Exhibit 10.19 

 





	
  

 
	
 EXECUTION VERSION

 


CREDIT AGREEMENT


Dated as of
October 11, 2010


among


EXAMWORKS GROUP,
INC.,

as the Borrower,


THE DOMESTIC
SUBSIDIARIES OF THE BORROWER,

as the Guarantors,


BANK OF AMERICA,
N.A.,

as Administrative Agent, Swing Line Lender and L/C Issuer,


and


THE OTHER LENDERS
PARTY HERETO


BANC OF AMERICA
SECURITIES LLC,


GENERAL ELECTRIC
CAPITAL CORPORATION


and


FIFTH THIRD BANK,

as Joint Lead Arrangers and Joint Book Managers


	
  

 










TABLE OF CONTENTS


	
  

 	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE I DEFINITIONS AND
 ACCOUNTING TERMS

 	
  

 	
 1

 
	
 1.01

 	
  

 	
 Defined Terms

 	
  

 	
 1

 
	
 1.02

 	
  

 	
 Other Interpretive
 Provisions

 	
  

 	
 26

 
	
 1.03

 	
  

 	
 Accounting Terms

 	
  

 	
 27

 
	
 1.04

 	
  

 	
 Rounding

 	
  

 	
 27

 
	
 1.05

 	
  

 	
 Exchange Rates; Currency
 Equivalents

 	
  

 	
 27

 
	
 1.06

 	
  

 	
 Additional Alternative
 Currencies

 	
  

 	
 28

 
	
 1.07

 	
  

 	
 Change of Currency

 	
  

 	
 29

 
	
 1.08

 	
  

 	
 Times of Day

 	
  

 	
 29

 
	
 1.09

 	
  

 	
 Letter of Credit Amounts

 	
  

 	
 29

 
	
 ARTICLE II THE COMMITMENTS
 AND CREDIT EXTENSIONS

 	
  

 	
 29

 
	
 2.01

 	
  

 	
 Commitments

 	
  

 	
 29

 
	
 2.02

 	
  

 	
 Borrowings, Conversions
 and Continuations of Loans

 	
  

 	
 30

 
	
 2.03

 	
  

 	
 Letters of Credit

 	
  

 	
 32

 
	
 2.04

 	
  

 	
 Swing Line Loans

 	
  

 	
 40

 
	
 2.05

 	
  

 	
 Prepayments

 	
  

 	
 42

 
	
 2.06

 	
  

 	
 Termination or Reduction
 of Aggregate Revolving Commitments

 	
  

 	
 44

 
	
 2.07

 	
  

 	
 Repayment of Loans

 	
  

 	
 44

 
	
 2.08

 	
  

 	
 Interest

 	
  

 	
 44

 
	
 2.09

 	
  

 	
 Fees

 	
  

 	
 45

 
	
 2.10

 	
  

 	
 Computation of Interest
 and Fees; Retroactive Adjustments of Applicable Rate

 	
  

 	
 46

 
	
 2.11

 	
  

 	
 Evidence of Debt

 	
  

 	
 46

 
	
 2.12

 	
  

 	
 Payments Generally;
 Administrative Agent’s Clawback

 	
  

 	
 47

 
	
 2.13

 	
  

 	
 Sharing of Payments by
 Lenders

 	
  

 	
 49

 
	
 2.14

 	
  

 	
 Cash Collateral

 	
  

 	
 49

 
	
 2.15

 	
  

 	
 Defaulting Lenders

 	
  

 	
 50

 
	
 ARTICLE III TAXES, YIELD
 PROTECTION AND ILLEGALITY

 	
  

 	
 52

 
	
 3.01

 	
  

 	
 Taxes

 	
  

 	
 52

 
	
 3.02

 	
  

 	
 Illegality

 	
  

 	
 55

 
	
 3.03

 	
  

 	
 Inability to Determine
 Rates

 	
  

 	
 55

 
	
 3.04

 	
  

 	
 Increased Costs

 	
  

 	
 56

 
	
 3.05

 	
  

 	
 Compensation for Losses

 	
  

 	
 57

 
	
 3.06

 	
  

 	
 Mitigation Obligations;
 Replacement of Lenders

 	
  

 	
 58

 
	
 3.07

 	
  

 	
 Survival

 	
  

 	
 59

 
	
 ARTICLE IV GUARANTY

 	
  

 	
 59

 
	
 4.01

 	
  

 	
 The Guaranty

 	
  

 	
 59

 
	
 4.02

 	
  

 	
 Obligations Unconditional

 	
  

 	
 59

 
	
 4.03

 	
  

 	
 Reinstatement

 	
  

 	
 60

 
	
 4.04

 	
  

 	
 Certain Additional Waivers

 	
  

 	
 60

 
	
 4.05

 	
  

 	
 Remedies

 	
  

 	
 61

 
	
 4.06

 	
  

 	
 Rights of Contribution

 	
  

 	
 61

 
	
 4.07

 	
  

 	
 Guarantee of Payment;
 Continuing Guarantee

 	
  

 	
 61

 
	
 ARTICLE V CONDITIONS
 PRECEDENT TO CREDIT EXTENSIONS

 	
  

 	
 61

 
	
 5.01

 	
  

 	
 Closing Conditions

 	
  

 	
 61

 
	
 5.02

 	
  

 	
 Conditions to Initial
 Credit Extension

 	
  

 	
 62

 
	
 5.03

 	
  

 	
 Conditions to all Credit
 Extensions

 	
  

 	
 64

 
	
 ARTICLE VI REPRESENTATIONS
 AND WARRANTIES

 	
  

 	
 65

 


i









	
  

 	
  

 	
  

 	
  

 	
  

 
	
 6.01

 	
  

 	
 Existence, Qualification
 and Power

 	
  

 	
 65

 
	
 6.02

 	
  

 	
 Authorization; No
 Contravention

 	
  

 	
 65

 
	
 6.03

 	
  

 	
 Governmental
 Authorization; Other Consents

 	
  

 	
 65

 
	
 6.04

 	
  

 	
 Binding Effect

 	
  

 	
 66

 
	
 6.05

 	
  

 	
 Financial Statements; No
 Material Adverse Effect

 	
  

 	
 66

 
	
 6.06

 	
  

 	
 Litigation

 	
  

 	
 66

 
	
 6.07

 	
  

 	
 No Default

 	
  

 	
 67

 
	
 6.08

 	
  

 	
 Ownership of Property;
 Liens

 	
  

 	
 67

 
	
 6.09

 	
  

 	
 Environmental Compliance

 	
  

 	
 67

 
	
 6.10

 	
  

 	
 Insurance

 	
  

 	
 68

 
	
 6.11

 	
  

 	
 Taxes

 	
  

 	
 68

 
	
 6.12

 	
  

 	
 ERISA Compliance

 	
  

 	
 68

 
	
 6.13

 	
  

 	
 Subsidiaries

 	
  

 	
 69

 
	
 6.14

 	
  

 	
 Margin Regulations;
 Investment Company Act

 	
  

 	
 69

 
	
 6.15

 	
  

 	
 Disclosure

 	
  

 	
 69

 
	
 6.16

 	
  

 	
 Compliance with Laws

 	
  

 	
 69

 
	
 6.17

 	
  

 	
 Intellectual Property;
 Licenses, Etc.

 	
  

 	
 70

 
	
 6.18

 	
  

 	
 Solvency

 	
  

 	
 70

 
	
 6.19

 	
  

 	
 Perfection of Security
 Interests in the Collateral

 	
  

 	
 70

 
	
 6.20

 	
  

 	
 Business Locations

 	
  

 	
 70

 
	
 6.21

 	
  

 	
 Labor Matters

 	
  

 	
 70

 
	
 ARTICLE VII AFFIRMATIVE
 COVENANTS

 	
  

 	
 71

 
	
 7.01

 	
  

 	
 Financial Statements

 	
  

 	
 71

 
	
 7.02

 	
  

 	
 Certificates; Other
 Information

 	
  

 	
 71

 
	
 7.03

 	
  

 	
 Notices

 	
  

 	
 73

 
	
 7.04

 	
  

 	
 Payment of Obligations

 	
  

 	
 74

 
	
 7.05

 	
  

 	
 Preservation of Existence,
 Etc.

 	
  

 	
 74

 
	
 7.06

 	
  

 	
 Maintenance of Properties

 	
  

 	
 74

 
	
 7.07

 	
  

 	
 Maintenance of Insurance

 	
  

 	
 74

 
	
 7.08

 	
  

 	
 Compliance with Laws

 	
  

 	
 75

 
	
 7.09

 	
  

 	
 Books and Records

 	
  

 	
 75

 
	
 7.10

 	
  

 	
 Inspection Rights

 	
  

 	
 75

 
	
 7.11

 	
  

 	
 Use of Proceeds

 	
  

 	
 75

 
	
 7.12

 	
  

 	
 Additional Subsidiaries

 	
  

 	
 76

 
	
 7.13

 	
  

 	
 ERISA Compliance

 	
  

 	
 76

 
	
 7.14

 	
  

 	
 Pledged Assets

 	
  

 	
 76

 
	
 ARTICLE VIII NEGATIVE
 COVENANTS

 	
  

 	
 77

 
	
 8.01

 	
  

 	
 Liens

 	
  

 	
 77

 
	
 8.02

 	
  

 	
 Investments

 	
  

 	
 78

 
	
 8.03

 	
  

 	
 Indebtedness

 	
  

 	
 79

 
	
 8.04

 	
  

 	
 Fundamental Changes

 	
  

 	
 80

 
	
 8.05

 	
  

 	
 Dispositions

 	
  

 	
 80

 
	
 8.06

 	
  

 	
 Restricted Payments

 	
  

 	
 80

 
	
 8.07

 	
  

 	
 Change in Nature of
 Business

 	
  

 	
 81

 
	
 8.08

 	
  

 	
 Transactions with
 Affiliates and Insiders

 	
  

 	
 81

 
	
 8.09

 	
  

 	
 Burdensome Agreements

 	
  

 	
 81

 
	
 8.10

 	
  

 	
 Use of Proceeds

 	
  

 	
 82

 
	
 8.11

 	
  

 	
 Financial Covenants

 	
  

 	
 82

 
	
 8.12

 	
  

 	
 Prepayment of Other
 Indebtedness, Etc.

 	
  

 	
 82

 
	
 8.13

 	
  

 	
 Organization Documents;
 Fiscal Year; Legal Name, State of Formation and Form of Entity, Etc.

 	
  

 	
 82

 


ii









	
  

 	
  

 	
  

 	
  

 	
  

 
	
 8.14

 	
  

 	
 Ownership of Subsidiaries

 	
  

 	
 82

 
	
 8.15

 	
  

 	
 Sale Leasebacks

 	
  

 	
 83

 
	
 8.16

 	
  

 	
 Limitations on the
 Borrower

 	
  

 	
 83

 
	
 ARTICLE IX EVENTS OF
 DEFAULT AND REMEDIES

 	
  

 	
 83

 
	
 9.01

 	
  

 	
 Events of Default

 	
  

 	
 83

 
	
 9.02

 	
  

 	
 Remedies Upon Event of
 Default

 	
  

 	
 85

 
	
 9.03

 	
  

 	
 Application of Funds

 	
  

 	
 86

 
	
 ARTICLE X ADMINISTRATIVE
 AGENT

 	
  

 	
 87

 
	
 10.01

 	
  

 	
 Appointment and Authority

 	
  

 	
 87

 
	
 10.02

 	
  

 	
 Rights as a Lender

 	
  

 	
 87

 
	
 10.03

 	
  

 	
 Exculpatory Provisions

 	
  

 	
 87

 
	
 10.04

 	
  

 	
 Reliance by
 Administrative Agent

 	
  

 	
 88

 
	
 10.05

 	
  

 	
 Delegation of Duties

 	
  

 	
 88

 
	
 10.06

 	
  

 	
 Resignation of
 Administrative Agent

 	
  

 	
 89

 
	
 10.07

 	
  

 	
 Non-Reliance on Administrative
 Agent and Other Lenders

 	
  

 	
 89

 
	
 10.08

 	
  

 	
 No Other Duties; Etc.

 	
  

 	
 90

 
	
 10.09

 	
  

 	
 Administrative Agent May
 File Proofs of Claim

 	
  

 	
 90

 
	
 10.10

 	
  

 	
 Collateral and Guaranty
 Matters

 	
  

 	
 90

 
	
 ARTICLE
 XI MISCELLANEOUS

 	
  

 	
 91

 
	
 11.01

 	
  

 	
 Amendments,
 Etc.

 	
  

 	
 91

 
	
 11.02

 	
  

 	
 Notices and Other
 Communications; Facsimile Copies

 	
  

 	
 93

 
	
 11.03

 	
  

 	
 No Waiver; Cumulative
 Remedies; Enforcement

 	
  

 	
 95

 
	
 11.04

 	
  

 	
 Expenses; Indemnity; and
 Damage Waiver

 	
  

 	
 95

 
	
 11.05

 	
  

 	
 Payments Set Aside

 	
  

 	
 97

 
	
 11.06

 	
  

 	
 Successors and Assigns

 	
  

 	
 97

 
	
 11.07

 	
  

 	
 Treatment of Certain
 Information; Confidentiality

 	
  

 	
 101

 
	
 11.08

 	
  

 	
 Set-off

 	
  

 	
 102

 
	
 11.09

 	
  

 	
 Interest Rate Limitation

 	
  

 	
 102

 
	
 11.10

 	
  

 	
 Counterparts;
 Integration; Effectiveness

 	
  

 	
 102

 
	
 11.11

 	
  

 	
 Survival of
 Representations and Warranties

 	
  

 	
 103

 
	
 11.12

 	
  

 	
 Severability

 	
  

 	
 103

 
	
 11.13

 	
  

 	
 Replacement of Lenders

 	
  

 	
 103

 
	
 11.14

 	
  

 	
 Governing Law;
 Jurisdiction; Etc.

 	
  

 	
 104

 
	
 11.15

 	
  

 	
 Waiver of Right to Trial
 by Jury

 	
  

 	
 105

 
	
 11.16

 	
  

 	
 Electronic Execution of
 Assignments and Certain Other Documents

 	
  

 	
 105

 
	
 11.17

 	
  

 	
 USA PATRIOT Act

 	
  

 	
 105

 
	
 11.18

 	
  

 	
 No Advisory or Fiduciary
 Relationship

 	
  

 	
 106

 
	
 11.19

 	
  

 	
 Judgment Currency

 	
  

 	
 106

 
	
 11.20

 	
  

 	
 Qualifying IPO

 	
  

 	
 107

 


iii









	
  

 	
  

 	
  

 
	
 SCHEDULES

 
	
  

 	
  

 	
  

 
	
  

 	
 1.01(a)

 	
 Existing Letters of Credit

 
	
  

 	
 1.01(b)

 	
 Mandatory Cost Formulae

 
	
  

 	
 2.01

 	
 Commitments and Applicable Percentages

 
	
  

 	
 6.10

 	
 Insurance

 
	
  

 	
 6.13

 	
 Subsidiaries

 
	
  

 	
 6.17

 	
 IP Rights

 
	
  

 	
 6.20(a)

 	
 Locations of Real Property

 
	
  

 	
 6.20(b)

 	
 Taxpayer and Organizational Identification Numbers

 
	
  

 	
 6.20(c)

 	
 Changes in Legal Name, State of Formation and
 Structure

 
	
  

 	
 8.01

 	
 Liens Existing on the Funding Date

 
	
  

 	
 8.02

 	
 Investments Existing on the Funding Date

 
	
  

 	
 8.03

 	
 Indebtedness Existing on the Funding Date

 
	
  

 	
 11.02

 	
 Certain Addresses for Notices

 
	
  

 	
  

 	
  

 
	
 EXHIBITS

 
	
  

 	
  

 	
  

 
	
  

 	
 A

 	
 Form of Loan Notice

 
	
  

 	
 B

 	
 Form of Swing Line Loan Notice

 
	
  

 	
 C

 	
 Form of Revolving Note

 
	
  

 	
 D

 	
 Form of Swing Line Note

 
	
  

 	
 E

 	
 Form of Compliance Certificate

 
	
  

 	
 F

 	
 Form of Joinder Agreement

 
	
  

 	
 G

 	
 Form of Assignment and Assumption

 


iv






CREDIT AGREEMENT


          This
CREDIT AGREEMENT is entered into as of October 11, 2010 among EXAMWORKS GROUP,
INC., a Delaware corporation (the “Borrower”), the Guarantors (defined
herein), the Lenders (defined herein) and BANK OF AMERICA, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer.


          The
Borrower has requested that the Lenders provide a credit facility for the
purposes set forth herein, and the Lenders are willing to do so on the terms
and conditions set forth herein.


          In
consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:


ARTICLE I


DEFINITIONS AND
ACCOUNTING TERMS


	
  

 	
  

 
	
 1.01

 	
 Defined Terms.

 



          As
used in this Agreement, the following terms shall have the meanings set forth
below:


          “Acquisition”,
by any Person, means the acquisition by such Person, in a single transaction or
in a series of related transactions, of all or any substantial portion of the
property of another Person or at least a majority of the Voting Stock of
another Person, in each case whether or not involving a merger or consolidation
with such other Person and whether for cash, property, services, assumption of
Indebtedness, securities or otherwise.


          “Administrative
Agent” means Bank of America in its capacity as administrative agent under
any of the Loan Documents, or any successor administrative agent.


          “Administrative
Agent Fee Letter” means the letter agreement, dated September 17, 2010
among the Borrower, Bank of America and BAS.


          “Administrative
Agent’s Office” means, with respect to any currency, the Administrative
Agent’s address and, as appropriate, account as set forth on Schedule 11.02
with respect to such currency or such other address or account with respect to
such currency as the Administrative Agent may from time to time notify the
Borrower and the Lenders.


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


          “Affiliate”
means, with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.


          “Aggregate
Revolving Commitments” means the Revolving Commitments of all the Lenders.
The aggregate principal amount of the Aggregate Revolving Commitments in effect
on the Closing Date is ONE HUNDRED EIGHTY MILLION DOLLARS ($180,000,000).


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





          “Alternative
Currency” means each of Sterling, Canadian Dollars, Euro and each other
currency (other than Dollars) that is approved in accordance with Section 1.06.


          “Alternative
Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable
Alternative Currency as determined by the Administrative Agent or the L/C
Issuer, as the case may be, at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase of
such Alternative Currency with Dollars.


          “Alternative
Currency Sublimit” means an amount equal to the lesser of (i) the Aggregate
Revolving Commitments and (ii) $30,000,000. The Alternative Currency Sublimit
is part of, and not in addition to, the Aggregate Revolving Commitments.


          “Applicable
Percentage” means with respect to any Lender at any time, the percentage of
the Aggregate Revolving Commitments represented by such Lender’s Revolving
Commitment at such time, subject to adjustment as provided in Section 2.15;
provided that if the commitment of each Lender to make Revolving Loans
and the obligation of the L/C Issuer to make L/C Credit Extensions have been
terminated pursuant to Section 9.02 or if the Aggregate Revolving
Commitments have expired, then the Applicable Percentage of each Lender shall
be determined based on the Applicable Percentage of such Lender most recently
in effect, giving effect to any subsequent assignments. The initial Applicable
Percentage of each Lender is set forth opposite the name of such Lender on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.


          “Applicable
Rate” means with respect to Revolving Loans, Swing Line Loans, Letters of
Credit and the Commitment Fee, the following percentages per annum, based upon
the Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 7.02(a):


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Pricing
 Tier

 	
  

 	
  

 	
 Consolidated

 Leverage Ratio

 	
  

 	
  

 	
 Commitment

 Fee

 	
  

 	
  

 	
 Letter
 of Credit

 Fee

 	
  

 	
  

 	
 Eurocurrency

 Rate Loans

 	
  

 	
  

 	
 Base
 Rate

 Loans

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 1

 	
  

 	
  

 	
 >
 2.50 to 1.0

 	
  

 	
  

 	
   0.50%

 	
  

 	
  

 	
 3.75%

 	
  

 	
  

 	
 3.75%

 	
  

 	
  

 	
 2.75%

 
	
 2

 	
  

 	
  

 	
 < 2.50 to 1.0

 but > 1.75 to 1.0

 	
  

 	
  

 	
 0.625%

 	
  

 	
  

 	
 3.50%

 	
  

 	
  

 	
 3.50%

 	
  

 	
  

 	
 2.50%

 
	
 3

 	
  

 	
  

 	
 < 1.75 to 1.0
but >
 1.0 to 1.0

 	
  

 	
  

 	
 0.625%

 	
  

 	
  

 	
 3.25%

 	
  

 	
  

 	
 3.25%

 	
  

 	
  

 	
 2.25%

 
	
 4

 	
  

 	
  

 	
 < 1.0 to 1.0

 	
  

 	
  

 	
 0.75%

 	
  

 	
  

 	
 3.00%

 	
  

 	
  

 	
 3.00%

 	
  

 	
  

 	
 2.00%

 


Any increase or decrease
in the Applicable Rate resulting from a change in the Consolidated Leverage
Ratio shall become effective as of the first Business Day immediately following
the date a Compliance Certificate is delivered pursuant to Section 7.02(a);
provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then, upon the request of
the Required Lenders, Pricing Tier 1 shall apply as of the first Business Day
after the date on which such Compliance Certificate was required to have been
delivered and shall continue to apply until the first Business Day immediately
following the date a Compliance Certificate is delivered in accordance with Section
7.02(a), whereupon the Applicable Rate shall be adjusted based upon the
calculation of the Consolidated Leverage Ratio contained in such Compliance
Certificate. The Applicable Rate in effect from the Funding Date to the first
Business Day immediately following the date a Compliance Certificate is delivered
pursuant to Section 7.02(a) for the fiscal quarter ending December 31,
2010 shall be determined based upon Pricing Tier 3. Notwithstanding anything to
the contrary contained in this definition, the determination of the Applicable
Rate for any period shall be subject to the provisions of Section 2.10(b).


2





          “Applicable
Time” means, with respect to any borrowings and payments in any Alternative
Currency, the local time in the place of settlement for such Alternative
Currency as may be determined by the Administrative Agent or the L/C Issuer, as
the case may be, to be necessary for timely settlement on the relevant date in
accordance with normal banking procedures in the place of payment.


          “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.


          “Assignee
Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.


          “Assignment
and Assumption” means an assignment and assumption entered into by a Lender
and an Eligible Assignee (with the consent of any party whose consent is
required by Section 11.06(b)), and accepted by the Administrative Agent,
in substantially the form of Exhibit G or any other form approved by the
Administrative Agent.


          “Attributable
Indebtedness” means, on any date, (a) in respect of any Capital Lease of
any Person, the capitalized amount thereof that would appear as indebtedness on
a balance sheet of such Person prepared as of such date in accordance with
GAAP, (b) in respect of any Synthetic Lease, the capitalized amount of the
remaining lease payments under the relevant lease that would appear as
indebtedness on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a Capital Lease and
(c) in respect of any Securitization Transaction of any Person, the outstanding
principal amount of such financing, after taking into account reserve accounts
and making appropriate adjustments, determined by the Administrative Agent in
its reasonable judgment.


          “Audited
Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the two fiscal quarter period ended June 30,
2010, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such two fiscal quarter period of the
Borrower and its Subsidiaries, including the notes thereto, audited by
independent public accountants of recognized national standing and prepared in
conformity with GAAP.


          “Availability
Period” means, with respect to the Revolving Commitments, the period from
and including the Funding Date to the earliest of (a) the Maturity Date, (b)
the date of termination of all of the Aggregate Revolving Commitments pursuant
to Section 2.06, and (c) the date of termination of the commitment of
each Lender to make Loans and of the obligation of the L/C Issuer to make L/C
Credit Extensions pursuant to Section 9.02.


          “Bank
of America” means Bank of America, N.A. and its successors.


          “BAS”
means Banc of America Securities LLC, in its capacity as joint lead arranger
and joint book manager.


          “Base
Rate” means for any day a fluctuating rate per annum equal to the highest
of (a) the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect
for such day as publicly announced from time to time by Bank of America as its
“prime rate” and (c) the Eurocurrency Rate plus 1.00%. The “prime rate”
is a rate set by Bank of America based upon various factors including Bank of
America’s costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be priced
at, above, or below such announced rate. Any change in the “prime rate”
announced by Bank of America shall take effect at the opening of business on
the day specified in the public announcement of such change.


3





          “Base
Rate Loan” means a Loan that bears
interest based on the Base Rate. All Base Rate Loans shall be
denominated in Dollars.


          “Borrower”
has the meaning specified in the introductory paragraph hereto.


          “Borrower
Materials” has the meaning specified in Section 7.02.


          “Borrowing”
means each of the following: (a) a borrowing of Swing Line Loans pursuant to Section
2.04 and (b) a borrowing consisting of simultaneous Loans of the same Type,
in the same currency, and, in the case of Eurocurrency Rate Loans, having the
same Interest Period made by each of the Lenders pursuant to Section 2.01.


          “Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent’s Office with respect to
Obligations denominated in Dollars is located and:


	
  

 	
  

 
	
  

 	
           (a)          if
 such day relates to any interest rate settings as to a Eurocurrency Rate Loan
 denominated in Dollars, any funding, disbursements, settlements and payments
 in Dollars in respect of any such Eurocurrency Rate Loan, or any other
 dealings in Dollars to be carried out pursuant to this Agreement in respect
 of any such Eurocurrency Rate Loan, means any such day that is also a London
 Banking Day;

 
	
  

 	
  

 
	
  

 	
           (b)          if
 such day relates to any interest rate settings as to a Eurocurrency Rate Loan
 denominated in Euro, any fundings, disbursements, settlements and payments in
 Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in
 Euro to be carried out pursuant to this Agreement in respect of any such
 Eurocurrency Rate Loan, means a TARGET Day;

 
	
  

 	
  

 
	
  

 	
           (c)          if
 such day relates to any interest rate settings as to a Eurocurrency Rate Loan
 denominated in a currency other than Dollars or Euro, means any such day on
 which dealings in deposits in the relevant currency are conducted by and between
 banks in the London or other applicable offshore interbank market for such
 currency; and

 
	
  

 	
  

 
	
  

 	
           (d)          if
 such day relates to any fundings, disbursements, settlements and payments in
 a currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan
 denominated in a currency other than Dollars or Euro, or any other dealings
 in any currency other than Dollars or Euro to be carried out pursuant to this
 Agreement in respect of any such Eurocurrency Rate Loan (other than any
 interest rate settings), means any such day on which banks are open for
 foreign exchange business in the principal financial center of the country of
 such currency.

 


          “Businesses”
means, at any time, a collective reference to the businesses operated by the
Borrower and its Subsidiaries at such time.


          “Canadian
Dollars” mean the lawful currency of Canada.


          “Capital
Lease” means, as applied to any Person,
any lease of any property by that Person as lessee which, in accordance with
GAAP, is required to be accounted for as a capital lease on the balance sheet
of that Person.


4





          “Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, L/C Issuer
or Swing Line Lender (as applicable) and the Lenders, as collateral for L/C
Obligations, Obligations in respect of Swing Line Loans or obligations of
Lenders to fund participations in respect of either thereof (as the context may
require), cash or deposit account balances or, if the L/C Issuer or Swing Line
Lender benefitting from such collateral shall agree in its sole discretion,
other credit support, in each case pursuant to documentation in form and
substance satisfactory to (a) the Administrative Agent and (b) the L/C Issuer or
the Swing Line Lender (as applicable). “Cash Collateral” shall have a
meaning correlative to the foregoing and shall include the proceeds of such
cash collateral and other credit support.


          “Cash
Equivalents” means, as at any date, (a) securities issued or directly and fully guaranteed or insured by
the United States or any agency or instrumentality thereof (provided that the
full faith and credit of the United States is pledged in support thereof)
having maturities of not more than twelve (12) months from the date of
acquisition, (b) Dollar denominated time deposits and certificates of deposit
of (i) any Lender, (ii) any domestic commercial bank of recognized standing
having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof
or from Moody’s is at least P-1 or the equivalent thereof (any such bank being
an “Approved Bank”), in each case with maturities of not more than 270
days from the date of acquisition, (c) commercial paper and variable or fixed
rate notes issued by any Approved Bank (or by the parent company thereof) or
any variable rate notes issued by, or guaranteed by, any domestic corporation
rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the
equivalent thereof) or better by Moody’s and maturing within six (6) months of
the date of acquisition, (d) repurchase agreements entered into by any Person
with a bank or trust company (including any of the Lenders) or recognized securities
dealer having capital and surplus in excess of $500,000,000 for direct
obligations issued by or fully guaranteed by the United States in which such
Person shall have a perfected first priority security interest (subject to no
other Liens) and having, on the date of purchase thereof, a fair market value
of at least one hundred percent (100%) of the amount of the repurchase
obligations and (e) Investments, classified in accordance with GAAP as current
assets, in money market investment programs registered under the Investment
Company Act of 1940 which are administered by reputable financial institutions
having capital of at least $500,000,000 and the portfolios of which are limited
to Investments of the character described in the foregoing subdivisions (a)
through (d).


          “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 the occurrence of any of the following events:


	
  

 	
  

 
	
  

 	
           (a)          prior
 to the Qualifying IPO, the failure of the Control Group to maintain
 beneficial ownership of at least a majority of the Equity Interests of the
 Borrower entitled to vote for the members of the board of directors or
 equivalent governing body of the Borrower on a fully diluted basis;

 
	
  

 	
  

 
	
  

 	
           (b)          after
 the Qualifying IPO, any “person” or “group” (as such terms are used in
 Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
 excluding the Control Group and any employee benefit plan of such person or
 its subsidiaries, and any person or entity acting in its capacity as trustee,
 agent or other fiduciary or administrator of any such plan) becomes the
 “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities
 Exchange Act of 1934, except that a person or group shall be deemed to have
 “beneficial ownership” of all securities that such person or group has the
 right to acquire (such right, an “option right”), whether such right
 is exercisable immediately or only after the passage of time), directly or
 indirectly, of 35% or more of the Equity Interests of the Borrower entitled
 to vote for members of the board of directors or equivalent governing body of
 the Borrower on a fully diluted basis (and taking into account all such
 securities that such person or group has the right to acquire pursuant to any
 option right); or

 


5









	
  

 	
  

 
	
  

 	
           (c)          during
 any period of twenty-four (24) consecutive months, a majority of the members
 of the board of directors or other equivalent governing body of the Borrower
 cease to be composed of individuals (i) who were members of that board or
 equivalent governing body on the first day of such period, (ii) whose
 election, appointment or nomination to that board or equivalent governing
 body was approved by individuals referred to in clause (i) above constituting
 at the time of such election, appointment or nomination at least a majority
 of that board or equivalent governing body or (iii) whose election,
 appointment or nomination to that board or other equivalent governing body
 was approved by individuals referred to in clauses (i) and (ii) above
 constituting at the time of such election, appointment or nomination at least
 a majority of that board or equivalent governing body (excluding, in the case
 of both clause (ii) and clause (iii), any individual whose initial
 appointment or nomination for, or assumption of office as, a member of that
 board or equivalent governing body occurs as a result of an actual or
 threatened solicitation of proxies or consents for the election or removal of
 one or more directors by any person or group other than a solicitation for
 the election of one or more directors by or on behalf of the board of
 directors).

 


          “Closing
Date” means the date hereof.


          “Collateral”
means a collective reference to all real and personal property with respect to
which Liens in favor of the Administrative Agent,
for the benefit of the holders of the Obligations, are purported to be granted
pursuant to and in accordance with the terms of the Collateral Documents.


          “Collateral
Documents” means a collective reference to the Security Agreement, the
Mortgages and other security documents as may be executed and delivered by the
Loan Parties pursuant to the terms of Section 7.14.


          “Commitment
Fee” has the meaning specified in Section 2.09(a).


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


          “Consolidated
Capital Expenditures” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis,
all capital expenditures, as determined in accordance with GAAP; provided, however, that Consolidated
Capital Expenditures shall not include (a)
expenditures made with proceeds of any Involuntary Disposition to the extent
such expenditures are used to purchase property that is the same as or similar
to the property subject to such Involuntary Disposition or (b) Permitted
Acquisitions.


          “Consolidated
Cash Taxes” means, for
any period, for the Borrower and its Subsidiaries on a consolidated basis, the aggregate of all taxes, as determined in accordance
with GAAP, to the extent the same are paid
in cash during such period.


6





          “Consolidated
EBITDA” means, for any period, for the Borrower and its Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such period plus
the following to the extent deducted in calculating such Consolidated Net
Income: (a) Consolidated Interest Charges for such period, (b) net income tax
expense (or net expense for franchise taxes in lieu of income taxes) of the
Borrower and its Subsidiaries for such period, (c) depreciation and
amortization expense for such period, (d) any extraordinary loss during such
period approved by the Administrative Agent, (e) reasonable costs and expenses
incurred in connection with Permitted Acquisitions during such period to the
extent such costs and expenses are not capitalized (it being agreed that if
capitalized, same are covered by clause (c) above), (f) non-cash stock based
compensation expense for such period, (g) costs and expenses attributable to
the closing of this Agreement to the extent such costs and expenses are not
capitalized (it being agreed that if capitalized, same are covered by clause
(c) above), (h) any costs related to the Qualifying IPO that cannot be
capitalized and (i) any other non-recurring costs for such period identified in
detail in advance in a writing by the Borrower and acceptable to the Required
Lenders minus (i) any extraordinary gain during such period, all as
determined in accordance with GAAP.


          “Consolidated
Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for
the period of the four (4) fiscal quarters most recently ended to (b) Consolidated Fixed Charges for the
period of the four (4) fiscal quarters most recently ended.


          “Consolidated
Fixed Charges” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, an amount equal to the sum of (i) Consolidated Cash Taxes for such period plus (ii) the cash
portion of Consolidated Interest Charges for such period plus (iii)
Consolidated Capital Expenditures for such period plus (iv) Consolidated
Scheduled Funded Debt Payments for such period plus (v) the amount of
cash dividends and other distributions made by the Borrower during such period,
all as determined in accordance with GAAP.


          “Consolidated
Funded Indebtedness” means Funded Indebtedness of the Borrower and its
Subsidiaries on a consolidated basis determined in accordance with GAAP.


          “Consolidated
Interest Charges” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, an amount equal to the sum of (i) all interest,
premium payments, debt discount, fees, charges and related expenses in
connection with borrowed money (including capitalized interest) or in
connection with the deferred purchase price of assets, in each case to the
extent treated as interest in accordance with GAAP but excluding, to the extent
otherwise included as an interest expense, transaction costs related to the
closing of this Agreement, including up-front fees and expenses, plus
(ii) the portion of rent expense with respect to such period under Capital
Leases that is treated as interest in accordance with GAAP plus (iii)
the implied interest component of Synthetic Leases with respect to such period.


          “Consolidated
Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for
the period of the four (4) fiscal quarters most recently ended.


          “Consolidated
Net Income” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, the net income of the Borrower and its Subsidiaries for
that period, as determined in accordance with GAAP.


          “Consolidated
Scheduled Funded Debt Payments” means for any period for the
Borrower and its Subsidiaries on a
consolidated basis, the sum of all scheduled payments of principal on
Consolidated Funded Indebtedness, as determined in accordance with GAAP. For
purposes of this definition, “scheduled payments of principal” (a) shall be determined without giving effect to any reduction
of such scheduled payments resulting
from the application of any voluntary or mandatory prepayments made during the applicable period,
(b) shall be deemed to include the
Attributable Indebtedness in respect of Capital Leases, Securitization
Transactions and Synthetic Leases and (c) shall not include any voluntary
prepayments or mandatory prepayments required pursuant to Section 2.05.


7





          “Consolidated
Senior Leverage Ratio” means, as of any date of determination, the ratio of
(a) the sum of (i) Consolidated Funded Indebtedness as of such date less (ii)
the Seller Subordinated Indebtedness as of such date less (iii) the Other
Subordinated Indebtedness as of such date to (b) Consolidated EBITDA for
the period of the four (4) fiscal quarters most recently ended.


          “Contractual
Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its property is bound.


          “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. Without limiting the
generality of the foregoing, a Person shall be deemed to be Controlled by
another Person if such other Person possesses, directly or indirectly, power to
vote ten percent (10%) or more of the securities having ordinary voting power
for the election of directors, managing general partners or the equivalent.


          “Control
Group” means the shareholders of the Borrower as of the Closing Date as
governed by the Stockholders Agreement.


          “Credit
Extension” means each of the following: (a) a Borrowing and (b) an L/C
Credit Extension.


          “Debt
Issuance” means the issuance by any Loan Party or any Subsidiary of any
Indebtedness other than Indebtedness permitted under Section 8.03.


          “Debtor
Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.


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


          “Default
Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per
annum; provided, however, that with respect to a Eurocurrency
Rate Loan, the Default Rate shall be an interest rate equal to the interest
rate (including any Applicable Rate and any Mandatory Cost) otherwise
applicable to such Loan plus 2% per annum, in each case to the fullest
extent permitted by applicable Laws and (b) when used with respect to Letter of
Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.


          “Defaulting
Lender” means, subject to Section 2.15(b), any Lender, as reasonably
determined by the Administrative Agent, that (a) has failed to perform any of
its funding obligations hereunder, including in respect of its Loans or
participations in respect of Letters of Credit or Swing Line Loans, within five
(5) Business Days of the date required to be funded by it hereunder, (b) has
notified the Borrower or the Administrative Agent that it does not intend to
comply with its funding obligations or has made a public statement to that
effect with respect to its funding obligations hereunder or under other
agreements in which it commits to extend credit, (c) has failed, within five
(5) Business Days after request by the Administrative Agent, to confirm in a
manner satisfactory to the Administrative Agent that it will comply with its
funding obligations or (d) has, or has a direct or indirect parent company that
has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii)
had a receiver, conservator under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect,
trustee, administrator, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or a custodian
appointed for it or (iii) taken any action in furtherance of, or indicated its
consent to, approval of or acquiescence in any such proceeding or appointment;
provided, that, a Lender shall not be a Defaulting Lender solely by virtue of
the ownership or acquisition of any Equity Interests in that Lender or any
direct or indirect parent company thereof by a Governmental Authority or an
instrumentality thereof.


8





          “Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition (including any Sale and Leaseback Transaction) of any property by
any Loan Party or any Subsidiary (including the Equity Interests of any
Subsidiary), including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith, but excluding (a)
the sale, lease, license, transfer or other disposition of inventory in
the ordinary course of business; (b) the
sale, lease, license, transfer or other disposition in the ordinary
course of business of surplus, obsolete or worn out property no longer used or
useful in the conduct of business of any Loan Party or any Subsidiary; (c) any
sale, lease, license, transfer or other disposition of property to any Loan
Party or any Subsidiary; provided, that if the transferor of such
property is a Loan Party (i) the transferee thereof must be a Loan Party or
(ii) to the extent such transaction constitutes an Investment, such transaction
is permitted under Section 8.02; and (d) any Involuntary Disposition.


          “Dollar”
and “$” mean lawful money of the United States.


          “Dollar
Equivalent” means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by the Administrative Agent or the L/C Issuer, as the
case may be, at such time on the basis of the Spot Rate (determined in respect
of the most recent Revaluation Date) for the purchase of Dollars with such
Alternative Currency.


          “Domestic
Subsidiary” means any Subsidiary that is organized under the laws of any
state of the United States or the District of Columbia.


          “Earn
Out Obligations” means, with respect to an Acquisition, all obligations of
the Borrower or any Subsidiary to make earn out or other contingency payments
(including purchase price adjustments, non-competition and consulting
agreements, or other indemnity obligations) pursuant to the documentation
relating to such Acquisition. The amount of any Earn Out Obligations at the
time of determination shall be the aggregate amount, if any, of such Earn Out
Obligations that are required at such time under GAAP to be recognized as
liabilities on the consolidated balance sheet of the Borrower.


          “Eligible
Assignee” means any Person that meets the requirements to be an
assignee under Section 11.06(b)(ii) and (iv) (subject to such
consents, if any, as may be required under Section 11.06(b)(ii)).


          “EMU”
means the economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992
and the Amsterdam Treaty of 1998.


          “EMU
Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European
currency.


9





          “Environmental
Laws” means any and all federal, state, local, foreign and other applicable
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.


          “Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Borrower, any other Loan Party or any of their respective
Subsidiaries directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.


          “Equity
Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the
warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are outstanding on any date of
determination.


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


          “ERISA
Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of
the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue
Code for purposes of provisions relating to Section 412 of the Internal Revenue
Code).


          “ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject
to Section 4063 of ERISA during a plan year in which such entity was a
“substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan
is in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Pension Plan amendment as a termination under Sections 4041 or
4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a
Pension Plan; (f) any event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Pension Plan; (g) the determination that any Pension Plan is
considered an at-risk plan or a plan in endangered or critical status within
the meaning of Sections 430, 431 and 432 of the Internal Revenue Code or
Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability
under Title IV of ERISA, other than for PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.


          “Euro”
and “EUR” mean the lawful currency of the Participating Member States
introduced in accordance with the EMU Legislation.


10









          “Eurocurrency
Base Rate” means:


	
  

 	
  

 
	
  

 	
           (a)
 for any Interest Period with respect to a Eurocurrency Rate Loan, the rate
 per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
 as published by Reuters (or such other commercially available source
 providing quotations of BBA LIBOR as may be designated by the Administrative
 Agent from time to time) at approximately 11:00 a.m., London time, two (2)
 London Banking Days prior to the commencement of such Interest Period, for
 deposits in the relevant currency (for delivery on the first day of such
 Interest Period) with a term equivalent to such Interest Period or, if such
 rate is not available at such time for any reason, the rate per annum
 determined by the Administrative Agent to be the rate at which deposits in
 the relevant currency for delivery on the first day of such Interest Period
 in same day funds in the approximate amount of the Eurocurrency Rate Loan
 being made, continued or converted and with a term equivalent to such
 Interest Period would be offered by Bank of America’s London Branch (or other
 Bank of America branch or Affiliate) to major banks in the London or other
 offshore interbank market for such currency at their request at approximately
 11:00 a.m. (London time) two (2) London Banking Days prior to the
 commencement of such Interest Period; and

 
	
  

 	
  

 
	
  

 	
           (b)
 for any interest rate calculation with respect to a Base Rate Loan on any
 date, the rate per annum equal to BBA LIBOR, at approximately 11:00 a.m.
 London time determined two (2) London Banking Days prior to such date for
 Dollar deposits being delivered in the London interbank market for a term of
 one (1) month commencing that day or, if such published rate is not available
 at such time for any reason, the rate per annum determined by the
 Administrative Agent to be the rate at which deposits in Dollars for delivery
 on the date of determination in same day funds in the approximate amount of
 the Base Rate Loan being made or maintained with a term equal to one (1)
 month would be offered by Bank of America’s London Branch to major banks in
 the London interbank eurodollar market at their request at the date and time
 of determination.

 


          “Eurocurrency
Rate” means (a) for any Interest Period with respect to any Eurocurrency
Rate Loan, a rate per annum determined by the Administrative Agent to be equal
to the quotient obtained by dividing (i) the Eurocurrency Base Rate for such
Eurocurrency Rate Loan for such Interest Period by (ii) one minus the
Eurocurrency Reserve Percentage for such Eurocurrency Rate Loan for such Interest
Period and (b) for any day with respect to any Base Rate Loan bearing interest
at a rate based on the Eurocurrency Rate, a rate per annum determined by the
Administrative Agent to be equal to the quotient obtained by dividing (i) the
Eurocurrency Base Rate for such Base Rate Loan for such day by (ii) one minus
the Eurocurrency Reserve Percentage for such Base Rate Loan for such day.


          “Eurocurrency
Rate Loan” means a Loan that bears interest at a rate based on clause (a)
of the definition of “Eurocurrency Rate”.


          “Eurocurrency
Reserve Percentage” means, for any day during any Interest Period, any
reserve percentage (expressed as a decimal, carried out to five (5) decimal
places) in effect on such day, whether or not applicable to any Lender, under
regulations issued from time to time by the FRB for determining the maximum
reserve requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently referred
to as “Eurocurrency liabilities”). The Eurocurrency Rate for each outstanding
Eurocurrency Rate Loan shall be adjusted automatically as of the effective date
of any change in the Eurocurrency Reserve Percentage.


          “Event
of Default” has the meaning specified in Section 9.01.


11





          “Excluded
Property” means, with respect to any Loan Party, including any Person that
becomes a Loan Party after the Closing Date as contemplated by Section 7.12,
(a) any owned or leased real or personal property which is located outside of
the United States, (b) any personal property (including, without limitation,
motor vehicles) in respect of which perfection of a Lien is not either (i)
governed by the Uniform Commercial Code or
(ii) effected by appropriate evidence of the Lien being filed in either the
United States Copyright Office or the United States Patent and Trademark
Office, unless requested by the Administrative Agent or the Required Lenders,
(c) the Equity Interests of any direct Foreign Subsidiary of a Loan Party to
the extent not required to be pledged to secure the Obligations pursuant to Section
7.14(a), (d) any property which, subject to the terms of Section
8.09, is subject to a Lien of the type described in Section 8.01(i)
pursuant to documents which prohibit such Loan Party from granting any other
Liens in such property and (e) any leasehold interest of any Loan Party in
office space.


          “Excluded
Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any
obligation of the Borrower 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 or any similar tax imposed by any other jurisdiction in which the
Borrower is located, (c) any backup withholding tax that is required by the
Internal Revenue Code to be withheld from amounts payable to a Lender that has
failed to comply with clause (A) of Section 3.01(e)(ii), and (d) in the
case of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 11.13), any United States withholding tax that
(i) is required to be imposed on amounts payable to such Foreign Lender
pursuant to the Laws in force at the time such Foreign Lender becomes a party
hereto (or designates a new Lending Office) or (ii) is attributable to such
Foreign Lender’s failure or inability (other than as a result of a Change in
Law) to comply with Section 3.01(e)(ii), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new Lending Office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to Section
3.01(a)(i) or (c).


          “Existing
Letters of Credit” means the letters of credit described by date of
issuance, letter of credit number, undrawn amount, name of beneficiary and date
of expiry on Schedule 1.01(a).


          “Existing
Seller Indebtedness” means the unsecured Indebtedness of the Borrower
identified on Part A of Schedule 8.03 attached hereto.


          “Facilities”
means, at any time, a collective reference to the facilities and real
properties owned, leased or operated by any Loan Party or any Subsidiary.


          “Federal
Funds Rate” means, for any day, the rate per annum 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 that (a) 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 (b) 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 (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by
the Administrative Agent.


          “Foreign
Lender” means any Lender that is organized under the Laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes (including
such a Lender when acting in the capacity of the L/C Issuer). For purposes of
this definition, the United States, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction. 


12





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


          “FRB”
means the Board of Governors of the Federal Reserve System of the United
States.


          “Fronting
Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the
outstanding L/C Obligations other than L/C Obligations as to which such
Defaulting Lender’s participation obligation has been reallocated to other
Lenders or Cash Collateralized in accordance with the terms hereof and (b) with
respect to the Swing Line Lender, such Defaulting Lender’s Applicable
Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting
Lender’s participation obligation has been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof.


          “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 activities.


