Exhibit 10.1




 





 


CREDIT AND GUARANTY 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,


 


RBS SECURITIES CORPORATION,

as Sole Lead Arranger, Sole Book Runner and Syndication Agent,


 


and


 


THE ROYAL BANK OF SCOTLAND PLC,

as Administrative Agent, Collateral Agent and Documentation Agent


 


$150,000,000 Senior Secured Credit Facilities




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE One DEFINITIONS

  
	
   

  
	
  Section 1.01

  	
  Definitions

  	
  2

  
	
  Section 1.02

  	
  Accounting
  Terms

  	
  33

  
	
  Section 1.03

  	
  Interpretation,
  etc

  	
  34

  
	
  Section 1.04

  	
  Construction

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  Two LOANS AND LETTERS OF CREDIT

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Term
  Loan Commitments

  	
  34

  
	
  Section 2.02

  	
  Borrowing
  Mechanics for Term Loans

  	
  35

  
	
  Section 2.03

  	
  Revolving
  Commitments

  	
  36

  
	
  Section 2.04

  	
  Borrowing
  Mechanics for Revolving Loans

  	
  36

  
	
  Section 2.05

  	
  Swing
  Line Loans Commitments

  	
  36

  
	
  Section 2.06

  	
  Borrowing
  Mechanics for Swing Line Loans

  	
  37

  
	
  Section 2.07

  	
  Letters
  of Credit

  	
  39

  
	
  Section 2.08

  	
  Notice
  of Issuance

  	
  39

  
	
  Section 2.09

  	
  Responsibility
  of Issuing Bank with Respect to Requests for Drawings and Payments

  	
  39

  
	
  Section 2.10

  	
  Reimbursement
  by Borrowers of Amounts Drawn or Paid Under Letters of Credit

  	
  40

  
	
  Section 2.11

  	
  Lenders’
  Purchase of Participations in Letters of Credit

  	
  40

  
	
  Section 2.12

  	
  Obligations
  Absolute

  	
  41

  
	
  Section 2.13

  	
  Indemnification

  	
  42

  
	
  Section 2.14

  	
  Pro
  Rata Shares

  	
  42

  
	
  Section 2.15

  	
  Availability
  of Funds

  	
  42

  
	
  Section 2.16

  	
  Use
  of Proceeds

  	
  43

  
	
  Section 2.17

  	
  Lenders’
  Evidence of Debt

  	
  43

  
	
  Section 2.18

  	
  Notes

  	
  43

  
	
  Section 2.19

  	
  Interest
  Rate on Loans

  	
  44

  
	
  Section 2.20

  	
  Interest
  Rate

  	
  44

  
	
  Section 2.21

  	
  Conversion/Continuation

  	
  45

  
	
  Section 2.22

  	
  Default
  Interest

  	
  46

  
	
  Section 2.23

  	
  Fees

  	
  46

  
	
  Section 2.24

  	
  Scheduled
  Installments

  	
  47

  
	
  Section 2.25

  	
  Voluntary
  Prepayments

  	
  49

  
	
  Section 2.26

  	
  Voluntary
  Commitment Reductions

  	
  50

  
	
  Section 2.27

  	
  Mandatory
  Prepayments

  	
  50

  
	
  Section 2.28

  	
  Mandatory
  Commitment Reductions of Revolving Loans

  	
  51

  
	
  Section 2.29

  	
  Prepayment
  Certificate

  	
  52

  
	
  Section 2.30

  	
  Application
  of Prepayments/Reductions

  	
  52

  
	
  Section 2.31

  	
  General
  Provisions Regarding Payments

  	
  53

  
	
  Section 2.32

  	
  Sharing
  of Payments by Lenders

  	
  54

  
	
  Section 2.33

  	
  Making
  or Maintaining Eurodollar Rate Loans

  	
  55

  
	
  Section 2.34

  	
  Compensation
  For Increased Costs

  	
  56

  
	
  Section 2.35

  	
  Capital
  Requirements; Certificates for Reimbursement; Delay in Requests

  	
  57

  
	
  Section 2.36

  	
  Taxes

  	
  58

  
	
  Section 2.37

  	
  Mitigation
  Obligations; Replacement of Lenders

  	
  60

  
	
  Section 2.38

  	
  Defaulting
  Lenders

  	
  61

  



 


i

















 


	
  Section 2.39

  	
  Joint
  and Several Liability

  	
  62

  
	
  Section 2.40

  	
  Increase
  in Commitments

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  Three CONDITIONS PRECEDENT

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Conditions
  to Closing Date

  	
  65

  
	
  Section 3.02

  	
  Conditions
  to Delayed Draw Term Loans

  	
  70

  
	
  Section 3.03

  	
  Conditions
  to Each Credit Extension

  	
  71

  
	
   

  
	
  ARTICLE
  Four REPRESENTATIONS AND WARRANTIES

  
	
   

  
	
  Section 4.01

  	
  Organization;
  Requisite Power and Authority; Qualification

  	
  72

  
	
  Section 4.02

  	
  Capital
  Stock and Ownership

  	
  73

  
	
  Section 4.03

  	
  Due
  Authorization

  	
  73

  
	
  Section 4.04

  	
  No
  Conflict

  	
  73

  
	
  Section 4.05

  	
  Governmental
  Consents

  	
  73

  
	
  Section 4.06

  	
  Binding
  Obligation

  	
  74

  
	
  Section 4.07

  	
  Pro
  Forma Financial Statements

  	
  74

  
	
  Section 4.08

  	
  Projections

  	
  74

  
	
  Section 4.09

  	
  No
  Material Adverse Change

  	
  74

  
	
  Section 4.10

  	
  No
  Restricted Junior Payments

  	
  74

  
	
  Section 4.11

  	
  Adverse
  Proceedings, etc

  	
  74

  
	
  Section 4.12

  	
  Payment
  of Taxes

  	
  75

  
	
  Section 4.13

  	
  Properties

  	
  75

  
	
  Section 4.14

  	
  Environmental
  Matters

  	
  75

  
	
  Section 4.15

  	
  No
  Defaults

  	
  76

  
	
  Section 4.16

  	
  Material
  Contracts

  	
  76

  
	
  Section 4.17

  	
  Governmental
  Regulation

  	
  76

  
	
  Section 4.18

  	
  Margin
  Stock

  	
  76

  
	
  Section 4.19

  	
  Employee
  Matters

  	
  77

  
	
  Section 4.20

  	
  Employee
  Benefit Plans

  	
  77

  
	
  Section 4.21

  	
  Certain
  Fees

  	
  78

  
	
  Section 4.22

  	
  Solvency

  	
  78

  
	
  Section 4.23

  	
  Related
  Agreements

  	
  78

  
	
  Section 4.24

  	
  Compliance
  with Statutes, etc

  	
  78

  
	
  Section 4.25

  	
  Disclosure

  	
  78

  
	
  Section 4.26

  	
  Intellectual
  Property

  	
  79

  
	
  Section 4.27

  	
  No
  Default

  	
  79

  
	
  Section 4.28

  	
  Investigations,
  Audits, Etc

  	
  79

  
	
  Section 4.29

  	
  Agreements
  with Managers

  	
  79

  
	
  Section 4.30

  	
  Subordinated
  Indebtedness

  	
  79

  
	
  Section 4.31

  	
  Foreign
  Assets Control Regulations

  	
  80

  
	
  Section 4.32

  	
  Patriot
  Act

  	
  80

  
	
  Section 4.33

  	
  RICO

  	
  80

  
	
  Section 4.34

  	
  Unauthorized
  UCC Filings

  	
  80

  
	
   

  
	
  ARTICLE
  Five AFFIRMATIVE COVENANTS

  
	
   

  
	
  Section 5.01

  	
  Financial
  Statements and Other Reports

  	
  81

  
	
  Section 5.02

  	
  Existence

  	
  84

  
	
  Section 5.03

  	
  Payment
  of Taxes

  	
  84

  



 


ii

















 


	
  Section 5.04

  	
  Maintenance
  of Properties

  	
  85

  
	
  Section 5.05

  	
  Insurance

  	
  85

  
	
  Section 5.06

  	
  Inspections

  	
  85

  
	
  Section 5.07

  	
  Lenders
  Meetings

  	
  86

  
	
  Section 5.08

  	
  Compliance
  with Laws

  	
  86

  
	
  Section 5.09

  	
  Environmental
  Disclosure

  	
  86

  
	
  Section 5.10

  	
  Hazardous
  Materials Activities, etc

  	
  87

  
	
  Section 5.11

  	
  Subsidiaries

  	
  87

  
	
  Section 5.12

  	
  Additional
  Material Real Estate Assets

  	
  88

  
	
  Section 5.13

  	
  Interest
  Rate Protection

  	
  88

  
	
  Section 5.14

  	
  Further
  Assurances

  	
  88

  
	
  Section 5.15

  	
  Cash
  Management Systems

  	
  88

  
	
  Section 5.16

  	
  Books
  and Records

  	
  88

  
	
  Section 5.17

  	
  Performance
  of Leases, Related Documents and Other Material Agreements

  	
  89

  
	
  Section 5.18

  	
  Unauthorized
  UCC Filings

  	
  89

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  Six NEGATIVE COVENANTS

  
	
   

  
	
  Section 6.01

  	
  Indebtedness

  	
  89

  
	
  Section 6.02

  	
  Liens

  	
  91

  
	
  Section 6.03

  	
  Equitable
  Lien

  	
  93

  
	
  Section 6.04

  	
  No
  Further Negative Pledges

  	
  93

  
	
  Section 6.05

  	
  Restricted
  Junior Payments

  	
  93

  
	
  Section 6.06

  	
  Restrictions
  on Subsidiary Distributions

  	
  94

  
	
  Section 6.07

  	
  Investments

  	
  95

  
	
  Section 6.08

  	
  Financial
  Covenants

  	
  96

  
	
  Section 6.09

  	
  Fundamental
  Changes; Disposition of Assets; Acquisitions

  	
  101

  
	
  Section 6.10

  	
  Disposal
  of Subsidiary Interests

  	
  102

  
	
  Section 6.11

  	
  Sales
  and Lease-Backs

  	
  102

  
	
  Section 6.12

  	
  Transactions
  with Shareholders and Affiliates

  	
  102

  
	
  Section 6.13

  	
  Conduct
  of Business

  	
  103

  
	
  Section 6.14

  	
  Permitted
  Activities of Holdings

  	
  103

  
	
  Section 6.15

  	
  Amendments
  or Waivers of Certain Related Agreements

  	
  103

  
	
  Section 6.16

  	
  Amendments
  or Waivers of with Respect to Senior Subordinated Notes

  	
  103

  
	
  Section 6.17

  	
  Fiscal
  Year

  	
  103

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  Seven GUARANTY

  
	
   

  
	
  Section 7.01

  	
  Guaranty
  of the Obligations

  	
  104

  
	
  Section 7.02

  	
  Contribution
  by Guarantors

  	
  104

  
	
  Section 7.03

  	
  Payment
  by Guarantors

  	
  105

  
	
  Section 7.04

  	
  Liability
  of Guarantors Absolute

  	
  105

  
	
  Section 7.05

  	
  Waivers
  by Guarantors

  	
  107

  
	
  Section 7.06

  	
  Guarantors’
  Rights of Subrogation, Contribution, etc

  	
  107

  
	
  Section 7.07

  	
  Subordination
  of Other Obligations

  	
  108

  
	
  Section 7.08

  	
  Continuing
  Guaranty

  	
  108

  
	
  Section 7.09

  	
  Authority
  of Guarantors or Borrowers

  	
  108

  
	
  Section 7.10

  	
  Financial
  Condition of Borrowers

  	
  109

  
	
  Section 7.11

  	
  Bankruptcy,
  etc

  	
  109

  
	
  Section 7.12

  	
  Discharge
  of Guaranty upon Sale of Guarantor

  	
  110

  



 


iii

















 


	
  ARTICLE
  Eight EVENTS OF DEFAULT

  
	
   

  
	
  Section 8.01

  	
  Events
  of Default

  	
  110

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  Nine AGENTS

  
	
   

  
	
  Section 9.01

  	
  Appointment
  and Authority

  	
  113

  
	
  Section 9.02

  	
  Rights
  as a Lender

  	
  113

  
	
  Section 9.03

  	
  Exculpatory
  Provisions

  	
  113

  
	
  Section 9.04

  	
  Reliance
  by Administrative Agent and Collateral Agent

  	
  114

  
	
  Section 9.05

  	
  Delegation
  of Duties

  	
  114

  
	
  Section 9.06

  	
  Resignation
  of Administrative Agent

  	
  115

  
	
  Section 9.07

  	
  Non-Reliance
  on Agents and Other Lenders

  	
  116

  
	
  Section 9.08

  	
  No
  Other Duties, etc.

  	
  116

  
	
  Section 9.09

  	
  Collateral
  Documents and Guaranty

  	
  116

  
	
  Section 9.10

  	
  Withholding
  Taxes

  	
  117

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  Ten MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Notices;
  Effectiveness; Electronic Communication

  	
  117

  
	
  Section 10.02

  	
  Expenses;
  Indemnity; Damage Waiver

  	
  118

  
	
  Section 10.03

  	
  Right
  of Set-Off

  	
  120

  
	
  Section 10.04

  	
  Amendments
  and Waivers

  	
  121

  
	
  Section 10.05

  	
  Execution
  of Amendments, etc

  	
  122

  
	
  Section 10.06

  	
  Successors
  and Assigns; Participations

  	
  123

  
	
  Section 10.07

  	
  Independence
  of Covenants

  	
  126

  
	
  Section 10.08

  	
  Survival
  of Representations, Warranties and Agreements

  	
  126

  
	
  Section 10.09

  	
  No
  Waiver; Remedies Cumulative

  	
  126

  
	
  Section 10.10

  	
  Marshalling;
  Payments Set Aside

  	
  126

  
	
  Section 10.11

  	
  Severability

  	
  127

  
	
  Section 10.12

  	
  Obligations
  Several; Independent Nature of Lenders’ Rights

  	
  127

  
	
  Section 10.13

  	
  Headings

  	
  127

  
	
  Section 10.14

  	
  Governing
  Law; Jurisdiction; Etc.

  	
  127

  
	
  Section 10.15

  	
  WAIVER
  OF JURY TRIAL

  	
  128

  
	
  Section 10.16

  	
  Treatment
  of Certain Information; Confidentiality

  	
  128

  
	
  Section 10.17

  	
  Usury
  Savings Clause

  	
  129

  
	
  Section 10.18

  	
  Counterparts;
  Integration; Effectiveness

  	
  129

  
	
  Section 10.19

  	
  Electronic
  Execution of Assignments

  	
  129

  
	
  Section 10.20

  	
  Entire
  Agreement

  	
  130

  
	
  Section 10.21

  	
  Patriot Act Notification

  	
  130

  



 


iv

















 


	
  APPENDICES:

  
	
  A-1:

  	
   

  	
  Initial Term Loan
  Commitments

  
	
  A-2:

  	
   

  	
  Delayed Draw Term Loan
  Commitments

  
	
  A-3:

  	
   

  	
  Revolving Commitments

  
	
   

  	
   

  	
   

  
	
  SCHEDULES:

  
	
  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-1:

  	
   

  	
  Funding Notice

  
	
  A-2:

  	
   

  	
  Conversion/Continuation
  Notice

  
	
  A-3:

  	
   

  	
  Issuance Notice

  
	
  B-1:

  	
   

  	
  Term Loan Note

  
	
  B-2:

  	
   

  	
  Revolving Loan Note

  
	
  B-3:

  	
   

  	
  Swing Line Note

  
	
  B-4:

  	
   

  	
  Incremental Term Loan Note

  
	
  C:

  	
   

  	
  Compliance Certificate

  
	
  D:

  	
   

  	
  Opinions of Counsel

  
	
  E:

  	
   

  	
  Assignment and Assumption
  Agreement

  
	
  F-1:

  	
   

  	
  Closing Date Certificate

  
	
  F-2:

  	
   

  	
  Solvency Certificate

  
	
  G:

  	
   

  	
  Counterpart Agreement

  
	
  H:

  	
   

  	
  Pledge and Security
  Agreement

  
	
  I:

  	
   

  	
  Mortgage

  
	
  J:

  	
   

  	
  Landlord Collateral Access
  Agreement

  



 


v

















 


CREDIT AND GUARANTY AGREEMENT


 


This
CREDIT AND GUARANTY 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, RBS SECURITIES CORPORATION (“RBSS”), as Sole Lead
Arranger, Sole Book Runner and Syndication Agent (in such respective
capacities, “Lead Arranger,” “Book Runner,” and “Syndication
Agent”), and THE ROYAL BANK OF SCOTLAND PLC (“RBS plc”), as
Administrative Agent, Collateral Agent and Documentation Agent (in such
respective capacities, “Administrative Agent,” “Collateral Agent”
and “Documentation Agent”).


 


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, Lenders have agreed
to extend certain credit facilities to Borrowers, in an aggregate amount not to
exceed $150,000,000, consisting of (i) $110,000,000 aggregate principal
amount of Initial Term Loans, (ii) up to $30,000,000 aggregate principal
amount of Delayed Draw Term Loans and (iii) up to $10,000,000 aggregate
principal amount of Revolving Commitments;


 


WHEREAS, (i) the
proceeds of the Initial Term Loans will be used, together with the Senior
Subordinated Notes, to (a) finance, in part, the Phase 1 Acquisitions, (b) refinance
all Existing Indebtedness of the Borrowers, (c) pay fees and expenses
incurred in connection with the Transactions (other than any Phase 2
Acquisitions), and (d) provide ongoing working capital and for other
general corporate purposes of Borrowers and their Domestic Subsidiaries
(including, but not limited to Permitted Acquisitions); (ii) the proceeds
of the Delayed Draw Term Loans will be used to (a) finance any Phase 2
Acquisitions and (b) pay fees and expenses incurred in connection with any
Phase 2 Acquisitions; and (iii) the proceeds of the Revolving Loans shall
be used to provide ongoing working capital and for other general corporate
purposes of the Borrowers and their Domestic Subsidiaries (including, but not
limited to Permitted Acquisitions);


 


WHEREAS, Borrowers have
agreed to secure all of their Obligations by granting to Collateral Agent, for
the benefit of Secured Parties, a First Priority Lien on substantially all of
their respective assets, including a pledge of all of the Capital Stock of each
of their Domestic Subsidiaries and 65% of all the Capital Stock of each of
their Foreign Subsidiaries; and


 


WHEREAS, Guarantors have agreed
to guarantee the obligations of Borrowers hereunder and to secure their
respective Obligations by granting to Collateral Agent, for the benefit of
Secured Parties, a First Priority Lien on substantially all of their respective
assets, including a pledge of all of the 


 

















 


Capital Stock of each of
their respective Domestic Subsidiaries (including Borrowers) and 65% of all the
Capital Stock of each of their respective Foreign Subsidiaries.


 


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


 


ARTICLE ONE    

DEFINITIONS


 


Section 1.01         Definitions.


 


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


 


“Adjusted Eurodollar Rate”
means, for any Interest Rate Determination Date with respect to an Interest
Period for a Eurodollar Rate Loan, the rate per annum obtained by dividing (and
rounding upward to the next whole multiple of 1/100 of 1%) (i) (a) the
rate per annum (rounded to the nearest 1/100 of 1%) equal to the rate
determined by Administrative Agent to be the offered rate which appears on the page of
the Telerate Screen which displays an average British Bankers Association
Interest Settlement Rate (such page currently being page number 3740
or 3750, as applicable) for deposits (for delivery on the first day of such
period) with a term equivalent to such period in Dollars, determined as of
approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (b) in the event the rate referenced in the
preceding clause (a) does not appear on such page or service or if
such page or service shall cease to be available, the rate per annum
(rounded to the nearest 1/100 of 1%) equal to the rate determined by
Administrative Agent to be the offered rate on such other page or other
service which displays an average British Bankers Association Interest
Settlement Rate for deposits (for delivery on the first day of such period)
with a term equivalent to such period in Dollars, determined as of
approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (c) in the event the rates referenced in the
preceding clauses (a) and (b) are not available, the rate per annum
(rounded to the nearest 1/100 of 1%) equal to the offered quotation rate to
first class banks in the London interbank market by RBS plc for deposits (for
delivery on the first day of the relevant period) in Dollars of amounts in same
day funds comparable to the principal amount of the applicable Loan of
Administrative Agent, in its capacity as a Lender, for which the Adjusted
Eurodollar Rate is then being determined with maturities comparable to such
period as of approximately 11:00 a.m. (London, England time) on such
Interest Rate Determination Date, by (ii) an amount equal to (a) one minus
(b) the Applicable Reserve Requirement.


 


“Administrative Agent”
as defined in the preamble hereto.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by
Administrative Agent.


 


“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.


 


2

















 


“Affected Lender” as
defined in Section 2.33(b).


 


“Affected Loans” as defined
in Section 2.33(b).


 


“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.


 


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


 


“Aggregate Payments”
as defined in Section 7.02.


 


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


 


“Applicable Delayed Draw
Term Loan Commitment Fee” means (a) 1.00% per annum at any time that
the amount drawn under the Delayed Draw Term Loans is less than or equal to 50%
of the Delayed Draw Term Loan Commitments and (b) 0.75% per annum at any
time that the amount drawn under the Delayed Draw Term Loans is greater than
50% of the Delayed Draw Term Loan Commitments.


 


“Applicable Margin”
means (a) from the Closing Date until the beginning of the first Interest
Period after the date of delivery of the Compliance Certificate and the
financial statements for the second full Fiscal Quarter ending after the
Closing Date, a percentage, per annum, equal to (i) for Revolving Loans,
Initial Term Loans and Delayed Draw Term Loans, if any, that are Eurodollar
Rate Loans, 3.25% per annum and (ii) for Revolving Loans, Initial Term
Loans, Delayed Draw Term Loans, if any, and Swing Line Loans that are Base Rate
Loans, 2.25% per annum; and (b) thereafter, with respect to Revolving
Loans, Initial Term Loans, Delayed Draw Term Loans, if any, and Swing Line
Loans, a percentage, per annum, determined by reference to the Total Leverage
Ratio in effect from time to time as set forth below:


 


	
  TOTAL

  LEVERAGE

  RATIO

  	
   

  	
  APPLICABLE MARGIN FOR

  REVOLVING LOANS, INITIAL

  TERM LOANS AND DELAYED

  DRAW TERM LOANS

  (EURODOLLAR LOANS)

  	
   

  	
  APPLICABLE MARGIN

  FOR REVOLVING

  LOANS, INITIAL TERM

  LOANS, DELAYED

  DRAW TERM LOANS

  AND SWING LINE

  LOANS (BASE RATE

  LOANS)

  	
   

  
	
  >
  4.50:1.00

  	
   

  	
  3.25%

  	
   

  	
  2.25%

  	
   

  
	
  < 4.50:1.00
  and  > 3.50:1.00

  	
   

  	
  3.00%

  	
   

  	
  2.00%

  	
   

  
	
  < 3.50:1.00

  	
   

  	
  2.75%

  	
   

  	
  1.75%

  	
   

  



 


No change in the Applicable
Margin shall be effective until three (3) Business Days after the date on
which Administrative Agent shall have received the applicable financial
statements and a Compliance Certificate pursuant to Section 5.01(d) calculating
the Total Leverage Ratio.  At any time
the


 


3














 


Borrowers have not submitted
to Administrative Agent the applicable information as and when required under Section 5.01(d),
the Applicable Margin shall be determined as if the Total Leverage Ratio were
in excess of 4.50:1.00 until three (3) Business Days after Borrowers
submit such information.  Within one
Business Day after receipt of the applicable information under Section 5.01(d),
Administrative Agent shall give each Lender telefacsimile or telephonic notice
(confirmed in writing) of the Applicable Margin in effect from such date.


 


In the event that
any Compliance Certificate delivered pursuant to Section 5.01(d) is
shown to be inaccurate (regardless of whether any Loans or Commitments are
outstanding when such inaccuracy is discovered), and such inaccuracy, if
corrected, would have led to the application of a higher Applicable Margin for
any period (an “Applicable Period”) than the Applicable Margin actually
applied for such Applicable Period, then (i) the Loan Parties shall
immediately deliver to Administrative Agent a correct Compliance Certificate
for such Applicable Period, (ii) the Applicable Margin shall be determined
as if the Total Leverage Ratio were as shown in such correct Compliance
Certificate for such Applicable Period, and (iii) Borrowers shall
immediately pay to Administrative Agent the accrued additional interest and
additional fees, if any, owing as a result of such increased Applicable
Margin for such Applicable Period. 
Nothing in this paragraph shall in any way limit the rights of any Agent
or the Lenders with respect to Section 2.22 or Article Eight.


 


“Applicable Percentage”
means with respect to any Lender, the percentage of the total Commitments
represented by such Lender’s Commitment. 
If the Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.


 


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


 


“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 


 


4

















 


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 $250,000 individually or in the
aggregate, during any Fiscal Year.


 


“Assignment and
Assumption Agreement” means an Assignment and Assumption Agreement entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06), and accepted by Administrative
Agent, in substantially the form of Exhibit E or any other form approved
by Administrative Agent.


 


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


 


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


 


“Base Rate” means,
for any day, a rate per annum equal to the greater of (i) the Prime Rate
in effect on such day and (ii) the Federal Funds Effective Rate in effect
on such day plus 1⁄2 of 1%.  Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds Effective
Rate shall be effective on the effective day of such change in the Prime Rate
or the Federal Funds Effective Rate, respectively.


 


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


 


“Beneficiary” means
each Agent, Issuing Bank, Lender and Lender Counterparty.


 


“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.


 


“Business Day” means (i) any
day excluding Saturday, Sunday and any day which is a legal holiday under the
laws of the State of New York or is a day on which banking institutions located
in such state are authorized or required by law or other governmental action to
close and (ii) with respect to all notices, determinations, fundings and
payments in connection with the Adjusted Eurodollar Rate or any Eurodollar Rate
Loans, the term “Business Day” shall mean any day which is a Business Day 


 


5

















 


described in clause (i) and
which is also a day for trading by and between banks in Dollar deposits in the
London interbank market.


 


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


 


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


 


“Cash” means money,
currency or a credit balance in any demand or Deposit Account.


 


“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.


 


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


 


“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;  (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 


 


6

















 


whom were directors on the
Closing Date or whose election or nomination for election was previously
approved by a majority of such directors; or (v) any “change of control”
or similar event under the Senior Subordinated Notes Documents shall occur.


 


“Class” means (i) with
respect to Lenders, each of the following classes of Lenders: (a) Lenders
having Term Loan Exposure, (b) Lenders having Incremental Term Loan
Exposure and (c) Lenders having Revolving Exposure (including Swing Line
Lender) and (ii) with respect to Loans, each of the following classes of
Loans: (a) Term Loans, (b) Incremental Term Loans and (c) Revolving
Loans (including Swing Line Loans).


 


“Closing Date” means
the date on which the Initial Term Loans are made, which occurred on February 9,
2007.


 


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


 


“Closing Date Mortgaged
Property” as defined in Section 3.01(h)(i).


 


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


 


“Collateral Agent” as
defined in the preamble hereto.


 


“Collateral Documents”
means the Subordination Agreement, the Pledge and Security Agreement, the
Mortgages, the Landlord Collateral Access Agreements, Control Agreements, IP
Security Agreements, if any, and all other instruments, documents and
agreements delivered by any Loan Party pursuant to this Agreement or any of the
other Loan Documents in order to grant to Collateral Agent, for the benefit of
Lenders, a Lien on any real, personal or mixed property of that Loan Party as
security for the Obligations.


