Exhibit 10.4




 





 


PURCHASE AGREEMENT


 


dated as of February 9, 2007


 


among


 


MR DEFAULT SERVICES LLC,


 


E-DEFAULT
SERVICES LLC,


 


STATEWIDE
TAX AND TITLE SERVICES LLC,


 


STATEWIDE
PUBLISHING SERVICES LLC,


as
Borrowers,


 


MR PROCESSING HOLDING CORP.,


 


CERTAIN SUBSIDIARIES OF
BORROWERS,


as Guarantors,


 


VARIOUS
LENDERS


 


and


 


THE ROYAL BANK OF SCOTLAND PLC


 


$55.0 Million Senior Subordinated Notes




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE ONE DEFINITIONS AND ACCOUNTING TERMS

  
	
   

  
	
   

  	
  Section 1.01

  	
  Definitions

  	
  1

  
	
   

  	
  Section 1.02

  	
  Accounting Terms

  	
  21

  
	
   

  	
  Section 1.03

  	
  Interpretation,
  etc.

  	
  22

  
	
   

  	
  Section 1.04

  	
  Construction

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE TWO AUTHORIZATION AND ISSUANCE OF NOTES;
  TERMS OF NOTES

  
	
   

  
	
   

  	
  Section 2.01

  	
  Authorization of
  Issue

  	
  22

  
	
   

  	
  Section 2.02

  	
  Sale and
  Purchase of the Notes

  	
  22

  
	
   

  	
  Section 2.03

  	
  Closing

  	
  23

  
	
   

  	
  Section 2.04

  	
  Form and
  Execution

  	
  23

  
	
   

  	
  Section 2.05

  	
  Terms of the
  Notes

  	
  23

  
	
   

  	
  Section 2.06

  	
  Registered Form

  	
  23

  
	
   

  	
  Section 2.07

  	
  Form of
  Legend for the Notes

  	
  23

  
	
   

  	
  Section 2.08

  	
  Registration,
  Registration of Transfer and Exchange

  	
  24

  
	
   

  	
  Section 2.09

  	
  Transfer
  Restrictions

  	
  25

  
	
   

  	
  Section 2.10

  	
  Mutilated,
  Destroyed, Lost and Stolen Notes

  	
  25

  
	
   

  	
  Section 2.11

  	
  Persons Deemed
  Owners

  	
  26

  
	
   

  	
  Section 2.12

  	
  Cancellation

  	
  26

  
	
   

  	
  Section 2.13

  	
  Joint and
  Several Liability

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE THREE CONDITIONS TO CLOSING

  
	
   

  
	
   

  	
  Section 3.01

  	
  Closing Date

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE FOUR REPRESENTATIONS AND WARRANTIES OF THE
  LOAN PARTIES

  
	
   

  
	
   

  	
  Section 4.01

  	
  Organization;
  Requisite Power and Authority; Qualification

  	
  31

  
	
   

  	
  Section 4.02

  	
  Capital Stock
  and Ownership

  	
  31

  
	
   

  	
  Section 4.03

  	
  Due Authorization

  	
  32

  
	
   

  	
  Section 4.04

  	
  No Conflict

  	
  32

  
	
   

  	
  Section 4.05

  	
  Governmental
  Consents

  	
  32

  
	
   

  	
  Section 4.06

  	
  Binding
  Obligation

  	
  32

  
	
   

  	
  Section 4.07

  	
  Pro Forma
  Financial Statements

  	
  32

  
	
   

  	
  Section 4.08

  	
  Projections

  	
  33

  
	
   

  	
  Section 4.09

  	
  No Material
  Adverse Change

  	
  33

  
	
   

  	
  Section 4.10

  	
  No Restricted
  Junior Payments

  	
  33

  
	
   

  	
  Section 4.11

  	
  Adverse
  Proceedings, etc

  	
  33

  
	
   

  	
  Section 4.12

  	
  Payment of Taxes

  	
  33

  
	
   

  	
  Section 4.13

  	
  Properties

  	
  34

  
	
   

  	
  Section 4.14

  	
  Environmental
  Matters

  	
  34

  
	
   

  	
  Section 4.15

  	
  No Defaults

  	
  34

  
	
   

  	
  Section 4.16

  	
  Material
  Contracts

  	
  35

  
	
   

  	
  Section 4.17

  	
  Governmental
  Regulation

  	
  35

  
	
   

  	
  Section 4.18

  	
  Margin Stock

  	
  35

  
	
   

  	
  Section 4.19

  	
  Employee Matters

  	
  35

  
	
   

  	
  Section 4.20

  	
  Employee Benefit
  Plans

  	
  35

  
	
   

  	
  Section 4.21

  	
  Certain Fees

  	
  36

  



 


i

















 


	
   

  	
  Section 4.22

  	
  Solvency

  	
  36

  
	
   

  	
  Section 4.23

  	
  Related
  Agreements

  	
  36

  
	
   

  	
  Section 4.24

  	
  Compliance with
  Statutes, etc.

  	
  37

  
	
   

  	
  Section 4.25

  	
  Disclosure

  	
  37

  
	
   

  	
  Section 4.26

  	
  Intellectual
  Property

  	
  37

  
	
   

  	
  Section 4.27

  	
  No Default

  	
  37

  
	
   

  	
  Section 4.28

  	
  Investigations,
  Audits, Etc.

  	
  38

  
	
   

  	
  Section 4.29

  	
  Agreements with
  Managers

  	
  38

  
	
   

  	
  Section 4.30

  	
  Subordinated
  Indebtedness

  	
  38

  
	
   

  	
  Section 4.31

  	
  Foreign Assets
  Control Regulations

  	
  38

  
	
   

  	
  Section 4.32

  	
  Patriot Act

  	
  38

  
	
   

  	
  Section 4.33

  	
  RICO

  	
  38

  
	
   

  	
  Section 4.34

  	
  Unauthorized UCC
  Filings

  	
  39

  
	
   

  	
  Section 4.35

  	
  Private
  Offering; No Integration or General Solicitation

  	
  39

  
	
   

  	
  Section 4.36

  	
  Additional
  Representations

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE FIVE AFFIRMATIVE COVENANTS

  
	
   

  
	
   

  	
  Section 5.01

  	
  Financial
  Statements and Other Reports

  	
  40

  
	
   

  	
  Section 5.02

  	
  Existence

  	
  43

  
	
   

  	
  Section 5.03

  	
  Payment of Taxes

  	
  43

  
	
   

  	
  Section 5.04

  	
  Maintenance of
  Properties

  	
  43

  
	
   

  	
  Section 5.05

  	
  Insurance

  	
  43

  
	
   

  	
  Section 5.06

  	
  Inspections

  	
  43

  
	
   

  	
  Section 5.07

  	
  Lenders Meetings

  	
  44

  
	
   

  	
  Section 5.08

  	
  Compliance with
  Laws

  	
  44

  
	
   

  	
  Section 5.09

  	
  Environmental
  Disclosure

  	
  44

  
	
   

  	
  Section 5.10

  	
  Hazardous
  Materials Activities, etc.

  	
  45

  
	
   

  	
  Section 5.11

  	
  Subsidiaries

  	
  45

  
	
   

  	
  Section 5.12

  	
  [Reserved]

  	
  45

  
	
   

  	
  Section 5.13

  	
  [Reserved]

  	
  45

  
	
   

  	
  Section 5.14

  	
  Further
  Assurances

  	
  45

  
	
   

  	
  Section 5.15

  	
  [Reserved]

  	
  46

  
	
   

  	
  Section 5.16

  	
  Books and
  Records

  	
  46

  
	
   

  	
  Section 5.17

  	
  Performance of
  Leases, Related Documents and Other Material Agreements

  	
  46

  
	
   

  	
  Section 5.18

  	
  Unauthorized UCC
  Filings

  	
  46

  
	
   

  	
  Section 5.19

  	
  Payment of
  Principal, Premium and Interest

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE SIX NEGATIVE COVENANTS

  
	
   

  
	
   

  	
  Section 6.01

  	
  Indebtedness

  	
  47

  
	
   

  	
  Section 6.02

  	
  Liens

  	
  49

  
	
   

  	
  Section 6.03

  	
  Reserved

  	
  50

  
	
   

  	
  Section 6.04

  	
  No Further
  Negative Pledges

  	
  50

  
	
   

  	
  Section 6.05

  	
  Restricted
  Junior Payments

  	
  50

  
	
   

  	
  Section 6.06

  	
  Restrictions on
  Subsidiary Distributions

  	
  51

  
	
   

  	
  Section 6.07

  	
  Investments

  	
  51

  
	
   

  	
  Section 6.08

  	
  Financial
  Covenants

  	
  52

  
	
   

  	
  Section 6.09

  	
  Fundamental
  Changes; Disposition of Assets; Acquisitions

  	
  57

  
	
   

  	
  Section 6.10

  	
  Disposal of
  Subsidiary Interests

  	
  58

  
	
   

  	
  Section 6.11

  	
  Sales and
  Lease-Backs

  	
  58

  
	
   

  	
  Section 6.12

  	
  Transactions
  with Shareholders and Affiliates

  	
  58

  
	
   

  	
  Section 6.13

  	
  Conduct of
  Business

  	
  58

  
	
   

  	
  Section 6.14

  	
  Permitted
  Activities of Holdings

  	
  59

  
	
   

  	
  Section 6.15

  	
  Amendments or
  Waivers of Certain Related Agreements

  	
  59

  
	
   

  	
  Section 6.16

  	
  Amendments or
  Waivers of with Respect to Senior Debt Documents

  	
  59

  



 


ii

















 


	
   

  	
  Section 6.17

  	
  Fiscal Year

  	
  59

  
	
   

  	
  Section 6.18

  	
  No Integration

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE SEVEN GUARANTY

  
	
   

  
	
   

  	
  Section 7.01

  	
  Guaranty of the
  Obligations

  	
  59

  
	
   

  	
  Section 7.02

  	
  Contribution by
  Guarantors

  	
  60

  
	
   

  	
  Section 7.03

  	
  Payment by
  Guarantors

  	
  60

  
	
   

  	
  Section 7.04

  	
  Liability of
  Guarantors Absolute

  	
  61

  
	
   

  	
  Section 7.05

  	
  Waivers by Guarantors

  	
  62

  
	
   

  	
  Section 7.06

  	
  Guarantors’
  Rights of Subrogation, Contribution, etc.

  	
  63

  
	
   

  	
  Section 7.07

  	
  Subordination

  	
  63

  
	
   

  	
  Section 7.08

  	
  Continuing
  Guaranty

  	
  64

  
	
   

  	
  Section 7.09

  	
  Authority of
  Guarantors or Borrowers

  	
  64

  
	
   

  	
  Section 7.10

  	
  Financial
  Condition of Borrowers

  	
  64

  
	
   

  	
  Section 7.11

  	
  Bankruptcy, etc.

  	
  64

  
	
   

  	
  Section 7.12

  	
  Discharge of
  Guaranty upon Sale of Guarantor

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE EIGHT EVENTS OF DEFAULT

  
	
   

  
	
   

  	
  Section 8.01

  	
  Events of
  Default

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE NINE PAYMENTS AND PREPAYMENTS OF NOTES

  
	
   

  
	
   

  	
  Section 9.01

  	
  Right of
  Redemption

  	
  67

  
	
   

  	
  Section 9.02

  	
  Partial
  Redemptions

  	
  67

  
	
   

  	
  Section 9.03

  	
  Notice of
  Redemption

  	
  67

  
	
   

  	
  Section 9.04

  	
  Notes Payable on
  Redemption Date

  	
  68

  
	
   

  	
  Section 9.05

  	
  Notes Redeemed
  in Part

  	
  68

  
	
   

  	
  Section 9.06

  	
  Offer to
  Purchase Upon Liquidity Event

  	
  68

  
	
   

  	
  Section 9.07

  	
  [Reserved]

  	
  70

  
	
   

  	
  Section 9.08

  	
  General
  Provisions Regarding Payments

  	
  70

  
	
   

  	
  Section 9.09

  	
  Taxes

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE TEN

  
	
   

  
	
  SUBORDINATION

  
	
   

  
	
   

  	
  Section 10.01

  	
  Subordination

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE ELEVEN

  
	
   

  
	
  REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE
  LENDERS

  
	
   

  
	
   

  	
  Section 11.01

  	
  Representations,
  Warranties and Agreements

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE TWELVE MISCELLANEOUS

  
	
   

  
	
   

  	
  Section 12.01

  	
  Notices;
  Effectiveness; Electronic Communication

  	
  75

  
	
   

  	
  Section 12.02

  	
  Expenses;
  Indemnity; Damage Waiver

  	
  76

  
	
   

  	
  Section 12.03

  	
  Amendments and
  Waivers

  	
  78

  
	
   

  	
  Section 12.04

  	
  Reserved

  	
  78

  
	
   

  	
  Section 12.05

  	
  Private
  Offerings

  	
  79

  
	
   

  	
  Section 12.06

  	
  Private
  Offerings Under Rule 144A

  	
  79

  
	
   

  	
  Section 12.07

  	
  Independence of
  Covenants

  	
  80

  



 


iii

















 


	
   

  	
  Section 12.08

  	
  Survival of
  Representations, Warranties and Agreements

  	
  80

  
	
   

  	
  Section 12.09

  	
  No Waiver;
  Remedies Cumulative

  	
  80

  
	
   

  	
  Section 12.10

  	
  Marshalling;
  Payments Set Aside

  	
  80

  
	
   

  	
  Section 12.11

  	
  Severability

  	
  80

  
	
   

  	
  Section 12.12

  	
  Obligations
  Several; Independent Nature of Lenders’ Rights

  	
  80

  
	
   

  	
  Section 12.13

  	
  Headings

  	
  81

  
	
   

  	
  Section 12.14

  	
  Governing Law;
  Jurisdiction; Etc.

  	
  81

  
	
   

  	
  Section 12.15

  	
  WAIVER OF JURY
  TRIAL

  	
  81

  
	
   

  	
  Section 12.16

  	
  Treatment of
  Certain Information; Confidentiality

  	
  82

  
	
   

  	
  Section 12.17

  	
  Usury Savings
  Clause

  	
  82

  
	
   

  	
  Section 12.18

  	
  Counterparts;
  Integration; Effectiveness

  	
  83

  
	
   

  	
  Section 12.19

  	
  Entire Agreement

  	
  83

  
	
   

  	
  Section 12.20

  	
  Patriot Act
  Notification

  	
  83

  



 


	
  SCHEDULES:

  
	
  A:

  	
  Information
  Regarding Initial Lenders

  
	
  1.01:

  	
  Designated
  Consolidated Adjusted EBITDA and Consolidated Capital Expenditures

  
	
  3.01(h):

  	
  Closing
  Date Mortgaged Properties

  
	
  4.01:

  	
  Jurisdictions
  of Organization and Qualification

  
	
  4.02:

  	
  Capital
  Stock and Ownership

  
	
  4.13:

  	
  Real
  Estate Assets

  
	
  4.16:

  	
  Material
  Contracts

  
	
  4.21:

  	
  Certain
  Fees

  
	
  4.29:

  	
  Agreements
  with Managers

  
	
  4.34:

  	
  Unauthorized
  UCC Filings

  
	
  6.01:

  	
  Certain
  Indebtedness

  
	
  6.02:

  	
  Certain
  Liens

  
	
  6.07:

  	
  Certain
  Investments

  
	
  6.12:

  	
  Certain
  Affiliate Transactions

  
	
   

  	
   

  
	
  EXHIBITS:

  
	
  A:

  	
  Form of
  Note

  
	
  B:

  	
  Compliance
  Certificate

  
	
  C:

  	
  Opinion
  of Counsel

  
	
  D:

  	
  Closing
  Date Certificate

  
	
  E:

  	
  Solvency
  Certificate

  
	
  F:

  	
  Counterpart
  Agreement

  



 


iv














 


PURCHASE AGREEMENT


 


This PURCHASE AGREEMENT, dated as of February 9, 2007, is entered
into by and among MR DEFAULT SERVICES LLC, a Delaware limited liability company
(“MR”), E-DEFAULT SERVICES LLC, a Delaware limited liability company (“E-Default”),
STATEWIDE TAX AND TITLE SERVICES LLC, a Delaware limited liability company (“STT”),
STATEWIDE PUBLISHING SERVICES LLC, a Delaware limited liability company (“Statewide
Publishing” and, together with MR, E-Default and STT, the “Borrowers”),
MR PROCESSING HOLDING CORP., a Delaware corporation (“Holdings”),
certain subsidiaries of Borrowers, as Guarantors, the Lenders party hereto from
time to time and THE ROYAL BANK OF SCOTLAND PLC (“RBS” or the “Purchaser”).


 


RECITALS


 


WHEREAS,
capitalized terms used in these Recitals shall have the respective meanings set
forth for such terms in Section 1.01 hereof;


 


WHEREAS,
pursuant to the Phase 1 Acquisition Agreements, MR has agreed to acquire
certain assets from the Phase 1 Sellers;


 


WHEREAS,
upon the terms and subject to the conditions set forth in this Agreement, the
Borrowers will issue to RBS and Ares Capital CP Funding, LLC (together the “Initial
Lenders”), and the Initial Lenders will purchase from the Borrowers, $55.0
million in initial principal amount of 13.50% Senior Subordinated Notes due
2014 in the form of Exhibit A (together with all notes issued in exchange,
substitution or replacement therefor, the “Notes”);


 


WHEREAS,
proceeds from the issuance and sale of the Notes will be used to (a) finance,
in part, the Phase 1 Acquisitions, (b) refinance all Existing Indebtedness
of the Borrowers and (c) pay fees and expenses incurred in connection with
the Transactions (other than any Phase 2 Acquisitions);


 


WHEREAS,
Guarantors have agreed to guarantee the obligations of the Borrowers hereunder
and under the Notes pursuant to the Guaranty set forth in Article Seven
hereof; and


 


WHEREAS,
the Notes and the Guaranty shall be unsecured, senior subordinated obligations
of each Borrower and the Guarantors, respectively, ranking junior to all
permitted Senior Debt and other secured Indebtedness of the Borrowers and the
Guarantors that is pari passu with the Senior Debt, pari passu in right of
payment with other senior subordinated indebtedness of the Borrowers and the
Guarantors, respectively, and senior in right of payment to all contractually
subordinated indebtedness of the Borrowers and the Guarantors,
respectively.  The Notes will be
subordinated to the Senior Debt pursuant to the Subordination Agreement.


 


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


 


ARTICLE ONE

DEFINITIONS AND ACCOUNTING TERMS


 


Section 1.01                            Definitions.


 


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


 

















 


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


 


“Affiliate”
means, 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.


 


“Aggregate
Payment” as defined in Section 7.02.


 


“Agreement”
means this Purchase Agreement, dated as of February 9, 2007, as it may be
amended, supplemented, restated or otherwise modified from time to time.


 


“Alternate
Offer” as defined in Section 9.06.


 


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


 


“Asset
Sale” means a sale, lease or sub-lease (as lessor or sublessor), sale and
leaseback, assignment, conveyance, transfer or other disposition to, or any
exchange of property with, any Person (other than any Borrower or any Guarantor
Subsidiary), in one transaction or a series of transactions, of all or any part
of Holdings’ or any of its Subsidiaries’ businesses, assets or properties of
any kind, whether real, personal, or mixed and whether tangible or intangible,
whether now owned or hereafter acquired, including, without limitation, the
Capital Stock of any of Holdings’ Subsidiaries, other than (i) inventory
(or other assets) sold or leased in the ordinary course of business (excluding
any such sales by operations or divisions discontinued or to be discontinued),
and (ii) sales of other assets for aggregate consideration of less than
$275,000 individually or in the aggregate, during any Fiscal Year.


 


“Authorized
Officer” means, as applied to any Person, any individual holding the
position of chairman of the board (if an officer), chief executive officer,
president or one of its vice presidents (or the equivalent thereof), and such
Person’s chief financial officer or treasurer.


 


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


 


“Big
Four Accounting Firm” means any of Ernst & Young LLP, PWC,
Deloitte & Touche LLP or KPMG LLP.


 


“Board
of Directors” means (i) in the case of a Person that is a limited
partnership, the general partner or any committee authorized to act therefor, (ii) in
the case of a Person that is a corporation, the board of directors of such
Person or any committee authorized to act therefor, (iii) in the case of a
Person that is a limited liability company, the board of managers or members of
such Person or such Person’s manager or any committee authorized to act
therefor and (iv) in the case of any other Person, the board of directors,
management committee or similar governing body or any authorized committee
thereof responsible for the management of the business and affairs of such
Person.


 


“Borrowers”
as defined in the preamble hereto.


 


2

















 


“Business
Day” means any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York or is a day on which banking
institutions located in such state are authorized or required by law or other
governmental action to close.


 


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


 


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


 


“Capitalized
Interest” is defined in Exhibit A.


 


“Cash”
means money, currency or a credit balance in any demand or deposit account.


 


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


 


“Catch-Up
Interest” as defined in Section 5.19(b).


 


“Change
of Control” means, at any time, (i) Sponsor shall cease to
beneficially own and control at least 50.1% on a fully diluted basis of the
economic and voting interests in the Capital Stock of Holdings; (ii) any
Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the
Exchange Act) other than Sponsor shall have obtained the power (whether or not
exercised) to elect a majority of the members of the Board of Directors of
Holdings; (iii) Holdings shall cease to beneficially own and control 100%
on a fully diluted basis of the economic and voting interest in the Capital
Stock of each Borrower; or (iv) the majority of the seats (other than
vacant seats) on the Board of Directors of Holdings cease to be occupied by
Persons who either (a) were members of the Board of Directors of Holdings
on the Closing Date or (b) were nominated for election by the Board of
Directors of Holdings, a majority of whom were directors on the Closing Date or
whose election or nomination for election was previously approved by a majority
of such directors.


 


“Closing”
as defined in Section 2.03.


 


3

















 


“Closing
Date” means the date hereof.


 


“Closing
Date Certificate” means a Closing Date Certificate substantially in the
form of Exhibit D.


 


“Collateral
Agent” as defined in the recitals.


 


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


 


“Consolidated
Adjusted EBITDA” means, for any period, an amount determined for Holdings
and its Subsidiaries on a consolidated basis equal to (i)  the sum,
without duplication, of the amounts for such period of (a) Consolidated
Net Income, and to the extent any of the items in subparagraphs (b) through
(n) (other than subparagraph (m)) reduce Consolidated Net Income, (b) Consolidated
Interest Expense, (c) provisions for Taxes based on income, (d) total
depreciation expense, (e) total amortization expense, (f) Transaction
Costs incurred and paid in the period (to the extent expensed), (g) any
financial advisory fees, accounting fees, legal fees and other similar advisory
or consulting fees and other out-of-pocket costs and expenses of Holdings, any
Borrower or any Borrower’s Subsidiaries in connection with the Phase 1
Acquisitions, deducted from Consolidated Net Income for any period terminating
within six months of the Closing Date and in an aggregate amount not to exceed
$1,000,000, (h) reimbursement of out-of-pocket expenses incurred by
directors of any Loan Party or by Sponsor under any management agreement or
arrangement with any Loan Party, (i) any transaction costs incurred in
connection with the issuance of Securities or any refinancing transaction and
any fees and expenses related to any Permitted Acquisitions that are not paid
to the seller(s), (j) all one-time compensation charges, including without
limitation, stay bonuses paid to existing management and severance costs, in an
aggregate amount not to exceed $750,000 per Fiscal Year, (k) all expenses
and charges which are not subject to dispute and with respect to which a third
party is contractually obligated to reimburse Holdings or any of its
Subsidiaries in a later period and such third party has the capacity to pay
such expense or charge, (l) losses relating to Interest Rate Agreements or
Currency Agreements, (m) the proceeds of any claim by any Borrower on
business interruption insurance held by it in an amount not to exceed the
earnings for such period that such proceeds were intended to replace; provided,
that this clause (m) shall not apply for more than two consecutive Fiscal
Quarters and (n) other non-Cash items including but not limited to FAS 123
expenses and charges (excluding any such non-Cash item to the extent that it
represents an accrual or reserve for potential Cash items in any future period
or amortization of a prepaid Cash item that was paid in a prior period) minus
(ii) the sum of (a) all expenses and charges under clause (i)(k) above
at the time reimbursed, (b) gains relating to Interest Rate Agreements or
Currency Agreements and (c) other non-Cash items increasing Consolidated
Net Income for such period (excluding any such non-Cash item to the extent it
represents the reversal of an accrual or reserve for potential Cash item in any
prior period); provided that, solely for purposes of calculation of
Consolidated Adjusted EBITDA for any period including the Fiscal Quarters ended
June 30, 2006, September 30, 2006 and December 31, 2006 and
ending March 31, 2007, Consolidated Adjusted EBITDA for such Fiscal
Quarters shall equal the amount or, in the case of the Fiscal Quarter ending March 31,
2007, be calculated in the manner, set forth on Schedule 1.01.


 


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


 


“Consolidated
Cash Interest Expense” means, for any period, Consolidated Interest Expense
for such period, excluding any amount not payable in Cash for such period.


 


4

















 


“Consolidated
Fixed Charges” means, for any period, the sum, without duplication, of the
amounts determined for Holdings and its Subsidiaries on a consolidated basis
equal to (i) Consolidated Cash Interest Expense (less any payments made to
obtain any Interest Rate Agreements and any expenses reimbursed under this
Agreement, in each case solely to the extent such payments are included in
Consolidated Cash Interest Expense), (ii) payments of principal of the
Term Loans (as defined in the Senior Credit Agreement) and the Incremental Term
Loans (as defined in the Senior Credit Agreement) under Section 2.24 of
the Senior Credit Agreement and scheduled payments of principal on other
Consolidated Total Debt, (iii) Consolidated Capital Expenditures (net of (x)
any proceeds of any related financings with respect to such expenditures, (y) any
proceeds from an Excluded Issuance, any Net Asset Sale Proceeds (as defined in
the Senior Credit Agreement) or any Net Insurance/Condemnation Proceeds (as
defined in the Senior Credit Agreement), or (z) any capital expenditures
made as a tenant in leasehold improvements to the extent reimbursed by the
landlord) and (iv) the portion of Taxes based on income actually paid in
Cash in such period; provided that, solely for purposes of calculation
of Consolidated Fixed Charges for any period including the Fiscal Quarters
ended June 30, 2006, September 30, 2006 and December 31, 2006
and ending March 31, 2007, each of Consolidated Capital Expenditures and
the portion of Taxes based on income actually paid in Cash for such Fiscal
Quarters shall equal the amount or, in the case of the Fiscal Quarter ending March 31,
2007, be calculated in the manner, set forth on Schedule 1.01; provided
further that, solely for purposes of calculation of Consolidated Fixed Charges
for any period including the Fiscal Quarters ended June 30, 2006, September 30,
2006 and December 31, 2006, each of the amounts calculated in accordance
with clauses (i), (ii) and (iv) above shall exclude such Fiscal
Quarters and instead be calculated by annualizing the actual aggregate amounts
calculated for the other remaining Fiscal Quarters occurring in such period
(for example, for the twelve-month period ended March 31, 2007,
Consolidated Cash Interest Expense shall equal the aggregate amount of
Consolidated Cash Interest Expense for the Fiscal Quarter ended on such date
multiplied by 4, for the twelve-month period ended June 30, 2007,
Consolidated Cash Interest Expense shall equal the aggregate amount of
Consolidated Cash Interest Expense for the two Fiscal Quarters ended on such
date multiplied by 2, and for the twelve-month period ended September 30,
2007, Consolidated Cash Interest Expense shall equal the aggregate amount of
Consolidated Cash Interest Expense for the three Fiscal Quarters ended on such
date multiplied by 4/3).


 


“Consolidated
Interest Expense” means, for any period, total interest expense (including
that portion attributable to Capital Leases in accordance with GAAP and
capitalized interest) of Holdings and its Subsidiaries on a consolidated basis
with respect to all outstanding Indebtedness of Holdings and its Subsidiaries,
including all commissions, discounts and other fees and charges owed with
respect to letters of credit and net costs under Interest Rate Agreements, but excluding,
however, any amounts referred to in Section 2.23(d) of the
Senior Credit Agreement or in the Fee Letter, in each case, payable on or
before the Closing Date; provided further that, solely for purposes of
calculation of Consolidated Interest Expense for any period including the
Fiscal Quarters ended June 30, 2006, September 30, 2006 and December 31,
2006, each of the amounts calculated in accordance with the foregoing shall
exclude such Fiscal Quarters and instead be calculated by annualizing the actual
aggregate amounts calculated for the other remaining Fiscal Quarters occurring
in such period (for example, for the twelve-month period ended March 31,
2007, Consolidated Interest Expense shall equal the aggregate amount of
Consolidated Interest Expense for the Fiscal Quarter ended on such date
multiplied by 4, for the twelve-month period ended June 30, 2007,
Consolidated Interest Expense shall equal the aggregate amount of Consolidated
Interest Expense for the two Fiscal Quarters ended on such date multiplied by
2, and for the twelve-month period ended September 30, 2007, Consolidated
Interest Expense shall equal the aggregate amount of Consolidated Interest
Expense for the three Fiscal Quarters ended on such date multiplied by 4/3).


 


“Consolidated
Net Income” means, for any period, (i) the net income (or loss) of
Holdings and its Subsidiaries on a consolidated basis for such period taken as
a single accounting period determined in conformity with GAAP, minus (ii) (a) the
income (or loss) of any Person (other than a


 


5

















 


Subsidiary
of Holdings) in which any other Person (other than Holdings or any of its
Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Holdings or any of its
Subsidiaries by such Person during such period, (b) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Holdings or is
merged into or consolidated with Holdings or any of its Subsidiaries or that
Person’s assets are acquired by Holdings or any of its Subsidiaries, (c) the
income of any Subsidiary of Holdings to the extent that the declaration or
payment of dividends or similar distributions by that Subsidiary of that income
is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary, (d) any after-tax
gains or losses attributable to Asset Sales, discontinued operations or
returned surplus assets of any Pension Plan, and (e) (to the extent not
included in clauses (a) through (d) above) any net extraordinary gains or
net extraordinary losses.


 


“Consolidated
Senior Secured Debt” means, as at any date of determination, the aggregate
stated balance sheet amount of all Indebtedness of Holdings and its
Subsidiaries that is secured by a Lien (excluding the face amount of any letter
of credit issued for the account of any Borrower or any Subsidiary that has not
been drawn or as to which any Borrower or any Subsidiary is not otherwise
liable at such date of determination for any reimbursement of drawings)
determined on a consolidated basis in accordance with GAAP (without giving
effect to original issue discount, if any).


 


“Consolidated
Total Debt” means, as at any date of determination, the aggregate stated
balance sheet amount of all Indebtedness of Holdings and its Subsidiaries
determined on a consolidated basis in accordance with GAAP (without giving
effect to original issue discount, if any).


 


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


 


“Contributing
Guarantors” as defined in Section 7.02.


 


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


 


“Counterpart
Agreement” means a Counterpart Agreement substantially in the form of Exhibit F
delivered by a Loan Party pursuant to Section 5.11.


 


“Currency
Agreement” means any foreign exchange contract, currency swap agreement,
futures contract, option contract, synthetic cap or other similar agreement or
arrangement, each of which is for the purpose of hedging the foreign currency
risk associated with Holdings’ and its Subsidiaries’ operations and not for
speculative purposes.


 


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


 


“Default
Rate” as defined in Exhibit A.


 


“Delayed
Draw Term Loan” means a term loan made by a Lender to Borrowers pursuant to
Section 2.01(b) of the Senior Credit Agreement.