          “Funded
Indebtedness” means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:


	
  

 	
  

 
	
  

 	
           (a)          all
 obligations for borrowed money, whether current or long-term (including the
 Obligations) and all obligations of such Person evidenced by bonds,
 debentures, notes, loan agreements or other similar instruments;

 
	
  

 	
  

 
	
  

 	
           (b)          all
 purchase money Indebtedness;

 
	
  

 	
  

 
	
  

 	
           (c)          the
 principal portion of all obligations under conditional sale or other title
 retention agreements relating to property purchased by the Borrower or any
 Subsidiary (other than customary reservations or retentions of title under
 agreements with suppliers entered into in the ordinary course of business);

 
	
  

 	
  

 
	
  

 	
           (d)          all
 obligations arising under letters of credit (including standby and
 commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
 instruments;

 
	
  

 	
  

 
	
  

 	
           (e)          all
 obligations in respect of the deferred purchase price of property or services
 (other than trade accounts payable in the ordinary course of business),
 including, without limitation, any Earn Out Obligations recognized as a
 liability on the balance sheet of the Borrower and its Subsidiaries in
 accordance with GAAP;

 
	
  

 	
  

 
	
  

 	
           (f)          the
 Attributable Indebtedness of Capital Leases, Securitization Transactions and
 Synthetic Leases;

 
	
  

 	
  

 
	
  

 	
           (g)          all
 obligations of such Person to purchase, redeem, retire, defease or otherwise
 make any payment in respect of any Equity Interests in such Person or any
 other Person, valued, in the case of a redeemable preferred interest, at the
 greater of its voluntary or involuntary liquidation preference plus
 accrued and unpaid dividends;

 
	
  

 	
  

 
	
  

 	
           (h)          all Funded Indebtedness of others secured by
 (or for which the holder of such Funded Indebtedness has an existing right,
 contingent or otherwise, to be secured by) any Lien on, or payable out of the
 proceeds of production from, property owned or acquired by such Person,
 whether or not the obligations secured thereby have been assumed;

 


13









	
  

 	
  

 
	
  

 	
           (i)          all
 Guarantees with respect to Funded Indebtedness of the types specified in
 clauses (a) through (h) above of another Person; and

 
	
  

 	
  

 
	
  

 	
           (j)          all
 Funded Indebtedness of the types referred to in clauses (a) through (i) above
 of any partnership or joint venture (other than a joint venture that is
 itself a corporation or limited liability company) in which such Person is a
 general partner or joint venturer, except to the extent that Funded
 Indebtedness is expressly made non-recourse to such Person.

 


For purposes hereof, the
amount of any direct obligation arising under letters of credit (including
standby and commercial), bankers’ acceptances, bank guaranties, surety bonds
and similar instruments shall be the maximum amount available to be drawn
thereunder.


          “Funding
Date” means the date on which the conditions set forth in Section 5.02
have been satisfied.


          “GAAP”
means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, consistently
applied and as in effect from time to time.


          “Governmental
Authority” means the government of the United States 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).


          “Guarantee”
means, as to any Person, (a) any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the
“primary obligor”) in any manner, whether directly or indirectly, and including
any obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or other
obligation, (ii) to purchase or lease property, securities or services for the
purpose of assuring the obligee in respect of such Indebtedness or other
obligation of the payment or performance of such Indebtedness or other
obligation, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the purpose of
assuring in any other manner the obligee in respect of such Indebtedness or
other obligation of the payment or performance thereof or to protect such
obligee against loss in respect thereof (in whole or in part), or (b) any Lien
on any assets of such Person securing any Indebtedness or other obligation of
any other Person, whether or not such Indebtedness or other obligation is
assumed by such Person (or any right, contingent or otherwise, of any holder of
such Indebtedness to obtain any such Lien). The amount of any Guarantee shall
be deemed to be an amount equal to the stated or determinable amount of the
related primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith. The term “Guarantee” as a verb has a corresponding
meaning.


          “Guarantors”
means each Domestic Subsidiary of the
Borrower identified as a “Guarantor” on the signature pages hereto and each
other Person that joins as a Guarantor pursuant to Section 7.12,
together with their successors and permitted assigns.


14





          “Guaranty”
means the Guaranty made by the Guarantors in favor of the Administrative Agent
and the Lenders pursuant to Article IV.


          “Hazardous
Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum
or petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all
other substances or wastes of any nature regulated pursuant to any
Environmental Law.


          “Honor
Date” has the meaning set forth in Section 2.03(c).


          “Indebtedness”
means, as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:


	
  

 	
  

 
	
  

 	
           (a)          all
 Funded Indebtedness;

 
	
  

 	
  

 
	
  

 	
           (b)          the
 Swap Termination Value of any Swap Contract;

 
	
  

 	
  

 
	
  

 	
           (c)          all
 Guarantees with respect to outstanding Indebtedness of the types specified in
 clauses (a) and (b) above of any other Person; and

 
	
  

 	
  

 
	
  

 	
           (d)          all
 Indebtedness of the types referred to in clauses (a) through (c) above of any
 partnership or joint venture (other than a joint venture that is itself a
 corporation or limited liability company) in which the Borrower or a
 Subsidiary is a general partner or joint venturer, unless such Indebtedness
 is expressly made non-recourse to the Borrower or such Subsidiary.

 


          “Indemnified
Taxes” means Taxes other than Excluded Taxes.


          “Indemnitees”
has the meaning specified in Section 11.04(b).


          “Information”
has the meaning specified in Section 11.07.


          “Interest
Payment Date” means (a) as to any Eurocurrency Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurocurrency Rate Loan
exceeds three (3) months, the respective dates that fall every three (3) months
after the beginning of such Interest Period shall also be Interest Payment
Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last
Business Day of each March, June, September and December and the Maturity Date.


          “Interest
Period” means, as to each Eurocurrency Rate Loan, the period commencing on
the date such Eurocurrency Rate Loan is disbursed or converted to or continued
as a Eurocurrency Rate Loan and ending on the date one (1), two (2), three (3)
or six (6) months thereafter, as selected by the Borrower in its Loan Notice provided
that:


	
  

 	
  

 
	
  

 	
           (a)          any
 Interest Period that would otherwise end on a day that is not a Business Day
 shall be extended to the next succeeding Business Day unless such Business
 Day falls in another calendar month, in which case such Interest Period shall
 end on the next 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 end on the last Business Day
 of the calendar month at the end of such Interest Period; and

 


15







	
  

 	
  

 
	
  

 	
           (c)          no
 Interest Period with respect to any Revolving Loan shall extend beyond the
 Maturity Date.

 


          “Interim
Financial Statements” means unaudited consolidated financial statements of
the Borrower and its Subsidiaries for the fiscal quarter ended March 31, 2010,
including balance sheets and statements of income or operations, shareholders’
equity and cash flows.


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


          “Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
Equity Interests of another Person, (b) a loan, advance or capital contribution
to, Guarantee or assumption of debt of, or purchase or other acquisition of any
other debt or equity participation or interest in, another Person, including
any partnership or joint venture interest in such other Person and any
arrangement pursuant to which the investor Guarantees Indebtedness of such
other Person, or (c) an Acquisition. For purposes of covenant compliance, the
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment. 


          “Involuntary
Disposition” means any loss of, damage to or destruction of,
or any condemnation or other taking for public use of, any property of any Loan Party or any of its Subsidiaries.


          “IP
Rights” has the meaning specified in Section 6.17.


          “IRS”
means the United States Internal Revenue Service.


          “ISP”
means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law &
Practice, Inc. (or such later version thereof as may be in effect at the time
of issuance).


          “Issuer
Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by
the L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/C
Issuer and relating to any such Letter of Credit.


          “Joinder
Agreement” means a joinder agreement
substantially in the form of Exhibit F executed and delivered by a
Domestic Subsidiary in accordance with the provisions of Section 7.12.


          “Joint
Lead Arrangers” means the collective reference to BAS, General Electric
Capital Corporation and Fifth Third Bank in their respective capacities as
joint lead arrangers and joint book managers.


          “Laws”
means, collectively, all international, foreign, federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.


          “L/C
Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable
Percentage. All L/C Advances shall be denominated in Dollars.


16





          “L/C
Borrowing” means an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Borrowing of Revolving Loans. All L/C Borrowings shall be
denominated in Dollars.


          “L/C
Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount
thereof.


          “L/C
Issuer” means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.


          “L/C
Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.09. For all purposes
of this Agreement, if on any date of determination a Letter of Credit has
expired by its terms but any amount may still be drawn thereunder by reason of
the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to
be “outstanding” in the amount so remaining available to be drawn. 


          “Lenders”
means each of the Persons identified as a “Lender” on the signature pages
hereto and their successors and assigns and, as the context requires, includes the
Swing Line Lender.


          “Lending
Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other
office or offices as a Lender may from time to time notify the Borrower and the
Administrative Agent.


          “Letter
of Credit” means (a) any standby letter of credit issued hereunder and (b)
any Existing Letter of Credit. Letters of Credit may be issued in Dollars or in
an Alternative Currency.


          “Letter
of Credit Application” means an application and agreement for the issuance
or amendment of a letter of credit in the form from time to time in use by the
L/C Issuer.


          “Letter
of Credit Expiration Date” means the day that is thirty (30) days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next
preceding Business Day).


          “Letter
of Credit Fee” has the meaning specified in Section 2.03(h).


          “Letter
of Credit Sublimit” means an amount equal to the lesser of (a) the
Aggregate Revolving Commitments and (b) $15,000,000. The Letter of Credit
Sublimit is part of, and not in addition to, the Aggregate Revolving
Commitments.


          “Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or
other security interest or preferential arrangement in the nature of a security
interest of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).


          “Loan”
means an extension of credit by a Lender to the Borrower under Article II
in the form of a Revolving Loan or Swing Line Loan.


17





          “Loan
Documents” means this Agreement, each Note, each Issuer Document, each
Joinder Agreement, any agreement creating or perfecting rights in Cash
Collateral pursuant to the provisions of Section 2.14 of this Agreement,
the Collateral Documents and the Administrative Agent Fee Letter.


          “Loan
Notice” means a notice of (a) a Borrowing of Loans, (b) a conversion of
Loans from one Type to the other, or (c) a continuation of Eurocurrency Rate
Loans, in each case pursuant to Section 2.02(a), which, if in writing,
shall be substantially in the form of Exhibit A.


          “Loan
Parties” means, collectively, the Borrower and each Guarantor.


          “London
Banking Day” means any day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar market.


          “Mandatory
Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.01(b).


          “Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, assets, properties, liabilities
(actual or contingent), or condition (financial or otherwise) of the Borrower
and its Subsidiaries taken as a whole; (b) a material impairment of the ability
of any Loan Party to perform its obligations under any Loan Document to which
it is a party; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against any Loan Party of any Loan Document to
which it is a party.


          “Maturity
Date” means the date three years from the Funding Date..


          “Moody’s”
means Moody’s Investors Service, Inc. and any successor thereto.


          “Mortgaged
Property” means any real property that is owned or leased by a Loan Party
and is subject to a Mortgage.


          “Mortgages”
means any mortgages, deeds of trust or deeds to secure debt that purport to
grant to the Administrative Agent, for the benefit of the holders of the
Obligations, a security interest in the fee interest and/or leasehold interests
of any Loan Party in real property (other than Excluded Property).


          “Multiemployer
Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is
obligated to make contributions, or during the preceding five (5) plan years,
has made or been obligated to make contributions.


          “Multiple
Employer Plan” means a Plan which has two or more contributing sponsors
(including the Borrower or any ERISA Affiliate) at least two of whom are not
under common control, as such a plan is described in Section 4064 of ERISA.


          “Note”
or “Notes” means the Revolving Notes or the Swing Line Note,
individually or collectively, as appropriate.


          “Obligations”
means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party arising under any Loan Document or otherwise with
respect to any Loan or Letter of Credit, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due,
now existing or hereafter arising and including interest and fees that accrue
after the commencement by or against any Loan Party or any Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding. The foregoing shall also include (a) all obligations
under any Swap Contract between any Loan Party and any Lender or Affiliate of a
Lender that is permitted to be incurred pursuant to Section 8.03(d) and
(b) all obligations under any Treasury Management Agreement between any Loan
Party and any Lender or Affiliate of a Lender.


18





          “Organization
Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with
respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to any
partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.


          “Other
Subordinated Indebtedness” means any unsecured Indebtedness of the Borrower
or any Subsidiary issued subsequent to the Closing Date which by
its terms is expressly subordinated in right of payment to the prior payment of
the Obligations pursuant to subordination provisions reasonably satisfactory to
the Administrative Agent and which Indebtedness shall not (a) mature, and have
no scheduled principal payments, prepayments, repurchases, redemptions or
sinking fund or like payments required, at any time on or prior to 180 days
after the Maturity Date and (b) contain any terms more restrictive in any
respect to the Borrower and its Subsidiaries than the provisions of this
Agreement.


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


          “Outstanding
Amount” means (a) with respect to any Loans on any date, the Dollar
Equivalent amount of the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of any Loans
occurring on such date; and (b) with respect to any L/C Obligations on any
date, the Dollar Equivalent of the aggregate outstanding amount of such
L/C Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements by the
Borrower of Unreimbursed Amounts.


          “Overnight
Rate” means, for any day, (a) with respect to any amount denominated
in Dollars, the greater of (i) the Federal Funds Rate and (ii) an
overnight rate determined by the Administrative Agent, the L/C Issuer, or the
Swing Line Lender, as the case may be, in accordance with banking industry
rules on interbank compensation, and (b) with respect to any amount
denominated in an Alternative Currency, the rate of interest per annum at which
overnight deposits in the applicable Alternative Currency, in an amount
approximately equal to the amount with respect to which such rate is being
determined, would be offered for such day by a branch or Affiliate of Bank of
America in the applicable offshore interbank market for such currency to major
banks in such interbank market.


          “Participant”
has the meaning specified in Section 11.06(d).


          “Participating
Member State” means each state so described in any EMU Legislation.


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


19





          “Pension
Act” means the Pension Protection Act of 2006.


          “Pension
Funding Rules” means the rules of the Internal Revenue Code and ERISA
regarding minimum required contributions (including any installment payment
thereof) to Pension Plans and set forth in, with respect to plan years ending
prior to the effective date of the Pension Act, Section 412 of the Internal
Revenue Code and Section 302 of ERISA, each as in effect prior to the Pension
Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Internal Revenue
Code and Sections 302, 303, 3004 and 305 of ERISA.


          “Pension
Plan” means any employee pension benefit plan (including a Multiple
Employer Plan or a Multiemployer Plan) that is maintained or is contributed to
by the Borrower and any ERISA Affiliate and is either covered by Title IV of
ERISA or is subject to minimum funding standards under Section 412 of the Internal
Revenue Code.


          “Permitted
Acquisitions” means Investments consisting of an Acquisition by the Borrower or any Subsidiary, provided
that (i) no Default shall have occurred and be continuing or would result from
such Acquisition, (ii) the property acquired (or the property of the Person
acquired) in such Acquisition is used or useful in the same or a related
line of business as the Borrower and its Subsidiaries were engaged in on the
Closing Date (or any reasonable extensions or expansions thereof), (iii) the property or the Person acquired in
such Acquisition shall have attained positive EBITDA (as calculated in
accordance with the definition of Consolidated EBITDA contained herein) for the
immediately preceding twelve month period preceding the consummation of such
Acquisition, as demonstrated pursuant to financial information satisfactory to
the Administrative Agent, (iv) the
Administrative Agent shall have received, within 30 days from the date of the
consummation of such Acquisition, all items in respect of the Equity Interests
or property acquired in such Acquisition required to be delivered by the terms
of Section 7.12 and/or Section 7.14, (v) in the case of an
Acquisition of the Equity Interests of another Person, the board of directors,
shareholders or other comparable governing body, of such other Person shall
have duly approved such Acquisition, (vi) the Borrower shall have
delivered to the Administrative Agent
prior to the consummation of such Acquisition (A) a Pro Forma Compliance
Certificate demonstrating that, upon giving
effect to such Acquisition on a Pro Forma Basis, the Loan Parties would be in
compliance with the financial covenants set forth in Section 8.11 as
of the most recent fiscal quarter for
which the Borrower was required to deliver financial statements pursuant to Section
7.01(a) or (b) and (B) then-available financial and other
information regarding the target of such Acquisition and projections
demonstrating that, after giving effect to such Acquisition, the Borrower shall
remain in compliance with the financial covenants set forth in Section 8.11
through the Maturity Date, (vii) at least five (5) days prior to the
consummation of such Acquisition, the Borrower shall have delivered to the
Administrative Agent (A) drafts of any then-available purchase agreement or
merger agreement with respect to such Acquisition and (B) a quality of earnings
report for the target of such Acquisition (to the extent such target has EBITDA
greater than $1,000,000 for the most recent twelve month period for which
financial statements are available), (viii)
the representations and warranties made by the Loan Parties in each Loan
Document shall be true and correct in all material respects at and as if made
as of the date of such Acquisition (after giving effect thereto) except to the
extent such representations and warranties expressly relate to an earlier date
and (ix) the aggregate consideration (including cash and non-cash
consideration, any assumption of Indebtedness, deferred purchase price and any
Earn-Out Obligations) paid by the Borrower or any such Subsidiary, as
applicable, for any such Acquisition shall not exceed $50,000,000.


          “Permitted
Investments” means, at any time, Investments by any Loan Party or any of
its Subsidiaries permitted to exist at such time pursuant to the terms of Section
8.02.


20





          “Permitted
Liens” means, at any time, Liens in respect of property of any Loan Party
or any of its Subsidiaries permitted to exist at such time pursuant to the
terms of Section 8.01.


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


          “Plan”
means any employee benefit plan within the meaning of Section 3(3) of ERISA
(including a Pension Plan), maintained for employees of the Borrower or any
ERISA Affiliate or any such Plan to which the Borrower or any ERISA Affiliate
is required to contribute on behalf of any of its employees.


          “Platform”
has the meaning specified in Section 7.02.


          “Prior
Credit Agreement” means that certain Loan and Security Agreement dated as
of December 18, 2009 among ExamWorks, Inc., the lenders party thereto and Fifth
Third Bank, as administrative agent, as amended or modified from time to time.


          “Pro
Forma Basis” means, for purposes of calculating the financial covenants set
forth in Section 8.11 (including for purposes of determining the
Applicable Rate), that any Disposition, Involuntary Disposition, Acquisition or
Restricted Payment shall be deemed to have occurred as of the first day of the
most recent four (4) fiscal quarter period preceding
the date of such transaction for which the Borrower was required to
deliver financial statements pursuant to Section 7.01(a) or (b).
In connection with the foregoing, (a) with respect to any Disposition or
Involuntary Disposition, income statement and cash flow statement items
(whether positive or negative) attributable to the property disposed of shall
be excluded to the extent relating to any period occurring prior to the date of
such transaction and (b) with respect to any Acquisition, (i) income statement
items attributable to the Person or property acquired shall be included to the
extent relating to any period applicable in such calculations to the extent (A)
such items are not otherwise included in such income statement items for the
Borrower and its Subsidiaries in accordance with GAAP or in accordance with any
defined terms set forth in Section 1.01 and (B) such items are supported
by financial statements or other information satisfactory to the Administrative
Agent, (ii) any Indebtedness incurred or assumed by the Borrower or any
Subsidiary (including the Person or property acquired) in connection with such
transaction (A) shall be deemed to have been incurred as of the first day of
the applicable period and (B) if such Indebtedness has a floating or formula
rate, shall have an implied rate of interest for the applicable period for
purposes of this definition determined by utilizing the rate which is or would
be in effect with respect to such Indebtedness as at the relevant date of
determination and (iii) adjustments may be made with respect to the EBITDA of
any Person or property acquired relating to such period based on cost savings
demonstrated for the applicable period in a quality of earnings report (or with
respect to an Acquisition of a Person or property with EBITDA of less than
$1,000,000 for the most recent twelve month period, as demonstrated by the
Borrower), such adjustments to reasonably satisfactory to the Administrative
Agent.


          “Pro
Forma Compliance Certificate” means a certificate of a Responsible Officer
of the Borrower containing reasonably detailed calculations of the financial
covenants set forth in Section 8.11 as of the most recent fiscal quarter
end for which the Borrower was required to deliver financial statements
pursuant to Section 7.01(a) or (b) after giving effect to the
applicable transaction on a Pro Forma Basis.


          “Public
Lender” has the meaning specified in Section 7.02.


          “Qualifying
IPO” means the underwritten primary public offering of the common stock of
the Borrower (a) pursuant to an effective registration statement filed with the
United States Securities and Exchange Commission in accordance with the
Securities Act (whether alone or in conjunction with a secondary public
offering) and (b) resulting in gross proceeds of at least $75,000,000.


21






          “Register”
has the meaning specified in Section 11.06(c).


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


          “Reportable
Event” means any of the events set forth in Section 4043(c) of ERISA, other
than events for which the thirty (30)-day notice period has been waived.


          “Request
for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Loans, a Loan Notice, (b) with respect to an L/C Credit
Extension, a Letter of Credit Application and (c) with respect to a Swing Line
Loan, a Swing Line Loan Notice.


          “Required
Lenders” means, at any time, Lenders holding in the aggregate more than
fifty percent (50%) of (a) the unfunded Revolving Commitments, the outstanding
Loans, L/C Obligations and participations therein or (b) if the Revolving
Commitments have been terminated, the outstanding Loans, L/C Obligations and
participations therein. The unfunded Revolving Commitments of, and the
outstanding Loans held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.


          “Responsible
Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller of a Loan Party and,
solely for purposes of the delivery of certificates pursuant to Sections
5.01, 5.02 or 7.12(b), the secretary or any assistant
secretary of a Loan Party. Any document delivered hereunder that is signed by a
Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the
part of such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.


          “Restricted
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests of any Loan
Party or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such Equity Interests or on account of any return of capital to the
Borrower’s stockholders, partners or members (or the equivalent Person
thereof), or any setting apart of funds or property for any of the foregoing.


          “Revaluation
Date” means (a) with respect to any Loan, each of the following:
(i) each date of a Borrowing of a Eurocurrency Rate Loan denominated in an
Alternative Currency, (ii) each date of a continuation of a Eurocurrency
Rate Loan denominated in an Alternative Currency pursuant to Section 2.02,
and (iii) such additional dates as the Administrative Agent shall
determine or the Required Lenders shall require and (b) with respect to
any Letter of Credit, each of the following: (i) each date of issuance of
a Letter of Credit denominated in an Alternative Currency, (ii) each date
of an amendment of any such Letter of Credit having the effect of increasing
the amount thereof (solely with respect to the increased amount) and
(iii) each date of any payment by the L/C Issuer under any Letter of
Credit denominated in an Alternative Currency.


          “Revolving
Commitment” means, as to each Lender, its obligation to (a) make Revolving
Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender’s name on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time
in accordance with this Agreement.


22





          “Revolving
Loan” has the meaning specified in Section 2.01(a).


          “Revolving
Note” has the meaning specified in Section 2.11(a).


          “S&P”
means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto.


          “Sale
and Leaseback Transaction” means, with respect to any Loan Party or any
Subsidiary, any arrangement, directly or indirectly, with any Person whereby
the Loan Party or such Subsidiary shall sell or transfer any property used or
useful in its business, whether now owned or hereafter acquired, and thereafter
rent or lease such property or other property that it intends to use for
substantially the same purpose or purposes as the property being sold or
transferred.


          “Same
Day Funds” means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to
disbursements and payments in an Alternative Currency, same day or other funds
as may be determined by the Administrative Agent or the L/C Issuer, as the case
may be, to be customary in the place of disbursement or payment for the
settlement of international banking transactions in the relevant Alternative
Currency.


          “SEC”
means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.


          “Securitization
Transaction” means, with respect to any Person, any financing transaction
or series of financing transactions (including factoring arrangements) pursuant
to which such Person or any Subsidiary of such Person may sell, convey or
otherwise transfer, or grant a security interest in, accounts, payments,
receivables, rights to future lease payments or residuals or similar rights to
payment to a special purpose subsidiary or affiliate of such Person.


          “Security
Agreement” means the security and pledge agreement dated as of the Funding
Date executed in favor of the Administrative Agent, for the benefit of the
holders of the Obligations, by each of the Loan Parties, as amended or modified
from time to time in accordance with the terms hereof.


          “Seller
Subordinated Indebtedness” means any unsecured Indebtedness of the Borrower
or any Subsidiary issued subsequent to the Closing Date in favor of a seller as
consideration for a Permitted Acquisition which unsecured
Indebtedness by its terms is expressly subordinated in right of payment to the
prior payment of the Obligations pursuant to subordination provisions
satisfactory to the Administrative Agent and which Indebtedness shall not (a)
mature, and have no scheduled principal payments, prepayments, repurchases,
redemptions or sinking fund or like payments required, at any time on or prior
to 180 days after the Maturity Date and (b) include any financial maintenance
covenants and the terms thereof shall otherwise not be more restrictive in any
respect to the Borrower and its Subsidiaries than the provisions of this
Agreement. Notwithstanding the foregoing, the Borrower and its Subsidiaries may
incur Seller Subordinated Indebtedness that in the aggregate does not require
scheduled principal payments exceeding $10,000,000 in any fiscal year of the Borrower.


          “Solvent”
or “Solvency” means, with respect to any Person as of a particular date,
that on such date (a) such Person is able to pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the
ordinary course of business, (b) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person’s ability
to pay as such debts and liabilities mature in their ordinary course, (c) such
Person is not engaged in a business or a transaction, and is not about to
engage in a business or a transaction, for which such Person’s property would
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged or is to
engage, (d) the fair value of the property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (e) the present fair salable value of the
assets of such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light
of all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.


23





          “Special
Notice Currency” means at any time an Alternative Currency, other than the
currency of a country that is a member of the Organization for Economic
Cooperation and Development at such time located in North America or Europe.


          “Spot
Rate” for a currency means the rate determined by the Administrative Agent
or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in
such capacity as the spot rate for the purchase by such Person of such currency
with another currency through its principal foreign exchange trading office at
approximately 11:00 a.m. on the date two (2) Business Days prior to the
date as of which the foreign exchange computation is made; provided that
the Administrative Agent or the L/C Issuer may obtain such spot rate from
another financial institution designated by the Administrative Agent or the L/C
Issuer if the Person acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency; and provided further
that the L/C Issuer may use such spot rate quoted on the date as of which the
foreign exchange computation is made in the case of any Letter of Credit
denominated in an Alternative Currency.


          “Sterling”
and “£” mean the lawful currency of the United Kingdom.


          “Stockholders
Agreement” means that certain Stockholders’ Agreement dated as of July 14,
2008 among ExamWorks Holdings, LLLP, the individuals whose names appear on the
signature pages thereto and ExamWorks, Inc., as amended from time to time.


          “Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of Voting
Stock is at the time beneficially owned, or the management of which is
otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a
Subsidiary or Subsidiaries of the Borrower.


          “Supermajority
Lenders” means, at any time, Lenders holding in the aggregate more than
eighty percent (80%) of (a) the unfunded Revolving Commitments, the outstanding
Loans, L/C Obligations and participations therein or (b) if the Revolving
Commitments have been terminated, the outstanding Loans, L/C Obligations and
participations therein. The unfunded Revolving Commitments of, and the
outstanding Loans held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Supermajority Lenders.


          “Swap
Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity
options, forward commodity contracts, equity or equity index swaps or options,
bond or bond price or bond index swaps or options or forward bond or forward
bond price or forward bond index transactions, interest rate options, forward
foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc., any
International Foreign Exchange Master Agreement, or any other master agreement
(any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master
Agreement.


24





          “Swap
Termination Value” means, in respect of any one or more Swap Contracts,
after taking into account the effect of any legally enforceable netting
agreement relating to such Swap Contracts, (a) for any date on or after the
date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s) and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as
the mark-to-market value(s) for such Swap Contracts, as determined based upon
one or more mid-market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a Lender).


          “Swing
Line Lender” means Bank of America in its capacity as provider of Swing
Line Loans, or any successor swing line lender hereunder.


          “Swing
Line Loan” has the meaning specified in Section 2.04(a).


          “Swing
Line Loan Notice” means a notice of a Borrowing of Swing Line Loans
pursuant to Section 2.04(b), which, if in writing, shall be
substantially in the form of Exhibit B.


          “Swing
Line Note” has the meaning specified in Section 2.11(a).


          “Swing
Line Sublimit” means an amount equal to the lesser of (a) $15,000,000 and
(b) the Aggregate Revolving Commitments. The Swing Line Sublimit is part of,
and not in addition to, the Aggregate Revolving Commitments.


          “Synthetic
Lease” means any synthetic lease, tax retention operating lease, off-balance
sheet loan or similar off-balance sheet financing arrangement whereby the
arrangement is considered borrowed money indebtedness for tax purposes but is
classified as an operating lease or does not otherwise appear on a balance
sheet under GAAP.


          “TARGET
Day” means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such payment system
ceases to be operative, such other payment system (if any) determined by
the Administrative Agent to be a suitable replacement) is open for the
settlement of payments in Euro.


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


          “Threshold
Amount” means $3,000,000.


          “Total
Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving
Loans, all Swing Line Loans and all L/C Obligations.


          “Treasury
Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, overdraft,
credit or debit card, funds transfer, automated clearinghouse, zero balance
accounts, returned check concentration, controlled disbursement, lockbox,
account reconciliation and reporting and trade finance services and other cash
management services.


25





          “Type”
means, with respect to any Loan, its character as a Base Rate Loan or a
Eurocurrency Rate Loan.


          “UK
Independent” means UK Independent Medical Limited, a company organized in
England and Wales.


          “UK
Subsidiaries” has the meaning specified in Section 8.01(q).


          “United
States” and “U.S.” mean the United States of America.


          “Unreimbursed
Amount” has the meaning specified in Section 2.03(c)(i).


          “Voting
Stock” means, with
respect to any Person, Equity Interests issued by such Person the holders of
which are ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such Person,
even though the right so to vote has been suspended by the happening of such a contingency.


          “Wholly
Owned Subsidiary” means any Person one hundred percent (100%) of whose
Equity Interests are at the time owned by the Borrower directly or indirectly
through other Persons one hundred percent (100%) of whose Equity Interests are
at the time owned, directly or indirectly, by the Borrower.


	
  

 	
  

 
	
 1.02

 	
 Other Interpretive Provisions.

 



          With
reference to this Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:


	
  

 	
  

 
	
  

 	
           (a)          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, (i) any definition of or reference to
 any agreement, instrument or other document (including any Organization
 Document) 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 or in any other Loan Document), (ii) any
 reference herein to any Person shall be construed to include such Person’s
 successors and assigns, (iii) the words “hereto”, “herein,” “hereof”
 and “hereunder,” and words of similar import when used in any Loan
 Document, shall be construed to refer to such Loan Document in its entirety
 and not to any particular provision thereof, (iv) all references in a Loan
 Document to Articles, Sections, Exhibits and Schedules shall be construed to
 refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
 Document in which such references appear, (v) any reference to any law shall
 include all statutory and regulatory provisions consolidating, amending,
 replacing or interpreting such law and any reference to any law or regulation
 shall, unless otherwise specified, refer to such law or regulation as
 amended, modified or supplemented from time to time, and (vi) the words “asset”
 and “property” shall be construed to have the same meaning and effect
 and to refer to any and all real and personal property and tangible and
 intangible assets and properties, including cash, securities, accounts and
 contract rights.

 



26









	
  

 	
  

 
	
  

 	
           (b)          In
 the computation of periods of time from a specified date to a later specified
 date, the word “from” means “from and including;” the words “to”
 and “until” each mean “to but excluding;” and the word “through”
 means “to and including.”

 
	
  

 	
  

 
	
  

 	
           (c)          Section
 headings herein and in the other Loan Documents are included for convenience
 of reference only and shall not affect the interpretation of this Agreement
 or any other Loan Document.

 
	
  

 	
  

 
	
 1.03

 	
 Accounting Terms.

 



          (a)      Generally.
Except as otherwise specifically prescribed herein, all accounting terms not
specifically or completely defined herein shall be construed in conformity
with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements; provided, however, that
calculations of Attributable Indebtedness under any Synthetic Lease or the
implied interest component of any Synthetic Lease shall be made by the Borrower
in accordance with accepted financial practice and consistent with the terms of
such Synthetic Lease.


          (b)      Changes
in GAAP. The Borrower will provide a written summary of material changes in
GAAP and in the consistent application thereof with each annual and quarterly
Compliance Certificate delivered in accordance with Section 7.02(a). If
at any time any change in GAAP would affect the computation of any financial
ratio or requirement set forth in any Loan Document, and either the Borrower or
the Required Lenders shall so request, the Administrative Agent, the Lenders
and the Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that,
until so amended, (i) such ratio or requirement shall continue to be computed
in accordance with GAAP prior to such change therein and (ii) the Borrower
shall provide to the Administrative Agent and the Lenders financial statements
and other documents required under this Agreement or as requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP. Notwithstanding the
foregoing, all calculations of operating leases hereunder shall be in
accordance with GAAP as in effect on the Closing Date.


          (c)      Calculations.
Notwithstanding the above, the parties hereto acknowledge and agree that all
calculations of the financial covenants in Section 8.11 (including for
purposes of determining the Applicable Rate) shall be made on a Pro Forma
Basis.


	
  

 	
  

 
	
 1.04

 	
 Rounding.

 


          Any
financial ratios required to be maintained by the Borrower pursuant to this
Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of
places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).


	
  

 	
  

 
	
 1.05

 	
 Exchange Rates; Currency Equivalents.

 


          (a)      The
Administrative Agent or the L/C Issuer, as applicable, shall determine the Spot
Rates as of each Revaluation Date to be used for calculating Dollar Equivalent
amounts of Credit Extensions and Outstanding Amounts denominated in Alternative
Currencies. Such Spot Rates shall become effective as of such Revaluation Date
and shall be the Spot Rates employed in converting any amounts between the
applicable currencies until the next Revaluation Date to occur. Except for
purposes of financial statements delivered by Loan Parties hereunder or
calculating financial covenants hereunder or except as otherwise provided
herein, the applicable amount of any currency (other than Dollars) for purposes
of the Loan Documents shall be such Dollar Equivalent amount as so determined
by the Administrative Agent or the L/C Issuer, as applicable.


27





          (b)          Wherever
in this Agreement in connection with a Borrowing, conversion, continuation or
prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension
of a Letter of Credit, an amount, such as a required minimum or multiple
amount, is expressed in Dollars, but such Borrowing, Eurocurrency Rate Loan or
Letter of Credit is denominated in an Alternative Currency, such amount shall
be the relevant Alternative Currency Equivalent of such Dollar amount (rounded
to the nearest unit of such Alternative Currency, with 0.5 of a unit being
rounded upward), as determined by the Administrative Agent, or the L/C Issuer,
as the case may be.


	
  

 	
  

 
	
 1.06

 	
 Additional Alternative Currencies.

 


          (a)          The
Borrower may from time to time request that Eurocurrency Rate Loans be made
and/or Letters of Credit be issued in a currency other than those specifically
listed in the definition of “Alternative Currency;” provided that such
requested currency is a lawful currency (other than Dollars) that is readily
available and freely transferable and convertible into Dollars. In the case of
any such request with respect to the making of Eurocurrency Rate Loans, such
request shall be subject to the approval of the Administrative Agent and the
Lenders; and in the case of any such request with respect to the issuance of
Letters of Credit, such request shall be subject to the approval of the
Administrative Agent and the L/C Issuer.


          (b)          Any
such request shall be made to the Administrative Agent not later than
11:00 a.m., twenty (20) Business Days prior to the date of the
desired Credit Extension (or such other time or date as may be agreed by the
Administrative Agent and, in the case of any such request pertaining to Letters
of Credit, the L/C Issuer, in its or their sole discretion). In the case of any
such request pertaining to Eurocurrency Rate Loans, the Administrative Agent
shall promptly notify each Lender thereof; and in the case of any such request
pertaining to Letters of Credit, the Administrative Agent shall promptly notify
the L/C Issuer thereof. Each Lender (in the case of any such
request pertaining to Eurocurrency Rate Loans) or the L/C Issuer (in the
case of a request pertaining to Letters of Credit) shall notify the
Administrative Agent, not later than 11:00 a.m., ten (10) Business Days
after receipt of such request whether it consents, in its sole discretion, to
the making of Eurocurrency Rate Loans or the issuance of Letters of Credit, as
the case may be, in such requested currency.


          (c)          Any
failure by a Lender or the L/C Issuer, as the case may be, to respond to such
request within the time period specified in the preceding sentence shall be
deemed to be a refusal by such Lender or the L/C Issuer, as the case may be, to
permit Eurocurrency Rate Loans to be made or Letters of Credit to be issued in
such requested currency. If the Administrative Agent and all the Lenders
consent to making Eurocurrency Rate Loans in such requested currency, the
Administrative Agent shall so notify the Borrower and such currency shall
thereupon be deemed for all purposes to be an Alternative Currency hereunder
for purposes of any Borrowings of Eurocurrency Rate Loans; and if the Administrative
Agent and the L/C Issuer consent to the issuance of Letters of Credit in such
requested currency, the Administrative Agent shall so notify the Borrower and
such currency shall thereupon be deemed for all purposes to be an Alternative
Currency hereunder for purposes of any Letter of Credit issuances. If
the Administrative Agent shall fail to obtain consent to any request for an
additional currency under this Section 1.06, the Administrative
Agent shall promptly so notify the Borrower.


28









	
  

 	
  

 
	
 1.07

 	
 Change of Currency.

 


          (a)          Each
obligation of the Borrower to make a payment denominated in the national
currency unit of any member state of the European Union that adopts the Euro as
its lawful currency after the date hereof shall be redenominated into Euro at
the time of such adoption (in accordance with the EMU Legislation). If, in
relation to the currency of any such member state, the basis of accrual of
interest expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London interbank market for
the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date on
which such member state adopts the Euro as its lawful currency; provided
that if any Borrowing in the currency of such member state is outstanding
immediately prior to such date, such replacement shall take effect, with
respect to such Borrowing, at the end of the then current Interest Period.


          (b)          Each
provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be
appropriate to reflect the adoption of the Euro by any member state of the
European Union and any relevant market conventions or practices relating to the
Euro.


          (c)          Each
provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be
appropriate to reflect a change in currency of any other country and any
relevant market conventions or practices relating to the change in currency.


	
  

 	
  

 
	
 1.08

 	
 Times of Day.

 


          Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable).


	
  

 	
  

 
	
 1.09

 	
 Letter of Credit Amounts.

 


          Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall be
deemed to be the Dollar Equivalent of the stated amount of such Letter of
Credit in effect at such time; provided, however, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic increases in the
stated amount thereof, the amount of such Letter of Credit shall be deemed to
be the Dollar Equivalent of the maximum stated amount of such Letter of Credit
after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time. 


ARTICLE
II


THE COMMITMENTS AND CREDIT
EXTENSIONS


	
  

 	
  

 
	
 2.01

 	
 Commitments.

 


          Subject to
the terms and conditions set forth herein, each Lender severally agrees to make
loans (each such loan, a “Revolving Loan”) to the Borrower in Dollars or
in one or more Alternative Currencies from time to time on any Business Day
during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of such Lender’s Revolving Commitment; provided, however,
that after giving effect to any Borrowing of Revolving Loans, (i) the Total
Revolving Outstandings shall not exceed the Aggregate Revolving Commitments,
(ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Revolving
Commitment and (iii) the aggregate Outstanding Amount of all Loans denominated
in Alternative Currencies shall not exceed the Alternative Currency Sublimit.
Within the limits of each Lender’s Revolving Commitment, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section
2.01, prepay under Section 2.05, and reborrow under this Section
2.01. Revolving Loans may be Base Rate Loans or Eurocurrency Rate Loans, or
a combination thereof, as further provided herein.


29









	
  

 	
  

 
	
 2.02

 	
 Borrowings, Conversions and Continuations of Loans.

 


          (a)          Each
Borrowing, each conversion of Loans from one Type to the other, and each
continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than 11:00 a.m. (i) three (3) Business Days prior to the requested date
of any Borrowing of, conversion to or continuation of, Eurocurrency Rate Loans
denominated in Dollars or of any conversion of Eurocurrency Rate Loans
denominated in Dollars to Base Rate Loans, (ii) four (4) Business Days (or five
(5) Business Days in the case of a Special Notice Currency) prior to the
requested date of any Borrowing or continuation of Eurocurrency Rate Loans
denominated in Alternative Currencies, and (iii) on the requested date of any
Borrowing of Base Rate Loans. Each telephonic notice by the Borrower pursuant
to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion
to or continuation of Eurocurrency Rate Loans shall be in a principal amount of
$2,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as
provided in Sections 2.03(c) and 2.04(c), each Borrowing of or
conversion to Base Rate Loans shall be in a principal amount of $1,000,000 or a
whole multiple of $500,000 in excess thereof. Each Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a
Borrowing, a conversion of Loans from one Type to the other, or a continuation
of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day),
(iii) the principal amount of Loans to be borrowed, converted or continued,
(iv) the Type of Loans to be borrowed or to which existing Loans are to be
converted, (v) if applicable, the duration of the Interest Period with respect
thereto and (vi) the currency of the Loans to be borrowed. If the Borrower
fails to specify a currency in a Loan Notice requesting a Borrowing, then the
Loans so requested shall be made in Dollars. If the Borrower fails to specify a
Type of a Loan in a Loan Notice or if the Borrower fails to give a timely
notice requesting a conversion or continuation, then the applicable Loans shall
be made as, or converted to, Base Rate Loans; provided, however,
that in the case of a failure to timely request a continuation of Loans
denominated in an Alternative Currency, such Loans shall be continued as
Eurocurrency Rate Loans in their original currency with an Interest Period of
one (1) month. Any such automatic conversion to Base Rate Loans shall be
effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurocurrency Rate Loans. If the Borrower requests a Borrowing
of, conversion to, or continuation of Eurocurrency Rate Loans in any Loan
Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one (1) month. No Loan may be converted into or
continued as a Loan denominated in a different currency, but instead must be
prepaid in the original currency of such Loan and reborrowed in the other
currency.


          (b)          Following
receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount (and currency) of its Applicable Percentage of the
applicable Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans or continuation of
Loans denominated in a currency other than Dollars, in each case as described
in the preceding subsection. In the case of a Borrowing, each Lender shall make
the amount of its Loan available to the Administrative Agent in Same Day Funds
at the Administrative Agent’s Office for the applicable currency not later than
1:00 p.m., in the case of any Loan denominated in Dollars, and not later than
the Applicable Time specified by the Administrative Agent in the case of any
Loan in an Alternative Currency, in each case on the Business Day specified in
the applicable Loan Notice. Upon satisfaction of the applicable conditions set
forth in Section 5.03 (and, if such Borrowing is the initial Credit
Extension, Section 5.02), the Administrative Agent shall make all funds
so received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and
acceptable to) the Administrative Agent by the Borrower; provided, however,
that if, on the date the Loan Notice with respect to such Borrowing denominated
in Dollars is given by the Borrower, there are L/C Borrowings outstanding, then
the proceeds of such Borrowing, first, shall be applied to the payment in full
of any such L/C Borrowings and second, shall be made available to the
Borrower as provided above.


30





          (c)          Except
as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of the Interest Period for such Eurocurrency
Rate Loan. During the existence of a Default, no Loans may be requested as,
converted to or continued as Eurocurrency Rate Loans (whether in Dollars or any
Alternative Currency) without the consent of the Required Lenders, and the
Required Lenders may demand that any or all of the then outstanding (i)
Eurocurrency Rate Loans denominated in Dollars be converted immediately to Base
Rate Loans and (ii) Eurocurrency Rate Loans denominated in an Alternative
Currency be prepaid, or redenominated into Dollars in the amount of the Dollar
Equivalent thereof, on the last day of the then current Interest Period with
respect thereto.


          (d)          The
Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurocurrency Rate Loans
upon determination of such interest rate. At any time that Base Rate Loans are
outstanding, the Administrative Agent shall notify the Borrower and the Lenders
of any change in Bank of America’s prime rate used in determining the Base Rate
promptly following the public announcement of such change.


          (e)          After
giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more
than 10 Interest Periods in effect with respect to all Loans.


          (f)          Increase
in Aggregate Revolving Commitments. The Borrower may, at any time and from
time to time, upon prior written notice by the Borrower to the Administrative
Agent, request that the Lenders increase the Aggregate Revolving Commitments
(but not the Letter of Credit Sublimit or the Swing Line Sublimit) by a maximum
aggregate amount of up to FIFTY MILLION DOLLARS ($50,000,000) with additional
Revolving Commitments from any existing Lender with a Revolving Commitment or
new Revolving Commitments from any other Person selected by the Borrower and
acceptable to the Administrative Agent and the L/C Issuer; provided
that:


	
  

 	
  

 
	
  

 	
               (i)          any
 such increases to the Aggregate Revolving Commitments shall be in a minimum
 principal amount of $10,000,000 and in integral multiples of $1,000,000 in
 excess thereof;

 
	
  

 	
  

 
	
  

 	
               (ii)         no
 Default or Event of Default shall exist and be continuing at the time of any
 such increase;

 
	
  

 	
  

 
	
  

 	
               (iii)        no
 existing Lender shall be under any obligation to increase its Revolving
 Commitment and any such decision whether to increase its Revolving Commitment
 shall be in such Lender’s sole and absolute discretion;

 


31









	
  

 	
  

 
	
  

 	
               (iv)         the
 Borrower shall first offer the existing Lenders the opportunity to increase
 their Revolving Commitments on a pro rata basis before any new Lender may be
 offered any of the increase;

 
	
  

 	
  

 
	
  

 	
               (v)          (A)
 any new Lender shall join this Agreement by executing such joinder documents
 required by the Administrative Agent and/or (B) any existing Lender electing
 to increase its Revolving Commitment shall have executed a commitment
 agreement satisfactory to the Administrative Agent; and

 
	
  

 	
  

 
	
  

 	
               (vi)         as
 a condition precedent to such increase, the Borrower shall deliver to the
 Administrative Agent a certificate of each Loan Party dated as of the date of
 such increase (in sufficient copies for each Lender) signed by a Responsible
 Officer of such Loan Party (A) certifying and attaching the resolutions
 adopted by such Loan Party approving or consenting to such increase, and (B)
 in the case of the Borrower, certifying that, before and after giving effect
 to such increase, (x) the representations and warranties contained in Article
 VI and the other Loan Documents are true and correct in all material
 respects on and as of the date of such increase, except to the extent that
 such representations and warranties specifically refer to an earlier date, in
 which case they are true and correct in all material respects as of such
 earlier date, and except that for purposes of this Section 2.02(f),
 the representations and warranties contained in subsections (a) and (b) of Section
 6.05 shall be deemed to refer to the most recent statements furnished
 pursuant to clauses (a) and (b), respectively, of Section 7.01, and
 (y) no Default or Event of Default exists.

 
	
  

 	
  

 
	
  

 	
 The Borrower shall prepay any Loans owing by it and outstanding on
 the date of any such increase (and pay any additional amounts required
 pursuant to Section 3.05) to the extent necessary to keep the
 outstanding Loans ratable with any revised Revolving Commitments arising from
 any nonratable increase in the Revolving Commitments under this Section.

 
	
  

 	
  

 
	
 2.03

 	
 Letters of Credit.

 
	
  

 	
  

 
	
  

 	
 (a)          The Letter of
 Credit Commitment.