 


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


 


“Commitment” means
any Revolving Commitment, Term Loan Commitment or Incremental Term Loan
Commitment.


 


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


 


“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 


 


7

















 


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.


 


“Consolidated Current
Assets” means, as at any date of determination, the total assets of
Holdings and its Subsidiaries on a consolidated basis that may properly be
classified as current assets in conformity with GAAP, excluding Cash and Cash
Equivalents.


 


“Consolidated Current
Liabilities” means, as at any date of determination, the total liabilities
of Holdings and its Subsidiaries on a consolidated basis that may properly be
classified as current liabilities in conformity with GAAP, excluding the
current portion of long term debt.


 


“Consolidated Excess Cash
Flow” means, for any period, an amount (if positive) equal to: (i) the
sum, without duplication, of the amounts for such period of (a) Consolidated
Adjusted EBITDA, plus (b) the Consolidated Working Capital Adjustment, minus
(ii) the sum, without duplication, of the amounts for such period of (a) voluntary
and scheduled repayments of Consolidated Total Debt (excluding voluntary
repayments of the Loans), (b) Consolidated Capital Expenditures (net of
any proceeds of (y) any related financings with respect to such
expenditures and (z) any sales of assets used to 


 


8

















 


finance such expenditures), (c) Consolidated
Cash Interest Expense, (d) provisions for current taxes based on income of
Holdings and its Subsidiaries and payable in cash with respect to such period, (e) any
working capital adjustment or other adjustment to the purchase price payable by
any Loan Party under the Phase 1 Acquisition Agreements after the Closing Date,
(f) Investments permitted under Sections 6.07(f), 6.07(g) and
6.07(n), (g) Restricted Junior Payments permitted under Sections 6.05(a) and
6.05(b) and (h) an amount equal to the aggregate of all amounts added
to Consolidated Adjusted EBITDA under clauses (f), (g), (h), (i), (j) and (l) of
the definition of Consolidated Adjusted EBITDA.


 


“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 and the Incremental Term Loans under Section 2.24 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 permitted to be reinvested under Section 2.27
or any Net Insurance/Condemnation proceeds permitted to be reinvested under Section 2.27,
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 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 this Agreement or in
the Fee Letter (as defined in the Purchase Agreement), 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 


 


9

















 


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 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).


 


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


 


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


 


“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.


 


10

















 


“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.


 


“Control Agreements”
means each control agreement delivered to the Collateral Agent for the benefit
of the Secured Parties and executed by the Collateral Agent, a securities
intermediary or depositary bank and the applicable Loan Party on the Closing
Date and each control agreement to be executed by the Collateral Agent, a
securities intermediary or depository bank and the applicable Loan Party
pursuant to the terms of the Pledge and Security Agreement with such
modifications as the Collateral Agent may reasonably request or approve.


 


“Conversion/Continuation
Date” means the effective date of a continuation or conversion, as the case
may be, as set forth in the applicable Conversion/Continuation Notice.


 


“Conversion/Continuation
Notice” means a Conversion/Continuation Notice substantially in the form of
Exhibit A-2.


 


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


 


“Credit Date” means
the date of a Credit Extension.


 


“Credit Extension”
means the making of a Loan or the issuing of a Letter of Credit.


 


“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 Excess”
means, with respect to any Defaulting Lender, the excess, if any, of such
Defaulting Lender’s Pro Rata Share of the aggregate outstanding principal
amount of Loans of all Lenders (calculated as if all Defaulting Lenders
(including such Defaulting Lender) had funded all of their respective Defaulted
Loans) over the aggregate outstanding principal amount of all Loans of such
Defaulting Lender.


 


“Default Period”
means, with respect to any Defaulting Lender, the period commencing on the date
of the applicable Funding Default and ending on the earliest of the following
dates:  (i) the date on which all
Commitments are cancelled or terminated and/or the Obligations are declared or
become immediately due and payable, (ii) the date on which (a) the
Default Excess with respect to such Defaulting Lender shall have been reduced
to zero (whether by the funding by such Defaulting Lender of any Defaulted
Loans of such Defaulting Lender or by the non-pro rata application of any
voluntary or mandatory prepayments of the Loans in accordance with the terms of
Sections 2.25, 2.26, 2.27 and 2.28 or by a combination thereof) and (b) such
Defaulting Lender shall have delivered to Borrowers and 


 


11

















 


Administrative Agent a
written reaffirmation of its intention to honor its obligations hereunder with
respect to its Commitments, and (iii) the date on which Borrowers,
Administrative Agent and Requisite Lenders waive all Funding Defaults of such
Defaulting Lender in writing.


 


“Defaulted Loan” as
defined in Section 2.38.


 


“Defaulting Lender”
as defined in Section 2.38.


 


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


 


“Delayed Draw Term Loan
Commitment” means the commitment of a Lender to make or otherwise fund a
Delayed Draw Term Loan and “Delayed Draw Term Loan Commitments” means such
commitments of all Lenders in the aggregate. 
The amount of each Lender’s Delayed Draw Term Loan Commitment, if any,
is set forth on Appendix A-2 or in the applicable Assignment and
Assumption Agreement, subject to any adjustment or reduction pursuant to the
terms and conditions hereof.  The
aggregate amount of the Delayed Draw Term Loan Commitments as of the Closing
Date is $30,000,000.


 


“Delayed Draw Term Loan
Commitment Period” means the time period commencing on the Closing Date
through and including the Delayed Draw Term Loan Commitment Termination Date.


 


“Delayed Draw Term Loan
Commitment Termination Date” means the earliest to occur of (i) the
date the Delayed Draw Term Loan Commitments are permanently reduced to zero
pursuant to Section 2.26, (ii) the date of the termination of the
Commitments pursuant to Section 8.01 and (iii) the date that is
eighteen months after the Closing Date.


 


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


 


“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 and (y) the
scheduled maturity date for the Senior Subordinated Notes.


 


“Documentation Agent”
as defined in the preamble hereto.


 


12

















 


“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.


 


“Eligible Assignee”
means (a) a Lender, (b) an Affiliate of a Lender, (c) an
Approved Fund, or (d) any other Person (other than a natural person)
approved by (i) Administrative Agent, (ii) in the case of any
assignment of a Revolving Commitment, the Issuing Bank and Swing Line Lender,
and (iii) in the case of any assignment of a Revolving Commitment, unless
an Event of Default has occurred and is continuing, Borrowers (each such
approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include any
Borrower or any of Holdings or any Equity Investor’s Affiliates or Subsidiaries
or any natural person.


 


“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) 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 


 


13

















 


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.


 


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


 


“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.


 


14














 


“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 Affiliate 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.


 


“Excluded Taxes”
means, with respect to Administrative Agent, any Lender, the Swing Line Lender,
the Issuing Bank or any other recipient of any payment to be made by or on
account of any obligation of Borrowers hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which any Borrower is located and (c) in
the case of a Foreign Lender (other than an assignee pursuant to a request by
Borrowers under Section 2.37), any withholding tax that is imposed on
amounts payable to such Foreign Lender at the time such Foreign Lender becomes
a party hereto (or designates a new lending office) or is attributable to such
Foreign Lender’s failure or inability (other than as a result of a Change in
Law) to comply with Section 2.36(e), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from Borrowers with respect to such withholding tax pursuant to Section 2.36(a).


 


“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 plc, 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.


 


15

















 


“Fair Share Shortfall”
as defined in Section 7.02.


 


“Federal Funds Effective
Rate” means for any day, the rate per annum (expressed, as a decimal,
rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided, (i) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (ii) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to Administrative Agent, in its  capacity as a Lender, on such day on such
transactions as determined by Administrative Agent.


 


“Final Maturity Date”
shall mean the latest of the Revolving Commitment Termination Date, the Term
Loan Maturity Date and any Incremental Term Loan Maturity Date applicable to
existing Incremental Term Loans, as of any date of determination.


 


“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).


 


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


 


“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.


 


“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.


 


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


 


“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.


 


16

















 


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


 


“Fraudulent Transfer Laws”
as defined in Section 2.39(a).


 


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


 


“Funding Borrower” as
defined in Section 2.39(b).


 


“Funding Default” as
defined in Section 2.38.


 


“Funding Guarantors”
as defined in Section 7.02.


 


“Funding Notice”
means a notice substantially in the form of Exhibit A-1.


 


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


 


“Governmental Authority”
means 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.


 


“Granting Lender” as
defined in Section 10.06(g).


 


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


 


“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 


 


17

















 


the health and safety of the
owners, occupants or any Persons in the vicinity of any Facility or to the
indoor or outdoor environment.


 


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


 


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


 


“Increase Effective Date”
as defined in Section 2.40(a).


 


“Increase Joinder” as
defined in Section 2.40(d).


 


“Incremental Term Loan
Commitment” as defined in Section 2.40(a).


 


“Incremental Term Loan
Exposure” means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the Incremental Term Loans
of such Lender; provided at any time prior to the making of the
Incremental Term Loans, the Incremental Term Loan Exposure of any Lender shall
be equal to such Lender’s Incremental Term Loan Commitment.


 


“Incremental Term Loan
Maturity Date” as defined in Section 2.40(c)(iii).


 


“Incremental Term Loan
Note” means a promissory note in the form of Exhibit B-4, as it may be
amended, supplemented, restated or otherwise modified from time to time.


 


“Incremental Term Loans”
as defined in Section 2.40(c)(i).


 


“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 


 


18

















 


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 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 make Credit
Extensions, any Commitment hereunder or the use or intended use of the proceeds
thereof, or any enforcement of any of the Loan Documents (including any sale
of, collection from, or other realization upon any of the Collateral or 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.


 


“Indemnified Taxes”
means Taxes other than Excluded Taxes.


 


“Indemnitee” as
defined in Section 10.02.


 


19

















 


“Initial Term Loan”
means a term loan made by a Lender to Borrowers pursuant to Section 2.01(a).


 


“Initial Term Loan
Commitment” means the commitment of a Lender to make or otherwise fund an
Initial Term Loan and “Initial Term Loan Commitments” means such commitments of
all Lenders in the aggregate.  The amount
of each Lender’s Initial Term Loan Commitment, if any, is set forth on
Appendix A-1 or in the applicable Assignment and Assumption Agreement,
subject to any adjustment or reduction pursuant to the terms and conditions
hereof.  The aggregate amount of the
Initial Term Loan Commitments as of the Closing Date is $110,000,000.


 


“Installment” as
defined in Section 2.24.


 


“Installment Date” as
defined in Section 2.24.


 


“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).


 


“Interest Payment Date”
means with respect to (i) any Base Rate Loan, each March 31, June 30,
September 30 and December 31 of each year, commencing on the first
such date to occur after the Closing Date, and the final maturity date of such
Loan; and (ii) any Eurodollar Rate Loan, the last day of each Interest
Period applicable to such Loan and the final maturity date of such Loan; provided,
in the case of each Interest Period of longer than three months “Interest
Payment Date” shall also include each date that is three months, or an integral
multiple thereof, after the commencement of such Interest Period.


 


“Interest Period”
means, in connection with a Eurodollar Rate Loan, an interest period of one,
two, three, six or, if available to all Lenders, twelve months, as selected by
Borrowers in the applicable Funding Notice or Conversion/Continuation Notice, (i) initially,
commencing on the Credit Date or Conversion/Continuation Date thereof, as the
case may be; and (ii) thereafter, commencing on the day on which the
immediately preceding Interest Period expires; provided, (a) if an
Interest Period would 


 


20

















 


otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day unless no further Business Day occurs in such month, in
which case such Interest Period shall expire on the immediately preceding
Business Day; (b) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clauses (c) and (d), of this definition, end on the last
Business Day of a calendar month; (c) no Interest Period with respect to
any portion of Term Loans shall extend beyond the Term Loan Maturity Date; (d) no
Interest Period with respect to any portion of Incremental Term Loans shall
extend beyond the Incremental Term Loan Maturity Date; and (e) no Interest
Period with respect to any portion of the Revolving Loans shall extend beyond
the Revolving Commitment Termination Date.


 


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


 


“Interest Rate
Determination Date” means, with respect to any Interest Period, the date
that is two Business Days prior to the first day of such Interest Period.


 


“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.


 


“IP Security Agreement”
means each Trademark Security Agreement, Patent Security Agreement or Copyright
Security Agreement by and among Borrowers, each Guarantor and the Collateral
Agent as each may be amended, modified or supplemented in accordance with the
terms hereof and thereof.


 


“Issuance Notice”
means an Issuance Notice substantially in the form of Exhibit A-3.


 


“Issuing Bank” means
RBS plc as Issuing Bank hereunder, together with its permitted successors and
assigns in such capacity or such other Lender from time to time designated by
Borrowers and RBS plc, which has agreed in writing to act as Issuing Bank
hereunder.


 


21

















 


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


 


“Landlord Collateral
Access Agreement” means a Landlord Collateral Access Agreement
substantially in the form of Exhibit J with such amendments or
modifications as may be approved by Collateral Agent in its reasonable
discretion.


 


“Landlord Consent and
Estoppel” means, with respect to any Leasehold Property, a letter,
certificate or other instrument in writing from the lessor under the related
lease, pursuant to which, among other things, the landlord consents to the
granting of a Mortgage on such Leasehold Property by the Loan Party tenant,
such Landlord Consent and Estoppel to be in form and substance acceptable to
the Collateral Agent in its reasonable discretion, but in any event sufficient
for the Collateral Agent to obtain a Title Policy with respect to such
Mortgage.


 


“Lead Arranger” as
defined in the preamble hereto.


 


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


 


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


 


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


 


“Letter of Credit”
means a standby letter of credit issued or to be issued by Issuing Bank
pursuant to this Agreement.


 


“Letter of Credit
Sublimit” means the lesser of (i) $1,000,000 and (ii) the
aggregate unused amount of the Revolving Commitments then in effect.


 


“Letter of Credit Usage”
means, as at any date of determination, the sum of (i) the maximum
aggregate amount which is, or at any time thereafter may become, available for
drawing under all Letters of Credit then outstanding, and (ii) the
aggregate amount of all drawings under Letters of Credit honored by Issuing
Bank and not theretofore reimbursed by or on behalf of Borrowers.


 


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


 


“Loan” means a Term
Loan, and Incremental Term Loan, a Revolving Loan, and a Swing Line Loan.


 


22

















 


“Loan Document” means
any of this Agreement, the Notes, if any, the Collateral Documents, any
documents or certificates executed by any Borrower in favor of Issuing Bank
relating to Letters of Credit, and all other documents, instruments or
agreements executed and delivered by a Loan Party for the benefit of any Agent,
Issuing Bank or any Lender in connection herewith (excluding Hedge Agreements).


 


“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.


 


“Material Real Estate
Asset” means (i) (a) any fee-owned Real Estate Asset having a
fair market value in excess of $500,000 as of the date of the acquisition thereof
and (b) all Leasehold Properties other than those with respect to which
the aggregate payments under the term of the lease are less than $500,000 per
annum or (ii) any Real Estate Asset that the Requisite Lenders have
determined is material to the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Holdings or any Subsidiary
thereof, including Borrowers.


 


“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.


 


23

















 


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


 


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


 


“MR” as defined in
the preamble hereto.


 


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


 


“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 Asset Sale Proceeds”
means, with respect to any Asset Sale, an amount equal to:  (i) Cash payments (including any Cash
received by way of deferred payment pursuant to, or by monetization of, a note
receivable or otherwise, but only as and when so received) received by Holdings
or any of its Subsidiaries from such Asset Sale, minus (ii) any
bona fide direct costs incurred in connection with such Asset Sale, including (a) income
or gains taxes payable by the seller as a result of any gain recognized in
connection with such Asset Sale, (b) payment of the outstanding principal
amount of, premium or penalty, if any, and interest on any Indebtedness (other
than the Loans) that is secured by a Lien on the stock or assets in question
and that is required to be repaid under the terms thereof as a result of such
Asset Sale and (c) a reasonable reserve for any indemnification payments
(fixed or contingent) attributable to seller’s indemnities and representations
and warranties to purchaser in respect of such Asset Sale undertaken by
Holdings or any of its Subsidiaries in connection with such Asset Sale.


 


24














 


“Net Cash 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).


 


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


 


“Note” means a Term
Loan Note, an Incremental Term Loan Note, a Revolving Loan Note or a Swing Line
Note.


 


“Notice” means a
Funding Notice, an Issuance Notice, or a Conversion/Continuation Notice.


 


“Obligation Aggregate
Payments” as defined in Section 2.39(b).


 


“Obligation Fair Share”
as defined in Section 2.39(b).


 


“Obligation Fair Share
Contribution Amount” as defined in Section 2.39(b).


 


“Obligation Fair Share
Shortfall” as defined in Section 2.39(b).


 


“Obligations” means
all obligations of every nature of each Loan Party from time to time owed to
the Agents (including former Agents), the Lenders or any of them and Lender
Counterparties, under any Loan Document or Hedge Agreement, 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), reimbursement of amounts drawn
under Letters of Credit, payments for early termination of Hedge Agreements,
fees, expenses, indemnification or otherwise.


 


“Obligee Guarantor”
as defined in Section 7.07.


 


“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


 


25

















 


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.


 


“Participant” as
defined in Section 10.06(d).


 


“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
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 Sections 5.11
and/or 5.12, as applicable and such other actions necessary to grant or confirm
to Collateral Agent a Lien on or security interest in the assets so acquired
subject to no Liens other than Permitted Liens;


 


(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 Administrative Agent 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


 


26

















 


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.


 


“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.


 


“Pledge and Security
Agreement” means the Pledge and Security Agreement to be executed by
Borrowers and each Guarantor substantially in the form of Exhibit H, as it
may be amended, supplemented, restated or otherwise modified from time to time.


 


“Prime Rate” means
the rate of interest per annum that RBS plc announces from time to time as its
prime lending rate, as in effect from time to time.  The Prime Rate is a reference rate and does
not necessarily represent the lowest or best rate actually charged to any
customer.  RBS plc or any other Lender
may make commercial loans or other loans at rates of interest at, above or
below the Prime Rate.


 


“Principal Office”
means, for each of Administrative Agent, Swing Line Lender and Issuing Bank,
such Person’s “Principal Office” as set forth in Section 10.01, or such
other office as such Person may from time to time designate in writing to
Borrowers, Administrative Agent and each 
Lender.


 


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


 


“Pro Rata Share”
means (i) with respect to all payments, computations and other matters
relating to the Term Loan of any Lender, the percentage obtained by dividing (a) the
Term Loan Exposure


 


27

















 


of that Lender by (b) the
aggregate Term Loan Exposure of all Lenders; (ii) with respect to all
payments, computations and other matters relating to the Incremental Term Loan
of any Lender, the percentage obtained by dividing (a) the Incremental
Term Loan Exposure of that Lender by (b) the aggregate Incremental Term
Loan Exposure of all Lenders; and (iii) with respect to all payments,
computations and other matters relating to the Revolving Commitment or
Revolving Loans of any Lender or any Letters of Credit issued or participations
purchased therein by any Lender or any participations in any Swing Line Loans
purchased by any Lender, the percentage obtained by dividing (a) the
Revolving Exposure of that Lender by (b) the aggregate Revolving Exposure
of all Lenders.  For all other purposes
with respect to each Lender, “Pro Rata Share” means the percentage obtained by
dividing (A) an amount equal to the sum of the Term Loan Exposure,
Incremental Term Loan Exposure and the Revolving Exposure by (B) an amount
equal to the sum of the aggregate Term Loan Exposure, the aggregate Incremental
Term Loan Exposure and the aggregate Revolving Exposure.


 


“Projections” as
defined in Section 4.08.


 


“Purchase Agreement”
means the Purchase Agreement, dated as of the Closing Date, among Holdings,
each of the Borrowers, as issuers, and the purchasers named therein relating to
the Senior Subordinated Notes, in form and substance reasonably acceptable to
the Administrative Agent, as it may be amended, supplemented, restated or
otherwise modified from time to time in accordance with the provisions of Section 6.16
hereof.


 


“PWC” means
PricewaterhouseCoopers LLP.


 


“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 Cash Proceeds
thereof, if any, shall be used solely for the purpose of paying the
consideration for Permitted Acquisitions.


 


“RBS plc” as defined
in the preamble hereto.


 


“RBSS” as defined in
the preamble hereto.


 


“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.


 


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


 


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


 


28

















 


“Refunded Swing Line
Loans” as defined in Section 2.06(d).


 


“Register” as defined
in Section 10.06(c).


 


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


 


“Reimbursement Date”
as defined in Section 2.10.


 


“Related Agreements”
means, collectively:


 


(a)                     the Phase 1 Acquisition
Agreements; and


 


(b)                     the Senior Subordinated
Notes Documents.


 


“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 Class Lenders”
means, at any time of determination, (i) for the Class of Lenders
having Term Loan Exposure, Lenders holding more than 50% of the aggregate Term
Loan Exposure of all Lenders; (i) for the Class of Lenders having
Incremental Term Loan Exposure, Lenders holding more than 50% of the aggregate
Incremental Term Loan Exposure of all Lenders; and (iii) for the Class of
Lenders having Revolving Exposure, Lenders holding more than 50% of the
aggregate Revolving Exposure of all Lenders.


 


“Requisite Lenders”
means one or more Lenders having or holding Term Loan Exposure, Incremental
Term Loan Exposure and/or Revolving Exposure and representing more than 50% of
the sum of (i) the aggregate Term Loan Exposure of all Lenders, (ii) the
aggregate Incremental Term Loan Exposure of all Lenders and (iii) the
aggregate Revolving Exposure of all Lenders.


 


“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 Senior
Subordinated Notes.


 


29

















 


“Revolving Commitment”
means the commitment of a Lender to make or otherwise fund any Revolving Loan
and to acquire participations in Letters of Credit and Swing Line Loans
hereunder and “Revolving Commitments” means such commitments of all Lenders in
the aggregate.  The amount of each Lender’s
Revolving Commitment, if any, is set forth on Appendix A-3 or in the applicable
Assignment and Assumption Agreement subject to any adjustment or reduction
pursuant to the terms and conditions hereof. 
The aggregate amount of the Revolving Commitments as of the Closing Date
is $10,000,000.


 


“Revolving Commitment
Period” means the period from the Closing Date to but excluding the
Revolving Commitment Termination Date.


 


“Revolving Commitment
Termination Date” means the earliest to occur of (i) if the Term Loans
are not made on or before such date, the Closing Date; (ii) the fifth
anniversary of the Closing Date, (iii) the date the Revolving Commitments
are permanently reduced to zero pursuant to Section 2.26, 2.27 or 2.28,
and (iv) the date of the termination of the Revolving Commitments pursuant
to Section 8.01.


 


“Revolving Exposure”
means, with respect to any Lender as of any date of determination, (i) prior
to the termination of the Revolving Commitments, that Lender’s Revolving
Commitment; and (ii) after the termination of the Revolving Commitments,
the sum of (a) the aggregate outstanding principal amount of the Revolving
Loans of that Lender, (b) in the case of Issuing Bank, the aggregate
Letter of Credit Usage in respect of all Letters of Credit issued by that
Lender (net of any participations by Lenders in such Letters of Credit), (c) the
aggregate amount of all participations by that Lender in any outstanding
Letters of Credit or any unreimbursed drawing under any Letter of Credit, (d) in
the case of Swing Line Lender, the aggregate outstanding principal amount of
all Swing Line Loans (net of any participations therein by other Lenders), and (e) the
aggregate amount of all participations therein by that Lender in any
outstanding Swing Line Loans.


 


“Revolving Loan”
means a Loan made by a Lender to Borrowers pursuant to Section 2.03 and/or
Section 2.37.


 


“Revolving Loan Note”
means a promissory note in the form of Exhibit B-2, as it may be amended,
supplemented, restated or otherwise modified from time to time.


 


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


 


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


 


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


 


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


 


30

















 


“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
Administrative Agent, 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 Final Maturity Date.


 


“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.


 


“Senior Subordinated
Notes” means Borrowers’ Senior Subordinated Notes in the initial aggregate
principal amount of $55,000,000 issued pursuant to the Purchase Agreement in
order to finance, in part, the Phase 1 Acquisitions, as the same may be
amended, supplemented, restated or otherwise modified from time to time in
accordance with the provisions of Section 6.16 hereof and the
Intercreditor Agreement.


 


“Senior Subordinated
Notes Documents” means the Senior Subordinated Notes, the Purchase
Agreement, the related guaranties and the Subordination Agreement as the same
may be amended, supplemented, restated or otherwise modified from time to time
in accordance with the provisions of Section 6.16 hereof and the
Intercreditor Agreement.


 


“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 F-2.


 


“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.


 


“SPV” as defined in Section 10.06(g).


 


31

















 


“Statewide Publishing”
as defined in the preamble hereto.


 


“STT” as defined in
the preamble hereto.


 


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


 


“Subordination Agreement”
means the subordination and intercreditor agreement, dated as of the Closing
Date, by and among the purchasers of the Senior Subordinated Notes, Holdings,
Borrowers, each Guarantor Subsidiary and Administrative Agent, 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 Administrative Agent.


 


“Subsidiary” means,
with respect to any Person, any corporation, partnership, limited liability
company, association, joint venture or other business entity of which more than
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.


 


“Swing Line Lender”
means RBS plc in its capacity as Swing Line Lender hereunder, together with its
permitted successors and assigns in such capacity.


 


“Swing Line Loan”
means a Loan made by Swing Line Lender to Borrowers pursuant to Section 2.05.


 


“Swing Line Note”
means a promissory note in the form of Exhibit B-3, as it may be amended,
supplemented or otherwise modified from time to time.


 


“Swing Line Sublimit”
means the lesser of (i) $1,000,000, and (ii) the aggregate unused
amount of Revolving Commitments then in effect.


 


“Syndication Agent”
as defined in the preamble hereto.


 


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


 


“Term Loan” means an
Initial Term Loan or a Delayed Draw Term Loan.


 


“Term Loan Commitment”
means an Initial Term Loan Commitment or a Delayed Draw Term Loan Commitment.


 


“Term Loan Exposure”
means, with respect to any Lender, as of any date of determination, the
outstanding principal amount of the Initial Term Loans and Delayed Draw Term
Loans of such Lender; provided at any time prior to the making of the
Initial Term Loans or Delayed Draw


 


32

















 


Term Loans, as the case may
be, the Term Loan Exposure of any Lender shall be equal to such Lender’s
Initial Term Loan Commitment or Delayed Draw Term Loan Commitment, as the case
may be.


 


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


 


“Term Loan Note”
means a promissory note in the form of Exhibit B-1, as it may be amended,
supplemented, restated or otherwise modified from time to time.


 


“Title Policy” as
defined in Section 3.01(h)(iv).


 


“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.


 


“Total Utilization of
Revolving Commitments” means, as at any date of determination, the sum of (i) the
aggregate principal amount of all outstanding Revolving Loans (other than
Revolving Loans made for the purpose of repaying any Refunded Swing Line Loans
or reimbursing Issuing Bank for any amount drawn under any Letter of Credit,
but not yet so applied), (ii) the aggregate principal amount of all
outstanding Swing Line Loans, and (iii) the Letter of Credit Usage.


 


“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 and
funding of the Term Loans and the Revolving Loans, the issuance and purchase of
the Senior Subordinated Notes and all related transactions.