 


6

















 


“Disqualified
Stock” means, with respect to Holdings, any Capital Stock which by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable at the option of the holder) or upon the happening of
any event:


 


(a)                                  matures or its
mandatorily redeemable (other than redeemable only for the Capital Stock of
Holdings which is not Disqualified Stock) pursuant to a sinking fund obligation
or otherwise;


 


(b)                                 is convertible
or exchangeable at the option of the holder for Indebtedness or Disqualified
Stock; or


 


(c)                                  is mandatorily
redeemable or must be purchased upon the occurrence of certain events or
otherwise, in whole or in part,


 


in
each case on or prior to the first anniversary of the later of (x) the
Final Maturity Date (as defined in the Senior Credit Agreement) and (y) the
scheduled maturity date for the Notes.


 


“Documentation
Agent” as defined in the recitals.


 


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


 


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


 


“E-Default”
as defined in the preamble hereto.


 


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


 


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


 


“Environmental
Laws” means any and all current or future foreign or domestic, federal or
state (or any subdivision of either of them), statutes, ordinances, orders,
rules, regulations, judgments, Governmental Authorizations, or any other
requirements of Governmental Authorities relating to (i) environmental
matters, including those relating to any Hazardous Materials Activity; or (ii) the
generation, use, storage, transportation or disposal of Hazardous Materials.


 


“Equity
Investors” means the Sponsor and the Management Investors.


 


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


 


“ERISA
Affiliate” means, as applied to any Person, (i) any corporation which
is a member of a controlled group of corporations within the meaning of Section 414(b) of
the Internal Revenue Code of which that Person is a member; (ii) any trade
or business (whether or not incorporated)


 


7

















 


which
is a member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that
Person is a member; and (iii) any member of an affiliated service group
within the meaning of Section 414(m) or (o) of the Internal Revenue
Code of which that Person, any corporation described in clause (i) above
or any trade or business described in clause (ii) above is a member.  Any former ERISA Affiliate of Holdings or any
of its Subsidiaries shall continue to be considered an ERISA Affiliate of
Holdings or any such Subsidiary within the meaning of this definition with
respect to the period such entity was an ERISA Affiliate of Holdings or such
Subsidiary and with respect to liabilities arising after such period for which
Holdings or such Subsidiary could be liable under the Internal Revenue Code or
ERISA.


 


“ERISA
Event” means (i) a “reportable event” within the meaning of Section 4043
of ERISA and the regulations issued thereunder with respect to any Pension Plan
(excluding those for which the provision for 30-day notice to the PBGC has been
waived by regulation); (ii) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of
the Internal Revenue Code) or the failure to make by its due date a required
installment under Section 412(m) of the Internal Revenue Code with
respect to any Pension Plan or the failure to make any required contribution to
a Multiemployer Plan; (iii) the provision by the administrator of any
Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of
intent to terminate such plan in a distress termination described in Section 4041(c) of
ERISA; (iv) the withdrawal by Holdings, any of its Subsidiaries or any of
their respective ERISA Affiliates from any Pension Plan with two or more
contributing sponsors or the termination of any such Pension Plan resulting in
liability to Holdings, any of its Subsidiaries or any of their respective
Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the
institution by the PBGC of proceedings to terminate any Pension Plan, or the
occurrence of any event or condition which might constitute grounds under ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan; (vi) the imposition of liability on Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or
4069 of ERISA or by reason of the application of Section 4212(c) of
ERISA; (vii) the withdrawal of Holdings, any of its Subsidiaries or any of
their respective ERISA Affiliates in a complete or partial withdrawal (within
the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if
there is any potential liability therefor, or the receipt by Holdings, any of
its Subsidiaries or any of their respective ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241
or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A
or 4042 of ERISA; (viii) the occurrence of an act or omission which could
give rise to the imposition on Holdings, any of its Subsidiaries or any of
their respective ERISA Affiliates of fines, penalties, taxes or related charges
under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c),
(i) or (l), or Section 4071 of ERISA in respect of any Employee Benefit
Plan; (ix) the assertion of a material claim (other than routine claims
for benefits) against any Employee Benefit Plan other than a Multiemployer Plan
or the assets thereof, or against Holdings, any of its Subsidiaries or any of
their respective ERISA Affiliates in connection with any Employee Benefit Plan;
(x) receipt from the Internal Revenue Service of notice of the failure of
any Pension Plan (or any other Employee Benefit Plan intended to be qualified
under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of
the Internal Revenue Code, or the failure of any trust forming part of any
Pension Plan to qualify for exemption from taxation under Section 501(a) of
the Internal Revenue Code; or (xi) the imposition of a Lien pursuant to Section 401(a)(29)
or 412(n) of the Internal Revenue Code or pursuant to ERISA with respect
to any Pension Plan.


 


“Event
of Default” means each of the conditions or events set forth in Section 8.01.


 


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


 


8

















 


“Excluded
Issuance” means any capital contribution to or issuance by Holdings of any
Capital Stock (other than Disqualified Stock), (i) pursuant to any
employee stock or stock option compensation plan, (ii) to any Person that
is an Equity Investor on the Closing Date or is an Affiliates thereof, (iii) to
management and directors in an amount not to exceed 15% of the fully diluted
outstanding Capital Stock of Holdings or (iv) pursuant to a Qualifying
Equity Issuance.


 


“Existing
Credit Agreement” means that certain Credit and Guaranty Agreement dated as
of February 24, 2006, as amended prior to the date hereof, among the
Borrowers, Holdings, certain subsidiaries of the Borrowers as guarantors, the
lenders party thereto, RBSS, as sole lead arranger, sole book runner and
syndication, and RBS, as administrative agent, collateral agent and
documentation agent.


 


“Existing
Indebtedness” means (i) Indebtedness and other obligations outstanding
under the Existing Credit Agreement and (ii) Indebtedness and other
obligations outstanding under the Existing Senior Subordinated Notes.


 


“Existing
Purchase Agreement” means that certain Purchase Agreement, dated as of February 24,
2006, as amended prior to the date hereof, among Holdings, each of the
Borrowers, as issuers, and the purchasers named therein relating to the
Existing Senior Subordinated Notes.


 


“Existing
Senior Subordinated Notes” means Borrowers’ Senior Subordinated Notes in
the initial aggregate principal amount of $39,000,000 issued pursuant to the
Existing Purchase Agreement.


 


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


 


“Fair
Share” as defined in Section 7.02.


 


“Fair
Share Contribution Amount” as defined in Section 7.02.


 


“Fair
Share Shortfall” as defined in Section 7.02.


 


“Fee
Letter” means that certain Amended and Restated Fee Letter, dated February 9,
2007, by and between Royal Bank of Scotland plc, RBS Securities Corporation,
the Borrowers and Holdings.


 


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


 


“Financial
Plan” as defined in Section 5.01(i).


 


“Fiscal
Quarter” means a fiscal quarter of any Fiscal Year.


 


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


 


9














 


“Fixed
Charge Coverage Ratio” means the ratio as of the last day of any Fiscal
Quarter of (i) Consolidated Adjusted EBITDA for the four-Fiscal Quarter
period then ending, to (ii) Consolidated Fixed Charges for such
four-Fiscal Quarter period.


 


“Foreign
Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which any Borrower is resident for tax purposes.  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” means any Subsidiary that is not a Domestic Subsidiary.


 


“Fraudulent
Transfer Laws” as defined in Section 2.13.


 


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


 


“Funding
Borrower” as defined in Section 2.13.


 


“Funding
Guarantor” as defined in Section 7.02.


 


“GAAP”
means, subject to the limitations on the application thereof set forth in Section 1.02,
United States generally accepted accounting principles in effect as of the date
of determination thereof.


 


“Governmental
Authority” means the government of the United States of America or any
other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government
(including any supra-national bodies such as the European Union or the European
Central Bank).


 


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


 


“Guaranteed
Obligations” as defined in Section 7.01.


 


“Guarantor”
means each of Holdings and each Domestic Subsidiary of Holdings (other than
Borrowers).


 


“Guarantor
Subsidiary” means each Guarantor other than Holdings.


 


“Guaranty”
means the guaranty of each Guarantor set forth in Article Seven.


 


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


 


“Hazardous
Materials Activity” means any past, current, proposed or threatened
activity, event or occurrence involving any Hazardous Materials, including the
use, manufacture, possession, storage, holding, presence, existence, location,
Release, threatened Release, discharge, placement,


 


10

















 


generation,
transportation, processing, construction, treatment, abatement, removal,
remediation, disposal, disposition or handling of any Hazardous Materials, and
any corrective action or response action with respect to any of the foregoing.


 


“Hedge
Agreement” means an Interest Rate Agreement or a Currency Agreement entered
into with a Lender Counterparty in order to satisfy the requirements of the
Senior Credit Agreement.


 


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


 


“Holdings”
as defined in the preamble hereto.


 


“Indebtedness”,
as applied to any Person, means, without duplication, (i) all indebtedness
for borrowed money; (ii) that portion of obligations with respect to Capital
Leases that is properly classified as a liability on a balance sheet in
conformity with GAAP; (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed
money; (iv) any obligation owed for all or any part of the deferred purchase
price of property or services (excluding any such obligations incurred under
ERISA), which purchase price is (a) due more than six (6) months from
the date of incurrence of the obligation in respect thereof or (b) evidenced
by a note or similar written instrument; (v) all indebtedness secured by
any Lien on any property or asset owned or held by that Person regardless of
whether the indebtedness secured thereby shall have been assumed by that Person
or is nonrecourse to the credit of that Person; (vi) the face amount of
any letter of credit issued for the account of that Person or as to which that
Person is otherwise liable for reimbursement of drawings; (vii) the direct
or indirect guaranty, endorsement (otherwise than for collection or deposit in
the ordinary course of business), co-making, discounting with recourse or sale
with recourse by such Person of the obligation of another; (viii) any
obligation of such Person the primary purpose or intent of which is to provide
assurance to an obligee that the obligation of the obligor thereof will be paid
or discharged, or any agreement relating thereto will be complied with, or the
holders thereof will be protected (in whole or in part) against loss in respect
thereof; (ix) any liability of such Person for the obligation of another
through any agreement (contingent or otherwise) (a) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions or otherwise)
or (b) to maintain the solvency or any balance sheet item, level of income
or financial condition of another if, in the case of any agreement described
under subclauses (a) or (b) of this clause (ix), the primary purpose
or intent thereof is as described in clause (viii) above; and (x) obligations
of such Person in respect of any exchange traded or over the counter derivative
transaction, including, without limitation, any Interest Rate Agreement and
Currency Agreement, whether entered into for hedging or speculative purposes; provided,
in no event shall obligations under any Interest Rate Agreement and any
Currency Agreement be deemed “Indebtedness” for any purpose under Section 6.08;
provided, further, that Indebtedness shall not include accrued
expenses arising in the ordinary course of business.


 


“Indemnified
Liabilities” means, collectively, any and all liabilities, obligations,
losses, damages (including natural resource damages), penalties, claims
(including Environmental Claims), costs (including the costs of any
investigation, study, sampling, testing, abatement, cleanup, removal,
remediation or other response action necessary to remove, remediate, clean up
or abate any Hazardous Materials Activity), expenses, settlement costs and
disbursements of any kind or nature whatsoever (including the reasonable fees
and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or


 


11

















 


not
any such Indemnitee shall be designated as a party or a potential party
thereto, and any fees or expenses incurred by Indemnitees in enforcing this
indemnity), whether direct, indirect or consequential and whether based on any
federal, state or foreign laws, statutes, rules or regulations (including
securities and commercial laws, statutes, rules or regulations and
Environmental Laws), on common law or equitable cause or on contract or
otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (i) this Agreement
or the other Loan Documents, the Transactions or the other transactions
contemplated hereby or thereby (including Lenders’ agreement to purchase Notes
or the use or intended use of the proceeds thereof, or any enforcement of any
of the Loan Documents (including the enforcement of the Guaranty)); (ii) the
statements contained in the commitment letter delivered by any Lender to
Borrowers with respect to the transactions contemplated by this Agreement; or (iii) any
Environmental Claim or any Hazardous Materials Activity relating to or arising
from, directly or indirectly, any past or present activity, operation, land
ownership, or practice of Holdings or any of its Subsidiaries.


 


“Indemnitee”
as defined in Section 12.02(b).


 


“Information”
as defined in Section 12.16.


 


“Initial
Lenders” as defined in the preamble hereto.


 


“Institutional
Accredited Investors” is defined in Section 12.05.


 


“Institutional
Investor” means (a) any Lender and any transferee that is an Affiliate
of such Lender and (b) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any investment
company or investment fund, any insurance company, any broker or dealer, or any
other similar financial institution or entity, regardless of legal form
organized under the laws of the United States, any state thereof, or the
District of Columbia, with capital and surplus in excess of $50,000,000.


 


“Intellectual
Property” means (a) all inventions and discoveries (whether patentable
or unpatentable and whether or not reduced to practice), all improvements
thereto, and all patents, patent applications and patent disclosures, together
with all reissuances, continuations, continuations-in-part, revisions,
extensions and reexaminations thereof, (b) all trademarks, service marks,
trade dress, logos, trade names and corporate names, together with all
translations, adaptations, derivations and combinations thereof and including
all goodwill associated therewith, (c) all copyrightable works, all
copyrights and all applications, registrations and renewals in connection
therewith, (d) all broadcast rights, (e) all mask works and all
applications, registrations and renewals in connection therewith, (f) all
know-how, trade secrets and confidential business information, whether
patentable or unpatentable and whether or not reduced to practice (including
ideas, research and development, know-how, formulas, compositions and
manufacturing and production process and techniques, technical data, designs,
drawings, specifications, customer and supplier lists, pricing and cost
information and business and marketing plans and proposals), (g) all
computer software (including data and related documentation), (h) all other
proprietary rights, (i) all copies and tangible embodiments thereof (in
whatever form or medium) and (j) all licenses and agreements in connection
therewith.


 


“Interest
Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter of
(i) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then
ended, to (ii) Consolidated Cash Interest Expense for such four-Fiscal
Quarter period (less any payments made to obtain any Interest Rate Agreements
and any expenses reimbursed under this Agreement, in each case solely to the
extent such payments are included in Consolidated Cash Interest Expense).


 


12

















 


“Interest
Payment Date” as defined in Exhibit A.


 


“Interest
Rate Agreement” means any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedging agreement or
other similar agreement or arrangement, each of which is for the purpose of
hedging the interest rate exposure associated with Holdings’ and its
Subsidiaries’ operations and not for speculative purposes.


 


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


 


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


 


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


 


“Lender”
means a Person in whose name a Note is registered on the Security Register
(including each of the Initial Lenders and their respective successors, assigns
and transferees).


 


“Lender
Counterparty” means each Senior Lender or any Affiliate of a Senior Lender
counterparty to a Hedge Agreement (including any Person who is a Senior Lender
or any Affiliate of a Senior Lender as of the Closing Date but subsequently,
whether before or after entering into a Hedge Agreement, ceases to be a Senior
Lender).


 


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


 


“Liquidity
Event” shall mean (a) a Change of Control, (b) except as
permitted under Section 6.09(a), any sale of all or substantially
all of the assets or business of Holdings or any of its Subsidiaries or (c) an
initial public offering of the Capital Stock of Holdings or any of its
Subsidiaries.


 


“Liquidity
Event Offer” as defined in Section 9.06.


 


“Liquidity
Event Payment” as defined in Section 9.06.


 


“Liquidity
Event Payment Date” as defined in Section 9.06.


 


13

















 


“Loan
Document” means any of this Agreement, the Notes, the Subordination
Agreement and all other documents, instruments or agreements executed and
delivered by a Loan Party for the benefit of any Lender or the Purchaser in
connection herewith (excluding Hedge Agreements, any documents under which any
Lender acquires any Capital Stock of Holdings and any documents governing such
ownership of Capital Stock of Holdings).


 


“Loan
Party” means each of Holdings, any Borrower and the Guarantors.


 


“Management
Investors” means the natural persons being the current or former members of
management, officers and employees of Holdings and/or its Subsidiaries who have
been, are or become investors in Holdings.


 


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


 


“Material
Adverse Effect” means a material adverse effect on and/or material adverse
developments with respect to (i) the business, operations, properties, assets
or financial condition of Holdings and its Subsidiaries taken as a whole; (ii) the
ability of the Loan Parties to fully and timely perform their Obligations; (iii) the
legality, validity, binding effect or enforceability against the Loan Parties
of the Loan Documents; or (v) the rights, remedies and benefits available
to, or conferred upon, any Agent and any Lender or any Secured Party under the
Loan Documents.


 


“Material
Contract” means (i) each Services Agreement, (ii) each Phase 1
Acquisition Agreement, and (iii) any contract or other arrangement to
which Holdings or any of its Subsidiaries is a party (other than the Loan
Documents and the documents related thereto) for which breach, nonperformance,
cancellation or failure to renew could reasonably be expected to have a
Material Adverse Effect.


 


“Maximum
Accrual” as defined in Section 5.19(b).


 


“MHS”
means Morris, Hardwick & Schneider, LLC, a Georgia limited liability
company.


 


“MHS
Acquisition” means the purchase by MR of certain assets from MHS pursuant
to the MHS Acquisition Agreement.


 


“MHS
Acquisition Agreement” means the Contribution Agreement, dated as of February 2,
2007, by and among Holdings, MR and MHS, including all schedules and exhibits
thereto and any ancillary documents executed in connection therewith, as it may
be amended, supplemented, restated or otherwise modified from time to time in
accordance with the provisions of Section 6.15 hereof.


 


“MHS
Services Agreement” means the Services Agreement, dated as of February 2,
2007, by and among the Borrowers and MHS, as it may be amended, supplemented,
restated or otherwise modified from time to time in accordance with the
provisions of Section 6.15 hereof.


 


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


 


“MR”
as defined in the preamble hereto.


 


“MR
Law” means McCalla, Raymer, Padrick, Cobb, Nichols and Clark, LLC, a Georgia
limited liability company.


 


14

















 


“MR
Services Agreement” means the Services Agreement, dated as of February 24,
2006, by and among the Borrowers and MR Law, as it may be amended,
supplemented, restated or otherwise modified from time to time in accordance
with the provisions of Section 6.15 hereof.


 


“MSP”
means Morris, Schneider & Prior, L.L.C., a Georgia limited liability
company.


 


“MSP
Acquisition” means the purchase by MR of certain assets from MSP pursuant
to the MSP Acquisition Agreement.


 


“MSP
Acquisition Agreement” means the Contribution Agreement, dated as of February 2,
2007 by and among Holdings, MR and MSP, including all schedules and exhibits
thereto and any ancillary documents executed in connection therewith, as it may
be amended, supplemented, restated or otherwise modified from time to time in
accordance with the provisions of Section 6.15 hereof.


 


“MSP
Services Agreement” means the Services Agreement, dated as of February 2,
2007, by and among the Borrowers and MSP, as it may be amended, supplemented,
restated or otherwise modified from time to time in accordance with the
provisions of Section 6.15 hereof.


 


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


 


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


 


“Net
Excluded Issuance Proceeds” means, with respect to any Excluded Issuance,
an amount equal to the gross amount of cash proceeds paid to or received by
Holdings in respect of such Excluded Issuance, net of underwriting discounts
and commissions or placement fees, investment banking fees, legal fees,
consulting fees, accounting fees and other customary fees and expenses directly
incurred by Holdings in connection therewith (other than those payable to any
Loan Party or any fee in excess of 1.0% of the gross proceeds of such Excluded
Issuance payable to an Affiliate of any Loan Party).


 


“Non-Excluded
Taxes” as defined in Section 9.09.


 


“Notes”
as defined in the recitals.


 


“Obligation
Aggregate Payments” as defined in Section 2.13.


 


“Obligation
Fair Share” as defined in Section 2.13.


 


“Obligation
Fair Share Contribution Amount” as defined in Section 2.13.


 


“Obligation
Fair Share Shortfall” as defined in Section 2.13.


 


“Obligations”
means all obligations of every nature of each Loan Party from time to time owed
to the Purchaser and any of the Lenders, under any Loan Document, whether for
principal, interest (including interest which, but for the filing of a petition
in bankruptcy with respect to such Loan Party, would have accrued on any
Obligation, whether or not a claim is allowed against such Loan Party for such
interest in the related bankruptcy proceeding), fees, expenses, indemnification
or otherwise.


 


15

















 


“Obligee
Guarantor” as defined in Section 7.07.


 


“Option
of Lender to Elect Purchase” as defined in Section 9.06.


 


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


 


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


 


“Outstanding,”
or “outstanding” when used with respect to the Notes, means, as of the
date of determination, all Notes theretofore executed and delivered under this
Agreement, except:


 


(i)                                     Notes theretofore canceled
by the Borrowers or delivered to the Borrowers for cancellation;


 


(ii)                                  Notes for whose redemption
money in the necessary amount has been theretofore set aside by the Borrowers
with a third party in trust for the Lenders of such Notes; provided that notice of such redemption
has been duly given as provided in this Agreement; and


 


(iii)                               Notes which have been paid
pursuant to Section 2.10 or in exchange for or in lieu of which
other Notes have been executed and delivered pursuant to this Agreement;


 


provided, however, that in determining whether
the Lenders of the requisite principal amount of the Outstanding Notes have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Notes owned by Holdings, Borrowers or any other obligor upon the
Notes or any Affiliate of Holdings or Borrowers or of such other obligor shall
be disregarded and deemed not to be Outstanding.  Notes so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Requisite Lenders the pledgee’s right so to act with
respect to such Notes and that the pledgee is not Holdings, any Borrower or any
other obligor upon the Notes or any Affiliate of Holdings, Borrowers or of such
other obligor.


 


“Patriot
Act” as defined in Section 4.32.


 


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


 


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


 


“Permitted
Acquisition” means any acquisition by any Borrower or any of its
wholly-owned Subsidiaries, whether by purchase, merger or otherwise, of all or
substantially all of the


 


16

















 


assets
of, all of the Capital Stock of, or a business line or unit or a division of,
any Person (the “Target”); provided,


 


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


 


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


 


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


 


(d)                                 Holdings and
its Subsidiaries shall be in compliance with the financial covenants set forth
in Section 6.08 on a pro forma basis after giving effect to such
acquisition as of the last day of the Fiscal Quarter most recently ended (as
determined in accordance with Section 6.08(f));


 


(e)                                  Borrowers shall
have delivered to the Lenders at least ten (10) Business Days prior to
such proposed acquisition, a Compliance Certificate evidencing compliance with Section 6.08
as required under clause (d) above, together with all relevant
financial information with respect to such acquired assets, including, without
limitation, the aggregate consideration for such acquisition and any other
information required to demonstrate compliance with Section 6.08;


 


(f)                                    the Target (y) shall
be in the same or a similar or related business or lines of business in which
the acquiring Borrower and/or its Subsidiaries are engaged as of the Closing
Date and (z) shall have generated positive cash flow for the four-Fiscal
Quarter period most recently ended prior to the date of such acquisition; and


 


(g)                                 the total
consideration to be paid in respect of all acquisitions made from the Closing
Date to the date of determination (to the extent not funded from one or more
Qualifying Equity Issuances) is less than $70,000,000 in the aggregate.


 


“Permitted
Investments” means each of the Investments permitted pursuant to Section 6.07.


 


“Permitted
Liens” means each of the Liens permitted pursuant to Section 6.02.


 


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


 


“Phase
1 Acquisition Agreements” means the MHS Acquisition Agreement and the MSP
Acquisition Agreement.


 


“Phase
1 Acquisitions” means the MHS Acquisition and the MSP Acquisition.


 


17

















 


“Phase
1 Sellers” means MHS and MSP.


 


“Phase
2 Acquisitions” means any Permitted Acquisitions financed, in whole or in
part, with Delayed Draw Term Loans.


 


“Private
Offering” means any offering by any Lender of some or all of the Notes
without registration under (but in compliance with) the Securities Act.


 


“Pro
Forma Financial Statements” as defined in Section 3.01(j).


 


“Projections”
as defined in Section 4.08.


 


“Purchase
Price” as defined in Section 2.02.


 


“Purchaser”
as defined in the preamble to this Agreement.


 


“PWC”
means Pricewaterhouse Coopers LLP.


 


“Qualified
Institutional Buyer” means any Person that is a “qualified institutional
buyer” within the meaning of Rule 144A under the Securities Act.


 


“Qualifying
Equity Issuance” means any issuance of Capital Stock (other than
Disqualified Stock) by, or equity contribution to, Holdings if (a) after
giving effect thereto, no Change of Control shall have occurred; (b) such
Capital Stock shall be issued pursuant a private placement exempt from
registration under the Securities Act; and (c) such Capital Stock or the
Net Excluded Issuance Proceeds thereof, if any, shall be used solely for the
purpose of paying the consideration for Permitted Acquisitions.


 


“RBSS”
means RBS Securities Corporation.


 


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


 


“Redemption
Date” means, when used with respect to any Note to be redeemed, the date
fixed for such redemption by or pursuant to this Agreement.


 


“Redemption
Price” means, with respect to any prepayment of the Notes, the applicable
amount specified in Exhibit A for such prepayment.


 


“Regular
Record Date” as defined in Exhibit A.


 


“Regulation
S” means Regulation S under the Securities Act (or any successor
provision), as it may be amended from time to time.


 


“Regulation
U” means Regulation U of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor regulation to all or a
portion thereof.


 


“Related
Agreements” means, collectively:


 


(a)                                  the Phase 1
Acquisition Agreements; and


 


(b)                                 the Senior Debt Documents.


 


18

















 


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


 


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


 


“Requisite
Lenders” means Lenders holding more than 50% of the aggregate outstanding
principal amount of the Notes.


 


“Restricted
Junior Payment” means (i) any dividend or other distribution, direct
or indirect, on account of any shares of any class of stock of Holdings or any
Borrower now or hereafter outstanding, except a dividend payable solely in
shares of stock (other than Disqualified Stock) to the holders thereof; (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of stock
of Holdings or any Borrower now or hereafter outstanding; (iii) any payment
made to retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire shares of any class of stock of Holdings or
any Borrower now or hereafter outstanding; (iv) management or similar fees
payable to Sponsor or any of its Affiliates; and (v) any payment or
prepayment of principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in-substance or legal defeasance),
sinking fund or similar payment with respect to, any Subordinated Indebtedness.


 


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


 


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


 


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


 


“Security
Register” as defined in Section 2.08(a).


 


“Seller
Subordinated Notes” means Indebtedness of any Borrower or any of its
Subsidiaries owing to the seller in any Permitted Acquisition so long as (i) at
the time of the issuance of such Indebtedness, no Default or Event of Default
then exists or would result therefrom, (ii) such Indebtedness is unsecured
and is subordinated to the Obligations on a basis reasonably satisfactory to
the Requisite Lenders, and (iii) such Indebtedness does not have any
required amortization, maturity, sinking fund payment or similar requirement,
or any cash interest payment requirement, in any case prior to the date that is
one year after the Stated Maturity Date.


 


“Senior Credit Agreement” means the Credit
and Guaranty Agreement dated as of the date hereof, by and among the Borrowers,
Holdings, certain subsidiaries of Borrowers, various lenders, RBSS as sole lead
arranger, sole book runner and syndication agent and RBS as Administrative
Agent,


 


19

















 


Collateral
Agent and Documentation Agent (in such capacities, “Administrative Agent,”
“Collateral Agent” and “Documentation Agent”), as the same may be
amended, supplemented, renewed, replaced, refinanced, extended or otherwise
modified from time to time and any one or more agreements renewing, replacing,
extending or refinancing all or any of the debt or commitments thereunder, but
only in each case to the extent permitted by the Subordination Agreement.


 


“Senior Debt” is defined in the Subordination
Agreement.


 


“Senior Debt Documents” means the Senior
Credit Agreement, each of the other Loan Documents (as defined in the Senior
Credit Agreement), each Hedge Agreement between one or more Loan Parties and a
Lender Counterparty) and all other related agreements and documents (including
any notes issued thereunder) issued or delivered hereunder or thereunder or
pursuant hereto or thereto, in each case as the same may be amended, modified
or supplemented from time to time.


 


“Senior Lenders” means the lenders providing
the Senior Debt under the Senior Credit Agreement.


 


“Senior
Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of
(i) Consolidated Senior Secured Debt as of such day to (ii) Consolidated
Adjusted EBITDA for the four-Fiscal Quarter period ending on such date.


 


“Services
Agreements” means the MR Services Agreement, the MHS Services Agreement and
the MSP Services Agreement.


 


“Solvency
Certificate” means a Solvency Certificate of the chief financial officer of
Holdings substantially in the form of Exhibit E.


 


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


 


“Sponsor”
means Great Hill Equity Partners II Limited Partnership, Great Hill Equity
Partners III, LP and/or their Affiliates.


 


“Stated
Maturity Date” as defined in Exhibit A.


 


“Statewide
Publishing” as defined in the preamble hereto.


 


“STT”
as defined in the preamble hereto.


 


“Subject
Transaction” as defined in Section 6.08(f).


 


20














 


“Subordination
Agreement” means the subordination and intercreditor agreement, dated as of
the Closing Date, by and among the Administrative Agent, the Initial Lenders,
Holdings, Borrowers, and each Guarantor Subsidiary, as it may be amended,
supplemented, restated or otherwise modified from time to time in accordance
with the provisions of Section 6.16 hereof, such agreement to be in
form and substance reasonably acceptable to the Purchaser.


 


“Subordinated
Indebtedness” means Indebtedness of Holdings, Borrowers or any of their
respective Subsidiaries subordinated or junior in right of payment to the Notes
(or Guarantees thereof).


 


“Subsidiary”
means, with respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business entity of which
more than 50% of the total voting power of shares of stock or other ownership
interests entitled (without regard to the occurrence of any contingency) to
vote in the election of the Person or Persons (whether directors, managers,
trustees or other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies thereof is at the
time owned or controlled, directly or indirectly, by that Person or one or more
of the other Subsidiaries of that Person or a combination thereof; provided,
in determining the percentage of ownership interests of any Person controlled
by another Person, no ownership interest in the nature of a “qualifying share”
of the former Person shall be deemed to be outstanding.


 


“Target”
as defined in the definition of Permitted Acquisition.


 


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


 


“Total
Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of
(i) Consolidated Total Debt as of such day to (ii) Consolidated Adjusted
EBITDA for the four-Fiscal Quarter period ending on such date.


 


“Transaction
Costs” means the fees, costs and expenses payable by Holdings, any Borrower
or any Borrower’s Subsidiaries on or before the Closing Date in connection with
the transactions contemplated by the Loan Documents and the Related Agreements.


 


“Transactions”
means the Phase 1 Acquisitions, the Phase 2 Acquisitions, the entering into of
the Senior Credit Agreement and the funding of the loans thereunder, the
issuance and purchase of the Notes and all related transactions.


 


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


 


Section 1.02                            Accounting Terms.


 


Except
as otherwise expressly provided herein, all accounting terms not otherwise
defined herein shall have the meanings assigned to them in conformity with
GAAP.  Financial statements and other
information required to be delivered by Holdings to Lenders pursuant to Sections
5.01(a) and 5.01(c) shall be prepared in accordance with
GAAP as in effect at the time of such preparation (and delivered together with
the reconciliation statements provided for in Section 5.01(e), if
applicable).  Subject to the foregoing,
calculations in connection with the definitions, covenants and other provisions
hereof shall utilize accounting principles and policies in conformity with
those used by PWC to prepare the Final Quality of Earnings for the twelve month
period ended December 31, 2005.  To
the extent there are any changes in GAAP from the date of this Agreement, if at
any time such change in GAAP would affect the computation of any financial
ratio or requirement set forth in any Loan Document, and


 


21

















 


Borrowers
or the Requisite Lenders shall so request, the Requisite Lenders and Borrowers
shall negotiate in good faith to amend such ratio or requirement to preserve
the original intent thereof in light of such change in GAAP; provided  that,
until so amended, such ratio or requirement shall continue to be computed in
accordance with such GAAP prior to such change therein.