 
	
  

 	
  

 
	
  

 	
               (i)          Subject
 to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
 reliance upon the agreements of the Lenders set forth in this Section 2.03,
 (1) from time to time on any Business Day during the period from the Funding
 Date until the Letter of Credit Expiration Date, to issue Letters of Credit
 denominated in Dollars or in one or more Alternative Currencies for
 the account of the Borrower or any of its Subsidiaries, and to amend or
 extend Letters of Credit previously issued by it, in accordance with
 subsection (b) below, and (2) to honor drawings under the Letters of Credit;
 and (B) the Lenders severally agree to participate in Letters of Credit
 issued for the account of the Borrower or its Subsidiaries and any drawings
 thereunder; provided that after giving effect to any L/C Credit
 Extension with respect to any Letter of Credit, (x) the Total Revolving
 Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the
 aggregate Outstanding Amount of the Revolving Loans of any Lender, plus
 such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
 Obligations plus such Lender’s Applicable Percentage of the
 Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
 Revolving Commitment and (z) the Outstanding Amount of the L/C Obligations
 shall not exceed the Letter of Credit Sublimit. Each request by the Borrower
 for the issuance or amendment of a Letter of Credit shall be deemed to be a
 representation by the Borrower that the L/C Credit Extension so requested
 complies with the conditions set forth in the proviso to the preceding
 sentence. Within the foregoing limits, and subject to the terms and
 conditions hereof, the Borrower’s ability to obtain Letters of Credit shall
 be fully revolving, and accordingly the Borrower may, during the foregoing
 period, obtain Letters of Credit to replace Letters of Credit that have
 expired or that have been drawn upon and reimbursed. Furthermore, each Lender
 acknowledges and confirms that it has a participation interest in the
 liability of the L/C Issuer under the Existing Letters of Credit in a
 percentage equal to its Applicable Percentage of the Revolving Loans. The
 Borrower’s reimbursement obligations in respect of the Existing Letters of
 Credit, and each Lender’s obligations in connection therewith, shall be
 governed by the terms of this Agreement.

 


32









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (ii)       The L/C Issuer shall
 not issue any Letter of Credit if:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
             (A)          subject
 to Section 2.03(b)(iii), the expiry date of such requested Letter of
 Credit would occur more than twelve (12) months after the date of issuance or
 last extension, unless the Required Lenders have approved such expiry date;
 or

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
             (B)          the
 expiry date of such requested Letter of Credit would occur after the Letter of
 Credit Expiration Date, unless all the Lenders have approved such expiry
 date. 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (iii)      The L/C Issuer shall
 not be under any obligation to issue any Letter of Credit if:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
             (A)          any
 order, judgment or decree of any Governmental Authority or arbitrator shall
 by its terms purport to enjoin or restrain the L/C Issuer from issuing such
 Letter of Credit, or any Law applicable to the L/C Issuer or any request or
 directive (whether or not having the force of law) from any Governmental
 Authority with jurisdiction over the L/C Issuer shall prohibit, or request
 that the L/C Issuer refrain from, the issuance of letters of credit generally
 or such Letter of Credit in particular or shall impose upon the L/C Issuer
 with respect to such Letter of Credit any restriction, reserve or capital
 requirement (for which the L/C Issuer is not otherwise compensated hereunder)
 not in effect on the Closing Date, or shall impose upon the L/C Issuer any
 unreimbursed loss, cost or expense which was not applicable on the Closing
 Date and which the L/C Issuer in good faith deems material to it;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
             (B)          the
 issuance of such Letter of Credit would violate one or more policies of the
 L/C Issuer applicable to letters of credit generally;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
             (C)          except
 as otherwise agreed by the Administrative Agent and the L/C Issuer, such
 Letter of Credit is in an initial stated amount less than $10,000;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
             (D)          except
 as otherwise agreed by the Administrative Agent and L/C Issuer, such Letter
 of Credit is to be denominated in a currency other than Dollars or an
 Alternative Currency;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
             (E)          the
 L/C Issuer does not as of the issuance date of such requested Letter of
 Credit issue Letters of Credit in the requested currency; or

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
             (F)          any
 Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered
 into arrangements, including the delivery of Cash Collateral, satisfactory to
 the L/C Issuer (in its sole discretion) with the Borrower or such Lender to
 eliminate the L/C Issuer’s actual or potential Fronting Exposure (after
 giving effect to Section 2.15(a)(iv)) with respect to the Defaulting
 Lender arising from either the Letter of Credit then proposed to be issued or
 that Letter of Credit and all other L/C Obligations as to which the L/C
 Issuer has actual or potential Fronting Exposure, as it may elect in its sole
 discretion.

 


33









	
  

 	
  

 	
  

 
	
  

 	
           (iv)         The
 L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not
 be permitted at such time to issue the Letter of Credit in its amended form
 under the terms hereof.

 
	
  

 	
  

 
	
  

 	
           (v)          The
 L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
 the L/C Issuer would have no obligation at such time to issue such Letter of
 Credit in its amended form under the terms hereof, or (B) the beneficiary of
 such Letter of Credit does not accept the proposed amendment to such Letter
 of Credit.

 
	
  

 	
  

 
	
  

 	
           (vi)         The
 L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
 Credit issued by it and the documents associated therewith, and the L/C
 Issuer shall have all of the benefits and immunities (A) provided to the
 Administrative Agent in Article X with respect to any acts taken or
 omissions suffered by the L/C Issuer in connection with Letters of Credit
 issued by it or proposed to be issued by it and Issuer Documents pertaining
 to such Letters of Credit as fully as if the term “Administrative Agent” as
 used in Article X included the L/C Issuer with respect to such acts or
 omissions, and (B) as additionally provided herein with respect to the L/C
 Issuer.

 
	
  

 	
  

 
	
  

 	
 (b)

 	
 Procedures for Issuance and Amendment of Letters of Credit;
 Auto-Extension Letters of Credit.

 
	
  

 	
  

 	
  

 
	
  

 	
           (i)           Each
 Letter of Credit shall be issued or amended, as the case may be, upon the
 request of the Borrower delivered to the L/C Issuer (with a copy to the
 Administrative Agent) in the form of a Letter of Credit Application, appropriately
 completed and signed by a Responsible Officer of the Borrower. Such Letter of
 Credit Application must be received by the L/C Issuer and the Administrative
 Agent not later than 11:00 a.m. at least five (5) Business Days (or such
 later date and time as the Administrative Agent and the L/C Issuer may agree
 in a particular instance in their sole discretion) prior to the proposed
 issuance date or date of amendment, as the case may be. In the case of a
 request for an initial issuance of a Letter of Credit, such Letter of Credit
 Application shall specify in form and detail satisfactory to the L/C Issuer:
 (A) the proposed issuance date of the requested Letter of Credit (which shall
 be a Business Day); (B) the amount and currency thereof; (C) the expiry date
 thereof; (D) the name and address of the beneficiary thereof; (E) the
 documents to be presented by such beneficiary in case of any drawing
 thereunder; (F) the full text of any certificate to be presented by such
 beneficiary in case of any drawing thereunder; (G) the purpose and nature of
 the requested Letter of Credit; and (H) such other matters as the L/C Issuer
 may require. In the case of a request for an amendment of any outstanding
 Letter of Credit, such Letter of Credit Application shall specify in form and
 detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended;
 (B) the proposed date of amendment thereof (which shall be a Business Day);
 (C) the nature of the proposed amendment; and (D) such other matters as the
 L/C Issuer may require. Additionally, the Borrower shall furnish to the L/C
 Issuer and the Administrative Agent such other documents and information
 pertaining to such requested Letter of Credit issuance or amendment,
 including any Issuer Documents, as the L/C Issuer or the Administrative Agent
 may require.

 
	
  

 	
  

 
	
  

 	
           (ii)          Promptly
 after receipt of any Letter of Credit Application, the L/C Issuer will
 confirm with the Administrative Agent (by telephone or in writing) that the
 Administrative Agent has received a copy of such Letter of Credit Application
 from the Borrower and, if not, the L/C Issuer will provide the Administrative
 Agent with a copy thereof. Unless the L/C Issuer has received written notice
 from any Lender, the Administrative Agent or any Loan Party, at least one (1)
 Business Day prior to the requested date of issuance or amendment of the
 applicable Letter of Credit, that one or more applicable conditions contained
 in Article V shall not be satisfied, then, subject to the terms and
 conditions hereof, the L/C Issuer shall, on the requested date, issue a
 Letter of Credit for the account of the Borrower or the applicable Subsidiary
 or enter into the applicable amendment, as the case may be, in each case in
 accordance with the L/C Issuer’s usual and customary business practices.
 Immediately upon the issuance of each Letter of Credit, each Lender shall be
 deemed to, and hereby irrevocably and unconditionally agrees to, purchase
 from the L/C Issuer a risk participation in such Letter of Credit in an amount
 equal to the product of such Lender’s Applicable Percentage times the
 amount of such Letter of Credit.

 


34









	
  

 	
  

 	
  

 
	
  

 	
           (iii)         If
 the Borrower so requests in any applicable Letter of Credit Application, the
 L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit
 that has automatic extension provisions (each, an “Auto-Extension Letter
 of Credit”); provided that any such Auto-Extension Letter of
 Credit must permit the L/C Issuer to prevent any such extension at least once
 in each twelve (12)-month period (commencing with the date of issuance of
 such Letter of Credit) by giving prior notice to the beneficiary thereof not
 later than a day (the “Non-Extension Notice Date”) in each such twelve
 (12)-month period to be agreed upon at the time such Letter of Credit is
 issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not
 be required to make a specific request to the L/C Issuer for any such
 extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders
 shall be deemed to have authorized (but may not require) the L/C Issuer to
 permit the extension of such Letter of Credit at any time to an expiry date
 not later than the Letter of Credit Expiration Date; provided, however,
 that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer
 has determined that it would not be permitted, or would have no obligation,
 at such time to issue such Letter of Credit in its revised form (as extended)
 under the terms hereof (by reason of the provisions of clause (ii) or (iii)
 of Section 2.03(a) or otherwise), or (B) it has received notice (which
 may be by telephone or in writing) on or before the day that is seven (7)
 Business Days before the Non-Extension Notice Date (1) from the
 Administrative Agent that the Required Lenders have elected not to permit
 such extension or (2) from the Administrative Agent, any Lender or the
 Borrower that one or more of the applicable conditions specified in Section
 5.03 is not then satisfied, and in each case directing the L/C Issuer not
 to permit such extension.

 
	
  

 	
  

 
	
  

 	
           (iv)         Promptly
 after its delivery of any Letter of Credit or any amendment to a Letter of
 Credit to an advising bank with respect thereto or to the beneficiary
 thereof, the L/C Issuer will also deliver to the Borrower and the
 Administrative Agent a true and complete copy of such Letter of Credit or
 amendment.

 
	
  

 	
  

 
	
  

 	
 (c)

 	
 Drawings and Reimbursements; Funding of Participations.

 
	
  

 	
  

 	
  

 
	
  

 	
           (i)          Upon
 receipt from the beneficiary of any Letter of Credit of any notice of drawing
 under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
 Administrative Agent thereof. In the case of a Letter of Credit denominated
 in an Alternative Currency, the Borrower shall reimburse the L/C Issuer in
 such Alternative Currency, unless (A) the L/C Issuer (at its option)
 shall have specified in such notice that it will require reimbursement in
 Dollars, or (B) in the absence of any such requirement for reimbursement
 in Dollars, the Borrower shall have notified the L/C Issuer promptly
 following receipt of the notice of drawing that the Borrower will reimburse
 the L/C Issuer in Dollars. In the case of any such reimbursement in Dollars
 of a drawing under a Letter of Credit denominated in an Alternative Currency,
 the L/C Issuer shall notify the Borrower of the Dollar Equivalent of the
 amount of the drawing promptly following the determination thereof. Not
 later than 11:00 a.m. on the date of any payment by the L/C Issuer under a
 Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the
 date of any payment by the L/C Issuer under a Letter of Credit to be
 reimbursed in an Alternative Currency (each such date, an “Honor Date”),
 the Borrower shall reimburse the L/C Issuer through the Administrative Agent
 in an amount equal to the amount of such drawing and in the applicable
 currency. If the Borrower fails to so reimburse the L/C Issuer by
 such time, the Administrative Agent shall promptly notify each Lender of the
 Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in
 the amount of the Dollar Equivalent thereof in the case of a Letter of Credit
 denominated in an Alternative Currency) (the “Unreimbursed Amount”), and
 the amount of such Lender’s Applicable Percentage thereof. In such event, the
 Borrower shall be deemed to have requested a Borrowing of Base Rate Loans to
 be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
 without regard to the minimum and multiples specified in Section 2.02
 for the principal amount of Base Rate Loans, but subject to the conditions
 set forth in Section 5.03 (other than the delivery of a Loan Notice)
 and provided that, after giving effect to such Borrowing, the Total Revolving
 Outstandings shall not exceed the Aggregate Revolving Commitments. Any notice
 given by the L/C Issuer or the Administrative Agent pursuant to this Section
 2.03(c)(i) may be given by telephone if immediately confirmed in writing;
 provided that the lack of such an immediate confirmation shall not affect
 the conclusiveness or binding effect of such notice.

 


35









	
  

 	
  

 
	
  

 	
           (ii)         Each
 Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds
 available (and the Administrative Agent may apply Cash Collateral provided
 for this purpose) to the Administrative Agent for the account of the L/C
 Issuer, in Dollars, at the Administrative Agent’s Office for
 Dollar-denominated payments in an amount equal to its Applicable Percentage
 of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day
 specified in such notice by the Administrative Agent, whereupon, subject to
 the provisions of Section 2.03(c)(iii), each Lender that so makes
 funds available shall be deemed to have made a Base Rate Loan to the Borrower
 in such amount. The Administrative Agent shall remit the funds so received to
 the L/C Issuer in Dollars.

 
	
  

 	
  

 
	
  

 	
           (iii)        With
 respect to any Unreimbursed Amount that is not fully refinanced by a
 Borrowing of Base Rate Loans because the conditions set forth in Section 5.03
 cannot be satisfied or for any other reason, the Borrower shall be deemed to
 have incurred from the L/C Issuer an L/C Borrowing in the amount of the
 Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be
 due and payable on demand (together with interest) and shall bear interest at
 the Default Rate. In such event, each Lender’s payment to the Administrative
 Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii)
 shall be deemed payment in respect of its participation in such L/C Borrowing
 and shall constitute an L/C Advance from such Lender in satisfaction of its
 participation obligation under this Section 2.03.

 
	
  

 	
  

 
	
  

 	
           (iv)        Until
 each Lender funds its Revolving Loan or L/C Advance pursuant to this Section
 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter
 of Credit, interest in respect of such Lender’s Applicable Percentage of such
 amount shall be solely for the account of the L/C Issuer.

 
	
  

 	
  

 
	
  

 	
           (v)         Each
 Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the
 L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this
 Section 2.03(c), shall be absolute and unconditional and shall not be
 affected by any circumstance, including (A) any setoff, counterclaim,
 recoupment, defense or other right which such Lender may have against the L/C
 Issuer, the Borrower or any other Person for any reason whatsoever; (B) the
 occurrence or continuance of a Default, or (C) any other occurrence, event or
 condition, whether or not similar to any of the foregoing; provided, however,
 that each Lender’s obligation to make Revolving Loans pursuant to this Section
 2.03(c) is subject to the conditions set forth in Section 5.03
 (other than delivery by the Borrower of a Loan Notice). No such making of an
 L/C Advance shall relieve or otherwise impair the obligation of the Borrower
 to reimburse the L/C Issuer for the amount of any payment made by the L/C
 Issuer under any Letter of Credit, together with interest as provided herein.

 


36









	
  

 	
  

 	
  

 
	
  

 	
           (vi)         If
 any Lender fails to make available to the Administrative Agent for the
 account of the L/C Issuer any amount required to be paid by such Lender
 pursuant to the foregoing provisions of this Section 2.03(c) by the
 time specified in Section 2.03(c)(ii), then, without limiting the
 other provisions of this Agreement, the L/C Issuer shall be entitled to
 recover from such Lender (acting through the Administrative Agent), on
 demand, such amount with interest thereon for the period from the date such
 payment is required to the date on which such payment is immediately
 available to the L/C Issuer at a rate per annum equal to the applicable
 Overnight Rate from time to time in effect, plus any administrative, processing
 or similar fees customarily charged by the L/C Issuer in connection with the
 foregoing. If such Lender pays such amount (with interest and fees as
 aforesaid), the amount so paid shall constitute such Lender’s Loan included
 in the relevant Borrowing or L/C Advance in respect of the relevant L/C
 Borrowing, as the case may be. A certificate of the L/C Issuer submitted to
 any Lender (through the Administrative Agent) with respect to any amounts
 owing under this clause (vi) shall be conclusive absent manifest error.

 
	
  

 	
  

 
	
  

 	
 (d)

 	
 Repayment of Participations.

 
	
  

 	
  

 	
  

 
	
  

 	
           (i)          At
 any time after the L/C Issuer has made a payment under any Letter of Credit
 and has received from any Lender such Lender’s L/C Advance in respect of such
 payment in accordance with Section 2.03(c), if the Administrative
 Agent receives for the account of the L/C Issuer any payment in respect of
 the related Unreimbursed Amount or interest thereon (whether directly from
 the Borrower or otherwise, including proceeds of Cash Collateral applied
 thereto by the Administrative Agent), the Administrative Agent will
 distribute to such Lender its Applicable Percentage thereof (appropriately
 adjusted, in the case of interest payments, to reflect the period of time
 during which such Lender’s L/C Advance was outstanding) in the same funds as
 those received by the Administrative Agent.

 
	
  

 	
  

 
	
  

 	
           (ii)         If
 any payment received by the Administrative Agent for the account of the L/C
 Issuer pursuant to Section 2.03(c)(i) is required to be returned under
 any of the circumstances described in Section 11.05 (including
 pursuant to any settlement entered into by the L/C Issuer in its discretion),
 each Lender shall pay to the Administrative Agent for the account of the L/C
 Issuer its Applicable Percentage thereof on demand of the Administrative
 Agent, plus interest thereon from the date of such demand to the date
 such amount is returned by such Lender, at a rate per annum equal to the
 applicable Overnight Rate from time to time in effect. The obligations of the
 Lenders under this clause shall survive the payment in full of the
 Obligations and the termination of this Agreement.

 
	
  

 	
  

 
	
           (e)      Obligations Absolute. The obligation of the
 Borrower to reimburse the L/C Issuer for each drawing under each Letter of
 Credit and to repay each L/C Borrowing shall be absolute, unconditional and
 irrevocable, and shall be paid strictly in accordance with the terms of this
 Agreement under all circumstances, including the following:

 
	
  

 	
  

 
	
  

 	
           (i)          any
 lack of validity or enforceability of such Letter of Credit, this Agreement
 or any other Loan Document;

 


37









	
  

 	
  

 	
  

 
	
  

 	
           (ii)          the
 existence of any claim, counterclaim, setoff, defense or other right that the
 Borrower or any Subsidiary may have at any time against any beneficiary or
 any transferee of such Letter of Credit (or any Person for whom any such
 beneficiary or any such transferee may be acting), the L/C Issuer or any
 other Person, whether in connection with this Agreement, the transactions
 contemplated hereby or by such Letter of Credit or any agreement or
 instrument relating thereto, or any unrelated transaction;

 
	
  

 	
  

 
	
  

 	
           (iii)         any
 draft, demand, certificate or other document presented under such 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;
 or any loss or delay in the transmission or otherwise of any document
 required in order to make a drawing under such Letter of Credit;

 
	
  

 	
  

 
	
  

 	
           (iv)         any
 payment by the L/C Issuer under such Letter of Credit against presentation of
 a draft or certificate that does not strictly comply with the terms of such
 Letter of Credit; or any payment made by the L/C Issuer under such Letter of
 Credit to any Person purporting to be a trustee in bankruptcy,
 debtor-in-possession, assignee for the benefit of creditors, liquidator,
 receiver or other representative of or successor to any beneficiary or any
 transferee of such Letter of Credit, including any arising in connection with
 any proceeding under any Debtor Relief Law; 

 
	
  

 	
  

 
	
  

 	
           (v)          any
 adverse change in the relevant exchange rates or in the availability of the
 relevant Alternative Currency to the Borrower or any Subsidiary or in the
 relevant currency markets generally; or

 
	
  

 	
  

 
	
  

 	
           (vi)         any
 other circumstance or happening whatsoever, whether or not similar to any of
 the foregoing, including any other circumstance that might otherwise
 constitute a defense available to, or a discharge of, the Borrower or any
 Subsidiary.

 


The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim
of noncompliance with the Borrower’s instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and
its correspondents unless such notice is given as aforesaid.


          (f)       Role
of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by such Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders or the Required Lenders, as applicable;
(ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended
to, and shall not, preclude the Borrower’s pursuing such rights and remedies as
it may have against the beneficiary or transferee at law or under any other
agreement. None of the L/C Issuer, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of
the L/C Issuer shall be liable or responsible for any of the matters described
in clauses (i) through (vi) of Section 2.03(e); provided, however,
that anything in such clauses to the contrary notwithstanding, the Borrower may
have a claim against the L/C Issuer, and the L/C Issuer may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by the L/C Issuer’s willful misconduct or gross negligence
or the L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit unless
the L/C Issuer is prevented or prohibited from so paying as a result of any
order or directive of any court or other Governmental Authority. In furtherance
and not in limitation of the foregoing, the L/C Issuer may accept documents
that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and the
L/C Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.


38





          (g)          Applicability
of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrower when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), the rules of the ISP shall apply
to each Letter of Credit.


          (h)          Letter
of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, in
Dollars, a Letter of Credit fee (the “Letter of Credit Fee”) for each
Letter of Credit equal to the Applicable Rate times the Dollar
Equivalent of the daily maximum amount available to be drawn under such Letter
of Credit; provided, however, any Letter of Credit Fees otherwise
payable for the account of a Defaulting Lender with respect to any Letter of
Credit as to which such Defaulting Lender has not provided Cash Collateral
satisfactory to the L/C Issuer pursuant to this Section 2.03 shall be
payable, to the maximum extent permitted by applicable Law, to the other
Lenders in accordance with the upward adjustments in their respective
Applicable Percentages allocable to such Letter of Credit pursuant to Section
2.15(a)(iv), with the balance of such fee, if any, payable to the L/C
Issuer for its own account. For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.09. Letter of
Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due
and payable on the first Business Day after the end of each March, June,
September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. If there is any change in the Applicable Rate during any
quarter, the daily amount available to be drawn under each Letter of Credit
shall be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect.
Notwithstanding anything to the contrary contained herein, upon the request of
the Required Lenders while any Event of Default exists, all Letter of Credit
Fees shall accrue at the Default Rate.


          (i)          Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account, in Dollars,
a fronting fee with respect to each Letter of Credit, at the rate per annum
specified in the Administrative Agent Fee Letter, computed on the Dollar
Equivalent of the actual daily maximum amount available to be drawn under such
Letter of Credit (whether or not such maximum amount is then in effect under
such Letter of Credit) and on a quarterly basis in arrears. Such fronting fee
shall be due and payable on the tenth Business Day after the end of each March,
June, September and December in respect of the most recently-ended quarterly
period (or portion thereof, in the case of the first payment), commencing with
the first such date to occur after the issuance of such Letter of Credit, on
the Letter of Credit Expiration Date and thereafter on demand. For purposes of
computing the daily amount available to be drawn under any Letter of Credit,
the amount of such Letter of Credit shall be determined in accordance with Section
1.09. In addition, the Borrower shall pay directly to the L/C Issuer for
its own account, in Dollars, the customary issuance, presentation, amendment
and other processing fees, and other standard costs and charges, of the L/C
Issuer relating to letters of credit as from time to time in effect. Such
customary fees and standard costs and charges are due and payable on demand and
are nonrefundable.


39





          (j)          Conflict
with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.


          (k)          Letters
of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit
issued or outstanding hereunder is in support of any obligations of, or is for
the account of, a Subsidiary, the Borrower shall be obligated to reimburse the
L/C Issuer hereunder for any and all drawings under such Letter of Credit. The
Borrower hereby acknowledges that the issuance of Letters of Credit for the
account of Subsidiaries inures to the benefit of the Borrower, and that the
Borrower’s business derives substantial benefits from the businesses of such
Subsidiaries.


	
  

 	
  

 
	
 2.04

 	
 Swing Line Loans.

 


          (a)          Swing
Line Facility. Subject to the terms and conditions set forth herein, the
Swing Line Lender, in reliance upon the agreements of the other Lenders set
forth in this Section 2.04, may in its sole discretion make loans (each
such loan, a “Swing Line Loan”) to the Borrower in Dollars from time to
time on any Business Day during the Availability Period in an aggregate amount
not to exceed at any time outstanding the amount of the Swing Line Sublimit; provided,
however, that after giving effect to any Swing Line Loan, (i) the Total
Revolving Outstandings shall not exceed the Aggregate Revolving Commitments,
and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender,
plus such Lender’s Applicable Percentage of the Outstanding Amount of
all L/C Obligations, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Revolving Commitment, and provided, further, that the Borrower
shall not use the proceeds of any Swing Line Loan to refinance any outstanding
Swing Line Loan. Within the foregoing limits, and subject to the other terms
and conditions hereof, the Borrower may borrow under this Section 2.04,
prepay under Section 2.05, and reborrow under this Section 2.04.
Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of
a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such
Lender’s Applicable Percentage times the amount of such Swing Line Loan.


          (b)          Borrowing
Procedures. Each Borrowing of Swing Line Loans shall be made upon the
Borrower’s irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by
the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on
the requested borrowing date, and shall specify (i) the amount to be borrowed,
which shall be a minimum principal amount of $500,000 and integral multiples of
$100,000 in excess thereof, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by
delivery to the Swing Line Lender and the Administrative Agent of a written Swing
Line Loan Notice, appropriately completed and signed by a Responsible Officer
of the Borrower. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line
Lender will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by
telephone or in writing) from the Administrative Agent (including at the
request of any Lender) prior to 2:00 p.m. on the date of the proposed Borrowing
of Swing Line Loans (A) directing the Swing Line Lender not to make such Swing
Line Loan as a result of the limitations set forth in the first proviso to the
first sentence of Section 2.04(a), or (B) that one or more of the
applicable conditions specified in Article V is not then satisfied,
then, subject to the terms and conditions hereof, the Swing Line Lender will,
not later than 3:00 p.m. on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to the Borrower.


40









	
  

 	
  

 	
  

 
	
  

 	
 (c)          Refinancing
 of Swing Line Loans.

 
	
  

 	
  

 	
  

 
	
  

 	
               (i)          The
 Swing Line Lender at any time in its sole discretion may request, on behalf
 of the Borrower (which hereby irrevocably requests and authorizes the Swing
 Line Lender to so request on its behalf), that each Lender make a Base Rate
 Loan in an amount equal to such Lender’s Applicable Percentage of the amount
 of Swing Line Loans then outstanding. Such request shall be made in writing
 (which written request shall be deemed to be a Loan Notice for purposes
 hereof) and in accordance with the requirements of Section 2.02,
 without regard to the minimum and multiples specified therein for the
 principal amount of Base Rate Loans, but subject to the conditions set forth
 in Section 5.03 (other than the delivery of a Loan Notice) and
 provided that, after giving effect to such Borrowing, the Total Revolving
 Outstandings shall not exceed the Aggregate Revolving Commitments. The Swing
 Line Lender shall furnish the Borrower with a copy of the applicable Loan
 Notice promptly after delivering such notice to the Administrative Agent.
 Each Lender shall make an amount equal to its Applicable Percentage of the
 amount specified in such Loan Notice available to the Administrative Agent in
 Same Day Funds (and the Administrative Agent may apply Cash Collateral
 available with respect to the applicable Swing Line Loan) for the account of
 the Swing Line Lender at the Administrative Agent’s Office for
 Dollar-denominated payments not later than 1:00 p.m. on the day specified in
 such Loan Notice, whereupon, subject to Section 2.04(c)(ii), each
 Lender that so makes funds available shall be deemed to have made a Base Rate
 Loan to the Borrower in such amount. The Administrative Agent shall remit the
 funds so received to the Swing Line Lender.

 
	
  

 	
  

 
	
  

 	
               (ii)         If
 for any reason any Swing Line Loan cannot be refinanced by such a Borrowing
 of Revolving Loans in accordance with Section 2.04(c)(i), the request
 for Base Rate Loans submitted by the Swing Line Lender as set forth herein
 shall be deemed to be a request by the Swing Line Lender that each of the
 Lenders fund its risk participation in the relevant Swing Line Loan and each
 Lender’s payment to the Administrative Agent for the account of the Swing
 Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in
 respect of such participation.

 
	
  

 	
  

 
	
  

 	
               (iii)        If
 any Lender fails to make available to the Administrative Agent for the
 account of the Swing Line Lender any amount required to be paid by such
 Lender pursuant to the foregoing provisions of this Section 2.04(c) by
 the time specified in Section 2.04(c)(i), the Swing Line Lender shall
 be entitled to recover from such Lender (acting through the Administrative
 Agent), on demand, such amount with interest thereon for the period from the
 date such payment is required to the date on which such payment is
 immediately available to the Swing Line Lender at a rate per annum equal to
 applicable Overnight Rate from time to time in effect, plus any
 administrative, processing or similar fees customarily charged by the Swing
 Line Lender in connection with the foregoing. If such Lender pays such amount
 (with interest and fees as aforesaid), the amount so paid shall constitute
 such Lender’s Loan included in the relevant Borrowing or funded participation
 in the relevant Swing Line Loan, as the case may be. A certificate of the
 Swing Line Lender submitted to any Lender (through the Administrative Agent)
 with respect to any amounts owing under this clause (iii) shall be conclusive
 absent manifest error.

 
	
  

 	
  

 
	
  

 	
               (iv)        Each
 Lender’s obligation to make Revolving Loans or to purchase and fund risk
 participations in Swing Line Loans pursuant to this Section 2.04(c)
 shall be absolute and unconditional and shall not be affected by any
 circumstance, including (A) any setoff, counterclaim, recoupment, defense or
 other right that such Lender may have against the Swing Line Lender, the
 Borrower or any other Person for any reason whatsoever, (B) the occurrence or
 continuance of a Default, or (C) any other occurrence, event or condition,
 whether or not similar to any of the foregoing; provided, however,
 that each Lender’s obligation to make Revolving Loans pursuant to this Section
 2.04(c) is subject to the conditions set forth in Section 5.03. No
 such purchase or funding of risk participations shall relieve or otherwise
 impair the obligation of the Borrower to repay Swing Line Loans, together
 with interest as provided herein.

 


41









	
  

 	
  

 	
  

 
	
  

 	
 (d)          Repayment of
 Participations. 

 
	
  

 	
  

 	
  

 
	
  

 	
               (i)          At
 any time after any Lender has purchased and funded a risk participation in a
 Swing Line Loan, if the Swing Line Lender receives any payment on account of
 such Swing Line Loan, the Swing Line Lender will distribute to such Lender
 its Applicable Percentage of such payment (appropriately adjusted, in the
 case of interest payments, to reflect the period of time during which such
 Lender’s risk participation was funded) in the same funds as those received
 by the Swing Line Lender.

 
	
  

 	
  

 
	
  

 	
              (ii)         If
 any payment received by the Swing Line Lender in respect of principal or
 interest on any Swing Line Loan is required to be returned by the Swing Line
 Lender under any of the circumstances described in Section 11.05
 (including pursuant to any settlement entered into by the Swing Line Lender
 in its discretion), each Lender shall pay to the Swing Line Lender its
 Applicable Percentage thereof on demand of the Administrative Agent, plus
 interest thereon from the date of such demand to the date such amount is
 returned, at a rate per annum equal to the applicable Overnight Rate. The
 Administrative Agent will make such demand upon the request of the Swing Line
 Lender. The obligations of the Lenders under this clause shall survive the
 payment in full of the Obligations and the termination of this Agreement.

 


          (e)           Interest
for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans.
Until each Lender funds its Revolving Loans that are Base Rate Loans or risk
participation pursuant to this Section 2.04 to refinance such Lender’s
Applicable Percentage of any Swing Line Loan, interest in respect of such
Applicable Percentage shall be solely for the account of the Swing Line Lender.


          (f)           Payments
Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing
Line Lender.


	
  

 	
  

 	
  

 
	
 2.05

 	
 Prepayments.

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)          Voluntary Prepayments.

 
	
  

 	
  

 	
  

 
	
  

 	
               (i)          Revolving
 Loans. The Borrower may, upon notice from the Borrower to the
 Administrative Agent, at any time or from time to time voluntarily prepay
 Revolving Loans in whole or in part without premium or penalty; provided
 that (A) such notice must be received by the Administrative Agent not later
 than 11:00 a.m. (1) three (3) Business Days prior to any date of prepayment
 of Eurocurrency Rate Loans denominated in Dollars, (2) four (4) Business Days
 (or five (5), in case of prepayment of Loans denominated in Special Notice
 Currencies) prior to any date of prepayment of Eurocurrency Rate Loans
 denominated in Alternative Currencies and (3) on the date of prepayment of
 Base Rate Loans; (B) any such prepayment of Eurocurrency Rate Loans
 denominated in Dollars shall be in a principal amount of $2,000,000 or
 a whole multiple of $1,000,000 in excess thereof (or, if less, the entire
 principal amount thereof then outstanding); (C) any prepayment of
 Eurocurrency Rate Loans denominated in Alternative Currencies shall be in a
 minimum principal amount of $5,000,000 or a whole multiple of $1,000,000 in
 excess thereof (or, if less, the entire principal amount thereof then
 outstanding); and (D) any prepayment of Base Rate Loans shall be in a
 principal amount of $1,000,000 or a whole multiple of $500,000 in excess
 thereof (or, if less, the entire principal amount thereof then outstanding).
 Each such notice shall specify the date and amount of such prepayment and the
 Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify
 each Lender of its receipt of each such notice, and of the amount of such
 Lender’s Applicable Percentage of such prepayment. If such notice is given by
 the Borrower, the Borrower shall make such prepayment and the payment amount
 specified in such notice shall be due and payable on the date specified
 therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by
 all accrued interest on the amount prepaid, together with any additional
 amounts required pursuant to Section 3.05. Subject to Section 2.15,
 each such prepayment shall be applied to the Loans of the Lenders in
 accordance with their respective Applicable Percentages.

 


42









	
  

 	
  

 	
  

 
	
  

 	
               (ii)         Swing
 Line Loans. The Borrower may, upon notice to the Swing Line Lender (with a
 copy to the Administrative Agent), at any time or from time to time,
 voluntarily prepay Swing Line Loans in whole or in part without premium or
 penalty; provided that (i) such notice must be received by the Swing
 Line Lender and the Administrative Agent not later than 1:00 p.m. on the date
 of the prepayment, and (ii) any such prepayment shall be in a minimum
 principal amount of $500,000 or a whole multiple of $100,000 in excess
 thereof (or, if less, the entire principal thereof then outstanding). Each such
 notice shall specify the date and amount of such prepayment. If such notice
 is given by the Borrower, the Borrower shall make such prepayment and the
 payment amount specified in such notice shall be due and payable on the date
 specified therein.

 
	
  

 	
  

 
	
  

 	
 (b)          Mandatory Prepayments of Loans.

 
	
  

 	
  

 	
  

 
	
  

 	
               (i)          (A)
 Revolving Commitments. If for any reason the Total Revolving
 Outstandings at any time exceed the Aggregate Revolving Commitments then in
 effect, the Borrower shall immediately prepay Revolving Loans and/or the
 Swing Line Loans and/or Cash Collateralize the L/C Obligations in an
 aggregate amount equal to such excess; provided, however, that
 the Borrower shall not be required to Cash Collateralize the L/C Obligations
 pursuant to this Section 2.05(b)(i) unless after the prepayment in
 full of the Revolving Loans and the Swing Line Loans the Total Revolving
 Outstandings exceed the Aggregate Revolving Commitments then in effect. The
 Administrative Agent may, at any time and from time to time after the initial
 deposit of such Cash Collateral, request that additional Cash Collateral be
 provided in order to protect against the results of further exchange rate
 fluctuations.

 
	
  

 	
  

 
	
  

 	
                         (B)
 If the Administrative Agent notifies the Borrower at any time that the
 Outstanding Amount of all Loans denominated in Alternative Currencies at such
 time exceeds an amount equal to one hundred and five percent (105%) of the
 Alternative Currency Sublimit then in effect, then, within two (2) Business
 Days after receipt of such notice, the Borrower shall prepay Loans in an
 aggregate amount sufficient to reduce such Outstanding Amount as of such date
 of payment to an amount not to exceed one
 hundred percent (100%) of the Alternative Currency Sublimit then in effect.

 
	
  

 	
  

 
	
  

 	
               (ii)         Application
 of Mandatory Prepayments. All amounts required to be paid pursuant to this Section
 2.05(b) shall be applied to Revolving Loans and Swing Line Loans and
 (after all Revolving Loans and Swing Line Loans have been repaid) to Cash
 Collateralize L/C Obligations.

 
	
  

 	
  

 
	
  

 	
 Within the parameters of the applications
 set forth above, prepayments shall be applied first to Base Rate Loans and
 then to Eurocurrency Rate Loans in direct order of Interest Period
 maturities. All prepayments under this Section 2.05(b) shall be
 subject to Section 3.05,
 but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount
 prepaid through the date of prepayment.

 


43









	
  

 	
  

 
	
 2.06

 	
 Termination or Reduction of Aggregate Revolving
 Commitments.

 


          (a)          Optional
Reductions. The Borrower may, upon notice to the Administrative Agent,
terminate the Aggregate Revolving Commitments, or from time to time permanently
reduce the Aggregate Revolving Commitments to an amount not less than the
Outstanding Amount of Revolving Loans, Swing Line Loans and L/C Obligations; provided
that (i) any such notice shall be received by the Administrative Agent not
later than 12:00 noon five (5) Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount
of $2,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii)
the Borrower shall not terminate or reduce (A) the Aggregate Revolving
Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Revolving Outstandings would exceed the Aggregate
Revolving Commitments, (B) the Letter of Credit Sublimit if, after giving
effect thereto, the Outstanding Amount of L/C Obligations not fully Cash
Collateralized hereunder would exceed the Letter of Credit Sublimit, (C) the
Swing Line Sublimit if, after giving effect thereto and to any concurrent
prepayments hereunder, the Outstanding Amount of Swing Line Loans would exceed
the Swing Line Sublimit or (D) the Alternative Currency Sublimit if, after
giving effect thereto and to any concurrent prepayments hereunder, the
Outstanding Amount of all Revolving Loans denominated in an Alternative
Currency would exceed the Alternative Currency Sublimit then in effect.


          (b)          Mandatory
Reductions. If after giving effect to any reduction or termination of
Revolving Commitments under this Section 2.06, the Letter of Credit
Sublimit, the Swing Line Sublimit or the Alternative Currency Sublimit exceed
the Aggregate Revolving Commitments at such time, the Letter of Credit
Sublimit, the Swing Line Sublimit, or the Alternative Currency Sublimit, as the
case may be, shall be automatically reduced by the amount of such excess.


          (c)          Notice.
The Administrative Agent will promptly notify the Lenders of any termination or
reduction of the Letter of Credit Sublimit, the Swing Line Sublimit, the
Alternative Currency Sublimit or the Aggregate Revolving Commitments under this
Section 2.06. Upon any reduction of the Aggregate Revolving Commitments,
the Revolving Commitment of each Lender shall be reduced by such Lender’s
Applicable Percentage of such reduction amount. All fees in respect of the
Aggregate Revolving Commitments accrued until the effective date of any
termination of the Aggregate Revolving Commitments shall be paid on the
effective date of such termination.


	
  

 	
  

 
	
 2.07

 	
 Repayment of Loans.

 


          (a)          Revolving
Loans. The Borrower shall repay to the Lenders on the Maturity Date the
aggregate principal amount of all Revolving Loans outstanding on such date.


          (b)          Swing
Line Loans. The Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) the date within one (1) Business Day of demand therefor by the
Swing Line Lender and (ii) the Maturity Date.


	
  

 	
  

 
	
 2.08

 	
 Interest.

 


          (a)          Subject
to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan
shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the sum of the Eurocurrency Rate
for such Interest Period plus the Applicable Rate plus (in the
case of a Eurocurrency Rate Loan of any Lender which is lent from a Lending
Office in the United Kingdom or a Participating Member State) the Mandatory
Cost, (ii) each Base Rate Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate plus the Applicable Rate and (iii) each Swing Line Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate.


44









	
  

 	
  

 
	
  

 	
 (b)         (i)          If
 any amount of principal of any Loan is not paid when due (without regard to
 any applicable grace periods), whether at stated maturity, by acceleration or
 otherwise, such amount shall thereafter bear interest at a fluctuating
 interest rate per annum at all times equal to the Default Rate to the fullest
 extent permitted by applicable Laws.

 
	
  

 	
  

 
	
  

 	
               (ii)          If
 any amount (other than principal of any Loan) payable by the Borrower under
 any Loan Document is not paid when due (after giving effect to any applicable
 grace period), whether at stated maturity, by acceleration or otherwise, then
 such amount shall thereafter bear interest at a fluctuating interest rate per
 annum at all times equal to the Default Rate to the fullest extent permitted
 by applicable Laws.

 
	
  

 	
  

 
	
  

 	
               (iii)         Upon
 the request of the Required Lenders, while any Event of Default exists, the
 Borrower shall pay interest on the principal amount of all outstanding
 Obligations hereunder at a fluctuating interest rate per annum at all times
 equal to the Default Rate to the fullest extent permitted by applicable Laws.
 

 
	
  

 	
  

 
	
  

 	
               (iv)         Accrued
 and unpaid interest on past due amounts (including interest on past due
 interest) shall be due and payable upon demand.

 


          (c)           Interest
on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms hereof before
and after judgment, and before and after the commencement of any proceeding
under any Debtor Relief Law.


	
  

 	
  

 
	
 2.09

 	
 Fees.

 
	
  

 	
  

 
	
  

 	
 In addition
 to certain fees described in subsections (h) and (i) of Section 2.03:

 
	
  

 	
  

 
	
  

 	
               (a)          Commitment
 Fee. The Borrower shall pay to the Administrative Agent, for the account
 of each Lender in accordance with its Applicable Percentage, a commitment fee
 in Dollars (the “Commitment Fee”) at a rate per annum equal to the
 product of (i) the Applicable Rate times (ii) the actual daily amount
 by which the Aggregate Revolving Commitments exceed the sum of (y) the
 Outstanding Amount of Revolving Loans and (z) the Outstanding Amount of L/C
 Obligations, subject to adjustment as provided in Section 2.15. The
 Commitment Fee shall accrue at all times during the Availability Period,
 including at any time during which one or more of the conditions in Article
 V is not met, and shall be due and payable quarterly in arrears on the
 last Business Day of each March, June, September and December, commencing
 with the first such date to occur after the Funding Date, and on the Maturity
 Date; provided, that (A) no Commitment Fee shall accrue on the
 Revolving Commitment of a Defaulting Lender so long as such Lender shall be a
 Defaulting Lender and (B) any Commitment Fee accrued with respect to the
 Revolving Commitment of a Defaulting Lender during the period prior to the
 time such Lender became a Defaulting Lender and unpaid at such time shall not
 be payable by the Borrower so long as such Lender shall be a Defaulting
 Lender. The Commitment Fee shall be calculated quarterly in arrears, and if
 there is any change in the Applicable Rate during any quarter, the actual
 daily amount shall be computed and multiplied by the Applicable Rate
 separately for each period during such quarter that such Applicable Rate was
 in effect. For purposes of clarification, Swing Line Loans shall not be
 considered outstanding for purposes of determining the unused portion of the
 Aggregate Revolving Commitments.

 


45









	
  

 	
  

 
	
  

 	
              (b)          Fee
 Letter. The Borrower shall pay to the Administrative Agent the fees in
 the amounts and at the times specified in the Administrative Agent Fee
 Letter. Such fees shall be fully earned when paid and shall be non-refundable
 for any reason whatsoever.

 
	
  

 	
  

 
	
 2.10

 	
 Computation of Interest and Fees; Retroactive
 Adjustments of Applicable Rate.

 


          (a)          All
computations of interest for Base Rate Loans (including Base Rate Loans
determined by reference to the Eurocurrency Rate) shall be made on the basis of
a year of 365 or 366 days, as the case may be, and actual days elapsed. All
other computations of fees and interest shall be made on the basis of a 360-day
year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year) or, in
the case of interest in respect of Loans denominated in Alternative Currencies
as to which market practice differs from the foregoing, in accordance with such
market practice. Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided that any Loan
that is repaid on the same day on which it is made shall, subject to Section
2.12(a), bear interest for one (1) day. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.


          (b)          If, as a result of any restatement of or
other adjustment to the financial statements of the Borrower or for any other
reason, the Borrower or the Lenders determine that (i) the Consolidated
Leverage Ratio as calculated by the Borrower as of any applicable date was
inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio
would have resulted in higher pricing for such period, the Borrower shall
immediately and retroactively be obligated to pay to the Administrative Agent
for the account of the applicable Lenders or the L/C Issuer, as the case may
be, promptly on demand by the Administrative Agent (or, after the occurrence of
an actual or deemed entry of an order for relief with respect to the Borrower
under the Bankruptcy Code of the United States, automatically and without
further action by the Administrative Agent, any Lender or the L/C Issuer), an
amount equal to the excess of the amount of interest and fees that should have
been paid for such period over the amount of interest and fees actually paid
for such period. This paragraph shall not limit the rights of the
Administrative Agent, any Lender or the L/C Issuer, as the case may be, under Section
2.03(c)(iii), 2.03(i) or 2.08(b) or under Article IX.
The Borrower’s obligations under this paragraph shall survive the termination
of the Revolving Commitments of all of the Lenders and the repayment of all
other Obligations hereunder.


	
  

 	
  

 
	
 2.11

 	
 Evidence of Debt.

 


          (a)          The
Credit Extensions made by each Lender shall be evidenced by one or more accounts
or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Credit Extensions made by the Lenders to the Borrower and
the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error. Upon the request of any Lender made
through the Administrative Agent, the Borrower shall execute and deliver to
such Lender (through the Administrative Agent) a promissory note, which shall
evidence such Lender’s Loans in addition to such accounts or records. Each such
promissory note shall (i) in the case of Revolving Loans, be in the form of Exhibit
C (a “Revolving Note”) and (ii) in the case of Swing Line Loans, be
in the form of Exhibit D (a “Swing Line Note”). Each Lender may
attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount, currency and maturity of its Loans and payments with
respect thereto.


46





          (b)          In
addition to the accounts and records referred to in subsection (a), each Lender
and the Administrative Agent shall maintain in accordance with its usual
practice accounts or records evidencing the purchases and sales by such Lender
of participations in Letters of Credit and Swing Line Loans. In the event of
any conflict between the accounts and records maintained by the Administrative
Agent and the accounts and records of any Lender in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error.


	
  

 	
  

 
	
 2.12

 	
 Payments Generally; Administrative Agent’s Clawback.

 


          (a)          General.
All payments to be made by the Borrower shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise
expressly provided herein and except with respect to principal of and interest
on Loans denominated in an Alternative Currency, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the applicable
Administrative Agent’s Office in Dollars and in Same Day Funds not later than
2:00 p.m. on the date specified herein. Except as otherwise expressly provided
herein, all payments by the Borrower hereunder with respect to principal and
interest on Loans denominated in an Alternative Currency shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the applicable Administrative Agent’s Office in such Alternative
Currency and in Same Day Funds not later than the Applicable Time specified by
the Administrative Agent on the dates specified herein. Without limiting the
generality of the foregoing, the Administrative Agent may require that any
payments due under this Agreement be made in the United States. If, for any
reason, the Borrower is prohibited by any Law from making any required payment
hereunder in an Alternative Currency, the Borrower shall make such payment in
Dollars in the Dollar Equivalent of the Alternative Currency payment amount.
The Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (or other applicable share as provided herein) of such payment in
like funds as received by wire transfer to such Lender’s Lending Office. All
payments received by the Administrative Agent (i) after 2:00 p.m., in
the case of payments in Dollars, or (ii) after the Applicable Time
specified by the Administrative Agent in the case of payments in an Alternative
Currency, shall in each case be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue. Subject to the
definition of “Interest Period”, if any payment to be made by the Borrower
shall come due on a day other than a Business Day, payment shall be made on the
next following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.