 


“Type of Loan” means (i) with
respect to Term Loans, Incremental Term Loans or Revolving Loans, a Base Rate
Loan or a Eurodollar Rate Loan, and (ii) with respect to Swing Line Loans,
a Base Rate Loan.


 


“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


 


33

















 


affect the computation of
any financial ratio or requirement set forth in any Loan Document, and
Borrowers or Administrative Agent shall so request, Administrative Agent 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 Administrative Agent 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 Administrative Agent 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

LOANS AND LETTERS OF CREDIT


 


Section 2.01         Term
Loan Commitments.


 


(a)      Initial Term Loans.  Subject to the terms and conditions hereof,
each Lender severally agrees to make, on the Closing Date, an Initial Term Loan
to Borrowers in an amount equal to such Lender’s Initial Term Loan Commitment.


 


(b)      Delayed Draw Term Loans.  During the Delayed Draw Term Loan Commitment
Period, subject to the terms and conditions hereof, each Lender holding a
Delayed Draw


 


34














 


Term Loan Commitment
severally agrees to make Delayed Draw Term Loans, in accordance with Section 2.01
and subject to the requirements of Section 2.16, to Borrowers in the
aggregate amount up to but not exceeding such Lender’s Delayed Draw Term Loan
Commitment.


 


Borrowers may make: (i) only
one borrowing under the Initial Term Loan Commitments, which shall be on the
Closing Date and (ii) borrowings under the Delayed Draw Term Loan
Commitments during the Delayed Draw Term Loan Commitment Period in an aggregate
minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of
that amount.  Any amount borrowed under
this Section 2.01 and subsequently repaid or prepaid may not be
reborrowed.  Subject to Sections 2.26,
2.27 and 2.28, all amounts owed hereunder with respect to the Initial Term
Loans and the Delayed Draw Term Loans shall be paid in full no later than the
Term Loan Maturity Date.  Each Lender’s
Initial Term Loan Commitment shall terminate immediately and without further
action on the Closing Date after giving effect to the funding of such Lender’s
Initial Term Loan Commitment on such date. 
Each Lender’s Delayed Draw Term Loan Commitment shall terminate
immediately and without further action on the Delayed Draw Term Loan Commitment
Termination Date.


 


Section 2.02         Borrowing
Mechanics for Term Loans.


 


(a)      Borrowers shall deliver to Administrative
Agent a fully executed Funding Notice no later than (i) in the case of
Initial Term Loans, one Business Day prior to the Closing Date or (ii) in
the case of any borrowing of Delayed Draw Term Loans, at least three Business
Days in advance of the proposed Credit Date in the case of a Eurodollar Rate
Loan, and at least one Business Day in advance of the proposed Credit Date in
the case of a Base Rate Loan.  Promptly
upon receipt by Administrative Agent of any such Funding Notice, Administrative
Agent shall notify each Lender of the proposed borrowing.


 


(b)      Notice of receipt of each Funding Notice
in respect of Delayed Draw Term Loans, together with the amount of each Lender’s
Pro Rata Share thereof, if any, together with the applicable interest rate,
shall be provided by Administrative Agent to each applicable Lender by
telefacsimile with reasonable promptness, but (provided Administrative Agent
shall have received such notice by 10:00 a.m. (New York City time)) not
later than 2:00 p.m. (New York City time) on the same day as
Administrative Agent’s receipt of such Notice from Borrowers.


 


(c)      Each Lender shall make (i) its
Initial Term Loan available to Administrative Agent not later than 12:00 p.m.
(New York City time) on the Closing Date and (ii) its Delayed Draw Term
Loan available to Administrative Agent not later than 12:00 p.m. (New York
City time) on each proposed Credit Date for such Delayed Draw Term Loans, in
each case, by wire transfer of same day funds in Dollars, at Administrative
Agent’s Principal Office.  Upon
satisfaction or waiver of the conditions precedent specified herein,
Administrative Agent shall make (x) the proceeds of the Initial Term Loans
available to Borrowers on the Closing Date and (y) the proceeds of the
Delayed Draw Term Loans available to Borrowers on each proposed Credit Date for
such Delayed Draw Term Loans, in each case, by causing an amount of same day
funds in Dollars equal to the proceeds of all such Loans received by
Administrative Agent from Lenders to be credited to the account of Borrowers at
Administrative Agent’s Principal Office or to such other account as may be
designated in writing to Administrative Agent by Borrowers.


 


35

















 


Section 2.03         Revolving
Commitments.


 


During the Revolving
Commitment Period, subject to the terms and conditions hereof, each Lender
severally agrees to make Revolving Loans to Borrowers in the aggregate amount
up to but not exceeding such Lender’s Revolving Commitment; provided,
after giving effect to the making of any Revolving Loans, in no event shall the
Total Utilization of Revolving Commitments exceed the Revolving Commitments
then in effect.  Amounts borrowed
pursuant to this Section 2.03 may be repaid and reborrowed during the
Revolving Commitment Period.  Each Lender’s
Revolving Commitment shall expire on the Revolving Commitment Termination Date
and all Revolving Loans and all other amounts owed hereunder with respect to
the Revolving Loans and the Revolving Commitments shall be paid in full no
later than such date.


 


Section 2.04         Borrowing
Mechanics for Revolving Loans.


 


(a)      Except pursuant to Section 2.10,
Revolving Loans that are Base Rate Loans shall be made in an aggregate minimum
amount of $100,000 and integral multiples of $100,000 in excess of that amount,
and Revolving Loans that are Eurodollar Rate Loans shall be in an aggregate
minimum amount of $500,000 and integral multiples of $100,000 in excess of that
amount.


 


(b)      Whenever Borrowers desire that Lenders
make Revolving Loans, Borrowers shall deliver to Administrative Agent a fully
executed and delivered Funding Notice no later than 3:00 p.m. (New York
City time) at least three Business Days in advance of the proposed Credit Date
in the case of a Eurodollar Rate Loan, and at least one Business Day in advance
of the proposed Credit Date in the case of a Revolving Loan that is a Base Rate
Loan.  Except as otherwise provided herein,
a Funding Notice for a Revolving Loan that is a Eurodollar Rate Loan shall be
irrevocable on and after the related Interest Rate Determination Date, and
Borrowers shall be bound to make a borrowing in accordance therewith.


 


(c)      Notice of receipt of each Funding Notice
in respect of Revolving Loans, together with the amount of each Lender’s Pro
Rata Share thereof, if any, together with the applicable interest rate, shall
be provided by Administrative Agent to each applicable Lender by telefacsimile
with reasonable promptness, but (provided Administrative Agent shall have
received such notice by 10:00 a.m. (New York City time)) not later than
2:00 p.m. (New York City time) on the same day as Administrative Agent’s
receipt of such Notice from Borrowers.


 


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


 


Section 2.05         Swing
Line Loans Commitments.


 


During the Revolving
Commitment Period, subject to the terms and conditions hereof, Swing Line
Lender hereby agrees to make Swing Line Loans to Borrowers in the aggregate
amount up to but not exceeding the Swing Line Sublimit; provided, after
giving effect to the making of any Swing Line


 


36

















 


Loan, in no event shall the
Total Utilization of Revolving Commitments exceed the Revolving Commitments
then in effect.  Amounts borrowed
pursuant to this Section 2.05 may be repaid and reborrowed during the
Revolving Commitment Period.  Swing Line
Lender’s Revolving Commitment shall expire on the Revolving Commitment
Termination Date and all Swing Line Loans and all other amounts owed hereunder
with respect to the Swing Line Loans and the Revolving Commitments shall be
paid in full no later than such date.


 


Section 2.06         Borrowing
Mechanics for Swing Line Loans.


 


(a)      Swing Line Loans shall be made in an
aggregate minimum amount of $100,000 and integral multiples of $100,000 in
excess of that amount.


 


(b)      Whenever Borrowers desire that Swing Line
Lender make a Swing Line Loan, Borrowers shall deliver to Administrative Agent
a Funding Notice no later than 12:00 p.m. (New York City time) on the
proposed Credit Date.


 


(c)      Swing Line Lender shall make the amount of
its Swing Line Loan available to Administrative Agent not later than 2:00 p.m.
(New York City time) on the applicable Credit Date by wire transfer of same day
funds in Dollars, at the Administrative Agent’s Principal Office.  Except as provided herein, upon satisfaction
or waiver of the conditions precedent specified herein, Administrative Agent
shall make the proceeds of such Swing Line Loans available to Borrowers on the
applicable Credit Date by causing an amount of same day funds in Dollars equal
to the proceeds of all such Swing Line Loans received by Administrative Agent
from Swing Line Lender to be credited to the account of Borrowers at the
Administrative Agent’s Principal Office, or to such other account as may be
designated in writing to Administrative Agent by Borrowers.


 


(d)      With respect to any Swing Line Loans which
have not been voluntarily prepaid by Borrowers pursuant to Section 2.25,
Swing Line Lender may at any time in its sole and absolute discretion, deliver
to Administrative Agent (with a copy to Borrowers), no later than 11:00 a.m.
(New York City time) at least one (1) Business Day in advance of the
proposed Credit Date, a notice (which shall be deemed to be a Funding Notice
given by Borrowers) requesting that each Lender holding a Revolving Commitment
make Revolving Loans that are Base Rate Loans to Borrowers on such Credit Date
in an amount equal to the amount of such Swing Line Loans (the “Refunded
Swing Line Loans”) outstanding on the date such notice is given which the
Swing Line Lender requests Lenders to prepay. 
Anything contained in this Agreement to the contrary notwithstanding, (1) the
proceeds of such Revolving Loans made by the Lenders other than Swing Line
Lender shall be immediately delivered by the Administrative Agent to Swing Line
Lender (and not to Borrowers) and applied to repay a corresponding portion of
the Refunded Swing Line Loans and (2) on the day such Revolving Loans are
made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall
be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line
Lender to Borrowers, and such portion of the Swing Line Loans deemed to be so
paid shall no longer be outstanding as Swing Line Loans but shall instead
constitute part of Swing Line Lender’s outstanding Revolving Loans to Borrowers
and shall be due under the Revolving Loan Note issued by Borrowers to Swing
Line Lender.  Borrowers hereby authorize
Administrative Agent and Swing Line Lender to charge Borrowers’ accounts with
Administrative Agent and Swing Line Lender (up to the amount available in each
such account) in order to immediately pay Swing Line Lender the amount of the
Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans
made by Lenders, including the Revolving Loan deemed to be made by the Swing
Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans.
 If any


 


37

















 


portion of any such amount
paid (or deemed to be paid) to Swing Line Lender should be recovered by or on
behalf of any Borrower from Swing Line Lender in bankruptcy, by assignment for
the benefit of creditors or otherwise, the loss of the amount so recovered
shall be ratably shared among all Lenders in the manner contemplated by Section 2.32.


 


(e)      If for any reason Revolving Loans are not
made pursuant to Section 2.06(d) in an amount sufficient to repay any
amounts owed to Swing Line Lender in respect of any outstanding Swing Line
Loans on or before the third Business Day after demand for payment thereof by
Swing Line Lender, each Lender holding a Revolving Commitment shall be deemed
to, and hereby agrees to, have purchased a participation in such outstanding
Swing Line Loans, and in an amount equal to its Pro Rata Share of the
applicable unpaid amount together with accrued interest thereon.  Upon one (1) Business Day’s notice from
Swing Line Lender, each Lender holding a Revolving Commitment shall deliver to
Swing Line Lender an amount equal to its respective participation in the
applicable unpaid amount in same day funds at the Principal Office of Swing
Line Lender. In order to evidence such participation each Lender holding a
Revolving Commitment agrees to enter into a participation agreement at the
request of Swing Line Lender in form and substance reasonably satisfactory to
Swing Line Lender.  In the event any
Lender holding a Revolving Commitment fails to make available to Swing Line
Lender the amount of such Lender’s participation as provided in this paragraph,
Swing Line Lender shall be entitled to recover such amount on demand from such
Lender together with interest thereon for three Business Days at the rate
customarily used by Swing Line Lender for the correction of errors among banks
and thereafter at the Base Rate, as applicable.


 


(f)       Notwithstanding anything contained herein
to the contrary, (1) each Lender’s obligation to make Revolving Loans for
the purpose of repaying any Refunded Swing Line Loans pursuant to the second
preceding paragraph and each Lender’s obligation to purchase a participation in
any unpaid Swing Line Loans pursuant to the immediately preceding paragraph
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against Swing Line Lender, any Loan Party or any other Person for any reason
whatsoever; (B) the occurrence or continuation of a Default or Event of
Default; (C) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of any Loan Party; (D) any
breach of this Agreement or any other Loan Document by any party thereto; or (E) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing; provided  that such obligations of each
Lender are subject to the condition that Swing Line Lender believed in good
faith that all conditions under Section 3.03 to the making of the
applicable Refunded Swing Line Loans or other unpaid Swing Line Loans were
satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans
were made, or the satisfaction of any such condition not satisfied had been
waived by Requisite Lenders prior to or at the time such Refunded Swing Line
Loans or other unpaid Swing Line Loans were made; and (2) Swing Line
Lender shall not be obligated to make any Swing Line Loans (A) if it has
elected not to do so after the occurrence and during the continuation of a
Default or Event of Default or (B) at a time when a Funding Default exists
unless Swing Line Lender has entered into arrangements satisfactory to it and
Borrowers to eliminate Swing Line Lender’s risk with respect to the Defaulting
Lender’s participation in such Swing Line Loan, including by cash
collateralizing such Defaulting Lender’s Pro Rata Share of the outstanding
Swing Line Loans.


 


38

















 


Section 2.07         Letters
of Credit.


 


During the Revolving
Commitment Period, subject to the terms and conditions hereof,  Issuing Bank agrees to issue Letters of
Credit for the account of Borrowers in the aggregate amount up to but not
exceeding the Letter of Credit Sublimit; provided, (i) each Letter
of Credit shall be denominated in Dollars; (ii) the stated amount of each
Letter of Credit shall not be less than $50,000 or such lesser amount as is
acceptable to Issuing Bank; (iii) after giving effect to such issuance, in
no event shall the Total Utilization of Revolving Commitments exceed the
Revolving Commitments then in effect; (iv) after giving effect to such
issuance, in no event shall the Letter of Credit Usage exceed the Letter of
Credit Sublimit then in effect; and (v) in no event shall any Letter of
Credit have an expiration date later than the earlier of (1) the Revolving
Commitment Termination Date and (2) the date which is one year from the
date of issuance of such Letter of Credit. 
Subject to the foregoing, Issuing Bank may agree that a Letter of Credit
will automatically be extended for one or more successive periods not to exceed
one year each, unless Issuing Bank elects not to extend for any such additional
period; provided Issuing Bank shall not extend any such Letter of Credit
if it has received written notice that an Event of Default has occurred and is
continuing at the time Issuing Bank must elect to allow such extension; provided
further in the event a Funding Default exists, Issuing Bank shall not be
required to issue any Letter of Credit unless Issuing Bank has entered into
arrangements satisfactory to it and Borrowers to eliminate Issuing Bank’s risk
with respect to the participation in Letters of Credit of the Defaulting
Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata
Share of the Letter of Credit Usage.


 


Section 2.08         Notice
of Issuance.


 


Whenever Borrowers desire
the issuance of a Letter of Credit, Borrowers shall deliver to Administrative
Agent an Issuance Notice no later than 12:00 p.m. (New York City time) at
least three Business Days, or such shorter period as may be agreed to by
Issuing Bank in any particular instance, in advance of the proposed date of
issuance.  Upon satisfaction or waiver of
the conditions set forth in Section 3.03, Issuing Bank shall issue the
requested Letter of Credit only in accordance with Issuing Bank’s standard
operating procedures.  Upon the issuance
of any Letter of Credit or amendment or modification to a Letter of Credit,
Issuing Bank shall promptly notify each Lender of such issuance, which notice
shall be accompanied by a copy of such Letter of Credit or amendment or
modification to a Letter of Credit and the amount of such Lender’s respective
participation in such Letter of Credit pursuant to Section 2.11.


 


Section 2.09         Responsibility
of Issuing Bank with Respect to Requests for Drawings and Payments.


 


In determining whether to
honor any drawing under any Letter of Credit by the beneficiary thereof,
Issuing Bank shall be responsible only to examine the documents delivered under
such Letter of Credit with reasonable care so as to ascertain whether they
appear on their face to be in accordance with the terms and conditions of such
Letter of Credit.  As between Borrowers
and Issuing Bank, Borrowers assume all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by Issuing Bank, by the respective
beneficiaries of such Letters of Credit. 
In furtherance and not in limitation of the foregoing, Issuing Bank
shall not be responsible for:  (i) the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any such Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or


 


39

















 


ineffective for any reason; (iii) failure
of the beneficiary of any such Letter of Credit to comply fully with any
conditions required in order to draw upon such Letter of Credit; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to
make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences
arising from causes beyond the control of Issuing Bank, including any
Governmental Acts; none of the above shall affect or impair, or prevent the
vesting of, any of Issuing Bank’s rights or powers hereunder.  Without limiting the foregoing and in
furtherance thereof, any action taken or omitted by Issuing Bank under or in
connection with the Letters of Credit or any documents and certificates
delivered thereunder, if taken or omitted in good faith, shall not give rise to
any liability on the part of Issuing Bank to any Borrower.  Notwithstanding anything to the contrary
contained in this Section 2.09, Borrowers shall retain any and all rights
they may have against Issuing Bank for any liability arising solely out of the
gross negligence or willful misconduct of Issuing Bank.


 


Section 2.10         Reimbursement by Borrowers of
Amounts Drawn or Paid Under Letters of Credit.


 


In the event Issuing Bank
has determined to honor a drawing under a Letter of Credit, it shall
immediately notify Borrowers and Administrative Agent, and Borrowers shall
reimburse Issuing Bank on or before the Business Day immediately following the
date on which such drawing is honored (the “Reimbursement Date”) in an
amount in Dollars and in same day funds equal to the amount of such honored
drawing; provided, anything contained herein to the contrary
notwithstanding, (i) unless Borrowers shall have notified Administrative
Agent and Issuing Bank prior to 10:00 a.m. (New York City time) on the
date such drawing is honored that Borrowers intend to reimburse Issuing Bank
for the amount of such honored drawing with funds other than the proceeds of
Revolving Loans, Borrowers shall be deemed to have given a timely Funding
Notice to Administrative Agent requesting Lenders holding Revolving Commitments
to make Revolving Loans that are Base Rate Loans on the Reimbursement Date in
an amount in Dollars equal to the amount of such honored drawing, and (ii) subject
to satisfaction or waiver of the conditions specified in Section 3.03, all
Lenders holding a Revolving Commitment shall, on the Reimbursement Date, make
Revolving Loans that are Base Rate Loans in the amount of such honored drawing,
the proceeds of which shall be applied directly by Administrative Agent to
reimburse Issuing Bank for the amount of such honored drawing; and provided
further, if for any reason proceeds of Revolving Loans are not received
by Issuing Bank on the Reimbursement Date in an amount equal to the amount of
such honored drawing, Borrowers shall reimburse Issuing Bank, on demand, in an
amount in same day funds equal to the excess of the amount of such honored
drawing over the aggregate amount of such Revolving Loans, if any, which are so
received.  Nothing in this Section 2.10
shall be deemed to relieve any Lender from its obligation to make Revolving
Loans on the terms and conditions set forth herein, and Borrowers shall retain
any and all rights they may have against any Lender resulting from the failure
of such Lender to make such Revolving Loans under this Section 2.10.


 


Section 2.11         Lenders’
Purchase of Participations in Letters of Credit.


 


Immediately upon the
issuance of each Letter of Credit, each Lender having a Revolving Commitment
shall be deemed to have purchased, and hereby agrees to irrevocably purchase,
from Issuing Bank a participation in such Letter of Credit and any drawings
honored thereunder in an amount equal to


 


40

















 


such Lender’s Pro Rata Share
(with respect to the Revolving Commitments) of the maximum amount which is or
at any time may become available to be drawn thereunder.  In the event that Borrowers shall fail for
any reason to reimburse Issuing Bank as provided in Section 2.10, Issuing
Bank shall promptly notify each Lender holding a Revolving Commitment of the
unreimbursed amount of such honored drawing and of such Lender’s respective
participation therein based on such Lender’s Pro Rata Share of the Revolving
Commitments.  Each Lender holding a
Revolving Commitment shall make available to Issuing Bank an amount equal to
its respective participation, in Dollars and in same day funds, at the office
of Issuing Bank specified in such notice, not later than 12:00 p.m. (New
York City time) on the first business day (under the laws of the jurisdiction
in which such office of Issuing Bank is located) after the date notified by
Issuing Bank.  In the event that any
Lender fails to make available to Issuing Bank on such business day the amount
of such Lender’s participation in such Letter of Credit as provided in this Section 2.11,
Issuing Bank shall be entitled to recover such amount on demand from such
Lender together with interest thereon for three Business Days at the rate
customarily used by Issuing Bank for the correction of errors among banks and
thereafter at the Base Rate.  Nothing in
this Section 2.11 shall be deemed to prejudice the right of any Lender to
recover from Issuing Bank any amounts made available by such Lender to Issuing
Bank pursuant to this Section in the event that it is determined that the
payment with respect to a Letter of Credit in respect of which payment was made
by such Lender constituted gross negligence or willful misconduct on the part
of Issuing Bank.  In the event Issuing
Bank shall have been reimbursed by other Lenders pursuant to this Section 2.11
for all or any portion of any drawing honored by Issuing Bank under a Letter of
Credit, such Issuing Bank shall distribute to each Lender which has paid all
amounts payable by it under this Section 2.11 with respect to such honored
drawing such Lender’s Pro Rata Share of all payments subsequently received by
Issuing Bank from Borrowers in reimbursement of such honored drawing when such
payments are received.  Any such
distribution shall be made to a Lender at its primary address set forth in Section 10.01
or at such other address as such Lender may request.


 


Section 2.12         Obligations
Absolute.


 


The obligation of Borrowers
to reimburse Issuing Bank for drawings honored under the Letters of Credit
issued by it and to repay any Revolving Loans made by Lenders pursuant to Section 2.10
and the obligations of Lenders under Section 2.11 shall be unconditional
and irrevocable and shall be paid strictly in accordance with the terms hereof
under all circumstances including any of the following circumstances: (i) any
lack of validity or enforceability of any Letter of Credit; (ii) the
existence of any claim, set-off, defense or other right which any Borrower or
any Lender may have at any time against a beneficiary or any transferee of any
Letter of Credit (or any Persons for whom any such transferee may be acting),
Issuing Bank, Lender or any other Person or, in the case of a Lender, against any
Borrower, whether in connection herewith, the transactions contemplated herein
or any unrelated transaction (including any underlying transaction between a
Borrower or one of its Subsidiaries and the beneficiary for which any Letter of
Credit was procured); (iii) any draft or other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect; (iv) payment by Issuing Bank under any Letter of Credit against
presentation of a draft or other document which does not substantially comply
with the terms of such Letter of Credit; (v) any adverse change in the
business, operations, properties, assets, condition (financial or otherwise) or
prospects of Holdings or any of its Subsidiaries; (vi) any breach hereof
or any other Loan Document by any party thereto; (vii) any other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing; or (viii) the fact that an Event of Default or a Default shall
have occurred and be continuing; provided, in each case, that payment by
Issuing Bank under the applicable Letter of


 


41

















 


Credit shall not have
constituted gross negligence or willful misconduct of Issuing Bank under the
circumstances in question.


 


Section 2.13         Indemnification.


 


Without duplication of any
obligation of Borrowers under Section 10.02, in addition to amounts
payable as provided herein, Borrowers hereby agree to protect, indemnify, pay
and save harmless Issuing Bank from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal counsel)
which Issuing Bank may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit by Issuing Bank,
other than as a result of (1) the gross negligence or willful misconduct
of Issuing Bank or (2) the wrongful dishonor by Issuing Bank of a proper
demand for payment made under any Letter of Credit issued by it, or (ii) the
failure of Issuing Bank to honor a drawing under any such Letter of Credit as a
result of any Governmental Act.


 


Section 2.14         Pro
Rata Shares.


 


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


 


Section 2.15         Availability
of Funds.


 


(a)      Funding by Lenders; Presumption by
Administrative Agent.  Unless
Administrative Agent shall have received notice from a Lender prior to the
applicable Credit Date that such Lender will not make available to
Administrative Agent such Lender’s share of such Loans, Administrative Agent
may assume that such Lender has made such share available on such applicable
Credit Date and may, in reliance upon such assumption, make available to
Borrowers a corresponding amount.  In
such event, if a Lender has not in fact made its share of the applicable Loans
available to Administrative Agent, then the applicable Lender and Borrowers
severally agree to pay to Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to Borrowers to but excluding the date of
payment to Administrative Agent, at (i) in the case of a payment to be
made by such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by Administrative Agent in accordance with banking industry rules on
interbank compensation and (ii) in the case of a payment to be made by
Borrowers, the interest rate applicable to Base Rate Loans.  If Borrowers and such Lender shall pay such
interest to Administrative Agent for the same or an overlapping period, Administrative
Agent shall promptly remit to Borrowers the amount of such interest paid by
Borrowers for such period.  If such
Lender pays such amount to Administrative Agent, then such amount shall
constitute such Lender’s Loan included on such Credit Date.  Any payment by Borrowers shall be without
prejudice to any claim Borrowers may have against a Lender that shall have
failed to make such payment to Administrative Agent.


 


(b)      Payments by Borrowers; Presumptions by
Administrative Agent.  Unless
Administrative Agent shall have received notice from Borrowers prior to the
date on which any payment


 


42

















 


is due to Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that
Borrowers will not make such payment, Administrative Agent may assume that
Borrowers have made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing
Bank, as the case may be, the amount due. 
In such event, if Borrowers have not in fact made such payment, then
each of the Lenders or the Issuing Bank, as the case may be, severally agrees
to repay to Administrative Agent forthwith on demand the amount so distributed
to such Lender or the Issuing Bank, with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by Administrative Agent in accordance with
banking industry rules on interbank compensation.


 


Section 2.16         Use
of Proceeds.


 


The proceeds of the Initial
Term Loans will be used, together with the Senior Subordinated Notes, to
finance, in part, the Phase 1 Acquisitions, refinance all Existing Indebtedness
of the Borrowers, pay fees and expenses incurred in connection with the
Transactions (other than any Phase 2 Acquisitions), and provide ongoing working
capital and for other general corporate purposes of Borrowers and their
Domestic Subsidiaries (including, but not limited to Permitted
Acquisitions).  The proceeds of the
Delayed Draw Term Loans will be used to finance any Phase 2 Acquisitions and
pay fees and expenses incurred in connection with any Phase 2
Acquisitions.  The proceeds of the Revolving
Loans shall be used to provide ongoing working capital and for other general
corporate purposes of the Borrowers and their Domestic Subsidiaries (including,
but not limited to Permitted Acquisitions). 
The proceeds of the Incremental Term Loans shall be used to finance
Permitted Acquisitions.  No portion of
the proceeds of any Credit Extension shall be used in any manner that causes or
might cause such Credit Extension or the application of such proceeds to violate
Regulation T, Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation thereof or to
violate the Exchange Act.


 


Section 2.17         Lenders’
Evidence of Debt.


 


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


 


Section 2.18         Notes.


 


If so requested by any
Lender by written notice to Borrowers (with a copy to Administrative Agent) at
least two Business Days prior to the Closing Date, or at any time thereafter,
Borrowers shall execute and deliver to such Lender (and/or, if applicable and
if so specified in such notice, to any Person who is an assignee of such Lender
pursuant to Section 10.06) on the Closing Date (or, if such notice is
delivered after the Closing Date, promptly after Borrowers’ receipt of such
notice) a Note or Notes to evidence such Lender’s Term Loan, Incremental Term
Loan, Revolving Loan or Swing Line Loan, as the case may be.


