower or any Subsidiary, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due or (vii) take any action for the purpose of effecting any of the foregoing;

(i) one or more judgments (other than judgments that are fully covered by a reputable and solvent insurance company) shall be rendered against the Borrower, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Borrower or any Subsidiary to enforce any such judgment and such judgment is for the payment of money in an aggregate amount in excess of $250,000;

(j) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other such ERISA Events, could reasonably be expected to result in liability of the Borrower and its ERISA Affiliates in an aggregate amount exceeding $250,000;

(k) any material Guarantee under the Guarantee and Collateral Agreement for any reason shall cease to be in full force and effect (other than in accordance with its terms), or any Subsidiary Guarantor shall deny in writing that it has any further liability under the Guarantee and Collateral Agreement (other than as a result of the discharge of such Subsidiary Guarantor in accordance with the terms of the Loan Documents);

(l) any security interest purported to be created by any Security Document shall cease to be, or shall be asserted by the Borrower or any other Loan Party not to be, a valid, perfected, first priority (except as otherwise expressly provided in this Agreement or such Security Document) security interest in the securities, assets or properties covered thereby;

(m) any material subordinated Indebtedness of the Borrower and the Subsidiaries constituting Material Indebtedness shall cease (or any Loan Party or an Affiliate of any Loan Party shall so assert), for any reason, to be validly subordinated to the Obligations as provided in the agreements evidencing such subordinated Indebtedness;

(n) the Borrower or any of its Subsidiaries shall be convicted under any criminal law that could lead to a forfeiture of any material property of such person;

(o) there shall have occurred a Change in Control;

then, and in every such event (other than an event with respect to the Loan Parties described in paragraph (g) or (h) above), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same or different times: (i) terminate forthwith the Commitments and (ii) declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable (and accrued cash and PIK interest thereon), the Make-Whole Amount, and any unpaid accrued fees and all other liabilities of the Loan Parties accrued hereunder and under any other Loan Document, shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding; and in any event with respect to the Loan Parties described in paragraph (g) or (h) above, the Commitments shall automatically terminate and the

principal of the Loans then outstanding (and accrued cash and PIK interest thereon), the Make-Whole Amount, and any unpaid accrued fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding.

If the Loans are accelerated for any reason, including, without limitation, because of default, sale, transfer or encumbrance (including that by operation of law or otherwise) or if the Loans are repaid for any reason (including, without limitation, pursuant to a plan of reorganization or otherwise as part of any insolvency, bankruptcy or similar proceeding) following the occurrence of an Event of Default or otherwise and whether or not the Loans are accelerated, the Make-Whole Amount will also be due and payable as though said indebtedness was voluntarily prepaid as of such date of acceleration and shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of the Lenders’ lost profits as a result thereof. The Make-Whole Amount shall be presumed to be the liquidated damages sustained by the Lenders as the result of the early termination and the Borrower agrees that it is reasonable under the circumstances currently existing. THE BORROWER EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW WHICH PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT FEE IN CONNECTION WITH ANY SUCH ACCELERATION.

The Borrower further expressly agrees that: (i) the Make-Whole Amount provided for herein is reasonable; (ii) the Make-Whole Amount shall be payable notwithstanding the then prevailing market rates at the time payment is made; (iii) there has been a course of conduct between the Lenders and the Borrower giving specific consideration in this transaction for such agreement to pay the Make-Whole Amount; and (iv) the Borrower shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Borrower expressly acknowledges that its agreement to pay the Make-Whole Amount to the Lenders as herein described is a material inducement to the Lenders to make the Loans.

ARTICLE VIII

The Administrative Agent and the Collateral Agent

Each of the Lenders hereby irrevocably appoints the Administrative Agent and the Collateral Agent (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the “Agents”) its agent and authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents.

The person serving as the Administrative Agent and/or the Collateral Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such person and its affiliates may provide debt financing, equity capital or other services (including financial advisory services) to any of the Loan Parties (or any person engaged in similar business as that engaged in by any of the Loan Parties) as if such person was not performing the duties specified herein, and may accept fees and other consideration from any of the Loan Parties for services in connection with this Agreement and otherwise without having to account for the same to the Lenders.

Neither Agent shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) neither Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) neither Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that such Agent is instructed in writing to exercise by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.08), and (c) except as expressly set forth in the Loan Documents, neither Agent shall have any duty to disclose, nor shall it be liable for the failure to disclose, any information relating to the Borrower or any of the Subsidiaries that is communicated to or obtained by the person serving as Administrative Agent and/or Collateral Agent or any of its Affiliates in any capacity. Neither Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.08) or in the absence of its own gross negligence or willful misconduct. Neither Agent shall be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and neither Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to such Agent.

Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper person. Each Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be

counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the Credit Facilities as well as activities as Agent.

Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.05 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while acting as Agent.

Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.

ARTICLE IX

Miscellaneous

SECTION 9.01. Notices. Notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax, as follows:

(a) if to the Borrower, to it at 433 Hackensack Avenue, Hackensack, NJ 07601, Attention of Daniel R. Luis, Chief Executive Officer (Fax No. 201-996-1772), with a copy (which shall not constitute notice) to Lowenstein Sandler PC, 65 Livingston Avenue, Roseland, New Jersey 07068-1791, Attention: Peter H. Ehrenberg (Fax No. 973-597-2400);

(b) if to the Administrative Agent, to Clearlake Capital Group, LP, 650 Madison Avenue, 23rd Floor, New York, NY 10022, Attention: Behdad Eghbali (Fax No. 212-610-9121), with a copy (which shall not constitute notice) to Milbank, Tweed, Hadley & McCloy LLP, 601 South Figueroa Street, 30th Floor, Los Angeles, CA 90017, Attention: Melainie K. Mansfield (Fax No. 213-629-5063); and

(c) if to a Lender, to it at its address (or fax number) set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender shall have become a party hereto.

All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier service or sent by fax or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 9.01. As agreed to among the Borrower, the Administrative Agent and the applicable Lenders from time to time, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the applicable person provided from time to time by such person.

SECTION 9.02. Survival of Agreement. All covenants, agreements, representations and warranties made by the Borrower herein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Lenders and shall survive the making by the Lenders of the Loans, regardless of any investigation made by the Lenders or on their behalf, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any Make-Whole Amount or fee or any other amount payable under this Agreement or any other Loan Document is outstanding and unpaid and so long as the Commitments have not been terminated. The provisions of Section 2.09, 2.10, 2.14 and 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the Collateral Agent or any Lender. The provisions of Section 9.16 shall remain operative and in full force and effect for a period of one year from the Stated Maturity.

SECTION 9.03. Binding Effect. This Agreement shall become effective when it shall have been executed by the Borrower, the Administrative Agent and each of the

Lenders party hereto as of the date hereof and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto.

SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or on behalf of the Borrower, the Administrative Agent, the Collateral Agent or the Lenders that are contained in this Agreement shall bind and inure to the benefit of their respective successors and assigns.

(b) Each Lender may assign to one or more assignees all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it), with the prior written consent of the Borrower and the Administrative Agent (such consents not to be unreasonably withheld or delayed); provided, however, that (i) the consent of the Borrower shall not be required to any such assignment made (A) to another Lender or an Affiliate or Related Fund of a Lender, (B) during the primary syndication of the Loans and the Commitments to persons identified to the Borrower prior to the Closing Date or (C) after the occurrence and during the continuance of any Event of Default, (ii) no Lender may assign any portion of its Commitments and Loans of less than $500,000 (unless to another Lender or to any Related Fund of such assigning Lender) or which leaves the assigning Lender with Commitments and Loans of less than $500,000 after giving effect to such assignment and all previous assignments (except that (A) a Lender may assign Commitments and Loans in an amount less than $500,000 if it assigns its entire Commitment and Loans, and (B) Commitments and Loans may be assigned in any denomination from a Lender or group of Related Funds to any assignee or group of Related Funds so long as the aggregate principal amount of Commitments and Loans concurrently transferred shall be $500,000 or more, (iii) the parties to each such assignment shall manually execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (provided that only one such fee shall be payable in the case of concurrent assignments to persons that, after giving effect to such assignments, will be Related Funds), and (iv) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and all applicable tax forms. Upon acceptance and recording pursuant to paragraph (e) of this Section 9.04, from and after the effective date specified in each Assignment and Acceptance, (A) the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement and (B) the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 2.09, 2.10, 2.14 and 9.05 and shall continue to be bound by Section 9.16 for a period of one year from the date such Lender ceases to be a party hereto).

(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that its Commitment, and the outstanding balance of its Loans, without giving effect to assignments thereof which have not become effective, are as set forth in such Assignment and Acceptance; (ii) except as set forth in (i) above, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto, or the financial condition of the Borrower or any Subsidiary or the performance or observance by the Borrower or any Subsidiary of any of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee represents and warrants that it is legally authorized to enter into such Assignment and Acceptance; (iv) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 3.05 or delivered pursuant to Section 5.04 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (v) such assignee will independently and without reliance upon the Administrative Agent, the Collateral Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (vi) such assignee appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the Collateral Agent, respectively, by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Lender.

(d) The Borrower shall maintain at its principal executive offices in Hackensack, New Jersey a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The Borrower, the Administrative Agent, the Collateral Agent and the Lenders may treat each person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Administrative Agent, the Collateral Agent and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

(e) Upon its receipt of, and consent to, a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, an Administrative Questionnaire completed in respect of the assignee (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) above,

if applicable, and the written consent of the Administrative Agent and, if required, the Borrower to such assignment and any applicable tax forms, the Administrative Agent shall (i) accept such Assignment and Acceptance and (ii) notify the Borrower of such acceptance. The Borrower shall promptly record the information contained therein in the Register. No assignment shall be effective unless it has been recorded in the Register as provided in this paragraph (e).

(f) Each Lender may without the consent of the Borrower or the Administrative Agent sell participations to one or more banks or other persons in all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other persons shall be entitled to the benefit of the cost protection provisions contained in Sections 2.09 and 2.14 to the same extent as if they were Lenders (but, with respect to any particular participant, to no greater extent than the Lender that sold the participation to such participant) and (iv) the Borrower, the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and such Lender shall retain the sole right to enforce the obligations of the Borrower relating to the Loans and to approve any amendment, modification or waiver of any provision of this Agreement (other than amendments, modifications or waivers decreasing any fees payable to such participating bank or person hereunder or the amount of principal of or the rate at which interest is payable on the Loans in which such participating bank or person has an interest, extending any scheduled principal payment date or date fixed for the payment of interest on the Loans in which such participating bank or person has an interest, or increasing or extending the Commitments in which such participating bank or person has an interest.

(g) Any Lender or participant may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.04, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure of information designated by the Borrower as confidential, each such assignee or participant or proposed assignee or participant shall execute an agreement whereby such assignee or participant shall agree (subject to customary exceptions) to preserve the confidentiality of such confidential information on terms no less restrictive than those applicable to the Lenders pursuant to Section 9.16.

(h) Any Lender may at any time assign all or any portion of its rights under this Agreement to secure extensions of credit to such Lender or in support of obligations owed by such Lender; provided that no such assignment shall release a Lender from any of its obligations hereunder or substitute any such assignee for such Lender as a party hereto.

(i) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”),

identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 9.04, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in the Loans to the Granting Lender or to any financial institutions (consented to by the Borrower and Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC.

(j) The Borrower shall not assign or delegate any of its rights or duties hereunder without the prior written consent of the Administrative Agent and each Lender, and any attempted assignment without such consent shall be null and void.

SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay all out-of-pocket expenses incurred by the Administrative Agent and the Collateral Agent in connection with the syndication of the Credit Facilities and the preparation and administration of this Agreement and the other Loan Documents or in connection with any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions hereby or thereby contemplated shall be consummated) or incurred by the Administrative Agent, the Collateral Agent or the Lenders signatory hereto in connection with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents or in connection with the Loans made hereunder, including the reasonable fees, charges and disbursements of Milbank, Tweed, Hadley & McCloy LLP, counsel for the Administrative Agent and the Collateral Agent, and, in connection with any such enforcement or protection, the fees, charges and disbursements of any other counsel for the Administrative Agent, the Collateral Agent or the Lenders signatory hereto. Notwithstanding the foregoing, the out-of-pocket expenses incurred by the Administrative Agent and the Collateral Agent in connection with the syndication of the Credit Facilities and the preparation and administration of this Agreement and the other Loan Documents shall be limited as set forth in the Expense Reimbursement Letter.

(b) The Borrower agrees to indemnify the Administrative Agent, the Collateral Agent, each Lender and each Related Party of any of the foregoing persons (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees, charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document or any agreement or instrument contemplated thereby, the performance by the parties thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated thereby (including the syndication of the Credit Facilities), (ii) the use of the proceeds of the Loans, (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates), or (iv) any actual or alleged presence or Release of Hazardous Materials on any property currently or formerly owned or operated by the Borrower or any of the Subsidiaries, or any Environmental Liability related in any way to the Borrower or the Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee.

(c) To the extent that the Borrower fails to pay any amount required to be paid by them to the Administrative Agent or the Collateral Agent under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent or the Collateral Agent, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent or the Collateral Agent in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the outstanding Loans and unused Commitments at the time.

(d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or the use of the proceeds thereof.

(e) The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the invalidity or unenforceability of any term or

provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the Collateral Agent or any Lender. All amounts due under this Section 9.05 shall be payable on written demand therefor.

SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to time, except to the extent prohibited by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender to or for the credit or the account of the Borrower against any of and all the obligations of the Borrower now or hereafter existing under this Agreement and other Loan Documents held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or such other Loan Document and although such obligations may be unmatured. The rights of each Lender under this Section 9.06 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.

SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Collateral Agent or any Lender in exercising any power or right hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Collateral Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.

(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders (or the Administrative Agent acting at the written direction of the Required Lenders); provided, however, that no such agreement shall (i) decrease the principal amount of, or extend the maturity of or any scheduled principal payment date or date for the payment of any interest on any Loan, or waive or excuse any such payment or any part thereof, or decrease the rate of interest on any Loan, without the prior written consent of each Lender directly adversely affected thereby (other than any waiver of any increase in the interest rate applicable to the Loans as a result of the occurrence of a Default or an Event of Default), (ii) increase or extend the

Commitment or decrease or extend the date for payment of any fees of any Lender without the prior written consent of such Lender, (iii) amend or modify the pro rata requirements of Section 2.11, the provisions of Section 9.04(j) or the provisions of this Section or release any Subsidiary Guarantor (other than in connection with the sale of such Subsidiary Guarantor in a transaction permitted by Section 6.05) or all or substantially all of the Collateral, without the prior written consent of each Lender, (iv) modify the protections afforded to an SPC pursuant to the provisions of Section 9.04(i) without the written consent of such SPC or (vi) reduce the percentage contained in the definition of the term ”Required Lenders” without the prior written consent of each Lender (it being understood that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Commitments on the date hereof); provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Collateral Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the Collateral Agent.

SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section 9.09 shall be cumulated and the interest and Charges payable to such Lender in respect of other periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.

SECTION 9.10. Entire Agreement. This Agreement, the Expense Reimbursement Letter and the other Loan Documents constitute the entire contract between the parties relative to the subject matter hereof. Any other previous agreement among the parties with respect to the subject matter hereof is superseded by this Agreement and the other Loan Documents. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any person (other than the parties hereto and thereto, their respective successors and assigns permitted hereunder and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent and the Lenders) any rights, remedies, obligations or liabilities under or by reason of this Agreement or the other Loan Documents.

SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN

CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.

SECTION 9.12. Severability. In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

SECTION 9.13. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract, and shall become effective as provided in Section 9.03. Delivery of an executed signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.

SECTION 9.14. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Administrative Agent, the Collateral Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against the Borrower, or their respective properties in the courts of any jurisdiction.

(b) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the other Loan Documents in any New York State or Federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(c) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

SECTION 9.16. Confidentiality. Each of the Administrative Agent, the Collateral Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ officers, directors, employees and agents, including accountants, legal counsel and other advisors (it being understood that the persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority or quasi-regulatory authority (such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) in connection with the exercise of any remedies hereunder or under the other Loan Documents or any suit, action or proceeding relating to the enforcement of its rights hereunder or thereunder, (e) subject to an agreement containing provisions substantially the same as those of this Section 9.16, to (i) any actual or prospective assignee of or participant in any of its rights or obligations under this Agreement and the other Loan Documents or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower or any Subsidiary or any of their respective obligations, (f) with the written consent of the Borrower or (g) to the extent such Information becomes publicly available other than as a result of a breach of this Section 9.16. For the purposes of this Section, “Information” shall mean all information received from the Borrower or any Subsidiary and related to the Borrower or any Subsidiary or their business, other than any such information that was available to the Administrative Agent, the Collateral Agent or any Lender on a nonconfidential basis prior to its disclosure by the Borrower or any Subsidiary; provided that, in the case of Information received from the Borrower or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any person required to maintain the confidentiality of Information as provided in this Section 9.16 shall be considered to have complied with its obligation to do so if such person has exercised the same degree of care to maintain the confidentiality of such Information as such person would accord its own confidential information.

SECTION 9.17. USA PATRIOT Act Notice. Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower and the Subsidiary Guarantors that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies the Borrower and the Subsidiary Guarantors, which information includes the name and address of the Borrower and the Subsidiary Guarantors and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower and the Subsidiary Guarantors in accordance with the USA PATRIOT Act.

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


GOAMERICA, INC., as the Borrower

By		/s/ Daniel R. Luis
Name:		Daniel R. Luis
Title:		Chief Executive Officer

CLEARLAKE CAPITAL GROUP, LP, as Administrative Agent and Collateral Agent

By:		CCG Operations, LLC
Its:		General Partner

By		/s/ Behdad Eghbali
Name:		Behdad Eghbali
Title:		Manager

CCP A, L.P., as a Lender

By:		Clearlake Capital Partners, LLC
Its:		General Partner

By:		CCG Operations, LLC
Its:		Managing Member

		/s/ Behdad Eghbali
Name:		Behdad Eghbali
Title:		Manager

[Signature Page to Credit Agreement]

EX-7.05 6 dex705.htm INVESTOR RIGHTS AGREEMENT Investor Rights Agreement

Exhibit 7.05

Execution Version

INVESTOR RIGHTS AGREEMENT

GOAMERICA, INC.

Dated as of August 1, 2007

TABLE OF CONTENTS


				Page
1.	DEMAND REGISTRATIONS			1
	1.1.	Requests for Registration		1
	1.2.	Demand Notice		2
	1.3.	Demand Registration Expenses		2
	1.4.	Short-Form Registrations		2
	1.5.	Priority on Demand Registrations		3
	1.6.	Restrictions on Demand Registrations		3
	1.7.	Selection of Underwriters		3
	1.8.	Other Registration Rights		3

2.	PIGGYBACK REGISTRATIONS			4
	2.1.	Right to Piggyback		4
	2.2.	Piggyback Expenses		4
	2.3.	Priority on Primary Registrations		4
	2.4.	Priority on Secondary Registrations		4

3.	REGISTRATION GENERALLY			5
	3.1.	Registration Procedures		5
	3.2.	Registration Expenses		9
	3.3.	Participation in Underwritten Offerings		10
	3.4.	Holdback Agreements		10
		3.4.1.	Securityholder Holdback	10
		3.4.2.	Company Holdback	11
	3.5.	Current Public Information		11

4.	REGISTRATION INDEMNIFICATION			12
	4.1.	Indemnification by the Company		12
	4.2.	Indemnification by Holders of Registrable Securities		12
	4.3.	Procedure		13
	4.4.	Entry of Judgment; Settlement		13
	4.5.	Contribution		13
	4.6.	Other Rights		14

5.	TRANSFER RESTRICTIONS			14
	5.1.	General Transfer Restrictions		14
	5.2.	Restrictions on Transfer		15
		5.2.1.	Private Transfers	15
		5.2.2.	Public Transfers	15

6.	PREEMPTIVE RIGHTS			15
	6.1.	Offering		15
	6.2.	Expiration of Subscription Period		16
	6.3.	New Securities		16



7.	DEFINITIONS		17

8.	MISCELLANEOUS		20
	8.1.	No Inconsistent Agreements	20
	8.2.	Remedies	20
	8.3.	Amendment and Waiver	20
	8.4.	Successors and Assigns; Transferees	20
	8.5.	Severability	21
	8.6.	Counterparts	21
	8.7.	Descriptive Headings	21
	8.8.	Notices	21
	8.9.	Delivery by Facsimile	22
	8.10.	Governing Law	22
	8.11.	Jurisdiction. Submission to Jurisdiction; Waivers	22
	8.12.	Waiver of Jury Trial	22
	8.13.	Termination	22

INVESTOR RIGHTS AGREEMENT

This Investor Rights Agreement (this “Agreement”) is made as of August 1, 2007 (the “Effective Date”) by and among:

(i)

GoAmerica, Inc., a Delaware corporation (together with its successors and permitted assigns, the “Company”);

(ii)

Each of the shareholders of the Company listed on Schedule A to this Agreement (each a “Sponsor” and, collectively the “Sponsors”); and

(iii)

such other Persons, if any, that from time to time become parties hereto pursuant to Section 8.4 hereof (collectively, together with the Sponsors, the “Shareholders”).