	
  

 	
  

 
	
  

 	
 (b)          (i)          Funding
 by Lenders; Presumption by Administrative Agent. Unless the
 Administrative Agent shall have received notice from a Lender prior to the
 proposed date of any Borrowing of Eurocurrency Rate Loans (or, in the case of
 any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such
 Borrowing) that such Lender will not make available to the Administrative
 Agent such Lender’s share of such Borrowing, the Administrative Agent may
 assume that such Lender has made such share available on such date in
 accordance with Section 2.02 (or, in the case of any Borrowing of Base
 Rate Loans, that such Lender has made such share available in accordance with
 and at the time required by Section 2.02) and may, in reliance upon
 such assumption, make available to the Borrower a corresponding amount. In
 such event, if a Lender has not in fact made its share of the applicable
 Borrowing available to the Administrative Agent, then the applicable Lender
 and the Borrower severally agree to pay to the Administrative Agent forthwith
 on demand such corresponding amount in Same Day Funds with interest thereon,
 for each day from and including the date such amount is made available to the
 Borrower to but excluding the date of payment to the Administrative Agent, at
 (A) in the case of a payment to be made by such Lender, the Overnight Rate, plus
 any administrative processing or similar fees customarily charged by the
 Administrative Agent in connection with the foregoing and (B) in the case of
 a payment to be made by the Borrower, the interest rate applicable to Base
 Rate Loans. If the Borrower and such Lender shall pay such interest to the
 Administrative Agent for the same or an overlapping period, the
 Administrative Agent shall promptly remit to the Borrower the amount of such
 interest paid by the Borrower for such period. If such Lender pays its share
 of the applicable Borrowing to the Administrative Agent, then the amount so
 paid shall constitute such Lender’s Loan included in such Borrowing. Any
 payment by the Borrower shall be without prejudice to any claim the Borrower
 may have against a Lender that shall have failed to make such payment to the
 Administrative Agent.

 


47









	
  

 	
  

 
	
  

 	
               (ii)         Payments
 by Borrower; Presumptions by Administrative Agent. Unless the
 Administrative Agent shall have received notice from the Borrower prior to
 the date on which any payment is due to the Administrative Agent for the
 account of the Lenders or the L/C Issuer hereunder that the Borrower will not
 make such payment, the Administrative Agent may assume that the Borrower has
 made such payment on such date in accordance herewith and may, in reliance
 upon such assumption, distribute to the Lenders or the L/C Issuer, as the
 case may be, the amount due. In such event, if the Borrower has not in fact
 made such payment, then each of the Lenders or the L/C Issuer, as the case
 may be, severally agrees to repay to the Administrative Agent forthwith on
 demand the amount so distributed to such Lender or the L/C Issuer, in Same
 Day Funds 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 the
 Administrative Agent, at the Overnight Rate.

 
	
  

 	
  

 
	
  

 	
               A notice
 of the Administrative Agent to any Lender or the Borrower with respect to any
 amount owing under this subsection (b) shall be conclusive, absent manifest
 error.

 


          (c)          Failure
to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided
in the foregoing provisions of this Article II, and such funds are not
made available to the Borrower by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article V are
not satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.


          (d)          Obligations
of Lenders Several. The obligations of the Lenders hereunder to make Loans,
to fund participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 11.04(c) are several and not joint. The
failure of any Lender to make any Loan, to fund any such participation or to
make any payment under Section 11.04(c) on any date required hereunder
shall not relieve any other Lender of its corresponding obligation to do so on
such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Loan, to purchase its participation or to make its
payment under Section 11.04(c).


          (e)          Funding
Source. Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.


48









	
  

 	
  

 
	
 2.13

 	
 Sharing of Payments by Lenders.

 


          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 the Loans
made by it, or the participations in L/C Obligations or in Swing Line Loans
held by it (excluding any amounts applied by the Swing Line Lender to
outstanding Swing Line Loans) resulting in such Lender’s receiving payment of a
proportion of the aggregate amount of such Loans or participations and accrued
interest thereon greater than its pro rata share thereof as
provided herein, then the Lender receiving such greater proportion shall (a)
notify the Administrative Agent of such fact, and (b) purchase (for cash at
face value) participations in the Loans and subparticipations in L/C
Obligations and Swing Line Loans 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 or subparticipations are purchased and all or any
 portion of the payment giving rise thereto is recovered, such participations
 or subparticipations shall be rescinded and the purchase price restored to
 the extent of such recovery, without interest; and

 
	
  

 	
  

 
	
  

 	
               (ii)         the
 provisions of this Section shall not be construed to apply to (x) any payment
 made by or on behalf of the Borrower pursuant to and in accordance with the
 express terms of this Agreement (including the application of funds arising
 from the existence of a Defaulting Lender), (y) the application of Cash
 Collateral provided for in Section 2.14 or (z) any payment obtained by
 a Lender as consideration for the assignment of or sale of a participation in
 any of its Loans or subparticipations in L/C Obligations or Swing Line Loans
 to any assignee or participant, other than an assignment to the Borrower or
 any Subsidiary thereof (as to which the provisions of this Section shall
 apply).

 


          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 such Loan Party rights of
setoff and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of such Loan Party in the amount of such
participation.


	
  

 	
  

 
	
 2.14

 	
 Cash Collateral.

 


          (a)          Certain
Credit Support Events. Upon the request of the Administrative Agent or the
L/C Issuer (i) if the L/C Issuer has honored any full or partial drawing
request under any Letter of Credit and such drawing has resulted in an L/C
Borrowing or (ii) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Borrower shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations. At any time that there shall exist a Defaulting Lender,
immediately upon the request of the Administrative Agent, the L/C Issuer or the
Swing Line Lender, the Borrower shall deliver to the Administrative Agent Cash
Collateral in an amount sufficient to cover all Fronting Exposure (after giving
effect to Section 2.15(a)(iv) and any Cash Collateral provided by the
Defaulting Lender). The Administrative Agent may, at any time and from time to
time after the initial deposit of such Cash Collateral, request that additional
Cash Collateral be provided in order to protect against the results of further
exchange rate fluctuations.


          (b)          Grant
of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked,
non-interest bearing deposit accounts at the Administrative Agent. The
Borrower, and to the extent provided by any Lender, such Lender, hereby grants
to (and subjects to the control of) the Administrative Agent, for the benefit
of the Administrative Agent, the L/C Issuer and the Lenders (including the
Swing Line Lender) and agrees to maintain, a first priority security interest
in all such cash, deposit accounts and all balances therein, and all other
property so provided as collateral pursuant hereto, and in all balances
therein, and all other property so provided as collateral pursuant hereto, and
in all proceeds of the foregoing, all as security for the obligations to which
such Cash Collateral may be applied pursuant to Section 2.14(c). If at
any time the Administrative Agent determines that Cash Collateral is subject to
any right or claim of any Person other than the Administrative Agent as herein
provided, or that the total amount of such Cash Collateral is less than the
applicable Fronting Exposure and other obligations secured thereby, the
Borrower or the relevant Defaulting Lender will, promptly upon demand by the
Administrative Agent, pay or provide to the Administrative Agent additional
Cash Collateral in an amount sufficient to eliminate such deficiency.


49





          (c)          Application.
Notwithstanding anything to the contrary contained in this Agreement, Cash
Collateral provided under any of this Section 2.14 or Sections 2.03,
2.04, 2.05, 2.15 or 9.02 in respect of Letters of
Credit or Swing Line Loans shall be held and applied in satisfaction of the
specific L/C Obligations, Swing Line Loans, obligations to fund participations
therein (including, as to Cash Collateral provided by a Defaulting Lender, any
interest accrued on such obligation) and other obligations for which the Cash
Collateral was so provided, prior to any other application of such property as
may be provided herein.


          (d)          Release.
Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i)
the elimination of the applicable Fronting Exposure or other obligations giving
rise thereto (including by the termination of Defaulting Lender status of the
applicable Lender) or (ii) the Administrative Agent’s good faith determination
that there exists excess Cash Collateral; provided, however, (x)
that Cash Collateral furnished by or on behalf of a Loan Party shall not be
released during the continuance of a Default or Event of Default (and following
application as provided in this Section 2.14 may be otherwise applied in
accordance with Section 9.03) and (y) the Person providing Cash
Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree
that Cash Collateral shall not be released but instead held to support future
anticipated Fronting Exposure or other obligations.


	
  

 	
  

 
	
 2.15

 	
 Defaulting Lenders.

 


          (a)          Adjustments.
Notwithstanding anything to the contrary contained in this Agreement, if any
Lender becomes a Defaulting Lender, then, until such time as that Lender is no
longer a Defaulting Lender, to the extent permitted by applicable Law:


	
  

 	
  

 
	
  

 	
               (i)          Waivers
 and Amendment. The Defaulting Lender’s right to approve or disapprove any
 amendment, waiver or consent with respect to this Agreement shall be
 restricted as set forth in Section 11.01.

 
	
  

 	
  

 
	
  

 	
               (ii)         Reallocation
 of Payments. Any payment of principal, interest, fees or other amount
 received by the Administrative Agent for the account of that Defaulting
 Lender (whether voluntary or mandatory, at maturity, pursuant to Article
 IX or otherwise, and including any amounts made available to the
 Administrative Agent by that Defaulting Lender pursuant to Section 11.08),
 shall be applied at such time or times as may be determined by the
 Administrative Agent as follows: first, to the payment of any amounts
 owing by that Defaulting Lender to the Administrative Agent hereunder; second,
 to the payment on a pro rata basis of any amounts owing by that
 Defaulting Lender to the L/C Issuer or Swing Line Lender hereunder; third,
 if so determined by the Administrative Agent or requested by the L/C Issuer
 or Swing Line Lender, to be held as Cash Collateral for future funding
 obligations of that Defaulting Lender of any participation in any Swing Line
 Loan or Letter of Credit; fourth, as the Borrower may request (so long
 as no Default or Event of Default exists), to the funding of any Loan in
 respect of which that Defaulting Lender has failed to fund its portion
 thereof as required by this Agreement, as determined by the Administrative
 Agent; fifth, if so determined by the Administrative Agent and the
 Borrower, to be held in an interest bearing deposit account and released in
 order to satisfy obligations of that Defaulting Lender to fund Loans under
 this Agreement; sixth, to the payment of any amounts owing to the
 Lenders, the L/C Issuer or Swing Line Lender as a result of any judgment of a
 court of competent jurisdiction obtained by any Lender, the L/C Issuer or
 Swing Line Lender against that Defaulting Lender as a result of that
 Defaulting Lender’s breach of its obligations under this Agreement; seventh,
 so long as no Default or Event of Default exists, to the payment of any
 amounts owing to the Borrower as a result of any judgment of a court of
 competent jurisdiction obtained by the Borrower against that Defaulting
 Lender as a result of that Defaulting Lender’s breach of its obligations
 under this Agreement; and eighth, to that Defaulting Lender or as
 otherwise directed by a court of competent jurisdiction; provided, that,
 if (x) such payment is a payment of the principal amount of any Loans or L/C
 Borrowings in respect of which that Defaulting Lender has not fully funded
 its appropriate share and (y) such Loans or L/C Borrowings were made at a
 time when the conditions set forth in Section 5.03 were satisfied or
 waived, such payment shall be applied solely to the pay the Loans of, and L/C
 Borrowings owed to, all non-Defaulting Lenders on a pro rata
 basis prior to being applied to the payment of any Loans of, or L/C
 Borrowings owed to, that Defaulting Lender. Any payments, prepayments or
 other amounts paid or payable to a Defaulting Lender that are applied (or
 held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral
 pursuant to this Section 2.15(a)(ii) shall be deemed paid to and
 redirected by that Defaulting Lender, and each Lender irrevocably consents
 hereto.

 


50









	
  

 	
  

 
	
  

 	
               (iii)          Certain
 Fees. The Defaulting Lender (x) shall not be entitled to receive any
 Commitment Fee pursuant to Section 2.09(a) for any period during which
 such Lender is a Defaulting Lender (and the Borrower shall not be required to
 pay any such fee that otherwise would have been required to have been paid to
 such Defaulting Lender) and (y) shall be limited in its right to receive
 Letter of Credit Fees as provided in Section 2.03(h).

 
	
  

 	
  

 
	
  

 	
               (iv)          Reallocation
 of Applicable Percentages to Reduce Fronting Exposure. During any period
 in which there is a Defaulting Lender, for purposes of computing the amount
 of the obligation of each non-Defaulting Lender to acquire, refinance or fund
 participations in Letters of Credit or Swing Line Loans pursuant to Sections
 2.03 and 2.04, the “Applicable Percentage” of each non-Defaulting
 Lender shall be computed without giving effect to the Revolving Commitment of
 that Defaulting Lender; provided, that, (x) each such
 reallocation shall be given effect only if, at the date the applicable Lender
 becomes a Defaulting Lender, (I) no Default or Event of Default exists and
 (II) the condition set forth in Section 5.03(a) is satisfied at such time
 (and, unless the Borrower shall have otherwise notified the Administrative
 Agent at the time, the Borrower shall be deemed to have represented and
 warranted that such condition is satisfied at such time); and (y) the
 aggregate obligation of each non-Defaulting Lender to acquire, refinance or
 fund participations in Letters of Credit and Swing Line Loans shall not
 exceed the positive difference, if any, of (1) the Revolving Commitment of
 that non-Defaulting Lender minus (2) the aggregate Outstanding Amount
 of the Revolving Loans of that Lender.

 


          (b)          Defaulting
Lender Cure. If the Borrower, the Administrative Agent, Swing Line Lender
and the L/C Issuer agree in writing in their sole discretion that a Defaulting
Lender should no longer be deemed to be a Defaulting Lender, the Administrative
Agent will so notify the parties hereto, whereupon as of the effective date
specified in such notice and subject to any conditions set forth therein (which
may include arrangements with respect to any Cash Collateral), that Lender
will, to the extent applicable, purchase that portion of outstanding Loans of
the other Lenders or take such other actions as the Administrative Agent may
determined to be necessary to cause the Revolving Loans and funded and unfunded
participations in Letters of Credit and Swing Line Loans to be held on a pro
rata basis by the Lenders in accordance with their Applicable
Percentages (without giving effect to Section 2.15(a)(iv)), whereupon
that Lender will cease to be a Defaulting Lender; provided, that,
no adjustments will be made retroactively with respect to fees accrued or
payments made by or on behalf of the Borrower while that Lender was a
Defaulting Lender; provided, further, that, except to the
extent otherwise expressly agreed by the affected parties, no change hereunder
from Defaulting Lender to Lender will constitute a waiver or release of any
claim of any party hereunder arising from that Lender having been a Defaulting
Lender.


51





ARTICLE
III


TAXES, YIELD PROTECTION AND
ILLEGALITY


	
  

 	
  

 
	
 3.01

 	
 Taxes.

 


          (a)          Payments
Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. (i)
Any and all payments by or on account of any obligation of the Loan Parties
hereunder or under any other Loan Document shall to the extent permitted by
applicable Laws be made free and clear of and without reduction or withholding
for any Taxes. If, however, applicable Laws require the Borrower or the
Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld
or deducted in accordance with such Laws as determined by the Borrower or the
Administrative Agent, as the case may be, upon the basis of the information and
documentation to be delivered pursuant to subsection (e) below. 


          (ii)          If
the Borrower or the Administrative Agent shall be required by the Internal
Revenue Code to withhold or deduct any Taxes, including both United States
Federal backup withholding and withholding taxes, from any payment, then (A)
the Administrative Agent shall withhold or make such deductions as are
determined by the Administrative Agent to be required based upon the
information and documentation it has received pursuant to subsection (e) below,
(B) the Administrative Agent shall timely pay the full amount withheld or
deducted to the relevant Governmental Authority in accordance with the Internal
Revenue Code, and (C) to the extent that the withholding or deduction is made
on account of Indemnified Taxes or Other Taxes, the sum payable by the Borrower
shall be increased as necessary so that after any required withholding or the
making of all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
L/C Issuer, as the case may be, receives an amount equal to the sum it would
have received had no such withholding or deduction been made.


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


          (c)          Tax
Indemnifications. (i)Without limiting the provisions of subsection (a) or
(b) above, the Loan Parties shall, and do hereby, jointly and severally,
indemnify the Administrative Agent, each Lender and the L/C Issuer, and shall
make payment in respect thereof within ten (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) withheld or deducted by the Borrower or the Administrative
Agent paid by the Administrative Agent, such Lender or the L/C Issuer, as the
case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. The Loan Parties shall also, and do hereby, jointly and
severally, indemnify the Administrative Agent, and shall make payment in
respect thereof within ten (10) days after demand therefor, for any amount
which a Lender or the L/C Issuer for any reason fails to pay indefeasibly to
the Administrative Agent as required by clause (ii) of this subsection. A
certificate as to the amount of any such payment or liability delivered to the
Borrower by a Lender or the L/C Issuer (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on behalf of a
Lender or the L/C Issuer, shall be conclusive absent manifest error.


52





          (ii)          Without
limiting the provisions of subsection (a) or (b) above, each Lender and the L/C
Issuer shall, and does hereby, indemnify the Borrower and the Administrative
Agent, and shall make payment in respect thereof within ten (10) days after
demand therefor, against any and all Taxes and any and all related losses,
claims, liabilities, penalties, interest and expenses (including the fees,
charges and disbursements of any counsel for the Borrower or the Administrative
Agent) incurred by or asserted against the Borrower or the Administrative Agent
by any Governmental Authority as a result of the failure by such Lender or the
L/C Issuer, as the case may be, to deliver, or as a result of the inaccuracy,
inadequacy or deficiency of, any documentation required to be delivered by such
Lender or the L/C Issuer, as the case may be, to the Borrower or the
Administrative Agent pursuant to subsection (e). Each Lender and the L/C Issuer
hereby authorizes the Administrative Agent to set off and apply any and all
amounts at any time owing to such Lender or the L/C Issuer, as the case may be,
under this Agreement or any other Loan Document against any amount due to the
Administrative Agent under this clause (ii). The agreements in this clause (ii)
shall survive the resignation and/or replacement of the Administrative Agent,
any assignment of rights by, or the replacement of, a Lender or the L/C Issuer,
the termination of the Aggregate Revolving Commitments and the repayment,
satisfaction or discharge of all other Obligations.


          (d)          Evidence
of Payments. Upon request by any Loan Party or the Administrative Agent, as
the case may be, after any payment of Taxes by any Loan Party or by the
Administrative Agent to a Governmental Authority as provided in this Section
3.01, each Loan Party shall deliver to the Administrative Agent or the
Administrative Agent shall deliver to the Borrower, as the case may be, the
original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of any return required by Laws to report such
payment or other evidence of such payment reasonably satisfactory to the Borrower
or the Administrative Agent, as the case may be.


          (e)          Status
of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
Borrower and to the Administrative Agent, at the time or times prescribed by
applicable Laws or when reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed documentation
prescribed by applicable Laws or by the taxing authorities of any jurisdiction
and such other reasonably requested information as will permit the Borrower or
the Administrative Agent, as the case may be, to determine (A) whether or not
payments made hereunder or under any other Loan Documents are subject to Taxes,
(B) if applicable, the required rate of withholding or deduction, and (C) such
Lender’s entitlement to any available exemption from, or reduction of,
applicable Taxes in respect of all payments to be made to such Lender by the
Borrower pursuant to this Agreement or otherwise to establish such Lender’s
status for withholding tax purposes in the applicable jurisdiction. 


          (ii)          Without
limiting the generality of the foregoing, if the Borrower is resident for tax
purposes in the United States, 


	
  

 	
  

 
	
  

 	
               (A)          any
 Lender that is a “United States person” within the meaning of Section
 7701(a)(30) of the Internal Revenue Code shall deliver to the Borrower and
 the Administrative Agent executed originals of Internal Revenue Service Form
 W-9 or such other documentation or information prescribed by applicable Laws
 or reasonably requested by the Borrower or the Administrative Agent as will
 enable the Borrower or the Administrative Agent, as the case may be, to
 determine whether or not such Lender is subject to backup withholding or
 information reporting requirements; and

 


53









	
  

 	
  

 
	
  

 	
               (B)          each
 Foreign Lender that is entitled under the Internal Revenue Code or any
 applicable treaty to an exemption from or reduction of withholding tax with
 respect to payments hereunder or under any other Loan Document shall deliver
 to the Borrower and the 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 the Borrower or the Administrative Agent, but
 only if such Foreign Lender is legally entitled to do so), whichever of the
 following is applicable:

 
	
  

 	
  

 
	
  

 	
               (I)           executed
 originals of Internal Revenue Service Form W-8BEN claiming eligibility for
 benefits of an income tax treaty to which the United States is a party,

 
	
  

 	
  

 
	
  

 	
               (II)         executed
 originals of Internal Revenue Service Form W-8ECI,

 
	
  

 	
  

 
	
  

 	
               (III)        executed
 originals of Internal Revenue Service Form W-8IMY and all required supporting
 documentation, 

 
	
  

 	
  

 
	
  

 	
               (IV)        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 the 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) executed originals of Internal Revenue Service Form W-8BEN, or

 
	
  

 	
  

 
	
  

 	
               (V)         executed
 originals of any other form prescribed by applicable Laws 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 the Borrower or the Administrative
 Agent to determine the withholding or deduction required to be made.

 


          (iii)          Each
Lender shall promptly (A) notify the Borrower and the Administrative Agent of
any change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (B) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws of any jurisdiction that the Borrower
or the Administrative Agent make any withholding or deduction for taxes from
amounts payable to such Lender.


          (f)          Treatment
of Certain Refunds. Unless required by applicable Laws, at no time shall
the Administrative Agent have any obligation to file for or otherwise pursue on
behalf of a Lender or the L/C Issuer, or have any obligation to pay to any
Lender or the L/C Issuer, any refund of Taxes withheld or deducted from funds
paid for the account of such Lender or the L/C Issuer, as the case may be. If
the Administrative Agent, any Lender or the L/C Issuer 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 any Loan Party or with respect to which any
Loan Party has paid additional amounts pursuant to this Section, it shall pay
to such Loan Party an amount equal to such refund (but only to the extent of
indemnity payments made, or additional amounts paid, by such Loan Party under
this Section with respect to the Taxes or Other Taxes giving rise to such
refund), net of all reasonable out-of-pocket expenses and net of any loss or
gain realized in the conversion of such funds from or to another currency
incurred by the Administrative Agent, such Lender or the L/C Issuer, 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 each
Loan Party, upon the request of the Administrative Agent, such Lender or the
L/C Issuer, agrees to repay the amount paid over to such Loan Party (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the
event the Administrative Agent, such Lender or the L/C Issuer is required to
repay such refund to such Governmental Authority. This subsection shall not be
construed to require the Administrative Agent, any Lender or the L/C Issuer to
make available its tax returns (or any other information relating to its taxes
that it deems confidential) to the Borrower or any other Person.


54









	
  

 	
  

 
	
 3.02

 	
 Illegality.

 


          If any
Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Loans whose interest is determined by
reference to the Eurocurrency Rate (whether denominated in Dollars or an
Alternative Currency), or to determine or charge interest rates based upon the
Eurocurrency Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take
deposits of, Dollars or any Alternative Currency in the applicable interbank
market, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, (i) any obligation of such Lender to make or continue
Eurocurrency Rate Loans in the affected currency or currencies, or, in the case
of Eurocurrency Rate Loans in Dollars, to convert Base Rate Loans to
Eurocurrency Rate Loans shall be suspended and (ii) if such notice asserts the
illegality of such Lender making or maintaining Base Rate Loans the interest
rate on which is determined by reference to the Eurocurrency Rate component of
the Base Rate, the interest rate on which Base Rate Loans of such Lender shall,
if necessary to avoid such illegality, be determined by the Administrative
Agent without reference to the Eurocurrency Rate component of the Base Rate, in
each case until such Lender notifies the Administrative Agent and the Borrower
that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, (x) the Borrower shall, upon demand from such Lender
(with a copy to the Administrative Agent), prepay or, if applicable and such
Loans are denominated in Dollars, convert all such Eurocurrency Rate Loans of
such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of
such Lender shall, if necessary to avoid such illegality, be determined by the
Administrative Agent without reference to the Eurocurrency Rate component of
the Base Rate), either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such
day, or immediately, if such Lender may not lawfully continue to maintain such
Eurocurrency Rate Loans and (y) if such notice asserts the illegality of such
Lender determining or charging interest rates based upon the Eurocurrency Rate,
the Administrative Agent shall during the period of such suspension compute the
Base Rate applicable to such Lender without reference to the Eurocurrency Rate
component thereof until the Administrative Agent is advised in writing by such
Lender that it is no longer illegal for such Lender to determine or charge
interest rates based upon the Eurocurrency Rate. Upon any such prepayment or
conversion, the Borrower shall also pay accrued interest on the amount so
prepaid or converted.


	
  

 	
  

 
	
 3.03

 	
 Inability to Determine Rates.

 


          If the
Required Lenders determine that for any reason in connection with any request
for a Eurocurrency Rate Loan or a conversion to or continuation thereof that
(a) deposits (whether in Dollars or an Alternative Currency) are not being
offered to banks in the applicable offshore interbank eurodollar market for
such currency for the applicable amount and Interest Period of such
Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurocurrency Rate for any requested Interest Period with
respect to a proposed Eurocurrency Rate Loan (whether denominated in Dollars or
an Alternative Currency) or in connection with an existing or proposed Base
Rate Loan, or (c) the Eurocurrency Rate for any requested Interest Period with
respect to a proposed Eurocurrency Rate Loan does not adequately and fairly
reflect the cost to the Lenders of funding such Loan, the Administrative Agent
will promptly notify the Borrower and all Lenders. Thereafter, (x) the
obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the
affected currency or currencies shall be suspended and (y) in the event of a
determination described in the preceding sentence with respect to the
Eurocurrency Rate component of the Base Rate, the utilization of the
Eurocurrency Rate component in determining the Base Rate shall be suspended, in
each case until the Administrative Agent revokes such notice. Upon receipt of
such notice, the Borrower may revoke any pending request for a Borrowing, conversion
or continuation of Eurocurrency Rate Loans in the affected currency or
currencies or, failing that, will be deemed to have converted such request into
a request for a Borrowing of Base Rate Loans in the amount specified therein.


55









	
  

 	
  

 	
  

 
	
 3.04

 	
 Increased Costs.

 
	
  

 	
  

 
	
  

 	
 (a)

 	
 Increased Costs Generally. 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 (A) any reserve requirement reflected in the Eurocurrency Rate and
 (B) the requirements of the Bank of England and the Financial Services
 Authority or the European Central Bank reflected in the Mandatory Cost, other
 than as set forth below) or the L/C Issuer; 

 
	
  

 	
  

 
	
  

 	
           (ii)         subject
 any Lender or the L/C Issuer 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 Eurocurrency Rate Loan made by it, or change the basis of
 taxation of payments to such Lender or the L/C Issuer in respect thereof
 (except for Indemnified Taxes or Other Taxes covered by Section 3.01
 and the imposition of, or any change in the rate of, any Excluded Tax payable
 by such Lender or the L/C Issuer);

 
	
  

 	
  

 
	
  

 	
           (iii)        result
 in the failure of the Mandatory Cost, as calculated hereunder, to represent
 the cost to any Lender of complying with the requirements of the Bank of
 England and/or the Financial Services Authority or the European Central Bank
 in relation to its making, funding or maintaining Eurocurrency Rate Loans; or

 
	
  

 	
  

 
	
  

 	
           (iv)         impose
 on any Lender or the L/C Issuer or the London interbank market any other
 condition, cost or expense affecting this Agreement or Eurocurrency 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 Loan the interest on which is
 determined by reference to the Eurocurrency Rate (or of maintaining its
 obligation to make any such Loan), or to increase the cost to such Lender or
 the L/C Issuer 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 L/C Issuer hereunder (whether of principal, interest or
 any other amount) then, upon request of such Lender or the L/C Issuer, the
 Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
 additional amount or amounts as will compensate such Lender or the L/C
 Issuer, as the case may be, for such additional costs incurred or reduction
 suffered.

 


          (b)       Capital
Requirements. If any Lender or the L/C Issuer determines that any Change in
Law affecting such Lender or the L/C Issuer or any Lending Office of such
Lender or such Lender’s or the L/C Issuer’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 L/C Issuer’s capital or on the capital of such
Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Revolving 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 L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have
achieved but for such Change in Law (taking into consideration such Lender’s or
the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer
or such Lender’s or the L/C Issuer’s holding company for any such reduction
suffered.


56





          (c)          Certificates
for Reimbursement. A certificate of a Lender or the L/C Issuer setting
forth the amount or amounts necessary to compensate such Lender or the L/C
Issuer or its holding company, as the case may be, as specified in subsection
(a) or (b) of this Section and delivered to the Borrower shall be conclusive
absent manifest error. The Borrower shall pay such Lender or the L/C Issuer, as
the case may be, the amount shown as due on any such certificate within ten
(10) days after receipt thereof.


          (d)          Delay
in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall
not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand
such compensation, provided that the Borrower shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more than
nine (9) months prior to the date that such Lender or the L/C Issuer, as the
case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the L/C Issuer’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 nine
(9) month period referred to above shall be extended to include the period of retroactive
effect thereof).


          (e)          Reserves
for Eurocurrency Rate Loans. The Borrower shall pay to each Lender,
(i) as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds
or deposits (currently known as “Eurocurrency liabilities”), additional
interest on the unpaid principal amount of each Eurocurrency Rate Loan equal to
the actual costs of such reserves allocated to such Loan by such Lender (as determined
by such Lender in good faith, which determination shall be conclusive), and
(ii) as long as such Lender shall be required to comply with any reserve ratio
requirement or analogous requirement of any other central banking or financial
regulatory authority imposed in respect of the maintenance of the Revolving
Commitments or the funding of the Eurocurrency Rate Loans, such additional
costs (expressed as a percentage per annum and rounded upwards, if necessary,
to the nearest five (5) decimal places) equal to the actual costs allocated to
such Revolving Commitment or Loan by such Lender (as determined by such Lender
in good faith, which determination shall be conclusive), which in each case
shall be due and payable on each date on which interest is payable on such
Loan, provided the Borrower shall have received at least ten (10) days’
prior notice (with a copy to the Administrative Agent) of such additional
interest or costs from such Lender. If a Lender fails to give notice ten (10)
days prior to the relevant Interest Payment Date, such additional interest or
costs shall be due and payable ten (10) days from receipt of such notice.


	
  

 	
  

 
	
 3.05

 	
 Compensation for Losses.

 


          Upon demand
of any Lender (with a copy to the Administrative Agent) from time to time, the
Borrower shall promptly compensate such Lender for and hold such Lender
harmless from any loss, cost or expense incurred by it as a result of:


	
  

 	
  

 
	
  

 	
              (a)          any
 continuation, conversion, payment or prepayment of any Loan other than a Base
 Rate Loan on a day other than the last day of the Interest Period for such
 Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or
 otherwise);

 


57









	
  

 	
  

 
	
  

 	
           (b)          any
 failure by the Borrower (for a reason other than the failure of such Lender
 to make a Loan) to prepay, borrow, continue or convert any Loan other than a
 Base Rate Loan on the date or in the amount notified by the Borrower; 

 
	
  

 	
  

 
	
  

 	
           (c)          any
 failure by the Borrower to make payment of any Loan or drawing under any
 Letter of Credit (or interest due thereon) denominated in an Alternative
 Currency on its scheduled due date or any payment thereof in a different
 currency; or

 
	
  

 	
  

 
	
  

 	
           (d)          any
 assignment of a Eurocurrency Rate Loan on a day other than the last day of
 the Interest Period therefor as a result of a request by the Borrower
 pursuant to Section 11.13;

 


including any foreign exchange
losses and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable
to terminate the deposits from which such funds were obtained or from the
performance of any foreign exchange contract.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.


          For
purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender
shall be deemed to have funded each Eurocurrency Rate Loan made by it at the
Eurocurrency Base Rate used in determining the Eurocurrency Rate for such Loan
by a matching deposit or other borrowing in the offshore interbank market for
such currency for a comparable amount and for a comparable period, whether or
not such Eurocurrency Rate Loan was in fact so funded.


	
  

 	
  

 
	
 3.06

 	
 Mitigation Obligations; Replacement of Lenders.
 

 


          (a)      Designation
of a Different Lending Office. If any Lender requests compensation under Section
3.04, or the Borrower is required to pay any additional amount to any Lender,
the L/C Issuer or any Governmental Authority for the account of any Lender or
the L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice
pursuant to Section 3.02, then such Lender or the L/C Issuer shall, as
applicable, 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 or the L/C Issuer, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice
pursuant to Section 3.02, as applicable, and (ii) in each case, would
not subject such Lender or the L/C Issuer, as the case may be, to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender or the L/C Issuer, as the case may be. The Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Lender or the L/C Issuer in
connection with any such designation or assignment.


          (b)      Replacement
of Lenders. If any Lender requests compensation under Section 3.04,
or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section
3.01, the Borrower may replace such Lender in accordance with Section
11.13.


58







	
  

 	
  

 
	
 3.07

 	
 Survival.

 


          All of the
Borrower’s obligations under this Article III shall survive termination
of the Aggregate Revolving Commitments, repayment of all other Obligations
hereunder and resignation of the Administrative Agent.


ARTICLE IV 


GUARANTY 


	
  

 	
  

 
	
 4.01

 	
 The Guaranty.

 


          Each
of the Guarantors hereby jointly and severally guarantees to each Lender, each
Affiliate of a Lender that enters into a Swap Contract or a Treasury Management
Agreement with a Loan Party, and the Administrative Agent as hereinafter
provided, as primary obligor and not as surety, the prompt payment of the
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory Cash Collateralization or
otherwise) strictly in accordance with the terms thereof. The Guarantors hereby
further agree that if any of the Obligations are not paid in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory Cash Collateralization or otherwise), the Guarantors will, jointly
and severally, promptly pay the same, without any demand or notice whatsoever,
and that in the case of any extension of time of payment or renewal of any of
the Obligations, the same will be promptly paid in full when due (whether at
extended maturity, as a mandatory prepayment, by acceleration, as a mandatory
Cash Collateralization or otherwise) in accordance with the terms of such
extension or renewal.


          Notwithstanding
any provision to the contrary contained herein or in any other of the Loan
Documents, Swap Contracts or Treasury Management Agreements, the
obligations of each Guarantor under this
Agreement and the other Loan Documents shall be limited to an aggregate
amount equal to the largest amount that would not render such obligations
subject to avoidance under the Debtor Relief Laws or any comparable provisions
of any applicable state law.


	
  

 	
  

 
	
 4.02

 	
 Obligations
 Unconditional.

 


          The
obligations of the Guarantors under Section 4.01 are joint and several,
absolute and unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Loan Documents, Swap Contracts or
Treasury Management Agreements, or any other agreement or instrument referred
to therein, or any substitution, release, impairment or exchange of any other
guarantee of or security for any of the Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any law or regulation or other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this Section
4.02 that the obligations of the Guarantors hereunder shall be absolute and
unconditional under any and all circumstances. Each Guarantor agrees that such
Guarantor shall have no right of subrogation, indemnity, reimbursement or
contribution against the Borrower or any other Guarantor for amounts paid under
this Article IV until such time as the Obligations (other than
contingent indemnification obligations that survive the termination of this
Agreement) have been paid in full and the Revolving Commitments have expired or terminated. Without
limiting the generality of the foregoing, it is agreed that, to the fullest
extent permitted by law, the occurrence of any one or more of the following
shall not alter or impair the liability of any Guarantor hereunder, which shall
remain absolute and unconditional as described above:


	
  

 	
  

 
	
  

 	
           (a)          at
 any time or from time to time, without notice to any Guarantor, the time for
 any performance of or compliance with any of the Obligations shall be
 extended, or such performance or compliance shall be waived;

 


59









	
  

 	
  

 
	
  

 	
           (b)          any
 of the acts mentioned in any of the provisions of any of the Loan Documents,
 any Swap Contract or Treasury Management Agreement between any Loan Party and
 any Lender, or any Affiliate of a Lender, or any other agreement or
 instrument referred to in the Loan Documents, such Swap Contracts or such
 Treasury Management Agreements shall be done or omitted;

 
	
  

 	
  

 
	
  

 	
           (c)          the
 maturity of any of the Obligations shall be accelerated, or any of the
 Obligations shall be modified, supplemented or amended in any respect, or any
 right under any of the Loan Documents, any Swap Contract or Treasury
 Management Agreement between any Loan Party and any Lender, or any Affiliate
 of a Lender, or any other agreement or instrument referred to in the Loan
 Documents, such Swap Contracts or such Treasury Management Agreements shall
 be waived or any other guarantee of any of the Obligations or any security
 therefor shall be released, impaired or exchanged in whole or in part or
 otherwise dealt with;

 
	
  

 	
  

 
	
  

 	
           (d)          any
 Lien granted to, or in favor of, the Administrative Agent or any Lender or
 Lenders as security for any of the Obligations shall fail to attach or be
 perfected; or

 
	
  

 	
  

 
	
  

 	
           (e)          any
 of the Obligations shall be determined to be void or voidable (including,
 without limitation, for the benefit of any creditor of any Guarantor) or
 shall be subordinated to the claims of any Person (including, without
 limitation, any creditor of any Guarantor).

 


          With
respect to its obligations hereunder, each Guarantor hereby expressly waives
diligence, presentment, demand of payment, protest and all notices whatsoever,
and any requirement that the Administrative Agent or any Lender exhaust any
right, power or remedy or proceed against any Person under any of the Loan
Documents, any Swap Contract or any Treasury Management Agreement between any
Loan Party and any Lender, or any Affiliate of a Lender, or any other agreement
or instrument referred to in the Loan Documents, such Swap Contracts or such
Treasury Management Agreements, or against any other Person under any other
guarantee of, or security for, any of the Obligations.


	
  

 	
  

 
	
 4.03

 	
 Reinstatement.

 


          The
obligations of the Guarantors under this Article IV shall be
automatically reinstated if and to the extent that for any reason any payment
by or on behalf of any Person in respect of the Obligations is rescinded or
must be otherwise restored by any holder of any of the Obligations, whether as
a result of any proceedings in bankruptcy or reorganization or otherwise, and
each Guarantor agrees that it will indemnify the Administrative Agent and each
Lender on demand for all reasonable costs and expenses (including, without
limitation, the fees, charges and disbursements of counsel) incurred by the Administrative Agent or such
Lender in connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.


	
  

 	
  

 
	
 4.04

 	
 Certain
 Additional Waivers.

 


          Each
Guarantor agrees that such Guarantor shall have no right of recourse to
security for the Obligations, except through the exercise of rights of
subrogation pursuant to Section 4.02 and through the exercise of rights
of contribution pursuant to Section 4.06. 


60









	
  

 	
  

 
	
 4.05

 	
 Remedies.

 


          The
Guarantors agree that, to the fullest extent permitted by law, as between the
Guarantors, on the one hand, and the Administrative Agent and the Lenders, on
the other hand, the Obligations may be declared to be forthwith due and payable
as provided in Section 9.02 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section
9.02) for purposes of Section 4.01 notwithstanding any stay,
injunction or other prohibition preventing such declaration (or preventing the
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Obligations being
deemed to have become automatically due and payable), the Obligations (whether
or not due and payable by any other Person) shall forthwith become due and
payable by the Guarantors for purposes of Section 4.01. The
Guarantors acknowledge and agree that their obligations hereunder are secured
in accordance with the terms of the Collateral Documents and that the Lenders
may exercise their remedies thereunder in accordance with the terms thereof.


	
  

 	
  

 
	
 4.06

 	
 Rights of
 Contribution.

 


          The
Guarantors agree among themselves that, in connection with payments made
hereunder, each Guarantor shall have contribution rights against the other
Guarantors as permitted under applicable law. Such contribution rights shall be
subordinate and subject in right of payment to the obligations of such
Guarantors under the Loan Documents and no Guarantor shall exercise such rights
of contribution until all Obligations (other than contingent indemnification
obligations that survive the termination of this Agreement) have been paid in full
and the Revolving Commitments
have terminated.


	
  

 	
  

 
	
 4.07

 	
 Guarantee of
 Payment; Continuing Guarantee.

 


          The
guarantee in this Article IV is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Obligations whenever
arising.


ARTICLE V 


CONDITIONS
PRECEDENT TO CREDIT EXTENSIONS 


	
  

 	
  

 
	
 5.01

 	
 Closing
 Conditions.

 


          This
Agreement shall become effective upon the satisfaction of the following
conditions precedent:


	
  

 	
  

 
	
  

 	
           (a)          Loan
 Documents. Receipt by the Administrative Agent of executed counterparts
 of this Agreement properly executed by a Responsible Officer of the signing
 Loan Party and each Lender.

 
	
  

 	
  

 
	
  

 	
           (b)          Amendment
 of Prior Credit Agreement. Receipt by the Administrative Agent of a copy
 of an amendment to the Prior Credit Agreement, certified by a Responsible
 Officer of the Borrower and in form and substance satisfactory to the
 Administrative Agent.

 
	
  

 	
  

 
	
  

 	
           (c)          Existing
 Seller Indebtedness. Receipt by the Administrative Agent of certified
 copies of all documentation governing the Existing Seller Indebtedness.

 
	
  

 	
  

 
	
  

 	
           (d)          Attorney
 Costs. Unless waived by the Administrative Agent, the Borrower shall have
 paid all reasonable fees, charges and disbursements of counsel to the
 Administrative Agent to the extent invoiced prior to or on the Closing Date, plus
 such additional amounts of such fees, charges and disbursements as shall
 constitute its reasonable estimate of such fees, charges and disbursements
 incurred or to be incurred by it through the closing proceedings (provided
 that such estimate shall not thereafter preclude a final settling of accounts
 between the Borrower and the Administrative Agent).

 


61





          Without
limiting the generality of the provisions of the last paragraph of Section
11.04, for purposes of determining compliance with the conditions specified
in this Section 5.01, each Lender that has signed this Agreement shall
be deemed to have consented to, approved or accepted or to be satisfied with,
each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the Closing Date
specifying its objection thereto.


	
  

 	
  

 
	
 5.02

 	
 Conditions
 to Initial Credit Extension.

 


          The
obligation of the L/C Issuer and each Lender to make its initial Credit
Extension hereunder is subject to the satisfaction of the following conditions
precedent:


	
  

 	
  

 	
  

 
	
  

 	
           (a)          Closing
 Conditions. The closing conditions specified in Section 5.01 shall
 have been satisfied.

 
	
  

 	
  

 	
  

 
	
  

 	
           (b)          Qualifying
 IPO: The Qualifying IPO shall have been completed on or before December
 31, 2010.

 
	
  

 	
  

 	
  

 
	
  

 	
           (c)          Loan
 Documents. Receipt by the Administrative Agent of executed counterparts
 of the Loan Documents (other than this Agreement), each properly executed by
 a Responsible Officer of the signing Loan Party.

 
	
  

 	
  

 	
  

 
	
  

 	
           (d)          No
 Material Adverse Change. There shall not have occurred
 since June 30, 2010 any event or condition that has had or could be
 reasonably expected, either individually or in the aggregate, to have a
 Material Adverse Effect.

 
	
  

 	
  

 	
  

 
	
  

 	
           (e)          Litigation. There shall not exist any action, suit, investigation or
 proceeding pending or, to the knowledge of the Borrower, threatened in any
 court or before an arbitrator or Governmental Authority that could reasonably
 be expected to have a Material Adverse Effect.

 
	
  

 	
  

 	
  

 
	
  

 	
           (f)          Opinions
 of Counsel. Receipt by the Administrative Agent of favorable opinions of
 legal counsel to the Loan Parties, addressed to the Administrative Agent and
 each Lender, dated as of the Funding Date, and in form and substance satisfactory
 to the Administrative Agent.

 
	
  

 	
  

 	
  

 
	
  

 	
           (g)          Organization
 Documents, Resolutions, Etc. Receipt by the Administrative
 Agent of the following, each of which shall be originals or facsimiles
 (followed promptly by originals), in form and substance satisfactory to the
 Administrative Agent and its legal counsel:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
                (i)          copies
 of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the
 appropriate Governmental Authority of the state or other jurisdiction of its
 incorporation or organization, where applicable, and certified by a secretary
 or assistant secretary of such Loan Party to be true and correct as of the
 Closing Date;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
                (ii)          such
 certificates of resolutions or other action, incumbency certificates and/or
 other certificates of Responsible Officers of each Loan Party as the
 Administrative Agent may require evidencing the identity, authority and
 capacity of each Responsible Officer thereof authorized to act as a
 Responsible Officer in connection with this Agreement and the other Loan
 Documents to which such Loan Party is a party; and

 


62









	
  

 	
  

 	
  

 
	
  

 	
  

 	
               (iii)          such
 documents and certifications as the Administrative Agent may require to
 evidence that each Loan Party is duly organized or formed, and is validly
 existing, in good standing and qualified to engage in business in its state
 of organization or formation.

 
	
  

 	
  

 	
  

 
	
  

 	
           (h)         Termination
 of Prior Credit Agreement. Receipt by the Administrative Agent of
 evidence that the Prior Credit Agreement has been terminated and all Liens
 securing obligations under the Prior Credit Agreement have been released.

 
	
  

 	
  

 	
  

 
	
  

 	
           (i)          Perfection
 and Priority of Liens. Receipt by the Administrative Agent of the
 following:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
               (i)           searches
 of Uniform Commercial Code filings in the jurisdiction of formation of each
 Loan Party or where a filing would need to be made in order to perfect the
 Administrative Agent’s security interest in the Collateral, copies of the
 financing statements on file in such jurisdictions and evidence that no Liens
 exist other than Permitted Liens;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
               (ii)          UCC
 financing statements for each appropriate jurisdiction as is necessary, in
 the Administrative Agent’s sole discretion, to perfect the Administrative
 Agent’s security interest in the Collateral;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
               (iii)         all
 certificates evidencing any certificated Equity Interests pledged to the
 Administrative Agent pursuant to the Security Agreement, together with duly
 executed in blank and undated stock powers attached thereto;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
               (iv)         searches
 of ownership of, and Liens on, intellectual property of each Loan Party in
 the appropriate governmental offices; and

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
               (v)          duly
 executed notices of grant of security interest in the form required by the
 Security Agreement as are necessary, in the Administrative Agent’s sole
 discretion, to perfect the Administrative Agent’s security interest in the
 intellectual property of the Loan Parties.

 
	
  

 	
  

 	
  

 
	
  

 	
           (j)          Evidence
 of Insurance. Receipt by the Administrative Agent of copies of insurance policies or
 certificates of insurance of the Loan Parties evidencing liability and
 casualty insurance meeting the requirements set forth in the Loan Documents,
 including, but not limited to, naming the Administrative Agent as additional insured (in the case of
 liability insurance) or Lender’s loss payee (in the case of hazard insurance)
 on behalf of the Lenders.