 


43














 


Section 2.19         Interest
Rate on Loans.  Except as
otherwise set forth herein, each Class of Loan shall bear interest on the
unpaid principal amount thereof from the date made through repayment (whether
by acceleration or otherwise) thereof as follows:


 


(i)    if a Base Rate Loan, at the
Base Rate plus the Applicable Margin; or


 


(ii)   if a Eurodollar Rate Loan, at the Adjusted
Eurodollar Rate plus the Applicable Margin.


 


Section 2.20         Interest
Rate.


 


(a)      The basis for determining the rate of
interest with respect to any Loan (except a Swing Line Loan which can be made
and maintained as a Base Rate Loan only), and the Interest Period with respect
to any Eurodollar Rate Loan, shall be selected by Borrowers and notified to
Administrative Agent and Lenders pursuant to the applicable Funding Notice or
Conversion/Continuation Notice, as the case may be; provided, (i) the
Loans initially shall be made as Base Rate Loans until the date which is 5 days
following the Closing Date and (ii) until the earlier of (x) three (3) months
after the Closing Date and (y) the date that Administrative Agent notifies
Borrowers that the primary syndication of the Loans and Revolving Commitments
has been completed, as determined by Administrative Agent in good faith, the
Loans shall be maintained as either (1) Eurodollar Rate Loans having an
Interest Period of no longer than one month or (2) Base Rate Loans.  If on any day a Loan is outstanding with
respect to which a Funding Notice or Conversion/Continuation Notice has not
been delivered to Administrative Agent in accordance with the terms hereof
specifying the applicable basis for determining the rate of interest, then for
that day such Loan shall be a Base Rate Loan.


 


(b)      In connection with Eurodollar Rate Loans
there shall be no more than five (5) Interest Periods outstanding at any
time.  In the event Borrowers fail to
specify between a Base Rate Loan or a Eurodollar Rate Loan in the applicable
Funding Notice or Conversion/Continuation Notice, such Loan (if outstanding as
a Eurodollar Rate Loan) will be automatically converted into a Base Rate Loan
on the last day of the then-current Interest Period for such Loan (or if
outstanding as a Base Rate Loan will remain as, or (if not then outstanding)
will be made as, a Base Rate Loan).  In
the event Borrowers fail to specify an Interest Period for any Eurodollar Rate
Loan in the applicable Funding Notice or Conversion/Continuation Notice,
Borrowers shall be deemed to have selected an Interest Period of one
month.  As soon as practicable after 10:00 a.m.
(New York City time) on each Interest Rate Determination Date, Administrative
Agent shall determine (which determination shall, absent manifest error, be
final, conclusive and binding upon all parties) the interest rate that shall
apply to the Eurodollar Rate Loans for which an interest rate is then being
determined for the applicable Interest Period and shall promptly give notice
thereof (in writing or by telephone confirmed in writing) to Borrowers and each
Lender.


 


(c)      Interest payable pursuant to Section 2.19
shall be computed (i) in the case of Base Rate Loans on the basis of a
365-day or 366-day year, as the case may be, and (ii) in the case of
Eurodollar Rate Loans, on the basis of a 360-day year, in each case for the
actual number of days elapsed in the period during which it accrues.  In computing interest on any Loan, the date
of the making of such Loan or the first day of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted from a
Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan to
such Base Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the


 


44

















 


expiration date of an
Interest Period applicable to such Loan or, with respect to a Base Rate Loan
being converted to a Eurodollar Rate Loan, the date of conversion of such Base
Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded; provided,
if a Loan is repaid on the same day on which it is made, one day’s interest
shall be paid on that Loan.


 


(d)      Except as otherwise set forth herein,
interest on each Loan shall be payable in arrears on and to (i) each
Interest Payment Date applicable to that Loan; (ii) any prepayment of that
Loan, whether voluntary or mandatory, to the extent accrued on the amount being
prepaid; and (iii) at maturity, including final maturity; provided,
however, with respect to any voluntary prepayment of a Base Rate Loan,
accrued interest shall instead be payable on the applicable Interest Payment
Date.


 


(e)      Borrowers agree to pay to Issuing Bank,
with respect to drawings honored under any Letter of Credit, interest on the
amount paid by Issuing Bank in respect of each such honored drawing from the date
such drawing is honored to but excluding the date such amount is reimbursed by
or on behalf of Borrowers at a rate equal to (i) for the period from the
date such drawing is honored to but excluding the applicable Reimbursement
Date, the rate of interest otherwise payable hereunder with respect to
Revolving Loans that are Base Rate Loans, and (ii) thereafter, a rate
which is 2% per annum in excess of the rate of interest otherwise payable
hereunder with respect to Revolving Loans that are Base Rate Loans.


 


(f)       Interest payable pursuant to Section 2.20(e) shall
be computed on the basis of a 365/366-day year for the actual number of days
elapsed in the period during which it accrues, and shall be payable on demand
or, if no demand is made, on the date on which the related drawing under a
Letter of Credit is reimbursed in full. 
Promptly upon receipt by Issuing Bank of any payment of interest
pursuant to Section 2.20(e), Issuing Bank shall distribute to each Lender,
out of the interest received by Issuing Bank in respect of the period from the
date such drawing is honored to but excluding the date on which Issuing Bank is
reimbursed for the amount of such drawing (including any such reimbursement out
of the proceeds of any Revolving Loans), the amount that such Lender would have
been entitled to receive in respect of the letter of credit fee that would have
been payable in respect of such Letter of Credit for such period if no drawing
had been honored under such Letter of Credit. 
In the event Issuing Bank shall have been reimbursed by Lenders for all
or any portion of such honored drawing, Issuing Bank shall distribute to each
Lender which has paid all amounts payable by it under Section 2.11 with
respect to such honored drawing such Lender’s Pro Rata Share of any interest
received by Issuing Bank in respect of that portion of such honored drawing so
reimbursed by Lenders for the period from the date on which Issuing Bank was so
reimbursed by Lenders to but excluding the date on which such portion of such
honored drawing is reimbursed by Borrowers.


 


Section 2.21         Conversion/Continuation.


 


(a)      Subject to Section 2.33 and so long
as no Default or Event of Default shall have occurred and then be continuing,
Borrowers shall have the option:


 


(i)    to convert at any time all
or any part of any Term Loan, Incremental Term Loan or Revolving Loan equal to
$1,000,000 and integral multiples of $100,000 in excess of that amount from one
Type of Loan to another Type of Loan; provided a Eurodollar Rate Loan
may only be converted on the expiration of the Interest Period applicable to
such Eurodollar Rate Loan unless Borrowers shall pay all amounts due under Section 2.33
in connection with any such conversion; or


 


45

















 


(ii)   upon the expiration of any Interest Period
applicable to any Eurodollar Rate Loan, to continue all or any portion of such
Loan equal to $1,000,000 and integral multiples of $100,000 in excess of that
amount as a Eurodollar Rate Loan.


 


(b)      Borrowers shall deliver a Conversion/Continuation
Notice to Administrative Agent no later than 3:00 p.m. (New York City
time) at least one Business Day in advance of the proposed conversion date (in
the case of a conversion to a Base Rate Loan) and at least three Business Days
in advance of the proposed conversion/continuation date (in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan).  Except as otherwise provided herein, a
Conversion/Continuation Notice for conversion to, or continuation of, any
Eurodollar Rate Loans (or telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and
Borrowers shall be bound to effect a conversion or continuation in accordance
therewith.


 


Section 2.22         Default Interest.


 


Upon the occurrence and
during the continuance of any Event of Default set forth in Section 8.01(a),
(c) (solely with respect to any failure to comply with any provision of Section 6.08),
(f) or (g), the principal amount of all Loans outstanding and, to the extent
permitted by applicable law, any interest payments on the Loans or any fees or
other amounts owed hereunder, shall thereafter bear interest (including
post-petition interest in any proceeding under the Bankruptcy Code or other
applicable bankruptcy laws) payable on demand at a rate that is 2% per annum in
excess of the interest rate otherwise payable hereunder with respect to the
applicable Loans (or, in the case of any such fees and other amounts, at a rate
which is 2% per annum in excess of the interest rate otherwise payable
hereunder for Base Rate Loans that are Revolving Loans); provided, in
the case of Eurodollar Rate Loans, upon the expiration of the Interest Period
following delivery of notice to Borrowers by Requisite Lenders that all Eurodollar
Rate Loans shall be converted to Base Rate Loans, such Eurodollar Rate Loans
shall thereupon become Base Rate Loans and shall thereafter bear interest
payable upon demand at a rate which is 2% per annum in excess of the interest
rate otherwise payable hereunder for Base Rate Loans.  Payment or acceptance of the increased rates
of interest provided for in this Section 2.22 is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of
Administrative Agent or any Lender.


 


Section 2.23         Fees.


 


(a)      Borrowers agree to pay to Lenders having
Revolving Exposure:


 


(i)    commitment fees equal to (1) the
average of the daily difference between (A) the Revolving Commitments, and
(B) the sum of (x) the aggregate principal amount of outstanding
Revolving Loans (but not any outstanding Swing Line Loans) plus (y) the
Letter of Credit Usage, times (2) 0.50% per annum; and


 


(ii)   letter of credit fees equal to (1) the
Applicable Margin for Revolving Loans that are Eurodollar Rate Loans, times (2) the
average aggregate daily maximum amount available to be drawn under all such
Letters of Credit (regardless of whether any conditions for drawing could then
be met and determined as of the close of business on any date of
determination).


 


46

















 


All fees referred to in this
Section 2.23(a) shall be paid to Administrative Agent at its
Principal Office and upon receipt, Administrative Agent shall promptly
distribute to each Lender its Pro Rata Share thereof.


 


(b)      Borrowers agree to pay directly to Issuing
Bank, for its own account, the following fees:


 


(i)    a fronting fee equal to
0.250%, per annum, times the average aggregate daily maximum amount available
to be drawn under all Letters of Credit (determined as of the close of business
on any date of determination); and


 


(ii)   such documentary and processing charges for
any issuance, amendment, transfer or payment of a Letter of Credit as are in accordance
with Issuing Bank’s standard schedule for such charges and as in effect at the
time of such issuance, amendment, transfer or payment, as the case may be.


 


(c)      Borrowers agree to pay to Lenders holding
Delayed Draw Term Loan Commitments commitment fees equal to (1) the
difference between (A) the Delayed Draw Term Loan Commitments and (B) the
aggregate principal amount of Delayed Draw Term Loans which have been drawn,
times (2) the Applicable Delayed Draw Term Loan Commitment Fee.


 


(d)      All fees referred to in Section 2.23(a),
2.23(b)(i) and 2.23(c) shall be calculated on the basis of a 360-day
year and the actual number of days elapsed and shall be payable quarterly in
arrears on March 31, June 30, September 30 and December 31
of each year during the Revolving Commitment Period or the Delayed Draw Term
Loan Commitment Period, as the case may be, commencing on the first such date
to occur after the Closing Date, and on the Revolving Commitment Termination
Date or the Delayed Draw Term Loan Commitment Termination Date, as the case may
be.


 


(e)      In addition to any of the foregoing fees,
Borrowers agree to pay to Agents  such
other reasonable fees in the amounts and at the times separately agreed upon.


 


Section 2.24         Scheduled
Installments.


 


(a)      The principal amounts of the Initial Term
Loans shall be repaid in consecutive quarterly installments (each, an “Installment”)
in the aggregate amounts set forth below on the last day of each Fiscal Quarter
(each, an “Installment Date”), commencing June 30, 2007:


 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  INITIAL
  TERM LOAN

  INSTALLMENTS

  	
   

  	
   

  
	
   

  	
  June 30,
  2007

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  September 30,
  2007

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  December 31,
  2007

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  March 31,
  2008

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  June 30,
  2008

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  



 


47

















 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  INITIAL TERM LOAN

  INSTALLMENTS

  	
   

  	
   

  
	
   

  	
  September 30,
  2008

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  December 31,
  2008

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  March 31,
  2009

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  June 30,
  2009

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  September 30,
  2009

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  December 31,
  2009

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  March 31,
  2010

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  June 30,
  2010

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  September 30,
  2010

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  December 31,
  2010

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  March 31,
  2011

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  June 30,
  2011

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  September 30,
  2011

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  December 31,
  2011

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  March 31,
  2012

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  June 30,
  2012

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  September 30,
  2012

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  December 31,
  2012

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  Term
  Loan Maturity Date

  	
   

  	
  $

  	
  103,675,000

  	
   

  	
   

  



 


(b)      The principal amounts of the Delayed Draw
Term Loans shall be repaid in Installments on each Installment Date, commencing
on the first Installment Date following the initial borrowing of the applicable
Delayed Draw Term Loans, in an amount equal to 0.25% of the aggregate principal
amount of such Delayed Draw Term Loans, with the balance due and payable on the
Term Loan Maturity Date.


 


(c)      Unless otherwise specified in the
applicable Increase Joinder, the principal amounts of the Incremental Term
Loans shall be repaid in Installments on each Installment Date, commencing on
the first Installment Date following the initial borrowing of the applicable
Incremental 


 


48

















 


Term Loans, in an amount
equal to 0.25% of the aggregate principal amount of such Incremental Term
Loans, with the balance due and payable on the Incremental Term Loan Maturity
Date.


 


(d)      Notwithstanding the foregoing, (x) such
Installments shall be reduced in connection with any voluntary or mandatory
prepayments of the Term Loans or Incremental Term Loans in accordance with
Sections 2.25 through 2.28, as applicable; (y) the Term Loans,
together with all other amounts owed hereunder with respect thereto, shall, in
any event, be paid in full no later than the Term Loan Maturity Date; and (z) the
Incremental Term Loans, together with all other amounts owed hereunder with
respect thereto, shall, in any event, be paid in full no later than the
Incremental Term Loan Maturity Date.


 


Section 2.25         Voluntary
Prepayments.


 


(a)      Any time and from time to time, subject to
Section 2.33, in whole or in part, without premium or penalty:


 


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


 


(ii)   with respect to Eurodollar Rate Loans,
Borrowers may prepay any such Loans on any Business Day in whole or in part in
an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in
excess of that amount (unless being repaid in whole); and


 


(iii)  with respect to Swing Line Loans, Borrowers
may prepay any such Loans on any Business Day in whole or in part in an
aggregate minimum amount of $100,000, and integral multiples of $100,000 in
excess of that amount (unless being repaid in whole).


 


(b)      All such prepayments shall be made:


 


(i)    upon not less than one
Business Day’s prior written or telephonic notice in the case of Base Rate
Loans;


 


(ii)   upon not less than three Business Days’ prior
written or telephonic notice in the case of Eurodollar Rate Loans; and


 


(iii)  upon written or telephonic notice on the date
of prepayment, in the case of Swing Line Loans;


 


in each case given to
Administrative Agent or Swing Line Lender, as the case may be, by 3:00 p.m.
(New York City time) (or 12:00 p.m. (New York City time, in the case of
Swing Line Loans) on the date required and, if given by telephone, promptly
confirmed in writing to Administrative Agent (and Administrative Agent will
promptly transmit such telephonic or original notice for Term Loans,
Incremental Term Loans or Revolving Loans, as the case may be, by telefacsimile
or telephone to each Lender) or Swing Line Lender, as the case may be.  Upon the giving of any such notice, the principal


 


49

















 


amount of the Loans
specified in such notice shall become due and payable on the prepayment date
specified therein.


 


Section 2.26         Voluntary
Commitment Reductions.


 


(a)      Borrowers may, upon not less than three
Business Days’ prior written or telephonic notice confirmed in writing to
Administrative Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by telefacsimile or telephone to
each applicable Lender), at any time and from time to time terminate in whole
or permanently reduce in part, without premium or penalty, (i) the
Revolving Commitments in an amount up to the amount by which the Revolving
Commitments exceed the Total Utilization of Revolving Commitments at the time
of such proposed termination or reduction; provided, any such partial
reduction of the Revolving Commitments shall be in an aggregate minimum amount
of $100,000 and integral multiples of $100,000 in excess of that amount or (ii) any
of the Delayed Draw Term Loan Commitments in an amount up to the amount by
which the Delayed Draw Term Loan Commitments exceed the aggregate principal
amount of Delayed Draw Term Loans outstanding; provided, any such
partial reduction of the Delayed Draw Term Loan Commitments shall be in an
aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in
excess of that amount.


 


(b)      Borrowers’ notice to Administrative Agent
shall designate the date (which shall be a Business Day) of such termination or
reduction and the amount of any partial reduction, and such termination or
reduction of the Revolving Commitments or the Delayed Draw Term Loan
Commitments, as the case may be, shall be effective on the date specified in
Borrowers’ notice and shall reduce the Revolving  Commitment or the applicable Delayed Draw
Term Loan Commitment, as the case may be, of each Lender proportionately to its
Pro Rata Share thereof.


 


Section 2.27         Mandatory
Prepayments.


 


(a)      Asset Sales.  No later than the fifth Business Day
following the date of receipt by Holdings or any of its Subsidiaries of any Net
Asset Sale Proceeds, Borrowers shall prepay the Loans and/or the Revolving
Commitments shall be permanently reduced as set forth in Section 2.30(b) in
an aggregate amount equal to such Net Asset Sale Proceeds; provided, so
long as no Default or Event of Default shall have occurred and be continuing,
Borrowers shall have the option, directly or through one or more of their
Subsidiaries, to invest Net Asset Sale Proceeds within one hundred eighty (180)
days of receipt thereof in long-term productive assets of the general type used
in the business of Borrowers and their Subsidiaries; provided  further,
pending any such investment all such Net Asset Sale Proceeds shall be applied
to prepay Revolving Loans to the extent outstanding (without a reduction in
Revolving Commitments).


 


(b)      Insurance/Condemnation Proceeds.  No later than the fifth Business Day
following the date of receipt by Holdings or any of its Subsidiaries, or
Administrative Agent as loss payee, of any Net Insurance/Condemnation Proceeds,
Borrowers shall prepay the Loans and/or the Revolving Commitments shall be
permanently reduced as set forth in Section 2.30(b) in an aggregate
amount equal to such Net Insurance/Condemnation Proceeds; provided, (i) so
long as no Default or Event of Default shall have occurred and be continuing,
and (ii) to the extent that aggregate Net Insurance/Condemnation Proceeds
from the Closing Date through the applicable date of determination do not
exceed $500,000, Borrowers shall have the option, directly or through one or
more of their Subsidiaries to invest such Net Insurance/Condemnation Proceeds
within one hundred eighty (180) days 


 


50

















 


of receipt thereof in long
term productive assets of the general type used in the business of Borrowers
and their Subsidiaries, which investment may include the repair, restoration or
replacement of the applicable assets thereof; provided  further,
pending any such investment all such Net Insurance/Condemnation Proceeds, as
the case may be, shall be applied to prepay Revolving Loans to the extent
outstanding (without a reduction in Revolving Commitments).


 


(c)      Issuance of Equity Securities.  No later than the fifth Business Day
following the date of receipt by Holdings of any Cash proceeds from a capital
contribution to, or the issuance of any Capital Stock of, Holdings or any of
its Subsidiaries (other than in respect of any Excluded Equity Issuance),
Borrowers shall prepay the Loans and/or the Revolving Commitments shall be
permanently reduced as set forth in Section 2.30(b) in an aggregate
amount equal to 50% of such proceeds, net of underwriting discounts and
commissions and other reasonable costs and expenses associated therewith,
including reasonable legal fees and expenses.


 


(d)      Issuance of Debt.  No later than the fifth Business Day
following the date of receipt by Holdings or any of its Subsidiaries of any
Cash proceeds from incurrence of any Indebtedness of Holdings or any of its
Subsidiaries (other than with respect to any Indebtedness permitted to be
incurred pursuant to Section 6.01), Borrowers shall prepay the Loans
and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.30(b) in
an aggregate amount equal to 100% of such proceeds, net of underwriting
discounts and commissions and other reasonable costs and expenses associated
therewith, including reasonable legal fees and expenses.


 


(e)      Consolidated Excess Cash Flow.  In the event that there shall be Consolidated
Excess Cash Flow for any Fiscal Year (commencing with Fiscal Year 2007,
provided that the period of calculation for Fiscal Year 2007 shall commence on
the Closing Date and continue through to and including December 31, 2007),
Borrowers shall, no later than ten (10) days after the date annual
financial statements are required to be delivered in accordance with Section 5.01(c),
prepay the Loans and/or the Revolving Commitments shall be permanently reduced
as set forth in Section 2.30(b) in an aggregate amount equal to (i) 75%
of such Consolidated Excess Cash Flow minus (ii) voluntary
repayments of the Loans (excluding repayments of Revolving Loans or Swing line
Loans except to the extent the Revolving Commitments are permanently reduced in
connection with such repayments); provided, if the Total Leverage Ratio
as of the last day of the relevant Fiscal Year (determined for such Fiscal Year
by reference to the applicable Compliance Certificate delivered pursuant to Section 5.01(d) calculating
the Total Leverage Ratio) shall be 3.00:1.00 or less, Borrowers shall only be
required to make the prepayments and/or reductions otherwise required hereby in
an amount equal to (i) 50% of such Consolidated Excess Cash Flow minus
(ii) voluntary repayments of the Loans (excluding repayments of Revolving
Loans or Swing line Loans except to the extent the Revolving Commitments are
permanently reduced in connection with such repayments).


 


Section 2.28         Mandatory
Commitment Reductions of Revolving Loans.


 


Borrowers shall from time to
time prepay first, the Swing Line
Loans, and second, the Revolving
Loans to the extent necessary so that the Total Utilization of Revolving  Commitments shall not at any time exceed the
Revolving Commitments then in effect.


 


51

















 


Section 2.29         Prepayment
Certificate.


 


Concurrently with any
prepayment of the Loans and/or reduction of the Revolving Commitments pursuant
to Section 2.27, Borrowers shall deliver to Administrative Agent a
certificate of an Authorized Officer demonstrating the calculation of the
amount of the applicable net proceeds or Consolidated Excess Cash Flow, as the
case may be.  In the event that Borrowers
shall subsequently determine that the actual amount received exceeded the
amount set forth in such certificate, Borrowers shall promptly make an
additional prepayment of the Loans and/or the Revolving Commitments shall be
permanently reduced in an amount equal to such excess, and Borrowers shall
concurrently therewith deliver to Administrative Agent a certificate of an
Authorized Officer demonstrating the derivation of such excess.


 


Section 2.30         Application
of Prepayments/Reductions.


 


(a)      Application of Voluntary Prepayments by
Type of Loans.  Any prepayment of any
Loan pursuant to Section 2.25 shall be applied as specified by Borrowers
in the applicable notice of prepayment; provided, in the event Borrowers
fail to specify the Loans to which any such prepayment shall be applied, such
prepayment shall be applied as follows:


 


First, to repay outstanding Swing
Line Loans to the full extent thereof;


 


Second, to repay outstanding
Revolving Loans to the full extent thereof; and


 


Third, to prepay the scheduled
Installments of principal on the Term Loans and the Incremental Term Loans on a
pro rata basis, such prepayments to be further applied in direct order of
maturity for the first four Fiscal Quarters following the date of prepayment
and thereafter to all remaining Installments of principal on the Term Loans and
the Incremental Term Loans on a pro rata basis.


 


(b)      Application of Mandatory Prepayments by
Type of Loans.  Any amount required
to be paid pursuant to Section 2.27 shall be applied as follows:


 


First, to prepay the remaining
scheduled Installments of principal of the Term Loans and the Incremental Term
Loans on a pro rata basis, such prepayments to be further applied to all
remaining Installments of principal on the Term Loans and the Incremental Term
Loans on a pro rata basis;


 


Second, to prepay the Swing Line
Loans to the full extent thereof and to permanently reduce the Revolving
Commitments by the amount of such prepayment;


 


Third, to prepay the Revolving
Loans to the full extent thereof and to further permanently reduce the
Revolving Commitments by the amount of such prepayment;


 


Fourth, to prepay outstanding
reimbursement obligations with respect to Letters of Credit and to further
permanently reduce the Revolving Commitments by the amount of such prepayment;


 


52

















 


Fifth, to cash collateralize Letters
of Credit and to further permanently reduce the Revolving Commitments by the
amount of such cash collateralization; and


 


Sixth, to further permanently
reduce the Revolving Commitments to the full extent thereof.


 


(c)      Application of Prepayments of Loans to
Base Rate Loans and Eurodollar Rate Loans. 
Considering each Class of Loans being prepaid separately, any
prepayment thereof shall be applied first to Base Rate Loans to the full extent
thereof before application to Eurodollar Rate Loans, in each case in a manner
which minimizes the amount of any payments required to be made by Borrowers
pursuant to Section 2.33(c).


 


Section 2.31         General
Provisions Regarding Payments.


 


(a)      All payments by Borrowers of principal,
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, and delivered to Administrative Agent not later than 12:00 p.m.
(New York City time) on the date due at the Administrative Agent’s Principal
Office for the account of Lenders; funds received by Administrative Agent after
that time on such due date shall be deemed to have been paid by Borrowers on
the next succeeding Business Day.


 


(b)      All payments in respect of the principal
amount of any Loan (other than voluntary prepayments of Revolving Loans) 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 Loan on a date when interest is due and payable with respect to such Loan)
shall be applied to the payment of interest before application to principal.


 


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


 


(d)      Notwithstanding the foregoing provisions
hereof, if any Conversion/Continuation Notice is withdrawn as to any Affected
Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share
of any Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.


 


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


 


(f)       [Reserved].


 


(g)      Administrative Agent shall deem any
payment by or on behalf of Borrowers hereunder that is not made in same day
funds prior to 12:00 p.m. (New York City time) to be a


 


53

















 


non-conforming payment.  Any such payment shall not be deemed to have
been received by Administrative Agent until the later of (i) the time such
funds become available funds, and (ii) the applicable next Business
Day.  Administrative Agent shall give
prompt telephonic notice to Borrowers and each applicable Lender (confirmed in
writing) 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 rate determined
pursuant to Section 2.22 from the date such amount was due and payable
until the date such amount is paid in full.


 


(h)      If an Event of Default shall have occurred
and not otherwise been waived, and the maturity of the Obligations shall have
been accelerated pursuant to Section 8.01, all payments or proceeds
received by Agents hereunder in respect of any of the Obligations shall be
applied in accordance with the application arrangements described in Section 7.02
of the Pledge and Security Agreement.


 


Section 2.32         Sharing
of Payments by Lenders.


 


Except as otherwise provided
in the Collateral Documents with respect to amounts realized from the exercise
of rights with respect to Liens on Collateral if any Lender shall, by
exercising any right of setoff or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Loans or other
obligations hereunder resulting in such Lender’s receiving payment of a
proportion of the aggregate amount of its Loans and accrued interest thereon or
other such obligations greater than its Pro Rata Share, then the Lender
receiving such greater proportion shall (a) notify Administrative Agent of
such fact, and (b) purchase (for cash at face value) participations in the
Loans and such other obligations of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Loans and other
amounts owing them; provided that:


 


(i)    if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and


 


(ii)   the provisions of this paragraph shall not be
construed to apply to (x) any payment made by Borrowers pursuant to and in
accordance with the express terms of this Agreement or (y) any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in Letters of Credit to any
assignee or participant.