 


Section 1.03                            Interpretation, etc.


 


The
definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined.  Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms.  The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without
limitation.”  The word “will” shall be
construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.


 


Section 1.04                            Construction.


 


Each
of the parties hereto acknowledges that (i) it has been represented by
counsel in the negotiation and documentation of the terms of this Agreement; (ii) it
has had full and fair opportunity to review and revise the terms of this
Agreement; (iii) this Agreement has been drafted jointly by all of the parties
hereto; and (iv) neither the Purchaser nor any Lender has any fiduciary
relationship with or duty to any Borrower arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Purchaser and the Lenders, on the one hand, and Borrowers, on the other
hand, in connection herewith or therewith is solely that of debtor and
creditor.  Accordingly, each of the
parties hereto acknowledges and agrees that the terms of this Agreement shall
not be construed against or in favor of another party.


 


ARTICLE TWO


AUTHORIZATION
AND ISSUANCE OF NOTES; TERMS OF NOTES


 


Section 2.01                            Authorization of Issue.


 


On
or prior to the execution and delivery of this Agreement, each Borrower will
authorize the issuance and sale of the $55,000,000 aggregate principal amount
of the Notes (plus additional Notes issued as payment-in-kind for interest due,
to the extent permitted in the Notes), each Note to be in the form of Exhibit A
hereto.


 


Section 2.02                            Sale and Purchase of the Notes.


 


On
the basis of the representations and warranties herein contained and subject to
the terms and conditions herein set forth in this Agreement, the Borrowers
agree to issue and sell to the Initial Lenders, and each Initial Lender agrees
severally but not jointly to purchase from the Borrowers, at the Closing
provided for in Section 2.03, Notes in the principal amount
specified  opposite each Initial Lender’s name in Schedule A hereto at 100%
of the principal amount thereof (the “Purchase Price”).


 


22

















 


Section 2.03                            Closing.


 


(a)                          The sale and
purchase of the Notes shall occur at a closing (the “Closing”) on February 9,
2007, or on such other Business Day thereafter as may be agreed upon by the
Borrowers and the Initial Lenders (in either case, the date and time of the
Closing is referred to herein as the “Closing Date”).  At the Closing, the Borrowers will deliver to
each Initial Lender Notes dated the Closing Date, in the principal amount to be
purchased by each Initial Lender and registered in the name of each Initial
Lender or its nominee against payment by such Initial Lender to the Borrowers,
or to their order, by wire transfer of immediately available funds in the
amount of the Purchase Price (as provided in Section 2.02) to such
bank account or accounts as the Borrowers may request in writing at least two Business
Days prior to the Closing Date.


 


(b)                                 If at the
Closing the Borrowers shall fail to deliver to the Initial Lenders the Notes as
provided in Section 2.03(a), or any of the conditions specified in Article 3
shall not have been fulfilled to the Initial Lenders’ reasonable satisfaction
or waived, then the Initial Lenders shall, at their election, be relieved of
all further obligations under this Agreement, without thereby waiving any
rights the Initial Lenders may have by reason of such failure or such nonfulfillment;
provided, that upon payment for and receipt of such Notes by the Initial
Lenders, all such conditions shall be deemed satisfied or waived.


 


Section 2.04                            Form and Execution.


 


The
Notes shall be in the form of Exhibit A hereto.  The Notes shall be executed on behalf of each
Borrower by its president, chief executive officer or one of its vice
presidents.  The signature of any of
these officers on the Notes may be manual or facsimile.


 


Notes
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of any Borrower shall bind such Borrower, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Notes or did not hold such offices at
the date of such Notes.


 


Section 2.05                            Terms of the Notes.


 


The
terms of the Notes shall be as set forth herein and in Exhibit A.


 


Section 2.06                            Registered Form.


 


The
Notes shall be issuable only in registered form without coupons and only in
denominations equal to or greater than $1,000.


 


Section 2.07                            Form of Legend for the Notes.


 


Every Note issued and delivered hereunder shall bear
a legend in substantially the following form:


 


“THE
SECURITY REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE
SECURITIES LAWS.  SUCH SECURITY MAY BE
OFFERED, SOLD OR TRANSFERRED ONLY IN COMPLIANCE WITH THE REQUIREMENTS OF SUCH
ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS AND SUBJECT TO THE PROVISIONS
OF THE PURCHASE AGREEMENT, DATED AS OF FEBRUARY 9, 2007, AMONG MR DEFAULT
SERVICES LLC (“MR”), E-DEFAULT SERVICES LLC, (“E-DEFAULT”),
STATEWIDE TAX AND TITLE SERVICES LLC (“STT”), STATEWIDE PUBLISHING
SERVICES LLC (“STATEWIDE PUBLISHING” AND TOGETHER WITH MR, E-


 


23

















 


DEFAULT
AND STT, ON A JOINT AND SEVERAL BASIS, THE “BORROWERS”), MR PROCESSING
HOLDING CORP. (“HOLDINGS”), CERTAIN SUBSIDIARIES OF BORROWERS, THE
LENDERS PARTY THERETO FROM TIME TO TIME AND THE ROYAL BANK OF SCOTLAND PLC (THE
“PURCHASE AGREEMENT”).  A COPY OF
THE PURCHASE AGREEMENT IS AVAILABLE AT THE OFFICES OF EACH OF THE BORROWERS.


 


“THIS
NOTE AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE
MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AND
INTERCREDITOR AGREEMENT (THE “SUBORDINATION AGREEMENT”) DATED AS OF
FEBRUARY 9, 2007, AMONG THE ROYAL BANK OF SCOTLAND PLC, IN ITS CAPACITY AS A
PURCHASER OF A NOTE, OTHER LENDERS UNDER THE NOTE PURCHASE AGREEMENT GOVERNING
THIS NOTE FROM TIME TO TIME PARTY THERETO, HOLDINGS, THE BORROWERS, CERTAIN
SUBSIDIARIES OF THE BORROWERS, THE ROYAL BANK OF SCOTLAND PLC, IN ITS CAPACITY
AS ADMINISTRATIVE AGENT (TOGETHER WITH ITS SUCCESSORS AND ASSIGNS, THE “ADMINISTRATIVE
AGENT”) AND COLLATERAL AGENT (TOGETHER WITH ITS SUCCESSORS AND ASSIGNS, THE
“COLLATERAL AGENT”) FOR THE LENDERS UNDER THE SENIOR CREDIT AGREEMENT
(AS DEFINED BELOW), TO THE INDEBTEDNESS (INCLUDING INTEREST) OWED BY THE
BORROWERS PURSUANT TO THAT CERTAIN CREDIT AND GUARANTY AGREEMENT DATED AS OF
FEBRUARY 9, 2007 AMONG THE BORROWERS, HOLDINGS, CERTAIN SUBSIDIARIES OF
BORROWERS, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, AND THE LENDERS FROM
TIME TO TIME PARTY THERETO (THE “SENIOR CREDIT AGREEMENT”), AS SUCH
SENIOR CREDIT AGREEMENT MAY BE AMENDED, SUPPLEMENTED, RESTATED OR
OTHERWISE MODIFIED FROM TIME TO TIME AND TO INDEBTEDNESS REFINANCING THE
INDEBTEDNESS UNDER THAT AGREEMENT AS CONTEMPLATED BY THE SUBORDINATION
AGREEMENT; AND EACH HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY
AGREES TO BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.


 


THIS
NOTE IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT WITHIN THE MEANING OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND THE REGULATIONS
THEREUNDER.  UPON ANY LENDER’S REQUEST, THE CHIEF FINANCIAL OFFICER
OF THE BORROWERS WILL PROVIDE TO SUCH LENDER INFORMATION REGARDING THIS
NOTE’S ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO
MATURITY.”


 


Section 2.08                            Registration, Registration of Transfer and Exchange.


 


(a)                          Security
Register.  The
Borrowers shall maintain a register (the “Security Register”) for the
registration of transfer of the Notes. 
The name and address of the Lender of each Note, records of any
transfers of the Notes and the name and address of any transferee of a Note
shall be entered


 


24

















 


in the Security Register and the Borrowers shall, promptly upon receipt
thereof, update the Security Register to reflect all information received from
a Lender.  There shall be no more than
one Lender for each Note, including all beneficial interests therein.


 


(b)                                 Registration of
Transfer.  Upon
surrender for registration of transfer of any Note at the office or agency of the
Borrowers, the Borrowers shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Notes, of any authorized
denominations and like aggregate principal amount.


 


(c)                                  Exchange.  At the option of the Lender, Notes may be
exchanged for other Notes, of any authorized denominations and of like
aggregate principal amount, upon surrender of the Notes to be exchanged at such
office or agency.  Whenever any Notes are
so surrendered for exchange, the Borrowers shall execute and deliver the Notes
that the Lender making the exchange is entitled to receive.


 


(d)                                 Effect of
Registration of Transfer or Exchange.  All Notes issued upon any registration of
transfer or exchange of Notes shall be the valid obligations of the Borrowers,
evidencing the same indebtedness, and entitled to the same benefits under this
Agreement, as the Notes surrendered upon such registration of transfer or
exchange.


 


(e)                                  Requirements;
Charges.  Every Note presented or
surrendered for registration of transfer or for exchange shall (if so required
by the Borrowers) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Borrowers duly executed, by the Lender
thereof or its attorney duly authorized in writing.  No service charge shall be made for any
registration of transfer or exchange of Notes, but the Borrowers may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Notes, other than (i) any transfers by the Purchaser in connection with
the syndication of the Notes by the Purchaser or (ii) exchanges not
involving any transfer.


 


(f)                                    Certain
Limitations.  If the Notes
are to be redeemed in part, the Borrowers shall not be required (i) to
issue, register the transfer of or exchange any Note during a period beginning
at the opening of business 15 Business Days before the day of the mailing of a
notice of redemption of any such Notes selected for redemption under Section 9.02
and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part.


 


Section 2.09                            Transfer Restrictions.


 


No
Note may be sold, pledged, transferred or otherwise disposed of (any such sale,
transfer or other disposition is herein referred to as a “sale”), other
than in compliance with Section 12.05, Section 12.06
and this Section 2.09. 
Notwithstanding the foregoing, a pledge by any Lender of a Note shall
not constitute a sale unless and until such pledge shall be realized upon.  Each transferee or assignee by acceptance of
a Note agrees to be bound by the terms and provisions of this Agreement and
shall have the rights and benefits of a party hereto and shall be a “Lender”
for all purposes and shall be entitled to enforce the provisions hereof.


 


Section 2.10                            Mutilated, Destroyed, Lost and Stolen Notes.


 


If
any mutilated Note is surrendered to the Borrowers, the Borrowers at their
expense shall execute and deliver in exchange therefor a new Note of the same
principal amount and bearing a number not contemporaneously outstanding.


 


25

















 


If
there shall be delivered to any Borrower (a) evidence to its satisfaction
of the destruction, loss or theft of any Note (which evidence shall be, in the
case of an Institutional Investor, notice from such Institutional Investor of
such ownership and such destruction, loss or theft) and (b) such security
or indemnity as may be reasonably required by the Borrowers to save each of
them and any agent harmless (provided that if the Lender for such Note is, or
is a nominee for, the Purchaser or another Lender with a minimum net worth of
at least $50,000,000 or a Qualified Institutional Buyer, such Person’s own
unsecured agreement of indemnity shall be deemed to be satisfactory), then, in
the absence of notice that such Note has been acquired by a bona fide purchaser,
the Borrowers shall execute and deliver, in lieu of any such destroyed, lost or
stolen Note, a new Note of a like principal amount and bearing a number not
contemporaneously outstanding.


 


In
case any such mutilated, destroyed, lost or stolen Note has become or is about
to become due and payable, the Borrowers in their discretion may, instead of
issuing a new Note, pay such Note.


 


Every
new Note issued pursuant to this Section 2.10 in lieu of any
destroyed, lost or stolen Note shall, without duplication of the original Note,
constitute an original additional contractual obligation of the Borrowers,
whether or not the destroyed, lost or stolen Note shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Notes duly issued
hereunder.


 


The
provisions of this Section 2.10 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.


 


Section 2.11                            Persons Deemed Owners.


 


Prior
to due presentment of a Note for registration of transfer, the Borrowers and
any agent of the Borrowers shall treat the Person in whose name such Note is
registered as the owner of such Note for the purpose of receiving payment of
principal of and interest on such Note and for all other purposes whatsoever,
whether or not such Note be overdue and neither any Borrower nor any agent of
any Borrower shall be affected by notice or knowledge to the contrary.


 


Section 2.12                            Cancellation.


 


All
Notes surrendered for payment, redemption, registration of transfer or exchange
shall, if surrendered to any Person other than the Borrowers, be delivered to
the Borrowers and shall be promptly canceled by it.  The Borrowers shall cancel any Notes
previously issued and delivered hereunder, which the Borrowers may have
reacquired.


 


Section 2.13                            Joint
and Several Liability.


 


(a)                                  Joint and
Several Liability.  All
Obligations of Borrowers under this Agreement and the other Loan Documents
shall be joint and several Obligations of each Borrower.  Anything contained in this Agreement and the
other Loan Documents to the contrary notwithstanding, the Obligations of each Borrower
hereunder, solely to the extent that such Borrower did not receive proceeds of
the issuance of Notes hereunder, shall be limited to a maximum aggregate amount
equal to the largest amount that would not render its Obligations hereunder
subject to avoidance as a fraudulent transfer or conveyance under §548 of the
Bankruptcy Code, 11 U.S.C. §548, or any applicable provisions of comparable
state law (collectively, the “Fraudulent
Transfer Laws”), in each case
after giving effect to all other liabilities of such Borrower, contingent or
otherwise, that are relevant under the Fraudulent Transfer Laws (specifically
excluding, however, any liabilities of such Borrower in respect of intercompany


 


26

















 


Indebtedness
to any other Loan Party or Affiliates of any other Loan Party to the extent
that such Indebtedness would be discharged in an amount equal to the amount
paid by such Loan Party hereunder) and after giving effect as assets to the
value (as determined under the applicable provisions of the Fraudulent Transfer
Laws) of any rights to subrogation or contribution of such Borrower pursuant to
(i) applicable law or (ii) any agreement providing for an equitable
allocation among such Borrower and other Affiliates of any Loan Party of
Obligations arising under Guaranties by such parties.


 


(b)                                 Subrogation.  Until the Obligations shall have been paid in
full in Cash (except for continuing indemnity obligations), each Borrower shall
withhold exercise of any right of subrogation, contribution or any other right
to enforce any remedy which it now has or may hereafter have against the other
Borrowers or any other guarantor of the Obligations.  Each Borrower further agrees that, to the
extent the waiver of its rights of subrogation, contribution and remedies as
set forth herein is found by a court of competent jurisdiction to be void or
voidable for any reason, any such rights such Borrower may have against the
other Borrowers, any collateral or security or any such other guarantor, shall
be junior and subordinate to any rights the Lenders may have against the other
Borrower, any such collateral or security, and any such other guarantor.  Borrowers together desire to allocate among
themselves, in a fair and equitable manner, their Obligations arising under
this Agreement and the other Loan Documents. 
Accordingly, in the event any payment or distribution is made on any
date by any Borrower under this Agreement and the other Loan Documents (a “Funding
Borrower”) that exceeds its Obligation Fair Share (as defined below) as of
such date, that Funding Borrower shall be entitled to a contribution from the
other Borrowers in the amount of such other Borrowers’ Obligation Fair Share
Shortfall (as defined below) as of such date, with the result that all such
contributions will cause each Borrower’s Obligation Aggregate Payments (as
defined below) to equal its Obligation Fair Share as of such date.  “Obligation Fair Share” means, with
respect to a Borrower as of any date of determination, an amount equal to (i) the
ratio of (X) the Obligation Fair Share Contribution Amount (as defined
below) with respect to such Borrower to (Y) the aggregate of the
Obligation Fair Share Contribution Amounts with respect to all Borrowers, multiplied
by (ii) the aggregate amount paid or distributed on or before such
date by all Funding Borrowers under this Agreement and the other Loan Documents
in respect of the Obligations guarantied. 
“Obligation Fair Share Shortfall” means, with respect to a
Borrower as of any date of determination, the excess, if any, of the Obligation
Fair Share of such Borrower over the Obligation Aggregate Payments of such
Borrower.  “Obligation Fair Share
Contribution Amount” means, with respect to a Borrower as of any date of
determination, the maximum aggregate amount of the Obligations of such Borrower
under this Agreement and the other Loan Documents that would not render its
Obligations hereunder or thereunder subject to avoidance as a fraudulent
transfer or conveyance under any Fraudulent Transfer Law; provided that,
solely for purposes of calculating the Obligation Fair Share Contribution
Amount with respect to any Borrower for purposes of this Section 2.13,
any assets or liabilities of such Borrower arising by virtue of any rights to
subrogation, reimbursement or indemnification or any rights to or Obligations
of contribution hereunder shall not be considered as assets or liabilities of
such Borrower.  “Obligation Aggregate
Payments” means, with respect to a Borrower as of any date of
determination, an amount equal to (i) the aggregate amount of all payments
and distributions made on or before such date by such Borrower in respect of
this Agreement and the other Loan Documents (including in respect of this Section 2.13)
minus (ii) the aggregate amount of all payments received on or
before such date by such Borrower from the other Borrowers as contributions
under this Section 2.13.  The
amounts payable as contributions hereunder shall be determined as of the date
on which the related payment or distribution is made by the applicable Funding
Borrower.  The allocation among the
Borrowers of their Obligations as set forth in this Section 2.13
shall not be construed in any way to limit the liability of any Borrower
hereunder or under any Loan Document.


 


(c)                                  Representative
of Borrowers.  Each of
E-Default, STT and Statewide Publishing hereby appoints MR as its agent,
attorney-in-fact and representative for the purpose of (i) the giving and
receipt of notices by and to Borrowers under this Agreement, (ii) the
delivery of all documents, reports,


 


27

















 


financial
statements and written materials required to be delivered by Borrowers under
this Agreement, and (iii) all other purposes incidental to any of the
foregoing.  Each of E-Default, STT and
Statewide Publishing agrees that any action taken by MR as the agent,
attorney-in-fact and representative of E-Default, STT or Statewide Publishing
shall be binding upon E-Default, STT or Statewide Publishing, as applicable, to
the same extent as if directly taken by E-Default, STT or Statewide Publishing,
as applicable.


 


ARTICLE
THREE

CONDITIONS TO CLOSING


 


Section 3.01                            Closing Date.


 


The obligation of the
Lenders to purchase Notes at the Closing is subject to the satisfaction, or
waiver in accordance with Section 12.03, of the following
conditions on or before the Closing Date:


 


(a)                          Loan Documents.  The Purchaser shall have received sufficient
copies of each Loan Document originally executed and delivered by each
applicable Loan Party.


 


(b)                                 Representations
and Warranties.  The
representations and warranties contained herein and in the other Loan Documents
shall be true and correct in all material respects on and as of the Closing
Date to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case such representations and warranties shall have been true
and correct in all material respects on and as of such earlier date.


 


(c)                                  No Default.  No event shall have occurred and be
continuing or would result from the consummation of the Transactions that would
constitute an Event of Default or a Default or an “event of default” or
a “default”, as such terms are defined in the Senior Credit Agreement.


 


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


 


(e)                                  Organizational
and Capital Structure.  The
organizational structure and capital structure of Holdings and its Subsidiaries
shall be as set forth on Schedule 4.02. 
The Purchaser shall have received reasonably satisfactory evidence that (i) at
least a majority of the ownership interests in Holdings shall be owned by the
Sponsor, (ii) the Sponsor shall control the Board of Directors of Holdings
and (iii) all ownership interests in each Borrower’s Subsidiaries shall be
owned by the applicable Borrower or its Subsidiaries in each case free and
clear of any lien, charge, or encumbrance not permitted hereunder.


 


28

















 


(f)                                    Consummation of
Transactions Contemplated by Related Agreements.


 


(1)   (i)  The Lenders shall be reasonably
satisfied with the Phase 1 Acquisition Agreements, and the Phase 1 Acquisition
Agreements shall not be altered, amended or otherwise changed or supplemented
or any condition therein waived in any respect materially adverse to the Lenders
without the prior written consent of Requisite Lenders and (ii) the Phase
1 Acquisitions shall have been consummated in accordance with the terms thereof
in all material respects and in compliance with applicable law and regulatory
approvals.


 


(2)  The Lenders shall
be satisfied that Holdings shall have received at least $1,000,000 from MSP
management in equity financing and at least $1,000,000 from MHS management in
equity financing, and the terms of such equity financing shall be reasonably
satisfactory to the Purchaser.


 


(3)  The Borrowers
shall have received gross proceeds of at least $110,000,000 under the Senior
Credit Agreement from the funding of the term loans thereunder, and after
giving effect to such loans, no less than $10,000,000 in unused revolving
commitments shall be available to Borrowers under the Senior Credit Agreement,
in each case on terms and conditions reasonably satisfactory to the Purchaser.


 


(g)                                 Existing
Indebtedness.  On the
Closing Date, Holdings and its Subsidiaries shall have (i) repaid in full
all existing Indebtedness (other than Indebtedness set forth on Schedule 6.01),
(ii) terminated any commitments to lend or make other extensions of credit
thereunder, (iii) delivered to the Purchaser all documents or instruments
necessary to release all Liens securing such Indebtedness or other obligations
of Holdings and its Subsidiaries thereunder being repaid on the Closing Date,
and (iv) made arrangements satisfactory to the Purchaser with respect to
the cancellation of any letters of credit outstanding thereunder or the
issuance of letters of credit to support the obligations of Holdings and its
Subsidiaries with respect thereto.


 


(h)                                         Funds Flow
Memorandum.  On or prior
to the Closing Date, Borrowers shall have delivered to the Purchaser a funds
flow memorandum in form and substance reasonably satisfactory to the Purchaser.


 


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


 


(j)                                     Financial
Statements; Projections. 
Lenders shall have received from Holdings (i) reasonably
satisfactory evidence of the financial performance of Holdings and its
Subsidiaries for the twelve-month period ended December 31, 2006, (ii) pro
forma consolidated financial statements of Holdings and its Subsidiaries as at
the Closing Date, and reflecting the consummation of the Transactions to occur
on the Closing Date, the related financings and the other transactions
contemplated by the Loan Documents to occur on or prior to the Closing Date,
which pro forma financial statements shall be in form and substance reasonably
satisfactory to the Purchaser and Lenders (the “Pro Forma Financial
Statements”), (iii) the Projections and (iv) a certification by
the chief financial officer of the Borrowers


 


29

















 


that
the Pro Forma Financial Statements and the Projections were prepared in good
faith on the basis of the assumptions stated therein, which assumptions were
believed to have been reasonable when made.


 


(k)                                  Evidence of
Insurance.  Purchaser
shall have received a certificate from Borrowers’ insurance broker or other
evidence reasonably satisfactory to it that all insurance required to be
maintained pursuant to Section 5.05 is in full force and
effect.  The Purchaser shall be
reasonably satisfied with the amount, types, and terms and conditions of all
insurance maintained by Holdings and its Subsidiaries.


 


(l)                                     Opinions of
Counsel to Loan Parties. 
Lenders and their respective counsel shall have received originally
executed copies of the favorable written opinions of Kirkland & Ellis
LLP, counsel for Loan Parties, in the form of Exhibit C and as to such
other matters as the Purchaser may reasonably request (it being acknowledged
that such opinions shall specifically exclude and be qualified by the effects
of any non-compliance with all laws concerning and/or regulating the practice
of law), dated as of the Closing Date and otherwise in form and substance
reasonably satisfactory to the Purchaser (and each Loan Party hereby instructs
such counsel to deliver such opinions to the Purchaser and Lenders).


 


(m)                               Fees.  Borrowers shall have paid to the Purchaser
the fees payable under the Fee Letter. 
The Purchaser and counsel for the Purchaser shall have received, in
accordance with Section 12.02, payment of all reasonable costs and
expenses for which invoices have been presented.


 


(n)                                 Solvency
Certificate.  On the
Closing Date, the Purchaser shall have received a Solvency Certificate from the
chief financial officer of Holdings and each Borrower demonstrating that after
giving effect to the consummation of the Transactions, Holdings, the Borrowers
and the other Guarantors, taken as a whole, are and will be Solvent.


 


(o)                                 Closing Date
Certificate.  Holdings
and each Borrower shall have delivered to the Purchaser an originally executed
Closing Date Certificate, together with all attachments thereto.


 


(p)                                 Closing Date.  Borrowers shall have issued the Notes to the
Lenders on or before February 28, 2007.


 


(q)                                 No Litigation.  There shall not exist any action, suit,
investigation, litigation or proceeding or other legal or regulatory
developments, pending or, to the knowledge of an Authorized Officer of Holdings
or any Borrower, threatened in any court or before any arbitrator or
Governmental Authority that, in the reasonable opinion of the Purchaser, singly
or in the aggregate, materially impairs the Transactions, the financing thereof
or any of the other transactions contemplated by the Loan Documents or the
Related Agreements, or that could have a Material Adverse Effect.


 


(r)                                    Services
Agreement.  Each of the
Services Agreements shall be in full force and effect, and each of the MSP
Services Agreement and the MHS Services Agreement shall not be inconsistent in
any material respect with the MR Services Agreement.


 


(s)                                  Management
Committee of MR Law.  The
Management Committee of MR Law shall be limited to three people and shall
consist of Daniel Phelan, Penni Alper and Gee Aldridge.


 


(t)                                    Intellectual
Property.  The
Purchaser shall be reasonably satisfied that Borrowers have the right to use
all Intellectual Property to be used by the Borrowers through ownership,
licensing or otherwise.


 


30














 


(u)                         Completion of
Proceedings.  All
partnership, corporate and other proceedings taken or to be taken in connection
with the transactions contemplated hereby and all documents incidental thereto
shall be satisfactory in form and substance to the Purchaser and its counsel,
and the Purchaser and its counsel shall have received all such counterpart
originals or certified copies of such documents as the Purchaser may reasonably
request.


 


(v)                         Letter of
Direction.  The
Purchaser shall have received duly executed originals of a letter of direction
from Borrowers addressed to the Purchaser, on behalf of itself and the Lenders,
with respect to the disbursement on the Closing Date of the proceeds of the
Notes issued on such date.


 


(w)                       Patriot Act.  The Lenders shall have received all
documentation and other information required by bank regulatory authorities
under applicable “know your customer” and anti-money laundering rules and
regulations, including without limitation the Patriot Act.


 


(x)                           Leverage Ratios.  The Senior Leverage Ratio shall not be
greater than 3.6:1.0 and the Total Leverage Ratio shall not be greater than
5.3:1.0, in each case (i) after giving pro forma effect to the incurrence
of the Initial Term Loans (as defined in the Senior Credit Agreement) and the
Notes and (ii) based off pro forma Consolidated Adjusted EBITDA of
Holdings and its Subsidiaries for the twelve month period ended at least 30
days prior to the Closing Date, giving effect to the Phase 1 Acquisitions.


 


Each
Lender, by delivering its signature page to this Agreement and purchasing
the Notes on the Closing Date, shall be deemed to have acknowledged receipt of,
and consented to and approved, each Loan Document and each other document
required to be approved by the Requisite Lenders, the Purchaser or Lenders, as
applicable on the Closing Date.


 


ARTICLE
FOUR

REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTIES


 


In
order to induce the Lenders to enter into this Agreement and to purchase the
Notes, each Loan Party represents and warrants to each Lender, on the Closing
Date, that the following statements are true and correct (it being understood
and agreed that the representations and warranties made on the Closing Date are
deemed to be made concurrently with the consummation of the Transactions):


 


Section 4.01                            Organization; Requisite Power and Authority; Qualification.


 


Each
of Holdings and its Subsidiaries (a) is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization as
identified in Schedule 4.01, (b) has all requisite organizational
power and authority to own and operate its properties, to carry on its business
as now conducted and as proposed to be conducted, to enter into the Loan
Documents to which it is a party and to carry out the transactions contemplated
thereby, and (c) is qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever necessary to carry out
its business and operations, except in jurisdictions where the failure to be so
qualified or in good standing has not had, and could not be reasonably expected
to have, a Material Adverse Effect.


 


Section 4.02                            Capital Stock and Ownership.


 


The
Capital Stock of each of Holdings and its Subsidiaries has been duly authorized
and validly issued and is fully paid and non-assessable.  Except as set forth on Schedule 4.02, as of
the Closing Date, there is no existing option, warrant, call, right, commitment
or other agreement to which Holdings or any of its Subsidiaries is a party
requiring, and there is no membership interest or other


 


31

















 


Capital Stock of Holdings or any of its
Subsidiaries outstanding which upon conversion or exchange would require, the
issuance by Holdings or any of its Subsidiaries of any additional membership
interests or other Capital Stock of Holdings or any of its Subsidiaries or
other Securities convertible into, exchangeable for or evidencing the right to
subscribe for or purchase, a membership interest or other Capital Stock of
Holdings or any of its Subsidiaries. 
Schedule 4.02 correctly sets forth the ownership interest of
Holdings and each of its Subsidiaries in their respective Subsidiaries as of
the Closing Date after giving effect to the Transaction.


 


Section 4.03                            Due Authorization.


 


The
execution, delivery and performance of the Loan Documents have been duly
authorized by all necessary action on the part of each Loan Party that is a
party thereto.


 


Section 4.04                            No Conflict.


 


The
execution, delivery and performance by Loan Parties of the Loan Documents to
which they are parties and the consummation of the transactions contemplated by
the Loan Documents do not and will not (a) violate any provision of any
law or any governmental rule or regulation applicable to Holdings or any
of its Subsidiaries, any of the Organizational Documents of Holdings or any of
its Subsidiaries, or any order, judgment or decree of any court or other agency
of government binding on Holdings or any of its Subsidiaries; (b) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any material Contractual Obligation of Holdings or any of
its Subsidiaries, (c) result in or require the creation or imposition of
any Lien upon any of the properties or assets of Holdings or any of its
Subsidiaries (other than any Liens created under any of the Senior Debt
Documents); or (d) require any approval of stockholders, members or
partners or any approval or consent of any Person under any material
Contractual Obligation of Holdings or any of its Subsidiaries, except for (y) such
approvals or consents which will be obtained on or before the Closing Date and
disclosed in writing to the Purchaser or (z) solely with respect to
Contractual Obligations, the failure of which to obtain would not reasonably be
expected to result in a Material Adverse Effect.


 


Section 4.05                            Governmental Consents.


 


The
execution, delivery and performance by Loan Parties of the Loan Documents to
which they are parties and the consummation of the transactions contemplated by
the Loan Documents do not and will not require any registration with, consent
or approval of, or notice to, or other action to, with or by, any Governmental
Authority except as otherwise set forth in the Phase 1 Acquisition Agreements
and except as have been obtained or made as of the Closing Date.


 


Section 4.06                            Binding Obligation.


 


Each
Loan Document has been duly executed and delivered by each Loan Party that is a
party thereto and is the legally valid and binding obligation of such Loan
Party, enforceable against such Loan Party in accordance with its respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors’ rights generally
or by equitable principles relating to enforceability.


 


Section 4.07                            Pro Forma Financial Statements.


 


The
Pro Forma Financial Statements were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were believed to have been
reasonable when made.  As of the Closing
Date, neither Holdings nor any of its Subsidiaries has any material contingent
liability or 


 


32

















 


liability
for taxes, long-term lease or unusual forward or long-term commitment that is
not reflected in the Pro Forma Financial Statements.


 


Section 4.08                            Projections.


 


On
and as of the Closing Date, the projections of Holdings and its Subsidiaries on
a quarterly basis for the first year following the Closing Date and on an
annual basis for six years following the Closing Date (the “Projections”)
are based on good faith estimates and assumptions made by the management of
Holdings; provided the Projections are not to be viewed as facts and
that actual results during the period or periods covered by the Projections may
differ from such Projections and that the differences may be material.