 
	
  

 	
  

 	
  

 
	
  

 	
           (k)          Closing
 Certificate. Receipt by the Administrative Agent of a certificate signed
 by a Responsible Officer of the Borrower certifying that (i) the conditions
 specified in Sections 5.02(d) and (e) and Sections 5.03(a)
 and (b) have been satisfied and (ii) the Borrower and its Subsidiaries
 (after giving effect to the transactions contemplated hereby and the
 incurrence of Indebtedness related thereto) are Solvent on a consolidated
 basis.

 


63









	
  

 	
  

 	
  

 
	
  

 	
           (l)           Fees.
 Receipt by the Administrative Agents and the Lenders of any fees required to
 be paid on or before the Funding Date.

 
	
  

 	
  

 	
  

 
	
  

 	
           (m)        Attorney
 Costs. Unless waived by the Administrative Agent, the Borrower shall have
 paid all reasonable fees, charges and disbursements of counsel to the
 Administrative Agent to the extent invoiced prior to or on the Funding Date, plus
 such additional amounts of such fees, charges and disbursements as shall
 constitute its reasonable estimate of such fees, charges and disbursements
 incurred or to be incurred by it through the closing proceedings (provided
 that such estimate shall not thereafter preclude a final settling of accounts
 between the Borrower and the Administrative Agent).

 
	
  

 	
  

 	
  

 
	
  

 	
           (n)          Other.
 Receipt by the Administrative Agent and the Lenders of such other documents,
 instruments, agreements and information as requested by the Administrative
 Agent or any Lender, including, but not limited to, information regarding
 litigation, tax, accounting, labor, insurance, pension liabilities (actual or
 contingent), real estate leases, material contracts, debt agreements,
 property ownership, contingent liabilities and management of the Borrower and
 its Subsidiaries.

 
	
  

 	
  

 	
  

 
	
  

 	
           (o)          Representations
 and Warranties. The representations and warranties of the Borrower and
 each other Loan Party contained in Article VI or any other Loan
 Document, or which are contained in any document furnished at any time under
 or in connection herewith or therewith, shall be true and correct on and as
 of the date of such initial Credit Extension, except to the extent that such
 representations and warranties specifically refer to an earlier date, in
 which case they shall be true and correct as of such earlier date, and except
 that for purposes of this Section 5.02, the representations and
 warranties contained in subsections (a) and (b) of Section 6.05 shall
 be deemed to refer to the most recent statements furnished pursuant to
 clauses (a) and (b), respectively, of Section 7.01.

 
	
  

 	
  

 	
  

 
	
  

 	
           (p)          No
 Default. No Default shall exist, or would result from such proposed
 Credit Extension or from the application of the proceeds thereof.

 


5.03   Conditions to all
Credit Extensions.


          The
obligation of each Lender to honor any Request for Credit Extension is subject
to the following conditions precedent:


	
  

 	
  

 
	
  

 	
           (a)          The
 representations and warranties of the Borrower and each other Loan Party
 contained in Article VI or any other Loan Document, or which are
 contained in any document furnished at any time under or in connection
 herewith or therewith, shall be true and correct on and as of the date of
 such Credit Extension, except to the extent that such representations and
 warranties specifically refer to an earlier date, in which case they shall be
 true and correct as of such earlier date, and except that for purposes of
 this Section 5.03, the representations and warranties contained in
 subsections (a) and (b) of Section 6.05 shall be deemed to refer to
 the most recent statements furnished pursuant to clauses (a) and (b),
 respectively, of Section 7.01.

 
	
  

 	
  

 
	
  

 	
           (b)          No
 Default shall exist, or would result from such proposed Credit Extension or
 from the application of the proceeds thereof.

 
	
  

 	
  

 
	
  

 	
           (c)          The
 Administrative Agent and, if applicable, the L/C Issuer and/or the Swing Line
 Lender shall have received a Request for Credit Extension in accordance with
 the requirements hereof.

 


64









	
  

 	
  

 
	
  

 	
           (d)          In
 the case of a Credit Extension to be denominated in an Alternative Currency,
 there shall not have occurred any change in national or international
 financial, political or economic conditions or currency exchange rates or
 exchange controls which in the reasonable opinion of the Administrative
 Agent, the Required Lenders (in the case of any Loans to be denominated in an
 Alternative Currency) or the L/C Issuer (in the case of any Letter of Credit
 to be denominated in an Alternative Currency) would make it impracticable for
 such Credit Extension to be denominated in the relevant Alternative Currency.

 


          Each
Request for Credit Extension submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections
5.03(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.


ARTICLE VI 


REPRESENTATIONS
AND WARRANTIES 


          The Loan
Parties represent and warrant to the Administrative Agent and the Lenders that:


	
  

 	
  

 
	
 6.01

 	
 Existence,
 Qualification and Power.

 


          Each Loan
Party (a) is duly organized or formed, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation or organization, (b)
has all requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own or lease its assets and carry
on its business and (ii) execute, deliver and perform its obligations under the
Loan Documents to which it is a party, and (c) is duly qualified and is
licensed and in good standing under the Laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business
requires such qualification or license; except in each case referred to in
clause (b)(i) or (c), to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect.


	
  

 	
  

 
	
 6.02

 	
 Authorization;
 No Contravention.

 


          The
execution, delivery and performance by each Loan Party of each Loan Document to
which such Person is party have been duly authorized by all necessary corporate
or other organizational action, and do not (a) contravene the terms of any of
such Person’s Organization Documents; (b) conflict with or result in any breach
or contravention of, or the creation of any Lien under, or require any payment
to be made under (i) any material Contractual Obligation to which such Person
is a party or affecting such Person or the properties of such Person or any of
its Subsidiaries or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its
property is subject; or (c) violate any Law (including, without limitation,
Regulation U or Regulation X issued by the FRB) ), except in each case referred
to in clause (c), to the extent that such violation could not reasonably be
expected to have a Material Adverse Effect.


	
  

 	
  

 
	
 6.03

 	
 Governmental
 Authorization; Other Consents.

 


          No
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority or any other Person is necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan
Document other than (a) those that have already been obtained and are in full
force and effect and (b) filings to perfect the Liens created by the Collateral
Documents.


65









	
  

 	
  

 
	
 6.04

 	
 Binding
 Effect.

 


          Each Loan
Document has been duly executed and delivered by each Loan Party that is party
thereto. Each Loan Document constitutes a legal, valid and binding obligation
of each Loan Party that is party thereto, enforceable against each such Loan
Party in accordance with its terms, subject to the effect of any applicable bankruptcy,
insolvency or other similar laws affecting creditors’ rights generally or by
principles of equity pertaining to the availability of equitable remedies.


	
  

 	
  

 
	
 6.05

 	
 Financial
 Statements; No Material Adverse Effect.

 


          (a)          The
Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present the financial condition of the
Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including liabilities for taxes, commitments and Indebtedness.


          (b)          The
Interim Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present the financial condition of the
Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i)
and (ii), to the absence of footnotes and to normal year-end audit adjustments;
and (iii) show all material indebtedness and other liabilities, direct or
contingent, of the Borrower and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.


          (c)          From
June 30, 2010 to and including the Funding
Date, there has been no Disposition any
Loan Party or any Subsidiary, or any Involuntary Disposition, of any material
part of the business or property of any Loan Party or any Subsidiary, and no
purchase or other acquisition by any of them of any business or property
(including any Equity Interests of any other Person) material to any Loan Party
or any Subsidiary, in each case, which is not reflected in the foregoing
financial statements or in the notes thereto and has not otherwise been
disclosed in writing to the Lenders on or prior to the Funding Date.


          (d)          The financial statements delivered pursuant to Section
7.01(a) and (b) have been prepared in accordance with GAAP (except
as may otherwise be permitted under Section 7.01(a) and (b)) and
present fairly (on the basis disclosed in the footnotes to such financial
statements) the consolidated and consolidating financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries as of the dates
thereof and for the periods covered thereby.


          (e)          Since
June 30, 2010, there has been no event or circumstance, either individually or
in the aggregate, that has had or could reasonably be expected to have a
Material Adverse Effect.


	
  

 	
  

 
	
 6.06

 	
 Litigation.

 


          There are
no actions, suits, proceedings, claims or disputes pending or, to the knowledge
of the Loan Parties, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, by or against any Loan Party
or any of its Subsidiaries or against any of their properties or revenues that
(a) purport to affect or pertain to this Agreement or any other Loan Document,
or any of the transactions contemplated hereby or (b) if determined adversely,
could reasonably be expected to have a Material Adverse Effect.


66









	
  

 	
  

 
	
 6.07

 	
 No Default.

 


          (a)          Neither
any Loan Party nor any Subsidiary is in default under or with respect to any
Contractual Obligation that could reasonably be expected to have a Material
Adverse Effect.


          (b)          No
Default has occurred and is continuing.


	
  

 	
  

 
	
 6.08

 	
 Ownership of
 Property; Liens.

 


          Each of
Loan Party and its Subsidiaries has good record and marketable title in fee
simple to, or valid leasehold interests in, all real property necessary or used
in the ordinary conduct of its business, except for such defects in title as
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The property of each Loan Party and its Subsidiaries
is subject to no Liens, other than Permitted Liens.


	
  

 	
  

 
	
 6.09

 	
 Environmental
 Compliance.

 


          Except
as could not reasonably be expected to have a Material Adverse Effect:


	
  

 	
  

 
	
  

 	
           (a)          Each
 of the Facilities and all operations at the Facilities are in compliance with
 all applicable Environmental Laws, and there is no violation of any
 Environmental Law with respect to the Facilities or the Businesses, and there
 are no conditions relating to the Facilities or the Businesses that could
 give rise to liability under any applicable Environmental Laws.

 
	
  

 	
  

 
	
  

 	
           (b)          None
 of the Facilities contains, or has previously contained, any Hazardous
 Materials at, on or under the Facilities in amounts or concentrations that
 constitute or constituted a violation of, or could give rise to liability
 under, Environmental Laws.

 
	
  

 	
  

 
	
  

 	
           (c)          Neither
 any Loan Party nor any Subsidiary has received any written or verbal notice
 of, or inquiry from any Governmental Authority regarding, any violation,
 alleged violation, non-compliance, liability or potential liability regarding
 environmental matters or compliance with Environmental Laws with regard to
 any of the Facilities or the Businesses, nor does any Responsible Officer of
 any Loan Party have knowledge or reason to believe that any such notice will
 be received or is being threatened.

 
	
  

 	
  

 
	
  

 	
           (d)          Hazardous
 Materials have not been transported or
 disposed of from the Facilities, or generated, treated, stored or disposed of
 at, on or under any of the Facilities or any other location, in each case by
 or on behalf of any Loan Party or any Subsidiary in violation of, or in a
 manner that would be reasonably likely to give rise to liability under, any
 applicable Environmental Law.

 
	
  

 	
  

 
	
  

 	
           (e)          No
 judicial proceeding or governmental or administrative action is pending or,
 to the knowledge of the Loan
 Parties, threatened, under any Environmental Law to which any Loan Party or
 any Subsidiary is or will be named as a party, nor are there any consent
 decrees or other decrees, consent orders, administrative orders or other
 orders, or other administrative or judicial requirements outstanding under
 any Environmental Law with respect to any Loan Party, any Subsidiary, the
 Facilities or the Businesses.

 
	
  

 	
  

 
	
  

 	
           (f)          There
 has been no release or threat of release of Hazardous Materials at or from
 the Facilities, or arising from or related to the operations (including,
 without limitation, disposal) of any Loan Party or any Subsidiary in
 connection with the Facilities or otherwise in connection with the
 Businesses, in violation of or in amounts or in a manner that could give rise
 to liability under Environmental Laws.

 


67









	
  

 	
  

 
	
 6.10

 	
 Insurance.

 


          The
properties of the Loan Parties and their Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of such
Persons, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the applicable Loan Party or the
applicable Subsidiary operates. The insurance coverage of the Loan Parties and
their Subsidiaries as in effect on the Funding Date is outlined as to carrier,
policy number, expiration date, type, amount and deductibles on Schedule
6.10.


	
  

 	
  

 
	
 6.11

 	
 Taxes.

 


          The Loan
Parties and their Subsidiaries have filed all federal, state and other tax
returns and reports required to be filed, and have paid all federal, state and
other taxes, assessments, fees and other governmental charges levied or imposed
upon them or their properties, income or assets otherwise due and payable,
except those which are being contested in good faith by appropriate proceedings
diligently conducted and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against any Loan
Party or any Subsidiary that would, if made, have a Material Adverse Effect.
Neither any Loan Party nor any Subsidiary thereof is party to any tax sharing
agreement.


	
  

 	
  

 
	
 6.12

 	
 ERISA
 Compliance.

 


          (a)          Each
Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Internal Revenue Code and other federal or state laws. Each
Pension Plan that is intended to be a qualified plan under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the
Internal Revenue Service to the effect that the form of such Plan is qualified
under Section 401(a) of the Internal Revenue Code and the trust related thereto
has been determined by the Internal Revenue Service to be exempt from federal
income tax under Section 501(a) of the Internal Revenue Code or an application
for such a letter is currently being processed by the Internal Revenue Service.
To the best knowledge of the Loan Parties, nothing has occurred that would
prevent, or cause the loss of, such tax-qualified status.


          (b)          There
are no pending or, to the best knowledge of the Loan Parties, threatened
claims, actions or lawsuits, or action by any Governmental Authority, with
respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.


          (c)          No
ERISA Event has occurred and neither the Borrower nor any ERISA Affiliate is
aware of any fact, event or circumstance that could reasonably be expected to
constitute or result in an ERISA Event with respect to any Pension Plan; (ii)
the Borrower and each ERISA Affiliate has met all applicable requirements under
the Pension Funding Rules in respect of each Pension Plan, and no waiver of the
minimum funding standards under the Pension Funding Rules has been applied for
or obtained; (iii) as of the most recent valuation date for any Pension Plan,
the funding target attainment percentage (as defined in Section 430(d)(2) of
the Internal Revenue Code) is sixty percent (60%) or higher and neither the
Borrower nor any ERISA Affiliate knows of any facts or circumstances that could
reasonably be expected to cause the funding target attainment percentage for
any such plan to drop below sixty percent (60%) as of the most recent valuation
date; (iv) neither the Borrower nor any ERISA Affiliate has incurred any
liability to the PBGC other than for the payment of premiums, and there are no
premium payments which have become due that are unpaid; (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan
has been terminated by the plan administrator thereof nor by the PBGC, and no
event or circumstance has occurred or exists that could reasonably be expected
to cause the PGBC to institute proceedings under Title IV of ERISA to terminate
any Pension Plan.


68









	
  

 	
  

 
	
 6.13

 	
 Subsidiaries.

 


          Set forth
on Schedule 6.13 is a complete and accurate
list as of the Funding Date of each Subsidiary of any Loan Party, together with
(i) jurisdiction of formation, (ii) number of shares of each class of Equity
Interests outstanding, (iii) number and percentage of outstanding shares of
each class owned (directly or indirectly) by any Loan Party or any Subsidiary
and (iv) number and effect, if exercised, of all outstanding options, warrants,
rights of conversion or purchase and all other similar rights with respect
thereto. The outstanding Equity Interests of each Subsidiary of any Loan Party
are validly issued, fully paid and non-assessable.


	
  

 	
  

 
	
 6.14

 	
 Margin
 Regulations; Investment Company Act.

 


          (a)          The
Borrower is not engaged and will not engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock. Following the application
of the proceeds of each Borrowing or drawing under each Letter of Credit, not more
than twenty-five percent (25%) of the value of the assets (either of the
Borrower only or of the Borrower and its Subsidiaries on a consolidated basis)
subject to the provisions of Section 8.01 or Section 8.05 or
subject to any restriction contained in any agreement or instrument between the
Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness
and within the scope of Section 9.01(e) will be margin stock.


          (b)          None
of any Loan Party, any Person Controlling any Loan Party, or any Subsidiary is
or is required to be registered as an “investment company” under the Investment
Company Act of 1940.


	
  

 	
  

 
	
 6.15

 	
 Disclosure.

 


          Each Loan
Party has disclosed to the Administrative Agent and the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its
Subsidiaries is subject, and all other matters known to it, that, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect. No report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on behalf of any
Loan Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case, as modified
or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Loan Parties represent only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time.


	
  

 	
  

 
	
 6.16

 	
 Compliance
 with Laws.

 


          Each Loan
Party and each Subsidiary is in compliance with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its
properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.


69









	
  

 	
  

 
	
 6.17

 	
 Intellectual
 Property; Licenses, Etc.

 


          Each Loan
Party and each Subsidiary owns, or possess the legal right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their
respective businesses. Set forth on Schedule
6.17 is a list of all IP Rights registered or pending registration with the
United States Copyright Office or the United States Patent and Trademark Office
and owned by each Loan Party as of the Funding Date. Except for such claims and
infringements that could not reasonably be expected to have a Material Adverse
Effect, no claim has been asserted and is pending by any Person challenging or
questioning the use of any IP Rights or the validity or effectiveness of any IP
Rights, nor does any Loan Party know of any such claim, and, to the knowledge
of the Loan Parties, the use of any IP Rights by any Loan Party or any of its
Subsidiaries or the granting of a right or a license in respect of any IP
Rights from any Loan Party or any of its Subsidiaries does not infringe on the
rights of any Person. As of the Funding
Date, none of the IP Rights owned by any of the Loan Parties or any of its Subsidiaries is subject to any
licensing agreement or similar arrangement except as set forth on Schedule
6.17.


	
  

 	
  

 
	
 6.18

 	
 Solvency.

 


          The
Loan Parties are Solvent on a consolidated basis.


	
  

 	
  

 
	
 6.19

 	
 Perfection
 of Security Interests in the Collateral.

 


          The
Collateral Documents create valid security
interests in, and Liens on, the Collateral purported to be covered thereby,
which security interests and Liens are currently perfected security interests
and Liens, prior to all other Liens other than Permitted Liens.


	
  

 	
  

 
	
 6.20

 	
 Business
 Locations.

 


          Set
forth on Schedule 6.20(a) is a list of all material real property located
in the United States that is owned
or leased by the Loan Parties as of the
Funding Date. Set forth on Schedule 6.20(b) is the tax payer
identification number and organizational identification number of each Loan
Party as of the Funding Date. The exact legal name and state of organization of
each Loan Party is as set forth on the signature pages hereto. Except as set
forth on Schedule 6.20(c), no Loan Party has during the five (5) years
preceding the Funding Date (to the best knowledge of the Loan Parties with
respect to the periods prior to the Borrower’s or any Subsidiary’s ownership of
any property or Person) (i) changed its legal name, (ii) changed its state of
formation, or (iii) been party to a merger, consolidation or other change in
structure.


	
  

 	
  

 
	
 6.21

 	
 Labor
 Matters.

 


          There
are no collective bargaining agreements or Multiemployer Plans covering the
employees of any Loan Party or any Subsidiary as of the Funding Date and
neither any Loan Party nor any Subsidiary has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five (5)
years.


70








ARTICLE VII 


AFFIRMATIVE
COVENANTS 


          So long as
any Lender shall have any Revolving Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Loan Parties shall and shall cause each
Subsidiary to:


	
  

 	
  

 
	
 7.01

 	
 Financial
 Statements.

 


          Deliver to
the Administrative Agent and each Lender, in form and detail satisfactory to
the Administrative Agent and the Required Lenders:


	
  

 	
  

 
	
  

 	
           (a)          upon
 the earlier of the date that is ninety (90) days after the end of each fiscal
 year of the Borrower or the date such information is filed with the SEC, a
 consolidated balance sheet of the Borrower and its Subsidiaries as at the end
 of such fiscal year, and the related consolidated statements of income or
 operations, changes in shareholders’ equity and cash flows for such fiscal
 year, setting forth in each case in comparative form the figures for the
 previous fiscal year, all in reasonable detail and prepared in accordance
 with GAAP, audited and accompanied by a report and opinion of an independent
 certified public accountant of nationally recognized standing acceptable to
 the Required Lenders, which report and opinion shall be prepared in
 accordance with generally accepted auditing standards and shall not be
 subject to any “going concern” or like qualification or exception or any
 qualification or exception as to the scope of such audit; and

 
	
  

 	
  

 
	
  

 	
           (b)          upon
 the earlier of the date that is forty-five (45) days after the end of each of
 the first three (3) fiscal quarters of each fiscal year of the Borrower or
 the date such information is filed with the SEC, a consolidated balance sheet
 of the Borrower and its Subsidiaries as at the end of such fiscal quarter,
 and the related consolidated statements of income or operations, changes in
 shareholders’ equity and cash flows for such fiscal quarter and for the
 portion of the Borrower’s fiscal year then ended, setting forth in each case
 in comparative form the figures for the corresponding fiscal quarter of the
 previous fiscal year and the corresponding portion of the previous fiscal
 year, all in reasonable detail and certified by a Responsible Officer of the
 Borrower as fairly presenting the financial condition, results of operations,
 shareholders’ equity and cash flows of the Borrower and its Subsidiaries in
 accordance with GAAP, subject only to normal year-end audit adjustments and
 the absence of footnotes.

 
	
  

 	
  

 
	
 7.02

 	
 Certificates; Other Information.

 


          Deliver to
the Administrative Agent and each Lender, in form and detail satisfactory to
the Administrative Agent and the Required Lenders:


	
  

 	
  

 
	
  

 	
           (a)          concurrently
 with the delivery of the financial statements referred to in Sections
 7.01(a) and (b), a duly completed Compliance Certificate signed by
 a Responsible Officer of the Borrower;

 
	
  

 	
  

 
	
  

 	
           (b)          (i)
 within sixty (60) days after the end of each fiscal year of the Borrower,
 beginning with the fiscal year ending December 31, 2010 an annual business
 plan and budget of the Borrower and its Subsidiaries containing, among other
 things, pro forma financial statements for each quarter of the next fiscal
 year and (ii) within thirty (30) days after the end of each fiscal year of
 the Borrower, beginning with the fiscal year ending December 31, 2010, a
 preliminary draft of the annual business plan and budget of the Borrower and
 its Subsidiaries required to be delivered pursuant to clause (b)(i) above;

 


71









	
  

 	
  

 
	
  

 	
           (c)          promptly
 after the same are available, copies of each annual report, proxy or
 financial statement or other report or communication sent to the
 equityholders of any Loan Party, and copies of all annual, regular, periodic
 and special reports and registration statements which a Loan Party may file
 or be required to file with the SEC under Section 13 or 15(d) of the
 Securities Exchange Act of 1934, and not otherwise required to be delivered
 to the Administrative Agent pursuant hereto;

 
	
  

 	
  

 
	
  

 	
           (d)          concurrently
 with the delivery of the financial statements referred to in Sections
 7.01(a) and (b), a certificate
 of a Responsible Officer of the Borrower containing information regarding the
 amount of all Dispositions, Involuntary Dispositions, Debt Issuances, Equity
 Issuances and Acquisitions that occurred during the period covered by such
 financial statements;

 
	
  

 	
  

 
	
  

 	
           (e)          promptly
 after any request by the Administrative Agent or any Lender, copies of any detailed
 audit reports, management letters or written recommendations submitted to the
 board of directors (or the audit committee of the board of directors) of the
 Borrower by independent accountants in connection with the accounts or books
 of the Borrower or any Subsidiary, or any audit of any of them;

 
	
  

 	
  

 
	
  

 	
           (f)          promptly
 after the furnishing thereof, copies of any statement or report furnished to
 any holder of debt securities of any Loan Party or any Subsidiary thereof
 pursuant to the terms of any indenture, loan or credit or similar agreement
 and not otherwise required to be furnished to the Lenders pursuant to Section
 7.01 or any other clause of this Section 7.02;

 
	
  

 	
  

 
	
  

 	
           (g)          promptly,
 and in any event within five (5) Business Days after receipt thereof by any
 Loan Party or any Subsidiary thereof, copies of each notice or other
 correspondence received from the SEC (or comparable agency in any applicable
 non-U.S. jurisdiction) concerning any investigation or possible investigation
 or other inquiry by such agency regarding financial or other operational
 results of any Loan Party or any Subsidiary thereof;

 
	
  

 	
  

 
	
  

 	
           (h)          promptly,
 such additional information regarding the business, financial or corporate
 affairs of any Loan Party or any Subsidiary, or compliance with the terms of
 the Loan Documents, as the Administrative Agent or any Lender may from time
 to time request;

 
	
  

 	
  

 
	
  

 	
           (i)          concurrently
 with the delivery of the financial statements referred to in Sections
 7.01(a), a certificate of a
 Responsible Officer of the Borrower attaching the insurance binder or other
 evidence of insurance for any insurance coverage of any Loan Party or any
 Subsidiary that was renewed, replaced or modified during the period covered
 by such financial statements; and

 
	
  

 	
  

 
	
  

 	
           (j)          within
 thirty (30) days after any Loan Party acquires or otherwise obtains ownership
 of any new IP Rights, a certificate of a Responsible Officer of the Borrower
 listing all such new IP Rights of such Loan Party, including, if any, all
 Copyrights, Patents or Trademarks (each such term as defined in the Security
 Agreement), all issuances of registrations or letters on existing
 applications for Copyrights, Patents and Trademarks and all Trademark
 Licenses, Copyright Licenses and Patent Licenses.

 


72





          Documents
required to be delivered pursuant to Section 7.01(a) or (b) or Section
7.02 (to the extent any such documents are included in materials otherwise
filed with the SEC) may be delivered electronically and if so delivered, shall
be deemed to have been delivered on the date (i) on which the Borrower posts
such documents, or provides a link thereto on the Borrower’s website on the
Internet at the website address listed on Schedule 11.02; or (ii) on
which such documents are posted on the Borrower’s behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided, that: (i) the Borrower shall
deliver paper copies of such documents to the Administrative Agent or any
Lender upon its request to the Borrower to deliver such paper copies until a
written request to cease delivering paper copies is given by the Administrative
Agent or such Lender and (ii) the Borrower shall notify the Administrative
Agent and each Lender (by telecopier or electronic mail) of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. The
Administrative Agent shall have no obligation to request the delivery of or to
maintain paper copies of the documents referred to above, and in any event
shall have no responsibility to monitor compliance by the Borrower with any
such request for delivery by a Lender, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.


          The Borrower hereby acknowledges that (a) the Administrative Agent
and/or BAS will make available to the Lenders and the L/C Issuer materials
and/or information provided by or on behalf of the Borrower hereunder
(collectively, the “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”)
and (b) certain of the Lenders (each, a “Public Lender”) may have
personnel who do not wish to receive material non-public information with
respect to the Borrower or its Affiliates, or the respective securities of any
of the foregoing, and who may be engaged in investment and other market-related
activities with respect to such Person’s securities. The Borrower hereby agrees
that (w) all Borrower Materials that are to be made available to Public Lenders
shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall
mean that the word “PUBLIC” shall appear prominently on the first page thereof;
(x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to
have authorized the Administrative Agent, the Joint Lead Arrangers and the
Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrower or its securities for
purposes of United States federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall
be treated as set forth in Section 11.07); (y) all Borrower Materials
marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated as “Public Side Information;” and (z) the Administrative
Agent and BAS shall be entitled to treat any Borrower Materials that are not
marked “PUBLIC” as being suitable only for posting on a portion of the Platform
that is not designated as “Public Side Information.”


	
  

 	
  

 
	
 7.03

 	
 Notices.

 


          (a)          Promptly
(and in any event, within two (2) Business Days) notify the Administrative
Agent and each Lender of the occurrence of any Default.


          (b)          Promptly
(and in any event, within five (5) Business Days) notify the Administrative
Agent and each Lender of any matter that has resulted or could reasonably be
expected to result in a Material Adverse Effect, including (i) breach or
non-performance of, or any default under, a Contractual Obligation of any Loan
Party or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between any Loan Party or any Subsidiary and any
Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting any Loan Party or any
Subsidiary, including pursuant to any applicable Environmental Laws.


          (c)          Promptly
(and in any event, within five (5) Business Days) notify the Administrative
Agent and each Lender of the occurrence of any ERISA Event.


73





          (d)          Promptly
(and in any event, within five (5) Business Days) notify the Administrative
Agent and each Lender of any material change in accounting policies or
financial reporting practices by the Borrower or any Subsidiary, including any
determination by the Borrower referred to in Section 2.10(b).


          Each notice
pursuant to this Section 7.03(a) through (d) shall be accompanied
by a statement of a Responsible Officer of the Borrower setting forth details
of the occurrence referred to therein and stating what action the applicable
Loan Party has taken and proposes to take with respect thereto. Each notice
pursuant to Section 7.03(a) shall describe with particularity any and
all provisions of this Agreement and any other Loan Document that have been
breached.


	
  

 	
  

 
	
 7.04

 	
 Payment of
 Obligations.

 


          Pay and
discharge, as the same shall become due and payable all tax liabilities,
assessments and governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Loan Party or such Subsidiary; and (b) all lawful
claims which, if unpaid, would by law become a Lien upon its property.


	
  

 	
  

 
	
 7.05

 	
 Preservation
 of Existence, Etc.

 


          (a)          Preserve, renew and maintain in full force and
effect its legal existence under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 8.04 or 8.05.


          (b)          Preserve,
renew and maintain in full force and effect its good standing under the Laws of
the jurisdiction of its organization, except to the extent the failure to do so
could not reasonably be expected to have a Material Adverse Effect.


          (c)          Take
all reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
to the extent that the failure to do so could not reasonably be expected to
have a Material Adverse Effect.


          (d)          Preserve
or renew all of its material registered patents, copyrights, trademarks, trade
names and service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.


	
  

 	
  

 
	
 7.06

 	
 Maintenance
 of Properties.

 


          (a)          Maintain,
preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary
wear and tear excepted.


          (b)          Make
all necessary repairs thereto and renewals and replacements thereof, except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect.


          (c)          Use
the standard of care typical in the industry in the operation and maintenance
of its facilities.


	
  

 	
  

 
	
 7.07

 	
 Maintenance
 of Insurance.

 


          Maintain in
full force and effect insurance (including
worker’s compensation insurance, liability insurance, casualty insurance and
business interruption insurance) with financially sound and reputable
insurance companies not Affiliates of any Loan Party, in such amounts, with
such deductibles and covering such risks as are customarily carried by
companies engaged in similar businesses and owning similar properties in
localities where the applicable Loan Party or the applicable Subsidiary
operates. The Administrative Agent shall be named as loss payee or mortgagee,
as its interest may appear, and/or additional insured with respect to any such
insurance providing coverage in respect of any Collateral, and each provider of
any such insurance shall agree, by endorsement upon the policy or policies
issued by it or by independent instruments furnished to the Administrative
Agent, that it will give the Administrative Agent thirty (30) days prior
written notice before any such policy or policies shall be altered or canceled.


74









	
  

 	
  

 
	
 7.08

 	
 Compliance
 with Laws.

 


          Comply with
the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.


	
  

 	
  

 
	
 7.09

 	
 Books and
 Records.

 


          (a)          Maintain
proper books of record and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of such Loan Party
or such Subsidiary, as the case may be.


          (b)          Maintain
such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over
such Loan Party or such Subsidiary, as the case may be.


	
  

 	
  

 
	
 7.10

 	
 Inspection
 Rights.

 


          Permit representatives
and independent contractors of the Administrative Agent and each Lender to
visit and inspect any of its properties, to examine its corporate, financial
and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and
independent public accountants, all at the expense of the Borrower and at such
reasonable times during normal business hours upon reasonable advance notice to
the Borrower; provided, however, that when an Event of Default
exists the Administrative Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the
expense of the Borrower at any time during normal business hours and without
advance notice. Furthermore, the Loan
Parties hereby agree that promptly after the request of any Lender, the
Administrative Agent may conduct a field examination of the accounts
receivables of the Borrower and its Subsidiaries at the expense of the Borrower;
provided, that the Borrower shall not be required to pay for more than
one field examination in any one fiscal year period.


	
  

 	
  

 
	
 7.11

 	
 Use of
 Proceeds.

 


          Use the
proceeds of the Credit Extensions (a) to refinance certain existing
Indebtedness, (b) to finance Investments permitted under Section 8.02
(including Permitted Acquisitions), (c) to finance working capital and capital
expenditures and (d) for other general corporate purposes, provided that
in no event shall the proceeds of the Credit Extensions be used in
contravention of any Law or of any Loan Document.


75









	
  

 	
  

 
	
 7.12

 	
 Additional
 Subsidiaries.

 


          Within
thirty (30) days after the acquisition or formation of any Subsidiary:


	
  

 	
  

 
	
  

 	
           (a)          notify
 the Administrative Agent thereof in writing, together with the (i) jurisdiction of formation, (ii) number of
 shares of each class of Equity Interests outstanding, (iii) number and
 percentage of outstanding shares of each class owned (directly or indirectly)
 by the Borrower or any Subsidiary and (iv) number and effect, if exercised,
 of all outstanding options, warrants, rights of conversion or purchase and
 all other similar rights with respect thereto; and

 
	
  

 	
  

 
	
  

 	
           (b)          if
 such Subsidiary is a Domestic Subsidiary, cause such Person to (i) become a
 Guarantor by executing and delivering to the Administrative Agent a Joinder
 Agreement or such other documents as the Administrative Agent shall deem
 appropriate for such purpose, and (ii) deliver to the Administrative Agent documents
 of the types referred to in Sections 5.01(c) and Section 5.02(g)
 and favorable opinions of counsel to such Person (which shall cover, among
 other things, the legality, validity, binding effect and enforceability of
 the documentation referred to in clause (a)), all in form, content and scope
 satisfactory to the Administrative Agent. 

 






	
  

 	
  

 
	
 7.13

 	
 ERISA
 Compliance.

 


          Do, and
cause each of its ERISA Affiliates to do, each of the following: (a) maintain
each Plan in compliance with the applicable provisions of ERISA, the Internal
Revenue Code and other federal or state law, except to the extent that the
failure to do so could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; (b) cause each Plan that is
qualified under Section 401(a) of the Internal Revenue Code to maintain such
qualification; and (c) make all required contributions to any Plan subject to
Section 412, Section 430 or Section 431 of the Internal Revenue Code.


	
  

 	
  

 
	
 7.14

 	
 Pledged
 Assets.

 


          (a)          Equity
Interests. Cause (a) one hundred
percent (100%) of the issued and
outstanding Equity Interests of each Domestic Subsidiary and (b)
sixty-five percent (65%) (or such greater
percentage that, due to a change in an applicable Law after the date
hereof, (1) could not reasonably be expected to cause the undistributed
earnings of such Foreign Subsidiary as determined for United States federal
income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary’s United States parent and (2) could not reasonably be expected to
cause any material adverse tax consequences)
of the issued and outstanding Equity
Interests entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) and one hundred percent
(100%) of the issued and outstanding
Equity Interests not entitled to vote (within the meaning of Treas. Reg.
Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by a Loan
Party or any Domestic Subsidiary to be subject at all times to a first
priority, perfected Lien in favor of the Administrative Agent, for the benefit
of the holders of the Obligations, pursuant to the terms and conditions of the
Collateral Documents, together with opinions of counsel and any filings and
deliveries necessary in connection therewith to perfect the security interests
therein, all in form and substance satisfactory to the Administrative Agent.


          (b)          Other
Property. (i) Cause all of its
owned and leased real and personal property other than Excluded Property to be
subject at all times to first priority, perfected and, in the case of real
property (whether leased or owned), title insured Liens in favor of the
Administrative Agent, for the benefit of the holders of the Obligations, to
secure the Obligations pursuant to the terms and conditions of the Collateral
Documents or, with respect to any such property acquired subsequent to the
Funding Date, such other additional security documents as the Administrative
Agent shall request, subject in any case to Permitted Liens and (ii) deliver
such other documentation as the Administrative Agent may request in connection
with the foregoing, including, without limitation, appropriate UCC-1 financing
statements, real estate title insurance policies, surveys, environmental reports,
landlord’s waivers, certified resolutions and other organizational and
authorizing documents of such Person, favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to above and the
perfection of the Administrative Agent’s Liens thereunder) and other items of
the types required to be delivered pursuant to Section 5.02(g), all in
form, content and scope satisfactory to the Administrative Agent.


76





ARTICLE VIII 


NEGATIVE
COVENANTS 


          So long as
any Lender shall have any Revolving Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, no Loan Party shall, nor shall it permit any
Subsidiary to, directly or indirectly:


	
  

 	
  

 
	
 8.01

 	
 Liens.

 


          Create,
incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, other than the following:


	
  

 	
  

 
	
  

 	
           (a)          Liens
 pursuant to any Loan Document;

 
	
  

 	
  

 
	
  

 	
           (b)          Liens
 existing on the Funding Date and listed on Schedule 8.01 and any
 renewals or extensions thereof, provided that (i) the property covered
 thereby is not changed, (ii) the amount secured or benefited thereby is not
 increased, (iii) the direct or any contingent obligor with respect thereto is
 not changed, and (iv) any renewal or extension of the obligations secured or
 benefited thereby is permitted by Section 8.03(b);

 
	
  

 	
  

 
	
  

 	
           (c)          Liens
 (other than Liens imposed under ERISA) for taxes, assessments or governmental
 charges or levies not yet due or which are being contested in good faith and
 by appropriate proceedings diligently conducted, if adequate reserves with
 respect thereto are maintained on the books of the applicable Person in
 accordance with GAAP;

 
	
  

 	
  

 
	
  

 	
           (d)          statutory Liens of landlords and Liens of
 carriers, warehousemen, mechanics, materialmen and suppliers and other Liens
 imposed by law or pursuant to customary reservations or retentions of title
 arising in the ordinary course of business, provided that such Liens
 secure only amounts not yet due and payable or, if due and payable, are
 unfiled and no other action has been taken to enforce the same or are being
 contested in good faith by appropriate proceedings for which adequate
 reserves determined in accordance with GAAP have been established;

 
	
  

 	
  

 
	
  

 	
           (e)          pledges
 or deposits in the ordinary course of business in connection with workers’
 compensation, unemployment insurance and other social security legislation,
 other than any Lien imposed by ERISA;

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (g)          easements,
 rights-of-way, restrictions and other similar encumbrances affecting real
 property which, in the aggregate, are not substantial in amount, and which do
 not in any case materially detract from the value of the property subject
 thereto or materially interfere with the ordinary conduct of the business of
 the applicable Person;

 


77









	
  

 	
  

 
	
  

 	
           (h)         Liens
 securing judgments for the payment of money (or appeal or other surety bonds
 relating to such judgments) not constituting an Event of Default under Section
 9.01(h);

 
	
  

 	
  

 
	
  

 	
           (i)          Liens
 securing Indebtedness permitted under Section 8.03(e); provided
 that (i) such Liens do not at any time encumber any property other than the
 property financed by such Indebtedness, (ii) the Indebtedness secured thereby
 does not exceed the cost (negotiated on an arm’s length basis) of the
 property being acquired on the date of acquisition and (iii) such Liens
 attach to such property concurrently with or within ninety (90) days after
 the acquisition thereof;

 
	
  

 	
  

 
	
  

 	
           (j)          leases or subleases granted to others not interfering in any
 material respect with the business of any Loan Party or any of its
 Subsidiaries;

 
	
  

 	
  

 
	
  

 	
           (k)         any
 interest of title of a
 lessor under, and Liens arising from UCC financing statements (or equivalent filings,
 registrations or agreements in foreign jurisdictions) relating to, leases
 permitted by this Agreement;

 
	
  

 	
  

 
	
  

 	
           (l)          Liens
 deemed to exist in
 connection with Investments in repurchase agreements permitted under Section
 8.02;

 
	
  

 	
  

 
	
  

 	
           (m)         normal
 and customary rights of
 setoff upon deposits of cash in favor of banks or other depository
 institutions;

 
	
  

 	
  

 
	
  

 	
           (n)          Liens
 of a collection bank
 arising under Section 4-210 of the Uniform Commercial Code on items in the
 course of collection; 

 
	
  

 	
  

 
	
  

 	
           (o)          Liens
 of sellers of goods to the Borrower and any of its Subsidiaries arising under
 Article 2 of the Uniform Commercial Code or
 similar provisions of applicable law in the ordinary course of business,
 covering only the goods sold and securing only the unpaid purchase price for
 such goods and related expenses;

 
	
  

 	
  

 
	
  

 	
           (p)          Liens,
 if any, in favor of the Administrative Agent on Cash Collateral delivered
 pursuant to Section 2.14(a);

 
	
  

 	
  

 
	
  

 	
           (q)          Liens
 in favor of Barclays Bank Plc on accounts receivable of UK Independent and
 other Subsidiaries of the Borrower organized under the laws of the United
 Kingdom (“UK Subsidiaries”) and/or contracts which will give rise to
 accounts receivable of UK Independent and/or any UK Subsidiary to secure the
 receivables facility of UK Independent and/or the UK Subsidiaries permitted
 by Section 8.03(f); and

 
	
  

 	
  

 
	
  

 	
           (r)          prior
 to the funding of the Loans on the Funding Date only, Liens securing the
 Prior Credit Agreement.

 
	
  

 	
  

 
	
 8.02

 	
 Investments.

 
	
  

 	
  

 
	
  

 	
 Make any Investments, except:

 
	
  

 	
  

 
	
  

 	
           (a)          Investments
 held by the Borrower or such Subsidiary in the form of cash or Cash
 Equivalents;

 


78







	
  

 	
  

 
	
  

 	
           (b)          Investments existing as of the Funding Date and
 set forth in Schedule 8.02;

 
	
  

 	
  

 
	
  

 	
           (c)          Investments in any Person that is a Loan Party
 prior to giving effect to such Investment;

 
	
  

 	
  

 
	
  

 	
           (d)          Investments
 by any Subsidiary of the Borrower that is not a Loan Party in any other
 Subsidiary of the Borrower that is not a Loan Party;

 
	
  

 	
  

 
	
  

 	
           (e)          Investments
 consisting of extensions of credit in the nature of accounts receivable or
 notes receivable arising from the grant of trade credit in the ordinary
 course of business, and Investments received in satisfaction or partial
 satisfaction thereof from financially troubled account debtors to the extent
 reasonably necessary in order to prevent or limit loss;

 
	
  

 	
  

 
	
  

 	
           (f)          Guarantees
 permitted by Section 8.03;

 
	
  

 	
  

 
	
  

 	
           (g)          Permitted
 Acquisitions; and

 
	
  

 	
  

 
	
  

 	
           (h)          Investments
 by the Loan Parties in Foreign Subsidiaries in an aggregate amount not to
 exceed the aggregate amount of cash previously transferred or otherwise
 repatriated from such Foreign Subsidiaries back to the Loan Parties.

 
	
  

 	
  

 
	
 8.03

 	
 Indebtedness.

 
	
  

 	
  

 
	
  

 	
 Create, incur, assume or suffer to exist any Indebtedness, except:

 
	
  

 	
  

 
	
  

 	
           (a)          Indebtedness
 under the Loan Documents;

 
	
  

 	
  

 
	
  

 	
           (b)          Indebtedness of the Borrower and its
 Subsidiaries existing on the Funding Date and set forth in Schedule 8.03;

 
	
  

 	
  

 
	
  

 	
           (c)          intercompany
 Indebtedness permitted
 under Section 8.02;

 
	
  

 	
  

 
	
  

 	
           (d)          obligations
 (contingent or otherwise) of the Borrower or any Subsidiary existing or
 arising under any Swap Contract, provided that (i) such obligations
 are (or were) entered into by such Person in the ordinary course of business
 for the purpose of directly mitigating risks associated with liabilities,
 commitments, investments, assets, or property held or reasonably anticipated
 by such Person, or changes in the value of securities issued by such Person,
 and not for purposes of speculation or taking a “market view;” and (ii) such
 Swap Contract does not contain any provision exonerating the non-defaulting
 party from its obligation to make payments on outstanding transactions to the
 defaulting party; and

 
	
  

 	
  

 
	
  

 	
           (e)          purchase money Indebtedness (including
 obligations in respect of Capital Leases or Synthetic Leases) hereafter
 incurred by the Borrower or any of its Subsidiaries to finance the purchase
 of fixed assets, and renewals, refinancings and extensions thereof, provided
 that (i) the total of all such Indebtedness for all such Persons taken
 together shall not exceed an aggregate principal amount of $2,000,000 at any
 one time outstanding; (ii) such Indebtedness when incurred shall not exceed
 the purchase price of the asset(s) financed; and (iii) no such Indebtedness
 shall be refinanced for a principal amount in excess of the principal balance
 outstanding thereon at the time of such refinancing; and

 


79









	
  

 	
  

 
	
  

 	
           (f)          Indebtedness
 of UK Independent and other UK Subsidiaries in an aggregate principal amount
 not to exceed £15 million pursuant to that certain receivables facility with
 Barclays Bank Plc. (and Guarantees of such Indebtedness by (x) the Borrower
 (provided such Guarantee of the Borrower is subordinated to the Obligations
 pursuant to terms satisfactory to the Administrative Agent) and (y) certain
 other UK Subsidiaries);

 
	
  

 	
  

 
	
  

 	
           (g)          prior
 to the funding of the Loans on the Funding Date only, Indebtedness under the
 Prior Credit Agreement;

 
	
  

 	
  

 
	
  

 	
           (h)          the
 Existing Seller Indebtedness; and

 
	
  

 	
  

 
	
  

 	
           (i)          (x)
 the Seller Subordinated Indebtedness and (y) the Other Subordinated
 Indebtedness.

 
	
  

 	
  

 
	
 8.04

 	
 Fundamental Changes.

 


          Merge,
dissolve, liquidate, consolidate with or into another Person, or Dispose of
(whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person; provided
that, notwithstanding the foregoing provisions of this Section 8.04 but
subject to the terms of Sections 7.12 and 7.14, (a) the Borrower
may merge or consolidate with any of its Subsidiaries provided that the
Borrower shall be the continuing or surviving corporation, (b) any Loan Party
other than the Borrower may merge or consolidate with any other Loan Party
other than the Borrower, (c) any Foreign Subsidiary may be merged or
consolidated with or into any Loan Party provided that such Loan Party shall be
the continuing or surviving corporation and (d) any Foreign Subsidiary may be
merged or consolidated with or into any other Foreign Subsidiary.


	
  

 	
  

 
	
 8.05

 	
 Dispositions.

 


          Make any
Disposition unless (i) the consideration
paid in connection therewith shall be cash or Cash Equivalents paid
contemporaneous with consummation of the transaction and shall be in an amount
not less than the fair market value of the property disposed of, (ii) such
transaction does not involve the sale or other disposition of a minority equity
interest in any Subsidiary, (iii) such transaction does not involve a sale or
other disposition of receivables other than receivables owned by or
attributable to other property concurrently being disposed of in a transaction
otherwise permitted under this Section 8.05, and (iv) the aggregate net
book value of all of the assets sold or otherwise disposed of by the Borrower
and its Subsidiaries in all such transactions occurring during any fiscal year
shall not exceed $2,000,000.


	
  

 	
  

 
	
 8.06

 	
 Restricted Payments. 

 


          Declare or
make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except that:


	
  

 	
  

 
	
  

 	
           (a)          each
 Subsidiary may make Restricted Payments to the Borrower or any Guarantor; and

 
	
  

 	
  

 
	
  

 	
           (b)          the
 Borrower and each Subsidiary may declare and make dividend payments or other
 distributions payable solely in the Equity Interests of such Person.

 


80









	
  

 	
  

 
	
 8.07

 	
 Change in Nature of Business.

 


          Engage in
any material line of business substantially different from those lines of
business conducted by the Borrower and its Subsidiaries on the Closing Date or
any business related or incidental thereto.