 


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


 


54














 


Section 2.33                            Making or Maintaining Eurodollar Rate Loans.


 


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


 


(b)                 Illegality or
Impracticability of Eurodollar Rate Loans.  In the event that on any date any Lender
shall have determined (which determination shall be final and conclusive and
binding upon all parties hereto but shall be made only after consultation with
Borrowers and Administrative Agent) that the making, maintaining or
continuation of its Eurodollar Rate Loans (i) has become unlawful as a
result of compliance by such Lender in good faith with any law, treaty,
governmental rule, regulation, guideline or order (or would conflict with any
such treaty, governmental rule, regulation, guideline or order not having the force
of law even though the failure to comply therewith would not be unlawful), or (ii) has
become impracticable, as a result of contingencies occurring after the date
hereof which materially and adversely affect the London interbank market or the
position of such Lender in that market, then, and in any such event, such
Lender shall be an “Affected Lender” and it shall on that day give
notice (by telefacsimile or by telephone confirmed in writing) to Borrowers and
Administrative Agent of such determination (which notice Administrative Agent
shall promptly transmit to each other Lender). 
Thereafter (1) the obligation of the Affected Lender to make Loans
as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until such
notice shall be withdrawn by the Affected Lender, (2) to the extent such
determination by the Affected Lender relates to a Eurodollar Rate Loan then
being requested by Borrowers pursuant to a Funding Notice or a
Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or
continue such Loan as or convert such Loan to, as the case may be) a Base Rate
Loan, (3) the Affected Lender’s obligation to maintain its outstanding
Eurodollar Rate Loans (the “Affected Loans”) shall be terminated at the
earlier to occur of the expiration of the Interest Period then in effect with
respect to the Affected Loans or when required by law, and (4) the
Affected Loans shall automatically convert into Base Rate Loans on the date of
such termination.  Notwithstanding the
foregoing, to the extent a determination by an Affected Lender as described
above relates to a Eurodollar Rate Loan then being requested by Borrowers
pursuant to a Funding Notice or a Conversion/Continuation Notice, Borrowers
shall have the option, subject to the provisions of Section 2.33(c), to
rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders
by giving notice (by telefacsimile or by telephone confirmed in writing) to
Administrative Agent of such rescission on the date on which the Affected Lender
gives notice of its determination as described above (which notice of
rescission Administrative Agent shall promptly transmit to each other
Lender).  Except as provided in the
immediately preceding sentence, nothing in this Section 2.33(b) shall
affect the obligation of any Lender other than an Affected Lender to make or
maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in accordance
with the terms hereof.


 


55

















 


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


 


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


 


(e)                  Assumptions Concerning
Funding of Eurodollar Rate Loans.  Calculation of all amounts payable to a
Lender under this Section 2.33 and under Sections 2.34 and 2.35 shall be
made as though such Lender had actually funded each of its relevant Eurodollar
Rate Loans through the purchase of a Eurodollar deposit bearing interest at the
rate obtained pursuant to clause (i) of the definition of Adjusted
Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan
and having a maturity comparable to the relevant Interest Period and through
the transfer of such Eurodollar deposit from an offshore office of such Lender
to a domestic office of such Lender in the United States of America; provided,
however, each Lender may fund each of its Eurodollar Rate Loans in any
manner it sees fit and the foregoing assumptions shall be utilized only for the
purposes of calculating amounts payable under this Section 2.33 and under Section 2.34
and 2.35.


 


Section 2.34                            Compensation For Increased Costs.


 


If any Change in Law shall:


 


(i)             impose, modify
or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or for the
account of, or credit extended or participated in by, any Lender (except any
reserve requirement reflected in the definition of Adjusted Eurodollar Rate) or
the Issuing Bank;


 


(ii)          subject any Lender or the
Issuing Bank to any tax of any kind whatsoever with respect to this Agreement,
any Letter of Credit, any participation in a Letter of Credit or any Eurodollar
Rate Loan made by it, or change the basis of taxation of payments to such
Lender or the Issuing Bank in respect thereof (except for Indemnified Taxes or
Other Taxes covered by Section 2.36 and changes in the rate of any
Excluded Tax payable by such Lender or the Issuing Bank); or


 


56

















 


(iii)       impose on any Lender or the
Issuing Bank or the London interbank market any other condition, cost or
expense affecting this Agreement or Eurodollar Rate Loans made by such Lender
or any Letter of Credit or participation therein;


 


and the result of any of the
foregoing shall be to increase the cost to such Lender of making or maintaining
any Eurodollar Rate Loan (or of maintaining its obligation to make any such
Loan), or to increase the cost to such Lender or the Issuing Bank of
participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or any other amount),
then in accordance with Section 2.35(b), Borrowers will pay to such Lender
or the Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.


 


Section 2.35                            Capital Requirements; Certificates for Reimbursement; Delay in Requests.


 


(a)                  Capital Requirements.  If any Lender or the Issuing Bank determines
that any Change in Law affecting such Lender or the Issuing Bank or any lending
office of such Lender or such Lender’s or the Issuing Bank’s holding company,
if any, regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender’s or the Issuing Bank’s capital or on the
capital of such Lender’s or the Issuing Bank’s holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the Loans made
by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by the Issuing Bank, to a level below that which such Lender
or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company
could have achieved but for such Change in Law (taking into consideration such
Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or
the Issuing Bank’s holding company with respect to capital adequacy), then from
time to time Borrowers will pay to such Lender or the Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any
such reduction suffered.


 


(b)                 Certificates for
Reimbursement.  A
certificate of a Lender or the Issuing Bank setting forth in reasonable detail
the calculation of the amount or amounts necessary to compensate such Lender or
the Issuing Bank or its holding company, as the case may be, as specified in
Sections 2.34 and 2.35(a) and delivered to Borrowers shall be conclusive
absent manifest error.  Borrowers shall
pay such Lender or the Issuing Bank, as the case may be, the amount shown as
due on any such certificate within 10 days after receipt thereof.


 


(c)                  Delay in Requests.  Failure or delay on the part of any Lender or
the Issuing Bank to demand compensation pursuant to Sections 2.34 or 2.35 shall
not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand
such compensation, provided that Borrowers shall not be required to
compensate a Lender or the Issuing Bank pursuant to Sections 2.34 or 2.35 for
any increased costs incurred or reductions suffered more than six months prior
to the date that such Lender or the Issuing Bank, as the case may be, notifies
Borrowers of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or the Issuing Bank’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased
costs or reductions is retroactive, then the six-month period referred to above
shall be extended to include the period of retroactive effect thereof).


 


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Section 2.36                            Taxes.


 


(a)                  Payments Free of Taxes.  Any and all payments by or on account of any
obligation of Borrowers hereunder or under any other Loan Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes, provided that if Borrowers shall be required by
applicable law to deduct any Indemnified Taxes (including any Other Taxes) from
such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to additional
sums payable under this Section 2.36) Administrative Agent, Lender or
Issuing Bank, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) Borrowers shall make
such deductions and (iii) Borrowers shall timely pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.


 


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


 


(c)                  Indemnification by Borrowers.  Borrowers shall indemnify Administrative
Agent, each Lender and the Issuing Bank, within 10 days after demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section 2.36) paid by Administrative Agent,
such Lender, the Swing Line Lender  or
the Issuing Bank, as the case may be, and any penalties, interest and
reasonable out-of-pocket expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority; provided,
that if Borrowers reasonably believe that such Taxes were not correctly or
legally asserted, Administrative Agent, such Lender or the Issuing Bank, as the
case may be, will use commercially reasonable efforts to cooperate with Borrowers
to obtain a refund of such Taxes.  A
certificate as to the amount of such payment or liability delivered to
Borrowers by a Lender or the Issuing Bank (with a copy to Administrative
Agent), or by Administrative Agent on its own behalf or on behalf of a Lender,
the Swing Line Lender or the Issuing Bank, shall be conclusive absent manifest
error.


 


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


 


(e)                  Status of Lenders.  Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction in which any Borrower is resident for tax purposes, or any treaty
to which such jurisdiction is a party, with respect to payments hereunder or
under any other Loan Document shall deliver to Borrowers (with a copy to
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by Borrowers or Administrative Agent, such properly
completed and executed documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate of
withholding.  In addition, any Lender, if
requested by Borrowers or Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by Borrowers
or Administrative Agent as will enable Borrowers or Administrative Agent to
determine whether or not such Lender is subject to backup withholding or
information reporting requirements.


 


58

















 


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


 


(i)             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,


 


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


 


(iii)       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


 


(iv)      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.


 


(f)                    Treatment of
Certain Refunds.  If
Administrative Agent, a Lender or the Issuing Bank determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by Borrowers or with respect to which Borrowers
have paid additional amounts pursuant to this Section, it shall pay to
Borrowers an amount equal to such refund (but only to the extent of indemnity
payments made, or additional amounts paid, by Borrowers under this Section 2.36
with respect to the Taxes or Other Taxes giving rise to such refund), net of
all out-of-pocket expenses of Administrative Agent, such Lender, the Swing Line
Lender or the Issuing Bank, as the case may be, and without interest (other
than any interest paid by the relevant Governmental Authority with respect to
such refund); provided that Borrowers, upon the request of
Administrative Agent, such Lender, the Swing Line Lender or the Issuing Bank,
agree to repay the amount paid over to Borrowers (plus any penalties, interest
or other charges imposed by the relevant Governmental Authority) to
Administrative Agent, such Lender, the Swing Line Lender or the Issuing Bank in
the event Administrative Agent, such Lender or the Issuing Bank is required to
repay such refund to such Governmental Authority.  This paragraph shall not be construed to
require Administrative Agent, any Lender, the Swing Line Lender or the Issuing
Bank to make available its tax returns (or any other information relating to
its taxes which it deems confidential) to Borrowers or any other Person.


 


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Section 2.37                            Mitigation Obligations; Replacement of Lenders.


 


(a)                  Designation of a Different
Lending Office.  If any
Lender requests compensation under Section 2.34 or 2.35 or requires
Borrowers to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.36, then
such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.34, 2.35 or 2.36
as the case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender.  Borrowers hereby agree
to pay all reasonable and documented costs and expenses incurred by any Lender
in connection with any such designation or assignment.


 


(b)                 Replacement of Lenders.  If (i) any Lender requests compensation
under Section 2.34 or 2.35, (ii)  if Borrowers are required to pay
any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.36 or (iii) if any Lender refuses
to consent to an amendment, modification or waiver pursuant to Section 10.04(b) or
(c) with respect to any Loan Document which has otherwise been approved by
Requisite Lenders or (iv) any Lender becomes a Defaulting Lender pursuant
to Section 2.38, then Borrowers may, at their sole expense and effort,
upon notice to such Lender and Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section 10.06), all
of its interests, rights and obligations under this Agreement and the related
Loan Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that:


 


(i)             Borrowers shall
have paid to Administrative Agent the assignment fee specified in Section 10.06,


 


(ii)          such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and participations in Letters of Credit, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder and under the other Loan
Documents (including, if applicable, any amounts under Section 2.33(c))
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or Borrowers (in the case of all other amounts),


 


(iii)       in the case of any such
assignment resulting from a claim for compensation under Section 2.34 or
2.35 or payments required to be made pursuant to Section 2.36, such
assignment will result in a reduction in such compensation or payments
thereafter, and


 


(iv)      such assignment does not
conflict with applicable law.


 


A Lender shall not be
required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling
Borrowers to require such assignment and delegation cease to apply.


 


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Section 2.38                            Defaulting Lenders.


 


Anything contained herein to
the contrary notwithstanding, in the event that any Lender, other than at the
direction or request of any regulatory agency or authority, defaults (a “Defaulting
Lender”) in its obligation to fund (a “Funding Default”) any
Revolving Loan, its portion of any unreimbursed payment under Section 2.06(d),
any Delayed Draw Term Loan or any Incremental Term Loan (in each case, a “Defaulted
Loan”), then (a) during any Default Period with respect to such
Defaulting Lender, such Defaulting Lender shall be deemed not to be a “Lender”
for purposes of voting on any matters (including the granting of any
amendments, consents or waivers) with respect to any of the Loan Documents; (b) to
the extent permitted by applicable law, until such time as the Default Excess
with respect to such Defaulting Lender shall have been reduced to zero, (i) any
voluntary prepayment of the Class of Loans that includes the Defaulted
Loan shall, if Borrowers so direct at the time of making such voluntary
prepayment, be applied to the applicable Class of Loans of other Lenders
as if such Defaulting Lender had no Loans of the applicable Class outstanding
and the Revolving Exposure, Term Loan Exposure (solely with respect to any
Delayed Draw Term Loans that are Defaulted Loans) or Incremental Term Loan
Exposure, as the case may be, of such Defaulting Lender were zero, and (ii) any
mandatory prepayment of the Class of Loans that includes the Defaulted
Loan shall, if Borrowers so direct at the time of making such mandatory
prepayment, be applied to the applicable Class of Loans of other Lenders
(but not to the applicable Class of Loans of such Defaulting Lender) as if
such Defaulting Lender had funded all Defaulted Loans of such Defaulting
Lender, it being understood and agreed that Borrowers shall be entitled to
retain any portion of any mandatory prepayment of the applicable Class of
Loans that is not paid to such Defaulting Lender solely as a result of the
operation of the provisions of this clause (b); (c) if the Defaulted Loan
is a Revolving Loan, such Defaulting Lender’s Revolving Commitment and
outstanding Revolving Loans and such Defaulting Lender’s Pro Rata Share of the
Letter of Credit Usage shall be excluded for purposes of calculating the
Revolving Commitment fee payable to Lenders in respect of any day during any
Default Period with respect to such Defaulting Lender, and such Defaulting
Lender shall not be entitled to receive any Revolving Commitment fee pursuant
to Section 2.23 with respect to such Defaulting Lender’s Revolving
Commitment in respect of any Default Period with respect to such Defaulting
Lender; (d) if the Defaulted Loan is a Revolving Loan, the Total
Utilization of Revolving Commitments as at any date of determination shall be
calculated as if such Defaulting Lender had funded all Defaulted Loans of such
Defaulting Lender; and (e) if the Defaulted Loan is a Delayed Draw Term
Loan, such Defaulting Lender’s Delayed Draw Term Loan Commitment and
outstanding Delayed Draw Term Loans shall be excluded for purposes of
calculating the Delayed Draw Term Loan Commtiment fee payable to Lenders in
respect of any day during any Default Period with respect to such Defaulting
Lender, and such Defaulting Lender shall not be entitled to receive any Delayed
Draw Term Loan Commitment fee pursuant to Section 2.23 with respect to
such Defaulting Lender’s Delayed Draw Term Loan Commitment in respect of any
Default Period with respect to such Defaulting Lender.  No Commitment of any Lender shall be
increased or otherwise affected, and, except as otherwise expressly provided in
this Section 2.38, performance by Borrowers of their obligations hereunder
and the other Loan Documents shall not be excused or otherwise modified as a
result of any Funding Default or the operation of this Section 2.38.  The rights and remedies against a Defaulting
Lender under this Section 2.38 are in addition to other rights and
remedies which Borrowers may have against such Defaulting Lender with respect
to any Funding Default and which Administrative Agent or any Lender may have
against such Defaulting Lender with respect to any Funding Default.


 


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Section 2.39                            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 Loans from any borrowing 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 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 Collateral Agent may have against the
other Borrowers, 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 


 


62

















 


Contribution Amount with
respect to any Borrower for purposes of this Section 2.39, 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 2.39)
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 2.39.  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 2.39 shall not
be construed in any way to limit the liability of any Borrower hereunder or
under any Loan Document.


 


(c)                  Representative of Companies.  Each of E-Default, STT and Statewide
Publishing hereby appoints MR as its agent, attorney-in-fact and representative
for the purpose of (i) making any borrowing requests or other requests
required under this Agreement, (ii) the giving and receipt of notices by
and to Borrowers under this Agreement, (iii) the delivery of all
documents, reports, financial statements and written materials required to be
delivered by Borrowers under this Agreement, and (iv) 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 or Statewide, as
applicable, to the same extent as if directly taken by E-Default, STT or
Statewide Publishing, as applicable.


 


(d)                 Allocation of Loans.  All Loans shall be made to MR as borrower
unless a different allocation of the Loans as among MR, E-Default, STT and
Statewide Publishing with respect to any borrowing hereunder is included in the
applicable Funding Notice.


 


Section 2.40                            Increase in Commitments.


 


(a)                  Borrower Request.  Borrowers may by written notice to
Administrative Agent elect to request the establishment of one or more new term
loan Commitments (each, an “Incremental Term Loan Commitment”) by an
amount not in excess of $40,000,000 in the aggregate and not less than
$10,000,000 individually.  Each such
notice shall specify (i) the date (each, an “Increase Effective Date”)
on which Borrowers propose that the Incremental Term Loan Commitments shall be
effective, which shall be a date not less than 10 Business Days after the date
on which such notice is delivered to Administrative Agent and (ii) the
identity of each Eligible Assignee to whom Borrowers propose any portion of
such Incremental Term Loan Commitments be allocated and the amounts of such
allocations; provided that any existing Lender approached to provide all
or a portion of the Incremental Term Loan Commitments may elect or decline, in
its sole discretion, to provide such Incremental Term Loan Commitment.


 


(b)                 Conditions.  The Incremental Term Loan Commitments shall
become effective as of such Increase Effective Date; provided that:


 


(i)             each of the
conditions set forth in Section 3.03 shall be satisfied;


 


63

















 


(ii)          no Default shall have
occurred and be continuing or would result from the borrowings to be made on
the Increase Effective Date;


 


(iii)       after giving pro forma
effect to the borrowings to be made on the Increase Effective Date and to any
change in Consolidated Adjusted EBITDA and any increase in Indebtedness
resulting from the consummation of any Permitted Acquisition concurrently with
such borrowings, as of the Increase Effective Date and as of the date of the
most recent financial statements delivered pursuant to Section 5.01(a) or
(c), Borrowers shall be in compliance with each of the covenants set forth in Section 6.08;
and


 


(iv)      Borrowers shall deliver or
cause to be delivered any legal opinions or other documents reasonably
requested by Administrative Agent in connection with any such transaction.


 


(c)                  Terms of New Loans and
Incremental Term Loan Commitments.  The terms and provisions of Loans made
pursuant to the Incremental Term Loan Commitments shall be as follows:


 


(i)             terms and
provisions of Loans made pursuant to Incremental Term Loan Commitments (“Incremental
Term Loans”) shall be, except as otherwise set forth herein or in the
Increase Joinder, identical to the Term Loans (it being understood that
Incremental Term Loans may be part of an existing tranche of Term Loans);


 


(ii)          the weighted average life to
maturity of all Incremental Term Loans shall be no shorter than the original
weighted average life to maturity of the existing Term Loans;


 


(iii)       the maturity date of
Incremental Term Loans (the “Incremental Term Loan Maturity Date”) shall
not be earlier than the Final Maturity Date;


 


(iv)      the Applicable Margins for
the Incremental Term Loans shall be determined by Borrowers and the applicable
new Lenders; provided, however, that the Applicable Margins for
the Incremental Term Loans shall not be greater than the highest Applicable
Margins that may, under any circumstances, be payable with respect to the Term
Loans plus 25 basis points, unless the Applicable Margins with respect to the
Term Loans are increased by an amount equal to the difference between the
Applicable Margins with respect to the Incremental Term Loans and the
corresponding Applicable Margins for the Term Loans.


 


(d)                 Increase Joinder.  The Incremental Term Loan Commitments shall
be effected by a joinder agreement (the “Increase Joinder”) executed by
Borrowers, Administrative Agent and each Lender making such Incremental Term
Loan Commitment, in form and substance satisfactory to each of them.  The Increase Joinder may, without the consent
of any other Lenders, effect such amendments to this Agreement and the other
Loan Documents as may be necessary or appropriate, in the opinion of
Administrative Agent, to effect the provisions of this Section 2.40.


 


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(e)                  Making of New Term Loans.  On any Increase Effective Date on which
Incremental Term Loan Commitments for Incremental Term Loans are effective,
subject to the satisfaction of the foregoing terms and conditions, each Lender
of such Incremental Term Loan Commitment shall make an Incremental Term Loan to
Borrowers in an amount equal to its Incremental Term Loan Commitment.


 


(f)                    Equal and
Ratable Benefit.  The
Incremental Term Loans and Incremental Term Loan Commitments established
pursuant to this paragraph shall constitute Loans and Commitments under, and
shall be entitled to all the benefits afforded by, this Agreement and the other
Loan Documents, and shall, without limiting the foregoing, benefit equally and
ratably from the Guarantees and security interests created by the Collateral
Documents.  The Loan Parties shall take
any actions reasonably required by Administrative Agent to ensure and/or
demonstrate that the Lien and security interests granted by the Collateral
Documents continue to be perfected under the UCC or otherwise after giving
effect to the establishment of any such Incremental Term Loans or any such
Incremental Term Loan Commitments.


 


ARTICLE THREE

CONDITIONS PRECEDENT


 


Section 3.01                            Conditions to Closing Date.


 


The obligation of any Lender
to make a Credit Extension on the Closing Date is subject to the satisfaction,
or waiver in accordance with Section 10.04, of the following conditions on
or before the Closing Date:


 


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


 


(b)                 Organizational Documents;
Incumbency. 
Administrative Agent 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 Administrative Agent may reasonably request.


 


(c)                  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 Administrative Agent 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 


 


65

















 


owned by the applicable
Borrower or its Subsidiaries in each case free and clear of any lien, charge,
or encumbrance not permitted hereunder.


 


(d)                 Consummation of Transactions
Contemplated by Related Agreements.


 


(i)             (1) 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 (2) 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.


 


(ii)          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 Lead Arranger.


 


(iii)       The Lenders shall be
satisfied that the Senior Subordinated Notes in aggregate amount not to exceed
$55,000,000 shall concurrently be purchased, on material terms reasonably
satisfactory to the Lead Arranger.


 


(e)                  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 Administrative Agent 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 Administrative Agent 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.


 


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


 


(g)                 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 Administrative Agent.  All applicable waiting periods shall have
expired without any action being taken or threatened by any competent authority
which would restrain, prevent or otherwise impose adverse conditions on the
transactions contemplated by the 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.


 


(h)                 Real Estate Assets.  In order to create in favor of Collateral
Agent, for the benefit of Secured Parties, a valid and, subject to any filing
and/or recording referred to herein, perfected 


 


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First Priority security
interest in certain Real Estate Assets, Collateral Agent shall have received
from Borrowers and each applicable Guarantor:


 


(i)             fully executed
and notarized Mortgages, in proper form for recording in all appropriate places
in all applicable jurisdictions, encumbering each Real Estate Asset listed in
Schedule 3.01(h) (each, a “Closing Date Mortgaged Property’’);


 


(ii)          an opinion of counsel (which
counsel shall be reasonably satisfactory to Collateral Agent) in each state in
which a Closing Date Mortgaged Property is located with respect to the
enforceability of the form(s) of Mortgages to be recorded in such state
and such other matters as Collateral Agent may reasonably request, in each case
in form and substance reasonably satisfactory to Collateral Agent;


 


(iii)       in the case of each
Leasehold Property that is a Closing Date Mortgaged Property, (1) a
Landlord Consent and Estoppel and (2) evidence that such Leasehold
Property is a Recorded Leasehold Interest;


 


(iv)      (a) ALTA mortgagee
title insurance policies or unconditional commitments therefor issued by one or
more title companies reasonably satisfactory to Collateral Agent with respect
to each Closing Date Mortgaged Property (each, a “Title Policy”), in
amounts not less than the fair market value of each Closing Date Mortgaged
Property, together with a title report issued by a title company with respect
thereto, dated not more than thirty (30) days prior to the Closing Date and
copies of all recorded documents listed as exceptions to title or otherwise
referred to therein, each in form and substance reasonably satisfactory to
Collateral Agent and (B) evidence satisfactory to Collateral Agent that
such Loan Party has paid to the title company or to the appropriate
governmental authorities all expenses and premiums of the title company and all
other sums required in connection with the issuance of each Title Policy and
all recording and stamp taxes (including mortgage recording and intangible
taxes) payable in connection with recording the Mortgages for each Closing Date
Mortgaged Property in the appropriate real estate records;


 


(v)         flood certifications with
respect to all Closing Date Mortgaged Properties and evidence of flood
insurance with respect to each Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program, in each
case in compliance with any applicable regulations of the Board of Governors of
the Federal Reserve System, in form and substance reasonably satisfactory to
Collateral Agent; and


 


(vi)      ALTA surveys of all Closing
Date Mortgaged Properties which are not Leasehold Properties, certified to
Collateral Agent and dated not more than thirty (30) days prior to the Closing
Date.


 


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


 


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


 


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


 


(iii)       opinions of counsel (which
counsel shall be reasonably satisfactory to Collateral Agent) with respect to
the creation and perfection of the security interests in favor of Collateral
Agent in such Collateral as Collateral Agent may reasonably request, in each
case in form and substance reasonably satisfactory to Collateral Agent; and


 


(iv)      evidence that each Loan
Party shall have taken or caused to be taken any other action, executed and
delivered or caused to be executed and delivered any other agreement, document
and instrument (including without limitation a Landlord Collateral Access
Agreement executed by the landlord of any Leasehold Property and by the
applicable Loan Party) and made or caused to be made any other filing and
recording (other than as set forth herein) reasonably required by Collateral
Agent.


 


(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 Administrative Agent and Lenders (the “Pro Forma Financial
Statements”), (iii) the Projections and (iv) a certification by
the chief financial officer of the Borrowers 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.  Administrative Agent 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 and that Collateral 


 


68

















 


Agent, for the benefit of
Lenders has been named as additional insured and loss payee thereunder to the
extent required under Section 5.05. 
The Administrative Agent 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 D and as to such other
matters as Administrative Agent 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 Administrative Agent (and each Loan Party hereby
instructs such counsel to deliver such opinions to Agents and Lenders).


 


(m)               Fees.  Borrowers shall have paid to Administrative
Agent and Lead Arranger the fees payable on the Closing Date referred to in Section 2.23.


 


(n)                 Solvency Certificate.  On the Closing Date, Administrative Agent
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 Administrative Agent an originally executed Closing Date
Certificate, together with all attachments thereto.


 


(p)                 Closing Date.  Lenders shall have made the Initial Term
Loans to Borrowers 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 Administrative Agent,
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
Agreements.  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.  Lead Arranger
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.


 


(u)                 Completion of Proceedings.  All partnership, corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all 


 


69

















 


documents incidental thereto
shall be satisfactory in form and substance to Administrative Agent and its
counsel, and Administrative Agent and its counsel shall have received all such
counterpart originals or certified copies of such documents as Administrative
Agent may reasonably request.


 


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


 


(w)               U.S. 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 and the Senior Subordinated 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 funding a Loan 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
any Agent, Requisite Lenders or Lenders, as applicable on the Closing Date.


 


Section 3.02                            Conditions to Delayed Draw Term Loans.


 


The obligation of any Lender
to make a Delayed Draw Term Loan is subject to the satisfaction, or waiver in
accordance with Section 10.04, of the following conditions on or before the
applicable Credit Date:


 


(a)                  Third Party Reports.  Any third party reports in respect of the
Phase 2 Acquisition to be consummated on such Credit Date that have been
provided to the Sponsor, Holdings or any of its Subsidiaries shall have been
provided to Lead Arranger at least 10 days prior to funding of the Delayed Draw
Term Loans used to finance such Phase 2 Acquisition.