 


Section 4.09                            No Material Adverse Change.


 


From
December 31, 2006 until the Closing Date, no event, circumstance or change
occurred that has caused or evidences, either in any case or in the aggregate,
a Material Adverse Effect.


 


Section 4.10                            No Restricted Junior Payments.


 


Since
December 31, 2006 through and including the Closing Date, neither Holdings
nor any of its Subsidiaries has directly or indirectly declared, ordered, paid
or made, or set apart any sum or property for, any Restricted Junior Payment or
agreed to do so except as permitted pursuant to Section 6.05.


 


Section 4.11                            Adverse Proceedings, etc.


 


There
are no Adverse Proceedings, individually or in the aggregate, that could
reasonably be expected to have a Material Adverse Effect.  Neither Holdings nor any of its Subsidiaries (a) is
in violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or (b) is subject to or in default with respect
to any final judgments, writs, injunctions, decrees, rules or regulations
of any court or any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.


 


Section 4.12                            Payment of Taxes.


 


Except
as otherwise permitted under Section 5.03, all federal and other material
tax returns and reports of Holdings and its Subsidiaries required to be filed
by any of them have been timely filed, and all taxes shown on such tax returns
to be due and payable and all assessments, fees and other governmental charges
upon Holdings and its Subsidiaries and upon their respective properties,
assets, income, businesses and franchises which are due and payable have been
paid when due and payable.  Holdings knows
of no proposed tax assessment (other than increases in tax rates generally)
against Holdings or any of its Subsidiaries that is not being actively
contested by Holdings or such Subsidiary in good faith and by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided on the books of Holdings and/or its Subsidiaries, as the case may
be, except for any assessments which would not reasonably be expected to result
in a Material Adverse Effect; and as of the Closing Date no tax Lien has been
filed, and to the knowledge of an Authorized Officer of Holdings, no claim is
being asserted, with respect to any such tax, fee or other charge.


 


33

















 


Section 4.13                            Properties.


 


(a)                  Title.  Each of Holdings and its Subsidiaries has (i) good,
sufficient and legal title to (in the case of fee interests in real property), (ii) valid
leasehold interests in (in the case of leasehold interests in real or personal
property), and (iii) good title to (in the case of all other personal
property, including, but not limited to, Intellectual Property and licenses)
all properties and assets necessary for the operation of their businesses, in
each case except for assets disposed of since the date of such financial
statements in the ordinary course of business or as otherwise permitted under Section 6.09.  Except as permitted by this Agreement, all
such properties and assets are free and clear of Liens.


 


(b)                 Real Estate.  As of the Closing Date, Schedule 4.13
contains a true, accurate and complete list of (i) all Real Estate Assets,
and (ii) all leases, subleases or assignments of leases (together with all
amendments, modifications, supplements, renewals or extensions of any thereof)
affecting each Real Estate Asset of any Loan Party, regardless of whether such
Loan Party is the landlord or tenant (whether directly or as an assignee or
successor in interest) under such lease, sublease or assignment.  Each agreement listed in clause (ii) of
the immediately preceding sentence is in full force and effect and Holdings
does not have knowledge of any default that has occurred and is continuing
thereunder, and each such agreement constitutes the legally valid and binding
obligation of each applicable Loan Party, enforceable against such Loan Party
in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors’ rights generally or by equitable principles.


 


Section 4.14                            Environmental Matters.


 


Neither
Holdings nor any of its Subsidiaries nor any of their respective Facilities or
operations are subject to any outstanding written order, consent decree or
settlement agreement with any Person relating to any Environmental Law, any
Environmental Claim, or any Hazardous Materials Activity that, individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.  As of the Closing Date, neither
Holdings nor any of its Subsidiaries has received any letter or request
for information under Section 104 of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any
comparable state law.  There are and, to
the knowledge of any Authorized Officers of Holdings and its Subsidiaries, have
been, no conditions, occurrences, or Hazardous Materials Activities which could
reasonably be expected to form the basis of an Environmental Claim against
Holdings or any of its Subsidiaries that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.  As of the Closing Date, neither Holdings nor
any of its Subsidiaries nor, to the knowledge of any Authorized Officers of any
Loan Party, any predecessor of Holdings or any of its Subsidiaries has filed
any notice under any Environmental Law indicating past or present treatment of
Hazardous Materials at any Facility, and none of Holdings’ or any of its
Subsidiaries’ operations involves the generation, transportation, treatment,
storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts
260-270 or any state equivalent. 
Compliance with all current or reasonably foreseeable future
requirements pursuant to or under Environmental Laws could not be reasonably
expected to have, individually or in the aggregate, a Material Adverse
Effect.  No event or condition has
occurred or is occurring with respect to Holdings or any of its Subsidiaries
relating to any Environmental Law, any Release of Hazardous Materials, or any
Hazardous Materials Activity which individually or in the aggregate has had, or
could reasonably be expected to have, a Material Adverse Effect.


 


Section 4.15                            No Defaults.


 


Neither
Holdings nor any of its Subsidiaries is in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any of its Contractual 


 


34

















 


Obligations
(other than this Agreement), and no condition exists which could constitute
such a default, except where the consequences, direct or indirect, of such
default or defaults, if any, could not reasonably be expected to have a
Material Adverse Effect.


 


Section 4.16                            Material Contracts.


 


Schedule 4.16
contains a true, correct and complete list of all the Material Contracts in
effect on the Closing Date, and except as described thereon, all such Material
Contracts are in full force and effect in all material respects and no defaults
currently exist thereunder (other than an immaterial breach that could not
reasonably be expected to have a Material Adverse Effect).


 


Section 4.17                            Governmental Regulation.


 


Neither
Holdings nor any of its Subsidiaries is subject to regulation under the Federal
Power Act or the Investment Company Act of 1940 or under any other federal or
state statute or regulation which limits its ability to incur Indebtedness or
which otherwise renders all or any portion of the Obligations
unenforceable.  Neither Holdings nor any
of its Subsidiaries is a “registered investment company” or a company “controlled”
by a “registered investment company” or a “principal underwriter” of a “registered
investment company” as such terms are defined in the Investment Company Act of
1940.


 


Section 4.18                            Margin Stock.


 


Neither
Holdings nor any of its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing
or carrying any Margin Stock.  No part of
the proceeds from the issuance and purchase of the Notes will be used by the
Borrowers to purchase or carry any such margin stock or to extend credit to
others for the purpose of purchasing or carrying any such margin stock or for
any purpose that violates, or is inconsistent with, the provisions of
Regulation T, U or X of said Board of Governors.


 


Section 4.19                            Employee Matters.


 


Neither
Holdings nor any of its Subsidiaries is engaged in any unfair labor practice
that could reasonably be expected to have a Material Adverse Effect.  There is (a) no unfair labor practice
complaint pending against Holdings or any of its Subsidiaries, or to the best
knowledge of any Authorized Officers of Holdings and Borrowers, threatened
against any of them before the National Labor Relations Board and no grievance
or arbitration proceeding arising out of or under any collective bargaining
agreement that is so pending against Holdings or any of its Subsidiaries or to
the best knowledge of any Authorized Officers of Holdings and Borrowers,
threatened against any of them, (b) no strike or work stoppage in
existence or threatened involving Holdings or any of its Subsidiaries,  and (c) to the best knowledge of any
Authorized Officers of Holdings and Borrowers, no union representation question
existing with respect to the employees of Holdings or any of its Subsidiaries
and, to the best knowledge of any Authorized Officers of Holdings and
Borrowers, no union organization activity that is taking place, except (with
respect to any matter specified in clause (a), (b) or (c) above,
either individually or in the aggregate) such as is not reasonably likely to
have a Material Adverse Effect.


 


Section 4.20                            Employee Benefit Plans.


 


Holdings,
each of its Subsidiaries and each of their respective ERISA Affiliates are in
compliance with all applicable provisions and requirements of ERISA and the
Internal Revenue Code and the regulations and published interpretations
thereunder in all material respects with respect to each Employee Benefit Plan,
and have performed all their obligations under each Employee Benefit Plan.  


 


35

















 


Each
Employee Benefit Plan which is intended to qualify under Section 401(a) of
the Internal Revenue Code has received a favorable determination letter from
the Internal Revenue Service indicating that such Employee Benefit Plan is so
qualified and nothing has occurred subsequent to the issuance of such
determination letter which would cause such Employee Benefit Plan to lose its
qualified status.  No material liability
to the PBGC (other than required premium payments), the Internal Revenue
Service, any Employee Benefit Plan or any trust established under Title IV of
ERISA has been or is expected to be incurred by Holdings, any of its
Subsidiaries or any of their ERISA Affiliates. 
No ERISA Event has occurred or is reasonably expected to create a
material liability of Holdings or any of its Subsidiaries.  Except to the extent required under Section 4980B
of the Internal Revenue Code or similar state laws, no Employee Benefit Plan
provides health or welfare benefits (through the purchase of insurance or otherwise)
for any retired or former employee of Holdings, any of its Subsidiaries or any
of their respective ERISA Affiliates. 
The present value of the aggregate benefit liabilities under each
Pension Plan sponsored, maintained or contributed to by Holdings, any of its
Subsidiaries or any of their ERISA Affiliates (determined as of the end of the
most recent plan year on the basis of the actuarial assumptions specified for
funding purposes in the most recent actuarial valuation for such Pension Plan),
did not exceed the aggregate current value of the assets of such Pension
Plan.  As of the most recent valuation
date for each Multiemployer Plan for which the actuarial report is available,
the potential liability of Holdings, its Subsidiaries and their respective
ERISA Affiliates for a complete withdrawal from such Multiemployer Plan (within
the meaning of Section 4203 of ERISA), when aggregated with such potential
liability for a complete withdrawal from all Multiemployer Plans, based on
information available pursuant to Section 4221(e) of ERISA is
zero.  Holdings, each of its Subsidiaries
and each of their ERISA Affiliates have complied with the requirements of Section 515
of ERISA with respect to each Multiemployer Plan and are not in material “default”
(as defined in Section 4219(c)(5) of ERISA) with respect to payments
to a Multiemployer Plan.


 


Section 4.21                            Certain Fees.


 


Except
as set forth on Schedule 4.21, no broker’s or finder’s fee or commission will
be payable with respect to any of the transactions contemplated by the Related
Agreements except as payable to the Purchaser, the Lenders, the Senior Lenders
and the Agents (as defined in the Senior Credit Agreement).


 


Section 4.22                            Solvency.


 


The
Loan Parties, taken as a whole, are and, upon the incurrence of any Obligation
by any Loan Party on any date on which this representation and warranty is
made, will be, Solvent.


 


Section 4.23                            Related Agreements.


 


(a)                  Delivery.  Holdings and Borrowers have delivered to
Purchaser complete copies of (i) each Related Agreement and of all
exhibits and schedules thereto as of the date hereof and (ii) copies of
any material amendment, restatement, supplement or other modification to or
waiver of each Related Agreement entered into after the date hereof.


 


(b)                 Conditions
Precedent.  On the
Closing Date, (i) all of the conditions to effecting or consummating the
Transactions set forth in the Related Agreements have been duly satisfied or
waived with, in the case of any such waiver that is materially adverse to the
Lenders, the consent of the Requisite Lenders, and (ii) the Transactions
to be consummated on the Closing Date have been consummated in accordance with
the Related Agreements in all material respects and all applicable laws.


 


36

















 


Section 4.24                            Compliance with Statutes, etc.


 


Each
of Holdings and its Subsidiaries is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
Governmental Authorities, in respect of the conduct of its business and the
ownership of  its property (including
compliance with all applicable Environmental Laws with respect to any Real
Estate Asset or governing its business and the requirements of any permits
issued under such Environmental Laws with respect to any such Real Estate Asset
or the operations of Holdings or any of its Subsidiaries), except such
non-compliance that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.


 


Section 4.25                            Disclosure.


 


No
representation or warranty of any Loan Party contained in any Loan Document or
in any other documents, certificates or written statements (other than
Projections and general market information) furnished to any Lender by or on
behalf of Holdings or any of its Subsidiaries for use in connection with the
transactions contemplated hereby, when taken as a whole, contains any untrue
statement of a material fact or omits to state a material fact (known to an
Authorized Officer of Holdings or any Borrower, in the case of any document not
furnished by any of them) necessary in order to make the statements contained
herein or therein not materially misleading in light of the circumstances in
which the same were made.  Any
Projections and pro forma financial information contained in such materials are
based upon good faith estimates and assumptions believed by Holdings or any
Borrower to have been reasonable at the time made, it being recognized by
Lenders that such projections as to future events are not to be viewed as facts
and that actual results during the period or periods covered by any such
projections may differ from the projected results.  There are no facts known (or which should
upon the reasonable exercise of diligence be known) to an Authorized Officer of
Holdings or any Borrower (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 Lenders for use in
connection with the transactions contemplated hereby.


 


Section 4.26                            Intellectual Property.


 


Each
Borrower and each of its Subsidiaries owns or possesses, or could obtain
ownership or possession of, on terms not materially adverse to it, all patents,
trademarks, service marks, trade names, copyrights, licenses and rights with
respect thereto necessary for the present conduct of its business, without any
known conflict with the rights of others, and free from any burdensome
restrictions, except where such conflicts and restrictions could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


 


Section 4.27                            No Default.


 


Each
component of the Transactions was consummated, as of the Closing Date (i) in
accordance with the respective terms of the applicable Related Agreements in
the form supplied to the Purchaser, without modification, waiver or amendment,
except those which had the prior written consent of the Purchaser or which,
neither individually nor in the aggregate, were materially adverse to the
Lenders and (ii) in compliance with all applicable laws, including,
without limitation, the Delaware General Corporation Law (to the extent
relevant), the Bankruptcy Code, all regulations of the Internal Revenue Code
and the United States Department of Labor applicable to employee stock
ownership plans, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, the corporate laws of each state in which any corporation now
controlled by Holdings is or was incorporated.


 


37

















 


Section 4.28                            Investigations, Audits, Etc.


 


Neither
Holdings nor any of its Subsidiaries is the subject of (x) any pending
review or audit by the Internal Revenue Service or any investigation by a
Governmental Authority concerning the violation or possible violation of any
law or (y) any pending litigation, judgment, action, charge, claim,
demand, suit, petition, or arbitration, in each case, which could reasonably be
expected to result in a Material Adverse Effect.


 


Section 4.29                            Agreements with Managers.


 


As
of the Closing Date, Holdings has not entered into an agreement, whether
written or oral, with any of the members of Holdings’ management or any other
officer or employee of Holdings, for the purchase by such manager, officer or
employee of any equity securities of Holdings or warrants or options to
purchase equity securities of Holdings except as provided on Schedule 4.29.


 


Section 4.30                            Subordinated Indebtedness.


 


As of the Closing Date, the Notes are the only outstanding
contractually subordinated indebtedness of Holdings and its Subsidiaries.


 


Section 4.31                            Foreign Assets Control Regulations.


 


None of the Loan Parties nor, to the best knowledge of any Authorized
Officers of Holdings and Borrowers after due inquiry, any Affiliate of any Loan
Party, is, or will be after consummation of the Transactions and application of
the proceeds of the Notes, by reason of being a “national” of a “designated
foreign country” or a “specially designated national” within the meaning of the
Regulations of the Office of Foreign Assets Control, United States Treasury
Department (31 C.F.R., Subtitle B, Chapter V), or for any other reason, in
violation of, any United States Federal Statute or Presidential Executive Order
concerning trade or other relations with any foreign country or any citizen or
national thereof.


 


Section 4.32                            Patriot Act.


 


To the extent applicable, each Loan Party is in compliance, in all
material respects, with (i) the Trading with the Enemy Act, as amended,
and each of the foreign assets control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other
enabling legislation or executive order relating thereto, and (ii) the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA Patriot Act of 2001) (the “Patriot Act”).  No part of the proceeds of the Notes 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.


 


Section 4.33                            RICO.


 


No
Loan Party is engaged in or has engaged in any course of conduct that could
reasonably be expected to subject any of their respective Properties to any
Lien, seizure or other forfeiture under any criminal law, racketeer influenced
and corrupt organizations law, civil or criminal, or other similar laws.


 


38

















 


Section 4.34                            Unauthorized UCC Filings.


 


None of MR Law, MSP, MHS, any Borrower nor any of their respective
Affiliates has granted a Lien in favor of any Person named on such UCC
financing Statements as a creditor over the collateral that is described in the
UCC financing statements referenced on Schedule 4.34 hereto. None of MR Law,
MSP, MHS, any Borrower nor any of their respective Affiliates has incurred any
Indebtedness from or with respect to any Person named in such UCC financing
statements as a creditor.  No such creditor
has legal title, or any other property interest, in any such collateral.


 


Section 4.35                            Private Offering; No Integration or General Solicitation.


 


None
of the Loan Parties nor anyone acting on behalf of any of them has offered the
Notes for sale to, or solicited any offer to buy the Notes from, or otherwise
approached or negotiated in respect thereof with, any Person other than the
Purchaser and not more than ten (10) other Institutional Investors
including the Lenders, and no Loan Party nor anyone acting on behalf of any of
them has taken or will take any action which would subject the issuance or sale
of any of the Notes to the provisions of Section 5 of the Securities Act
or violate the provisions of any state securities or blue sky laws of any
applicable jurisdiction.  Subject to
compliance by the Lenders with the representations and warranties set forth in Section 11.01
and with the procedures set forth in Sections 12.05 and 12.06, it
is not necessary in connection with the offer, issue, sale and delivery of the
Notes to the Initial Lenders in the manner contemplated by this Agreement and
the other Loan Documents to register the Notes under the Securities Act or any
Securities or blue sky law of any applicable jurisdiction or, until such time
as the Securities are otherwise registered pursuant to an effective
registration statement under the Securities Act, to qualify an indenture
relating to the Notes under the Trust Indenture Act of 1939.


 


Neither Holdings nor any Borrower has, directly or indirectly, offered,
issued, sold or solicited any offer to buy nor will any of them, directly or
indirectly, offer, issue, sell or solicit any offer to buy, any security of a
type or in a manner which would be integrated with the sale of the Notes and
require the Notes to be registered under the Securities Act.  None of Holdings, any Borrower, their
Affiliates or any person acting on any of their behalf has engaged or will
engage in any form of general solicitation or general advertising (within the
meaning of Rule 502(c) under the Securities Act) in connection with
the offering of the Notes.


 


Section 4.36                            Additional Representations.


 


Assuming
the accuracy of the representations set forth in Section 11.01(g),
Holdings and each Borrower represents and warrants to each Lender that the
execution and delivery of this Agreement and the issuance and sale of the Notes
hereunder will not involve any transaction that is subject to the prohibitions
of Section 406(a)(1) of ERISA or in connection with which a tax could
be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Internal
Revenue Code.


 


ARTICLE FIVE

AFFIRMATIVE COVENANTS


 


Each
Loan Party covenants and agrees that until payment in full of all Obligations
(other than contingent indemnity obligations not then due and payable), each
Loan Party shall perform, and shall cause each of its Subsidiaries to perform,
all covenants in this Article Five.


 


39














 


Section 5.01                            Financial Statements and Other Reports.


 


Holdings will deliver to the Lenders:


 


(a)                  Monthly Reports.  Within (i) forty-five (45) days after January 31,
2007 and Feburary 28, 2007 and (ii) within thirty (30) days after the end
of each month thereafter, the consolidated balance sheet of Holdings and its
Subsidiaries as at the end of such month and the related consolidated
statements of income and cash flows of Holdings and its Subsidiaries for such
month and for the period from the beginning of the then current Fiscal Year to
the end of such month (on a pro forma basis giving effect to the consummation
of the Transactions with respect to the February 28, 2007 financial
statements), setting forth in each case in comparative form the corresponding figures
for the corresponding periods of the previous Fiscal Year, if any (it being
understood that such corresponding figures will be drawn from the Pro Forma
Financial Statements for any period completed prior to the Closing Date), and
the corresponding figures from the Financial Plan for the current Fiscal Year,
to the extent prepared on a monthly basis, all in reasonable detail, together
with a Financial Officer Certification and a Narrative Report with respect
thereto;


 


(b)                 Reserved;


 


(c)                  Annual Financial
Statements.  Within (i) one
hundred twenty (120) days after the end of the Fiscal Year ended December 31,
2006 and (ii) ninety (90) days after the end of each Fiscal Year
thereafter, (A) the consolidated balance sheets of Holdings and its
Subsidiaries as at the end of such Fiscal Year and the related consolidated
statements of income, stockholders’ equity and cash flows of Holdings and its
Subsidiaries for such Fiscal Year, setting forth in each case in comparative
form the corresponding figures for the previous Fiscal Year (but excluding the
Fiscal Year ending December 31, 2005), and the corresponding figures from
the Financial Plan for the Fiscal Year covered by such financial statements, in
reasonable detail, together with a Financial Officer Certification and a
Narrative Report with respect thereto; and (B) with respect to such
consolidated financial statements a report thereon of a Big Four Accounting
Firm or such other independent certified public accountants of recognized
national standing, or such as selected by Holdings, and reasonably satisfactory
to Requisite Lenders (which report shall be unqualified as to going concern and
scope of audit, and shall state that such consolidated financial statements
fairly present, in all material respects, the consolidated financial position
of Holdings and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years (except as otherwise
disclosed in such financial statements) and that the examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards) together with a
written statement by such independent certified public accountants stating that
during the normal course of the annual audit, no condition or event that
constitutes a Default or an Event of Default under Section 6.08 has
come to their attention or, if such a condition or event has come to their
attention, specifying the nature and period of existence thereof or a similar
written statement reasonably acceptable to the Requisite Lenders;


 


(d)                 Compliance
Certificate.  Together
with each delivery of financial statements of Holdings and its Subsidiaries
pursuant to Section 5.01(c) and within forty-five (45) days
after the end of each Fiscal Quarter, commencing with the Fiscal Quarter ending
March 31, 2007, a duly executed and completed Compliance Certificate;


 


(e)                  Statements of
Reconciliation after Change in Accounting Principles.  If, as a result of any change in accounting
principles and policies from those used in the preparation of the Pro Forma
Financial Statements, the consolidated financial statements of Holdings and its
Subsidiaries delivered pursuant to Section 5.01(a) or 5.01(c) will
differ in any material respect from the consolidated 


 


40

















 


financial
statements that would have been delivered pursuant to such subdivisions had no
such change in accounting principles and policies been made, then, together
with the first delivery of such financial statements after such change, one or
more statements of reconciliation for all such prior financial statements in
form and substance satisfactory to the Requisite Lenders;


 


(f)                    Notice of
Default.  Promptly upon any Authorized
Officer of Holdings or any Borrower obtaining knowledge (i) of any
condition or event that constitutes a Default or an Event of Default or that
notice has been given to Holdings or any Borrower with respect thereto; or (ii) of
the occurrence of any event or change that has caused or evidences, either in
any case or in the aggregate, a Material Adverse Effect, a certificate of its
Authorized Officers specifying the nature and period of existence of such
condition, event or change, or specifying the notice given and action taken by
any such Person and the nature of such claimed Event of Default, Default,
default, event or condition, and what action Borrowers have taken, are taking
and propose to take with respect thereto;


 


(g)                 Notice of
Litigation.  Promptly
upon any Authorized Officer of Holdings or any Borrower obtaining knowledge of (i) the
institution of, or non-frivolous threat of, any Adverse Proceeding not previously
disclosed in writing by Borrowers to Lenders, or (ii) any material
development in any Adverse Proceeding that, in the case of either (i) or (ii) if
adversely determined, could be reasonably expected to have a Material Adverse
Effect or seeks to enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the transactions
contemplated hereby, written notice thereof together with such other
information as may be reasonably available to Holdings or any Borrower to
enable Lenders and their counsel to evaluate such matters;


 


(h)                 ERISA.  (i) Promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event, a written notice
specifying the nature thereof, what action Holdings, any of its Subsidiaries or
any of their respective ERISA Affiliates has taken, is taking or proposes to
take with respect thereto and, when known, any action taken or threatened by
the Internal Revenue Service, the Department of Labor or the PBGC with respect
thereto; and (ii) upon request by Requisite Lenders, with reasonable
promptness, copies of (1) each Schedule B (Actuarial Information) to
the annual report (Form 5500 Series) filed by Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates with the Internal
Revenue Service with respect to each Pension Plan; (2) all notices
received by Holdings, any of its Subsidiaries or any of their respective ERISA
Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event; and (3) copies
of such other documents or governmental reports or filings relating to any
Employee Benefit Plan as the Requisite Lenders shall reasonably request;


 


(i)                     Financial Plan.  No later than thirty (30) days after the
beginning of each Fiscal Year, a consolidated plan and financial forecast for
such Fiscal Year and each Fiscal Year (or portion thereof) through the final
maturity date of the Notes (a “Financial Plan”), including (i) a
forecasted consolidated balance sheet and forecasted consolidated statements of
income and cash flows of Holdings and its Subsidiaries for each such Fiscal
Year, together with pro forma Compliance Certificates for each such Fiscal Year
and an explanation of the assumptions on which such forecasts are based, (ii) forecasted
consolidated statements of income and cash flows of Holdings and its
Subsidiaries for each month of the first Fiscal Year to which the Financial
Plan relates, and (iii) forecasts demonstrating adequate liquidity through
the final maturity date of the Notes, together, in each case, with an
explanation of the assumptions on which such forecasts are based all in form
and substance reasonably satisfactory to the Requisite Lenders;


 


(j)                     Insurance
Certificate(s).  On each
anniversary of the Closing Date, a certificate or certificates from the
insurance broker for Holdings and its Subsidiaries or other evidence 


 


41

















 


reasonably
satisfactory to the Requisite Lenders outlining all material
insurance coverage maintained as of such date by Holdings and its Subsidiaries;


 


(k)                                  Notice of
Change in Board of Directors.  With reasonable promptness, written notice of
any change in the Board of Directors of Holdings;


 


(l)                     Notice
Regarding Material Contracts.  Promptly, and in any event within ten (10) Business
Days (i) after any Material Contract of Holdings or any of its
Subsidiaries is terminated or amended in a manner that is materially adverse to
Holdings or such Subsidiary, as the case may be, or (ii) any new Material
Contract is entered into, a written statement describing such event, with
copies of such material amendments or new contracts, delivered to the Requisite
Lenders (to the extent such delivery is permitted by the terms of any such
Material Contract; provided, no such prohibition on delivery shall be
effective if it were bargained for by Holdings or its applicable Subsidiary
with the intent of avoiding compliance with this Section 5.01(l)),
and an explanation of any actions being taken with respect thereto;


 


(m)               Environmental Reports
and Audits.  As soon as
practicable following receipt thereof, copies of all environmental audits and
reports with respect to environmental matters at any Facility or which relate
to any environmental liabilities of Holdings or its Subsidiaries which, in any
such case, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect;


 


(n)                 Tax Notices.  Promptly upon any Authorized Officer of any
Borrower obtaining knowledge of a tax event or liability not previously
disclosed in writing by Borrowers to the Lenders which could reasonably be
expected to result in a Material Adverse Effect, written notice thereof
together with such other information as may be reasonably available to any
Borrower to enable Lenders and their counsel to evaluate such matters;


 


(o)                 Financial
Statements of MR Law, MSP and MHS. (i) So long as the MR
Services Agreement is in effect, no later than ninety (90) days after the end
of each fiscal year of MR Law, annual unaudited cash basis financial statements
of MR Law; (ii) so long as the MSP Services Agreement is in effect, no
later than ninety (90) days after the end of each fiscal year of MSP, annual
unaudited cash basis financial statements of MSP; and (iii) so long as the
MHS Services Agreement is in effect, no later than ninety (90) days after the
end of each fiscal year of MHS, annual unaudited cash basis financial
statements of MHS;


 


(p)                 Original Issue
Discount Information.  Borrowers
shall deliver to each Lender all original issue discount information relating
the Notes as may be required by applicable law or as reasonably requested by
the Lenders; and


 


(q)                 Other
Information.  (A) Promptly
upon their becoming available, copies of (i) all financial statements,
reports, notices and proxy statements sent or made available generally by
Holdings to its security holders and creditors acting in such capacity or by
any Subsidiary of Holdings to its security holders and creditors other than
Holdings or another Subsidiary of Holdings, (ii) all regular and periodic
reports and all registration statements and prospectuses, if any, filed by
Holdings or any of its Subsidiaries with any securities exchange or with the
Securities and Exchange Commission and any material reports filed by Holdings
or any of its Subsidiaries with any governmental or private regulatory
authority, (iii) all press releases and other statements made available
generally by Holdings or any of its Subsidiaries to the public concerning
material developments in the business of Holdings or any of its Subsidiaries,
and (B) such other information and data with respect to Holdings or any of
its Subsidiaries as from time to time may be reasonably requested by any
Lender.


 


42

















 


Section 5.02                            Existence.


 


Except
as otherwise permitted under Section 6.09, each Loan Party will,
and will cause each of its Subsidiaries to, at all times preserve and keep in
full force and effect its existence and all rights (charter and statutory) and
franchises, licenses, approvals and permits material to its business; provided,
no Loan Party or any of its Subsidiaries (other than Borrowers in the case of
existence) shall be required to preserve any such existence, right or
franchise, licenses and permits if an Authorized Officer or the Board of
Directors of such Person shall determine that the preservation thereof is no
longer desirable in the conduct of the business of such Person, and that the
loss thereof is not disadvantageous in any material respect to such Person or
to Lenders.


 


Section 5.03                            Payment of Taxes.


 


Each
Loan Party will, and will cause each of its Subsidiaries to, pay all material
Taxes imposed upon it or any of its properties or assets or in respect of any
of its income, businesses or franchises before any penalty or fine accrues
thereon; provided, no such Tax need be paid if it is being contested in
good faith by appropriate proceedings promptly instituted and diligently
conducted, so long as (a) adequate reserve or other appropriate provision,
as shall be required in conformity with GAAP shall have been made therefor, and
(b) in the case of a charge that has or may become a Lien against any
assets of any Loan Party, such contest proceedings conclusively operate to stay
the sale of any of such assets to satisfy such Tax.  No Loan Party will, nor will it permit any of
its Subsidiaries to, file or consent to the filing of any consolidated income
Tax return with any Person (other than Holdings or any of its Subsidiaries).


 


Section 5.04                            Maintenance of Properties.


 


Each
Loan Party will, and will cause each of its Subsidiaries to, maintain or cause
to be maintained in good repair, working order and condition, ordinary wear and
tear excepted, all material properties used or useful in the business of
Holdings and its Subsidiaries and from time to time will make or cause to be
made all appropriate repairs, renewals and replacements thereof.


 


Section 5.05                            Insurance.


 


Holdings
will maintain or cause to be maintained, with insurers who are reputable and
with respect to which Holdings has used commercially reasonable efforts both at
the time of inception of each insurance policy and upon each renewal thereof to
confirm that such insurer is financially sound: 
(i) business interruption insurance reasonably satisfactory to the
Requisite Lenders and (ii) casualty insurance, public liability insurance,
third party property damage insurance with respect to liabilities, losses or
damage in respect of the assets, properties and businesses of Holdings and its
Subsidiaries as, in the case of the insurance described in clause (ii), may
customarily be carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses, in such amounts (giving
effect to self-insurance), with such deductibles, covering such risks and
otherwise on such terms and conditions as shall be customary for such Persons.


 


Section 5.06                            Inspections.