	
  

 	
  

 
	
 8.08

 	
 Transactions with Affiliates and Insiders.

 
	
  

 	
  

 
	
           Enter into or permit to exist any transaction or
 series of transactions with any officer, director or Affiliate of such Person
 other than (a) advances of working capital to any Loan Party, (b) transfers
 of cash and assets to any Loan Party, (c) intercompany transactions expressly
 permitted by Section 8.02, Section 8.03, Section 8.04, Section
 8.05 or Section 8.06, (d) normal and reasonable compensation and
 reimbursement of expenses of officers and directors in the ordinary course of
 business and (e) except as otherwise specifically limited in this Agreement,
 other transactions which are entered into in the ordinary course of such
 Person’s business on terms and conditions substantially as favorable to such
 Person as would be obtainable by it in a comparable arms-length transaction
 with a Person other than an officer, director or Affiliate.

 
	
  

 	
  

 
	
 8.09

 	
 Burdensome Agreements.

 
	
  

 	
  

 
	
           (a)          Enter
 into, or permit to exist, any Contractual Obligation that encumbers or
 restricts on the ability of any such Person to (i) pay dividends or make any
 other distributions to any Loan Party
 on its Equity Interests or with respect to any other interest or
 participation in, or measured by, its profits, (ii) pay any Indebtedness or
 other obligation owed to any Loan Party,
 (iii) make loans or advances to any Loan Party,
 (iv) sell, lease or transfer any of its property to any Loan Party, (v) pledge its property pursuant
 to the Loan Documents or any renewals, refinancings, exchanges,
 refundings or extension thereof or (vi) act
 as a Loan Party pursuant to the Loan Documents or any renewals,
 refinancings, exchanges, refundings or extension thereof, except (x) prior to
 the Funding Date only, the Prior Credit Agreement and (y) (in respect of any
 of the matters referred to in clauses (i)-(iv) above) for (1) this Agreement
 and the other Loan Documents, (2) any document or instrument governing
 Indebtedness incurred pursuant to Section 8.03(e), provided
 that any such restriction contained therein relates only to the asset or
 assets constructed or acquired in connection therewith, (3) any Permitted
 Lien or any document or instrument governing any Permitted Lien, provided
 that any such restriction contained therein relates only to the asset or
 assets subject to such Permitted Lien or (4) customary restrictions and
 conditions contained in any agreement relating to the sale of any property
 permitted under Section 8.05 pending the consummation of such sale.

 
	
  

 	
  

 
	
           (b)          Enter
 into, or permit to exist, any Contractual Obligation that prohibits or otherwise restricts the existence
 of any Lien upon any of its property in favor of the Administrative Agent
 (for the benefit of the holders of the Obligations) for the purpose of
 securing the Obligations, whether now owned or hereafter acquired, or
 requiring the grant of any security for any obligation if such property is
 given as security for the Obligations, except (i) prior to the Funding
 Date only, the Prior Credit Agreement, (ii) any document or instrument governing Indebtedness incurred pursuant to Section
 8.03(e), provided that any such restriction contained
 therein relates only to the asset or assets constructed or acquired in
 connection therewith, (iii) in connection with any Permitted Lien or any
 document or instrument governing any Permitted Lien, provided that any
 such restriction contained therein relates only to the asset or assets
 subject to such Permitted Lien, and (iv) pursuant to customary restrictions
 and conditions contained in any agreement relating to the sale of any property
 permitted under Section 8.05, pending the consummation of such sale.

 


81









	
  

 	
  

 
	
 8.10

 	
 Use of Proceeds.

 
	
  

 	
  

 
	
           Use the
 proceeds of any Credit Extension, whether directly or indirectly, and whether
 immediately, incidentally or ultimately, to purchase or carry margin stock
 (within the meaning of Regulation U of the FRB) or to extend credit to others
 for the purpose of purchasing or carrying margin stock or to refund
 indebtedness originally incurred for such purpose.

 
	
  

 	
  

 
	
 8.11

 	
 Financial Covenants.

 
	
  

 	
  

 
	
           (a)          Consolidated
 Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end of
 any fiscal quarter of the Borrower to be greater than 3.5:1.0.

 
	
  

 	
  

 
	
           (b)          Consolidated
 Senior Leverage Coverage Ratio. Permit the Consolidated Senior Leverage
 Coverage Ratio as of the end of any fiscal quarter of the Borrower to be
 greater than 3.0:1.0.

 
	
  

 
	
           (c)          Consolidated
 Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge
 Coverage Ratio as of the end of any fiscal quarter of the Borrower to be less
 than 2.5 to 1.0.

 
	
  

 	
  

 
	
 8.12

 	
 Prepayment of Other Indebtedness, Etc.

 
	
  

 	
  

 
	
           (a)          Make
 (or give any notice with respect thereto) any voluntary or optional payment
 or prepayment or redemption or acquisition for value of (including without
 limitation, by way of depositing money or securities with the trustee with
 respect thereto before due for the purpose of paying when due), refund,
 refinance or exchange of any Indebtedness of any Loan Party or any Subsidiary
 (other than (x) the Indebtedness under the Prior Credit Agreement on the
 Funding Date with the proceeds of the Revolving Loans and (y) Indebtedness
 arising under the Loan Documents); provided, however, so long as no Default
 or Event of Default shall have occurred and be continuing, the Borrower shall
 be permitted to prepay the Existing Seller Indebtedness.

 
	
  

 	
  

 
	
           (b)          Amend,
 modify or change (or permit the amendment, modification or change of) any of
 the terms or provisions of any of the Seller Subordinated Indebtedness or any
 of the Other Subordinated Indebtedness in a manner adverse to the Lenders.

 
	
  

 	
  

 
	
 8.13

 	
 Organization Documents; Fiscal Year; Legal Name, State of Formation
 and Form of Entity, Etc.

 
	
  

 	
  

 
	
           (a)          Amend,
 modify or change its Organization Documents in a manner adverse to the
 Lenders.

 
	
  

 	
  

 
	
           (b)          Change
 its fiscal year.

 
	
  

 	
  

 
	
           (c)          Without
 providing ten (10) days prior written notice to the Administrative Agent,
 change its name, state of formation or form of organization.

 
	
  

 	
  

 
	
 8.14

 	
 Ownership of Subsidiaries.

 
	
  

 	
  

 
	
           Notwithstanding
 any other provisions of this Agreement to the contrary, (i) permit any
 Person (other than any Loan Party or any Wholly Owned Subsidiary of the Borrower)
 to own any Equity Interests of any Subsidiary of any Loan Party, except to
 qualify directors where required by applicable law or to satisfy other requirements of applicable law with respect to
 the ownership of Equity Interests of Foreign Subsidiaries, (ii) permit any
 Loan Party or any Subsidiary of any Loan Party to issue or have outstanding
 any shares of preferred Equity Interests or (iii) create, incur, assume or
 suffer to exist any Lien on any Equity Interests of any Subsidiary of any
 Loan Party, except for Permitted Liens.

 


82









	
  

 	
  

 
	
 8.15

 	
 Sale Leasebacks.

 
	
  

 	
  

 
	
  

 	
 Enter into any Sale and Leaseback
 Transaction.

 
	
  

 	
  

 
	
 8.16

 	
 Limitations on the Borrower.

 
	
  

 	
  

 
	
  

 	
 Permit the Borrower to:

 
	
  

 
	
           (a)          hold
 any assets other than (i) the Equity Interests of its Subsidiaries and (ii)
 minute books and corporate books and records of the Borrower;

 
	
  

 
	
           (b)          have
 any liabilities (contingent or otherwise) other than (i) liabilities under
 the Loan Documents, (ii) prior to the Funding Date only, liabilities under
 the Prior Credit Agreement, (iii) its Guarantee of the Indebtedness permitted
 by Section 8.03(f) (to the extent such Guarantee is permitted by Section
 8.03(f), (iii) tax liabilities in the ordinary course of business, (iv)
 administrative expenses in the ordinary course of business, (v) lease
 obligations with respect to its headquarters lease in Atlanta, Georgia and
 (vi) liabilities (including guarantee obligations) with respect to
 acquisition agreements related to Permitted Acquisitions; or

 
	
  

 	
  

 
	
           (c)          engage
 in any activities or business other than (i) owning the Equity Interests of
 its Subsidiaries and activities incidental or related thereto, (ii)
 maintaining its legal existence, (iii) participating in other administrative
 matters as a member of the consolidated group of the Borrower and its
 Subsidiaries, (iv) owning insurance plans, (v) equity plans for directors,
 consultants and employees, (vi) issuing Equity Interests in connection with
 Permitted Acquisitions and (vii) providing guarantees of obligations of
 Subsidiaries in the ordinary course of business.

 


ARTICLE IX 


EVENTS
OF DEFAULT AND REMEDIES 


	
  

 	
  

 
	
 9.01

 	
 Events of Default.

 
	
  

 	
  

 
	
  

 	
 Any of the following shall constitute an Event of Default:

 
	
  

 	
  

 
	
  

 	
           (a)          Non-Payment.
 The Borrower or any other Loan Party fails to pay (i) when and as required to
 be paid herein, and in the currency required hereunder, any amount of
 principal of any Loan or any L/C Obligation, or (ii) within three (3)
 Business Days after the same becomes due, any interest on any Loan or on any
 L/C Obligation, or any fee due hereunder, or (iii) within five (5) Business
 Days after the same becomes due, any other amount payable hereunder or under
 any other Loan Document; or

 
	
  

 	
  

 
	
  

 	
           (b)          Specific
 Covenants. Any Loan Party fails to perform or observe any term, covenant
 or agreement contained in any of Section 7.03(a), 7.05(a), 7.10
 or 7.11 or Article VIII; or

 
	
  

 	
  

 
	
  

 	
           (c)          Other
 Defaults. Any Loan Party fails to perform or observe any other covenant
 or agreement (not specified in subsection (a) or (b) above) contained in any
 Loan Document on its part to be performed or observed and such failure
 continues for thirty (30) days; or

 


83









	
  

 	
  

 
	
  

 	
           (d)          Representations
 and Warranties. Any representation, warranty, certification or statement
 of fact made or deemed made by or on behalf of the Borrower or any other Loan
 Party herein, in any other Loan Document, or in any document delivered in
 connection herewith or therewith shall be incorrect or misleading in any
 material respect when made or deemed made; or

 
	
  

 	
  

 
	
  

 	
           (e)          Cross-Default.
 (i) Any Loan Party or any Subsidiary (A) fails to make any payment when due
 (whether by scheduled maturity, required prepayment, acceleration, demand, or
 otherwise) in respect of any Indebtedness or Guarantee (other than
 Indebtedness hereunder and Indebtedness under Swap Contracts) having an
 aggregate principal amount (including undrawn committed or available amounts
 and including amounts owing to all creditors under any combined or syndicated
 credit arrangement) of more than the Threshold Amount, or (B) fails to
 observe or perform any other agreement or condition relating to any such
 Indebtedness or Guarantee or contained in any instrument or agreement
 evidencing, securing or relating thereto, or any other event occurs, the
 effect of which default or other event is to cause, or to permit the holder
 or holders of such Indebtedness or the beneficiary or beneficiaries of such
 Guarantee (or a trustee or agent on behalf of such holder or holders or
 beneficiary or beneficiaries) to cause, with the giving of notice if
 required, such Indebtedness to be demanded or to become due or to be
 repurchased, prepaid, defeased or redeemed (automatically or otherwise), or
 an offer to repurchase, prepay, defease or redeem such Indebtedness to be
 made, prior to its stated maturity, or such Guarantee to become payable or
 cash collateral in respect thereof to be demanded; or (ii) there occurs under
 any Swap Contract an Early Termination Date (as defined in such Swap
 Contract) resulting from (A) any event of default under such Swap Contract as
 to which the Borrower or any Subsidiary is the Defaulting Party (as defined
 in such Swap Contract) or (B) any Termination Event (as so defined) under
 such Swap Contract as to which the Borrower or any Subsidiary is an Affected
 Party (as so defined) and, in either event, the Swap Termination Value owed
 by the Borrower or such Subsidiary as a result thereof is greater than the
 Threshold Amount; or

 
	
  

 	
  

 
	
  

 	
           (f)          Insolvency
 Proceedings, Etc. Any Loan Party or any of its Subsidiaries institutes or
 consents to the institution of any proceeding under any Debtor Relief Law, or
 makes an assignment for the benefit of creditors; or applies for or consents
 to the appointment of any receiver, trustee, custodian, conservator,
 liquidator, rehabilitator or similar officer for it or for all or any
 material part of its property; or any receiver, trustee, custodian,
 conservator, liquidator, rehabilitator or similar officer is appointed
 without the application or consent of such Person and the appointment
 continues undischarged or unstayed for sixty (60) calendar days; or any
 proceeding under any Debtor Relief Law relating to any such Person or to all
 or any material part of its property is instituted without the consent of
 such Person and continues undismissed or unstayed for sixty (60) calendar
 days, or an order for relief is entered in any such proceeding; or

 
	
  

 	
  

 
	
  

 	
           (g)          Inability
 to Pay Debts; Attachment. (i) Any Loan Party or any of its Subsidiaries
 becomes unable or admits in writing its inability or fails generally to pay
 its debts as they become due, or (ii) any writ or warrant of attachment or
 execution or similar process is issued or levied against all or any material
 part of the property of any such Person and is not released, vacated or fully
 bonded within thirty (30) days after its issue or levy; or

 
	
  

 	
  

 
	
  

 	
           (h)          Judgments.
 There is entered against any Loan Party or any Subsidiary (i) one or more
 final judgments or orders for the payment of money in an aggregate amount
 exceeding the Threshold Amount (to the extent not covered by independent
 third-party insurance as to which the insurer does not dispute coverage), or
 (ii) any one or more non-monetary final judgments that have, or could
 reasonably be expected to have, individually or in the aggregate, a Material
 Adverse Effect and, in either case, (A) enforcement proceedings are commenced
 by any creditor upon such judgment or order, or (B) there is a period of ten
 (10) consecutive days during which a stay of enforcement of such judgment, by
 reason of a pending appeal or otherwise, is not in effect; or 

 


84









	
  

 	
  

 
	
  

 	
           (i)          ERISA.
 (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
 Plan which has resulted or could reasonably be expected to result in
 liability of any Loan Party under Title IV of ERISA to the Pension Plan,
 Multiemployer Plan or the PBGC in an aggregate amount in excess of the
 Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay
 when due, after the expiration of any applicable grace period, any
 installment payment with respect to its withdrawal liability under Section
 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of
 the Threshold Amount; or

 
	
  

 	
  

 
	
  

 	
           (j)          Invalidity
 of Loan Documents. Any Loan Document, at any time after its execution and
 delivery and for any reason other than as expressly permitted hereunder or
 thereunder or satisfaction in full of all the Obligations (other than
 contingent indemnification obligations that survive the termination of this
 Agreement), ceases to be in full force and effect; or any Loan Party or any
 other Person contests in any manner the validity or enforceability of any
 Loan Document; or any Loan Party denies that it has any or further liability
 or obligation under any Loan Document, or purports to revoke, terminate or
 rescind any Loan Document; or

 
	
  

 	
  

 
	
  

 	
           (k)          Change
 of Control. There occurs any Change of Control.

 
	
  

 	
  

 
	
 9.02

 	
 Remedies Upon Event of Default.

 
	
  

 	
  

 
	
           If any
 Event of Default occurs and is continuing, the Administrative Agent shall, at
 the request of, or may, with the consent of, the Required Lenders, take any
 or all of the following actions:

 
	
  

 	
  

 
	
  

 	
           (a)          declare
 the commitment of each Lender to make Loans and any obligation of the L/C
 Issuer to make L/C Credit Extensions to be terminated, whereupon such
 commitments and obligation shall be terminated;

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
           (c)          require
 that the Borrower Cash Collateralize the L/C Obligations (in an amount equal
 to the then Outstanding Amount thereof); and

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
 provided, however, that upon the
 occurrence of an actual or deemed entry of an order for relief with respect
 to the Borrower under the Bankruptcy Code of the United States, the
 obligation of each Lender to make Loans and any obligation of the L/C Issuer
 to make L/C Credit Extensions shall automatically terminate, the unpaid
 principal amount of all outstanding Loans and all interest and other amounts
 as aforesaid shall automatically become due and payable, and the obligation
 of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically
 become effective, in each case without further act of the Administrative
 Agent or any Lender.

 


85









	
  

 	
  

 
	
 9.03

 	
 Application of Funds.

 
	
  

 	
  

 
	
           After the
 exercise of remedies provided for in Section 9.02 (or after the Loans
 have automatically become immediately due and payable and the L/C Obligations
 have automatically been required to be Cash Collateralized as set forth in
 the proviso to Section 9.02), any amounts received on account of the
 Obligations shall be applied by the Administrative Agent in the following
 order:

 
	
  

 	
  

 
	
  

 	
           First,
 to payment of that portion of the Obligations constituting fees, indemnities,
 expenses and other amounts (including fees, charges and disbursements of
 counsel to the Administrative Agent and amounts payable under Article III)
 payable to the Administrative Agent in its capacity as such;

 
	
  

 	
  

 
	
  

 	
           Second,
 to payment of that portion of the Obligations constituting fees, indemnities
 and other amounts (other than principal, interest and Letter of Credit Fees)
 payable to the Lenders and the L/C Issuer (including fees, charges and
 disbursements of counsel to the respective Lenders and the L/C Issuer)
 arising under the Loan Documents and amounts payable under Article III,
 ratably among them in proportion to the respective amounts described in this
 clause Second payable to them;

 
	
  

 	
  

 
	
  

 	
           Third,
 to payment of that portion of the Obligations constituting accrued and unpaid
 Letter of Credit Fees and interest on the Loans and L/C Borrowings and fees, premiums and scheduled periodic
 payments, and any interest accrued thereon, due under any Swap Contract
 between any Loan Party and any Lender, or any Affiliate of a Lender, to the
 extent such Swap Contract is permitted by Section 8.03(d), ratably
 among the Lenders (and, in the case of such Swap Contracts, Affiliates of
 Lenders) and the L/C Issuer in proportion to the respective amounts described
 in this clause Third held by them;

 
	
  

 	
  

 
	
  

 	
           Fourth,
 to (a) payment of that portion of the Obligations constituting accrued and
 unpaid principal of the Loans and L/C Borrowings, (b) payment of breakage, termination or other payments, and
 any interest accrued thereon, due under any Swap Contract between any Loan
 Party and any Lender, or any Affiliate of a Lender, to the extent such Swap
 Contract is permitted by Section 8.03(d), (c) payments of amounts due under any Treasury Management
 Agreement between any Loan Party and any Lender, or any Affiliate of a Lender
 and (d) Cash Collateralize that portion of L/C Obligations comprised of the
 aggregate undrawn amount of Letters of Credit, ratably among the Lenders
 (and, in the case of such Swap Contracts, Affiliates of Lenders) and the L/C
 Issuer in proportion to the respective amounts described in this clause Fourth
 held by them; and

 
	
  

 	
  

 
	
  

 	
           Last,
 the balance, if any, after all of the Obligations have been indefeasibly paid
 in full, to the Borrower or as otherwise required by Law.

 
	
  

 	
  

 
	
           Subject
 to Sections 2.03(c) and 2.14, amounts used to Cash
 Collateralize the aggregate undrawn amount of Letters of Credit pursuant to
 clause Fourth above shall be applied to satisfy drawings under such
 Letters of Credit as they occur. If any amount remains on deposit as Cash
 Collateral after all Letters of Credit have either been fully drawn or
 expired, such remaining amount shall be applied to the other Obligations, if
 any, in the order set forth above.

 


86






ARTICLE X 


ADMINISTRATIVE AGENT 


	
  

 	
  

 
	
 10.01

 	
 Appointment
 and Authority. 

 


          (a)          Each
of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America
to act on its behalf as the Administrative Agent hereunder and under the other
Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers as
are incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither
the Borrower nor any other Loan Party shall have rights as a third party
beneficiary of any of such provisions.


          (b)          The
Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the
Lenders and the L/C Issuer hereby irrevocably appoints and authorizes the
Administrative Agent to act as the agent of such Lender and the L/C Issuer for
purposes of acquiring, holding and enforcing any and all Liens on Collateral
granted by any of the Loan Parties to secure any of the Obligations, together
with such powers and discretion as are incidental thereto. In this connection,
the Administrative Agent, as “collateral agent” and any co-agents, sub-agents
and attorneys-in-fact appointed by the Administrative Agent pursuant to Section
10.05 for purposes of holding or enforcing any Lien on the Collateral (or
any portion thereof) granted under the Collateral Documents, or for exercising
any rights and remedies thereunder at the direction of the Administrative Agent),
shall be entitled to the benefits of all provisions of this Article X
and Article XI (including Section 11.04(c), as though such
co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under
the Loan Documents) as if set forth in full herein with respect thereto.


	
  

 	
  

 
	
 10.02

 	
 Rights as a
 Lender.

 


          The Person
serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. Such Person and its 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 any
Loan Party or any Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor
to the Lenders.


	
  

 	
  

 
	
 10.03

 	
 Exculpatory Provisions.

 


          The
Administrative 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, the Administrative 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 the Administrative
 Agent is required to exercise as directed in writing by the Required Lenders
 (or such other number or percentage of the Lenders as shall be expressly
 provided for herein or in the other Loan Documents), provided that the
 Administrative Agent shall not be required to take any action that, in its
 opinion or the opinion of its counsel, may expose the Administrative Agent to
 liability or that is contrary to any Loan Document or applicable law; and

 


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           (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 relating to any Loan Party or any of its Affiliates
 that is communicated to or obtained by the Person serving as the Administrative
 Agent or any of its Affiliates in any capacity.

 


          The
Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 11.01 and 9.02) or (ii) in
the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default
unless and until notice describing such Default is given to the Administrative
Agent by the Borrower, a Lender or the L/C Issuer.


          The
Administrative Agent shall not 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 V or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.


	
  

 	
  

 
	
 10.04

 	
 Reliance by Administrative Agent. 

 


          The
Administrative 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. The Administrative 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 L/C Issuer, the Administrative Agent may
presume that such condition is satisfactory to such Lender or the L/C Issuer
unless the Administrative Agent shall have received notice to the contrary from
such Lender or the L/C Issuer prior to the making of such Loan or the issuance
of such Letter of Credit. The Administrative Agent may consult with legal
counsel (who may be counsel for the Loan Parties), 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.


	
  

 	
  

 
	
 10.05

 	
 Delegation of Duties.

 


          The
Administrative 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 the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective
Related Parties. The exculpatory provisions of this Article shall apply to any
such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-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.


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 10.06

 	
 Resignation
 of Administrative Agent.

 


          The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the L/C Issuer and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, with the consent of the
Borrower (so long as no Default or Event of Default has occurred and is
continuing), 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. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within thirty (30)
days after the retiring Administrative Agent gives notice of its resignation,
then the retiring Administrative Agent may on behalf of the Lenders and the L/C
Issuer, appoint a successor Administrative Agent meeting the qualifications set
forth above; provided that if the Administrative Agent shall notify the
Borrower 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 shall be discharged from
its duties and obligations hereunder and under the other Loan Documents and (2)
all payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and
the L/C Issuer directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this Section. Upon the
acceptance of a successor’s appointment as Administrative 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, and
the retiring Administrative Agent shall be discharged from all of its duties
and obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section). The fees payable by
the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and
such successor. After the retiring Administrative Agent’s resignation hereunder
and under the other Loan Documents, the provisions of this Article and Section
11.04 shall continue in effect for the benefit of such retiring
Administrative 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 was acting as Administrative Agent.


          Any
resignation by Bank of America as Administrative Agent pursuant to this Section
shall also constitute its resignation as L/C Issuer and Swing Line Lender. Upon
the acceptance of a successor’s appointment as Administrative Agent hereunder,
(a) such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender,
(b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of their respective duties and obligations hereunder or under the other Loan
Documents, and (c) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to the retiring L/C Issuer
to effectively assume the obligations of the retiring L/C Issuer with respect
to such Letters of Credit.


	
  

 	
  

 
	
 10.07

 	
 Non-Reliance on Administrative Agent and Other Lenders.

 


          Each Lender
and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent 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 and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent 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.


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 10.08

 	
 No Other Duties; Etc.

 


          Anything
herein to the contrary notwithstanding, none of the bookrunners, arrangers,
syndication agents, documentation agents or co-agents shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent,
a Lender or the L/C Issuer hereunder.


	
  

 	
  

 
	
 10.09

 	
 Administrative Agent May File Proofs of Claim.

 


          In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective
of whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:


	
  

 	
  

 
	
  

 	
           (a)          to
 file and prove a claim for the whole amount of the principal and interest
 owing and unpaid in respect of the Loans, L/C Obligations and all other
 Obligations (other than obligations under Swap Contracts or Treasury
 Management Agreements to which the Administrative Agent is not a party) that
 are owing and unpaid and to file such other documents as may be necessary or
 advisable in order to have the claims of the Lenders, the L/C Issuer and the
 Administrative Agent (including any claim for the reasonable compensation,
 expenses, disbursements and advances of the Lenders, the L/C Issuer and the
 Administrative Agent and their respective agents and counsel and all other
 amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections
 2.03(h) and (i), 2.09 and 11.04) allowed in such
 judicial proceeding; and

 
	
  

 	
  

 
	
  

 	
           (b)          to
 collect and receive any monies or other property payable or deliverable on
 any such claims and to distribute the same;

 


and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Lender and the L/C Issuer to make such payments to
the Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders and the L/C
Issuer, to pay to the Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Administrative Agent
and its agents and counsel, and any other amounts due the Administrative Agent
under Sections 2.09 and 11.04.


          Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender or the L/C
Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.


	
  

 	
  

 
	
 10.10

 	
 Collateral and Guaranty Matters.

 


          Each of the
Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at
its option and in its discretion, 


90









	
  

 	
  

 
	
  

 	
             (a)          to
 release any Lien on any Collateral granted to or held by the Administrative
 Agent under any Loan Document (i) upon
 termination of the Aggregate Revolving Commitments and payment in full of all
 Obligations under the Loan Documents (other than contingent indemnification
 obligations) and the expiration or termination of all Letters of Credit, (ii) that is transferred or to be
 transferred as part of or in connection with any Disposition permitted
 hereunder or under any other Loan Document or any Involuntary Disposition, or
 (iii) as approved in accordance with Section
 11.01;

 
	
  

 	
  

 
	
  

 	
             (b)          to
 subordinate any Lien on any property granted to or held by the Administrative
 Agent under any Loan Document to the holder of any Lien on such property that
 is permitted by Section 8.01(i); and

 
	
  

 	
  

 
	
  

 	
             (c)          to
 release any Guarantor from its obligations under the Guaranty if such Person
 ceases to be a Subsidiary as a result of a transaction permitted hereunder. 

 
	
  

 	
  

 
	
  

 	
 Upon request by the Administrative Agent at any time, the Required
 Lenders will confirm in writing the Administrative Agent’s authority to
 release or subordinate its interest in particular types or items of property,
 or to release any Guarantor from its obligations under the Guaranty, pursuant
 to this Section 10.10.

 


ARTICLE XI 


MISCELLANEOUS 


	
  

 	
  

 
	
 11.01

 	
 Amendments, Etc.

 


          No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Borrower or any other Loan Party
therefrom, shall be effective unless in writing signed by the Required Lenders
and the Borrower or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, further, that 


          (a)        no
such amendment, waiver or consent shall:


	
  

 	
  

 	
  

 
	
  

 	
  

 	
               (i)           extend
 or increase the Revolving Commitment of a Lender (or reinstate any Revolving
 Commitment terminated pursuant to Section 9.02) without the written
 consent of such Lender whose Revolving Commitment is being extended or
 increased (it being understood and agreed that a waiver of any condition
 precedent set forth in Section 5.03 or of any Default or a mandatory
 reduction in Revolving Commitments is not considered an extension or increase
 in Revolving Commitments of any Lender);

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
               (ii)          postpone
 any date fixed by this Agreement or any other Loan Document for any payment
 of principal (excluding mandatory prepayments), interest, fees or other
 amounts due to the Lenders (or any of them) or any scheduled or mandatory
 reduction of the Revolving Commitments hereunder or under any other Loan
 Document without the written consent of each Lender entitled to receive such
 payment or whose Revolving Commitments are to be reduced;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
               (iii)         reduce
 the principal of, or the rate of interest specified herein on, any Loan or
 L/C Borrowing, or (subject to clause (i) of the final proviso to this Section
 11.01) any fees or other amounts payable hereunder or under any other
 Loan Document without the written consent of each Lender entitled to receive
 such payment of principal, interest, fees or other amounts; provided, however,
 that only the consent of the Required Lenders shall be necessary to amend the
 definition of “Default Rate” or to waive any obligation of the Borrower to
 pay interest or Letter of Credit Fees at the Default Rate;

 


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               (iv)          change
 any provision of this Section 11.01(a) or the definition of “Required
 Lenders” without the written consent of each Lender;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
               (v)           release
 all or substantially all of the Collateral without the written consent
 of each Lender;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
               (vi)          release
 the Borrower or, except in connection
 with a merger or consolidation permitted under Section 8.04 or a
 Disposition permitted under Section 8.05, all or substantially
 all of the Guarantors without the written consent of each Lender;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
               (vii)         amend
 Section 1.06 or the definition of “Alternative Currency” without
 the written consent of each Lender;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
               (viii)        amend
 Section 8.03(f) to increase the amount of Indebtedness permitted
 thereby without the consent of the Supermajority Lenders; or

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
               (ix)          amend
 or waive Section 8.11 (or any of the definitions used for purposes of
 calculating the financial ratios contained therein) or waive any Event of
 Default arising from any breach of Section 8.11 without the consent of
 the Supermajority Lenders;

 
	
  

 	
  

 	
  

 
	
  

 	
           (b)          unless
 also signed by the L/C Issuer, no amendment, waiver or consent shall affect
 the rights or duties of the L/C Issuer under this Agreement or any Issuer
 Document relating to any Letter of Credit issued or to be issued by it;

 
	
  

 	
  

 	
  

 
	
  

 	
           (c)          unless
 also signed by the Swing Line Lender, no amendment, waiver or consent shall
 affect the rights or duties of the Swing Line Lender under this Agreement;
 and

 
	
  

 	
  

 	
  

 
	
  

 	
           (d)          unless
 also signed by the Administrative Agent, no amendment, waiver or consent
 shall affect the rights or duties of the Administrative Agent under this
 Agreement or any other Loan Document;

 


provided, however, that notwithstanding
anything to the contrary herein, (i) the Administrative Agent Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto, (ii) no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder (and any
amendment, waiver or consent which by its terms requires the consent of all
Lenders or each affected Lender may be effected with the consent of the
applicable Lenders other than Defaulting Lenders), except that (x) the
Revolving Commitment of any Defaulting Lender may not be increased or extended
without the consent of such Defaulting Lender and (y) any waiver, amendment or
modification requiring the consent of all Lenders or each affected Lender that
by its terms affects any Defaulting Lender more adversely than other affected
Lenders shall require the consent of such Defaulting Lender, (iii) each Lender is entitled to vote as such Lender sees fit on any
bankruptcy reorganization plan that affects the Loans, and each Lender
acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of
the United States supersede the unanimous consent provisions set forth herein
and (iv) the Required Lenders shall determine whether or not to allow a Loan
Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding and such determination shall be binding on all of the
Lenders.


92






Notwithstanding any provision herein to the contrary, this Agreement
may be amended (or amended and restated) with the written consent of the
Required Lenders, the Administrative Agent and the Borrower (i) to add one or
more additional revolving credit or term loan facilities to this Agreement and
to permit the extensions of credit and all related obligations and liabilities
arising in connection therewith from time to time outstanding to share ratably
(or in a subordinated position to the existing facilities hereunder) in the
benefits of this Agreement and the other Loan Documents with the obligations
and liabilities from time to time outstanding in respect of the existing
facilities hereunder and (ii) in connection with the foregoing, to permit, as
deemed appropriate by the Administrative Agent and approved by the Required
Lenders, the Lenders providing such additional credit facilities in any
required vote or action required to be approved by the Required Lenders or by
any other number or percentage of the Lenders hereunder.


	
  

 	
  

 
	
 11.02

 	
 Notices and Other Communications; Facsimile Copies.

 


          (a)          Notices
Generally. Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in subsection (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, and all notices
and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:


	
  

 	
  

 
	
  

 	
               (i)          if
 to the Borrower or any other Loan Party, the Administrative Agent, the L/C
 Issuer or the Swing Line Lender, to the address, telecopier number,
 electronic mail address or telephone number specified for such Person on Schedule
 11.02; and 

 
	
  

 	
  

 
	
  

 	
               (ii)          if
 to any other Lender, to the address, telecopier number, electronic mail
 address or telephone number specified in its Administrative Questionnaire (including,
 as appropriate, notices delivered solely to the Person designated by a Lender
 on its Administrative Questionnaire then in effect for the delivery of
 notices that may contain material non-public information relating to the
 Borrower).

 


          Notices and
other communications sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received;
notices and other communications 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 and other
communications delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).


          (b)          Electronic
Communications. Notices and other communications to the Lenders and the L/C
Issuer hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided that the foregoing shall
not apply to notices to any Lender or the L/C Issuer pursuant to Article II
if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its 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.


93





          Unless the
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)          The
Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY
OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY
AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no
event shall the Administrative Agent or any of its Related Parties
(collectively, the “Agent Parties”) have any liability to the Borrower,
any Lender, the L/C Issuer or any other Person for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or otherwise)
arising out of the Borrower’s or the Administrative Agent’s transmission of
Borrower Materials through the Internet, except to the extent that such losses,
claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to the Borrower, any
Lender, the L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).


          (d)          
Change of Address, Etc. Each of the Borrower, the Administrative Agent, the
L/C Issuer and the Swing Line Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to
the other parties hereto. Each other Lender may change its address, telecopier
or telephone number for notices and other communications hereunder by notice to
the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line
Lender. In addition, each Lender agrees to notify the Administrative Agent from
time to time to ensure that the Administrative Agent has on record (i) an
effective address, contact name, telephone number, telecopier number and
electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender. Furthermore, each Public
Lender agrees to cause at least one individual at or on behalf of such Public
Lender to at all times have selected the “Private Side Information” or similar
designation on the content declaration screen of the Platform in order to
enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable Law, including United States
Federal and state securities Laws, to make reference to Borrower Materials that
are not made available through the “Public Side Information” portion of the
Platform and that may contain material non-public information with respect to
the Borrower or its securities for purposes of United States Federal or state
securities laws. 


          (e)          Reliance
by Administrative Agent, L/C Issuer and Lenders. The Administrative Agent,
the L/C Issuer and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Loan Notices and Swing Line Loan Notices)
purportedly given by or on behalf of any Loan Party even if (i) such notices were
not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof.
The Loan Parties shall indemnify the Administrative Agent, the L/C Issuer, each
Lender and the Related Parties of each of them from all losses, costs, expenses
and liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of a Loan Party. All telephonic notices to
and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.


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 11.03

 	
 No Waiver; Cumulative Remedies; Enforcement.

 


          No failure
by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.


          Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan
Documents against the Loan Parties or any of them shall be vested exclusively
in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 10.01 for the benefit of all the Lenders and the
L/C Issuer; provided, however, that the foregoing shall not
prohibit (a) the Administrative Agent from exercising on its own behalf the
rights and remedies that inure to its benefit (solely in its capacity as
Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C
Issuer or the Swing Line Lender from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer or Swing Line
Lender, as the case may be) hereunder and under the other Loan Documents, (c)
any Lender from exercising setoff rights in accordance with Section 11.08
(subject to the terms of Section 2.13), or (d) any Lender from filing
proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Loan Party under any Debtor Relief
Law; and provided, further, that if at any time there is no
Person acting as Administrative Agent hereunder and under the other Loan
Documents, then (i) the Required Lenders shall have the rights otherwise
ascribed to the Administrative Agent pursuant to Section 10.01 and (ii)
in addition to the matters set forth in clauses (b), (c) and (d) of the
preceding proviso and subject to Section 2.13, any Lender may, with the
consent of the Required Lenders, enforce any rights and remedies available to
it and as authorized by the Required Lenders.


	
  

 	
  

 
	
 11.04

 	
 Expenses; Indemnity; and Damage Waiver.

 


          (a)          Costs
and Expenses. The Loan Parties shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the 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 L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the fees, charges and disbursements of any counsel for
the Administrative Agent, any Lender or the L/C Issuer), and shall pay all reasonable
fees and time charges for attorneys who may be employees of the Administrative
Agent, any Lender or the L/C Issuer, in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the other
Loan Documents, including its rights under this Section, or (B) 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.


95





          (b)          Indemnification
by the Loan Parties. The Loan Parties shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, 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 counsel for any Indemnitee), and shall
indemnify and hold harmless each Indemnitee from all fees and time charges and
disbursements for attorneys who may be employees of any Indemnitee, incurred by
any Indemnitee or asserted against any Indemnitee by any third party or by the
Borrower or any other Loan Party 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
thereunder or the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent
thereof) and its Related Parties only, the administration of this Agreement and
the other Loan Documents, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the L/C Issuer
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 a Loan Party
or any of its Subsidiaries, or any Environmental Liability related in any way
to a Loan Party 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 the Borrower or any other Loan Party, and regardless of
whether any Indemnitee is a party thereto, in all cases, whether or not caused
by or arising, in whole or in part, out of the comparative, contributory or
sole negligence of the Indemnitee; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee or (y)
result from a claim brought by the Borrower or any other Loan Party against an
Indemnitee for a material breach of such Indemnitee’s obligations hereunder or
under any other Loan Document, if the Borrower or such Loan Party has obtained
a final and nonappealable judgment in its favor on such claim as determined by
a court of competent jurisdiction.


          (c)          Reimbursement
by Lenders. To the extent that the Loan Parties for any reason fail to
indefeasibly pay any amount required under subsection (a) or (b) of this
Section to be paid by them to the Administrative Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer 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
Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity
as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with
such capacity. The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.12(d).


          (d)          Waiver
of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Loan Party shall assert, and each Loan Party hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
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 subsection (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 other than for damages resulting from the gross
negligence or willful misconduct of such Indemnitee or from a material breach
of such Indemnitee’s obligations under the Loan Documents as determined by a
final judgment of a court of competent jurisdiction.


96





          (e)          Payments.
All amounts due under this Section shall be payable not later than ten (10)
Business Days after demand therefor.


          (f)          Survival.
The agreements in this Section shall survive the resignation of the
Administrative Agent and the L/C Issuer, the replacement of any Lender, the
termination of the Revolving Commitments and the repayment, satisfaction or
discharge of all the other Obligations.


	
  

 	
  

 
	
 11.05

 	
 Payments Set Aside.

 


          To the
extent that any payment by or on behalf of any Loan Party is made to the
Administrative Agent, the L/C Issuer or any Lender, or the Administrative
Agent, the L/C Issuer or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent,
the L/C Issuer or such Lender in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any proceeding under any Debtor
Relief Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such setoff had not occurred, and (b) each Lender and the L/C Issuer severally
agrees to pay to the Administrative Agent upon demand its applicable share
(without duplication) of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the applicable
Overnight Rate from time to time in effect, in the applicable currency of such
recovery or payment. The obligations of the Lenders and the L/C Issuer under
clause (b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.


	
  

 	
  

 
	
 11.06

 	
 Successors and Assigns.

 


          (a)          Successors
and Assigns Generally. The provisions of this Agreement and the other Loan
Documents shall be binding upon and inure to the benefit of the parties hereto
and thereto and their respective successors and assigns permitted hereby,
except that the Borrower may not assign or otherwise transfer any of its rights
or obligations hereunder or thereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an assignee
in accordance with the provisions of subsection (b) of this Section, (ii) by
way of participation in accordance with the provisions of subsection (d) of
this Section or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (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 subsection (d)
of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the L/C Issuer and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.


97





          (b)      Assignments
by Lenders. Any Lender may at any time assign to one or more assignees all
or a portion of its rights and obligations under this Agreement and the other
Loan Documents (including all or a portion of its Revolving Commitment and the
Loans (including for purposes of this subsection (b), participations in L/C
Obligations and Swing Line Loans) at the time owing to it); provided
that any such assignment shall be subject to the following conditions:


	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (i)      Minimum
 Amounts.

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (A)          in
 the case of an assignment of the entire remaining amount of the assigning
 Lender’s Revolving Commitment and the Loans at the time owing to it or in the
 case of an assignment to a Lender, an Affiliate of a Lender or an Approved
 Fund, no minimum amount need be assigned; and

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (B)          in
 any case not described in subsection (b)(i)(A) of this Section, the aggregate
 amount of the Revolving Commitment (which for this purpose includes Loans
 outstanding thereunder) or, if the Revolving 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 with respect to such assignment is delivered to the
 Administrative Agent or, if “Trade Date” is specified in the Assignment and
 Assumption, as of the Trade Date, shall not be less than $5,000,000 unless
 each of the Administrative Agent and, so long as no Event of Default has
 occurred and is continuing, the Borrower otherwise consents (each such
 consent not to be unreasonably withheld or delayed); provided, however,
 that concurrent assignments to members of an Assignee Group and concurrent
 assignments from members of an Assignee Group to a single assignee (or to an
 assignee and members of its Assignee Group) will be treated as a single
 assignment for purposes of determining whether such minimum amount has been
 met;

 
	
  

 	
  

 	
  

 
	
  

 	
           (ii)      Required
 Consents. No consent shall be required for any assignment except to the
 extent required by subsection (b)(i)(B) of this Section and, in addition:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (A)          the
 consent of the Borrower (such consent not to be unreasonably withheld or
 delayed) shall be required unless (1) an Event of Default has occurred and is
 continuing at the time of such assignment or (2) such assignment is to a
 Lender, an Affiliate of a Lender or an Approved Fund; provided, that,
 the Borrower shall be deemed to have consented to any such assignment unless
 it shall object thereto by written notice to the Administrative Agent within
 ten (10) Business Days after having received notice thereof;

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (B)          the
 consent of the Administrative Agent (such consent not to be unreasonably
 withheld or delayed) shall be required for assignments if such assignment is
 to a Person that is not a Lender, an Affiliate of such Lender or an Approved
 Fund with respect to such Lender.

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (C)          the
 consent of the L/C Issuer (such consent not to be unreasonably withheld or
 delayed) shall be required for any assignment that increases the obligation
 of the assignee to participate in exposure under one or more Letters of
 Credit (whether or not then outstanding); and

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
           (D)          the
 consent of the Swing Line Lender (such consent not to unreasonably withheld
 or delayed) shall be required for any assignment in respect of the Revolving
 Commitment if such assignment is to a Person that is not a Lender, an
 Affiliate of such Lender or an Approved Fund with respect to such Lender.

 


98









	
  

 	
  

 	
  

 
	
  

 	
           (iii)          Assignment
 and Assumption. The parties to each assignment shall execute and deliver
 to the Administrative Agent an Assignment and Assumption, together with a
 processing and recordation fee in the amount of $3,500; provided, however,
 that the Administrative Agent may, in its sole discretion, elect to waive
 such processing and recordation fee in the case of any assignment. The
 assignee, if it is not a Lender, shall deliver to the Administrative Agent an
 Administrative Questionnaire.

 
	
  

 	
  

 	
  

 
	
  

 	
           (iv)          No
 Assignment to Certain Persons. No such assignment shall be made (A) to
 the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B) to any
 Defaulting Lender or any of its Subsidiaries, or any Person who, upon
 becoming a Lender hereunder, would constitute any of the foregoing Persons
 described in this clause (B) or (C) to a natural person.

 
	
  

 	
  

 	
  

 
	
  

 	
           (v)          Certain
 Additional Payments. In connection with any assignment of rights and
 obligations of any Defaulting Lender hereunder, no such assignment shall be
 effective unless and until, in addition to the other conditions thereto set
 forth herein, the parties to the assignment shall make such additional
 payments to the Administrative Agent in an aggregate amount sufficient, upon
 distribution thereof as appropriate (which may be outright payment, purchases
 by the assignee of participations or subparticipations, or other compensating
 actions, including funding, with the consent of the Borrower and the
 Administrative Agent, the applicable pro rata share of Loans previously
 requested but not funded by the Defaulting Lender, to each of which the
 applicable assignee and assignor hereby irrevocably consent), to (x) pay and
 satisfy in full all payment liabilities then owed by such Defaulting Lender
 to the Administrative Agent or any Lender hereunder (and interest accrued
 thereon) and (y) acquire (and fund as appropriate) its full pro rata share of
 all Loans and participations in Letters of Credit and Swing Line Loans in
 accordance with its Applicable Percentage. Notwithstanding the foregoing, in
 the event that any assignment of rights and obligations of any Defaulting
 Lender hereunder shall become effective under applicable Law without
 compliance with the provisions of this paragraph, then the assignee of such
 interest shall be deemed to be a Defaulting Lender for all purposes of this
 Agreement until such compliance occurs.

 


Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the assignee thereunder shall be a party to
this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, 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, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption 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 3.01, 3.04, 3.05
and 11.04 with respect to facts and circumstances occurring prior to the
effective date of such assignment. Upon request, the Borrower (at its expense)
shall execute and deliver a Note to the assignee Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this subsection 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 subsection (d) of this Section.


99






          (c)          Register.
The Administrative Agent, acting solely for this purpose as an agent of the
Borrower (and such agency being solely for tax purposes), shall maintain at the
Administrative Agent’s Office a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Revolving Commitments of, and principal amounts of the
Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”). The entries in the Register shall be
conclusive absent manifest error, and the Borrower, the 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. In addition, the
Administrative Agent shall maintain on the Register information regarding the
designation, and revocation of designation, of any Lender as a Defaulting
Lender. The Register shall be available for inspection by the Borrower and any
Lender, 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, the Borrower
or the Administrative Agent, sell participations to any Person (other than a
natural person, a Defaulting Lender or the Borrower or any of the 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 Revolving Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations and/or Swing Line 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) the
Borrower, the Administrative Agent, the other Lenders and the L/C Issuer 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, waiver or other modification described in clauses (i) through (vii)
of the Section 11.01(a) that affects such Participant. Subject to
subsection (e) of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section
11.08 as though it were a Lender, provided such Participant agrees
to be subject to Section 2.13 as though it were a Lender.


          (e)          Limitation
on Participant Rights. A Participant shall not be entitled to receive any
greater payment under Section 3.01 or 3.04 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 the Borrower’s 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
3.01 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 3.01(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 (including under its
Note, if any) to secure obligations of such Lender, including 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.



100






          (g)          Resignation
as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America
assigns all of its Revolving Commitment and Loans pursuant to subsection (b)
above, Bank of America may, (i) upon thirty (30) days’ notice to the Borrower
and the Lenders, resign as L/C Issuer and/or (ii) upon thirty (30) days’ notice
to the Borrower, resign as Swing Line Lender. In the event of any such
resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled
to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder; provided, however, that no failure by the Borrower to
appoint any such successor shall affect the resignation of Bank of America as L/C
Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as
L/C Issuer, it shall retain all the rights, powers, privileges and duties of
the L/C Issuer hereunder with respect to all Letters of Credit outstanding as
of the effective date of its resignation as L/C Issuer and all L/C Obligations
with respect thereto (including the right to require the Lenders to make Base
Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain
all the rights of the Swing Line Lender provided for hereunder with respect to
Swing Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate Loans
or fund risk participations in outstanding Swing Line Loans pursuant to Section
2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line
Lender, (1) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line
Lender, as the case may be, and (2) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank
of America with respect to such Letters of Credit.