 


(b)                 Phase 2 Acquisition
Agreements.  The Lenders
shall have received all material agreements, instruments and documents in
connection with any Phase 2 Acquisitions to be consummated on such Credit Date
(including without limitation all schedules and exhibits to the relevant
acquisition agreement and any services agreement).  Concurrently with the funding of the Delayed
Draw Term Loans, any such Phase 2 Acquisitions shall have been consummated in
accordance with the terms of such agreements in all material respects and in
compliance with applicable law and regulatory approvals.


 


(c)                  Solvency Certificate.  On the applicable Credit Date with respect to
the Delayed Draw Term Loans, Administrative Agent 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
Phase 2 Acquisitions and the incurrence of the Delayed Draw Term Loans on the 


 


70

















 


applicable Credit Date,
Holdings, the Borrowers and the other Guarantors, taken as a whole, are and
will be Solvent.


 


(d)                 Liquidity; Covenant Compliance.  After giving pro forma effect to the Phase 2
Acquisitions and the incurrence of the Delayed Draw Term Loans on the
applicable Credit Date: (i) (A) the amount, if any, by which (1) the
Revolving Commitments exceed (2) the sum of the Total Utilization of
Revolving Commitments plus (B) the aggregate amount of Cash and Cash
Equivalents of Borrowers and their Subsidiaries at such time, shall not be less
than $5,000,000, and (ii) Borrowers shall be in compliance with each of
the covenants set forth in Section 6.08, provided that the Total
Leverage Ratio shall be less than the lower of (x) the covenant then
applicable under Section 6.08(c) and (y) 5.25:1.00.


 


(e)                  Letter of Direction.  Administrative Agent shall have received duly
executed originals of a letter of direction from Borrowers addressed to
Administrative Agent, on behalf of itself and the Lenders, with respect to the
disbursement on the applicable Credit Date with respect to the Delayed Draw
Term Loans of the proceeds of the Loans made on such date.


 


(f)                    Additional
Conditions.  All
conditions precedent set forth in Section 3.01(g), (h), (i), (k), (m) and
(q) shall be satisfied after giving effect to the consummation of the
Phase 2 Acquisition and the incurrence of the Delayed Draw Term Loans on the
applicable Credit Date.


 


Section 3.03                            Conditions to Each Credit Extension.


 


(a)                  Conditions Precedent.  The obligation of each Lender to make any
Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date,
including the Closing Date, are subject to the satisfaction, or waiver in
accordance with Section 10.04, of the following conditions precedent:


 


(i)             Administrative
Agent shall have received a fully executed and delivered Funding Notice or
Issuance Notice, as the case may be;


 


(ii)          after making the Credit
Extensions requested on such Credit Date, the Total Utilization of Revolving
Commitments shall not exceed the Revolving Commitments then in effect;


 


(iii)       as of such Credit Date, 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 that Credit
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;


 


(iv)      as of such Credit Date, no
event shall have occurred and be continuing or would result from the consummation
of the applicable Credit Extension that would constitute an Event of Default or
a Default;


 


(v)         since December 31,
2006, no event, circumstance or change shall have occurred that has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect;


 


71

















 


(vi)      after giving pro forma
effect to the borrowings to be made on such Credit Date and to any change in
Consolidated Adjusted EBITDA and any increase in Indebtedness resulting from
the consummation of any Permitted Acquisition concurrently with such
borrowings, as of such Credit Date and as of the date of the most recent
financial statements delivered pursuant to Section 5.01(a) or (c),
Borrowers shall be in compliance with each of the covenants set forth in Section 6.08;
provided that this clause (vi) shall not apply to borrowings under
the Revolving Commitments; and


 


(vii)   on or before the date of
issuance of any Letter of Credit, Administrative Agent shall have received all
other information required by the applicable Issuance Notice, and such other
documents or information as Issuing Bank may reasonably require in connection
with the issuance of such Letter of Credit.


 


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


 


(b)                 Notices.  Any Notice shall be executed by an Authorized
Officer in a writing delivered to Administrative Agent.  In lieu of delivering a Notice, Borrowers may
give Administrative Agent telephonic notice by the required time of any
proposed borrowing, conversion/continuation or issuance of a Letter of Credit,
as the case may be; provided each such notice shall be promptly
confirmed in writing by delivery of the applicable Notice to Administrative Agent
on or before the applicable date of borrowing, continuation/conversion or
issuance.  Neither Administrative Agent
nor any Lender shall incur any liability to Borrowers in acting upon any
telephonic notice referred to above that Administrative Agent believes in good
faith to have been given by a duly authorized officer or other person
authorized on behalf of Borrowers or for otherwise acting in good faith.


 


ARTICLE FOUR

REPRESENTATIONS AND WARRANTIES


 


In order to induce Lenders
and Issuing Bank to enter into this Agreement and to make each Credit Extension
to be made thereby, each Loan Party represents and warrants to each Lender and
Issuing Bank, on the Closing Date and on each Credit 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.


 


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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 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 Loan Documents in favor of Collateral  Agent, on behalf of Secured Parties); or (d) require
any approval of stockholders, members or partners or any approval or consent of
any Person under any 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 Lenders 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 for
filings and recordings with respect to the Collateral to be made, or otherwise
delivered to Collateral Agent for filing and/or recordation, as of the Closing
Date.


 


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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
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.


 


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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.


 


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 


 


75

















 


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 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 of the Loans made to such Loan Party will be used to purchase or carry
any such margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock or for any purpose that violates,
or is inconsistent with, the provisions of Regulation T, U or X of said Board
of Governors.


 


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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.  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.


 


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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 Agents, the Lenders and the purchasers of the Senior
Subordinated Notes.


 


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
Administrative Agent 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.


 


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 Agent or 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 


 


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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 Administrative Agent, without modification, waiver or
amendment, except those which had the prior written consent of the
Administrative Agent 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.


 


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 Senior Subordinated Notes are the only outstanding
contractually subordinated indebtedness of Holdings and its Subsidiaries.


 


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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 Loans, 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 Loans will be
used, directly or indirectly, for any payments to any governmental official or
employee, political party, official of a political party, candidate for
political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as
amended.


 


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.


 


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.


 


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ARTICLE
FIVE

AFFIRMATIVE COVENANTS


 


Each Loan Party covenants
and agrees that so long as any Commitment is in effect and until payment in
full of all Obligations (other than contingent indemnity obligations not then
due and payable) and cancellation or expiration of all Letters of Credit, each
Loan Party shall perform, and shall cause each of its Subsidiaries to perform,
all covenants in this Article Five.


 


Section 5.01                            Financial Statements and Other Reports.


 


Holdings will deliver to
Administrative Agent, for further distribution 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 Administrative Agent (which report
shall be unqualified as to going concern and scope of audit, and shall state
that such consolidated financial statements fairly present, in all material
respects, the consolidated financial position of 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 


 


81

















 


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 Administrative Agent;


 


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


 


(f)                    Notice of
Default.  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 Administrative Agent, 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 Administrative Agent shall reasonably request;


 


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(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 (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, together, in each case, with an explanation of the
assumptions on which such forecasts are based all in form and substance reasonably
satisfactory to Agents;


 


(j)                     Insurance
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 reasonably satisfactory to Administrative
Agent outlining all material insurance coverage maintained as of such date
by Holdings and its Subsidiaries, such certificate to note that with respect to
all such insurance Collateral Agent, for the benefit of Lenders, has been
named as additional insured and loss payee thereunder to the extent required
under Section 5.05.


 


(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
Administrative Agent (to the extent such delivery is permitted by the terms of
any such Material Contract; provided, no such prohibition on delivery
shall be effective if it were bargained for by 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)                 Information Regarding
Collateral.  (a) 
Borrowers will furnish to the Collateral Agent prompt written notice of any
change (i) in any Loan Party’s corporate name, (ii) in any Loan Party’s
identity or corporate structure, (iii) in any Loan Party’s jurisdiction of
formation or (iv) in any Loan Party’s Federal Taxpayer Identification
Number or organizational identification number. 
Borrowers agree not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform
Commercial Code or otherwise that are required in order for the Collateral
Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral as contemplated in the
Collateral Documents.  Borrowers also
agree promptly to notify the Collateral Agent if any material portion of the
Collateral is damaged or destroyed;


 


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(o)                 Annual Collateral
Verification.  Each year,
at the time of delivery of annual financial statements with respect to the
preceding Fiscal Year pursuant to Section 5.01(c), Borrowers shall deliver
to the Collateral Agent an Officer’s Certificate either confirming that there
has been no change in such information since the date of the Collateral
Questionnaire delivered on the Closing Date or the date of the most recent certificate
delivered pursuant to this Section and/or identifying such changes;


 


(p)                 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 Administrative Agent 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;


 


(q)                 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; and


 


(r)                    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
Administrative Agent or any Lender.


 


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


 


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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 of the
Collateral, such contest proceedings conclusively operate to stay the sale of
any portion of the Collateral 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 Administrative Agent 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.  Without limiting the generality of the
foregoing, Holdings will maintain or cause to be maintained (a) flood
insurance with respect to each Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program, in each
case in compliance with any applicable regulations of the Board of Governors of
the Federal Reserve System, and (b) replacement value casualty insurance
on the Collateral under such policies of insurance, with such insurance companies,
in such amounts, with such deductibles, and covering such risks as are at all
times carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses.  Each such policy of insurance shall (i) name
Collateral Agent, on behalf of Lenders, as an additional insured thereunder as
its interests may appear and (ii) in the case of each casualty insurance
policy, contain a loss payable clause or endorsement, satisfactory in form and
substance to Collateral Agent, that names Collateral Agent, on behalf of
Lenders as the loss payee thereunder and provides for at least thirty (30) days’
(or ten (10) days’ in the case of non-payment of premiums) prior written
notice to Collateral Agent of any modification or cancellation of such policy.


 


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 Administrative Agent (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 their officers and independent public
accountants, all at the expense of the Borrowers, upon 


 


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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 Administrative Agent or Requisite Lenders,
participate in a meeting of Administrative Agent and 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 Administrative Agent) at such
time as may be agreed to by Borrowers and Administrative Agent.


 


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
Administrative Agent, for further distribution 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 


 


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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
Administrative Agent 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 and a
Grantor under the Pledge and Security Agreement by executing and delivering to
Administrative Agent and Collateral Agent 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(b), 3.01(h), 3.01(i) and
3.01(l).  In the event that any Person
becomes a Foreign Subsidiary of any Borrower, and the ownership interests of
such Foreign Subsidiary are directly owned by such Borrower or by any Domestic
Subsidiary thereof, such Borrower shall, or shall cause such Domestic
Subsidiary to, deliver, all such documents, instruments, agreements, and
certificates as are similar to those described in Sections 3.01(b), and such
Borrower shall take, or shall cause such Domestic Subsidiary to take, all of
the actions referred to in Section 3.01(i)(i) necessary to grant and
to perfect a First Priority Lien in favor of Collateral Agent, for the benefit
of Secured Parties, under the Pledge and Security Agreement in 65% of such
ownership interests.  With respect to each
such Subsidiary, the applicable Borrower shall promptly send to Administrative
Agent written notice setting forth with respect to such Person (i) the
date on which such Person became a Subsidiary of 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.


 


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Section 5.12         Additional
Material Real Estate Assets.


 


In the event that any Loan
Party acquires a Material Real Estate Asset, then such Loan Party, (a) contemporaneously
with acquiring such Material Real Estate Asset if it is a fee-owned property
and (b) upon request of Collateral Agent if such Material Real Estate
Asset is a Leasehold Property, shall take all such actions and execute and
deliver, or cause to be executed and delivered, any environmental reports and
all such mortgages, documents, instruments, agreements, opinions and
certificates similar to those described in Sections 3.01(h) and 3.01(i) with
respect to each such Material Real Estate Asset that Collateral Agent shall
reasonably request to create in favor of Collateral Agent, for the benefit of
Secured Parties, a valid and, subject to any filing and/or recording referred
to herein, perfected First Priority security interest in such Material Real
Estate Assets.  In addition to the
foregoing, each Borrower shall, at the request of Collateral Agent, deliver,
from time to time, to Collateral Agent such appraisals as are required by law
or regulation of Real Estate Assets with respect to which Collateral Agent has
been granted a Lien.


 


Section 5.13         Interest
Rate Protection.


 


No later than ninety (90)
days following the Closing Date, Borrowers shall maintain, or cause to be
maintained, in effect one or more Interest Rate Agreements, or otherwise fix
the interest rate on an amount of Indebtedness, for a term of not less than
three (3) years and pursuant to which an amount equal to not less than 50%
of the Initial Term Loans shall be subject to Interest Rate Agreements or
otherwise fixed, in each case in form and substance reasonably satisfactory to
Administrative Agent.


 


Section 5.14         Further
Assurances.


 


At any time or from time to
time upon the request of Administrative Agent, each Loan Party will, at its
expense, promptly execute, acknowledge and deliver such further documents and
do such other acts and things as Administrative Agent or Collateral Agent may
reasonably request in order to effect fully the purposes of the Loan
Documents.  In furtherance and not in
limitation of the foregoing, each Loan Party shall take such actions as
Administrative Agent or Collateral Agent may reasonably request from time to
time to ensure that the Obligations are guarantied by the Guarantors and are
secured by validly perfected, First Priority liens on substantially all of the
assets of Holdings and its Subsidiaries and all of the outstanding Capital
Stock of each Borrower and its Subsidiaries (subject to limitations contained
in the Loan Documents with respect to Foreign Subsidiaries).


 


Section 5.15         Cash
Management Systems. 
Unless otherwise consented to by Agents or Requisite Lenders, Holdings
and its Subsidiaries shall establish and maintain cash management systems
reasonably acceptable to Administrative Agent. 
Holdings and its Subsidiaries shall at all times ensure that all Cash
and Cash Equivalents held by any of them are subject to a valid and perfected
First Priority security interest in favor of the Collateral Agent for the
benefit of the Secured Parties to the extent required under the Pledge and
Security Agreement.


 


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.


 


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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 Collateral Agent
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.


 


ARTICLE SIX

NEGATIVE COVENANTS


 


Each Loan Party covenants
and agrees that, so long as any Commitment is in effect and until payment in
full of all Obligations (other than contingent indemnity obligations not then
due and payable) and cancellation or expiration of all Letters of Credit, 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
evidenced by promissory notes and all such notes shall be subject to a First
Priority Lien pursuant to the Pledge and Security Agreement, (ii) all such
Indebtedness shall be unsecured and subordinated in right of payment to the
payment in full of the Obligations pursuant to the terms of the applicable
promissory notes or an intercompany subordination agreement that in any such
case, is reasonably satisfactory to Administrative Agent, and (iii) any
payment by any Guarantor under any guaranty of the Obligations shall result in
a pro 


 


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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 evidenced by the Senior
Subordinated Notes 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;


 


(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 $2,000,000;


 


(k)      purchase money Indebtedness in an
aggregate amount not to exceed at any time $2,000,000 (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;


 


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(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 $2,500,000 with respect to any
single Permitted Acquisition or series of related Permitted Acquisitions and
$7,500,000 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;


 


(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 Administrative Agent; and


 


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


 


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 in favor of Collateral Agent for the
benefit of Secured Parties granted pursuant to any Loan Document;


 


(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;


 


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


 


(e)      easements, rights-of-way, restrictions,
encroachments, and other minor defects or irregularities in title, 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;


 


(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 or
on a title report delivered pursuant to Section 3.01(h)(iv);


 


(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;


 


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(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 $500,000 at any time
outstanding.


 


Section 6.03         Equitable
Lien.


 


If any Loan Party or any of
its Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, other than Permitted Liens, it
shall make or cause to be made effective provisions whereby the Obligations
will be secured by such Lien equally and ratably with any and all other
Indebtedness secured thereby as long as any such Indebtedness shall be so
secured; provided, notwithstanding the foregoing, this covenant shall
not be construed as a consent by Requisite Lenders to the creation or
assumption of any such Lien not otherwise permitted hereby.


 


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 Subordinated Notes 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:


 


(a)      Borrowers may make regularly scheduled
payments of interest in respect of any Senior Subordinated Notes in accordance
with the terms of, and only to the extent required by the Purchase Agreement,
and subject to the subordination provisions contained in the Subordination
Agreement;


 


(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 $250,000 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 


 


93

















 


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 $750,000 in any
Fiscal Year;


 


(d)      at any time on or after the fifth
anniversary of the Closing Date, Borrowers may make cash payments in respect of
the Senior Subordinated Notes corresponding to the amount of accrued original
issue discount (as defined in Section 1273 of the Internal Revenue Code)
in respect of the Senior Subordinated Notes so long as (i) no Default or
Event of Default shall have occurred and be continuing, (ii) at the time
of such Restricted Junior Payment and after giving effect thereto, the sum of (A) the
amount, if any, by which (1) the Revolving Commitments exceed (2) the
sum of the Total Utilization of Revolving Commitments plus (B) the
aggregate amount of Cash and Cash Equivalents of Borrowers and their
Subsidiaries at such time, shall not be less than $5,000,000; and (iii) after
giving effect to such Restricted Junior Payment, Borrowers shall demonstrate (A) a
pro forma Total Leverage Ratio and pro forma Senior Leverage Ratio of at least
0.25x less than the Total Leverage Ratio or Senior Leverage Ratio, as
applicable, required at such time by Section 6.08 and (B) a pro forma
Interest Coverage Ratio and pro forma Fixed Charge Coverage Ratio of at least
0.25x more than the Interest Coverage Ratio or Fixed Charge Coverage Ratio, as
applicable, required at such time by Section 6.08; and


 


(e)      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 Subordinated Notes 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


 


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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”):


 


(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 $250,000 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; provided, that
all such promissory notes shall be subject to a First Priority Lien pursuant to
the Pledge and Security Agreement;


 


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


 


95

















 


(m)     Investments in deposit accounts opened in
the ordinary course of business; provided, that such deposit accounts
shall be subject to a First Priority Lien to the extent required under the
Pledge and Security Agreement; and


 


(n)      other Investments in an aggregate amount
not to exceed at any time $500,000.


 


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, to be less than the
correlative ratio indicated:


 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  INTEREST

  COVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2007

  	
   

  	
  1.70:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2007

  	
   

  	
  1.70:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2007

  	
   

  	
  1.70:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2007

  	
   

  	
  1.70:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2008

  	
   

  	
  1.80:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2008

  	
   

  	
  1.90:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2008

  	
   

  	
  2.00:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2008

  	
   

  	
  2.05:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2009

  	
   

  	
  2.10:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2009

  	
   

  	
  2.20:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2009

  	
   

  	
  2.30:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2009

  	
   

  	
  2.40:1.00

  	
   

  	
   

  



 


96

















 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  INTEREST

  COVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2010

  	
   

  	
  2.50:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2010

  	
   

  	
  2.60:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2010

  	
   

  	
  2.70:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2010

  	
   

  	
  2.80:1.00

  	
   

  	
   

  
	
   

  	
  Thereafter

  	
   

  	
  3.00:1.00

  	
   

  	
   

  



 


(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:


 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  FIXED CHARGE

  COVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2007

  	
   

  	
  1.30:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2007

  	
   

  	
  1.30:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2007

  	
   

  	
  1.30:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2007

  	
   

  	
  1.30:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2008

  	
   

  	
  1.35:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2008

  	
   

  	
  1.35:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2008

  	
   

  	
  1.40:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2008

  	
   

  	
  1.40:1.00

  	
   

  	
   

  
	
   

  	
  March 31,
  2009

  	
   

  	
  1.40:1.00

  	
   

  	
   

  
	
   

  	
  June 30,
  2009

  	
   

  	
  1.40:1.00

  	
   

  	
   

  
	
   

  	
  September 30,
  2009

  	
   

  	
  1.45:1.00

  	
   

  	
   

  
	
   

  	
  December 31,
  2009

  	
   

  	
  1.45:1.00

  	
   

  	
   

  



 


97

















 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  FIXED CHARGE

  COVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31,
  2010

  	
   

  	
  1.45:1.00

  	
   

  	
   

  
	
   

  	
  June 30,
  2010

  	
   

  	
  1.45:1.00

  	
   

  	
   

  
	
   

  	
  September 30,
  2010

  	
   

  	
  1.50:1.00

  	
   

  	
   

  
	
   

  	
  December 31,
  2010

  	
   

  	
  1.50:1.00

  	
   

  	
   

  
	
   

  	
  Thereafter

  	
   

  	
  1.50:1.00

  	
   

  	
   

  



 


(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

  	
   

  	
  5.75:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2007

  	
   

  	
  5.75:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2007

  	
   

  	
  5.75:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2007

  	
   

  	
  5.50:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2008

  	
   

  	
  5.25:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2008

  	
   

  	
  5.00:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2008

  	
   

  	
  4.75:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2008

  	
   

  	
  4.75:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2009

  	
   

  	
  4.50:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2009

  	
   

  	
  4.50:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2009

  	
   

  	
  4.25:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2009

  	
   

  	
  4.25:1.00

  	
   

  	
   

  



 


98

















 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  TOTAL

  LEVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2010

  	
   

  	
  4.00:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2010

  	
   

  	
  4.00:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2010

  	
   

  	
  3.75:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2010

  	
   

  	
  3.50:1.00

  	
   

  	
   

  
	
   

  	
  Thereafter

  	
   

  	
  3.50:1.00

  	
   

  	
   

  



 


(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

  	
   

  	
  3.75:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2007

  	
   

  	
  3.75:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2007

  	
   

  	
  3.50:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2007

  	
   

  	
  3.50:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2008

  	
   

  	
  3.25:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2008

  	
   

  	
  3.00:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2008

  	
   

  	
  2.75:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2008

  	
   

  	
  2.75:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2009

  	
   

  	
  2.50:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2009

  	
   

  	
  2.50:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2009

  	
   

  	
  2.25:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2009

  	
   

  	
  2.25:1.00

  	
   

  	
   

  



 


99

















 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  SENIOR

  LEVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2010

  	
   

  	
  2.00:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2010

  	
   

  	
  2.00:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2010

  	
   

  	
  2.00:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2010

  	
   

  	
  2.00:1.00

  	
   

  	
   

  
	
   

  	
  Thereafter

  	
   

  	
  2.00:1.00

  	
   

  	
   

  



 


(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

  	
   

  	
  $

  	
  3,000,000

  	
   

  	
   

  
	
   

  	
  2007

  	
   

  	
  $

  	
  3,000,000

  	
   

  	
   

  
	
   

  	
  2008

  	
   

  	
  $

  	
  3,000,000

  	
   

  	
   

  
	
   

  	
  2009

  	
   

  	
  $

  	
  3,000,000

  	
   

  	
   

  
	
   

  	
  2010

  	
   

  	
  $

  	
  3,000,000

  	
   

  	
   

  
	
   

  	
  2011

  	
   

  	
  $

  	
  3,000,000

  	
   

  	
   

  
	
   

  	
  Thereafter

  	
   

  	
  $

  	
  3,000,000

  	
   

  	
   

  



 


(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 and for purposes of determining
the Applicable Margin, 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 


 


100

















 


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 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 $500,000; 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) the Net Asset Sale Proceeds thereof shall be
applied as required in Section 2.30;


 


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


 


(e)      Permitted Acquisitions;


 


(f)       Investments made in accordance with Section 6.07;


 


101

















 


(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 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 Administrative Agent, 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) 


 


102

















 


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.


 


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 Collateral 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 Subordinated
Notes 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 Subordinated Notes.


 


No Loan Party shall, nor
shall it permit any of its Subsidiaries to, without the prior written consent
of Administrative Agent (acting upon instructions of Requisite Lenders), agree
to any amendment, modification or supplement to the Senior Subordinated Notes
Documents in contravention of the Subordination Agreement.


 


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.


 


103














 


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 Administrative Agent for the ratable benefit of the
Beneficiaries the due and punctual payment in full of all Obligations when the
same shall become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts that would
become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively, the “Guaranteed
Obligations”).


 


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.


 


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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 Beneficiary 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 Administrative Agent for the ratable benefit of
Beneficiaries, an amount equal to the sum of the unpaid principal amount of all
Guaranteed Obligations then due as aforesaid, accrued and unpaid interest on
such Guaranteed Obligations (including interest which, but for any Borrower
becoming the subject of a case under the Bankruptcy Code, would have accrued on
such Guaranteed Obligations, whether or not a claim is allowed against such
Borrower for such interest in the related bankruptcy case) and all other
Guaranteed Obligations then owed to Beneficiaries 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)      Administrative Agent may enforce this
Guaranty upon the occurrence of an Event of Default notwithstanding the
existence of any dispute between any Borrower and any Beneficiary with respect
to the existence of such Event of Default;


 


(c)      the obligations of each Guarantor
hereunder are independent of the obligations of 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 Administrative Agent is awarded a judgment
in any suit brought to enforce any Guarantor’s covenant to pay a portion of the
Guaranteed Obligations, such judgment shall not be deemed to release such
Guarantor from its covenant to pay the portion of the Guaranteed Obligations
that is not the subject of such suit, and such judgment shall not, except to
the extent satisfied by such Guarantor, limit, affect, modify or abridge any
other Guarantor’s liability hereunder in respect of the Guaranteed Obligations;


 


(e)      any Beneficiary, upon such terms as it
deems appropriate, without notice or demand and without affecting the validity
or enforceability hereof or giving rise to any reduction, limitation,
impairment, discharge or termination of any Guarantor’s liability hereunder,
from time to time may (i) renew, extend, accelerate, increase the rate of
interest on, or otherwise change the time, place, 


 


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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 Beneficiary 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 Beneficiary may have against any such security,
in each case as such Beneficiary in its discretion may determine consistent
with this Agreement or the applicable Hedge Agreement and any applicable security
agreement, including foreclosure on any such security pursuant to one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable, and even though such action operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy
of any Guarantor against any Borrower or any security for the Guaranteed
Obligations; and (vi) exercise any other rights available to it under the
Loan Documents or the Hedge Agreements; 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 or the Hedge Agreements, 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, any of the Hedge Agreements or any
agreement or instrument executed pursuant thereto, or of any other guaranty or
security for the Guaranteed Obligations, in each case whether or not in
accordance with the terms of this Agreement or such Loan Document, such Hedge
Agreement or any agreement relating to such other guaranty or security; (iii) the
Guaranteed Obligations, or any agreement relating thereto, at any time being
found to be illegal, invalid or unenforceable in any respect; (iv) the
application of payments received from any source (other than payments received
pursuant to the other Loan Documents or any of the Hedge Agreements or from the
proceeds of any security for the Guaranteed Obligations, except to the extent
such security also serves as collateral for indebtedness other than the
Guaranteed Obligations) to the payment of indebtedness other than the
Guaranteed Obligations, even though any Beneficiary might have elected to apply
such payment to any part or all of the Guaranteed Obligations; (v) any
Beneficiary’s consent to the change, reorganization or termination of the
corporate structure or existence of 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 Beneficiary in respect of the Guaranteed Obligations, including
failure of consideration, breach of warranty, payment, statute of frauds,
statute of limitations, accord and satisfaction and usury; and (viii) any
other act or thing or 


 


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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 Beneficiaries: (a) any right to require any
Beneficiary, 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 Beneficiary in favor of any
Borrower or any other Person, or (iv) pursue any other remedy in the power
of any Beneficiary whatsoever; (b) any defense arising by reason of the
incapacity, lack of authority or any disability or other defense of 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 Beneficiary’s
errors or omissions in the administration of the Guaranteed 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 Beneficiary protect, secure, perfect or
insure any security interest or lien or any property subject thereto; (f) notices,
demands, presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance hereof, notices of
default under this Agreement, the Hedge Agreements or any agreement or
instrument related thereto, notices of any renewal, extension or modification
of the Guaranteed Obligations or any agreement related thereto, notices of any
extension of credit to 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 and the Revolving Commitments shall have
terminated and all Letters of Credit shall have expired or been cancelled, 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 Beneficiary 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 


 


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held by any
Beneficiary.  In addition, until the
Guaranteed Obligations (other than contingent indemnity obligations not then
due and payable) shall have been paid in full and the Revolving Commitments
shall have terminated and all Letters of Credit shall have expired or been
cancelled, 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 Beneficiary may
have against such Borrower, to all right, title and interest any Beneficiary
may have in any such collateral or security, and to any right any Beneficiary
may have against such other guarantor. 
If any amount shall be paid to any Guarantor on account of any such
subrogation, reimbursement, indemnification or contribution rights at any time when
all Guaranteed Obligations (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 Administrative Agent on behalf of Beneficiaries and shall
forthwith be paid over to Administrative Agent for the benefit of Beneficiaries
to be credited and applied against the Guaranteed Obligations, whether matured
or unmatured, in accordance with the terms hereof.