 


Each
Loan Party will, and will cause each of its Subsidiaries to, permit, at the
Borrowers’ expense, any authorized representatives designated by the Requisite
Lenders (or, following and during the continuation of any Default or Event of
Default, any Lender) to visit and inspect any of the properties of any Loan
Party and any of its respective Subsidiaries, to inspect, copy and take
extracts from its and their financial and accounting records, and to discuss
its and their affairs, finances and accounts with its and 


 


43

















 


their
officers and independent public accountants, all at the expense of the
Borrowers, upon reasonable notice and at such reasonable times during normal
business hours and as often as may reasonably be requested; provided that (i) a
representative of the Loan Parties shall be given the opportunity to be present
for any discussions with their independent public accountants and (ii) absent
the occurrence and continuance of a Default or an Event of Default, the
Borrowers shall be responsible for the expenses for no more than one visitation
and inspection per year.


 


Section 5.07                            Lenders Meetings.


 


Holdings
and each Borrower will, upon the request of the Requisite Lenders, participate
in a meeting of the Lenders once during each Fiscal Year to be held at a
Borrower’s corporate offices (or at such other location as may be agreed to by
Borrowers and the Requisite Lenders) at such time as may be agreed to by
Borrowers and the Requisite Lenders.  The
Requisite Lenders agree to use commercially reasonable efforts to coordinate
the timing of such meeting with any similar meeting held by Holdings and each
Borrower for the benefit of the Senior Lenders.


 


Section 5.08                            Compliance with Laws.


 


Each
Loan Party will comply, and shall cause each of its Subsidiaries and all other
Persons, if any, on or occupying any Facilities to comply, with the
requirements of all applicable laws, rules, regulations and orders of any
Governmental Authority (including ERISA and all Environmental Laws),
noncompliance with which could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.


 


Section 5.09                            Environmental Disclosure.


 


Holdings will deliver to the Lenders:


 


(a)                  as soon as
practicable following receipt thereof, copies of all environmental audits,
investigations, analyses and reports of any kind or character, whether prepared
by personnel of Holdings or any of its Subsidiaries or by independent
consultants, governmental authorities or any other Persons, with respect to
significant environmental matters at any Facility or with respect to any
Environmental Claims which could be reasonably expected to have, individually
or in the aggregate, a Material Adverse Effect;


 


(b)                 promptly upon
the occurrence thereof, written notice describing in reasonable detail (1) any
Release required to be reported to any federal, state or local governmental or
regulatory agency under any applicable Environmental Laws, (2) any
remedial action taken by Holdings or any other Person in response to (A) any
Hazardous Materials Activities the existence of which has a reasonable
possibility of resulting in one or more Environmental Claims having,
individually or in the aggregate, a Material Adverse Effect, or (B) any
Environmental Claims that, individually or in the aggregate, have a reasonable
possibility of resulting in a Material Adverse Effect, and (3) Holdings’
or any Borrower’s discovery of any occurrence or condition on any real property
adjoining or in the vicinity of any Facility that could cause such Facility or
any part thereof to be subject to any material restrictions on the ownership,
occupancy, transferability or use thereof under any Environmental Laws;


 


(c)                  as soon as
practicable following the sending or receipt thereof by Holdings or any of its
Subsidiaries, a copy of any and all written communications with respect to (1) any
Environmental Claims that, individually or in the aggregate, have a reasonable
possibility of giving rise to a Material Adverse Effect, (2) any Release
required to be reported to any federal, state or local governmental or
regulatory agency, and (3) any request for information from any
governmental agency 


 


44

















 


that
suggests such agency is investigating whether Holdings or any of its
Subsidiaries may be potentially responsible for any Hazardous Materials Activity
which could be reasonably expected to have, individually or in the aggregate, a
Material Adverse Effect;


 


(d)                 prompt written
notice describing in reasonable detail (1) any proposed acquisition of
stock, assets, or property by Holdings or any of its Subsidiaries that could
reasonably be expected to (A) expose Holdings or any of its Subsidiaries
to, or result in, Environmental Claims that could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect or (B) affect
the ability of Holdings or any of its Subsidiaries to maintain in full force
and effect all material Governmental Authorizations required under any
Environmental Laws for their respective operations and (2) any proposed
action to be taken by Holdings or any of its Subsidiaries to modify current
operations in a manner that could reasonably be expected to subject Holdings or
any of its Subsidiaries to any additional material obligations or requirements
under any Environmental Laws; and


 


(e)                  with reasonable
promptness, such other documents and information as from time to time may be
reasonably requested by the Requisite Lenders in relation to any matters
disclosed pursuant to this Section 5.09.


 


Section 5.10                            Hazardous Materials Activities, etc.


 


Each
Loan Party shall promptly take, and shall cause each of its Subsidiaries
promptly to take, any and all actions necessary to (i) cure any violation
of applicable Environmental Laws by such Loan Party or its Subsidiaries that
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, and (ii) make an appropriate response to any
Environmental Claim against such Loan Party or any of its Subsidiaries and
discharge any obligations it may have to any Person thereunder where failure to
do so could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.


 


Section 5.11                            Subsidiaries.


 


In
the event that any Person becomes a Domestic Subsidiary of any Borrower, such
Borrower shall (a) promptly cause such Domestic Subsidiary to become
a Guarantor hereunder by executing and delivering to the Lenders a Counterpart
Agreement, and (b) take all such actions and execute and deliver, or cause
to be executed and delivered, all such documents, instruments, agreements, and
certificates as are similar to those described in Sections 3.01(d) and
3.01(l).  With respect to each such
Subsidiary, the applicable Borrower shall promptly send to the Lenders written
notice setting forth with respect to such Person (i) the date on which such
Person became a Subsidiary of such Borrower, and (ii) all of the data
required to be set forth in Schedules 4.01 and 4.02 with respect to all
Subsidiaries of such Borrower; provided, such written notice shall be
deemed to supplement Schedule 4.01 and 4.02 for all purposes hereof.


 


Section 5.12                            [Reserved].


 


Section 5.13                            [Reserved].


 


Section 5.14                            Further Assurances.


 


At
any time or from time to time upon the request of the Requisite Lenders, each
Loan Party will, at its expense, promptly execute, acknowledge and deliver such
further documents and do such other acts and things as the Requisite Lenders
may reasonably request in order to effect fully the purposes of the Loan
Documents.  In furtherance and not in
limitation of the foregoing, each Loan Party shall take 


 


45

















 


such
actions as the Requisite Lenders may reasonably request from time to time to
ensure that the Obligations are guarantied by the Guarantors.


 


Section 5.15                            [Reserved].


 


Section 5.16                            Books and Records.


 


The Loan Parties will, and will cause each of their Subsidiaries to,
keep proper books of record and account in which full, true and correct entries
in accordance with GAAP are made of all dealings and transactions in relation
to its business and activities.


 


Section 5.17                            Performance of Leases, Related Documents and Other Material Agreements.


 


Each Borrower and its Subsidiaries shall (a) maintain in all
material respects all leases of real and personal property and all debt
agreements and Capital Leases to which they are a party without default or
right of the lessor or other obligee to terminate or accelerate thereunder and (b) not
take any action to terminate or breach any Material Contract (other than any
immaterial breach that could not reasonably be expected to result in a Material
Adverse Effect).


 


Section 5.18                            Unauthorized UCC Filings.


 


As soon as practicable after any Authorized Officer of any Loan Party
has knowledge of the existence of a UCC financing statement filed against any
Loan Party or any Loan Party’s assets (including, without limitation, any UCC
financing statement filed against MSP or MHS on or prior to the Closing Date
covering, or purporting to cover, the assets acquired by the Borrowers pursuant
to the Phase 1 Acquisitions) that does not relate to a validly created
Permitted Lien or was not otherwise authorized by such Loan Party (including,
without limitation, the UCC financing statements referenced on Schedule 4.34
hereto in respect of which such knowledge is expressly acknowledged by the Loan
Parties), such Loan Party shall (a) promptly notify the Lenders of such
filing in writing, including therein a reasonably detailed explanation of such
filing as well as the basis upon which such Loan Party believes such filing was
filed and is unauthorized and (b) use commercially reasonable efforts to
cause such UCC financing statement to be terminated as soon as is reasonably
practicable.


 


Section 5.19                            Payment of Principal, Premium and Interest.


 


(a)                  Borrowers
shall, on a joint and several basis, duly and punctually pay the principal of
(and premium, if any, on) and all interest on the Notes, as required
herein.  The entire unpaid balance of the
Notes shall be due and payable on the Stated Maturity Date.  Borrowers shall pay interest on overdue
principal (including post-petition interest in a proceeding under any
Bankruptcy Code), and interest on overdue interest, to the extent lawful, at
the rate specified in the Notes; provided, that interest on the Notes of
each Lender payable in excess of 11.50% per annum of the outstanding principal
amount of Notes may, at the option of the Borrowers (which option must be
exercised in identical fashion with respect to each Lender), be paid in kind by
capitalizing such interest and adding it to the aggregate principal amount of
the Notes of each Lender, pro rata, effective as of the applicable Interest
Payment Date (and, in this connection, if the Borrowers choose not to pay such
interest in kind, the Borrowers shall give each Lender an irrevocable notice
that they will not exercise such right, at least three (3) Business Days
prior to any Interest Payment Date as to which such right shall not be
exercised); provided, further that, if the Default Rate is
applicable, all additional interest payable at the Default Rate (i.e., 2.00%
per annum), on the outstanding principal amount of the Notes may, at the option
of the Company (which option must be exercised in identical fashion with
respect to each Holder), be paid in kind by capitalizing such interest effective
as of the applicable Interest Payment Date (and, in this connection, if the 


 


46

















 


Borrowers
choose not to pay such additional interest in kind, the Borrowers shall give
each Lender an irrevocable notice that they will not exercise such right, at
least three (3) Business Days prior to any Interest Payment Date as to
which such right shall not be exercised).


 


(b)                 Notwithstanding
any provision of this Section 5.19 to the contrary, if the
aggregate amount of accrued and unpaid interest (including any Capitalized
Interest) and original issue discount on any Interest Payment Date following
the fifth anniversary of the issuance of the Notes, would, but for the
provisions of this paragraph, exceed an amount equal to the product of (i) the
issue price (as defined in Sections 1273(b) and 1274(a) of the
Internal Revenue Code and the regulations thereunder) of the Notes and (ii) the
yield to maturity (interpreted in accordance with Section 163(i) of
the Internal Revenue Code and the regulations thereunder) of the Notes (such
product, the “Maximum Accrual”), then all accrued and unpaid interest
(including any interest that is capitalized and added to principal in
accordance with terms hereof) and original issue discount on the Notes in
excess of an amount equal to the Maximum Accrual shall be paid in cash by
Borrowers on each such Interest Payment Date (any such payment, “Catch-Up
Interest”).


 


ARTICLE SIX

NEGATIVE COVENANTS


 


Each
Loan Party covenants and agrees that until payment in full of all Obligations
(other than contingent indemnity obligations not then due and payable), such
Loan Party shall perform, and shall cause each of its Subsidiaries to perform,
all covenants in this Article Six.


 


Section 6.01                            Indebtedness.


 


No
Loan Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or guaranty, or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except:


 


(a)                  the
Obligations;


 


(b)                 Indebtedness of
any Loan Party to any other Loan Party; provided, that any such
Indebtedness of Holdings to any other Loan Party shall constitute a Restricted
Junior Payment subject to Section 6.05 hereof; provided  further,
(i) all such Indebtedness shall be unsecured and subordinated in right of
payment to the payment in full of the Obligations pursuant to the terms of the
applicable promissory notes or an intercompany subordination agreement that in
any such case, is reasonably satisfactory to the Requisite Lenders, and (ii) any
payment by any Guarantor under any guaranty of the Obligations shall result in
a pro tanto reduction of the amount of any Indebtedness owed by such Guarantor
to such Loan Party or to any of its Subsidiaries for whose benefit such payment
is made;


 


(c)                  Indebtedness
under the Senior Debt Documents;


 


(d)                 Indebtedness
incurred by any Borrower or any of its Subsidiaries arising from agreements
providing for indemnification, adjustment of purchase price or similar
obligations, or from guaranties or letters of credit, surety bonds or
performance bonds securing the performance of 
such Borrower or any such Subsidiary pursuant to such agreements, in
connection with Permitted Acquisitions or permitted dispositions of any
business, assets or Subsidiary of Holdings or any of its Subsidiaries;


 


(e)                  Indebtedness
which may be deemed to exist pursuant to any guaranties, performance, surety,
statutory, appeal or similar obligations incurred in the ordinary course of
business;


 


47

















 


(f)                    Indebtedness in
respect of netting services, overdraft protections and otherwise in connection
with deposit accounts;


 


(g)                 Indebtedness in
respect of Taxes to the extent that payment thereof shall not be required to be
made pursuant to Section 5.03;


 


(h)                 guaranties by
any Borrower of Indebtedness of a Guarantor Subsidiary or guaranties by a
Subsidiary of any Borrower of Indebtedness of any Borrower or a Guarantor
Subsidiary with respect, in each case, to Indebtedness otherwise permitted to
be incurred pursuant to this Section 6.01; provided, that if
the Indebtedness that is being guarantied is unsecured and/or subordinated to
the Obligations, the guaranty shall also be unsecured and/or subordinated to
the Obligations;


 


(i)                     Indebtedness
described in Schedule 6.01, but not any extensions, renewals or
replacements of such Indebtedness except (i) renewals and extensions
expressly provided for in the agreements evidencing any such Indebtedness as
the same are in effect on the date of this Agreement and (ii) refinancings
and extensions of any such Indebtedness if the terms and conditions thereof are
not less favorable to the obligor thereon or to the Lenders than the
Indebtedness being refinanced or extended, and the average life to maturity
thereof is greater than or equal to that of the Indebtedness being refinanced
or extended; provided, such Indebtedness permitted under the immediately
preceding clause (i) or (ii) above shall not (A) include
Indebtedness of an obligor that was not an obligor with respect to the
Indebtedness being extended, renewed or refinanced, (B) exceed in a
principal amount the Indebtedness being renewed, extended or refinanced or (C) be
incurred, created or assumed if any Default or Event of Default has occurred
and is continuing or would result therefrom;


 


(j)                     Indebtedness
with respect to Capital Leases in an aggregate amount not to exceed at any time
$2,200,000;


 


(k)                  purchase money
Indebtedness in an aggregate amount not to exceed at any time $2,200,000 (including
any Indebtedness acquired in connection with a Permitted Acquisition); provided,
any such Indebtedness (i) shall be secured only by the asset acquired in
connection with the incurrence of such Indebtedness, and (ii) shall
constitute not less than 90% of the aggregate consideration paid with respect
to such asset;


 


(l)                     (i) Indebtedness
of Borrowers incurred in connection with a Permitted Acquisition (either in the
form of Seller Subordinated Notes, earn out obligations, deferred purchase
price or otherwise) in an aggregate amount not to exceed $2,750,000 with
respect to any single Permitted Acquisition or series of related Permitted
Acquisitions and $8,250,000 with respect to all Permitted Acquisitions
consummated since the Closing Date, in either case, at any one time
outstanding, and (ii) any extension, renewal or refinancing of any
Indebtedness specified in clause (i) above, provided, that such
Indebtedness permitted under this clause (ii) shall not (A) include
Indebtedness of an obligor that was not an obligor with respect to the
Indebtedness being extended, renewed or refinanced, (B) exceed in a
principal amount the Indebtedness being renewed, extended or refinanced or (C) be
incurred, created or assumed if any Default or Event of Default has occurred
and is continuing or would result therefrom;


 


(m)               obligations
under incentive, non-compete, consulting, deferred compensation or other
similar arrangements incurred by a Loan Party;


 


(n)                 Indebtedness
incurred in connection with the financing of insurance premiums in the ordinary
course of business;


 


48

















 


(o)                 Indebtedness of
Holdings incurred for the purpose of making Restricted Junior Payments
permitted under Section 6.05(c); provided, that all such
Indebtedness shall be unsecured and subordinated in right of payment to the
payment in full of the Obligations on a basis reasonably satisfactory to the
Requisite Lenders;


 


(p)                 other
Indebtedness of Holdings and its Subsidiaries, in an aggregate amount not to
exceed at any time $1,100,000.


 


Section 6.02                            Liens.


 


No
Loan Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or permit to exist any Lien on or with
respect to any property or asset of any kind (including any document or
instrument in respect of goods or accounts receivable) of Holdings or any of
its Subsidiaries, whether now owned or hereafter acquired, or any income or
profits therefrom, or file or permit the filing of, or permit to remain in
effect, any financing statement or other similar notice of any Lien with
respect to any such property, asset, income or profits under the UCC of any
State or under any similar recording or notice statute, except (each of the
following, collectively, the “Permitted Liens”):


 


(a)                  Liens securing
the Senior Debt;


 


(b)                 Liens for Taxes
if obligations with respect to such Taxes are not yet due and payable or are
not required to be paid pursuant to the terms of Section 5.03;


 


(c)                  statutory Liens
and contractual restatements of such Liens of landlords, banks (and rights of
set-off), of carriers, warehousemen, mechanics, repairmen, workmen and
materialmen, and other Liens imposed by law (other than any such Lien imposed
pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code
or by ERISA), in each case incurred in the ordinary course of business;


 


(d)                 Liens incurred
in the ordinary course of business in connection with workers’ compensation,
unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the payment
of borrowed money or other Indebtedness), so long as no foreclosure, sale or
similar proceedings have been commenced with respect to any portion of the
Collateral (as defined in the Senior Credit Agreement) on account thereof;


 


(e)                  easements,
rights-of-way, restrictions, encroachments, and other minor defects or
irregularities in title, in each case which do not and will not interfere in
any material respect with the ordinary conduct of the business of Holdings or
any of its Subsidiaries;


 


(f)                    any interest or
title of a lessor or sublessor under any lease of real estate or licensor or
sublicensor of personal property permitted hereunder;


 


(g)                 Liens in favor
of any escrow agent solely on and in respect of any cash earnest money deposits
made by Holdings or any of its Subsidiaries in connection with any letter of
intent or purchase agreement permitted hereunder;


 


(h)                 purported Liens
evidenced by the filing of precautionary UCC financing statements relating
solely to operating leases of personal property entered into in the ordinary
course of business;


 


49














 


(i)                     [Reserved];


 


(j)                     any zoning or
similar law or right reserved to or vested in any governmental office or agency
to control or regulate the use of any real property;


 


(k)                  non-exclusive
licenses of patents, trademarks and other Intellectual Property rights granted
by Borrowers or any of their Subsidiaries in the ordinary course of business
and not interfering in any respect with the ordinary conduct of the business of
any Borrower or such Subsidiary;


 


(l)                     Liens described
in Schedule 6.02;


 


(m)               Liens securing
Indebtedness permitted pursuant to Sections 6.01(j) or (k); provided,
any such Lien shall encumber only the asset acquired with the proceeds of such
Indebtedness;


 


(n)                 Liens
consisting of judgment or judicial attachment liens with respect to judgments that
do not constitute an Event of Default under Section 8.01;


 


(o)                 Liens on
deposits required in connection with entering into any Interest Rate Agreement
permitted hereunder;


 


(p)                 Liens on
insurance policies and proceeds thereof securing the financing of the premiums
with respect thereto in the ordinary course of business;


 


(q)                 Liens
encumbering customary initial deposits and margin deposits and similar Liens
attaching to other brokerage accounts, in each case with respect to Investments
permitted under Section 6.07 and in the ordinary course of
business;


 


(r)                    other Liens
securing Indebtedness or other obligations in an aggregate amount not to exceed
$550,000 at any time outstanding.


 


Section 6.03                            Reserved.


 


Section 6.04                            No Further Negative Pledges.


 


Except
with respect to (a) specific property encumbered to secure payment of
particular Indebtedness or to be sold pursuant to an executed agreement with
respect to a permitted Asset Sale, (b) restrictions contained in the
Senior Debt Documents and (c) restrictions  by reason of customary provisions restricting assignments,
subletting or other transfers contained in leases, licenses and similar
agreements entered into in the ordinary course of business (provided that such
restrictions are limited to the property or assets secured by such Liens or the
property or assets subject to such leases, licenses or similar agreements, as
the case may be), no Loan Party nor any of its Subsidiaries shall enter into
any agreement prohibiting the creation or assumption of any Lien upon any of
its properties or assets, whether now owned or hereafter acquired, to secure
the Obligations.


 


Section 6.05                            Restricted Junior Payments.


 


No
Loan Party shall, nor shall it permit any of its Subsidiaries or Affiliates
through any manner or means or through any other Person to, directly or
indirectly, declare, order, pay, make or set apart, or agree to declare, order,
pay, make or set apart, any sum for any Restricted Junior Payment except that:


 


50

















 


(a)                  Reserved.


 


(b)                 Borrowers may
make Restricted Junior Payments to Holdings (i) so long as no Default or
Event of Default shall have occurred and be continuing or shall be caused
thereby, in an aggregate amount not to exceed $275,000 in any Fiscal Year, to
the extent necessary to permit Holdings to pay general administrative costs and
expenses and (ii) so long as any of the Borrowers and/or any of their
Subsidiaries is a partnership or disregarded entity for U.S. federal and state
income tax purposes or is otherwise filing a consolidated or combined tax
return with Holdings, to the extent necessary to permit Holdings to discharge
any tax liabilities payable by Holdings, in each case so long as Holdings
applies the amount of any such Restricted Junior Payment for such purpose;


 


(c)                  commencing with
the Fiscal Year beginning January 1, 2007, and so long as no Default or
Event of Default shall have occurred and be continuing or shall be caused
thereby, Borrowers may make Restricted Junior Payments to Holdings, and
Holdings may then make Restricted Junior Payments, in each case for the purpose
of repurchasing or redeeming Capital Stock of Holdings from employees upon the
death, disability or other termination of employment of any such employee in an
amount not to exceed $825,000 in any Fiscal Year; and


 


(d)                 STT may
dividend the Capital Stock of Statewide Publishing to Holdings.


 


Section 6.06                            Restrictions on Subsidiary Distributions.


 


Except
as provided herein, in any other Loan Document or in the Senior Debt Documents,
no Loan Party shall, nor shall it permit any of its Subsidiaries to, create or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary of
Holdings to:


 


(a)                  pay dividends
or make any other distributions on any of such Subsidiary’s Capital Stock owned
by Holdings or any other Subsidiary of Holdings;


 


(b)                 repay or prepay
any Indebtedness owed by such Subsidiary to any Borrower or any other
Subsidiary of Holdings;


 


(c)                  make loans or
advances to Holdings or any other Subsidiary of Holdings; or


 


(d)                 transfer any of
its property or assets to Holdings or any other Subsidiary of Holdings


 


other
than restrictions (i) in agreements evidencing Indebtedness permitted by Sections
6.01(j) or 6.01(k) that impose restrictions on the
property so acquired, (ii) by reason of customary provisions restricting
assignments, subletting or other transfers contained in leases, licenses, joint
venture agreements and similar agreements entered into in the ordinary course
of business, or (iii) that are or were created by virtue of any transfer
of, agreement to transfer or option or right with respect to any property,
assets or Capital Stock not otherwise prohibited under this Agreement.


 


Section 6.07                            Investments.


 


No
Loan Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, make or own any Investment in any Person, including without
limitation any Joint Venture or general partnership, except (each of the
following, collectively, the “Permitted Investments”):


 


51

















 


(a)                  Cash
Equivalents;


 


(b)                 (i) equity
Investments owned as of the Closing Date in any Domestic Subsidiary, and (ii) Investments
made after the Closing Date in any wholly-owned Guarantor Subsidiary of any
Borrower;


 


(c)                  Investments (i) in
any Securities received in satisfaction or partial satisfaction thereof from
financially troubled account debtors and (ii) deposits, prepayments and
other credits to suppliers made in the ordinary course of business consistent
with the past practices of Borrowers and their Subsidiaries;


 


(d)                 intercompany
loans to the extent permitted under Section 6.01(b) (other
than any loans or advances to any director or executive officer (or equivalent
thereof) that would be in violation of Section 402 of the Sarbanes-Oxley
Act to the extent any Borrower and its Subsidiaries are subject thereto);


 


(e)                  Consolidated
Capital Expenditures permitted by Section 6.08(e);


 


(f)                    loans and
advances to employees and directors of Holdings and its Subsidiaries made in
the ordinary course of business in an aggregate principal amount not to exceed
$275,000 in the aggregate;


 


(g)                 Permitted
Acquisitions permitted pursuant to Section 6.09;


 


(h)                 Investments described
in Schedule 6.07;


 


(i)                     Investments by
Borrowers or any of their Subsidiaries in the form of Interest Rate Agreements
permitted hereunder that are not speculative in nature;


 


(j)                     Investments
received from the purchaser with respect to any Asset Sale or other asset
disposition permitted under Section 6.09;


 


(k)                  to the extent
permitted by applicable law, promissory notes received from officers and
employees of any Loan Party in exchange for Capital Stock of Holdings purchased
by such Persons pursuant to a stock ownership or purchase plan or compensation
plan;


 


(l)                     earnest money
deposits made in connection with Permitted Acquisitions;


 


(m)               Investments in
deposit accounts opened in the ordinary course of business; and


 


(n)                 other
Investments in an aggregate amount not to exceed at any time $550,000.


 


Notwithstanding
the foregoing, in no event shall any Loan Party make any Investment which
results in or facilitates in any manner any Restricted Junior Payment not
otherwise permitted under the terms of Section 6.05.


 


Section 6.08                            Financial Covenants.


 


(a)                  Interest Coverage Ratio.  Holdings shall not permit the Interest
Coverage Ratio as of the last day of any Fiscal Quarter, beginning with the
Fiscal Quarter ending March 31, 2007, 


 


52

















 


to be less than the correlative ratio indicated:


 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  INTEREST

  COVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2007

  	
   

  	
  1.50:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2007

  	
   

  	
  1.50:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2007

  	
   

  	
  1.50:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2007

  	
   

  	
  1.50:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2008

  	
   

  	
  1.60:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2008

  	
   

  	
  1.70:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2008

  	
   

  	
  1.80:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2008

  	
   

  	
  1.80:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2009

  	
   

  	
  1.85:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2009

  	
   

  	
  1.95:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2009

  	
   

  	
  2.05:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2009

  	
   

  	
  2.15:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2010

  	
   

  	
  2.25:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2010

  	
   

  	
  2.30:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2010

  	
   

  	
  2.40:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2010

  	
   

  	
  2.50:1.00

  	
   

  	
   

  
	
   

  	
  Thereafter

  	
   

  	
  2.50:1.00

  	
   

  	
   

  



 


(b)                 Fixed Charge
Coverage Ratio.  Holdings
shall not permit the Fixed Charge Coverage Ratio as of the last day of any Fiscal
Quarter, beginning with the Fiscal Quarter ending  March 31, 2007, to be less than the
correlative ratio indicated:


 


53

















 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  FIXED CHARGE

  COVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2007

  	
   

  	
  1.15:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2007

  	
   

  	
  1.15:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2007

  	
   

  	
  1.15:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2007

  	
   

  	
  1.15:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2008

  	
   

  	
  1.20:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2008

  	
   

  	
  1.20:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2008

  	
   

  	
  1.20:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2008

  	
   

  	
  1.20:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2009

  	
   

  	
  1.30:1.00

  	
   

  	
   

  
	
   

  	
  Thereafter

  	
   

  	
  1.30:1.00

  	
   

  	
   

  



 


(c)                  Total Leverage
Ratio.  Holdings shall not permit the
Total Leverage Ratio as of the last day of any Fiscal Quarter, beginning with
the Fiscal Quarter ending March 31, 2007, to exceed the correlative ratio
indicated:


 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  TOTAL

  LEVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2007

  	
   

  	
  6.50:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2007

  	
   

  	
  6.50:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2007

  	
   

  	
  6.50:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2007

  	
   

  	
  6.25:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2008

  	
   

  	
  6.00:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2008

  	
   

  	
  5.75:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2008

  	
   

  	
  5.50:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2008

  	
   

  	
  5.50:1.00

  	
   

  	
   

  



 


54

















 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  TOTAL

  LEVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2009

  	
   

  	
  5.00:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2009

  	
   

  	
  5.00:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2009

  	
   

  	
  4.75:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2009

  	
   

  	
  4.75:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2010

  	
   

  	
  4.50:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2010

  	
   

  	
  4.50:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2010

  	
   

  	
  4.25:1.00

  	
   

  	
   

  
	
   

  	
  Thereafter

  	
   

  	
  4.00:1.00

  	
   

  	
   

  



 


(d)                 Senior Leverage
Ratio.  Holdings shall not permit the
Senior Leverage Ratio as of the last day of any Fiscal Quarter, beginning with
the Fiscal Quarter ending March 31, 2007, to exceed the correlative ratio
indicated:


 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  SENIOR

  LEVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2007

  	
   

  	
  4.00:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2007

  	
   

  	
  4.00:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2007

  	
   

  	
  4.00:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2007

  	
   

  	
  4.00:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2008

  	
   

  	
  3.75:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2008

  	
   

  	
  3.50:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2008

  	
   

  	
  3.25:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2008

  	
   

  	
  3.25:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2009

  	
   

  	
  3.00:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2009

  	
   

  	
  3.00:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2009

  	
   

  	
  2.75:1.00

  	
   

  	
   

  



 


55

















 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  SENIOR

  LEVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  December 31, 2009

  	
   

  	
  2.75:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2010

  	
   

  	
  2.50:1.00

  	
   

  	
   

  
	
   

  	
  Thereafter

  	
   

  	
  2.50:1.00

  	
   

  	
   

  



 


(e)                  Maximum
Consolidated Capital Expenditures.  Holdings shall not, and shall not permit its
Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal
Year indicated below, in an aggregate amount for Holdings and its Subsidiaries
in excess of the corresponding amount set forth below opposite such Fiscal
Year; provided, such amount for any Fiscal Year shall be increased by an
amount equal to 50% of the excess, if any (without giving effect to any
adjustment in accordance with this proviso) over the actual amount of
Consolidated Capital Expenditures for the previous Fiscal Year:


 


	
   

  	
  FISCAL YEAR

  	
   

  	
  CONSOLIDATED

  CAPITAL EXPENDITURES

  	
   

  	
   

  
	
   

  	
  2006

  	
   

  	
  $

  	
  3,200,000

  	
   

  	
   

  
	
   

  	
  2007

  	
   

  	
  $

  	
  3,200,000

  	
   

  	
   

  
	
   

  	
  2008

  	
   

  	
  $

  	
  3,200,000

  	
   

  	
   

  
	
   

  	
  2009

  	
   

  	
  $

  	
  3,200,000

  	
   

  	
   

  
	
   

  	
  2010

  	
   

  	
  $

  	
  3,200,000

  	
   

  	
   

  
	
   

  	
  2011

  	
   

  	
  $

  	
  3,200,000

  	
   

  	
   

  
	
   

  	
  Thereafter

  	
   

  	
  $

  	
  3,200,000

  	
   

  	
   

  



 


(f)                    Certain
Calculations.  With
respect to any period during which a Permitted Acquisition or an Asset Sale has
occurred (each, a “Subject Transaction”), for purposes of determining
compliance with the financial covenants set forth in this Section 6.08,
Consolidated Adjusted EBITDA shall be calculated with respect to such period on
a pro forma basis (including pro forma adjustments arising out of events which
are directly attributable to a specific transaction, are factually supportable
and are expected to have a continuing impact, in each case determined on a
basis consistent with Article 11 of Regulation S-X promulgated under the
Securities Act and as interpreted by the staff of the Securities and Exchange
Commission or as reasonably acceptable to the Requisite Lenders, which would
include cost savings resulting from head count reduction, closure of facilities
and similar restructuring charges, which pro forma adjustments shall be
certified by the chief financial officer of Holdings) using the historical
audited financial statements of any business so acquired or to be acquired or
sold or to be sold and the consolidated financial statements of Holdings and
its Subsidiaries which shall be reformulated as if such Subject Transaction,
and any Indebtedness incurred or repaid in connection therewith, had been
consummated or incurred or repaid at the beginning of such period (and assuming
that such Indebtedness bears interest during any portion of the applicable
measurement period prior to the relevant acquisition at the weighted average of
the interest rates applicable to outstanding Loans as defined and outstanding
under


 


56














 


the
Senior Credit Agreement (and, following payment in full of all obligations
(other than contingent indemnity obligations not then due and payable) under
the Senior Credit Agreement, at the interest rates applicable to outstanding
Notes) incurred during such period).