	
  

 	
  

 
	
 11.07

 	
 Treatment of Certain Information; Confidentiality.

 


          Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, advisors and
representatives and to any direct or
indirect contractual counterparty (or such contractual counterparty’s
professional advisor) under any Swap Contract relating to Loans outstanding
under this Agreement (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority 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, (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 a Loan
Party and its obligations, (g) with the consent of the Borrower 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 the Administrative Agent,
any Lender, the L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower. 


          For
purposes of this Section, “Information” means all information received
from a Loan Party or any Subsidiary relating to the Loan Parties or any
Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the
L/C Issuer on a nonconfidential basis prior to disclosure by such Loan Party or
any Subsidiary, provided that, in the case of information received from
a Loan Party or any Subsidiary after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section
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.


          Each of the
Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Borrower
or a Subsidiary, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle
such material non-public information in accordance with applicable Law, including
United States Federal and state securities Laws.


101









	
  

 	
  

 
	
 11.08

 	
 Set-off.

 


          If an Event
of Default shall have occurred and be continuing, each Lender, the L/C Issuer
and each of their respective Affiliates is hereby authorized at any time and
from time to time, after obtaining the prior written consent of the
Administrative Agent (such consent not to be unreasonably withheld or delayed),
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) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, the L/C Issuer or any such
Affiliate to or for the credit or the account of the Borrower or any other Loan
Party against any and all of the obligations of the Borrower or such Loan Party
now or hereafter existing under this Agreement or any other Loan Document to
such Lender or the L/C Issuer, irrespective of whether or not such Lender or
the L/C Issuer shall have made any demand under this Agreement or any other
Loan Document and although such obligations of the Borrower or such Loan Party
may be contingent or unmatured or are owed to a branch or office of such Lender
or the L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness; provided, that, in the event that
any Defaulting Lender shall exercise any such right of setoff, (x) all amounts
so set off shall be paid over immediately to the Administrative Agent for
further application in accordance with the provisions of Section 2.15
and, pending such payment, shall be segregated by such Defaulting Lender from
its other funds and deemed held in trust for the benefit of the Administrative
Agent and the Lenders and (y) the Defaulting Lender shall provide promptly to
the Administrative Agent a statement describing in reasonable detail the
Obligations owing to such Defaulting Lender as to which it exercised such right
of setoff. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the L/C Issuer or their
respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify
the Borrower and the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not
affect the validity of such setoff and application.


	
  

 	
  

 
	
 11.09

 	
 Interest Rate Limitation.

 


          Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the “Maximum Rate”).
If the Administrative Agent or any Lender shall receive interest in an amount
that exceeds the Maximum Rate, the excess interest shall be applied to the
principal of the Loans or, if it exceeds such unpaid principal, refunded to the
Borrower. In determining whether the interest contracted for, charged, or
received by the Administrative Agent or a Lender exceeds the Maximum Rate, such
Person may, to the extent permitted by applicable Law, (a) characterize any
payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize, prorate, allocate, and spread in equal or unequal parts the total
amount of interest throughout the contemplated term of the Obligations
hereunder.


	
  

 	
  

 
	
 11.10

 	
 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 the other Loan Documents 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 Section 5.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof that, when
taken together, bear the signatures of each of the other parties hereto.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy or other electronic imaging means shall be effective as delivery of a
manually executed counterpart of this Agreement.


102









	
  

 	
  

 
	
 11.11

 	
 Survival of Representations and Warranties.

 


          All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith
or therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall remain
unpaid or unsatisfied or any Letter of Credit shall remain outstanding.


	
  

 	
  

 
	
 11.12

 	
 Severability.

 


          If any
provision of this Agreement or the other Loan Documents is held to be illegal,
invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not
be affected or impaired thereby and (b) the parties shall endeavor in good
faith negotiations to replace the illegal, invalid or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Without limiting the
foregoing provisions of this Section 11.12, if and to the extent that
the enforceability of any provisions in this Agreement relating to Defaulting
Lenders shall be limited by Debtor Relief Laws, as determined in good faith by
the Administrative Agent, the L/C Issuer or the Swing Line Lender, as
applicable, then such provisions shall be deemed to be in effect only to the
extent not so limited.


	
  

 	
  

 
	
 11.13

 	
 Replacement of Lenders.

 


          If (i) any
Lender requests compensation under Section 3.04, (ii) the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, or
(iii) a Lender (a “Non-Consenting Lender”) does not consent to a
proposed change, waiver, discharge or termination with respect to any Loan
Document that has been approved by the Required Lenders as provided in Section
11.01 but requires unanimous consent of all Lenders or all Lenders directly
affected thereby (as applicable) and, or (iv) any Lender is a Defaulting
Lender, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the 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 11.06), 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:


	
  

 	
  

 
	
  

 	
           (a)          the
 Borrower shall have paid to the Administrative Agent the assignment fee
 specified in Section 11.06(b);

 
	
  

 	
  

 
	
  

 	
           (b)          such
 Lender shall have received payment of an amount equal to one hundred percent
 (100%) of the outstanding principal of its Loans and L/C Advances, accrued
 interest thereon, accrued fees and all other amounts payable to it hereunder
 and under the other Loan Documents (including any amounts under Section
 3.05) from the assignee (to the extent of such outstanding principal and
 accrued interest and fees) or the Borrower (in the case of all other
 amounts);

 


103









	
  

 	
  

 
	
  

 	
           (c)          in
 the case of any such assignment resulting from a claim for compensation under
 Section 3.04 or payments required to be made pursuant to Section
 3.01, such assignment will result in a reduction in such compensation or
 payments thereafter;

 
	
  

 	
  

 
	
  

 	
           (d)          such
 assignment does not conflict with applicable Laws; and

 
	
  

 	
  

 
	
  

 	
           (e)          in
 the case of any such assignment resulting from a Non-Consenting Lender’s
 failure to consent to a proposed change, waiver, discharge or termination
 with respect to any Loan Document, the applicable replacement bank, financial
 institution or Fund consents to the proposed change, waiver, discharge or
 termination; provided that the failure by such Non-Consenting Lender
 to execute and deliver an Assignment and Assumption shall not impair the
 validity of the removal of such Non-Consenting Lender and the mandatory
 assignment of such Non-Consenting Lender’s Revolving Commitments and
 outstanding Loans and participations in L/C Obligations and Swing Line Loans
 pursuant to this Section 11.13 shall nevertheless be effective without
 the execution by such Non-Consenting Lender of an Assignment and Assumption.

 


          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 the Borrower to require such assignment and delegation cease to
apply.


	
  

 	
  

 
	
 11.14

 	
 Governing Law; Jurisdiction; Etc.

 


          (a)          GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION.


          (b)          SUBMISSION
TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING
ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.


104






          (c)          WAIVER
OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT 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 11.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.


	
  

 	
  

 
	
 11.15

 	
 Waiver of Right to Trial by Jury.

 


          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.


	
  

 	
  

 
	
 11.16

 	
 Electronic Execution of Assignments and Certain Other Documents.
 

 


          The words
“execution,” “signed,” “signature” and words of like import in any Assignment
and Assumption or in any amendment or other modification hereof (including
waivers and consents) 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 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.


	
  

 	
  

 
	
 11.17

 	
 USA PATRIOT Act.

 


          Each Lender
that is subject to the Act (as hereinafter defined) and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Act”), it is required
to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to
identify the Borrower in accordance with the Act. The Borrower shall, promptly
following a request by the Administrative Agent or any Lender, provide all
documentation and other information that the Administrative Agent or such
Lender requests in order to comply with its ongoing obligations under
applicable “know your customer” and anti-money laundering rules and
regulations, including the Act.


105









	
  

 	
  

 
	
 11.18

 	
 No Advisory or Fiduciary Relationship.

 


          In
connection with all aspects of each transaction contemplated hereby (including
in connection with any amendment, waiver or other modification hereof or of any
other Loan Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates’
understanding, that: (a)(i) the arranging and other services regarding
this Agreement provided by the Administrative Agent, the Joint Lead Arrangers
and the Lenders are arm’s-length commercial transactions between the Borrower
and its Affiliates, on the one
hand, and the Administrative Agent, the Joint Lead Arrangers and the Lenders,
on the other hand, (ii) the Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (iii)
the Borrower is capable of evaluating, and understands and accepts, the terms,
risks and conditions of the transactions contemplated hereby and by the other
Loan Documents; (b)(i) the Administrative Agent, the Joint Lead Arrangers and
the Lenders each are and have been acting solely as a principal and, except as
expressly agreed in writing by the relevant parties, have not been, are not and
will not be acting as an advisor, agent or fiduciary, for the Borrower or any
of Affiliates or any other Person and (ii) neither the Administrative Agent nor
the Joint Lead Arrangers nor the Lenders has any obligation to the Borrower or
any of its Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan
Documents; and (c) the Administrative Agent, the Joint Lead Arrangers and the
Lenders and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Borrower and
its Affiliates, and neither the Administrative Agent nor the Joint Lead
Arrangers nor the Lenders has any obligation to disclose any of such interests
to the Borrower or its Affiliates. To the fullest extent permitted by law, the
Borrower hereby waives and releases, any claims that it may have against the
Administrative Agent or any of the Joint Lead Arrangers or any of the Lenders
with respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.


	
  

 	
  

 
	
 11.19

 	
 Judgment Currency.

 


          If, for the
purposes of obtaining judgment in any court, it is necessary to convert a sum
due hereunder or any other Loan Document in one currency into another currency,
the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the first currency
with such other currency on the Business Day preceding that on which final
judgment is given. The obligation of the Borrower in respect of any such sum
due from it to the Administrative Agent or any Lender hereunder or under the
other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance
with the applicable provisions of this Agreement (the “Agreement Currency”),
be discharged only to the extent that on the Business Day following receipt by
the Administrative Agent or such Lender, as the case may be, of any sum
adjudged to be so due in the Judgment Currency, the Administrative Agent or
such Lender, as the case may be, may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency. If the
amount of the Agreement Currency so purchased is less than the sum originally
due to the Administrative Agent or any Lender from the Borrower in the
Agreement Currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or
such Lender, as the case may be, against such loss. If the amount of the
Agreement Currency so purchased is greater than the sum originally due to the
Administrative Agent or any Lender in such currency, the Administrative Agent
or such Lender, as the case may be, agrees to return the amount of any excess
to the Borrower (or to any other Person who may be entitled thereto under
applicable law).


106









	
  

 	
  

 
	
 11.20

 	
 Qualifying IPO.

 


          The parties
hereto agree that if the Qualifying IPO does not occur on or before December
31, 2010, this Agreement and all other Loan Documents shall be automatically
terminated and declared null and void.


[SIGNATURE PAGES FOLLOW]


107







          IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.


	
  

 	
  

 	
  

 	
  

 
	
 BORROWER:

 	
 EXAMWORKS GROUP, INC.,

 
	
  

 	
 a Delaware corporation

 
	
  

 	
  

 
	
  

 	
 By:

 	
      /s/ J. Miguel
 Fernandez de Castro

 	
  

 
	
  

 	
 Name: J. Miguel Fernandez de Castro

 
	
  

 	
 Title: Senior Vice President and Chief Financial
 Officer

 
	
  

 	
  

 
	
 GUARANTORS:

 	
 EXAMWORKS, INC., a Delaware corporation

 
	
  

 	
  

 
	
  

 	
 By:

 	
      /s/ J. Miguel
 Fernandez de Castro

 	
  

 
	
  

 	
 Name: J. Miguel Fernandez de Castro

 
	
  

 	
 Title: Senior Vice President and Chief Financial
 Officer

 
	
  

 	
  

 
	
  

 	
 EXAMWORKS CANADA, INC., a Delaware corporation

 
	
  

 	
 EXAMWORKS EUROPE, INC., a Delaware corporation

 
	
  

 	
 FLORIDA MEDICAL SPECIALISTS, INC.,

 
	
  

 	
 a New Jersey corporation

 
	
  

 	
 MARQUIS MEDICAL ADMINISTRATORS, INC.,

 
	
  

 	
 a New York corporation

 
	
  

 	
 THE RICWEL CORPORATION,

 
	
  

 	
 an Ohio corporation

 
	
  

 	
 SOUTHWEST MEDICAL EXAMINATION SERVICES, INC., 

 
	
  

 	
 a Texas corporation

 
	
  

 	
 PACIFIC BILLING SERVICES, INC.,

 
	
  

 	
 a Texas corporation

 
	
  

 	
 DIAGNOSTIC IMAGING INSTITUTE, INC.,

 
	
  

 	
 a Texas corporation

 
	
  

 	
 EXIGERE CORPORATION, a Washington corporation

 
	
  

 	
 NETWORK MEDICAL REVIEW COMPANY,

 
	
  

 	
 LTD., an Illinois corporation

 
	
  

 	
 NETWORK MEDICAL MANAGEMENT COMPANY,

 
	
  

 	
 LTD., an Illinois corporation

 
	
  

 	
 INSURANCE APPEALS, LTD.,

 
	
  

 	
 an Illinois corporation

 
	
  

 	
 ELITE PHYSICIANS, LTD.,

 
	
  

 	
 an Illinois corporation

 
	
  

 	
 WORKERSFIRST, INC.,

 
	
  

 	
 an Illinois corporation

 
	
  

 	
  

 
	
  

 	
 By:

 	
      /s/ J. Miguel
 Fernandez de Castro

 	
  

 
	
  

 	
 Name: J. Miguel Fernandez de Castro

 
	
  

 	
 Title: Senior Vice President and Chief Financial
 Officer

 



EXAMWORKS GROUP, INC.
CREDIT AGREEMENT









	
  

 	
  

 	
  

 	
  

 
	
  

 	
 RICWEL OF WEST VIRGINIA, LLC,

 
	
  

 	
 a West Virginia limited liability company

 
	
  

 	
 CFO MEDICAL SERVICES, LLC,

 
	
  

 	
 a New Jersey limited liability company

 
	
  

 	
  

 
	
  

 	
 By: ExamWorks, Inc., its sole member and manager

 
	
  

 	
  

 
	
  

 	
 By:

 	
      /s/ J. Miguel
 Fernandez de Castro

 	
  

 
	
  

 	
 Name: J. Miguel Fernandez de Castro

 
	
  

 	
 Title: Senior Vice President and Chief Financial
 Officer

 
	
  

 	
  

 
	
  

 	
 IME SOFTWARE SOLUTIONS, LLC,

 
	
  

 	
 a Michigan limited liability company

 
	
  

 	
 EXAMWORKS REVIEW SERVICES, LLC,

 
	
  

 	
 a Delaware limited liability company

 
	
  

 	
 EXAMWORKS EVALUATIONS OF NEW YORK,

 
	
  

 	
 LLC, a New York limited liability company

 
	
  

 	
  

 
	
  

 	
 By: ExamWorks, Inc., its sole member 

 
	
  

 	
  

 
	
  

 	
 By:

 	
      /s/ J. Miguel Fernandez de Castro

 	
  

 
	
  

 	
 Name: J. Miguel Fernandez de Castro

 
	
  

 	
 Title: Senior Vice President and Chief Financial
 Officer

 



EXAMWORKS GROUP, INC.
CREDIT AGREEMENT









	
  

 	
  

 	
  

 	
  

 
	
 ADMINISTRATIVE 

 AGENT:

 	
 

 BANK OF AMERICA, N.A.,

 
	
  

 	
 as Administrative Agent

 
	
  

 	
  

 
	
  

 	
 By:

 	
    /s/ Anne M. Zeschke

 	
  

 
	
  

 	
 Name: Anne M. Zeschke

 
	
  

 	
 Title: Vice President

 
	
  

 	
  

 
	
 LENDERS:

 	
 BANK OF AMERICA, N.A.,

 
	
  

 	
 as a Lender, Swing Line Lender and L/C Issuer

 
	
  

 	
  

 
	
  

 	
 By:

 	
    /s/ Shawn Janko

 	
  

 
	
  

 	
 Name: Shawn Janko

 
	
  

 	
 Title: Senior Vice President

 
	
  

 	
  

 
	
  

 	
 GENERAL ELECTRIC CAPITAL CORPORATION,

 
	
  

 	
 as a Lender

 
	
  

 	
  

 
	
  

 	
  

 
	
  

 	
 By:

 	
    /s/ W. Grant Johnston

 	
  

 
	
  

 	
 Name: W. Grant Johnston

 
	
  

 	
 Title: Duly Authorized Signatory

 
	
  

 	
  

 
	
  

 	
 FIFTH THIRD BANK,

 
	
  

 	
 as a Lender

 
	
  

 	
  

 
	
  

 	
 By:

 	
    /s/ Philip Renwick

 	
  

 
	
  

 	
 Name: Philip Renwick

 
	
  

 	
 Title: Vice President

 
	
  

 	
  

 
	
  

 	
 GOLDMAN SACHS BANK USA,

 
	
  

 	
 as a Lender

 
	
  

 	
  

 
	
  

 	
 By:

 	
    /s/ Mark Walton

 	
  

 
	
  

 	
 Name: Mark Walton

 
	
  

 	
 Title: Authorized Signatory

 
	
  

 	
  

 
	
  

 	
 CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,

 
	
  

 	
 as a Lender

 
	
  

 	
  

 
	
  

 	
 By:

 	
    /s/ Mikhail Faybusovich

 	
  

 
	
  

 	
 Name: Mikhail Faybusovich

 
	
  

 	
 Title: Vice President

 
	
  

 	
  

 
	
  

 	
 By:

 	
    /s/ Kevin Buddhdew

 	
  

 
	
  

 	
 Name: Kevin Buddhdew

 
	
  

 	
 Title: Associate

 



EXAMWORKS GROUP, INC.
CREDIT AGREEMENT






	
  

 	
  

 	
  

 	
  

 
	
  

 	
 BARCLAYS BANK PLC,

 
	
  

 	
 as a Lender

 
	
  

 	
  

 
	
  

 	
 By:

 	
    /s/ Ritam Bhalla

 	
  

 
	
  

 	
 Name: Ritam Bhalla

 
	
  

 	
 Title: Vice President

 



EXAMWORKS GROUP, INC.
CREDIT AGREEMENT








Exhibit A


FORM OF LOAN NOTICE


Date:
__________, 201__ 


	
  

 	
  

 
	
 To:

 	
 Bank of
 America, N.A., as Administrative Agent 

 
	
  

 	
  

 
	
 Re:

 	
 Credit Agreement dated as of October 11, 2010 (as amended, modified,
 supplemented or extended from time to time, the “Credit Agreement”) among
 ExamWorks Group, Inc., a Delaware corporation (the “Borrower”), the
 Guarantors from time to time party thereto, the Lenders from time to time
 party thereto and Bank of America, N.A., as Administrative Agent, Swing Line
 Lender and L/C Issuer. Capitalized terms used but not otherwise defined
 herein have the meanings provided in the Credit Agreement. 

 



Ladies and
Gentlemen: 


The
undersigned hereby requests (select one):


o A Borrowing of Revolving Loans


o A conversion or continuation of Revolving Loans 


	
  

 	
  

 
	
 1.

 	
 On
 _______________, 201__ (which is a Business Day). 

 
	
  

 	
  

 
	
 2.

 	
 Amount and
 currency of Borrowing __________. 

 
	
  

 	
  

 
	
 3.

 	
 Comprised of
 ______________ (Type of Loan requested). 

 
	
  

 	
  

 
	
 4.

 	
 For
 Eurocurrency Rate Loans: with an Interest Period of __________ months. 

 


The undersigned Borrower hereby represents and warrants that (a) after
giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments, (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment
and (iii) the aggregate Outstanding Amount of Revolving Loans denominated in
Alternative Currencies shall not exceed the Alternative Currency Sublimit and
(b) each of the conditions set forth in Section 5.03 of the Credit
Agreement has been satisfied on and as of the date of such Borrowing,
conversion or continuation. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 EXAMWORKS
 GROUP, INC.,

 
	
  

 	
 a Delaware
 corporation

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	 

 	
  

 
	
  

 	
 Name:

 
	
  

 	
 Title:

 









Exhibit B


FORM OF SWING LINE LOAN NOTICE


Date:
__________, 201__ 


	
  

 	
  

 
	
 To:

 	
 Bank of
 America, N.A., as Swing Line Lender 

 
	
  

 	
  

 
	
 Cc:

 	
 Bank of
 America, N.A., as Administrative Agent 

 
	
  

 	
  

 
	
 Re:

 	
 Credit Agreement dated as of October 11, 2010 (as amended, modified,
 supplemented or extended from time to time, the “Credit Agreement”)
 among ExamWorks Group, Inc., a Delaware corporation (the “Borrower”),
 the Guarantors from time to time party thereto, the Lenders from time to time
 party thereto and Bank of America, N.A., as Administrative Agent, Swing Line
 Lender and L/C Issuer. Capitalized terms used but not otherwise defined
 herein have the meanings provided in the Credit Agreement. 

 



Ladies and
Gentlemen: 


The
undersigned hereby requests a Swing Line Loan: 


	
  

 	
  

 
	
 1.

 	
 On
 __________, 201__ (a Business Day). 

 
	
  

 	
  

 
	
 2.

 	
 In the
 amount of $__________. 

 


The undersigned Borrower hereby represents and warrants that (a) after
giving effect to such Borrowing of Swing Line Loans, (i) the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments and (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Revolving
Commitment and (b) each of the conditions set forth in Section 5.03 of
the Credit Agreement has been satisfied on and as of the date of such Borrowing
of Swing Line Loans. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 EXAMWORKS
 GROUP, INC.,

 
	
  

 	
 a Delaware
 corporation

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	 

 	
  

 
	
  

 	
 Name:

 
	
  

 	
 Title:

 









Exhibit C


FORM OF REVOLVING NOTE


FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby
promises to pay to _____________________ or registered assigns (the “Lender”),
in accordance with the provisions of the Credit Agreement (as hereinafter
defined), the principal amount of each Revolving Loan from time to time made by
the Lender to the Borrower under that certain Credit Agreement dated as of
October 11, 2010 (as amended, modified, supplemented or extended from time to
time, the “Credit Agreement”) among the Borrower, the Guarantors from
time to time party thereto, the Lenders from time to time party thereto and
Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer. Capitalized terms used but not otherwise defined herein have the meanings
provided in the Credit Agreement. 


The Borrower promises to pay interest on the unpaid principal amount of
each Revolving Loan from the date of such Revolving Loan until such principal
amount is paid in full, at such interest rates and at such times as provided in
the Credit Agreement. Except with respect to principal of and interest on
Revolving Loans denominated in an Alternative Currency, all payments of
principal and interest shall be made to the Administrative Agent for the
account of the Lender in Dollars in immediately available funds at the
applicable Administrative Agent’s Office. All payments with respect to
principal and interest on Revolving Loans denominated in an Alternative
Currency shall be made to the Administrative Agent, for the account of the
Lender, at the applicable Administrative Agent’s Office in such Alternative
Currency. If any amount is not paid in full when due hereunder, such unpaid
amount shall bear interest as set forth in the Credit Agreement and such
interest shall be payable as set forth in the Credit Agreement. 


This Revolving Note is one of the Revolving Notes referred to in the
Credit Agreement, is entitled to the benefits thereof and may be prepaid in
whole or in part subject to the terms and conditions provided therein. Upon the
occurrence and continuation of one or more of the Events of Default specified
in the Credit Agreement, all amounts then remaining unpaid on this Revolving
Note shall become, or may be declared to be, immediately due and payable all as
provided in the Credit Agreement. Revolving Loans made by the Lender shall be
evidenced by one or more loan accounts or records maintained by the Lender and
the Administrative Agent in the ordinary course of business. The Lender may
also attach schedules to this Revolving Note and endorse thereon the date,
amount, currency and maturity of its Revolving Loans and payments with respect
thereto. 


The Borrower, for itself and its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and nonpayment of this Revolving Note. 


THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 EXAMWORKS
 GROUP, INC.,

 
	
  

 	
 a Delaware
 corporation

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	 

 	
  

 
	
  

 	
 Name:

 
	
  

 	
 Title:

 









Exhibit D


FORM OF SWING LINE NOTE


FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby
promises to pay to BANK OF AMERICA, N.A. or its registered assigns (the “Swing
Line Lender”), in accordance with the provisions of the Credit Agreement
(as hereinafter defined), the principal amount of each Swing Line Loan from
time to time made by the Swing Line Lender to the Borrower under that certain
Credit Agreement dated as of October 11, 2010 (as amended, modified,
supplemented or extended from time to time, the “Credit Agreement”)
among the Borrower, the Guarantors from time to time party thereto, the Lenders
from time to time party thereto and Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer. Capitalized terms used but not
otherwise defined herein have the meanings provided in the Credit Agreement. 


The Borrower promises to pay interest on the unpaid principal amount of
each Swing Line Loan from the date of such Swing Line Loan until such principal
amount is paid in full, at such interest rates and at such times as provided in
the Credit Agreement. All payments of principal and interest shall be made to
the Administrative Agent for the account of the Swing Line Lender in Dollars in
immediately available funds at the Administrative Agent’s Office. If any amount
is not paid in full when due hereunder, such unpaid amount shall bear interest
as set forth in the Credit Agreement and such interest shall be payable as set
forth in the Credit Agreement. 


This Swing Line Note is the Swing Line Note referred to in the Credit
Agreement, is entitled to the benefits thereof and may be prepaid in whole or
in part subject to the terms and conditions provided therein. Upon the
occurrence and continuation of one or more of the Events of Default specified
in the Credit Agreement, all amounts then remaining unpaid on this Swing Line
Note shall become, or may be declared to be, immediately due and payable all as
provided in the Credit Agreement. Swing Line Loans made by the Swing Line
Lender shall be evidenced by one or more loan accounts or records maintained by
the Swing Line Lender and the Administrative Agent in the ordinary course of
business. The Swing Line Lender may also attach schedules to this Swing Line
Note and endorse thereon the date, amount and maturity of its Swing Line Loans
and payments with respect thereto. 


The Borrower, for itself and its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and nonpayment of this Swing Line Note. 


THIS SWING LINE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 EXAMWORKS
 GROUP, INC.,

 
	
  

 	
 a Delaware
 corporation

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	 

 	
  

 
	
  

 	
 Name:

 
	
  

 	
 Title:

 









Exhibit E


FORM OF COMPLIANCE CERTIFICATE


Financial
Statement Date: __________, 201__ 


	
  

 	
  

 
	
 To:

 	
 Bank of
 America, N.A., as Administrative Agent 

 
	
  

 	
  

 
	
 Re:

 	
 Credit Agreement dated as of October 11, 2010 (as amended, modified,
 supplemented or extended from time to time, the “Credit Agreement”)
 among ExamWorks Group, Inc., a Delaware corporation (the “Borrower”),
 the Guarantors from time to time party thereto, the Lenders from time to time
 party thereto and Bank of America, N.A., as Administrative Agent, Swing Line
 Lender and L/C Issuer. Capitalized terms used but not otherwise defined
 herein have the meanings provided in the Credit Agreement. 

 



Ladies and
Gentlemen: 


The undersigned Responsible Officer hereby certifies as of the date
hereof that [he/she] is the _______________ of the Borrower, and that, in
[his/her] capacity as such, [he/she] is authorized to execute and deliver this
Certificate to the Administrative Agent on behalf of the Borrower, and that: 


[Use following
paragraph 1 for the fiscal year-end financial statements:] 


[1.       Attached hereto as Schedule
1 are the year-end audited financial statements required by Section
7.01(a) of the Credit Agreement for the fiscal year of the Borrower ended
as of the above date, together with the report and opinion of an independent
certified public accountant required by such section.] 


[Use following
paragraph 1 for fiscal quarter-end financial statements:] 


[1.       Attached hereto as Schedule
1 are the unaudited financial statements required by Section 7.01(b)
of the Credit Agreement for the fiscal quarter of the Borrower ended as of the
above date. Such financial statements fairly present in all material respects
the financial condition, results of operations and cash flows of the Borrower
and its Subsidiaries in accordance with GAAP as at such date and for such
period, subject only to normal year-end audit adjustments and the absence of
footnotes.] 


2.        The undersigned has
reviewed and is familiar with the terms of the Credit Agreement and has made,
or has caused to be made, a detailed review of the transactions and condition
(financial or otherwise) of the Borrower and its Subsidiaries during the
accounting period covered by the attached financial statements. 


3.        A review of the
activities of the Borrower and its Subsidiaries during such fiscal period has
been made under the supervision of the undersigned with a view to determining
whether during such fiscal period the Borrower and its Subsidiaries performed
and observed all of their Obligations under the Loan Documents, and 


[select one:] 


[to the best knowledge of the undersigned during such fiscal period,
the Loan Parties performed and observed each covenant and condition of the Loan
Documents applicable to them, and no Default has occurred and is continuing.] 


[or:] 


[the following covenants or conditions have not been performed or
observed and the following is a list of each such Default and its nature and
status:]






 4.        The
representations and warranties of the Loan Parties contained in the Credit
Agreement or any other Loan Document, are true and correct in all material
respects on and as of the date hereof, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct in all material respects as of such earlier
date, and except that for purposes of this Compliance Certificate, the
representations and warranties contained in subsections (a) and (b) of Section
6.05 of the Credit Agreement shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 7.01
of the Credit Agreement, including the statements in connection with which this
Compliance Certificate is delivered. 


5.        The
financial covenant analyses and calculations set forth on Schedule 2
attached hereto are true and accurate on and as of the date of this Compliance
Certificate. 


          IN
WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of
__________, 201__. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 EXAMWORKS
 GROUP, INC.,

 
	
  

 	
 a Delaware
 corporation

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	 

 	
  

 
	
  

 	
 Name:

 
	
  

 	
 Title:

 









Exhibit F


FORM OF JOINDER AGREEMENT


          THIS
JOINDER AGREEMENT (the “Agreement”) dated as of __________, 201_ is by
and between __________, a __________ (the “New Subsidiary”), and Bank of
America, N.A., in its capacity as Administrative Agent under that certain
Credit Agreement dated as of October 11, 2010 (as amended, modified,
supplemented or extended from time to time, the “Credit Agreement”)
among ExamWorks Group, Inc., a Delaware corporation (the “Borrower”),
the Guarantors from time to time party thereto, the Lenders from time to time
party thereto and Bank of America, N.A., as Administrative Agent, Swing Line
Lender and L/C Issuer. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement. 


          The Loan
Parties are required by Section 7.12 of the Credit Agreement to cause
the New Subsidiary to become a “Guarantor” thereunder. Accordingly, the New Subsidiary
hereby agrees as follows with the Administrative Agent, for the benefit of the
holders of the Obligations: 


          1.          The
New Subsidiary hereby acknowledges, agrees and confirms that, by its execution
of this Agreement, the New Subsidiary will be deemed to be a party to the
Credit Agreement and a “Guarantor” for all purposes of the Credit Agreement,
and shall have all of the obligations of a Guarantor thereunder as if it had
executed the Credit Agreement. The New Subsidiary hereby ratifies, as of the
date hereof, and agrees to be bound by, all of the terms, provisions and
conditions applicable to the Guarantors contained in the Credit Agreement.
Without limiting the generality of the foregoing terms of this paragraph 1, the
New Subsidiary hereby jointly and severally together with the other Guarantors,
guarantees to each Lender, the Administrative Agent and each other holder of
the Obligations, as provided in Article IV of the Credit Agreement, the
prompt payment and performance of the Obligations in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration or otherwise)
strictly in accordance with the terms thereof. 


          2.          The
New Subsidiary hereby acknowledges, agrees and confirms that, by its execution
of this Agreement, the New Subsidiary will be deemed to be a party to the
Security Agreement and an “Obligor” for all purposes of the Security Agreement,
and shall have all the obligations of an Obligor thereunder as if it had
executed the Security Agreement. The New Subsidiary hereby ratifies, as of the
date hereof, and agrees to be bound by, all of the terms, provisions and
conditions contained in the Security Agreement. Without limiting the generality
of the foregoing terms of this paragraph 2, the New Subsidiary hereby grants to
the Administrative Agent, for the benefit of the holders of the Secured
Obligations (as defined in the Security Agreement), a continuing security
interest in, and a right of set off against, any and all right, title and
interest of the New Subsidiary in and to the Collateral (as defined in the
Security Agreement) of the New Subsidiary, and the New Subsidiary hereby
grants, pledges and assigns to the Administrative Agent, for the benefit of the
holders of the Secured Obligations (as defined in the Security Agreement), a
continuing security interest in, and a right of set off against, any and all
right, title and interest of the New Subsidiary in and to the Equity Interests
identified on Schedule 6 hereto and all other Pledged Equity (as defined
in the Security Agreement) of the New Subsidiary to secure the prompt payment
and performance in full when due, whether by lapse of time, acceleration,
mandatory prepayment or otherwise, of the Secured Obligations (as defined in the
Security Agreement). 


          3.          The
New Subsidiary hereby represents and warrants to the Administrative Agent, the
Lenders and each other holder of the Obligations that: 


	
  

 	
  

 	
  

 
	
  

 	
              (a)          The
 New Subsidiary’s exact legal name and jurisdiction of formation,
 incorporation or organization are as set forth on the signature pages hereto.
 

 













	
  

 	
  

 	
  

 
	
  

 	
           (b)          The
 New Subsidiary’s taxpayer identification number and organization number (or,
 in each case, its foreign equivalent) are set forth on Schedule 1
 hereto. 

 
	
  

 	
  

 	
  

 
	
  

 	
           (c)          Other
 than as set forth on Schedule 2 hereto, the New Subsidiary has not
 changed its legal name, changed its jurisdiction of formation, incorporation
 or organization or been party to a merger, consolidation or other change in
 structure or used any tradename in the five years preceding the date hereof. 

 
	
  

 	
  

 	
  

 
	
  

 	
           (d)          Schedule
3 hereto includes all of the trademarks, service marks, trade names,
copyrights, patents, patent rights, franchises, licenses and other
intellectual property rights (collectively, “IP Rights”) registered or
pending registration with the United States Copyright Office, the United
States Patent and Trademark Office, the Canadian Intellectual Property Office
or any comparable office or Governmental Authority in the jurisdiction of
formation, incorporation or organization of the New Subsidiary and owned by
the New Subsidiary as of the date hereof. None of the IP Rights of the New
Subsidiary set forth in Schedule 3 hereto is subject to any licensing
agreement or similar arrangement, except as set forth on Schedule 3
hereto.  

 
	
  

 	
  

 	
  

 
	
  

 	
           (e)          Schedule
 4 hereto includes all Commercial Tort Claims before any Governmental
 Authority by or in favor of the New Subsidiary. 

 
	
  

 	
  

 	
  

 
	
  

 	
           (f)          Schedule
 5 hereto lists all real property that is owned or leased (other than any
 office space) by the New Subsidiary as of the date hereof. 

 
	
  

 	
  

 	
  

 
	
  

 	
           (g)          Schedule
 6 hereto includes each Subsidiary of the New Subsidiary, including (i)
 jurisdiction of formation, (ii) number of shares of each class of Equity
 Interests outstanding, (iii) the certificate number(s) of the certificates
 evidencing such Equity Interests and number and percentage of outstanding
 shares of each class owned by the New Subsidiary (directly or indirectly) of
 such Equity Interests and (iv) number and effect, if exercised, of all
 outstanding options, warrants, rights of conversion or purchase and all other
 similar rights with respect thereto. 

 


         4.         The
address of the New Subsidiary for purposes of all notices and other
communications is the address designated for all Loan Parties on Schedule
11.02 to the Credit Agreement or such other address as the New Subsidiary
may from time to time notify the Administrative Agent in writing. 


         5.         The
New Subsidiary hereby waives acceptance by the Administrative Agent and the
Lenders of the guaranty by the New Subsidiary under Article IV of the
Credit Agreement upon the execution of this Agreement by the New Subsidiary. 


         6.         This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original but all of which when taken together shall constitute
one contract. 


         7.         THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. 





         IN WITNESS
WHEREOF, the New Subsidiary has caused this Joinder Agreement to be duly
executed by its authorized officer, and the Administrative Agent, for the
benefit of the holders of the Obligations, has caused the same to be accepted
by its authorized officer, as of the day and year first above written. 


	
  

 	
  

 	
  

 
	
  

 	
 [NEW
 SUBSIDIARY]

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	 

 
	
  

 	
 Name:

 
	
  

 	
 Title:

 






	
  

 	
  

 	
  

 
	
 Acknowledged
 and accepted:

 	
  

 
	
  

 	
  

 
	
 BANK OF
 AMERICA, N.A.,

 	
  

 
	
 as
 Administrative Agent

 	
  

 
	
  

 	
  

 
	
 By:

 	
  

 	
  

 
	
  

 	 

 	
  

 
	
 Name:

 	
  

 
	
 Title:

 	
  

 









Schedule 1


Taxpayer Identification Number;
Organizational Number





Schedule 2


Changes in Legal Name or State of Formation;

Mergers, Consolidations and other Changes in Structure; Tradenames 





Schedule 3


IP Rights





Schedule 4


Commercial Tort Claims





Schedule 5


Real Property Locations





Schedule 6


Equity Interests







Exhibit G


FORM OF ASSIGNMENT AND ASSUMPTION


This Assignment and Assumption (this “Assignment and Assumption”)
is dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the “Assignor”) and [Insert name of
Assignee] (the “Assignee”). Capitalized terms used but not defined
herein have the meanings provided in the Credit Agreement identified below,
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to
and incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full. 


For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor’s rights
and obligations as a Lender under the Credit Agreement and any other documents
or instruments delivered pursuant thereto to the extent related to the amount
and percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, the Letters of Credit and the Swing Line Loans
and the Guarantees included in such facilities) and (ii) to the extent
permitted to be assigned under applicable law, all claims, suits, causes of
action and any other right of the Assignor (in its capacity as a Lender)
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered
pursuant thereto or the loan transactions governed thereby or in any way based
on or related to any of the foregoing, including, but not limited to, contract
claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned
pursuant to clause (i) above (the rights and obligations sold and assigned
pursuant to clauses (i) and (ii) above being referred to herein collectively
as, the “Assigned Interest”). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor. 


	
  

 	
  

 	
  

 
	
 1.

 	
 Assignor:

 	
 ___________________________________

 
	
  

 	
  

 	
  

 
	
 2.

 	
 Assignee:

 	
 ___________________________________
 [and is an Affiliate/Approved Fund of
                 [identify Lender]]

 
	
  

 	
  

 	
  

 
	
 3.

 	
 Borrower:

 	
 ExamWorks
 Group, Inc., a Delaware corporation

 
	
  

 	
  

 	
  

 
	
 4.

 	
 Administrative
 Agent:

 	
 Bank of
 America, N.A., as the administrative agent under the Credit Agreement

 
	
  

 	
  

 	
  

 
	
 5.

 	
 Credit
 Agreement:

 	
 Credit Agreement dated as of October 11, 2010 (as amended, modified,
 supplemented or extended from time to time, the “Credit Agreement”)
 among the Borrower, the Guarantors from time to time party thereto, the
 Lenders from time to time party thereto and Bank of America, N.A., as Administrative
 Agent, Swing Line Lender and L/C Issuer.

 










6.          Assigned
Interest: 


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Aggregate Amount of

 Revolving

 Commitments/Loans for

 all Lenders*

 	
  

 	
 Amount of Revolving

 Commitment/Loans

 Assigned*

 	
  

 	
 Percentage Assigned of

 Revolving

 Commitment/Loans1

 	
  

 
	
  

 	
 $

 	
  

 	
 $

 	
  

 	
  

 	
 %

 	
  

 	
  

 
	
  

 	
 $

 	
  

 	
 $

 	
  

 	
  

 	
 %

 	
  

 	
  

 
	
  

 	
 $

 	
  

 	
 $

 	
  

 	
  

 	
 %

 	
  

 	
  

 






	
  

 	
  

 	
  

 
	
 7.

 	
 Trade Date:

 	
 _____________________

 
	
  

 	
  

 	
  

 
	
 8.

 	
 Effective
 Date:

 	
 _____________________

 



The terms set
forth in this Assignment and Assumption are hereby agreed to: 


	
  

 	
  

 	
  

 
	
 ASSIGNOR:

 	
 [NAME OF
 ASSIGNOR]

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	 

 
	
  

 	
 Name:

 
	
  

 	
 Title:

 






	
  

 	
  

 	
  

 
	
 ASSIGNEE:

 	
 [NAME OF
 ASSIGNEE]

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	 

 
	
  

 	
 Name:

 
	
  

 	
 Title:

 






	
  

 	
  

 	
  

 
	 

 	
  

 
	
           *
 Amount to be adjusted by the counterparties to take into account any payments
 or prepayments made between the Trade Date and the Effective Date. 

 
	
  

 	
  

 
	
           1
 Set forth, to at least 9 decimals, as a percentage of the Revolving
 Commitment/Loans of all Lenders thereunder.

 













	
  

 	
  

 	
  

 
	
 [Consented
 to and]2 Accepted:

 	
  

 
	
  

 	
  

 
	
 BANK OF
 AMERICA, N.A.,

 	
  

 
	
 as
 Administrative Agent

 	
  

 
	
  

 	
  

 
	
 By:

 	
  

 	
  

 
	
  

 	 

 	
  

 
	
 Name:

 	
  

 
	
 Title:

 	
  

 
	
  

 	
  

 
	
 [Consented
 to:] 3

 	
  

 
	
  

 	
  

 
	
 EXAMWORKS
 GROUP, INC.,

 	
  

 
	
 a Delaware
 corporation

 	
  

 
	
  

 	
  

 
	
 By:

 	
  

 	
  

 
	
  

 	 

 	
  

 
	
 Name:

 	
  

 
	
 Title:

 	
  

 
	
  

 	
  

 
	
 [Consented
 to:] 4

 	
  

 
	
  

 	
  

 
	
 BANK OF
 AMERICA, N.A.,

 	
  

 
	
 as L/C
 Issuer

 	
  

 
	
  

 	
  

 
	
 By:

 	
  

 	
  

 
	
  

 	 

 	
  

 
	
 Name:

 	
  

 
	
 Title:

 	
  

 
	
  

 	
  

 
	
 [Consented
 to:] 5

 	
  

 
	
  

 	
  

 
	
 BANK OF
 AMERICA, N.A.,

 	
  

 
	
 as a Swing
 Line Lender

 	
  

 
	
  

 	
  

 
	
 By:

 	
  

 	
  

 
	
  

 	 

 	
  

 
	
 Name:

 	
  

 






	
  

 	
  

 
	 

 	
  

 



          2
To be added only if the consent of the Administrative Agent is required
by the terms of the Credit Agreement. 


          3
To be added only if the consent
of the Borrower is required by the terms of the Credit Agreement. 


          4
To be added only if the consent
of the L/C Issuer is required by the terms of the Credit Agreement. 


          5
To be added only if the consent
of the Swing Line Lender is required by the terms of the Credit Agreement. 






Annex 1 to Assignment and Assumption


STANDARD TERMS AND CONDITIONS


1. Representations
and Warranties. 


1.1. Assignor. The Assignor (a) represents and warrants that (i)
it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with
respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Loan Document or (iv) the performance or observance
by the Borrower, any of its Subsidiaries or Affiliates or any other Person of
any of their respective obligations under any Loan Document. 


1.2. Assignee. The Assignee (a) represents and warrants that (i)
it has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets the requirements to be an assignee under Section 11.06(b)(iv) of the
Credit Agreement (subject to such consents, if any, as may be required under
Section 11.06(b)(ii) of the Credit Agreement), (iii) from and after the
Effective Date, it shall be bound by the provisions of the Credit Agreement as
a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect to
decisions to acquire assets of the type represented by the Assigned Interest
and either it, or the Person exercising discretion in making its decision to
acquire the Assigned Interest, is experienced in acquiring assets of such type,
(v) it has received a copy of the Credit Agreement, and has received or has
been accorded the opportunity to receive copies of the most recent financial
statements delivered pursuant to Section 7.01 thereof, as applicable, and such
other documents and information as it deems appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest, (vi) it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any
documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by the Assignee; and (b) agrees
that (i) it will, independently and without reliance on the Administrative
Agent, the Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Documents, and
(ii) it will perform in accordance with their terms all of the obligations
which by the terms of the Loan Documents are required to be performed by it as
a Lender. 


2. Payments. From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignor for amounts which have accrued to but excluding the Effective Date
and to the Assignee for amounts which have accrued from and after the Effective
Date. 


3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This
Assignment and Assumption shall be governed by, and construed in accordance
with, the law of the State of New York. 








Schedule 1.01(a)


Existing Letters of Credit


	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Letter of Credit 

 Number

 	
 Date of Issuance

 	
 Beneficiary

 	
 Amount

 	
 Expiration Date

 
	
 64137573

 	
 11/24/2004
 

 

 Assumed on
10/1/2010

 	
 Acquiport
 

 Unicorn, Inc.

 	
 $ 29,250.00

 	
 3/1/2011

 
	
 68033812

 	
 4/1/2009

 	
 4
 Becker SPE, 

 LLC

 	
 $190,000.00

 	
 4/1/2011

 
	
 68027564



 	
 8/1/2008

 	
 6901
 Jericho,
LLC

 	
 $ 30,000.00

 	
 [9/30/2010]

 










Schedule 1.01(b)


Mandatory Cost Formulae


          1.          The
Mandatory Cost (to the extent applicable) is an addition to the interest rate
to compensate Lenders for the cost of compliance with:


                       (a)          the
requirements of the Bank of England and/or the Financial Services Authority
(or, in either case, any other authority which replaces all or any of its
functions); or


                       (b)          the
requirements of the European Central Bank.


          2.          On
the first day of each Interest Period (or as soon as possible thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the “Additional
Cost Rate”) for each Lender, in accordance with the paragraphs set out
below. The Mandatory Cost will be calculated by the Administrative Agent as a
weighted average of the Lenders’ Additional Cost Rates (weighted in proportion
to the percentage participation of each Lender in the relevant Loan) and will
be expressed as a percentage rate per annum. The Administrative Agent will, at
the request of the Borrower or any Lender, deliver to the Borrower or such
Lender as the case may be, a statement setting forth the calculation of any
Mandatory Cost.


          3.          The
Additional Cost Rate for any Lender lending from a Lending Office in a
Participating Member State will be the percentage notified by that Lender to
the Administrative Agent. This percentage will be certified by such Lender in
its notice to the Administrative Agent to be its reasonable determination of
the cost (expressed as a percentage of such Lender’s participation in all Loans
made from such Lending Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of Loans made from that
Lending Office.


          4.          The
Additional Cost Rate for any Lender lending from a Lending Office in the United
Kingdom will be calculated by the Administrative Agent as follows:


         (a)          in
relation to any Loan in Sterling:


	
  

 	
  

 
	
 AB+C(B-D)+E x 0.01

 	
 per cent per annum

 
	
 100 - (A+C)

 



         (b)          in
relation to any Loan in any currency other than Sterling:


	
  

 	
  

 
	
 E x 0.01

 	
 per cent per annum

 
	
 300

 



          Where:


	
  

 	
  

 	
  

 
	
  

 	
 “A”

 	
 is the percentage of
 Eligible Liabilities (assuming these to be in excess of any stated minimum)
 which that Lender is from time to time required to maintain as an interest
 free cash ratio deposit with the Bank of England to comply with cash ratio
 requirements.