RECITALS

WHEREAS, the Company and the Sponsors are parties to the Stock Purchase Agreement of even date herewith (the “Initial Stock Purchase Agreement”) in which the Company has agreed to sell to the Sponsors 290,135 shares of Series A Preferred Stock of the Company, par value $.01 per share.

WHEREAS, the Company and the Sponsors are parties to the Stock Purchase Agreement of even date herewith (the “Acquisition Stock Purchase Agreement” and, collectively with the Initial Stock Purchase Agreement, the “Clearlake Stock Purchase Agreements”) in which the Company has agreed to sell to the Sponsors, subject to the happening of the conditions specified therein, up to 6,479,691 additional shares of Series A Preferred Stock of the Company.

WHEREAS, the parties hereto desire for the Company to provide the registration rights set out in this Agreement. Unless otherwise noted in this Agreement, capitalized terms used herein shall have the meanings set forth in Section 7.

AGREEMENT

NOW, THEREFORE, the parties to this Agreement hereby agree as follows:

1.	DEMAND REGISTRATIONS.

1.1. Requests for Registration. At any time a Sponsor may initiate the registration of Common Stock to be sold in a Public Offering (a “Demand Registration”). Subject to the other provisions of this Section 1, a Sponsor may initiate (on behalf of itself and any of its Affiliate) three (3) registrations of all or part of their Registrable Securities on Form S-1 or any similar or successor long-form registration (“Long-Form Registrations”), and, if the Company is eligible to utilize a registration statement on Form S-3 for resales by selling stockholders, an unlimited (but no more than two such registrations in any twelve month period) number of registrations of all or part of their Registrable Securities on Form S-3 or any similar or successor short-form registration (“Short-Form Registrations”); provided in each case that the aggregate gross offering price of the Registrable Securities requested to be registered in any Long Form Registration

pursuant to this Section must equal the greater of (a) $5,000,000 or (b) all of the Common Stock and Conversion Shares then held by such Sponsor and its Affiliates); and provided, further, that the Company shall have no liability to any Shareholder with respect to any conditions that the Securities and Exchange Commission may impose with respect to any such registration, including any conditions that the Securities and Exchange Commission may impose upon the utilization of Rule 415 in connection with any such registration.

1.2. Demand Notice. All requests for Demand Registrations shall be made by giving written notice to the Company (a “Demand Notice”). Each Demand Notice shall specify the approximate number of Registrable Securities requested to be registered. Within ten (10) days after receipt of any such Demand Notice, the Company will give written notice of such requested registration to all other holders of Registrable Securities and, subject to Section 1.5, will use its commercially reasonable efforts to include in such registration (and in all related registrations and qualifications under blue sky laws or in compliance with other registration requirements and in any related underwriting) all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 15 days after the delivery of the Company’s notice.

1.3. Demand Registration Expenses. The Company will pay all Registration Expenses in connection with any registration initiated as a Demand Registration, whether or not it has become effective.

1.4. Short-Form Registrations. Subject to the qualifications set forth herein and subject to any limitations that the Securities and Exchange Commission may impose, (i) Demand Registrations will be Short-Form Registrations whenever the Company is permitted to use any applicable short-form (unless the managing underwriter(s) of such offering requests the Company to use a Long-Form Registration in order to sell all of the Registrable Securities requested to be sold) and (ii) the Sponsors may, in connection with any Demand Registration requested by such holders that is a Short-Form Registration, require the Company to use its commercially reasonable efforts to file such Short-Form Registration with the Securities and Exchange Commission in accordance with and pursuant to Rule 415 under the Securities Act (or any successor rule then in effect) including, if the Company is then eligible, as an automatic shelf registration statement (any such Short-Form Registration, a “Shelf Registration”). Notwithstanding anything in this Agreement to the contrary, if the Securities and Exchange Commission refuses to declare a registration statement filed pursuant to this Agreement effective as a valid secondary offering under Rule 415 due to the number of Registrable Securities included in such registration statement relative to the number of shares of Common Stock outstanding or the number of outstanding shares of Common Stock held by non-affiliates or for any other reason, then, without any liability under this Agreement or any further obligation to register such excess Registrable Securities, the Company shall be permitted to reduce the number of Registrable Securities included in such registration statement to an amount that does not exceed an amount that the Securities and Exchange Commission allows for the offering thereunder to qualify as a valid secondary offering under Rule 415. The Company shall not be liable for damages under this Agreement as to any Registrable Securities which are not permitted by the Securities and Exchange Commission to be included in a registration statement due to Securities and Exchange Commission guidance relating to Rule 415.

1.5. Priority on Demand Registrations. The Company shall not include in any Demand Registration any securities which are not Registrable Securities without the prior receipt of Majority Sponsor Approval. If a Demand Registration is an underwritten offering and the managing underwriter(s) advises the Company that in its opinion the number of Registrable Securities and, if permitted hereunder, other securities, requested to be included in such offering exceeds the number of Registrable Securities and other securities, if any, which can be sold therein without adversely affecting the marketability of the offering, then the Company shall include in such registration, (a) prior to the inclusion of any securities that are not Registrable Securities, the number of Registrable Securities requested to be included in such offering that, in the opinion of such managing underwriter, can be sold without adversely affecting the marketability of the offering, pro rata (based on the number of shares requested to be registered) among the respective holders thereof, provided that if the number of securities that are Registrable Securities that are included in such offering are less than 75% of the number of securities that are Registrable Securities requested to be included in such offering, such offering shall not count for purposes of calculating the number of Long-Form Registrations initiated by a Majority Sponsor, and (b) only then securities that are not Registrable Securities, if the managing underwriter(s) has advised that such securities may be included.

1.6. Restrictions on Demand Registrations. The Company will not be obligated to effect any Demand Registration within 90 days after the closing of a Public Offering (other than on Form S-4 or Form S-8 or any successor or similar form, but including the closing of an underwritten distribution pursuant to a Shelf Registration), except that if such Public Offering is an underwritten offering and the managing underwriter of such Public Offering determines that a longer period, not to exceed 180 days, is reasonably necessary in its opinion, then such restricted period shall continue for the period designated by the managing underwriter, provided that such period shall not extend beyond 180 days after the closing of such Public Offering. The Company may postpone for up to 45 days (from the date of the request) the filing or the effectiveness of a registration statement for a Demand Registration if and so long as the Company determines that such Demand Registration would reasonably be expected to have an adverse effect on any proposal or plan by the Company or any of the Subsidiaries to engage in any acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer, registration or issuance of securities, financing or other material transaction. The Company may not postpone a Demand Registration more than two (2) times in any twelve-month period.

1.7. Selection of Underwriters. The Sponsor(s) selling a majority of the Registrable Securities to be sold by all Sponsors in a Demand Registration will have the right to select the underwriter or underwriters to administer the offering, provided that such selection will be subject to the approval of the board of directors of the Company (the “Board”), which approval will not be unreasonably withheld.

1.8. Other Registration Rights. The Company represents and warrants that it is not a party to, or otherwise subject to, any other agreement granting registration rights to any other Person with respect to any equity securities of the Company, other than this Agreement. Except as provided in this Agreement, the Company shall not grant to any Person the right to request the Company to register any equity securities of the Company, or any securities convertible or exchangeable into or exercisable for such securities, without Majority Sponsor Approval

approving the grant of registration rights for such securities; provided that without such approval, subject to Section 6, (a) the Company may grant rights to other Persons to participate in Demand Registrations and Piggyback Registrations so long as such rights are subordinate to the rights of the holders of Registrable Securities with respect to such Demand Registrations and Piggyback Registrations; and (b) the Company may grant rights to other Persons to request registrations so long as the holders of Registrable Securities are entitled to participate in any such registrations with such Persons pro rata on the basis of the number of Common Stock owned by each such holder.

2.	PIGGYBACK REGISTRATIONS.

2.1. Right to Piggyback. Whenever the Company proposes to register any of its equity securities under the Securities Act (other than (a) pursuant to a Demand Registration, (b) in connection with registration on Form S-4 or Form S-8 or any successor or similar form or (c) in connection with the registration of shares on Form S-3 with respect to a dividend reinvestment plan) and the registration form to be used may be used for the registration of Registrable Securities (a “Piggyback Registration”), the Company will give prompt written notice to all holders of Registrable Securities of its intention to effect such a registration and, subject to Sections 2.3 and 2.4 below, will include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 15 days after the delivery of the Company’s notice. Each such Company notice shall specify the approximate number of Company equity securities to be registered and the anticipated per share price range for such offering.

2.2. Piggyback Expenses. The Company will pay all Registration Expenses in connection with all Piggyback Registrations, whether or not any such registration becomes effective.

2.3. Priority on Primary Registrations. If a Piggyback Registration is an underwritten primary registration on behalf of the Company and the managing underwriter(s) advises the Company that in its opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of such offering, the Company will include in such registration: (a) first, the securities the Company proposes to sell, (b) second, the Registrable Securities requested to be included in such registration, pro rata (based on the number of shares requested to be registered) among the holders of such Registrable Securities, and (c) third, the other securities requested to be included in the such registration in the manner determined by the Company and such shareholders.

2.4. Priority on Secondary Registrations. If a Piggyback Registration is an underwritten secondary registration on behalf of holders of Company securities (other than the holders of Registrable Securities), and the managing underwriter(s) advises the Company that in its opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company will include in such registration: (a) first, the securities requested to be included therein by the holders requesting registration, (b) second, securities requested by the Company to be included in such registration, and (c) third, Registrable Securities and other securities

requested to be included in such registration, pro rata among the holders of such Registrable Securities and the holders of such other securities permitted to have their securities included in such registration on the basis of the number of shares owned by each such holder.

3.	REGISTRATION GENERALLY.

3.1. Registration Procedures. Whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Company will use its best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof and pursuant thereto the Company will as expeditiously as reasonably practicable:

(a) prepare and (within 60 days after the end of the period within which requests for inclusion in such registration may be given to the Company) file with the Securities and Exchange Commission a registration statement with respect to such Registrable Securities and thereafter use commercially reasonable efforts to cause such registration statement to become effective (provided that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to counsel selected by the Sponsors owning the Registrable Securities to be included in any Demand Registration copies of all such documents proposed to be filed, which documents will be subject to review by such counsel);

(b) prepare and file with the Securities and Exchange Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary (i) to keep such registration statement effective for a period (A) of not less than 180 days (subject to extension pursuant to Section 3.3(b)) or, if such registration statement relates to an underwritten offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer, or (B) in the case of a Shelf Registration, ending on the earliest of (I) the date on which all Registrable Securities have been sold pursuant to the Shelf Registration or have otherwise ceased to be Registrable Securities, (II) the second anniversary of the effective date of such Shelf Registration, (III) such other date determined by the Majority Sponsors and (IV) when all such Registrable Securities are freely saleable under Rule 144(k) under the Securities Act, and (ii) to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement;

(c) cause (i) any issuer free writing prospectus to comply with the information and legending requirements under paragraph (c) of Rule 433 and to be accompanied or preceded by a statutory prospectus to the extent required under Rule 433, and (ii) any free writing prospectus or issuer information contained in a free writing prospectus required to be filed by the Company with the Securities and Exchange Commission under paragraph (d) under Rule 433 to be so filed in accordance with such requirements;

(d) furnish to each seller of Registrable Securities such number of copies of such registration statement, each amendment and supplement thereto, in each case, to the extent not available on EDGAR, the prospectus included in such registration statement (including each preliminary prospectus), each free writing prospectus used in connection with such registration, and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller, but in all cases only if such documents are not available on EDGAR;

(e) use its best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such States as any seller reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in respect of doing business in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction);

(f) promptly notify each seller of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and, at the request of any such seller, the Company will prepare and furnish to such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the prospective purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made;

(g) use best efforts to cause all such Registrable Securities to be listed on each securities exchange or market system on which similar securities issued by the Company are then listed and, if not so listed, to be listed on the NASD automated quotation system and, if listed on the NASD automated quotation system, use commercially reasonable efforts to secure designation of all such Registrable Securities covered by such registration statement as a “NMS Security” within the meaning of Rule 600(b)(46) of Regulation NMS of the Securities and Exchange Commission or, failing that, to secure NASDAQ authorization for such Registrable Securities;

(h) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;

(i) enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Sponsors owning a majority of the Registrable Securities to be included in the registration or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (which might include effecting a share split or a combination of shares);

(j) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement, and to cooperate and participate as reasonably requested by any such seller in road show presentations, in the preparation of the registration statement, each amendment and supplement thereto, the prospectus included therein, and other activities as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;

(k) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to its security holders, as soon as reasonably practicable, but not later than 18 months after the effective date of the registration statement, an earnings statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;

(l) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Securities included in such registration statement for sale in any jurisdiction, the Company will use commercially reasonable efforts promptly to obtain the withdrawal of such order;

(m) obtain one or more comfort letters, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), signed by the Company’s independent registered public accounting firm in the then-current customary form and covering such matters of the type customarily

covered from time to time by comfort letters as the holders of a majority of the Registrable Securities being sold reasonably request;

(n) provide a legal opinion of the Company’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in the then-current customary form and covering such matters of the type customarily covered from time to time by legal opinions of such nature (in a form reasonably acceptable to the holders of a majority of the Registrable Securities included in the registration);

(o) cooperate with the sellers of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing securities to be sold under the registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or agent, if any, or such holders may request;

(p) notify counsel for the sellers of Registrable Securities included in such registration statement and the managing underwriter or agent, immediately, and confirm the notice in writing (i) when the registration statement, or any post-effective amendment to the registration statement, shall have become effective, or any supplement to the prospectus or any amendment prospectus shall have been filed, (ii) of the receipt of any comments from the Securities and Exchange Commission, (iii) of any request of the Securities and Exchange Commission to amend the registration statement or amend or supplement the prospectus or for additional information, and (iv) of the issuance by the Securities and Exchange Commission of any stop order suspending the effectiveness of the registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the registration statement for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes;

(q) use its reasonable effort to prevent the issuance of any stop order suspending the effectiveness of the registration statement or of any order preventing or suspending the use of any preliminary prospectus and, if any such order is issued, to obtain the withdrawal of any such order at the earliest possible moment;

(r) if requested by the managing underwriter or agent or any holder of Registrable Securities covered by the registration statement, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or agent or such holder reasonably

requests to be included therein, including, without limitation, with respect to the number of Registrable Securities being sold by such holder to such underwriter or agent, the purchase price being paid therefor by such underwriter or agent and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters incorporated in such prospectus supplement or post-effective amendment;

(s) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc.; and

(t) cause its appropriate officers to attend and participate in presentations to and meetings with prospective purchasers of the Registrable Securities, or a “roadshow”, as reasonably requested by the underwriters, if any.

The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish the Company such information relating to the sale or registration of such Securities regarding such seller and the distribution of such securities as the Company may from time to time reasonably request in writing, prior to including such seller’s Registrable Securities in such registration.

3.2. Registration Expenses.

(a) All expenses incident to the Company’s performance of or compliance with this Agreement, including, without limitation, all registration, qualification and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, and fees and disbursements of counsel for the Company and all independent certified public accountants, underwriters (excluding discounts and commissions) and other Persons retained by the Company (all such expenses being herein called “Registration Expenses”), will be paid by the Company in respect of each Demand Registration and each Piggyback Registration, whether or not it has become effective, including that the Company will pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed or on the NASD automated quotation system or any other quotation system.

(b) In connection with each Demand Registration and each Piggyback Registration, whether or not it has become effective, the Company will pay, and reimburse the holders of Registrable Securities covered by such registration for the payment of, the reasonable fees and disbursements of one

counsel chosen by the holders of a majority of the Registrable Securities included in such registration, such amount not to exceed $25,000 for each registration, and such expenses shall be considered Registration Expenses hereunder.

3.3. Participation in Underwritten Offerings.

(a) No Person may participate in any registration hereunder which is underwritten unless such Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements (including, without limitation, pursuant to the terms of any over-allotment or “green shoe” option requested by the managing underwriter(s), provided that no holder of Registrable Securities will be required to sell more than the number of Registrable Securities that such holder has requested the Company to include in any registration) and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.

(b) Each Person that is participating in any registration hereunder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1(f) above, such Person will forthwith discontinue the disposition of its Registrable Securities pursuant to the registration statement until such Person’s receipt of the copies of a supplemented or amended prospectus as contemplated by such Section 3.1(f). In the event the Company shall give any such notice, the applicable time period mentioned in Section 3.1(b) during which a Registration Statement is to remain effective shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to this paragraph to and including the date when each seller of a Registrable Security covered by such registration statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 3.1(f).

3.4. Holdback Agreements.

3.4.1. Securityholder Holdback. To the extent not inconsistent with applicable law, each holder of Registrable Securities shall not offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any Common Stock, or any options or warrants to purchase any Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive Common Stock, whether now owned or hereinafter acquired, owned directly by the holder (including holding as a custodian) or with respect to which the holder has beneficial ownership within the rules and regulations of the Securities and Exchange Commission, during (a) with respect to any other underwritten Demand Registration or any underwritten Piggyback Registration in which Registrable Securities are included, the seven days prior to and the 90-day period (or such longer period not to exceed 180 days if reasonably necessary in the opinion of such underwriter) beginning on the effective date of such registration, and (b) upon notice from the Company of the commencement of an

underwritten distribution in connection with any Shelf Registration, the seven days prior to and the 90-day period (or such longer period not to exceed 180 days if reasonably necessary in the opinion of such underwriter) beginning on the date of commencement of such distribution, in each case except as part of such underwritten registration, and in each case unless the underwriters managing the registered public offering otherwise agree (in each case, such period, the “Lock-Up Period”); provided, however, if (i) during the period that begins on the date that is 15 calendar days plus three Business Days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs, or (ii) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16 day period beginning on the last day of the Lock-Up Period, the restrictions imposed shall continue to apply until the expiration of the date that is 15 calendar days plus three Business Days after the date on which the issuance of the earnings release or the material news or material event occurs. Any waiver by the underwriters of the foregoing restrictions on transfers by the holders shall be granted to all holders on equal terms.

3.4.2. Company Holdback. The Company shall not offer, sell, contract to sell or otherwise dispose of any securities of the Company that are substantially similar to the Common Stock, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any such substantially similar securities, during (a) with respect to any other underwritten Demand Registration or any underwritten Piggyback Registration in which Registrable Securities are included, the seven days prior to and the 90-day period beginning on the effective date of such registration, and (b) upon notice from any holder(s) of Registrable Securities subject to a Shelf Registration that such holder(s) intend to effect an underwritten distribution of Registrable Securities pursuant to such Shelf Registration (upon receipt of which, the Company will promptly notify all other holders of Registrable Securities of the date of the commencement of such distribution), the seven days prior to and the 90-day period beginning on the date of the commencement of such distribution, in each case except as part of such underwritten registration or pursuant to registrations on Form S-4 or Form S-8, and in each case unless the underwriters managing the registered public offering otherwise agree.

3.5. Current Public Information. At all times after the Company has filed a registration statement with the Securities and Exchange Commission pursuant to the requirements of either the Securities Act or the Securities Exchange Act, the Company will use its commercially reasonable efforts to timely file all reports required to be filed by it under the Securities Act and the Securities Exchange Act and the rules and regulations adopted by the Securities and Exchange Commission thereunder, and will take such further action as any holder or holders of Registrable Securities may reasonably request, all to the extent required to enable such holders to sell Registrable Securities pursuant to Rule 144 adopted by the Securities and Exchange Commission under the Securities Act (as such rule may be amended from time to time) or any similar rule or regulation hereafter adopted by the Securities and Exchange Commission.