 


Section 6.09         Fundamental Changes; Disposition of
Assets; Acquisitions.


 


No
Loan Party shall, nor shall it permit any of its Subsidiaries to, enter into
any transaction of merger or consolidation, or liquidate, wind-up or dissolve
itself (or suffer any liquidation or dissolution), or voluntarily convey, sell,
lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of,
in one transaction or a series of transactions, all or any part of its
business, assets or property of any kind whatsoever, whether real, personal or
mixed and whether tangible or intangible, whether now owned or hereafter
acquired, or acquire by purchase or otherwise (other than purchases or other
acquisitions of inventory, materials and equipment in the ordinary course of
business) the business, property or fixed assets of, or stock or other evidence
of beneficial ownership of, any Person or any division or line of business or
other business unit of any Person, or become a general partner in any
partnership, except:


 


(a)      any Subsidiary of
Holdings may be merged with or into any Borrower or any Guarantor Subsidiary,
or be liquidated, wound up or dissolved, or all or any part of its business,
property or assets may be conveyed, sold, leased, transferred or otherwise
disposed of, in one transaction or a series of transactions, to any Borrower or
any Guarantor Subsidiary; provided, in the case of such a merger, such
Borrower or such Guarantor Subsidiary, as applicable shall be the continuing or
surviving Person;


 


(b)      sales, transfers or other
dispositions of assets that do not constitute Asset Sales;


 


(c)      Asset Sales, the proceeds
of which (valued at the principal amount thereof in the case of non-Cash
proceeds consisting of notes or other debt Securities and valued at fair market
value in the case of other non-Cash proceeds) when aggregated with the proceeds
of all other Asset Sales made within the same Fiscal Year, are less than
$550,000; provided (1) the consideration received for such assets
shall be in an amount at least equal to the fair market value thereof
(determined in good faith by an Authorized Officer of the applicable Borrower
or, if the consideration is greater than $100,000, determined in good faith by
the Board of Directors of the applicable Borrower), (2) no less than 75%
of such consideration shall be paid in Cash and (3) if the Senior Credit
Agreement is outstanding, the Net Asset Sale Proceeds (as defined in the Senior
Credit Agreement) thereof shall be applied as required under the Senior Credit
Agreement unless waived by the Senior Lenders;


 


(d)      disposals of obsolete,
worn out or surplus property;


 


(e)      Permitted Acquisitions;


 


(f)       Investments made in
accordance with Section 6.07;


 


(g)      the sale of any
Investments permitted under Section 6.07 in the ordinary course of
business;


 


(h)      the use of cash in the
ordinary course of business; and


 


(i)       so long as no Event of
Default has occurred and is continuing, any Loan Party may (1) compromise
or settle any dispute, claim or legal proceeding with respect to accounts 


 


57

















 


receivable
for less than the total unpaid balance thereof, (2) release, wholly or
partially, any Person liable for the payment thereof, or (3) allow any
credit or discount thereon, in each case in the ordinary course of business.


 


Section 6.10         Disposal
of Subsidiary Interests.


 


Except
for any sale of all of its interests in the Capital Stock of any of its
Subsidiaries in compliance with the provisions of Section 6.09, no
Loan Party shall, nor shall it permit any of its Subsidiaries to, (a) directly
or indirectly sell, assign, pledge or otherwise encumber or dispose of any
Capital Stock of any of its Subsidiaries, except as required by the Loan
Documents, nonconsensual Permitted Liens and to qualify directors if required
by applicable law; or (b) permit any of its Subsidiaries directly or
indirectly to sell, assign, pledge or otherwise encumber or dispose of any
Capital Stock of any of its Subsidiaries, except as required by the Loan
Documents, nonconsensual Permitted Liens or to another Loan Party (subject to
the restrictions on such disposition otherwise imposed hereunder), or to
qualify directors if required by applicable law.


 


Section 6.11         Sales and Lease-Backs.


 


No Loan Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, become or remain liable as lessee or
as a guarantor or other surety with respect to any lease of any property
(whether real, personal or mixed), whether now owned or hereafter acquired, which
such Loan Party (a) has sold or transferred or is to sell or to transfer
to any other Person (other than Holdings or any of its Subsidiaries to the
extent such sale or transfer is otherwise permitted hereunder), or (b) intends
to use for substantially the same purpose as any other property which has been
or is to be sold or transferred by such Loan Party to any Person (other than
Holdings or any of its Subsidiaries to the extent such sale or transfer is
otherwise permitted hereunder) in connection with such lease.


 


Section 6.12         Transactions
with Shareholders and Affiliates.


 


No
Loan Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, enter into or permit to exist any transaction (including the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any Affiliate of Holdings (other than other Loan Parties), unless
such transaction (i) has been disclosed to the Lenders, and (ii) is
on terms that are no less favorable to Holdings or that Subsidiary, as the case
may be, than those that might be obtained at the time from a Person who is not
such an Affiliate; provided the foregoing restriction shall not apply to
(a) the payment by Holdings and its Subsidiaries of reasonable and
customary fees to members of its and its Subsidiaries’ Boards of Directors and
the payment and provisions of reasonable compensation and benefits (including,
without limitation, permitted incentive stock plans) to officers; (b) compensation
arrangements for officers and other employees of Holdings and its Subsidiaries
entered into in the ordinary course of business; (c) issuances of Capital
Stock of Holdings to Equity Investors, directors and management of Holdings and
its Subsidiaries to the extent permitted under this Agreement; (d) transactions
described in Schedule 6.12 and (e) expense reimbursements and
indemnification payments made to Sponsor.


 


Section 6.13         Conduct of Business.


 


From
and after the Closing Date, no Loan Party shall, nor shall it permit any of its
Subsidiaries to, engage in any business other than (i) the businesses
engaged in by such Loan Party on the Closing Date and similar or related
businesses and (ii) such other lines of business as may be consented to by
Requisite Lenders.


 


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Section 6.14         Permitted
Activities of Holdings.


 


Holdings
shall not (a) incur, directly or indirectly, any Indebtedness or any other
obligation or liability whatsoever other than the Indebtedness and obligations
under this Agreement, the other Loan Documents and the Related Agreements; (b) create
or suffer to exist any Lien upon any property or assets now owned or hereafter
acquired by it other than the Liens created under the Senior Debt Documents to
which it is a party or permitted pursuant to Section 6.02; (c) engage
in any business or activity or own any assets (including, without limitation,
Cash and Cash Equivalents) other than (i) holding 100% of the Capital
Stock of each Borrower, (ii) performing its obligations and activities incidental
thereto under the Loan Documents, and to the extent not inconsistent therewith,
the Related Agreements; (iii) making Restricted Junior Payments and
Investments to the extent permitted by this Agreement and (iv) maintaining
its existence; (d) consolidate with or merge with or into, or convey,
transfer or lease all or substantially all its assets to, any Person; (e) sell
or otherwise dispose of any Capital Stock of any of its Subsidiaries; or (f) create
or acquire any direct Subsidiary or directly make or own any Investment in any
Person other than Borrowers.


 


Section 6.15         Amendments or Waivers of Certain
Related Agreements.


 


No Loan Party shall nor shall it permit any of its
Subsidiaries to, agree to any material amendment, restatement, supplement or
other modification to, or waiver of, any of its material rights under any
Related Agreement (other than the Senior Debt Documents), Material Contract or
Organizational Document after the Closing Date in a manner materially adverse
to the Lenders without in each case obtaining the prior written consent of
Requisite Lenders to such amendment, restatement, supplement or other
modification or waiver.


 


Section 6.16         Amendments
or Waivers of with Respect to Senior Debt Documents.


 


Except
as otherwise permitted by the Subordination Agreement and the Senior Debt
Documents, each of Holdings and each Borrower shall not, nor shall it permit
any of its Subsidiaries to, without the prior written consent of the Requisite
Lenders, amend, modify or supplement the Senior Debt Documents.


 


Section 6.17         Fiscal Year.


 


No
Loan Party shall, nor shall it permit any of its Subsidiaries to change its
Fiscal Year-end from December 31.


 


Section 6.18         No
Integration.


 


No
Loan Party shall, nor shall it permit any of its Affiliates to, make any offer
or sale of securities of any class of any of the Borrowers if, as a result of
the doctrine of “integration” referred to in Rule 502 under the Securities
Act, such offer or sale would render invalid any applicable exemption from the
registration requirements of the Securities Act provided by Section 4(2) thereof
with respect to the issuance and sale of the Notes.


 


ARTICLE SEVEN

GUARANTY


 


Section 7.01         Guaranty
of the Obligations.


 


Subject
to the provisions of Section 7.02, Guarantors jointly and severally
hereby irrevocably and unconditionally guaranty to the Lenders the due and
punctual payment in full of all Obligations when the same shall become due,
whether at stated maturity, by required prepayment, 


 


59

















 


declaration,
acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively, the “Guaranteed
Obligations”).


 


Section 7.02         Contribution
by Guarantors.


 


All
Guarantors desire to allocate among themselves (collectively, the “Contributing
Guarantors”), in a fair and equitable manner, their obligations arising
under this Guaranty.  Accordingly, in the
event any payment or distribution is made on any date by a Guarantor (a “Funding
Guarantor”) under this Guaranty that exceeds its Fair Share as of such
date, such Funding Guarantor shall be entitled to a contribution from each of
the other Contributing Guarantors in the amount of such other Contributing
Guarantor’s Fair Share Shortfall as of such date, with the result that all such
contributions will cause each Contributing Guarantor’s Aggregate Payments to
equal its Fair Share as of such date.  “Fair
Share” means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (a) the ratio of (i) the Fair Share
Contribution Amount with respect to such Contributing Guarantor to (ii) the
aggregate of the Fair Share Contribution Amounts with respect to all
Contributing Guarantors multiplied by (b) the aggregate amount paid or
distributed on or before such date by all Funding Guarantors under this
Guaranty in respect of the obligations Guaranteed.  “Fair Share Shortfall” means, with
respect to a Contributing Guarantor as of any date of determination, the
excess, if any, of the Fair Share of such Contributing Guarantor over the
Aggregate Payments of such Contributing Guarantor.  “Fair Share Contribution Amount”
means, with respect to a Contributing Guarantor as of any date of
determination, the maximum aggregate amount of the obligations of such
Contributing Guarantor under this Guaranty that would not render its
obligations hereunder or thereunder subject to avoidance as a fraudulent
transfer or conveyance under any Fraudulent Transfer Laws; provided,
solely for purposes of calculating the “Fair Share Contribution Amount”
with respect to any Contributing Guarantor for purposes of this Section 7.02,
any assets or liabilities of such Contributing Guarantor arising by virtue of
any rights to subrogation, reimbursement or indemnification or any rights to or
obligations of contribution hereunder shall not be considered as assets or
liabilities of such Contributing Guarantor. 
“Aggregate Payments” means, with respect to a Contributing
Guarantor as of any date of determination, an amount equal to (1) the
aggregate amount of all payments and distributions made on or before such date
by such Contributing Guarantor in respect of this Guaranty (including, without
limitation, in respect of this Section 7.02), minus (2) the
aggregate amount of all payments received on or before such date by such
Contributing Guarantor from the other Contributing Guarantors as contributions
under this Section 7.02.  The
amounts payable as contributions hereunder shall be determined as of the date
on which the related payment or distribution is made by the applicable Funding
Guarantor.  The allocation among
Contributing Guarantors of their obligations as set forth in this Section 7.02
shall not be construed in any way to limit the liability of any Contributing
Guarantor hereunder.  Each Guarantor is a
third party beneficiary to the contribution agreement set forth in this Section 7.02.


 


Section 7.03         Payment
by Guarantors.


 


Subject
to Section 7.02, Guarantors hereby jointly and severally agree, in
furtherance of the foregoing and not in limitation of any other right which any
Lender may have at law or in equity against any Guarantor by virtue hereof,
that upon the failure of Borrowers to pay any of the Guaranteed Obligations
when and as the same shall become due (after giving effect to any stated cure
periods), whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. § 362(a)), Guarantors will upon demand
pay, or cause to be paid, in Cash, to the Lenders, an amount equal to the sum
of the unpaid principal amount of all Guaranteed Obligations then due as
aforesaid, accrued and unpaid interest on such Guaranteed Obligations
(including interest which, but for any Borrower becoming the subject of a case
under the 


 


60

















 


Bankruptcy
Code, would have accrued on such Guaranteed Obligations, whether or not a claim
is allowed against such Borrower for such interest in the related bankruptcy
case) and all other Guaranteed Obligations then owed to the Lenders as
aforesaid.


 


Section 7.04         Liability
of Guarantors Absolute.


 


Each Guarantor agrees that
its obligations hereunder are irrevocable, absolute, independent and
unconditional and shall not be affected by any circumstance which constitutes a
legal or equitable discharge of a guarantor or surety other than payment in
full of the Guaranteed Obligations.  In
furtherance of the foregoing and without limiting the generality thereof, each
Guarantor agrees as follows:


 


(a)         this Guaranty is a
guaranty of payment when due (after giving effect to any stated cure periods)
and not of collectability.  This Guaranty
is a primary obligation of each Guarantor and not merely a contract of surety;


 


(b)        the Lenders may enforce
this Guaranty upon the occurrence of an Event of Default notwithstanding the
existence of any dispute between any Borrower and any Lender with respect to
the existence of such Event of Default;


 


(c)         the obligations of
each Guarantor hereunder are independent of the obligations of Borrowers and
the obligations of any other guarantor (including any other Guarantor) of the
obligations of Borrowers, and a separate action or actions may be brought and
prosecuted against such Guarantor whether or not any action is brought against
any Borrower or any of such other guarantors and whether or not any Borrower is
joined in any such action or actions;


 


(d)        payment by any
Guarantor of a portion, but not all, of the Guaranteed Obligations shall in no
way limit, affect, modify or abridge any Guarantor’s liability for any portion
of the Guaranteed Obligations which has not been paid.  Without limiting the generality of the
foregoing, if the Lenders are awarded a judgment in any suit brought to enforce
any Guarantor’s covenant to pay a portion of the Guaranteed Obligations, such
judgment shall not be deemed to release such Guarantor from its covenant to pay
the portion of the Guaranteed Obligations that is not the subject of such suit,
and such judgment shall not, except to the extent satisfied by such Guarantor,
limit, affect, modify or abridge any other Guarantor’s liability hereunder in
respect of the Guaranteed Obligations;


 


(e)         any Lender, upon such
terms as it deems appropriate, without notice or demand and without affecting
the validity or enforceability hereof or giving rise to any reduction, limitation,
impairment, discharge or termination of any Guarantor’s liability hereunder,
from time to time may (i) renew, extend, accelerate, increase the rate of
interest on, or otherwise change the time, place, manner or terms of payment of
the Guaranteed Obligations; (ii) settle, compromise, release or discharge,
or accept or refuse any offer of performance with respect to, or substitutions
for, the Guaranteed Obligations or any agreement relating thereto and/or
subordinate the payment of the same to the payment of any other obligations; (iii) request
and accept other guaranties of the Guaranteed Obligations and take and hold
security for the payment thereof or of the Guaranteed Obligations; (iv) release,
surrender, exchange, substitute, compromise, settle, rescind, waive, alter,
subordinate or modify, with or without consideration, any security for payment
of the Guaranteed Obligations, any other guaranties of the Guaranteed
Obligations, or any other obligation of any Person (including any other Guarantor)
with respect to the Guaranteed Obligations; (v) enforce and apply any
security now or hereafter held by or for the benefit of such Lender in respect
hereof or of the Guaranteed Obligations and direct the order or manner of sale
thereof, or exercise any other right or remedy that such Lender may have
against any such security, in each case as such Lender in its discretion may
determine consistent with this Agreement and any applicable security agreement,
including foreclosure on any such security pursuant to one or more judicial or 


 


61

















 


nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable,
and even though such action operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of any Guarantor against
any Borrower or any security for the Guaranteed Obligations; and (vi) exercise
any other rights available to it under the Loan Documents; and


 


(f)         this Guaranty and the
obligations of Guarantors hereunder shall be valid and enforceable and shall
not be subject to any reduction, limitation, impairment, discharge or
termination for any reason (other than payment in full of the Guaranteed
Obligations), including the occurrence of any of the following, whether or not
any Guarantor shall have had notice or knowledge of any of them: (i) any
failure or omission to assert or enforce or agreement or election not to assert
or enforce, or the stay or enjoining, by order of court, by operation of law or
otherwise, of the exercise or enforcement of, any claim or demand or any right,
power or remedy (whether arising under the Loan Documents at law, in equity or
otherwise) with respect to the Guaranteed Obligations or any agreement relating
thereto, or with respect to any other guaranty of or security for the payment
of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or
modification of, or any consent to departure from, any of the terms or
provisions (including provisions relating to events of default) of this
Agreement, any of the other Loan Documents or any agreement or instrument
executed pursuant thereto, or of any other guaranty or security for the
Guaranteed Obligations, in each case whether or not in accordance with the
terms of this Agreement or such Loan Document or any agreement relating to such
other guaranty or security; (iii) the Guaranteed Obligations, or any
agreement relating thereto, at any time being found to be illegal, invalid or
unenforceable in any respect; (iv) the application of payments received
from any source (other than payments received pursuant to the other Loan
Documents or from the proceeds of any security for the Guaranteed Obligations,
except to the extent such security also serves as collateral for indebtedness
other than the Guaranteed Obligations) to the payment of indebtedness other
than the Guaranteed Obligations, even though any Lender might have elected to
apply such payment to any part or all of the Guaranteed Obligations; (v) any
Lender’s consent to the change, reorganization or termination of the corporate
structure or existence of Holdings or any of its Subsidiaries and to any
corresponding restructuring of the Guaranteed Obligations; (vi) any
failure to perfect or continue perfection of a security interest in any
collateral which secures any of the Guaranteed Obligations; (vii) any
defenses, set-offs or counterclaims which any Borrower may allege or assert
against any Lender in respect of the Guaranteed Obligations, including failure
of consideration, breach of warranty, payment, statute of frauds, statute of
limitations, accord and satisfaction and usury; and (viii) any other act
or thing or omission, or delay to do any other act or thing, which may or might
in any manner or to any extent vary the risk of any Guarantor as an obligor in
respect of the Guaranteed Obligations.


 


Section 7.05         Waivers
by Guarantors.


 


Each
Guarantor hereby waives, for the benefit of Lenders: (a) any right to
require any Lender, as a condition of payment or performance by such Guarantor,
to (i) proceed against any Borrower, any other guarantor (including any
other Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceed
against or exhaust any security held from any Borrower, any such other
guarantor or any other Person, (iii) proceed against or have resort to any
balance of any Deposit Account or credit on the books of any Lender in favor of
any Borrower or any other Person, or (iv) pursue any other remedy in the
power of any Lender whatsoever; (b) any defense arising by reason of the
incapacity, lack of authority or any disability or other defense of any
Borrower or any other Guarantor including any defense based on or arising out
of the lack of validity or the unenforceability of the Guaranteed Obligations or
any agreement or instrument relating thereto or by reason of the cessation of
the liability of any Borrower or any other Guarantor from any cause other than
payment in full of the Guaranteed Obligations; (c) any defense based upon
any statute or rule of law which provides that the obligation of a surety
must be neither larger in amount nor in other respects more burdensome than
that of the principal; (d) any defense based upon any Lender’s errors or
omissions in the administration of the Guaranteed 


 


62

















 


Obligations,
except behavior which amounts to bad faith; (e) (i) any principles or
provisions of law, statutory or otherwise, which are or might be in conflict
with the terms hereof and any legal or equitable discharge of such Guarantor’s
obligations hereunder, (ii) the benefit of any statute of limitations
affecting such Guarantor’s liability hereunder or the enforcement hereof, (iii) any
rights to set-offs, recoupments and counterclaims, and (iv) promptness,
diligence and any requirement that any Lender protect, secure, perfect or
insure any security interest or lien or any property subject thereto; (f) notices,
demands, presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance hereof, notices of
default under this Agreement, or any agreement or instrument related thereto,
notices of any renewal, extension or modification of the Guaranteed Obligations
or any agreement related thereto, notices of any extension of credit to any
Borrower and notices of any of the matters referred to in Section 7.04
and any right to consent to any thereof; and (g) any defenses or benefits
that may be derived from or afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms hereof.


 


Section 7.06         Guarantors’
Rights of Subrogation, Contribution, etc.


 


Until
the Guaranteed Obligations (other than contingent indemnity obligations not
then due and payable) shall have been paid in full, each Guarantor hereby
waives any claim, right or remedy, direct or indirect, that such Guarantor now
has or may hereafter have against any Borrower or any other Guarantor or any of
its assets in connection with this Guaranty or the performance by such
Guarantor of its obligations hereunder, in each case whether such claim, right
or remedy arises in equity, under contract, by statute, under common law or
otherwise and including without limitation (a) any right of subrogation,
reimbursement or indemnification that such Guarantor now has or may hereafter
have against any Borrower with respect to the Guaranteed Obligations, (b) any
right to enforce, or to participate in, any claim, right or remedy that any
Lender now has or may hereafter have against any Borrower, and (c) any
benefit of, and any right to participate in, any collateral or security now or
hereafter held by any Lender.  In
addition, until the Guaranteed Obligations (other than contingent indemnity
obligations not then due and payable) shall have been paid in full, each
Guarantor shall withhold exercise of any right of contribution such Guarantor
may have against any other guarantor (including any other Guarantor) of the
Guaranteed Obligations, including, without limitation, any such right of
contribution as contemplated by Section 7.02.  Each Guarantor further agrees that, to the
extent the waiver or agreement to withhold the exercise of its rights of
subrogation, reimbursement, indemnification and contribution as set forth herein
is found by a court of competent jurisdiction to be void or voidable for any
reason, any rights of subrogation, reimbursement or indemnification such
Guarantor may have against any Borrower or against any collateral or security,
and any rights of contribution such Guarantor may have against any such other
guarantor, shall be junior and subordinate to any rights any Lender may have
against such Borrower, to all right, title and interest any Lender may have in
any such collateral or security, and to any right any Lender may have against
such other guarantor.  If any amount
shall be paid to any Guarantor on account of any such subrogation,
reimbursement, indemnification or contribution rights at any time when all Guaranteed
Obligations (other than contingent indemnity obligations not then due and
payable) shall not have been paid in full, such amount shall be held in trust
for the Lenders and shall forthwith be paid over to the Lenders to be credited
and applied against the Guaranteed Obligations, whether matured or unmatured,
in accordance with the terms hereof.


 


Section 7.07         Subordination.


 


Any
Indebtedness of any Borrower or any Guarantor now or hereafter held by any
Guarantor (the “Obligee Guarantor”) is hereby subordinated in right of
payment to the Guaranteed Obligations, and any such Indebtedness collected or
received by the Obligee Guarantor after an Event of Default has occurred and is
continuing shall, subject to the Subordination Agreement, be held in trust for
Lenders and shall forthwith, subject to the Subordination Agreement, be paid
over to Lenders to be 


 


63

















 


credited
and applied against the Guaranteed Obligations but without affecting, impairing
or limiting in any manner the liability of the Obligee Guarantor under any
other provision hereof.  Any conflict
between the terms of this Agreement and the Subordination Agreement shall be
interpreted and resolved in favor of the Subordination Agreement.


 


Section 7.08         Continuing
Guaranty.


 


This
Guaranty is a continuing guaranty and shall remain in effect until all of the
Guaranteed Obligations (other than contingent indemnity obligations not then
due and payable) shall have been paid in full. 
Each Guarantor hereby irrevocably waives any right to revoke this
Guaranty as to future transactions giving rise to any Guaranteed Obligations.


 


Section 7.09         Authority
of Guarantors or Borrowers.


 


It
is not necessary for any Lender to inquire into the capacity or powers of any
Guarantor or any Borrower or the officers, directors or any agents acting or
purporting to act on behalf of any of them.


 


Section 7.10         Financial
Condition of Borrowers.


 


Any
credit extension may be made to Borrowers or continued from time to time,
without notice to or authorization from any Guarantor regardless of the
financial or other condition of Borrowers at the time of any such grant or
continuation, as the case may be.  No
Lender shall have any obligation to disclose or discuss with any Guarantor its
assessment, or any Guarantor’s assessment, of the financial condition of any
Borrower.  Each Guarantor has adequate
means to obtain information from Borrowers on a continuing basis concerning the
financial condition of each Borrower and its ability to perform its obligations
under the Loan Documents, and each Guarantor assumes the responsibility for
being and keeping informed of the financial condition of Borrowers and of all
circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations.  Each Guarantor hereby
waives and relinquishes any duty on the part of any Lender to disclose any
matter, fact or thing relating to the business, operations or conditions of
Borrowers now known or hereafter known by any Lender.


 


Section 7.11         Bankruptcy,
etc.


 


(a)      So long as any Guaranteed Obligations (other than contingent
indemnity obligations not then due and payable) remain outstanding, no
Guarantor shall, without the prior written consent of the Requisite Lenders,
commence or join with any other Person in commencing any bankruptcy,
reorganization or insolvency case or proceeding of or against any Borrower or
any other Guarantor.  The obligations of
Guarantors hereunder shall not be reduced, limited, impaired, discharged,
deferred, suspended or terminated by any case or proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation
or arrangement of any Borrower or any other Guarantor or by any defense which
any Borrower or any other Guarantor may have by reason of the order, decree or
decision of any court or administrative body resulting from any such
proceeding.


 


(b)      Each Guarantor acknowledges and agrees that any interest on any
portion of the Guaranteed Obligations which accrues after the commencement of
any case or proceeding referred to in clause (a) above (or, if
interest on any portion of the Guaranteed Obligations ceases to accrue by
operation of law by reason of the commencement of such case or proceeding, such
interest as would have accrued on such portion of the Guaranteed Obligations if
such case or proceeding had not been commenced) shall be included in the
Guaranteed Obligations because it is the intention of Guarantors and Lenders
that the Guaranteed Obligations which are guaranteed by Guarantors pursuant
hereto 


 


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should be determined without regard to any rule of law or order
which may relieve any Borrower of any portion of such Guaranteed
Obligations.  Guarantors will permit any
trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit
of creditors or similar person to pay the Lenders, or allow the claim of the
Lenders in respect of, any such interest accruing after the date on which such
case or proceeding is commenced.


 


(c)         In the event that all
or any portion of the Guaranteed Obligations are paid by Borrowers, the
obligations of Guarantors hereunder shall continue and remain in full force and
effect or be reinstated, as the case may be, in the event that all or any part
of such payment(s) are rescinded or recovered directly or indirectly from
any Lender as a preference, fraudulent transfer or otherwise, and any such
payments which are so rescinded or recovered shall constitute Guaranteed
Obligations for all purposes hereunder.


 


Section 7.12         Discharge
of Guaranty upon Sale of Guarantor.


 


If
all of the Capital Stock of any Guarantor or any of its successors in interest
hereunder shall be sold or otherwise disposed of (including by merger or
consolidation) in accordance with the terms and conditions hereof, the Guaranty
of such Guarantor or such successor in interest, as the case may be, hereunder
shall automatically be discharged and released without any further action by
any Lender or any other Person effective as of the time of such Asset Sale.


 


ARTICLE
EIGHT

EVENTS OF DEFAULT


 


Section 8.01         Events of Default.


 


If
any one or more of the following conditions or events shall occur:


 


(a)      Failure to Make
Payments When Due.  Failure by
Borrowers to pay (i) when due the principal or premium, if any, on the
Notes, whether at stated maturity, by acceleration, by notice of voluntary
prepayment, by mandatory prepayment or otherwise; or (ii) any interest on
the Notes or any fee or any other amount due hereunder within seven (7) days
after the date due (in each case, whether or not any such payment is prohibited
under the Subordination Agreement); or


 


(b)      Default in Other
Agreements.  (i) Failure of any
Loan Party or any of their respective Subsidiaries to pay when due any
principal of or interest on or any other amount payable in respect of one or
more items of Indebtedness (other than Indebtedness referred to in Section 8.01(a))
with an aggregate principal amount of $1,100,000 or more, in each case beyond
the grace period, if any, provided therefor; or (ii) breach or default by
any Loan Party with respect to any other material term of (1) one or more
items of Indebtedness in the aggregate principal amounts referred to in clause (i) above
or (2) any loan agreement, mortgage, indenture or other agreement relating
to such item(s) of Indebtedness, in each case beyond the grace period, if
any, provided therefor, if, in the case of each of the foregoing clauses (i) and
(ii), the effect of such breach or default is to cause that Indebtedness to
become or be declared due and payable (or redeemable) prior to its stated
maturity or the stated maturity of any underlying obligation, as the case may
be; or


 


(c)      Breach of Certain
Covenants.  (i) Failure of any
Loan Party to perform or comply with any term or condition contained in Section 5.02,
Article Six, or Section 9.06; or (ii) failure of
any Loan Party to perform or comply with any term or condition contained in Section 5.01(a) through
(d) and such failure shall not have been remedied or waived within
fifteen (15) Business Days after such failure; or


 


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(d)      Breach of
Representations, etc.  Any
representation, warranty, certification or other statement made or deemed made
by any Loan Party in any Loan Document shall be false in any material respect
as of the date made or deemed made; or


 


(e)      Other Defaults Under
Loan Documents.  Any Loan Party shall
default in the performance of or compliance with any term contained herein or
any of the other Loan Documents, other than any such term referred to in any
other Section of this Section 8.01, and such default shall not
have been remedied or waived within thirty-five (35) days after the earlier of (i) an
Authorized Officer of such Loan Party becoming aware of such default or (ii) receipt
by Borrowers of notice from any Lender of such default; or


 


(f)       Involuntary
Bankruptcy; Appointment of Receiver, etc. 
(i) A court of competent jurisdiction shall enter a decree or order
for relief in respect of Holdings or any of its Subsidiaries in an involuntary
case under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect, which decree or order is
not stayed; or any other similar relief shall be granted under any applicable
federal or state law; or (ii) an involuntary case shall be commenced
against Holdings or any of its Subsidiaries under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Holdings or any of its Subsidiaries,
or over all or a substantial part of its property, shall have been entered; or
there shall have occurred the involuntary appointment of an interim receiver,
trustee or other custodian of Holdings or any of its Subsidiaries for all or a
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
property of Holdings or any of its Subsidiaries, and any such event described
in this clause (ii) shall continue for sixty (60) days without having been
dismissed, bonded or discharged; or


 


(g)      Voluntary Bankruptcy;
Appointment of Receiver, etc.  (i) Holdings
or any of its Subsidiaries shall have an order for relief entered with respect
to it or shall commence a voluntary case under the Bankruptcy Code or under any
other applicable bankruptcy, insolvency or similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under
any such law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
property; or Holdings or any of its Subsidiaries shall make any assignment for
the benefit of creditors; or (ii) Holdings or any of its Subsidiaries
shall be unable, or shall fail generally, or shall admit in writing its general
inability, to pay its debts as such debts become due; or the Board of Directors
of Holdings or any of its Subsidiaries (or any committee thereof) shall adopt
any resolution or otherwise authorize any action to approve any of the actions
referred to herein or in Section 8.01(f); or


 


(h)      Judgments and
Attachments.  Any money judgment,
writ or warrant of attachment or similar process involving in the aggregate at
any time an amount in excess of $1,100,000 (in either case to the extent not
adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) or any non-monetary judgment which
would reasonably be expected to result in a Material Adverse Effect shall be
entered or filed against Holdings or any of its Subsidiaries or any of their
respective assets and shall remain undischarged, unvacated, unbonded or
unstayed for a period of sixty (60) days (or in any event later than five (5) days
prior to the date of any proposed sale thereunder); or


 


(i)       Dissolution.  Any order, judgment or decree shall be
entered against any Loan Party decreeing the dissolution or split up of such
Loan Party and such order shall remain undischarged or unstayed for a period in
excess of thirty-five (35) days; or


 


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(j)       Employee Benefit
Plans.  (i) There shall occur
one or more ERISA Events which individually or in the aggregate results in or
might reasonably be expected to result in liability of Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates in excess of
$1,100,000 during the term hereof; or (ii) there exists any fact or
circumstance that reasonably could be expected to result in the imposition of a
Lien or security interest under Section 412(n) of the Internal
Revenue Code or under ERISA; or


 


(k)      Guaranties and other
Loan Documents.  At any time after
the execution and delivery thereof, (i) the Guaranty for any reason, other
than the satisfaction in full of all Obligations, shall cease to be in full
force and effect (other than in accordance with its terms) or shall be declared
to be null and void or any Guarantor shall repudiate its obligations
thereunder, (ii) this Agreement ceases to be in full force and effect
(other than by reason of the satisfaction in full of the Obligations in accordance
with the terms hereof) or shall be declared null and void, or (iii) any
Loan Party shall contest the validity or enforceability of any Loan Document in
writing or deny in writing that it has any further liability under any Loan
Document to which it is a party;


 


THEN,
(1) upon the occurrence of any Event of Default described in Section 8.01(f) or
8.01(g), automatically, and (2) upon the occurrence and during the
continuation of any other Event of Default, upon notice to Borrowers by the
Requisite Lenders, each of the following shall immediately become due and
payable, in each case without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by each Loan
Party: (I) the unpaid principal amount of, premium, if any, on, and
accrued interest on the Notes, and (II) all other Obligations.  Except as set forth in the immediately
preceding sentence, nothing herein shall prevent the Lenders from exercising
any remedies upon the occurrence of any Event of Default available to such
Lenders at law, in equity, by contract or otherwise.