 


Section 7.07         Subordination
of Other Obligations.


 


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 be
held in trust for Administrative Agent on behalf of Beneficiaries, at the
request of Administrative Agent, and shall forthwith be paid over to
Administrative Agent for the benefit of Beneficiaries to be credited and
applied against the Guaranteed Obligations but without affecting, impairing or
limiting in any manner the liability of the Obligee Guarantor under any other
provision hereof.


 


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 and the Revolving Commitments shall have
terminated and all Letters of Credit shall have expired or been cancelled.  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
Beneficiary 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.


 


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Section 7.10         Financial
Condition of Borrowers.


 


Any Credit Extension may be
made to Borrowers or continued from time to time, and any Hedge Agreements may
be entered into from time to time, in each case without notice to or
authorization from any Guarantor regardless of the financial or other condition
of Borrowers at the time of any such grant or continuation or at the time such
Hedge Agreement is entered into, as the case may be.  No Beneficiary shall have any obligation to
disclose or discuss with any Guarantor its assessment, or any Guarantor’s
assessment, of the financial condition of 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 the Hedge Agreements, 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 Beneficiary to
disclose any matter, fact or thing relating to the business, operations or
conditions of Borrowers now known or hereafter known by any Beneficiary.


 


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
Administrative Agent acting pursuant to the instructions of Requisite Lenders,
commence or join with any other Person in commencing any bankruptcy,
reorganization or insolvency case or proceeding of or against 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 Beneficiaries that the Guaranteed Obligations which are
guaranteed by Guarantors pursuant hereto should be determined without regard to
any rule of law or order which may relieve 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 Administrative Agent, or
allow the claim of Administrative Agent in respect of, any such interest
accruing after the date on which such case or proceeding is commenced.


 


(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 Beneficiary as a
preference, fraudulent transfer or otherwise, and any such payments which are
so rescinded or recovered shall constitute Guaranteed Obligations for all
purposes hereunder.


 


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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 Beneficiary 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
any installment of principal of any Loan, whether at stated maturity, by
acceleration, by notice of voluntary prepayment, by mandatory prepayment or
otherwise; (ii) when due any amount payable to Issuing Bank in
reimbursement of any drawing under a Letter of Credit; or (iii) any
interest on any Loan or any fee or any other amount due hereunder within five (5) days
after the date due; 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 $1,000,000 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 amount referred to in clause (i) above
or (2) any loan agreement, mortgage, indenture or other agreement relating
to such item(s) of Indebtedness, in each case beyond the grace period, if
any, provided therefor, if the effect of such breach or default is to cause, or
to permit the holder or holders of that Indebtedness (or a trustee on behalf of
such holder or holders), to cause, that Indebtedness to become or be declared
due and payable (or redeemable) prior to its stated maturity or the stated
maturity of any underlying obligation, as the case may be; or (iii) any
Event of Default (as defined in the Purchase Agreement); or


 


(c)      Breach of Certain Covenants.  (i) Failure of any Loan Party to perform
or comply with any term or condition contained in Section 2.16, Section 5.02,
Section 5.15 or Article Six; 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 ten (10) Business
Days after such failure; or


 


(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 (30) 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 Administrative Agent or any Lender of such default; or


 


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(f)       Involuntary Bankruptcy; Appointment of
Receiver, etc.  (i) A court of
competent jurisdiction shall enter a decree or order for relief in respect of
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 $1,000,000 (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 (30) days; or


 


(j)       Employee Benefit Plans.  (i) There shall occur one or more ERISA
Events which individually or in the aggregate results in or might reasonably be
expected to result in liability of Holdings, any of its Subsidiaries or any of
their respective ERISA Affiliates in excess of $1,000,000 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


 


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(k)      Change of Control.  A Change of Control shall occur; or


 


(l)       Guaranties, Collateral Documents 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 or any Collateral Document ceases to be in
full force and effect (other than by reason of a release of Collateral in
accordance with the terms hereof or thereof or the satisfaction in full of the
Obligations in accordance with the terms hereof) or shall be declared null and
void, or Collateral Agent shall not have or shall cease to have a valid and
perfected Lien in any Collateral (other than an immaterial amount of Collateral)
purported to be covered by the Collateral Documents with the priority required
by the relevant Collateral Document, in each case for any reason other than the
failure of Collateral Agent or any Secured Party to take any action within its
control, (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, including with respect to future advances by Lenders, under any Loan
Document to which it is a party, or shall contest the validity or perfection of
any Lien in any Collateral purported to be covered by the Collateral Documents;
or (iv) the Loans shall cease to constitute senior indebtedness under the
subordination provisions of the Senior Subordinated Notes or the Subordination
Agreement or, in any case, such subordination provisions shall be invalidated
or otherwise cease to be legal, valid and binding obligations of the parties
thereto, enforceable in accordance with their 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;


 


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, at the request of (or with the
consent of) Requisite Lenders, upon notice to Borrowers by Administrative
Agent, (A) the Revolving Commitments, if any, of each Lender having such
Revolving Commitments and the obligation of Issuing Bank to issue any Letter of
Credit shall immediately terminate; (B) 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 and accrued
interest on the Loans, (II) an amount equal to the maximum amount that may
at any time be drawn under all Letters of Credit then outstanding (regardless
of whether any beneficiary under any such Letter of Credit shall have
presented, or shall be entitled at such time to present, the drafts or other
documents or certificates required to draw under such Letters of Credit), and (III) all
other Obligations; provided, the foregoing shall not affect in any way
the obligations of Lenders under Section 2.06(d) and Section 2.11;
(C) Administrative Agent may cause Collateral Agent to enforce any and all
Liens and security interests created pursuant to Collateral Documents; and (D) Administrative
Agent shall direct Borrowers to pay (and Borrowers hereby agree upon receipt of
such notice, or upon the occurrence of any Event of Default specified in Section 8.01(f) and
(g) to pay) to Administrative Agent such additional amounts of cash, to be
held as security for Borrowers’ reimbursement Obligations in respect of Letters
of Credit then outstanding, equal to the Letter of Credit Usage at such time.


 


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ARTICLE NINE

AGENTS


 


Section 9.01         Appointment
and Authority.


 


RBSS is hereby appointed
Lead Arranger hereunder and under the other Loan Documents and each Lender
hereby authorizes the Lead Arranger to act as its agent in accordance with the
terms hereof and the other Loan Documents. 
RBS plc is hereby appointed Administrative Agent, Collateral Agent and
Documentation Agent hereunder, and each Lender hereby authorizes Administrative
Agent, Collateral Agent and Documentation Agent to act as its agent in accordance
with the terms hereof and the other Loan Documents.  RBSS is hereby appointed Syndication Agent
hereunder, and each Lender hereby authorizes Syndication Agent to act as its
agent in accordance with the terms hereof and the other Loan Documents.  Each of the Lenders, the Swing Line Lender
and the Issuing Bank hereby irrevocably appoints RBS plc as its agent hereunder
and under the other Loan Documents and authorizes each of Administrative Agent
and Collateral Agent to take such actions on its behalf and to exercise such
powers as are delegated to Administrative Agent and Collateral Agent by the
terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto.  The
provisions of this Article Nine are solely for the benefit of the Agents,
the Lenders and the Issuing Bank, and Borrowers shall not have rights as third
party beneficiaries of any of such provisions. 
As of the Closing Date, neither RBSS, in its capacity as Syndication Agent,
RBS plc in its capacity as Documentation Agent nor RBSS, in its capacity as
Lead Arranger, shall have any obligation, but shall be entitled to all benefits
of this Article Nine.


 


Section 9.02         Rights
as a Lender.


 


Each of Administrative Agent
and Collateral Agent shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not an
Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly
indicated or unless the context otherwise requires, include Administrative
Agent and Collateral Agent hereunder in their individual capacities.  Administrative Agent and Collateral Agent and
their Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind
of business with a Borrower or any Subsidiary or other Affiliate thereof as if
such Person were not an Agent hereunder and without any duty to account
therefor to the Lenders.


 


Section 9.03         Exculpatory
Provisions.


 


Administrative Agent and
Collateral Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the
foregoing, Administrative Agent and Collateral Agent:


 


(a)      shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing,


 


(b)      shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby or by the other Loan Documents
that Administrative Agent or Collateral Agent is required to exercise as
directed in writing by the Requisite Lenders (or such other number or
percentage of the relevant Lenders as shall be expressly provided for herein or
in the other Loan Documents); provided that neither Administrative Agent
nor Collateral Agent shall be required to take any action that, in its opinion
or the opinion of its counsel, may expose Administrative Agent or Collateral
Agent to liability or that is contrary to any Loan Document or applicable law,
and


 


(c)      shall not, except as expressly set forth
herein and in the other Loan Documents, have any duty to disclose, and shall
not be liable for the failure to disclose, any information 


 


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relating to any Borrower or
any of its Affiliates that is communicated to or obtained by Administrative
Agent or Collateral Agent or any of their respective Affiliates in any
capacity.


 


Neither Administrative Agent
nor Collateral Agent shall be liable for any action taken or not taken by it
with the consent or at the request of the Requisite Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as Administrative
Agent or Collateral Agent shall believe in good faith shall be necessary, under
the circumstances as provided in Section 10.04) or in the absence of its
own gross negligence, bad faith or willful misconduct.  Neither Administrative Agent nor Collateral
Agent shall be deemed to have knowledge of any Default unless and until notice
thereof is given to Administrative Agent or Collateral Agent by a Borrower, a
Lender or the Issuing Bank.


 


Neither Administrative Agent
nor Collateral Agent shall be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article Three or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to Administrative Agent or Collateral Agent.


 


Section 9.04         Reliance
by Administrative Agent and Collateral Agent.


 


Each of Administrative Agent
and Collateral Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed
by it to be genuine and to have been signed, sent or otherwise authenticated by
the proper Person.  Each of
Administrative Agent and Collateral Agent also may rely upon any statement made
to it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition
hereunder to the making of a Loan or the issuance of a Letter of Credit that by
its terms must be fulfilled to the satisfaction of a Lender or the Issuing
Bank, each of Administrative Agent and Collateral Agent may presume that such
condition is satisfactory to such Lender or the Issuing Bank unless
Administrative Agent or Collateral Agent shall have received notice to the
contrary from such Lender or the Issuing Bank prior to the making of such Loan
or the issuance of such Letter of Credit. 
Each of Administrative Agent and Collateral Agent may consult with legal
counsel (who may be counsel for Borrowers), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.


 


Section 9.05         Delegation
of Duties.


 


Each of Administrative Agent
and Collateral Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Loan Document by or through any
one or more sub-agents appointed by Administrative Agent or Collateral
Agent.  Each of Administrative Agent and
Collateral Agent and any sub-agent may perform any and all of its duties and
exercise its rights and powers under this Agreement or under any other Credit
Document by or through any one or more sub-agents appointed by such sub-agent
with the approval of Administrative Agent or Collateral Agent, as applicable
(such appointing sub-agent is referred to in this Section 9.05 as an “Appointing
Sub-Agent”).  Each of Administrative
Agent, Collateral Agent and each such sub-agent may perform any and all of its 


 


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duties and exercise its
rights and powers by or through their respective Related Parties.  The exculpatory, indemnification and other
provisions of this Article Nine and of Section 10.02 shall apply to
any of the Related Parties of Administrative Agent and Collateral Agent and
shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as
Administrative Agent or Collateral Agent, as applicable.  All of the rights, benefits, and privileges
(including the exculpatory and indemnification provisions) of this Article Nine
and of Section 10.02 shall apply to each such sub-agent and to the Related
Parties of each sub-agent, and shall apply to their respective activities as
sub-agent as if such sub-agent and Article Nine were named herein.  Notwithstanding anything herein to the
contrary, with respect to each sub-agent appointed by Administrative Agent,
Collateral Agent and/or an Appointing Sub-Agent, (i) such sub-agent shall
be a third party beneficiary under this Agreement with respect to all such
rights, benefits and privileges (including exculpatory rights and rights to
indemnification) and shall have all of the rights and benefits of a third party
beneficiary, including an independent right of action to enforce such rights,
benefits and privileges (including exculpatory rights and rights to
indemnification) directly, without the consent or joinder of any other Person,
against any or all of the Loan Parties and the Lenders, (ii) such rights,
benefits and privileges (including exculpatory rights and rights to
indemnification) shall not be modified or amended without the consent of such
sub-agent, and (iii) such sub-agent shall only have obligations to
Administrative Agent or Collateral Agent and, if applicable, an Appointing
Sub-Agent and not to any Loan Party, Lender or any other Person and no Loan
Party, Lender or any other Person shall have any rights, directly or
indirectly, as a third party beneficiary or otherwise, against such sub-agent.


 


Section 9.06         Resignation
of Administrative Agent.


 


Each of Administrative Agent
and Collateral Agent may at any time give notice of its resignation to the
Lenders, the Issuing Bank and Borrowers. 
Upon receipt of any such notice of resignation, the Requisite Lenders
shall have the right to appoint a successor, which shall be a bank with an
office in the United States, or an Affiliate of any such bank with an office in
the United States, and, if no Default or Event of Default has occurred and is
continuing, then with the consent of Borrowers, not to be unreasonably
withheld.  If no such successor shall
have been so appointed by the Requisite Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent or
Collateral Agent gives notice of its resignation, then the retiring
Administrative Agent or Collateral Agent may appoint a successor Administrative
Agent or Collateral Agent, as applicable, meeting the qualifications set forth
above; provided that if Administrative Agent or Collateral Agent shall
notify Borrowers and the Lenders that no qualifying person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent or
Collateral Agent shall be discharged from its duties and obligations hereunder
and under the other Loan Documents (except that in the case of any collateral
security held by Administrative Agent or Collateral Agent on behalf of the
Secured Parties or the Issuing Bank under any of the Loan Documents, the
retiring Administrative Agent or Collateral Agent shall continue to hold such
collateral security until such time as a successor Administrative Agent or
Collateral Agent is appointed) and (2) all payments, communications and
determinations provided to be made by, to or through Administrative Agent or
Collateral Agent shall instead be made by or to each Lender and the Issuing
Bank directly, until such time as the Requisite Lenders appoint a successor
Administrative Agent or Collateral Agent as provided for above in this
paragraph.  Upon the acceptance of a
successor’s appointment as Administrative Agent or Collateral Agent hereunder,
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring (or retired) Administrative Agent
or Collateral Agent, and the retiring Administrative Agent or Collateral Agent
shall be discharged from all of its duties and obligations hereunder or under
the other Loan Documents (if not 


 


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already discharged therefrom
as provided above in this paragraph). 
The fees payable by Borrowers to a successor Administrative Agent or
Collateral Agent shall be the same as those payable to its predecessor unless
otherwise agreed between Borrowers and such successor.  After the retiring Administrative Agent’s or
Collateral Agent’s resignation hereunder and under the other Loan Documents,
the provisions of this Article Nine and Section 10.02 shall continue
in effect for the benefit of such retiring Administrative Agent or Collateral
Agent, its sub-agents and their respective Related Parties in respect of any
actions taken or omitted to be taken by any of them while the retiring
Administrative Agent or Collateral Agent was acting as Administrative Agent or
Collateral Agent, as applicable.  Any
resignation of Administrative Agent pursuant to this Section shall also
constitute the resignation of RBS plc or its successor as Swing Line Lender,
and any successor Administrative Agent appointed pursuant to this Section shall,
upon its acceptance of such appointment, become the successor Swing Line Lender
for all purposes hereunder.  In such
event Borrowers shall prepay any outstanding Swing Line Loans made by the retiring
or Administrative Agent in its capacity as Swing Line Lender.


 


Section 9.07         Non-Reliance
on Agents and Other Lenders.


 


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


 


Section 9.08         No
Other Duties, etc.


 


Anything herein to the
contrary notwithstanding, none of the Sole Bookrunner, Sole Lead Arranger,
Syndication Agent or Documentation Agent listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any
of the other Loan Documents, except in its capacity, as applicable, as
Administrative Agent, Collateral Agent, a Lender or the Issuing Bank hereunder.


 


Section 9.09         Collateral
Documents and Guaranty.


 


(a)      Agents under Collateral Documents and
Guaranty.  Each Lender hereby further
authorizes Administrative Agent or Collateral Agent, as applicable, on behalf
of and for the benefit of Lenders, to be the agent for and representative of
Lenders with respect to the Guaranty, the Collateral and the Collateral
Documents.  Subject to Section 10.04,
without further written consent or authorization from Lenders, Administrative
Agent or Collateral Agent, as applicable, may execute any documents or
instruments necessary to (i) in connection with a sale or disposition
permitted by this Agreement, release any Lien encumbering any item of
Collateral that is the subject of such sale or other disposition of assets or
to which Requisite Lenders (or such other Lenders as may be required to give
such consent under Section 10.04) have otherwise consented or (ii) release
any Guarantor from the Guaranty pursuant to Section 7.12 or with respect
to which Requisite Lenders (or such other Lenders as may be required to give
such consent under Section 10.04) have otherwise consented.


 


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(b)      Right to Realize on Collateral and
Enforce Guaranty.  Anything contained
in any of the Loan Documents to the contrary notwithstanding, (other than Section 10.03),
Borrowers, Administrative Agent, Collateral Agent and each Lender hereby agree
that (i) no Lender shall have any right individually to realize upon any
of the Collateral or to enforce the Guaranty, it being understood and agreed
that all powers, rights and remedies hereunder may be exercised solely by
Administrative Agent, on behalf of Lenders in accordance with the terms hereof
and all powers, rights and remedies under the Collateral Documents may be
exercised solely by Collateral Agent, and (ii) in the event of a
foreclosure by Collateral Agent on any of the Collateral pursuant to a public
or private sale, Collateral Agent or any Lender may be the purchaser of any or
all of such Collateral at any such sale and Collateral Agent, as agent for and
representative of Secured Parties (but not any Lender or Lenders in its or
their respective individual capacities unless Requisite Lenders shall otherwise
agree in writing) shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the
Collateral sold at any such public sale, to use and apply any of the
Obligations as a credit on account of the purchase price for any collateral
payable by Collateral Agent at such sale.


 


Section 9.10         Withholding
Taxes.


 


To the extent required by
any applicable law, Administrative Agent may withhold from any payment to any
Lender an amount equivalent to any applicable withholding tax.  If the Internal Revenue Service or any other
Governmental Authority asserts a claim that Administrative Agent did not
properly withhold tax from amounts paid to or for the account of any Lender
because the appropriate form was not delivered or was not properly executed or
because such Lender failed to notify Administrative Agent of a change in
circumstances that rendered the exemption from or reduction of withholding tax
ineffective or for any other reason, such Lender shall indemnify Administrative
Agent fully for all amounts paid, directly or indirectly, by Administrative
Agent as tax or otherwise, including any penalties or interest and together
with any and all expenses incurred.


 


ARTICLE TEN

MISCELLANEOUS


 


Section 10.01       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 Administrative
Agent, the Swing Line Lender or RBS plc in its capacity as Issuing Bank, 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


 


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(iii)    if to a Lender, to it at
its address (or telecopier number) set forth in its Administrative
Questionnaire.


 


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).


 


(b)      Electronic Communications.  Notices and other communications to the
Lenders and the Issuing Bank hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by Administrative Agent; provided that
the foregoing shall not apply to notices to any Lender or the Issuing Bank
pursuant to Article Two if such Lender or the Issuing Bank, as applicable,
has notified Administrative Agent that it is incapable of receiving notices
under such Section by electronic communication.  Administrative Agent 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 Administrative Agent
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 10.02       Expenses;
Indemnity; Damage Waiver.


 


(a)      Costs and Expenses.  Borrowers shall pay (i) all reasonable
out-of-pocket expenses incurred by Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of outside counsel for
Administrative Agent, in connection with the syndication of the credit
facilities 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), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Bank in connection with the issuance, amendment, renewal or extension
of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Agents, any Lender or the Issuing Bank,
including the fees, charges and disbursements of any counsel for the Agents,
any Lender or the Issuing Bank, 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
Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.  It is understood and 


 


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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 Agents (and any
sub-agent thereof), each Lender and the Issuing Bank, 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
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (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 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 10.02(a); 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 to the
extent such proceedings relate (A) solely to breaches of representations
or warranties of such assigning Lender regarding ownership or authority to
assign all or a portion of its Commitment or Loans owing to it or other
Obligation, or (B) principally to statements or representations made by an
assigning Lender to such assignee 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 Administrative Agent,
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).


 


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(c)      Reimbursement by Lenders.  To the extent that Borrowers fail to pay any
amount required under paragraph (a) or (b) of this Section to be
paid by them to the Agents (or any sub-agent thereof), the Issuing Bank or any
Related Party of any of the foregoing, each Lender severally agrees to pay to
the Agents (or any such sub-agent), the Issuing Bank or such Related Party, as
the case may be, such Lender’s Applicable Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Agents (or any such sub-agent) or
the Issuing Bank in its capacity as such, or against any Related Party of any
of the foregoing acting for the Agents (or any such sub-agent) or Issuing Bank
in connection with such capacity.  The
obligations of the Lenders under this paragraph (c) are subject to the
provisions of Section 10.12.


 


(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 Loan or Letter of Credit 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 10.02
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 Agent or Lender has incurred out-of-pocket
expenses with respect thereto, such amounts shall be payable upon the earlier
to occur of the resolution of the dispute and thirty (30) days after such
written demand.


 


Section 10.03       Right
of Set-Off.


 


If an Event of Default shall
have occurred and be continuing, each Lender, the Issuing Bank, and each of
their respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final,
in whatever currency, but excluding trust, payroll and tax withholding
accounts) at any time held and other obligations (in whatever currency) at any
time owing by such Lender, the Issuing Bank or any such Affiliate to or for the
credit or the account of any Borrower or any other Loan Party against and on
account of any and all of the obligations of such Borrower or such Loan Party
then due and owing under this Agreement or any other Loan Document to such
Lender or the Issuing Bank, irrespective of whether or not such Lender or the
Issuing Bank shall have made any demand under this Agreement or any other Loan
Document and although such obligations of such Borrower or such Loan Party are
owed to a branch or office of such Lender or the Issuing Bank different from
the branch or office holding such deposit or obligated on such
indebtedness.  The rights of each Lender,
the Issuing Bank and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) which
such Lender, the Issuing Bank or their respective Affiliates may have.  Each Lender and the Issuing Bank agrees
promptly to notify Borrowers and 


 


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Administrative Agent after
any such setoff and application; provided that the failure to give such
notice shall not affect the validity of such setoff and application.


 


Section 10.04       Amendments
and Waivers.


 


(a)      Requisite Lenders’ Consent.  Subject to the additional requirements of Section 10.04(b) and
10.04(c), 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  (other than a Defaulting 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 Loan or Note;


 


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


 


(iii)      extend the stated
expiration date of any Letter of Credit beyond the Revolving Commitment Termination
Date;


 


(iv)      reduce the rate of
interest on any Loan (other than any waiver of any increase in the interest
rate applicable to any Loan pursuant to Section 2.22) or any fee payable
hereunder or change the cash pay nature of any such interest;


 


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


 


(vi)      reduce the principal
amount of any Loan or any reimbursement obligation in respect of any Letter of
Credit;


 


(vii)     amend, modify, terminate
or waive any provision of Section 2.26(b), this Section 10.04(b), Section 10.04(c) or
any other provision of this Agreement that expressly provides that the consent
of all Lenders is required;


 


(viii)    amend, directly or
indirectly, the definition of “Requisite Lenders” or “Pro Rata Share”
(or any other defined terms used to define such terms); provided, with
the consent of Requisite Lenders, additional extensions of credit pursuant
hereto may be included in the determination of “Requisite Lenders” or “Pro
Rata Share” on substantially the same basis as the Term Loan Commitments,
the Term Loans, the Revolving Commitments and the Revolving Loans are included
on the Closing Date;


 


(ix)      release all or
substantially all of the Collateral or 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; or


 


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(x)       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.


 


(c)      Other Consents.  No amendment, modification, termination or
waiver of any provision of the Loan Documents, or consent to any departure by
any Loan Party therefrom, shall:


 


(i)        increase any Revolving
Commitment of any Lender over the amount thereof then in effect without the
consent of such Lender; provided, no amendment, modification or waiver
of any condition precedent, covenant, Default or Event of Default shall
constitute an increase in any Revolving Commitment of any Lender;


 


(ii)       amend, modify,
terminate or waive any provision hereof relating to the Swing Line Sublimit or
the Swing Line Loans without the consent of Swing Line Lender;


 


(iii)      amend the definition of
“Requisite Class Lenders” without the consent of Requisite Class Lenders
of each Class; provided, with the consent of the Requisite Lenders,
additional extensions of credit pursuant hereto may be included in the
determination of such “Requisite Class Lenders” on substantially the
same basis as the Term Loan Commitments, the Term Loans, the Revolving
Commitments and the Revolving Loans are included on the Closing Date;


 


(iv)      alter the required
application of any repayments or prepayments as between Classes pursuant to Section 2.30
without the consent of Requisite Class Lenders of each Class which is
being allocated a lesser repayment or prepayment as a result thereof; provided,
Requisite Lenders may waive, in whole or in part, any prepayment so long as the
application, as between Classes, of any portion of such prepayment which is
still required to be made is not altered;


 


(v)       amend, modify, terminate
or waive any obligation of Lenders relating to the purchase of participations
in Letters of Credit as provided in Section 2.11 without the written
consent of Administrative Agent and of Issuing Bank;  or


 


(vi)      amend, modify, terminate
or waive any provision of Section 9 as the same applies to any Agent, or
any other provision hereof as the same applies to the rights or obligations of
any Agent, in each case without the consent of such Agent.


 


Section 10.05       Execution
of Amendments, etc.


 


Administrative Agent may,
but shall have no obligation to, with the concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of such Lender.  Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was
given.  No notice to or demand on any
Loan Party in any case shall entitle any Loan Party to any other or further notice
or demand in similar or other circumstances. 
Any amendment, modification, termination,


 


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waiver or consent effected
in accordance with this Section 10.05 shall be binding upon each Lender at
the time outstanding, each future Lender and, if signed by a Loan Party, on
such Loan Party.


 


Section 10.06                     Successors and Assigns; Participations.