4.	REGISTRATION INDEMNIFICATION.

4.1. Indemnification by the Company. The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law, each holder of Registrable Securities and, as applicable, its officers, directors, trustees, employees, shareholders, holders of beneficial interests, members, and general and limited partners (collectively, such holder’s “Indemnitees”) and each Person who controls such holder (within the meaning of the Securities Act) against any and all losses, claims, damages, liabilities, joint or several, to which such holder or any such Indemnitee may become subject under the Securities Act, equivalent foreign securities laws or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon (a) any untrue or alleged untrue statement of material fact contained in any registration statement, prospectus, preliminary prospectus or free writing prospectus or any amendment thereof or supplement thereto, together with any documents incorporated therein by reference or, (b) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will reimburse such holder and each of its Indemnitees for any legal or any other expenses, including any amounts paid in any settlement effected with the consent of the Company, which consent will not be unreasonably withheld or delayed, incurred by them in connection with investigating or defending any such loss, claim, liability, action or proceeding; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or alleged untrue statement, or omission or alleged omission, made in such registration statement, any such prospectus, preliminary prospectus or free writing prospectus or any amendment or supplement thereto, or in any application, in reliance upon, and in conformity with, written information prepared and furnished to the Company by such holder expressly for use therein. In connection with an underwritten offering, the Company will indemnify such underwriters, their officers and directors and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the holders of Registrable Securities.

4.2. Indemnification by Holders of Registrable Securities. In connection with any registration statement in which a holder of Registrable Securities is participating, each such holder will furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such registration statement, prospectus or free writing prospectus, and, to the extent permitted by law, will indemnify and hold harmless the Company and its Indemnitees against any losses, claims, damages or liabilities, joint or several, to which the Company or any such Indemnitee may become subject under the Securities Act, equivalent foreign securities laws or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon (a) any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus, preliminary prospectus or free writing prospectus or any amendment thereof or supplement thereto or in any application, together with any documents incorporated therein by reference or (b) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, any such prospectus, preliminary prospectus or

free writing prospectus or any amendment or supplement thereto, or in any application, in reliance upon and in conformity with written information prepared and furnished to the Company by such holder expressly for use therein, and such holder will reimburse the Company and each such Indemnitee for any legal or any other expenses including any amounts paid in any settlement effected with the consent of such holder, which consent will not be unreasonably withheld or delayed, incurred by them in connection with investigating or defending any such loss, claim, liability, action or proceeding; provided, however, that the obligation to indemnify will be individual (and not joint and several) to each holder and will be limited to the net amount of proceeds received by such holder from the sale of Registrable Securities pursuant to such registration statement, less any other amounts paid by such holder in respect of such untrue statement, alleged untrue statement, omission or alleged omission.

4.3. Procedure. Any Person entitled to indemnification hereunder will (a) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided, however, that the failure of any indemnified party to give such notice shall not relieve the indemnifying party of its obligations hereunder, except to the extent that the indemnifying party is actually prejudiced by such failure to give such notice), and (b) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim.

4.4. Entry of Judgment; Settlement. The indemnifying party shall not, except with the approval of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to each indemnified party of a release from all liability in respect to such claim or litigation without any payment or consideration provided by such indemnified party.

4.5. Contribution. If the indemnification provided for in this Section 4 is, other than expressly pursuant to its terms, unavailable to or is insufficient to hold harmless an indemnified party under the provisions above in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (a) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the sellers of Registrable Securities and any other sellers participating in the registration statement on the other hand from the sale of Registrable Securities pursuant to the registered offering of securities as to which indemnity is sought or (b) if the allocation provided by clause (a) above is not permitted by applicable law, in such proportion as is appropriate to reflect the relative benefits referred to in clause (a) above but also the relative fault of the Company on the one hand and of the sellers of Registrable Securities and any other sellers participating in the registration statement on the other hand in connection with the statement or omissions which resulted in such

losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the sellers of Registrable Securities and any other sellers participating in the registration statement on the other hand shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) to the Company bear to the total net proceeds from the offering (before deducting expenses) to the sellers of Registrable Securities and any other sellers participating in the registration statement. The relative fault of the Company on the one hand and of the sellers of Registrable Securities and any other sellers participating in the registration statement on the other hand shall be determined by reference to, among other things, whether the untrue or alleged omission to state a material fact relates to information supplied by the Company or by the sellers of Registrable Securities or other sellers participating in the registration statement and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The obligation to provide contribution will be individual (and not joint and several) to each holder and will be limited to the net amount of proceeds received by such holder from the sale of Registrable Securities pursuant to such registration statement, less any other amounts paid by such holder, including pursuant to Section 4.2 hereof, in respect of such untrue statement, alleged untrue statement, omission or alleged omission.

The Company and the sellers of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this Section 4 were determined by pro rata allocation (even if the sellers of Registrable Securities were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 4, no seller of Registrable Securities shall be required to contribute any amount in excess of the net proceeds received by such Seller from the sale of Registrable Securities covered by the registration statement filed pursuant hereto, less any other amounts paid by such holder in respect of such untrue statement, alleged untrue statement, omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

4.6. Other Rights. The indemnification and contribution by any such party provided for under this Agreement shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and will remain in full force and effect regardless of any investigation made or omitted by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and will survive the transfer of securities.

5.	TRANSFER RESTRICTIONS

5.1. General Transfer Restrictions. Each Shareholder understands and agrees that the Shares held by such Shareholder on the date hereof have not been registered under the Securities Act or registered or qualified under any state law. No Shareholders shall Transfer Shares (or solicit any offers in respect of any Transfer of such Shares), except in compliance with the Securities Act, any applicable state law or in accordance with agreements applicable to such Transfer.

5.2. Restrictions on Transfer. No Shareholder shall Transfer any of such Shareholder’s Shares to any other Person except as follows:

5.2.1. Private Transfers. Any Sponsor may Transfer any or all of such Sponsor’s Shares to such Sponsor’s Permitted Transferees and such transferee shall be deemed to be a Sponsor hereunder and shall deliver a signature page hereto agreeing to be bound hereby, simultaneously with the Transfer of such Shares. Any transferring Sponsor under this Section shall provide prompt written notice to the Company of any such Transfer, indicating its reliance on this provision and the identity and contact information of the Permitted Transferee.

5.2.2. Public Transfers.

(a) Any Shareholder may Transfer any or all of such Shareholders’ Shares, to the extent they constitute Common Stock, in a Public Offering undertaken in accordance with this Agreement without the consent of the Company or the other Shareholders.

(b) A Shareholder may Transfer any or all of such Shareholder’s Shares pursuant to Rule 144 of the Securities Act.

6.	PREEMPTIVE RIGHTS

6.1. Offering.

(a) If the Company issues or sells or authorizes the issuance or sale of any New Securities (as defined in Section 6.3 below) after the date hereof, the Company shall offer to each Sponsor by written notice (a “Subscription Notice”) a percentage of such New Securities pro rata based on the relative number of Shares held by such Sponsor as compared to the number of Shares and then-exercisable stock options and warrants outstanding held by all holders of the Company’s Shares, stock options and warrants. Each such Sponsor shall be entitled to purchase such New Securities at the most favorable price and on the most favorable terms as such New Securities are to be sold or issued; provided that if a Person participating in such purchase of New Securities is required in connection therewith also to purchase other securities of the Company, the Sponsors exercising their rights pursuant to this Section 6.1 shall also be required to purchase such other securities on substantially the same economic terms and conditions as those on which the offeree of the New Securities is required to purchase such other securities. Each Sponsor participating in such purchase shall also be obligated to execute agreements in the form presented to such Sponsor by the Company, so long as such agreements are substantially similar to those to be executed by the purchasers of New Securities (without taking into consideration any rights which do not entitle such a purchaser to a higher economic return on the New Securities than the economic return to which other Sponsors

participating in such transaction will be entitled with respect to New Securities). Notwithstanding anything to the contrary contained herein, the Company shall not have any obligation to issue equity securities or to offer to issue any equity securities under this Section 6 to any Sponsor who is not an “accredited investor” as such term is defined in Regulation D of the Securities Act.

(b) Each Subscription Notice delivered by the Company to a Sponsor in respect of any proposed issuance or sale of New Securities shall describe in reasonable detail the type, class and number of New Securities being offered, the purchase price thereof, the payment terms therefor and the percentage thereof offered to such holder pursuant to this Section 6. In order to exercise its purchase rights hereunder in respect of any issuance or sale of New Securities described in a Subscription Notice, a Sponsor must deliver to the Company during the fifteen (15) day period commencing upon such holder’s receipt of such Subscription Notice (the “Subscription Period”), a written commitment describing its election hereunder (an “Election Notice”). If a Sponsor fails for any reason to deliver an Election Notice to the Company during the Subscription Period with respect to a proposed issuance or sale of New Securities, such Sponsor shall be deemed to have waived its rights pursuant to this Section 6 in respect of such issuance or sale of New Securities.

6.2. Expiration of Subscription Period. Within the 180-day period immediately following the Subscription Period, the Company shall be entitled to sell, or enter into any agreement to sell, any New Securities which any Sponsor has not elected to purchase, on terms and conditions no more favorable to the offeree of such New Securities than those offered to the Sponsors pursuant to Section 6.1. Any New Securities offered or sold by the Company after such 180-day period must be reoffered to each Sponsor pursuant to the terms of this Section 6.

6.3. New Securities. For purposes hereof, “New Securities” means any shares of the Company’s Capital Stock, or any options, convertible securities or other rights to acquire shares of the Company’s Capital Stock, other than (a) the issuance and sale of Series A Preferred Stock in connection with the Clearlake Stock Purchase Agreements, (b) Common Stock (or options to acquire Common Stock) issued or issuable to any employee, director or consultant of the Company or any of its subsidiaries pursuant to any equity incentive plan or other arrangement approved by the Company’s Board, (c) Common Stock or other securities issued directly or indirectly upon the conversion, exchange or exercise of any securities previously subjected to this Section 6 or outstanding on the date hereof, (d) Common Stock or other securities issued in connection with or in furtherance of the acquisition of or investment in another company or business (whether through a purchase of securities, a merger, consolidation, purchase of assets or otherwise), (e) Common Stock or other securities issued in connection with or in furtherance of the incurrence of any indebtedness for borrowed money or for equipment lease financings by the Company or its subsidiaries, (f) Common Stock or other securities issued or issuable in a Public Offering, (g) Common Stock or other securities issued in connection with any stock split, dividend, combination, recapitalization or similar transaction, (h) Common Stock issued or issuable upon the exercise of warrants or other securities or rights to persons or entities with which the Company has or is entering into a technology or other strategic relationship not for the purpose of raising money or providing financing, (i) Common Stock issued or issuable upon

conversion of Series A Preferred Stock or as dividends or distributions on the Series A Preferred Stock and (j) Common Stock or other securities issued directly or indirectly upon the conversion, exchange or exercise of any securities issued pursuant to any of the clauses of this Section 6.3.

7.	DEFINITIONS.

“Acquisition Stock Purchase Agreement” shall have the meaning set forth in the Recitals.

“Affiliate” means, with respect to any Person, (i) any other Person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such Person (for the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise); provided, however, that neither the Company nor any of its Subsidiaries shall be deemed an Affiliate of any of the Shareholders (and vice versa) and none of the Shareholders shall be deemed Affiliates of each other solely as a result of their relationship with respect to the Company.

“Agreement” shall have the meaning set forth in the Preamble.

“Amendment” shall have the meaning set forth in Section 6.3.

“automatic shelf registration statement” has the meaning set forth in Rule 405 under the Securities Act.

“Board” shall have the meaning set forth in Section 1.7.

“Business Day” shall mean any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by law to be closed in the states of Delaware or New York.

“Capital Stock” means (i) with respect to any Person that is a corporation, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; and (ii) with respect to any other Person, any and all partnership, membership or other equity interests of such Person.

“Clearlake Stock Purchase Agreements” shall have the meaning set forth in the Recitals.

“Common Stock” shall mean the common stock of the Company, par value $.01 per share.

“Company” shall have the meaning set forth in the Preamble.

“Demand Notice” shall have the meaning set forth in Section 1.2.

“Demand Registrations” means Long-Form Registrations and Short-Form Registrations requested pursuant to Section 1.1.

“EDGAR” means the Security Exchange Commission’s Electronic Data Gathering, Analysis and Retrieval system.

“Election Notice” shall have the meaning set forth in Section 6.1(b).

“Effective Date” shall have the meaning set forth in the Preamble.

“Family Member” means, with respect to any natural Person, such Person’s spouse and descendants (whether or not adopted) and any trust, family limited partnership or limited liability company that is and remains at all times solely for the benefit of such Person’s spouse and/or descendants.

“free writing prospectus” has the meaning ascribed to such term under Rule 405 under the Securities Act.

“Indemnitees” shall have the meaning set forth in Section 4.1.

“Initial Stock Purchase Agreement” shall have the meaning set forth in the Recitals.

“issuer free writing prospectus” has the meaning ascribed to such term under Rule 433(h) under the Securities Act.

“Lock-Up Period” shall have the meaning set forth in Section 3.4.1.

“Long-Form Registrations” shall have the meaning set forth in Section 1.1.

“Majority Sponsor Approval” means the written approval of Persons holding a majority of Sponsor Registrable Securities.

“New Securities” shall have the meaning set forth in Section 6.3.

“Person” means an individual, a partnership, a joint venture, a corporation, a limited liability company, a trust, an unincorporated organization and a government or any department or agency thereof.

“Permitted Transferee” shall mean, with respect to any Sponsor, (a) if any Transfer involves less than all of a Sponsor’s Registrable Securities, any Affiliate of a Sponsor or Reservoir Capital Group or its Affiliates, or (b) if any Transfer involves all of a Sponsor’s Registrable Securities, to any Person other than a direct competitor of the Company.

“Piggyback Registration” shall have the meaning set forth in Section 2.1.

“Public Offering” means a public offering and sale of Common Stock pursuant to an effective registration statement under the Securities Act.

“Registrable Securities” means (i) any share of Common Stock issued to any Shareholder (or any Affiliate thereof) as of the Effective Date or thereafter acquired, including upon conversion of the Company’s Series A Preferred Stock by any Shareholder, and (ii) any equity securities issued or issuable directly or indirectly with respect to any of the foregoing

securities referred to in clause (i) by way of share dividend or share split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization. As to any particular shares constituting Registrable Securities, such shares will cease to be Registrable Securities when they have been (x) effectively registered under the Securities Act and disposed of in accordance with the registration statement covering them, or (y) sold to the public pursuant to Rule 144 under the Securities Act or sold in a block sale to a financial institution in the ordinary course of its trading business. For purposes of this Agreement, a Person will be deemed to be a holder of Registrable Securities whenever such Person has the right to acquire directly or indirectly such Registrable Securities (upon conversion or exercise in connection with a transfer of securities or otherwise, but disregarding any restrictions or limitations upon the exercise of such right), whether or not such acquisition has actually been effected.

“Registration Expenses” shall have the meaning set forth in Section 3.2.

“Rule 433” means Rule 433 under the Securities Act or any successor federal law then in force.

“Series A Preferred Stock” means the Series A Preferred Stock of the Company, par value $.01 per share.

“Securities Act” means the United States Securities Act of 1933, as amended, or any successor federal law then in force.

“Securities and Exchange Commission” means the United States Securities and Exchange Commission and any governmental body or agency succeeding to the functions thereof.

“Securities Exchange Act” means the United States Securities Exchange Act of 1934, as amended, or any successor federal law then in force.

“Shareholders” shall have the meaning set forth in the Preamble.

“Shares” shall mean collectively any shares of the Company’s equity securities outstanding from time to time, including, but not limited to the Common Stock and the Series A Preferred Stock.

“Shelf Registration” shall have the meaning set forth in Section 1.4.

“Short-Form Registrations” shall have the meaning set forth in Section 1.1.

“Sponsor” has the meaning set forth in the Preamble.

“Sponsor Registrable Securities” shall mean all of the Registrable Securities held by any Sponsor from time to time.

“Subscription Notice” shall have the meaning set forth in Section 6.1(a).

“Subscription Period” shall have the meaning set forth in Section 6.1(b).

“Transfer” shall mean any sale, pledge, assignment, encumbrance or other transfer or disposition of any shares of Registrable Securities to any other Person, whether directly, indirectly, voluntarily, involuntarily, by operation of law, pursuant to judicial process or otherwise.

8.	MISCELLANEOUS.

8.1. No Inconsistent Agreements. The Company will not hereafter enter into any agreement with respect to its securities which is inconsistent with or violates the rights granted to the holders of Registrable Securities in this Agreement.

8.2. Remedies. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that, in addition to any other rights and remedies at law or in equity existing in its favor, any party shall be entitled to seek specific performance and/or other injunctive relief from any court of law or equity of competent jurisdiction (without posting any bond or other security) in order to enforce or prevent violation of the provisions of this Agreement.

8.3. Amendment and Waiver. Except as otherwise provided herein, this Agreement may be amended, modified, extended or terminated, and the provisions hereof may be waived, only by an agreement in writing signed by the Company and Persons holding a majority of Sponsor Registrable Securities, provided, that the admission of new parties pursuant to the terms of Section 8.4 shall not constitute an amendment of this Agreement for purposes of this Section 8.3. Notwithstanding the foregoing, if any amendment, modification, extension, termination or waiver (an “Amendment”) would treat any Shareholder or group of Shareholders in a manner different from, and materially adverse relative to, the Sponsors voting in favor of such Amendment, then such Amendment will require the consent of the Shareholder or Shareholders holding a majority of the Registrable Securities of such group adversely treated. Each such Amendment shall be binding upon each party hereto and each Shareholder subject hereto. In addition, each party hereto and each Shareholder subject hereto may waive any right hereunder, as to itself, by an instrument in writing signed by such party or Shareholder. The failure of any party to enforce any provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms. To the extent the Amendment of any Section of this Agreement would require a specific consent pursuant to this Section 8.3, any Amendment to definitions to the extent used in such Section shall also require the specified consent.

8.4. Successors and Assigns; Transferees. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns. Registrable Securities shall continue to be Registrable Securities after any Transfer (except if such securities were effectively registered under the Securities Act and disposed of in accordance with the registration statement covering them, sold to the public pursuant to Rule 144 under the Securities Act or sold in a block sale to a financial institution in the ordinary course of its trading business). Any transferee receiving shares of Registrable Securities in a Transfer effected in compliance with the terms of this Agreement shall become a Shareholder, party to this Agreement and subject to the terms and conditions of, and be entitled to enforce, this

Agreement to the same extent, and in the same capacity, as the Person that Transfers such Registrable Securities to such transferee; provided that only a Permitted Transferee of a Sponsor will be deemed to be a Sponsor for purposes of this Agreement. For the avoidance of doubt, any transferee receiving Registrable Securities in a Transfer that is not a Sponsor or a Permitted Transferee of a Sponsor or its Affiliates will become a party to this Agreement without the benefit of the right to initiate Demand Registrations or other rights afforded to the Sponsors hereunder. Prior to the Transfer of any Registrable Securities to any transferee, and as a condition thereto, each Shareholder effecting such Transfer shall (a) cause such transferee to deliver to the Company and each of the Shareholders its written agreement, in form and substance reasonably satisfactory to the Company, to be bound by the terms and conditions of this Agreement to the extent described in the preceding sentence and (b) if such Transfer is to a Permitted Transferee, remain directly liable for the performance by such Permitted Transferee of all obligations of such transferee under this Agreement.

8.5. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

8.6. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same Agreement.

8.7. Descriptive Headings. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

8.8. Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given, delivered and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile telephone number specified in this Section 8.8 prior to 5:00 p.m. (Eastern time) on a Business Day, (ii) the Business Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile telephone number specified in this Agreement later than 5:00 p.m. (Eastern time) on any Business Day and earlier than 11:59 p.m. (Eastern time) on the day preceding the next Business Day, or (iii) one (1) Business Day after when sent, if sent by nationally recognized overnight courier service (charges prepaid). The address for such notices and communications shall be as follows:

If to the Company:

GoAmerica, Inc.