 


ARTICLE
NINE

PAYMENTS AND PREPAYMENTS OF NOTES


 


Section 9.01         Right
of Redemption.


 


The
Notes may be redeemed at the election of the Borrowers at such times, in such
amounts and at the Redemption Prices (together with any applicable accrued
interest to the Redemption Date) specified in the form of Note attached as Exhibit A
hereto.


 


Section 9.02         Partial
Redemptions.


 


In case the Borrowers elect to redeem less than all of the Notes, Borrowers
shall redeem such Notes pro rata
from each Lender; provided, however,
that any such redemption shall be for an aggregate principal amount of not less
than $1,000,000 (or the remaining outstanding principal amount).  For all purposes of this Agreement, unless
the context otherwise requires, all provisions relating to the redemption of
Notes shall relate, in the case of any Notes redeemed or to be redeemed only in
part, to the portion of the principal amount of such Notes which has been or is
to be redeemed.


 


Section 9.03         Notice
of Redemption.


 


Notice
of redemption (which may be conditional upon the effectiveness of other
financing) shall be given by first-class mail, postage prepaid, mailed not less
than ten (10) nor more than sixty (60) days prior to the Redemption Date,
at the expense of the Borrowers, to each Lender of Notes to be redeemed, at its
address appearing in the Security Register.


 


All
notices of redemption shall state:


 


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(a)         the Redemption Date
(which must be a Business Day);


 


(b)        the Redemption Price;


 


(c)         if less than all the
Outstanding Notes are to be redeemed, the portion of each Note to be redeemed;


 


(d)        that on the Redemption
Date the Redemption Price will become due and payable upon each such Note to be
redeemed and that interest (including Capitalized Interest) will cease to
accrue on and after said date; and


 


(e)         the place or places
where such Notes are to be surrendered for payment of the Redemption Price.


 


Section 9.04         Notes
Payable on Redemption Date.


 


If
notice of redemption shall have been given as provided above, unless such
notice is conditional and the applicable condition has not been satisfied, the
Notes so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such date (unless
the Borrowers shall default in the payment of the Redemption Price) such Notes
shall not bear interest (including Capitalized Interest).  Upon surrender of any such Note for
redemption in accordance with said notice, the Redemption Price shall be paid
by the Borrowers; provided, however,
that installments of interest payable on or prior to the Redemption Date shall
be payable to the Lenders of such Notes registered as such at the close of
business on the relevant Regular Record Dates according to their terms and the
provisions of this Agreement.


 


If
the Redemption Price for any Note called for redemption shall not be so paid
upon surrender thereof for redemption, the Redemption Price shall, until paid,
bear interest from the Redemption Date at the rate provided by the Note.


 


Section 9.05         Notes
Redeemed in Part.


 


Any
Note which is to be redeemed only in part shall be surrendered at the principal
offices of the Borrowers (with, if the Borrowers so require, due endorsement
by, or a written instrument of transfer in form satisfactory to the Borrowers
duly executed by, the Lender thereof or his attorney duly authorized in
writing), and the Borrowers shall execute and deliver to the Lender of such
Note without service charge, a new Note or Notes, of any authorized
denomination as requested by such Lender, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Note so
surrendered.


 


Section 9.06         Offer
to Purchase Upon Liquidity Event.


 


(a)         Within five Business
Days following any Liquidity Event, the Borrowers covenant to:


 


(i) repay in full all obligations and terminate
all commitments under or in respect of Senior Debt or other Indebtedness to the
extent the terms thereof prohibit the purchase by the Borrowers of the Notes
upon a Liquidity Event in compliance with the terms of this Section 9.06
or irrevocably offer to repay in full all obligations and terminate all
commitments under or in respect of all such Senior Debt or other Indebtedness
and repay the Senior Debt owed to each such Senior Lender who has accepted such
offer; or


 


68

















 


(ii) obtain the requisite consents under the
Senior Credit Agreement or other Indebtedness to permit the repurchase of the
Notes as described below.


 


The
Borrowers must first comply with 9.06(a) before they shall be required to
purchase Notes in accordance with this Section 9.06 upon the
occurrence of a Liquidity Event.


 


(b)        Upon the occurrence of
a Liquidity Event and following compliance by the Borrowers with Section 9.06(a),
Borrowers shall make an offer (a “Liquidity Event Offer”) to each Lender
to purchase all of such Lender’s Notes at an offer price in cash equal to the
Redemption Prices (including Capitalized Interest) specified in the form of
Note attached as Exhibit A hereto, together with accrued and unpaid
interest thereon (the “Liquidity Event Payment”), in accordance with the
terms set forth below, provided however
that if the Notes and the indebtedness created by the Senior Credit Agreement
are repaid in full with the proceeds of an initial public offering within 30
days of receipt of the proceeds of such initial public offering, then the price
at which Borrowers shall purchase the Notes shall be equal to 100% of the
principal amount (including Capitalized Interest) thereof, together with
accrued and unpaid interest thereon. 
Each of Holdings and Borrowers shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
purchase of the Notes as a result of a Liquidity Event, and none of Holdings or
any Borrower shall be in violation of this Agreement by reason of any act
required by such rule (if applicable) or other applicable law.


 


(c)         Within thirty
(30) days following any Liquidity Event, the Borrowers shall mail a notice
to each Lender stating:


 


(1)           that the Liquidity Event Offer is being made pursuant to
this Section 9.06 and that all Notes tendered will be accepted for
payment;


 


(2)           the
purchase price and the purchase date, which shall be at least fifteen
(15) Business Days but no more than sixty (60) days from the date on
which the Borrowers mail notice of the Liquidity Event (the “Liquidity Event
Payment Date”);


 


(3)           that
any Notes not tendered will continue to accrue interest and Capitalized
Interest;


 


(4)           that,
unless the Borrowers default in the payment of the Liquidity Event Payment, all
Notes accepted for payment pursuant to the Liquidity Event Offer shall cease to
accrue interest and Capitalized Interest, if applicable, after the Liquidity
Event Payment Date;


 


(5)           that
Lenders electing to have any Notes purchased pursuant to a Liquidity Event
Offer shall be required to surrender the Notes, with the form entitled “Option
of Lender to Elect Purchase” on the reverse of the Notes completed, to the
Borrowers, or their designated agent for such purpose, at the address specified
in the notice prior to 5:00 p.m. New York City time on the third Business
Day preceding the Liquidity Event Payment Date; and


 


(6)           that
Lenders whose Notes are being purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered.


 


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(d)        On or before the
Liquidity Event Payment Date, the Borrowers shall, (i) accept for payment
all Notes or portions thereof properly tendered pursuant to the Liquidity Event
Offer and (ii) mail or wire to the Lenders of Notes or portions thereof so
tendered an amount equal to the Liquidity Event Payment in respect of all Notes
or portions thereof so tendered.  The
Borrowers shall promptly execute and mail to each Lender a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered, if
any.  The Borrowers shall disclose to the
Lenders the results of the Liquidity Event Offer on or as soon as practicable
after the Liquidity Event Payment Date.


 


(e)         Notwithstanding the
foregoing, the Borrowers will not be required to make a Liquidity Event Offer,
as provided above, if, in connection with or in contemplation of any Liquidity
Event, any of them or a third party has made an offer to purchase (an “Alternate
Offer”) any and all Notes validly tendered at a cash price equal to or
higher than the Liquidity Event Payment and has purchased all Notes properly
tendered in accordance with the terms of such Alternate Offer.  The Alternate Offer must comply with all the
other provisions applicable to the Liquidity Event Offer, shall remain, if
commenced prior to the Liquidity Event, open for acceptance until the
consummation of the Liquidity Event.


 


(f)         The foregoing
provisions of this Section 9.06 shall not prevent the occurrence of
any Event of Default caused by any Liquidity Event or affect any right of any
Lender as a consequence thereof, whether under this Agreement or otherwise.


 


Section 9.07         [Reserved].


 


Section 9.08         General Provisions Regarding
Payments.


 


(a)         All payments by
Borrowers of principal, premium, interest, fees and other Obligations shall be
made in Dollars in same day funds, without defense, setoff or counterclaim,
free of any restriction or condition. 
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.  All payments of
interest on the Notes shall be paid to the persons in whose names such Notes
are registered on the Security Register at the close of business on the date
fifteen (15) calendar days immediately preceding the related Interest Payment
Date (the “Regular Record Date”) and all payments of principal on the
Notes shall be paid to the persons in whose names such Notes are registered on
the applicable Liquidity Event Payment Date or at the Stated Maturity Date, as
applicable.  Payments of principal
(including Capitalized Interest) on any Note (other than on a Liquidity Event
Payment Date as set forth in Section 9.06) shall be payable without
the presentation or surrender of such Note or the making of any notation
thereon, except that upon written request of the Borrowers made concurrently
with or reasonably promptly after payment or prepayment in full of any Note,
the Lenders shall surrender such Note for cancellation reasonably promptly
after any such request, to the Borrowers at their principal executive
office.  Payments of interest on Notes
shall be made, in accordance with this Agreement and subject to applicable laws
and regulations, by check mailed on or before the due date for such payment to
the Person entitled thereto at such Person’s address appearing on the Security
Register or by wire transfer to such account as any Lender shall designate by
written instructions received by any Borrower no less than 15 days prior to any
applicable Interest Payment Date, which wire instruction shall continue in
effect until such time as such Lender otherwise notifies the Borrowers or such
Lender no longer is the registered owner of such Note or Notes.  All payments shall be made not later than
3:00 p.m. (New York City time) on the date due; funds received by any
Lender after that time on such due date shall be deemed to have been paid by
Borrowers on the next succeeding Business Day. 
Until the Borrowers receive instructions to the contrary, all payments
to the Purchaser shall be made at the address specified in Section 12.01.


 


(b)        Anything in this
Agreement or the Notes to the contrary notwithstanding (but without limiting
the requirement in the Notes that the notice of any optional redemption specify
a Business Day as the date fixed for such redemption), any payment of principal
of, or premium or interest on any 


 


70

















 


Note
that is due on a date other than a Business Day shall be made on the next
succeeding Business Day without including the additional days elapsed in the
computation of the interest payable on such next succeeding Business Day;
provided that if the maturity date of any Note is a date other than a Business
Day, the payment otherwise due on such maturity date shall be made on the next
succeeding Business Day and shall include the additional days elapsed in the
computation of interest payable on such next succeeding Business Day.


 


(c)         All payments in
respect of the principal amount of any Note shall include payment of accrued
interest on the principal amount being repaid or prepaid, and all such payments
(and, in any event, any payments in respect of any Note on a date when interest
is due and payable with respect to such Note) shall be applied to the payment
of interest before application to principal.


 


(d)        A Lender shall deem any
payment by or on behalf of the Borrowers hereunder that is not made in same day
funds prior to noon (New York City time) to be a non-conforming payment.  Any such payment shall not be deemed to have
been received by such Lender until the later of (i) the time such funds
become available funds, and (ii) the applicable next Business Day.  The applicable Lender shall give prompt
telephonic notice to the Borrowers if any payment is non-conforming.  Any non-conforming payment may constitute or
become a Default or Event of Default in accordance with the terms of Section 8.01(a).  Interest shall continue to accrue on any
principal as to which a non-conforming payment is made until such funds become
available funds (but in no event less than the period from the date of such
payment to the next succeeding applicable Business Day) at the Default Rate
plus the interest rate stated on the Note from the date such amount was due and
payable until the date such amount is paid in full.


 


(e)         All payments by
Borrowers of principal, premium, interest, fees and other Obligations shall be
made on a pro rata basis among the Lenders.


 


Section 9.09         Taxes.


 


(a)         Payments Free of Taxes.  Any and all payments under or with respect to
any Loan Document shall be made free and clear of and without deduction or
withholding for or on account of any and all present or future income, stamp or
other taxes, duties, levies, imposts, deductions, assessments, fees, interest,
penalties, addition to tax, withholdings or similar charges, now or hereafter
imposed, levied, withheld or assessed and all liabilities with respect thereto,
excluding net income taxes and franchise taxes (imposed in lieu of net income
taxes) imposed by the jurisdiction (or any political subdivision thereof) under
the laws of which the Lender is organized or maintains a lending office.  If any Borrower shall be required by law to
deduct any such non-excluded taxes, duties, levies, imposts, deductions, fees,
withholdings or similar charges and liabilities (“Non-Excluded Taxes”)
from or in respect of any sum payable under any Loan Document, (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 Lender receives an amount equal to the sum it would have received
had no such deductions been required, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount deducted to
the relevant taxation authority in accordance with applicable law; provided,
however, that such Borrower shall not be required to increase any such amounts
payable that are attributable to United States withholding taxes imposed on
amounts payable to such Lender at the time such Lender becomes a party to this
Agreement or are attributable to such Lender’s failure or inability to comply
with Section 9.09(f), except to the extent such Lender’s assignor (if any)
was entitled, at the time of assignment, to receive additional amounts from
such Borrower with respect to such Non-Excluded Taxes pursuant to this Section.


 


(b)        Payments of Other
Taxes by Borrowers.  In addition,
each Borrower agrees to pay any and all Other Taxes to the relevant
Governmental Authority in a timely manner and in accordance with applicable
law.


 


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(c)         Evidence of
Payments.  Whenever any Non-Excluded
Taxes or Other Taxes are payable, as promptly as possible thereafter, and in no
case after 30 days after the date of such payment, such Borrower shall furnish
to the Lender 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
Requisite Lenders.


 


(d)        Determination and
Payment of Gross-Up.  If any Borrower
shall be required to deduct or pay any Non-Excluded Taxes or Other Taxes from
or in respect of any sum payable under this Agreement or any other Loan
Document to any Lender, such Borrower shall also pay to such Lender, at the
time interest is paid, such additional amount that the Lender specifies is
necessary to preserve the after-tax yield (after factoring in all taxes,
including taxes imposed on or measured by net income) that such Lender would
have received if such Non-Excluded Taxes or Other Taxes had not been imposed.


 


(e)         Indemnification by
Borrowers.  The Borrowers jointly and
severally agree to indemnify the Lenders for (i) the full amount of
Non-Excluded Taxes and Other Taxes (including any Non-Excluded Taxes or Other
Taxes imposed or asserted by any jurisdiction on amounts payable under this
Section) paid by the Lenders and (ii) any liability (including additions
to tax, penalties, interest and expenses) arising therefrom or with respect
thereto, in each case regardless of whether such Non-Excluded Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority; provided, that if the Borrowers reasonably believe that such
Non-Excluded Taxes or Other Taxes were not correctly or legally asserted, the
Lender will use reasonable efforts to cooperate with the Borrowers to obtain a
refund of such Non-Excluded Taxes or Other Taxes.  Payment under this subsection (e) shall
be made within 10 days after the date the Lender makes a demand therefor.


 


(f)         Status of Lenders.


 


(i)            Each Foreign Lender shall deliver to the Borrowers, prior
to becoming a Lender under this Agreement, whichever of the following is
applicable:


 


(1)           duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the United
States of America is a party,


 


(2)           duly
completed copies of Internal Revenue Service Form W-8ECI,


 


(3)           in
the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Internal Revenue Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a “bank”
within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a
“10 percent shareholder” of any Borrower within the meaning of section
881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled
foreign corporation” described in section 881(c)(3)(C) of the Internal
Revenue Code and (y) duly completed copies of  Internal Revenue Service Form W-8BEN, or


 


(4)           any
other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together
with such supplementary documentation as may be prescribed by applicable law to
permit Borrowers to determine the withholding or deduction required to be made.


 


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Thereafter and from time to time, each such Foreign Lender shall (A) promptly
submit to the Borrowers such additional duly completed and signed copies of one
of such forms (or such successor forms as shall be adopted from time to time by
the relevant United States taxing authorities) as may then be available under
then current United States laws and regulations to avoid, or such evidence as
is satisfactory to the Borrowers of any available exemption from or reduction
of, United States withholding taxes in respect of all payments to be made to
such Foreign Lender by the Borrowers pursuant to this Agreement and (B) promptly
notify the Borrowers of any change in circumstances that would modify or render
invalid any claimed exemption or reduction.


 


(ii)           The Borrowers shall not be required to pay any additional
amount to any Foreign Lender under Section 9.09(a) (A) with
respect to any Non-Excluded Taxes required to be deducted or withheld on the
basis of the information, certificates or statements of exemption such Lender
transmits with an IRS Form W-8IMY pursuant to this Section 9.09(f)(ii) or
(B) if such Lender shall have failed to satisfy the foregoing provisions
of this Section 9.09(f); provided that if such Lender shall have
satisfied the requirement of this Section 9.09(f) on the date
such Lender became a Lender, nothing in this Section 9.09(f) shall
relieve the Borrowers of the obligation to pay any amounts pursuant to Section 9.09(f) in
the event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of which
such Lender receives any sums payable under any of the Loan Documents is not
subject to withholding or is subject to withholding at a reduced rate.


 


(iii)          Each Lender that is a “United States person” within the
meaning of Section 7701(a)(30) of the Internal Revenue Code shall deliver
to the Requisite Lenders one duly signed completed original of Internal Revenue
Service Form W-9.


 


(g)        Survival of
Obligations.  The obligations of the
Borrowers under this Section 9.09 shall survive the termination of
this Agreement and the payment of loans and all other amounts hereunder.


 


ARTICLE TEN

SUBORDINATION


 


Section 10.01       Subordination.  The Notes and all other Obligations of the
Loan Parties under the applicable Loan Documents are and shall at all times be
and remain subordinated and subject in right of payment to the extent and in
the manner set forth in the Subordination Agreement to the prior payment in
full of all Senior Debt (as defined therein) and the Notes and the Guaranty
shall, in each case, bear the restrictive legend set forth in the Subordination
Agreement pursuant to the terms thereof.


 


ARTICLE
ELEVEN

REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE LENDERS


 


Section 11.01       Representations,
Warranties and Agreements.


 


Each Lender, severally and not jointly, represents and warrants to the
Borrowers as of the date hereof and as of the Closing Date (and, in the case of
Section 11.01(a), (b), (c) and (d), as of the date it becomes
a Lender if such date is following the Closing Date) as follows:


 


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(a)         Such Lender is
acquiring the Notes for its own account, for investment purposes only and not
with a view to any distribution thereof within the meaning of the Securities
Act except in accordance with applicable law;


 


(b)        Such Lender understands
that the Notes have not been and will not be registered under the Securities
Act or any state or other securities law, that the Notes are being issued by
the Borrowers in a transaction exempt from the registration requirements of the
Securities Act, and that the Notes may not be offered or sold except pursuant
to an effective registration statement under the Securities Act or pursuant to
applicable exemptions from registration under the Securities Act and in
compliance with applicable state laws.


 


(c)         Such Lender did not
employ any broker or finder in connection with the transactions contemplated in
this Agreement.


 


(d)        Such Lender is an
Institutional Accredited Investor or a Qualified Institutional Buyer.  Such Lender is financially able to hold the
Notes for long term investment and to suffer a complete loss of its investment
in the Notes.


 


(e)         Such Lender (a) is
duly incorporated, organized or formed, validly existing and (to the extent
such concept is relevant) in good standing under the laws of its jurisdiction
of incorporation, organization or formation, and (b) has all requisite
power and authority to own and operate its properties, to carry on its business
as now conducted and as proposed to be conducted, to enter into the Loan
Documents to which it is a party and to carry out the transactions contemplated
thereby.


 


(f)         The execution,
delivery and performance of this Agreement and the other Loan Documents to which
such Lender is a party are within its corporate, limited liability company or
limited partnership, as the case may be, power and authority and have been duly
authorized by all necessary action of such Lender, do not conflict with or
result in a breach of or violate any of such Lender’s governing documents or
any material contract to which such Lender is a party or by which its assets
are bound or any applicable laws and constitute legal, valid and binding
agreements of such Lender enforceable against it in accordance with their
respective terms, subject to limitations on enforceability due to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, fraudulent
transfer, moratorium, and other similar laws of general applicability relating
to or affecting creditors’ rights or general equity principles (including
public policies) or except as rights to indemnification or contribution may be
limited by Federal or state securities laws.


 


(g)        One or more of the
following statements is accurate as to each source of funds to be used by such
Lender to purchase the Notes:


 


(i)            such
Lender is not acquiring the Notes with the assets of any Plan which is subject
to Title I of ERISA or Section 4975 of the Internal Revenue Code; or


 


(ii)           such
Lender is an insurance company and the source of funds being used by such
Lender to acquire the Notes is an “insurance company general account,” as such
term is defined in the Department of Labor Prohibited Transaction Class Exemption
(“PTCE”) 95-60, and the purchase and holding of the Notes is exempt under PTCE
95-60; or


 


(iii)          the
source of funds being used by such Lender to acquire the Notes constitute plan
assets that are included in an “investment fund” (within the meaning of Part V
of PTCE 84-14) managed by a “qualified professional asset manager” or “QPAM”
(within the 


 


74

















 


meaning
of Part V of PTCE 84-14), and the purchase and holding of the Notes is
exempt under PTCE 84-14; or


 


(iv)          the
source of funds being used by such Lender to acquire the Notes is either (i) an
insurance company pooled separate account, within the meaning of PTCE 90-1, or (ii) a
bank collective investment fund, within the meaning of PTCE 91-38, and the
purchase and holding of the Notes is exempt under either PTCE 90-1 or PTCE
91-38; or


 


(v)           the
source of funds being used by such Lender to acquire the Notes is a
governmental or church plan that is covered neither by Title I of ERISA nor Section 4975
of the Internal Revenue Code and neither the purchase of, nor the subsequent
holding of, the Securities will result in, arise from, constitute or involve a
transaction that is prohibited under applicable state or local law; or


 


(vi)          the source of funds being
used by such Lender to acquire the Notes is the assets of one or more Plans
which are managed by an “in-house asset manager,” as that term as defined in
PTCE 96-23, and the purchase and holding of the Notes is exempt under PTCE
96-23.


 


ARTICLE
TWELVE

MISCELLANEOUS


 


Section 12.01       Notices;
Effectiveness; Electronic Communication.


 


(a)      Notices Generally.  Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in paragraph (b) below), all 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
telecopier as follows:


 


(i)    if to any Borrower, to it at 1544 Old Alabama Road, Roswell,
Georgia 30076; Attention Jennifer Dorris (Telecopier No. (770) 643-7290;
Telephone No. (770) 643-2787);


 


(ii)   if to
the Purchaser, to The Royal Bank of Scotland plc, at 101 Park Avenue, New York,
New York 10178; Attention of Jose A. Rosado (Telecopier No. (212)
401-1390; Telephone No. (212) 401-1380), with a copy to Latham &
Watkins LLP, at 633 W. 5th Street, Suite 4000, Los Angeles, CA
90071, Attention of John Mendez (Telecopier No. (213) 891-8763; Telephone No. (213)
891-8181); and


 


(iii)  if to
any other Lender, to it at its address (or telecopier number) set forth in the
Security Register.


 


Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient).  Notices delivered through
electronic communications to the extent provided in paragraph (b) below,
shall be effective as provided in said paragraph (b).


 


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(b)      Electronic
Communications.  Notices and other
communications to the Lenders hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Purchaser.  Any Lender or any Borrower may, in its
reasonable discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or
communications.


 


Unless
the Purchaser otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of
an acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written
acknowledgement); provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.


 


(c)      Change of Address, Etc.  Any party hereto may change its address or
telecopier number for notices and other communications hereunder by notice to
the other parties hereto.


 


Section 12.02       Expenses;
Indemnity; Damage Waiver.


 


(a)      Costs and Expenses.  Borrowers shall pay (i) all reasonable
out-of-pocket expenses incurred by the Purchaser and its Affiliates, including
the reasonable fees, charges and disbursements of outside counsel for the
Purchaser, in connection with the purchase and subsequent sales by the
Purchaser of the Notes provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby
shall be consummated) and (ii) all reasonable out-of-pocket expenses
incurred by the Purchaser or any other Lender, including the fees, charges and
disbursements of any counsel for the Purchaser or any Lender, in connection
with the enforcement or protection of its rights in connection with this
Agreement and the other Loan Documents, including its rights under this
Section, or in connection with the Notes issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Notes. It is understood and agreed by all
parties hereto that the foregoing expense reimbursement obligations shall not
be applicable to, and shall not be deemed to include, any expenses of any
Lender relating solely and exclusively to, or arising solely and exclusively
from, such Lender’s ownership, if any, of any Capital Stock of Holdings (other
than any Capital Stock received by such Lender in exchange for any Obligations
owed to it hereunder).


 


(b)      Indemnification by
Borrowers.  In addition to the
payment of expenses pursuant to Section 10.02, Borrowers shall
indemnify the Purchaser, each other Lender, and each Related Party of any of
the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any outside counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
the consummation of the transactions contemplated hereby or thereby, (ii) any
Note or the use or proposed use of the proceeds therefrom, (iii) any
actual or alleged presence or Release of Hazardous Materials on or from any
property owned or operated by any Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to any Borrower or any of its
Subsidiaries, or (iv) any actual or prospective 


 


76

















 


claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by any Borrower or any other Loan Party,  and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or
related expenses (A) are determined by a court of competent jurisdiction
by final and nonappealable judgment to have resulted from the gross negligence,
bad faith or willful misconduct of such Indemnitee or (B) resulted solely
from the failure to pay any expenses that a Loan Party is not required to
reimburse under Section 12.02(a); and provided
further that no Loan Party shall have any obligation to any Indemnitee
hereunder with respect to Indemnified Liabilities arising out of legal
proceedings commenced against a Lender by the assignee of such Lender or by the
purchaser of Notes from such Lender to the extent such proceedings relate (A) solely
to breaches of representations or warranties of such assigning or selling
Lender regarding ownership or authority to assign or sell all or a portion of
the Notes, or (B) principally to statements or representations made by an
assigning or selling Lender to such assignee or purchaser that were not based
upon information supplied by Borrowers; and provided  further that
Borrowers and the other Loan Parties shall not be required to reimburse the
legal fees and expenses of more than one firm of outside counsel (in addition
to any reasonably necessary special counsel and up to one local counsel in each
applicable local jurisdiction) for all Indemnitees unless, in the reasonable
opinion of outside counsel reasonably satisfactory to Borrowers and Requisite
Lenders, representation of all such Indemnitees would be inappropriate due to
the existence of an actual or potential conflict of interest.  It is understood and agreed by all parties
hereto that the foregoing indemnity reimbursement obligations shall not be
applicable to, and shall not be deemed to include, any losses, claims, damages,
liabilities and related expenses of any Lender relating solely and exclusively
to, or arising solely and exclusively from, such Lender’s ownership, if any, of
any Capital Stock of Holdings (other than any Capital Stock received by such
Lender in exchange for any Obligations owed to it hereunder).


 


(c)      Contribution.  If for any reason (other than the reasons set
forth in Section 12.02(b) above), the indemnification above is
unavailable to the Lenders or insufficient to hold them harmless, then the
Borrowers shall contribute to the amount paid or payable by the Lenders as a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect (i) the relative economic benefit from the issuance
and sale of the Notes contemplated by this Agreement and the Loan Documents of (A) the
Loan Parties and their respective affiliates, stockholders, partners, members
or other equity holders on the one hand and (B) the Lenders on the other
hand as well as (ii) the relative fault of (A) the Loan Parties and
their respective affiliates, stockholders, partners, members or other equity
holders and (B) the Borrowers with respect to such loss, claim, damage or
liability and any other relevant equitable considerations.


 


(d)      Waiver of
Consequential Damages, Etc.  To the
fullest extent permitted by applicable law, Borrowers shall not assert, and
hereby waive, 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, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Note or the use of
the proceeds thereof.  No Indemnitee
referred to in paragraph (b) above shall be liable for any damages arising
from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby.


 


(e)      Payments.  All amounts due under this Section 12.02
shall be payable not later than ten (10) days after written demand
therefor (which writing shall contain a reasonably detailed calculation of such
amounts); provided, that if Borrowers have a good faith dispute with
respect to such amounts and no Lender has incurred out-of-pocket expenses with
respect thereto, such amounts shall be 


 


77

















 


payable upon the earlier to occur of the resolution of the dispute and
thirty (30) days after such written demand.


 


Section 12.03       Amendments
and Waivers.


 


(a)      Requisite Lenders’
Consent.  Subject to the additional
requirements of Section 12.03(b), no amendment, modification,
termination or waiver of any provision of the Loan Documents, or consent to any
departure by any Loan Party therefrom, shall in any event be effective without
the written concurrence of the Requisite Lenders.


 


(b)      Affected Lenders’
Consent.  Without the written consent
of each Lender that would be affected thereby, no amendment, modification,
termination, or consent shall be effective if the effect thereof would:


 


(i)    extend the scheduled final maturity of any Note;


 


(ii)   waive,
reduce or postpone any scheduled repayment (but not prepayment);


 


(iii)  reduce
the premium, or reduce the rate of interest on any Note (other than any waiver
of any increase in the interest rate applicable to any Note to the Default
Rate) or any fee payable hereunder or change the cash pay nature of any such
interest;


 


(iv)  extend
the time for payment of any such interest or fees;


 


(v)   amend,
modify, terminate or waive any provision of, Section 9.08(e), Section 12.03(b),
or any other provision of this Agreement that expressly provides that the
consent of all Lenders is required;


 


(vi)  amend,
directly or indirectly, the definition of “Requisite Lenders” (or any
other defined terms used to define such term);


 


(vii)           release all or substantially all of the Guarantors or all
or substantially all of the value of the Guaranty from the Guaranty except as
expressly provided in the Loan Documents;


 


(viii)          consent to the assignment or transfer
by any Loan Party of any of its rights and obligations under any Loan Document,
except as expressly provided in Section 6.09;


 


(ix)            increase the aggregate principal amount of the Notes
issued hereunder by the issuance of additional Notes (other than as a result of
Capitalized Interest) at any time after the Closing Date;


 


(x)             reduce the principal amount of the Notes; or


 


(xi)            further subordinate the Notes.