 














	
  

 	
  

 	
  

 
	
  

 	
 “B”

 	
 is the percentage rate
 of interest (excluding the Applicable Rate, the Mandatory Cost and any
 interest charged on overdue amounts pursuant to the first sentence of Section
 2.08(b) and, in the case of interest (other than on overdue amounts)
 charged at the Default Rate, without counting any increase in interest rate
 effected by the charging of the Default Rate) payable for the relevant
 Interest Period of such Loan.

 
	
  

 	
  

 	
  

 
	
  

 	
 “C”

 	
 is the percentage (if
 any) of Eligible Liabilities which that Lender is required from time to time
 to maintain as interest bearing Special Deposits with the Bank of England.

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 “D”

 	
 is the percentage rate
 per annum payable by the Bank of England to the Administrative Agent on
 interest bearing Special Deposits.

 
	
  

 	
  

 	
  

 
	
  

 	
 “E”

 	
 is designed to
 compensate Lenders for amounts payable under the Fees Rules and is calculated
 by the Administrative Agent as being the average of the most recent rates of
 charge supplied by the Lenders to the Administrative Agent pursuant to paragraph
 7 below and expressed in pounds per £1,000,000.

 






	
  

 	
  

 	
  

 
	
 5.

 	
 For the purposes of this Schedule:

 
	
  

 	
  

 
	
  

 	
 (a)

 	
 “Eligible
 Liabilities” and “Special Deposits” have the meanings given to
 them from time to time under or pursuant to the Bank of England Act 1998 or
 (as may be appropriate) by the Bank of England;

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 “Fees Rules”
 means the rules on periodic fees contained in the FSA Supervision Manual or
 such other law or regulation as may be in force from time to time in respect
 of the payment of fees for the acceptance of deposits;

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 “Fee Tariffs”
 means the fee tariffs specified in the Fees Rules under the activity group
 A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required
 pursuant to the Fees Rules but taking into account any applicable discount
 rate); and

 
	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 “Tariff Base”
 has the meaning given to it in, and will be calculated in accordance with,
 the Fees Rules.

 
	
  

 	
  

 	
  

 
	
 6.

 	
 In application of the
 above formulae, A, B, C and D will be included in the formulae as percentages
 (i.e. 5% will be included in the formula as 5 and not as 0.05). A negative
 result obtained by subtracting D from B shall be taken as zero. The resulting
 figures shall be rounded to four decimal places.

 













	
  

 	
  

 	
  

 
	
  

 	
  

 
	
 7.

 	
 If requested by the
 Administrative Agent or the Borrower, each Lender with a Lending Office in
 the United Kingdom or a Participating Member State shall, as soon as
 practicable after publication by the Financial Services Authority, supply to
 the Administrative Agent and the Borrower, the rate of charge payable by such
 Lender to the Financial Services Authority pursuant to the Fees Rules in
 respect of the relevant financial year of the Financial Services Authority
 (calculated for this purpose by such Lender as being the average of the Fee
 Tariffs applicable to such Lender for that financial year) and expressed in
 pounds per £1,000,000 of the Tariff Base of such Lender.

 
	
  

 	
  

 
	
 8.

 	
 Each Lender shall
 supply any information required by the Administrative Agent for the purpose of
 calculating its Additional Cost Rate. In particular, but without limitation,
 each Lender shall supply the following information in writing on or prior to
 the date on which it becomes a Lender:

 






	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 the jurisdiction of the
 Lending Office out of which it is making available its participation in the
 relevant Loan; and

 
	
  

 
	
  

 	
 (b)

 	
 any other information
 that the Administrative Agent may reasonably require for such purpose.

 


Each Lender shall
promptly notify the Administrative Agent in writing of any change to the
information provided by it pursuant to this paragraph.


	
  

 	
  

 
	
 9.

 	
 The percentages of each
 Lender for the purpose of A and C above and the rates of charge of each
 Lender for the purpose of E above shall be determined by the Administrative
 Agent based upon the information supplied to it pursuant to paragraphs 7
 and 8 above and on the assumption that, unless a Lender notifies the
 Administrative Agent to the contrary, each Lender’s obligations in relation
 to cash ratio deposits and Special Deposits are the same as those of a
 typical bank from its jurisdiction of incorporation with a lending office in
 the same jurisdiction as its Lending Office.

 
	
  

 	
  

 
	
 10.

 	
 The Administrative
 Agent shall have no liability to any Person if such determination results in
 an Additional Cost Rate which over- or under-compensates any Lender and shall
 be entitled to assume that the information provided by any Lender pursuant to
 paragraphs 3, 7 and 8 above is true and correct in all
 respects.

 
	
  

 	
  

 
	
 11.

 	
 The Administrative
 Agent shall distribute the additional amounts received as a result of the
 Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for
 each Lender based on the information provided by each Lender pursuant to paragraphs
 3, 7 and 8 above.

 
	
  

 	
  

 
	
 12.

 	
 Any determination by
 the Administrative Agent pursuant to this Schedule in relation to a
 formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to
 a Lender shall, in the absence of manifest error, be conclusive and binding
 on all parties hereto.

 
	
  

 	
  

 
	
 13.

 	
 The Administrative
 Agent may from time to time, after consultation with the Borrower and the
 Lenders, determine and notify to all parties any amendments which are
 required to be made to this Schedule in order to comply with any change
 in law, regulation or any requirements from time to time imposed by the Bank
 of England, the Financial Services Authority or the European Central Bank
 (or, in any case, any other authority which replaces all or any of its
 functions) and any such determination shall, in the absence of manifest
 error, be conclusive and binding on all parties hereto.

 











Schedule 2.01


Commitments and Applicable Percentages


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Lender

 	
  

 	
 Revolving
 Commitment

 	
 Applicable
 Percentage of

 Aggregate Revolving
Commitments

 
	
 Bank of America, N.A.

 	
  

 	
 $

 	
 50,000,000.00

 	
  

 	
  

 	
 27.777777778

 	
 % 

 
	
 General Electric Capital Corporation

 	
  

 	
 $

 	
 50,000,000.00

 	
  

 	
  

 	
 27.777777778

 	
 % 

 
	
 Fifth Third Bank

 	
  

 	
 $

 	
 50,000,000.00

 	
  

 	
  

 	
 27.777777778

 	
 % 

 
	
 Goldman Sachs Bank USA

 	
  

 	
 $

 	
 12,500,000.00

 	
  

 	
  

 	
 6.944444444

 	
 % 

 
	
 Credit Suisse AG, Cayman Islands Branch

 	
  

 	
 $

 	
 12,500,000.00

 	
  

 	
  

 	
 6.944444444

 	
 % 

 
	
 Barclays Bank PLC

 	
  

 	
 $

 	
 5,000,000.00

 	
  

 	
  

 	
 2.777777778

 	
 % 

 
	
 Total

 	
  

 	
 $

 	
 180,000,000.00

 	
  

 	
  

 	
 100.000000000

 	
 % 

 












Schedule 6.10


Insurance


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Type of 

 Coverage

 	
 Loan Party 

 Covered

 	
 Carrier

 	
 Policy Number

 	
 Expiration 

 Date

 	
 Amount of Coverage

 	
 Deductible

 
	
 Auto
 Liability

 	
 All
 Loan 

 Parties

 	
 Charter
 Oak 

 Fire Ins. 

 (Travelers)

 	
 BA-2335M312-

 10-SEL

 	
 7/14/2011

 	
 Combined
 Single Limit

 

 Unisured
Motorist/Underinsured
Motorist



 	
 $1,000,000

 

 $1,000,000

 	
 Physical
 Damage

 	
 $500

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Hired
 and Non-Owned

 	
 $1,000,000

 	
  

 	
  

 
	
 General
 Liability

 	
 All
 Loan 

 Parties

 	
 The
 Phoenix 

 Ins. Company

 (Travelers)

 	
 1-680-

 2411M1777-

 PHX-10

 	
 7/14/2011

 	
 Business
 Income and Extra

 Expense

 

 Fine Arts – Per Location



 	
 $2,200,000

 

 

 $25,000

 	
 Businessowner

 Property

 	
 $1,000
 per

 occurrence

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Business
 Personal Property –

 Blanket Accounts



 	
 $7,457,600

 	
 Building
 Glass

 	
 $1,000
 per

 occurrence

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Receivable
 – Per Location



 	
 $25,000

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Valuable
 Papers – Per Location

 	
 $25,000

 	
 Cause
 of Loss-

 Broad Form 

 Flood

 	
 $1,000,0000

 specific 

 locations



 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 ERISA
 Coverage



 	
 $200,000

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Electronic
 Data Processing – Increased limits

 	
 Various
 per 

 location

 	
 Earthquake

 	
 $500,000
 

 specific 

 locations



 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Theft
 of Money and Securities

 	
 $25,000

 	
  

 	
  

 












	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 General
 Liability 

 – Master Package 

 (TX)

 	
 All
 Loan 

 Parties

 	
 The
 Travelers 

 Lloyds Ins.

 Co

 	
 IL-PACP-

 2410M851-

 TLC-10

 	
 7/14/2011

 	
 Business
 Income and Extra

 Expense

 	
 $100,000

 	
 Businessowner
 

 Property

 	
 $1,000
 per

 occurrence

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Fine
 Arts – Per Location



 	
 $25,000

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Business
 Personal Property

 – Blanket Accounts



 	
 $822,880

 	
 Building
 Glass

 	
 $1,000
 per

 occurrence

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Receivable
 – Per Location



 	
 $25,000

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Valuable
 Papers – Per

 Location

 	
 $25,000

 	
 Cause
 of Loss-

 Broad Form

 Flood

 	
 $510,000

 specific 

 locations

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 ERISA
 Coverage

 	
 $200,000



 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Electronic
 Data Processing –

 Increased limits



 	
 $300,000

 	
 Earthquake

 	
 $922,880

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Theft
 of Money and

 Securities

 	
 $25,000

 	
 Windstorm
 of

 Hail

 	
 5%

 
	
 General
 Liability

 (FL Medical

 Specialists)

 	
 All
 Loan

 Parties

 	
 Travelers

 Indemnity 

 Company of

 America

 	
 I-680-

 7414N649-
TIL-10

 	
 7/14/2011

 	
 Business
 Income and Extra

 Expense

 	
 $50,000

 	
 Businessowner

 Property

 	
 $1,000

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Fine
 Arts – Per Location

 	
 $25,000



 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Business
 Personal Property –

 Blanket Accounts



 	
 $50,000

 	
 Building
 Glass

 	
 $1,000

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Receivable
 – Per Location



 	
 $25,000

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Valuable
 Papers – Per

 Location

 	
 $25,000

 	
 Windstorm
 of

 Hail

 	
 10%

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Theft
 of Money and Securities

 	
 $25,000

 	
  

 	
  

 













	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 General
 Liability

 (TX wind and 

 hail)

 	
 All
 Loan 

 Parties

 	
 Travelers
 

 Lloyds Ins.

 Co.

 	
 IL-PACP-

 3100M219-

 TLC-10

 	
 7/14/2011

 	
 Business
 Income and Extra

 Expense

 	
 $200,000

 	
 Businessowner

 Property

 	
 $1,000

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Fine
 Arts – Per Location



 	
 $25,000

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Business
 Personal Property –

 Blanket Accounts



 	
 $15,001

 	
 Building
 Glass

 	
 $1,000

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Receivable
 – Per Location

 	
 $25,000



 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Valuable
 Papers – Per

 Location



 	
 $25,000

 	
 Windstorm
 or

 Hail

 	
 5%

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 ERISA
 Coverage



 	
 $200,000

 	
 Earthquake

 	
 $215,001

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Theft
 of Money and

 Securities

 	
 $25,000

 	
  

 	
  

 
	
 General
 Liability

 (CA)

 	
 All
 Loan 

 Parties

 	
 Travelers

 Property

 Casualty

 Company

 	
 I-680-

 6773P122-TIL-

 10

 	
 7/14/2011

 	
 Business
 Income and Extra

 Expense

 

 Fine Arts – Per Location



 	
 $3,000,000

 

 

 $25,000

 	
 Businessowner

 Property

 	
 $500

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Business
 Personal Property – 

 Blanket Accounts



 	
 $550,000

 	
 Building
 Glass

 	
 $500

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Receivable
 – Per Location



 	
 $25,000

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Valuable
 Papers – Per

 Location



 	
 $25,000

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Electronic
 Data Processing – 

 Increased limits



 	
 $200,000

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Theft
 of Money and

 Securities

 	
 $25,000

 	
  

 	
  

 













	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Umbrella

 	
 All
 Loan 

 Parties

 	
 Travelers
 

 Indemnity 

 Co.

 	
 ISF-CUP-

 9534Y310-

 IND-10

 	
 7/14/2011

 	
 Per
 Occurrence

 	
 $10,000,000

 	
 Only
 if Umbrella

 drops down

 	
 $5,000

 
	
 Workers
 Comp.

 	
 All
 Loan

 	
 Travelers

 	
 IJUB-

 	
 7/14/2011

 	
 Statutory

 	
  

 	
  

 
	
 Employers
 

 Liability

 	
 Parties

 	
 Property
 &

 Casualty Co.

 	
 2411M36-2-10

 	
  

 	
 BI
 Per Accident

 	
 $500,000

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 BI by Disease

Policy
 Limit by Disease



 	
 $500,000

$500,000

 	
  

 	
  

 
	
 Directors
 &

 Officers 

 Employment

 Practices 

 Fiduciary 

 Liability Crime

 Coverage

 	
 All
 Loan 

 Parties

 	
 National
 

 Union 

 (Chartis)

 	
 02-571-58-88

 	
 7/14/2011

 	
 Per
 Occurrence

 

 General Aggregate

 

 Per Occurrence

 

 General Aggregate

 

 Per Occurrence

 

 General Aggregate

 	
 $11,000,000

 

 $23,000,000

 

 $11,000,000

 

 $23,000,000

 

 $1,000,000

 

 $23,000,000



 	
 $50,000
 per claim

 

 

 

 $50,000 per claim

 

 

 

 $0

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 $100,000

 	
 $10,000
 per claim

 
	
 Errors
 and 

 Omissions 

 Corporate Policy

 	
 All
 Loan 

 Parties

 	
 Ironshore
 

 Specialty Ins.
 Co.

 	
 573101

 	
 7/14/2011

 	
 $5,000,000

 	
 $75,000
 per claim

 










	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Errors
 and 

 Omissions 

 Separate 

 Document Policy

 	
 Coverage
 for 

 third party

 physicians 

 who provided

 services to 

 the Loan 

 Parties

 	
 Ironshore
 

 Specialty Ins.
 Co.

 	
 119801

 	
 7/14/2011

 	
 Per
 Occurrence

 

 General Aggregate

 	
 $1,000,000

 

 $5,000,000

 	
 $5,000
 per claim

 
	
 Errors and
Omissions
Abeton Policy

 	
 Coverage
 for third party physicians who provided services to the Loan Parties

 	
 Landmark
 American Ins. Co. (RSUI)

 	
 LHM810961

 	
 7/14/2011

 	
 Per
 Occurrence

 

 General Aggregate

 	
 $1,000,000

 

 $3,000,000

 	
 $5,000
 per claim

 









Schedule 6.13


Subsidiaries


	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Owner Name

 	
 Subsidiary

 	
 Jurisdiction
of Formation

 	
 Number of 

 Shares

 	
 Percentage Owned

 
	
 ExamWorks
 Group, Inc.

 	
 ExamWorks,
 Inc.

 	
 Delaware

 	
 100
 Common Stock

 	
 100%

 
	
 ExamWorks
 Group, Inc.

 	
 ExamWorks
 Canada, Inc.

 	
 Delaware

 	
 100
 Common Stock

 	
 100%

 
	
 ExamWorks
 Group, Inc.

 	
 ExamWorks
 Europe, Inc.

 	
 Delaware

 	
 100
 Common Stock

 	
 100%

 
	
 ExamWorks,
 Inc.

 	
 Southwest
 Medical 

 Examination Services, Inc.

 	
 Texas

 	
 10,000
 Common Stock

 	
 100%

 
	
 ExamWorks,
 Inc.

 	
 Diagnostic
 Imaging Institute, Inc.

 	
 Texas

 	
 1,000
 Common Stock

 	
 100%

 
	
 ExamWorks,
 Inc.

 	
 Pacific
 Billing Services, Inc.

 	
 Texas

 	
 1,000
 Common Stock

 	
 100%

 
	
 ExamWorks,
 Inc.

 	
 The
 Ricwel Corporation

 	
 Ohio

 	
 100
 Common Stock

 	
 100%

 
	
 ExamWorks,
 Inc.

 	
 Marquis
 Medical Administrators, Inc.

 	
 New
 York

 	
 500
 Common Stock

 	
 100%

 
	
 ExamWorks,
 Inc.

 	
 Florida
 Medical Specialists, Inc.

 	
 New
 Jersey

 	
 2,500
 Common Stock

 	
 100%

 
	
 ExamWorks,
 Inc.

 	
 CFO
 Medical Services, LLC

 	
 New
 Jersey

 	
 N/A

 	
 100%

 
	
 ExamWorks,
 Inc.

 	
 IME
 Software Solutions, LLC

 	
 Michigan

 	
 N/A

 	
 100%

 
	
 ExamWorks,
 Inc.

 	
 ExamWorks
 Review Services, LLC

 	
 Delaware

 	
 100
 Member Units

 	
 100%

 
	
 ExamWorks,
 Inc.

 	
 Ricwel
 of West Virginia, LLC

 	
 West
 Virginia

 	
 N/A

 	
 100%

 
	
 ExamWorks,
 Inc.

 	
 ExamWorks
 Evaluations of New York, LLC

 	
 New
 York

 	
 100
 Member Units

 	
 100%

 
	
 ExamWorks,
 Inc.

 	
 Network
 Medical Review Company, Ltd.

 	
 Illinois

 	
 100
 Common Stock

 	
 100%

 










	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Owner Name

 	
 Subsidiary

 	
 Jurisdiction
of Formation

 	
 Number of 

 Shares

 	
 Percentage Owned

 
	
 ExamWorks,
 Inc.

 	
 Exigere
 Corporation

 	
 Washington

 	
 8,100
 Common Stock

 	
 100%

 
	
 Network
 Medical Review Company, Ltd.

 	
 Network
 Medical Management Company, Ltd.

 	
 Illinois

 	
 100
 Common Stock

 	
 100%

 
	
 Network
 Medical Review Company, Ltd.

 	
 Elite
 Physicians, Ltd.

 	
 Illinois

 	
 100
 Common Stock

 	
 100%

 
	
 Network
 Medical Review Company, Ltd.

 	
 Insurance
 Appeals, Ltd.

 	
 Illinois

 	
 100
 Common Stock

 	
 100%

 
	
 Network
 Medical Review Company, Ltd.

 	
 WorkersFirst,
 Inc.

 	
 Illinois

 	
 100
 Common Stock

 	
 100%

 
	
 ExamWorks
 Canada, Inc.

 	
 SOMA
 Medical Assessments Corp.

 	
 Ontario,
 Canada

 	
 3,784,109

 	
 100%

 
	
 ExamWorks
 Canada, Inc.

 	
 Direct
 IME Corp.

 	
 Ontario,
 Canada

 	
 3,617,938

 	
 100%

 
	
 ExamWorks
 Europe, Inc.

 	
 ExamWorks
 UK Ltd

 	
 England
 and Wales

 	
 65

 	
 100%

 
	
 ExamWorks
 UK Ltd

 	
 UK
 Independent Medical Services Limited

 	
 England
 and Wales

 	
 105,300

 	
 100%

 
	
 UK
 Independent Medical Services Limited

 	
 UK
 Legal Funding Solutions Ltd

 	
 England
 and Wales

 	
 2

 	
 100%

 
	
 UK
 Independent Medical Services Limited

 	
 Legal
 Evolve Limited

 	
 England
 and Wales

 	
 1

 	
 100%

 
	
 UK
 Independent Medical Services Limited

 	
 Independent
 Medical Reporting (IMR) Limited

 	
 England
 and Wales

 	
 100

 	
 100%

 
	
 UK
 Independent Medical Services Limited

 	
 Independent
 Medical Reports Limited

 	
 England
 and Wales

 	
 2

 	
 100%

 
	
 UK
 Independent Medical Services Limited

 	
 Independent
 Medicals Ltd

 	
 England
 and Wales

 	
 100

 	
 100%

 
	
 UK
 Independent Medical Services Limited

 	
 Independent
 Medical Assessment Services Ltd

 	
 England
 and Wales

 	
 100

 	
 100%

 











	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Owner Name

 	
 Subsidiary

 	
 Jurisdiction
of Formation

 	
 Number of 

 Shares

 	
 Percentage Owned

 
	
 UK
 Independent Medical Services Limited

 	
 Independent
 Medical Experts Limited

 	
 England
 and Wales

 	
 100

 	
 100%

 
	
 UK
 Independent Medical Services Limited

 	
 Independent
 Medical Providers Ltd

 	
 England
 and Wales

 	
 100

 	
 100%

 
	
 UK
 Independent Medical Services Limited

 	
 Independent
 Reports Limited

 	
 England
 and Wales

 	
 100

 	
 100%

 
	
 UK
 Independent Medical Services Limited

 	
 Axis
 Costs Limited

 	
 England
 and Wales

 	
 100

 	
 100%

 
	
 UK
 Independent Medical Services Limited

 	
 UK
 Legal Imaging Services Limited

 	
 England
 and Wales

 	
 100

 	
 100%

 











Schedule 6.17


IP Rights


Trademarks


	
  

 	
  

 
	
 ExamWorks,
 Inc.

 
	
  

 	
  

 
	
 •

 	
 Registered
 mark no. 2,917,614 for Benchmark Medical Consultants (words only)

 
	
  

 	
  

 
	
 •

 	
 Registered
 service mark no. S19097 for Crossland Medical Review Services: Our Service Is
 Your Solution!

 
	
  

 	
  

 
	
 •

 	
 Registered
 service mark no. 3,509,987 for Abeton

 
	
  

 	
  

 
	
 •

 	
 Registered
 mark no. 3577691 for QualMed Evaluations

 
	
  

 	
  

 
	
 •

 	
 Registered
 mark no. 2402928 for ExamWorks

 
	
  

 	
  

 
	
 •

 	
 Registered
 mark no. 2,380,002 for Elite Physicians

 
	
  

 	
  

 
	
 •

 	
 Registered
 mark no. 2671783 for

 
	
  

 	
  

 
	
  

 	
 

 
	
  

 	
  

 
	
 •

 	
 Trademark
 application no. 85101472 for ExamWorks

 
	
  

 	
  

 
	
 •

 	
 Trademark
 application no. 85101495 for ExamWorks

 
	
  

 	
  

 
	
 CFO Medical
 Services, LLC

 
	
  

 	
  

 
	
 •

 	
 Registered
 mark no. 2,770,800 for CFO Medical Services 

 
	
  

 	
  

 
	
 Network
 Medical Review Company, Ltd. 6

 
	
  

 	
  

 
	
 •

 	
 Registered
 mark no. 2891753 for Unison 

 






	
  

 	
  

 
	
 

 	
  

 
	
           6
 These trademarks were used by the seller for purposes unrelated to the
 business acquired by ExamWorks, Inc. and were to be assigned to another
 entity owned by the seller prior to the acquisition. ExamWorks, Inc is
 currently working with DLA Piper, seller’s counsel, to have these trademarks
 appropriately assigned. If they are not assigned, ExamWorks, Inc. may
 terminate the trademarks since they are immaterial.

 













	
  

 	
  

 
	
 •

 	
 Registered
 mark no. 2448945 for Claimpath 

 
	
  

 	
  

 
	
 Southwest
 Medical Examination Services, Inc.

 
	
  

 	
  

 
	
 •

 	
 Registered
 service mark no. 3,041,490 for Southwest Medical Examination Services

 
	
 The Ricwel
 Corporation

 
	
  

 	
  

 
	
 •

 	
 Registered
 mark no. 2,545,331 for EFILE

 
	
  

 	
  

 
	
 Copyrights

 
	
  

 	
  

 
	
 IME Software
 Solutions, LLC 

 
	
  

 	
  

 
	
 •

 	
 Registered
 copyright no. TXu001043714 

 
	
  

 	
  

 
	
 Copyright License Agreements

 
	
  

 	
  

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and The Evaluation Group. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Brookside Consultants.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Certified Medical Consultants

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software Solutions,
 LLC and Honolulu Sports Medicine

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Medical Systems, Inc. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Cornerstone.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Medical Evaluators. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Certified Medical Evaluations. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Medical Assurance Group. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Medical Evaluation Centers.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Dr. Wessinger. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Viewpoint Medical Services. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Royal Medical.

 













	
  

 	
  

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Medical Director Solutions.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and InterMedCorp.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Medical Communications Group.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and BME Gateway. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Dr. Delhiemer. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Exam Coordinators Network.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Universal Medical Exams.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Star Medical.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and RKI Claims. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Genesis IME. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Scientific Consultants. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Florida’s Best Evaluations. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Multi Disciplinary Assessment Centre. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Northern Ohio Medical Management. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Assessment Rehabilitation Services.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Utopia Claims Concepts.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Medisys.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and D&D. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Independent Medical Evaluations Company. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Comprehensive Diagnostic Centers. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Soma. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and IME West. 

 













	
  

 	
  

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Abeton. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Matrix.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and InSight Investigations. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Quality Review Services. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Impartial Medical Opinion.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and The Independent Medical Evaluators. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Comprehensive Medical Evaluations-Michigan.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Comprehensive Medical Consultants Group-Phoenix. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Benchmark. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Universal Medical Exams-MD.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Empire. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and CME-America.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and National Medical Reviews.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and PDS. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and AWCS-ClarisPointe. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and MOC.

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and Sunrise. 

 
	
 •

 	
 Non-Exclusive Software License Agreement by and between IME Software
 Solutions, LLC and EME International. 

 
	
  

 	
  

 
	
 Registered Alternate Name

 
	
  

 	
  

 
	
 Florida
 Medical Specialists, Inc.

 
	
  

 	
  

 
	
 •

 	
 Marquis
 Medical Administrators registered in the state of New Jersey on May 14, 2001.
 

 













	
  

 	
  

 
	
 Unregistered Trade Names

 
	
  

 	
  

 
	
 ExamWorks,
 Inc. 

 
	
  

 	
  

 
	
 •

 	
 MAG

 
	
 •

 	
 Medical
 Assurance Group

 
	
 •

 	
 QualMed

 
	
 •

 	
 MedNet 

 
	
 •

 	
 MEI

 
	
 •

 	
 Medical
 Evaluations 

 
	
 •

 	
 AMBR

 
	
 •

 	
 American
 Medical Bill Review 

 
	
 •

 	
 American
 Medical Bill Review Services 

 
	
 •

 	
 MMS

 
	
 •

 	
 Metro
 Medical Services 

 
	
 •

 	
 401
 Diagnostic

 
	
 •

 	
 401
 Diagnostic and Treatment Center 

 
	
 •

 	
 Verity
 Medical

 
	
 •

 	
 Health Cost
 Management 

 
	
 •

 	
 HCM 

 
	
 •

 	
 TEG

 
	
 •

 	
 CMRS 

 
	
 •

 	
 BME

 
	
 •

 	
 Gateway
 Medical Services, Inc. 

 
	
 •

 	
 Gateway
 Medical Services, LLC 

 
	
 •

 	
 Boston
 Medical Evaluation/Examination, Inc.

 
	
 •

 	
 BME Gateway
 of New York, Inc.

 
	
 •

 	
 BMEGateway 

 
	
 •

 	
 BMEGateway,
 Inc. 

 
	
 •

 	
 Boston
 Medical Evaluations 

 
	
 •

 	
 BMEGateway
 Medical Services 

 







	
  

 	
  

 
	
 CFO Medical
 Services, LLC

 
	
  

 	
  

 
	
 •

 	
 CFO 

 
	
  

 	
  

 
	
 Diagnostic
 Image Institute, Inc.

 
	
  

 	
  

 
	
 •

 	
 DII

 
	
  

 	
  

 
	
 Southwest
 Medical Examination Services, Inc.

 
	
  

 	
  

 
	
 •

 	
 SWME 

 
	
  

 	
  

 
	
 IME Software
 Solutions, LLC

 
	
  

 	
  

 
	
 •

 	
 IME Centric 

 













	
  

 	
  

 
	
 Florida
 Medical Specialists, Inc.

 
	
  

 	
  

 
	
 •

 	
 FMS 

 
	
  

 	
  

 
	
 The Ricwel
 Corporation

 
	
  

 	
  

 
	
 •

 	
 Ricwel of OH
 

 
	
  

 	
  

 
	
 Ricwel of
 West Virginia, LLC

 
	
  

 	
  

 
	
 •

 	
 Ricwel of WV
 

 
	
  

 	
  

 
	
 Pacific
 Billing Services, Inc.

 
	
  

 	
  

 
	
 •

 	
 PBS 

 
	
  

 	
  

 
	
 Network
 Medical Management Company, Ltd.

 
	
  

 	
  

 
	
 •

 	
 Network
 Medical Review

 
	
 •

 	
 Network
 Medical Review Company 

 
	
 •

 	
 Network
 Medical Management Company 

 
	
 •

 	
 Insurance
 Appeals 

 
	
 •

 	
 Elite
 Physicians 

 
	
 •

 	
 WorkersFirst
 

 
	
 •

 	
 Independent
 Medical Services Corporation 

 
	
  

 	
  

 
	
 Exigere
 Corporation

 
	
  

 	
  

 
	
 •

 	
 Exigere 

 
	
 •

 	
 Exigere
 Corporation 

 
	
  

 	
  

 
	
 ExamWorks
 Review Services, LLC

 
	
  

 	
  

 
	
 •

 	
 ExamWorks
 Review Services 

 










Schedule 6.20(a)


Locations of Real Property


	
  

 	
  

 	
  

 
	
 Company Name

 	
  

 	
 Address

 
	
 ExamWorks Group, Inc.

 	
  

 	
 3280 Peachtree Road 

 Suite 2625 

 Atlanta, GA 30305 



 
	
 ExamWorks, Inc. 

 	
  

 	
 2400 West Dunlap Avenue, 

 Suite 155 

 Phoenix, AZ 85021 



 
	
  

 	
  

 	
 11030 White Rock Road 

 Suite 110 

 Rancho Cordova, CA 95670 



 
	
  

 	
  

 	
 1160 Industrial Street 

 Redding, CA 96002 



 
	
  

 	
  

 	
 11465 Johns Creek Parkway 

 Suite 140 

 Duluth, GA 30097 



 
	
  

 	
  

 	
 600 Unicorn Park 

 Woburn, MA 01801 



 
	
  

 	
  

 	
 20300 West 12 Mile Road 

 Suite 103 

 Southfield, MI 48076 



 
	
  

 	
  

 	
 5100 Gamble Drive 

 Suite 540 

 St. Louis Park, MN 55416 



 
	
  

 	
  

 	
 Gateway Park, LLC 

 523 Fellowship Road 

 Suite 275 

 Mount Laurel, NJ 08054 



 
	
  

 	
  

 	
 21 Ryder Place 

 East Rockaway, NY 11518 



 
	
  

 	
  

 	
 6901 Jericho Turnpike, Suite 

 230 

 Syosset, NY 11791 



 













	
  

 	
  

 	
  

 
	
  

 	
  

 	
 1815 NW 169th Place 

 Suite 1040 

 Beaverton, OR 97006 



 
	
  

 	
  

 	
 2501 SW First Avenue 

 Suite 400 

 Portland, OR 97201 



 
	
  

 	
  

 	
 2420 S. Union Avenue, Suite 

 240 

 Tacoma, WA 98405-1322 



 
	
  

 	
  

 	
 250 N. Patrick Boulevard, Suite 

 170 

 Brookfield, WI 53045 



 
	
  

 	
  

 	
 2450 Rimrock Road 

 Suite 303 

 Madison, WI 53713 



 
	
 CFO Medical Services, LLC

 	
  

 	
 4 Becker Farm Road 

 1st Floor 

 Roseland, NJ 07068 



 
	
 Diagnostic Imaging Institute, Inc.

 	
  

 	
 4141 SW Freeway 

 Suite 500 

 Houston, TX 77027 



 
	
 Exigere Corporation

 	
  

 	
 3005 112th Avenue NE 

 Suite 200 

 Bellevue, WA 98004 



 
	
 Florida Medical Specialists, Inc.

 	
  

 	
 200 E. Las Olas Blvd 

 Suite 1660 

 Fort Lauderdale, FL 33301 



 
	
 Network Medical Review Company, Ltd.

 	
  

 	
 605 Fulton Avenue 

 Suite 2002 

 Rockford, IL 61103 



 
	
 Ricwel of West Virginia, LLC

 	
  

 	
 803 Quarrier Street 

 Suite 220 

 Charleston, WV 25301 



 













	
  

 	
  

 	
  

 
	
 Southwest Medical Examination Services, Inc.

 	
  

 	
 12001 North Central 

 Expressway 

 Suite 800 

 Dallas, Texas 75243 



 
	
 The Ricwel Corporation

 	
  

 	
 525 Metro Place North 

 Suite 450 

 Dublin, OH 43017 



 










Schedule 6.20(b)


Taxpayer and Organizational Identification
Numbers


	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Company Name

 	
  

 	
 Organizational ID Number

 	
  

 	
 Tax ID Number

 
	
 ExamWorks Group, Inc.

 	
  

 	
 4839695

 	
  

 	
 27-2909425

 
	
 ExamWorks, Inc.

 	
  

 	
 4342019

 	
  

 	
 26-1114252

 
	
 ExamWorks Canada, Inc.

 	
  

 	
 4839836

 	
  

 	
 27-2914150

 
	
 ExamWorks Europe, Inc.

 	
  

 	
 4865211

 	
  

 	
 27-3351533

 
	
 CFO Medical Services, LLC

 	
  

 	
 600315820

 	
  

 	
 ExamWorks’
 tax 

 identification number, as 

 a pass through entity: 

 26-1114252

 
	
 Diagnostic Imaging Institute, Inc.

 	
  

 	
 126513100

 	
  

 	
 75-2576931

 
	
 Elite Physicians, Ltd.

 	
  

 	
 5851-395-4

 	
  

 	
 36-4041877

 
	
 ExamWorks Evaluations of New York, LLC

 	
  

 	
 N/A

 	
  

 	
 ExamWorks’
 tax 

 identification number, as 

 a pass through entity: 

 26-1114252

 
	
 ExamWorks Review Services, LLC

 	
  

 	
 4713975

 	
  

 	
 ExamWorks’
 tax 

 identification number, as 

 a pass through entity: 

 26-1114252

 
	
 Exigere Corporation

 	
  

 	
 601754112

 	
  

 	
 91-1745161

 
	
 Florida Medical Specialists, Inc.

 	
  

 	
 0100430388

 	
  

 	
 65-0149635

 
	
 IME Software Solutions, LLC

 	
  

 	
 B7966D

 	
  

 	
 35-2162737

 
	
 Insurance Appeals, Ltd.

 	
  

 	
 6212-705-8

 	
  

 	
 32-0012246

 
	
 Marquis Medical Administrators, Inc.

 	
  

 	
 N/A

 	
  

 	
 01-0654414

 
	
 Network Medical Management Company, Ltd.

 	
  

 	
 6213-0776

 	
  

 	
 32-0012239

 
	
 Network Medical Review Company, Ltd.

 	
  

 	
 6212-482-2

 	
  

 	
 76-0711128

 
	
 Pacific Billing Services, Inc.

 	
  

 	
 800747365

 	
  

 	
 87-0792602

 
	
 Ricwel of West Virginia, LLC

 	
  

 	
 76308

 	
  

 	
 20-2905113

 
	
 Southwest Medical Examination Services, Inc.

 	
  

 	
 123769800

 	
  

 	
 75-2437666

 
	
 The Ricwel Corporation

 	
  

 	
 697241

 	
  

 	
 31-1200937

 
	
 WorkersFirst, Inc.

 	
  

 	
 6065-532-4

 	
  

 	
 20-4362500

 









Schedule 6.20(c)


Changes in Legal Name, State of Formation and
Structure


	
  

 	
  

 
	
 1.

 	
 On December
 1, 2008, Southwest Medical Examination Services of Louisiana, LLC, a Louisiana
 limited liability company, merged with and into Southwest Medical Examination
 Services, Inc., a Texas corporation (“Southwest Texas”), with
 Southwest Texas as the surviving entity.

 
	
  

 	
  

 
	
 2.

 	
 On June 18,
 2009, FMS Evaluations, Inc., a Florida corporation, was merged with and into
 Florida Medical Specialists, Inc., a New Jersey corporation (“FMS”),
 with FMS as the surviving entity.

 
	
  

 	
  

 
	
 3.

 	
 On July 11,
 2008 CFO Medical Services, P.A., a New Jersey professional association,
 changed its name to CFO Medical Services, Inc., a New Jersey Corporation (“CFO
 NJ”). 

 
	
  

 	
  

 
	
 4.

 	
 On July 14,
 2008, CFO NJ merged with and into ExamWorks NJ, LLC, a New Jersey limited
 liability company (“ExamWorks NJ”) with ExamWorks NJ as the surviving
 entity. Subsequently, on July 14, 2008, ExamWorks NJ changed its name to “CFO
 Medical Services, LLC.”

 
	
  

 	
  

 
	
 5.

 	
 On August 4,
 2009, Benchmark Medical Consultants, a California corporation, merged with
 and into ExamWorks, Inc., a Delaware corporation (“ExamWorks”), with
 ExamWorks as the surviving entity.

 
	
  

 	
  

 
	
 6.

 	
 On January
 1, 2010, Crossland Medical Review Services, Inc., a New York corporation, was
 merged with and into ExamWorks, with ExamWorks as the surviving entity.

 
	
  

 	
  

 
	
 7.

 	
 On June 23,
 2010, ExamWorks reorganized into a holding company structure by a merger
 conducted pursuant to Section 251(g) of the General Corporation Law of the
 State of Delaware. As a result, ExamWorks is a wholly-owned subsidiary of
 ExamWorks Group, Inc.

 
	
  

 	
  

 
	
 8.

 	
 On September
 1, 2010, Set-Aside Solutions, LLC, a Delaware corporation, changed its name
 to “ExamWorks Review Services, LLC.”

 











Schedule 8.01


Liens Existing on the Funding Date


None.





Schedule 8.02


Investments Existing on the Funding Date


None. 





Schedule 8.03


Indebtedness Existing on the Funding Date


Part A


	
  

 	
  

 
	
 1.

 	
 Asset Purchase
 Agreement dated as of June 30, 2010 by and among ExamWorks, Inc., 401
 Diagnostic, Inc. and Dr. Marvin B. Zwerin, under which $123,333.32 remains
 outstanding as of September 30, 2010 and pursuant to which 401 Diagnostic is
 entitled to receive Earn-Out Payments in an aggregate amount up to $281,250. 

 
	
  

 	
  

 
	
 2.

 	
 Subordinated
 Promissory Note, dated May 22, 2009 held by Lawjess Partners, Ltd., under
 which an aggregate amount of $358,693.75 remains outstanding as of October 1,
 2010. 

 
	
  

 	
  

 
	
 3.

 	
 Subordinated
 Promissory Note, dated May 22, 2009 held by Susan Kaplan, under which an
 aggregate amount of $358,693.75 remains outstanding as of October 1, 2010. 

 
	
  

 	
  

 
	
 4.

 	
 Asset
 Purchase Agreement, dated as of December 31, 2009, by and among ExamWorks,
 Inc., Joseph Chalal and Michael Zeide (the “Creditors”), under which
 the Creditors are entitled to receive installment payments in an aggregate
 amount up to $1,330,000.00 as of September 30, 2010. 

 
	
  

 	
  

 
	
 5.

 	
 Subordinated
 Promissory Note, dated December 31, 2009 held by Jerry R. Becker, under which
 an aggregate amount of $478,792.40 remains outstanding as of October 1, 2010.
 

 
	
  

 	
  

 
	
 6.

 	
 Subordinated
 Promissory Note, dated December 31, 2009 held by Danny L. Johnson, under
 which an aggregate amount of $478,792.40 remains outstanding as of October 1,
 2010. 

 
	
  

 	
  

 
	
 7.

 	
 Subordinated
 Promissory Note, dated December 31, 2009 held by Michael E. Goulet, under
 which an aggregate amount of $421,835.90 remains outstanding as of October 1,
 2010. 

 
	
  

 	
  

 
	
 8.

 	
 Subordinated
 Promissory Note, dated December 31, 2009 held by Shana L. Goulet, under which
 an aggregate amount of $421,835.90 remains outstanding as of October 1, 2010.
 

 
	
  

 	
  

 
	
 9.

 	
 Asset
 Purchase Agreement, dated as of June 30, 2010 by and among SOMA Medical
 Assessments Corp., ExamWorks Group, Inc., Troy Cumiskey and 1495929 Ontario
 Inc. (collectively, the “SOMA Creditors”), under which the SOMA
 Creditors are potentially entitled to receive an aggregate amount not to
 exceed $2,000,000 Canadian dollars. 

 
	
  

 	
  

 
	
 10.

 	
 Asset
 Purchase Agreement, dated as of June 30, 2010 by and among Direct IME Corp.,
 ExamWorks Group, Inc., Greg Cumiskey, Eleanor Cumiskey, Direct IME
 Occupational Therapy Services, Inc. and Direct IME Inc. (collectively, the “Direct
 IME Creditors”), under which the Direct IME Creditors are potentially
 entitled to collectively receive an aggregate amount not to exceed $2,000,000
 Canadian dollars. 

 













	
  

 	
  

 
	
 11.

 	
 Subordinated
 Promissory Note, dated as of October 1, 2010 held by John C. Addinizo, under
 which an aggregate amount of $1,500,000 remains outstanding as of October 1,
 2010. 

 



Part B


	
  

 	
  

 
	
 1.

 	
 Letter
 Agreement Re: Bonus Payments, dated August 13, 2009, from ExamWorks, Inc. to
 Susanne Bartlett

 
	
  

 	
  

 
	
 2.

 	
 Employment
 Agreement, dated August 13, 2009, by and between Brad Cutter and ExamWorks,
 Inc. 

 
	
  

 	
  

 
	
 3.

 	
 Employment
 Agreement, dated August 13, 2009, by and between Mark McCormick and
 ExamWorks, Inc. 

 
	
  

 	
  

 
	
 4.

 	
 Employment
 Agreement, dated August 13, 2009, by and between Laura Russ and ExamWorks,
 Inc. 

 
	
  

 	
  

 
	
 Under items
 1-4, an aggregate amount of $666,666.67 remains outstanding as of September
 30, 2010. 

 
	
  

 	
  

 
	
 5.

 	
 Employment
 Agreement, dated July 8, 2009, by and between Douglas M. Leveille and IME
 Software Solutions, LLC, under which Douglas M. Leveille is entitled to a
 bonus on the second anniversary of the effective date, July 8, 2009, equal to
 $100,000 in cash.

 
	
  

 	
  

 
	
 6.

 	
 Subordinated
 Promissory Note, dated August 13, 2009 held by John F. Moran, under which an
 aggregate amount of $229,218.75 remains outstanding as of September 30, 2010.
 

 
	
  

 	
  

 
	
 7.

 	
 Ricwel
 Earnout (cash portion: non-interest bearing), under which an aggregate amount
 of $335,072.77 remains outstanding as of September 30, 2010. 

 
	
  

 	
  

 
	
 8.

 	
 The
 Evaluation Group Earnout (non-interest bearing), under which an aggregate
 amount of $175,000 remains outstanding as of September 30, 2010. 

 









Schedule 11.02


Certain Addresses for Notices


Address for Loan Parties:



	
  

 	
  

 
	
  

 	
 ExamWorks,
 Inc.

 
	
  

 	
 3280
 Peachtree Road

 
	
  

 	
 Suite 2625 

 
	
  

 	
 Atlanta, GA
 30305 

 
	
  

 	
 Attn: J.
 Miguel Fernandez de Castro 

 
	
  

 	
 Telefax No.:
 (404) 420-2341

 
	
  

 	
  

 
	
  

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

 
	
  

 	
  

 
	
  

 	
 Paul,
 Hastings, Janofsky & Walker LLP

 
	
  

 	
 600
 Peachtree Street, NE

 
	
  

 	
 Suite 2400 

 
	
  

 	
 Atlanta, GA
 30308

 
	
  

 	
 Attn: Rey
 Pascual, Esq. 

 
	
  

 	
 Telefax No.:
 (404) 685-5227 

 



Addresses for Administrative Agent, Swing
Line Lender and L/C Issuer: 


	
  

 	
  

 	
  

 
	
  

 	
 Agent’s
 Office: 

 
	
  

 	
 (for
 payments and requests)

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Nilesh Patel
 

 
	
  

 	
  

 	
 Credit
 Services 

 
	
  

 	
  

 	
 Bank of
 America, N.A. 

 
	
  

 	
  

 	
 101 N. Tryon
 Street 

 
	
  

 	
  

 	
 Charlotte,
 NC 28255

 
	
  

 	
  

 	
 Telephone
 No.: (980) 386-5094 

 
	
  

 	
  

 	
 Telefax No.:
 (704) 719-8870

 
	
  

 	
  

 	
 E-mail: npatel@baml.com

 
	
  

 	
  

 	
  

 
	
  

 	
 Wiring
 Instructions: 

 
	
  

 	
  

 
	
  

 	
  

 	
 Bank of
 America, N.A. 

 
	
  

 	
  

 	
 ABA #
 026009593

 
	
  

 	
  

 	
 New York, NY
 

 
	
  

 	
  

 	
 Acct. #
 136-621-225-0600

 
	
  

 	
  

 	
 Attn:
 Corporate Credit Services 

 
	
  

 	
  

 	
 Ref:
 ExamWorks Group, Inc. 

 













	
  

 	
  

 	
  

 
	
  

 	
 Other
 Notices to Administrative Agent: 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Anne Zeschke
 

 
	
  

 	
  

 	
 Agency
 Officer 

 
	
  

 	
  

 	
 Bank of
 America, N.A. 

 
	
  

 	
  

 	
 231 South
 LaSalle Street 

 
	
  

 	
  

 	
 Chicago,
 Illinois 60697

 
	
  

 	
  

 	
 Telephone
 No.: (312) 828-4900

 
	
  

 	
  

 	
 Telefax No.:
 (877) 206-1771

 
	
  

 	
  

 	
 E-mail: anne.m.zeschke@baml.com
 

 
	
  

 	
  

 	
  

 
	
  

 	
 For Notices
 as Swing Line Lender: 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Nilesh Patel
 

 
	
  

 	
  

 	
 Credit
 Services 

 
	
  

 	
  

 	
 Bank of
 America 

 
	
  

 	
  

 	
 101 N. Tryon
 Street 

 
	
  

 	
  

 	
 Charlotte,
 NC 28255

 
	
  

 	
  

 	
 Telephone
 No.: (980) 386-5094

 
	
  

 	
  

 	
 Telefax No.:
 (704) 719-8870

 
	
  

 	
  

 	
 E-mail:
 npatel@baml.com

 
	
  

 	
  

 	
  

 
	
  

 	
 For Notices
 as L/C Issuer:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Alfonso
 Malave 

 
	
  

 	
  

 	
 Trade Finance
 

 
	
  

 	
  

 	
 1 Fleet Way

 
	
  

 	
  

 	
 Scranton, PA
 18507

 
	
  

 	
  

 	
 Telephone
 No.: (570) 330-4212

 
	
  

 	
  

 	
 Telefax No.:
 (570) 330-4186

 
	
  

 	
  

 	
 E-mail: Alfonzo.malave@baml.com