433 Hackensack Avenue

Hackensack, NJ 07601

Facsimile: (201) 527-1081

Attention: General Counsel and Chief Financial Officer

with a copy to:

Lowenstein Sandler PC

65 Livingston Avenue

Roseland, NJ 07068

Facsimile: (973) 587-2351

Attention: Peter H. Ehrenberg

If to any Sponsor: to the addressee specified on Schedule A hereto.

8.9. Delivery by Facsimile. This Agreement and any signed agreement or instrument entered into in connection herewith or contemplated hereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall re-execute original forms thereof and deliver them to all other parties. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine as a defense to the formation of a contract and each such party forever waives any such defense.

8.10. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to a contract executed and performed in such state, without giving effect to the conflicts of laws principles thereof.

8.11. Jurisdiction. Submission to Jurisdiction; Waivers. Each party hereto irrevocably agrees that any proceeding with respect to this Agreement or for recognition and enforcement of any judgment in respect thereof brought by the other party hereto or its successors or assigns, may be brought and determined in the Supreme Court of the State of New York in New York County or in the United States District Court for the Southern District of New York, and each party hereto hereby irrevocably submits with regard to any such proceeding for itself and in respect to its properties, generally and unconditionally, for all purposes of this Agreement.

8.12. Waiver of Jury Trial. To the extent not prohibited by applicable law that cannot be waived, each party hereto waives, and covenants that such party will not assert (whether as plaintiff, defendant or otherwise), any right to trail by jury in any forum in respect of any issue, claim or proceeding arising out of this Agreement or the subject matter hereof or in any way connected with the dealings of any party hereto in connection with any of the above, in each case whether now existing or hereafter arising and whether in contract, tort or otherwise. Any party to this Agreement may file a copy of this Section 8.12 with any court as written evidence of the consent of the parties hereto to the waiver of their rights to trial by jury.

8.13. Termination. The provisions of Section 8 of this Agreement shall terminate as to any Shareholder at such time as such Shareholder ceases to own any Series A Preferred Stock or shares issued upon conversion thereof or in exchange therefor.

* * Signature pages follow * *

IN WITNESS WHEREOF, the parties have executed this Investor Rights Agreement on the day and year first above written.


COMPANY:

GOAMERICA, INC.

By:		/s/ Daniel R. Luis
Name:		Daniel R. Luis
Title:		Chief Executive Officer


SHAREHOLDERS

CCP A, L.P.

By:		CLEARLAKE CAPITAL PARTNERS, LLC
Its:		General Partner

By:		CCG Operations, LLC
Its:		Managing Member

By:		/s/ Behdad Eghbali
Name:		Behdad Eghbali
Title:		Manager

Schedule A: Sponsors

CCP A, L.P.

Address for Notice:

Clearlake Capital Group, LP

650 Madison Ave.

23rd Floor

New York, NY 10022

Attention: Behdad Eghbali

Facsimile: (212) 610-9121

With a copy to:

Milbank, Tweed, Hadley & McCloy LLP

601 S. Figueroa, 30th Floor

Los Angeles, CA 90017

Attention: Melainie K. Mansfield, Esq.

Facsimile: (213) 892-4711

EX-7.06 7 dex706.htm GUARANTEE AND COLLATERAL AGREEMENT Guarantee and Collateral Agreement

Exhibit 7.06

Execution Version

GUARANTEE AND COLLATERAL AGREEMENT

dated as of

August 1, 2007

among

GOAMERICA, INC.,

the Subsidiaries of the Borrower

from time to time party hereto

and

CLEARLAKE CAPITAL GROUP, LP,

as Collateral Agent

TABLE OF CONTENTS


		Page
ARTICLE I

Definitions

SECTION 1.01.	Credit Agreement	1
SECTION 1.02.	Other Defined Terms	1

ARTICLE II

Guarantee

SECTION 2.01.	Guarantee	4
SECTION 2.02.	Guarantee of Payment	4
SECTION 2.03.	No Limitations, Etc	5
SECTION 2.04.	Reinstatement	6
SECTION 2.05.	Agreement To Pay; Subrogation	6
SECTION 2.06.	Information	6

ARTICLE III

Pledge of Securities

SECTION 3.01.	Pledge	6
SECTION 3.02.	Delivery of the Pledged Collateral	7
SECTION 3.03.	Representations, Warranties and Covenants	8
SECTION 3.04.	Certification of Limited Liability Company Interests and Limited Partnership Interests	9
SECTION 3.05.	Denominations	9
SECTION 3.06.	Voting Rights; Dividends and Interest, Etc	9

ARTICLE IV

Security Interests in Personal Property

SECTION 4.01.	Security Interest	11
SECTION 4.02.	Representations and Warranties	13
SECTION 4.03.	Covenants 15
SECTION 4.04.	Other Actions	18
SECTION 4.05.	Covenants Regarding Patent, Trademark and Copyright Collateral	20


ARTICLE V

Remedies
SECTION 5.01.	Remedies Upon Default	22
SECTION 5.02.	Application of Proceeds	24
SECTION 5.03.	Grant of License to Use Intellectual Property	24
SECTION 5.04.	Securities Act, Etc	25

ARTICLE VI

Indemnity, Subrogation and Subordination

SECTION 6.01.	Indemnity and Subrogation	26
SECTION 6.02.	Contribution and Subrogation	26
SECTION 6.03.	Subordination	26

ARTICLE VII

Miscellaneous

SECTION 7.01.	Notices	27
SECTION 7.02.	Security Interest Absolute	27
SECTION 7.03.	Survival of Agreement	27
SECTION 7.04.	Limitation by Law	27
SECTION 7.05.	Binding Effect; Several Agreement	28
SECTION 7.06.	Successors and Assigns	28
SECTION 7.07.	Collateral Agent’s Fees and Expenses; Indemnification	28
SECTION 7.08.	Collateral Agent Appointed Attorney-in-Fact	29
SECTION 7.09.	Applicable Law	30
SECTION 7.10.	Waivers; Amendment	30
SECTION 7.11.	WAIVER OF JURY TRIAL	30
SECTION 7.12.	Severability	31
SECTION 7.13.	Counterparts	31
SECTION 7.14.	Headings	31
SECTION 7.15.	Jurisdiction; Consent to Service of Process	31
SECTION 7.16.	Termination or Release	32
SECTION 7.17.	Additional Subsidiaries	32
SECTION 7.18.	Right of Setoff	32

iii


Schedules

Schedule I		Subsidiary Guarantors
Schedule II		Equity Interests; Pledged Debt Securities
Schedule III		Intellectual Property

Exhibits

Exhibit A		Form of Supplement
Exhibit B		Form of Perfection Certificate

GUARANTEE AND COLLATERAL AGREEMENT dated as of August 1, 2007 (this “Agreement”), among GOAMERICA, INC., a Delaware corporation (the “Borrower”), the Subsidiaries of the Borrower from time to time party hereto and CLEARLAKE CAPITAL GROUP, LP (“Clearlake”), as collateral agent (in such capacity, the “Collateral Agent”).

PRELIMINARY STATEMENT

Reference is made to the Credit Agreement dated as of August 1, 2007 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the lenders from time to time party thereto (each a “Lender” and collectively, the “Lenders”) and Clearlake, as administrative agent (in such capacity, the “Administrative Agent”) and Collateral Agent.

The Lenders (such term and each other capitalized term used but not defined in this preliminary statement having the meaning given or ascribed to it in Article I) have agreed to extend credit to the Borrower pursuant to, and upon the terms and conditions specified in, the Credit Agreement. The obligations of the Lenders to extend credit to the Borrower are conditioned upon, among other things, the execution and delivery of this Agreement by the Borrower and each Subsidiary Guarantor. Each Subsidiary Guarantor is an affiliate of the Borrower, will derive substantial benefits from the extension of credit to the Borrower pursuant to the Credit Agreement and is willing to execute and deliver this Agreement in order to induce the Lenders to extend such credit. Accordingly, the parties hereto agree as follows:

ARTICLE I

Definitions

SECTION 1.01. Credit Agreement. (a) Capitalized terms used in this Agreement and not otherwise defined herein have the meanings set forth in the Credit Agreement. All capitalized terms defined in the New York UCC (as such term is defined herein) and not defined in this Agreement have the meanings specified therein. Except where the usage dictates otherwise, all references to the Uniform Commercial Code shall mean the New York UCC.

(b) The rules of construction specified in Section 1.02 of the Credit Agreement also apply to this Agreement.

SECTION 1.02. Other Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

“Accounts Receivable” shall mean all Accounts and all right, title and interest in any returned goods, together with all rights, titles, securities and guarantees with respect thereto, including any rights to stoppage in transit, replevin, reclamation and resales, and all related security interests, liens and pledges, whether voluntary or involuntary, in each case whether now existing or owned or hereafter arising or acquired.

“Administrative Agent” shall have the meaning assigned to such term in the preliminary statement.

“Article 9 Collateral” shall have the meaning assigned to such term in Section 4.01.

“Borrower” shall have the meaning assigned to such term in the preamble.

“Collateral” shall mean the Article 9 Collateral and the Pledged Collateral.

“Collateral Agent” shall have the meaning assigned to such term in the preamble.

“Copyright License” shall mean any written agreement, now or hereafter in effect, granting any right to any third person under any copyright now or hereafter owned by any Grantor or that such Grantor otherwise has the right to license, or granting any right to any Grantor under any copyright now or hereafter owned by any third person, and all rights of such Grantor under any such agreement.

“Copyrights” shall mean all of the following now owned or hereafter acquired by any Grantor: (a) all copyright rights in any work subject to the copyright laws of the United States or any other country, whether as author, assignee, transferee or otherwise, and (b) all registrations and applications for registration of any such copyright in the United States or any other country, including registrations, recordings, supplemental registrations and pending applications for registration in the United States Copyright Office (or any successor office or any similar office in any other country), including those listed on Schedule III.

“Federal Securities Laws” shall have the meaning assigned to such term in Section 5.04.

“General Intangibles” shall mean all choses in action and causes of action and all other intangible personal property of any Grantor of every kind and nature (other than Accounts) now owned or hereafter acquired by any Grantor, including all rights and interests in partnerships, limited partnerships, limited liability companies and other unincorporated entities, corporate or other business records, indemnification claims, contract rights (including rights under leases, whether entered into as lessor or lessee, Hedging Agreements and other agreements), Intellectual Property, goodwill, registrations, franchises, tax refund claims and any letter of credit, guarantee, claim, security interest or other security held by or granted to any Grantor to secure payment by an Account Debtor of any of the Accounts.

“Grantors” shall mean the Borrower and the Subsidiary Guarantors.

“Intellectual Property” shall mean all intellectual and similar property of any Grantor of every kind and nature now owned or hereafter acquired by any Grantor, including inventions, designs, Patents, Copyrights, Licenses, Trademarks, trade secrets,

confidential or proprietary technical and business information, know-how, show-how or other data or information, software and databases and all embodiments or fixations thereof and related documentation, registrations and franchises, and all additions, improvements and accessions to, and books and records describing or used in connection with, any of the foregoing.

“License” shall mean any Patent License, Trademark License, Copyright License or other license or sublicense agreement relating to Intellectual Property to which any Grantor is a party, including those listed on Schedule III.

“New York UCC” shall mean the Uniform Commercial Code as from time to time in effect in the State of New York.

“Patent License” shall mean any written agreement, now or hereafter in effect, granting to any third person any right to make, use or sell any invention on which a patent, now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license, is in existence, or granting to any Grantor any right to make, use or sell any invention on which a patent, now or hereafter owned by any third person, is in existence, and all rights of any Grantor under any such agreement.

“Patents” shall mean all of the following now owned or hereafter acquired by any Grantor: (a) all letters patent of the United States or the equivalent thereof in any other country, all registrations and recordings thereof, and all applications for letters patent of the United States or the equivalent thereof in any other country, including registrations, recordings and pending applications in the United States Patent and Trademark Office (or any successor or any similar offices in any other country), including those listed on Schedule III, and (b) all reissues, continuations, divisions, continuations-in-part, renewals or extensions thereof, and the inventions disclosed or claimed therein, including the right to make, use and/or sell the inventions disclosed or claimed therein.

“Perfection Certificate” shall mean a certificate substantially in the form of Exhibit B hereto, completed and supplemented with the schedules and attachments contemplated thereby, and duly executed by a Responsible Officer of the Borrower.

“Pledged Collateral” shall have the meaning assigned to such term in Section 3.01.

“Pledged Debt Securities” shall have the meaning assigned to such term in Section 3.01.

“Pledged Securities” shall mean any promissory notes, stock certificates or other securities now or hereafter included in the Pledged Collateral, including all certificates, instruments or other documents representing or evidencing any Pledged Collateral.

“Pledged Stock” shall have the meaning assigned to such term in Section 3.01.

“Secured Parties” shall mean (a) the Lenders, (b) the Administrative Agent, (c) the Collateral Agent, (d) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document and (e) the successors and assigns of each of the foregoing.

“Security Interest” shall have the meaning assigned to such term in Section 4.01.

“Subsidiary Guarantor” shall mean (a) the Subsidiaries identified on Schedule I hereto as Subsidiary Guarantors and (b) each other Subsidiary that becomes a party to this Agreement as a Subsidiary Guarantor after the Closing Date.

“Trademark License” shall mean any written agreement, now or hereafter in effect, granting to any third person any right to use any trademark now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license, or granting to any Grantor any right to use any trademark now or hereafter owned by any third person, and all rights of any Grantor under any such agreement.

“Trademarks” shall mean all of the following now owned or hereafter acquired by any Grantor: (a) all trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office (or any successor office) or any similar offices in any State of the United States or any other country or any political subdivision thereof, and all extensions or renewals thereof, including those listed on Schedule III, (b) all goodwill associated therewith or symbolized thereby and (c) all other assets, rights and interests that uniquely reflect or embody such goodwill.

ARTICLE II

Guarantee

SECTION 2.01. Guarantee. Each Subsidiary Guarantor unconditionally guarantees, jointly with the other Subsidiary Guarantors and severally, as a primary obligor and not merely as a surety, the due and punctual payment and performance of the Obligations. Each Subsidiary Guarantor further agrees that the Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee notwithstanding any extension or renewal of any Obligation. Each Subsidiary Guarantor waives presentment to, demand of payment from and protest to the Borrower or any other Loan Party of any Obligation, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment.

SECTION 2.02. Guarantee of Payment. Each Subsidiary Guarantor further agrees that its guarantee hereunder constitutes a guarantee of payment when due and not of collection, and waives any right to require that any resort be had by the Collateral Agent or any other Secured Party to any security held for the payment of the Obligations or to any balance of any Deposit Account or credit on the books of the Collateral Agent or any other Secured Party in favor of the Borrower or any other person.

SECTION 2.03. No Limitations, Etc. (a) Except for termination of a Subsidiary Guarantor’s obligations hereunder as expressly provided in Section 7.16, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of the Collateral Agent or any other Secured Party to assert any claim or demand or to enforce any right or remedy under the provisions of any Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including with respect to any other Subsidiary Guarantor under this Agreement, (iii) the release of, or any impairment of or failure to perfect any Lien on or security interest in, any security held by the Collateral Agent or any other Secured Party for the Obligations or any of them, (iv) any default, failure or delay, willful or otherwise, in the performance of the Obligations or (v) any other act or omission that may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations). Each Subsidiary Guarantor expressly authorizes the Collateral Agent to take and hold security for the payment and performance of the Obligations, to exchange, waive or release any or all such security (with or without consideration), to enforce or apply such security and direct the order and manner of any sale thereof in its sole discretion or to release or substitute any one or more other guarantors or obligors upon or in respect of the Obligations, all without affecting the obligations of any Subsidiary Guarantor hereunder.

(b) To the fullest extent permitted by applicable law, each Subsidiary Guarantor waives any defense based on or arising out of any defense of the Borrower or any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Borrower or any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations. The Collateral Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with the Borrower or any other Loan Party or exercise any other right or remedy available to them against the Borrower or any other Loan Party, without affecting or impairing in any way the liability of any Subsidiary Guarantor hereunder except to the extent the Obligations have been fully and indefeasibly paid in full in cash. To the fullest extent permitted by applicable law, each Subsidiary Guarantor waives any defense arising out of any such election even though

such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Subsidiary Guarantor against the Borrower or any other Loan Party, as the case may be, or any security.

SECTION 2.04. Reinstatement. Each Subsidiary Guarantor agrees that its guarantee hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by the Collateral Agent or any other Secured Party upon the bankruptcy or reorganization of the Borrower, any other Loan Party or otherwise.

SECTION 2.05. Agreement To Pay; Subrogation. In furtherance of the foregoing and not in limitation of any other right that the Collateral Agent or any other Secured Party has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Borrower or any other Loan Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Subsidiary Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Collateral Agent for distribution to the applicable Secured Parties in cash the amount of such unpaid Obligation. Upon payment by any Subsidiary Guarantor of any sums to the Collateral Agent as provided above, all rights of such Subsidiary Guarantor against the Borrower or any other Subsidiary Guarantor arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subject to Article VI.

SECTION 2.06. Information. Each Subsidiary Guarantor assumes all responsibility for being and keeping itself informed of the Borrower’s and each other Loan Party’s financial condition and assets and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the risks that such Subsidiary Guarantor assumes and incurs hereunder, and agrees that neither the Collateral Agent nor any other Secured Party will have any duty to advise such Subsidiary Guarantor of information known to it or any of them regarding such circumstances or risks.

ARTICLE III

Pledge of Securities

SECTION 3.01. Pledge. As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, and its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, and its successors and assigns, for the ratable benefit of the Secured Parties, a security interest in, all of such Grantor’s right, title and interest in, to and under (a)(i) the Equity Interests owned by such Grantor on the date hereof (including all such Equity Interests listed on Schedule II), (ii) any other Equity Interests obtained in the future by such Grantor and (iii) the certificates representing all such Equity Interests (all the foregoing collectively referred to herein as the “Pledged Stock”); provided, however, that the Pledged Stock shall not include more

than 66% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary, (b)(i) the debt securities held by such Grantor on the date hereof (including all such debt securities listed opposite the name of such Grantor on Schedule II), (ii) any debt securities in the future issued to such Grantor and (iii) the promissory notes and any other instruments evidencing such debt securities (all the foregoing collectively referred to herein as the “Pledged Debt Securities”), (c) all other property that may be delivered to and held by the Collateral Agent pursuant to the terms of this Section 3.01, (d) subject to Section 3.06, all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion of, and all other Proceeds received in respect of, the securities referred to in clauses (a) and (b) above, (e) subject to Section 3.06, all rights and privileges of such Grantor with respect to the securities and other property referred to in clauses (a), (b), (c) and (d) above, and (f) all Proceeds of any of the foregoing (the items referred to in clauses (a) through (f) above being collectively referred to as the “Pledged Collateral”).

TO HAVE AND TO HOLD the Pledged Collateral, together with all right, title, interest, powers, privileges and preferences pertaining or incidental thereto, unto the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, forever; subject, however, to the terms, covenants and conditions hereinafter set forth.

SECTION 3.02. Delivery of the Pledged Collateral. (a) Each Grantor agrees promptly to deliver or cause to be delivered to the Collateral Agent any and all certificates, instruments or other documents representing or evidencing Pledged Securities.

(b) Each Grantor agrees promptly to deliver or cause to be delivered to the Collateral Agent any and all Pledged Debt Securities; provided that, so long as no Event of Default shall have occurred and be continuing, Collateral Agent shall, promptly upon request of such Grantor, make appropriate arrangements for making any promissory notes pledged by such Grantor available to such Grantor for purposes of prosecution, collection or renewal.

(c) Upon delivery to the Collateral Agent, (i) any certificate, instrument or document representing or evidencing Pledged Securities required to be delivered pursuant to paragraphs (a) and (b) of this Section 3.02 shall be accompanied by undated stock powers duly executed in blank or other undated instruments of transfer satisfactory to the Collateral Agent and duly executed in blank and by such other instruments and documents as the Collateral Agent may reasonably request and (ii) all other property comprising part of the Pledged Collateral delivered pursuant to the terms of this Agreement shall be accompanied by proper instruments of assignment duly executed by the applicable Grantor and such other instruments or documents as the Collateral Agent may reasonably request. Each delivery of Pledged Securities shall be accompanied by a schedule describing the applicable securities, which schedule shall be attached hereto as Schedule II and made a part hereof; provided that failure to attach any such schedule hereto shall not affect the validity of the pledge of such Pledged Securities. Each schedule so delivered shall supplement any prior schedules so delivered.