 


Section 12.04       Reserved.


 


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Section 12.05       Private Offerings.


 


At
any time after the date hereof, the Notes may be sold, pledged or otherwise
transferred in Private Offerings; provided the following provisions
shall apply to any Private Offering and the Lenders agree to comply, and to
cause any Person acting on their respective behalf to comply, with the
following:


 


(a)           Offers and Sales.  Offers and sales of the Securities will be
made only by the Lenders or Affiliates thereof who are qualified to do so in
the jurisdictions in which such offers or sales are made.  Each such offer or sale shall only be made (i) to
persons who are Qualified Institutional Buyers, (ii) to a limited number
of other institutional accredited investors (as such term is defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D) that the offeror or seller
reasonably believes to be and, with respect to sales and deliveries, that are
Accredited Investors who are not Qualified Institutional Buyers (“Institutional
Accredited Investors”), (iii) to non-U.S. persons outside the United
States to whom offers and sales of the Notes may be made in reliance upon, and
in conformity with the provisions of, Regulation S or (iv) in
reliance on, and in conformity with the provisions of, Rule 144 of the
Securities Act.


 


(b)           No General
Solicitation.  The Notes will be
offered by approaching prospective Lenders on an individual basis.  No general solicitation or general
advertising (within the meaning of Rule 502(c) under the Securities
Act) will be used in the United States and no directed selling efforts (as
defined in Regulation S) will be made outside the United States in
connection with any Private Offering of the Notes.


 


(c)           Purchases by
Non-Bank Fiduciaries.  In the case of
a non-bank Lender acting as a fiduciary for one or more third parties, in
connection with an offer and sale to such purchaser pursuant to this Section 12.05,
any such third party shall be an Institutional Accredited Investor or a
Qualified Institutional Buyer or a non-U.S. person outside the United States.


 


(d)           Restrictive
Legend.  Upon original issuance by
the Borrowers, and until such time as the same is no longer required under the
applicable requirements of the Securities Act, the Notes (and all securities
issued in exchange therefor or in substitution thereof) shall bear such legends
as are required under Section 2.07.


 


(e)           No Future
Liability.  Following the sale of the
Notes by any Lender to any subsequent Lender pursuant to the terms hereof, the
selling Lender shall not be liable or responsible to the Borrowers for any
losses, damages or liabilities suffered or incurred by Holdings or the
Borrowers, including any losses, damages or liabilities under the Securities
Act, arising from or relating to any resale or transfer of any Note previously
sold by such Lender in compliance with this Section 12.05.


 


(f)            Minimum Amounts.  (i) Except in the case of a sale of the
entire remaining amount of the selling Lender’s Notes or in the case of a sale
to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a
Lender, no minimum amount of Notes need be sold; and (ii) in any case not
described in clause (i) above, the aggregate amount of the Notes subject
to each such sale shall not be less than $1,000,000.


 


Section 12.06       Private
Offerings Under Rule 144A.


 


At
any time after the Closing Date, at the request of any Lender or any
prospective Lender designated by such Lender, the Borrowers shall take all
commercially reasonable actions necessary to satisfy the information delivery
requirements of Rule 144A(d)(4) under the Securities Act.


 


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Section 12.07       Independence
of Covenants.


 


All
covenants hereunder shall be given independent effect so that if a particular
action or condition is not permitted by any of such covenants, the fact that it
would be permitted by an exception to, or would otherwise be within the
limitations of, another covenant shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.


 


Section 12.08       Survival of Representations,
Warranties and Agreements.


 


All representations, warranties and agreements made
herein shall survive the execution and delivery hereof and the issuance of the
Notes.  Notwithstanding anything herein
or implied by law to the contrary, the agreements of each Loan Party set forth
in Sections 9.09 and 12.02 and the agreements of Lenders set forth in Section 12.02
shall survive the payment of the Notes and the termination hereof.


 


Section 12.09       No
Waiver; Remedies Cumulative.


 


No
failure or delay on the part of any Lender in the exercise of any power, right
or privilege hereunder or under any other Loan Document shall impair such
power, right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise thereof or of any
other power, right or privilege.  The
rights, powers and remedies given to each Lender hereby are cumulative and
shall be in addition to and independent of all rights, powers and remedies
existing by virtue of any statute or rule of law or in any of the other
Loan Documents.  Any forbearance or
failure to exercise, and any delay in exercising, any right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to
be a waiver thereof, nor shall it preclude the further exercise of any such
right, power or remedy.


 


Section 12.10       Marshalling; Payments Set Aside.


 


No
Lender shall be under any obligation to marshal any assets in favor of any Loan
Party or any other Person or against or in payment of any or all of the
Obligations.  To the extent that any Loan
Party makes a payment or payments to a Lender, and such payment or payments or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, any other state or federal law,
common law or any equitable cause, then, to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens,
rights and remedies therefor or related thereto, shall be revived and continued
in full force and effect as if such payment or payments had not been made.


 


Section 12.11       Severability.  In case any provision in or obligation
hereunder or any Note shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.


 


Section 12.12       Obligations
Several; Independent Nature of Lenders’ Rights.


 


The
obligations of Lenders hereunder are several and no Lender shall be responsible
for the obligations of any other Lender hereunder.  Nothing contained herein or in any other Loan
Documents, and no action taken by Lenders pursuant hereto or thereto, shall be
deemed to constitute Lenders as a partnership, an association, a joint venture
or any other kind of entity. The amounts payable at any time hereunder to each
Lender shall be a separate and independent debt, and each Lender shall be
entitled to protect and enforce its rights arising out hereof and it shall not
be necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.


 


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Section 12.13       Headings.


 


Section headings
herein are included herein for convenience of reference only and shall not constitute
a part hereof for any other purpose or be given any substantive effect.


 


Section 12.14       Governing Law; Jurisdiction; Etc.


 


(a)      Governing Law.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND RULE 327(b) OF THE NEW YORK CIVIL PRACTICE LAW AND
RULES.


 


(b)      Submission to
Jurisdiction.  Each Borrower and each
other Loan Party irrevocably and unconditionally submits, for itself and its
property, to the exclusive jurisdiction of the courts of the State of New York
sitting in New York County and of the United States District Court of the
Southern District of New York, 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
parties hereto 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 fullest extent permitted by applicable 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 or in any other Loan Document shall affect any
right that the Purchaser or any other Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Document
against a Borrower or any other Loan Party or its properties in the courts of
any jurisdiction.


 


(c)      Waiver of Venue.  Each Borrower and each other Loan Party
irrevocably and unconditionally waives, to the fullest extent permitted by
applicable law, any objection which it may now or hereafter have to the laying
of venue of any action or proceeding arising out of or relating to this
Agreement or any other Loan Document in any court referred to in paragraph (b) of
this Section.  Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.


 


(d)      Service of Process.  Each party hereto irrevocably consents to
service of process in the manner provided for notices in Section 12.01.  Nothing in this Agreement will affect the
right of any party hereto to serve process in any other manner permitted by
applicable law.


 


Section 12.15       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 ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND 


 


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(B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER  LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


Section 12.16       Treatment
of Certain Information; Confidentiality.


 


Each
of the Purchaser and the other Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to it, its Affiliates and their respective partners, directors,
officers, employees, agents, advisors, auditors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and agree to keep such Information
confidential in accordance with this Section 12.16), (b) to
the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-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) to any other party hereto, provided that the disclosing party
will promptly notify the Borrowers of such disclosure to the extent permitted
by applicable law, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
purchaser of, or any prospective assignee of or purchaser of, any of its rights
or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating
to any Borrower and its obligations, (g) with the consent of Borrowers or (h) to
the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to any
Lender on a nonconfidential basis from a source other than a Borrower or a
Person that such disclosing party knows is in breach of a confidentiality
obligation to a Loan Party.


 


For
purposes of this Section, “Information” means all information received from any
Borrower or any of its Subsidiaries relating to Holdings, Borrowers or any of
their Subsidiaries or any of their respective businesses, other than any such
information that is available to any Lender on a nonconfidential basis prior to
disclosure by a Borrower.  Any Person
required to maintain the confidentiality of Information as provided in this Section 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 to its own confidential information.


 


Section 12.17       Usury
Savings Clause.


 


Notwithstanding
any other provision herein, the aggregate interest rate charged with respect to
any of the Obligations, including all charges or fees in connection therewith
deemed in the nature of interest under applicable law shall not exceed the
Highest Lawful Rate.  If the rate of
interest (determined without regard to the preceding sentence) under this
Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount
of the Notes issued hereunder shall bear interest at the Highest Lawful Rate
until the total amount of interest due hereunder equals the amount of interest
which would have been due hereunder if the stated rates of interest set forth
in this Agreement had at all times been in effect.  In addition, if when the Notes issued
hereunder are repaid in full the total interest due hereunder (taking into
account the increase provided for above) is less than the total amount of
interest which would have been due hereunder if the stated rates of interest
set forth in this Agreement had at all times been in effect, then to the extent
permitted by law, Borrowers shall pay to the Lenders an amount equal to the
difference between the amount of interest paid and the amount of interest which
would have been paid if the Highest Lawful Rate had at all times been in
effect.  Notwithstanding the foregoing,
it is the intention of Lenders and Borrowers to conform strictly to any
applicable usury laws.  Accordingly, if
any Lender contracts for, charges, or receives any consideration which
constitutes interest in excess of the 


 


82

















 


Highest
Lawful Rate, then any such excess shall be cancelled automatically and, if
previously paid, shall at such Lender’s option be applied to the outstanding
amount of the Notes issued hereunder or be refunded to Borrowers.


 


Section 12.18       Counterparts;
Integration; Effectiveness.


 


This
Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract.  This Agreement and any separate letter
agreements with respect to fees payable to the Purchaser or the other Lenders
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof.  Except as provided in Article Three,
this Agreement shall become effective when it shall have been executed by the
Initial Lenders and when the Purchaser shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.  Delivery of an executed counterpart of a
signature page of this Agreement by telecopy or electronic mail shall be
effective as delivery of a manually executed counterpart of this Agreement.


 


Section 12.19       Entire Agreement.


 


This
Agreement represents the entire agreement of the parties with regard to the
subject matter hereof, and the terms of any letters and other documentation
entered into between any of the parties hereto prior to the execution of this
Agreement which relate to the Notes to be issued hereunder shall be replaced by
the terms of this Agreement.


 


Section 12.20       Patriot Act Notification.


 


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


 


[Remainder of page intentionally left
blank]


 


83

















 


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


 


 


	
   

  	
  MR DEFAULT SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Jennifer Dorris

  
	
   

  	
   

  	
   

  	
  Name:
  Jennifer Dorris

  
	
   

  	
   

  	
   

  	
  Title:
  Vice President, CFO and Secretary

  
	
   

  	
   

  
	
   

  	
  E-DEFAULT SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Jennifer Dorris

  
	
   

  	
   

  	
   

  	
  Name:
  Jennifer Dorris

  
	
   

  	
   

  	
   

  	
  Title:
  Vice President, CFO and Secretary

  
	
   

  	
   

  
	
   

  	
  STATEWIDE TAX AND TITLE SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Jennifer Dorris

  
	
   

  	
   

  	
   

  	
  Name:
  Jennifer Dorris

  
	
   

  	
   

  	
   

  	
  Title:
  Vice President, CFO and Secretary

  
	
   

  	
   

  
	
   

  	
  STATEWIDE PUBLISHING SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Jennifer Dorris

  
	
   

  	
   

  	
   

  	
  Name:
  Jennifer Dorris

  
	
   

  	
   

  	
   

  	
  Title:
  Vice President, CFO and Secretary

  
	
   

  	
   

  
	
   

  	
  MR PROCESSING HOLDING CORP.

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Jennifer Dorris

  
	
   

  	
   

  	
   

  	
  Name:
  Jennifer Dorris

  
	
   

  	
   

  	
   

  	
  Title:
  Vice President, CFO and Secretary

  
	
   

  	
   

  
	
   

  	
  THE ROYAL BANK OF SCOTLAND PLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Jennifer Dorris

  
	
   

  	
   

  	
   

  	
  Name:
  Jennifer Dorris

  
	
   

  	
   

  	
   

  	
  Title:
  Vice President, CFO and Secretary

  



 

















 


	
   

  	
  ARES CAPITAL CP FUNDING, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Michael Arougheti

  
	
   

  	
   

  	
   

  	
  Name: Michael
  Arougheti

  
	
   

  	
   

  	
   

  	
  Title: President

  



 














 


SCHEDULE
A


TO
PURCHASE AGREEMENT


 


Information
Regarding Initial Lenders


 


	
  Name of Initial Lender

  	
   

  	
  Amount of Notes Purchased

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Ares Capital CP Funding, LLC

  	
   

  	
  $

  	
  28,303,746.81

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Royal Bank of Scotland plc

  	
   

  	
  $

  	
  26,696,253.19

  	
   

  



 

















 


SCHEDULE
1.01


TO PURCHASE AGREEMENT


 


Consolidated
Adjusted EBITDA:


 


	
  FISCAL QUARTER

  ENDING

  	
   

  	
  CONSOLIDATED ADJUSTED EBITDA

  	
   

  
	
  June 30, 2006

  	
   

  	
  $

  	
  7,091,644

  	
   

  
	
  September 30, 2006

  	
   

  	
  $

  	
  7,816,682

  	
   

  
	
  December 31, 2006

  	
   

  	
  $

  	
  9,325,170

  	
   

  
	
  March 31, 2007

  	
   

  	
  From January 1, 2007 through the Closing Date, historical EBITDA
  of (i) Holdings and its Subsidiaries and (ii) the businesses
  acquired in the Phase 1 Acquisitions, as adjusted using the adjustments set
  forth in the report prepared by PWC with respect to the twelve-month period
  ended September 30, 2006, plus the actual Consolidated Adjusted
  EBITDA of Holdings and its Subsidiaries from the Closing Date through
  March 31, 2007

  	
   

  



 


Consolidated
Capital Expenditures:


 


	
  FISCAL QUARTER

  ENDING

  	
   

  	
  CONSOLIDATED CAPITAL

  EXPENDITURES

  	
   

  
	
  June 30, 2006

  	
   

  	
  $

  	
  439,127

  	
   

  
	
  September 30, 2006

  	
   

  	
  $

  	
  190,620

  	
   

  
	
  December 31, 2006

  	
   

  	
  $

  	
  363,789

  	
   

  
	
  March 31, 2007

  	
   

  	
  From January 1, 2007 through the Closing Date, $200,000, plus
  the actual Consolidated Capital Expenditures of Holdings and its Subsidiaries
  from the Closing Date through March 31, 2007

  	
   

  



 

















 


Taxes on income paid in Cash:


 


	
  FISCAL QUARTER

  ENDING

  	
   

  	
  TAXES ON INCOME PAID IN CASH

  	
   

  
	
  June 30, 2006

  	
   

  	
  $

  	
  0

  	
   

  
	
  September 30, 2006

  	
   

  	
  $

  	
  0

  	
   

  
	
  December 31, 2006

  	
   

  	
  $

  	
  0

  	
   

  
	
  March 31, 2007

  	
   

  	
  From January 1, 2007 through the Closing Date, $0, plus
  the actual Taxes on income paid in Cash from the Closing Date through
  March 31, 2007

  	
   

  



 

















 


EXHIBIT A


 


Form of Face of Note


 


THE
SECURITY REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE
SECURITIES LAWS.  SUCH SECURITY MAY BE
OFFERED, SOLD OR TRANSFERRED ONLY IN COMPLIANCE WITH THE REQUIREMENTS OF SUCH
ACT AND OF ANY APPLICABLE STATE SECURITIES LAWS AND SUBJECT TO THE PROVISIONS
OF THE PURCHASE AGREEMENT, DATED AS OF FEBRUARY 9, 2007, AMONG MR DEFAULT
SERVICES LLC (“MR”), E-DEFAULT SERVICES LLC, (“E-DEFAULT”),
STATEWIDE TAX AND TITLE SERVICES LLC (“STT”), STATEWIDE PUBLISHING
SERVICES LLC (“STATEWIDE PUBLISHING” AND TOGETHER WITH MR, E-DEFAULT AND
STT, ON A JOINT AND SEVERAL BASIS, THE “BORROWERS”), MR PROCESSING
HOLDING CORP. (“HOLDINGS”), CERTAIN SUBSIDIARIES OF BORROWERS, THE
LENDERS PARTY THERETO FROM TIME TO TIME AND THE ROYAL BANK OF SCOTLAND PLC (AS
IT MAY BE AMENDED FROM TIME TO TIME, THE “PURCHASE AGREEMENT”).  A COPY OF THE PURCHASE AGREEMENT IS AVAILABLE
AT THE OFFICES OF EACH OF THE BORROWERS.


 


THIS
NOTE AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE
MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AND
INTERCREDITOR AGREEMENT (AS IT MAY BE AMENDED FROM TIME TO TIME, THE “SUBORDINATION
AGREEMENT”) DATED AS OF FEBRUARY 9, 2007, AMONG THE ROYAL BANK OF SCOTLAND
PLC, IN ITS CAPACITY AS PURCHASER (AS SUCH TERM IS DEFINED IN THE PURCHASE
AGREEMENT), OTHER LENDERS UNDER THE PURCHASE AGREEMENT GOVERNING THIS NOTE FROM
TIME TO TIME PARTY THERETO, HOLDINGS, THE BORROWERS, CERTAIN SUBSIDIARIES OF
THE BORROWERS, THE ROYAL BANK OF SCOTLAND PLC, IN ITS CAPACITY AS
ADMINISTRATIVE AGENT (TOGETHER WITH ITS SUCCESSORS AND ASSIGNS, THE “ADMINISTRATIVE
AGENT”) AND COLLATERAL AGENT (TOGETHER WITH ITS SUCCESSOR AND ASSIGNS, THE
“COLLATERAL AGENT”) FOR THE LENDERS UNDER THE SENIOR CREDIT AGREEMENT
(AS DEFINED BELOW), TO THE INDEBTEDNESS (INCLUDING INTEREST) OWED BY THE
BORROWERS PURSUANT TO THAT CERTAIN CREDIT AND GUARANTY AGREEMENT DATED AS OF FEBRUARY
9, 2007 AMONG THE BORROWERS, HOLDINGS, CERTAIN SUBSIDIARIES OF BORROWERS, THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE LENDERS FROM TIME TO TIME
PARTY THERETO (THE “SENIOR CREDIT AGREEMENT”), AS SUCH SENIOR CREDIT
AGREEMENT MAY BE AMENDED, SUPPLEMENTED, RESTATED OR OTHERWISE MODIFIED
FROM TIME TO TIME AND TO INDEBTEDNESS REFINANCING THE INDEBTEDNESS UNDER THAT
AGREEMENT AS CONTEMPLATED BY THE SUBORDINATION AGREEMENT; AND EACH HOLDER OF
THIS NOTE, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE
PROVISIONS OF THE SUBORDINATION AGREEMENT.


 


THIS
NOTE IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT WITHIN THE MEANING OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND THE REGULATIONS
THEREUNDER.  UPON ANY LENDER’S REQUEST, THE CHIEF FINANCIAL OFFICER
OF THE BORROWERS WILL PROVIDE TO SUCH LENDER INFORMATION REGARDING THIS
NOTE’S ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO
MATURITY.


 

















 


13.50% Senior Subordinated
Note Due 2014


 


Date:
February 9, 2007


 


$              


 


MR Default Services LLC, a limited liability company
duly formed and existing under the laws of Delaware (“MR”), E-Default
Services LLC, a limited liability company duly formed and existing under the
laws of Delaware (“E-Default”), Statewide Tax and Title Services LLC, a
limited liability company duly formed and existing under the laws of Delaware (“STT”)
and Statewide Publishing Services LLC, a limited liability company duly formed
and existing under the laws of Delaware (“Statewide Publishing” and,
together with MR, E-Default and STT, on a joint and several basis, the “Borrowers,”
and each, a “Borrower”, which terms include any successor Person under
the Agreement (as defined on the reverse hereof)), for value received, hereby
promise, on a joint and several basis, to pay to                              , or registered
assigns, the principal sum of                                   on February 9,
2014 (the “Stated Maturity Date”), and to pay interest thereon from the
date hereof, quarterly in arrears on March 31, June 30, September 30
and December 31 in each year (or, if such day is not a Business Day, on
the next succeeding Business Day) commencing on June 30, 2007 and, if
different, on the Stated Maturity Date (each, an “Interest Payment Date”)
at the rate of 13.50% per annum, until the principal hereof is paid.  All interest payable with respect to this
Note shall be paid in cash; provided,
however, that on any Interest Payment Date, the Borrowers shall have
the option (provided that if the Borrowers choose not to pay such interest in
kind, the Borrowers have given to each Lender an irrevocable notice that they
will not exercise such option, at least three (3) Business Days prior to any
Interest Payment Date as to which such option shall not be exercised) to
capitalize and to add to the principal amount of this Note a portion of the
interest payable on this Note on such Interest Payment Date not exceeding the
interest that accrues on this Note for the period ending on such Interest
Payment Date at the rate of up to 2.0% per annum.  Such capitalized interest shall be referred
to for purposes hereof as the “Capitalized Interest.”


 


Interest shall be computed on the basis of a 360-day
year of twelve 30-day months.  The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Agreement, be paid to the Person in whose
name this Note is registered on the Security Register at the close of business
on the Regular Record Date for such interest, which shall be the fifteenth
calendar day (whether or not a Business Day) immediately preceding such
Interest Payment Date.  Notwithstanding
the foregoing, if this Note is issued after a Regular Record Date and prior to
an Interest Payment Date, the record date for such Interest Payment Date shall
be the original issue date.


 


Notwithstanding any provision of this Note to the
contrary, if the aggregate amount of accrued and unpaid interest (including any
Capitalized Interest) and original issue discount on any Interest Payment Date
following the fifth anniversary of the issuance of the Notes, would, but for
the provisions of this paragraph, exceed an amount equal to the product of (i) the
issue price (as defined in Sections 1273(b) and 1274(a) of the
Internal Revenue Code and the regulations thereunder) of the Notes and (ii) the
yield to maturity (interpreted in accordance with Section 163(i) of
the Internal Revenue Code and the regulations thereunder) of the Notes (such
product, the “Maximum Accrual”), then all accrued and unpaid interest
(including any interest that is capitalized and added to principal in
accordance with the terms hereof) and original issue discount on the Notes in
excess of an amount equal to the Maximum Accrual shall be paid in cash by
Borrowers on each such Interest Payment Date (any such payment, “Catch-Up
Interest”).


 


If an Event of Default (as defined in the Agreement)
has occurred and is continuing due to (i) nonpayment when due of interest
on, principal of, or premium, if any, on this Note, (ii) bankruptcy
(voluntary or involuntary) or insolvency or (iii) breach of any financial
covenants set forth in Section 6.08 of the Agreement, this Note
will accrue interest at 2.0% per annum (the “Default Rate”) plus the
stated interest rate on this Note until such time as no such Event of Default
shall be continuing (to the extent that


 

















 


the
payment of such interest shall be legally enforceable).  The Borrowers may, at their option, pay
additional interest at the Default Rate in cash or in kind, as set forth in the
Agreement.


 


The Borrower shall pay the amounts due hereunder in
money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. 
The Borrowers will make all cash payments in respect of a Note
(including principal, premium, if any, and interest), by mailing a check on or
before the due date for such payment to the registered address of each Lender
(as defined in the Agreement) thereof as it shall appear in the Security
Register (as defined in the Agreement); provided,
however, that payments on the
Notes may also be made by wire transfer to such account maintained by the payee
with a bank in the United States if such Lender elects payment by wire transfer
by giving written notice to such effect to any Borrower designating such
account no less than 15 days immediately preceding the due date for payment.


 


Each holder of this Note will be deemed, by its
acceptance hereof, (A)(i) to have agreed to the confidentiality provisions
set forth in Section 12.16 of the Agreement and (ii) the
provisions of the Subordination Agreement and (B) to have made the
representations set forth in Section 11.01 of the Agreement.


 


Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.


 

















 


IN WITNESS WHEREOF, the Borrowers have caused this
instrument to be duly executed as of the date first above written.


 


	
   

  	
  MR DEFAULT SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jennifer Dorris

  
	
   

  	
   

  	
     Name:
  Jennifer Dorris

  
	
   

  	
   

  	
     Title:
  Vice President, CFO and Secretary

  
	
   

  	
   

  
	
   

  	
  E-DEFAULT SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jennifer Dorris

  
	
   

  	
   

  	
     Name:
  Jennifer Dorris

  
	
   

  	
   

  	
     Title:
  Vice President, CFO and Secretary

  
	
   

  	
   

  
	
   

  	
  STATEWIDE TAX AND TITLE SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jennifer Dorris

  
	
   

  	
   

  	
     Name:
  Jennifer Dorris

  
	
   

  	
   

  	
     Title:
  Vice President, CFO and Secretary

  
	
   

  	
   

  
	
   

  	
  STATEWIDE PUBLISHING SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jennifer Dorris

  
	
   

  	
   

  	
     Name:
  Jennifer Dorris

  
	
   

  	
   

  	
     Title:
  Vice President, CFO and Secretary

  



 














 


This Note is one of a duly authorized issue of securities of the
Borrowers designated as their 13.50% Senior Subordinated Notes due 2014 (herein
called the “Notes”), limited in aggregate original principal amount to
$55,000,000, issued and to be issued pursuant to the Purchase Agreement, dated
as of February 9, 2007 (herein called the “Agreement”), by and
among MR DEFAULT SERVICES LLC, a Delaware limited liability company (“MR”),
E-DEFAULT SERVICES LLC, a Delaware limited liability company (“E-Default”),
STATEWIDE TAX AND TITLE SERVICES LLC, a Delaware limited liability company (“STT”),
STATEWIDE PUBLISHING SERVICES LLC, a Delaware limited liability company (“Statewide
Publishing” and, together with MR, E-Default and STT, on a joint and
several basis, “Borrowers”), MR PROCESSING HOLDING CORP., a Delaware
corporation (“Holdings”), certain subsidiaries of Borrowers, as
Guarantors, the Lenders party thereto from time to time and THE ROYAL BANK OF
SCOTLAND PLC (“RBS” or the “Purchaser”), to which Agreement and all
amendments thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the
Borrowers and the Lenders and of the terms upon which the Notes are, and are to
be, issued and delivered.  All
capitalized terms used and not defined in this Note shall have the meanings
assigned to such terms in the Agreement.


 


The Notes are subject to redemption, at the election
of the Borrowers, upon not less than ten (10) or more than sixty (60) days’
notice by mail (which notice may be conditional upon the effectiveness of other
financing), in whole or in part, at any time after February 9, 2007, at
the Redemption Price expressed as the percentage of the outstanding principal
amount thereof (including Capitalized Interest) set forth in the right hand
column below, together with accrued and unpaid interest on such principal
amount through the date of prepayment:


 


	
   

  	
  Redemption Date

  	
   

  	
  Redemption Price

  	
   

  
	
   

  	
  February 9, 2007 — February 9, 2008

  	
   

  	
  103.0%

  	
   

  
	
   

  	
  February 9, 2008 — February 9, 2009

  	
   

  	
  101.0%

  	
   

  
	
   

  	
  After February 9, 2009

  	
   

  	
  Par

  	
   

  



 


The Agreement provides that, subject to certain
conditions, if a Liquidity Event occurs, the Borrowers shall be required to
make an offer to purchase all or a specified portion of the Notes at the price
applicable to such offer to purchase as if it were a redemption, at the
election of the Borrowers, made in accordance with the foregoing paragraph.


 


If less than all the Notes are to be redeemed, the
Notes shall be redeemed pro rata
from each Lender; provided, however,
that any such redemption shall be for an aggregate principal amount of not less
than $1,000,000 (or the remaining outstanding principal amount).


 


The Notes do not have the benefit of any sinking
fund obligations.


 


In the event of a redemption or purchase pursuant to
a Liquidity Event Offer of this Note in part only, a new Note or Notes for the
unredeemed or unpurchased portion hereof will be issued in the name of the
Lender hereof upon the cancellation hereof.


 


This Note is subject to the provisions of the
Subordination Agreement.  Each Lender of
this Note, by accepting the same, agrees to and shall be bound by such
provisions.


 


If an Event of Default shall occur and be
continuing, the principal of all the Notes may be


 

















 


declared
due and payable in the manner and with the effect provided in the
Agreement.  Upon payment of (i) the
principal so declared due and payable and any overdue installment of interest, (ii) any
overdue principal and premium payable upon redemption or repurchase of this
Note, and (iii) interest on any overdue principal of, and any premium and
interest on, this Note (in each case to the extent that the payment of such
interest shall be legally enforceable) all of Borrowers’ obligations in respect
of the payment of the principal of, and interest on, this Note shall terminate.


 


The Agreement permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Borrowers and certain rights of the Lenders under the
Agreement at any time by the Borrowers with the consent of the Requisite
Lenders.  The Agreement also contains
provisions requiring the prior written consent of each Lender affected thereby
to waive compliance by the Borrowers with certain provisions of the
Agreement.  Any such consent or waiver by
the Lender of this Note shall be conclusive and binding upon such Lender and
upon all future Lenders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.


 


As provided in the Agreement
and subject to certain limitations therein set forth, the transfer of this Note
is registrable in the Security Register upon surrender of this Note for
registration of transfer at the principal offices of the Borrowers, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Borrowers duly executed by, the Lender hereof or its
attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.  Prior to due presentment for registration of
transfer, the Borrowers shall treat the person in whose name this Note is
registered as the owner and holder hereof for the purpose of receiving payment
and for all other purposes, and the Borrowers will not be affected by any
notice or knowledge to the contrary.


 


The Notes are issuable only
in registered form without coupons in minimum denominations of $1,000.  As provided in the Agreement and subject to
certain limitations therein set forth, Notes are exchangeable for a like
aggregate principal amount of Notes of a different authorized denomination, as
requested by the Lender surrendering the same.


 


No service charge shall be made for any such
registration of transfer or exchange, but the Borrowers may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith in accordance with the terms of the Agreement.


 


In the event any interest is paid on this Note which
exceeds the highest rate permissible under any law that a court of competent
jurisdiction shall, in a final determination, deem applicable, then that
portion of the interest payment received in excess of such legal maximum shall
be deemed a payment of principal and applied against the principal balance of
this Note.


 


THE AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCLUDING
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.


 

















 


OPTION OF LENDER TO ELECT PURCHASE


 


If
you want to elect to have this Note purchased in its entirety by the Borrowers
pursuant to Section 9.06 of the Agreement, check the box:  o


 


If
you want to elect to have only a part of the principal amount of this Note
purchased by the Borrowers pursuant to Section 9.06 of the
Agreement, state the portion of such amount: $              


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your Signature:

  	
   

  
	
   

  	
   

  	
     (Sign exactly as name appears on the other side of this Note)

  



 

















 


ASSIGNMENT FORM


 


To
assign this Note, fill in the form below:


 


	
  (I) or (we) assign and transfer this Note to:

  	
   

  	
   

  
	
   

  	
  (Insert assignee’s legal
  name)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Insert
  assignee’s soc. sec. or tax I.D. no.)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Print
  or type assignee’s name, address and zip code)

  	
   

  
				



 


and
irrevocably appoint
                                                                                                                                                            
to transfer this Note on the books of the Borrowers.  The agent may substitute another to act for
him.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your Signature:

  	
   

  
	
   

  	
   

  	
  (Sign exactly as your name appears on the face of this Note)