 


(a)                 Successors and
Assigns Generally.  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby, except that no Borrower may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each
Lender (except as expressly provided in Section 6.09) and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except (i) to
an Eligible Assignee in accordance with the provisions of paragraph (b) of
this Section, (ii) by way of participation in accordance with the
provisions of paragraph (d) of this Section or (iii) by way of
pledge or assignment of a security interest subject to the restrictions of
paragraph (f) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in paragraph (d) of this Section and, to the
extent expressly contemplated hereby, the Related Parties of each of the Agents
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.


 


(b)                 Assignments by
Lenders.  Any Lender may at any time
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it); provided that:


 


(i)             Minimum Amounts.  (A) except in the case of an assignment
of the entire remaining amount of the assigning Lender’s Commitment and the
Loans at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, no minimum
amount need be assigned; and (B) in any case not described in paragraph
(b)(i)(A) of this Section, the aggregate amount of the Commitment (which
for this purpose includes Loans outstanding thereunder) or, if the applicable
Commitment is not then in effect, the principal outstanding balance of the
Loans of the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Assumption Agreement with respect to such
assignment is delivered to Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption Agreement, as of the Trade Date)
shall not be less than $1,000,000, unless each of Administrative Agent and, so
long as no Event of Default has occurred and is continuing, Borrowers otherwise
consent (each such consent not to be unreasonably withheld or delayed);


 


(ii)          Proportionate
Amounts.  each partial assignment shall
be made as an assignment of a proportionate part of all the assigning Lender’s
rights and obligations under this Agreement with respect to the Loan or the
Commitment assigned, except that this clause (ii) shall not prohibit any
Lender from assigning all or a portion of its rights and obligations among
separate Classes on a non-pro rata
basis; and


 


(iii)       the parties to
each assignment shall execute and deliver to Administrative Agent and Borrowers
an Assignment and Assumption Agreement (A) via electronic settlement
acceptable to Administrative Agent or (B) manually, in each


 


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case together with a
processing and recordation fee of $3,500 (or as otherwise agreed by
Administrative Agent) and the Eligible Assignee, if it shall not be a Lender,
shall deliver to Administrative Agent an Administrative Questionnaire.


 


Subject to acceptance and
recording thereof by Administrative Agent pursuant to paragraph (c) of
this Section, from and after the effective date specified in each Assignment
and Assumption Agreement, the Eligible Assignee thereunder shall be a party to
this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption Agreement, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption Agreement, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption Agreement covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto)
, but shall continue to be entitled to the benefits of Sections 2.34, 2.35 and
10.02 with respect to facts and circumstances occurring  prior to the effective date of such
assignment.  Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this paragraph shall be treated for purposes of this Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance
with paragraph (d) of this Section.


 


(c)                  Register.  Administrative Agent, acting solely for this
purpose as an agent of Borrowers, shall maintain at its office in New York a
copy of each Assignment and Assumption Agreement delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and Borrowers, Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary.  The Register shall be
available for inspection by Borrowers and any Lender (solely with respect to
that Lender’s Loans and Commitments), at any reasonable time and from time to
time upon reasonable prior notice.


 


(d)                 Participations.  Any Lender may at any time, without the
consent of, or notice to, Borrowers or Administrative Agent, sell
participations to any Person (other than a natural person or a Borrower or any
of a Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in
all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans owing
to it); provided that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) Borrowers, Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement.


 


Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or
waiver to:  (i) extend the final
scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of
Credit is not extended beyond the Revolving Commitment Termination Date) in
which such participant is participating, or reduce the rate or extend the time
of payment of interest or fees thereon (except in connection with a waiver of
applicability of any post default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the


 


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Participant’s participation
over the amount thereof then in effect (it being understood that a waiver of
any Default or Event of Default or of a mandatory reduction in the Commitment
shall not constitute a change in the terms of such participation, and that an
increase in any Commitment or Loan shall be permitted without the consent of
any Participant if the Participant’s participation is not increased as a result
thereof), (ii) consent to the assignment or transfer by any Loan Party of
any of its rights and obligations under this Agreement or (iii) release
all or substantially all of the Collateral under the Collateral Documents
(except as expressly provided in the Loan Documents) supporting the Loans
hereunder in which such participant is participating.  Subject to paragraph (e) of this
Section, Borrowers agree that each Participant shall be entitled to the
benefits of Sections 2.33(c), 2.34, 2.35 and 2.36 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section.  To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 10.03
as though it were a Lender, provided such Participant agrees to be subject to Section 2.32
as though it were a Lender.


 


(e)                  Limitations
upon Participant Rights.  A
Participant shall not be entitled to receive any greater payment under Sections
2.33(c), 2.34, 2.35 and 2.36 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with Borrowers’
prior written consent.  A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.36 unless Borrowers are notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of Borrowers, to comply with Section 2.36(e) as though it
were a Lender.


 


(f)                   Certain Pledges.  Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.


 


(g)                  SPV Lender.  Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a
special purpose funding vehicle (an “SPV”), identified as such in
writing from time to time by the Granting Lender to Administrative Agent and
Borrowers, the option to provide to Borrowers all or any part of any Loan that
such Granting Lender would otherwise be obligated to make to Borrowers pursuant
to this Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPV to make any Loan and (ii) if an SPV elects not to
exercise such option or otherwise fails to provide all or any part of such
Loan, the Granting Lender shall be obligated to make such Loan pursuant to the
terms hereof.  The making of a Loan by an
SPV hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by such Granting Lender.  Each party hereto hereby agrees that no SPV
shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Lender).  In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior
indebtedness of any SPV, it shall not institute against, or join any other
person in instituting against, such SPV any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof.  In
addition, notwithstanding anything to the contrary contained in this subsection
10.06, any SPV may (i) with notice to, but without the prior written
consent of, Borrowers and Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interests in any Loans
to the Granting Lender or to any financial institutions (consented to by
Borrowers and Administrative Agent)


 


125

















 


providing liquidity and/or
credit support to or for the account of such SPV to support the funding or
maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPV.  This subsection
10.06(g) may not be amended without the written consent of the SPV.  Notwithstanding anything to the contrary in
this Agreement, no SPV shall be entitled to any greater rights under Sections
2.33(c), 2.34, 2.35 or 2.36 than its Granting Lender would have been entitled
to absent the use of such SPV.


 


Section 10.07                     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 10.08                     Survival of Representations, Warranties and Agreements.


 


All representations,
warranties and agreements made herein shall survive the execution and delivery
hereof and the making of any Credit Extension. 
Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Loan Party set forth in Sections 2.33(c), 2.34, 2.35, 2.36,
10.02 and 10.03 and the agreements of Lenders set forth in Sections 2.33,
9.03 and 10.02 shall survive the payment of the Loans, the cancellation or
expiration of the Letters of Credit and the reimbursement of any amounts drawn
thereunder, and the termination hereof.


 


Section 10.09                     No Waiver; Remedies Cumulative.


 


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


 


Section 10.10                     Marshalling; Payments Set Aside.


 


Neither any Agent nor any
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 Administrative Agent or Lenders (or to Administrative
Agent, on behalf of Lenders), or Administrative Agent or Lenders enforce any
security interests or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under
any bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and 


 


126

















 


remedies therefor or related
thereto, shall be revived and continued in full force and effect as if such
payment or payments had not been made or such enforcement or setoff had not
occurred.


 


Section 10.11                     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 10.12                     Obligations Several; Independent Nature of Lenders’ Rights.


 


The obligations of Lenders
hereunder are several and no Lender shall be responsible for the obligations or
Commitment of any 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.


 


Section 10.13                     Headings.


 


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


 


Section 10.14                     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 any Agent, any Lender or the
Issuing Bank 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.


 


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(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 10.01.  Nothing in this Agreement will affect the
right of any party hereto to serve process in any other manner permitted by
applicable law.


 


Section 10.15                     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 (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 10.16                     Treatment of Certain Information; Confidentiality.


 


Each of the Agents, the
Lenders and the Issuing Bank 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 10.16), (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 Participant in, or any prospective
assignee of or Participant in, 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 Agents, any
Lender or the Issuing Bank 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.


 


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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 Agent, any Lender or the Issuing Bank 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 10.17                     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 Loans
made hereunder shall bear interest at the Highest Lawful Rate until the total
amount of interest due hereunder equals the amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect.  In
addition, if when the Loans made hereunder are repaid in full the total
interest due hereunder (taking into account the increase provided for above) is
less than the total amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect, then to the extent permitted by law, Borrowers shall pay to
Administrative Agent an amount equal to the difference between the amount of interest
paid and the amount of interest which would have been paid if the Highest
Lawful Rate had at all times been in effect. 
Notwithstanding the foregoing, it is the intention of Lenders and
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 Highest Lawful Rate, then any such excess shall be cancelled automatically
and, if previously paid, shall at such Lender’s option be applied to the
outstanding amount of the Loans made hereunder or be refunded to Borrowers.


 


Section 10.18                     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 Administrative Agent 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 Administrative Agent and when
Administrative Agent 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 10.19                     Electronic Execution of Assignments.


 


The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption
Agreement shall be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as


 


129

















 


a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be,
to the extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.


 


Section 10.20                     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
Loans to be made hereunder shall be replaced by the terms of this Agreement.


 


Section 10.21                     Patriot Act Notification.


 


Each Lender and
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies Borrowers that pursuant to the requirements of the 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 or Administrative Agent, as applicable,
to identify each Borrower in accordance with the Act.


 


[Remainder of page intentionally left blank]


 


130

















 


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

  



 


S-1

















 


	
   

  	
  MR PROCESSING HOLDING
  CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer Dorris

  
	
   

  	
   

  	
  Name: Jennifer
  Dorris

  
	
   

  	
   

  	
  Title: Vice President, CFO
  and Secretary

  



 


S-2

















 


	
   

  	
  RBS
  SECURITIES CORPORATION,

  
	
   

  	
  as Sole Lead Arranger,
  Sole Book Runner and Syndication Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William Stafeil

  
	
   

  	
   

  	
  Name:
  William Stafeil

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  
	
   

  	
  THE
  ROYAL BANK OF SCOTLAND PLC,

  
	
   

  	
  as Administrative Agent,
  Collateral Agent, Documentation Agent, Swing Line Lender, Issuing Bank and a
  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William Stafeil

  
	
   

  	
   

  	
  Name:
  William Stafeil

  
	
   

  	
   

  	
  Title:
  Managing Director

  



 


S-3














 


APPENDIX A-1


TO CREDIT AND GUARANTY
AGREEMENT


 


Initial Term Loan
Commitments


 


	
  LENDER

  	
   

  	
  INITIAL
  TERM LOAN COMMITMENT

  	
   

  	
  PRO

  RATA SHARE

  	
   

  
	
  The
  Royal Bank of Scotland plc

  	
   

  	
  $

  	
  110,000,000.00

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  110,000,000.00

  	
   

  	
  100

  	
  %

  



 


A-1-1

















 


APPENDIX A-2


TO CREDIT AND GUARANTY
AGREEMENT


 


Delayed Draw Term Loan
Commitments


 


	
  LENDER

  	
   

  	
  DELAYED
  DRAW TERM LOAN

  COMMITMENT

  	
   

  	
  PRO

  RATA SHARE

  	
   

  
	
  The
  Royal Bank of Scotland plc

  	
   

  	
  $

  	
  30,000,000.00

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  30,000,000.00

  	
   

  	
  100

  	
  %

  



 


A-3-1

















 


APPENDIX A-3


TO CREDIT AND GUARANTY
AGREEMENT


 


Revolving Commitments


 


	
  LENDER

  	
   

  	
  REVOLVING
  COMMITMENT

  	
   

  	
  PRO

  RATA SHARE

  	
   

  
	
  The
  Royal Bank of Scotland plc

  	
   

  	
  $

  	
  10,000,000.00

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  10,000,000.00

  	
   

  	
  100

  	
  %

  



 


A-4-1

















 


SCHEDULE 1.01


TO
CREDIT AND GUARANTY 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

  	
   

  	
   

  



 














 


DISCLOSURE SCHEDULES


 


CREDIT AND GUARANTY AGREEMENT




DATED AS OF FEBRUARY 24, 2006


 


 


MR PROCESSING HOLDING CORP., AS HOLDINGS,




AND THE OTHER PARTIES THERETO


 

















 


Schedule
1.01: Designated Consolidated Adjusted EBITDA and Consolidated Capital
Expenditures




See attached


 


Disclosure Schedules


 

















 


SCHEDULE 1.01


TO CREDIT AND GUARANTY
AGREEMENT


 


Consolidated Adjusted
EBITDA:


 


	
  FISCALQUARTER

  ENDING

  	
   

  	
  CONSOLIDATED ADJUSTED EBITDA

  
	
   

  	
   

  	
   

  
	
  September 30, 2005

  	
   

  	
  $

  	
  3,554,353

  
	
   

  	
   

  	
   

  
	
  December 31, 2005

  	
   

  	
  $

  	
  4,982,567

  
	
   

  	
   

  	
   

  
	
  March 31, 2006

  	
   

  	
  From January 1,
  2006 through the  Closing Date, historical EBITDA of the acquired
  businesses, as adjusted using the same adjustments set forth in the PWC
  report delivered under Section 3.01(r), plus the actual
  Consolidated Adjusted EBITDA of Holdings and its Subsidiaries from the
  Closing Date through March 31, 2006

  



 


Consolidated Capital
Expenditures:


 


	
  FISCAL
  QUARTER

  ENDING

  	
   

  	
  CONSOLIDATED CAPITAL

  EXPENDITURES

  
	
   

  	
   

  	
   

  
	
  September 30, 2005

  	
   

  	
  $

  	
  87,500

  
	
   

  	
   

  	
   

  
	
  December 31, 2005

  	
   

  	
  $

  	
  87,500

  
	
   

  	
   

  	
   

  
	
  March 31, 2006

  	
   

  	
  From January 1,
  2006 through the Closing Date, $43,750, plus the actual Consolidated
  Capital Expenditures of Holdings and its Subsidiaries from the Closing Date
  through March 31, 2006

  



 


Taxes on income paid in
Cash:


 


1

















 


	
  FISCAL
  QUARTER

  ENDING

  	
   

  	
  TAXES ON INCOME PAID IN CASH

  
	
   

  	
   

  	
   

  
	
  September 30,
  2005

  	
   

  	
  $

  	
  0

  
	
   

  	
   

  	
   

  
	
  December 31,
  2005

  	
   

  	
  $

  	
  0

  
	
   

  	
   

  	
   

  
	
  March 31,
  2006

  	
   

  	
  From
  January 1, 2006 through the Closing Date, $0, plus the actual
  Taxes on income paid in Cash from the Closing Date through March 31,
  2006

  



 


2

















 


Schedule 3.01(h): Closing Date Mortgaged Properties




None.


 

















 


Schedule
4.01: Jurisdictions of Organization and Qualification


 


	
  Entity

  	
   

  	
  Jurisdiction of Organization

  
	
  MR
  Processing Holding Corp.

  	
   

  	
  Delaware

  
	
  MR
  Default Services LLC

  	
   

  	
  Delaware

  
	
  E-Default
  Services LLC

  	
   

  	
  Delaware

  
	
  Statewide
  Tax and Title Services LLC

  	
   

  	
  Delaware

  
	
  Statewide
  Publishing Services LLC

  	
   

  	
  Delaware

  



 

















 


Schedule 4.02: Capital Stock and Ownership




Options, Calls, Warrants, Etc.


 


Holdings
will issue options of up to 15% of its fully diluted equity at the closing of
the Acquisition. At such closing, options equal to 5% of the fully diluted
equity of Holdings will be issued to each of Dan Phelan and Penni Alper and the
remaining 5% will be available for issuance to other employees (the “Holdings Option Plan”).


 


Capital Stock and Ownership


 


(a)                                  MR Processing Holding Corp.


 


Total
Number of Shares of Common Stock: 1,000,000 Shares


 


Total
Number of Shares of Preferred Stock: 1,000,000 Shares of which 900,000 shall be
Series A Convertible Preferred Stock


 


	
   

  	
   

  	
  Series A Convertible

  	
   

  	
  Series A Convertible

  	
   

  
	
  Stockholder

  	
   

  	
  Preferred Shares

  	
   

  	
  Preferred Value

  	
   

  
	
  RBS Equity Corporation

  	
   

  	
  30,000

  	
   

  	
  $

  	
  3,000,000

  	
   

  
	
  Great Hill Equity Partners II Limited

  	
   

  	
  200,253

  	
   

  	
  $

  	
  20,025,362

  	
   

  
	
  Partnership

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Great Hill Affiliate Partners II Limited

  	
   

  	
  7,629

  	
   

  	
  $

  	
  762,930

  	
   

  
	
  Partnership

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Great Hill Equity Partners III, LP

  	
   

  	
  361,858

  	
   

  	
  $

  	
  36,185,793

  	
   

  
	
  Great Hill Investors, LLC

  	
   

  	
  3,504

  	
   

  	
  $

  	
  350,406

  	
   

  
	
  Daniel D. Phelan

  	
   

  	
  35,689

  	
   

  	
  $

  	
  3,568,877

  	
   

  
	
  Penni A. Alper

  	
   

  	
  35,689

  	
   

  	
  $

  	
  3,568,877

  	
   

  
	
  John G. Aldridge, Jr.

  	
   

  	
  35,689

  	
   

  	
  $

  	
  3,568,877

  	
   

  
	
  Shell L. Rutledge

  	
   

  	
  35,689

  	
   

  	
  $

  	
  3,568,877

  	
   

  
	
   

  	
   

  	
  746,000

  	
   

  	
  $

  	
  74,600,000

  	
   

  



 


(b)                                 MR Default Services LLC


 


Total Number of Units: 1000 Common Units


 


	
  Unitholder

  	
   

  	
  Units

  	
   

  	
  % Ownership

  
	
  MR  Processing
  Holding Corp.

  	
   

  	
  1000 Common Units

  	
   

  	
  100

  



 


(c)                                  E-Default Services LLC 


 


Total Number of Units: 1000 Common Units


 


	
  Unitholder

  	
   

  	
  Units

  	
   

  	
  % Ownership

  
	
  MR Processing Holding Corp.

  	
   

  	
  1000 Common Units

  	
   

  	
  100

  



 

















 


(d)                                 Statewide Tax and Title Services LLC 


 


Total Number of Units: 1000
Common Units


 


	
  Unitholder

  	
   

  	
  Units

  	
   

  	
  % Ownership

  
	
  MR Processing Holding Corp.

  	
   

  	
  1000 Common Units

  	
   

  	
  100

  



 


(e)                                  Statewide Publishing Services LLC 


 


Total Number of Units: 1000
Common Units


 


	
  Unitholder

  	
   

  	
  Units

  	
   

  	
  % Ownership

  
	
  Statewide Tax and Title Services LLC

  	
   

  	
  1000 Common Units

  	
   

  	
  100

  



 

















 


Schedule 4.13: Real Estate Assets


 


Owned Property


 


None.


 


Leased Property


 


	
  Street
  Address

  	
   

  	
  Lessor

  	
   

  	
  Lessee

  	
   

  	
  Date of Lease

  	
   

  	
  Expiration

  of Lease

  
	
  1423
  Trae Land, Corporate

  Ridge Business Park, Douglas

  County, Georgia

  	
   

  	
  Corporate
  Ridge I Associates

  	
   

  	
  Statewide
  Tax and Title Services, LLC

  	
   

  	
  Lease
  Agreement is dated as of July 28, 2004

   

  Lease
  Expansion Agreement is dated as of March 2005

  	
   

  	
  February 29,
  2008

  
	
  1544
  Old Alabama Rd.,

  Roswell, Georgia

  	
   

  	
  Rubicon
  Investments LLC, as assignee

  	
   

  	
  MR
  Default Services LLC, E-Default Services LLC, Statewide Tax and Title
  Services LLC and Statewide Publishing Services LLC (pursuant to that certain  Assignment and
  Assumption of Lease Agreement dated as of February 24, 2006.

  	
   

  	
  February 24,
  2006

  	
   

  	
  September 30,
  2021

  
	
  900
  Holcombs Woods

  Parkway, Roswell, Georgia

   

  (Sublease)

  	
   

  	
  Sublessor:

   

  McCalla,
  Raymer,  Padrick, Cobb, Nichols &  Clark, LLC

  	
   

  	
  Sublessees:

   

  MR
  Default Services LLC, E-Default Services LLC, Statewide Tax and Title Services
  LLC, and Statewide Publishing Services LLC

  	
   

  	
  February 24,
  2006

  	
   

  	
  September 30,
  2021

  



 

















 


Schedule 4.16: Material Contracts


 


1.           The Services
Agreement.


 


2.           The Acquisition
Agreement.


 














 


Schedule 4.21: Fees


 


1.               Guardsman Capital Partners, LLC
will be paid $1,272,132.67 on February 24, 2006 in connection with Finders Fee
Agreement, dated as of March 10, 2005, between Great Hill Equity Partners II, L.P. and Guardsman
Capital Partners, LLC.


 


2.               Croft & Bender LLC
will be paid a broker’s fee of $750,000 on February 24, 2006 in connection the
transactions contemplated by the Related Agreements.


 

















 


Schedule 4.29: Agreements
with Managers


 


1.             Holdings Option Plan as described
on Schedule 4.02.


 

















 


Schedule 4.34: Unauthorized UCC Filings


 


Unauthorized UCC filings
listing MR Law as debtor:


 


	
  Filing
  No.

  	
   

  	
  Creditor

  	
   

  	
  Jurisdiction

  	
   

  	
  Date of Filing

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  060-2005-04805

  	
   

  	
  Diani Naja Ba al Mashiyah Bey-E1

  	
   

  	
  Georgia Superior
  Court, Fulton County

  	
   

  	
  Date Unavailable

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  060-2005-014955

  	
   

  	
  Diani Naja Ba al Mashiyah Bey-E1

  	
   

  	
  Georgia Superior
  Court, Fulton County

  	
   

  	
  Filed: 12/06/05

   

  File #:
  060200514955

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  060-2005-15294

  	
   

  	
  Diani Naja Ba al Mashiyah Bey-El

  	
   

  	
  Georgia Superior
  Court, Fulton County

  	
   

  	
  Amended: 12/14/05

   

  File #:
  060200515294

   

  Amended to add
  Marty M. Stone as Debtor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  060-2005-15358

  	
   

  	
  Diani Naja Ba al Mashiyah Bey-El

  	
   

  	
  Georgia Superior
  Court, Fulton County

  	
   

  	
  Amended:
  12/15/05

   

  File:
  060200515358

   

  Amended to add
  Denali Home Loans as Debtor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  File Number Unavailable

  	
   

  	
  Diani Naja Ba al Mashiyah Bey-El

  	
   

  	
  Georgia Superior
  Court, Fulton County

  	
   

  	
  1/5/06

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  060-2002-00578

  	
   

  	
  Renee Brown Sanders -EL

  	
   

  	
  Georgia Superior
  Court, Fulton County

  	
   

  	
  01/04/02

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  060-2002-00578

  	
   

  	
  Renee Sanders

  	
   

  	
  Georgia Superior
  Court, Fulton County

  	
   

  	
  01/04/02

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  060-2002-00578

  	
   

  	
  Renee Sanders

  	
   

  	
  Georgia Superior
  Court, Fulton County

  	
   

  	
  01/04/02

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  44-2003-0001019

  	
   

  	
  Georgiana Pettrolla
  Kidd

  	
   

  	
  Georgia Superior
  Court, De Kalb County

  	
   

  	
  03/07/03

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  44-2003-001817

  	
   

  	
  Georgiana Pettrolla
  Kidd

  	
   

  	
  Georgia Superior
  Court, De Kalb County

  	
   

  	
  04/22/03

  



 

















 


	
  Filing No.

  	
   

  	
  Creditor

  	
   

  	
  Jurisdiction

  	
   

  	
  Date of Filing

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  44-2003-001649

  	
   

  	
  Georgiana
  Pettrolla Kidd

  	
   

  	
  Georgia Superior Court, De Kalb County

  	
   

  	
  04/14/03

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  012-2004-0895

  	
   

  	
  Kimberly
  D. Stubbert

  	
   

  	
  State of Georgia

  	
   

  	
  Date Unavailable

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  012-2005-0097

  	
   

  	
  Kimberly
  D. Stubbert

  	
   

  	
  State of Georgia

  	
   

  	
  Date Unavailable

  



 


12

















 


Schedule 6.01: Certain Indebtedness


 


1.                                  Indebtedness
arising from American Express Charge Account (account #372720689471004) that
has been issued to Thomas Gillis for business purposes by STT. As of the
Closing Date, this indebtedness is $0.


 


2.                                  Lease Agreement
(as amended), dated as of December 1, 1999, by and between Rubicon Investments,
LLC, as successor to PAR Ventures, LLC, as landlord, and MR Default Services, LLC,
E-Default Services, LLC, Statewide Tax and Title Services, LLC, and Statewide
Publishing Services, LLC, as successors to McCalla, Raymer, Padrick, Cobb, Nichols
& Clark, LLC, as tenant, relating to that certain premises located at 1544
Old Alabama Road. This lease provides for a security interest in all the
personal property held at the premises.


 


3.                                  Sublease
Agreement, by and between McCalla, Raymer, Padrick, Cobb, Nichols &
Clark, LLC, as sublandlord, and MR Default Services, LLC, E-Default Services, LLC,
Statewide Tax and Title Services, LLC, and Statewide Publishing Services, LLC, as
subtenants, relating to that certain premises located at 900 Holcombs Woods
Parkway, Roswell, Georgia. This lease provides for a security interest in all
the personal property held at the premises.


 


4.                                  All liabilities
and obligations of STT under that certain Lease Agreement between Corporate
Ridge Associates and Statewide Records Management LLC dated as of July 28, 2004,
as amended.


 


5.                                  Hold Harmless
and Indemnity Agreement dated as of February 24, 2006 by and between Dan Phelan,
a resident of the State of Georgia, and Holdings.


 

















 


Schedule 6.02: Certain Liens


 


1.                                       Lease Agreement
(as amended), dated as of December 1, 1999, by and between Rubicon Investments,
LLC, as successor to PAR Ventures, LLC, as landlord, and MR Default Services, LLC,
E-Default Services, LLC, Statewide Tax and Title Services, LLC, and Statewide
Publishing Services, LLC, as successors to McCalla, Raymer, Padrick, Cobb, Nichols &
Clark, LLC, as tenant, relating to that certain premises located at 1544 Old
Alabama Road. This lease provides for a security interest in all the personal
property held at the premises.


 


2.                                       Sublease
Agreement, by and between McCalla, Raymer, Padrick, Cobb, Nichols &
Clark, LLC, as sublandlord, and MR Default Services, LLC, E-Default Services, LLC,
Statewide Tax and Title Services, LLC, and Statewide Publishing Services, LLC, as
subtenants, relating to that certain premises located at 900 Holcombs Woods
Parkway, Roswell, Georgia. This lease provides for a security interest in all
the personal property held at the premises.


 

















 


Schedule
6.07: Certain Investments


 


1.                                       Investments in
certain subsidiaries as described on Schedule 4.01.


 


2.                                       Promissory Note
dated August 19, 2005 issued by Brandy Green in favor of STT in the original
principal amount of $11,196.00.


 

















 


Schedule
6.12: Certain Affiliate Transactions


 


1.                                       Lease Guaranty
dated as of February 24, 2006, executed by Dan Phelan the Chief Executive
Officer of each of the Borrowers and Holdings, in favor of Corporate Ridge
Associates, LLC.


 


2.                                       Hold Harmless
and Indemnity Agreement dated as of February 24, 2006, by and between Dan
Phelan, a resident of the State of Georgia, and Holdings.