SECTION 3.03. Representations, Warranties and Covenants. The Grantors jointly and severally represent, warrant and covenant to and with the Collateral Agent, for the benefit of the Secured Parties, that:

(a) Schedule II (i) correctly sets forth, in respect of each issuer that is a Loan Party or a Subsidiary thereof, the percentage of the issued and outstanding shares of each class of the Equity Interests of the issuer thereof represented by such Pledged Stock and (ii) includes all Equity Interests, debt securities and promissory notes required to be pledged hereunder;

(b) the Pledged Stock and Pledged Debt Securities issued by a Loan Party or a Subsidiary thereof have been duly and validly authorized and issued by the issuers thereof and (i) in the case of Pledged Stock, are fully paid and nonassessable and (ii) in the case of Pledged Debt Securities, are legal, valid and binding obligations of the issuers thereof;

(c) except for the security interests granted hereunder (or otherwise permitted under the Credit Agreement), each Grantor (i) is and, subject to any transfers made in compliance with the Credit Agreement, will continue to be the direct owner, beneficially and of record, of the Pledged Securities indicated on Schedule II as owned by such Grantor, (ii) holds the same free and clear of all Liens, (iii) will make no assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the Pledged Collateral, other than transfers made in compliance with the Credit Agreement, and (iv) subject to Section 3.06, will cause any and all Pledged Collateral, whether for value paid by such Grantor or otherwise, to be forthwith deposited with the Collateral Agent and pledged or assigned hereunder;

(d) except for restrictions and limitations imposed by the Loan Documents or securities laws generally, the Pledged Collateral is and will continue to be freely transferable and assignable, and none of the Pledged Collateral constituting Equity Interests of a Loan Party or a Subsidiary thereof is or will be subject to any option, right of first refusal, shareholders agreement, charter or by-law provisions or contractual restriction of any nature that might prohibit, impair, delay or otherwise affect the pledge of such Pledged Collateral hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Collateral Agent of rights and remedies hereunder;

(e) each Grantor (i) has the power and authority to pledge the Pledged Collateral pledged by it hereunder in the manner hereby done or contemplated and (ii) will defend its title or interest thereto or therein against any and all Liens (other than any Lien created or permitted by the Loan Documents), however arising, of all persons whomsoever;

(f) no consent or approval of any Governmental Authority, any securities exchange or any other person was or is necessary to the validity of the pledge effected hereby (other than such as have been obtained and are in full force and effect);

(g) by virtue of the execution and delivery by each Grantor of this Agreement, when any Pledged Securities are delivered to the Collateral Agent in accordance with this Agreement, the Collateral Agent will obtain a legal, valid and perfected first priority lien upon and security interest in such Pledged Securities as security for the payment and performance of the Obligations; and

(h) the pledge effected hereby is effective to vest in the Collateral Agent, for the ratable benefit of the Secured Parties, the rights of the Collateral Agent in the Pledged Collateral as set forth herein and all action by any Grantor necessary or desirable to protect and perfect the Lien on the Pledged Collateral has been duly taken.

SECTION 3.04. Certification of Limited Liability Company Interests and Limited Partnership Interests. Each interest in any limited liability company or limited partnership which is a Subsidiary and pledged hereunder shall be represented by a certificate, shall be a “security” within the meaning of Article 8 of the New York UCC and shall be governed by Article 8 of the New York UCC.

SECTION 3.05. Denominations. The Collateral Agent, on behalf of the Secured Parties, shall hold the Pledged Securities in the name of the applicable Grantor, endorsed or assigned in blank or in favor of the Collateral Agent. Each Grantor will promptly give to the Collateral Agent copies of any notices or other communications received by it with respect to Pledged Securities in its capacity as the registered owner thereof. The Collateral Agent shall at all times have the right to require the applicable Grantors to exchange the certificates representing Pledged Securities for certificates of smaller or larger denominations for any purpose consistent with this Agreement.

SECTION 3.06. Voting Rights; Dividends and Interest, Etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given the Grantors notice of its intent to exercise its rights under this Agreement (which notice shall be deemed to have been given immediately upon the occurrence of an Event of Default under paragraph (g) or (h) of Article VII of the Credit Agreement):

(i) Each Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Securities or any part thereof for any purpose consistent with the terms of this Agreement, the Credit Agreement and the other Loan Documents; provided, however, that such rights and powers shall not be exercised in any manner that will materially and adversely affect the rights inuring to a holder of any Pledged Securities or the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement or the Credit Agreement or any other Loan Document or the ability of the Secured Parties to exercise the same.

(ii) The Collateral Agent shall execute and deliver to each Grantor, or cause to be executed and delivered to each Grantor, all such proxies, powers of attorney and other instruments as such Grantor may reasonably request for the purpose of enabling such Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (i) above.

(iii) Each Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Securities to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Credit Agreement, the other Loan Documents and applicable law; provided, however, that any noncash dividends, interest, principal or other distributions that would constitute Pledged Stock or Pledged Debt Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall be and become part of the Pledged Collateral, and, if received by any Grantor, shall not be commingled by such Grantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the ratable benefit of the Secured Parties and shall be forthwith delivered to the Collateral Agent in the same form as so received (with any necessary endorsement or instrument of assignment). This paragraph (iii) shall not apply to dividends between or among the Borrower, the Subsidiary Guarantors and any Subsidiaries only of property subject to a perfected security interest under this Agreement; provided that the Borrower notifies the Collateral Agent in writing, specifically referring to this Section 3.06 at the time of such non-cash dividend and takes any actions the Collateral Agent reasonably specifies to ensure the continuance of its perfected security interest in such property under this Agreement.

(b) Upon the occurrence and during the continuance of an Event of Default, after the Collateral Agent shall have notified (or shall be deemed to have notified pursuant to Section 3.06(a)) the Grantors of the suspension of their rights under paragraph (a)(iii) of this Section 3.06, then all rights of any Grantor to dividends, interest, principal or other distributions that such Grantor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.06 shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions. All dividends, interest, principal or other distributions received by any Grantor contrary to the provisions of this Section 3.06 shall be held in trust for the benefit of the Collateral Agent, shall be segregated from other property or funds of such Grantor and shall be forthwith delivered to the Collateral Agent upon demand in the same form as so received (with any necessary

endorsement or instrument of assignment). Any and all money and other property paid over to or received by the Collateral Agent pursuant to the provisions of this paragraph (b) shall be retained by the Collateral Agent in an account to be established by the Collateral Agent upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02. After all Events of Default have been cured or waived and each applicable Grantor has delivered to the Administrative Agent certificates to that effect, the Collateral Agent shall, promptly after all such Events of Default have been cured or waived, repay to each applicable Grantor (without interest) all dividends, interest, principal or other distributions that such Grantor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.06 and that have not been applied to payment of the Obligations.

(c) Upon the occurrence and during the continuance of an Event of Default, after the Collateral Agent shall have notified (or shall be deemed to have notified pursuant to Section 3.06(a)) the Grantors of the suspension of their rights under paragraph (a)(i) of this Section 3.06, then all rights of any Grantor to exercise the voting and consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.06, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.06, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, unless otherwise directed by the Required Lenders, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Grantors to exercise such rights.

(d) Any notice given by the Collateral Agent to the Grantors exercising its rights under paragraph (a) of this Section 3.06 (i) may suspend the rights of the Grantors under paragraph (a)(i) or paragraph (a)(iii) in part without suspending all such rights (as specified by the Collateral Agent in its sole and absolute discretion) and without waiving or otherwise affecting the Collateral Agent’s rights to give additional notices from time to time suspending other rights so long as an Event of Default has occurred and is continuing.

ARTICLE IV

Security Interests in Personal Property

SECTION 4.01. Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”), in all right, title or interest in or to any and all of the following assets and properties now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Article 9 Collateral”):

(i) all Accounts;

(ii) all Chattel Paper;

(iii) all cash and Deposit Accounts;

(iv) all Documents;

(v) all Equipment;

(vi) all Fixtures;

(vii) all General Intangibles;

(viii) all Instruments;

(ix) all Inventory;

(x) all Investment Property;

(xi) all Letter-of-Credit Rights;

(xii) all Commercial Tort Claims;

(xiii) all books and records pertaining to the Article 9 Collateral; and

(xiv) to the extent not otherwise included, all Proceeds and products of any and all of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing;

provided, however, that the Article 9 Collateral shall not include, and in no event shall the security interest granted under this Section 4.01 attach to (A) any lease, license, contract, property rights or agreement to which any Grantor is a party (or to any of its rights or interests thereunder) if the grant of such security interest would constitute or result in either (x) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor therein or (y) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement (other than, in each case, to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC, any provision of the Bankruptcy Code or otherwise), (B) any Grantor’s directors and officers liability insurance policies, or (C) any application for registration of a trademark filed with the United States Patent and Trademark Office on an intent-to-use basis until such time (if any) as a statement of use or amendment to allege use is filed, at which time such trademark shall automatically become part of the Collateral and subject to the security interest pledged.

(b) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” of

such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (A) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (B) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon request.

Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof.

The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party.

(c) The Security Interest is granted as security only and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral.

SECTION 4.02. Representations and Warranties. The Grantors jointly and severally represent and warrant to the Collateral Agent and the Secured Parties that:

(a) Each Grantor has good and valid rights in and title to the Article 9 Collateral with respect to which it has purported to grant a Security Interest hereunder and has full power and authority to grant to the Collateral Agent, for the ratable benefit of the Secured Parties, the Security Interest in such Article 9 Collateral pursuant hereto and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of any other person other than any consent or approval that has been obtained.

(b) The Perfection Certificate has been duly prepared, completed and executed and the information set forth therein (including (x) the exact legal name of each Grantor and (y) the jurisdiction of organization of each Grantor) is correct and complete as of the Closing Date. Uniform Commercial Code financing statements (including fixture filings, as applicable) or other appropriate filings, recordings or registrations containing a description of the Article 9 Collateral have been prepared by the Collateral Agent based upon the information provided to the Administrative Agent and the Secured Parties in the Perfection Certificate for filing in each governmental, municipal or other office specified in Section 2 of the Perfection Certificate (or specified by notice from the Borrower to the Administrative Agent after the Closing Date in the case of filings, recordings or registrations required by Sections 5.06 or 5.12 of the Credit Agreement), which

are all the filings, recordings and registrations (other than filings required to be made in the United States Patent and Trademark Office and the United States Copyright Office in order to perfect the Security Interest in the Article 9 Collateral consisting of United States Patents, Trademarks and Copyrights) that are necessary to publish notice of and protect the validity of and to establish a legal, valid and perfected security interest in favor of the Collateral Agent (for the ratable benefit of the Secured Parties) in respect of all Article 9 Collateral in which the Security Interest may be perfected by filing, recording or registration in the United States (or any political subdivision thereof), and no further or subsequent filing, refiling, recording, rerecording, registration or reregistration is necessary in any such jurisdiction, except as provided under applicable law with respect to the filing of continuation statements and as may be required with respect to after-acquired United States Patents, Trademarks and Copyrights and as to unregistered Copyrights that become registered after the date hereof. Each Grantor represents and warrants that a fully executed agreement in the form hereof (or a fully executed short form agreement in form and substance reasonably satisfactory to the Collateral Agent), and containing a description of all Article 9 Collateral consisting of Intellectual Property with respect to United States Patents and United States registered Trademarks (and Trademarks for which United States registration applications are pending) and United States registered Copyrights has been delivered to the Collateral Agent for recording by the United States Patent and Trademark Office and the United States Copyright Office pursuant to 35 U.S.C. ss. 261, 15 U.S.C. ss. 1060 or 17 U.S.C. ss. 205 and the regulations thereunder, as applicable, and otherwise as may be required pursuant to the laws of any other necessary jurisdiction, to protect the validity of and to establish a legal, valid and perfected security interest in favor of the Collateral Agent (for the ratable benefit of the Secured Parties) in respect of all Article 9 Collateral consisting of Patents, Trademarks and Copyrights in which a security interest may be perfected by filing, recording or registration in the United States (or any political subdivision thereof), and no further or subsequent filing, refiling, recording, rerecording, registration or reregistration is necessary (other than such actions as are necessary to perfect the Security Interest with respect to any Article 9 Collateral consisting of Patents, Trademarks and Copyrights (or registration or application for registration thereof) acquired or developed after the date hereof) and as to unregistered Copyrights that become registered after the date hereof.

(c) The Security Interest constitutes (i) a legal and valid security interest in all Article 9 Collateral securing the payment and performance of the Obligations, (ii) subject to the filings described in Section 4.02(b), a perfected security interest in all Article 9 Collateral in which a security interest may be perfected by filing, recording or registering a financing statement or analogous document in the United States (or any political subdivision thereof) pursuant to the Uniform Commercial Code or other applicable law in such jurisdictions and (iii) a security interest that shall be perfected in all Article 9 Collateral in which a security interest may be perfected upon the receipt and recording of this Agreement with the United States Patent and Trademark Office and the United

States Copyright Office, as applicable. The Security Interest is and shall be prior to any other Lien on any of the Article 9 Collateral, other than Liens expressly permitted pursuant to Section 6.02 of the Credit Agreement that have priority as a matter of law.

(d) The Article 9 Collateral is owned by the Grantors free and clear of any Lien, except for Liens expressly permitted pursuant to Section 6.02 of the Credit Agreement. No Grantor has filed or consented to the filing of (i) any financing statement or analogous document under the Uniform Commercial Code or any other applicable laws covering any Article 9 Collateral, (ii) any assignment in which any Grantor assigns any Collateral or any security agreement or similar instrument covering any Article 9 Collateral with the United States Patent and Trademark Office or the United States Copyright Office, (iii) any notice under the Assignment of Claims Act, or (iv) any assignment in which any Grantor assigns any Article 9 Collateral or any security agreement or similar instrument covering any Article 9 Collateral with any foreign governmental, municipal or other office, which financing statement or analogous document, assignment, security agreement or similar instrument is still in effect, except, in each case, for Liens expressly permitted pursuant to Section 6.02 of the Credit Agreement. No Grantor holds any Commercial Tort Claims except as indicated on the Perfection Certificate.

SECTION 4.03. Covenants. (a) Each Grantor agrees promptly to notify the Collateral Agent in writing of any change in (i) its legal name and/or address, (ii) its identity or type of organization or corporate structure, (iii) its Federal Taxpayer Identification Number or organizational identification number or (iv) its jurisdiction of organization. Each Grantor agrees promptly to provide the Collateral Agent with certified copies of organizational documents reflecting any of the changes described in the first sentence of this paragraph. Each Grantor agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made (or concurrently will be made) under the Uniform Commercial Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected first priority security interest in all the Article 9 Collateral. Each Grantor agrees promptly to notify the Collateral Agent if any material portion of the Article 9 Collateral owned or held by such Grantor is damaged or destroyed.

(b) [Intentionally omitted]

(c) Each Grantor shall, at its own expense, use commercially reasonable efforts to defend title to the Article 9 Collateral against all persons and to defend the Security Interest of the Collateral Agent in the Article 9 Collateral and the priority thereof against any Lien not expressly permitted pursuant to Section 6.02 of the Credit Agreement.

(d) Each Grantor agrees, at its own expense, promptly to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions as the Collateral Agent may from time to time

reasonably request to better assure, obtain, preserve, protect and perfect the Security Interest and the rights and remedies created hereby, including the payment of any fees and Taxes required in connection with the execution and delivery of this Agreement, the granting of the Security Interest and the filing of any financing or continuation statements (including fixture filings) or other documents in connection herewith or therewith. If any amount payable to any Grantor under or in connection with any of the Article 9 Collateral shall be or become evidenced by any promissory note or other instrument, such note or instrument shall be promptly pledged and delivered to the Collateral Agent, duly endorsed in a manner satisfactory to the Collateral Agent.

Without limiting the generality of the foregoing, each Grantor hereby authorizes the Collateral Agent, with prompt notice thereof to the Grantors made not more than once per calendar quarter, to supplement this Agreement by supplementing Schedule III or adding additional schedules hereto to identify specifically any asset or item of a Grantor that may, in the Collateral Agent’s reasonable judgment, constitute Copyrights, Licenses, Patents or Trademarks that are the subject of applications or registrations; provided that any Grantor shall have the right, exercisable within 10 days after it has been notified by the Collateral Agent of the specific identification of such Collateral, to advise the Collateral Agent in writing of any inaccuracy of the representations and warranties made by such Grantor hereunder with respect to such Collateral. Each Grantor agrees that it will use its commercially reasonable efforts to take such action as shall be necessary in order that all representations and warranties hereunder shall be true and correct with respect to such Collateral within 30 days after the date it has been notified by the Collateral Agent of the specific identification of such Collateral.

(e) The Collateral Agent and such persons as the Collateral Agent may designate shall have the right, upon reasonable notice, at the applicable Grantor’s own cost and expense, to inspect the Article 9 Collateral, all records related thereto (and to make extracts and copies from such records) and the premises upon which any of the Article 9 Collateral is located, to discuss the applicable Grantor’s affairs with the officers of such Grantor and its independent accountants and to verify, under reasonable procedures, the existence, validity, amount, quality, quantity, value, condition and status of, or any other matter relating to, the Article 9 Collateral, including, in the case of Accounts or other Article 9 Collateral in the possession of any third person, by (but only after the occurrence and during the continuance of an Event of Default) contacting Account Debtors or the third person possessing such Article 9 Collateral for the purpose of making such a verification. The Collateral Agent shall have the absolute right, subject to Section 9.16 of the Credit Agreement, to share any information it gains from such inspection or verification with any Secured Party. Unless an Event of Default has occurred and is continuing, Collateral Agent shall coordinate and conduct such inspections so as to occur concurrently with inspections being conducted by the Administrative Agent pursuant to Section 5.07 of the Credit Agreement.

(f) Upon the occurrence and during the continuance of an Event of Default, at its option, the Collateral Agent may discharge past due Taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the

Article 9 Collateral and not expressly permitted pursuant to Section 5.03 or Section 6.02 of the Credit Agreement, and may pay for the maintenance and preservation of the Article 9 Collateral to the extent any Grantor fails to do so as expressly required by the Credit Agreement or this Agreement, and each Grantor jointly and severally agrees to reimburse the Collateral Agent on demand for any payment made or any expense incurred by the Collateral Agent pursuant to the foregoing authorization; provided, however, that nothing in this paragraph shall be interpreted as excusing any Grantor from the performance of, or imposing any obligation on the Collateral Agent or any Secured Party to cure or perform, any covenants or other promises of any Grantor with respect to Taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein or in the other Loan Documents.

(g) If at any time any Grantor shall take a security interest in any property of an Account Debtor or any other person to secure payment and performance of an Account, such Grantor shall promptly notify the Collateral Agent of such security interest and, upon the reasonable request of the Collateral Agent, shall promptly assign such security interest to the Collateral Agent for the ratable benefit of the Secured Parties. Such assignment need not be filed of public record unless necessary to continue the perfected status of the security interest against creditors of and transferees from the Account Debtor or other person granting the security interest.

(h) Each Grantor shall remain liable to observe and perform all the conditions and obligations to be observed and performed by it under each contract, agreement or instrument relating to the Article 9 Collateral, all in accordance with the terms and conditions thereof, and each Grantor jointly and severally agrees to indemnify and hold harmless the Collateral Agent and the Secured Parties from and against any and all liability for such performance.

(i) No Grantor shall make or permit to be made an assignment, pledge or hypothecation of the Article 9 Collateral or shall grant any other Lien in respect of the Article 9 Collateral or permit any notice to be filed under the Assignment of Claims Act, except, in each case, as expressly permitted by Section 6.02 of the Credit Agreement. No Grantor shall make or permit to be made any transfer of the Article 9 Collateral and each Grantor shall remain at all times in possession or otherwise in control of the Article 9 Collateral owned by it, except as permitted by the Credit Agreement.

(j) Except as permitted by the Credit Agreement, no Grantor will, without the Collateral Agent’s prior written consent, grant any extension of the time for payment of any Accounts included in the Article 9 Collateral, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any person liable for the payment thereof or allow any credit or discount whatsoever thereon, other than extensions, credits, discounts, compromises, compoundings or settlements granted or made in the ordinary course of business and consistent with its current practices and in accordance with such prudent and standard practice used in industries that are the same as or similar to those in which such Grantor is engaged.

(k) Each Grantor, at its own expense, shall maintain or cause to be maintained insurance covering physical loss or damage to the Inventory and Equipment in accordance with the requirements set forth in Section 5.02 of the Credit Agreement. Each Grantor irrevocably makes, constitutes and appoints the Collateral Agent (and all officers, employees or agents designated by the Collateral Agent) as such Grantor’s true and lawful agent (and attorney-in-fact) for the purpose, upon the occurrence and during the continuance of an Event of Default, of reasonably making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto. In the event that any Grantor at any time or times shall fail to obtain or maintain any of the policies of insurance required hereby or under the Credit Agreement or to pay any premium in whole or part relating thereto, the Collateral Agent may, without waiving or releasing any obligation or liability of any Grantor hereunder or any Default or Event of Default, in its sole discretion, obtain and maintain such policies of insurance and pay such premium and take any other actions with respect thereto as the Collateral Agent deems advisable. All sums disbursed by the Collateral Agent in connection with this paragraph, including reasonable attorneys’ fees, court costs, expenses and other charges relating thereto, shall be payable, upon demand, by the Grantors to the Collateral Agent and shall be additional Obligations secured hereby.

(l) Each Grantor shall maintain, in form and manner reasonably satisfactory to the Collateral Agent, records of its Chattel Paper and its books, records and documents evidencing or pertaining thereto.

SECTION 4.04. Other Actions. In order to further ensure the attachment, perfection and priority of, and the ability of the Collateral Agent to enforce, the Security Interest in the Article 9 Collateral, each Grantor agrees, in each case at such Grantor’s own expense, to take the following actions with respect to the following Article 9 Collateral:

(a) Instruments. If any Grantor shall at any time hold or acquire any Instruments, such Grantor shall forthwith endorse, assign and deliver the same to the Collateral Agent, accompanied by such undated instruments of endorsement, transfer or assignment duly executed in blank as the Collateral Agent may from time to time reasonably specify; provided that, so long as no Event of Default shall have occurred and be continuing, the Collateral Agent shall, promptly upon request of such Grantor, make appropriate arrangements for making any promissory notes pledged by such Grantor available to such Grantor for purposes of prosecution, collection or renewal.

(b) Deposit Accounts. For each Deposit Account that any Grantor at any time opens or maintains, such Grantor shall, upon the Collateral Agent’s request, cause the depositary bank to agree to comply at any time with instructions from the Collateral Agent to such depositary bank directing the disposition of funds from time to time credited to such Deposit Account, without further consent of such Grantor or any other person, pursuant to an agreement in

form and substance satisfactory to the Collateral Agent. The Collateral Agent agrees with each Grantor that the Collateral Agent shall not give any such instructions or withhold any withdrawal rights from any Grantor, unless an Event of Default has occurred and is continuing. The provisions of this paragraph shall not apply to any Deposit Account (i) for which any Grantor, the depositary bank and the Collateral Agent have entered into a cash collateral agreement specially negotiated among such Grantor, the depositary bank and the Collateral Agent for the specific purpose set forth therein, or (ii) which is a zero balance or payroll account.

(c) Investment Property. Except to the extent otherwise provided in Article III, if any Grantor shall at any time hold or acquire any certificated securities, such Grantor shall forthwith endorse, assign and deliver the same to the Collateral Agent, accompanied by such undated instruments of transfer or assignment duly executed in blank as the Collateral Agent may from time to time reasonably specify. If any securities now or hereafter acquired by any Grantor are uncertificated and are issued to such Grantor or its nominee directly by the issuer thereof, such Grantor shall promptly notify the Collateral Agent thereof and, at the Collateral Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Grantor or such nominee. If any securities, whether certificated or uncertificated, or other Investment Property now or hereafter acquired by any Grantor are held by such Grantor or its nominee through a Securities Intermediary or Commodity Intermediary, such Grantor shall promptly notify the Collateral Agent thereof and, at the Collateral Agent’s request, pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent cause such Securities Intermediary or Commodity Intermediary, as the case may be, to agree to comply with Entitlement Orders from the Collateral Agent to such Securities Intermediary as to such securities or other Investment Property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Collateral Agent to such Commodity Intermediary, in each case without further consent of any Grantor or such nominee. The Collateral Agent agrees with each Grantor that the Collateral Agent shall not give any such Entitlement Orders or instructions or directions to any such issuer, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by any Grantor, unless an Event of Default has occurred and is continuing.

(d) Electronic Chattel Paper and Transferable Records. If any Grantor at any time holds or acquires an interest in any Electronic Chattel Paper or any “transferable record”, as that term is defined in Section 201 of the Federal Electronic Signatures in Global and National Commerce Act, or in Section 16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Grantor shall promptly notify the Collateral Agent thereof and, at the request of the Collateral Agent, shall take such action as the Collateral Agent may reasonably request to vest in the Collateral Agent control under New York UCC

Section 9-105 of such Electronic Chattel Paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, Section 16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The Collateral Agent agrees with such Grantor that the Collateral Agent will arrange, pursuant to procedures satisfactory to the Collateral Agent and so long as such procedures will not result in the Collateral Agent’s loss of control, for the Grantor to make alterations to the Electronic Chattel Paper or transferable record permitted under UCC Section 9-105 or, as the case may be, Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or Section 16 of the Uniform Electronic Transactions Act for a party in control to allow without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Grantor with respect to such Electronic Chattel Paper or transferable record.

(e) Letter-of-Credit Rights. If any Grantor is at any time a beneficiary under a letter of credit now or hereafter issued in favor of such Grantor, such Grantor shall promptly notify the Collateral Agent thereof and, at the request and option of the Collateral Agent, such Grantor shall, pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (i) use commercially reasonable efforts to arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Collateral Agent of the proceeds of any drawing under the letter of credit or (ii) arrange for the Collateral Agent to become the transferee beneficiary of the letter of credit, with the Collateral Agent agreeing, in each case, that the proceeds of any drawing under the letter of credit are to be paid to the applicable Grantor unless an Event of Default has occurred or is continuing.

(f) Commercial Tort Claims. If any Grantor shall at any time hold or acquire a Commercial Tort Claim in an amount reasonably estimated to exceed $50,000, the Grantor shall promptly notify the Collateral Agent thereof in a writing signed by such Grantor including a summary description of such claim and grant to the Collateral Agent, for the ratable benefit of the Secured Parties, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Collateral Agent.

SECTION 4.05. Covenants Regarding Patent, Trademark and Copyright Collateral. (a) Each Grantor agrees that it will not, and will not permit any of its licensees to, do any act, or omit to do any act, whereby any Patent that is material to the conduct of such Grantor’s business may become invalidated or dedicated to the public, and agrees that it shall use commercially reasonable efforts to mark any products covered by a Patent with the relevant patent number as necessary and sufficient to establish and preserve its maximum rights under applicable patent laws.

(b) Each Grantor (either itself or through its licensees or its sublicensees) will, for each Trademark material to the conduct of such Grantor’s business, (i) maintain

such Trademark in full force free from any claim of abandonment or invalidity for non-use, (ii) maintain the quality of products and services offered under such Trademark, (iii) display such Trademark with notice of Federal or foreign registration to the extent necessary and sufficient to establish and preserve its maximum rights under applicable law and (iv) not knowingly use or knowingly permit the use of such Trademark in violation of any third party rights.

(c) Each Grantor (either itself or through its licensees or sublicensees) will, for each work covered by a material Copyright, continue to publish, reproduce, display, adopt and distribute the work with appropriate copyright notice as necessary and sufficient to establish and preserve its maximum rights under applicable copyright laws.

(d) Each Grantor shall notify the Collateral Agent promptly if it knows or has reason to know that any Patent, Trademark or Copyright material to the conduct of its business may become abandoned, lost or dedicated to the public, or of any adverse determination or development (including the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office, United States Copyright Office or any court or similar office of any country) regarding such Grantor’s ownership of any Patent, Trademark or Copyright, its right to register the same, or its right to keep and maintain the same (other than non-final office action in the course of prosecution).

(e) In no event shall any Grantor, either itself or through any agent, employee, licensee or designee, file an application for any Patent, Trademark or Copyright (or for the registration of any Trademark or Copyright) with the United States Patent and Trademark Office, United States Copyright Office or any office or agency in any political subdivision of the United States or in any other country or any political subdivision thereof, unless it promptly notifies the Collateral Agent (which notice may be given after such filing), and, upon request of the Collateral Agent, executes and delivers any and all agreements, instruments, documents and papers as the Collateral Agent may reasonably request to evidence the Security Interest in such Patent, Trademark or Copyright, and each Grantor hereby appoints the Collateral Agent as its attorney-in-fact to execute and file such writings for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, is irrevocable until the termination or release, pursuant to Section 7.16 hereof, of the Lien created hereunder.

(f) Each Grantor will take all reasonably necessary steps that are consistent with the practice in any proceeding before the United States Patent and Trademark Office, United States Copyright Office or any office or agency in any political subdivision of the United States or in any other country or any political subdivision thereof, to maintain and pursue each material application relating to the Patents, Trademarks and/or Copyrights (and to obtain the relevant grant or registration) and to maintain each issued Patent and each registration of the Trademarks and Copyrights that is material to the conduct of any Grantor’s business, including timely filings of applications for renewal, affidavits of use, affidavits of incontestability and payment of maintenance fees, and, if consistent with good business judgment, to initiate opposition, interference and cancellation proceedings against third parties.

(g) In the event that any Grantor knows or has reason to believe that any Article 9 Collateral consisting of a Patent, Trademark or Copyright material to the conduct of any Grantor’s business has been or is about to be infringed, misappropriated or diluted by a third person in a material respect, such Grantor promptly shall notify the Collateral Agent and shall, if desirable in such Grantor’s business judgment, promptly sue for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as are appropriate under the circumstances to protect such Article 9 Collateral.

(h) Upon the occurrence and during the continuance of an Event of Default, each Grantor shall use its reasonable best efforts to obtain all requisite consents or approvals by the licensor of each Copyright License, Patent License or Trademark License, and each other material License, to effect the assignment of all such Grantor’s right, title and interest thereunder to the Collateral Agent, for the ratable benefit of the Secured Parties, or its designee.

ARTICLE V

Remedies

SECTION 5.01. Remedies Upon Default. Upon the occurrence and during the continuance of an Event of Default, each Grantor agrees to deliver each item of Collateral to the Collateral Agent on demand, and it is agreed that the Collateral Agent shall have the right to take any of or all the following actions at the same or different times: (a) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Article 9 Collateral by the applicable Grantor to the Collateral Agent, or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall reasonably determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained), and (b) with or without legal process and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral and, generally, to exercise any and all rights afforded to a secured party under the Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Grantor agrees that the Collateral Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral at a public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery as the Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the

right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

The Collateral Agent shall give each applicable Grantor 10 days’ written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may (in its sole and absolute discretion) determine. The Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by law, private) sale made pursuant to this Agreement, any Secured Party may bid for or purchase, free (to the extent permitted by applicable law) from any right of redemption, stay, valuation or appraisal on the part of any Grantor (all said rights being also hereby waived and released to the extent permitted by applicable law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to such Secured Party from any Grantor as a credit against the purchase price, and such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. For purposes hereof, a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof; the Collateral Agent shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Collateral Agent may proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the Collateral or any portion thereof pursuant to a

judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the provisions of this Section 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610(b) of the New York UCC or its equivalent in other jurisdictions.

SECTION 5.02. Application of Proceeds. The Collateral Agent shall apply the proceeds of any collection, sale, foreclosure or other realization upon any Collateral, including any Collateral consisting of cash, as follows:

FIRST, to the payment of all costs and expenses incurred by the Administrative Agent or the Collateral Agent (in their respective capacities as such hereunder or under any other Loan Document) in connection with such collection, sale, foreclosure or realization or otherwise in connection with this Agreement, any other Loan Document or any of the Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent and/or the Collateral Agent hereunder or under any other Loan Document on behalf of any Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Loan Document;

SECOND, to the payment in full of all other Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Obligations owed to them on the date of any such distribution);

THIRD, to the Grantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct.

The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.

SECTION 5.03. Grant of License to Use Intellectual Property. For the purpose of enabling the Collateral Agent to exercise rights and remedies under this Agreement at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Collateral Agent an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to the Grantors), to use, license or sublicense any of the Article 9 Collateral consisting of Intellectual Property now owned or hereafter acquired by such Grantor, and wherever the same may be located, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof, subject, in the case of Trademarks, to the

observance of standards of quality and inspection in connection with the use of such Trademarks as are sufficient to maintain the validity and enforceability of such Trademarks. The use of such license by the Collateral Agent may be exercised, at the option of the Collateral Agent, only upon the occurrence and during the continuation of an Event of Default; provided, however, that any license, sublicense or other transaction entered into by the Collateral Agent in accordance herewith shall be binding upon each Grantor notwithstanding any subsequent cure of an Event of Default.

SECTION 5.04. Securities Act, Etc. In view of the position of the Grantors in relation to the Pledged Collateral, or because of other current or future circumstances, a question may arise under the U.S. Securities Act of 1933, as now or hereafter in effect, or any similar statute hereafter enacted analogous in purpose or effect (such Act and any such similar statute as from time to time in effect being called the “Federal Securities Laws”) with respect to any disposition of the Pledged Collateral permitted hereunder. Each Grantor understands that compliance with the Federal Securities Laws might very strictly limit the course of conduct of the Collateral Agent if the Collateral Agent were to attempt to dispose of all or any part of the Pledged Collateral, and might also limit the extent to which or the manner in which any subsequent transferee of any Pledged Collateral could dispose of the same. Similarly, there may be other legal restrictions or limitations affecting the Collateral Agent in any attempt to dispose of all or part of the Pledged Collateral under applicable “blue sky” or other state securities laws or similar laws analogous in purpose or effect. Each Grantor recognizes that in light of such restrictions and limitations the Collateral Agent may, with respect to any sale of the Pledged Collateral, limit the purchasers to those who will agree, among other things, to acquire such Pledged Collateral for their own account, for investment, and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that in light of such restrictions and limitations, the Collateral Agent, in its sole and absolute discretion (a) may proceed to make such a sale whether or not a registration statement for the purpose of registering such Pledged Collateral or part thereof shall have been filed under the Federal Securities Laws and (b) may approach and negotiate with a limited number of potential purchasers (including a single potential purchaser) to effect such sale. Each Grantor acknowledges and agrees that any such sale might result in prices and other terms less favorable to the seller than if such sale were a public sale without such restrictions. In the event of any such sale, the Collateral Agent shall incur no responsibility or liability for selling all or any part of the Pledged Collateral at a price that the Collateral Agent, in its sole and absolute discretion, may in good faith deem reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might have been realized if the sale were deferred until after registration as aforesaid or if more than a limited number of purchasers (or a single purchaser) were approached. The provisions of this Section 5.04 will apply notwithstanding the existence of a public or private market upon which the quotations or sales prices may exceed substantially the price at which the Collateral Agent sells.

ARTICLE VI

Indemnity, Subrogation and Subordination

SECTION 6.01. Indemnity and Subrogation. In addition to all such rights of indemnity and subrogation as the Subsidiary Guarantors may have under applicable law (but subject to Section 6.03), the Borrower agrees that (a) in the event a payment shall be made by any Subsidiary Guarantor under this Agreement, the Borrower shall indemnify such Subsidiary Guarantor for the full amount of such payment and such Subsidiary Guarantor shall be subrogated to the rights of the person to whom such payment shall have been made to the extent of such payment and (b) in the event any assets of any Subsidiary Guarantor shall be sold pursuant to this Agreement or any other Security Document to satisfy in whole or in part a claim of any Secured Party, the Borrower shall indemnify such Subsidiary Guarantor in an amount equal to the greater of the book value or the fair market value of the assets so sold.

SECTION 6.02. Contribution and Subrogation. Each Subsidiary Guarantor (a “Contributing Subsidiary Guarantor”) agrees (subject to Section 6.03) that, in the event a payment shall be made by any other Subsidiary Guarantor hereunder in respect of any Obligation, or assets of any other Subsidiary Guarantor shall be sold pursuant to any Security Document to satisfy any Obligation owed to any Secured Party, and such other Subsidiary Guarantor (the “Claiming Subsidiary Guarantor”) shall not have been fully indemnified by the Borrower as provided in Section 6.01, the Contributing Subsidiary Guarantor shall indemnify the Claiming Subsidiary Guarantor in an amount equal to (i) the amount of such payment or (ii) the greater of the book value or the fair market value of such assets, as the case may be, in each case multiplied by a fraction of which the numerator shall be the net worth of the Contributing Subsidiary Guarantor on the date hereof and the denominator shall be the aggregate net worth of all the Subsidiary Guarantors on the date hereof (or, in the case of any Subsidiary Guarantor becoming a party hereto pursuant to Section 7.16, the date of the supplement hereto executed and delivered by such Subsidiary Guarantor). Any Contributing Subsidiary Guarantor making any payment to a Claiming Subsidiary Guarantor pursuant to this Section 6.02 shall be subrogated to the rights of such Claiming Subsidiary Guarantor under Section 6.01 to the extent of such payment.

SECTION 6.03. Subordination. (a) Notwithstanding any provision of this Agreement to the contrary, all rights of the Subsidiary Guarantors under Sections 6.01 and 6.02 and all other rights of indemnity, contribution or subrogation under applicable law or otherwise shall be fully subordinated to the indefeasible payment in full of the Obligations. No failure on the part of the Borrower or any Subsidiary Guarantor to make the payments required by Sections 6.01 and 6.02 (or any other payments required under applicable law or otherwise) shall in any respect limit the obligations and liabilities of any Subsidiary Guarantor with respect to its obligations hereunder, and each Subsidiary Guarantor shall remain liable for the full amount of its obligations hereunder.

(b) The Borrower and each Subsidiary Guarantor hereby agree that all Indebtedness and other monetary obligations owed by it to the Borrower or any Subsidiary shall be fully subordinated to the indefeasible payment in full of the Obligations.

ARTICLE VII

Miscellaneous

SECTION 7.01. Notices. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 9.01 of the Credit Agreement. All communications and notices hereunder to any Subsidiary Guarantor shall be given to it in care of the Borrower as provided in Section 9.01 of the Credit Agreement.

SECTION 7.02. Security Interest Absolute. All rights of the Collateral Agent hereunder, the Security Interest, the grant of a security interest in the Pledged Collateral and all obligations of each Grantor hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Credit Agreement, any other Loan Document, any agreement with respect to any of the Obligations or any other agreement or instrument relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from the Credit Agreement, any other Loan Document or any other agreement or instrument relating to the foregoing, (c) any exchange, release or non-perfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Obligations, or (d) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor in respect of the Obligations or this Agreement.

SECTION 7.03. Survival of Agreement. All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Lenders and shall survive the execution and delivery of the Loan Documents and the making of any Loans, regardless of any investigation made by any Lender or on its behalf and notwithstanding that the Collateral Agent or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended under the Credit Agreement, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under any Loan Document is outstanding and unpaid.

SECTION 7.04. Limitation by Law. All rights, remedies and powers provided in this Agreement may be exercised only to the extent that the exercise thereof does not violate any applicable provision of law, and all the provisions of this Agreement are intended to be subject to all mandatory provisions of law that may be controlling and to be limited to the extent necessary so that they shall not render this Agreement invalid, unenforceable, in whole or in part, or not entitled to be recorded, registered or filed under the provisions of any applicable law.

SECTION 7.05. Binding Effect; Several Agreement. This Agreement shall become effective as to any Loan Party when a counterpart hereof executed on behalf of such Loan Party shall have been delivered to the Collateral Agent and a counterpart hereof shall have been executed on behalf of the Collateral Agent, and thereafter shall be binding upon such Loan Party and the Collateral Agent and their respective permitted successors and assigns, and shall inure to the benefit of such Loan Party, the Collateral Agent and the other Secured Parties and their respective successors and assigns, except that no Loan Party shall have the right to assign or transfer its rights or obligations hereunder or any interest herein or in the Collateral (and any such assignment or transfer shall be void) except as expressly contemplated or permitted by this Agreement or the Credit Agreement. This Agreement shall be construed as a separate agreement with respect to each Loan Party and may be amended, modified, supplemented, waived or released with respect to any Loan Party without the approval of any other Loan Party and without affecting the obligations of any other Loan Party hereunder.

SECTION 7.06. Successors and Assigns. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or on behalf of any Grantor or the Collateral Agent that are contained in this Agreement shall bind and inure to the benefit of their respective successors and assigns.

SECTION 7.07. Collateral Agent’s Fees and Expenses; Indemnification. (a) The parties hereto agree that the Collateral Agent shall be entitled to reimbursement of its expenses incurred hereunder as provided in Section 9.05 of the Credit Agreement.

(b) Without limitation of its indemnification obligations under the other Loan Documents, each Grantor jointly and severally agrees to indemnify the Collateral Agent and the other Indemnitees against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities, and related out of pocket expenses, including the reasonable fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of, the execution, delivery or performance of this Agreement or any agreement or instrument contemplated hereby or any claim, litigation, investigation or proceeding relating to any of the foregoing or to the Collateral, regardless of whether any Indemnitee is a party thereto or whether initiated by a third party or by a Loan Party or any Affiliate thereof; provided, however, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. To the extent permitted by applicable law, no Grantor shall assert, and each Grantor hereby waives any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of,

in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions or any Loan or the use of proceeds thereof.

(c) Any such amounts payable as provided hereunder shall be additional Obligations secured hereby and by the other Security Documents. The provisions of this Section 7.06 shall remain operative and in full force and effect regardless of the termination of this Agreement or any other Loan Document, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Collateral Agent or any other Secured Party. All amounts due under this Section 7.07 shall be payable on written demand therefor and shall bear interest, on and from the date of demand, at the rate specified in Section 2.04(a) of the Credit Agreement.

SECTION 7.08. Collateral Agent Appointed Attorney-in-Fact. Each Grantor hereby appoints the Collateral Agent as the attorney-in-fact of such Grantor for the purpose of carrying out the provisions of this Agreement and taking any action and executing any instrument that the Collateral Agent may deem necessary or advisable to accomplish the purposes hereof following the occurrence and during the continuance of an Event of Default, which appointment is irrevocable and coupled with an interest. Without limiting the generality of the foregoing, the Collateral Agent shall have the right, upon the occurrence and during the continuance of an Event of Default, with full power of substitution either in the Collateral Agent’s name or in the name of such Grantor (a) to receive, endorse, assign and/or deliver any and all notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Collateral or any part thereof, (b) to demand, collect, receive payment of, give receipt for and give discharges and releases of all or any of the Collateral, (c) to sign the name of any Grantor on any invoice or bill of lading relating to any of the Collateral, (d) to send verifications of Accounts Receivable to any Account Debtor, (e) to commence and prosecute any and all suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to enforce any rights in respect of any Collateral, (f) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of the Collateral, (g) to notify, or to require any Grantor to notify, Account Debtors to make payment directly to the Collateral Agent, and (h) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the Collateral, and to do all other acts and things necessary to carry out the purposes of this Agreement in accordance with its terms, as fully and completely as though the Collateral Agent were the absolute owner of the Collateral for all purposes; provided, however, that nothing herein contained shall be construed as requiring or obligating the Collateral Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Collateral Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby. The Collateral Agent and the other Secured Parties shall be accountable only for amounts actually received as a result of the exercise of the powers granted to them herein, and neither they nor their officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence, willful misconduct or bad faith.

SECTION 7.09. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

SECTION 7.10. Waivers; Amendment. (a) No failure or delay by the Collateral Agent, the Administrative Agent or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver hereof or thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Collateral Agent, the Administrative Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 7.10, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless of whether the Collateral Agent or any Lender may have had notice or knowledge of such Default at the time. No notice or demand on any Loan Party in any case shall entitle any Loan Party to any other or further notice or demand in similar or other circumstances.

(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Collateral Agent and the Loan Party or Loan Parties with respect to which such waiver, amendment or modification is to apply, subject to any consent required in accordance with Section 9.08 of the Credit Agreement.

SECTION 7.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.11.

SECTION 7.12. Severability. In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

SECTION 7.13. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract, and shall become effective as provided in Section 7.05. Delivery of an executed signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.

SECTION 7.14. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

SECTION 7.15. Jurisdiction; Consent to Service of Process. (a) Each of the Grantors hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States of America, sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and each of the Loan Parties hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court. Each of the Loan Parties agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan Document shall affect any right that the Collateral Agent, the Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Grantor or its properties in the courts of any jurisdiction.

(b) Each of the Loan Parties hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (a) of this Section 7.15. Each of the Loan Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(c) Each of the Loan Parties hereby irrevocably consents to service of process in the manner provided for notices in Section 7.01. Nothing in this Agreement or any other Loan Document will affect the right of the Collateral Agent to serve process in any other manner permitted by law.

SECTION 7.16. Termination or Release. (a) This Agreement, the guarantees made herein, the Security Interest, the pledge of the Pledged Collateral and all other security interests granted hereby shall terminate when all the Obligations have been indefeasibly paid in full and the Lenders have no further commitment to lend under the Credit Agreement.

(b) A Subsidiary Guarantor shall automatically be released from its obligations hereunder and the Security Interests created hereunder in the Collateral of such Subsidiary Guarantor shall be automatically released upon the consummation of any transaction permitted by the Credit Agreement as a result of which such Subsidiary Guarantor ceases to be a Subsidiary.

(c) Upon any sale or other transfer by any Grantor of any Collateral that is permitted under the Credit Agreement to any person that is not the Borrower or a Subsidiary Guarantor, or, upon the effectiveness of any written consent to the release of the Security Interest granted hereby in any Collateral pursuant to Section 9.08 of the Credit Agreement, the Security Interest in such Collateral shall be automatically released.

(d) In connection with any termination or release pursuant to paragraph (a), (b) or (c) above, the Collateral Agent shall promptly execute and deliver to any Grantor, at such Grantor’s expense, all Uniform Commercial Code termination statements and similar documents that such Grantor shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section 7.16 shall be without recourse to or representation or warranty by the Collateral Agent or any Secured Party. Without limiting the provisions of Section 7.07, the Borrower shall reimburse the Collateral Agent upon demand for all costs and out-of-pocket expenses, including the reasonable fees, charges and expenses of counsel, incurred by it in connection with any action contemplated by this Section 7.16.

SECTION 7.17. Additional Subsidiaries. Any Subsidiary that is required to become a party hereto pursuant to Section 5.12 of the Credit Agreement shall enter into this Agreement as a Subsidiary Guarantor and a Grantor upon becoming such a Subsidiary. Upon execution and delivery by the Collateral Agent and such Subsidiary of a supplement in the form of Exhibit A hereto, such Subsidiary shall become a Subsidiary Guarantor and a Grantor hereunder with the same force and effect as if originally named as a Subsidiary Guarantor and a Grantor herein. The execution and delivery of any such instrument shall not require the consent of any other Loan Party hereunder. The rights and obligations of each Loan Party hereunder shall remain in full force and effect notwithstanding the addition of any new Loan Party as a party to this Agreement.

SECTION 7.18. Right of Setoff. If an Event of Default shall have occurred and is continuing, each Secured Party is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all Collateral (including any deposits (general or special, time or demand, provisional or final)) at any time held and other obligations at any time owing by such Secured Party to or for the credit or the account of any Grantor against any and all of the obligations of such Grantor now or hereafter existing under this Agreement and the other Loan Documents held by such Secured Party, irrespective of whether or not such Secured Party shall have made any demand under this Agreement or any other Loan Document and although such obligations may be unmatured. The rights of each Secured Party under this Section 7.18 are in addition to other rights and remedies (including other rights of setoff) which such Secured Party may have.

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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.


GOAMERICA, INC.

	by:	/s/ Daniel R. Luis
		Name: Daniel R. Luis
		Title: Chief Executive Officer


GOAMERICA COMMUNICATIONS CORP.

	by:	/s/ Daniel R. Luis
		Name: Daniel R. Luis
		Title: President


WYND COMMUNICATIONS CORPORATION

	by:	/s/ Daniel R. Luis
		Name: Daniel R. Luis
		Title: President


ACQUISITION 1 CORP.

	by:	/s/ Daniel R. Luis
		Name: Daniel R. Luis
		Title: President


CLEARLAKE CAPITAL GROUP, LP, as
Collateral Agent

By: CCG Operations, LLC
Its: General Partner

	by:	/s/ Behdad Eghbali
		Name: Behdad Eghbali
		Title: Manager

EX-7.07 8 dex707.htm FIRST LIEN DEBT COMMITMENT LETTER First Lien Debt Commitment Letter

Exhibit 7.07

[LOGO] CLEARLAKE CAPITAL

650 Madison Avenue,

23rd Floor

New York, New York 10022

Tel 212.610.9000

August 1, 2007

PERSONAL AND CONFIDENTIAL

GoAmerica, Inc.

433 Hackensack Avenue,

Hackensack, NJ 07601

Attn: Daniel R. Luis, Chief Executive Officer

Re: First Lien Debt Commitment Letter

Ladies and Gentlemen:

You have advised Clearlake Capital Group, LP (together with the funds and accounts managed or advised by it, “Clearlake”) that GoAmerica, Inc. (together with its subsidiaries, the “Company”), intends to acquire all or substantially all of the assets of the Tele Relay Services division of Verizon Communications Inc. (the “TRS Division” and such acquisition, the “Acquisition”) pursuant to a definitive asset purchase agreement for the Acquisition (the “Acquisition Agreement”). Upon the terms, and subject to satisfaction of the conditions, set forth herein, CCP A, L.P., a fund managed by Clearlake, hereby commits to provide certain debt financing for the Company to finance the Acquisition, for the Company’s expenses and working capital purposes and for the repayment of certain of the Company’s existing secured debt. The requested financing will be structured as a $30 million first lien term loan or note issuance (the “First Lien Debt Financing”) having the terms set forth in Annex A, and will be subject to the conditions set forth in this letter and in the attached Annexes A and B hereto (collectively, the “Commitment Letter”). On the date hereof, the parties hereto (or their affiliates) are also entering into (i) that certain $3,500,000 Credit Agreement (the “Bridge Credit Agreement”), (ii) that certain $1,500,000 Stock Purchase Agreement (the “$1,500,000 Stock Purchase Agreement”), (iii) that certain $48,500,000 Stock Purchase Agreement (the “$48,500,000 Stock Purchase Agreement”) and (iv) that certain Second Lien Debt Commitment Letter (the “Second Lien Debt Commitment Letter” and together with the $1,500,000 Stock Purchase Agreement, the $48,500,000 Stock Purchase Agreement and the Bridge Credit Agreement, the “Other Financing Documents”).

1. Indemnification; Exclusivity; Commitment Fee.

(a) The Company agrees to the provisions with respect to Clearlake’s indemnity and other matters set forth in Annex B, which is incorporated by reference into this Commitment Letter.

GoAmerica, Inc.

August 1, 2007

Page 2

(b) Except as expressly permitted by Section 9.5 of the $48,500,000 Stock Purchase Agreement: (I) the Company hereby agrees to exclusively negotiate the First Lien Debt Financing with Clearlake in good faith and will not enter into any discussions with third parties with respect to the First Lien Debt Financing or any other financing relating to the Acquisition (other than the financings contemplated by the Other Financing Documents) until the earliest of (A) the Exclusivity Termination Date (defined below), (B) the execution of definitive agreements evidencing the First Lien Debt Financing, and (C) the date this Commitment Letter is terminated pursuant to a Termination Notice (as defined below); and (II) the parties hereto hereby agree to work together in good faith and to use reasonable commercial efforts to execute the First Lien Debt Financing Documents (defined below) within 45 days of the signing of the Acquisition Agreement, provided that consummation of the closing provided for in the First Lien Debt Financing Documents shall be subject only to the conditions set forth in Section 3 hereof (other than the condition set forth in paragraph (a)(1) of Section 3), to customary conditions concerning the perfection of Clearlake’s security interest in the collateral thereunder, and to such stockholder approvals as shall be required by the rules of The Nasdaq Stock Market, Inc. (“Nasdaq”). As used herein, “Exclusivity Termination Date” shall mean December 31, 2007; provided that, if one or more Governmental Consents (as defined in the Acquisition Agreement as in effect on the date hereof) have not been obtained by December 31, 2007 and the Company exercises its option (the “Option”) under the Acquisition Agreement to extend the Exclusivity Termination Date to March 31, 2008, Clearlake may, in its sole discretion, extend the Exclusivity Termination Date to March 31, 2008 by delivering written notice of such extension to the Company.

(c) The Company hereby agrees to pay Clearlake a commitment fee of 1.66% of the face amount of the First Lien Debt Financing (the “Commitment Fee”), which shall be due and payable in full on the date hereof. The Company hereby acknowledges and agrees that the Commitment Fee is fully earned and non-refundable on the date hereof and is in addition to any other fees payable by the Company in connection with the First Lien Debt Financing.

2. Closing; Obligations.

Subject to the satisfaction of the conditions set forth in this Commitment Letter, the closing of the First Lien Debt Financing would occur no later than the closing of the Acquisition. Clearlake’s obligation under this Commitment Letter (but not under the Definitive Agreement described below) will terminate upon the earliest of (a) the termination of the $48,500,000 Stock Purchase Agreement by the Company pursuant to Section 10.1(d)(ii) thereof, (b) the termination of the Acquisition Agreement, and (c) the later of (i) one day following Clearlake’s delivery to the Company of written notice (which notice (a “Termination Notice”) may be delivered at any time on or after December 31, 2007, except that if the Company exercises the Option and Clearlake elects to extend the Exclusivity Termination Date to March 31, 2008, such date shall be March 31, 2008 and not December 31, 2007) that Clearlake desires to terminate its obligation to close the First Lien Debt Financing, or (ii) the date that is specifically set forth as the termination date for this Commitment Letter in such Termination Notice.

GoAmerica, Inc.

August 1, 2007

Page 3

3. Conditions.

Clearlake’s obligation to provide the First Lien Debt Financing is subject to the following conditions:

(a)

The Company and Clearlake shall have negotiated, executed and delivered (or, in the case of clause (3) below, the Company shall have provided) (1) a definitive debt issuance and sale document with respect to the First Lien Debt Financing (the “Definitive Agreement”), (2) all documents related to the Definitive Agreement, including without limitation legal opinions, a solvency certificate from the Company and officers’ certificates, and (3) corporate records, customary documents from public officials and customary evidence that the collateral agent shall have a valid and perfected first priority lien and security interest in the collateral (the documents referred to in this paragraph, collectively, the “First Lien Debt Financing Documents”), which First Lien Debt Financing Documents shall be in form and substance acceptable to Clearlake and its counsel (such acceptance not to be unreasonably withheld or delayed) and shall be based upon the Bridge Credit Agreement and the Loan Documents referenced therein.

(b)

The closing of the Acquisition in accordance with the Acquisition Agreement (except to the extent that the Acquisition Agreement is subsequently amended or any term or condition thereof waived, in either case without Clearlake’s consent, such consent not to be unreasonably withheld or delayed) shall have occurred concurrently with the closing of the First Lien Debt Financing;

(c)

There shall have been no amendment of the managed services agreement between Stellar Nordia Services LLC (together with its affiliates, “Nordia”) and the Company (the “Managed Services Agreement”) executed on the date hereof other than (i) amendments reasonably acceptable to Clearlake (such acceptance not to be unreasonably withheld or delayed), and (ii) an amendment of the Company’s existing services agreement with Nordia in form and substance acceptable to Clearlake (such acceptance not to be unreasonably withheld or delayed);

(d)

In respect of Acquisition-related documents entered into on or before the date hereof or attached as exhibits to agreements entered into on or before the date hereof, there shall have been no amendment to any such Acquisition-related documents other than amendments in form and substance acceptable to Clearlake (such acceptance not to be unreasonably withheld or delayed), and in respect of other Acquisition-related documents, the Company shall have executed and delivered any such Acquisition-related documents in form and substance acceptable to Clearlake (such acceptance not to be unreasonably withheld or delayed);

(e)

The Company shall have received not less than $33,500,000 in gross cash proceeds from the Investors under and as defined in the $48,500,000 Stock Purchase Agreement as a result of the consummation of the transactions contemplated thereby (unless the Investors are in material breach of their obligations under the $48,500,000 Stock Purchase Agreement);

(f)

The Company, Verizon Communications Inc. and Clearlake shall have received all necessary and material state and federal regulatory approvals (other than approvals that the Company and Clearlake agree should be waived, the consent to such waiver not to be unreasonably withheld or delayed) for the First Lien Debt Financing and the Acquisition,

GoAmerica, Inc.

August 1, 2007

Page 4

the Company’s shareholders shall have approved the transactions contemplated by the $48,500,000 Stock Purchase Agreement in accordance with applicable law and the rules of Nasdaq, and the Company and Verizon Communications Inc. shall have received all other material consents required to consummate the Acquisition and the First Lien Debt Financing; and

(g)

There shall have occurred no material adverse change in the assets, liabilities, customer or supplier relationships, financial condition, operations or results of operations of the Company and the TRS Division taken as a whole, provided, however, in each case, not including any change that (A) is generally applicable to the U.S. economy, (B) is generally applicable to Internet protocol data and voice providers, (C) results from the execution of the Acquisition Agreement, the announcement of the Acquisition Agreement or the consummation of the transactions contemplated by the Acquisition Agreement or (D) relates to changes in generally accepted accounting principles generally applicable to companies serving as Internet protocol data and voice providers occurring after the date of the Acquisition Agreement, and there shall exist no action, suit, investigation, litigation or proceeding pending or threatened that (i) would reasonably be expected to have a material adverse effect on the assets, liabilities, customer or supplier relationships, financial condition, operations or results of operations of the Company and the TRS Division taken as a whole, (ii) would be of the type described in Section 6.1.2 of the Acquisition Agreement, or (iii) are for the purpose of enjoining or preventing the First Lien Debt Financing.

4. Miscellaneous.

Except for the integration of Section 9.5 of the $48,500,000 Stock Purchase Agreement, the provisions of Sections 1 and 4 hereof shall remain in full force and effect unless otherwise specifically stated in the definitive documentation for the First Lien Debt Financing that is executed and delivered, and notwithstanding the termination of this Commitment Letter or any commitment or undertaking hereunder.

This Commitment Letter shall not be assignable by the Company without Clearlake’s prior written consent (and any purported assignment without such consent shall be null and void), is intended to be solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto. This Commitment Letter may not be amended or any term or provision hereof waived or modified except by an instrument in writing signed by each of the parties hereto.

This letter agreement shall be governed by the internal laws of the State of New York, without regard to conflict of laws principles, except for applicable Federal law.

EACH OF THE PARTIES TO THIS LETTER AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS LETTER AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LETTER AGREEMENT.

GoAmerica, Inc.

August 1, 2007

Page 5

Clearlake hereby notifies the Company that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “Act”), Clearlake and each other investor party (each an “Investor”) to the definitive First Lien Debt Financing Documents are required to obtain, verify and record information that identifies the Company, which information includes the Company’s name and address and other information that will allow Clearlake and the Investors to identify the Company in accordance with the Act. This notice is given in accordance with the requirements of the Act and is effective for Clearlake and each other Investor.

Please note that neither Clearlake nor any of its affiliates provides accounting, tax or legal advice. Notwithstanding anything herein to the contrary, Clearlake (and each of its members, officers, directors, employees, affiliates, agents, advisors and attorneys) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of this potential transaction and all materials of any kind (including tax opinions or other tax analyses) that are provided to Clearlake relating to such tax treatment and tax structure. However, the foregoing sentence shall not apply to any information relating to the tax treatment or tax structure to the extent nondisclosure of such information is reasonably necessary to enable any person to comply with applicable securities laws. For this purpose, “tax treatment” means U.S. federal income tax treatment, and “tax structure” is limited to any facts relevant to the U.S. federal tax treatment of the First Lien Debt Financing.

This Commitment Letter may be executed in any number of counterparts, each of which when executed shall be an original, and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof. This Commitment Letter is the only agreement that has been entered into among the parties hereto with respect to the First Lien Debt Financing and sets forth the entire understanding of the parties with respect thereto and supersedes any prior written or oral agreements among the parties hereto with respect to the First Lien Debt Financing.

THIS COMMITMENT LETTER REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

[Remainder of page intentionally left blank]

Please confirm that the foregoing is in accordance with your understanding by signing and returning to Clearlake the enclosed copy of this Commitment Letter, whereupon this Commitment Letter shall become a binding agreement between us. Notwithstanding the foregoing, this letter shall be void if not signed and returned by you by 11:59 pm New York time on August 2, 2007. We look forward to working with you on this assignment.

Very truly yours,


CCP A, L.P.

By:		Clearlake Capital Partners, LLC
Its:		General Partner

By:		CCG Operations, LLC
Its:		Managing Member

By:		/s/ Behdad Eghbali
Name:		Behdad Eghbali
Title:


Accepted as of the date above:

GOAMERICA, INC.

By:		/s/ Daniel R. Luis
Name:		Daniel R. Luis
Title:		Chief Executive Officer

ANNEX A

GOAMERICA, INC.

SUMMARY OF TERMS AND CONDITIONS

This Summary of Terms and Conditions of the Proposed First Lien Debt Financing does not purport to summarize all the terms, conditions, representations, warranties and other provisions with respect to the transactions referred to herein. Certain capitalized terms used herein are defined in the Commitment Letter.

Terms of the First Lien Debt Financing


Issuer:		GoAmerica, Inc. (“GOAM”, or the “Issuer”).

Guarantors:		All of GOAM’s direct and indirect domestic subsidiaries, other than non-material subsidiaries (determined on a basis consistent with the terms of the Bridge Credit Agreement).

Notes/Loan:		Senior secured notes or a senior secured loan in the principal amount of $ 30,000,000 (the “Senior Debt”).

Security:		The Senior Debt will be secured by perfected first priority pledges of all of the equity interests of GOAM's direct and indirect domestic subsidiaries other than the non-material subsidiaries referenced above (GOAM and such subsidiaries, collectively, the “Loan Parties”), and perfected first priority security interests in and mortgages on all tangible and intangible assets (including, without limitation, accounts receivable, inventory, equipment, general intangibles, intercompany notes, insurance policies (other than directors and officers liability insurance policies), investment property, intellectual property, real property, cash and proceeds of the foregoing) of the Loan Parties, wherever located, now or hereafter owned, subject to such exceptions as are agreed.

Proposed Closing Date:		Closing of the Acquisition.

		Maturity: One week before the date that is four years and six months from the closing of the Acquisition.

Interest Rate:		LIBOR + 700 bps per annum, payable quarterly in cash.

Ranking:		GOAM will ensure that its obligations with respect to the Senior Debt will at all times constitute general, direct,


		unsubordinated and unconditional obligations of the Loan Parties ranking at all times at least pari passu in priority of payment, and senior in right of security and in all other respects, with other senior indebtedness of GOAM now or hereafter outstanding.

Amortization:		None, bullet at Maturity.

Prepayment Premium:		102% during year 1 following issuance; 101% during years 2 through 4 following issuance; and no prepayment premium thereafter.

Covenants:		The type of covenants will be customary for transactions of this nature, including, but not limited to, a limitation on debt incurrence, limitation on sale of assets, restricted payments and investments, consolidations, mergers and change of control, issuance of subsidiary securities, joint ventures and transactions with affiliates.

		The documents governing the Senior Debt will also contain covenants requiring that the Company maintain:

		• Minimum Liquidity of $5 million at all times,

		• Maximum CapEx in any fiscal year (excluding capitalized labor) equal to the greater of $ 1.5 million or 20% of prior year's EBITDA; and

		• Maximum Total Leverage Ratio (Total Debt to Pro-Forma Adjusted EBITDA) of 3.5x, which covenant shall be tested quarterly from and after Q1 2009 on a TTM basis.

Use of Proceeds:		Acquisition of the TRS Division, general working capital purposes of GOAM and repayment of certain of the Company's existing secured debt.

Governing Law:		The agreements contemplated hereby shall be governed by the internal laws of the State of New York, without regard to conflicts of laws principles.

Assignability:		Clearlake and its assignees and transferees may assign or transfer their interests in the First Lien Debt Financing at their discretion (i) to Reservoir Capital Group, L.L.C. and its affiliates and affiliates of Clearlake, without the consent of GOAM, (ii) in connection with the primary syndication of the First Lien Debt Financing, without the consent of GOAM (provided, however, that Clearlake shall remain primarily and fully liable hereunder if the conditions set forth herein are satisfied and, for any reason, such syndication does not provide


		the financing contemplated hereunder) and (iii) otherwise, with the consent of GOAM, which consent shall not be unreasonably withheld, conditioned or delayed; provided that GOAM’s consent to any such assignment or transfer shall not be required following the occurrence and during the continuance of a default or event of default under the First Lien Debt Financing Documents.

ANNEX B

In the event that Clearlake becomes involved involuntarily in any capacity in any action, proceeding or investigation brought by or against any person, including stockholders or other equity holders of the Company, in connection with the transactions contemplated by this Commitment Letter (the “Letter”), the Company periodically will reimburse Clearlake for its reasonable legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith. The Company also will indemnify and hold Clearlake harmless against any and all losses, claims, damages or liabilities to any such person in connection with the transactions contemplated by the Letter, and without regard to the exclusive or contributory negligence of Clearlake or its affiliates, or the members, directors, agents, employees and controlling persons (if any), as the case may be, of Clearlake and any such affiliate, except to the extent that a court shall have found (in a judgment not subject to further appeal or for which the time for appeal has expired) that any such loss, claim, damage or liability results from the bad faith, gross negligence or willful misconduct of Clearlake in performing obligations that are the subject of the Letter. If for any reason the foregoing indemnification is unavailable to Clearlake or is insufficient to hold it harmless, then the Company shall contribute to the amount paid or payable by Clearlake as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Company and its stockholders or other equity holders on the one hand and Clearlake on the other hand in the matters contemplated by the Letter as well as the relative fault of the Company and Clearlake with respect to such loss, claim, damage or liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution obligations of the Company under this paragraph shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to any affiliate of Clearlake and the members, directors, agents, employees and controlling persons (if any), as the case may be, of Clearlake and any such affiliate, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Company, Clearlake, any such affiliate and any such person. The Company also agrees that neither any indemnified party nor any of such affiliates, partners, directors, agents, employees or controlling persons shall have any liability based on its or their exclusive or contributory negligence or otherwise to the Company or any person asserting claims on behalf of or in right of the Company or any other person in connection with the transactions contemplated by the Letter except to the extent that a court shall have found (in a judgment not subject to further appeal or for which the time for appeal has expired) that any losses, claims, damages, liabilities or expenses incurred by the Company resulted from the bad faith, gross negligence or willful misconduct of such indemnified party in performing the services that are the subject of the Letter; provided, however, that in no event shall such indemnified party or such other parties have any liability for any indirect, consequential or punitive damages in connection with or as a result of such indemnified party’s or such other parties’ activities related to the Letter.

EX-7.08 9 dex708.htm SECOND LIEN DEBT COMMITMENT LETTER Second Lien Debt Commitment Letter

Exhibit 7.08

[LOGO] CLEARLAKE CAPITAL

650 Madison Avenue,

23rd Floor

New York, New York 10022

Tel 212.610.9000

August 1, 2007

PERSONAL AND CONFIDENTIAL

GoAmerica, Inc.

433 Hackensack Avenue,

Hackensack, NJ 07601

Attn: Daniel R. Luis, Chief Executive Officer

Re: Second Lien Debt Commitment Letter

Ladies and Gentlemen:

You have advised Clearlake Capital Group, LP (together with the funds and accounts managed or advised by it, “Clearlake”) that GoAmerica, Inc. (together with its subsidiaries, the “Company”), intends to acquire all or substantially all of the assets of the Tele Relay Services division of Verizon Communications Inc. (the “TRS Division” and such acquisition, the “Acquisition”) pursuant to a definitive asset purchase agreement for the Acquisition (the “Acquisition Agreement”), and that, in addition to the financing for the Acquisition, the Company also desires to procure financing for additional working capital purposes and for investments and acquisitions. Upon the terms, and subject to satisfaction of the conditions, set forth herein, CCP A, L.P., a fund managed by Clearlake, hereby commits to provide certain debt financing for the Company for the Company’s working capital purposes and to finance investments and acquisitions other than the Acquisition. The requested financing will be structured as a $40 million second lien term loan or note issuance (the “Second Lien Debt Financing”) having the terms set forth in Annex A, and will be subject to the conditions set forth in this letter and in the attached Annexes A and B hereto (collectively, the “Commitment Letter”). On the date hereof, the parties hereto (or their affiliates) are also entering into (i) that certain $3,500,000 Credit Agreement (the “Bridge Credit Agreement”), (ii) that certain $1,500,000 Stock Purchase Agreement (the “$1,500,000 Stock Purchase Agreement”), (iii) that certain $48,500,000 Stock Purchase Agreement (the “$48,500,000 Stock Purchase Agreement”) and (iv) that certain First Lien Debt Commitment Letter (the “First Lien Debt Commitment Letter” and together with the $1,500,000 Stock Purchase Agreement, the $48,500,000 Stock Purchase Agreement and the Bridge Credit Agreement, the “Other Financing Documents”).

1. Indemnification; Exclusivity; Commitment Fee.

(a) The Company agrees to the provisions with respect to Clearlake’s indemnity and other matters set forth in Annex B, which is incorporated by reference into this Commitment Letter.

GoAmerica, Inc.

August 1, 2007

Page 2

(b) Except as expressly permitted by Section 9.5 of the $48,500,000 Stock Purchase Agreement, the Company hereby agrees to exclusively negotiate the Second Lien Debt Financing with Clearlake in good faith and will not enter into any discussions with third parties with respect to the Second Lien Debt Financing or any other financing for any proposed investment or acquisition (other than the financings contemplated by the Other Financing Documents) until the earlier of (A) the execution of definitive agreements evidencing the Second Lien Debt Financing, and (B) the date this Commitment Letter is terminated.

(c) The Company hereby agrees to pay Clearlake a commitment fee of 1.66% of the face amount of the Second Lien Debt Financing (the “Commitment Fee”), which shall be due and payable in full on the date that, following a written request from the Company that Clearlake provide the Second Lien Debt Financing, which request has not been revoked in writing, (i) Clearlake has delivered written notice to the Company that it irrevocably waives the condition set forth in paragraph 3(f) below (any such notice, a “Waiver Notice”) and (ii) the Company and Clearlake execute the Amended Commitment Letter (as defined herein); provided that the condition set forth in clause (i) of this paragraph 1(c) shall be deemed satisfied if the Company and Clearlake have executed an Amended Commitment Letter in a form that does not include the condition set forth in paragraph 3(f) below. The Company hereby acknowledges and agrees that the Commitment Fee shall be fully earned and non-refundable on such date and shall be in addition to any other fees payable by the Company in connection with the Second Lien Debt Financing.

2. Obligations.

Clearlake’s obligation under this Commitment Letter (but not under the Definitive Agreement described below) will terminate upon the earlier of (a) the termination of the $48,500,000 Stock Purchase Agreement by the Company pursuant to Section 10.1(d)(ii) thereof, and (b) date that is 45 days from the date hereof. If, prior to the date that is 45 days from the date hereof, the Company has provided Clearlake with a reasonably detailed written description of the use of proceeds for the Second Lien Debt Financing and Clearlake has delivered a Waiver Notice to the Company indicating that such use of proceeds is acceptable to Clearlake in its sole discretion, the parties agree to work together in good faith to amend this Commitment Letter to provide for modifications to Sections 1(b), 2 and 3 hereof and to the proposed closing date set forth in Annex A hereto comparable to the corresponding provisions set forth in the First Lien Debt Commitment Letter and consistent with the approved use of proceeds (as so amended, the “Amended Commitment Letter”).

3. Conditions.

Clearlake’s obligation to provide the Second Lien Debt Financing is subject to the following conditions:

(a)

GoAmerica, Inc.

August 1, 2007

Page 3

certificates, and (3) corporate records, customary documents from public officials and customary evidence that the collateral agent shall have a valid and perfected first priority lien and security interest in the collateral (the documents referred to in this paragraph, collectively, the “Second Lien Debt Financing Documents”), which Second Lien Debt Financing Documents shall be in form and substance acceptable to Clearlake and its counsel (such acceptance not to be unreasonably withheld or delayed) and shall be based upon the Bridge Credit Agreement and the Loan Documents referenced therein; provided, however, the parties agree that the terms of the Second Lien Debt Financing Documents will contain looser “carve-outs” to the covenants to be agreed upon by the parties;

(b)

The closing of the Acquisition in accordance with the Acquisition Agreement (except to the extent that the Acquisition Agreement is subsequently amended or any term or condition thereof waived without Clearlake’s consent, such consent not to be unreasonably withheld or delayed) shall have occurred concurrently with the closing of the First Lien Debt Financing;

(c)

The Company shall have received not less than $48,500,000 in gross cash proceeds from the Investors under and as defined in the $48,500,000 Stock Purchase Agreement as a result of the consummation of the transactions contemplated thereby, including receipt of shareholder approval for such share issuances (unless the Investors are in material breach of their obligations under the $48,500,000 Stock Purchase Agreement);

(d)

The Company shall have received not less than $30,000,000 in gross cash proceeds from the consummation of the transactions contemplated by the First Lien Debt Commitment Letter (unless the lenders are in material breach of their obligations under the First Lien Debt Commitment Letter or the definitive documentation contemplated thereby);

(e)

GoAmerica, Inc.

August 1, 2007

Page 4

(f)

The Company shall have provided Clearlake with a reasonably detailed written description of the use of proceeds for the Second Lien Debt Financing and Clearlake shall be satisfied, in its sole discretion, with such use of proceeds; and

(g)

If the proceeds of the Second Lien Debt Financing are to be used in whole or in part for an investment or acquisition, each of the closing conditions set forth in the definitive documentation for such transaction shall have been satisfied (unless waived with Clearlake’s consent, such consent not to be unreasonably withheld) and such investment or acquisition shall be consummated substantially simultaneously with the closing of the Second Lien Debt Financing pursuant to definitive documentation for such transaction in form and substance satisfactory to Clearlake.

4. Miscellaneous.

Except for the integration of Section 9.5 of the $48,500,000 Stock Purchase Agreement, the provisions of Sections 1 and 4 hereof shall remain in full force and effect unless otherwise specifically stated in the definitive documentation for the Second Lien Debt Financing that is executed and delivered, and notwithstanding the termination of this Commitment Letter or any commitment or undertaking hereunder.

This letter agreement shall be governed by the internal laws of the State of New York, without regard to conflict of laws principles, except for applicable Federal law.

Clearlake hereby notifies the Company that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “Act”), Clearlake and each other investor party (each an “Investor”) to the definitive Second Lien Debt Financing Documents are required to obtain, verify and record information that identifies the Company, which information includes the Company’s name and address and other information that will allow Clearlake and the Investors to identify the Company in accordance with the Act. This notice is given in accordance with the requirements of the Act and is effective for Clearlake and each other Investor.

GoAmerica, Inc.

August 1, 2007

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any kind (including tax opinions or other tax analyses) that are provided to Clearlake relating to such tax treatment and tax structure. However, the foregoing sentence shall not apply to any information relating to the tax treatment or tax structure to the extent nondisclosure of such information is reasonably necessary to enable any person to comply with applicable securities laws. For this purpose, “tax treatment” means U.S. federal income tax treatment, and “tax structure” is limited to any facts relevant to the U.S. federal tax treatment of the Second Lien Debt Financing.

This Commitment Letter may be executed in any number of counterparts, each of which when executed shall be an original, and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof. This Commitment Letter is the only agreement that has been entered into among the parties hereto with respect to the Second Lien Debt Financing and sets forth the entire understanding of the parties with respect thereto and supersedes any prior written or oral agreements among the parties hereto with respect to the Second Lien Debt Financing.

[Remainder of page intentionally left blank]

Very truly yours,

CCP A, L.P.


By:		Clearlake Capital Partners, LLC
Its:		General Partner

By:		CCG Operations, LLC
Its:		Managing Member

By:		/s/ Behdad Eghbali
Name:		Behdad Eghbali
Title:


Accepted as of the date above:

GOAMERICA, INC.

By:		/s/ Daniel R. Luis
Name:		Daniel R. Luis
Title:		Chief Executive Officer

ANNEX A

GOAMERICA, INC.

SUMMARY OF TERMS AND CONDITIONS

This Summary of Terms and Conditions of the Proposed Second Lien Debt Financing does not purport to summarize all the terms, conditions, representations, warranties and other provisions with respect to the transactions referred to herein. Certain capitalized terms used herein are defined in the Commitment Letter.

Terms of the Second Lien Debt Financing

Issuer:

GoAmerica, Inc. (“GOAM”, or the “Issuer”).

Guarantors:

All of GOAM’s direct and indirect domestic subsidiaries, other than non-material subsidiaries (determined on a basis consistent with the terms of the Bridge Credit Agreement).

Notes/Loan:

Senior secured notes or a senior secured loan in the principal amount of $40,000,000 (the “Second Lien Debt”).

Security:

The Second Lien Debt will be secured by perfected second priority pledges of all of the equity interests of GOAM’s direct and indirect domestic subsidiaries other than the non-material subsidiaries referenced above (GOAM and such subsidiaries, collectively, the “Loan Parties”), and perfected second priority security interests in and mortgages on all tangible and intangible assets (including, without limitation, accounts receivable, inventory, equipment, general intangibles, intercompany notes, insurance policies (other than directors and officers liability insurance policies), investment property, intellectual property, real property, cash and proceeds of the foregoing) of the Loan Parties, wherever located, now or hereafter owned, subject to such exceptions as are agreed.

Proposed Closing Date:

To be determined.

Maturity:

One week before the date that is five years from the closing of the Second Lien Debt Financing.

Interest Rate:

LIBOR + 900 bps per annum, payable quarterly in cash.

Ranking:

GOAM will ensure that its obligations with respect to the Second Lien Debt will at all times constitute general, direct,

unsubordinated and unconditional obligations of the Loan Parties ranking at all times at least pari passu in priority of payment, and senior in right of security and in all other respects, with other senior indebtedness of GOAM now or hereafter outstanding; provided that the Second Lien Debt will be subordinated in right of security only to the indebtedness contemplated by the First Lien Debt Commitment Letter pursuant to an intercreditor agreement in form and substance reasonably satisfactory to the Lenders.

Amortization:

None, bullet at Maturity.

Prepayment Premium:

102% during year 1 following issuance; 101% during years 2 through 4 following issuance; and no prepayment premium thereafter.

Covenants:

The type of covenants will be customary for transactions of this nature, including, but not limited to, a limitation on debt incurrence, limitation on sale of assets, restricted payments and investments, consolidations, mergers and change of control, issuance of subsidiary securities, joint ventures and transactions with affiliates.

The documents governing the Second Lien Debt will also contain covenants requiring that the Company maintain:

•

Minimum Liquidity of $5 million at all times,

•

Maximum CapEx in any fiscal year (excluding capitalized labor) equal to the greater of $1.5 million or 20% of prior year’s EBITDA; and

•

Maximum Total Leverage Ratio (Total Debt to Pro-Forma Adjusted EBITDA) of 3.5x, which covenant shall be tested quarterly from and after Q1 2009 on a TTM basis.

Use of Proceeds:

General working capital purposes of GOAM and investments and acquisitions, all as approved by Clearlake in its sole discretion (as set forth in the Commitment Letter).

Governing Law:

The agreements contemplated hereby shall be governed by the internal laws of the State of New York, without regard to conflicts of laws principles.

Assignability:

Clearlake and its assignees and transferees may assign or transfer their interests in the Second Lien Debt Financing at their discretion (i) to Reservoir Capital Group, L.L.C. and its affiliates and affiliates of Clearlake, without the consent of GOAM, (ii) in connection with the primary syndication of the

Second Lien Debt Financing, without the consent of GOAM (provided, however, that Clearlake shall remain primarily and fully liable hereunder if the conditions set forth herein are satisfied and, for any reason, such syndication does not provide the financing contemplated hereunder), and (iii) otherwise, with the consent of GOAM, which consent shall not be unreasonably withheld, conditioned or delayed; provided that GOAM’s consent to any such assignment or transfer shall not be required following the occurrence and during the continuance of a default or event of default under the Second Lien Debt Financing Documents.

ANNEX B

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