Exhibit 10.1




 





 


CREDIT AND GUARANTY AGREEMENT


 


dated as of February 9, 2007


 


among


 


MR DEFAULT SERVICES LLC,


 


E-DEFAULT SERVICES LLC,


 


STATEWIDE TAX AND TITLE  SERVICES LLC,


 


STATEWIDE PUBLISHING SERVICES LLC,


as Borrowers,


 


MR PROCESSING HOLDING CORP.,


 


CERTAIN SUBSIDIARIES OF BORROWERS,

as Guarantors,


 


VARIOUS LENDERS,


 


RBS SECURITIES CORPORATION,

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


 


and


 


THE ROYAL BANK OF SCOTLAND PLC,

as Administrative Agent, Collateral Agent and Documentation Agent


 


$150,000,000 Senior Secured Credit Facilities




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE One DEFINITIONS

  
	
   

  
	
  Section 1.01

  	
  Definitions

  	
  2

  
	
  Section 1.02

  	
  Accounting
  Terms

  	
  33

  
	
  Section 1.03

  	
  Interpretation,
  etc

  	
  34

  
	
  Section 1.04

  	
  Construction

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  Two LOANS AND LETTERS OF CREDIT

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Term
  Loan Commitments

  	
  34

  
	
  Section 2.02

  	
  Borrowing
  Mechanics for Term Loans

  	
  35

  
	
  Section 2.03

  	
  Revolving
  Commitments

  	
  36

  
	
  Section 2.04

  	
  Borrowing
  Mechanics for Revolving Loans

  	
  36

  
	
  Section 2.05

  	
  Swing
  Line Loans Commitments

  	
  36

  
	
  Section 2.06

  	
  Borrowing
  Mechanics for Swing Line Loans

  	
  37

  
	
  Section 2.07

  	
  Letters
  of Credit

  	
  39

  
	
  Section 2.08

  	
  Notice
  of Issuance

  	
  39

  
	
  Section 2.09

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

  	
  39

  
	
  Section 2.10

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

  	
  40

  
	
  Section 2.11

  	
  Lenders’
  Purchase of Participations in Letters of Credit

  	
  40

  
	
  Section 2.12

  	
  Obligations
  Absolute

  	
  41

  
	
  Section 2.13

  	
  Indemnification

  	
  42

  
	
  Section 2.14

  	
  Pro
  Rata Shares

  	
  42

  
	
  Section 2.15

  	
  Availability
  of Funds

  	
  42

  
	
  Section 2.16

  	
  Use
  of Proceeds

  	
  43

  
	
  Section 2.17

  	
  Lenders’
  Evidence of Debt

  	
  43

  
	
  Section 2.18

  	
  Notes

  	
  43

  
	
  Section 2.19

  	
  Interest
  Rate on Loans

  	
  44

  
	
  Section 2.20

  	
  Interest
  Rate

  	
  44

  
	
  Section 2.21

  	
  Conversion/Continuation

  	
  45

  
	
  Section 2.22

  	
  Default
  Interest

  	
  46

  
	
  Section 2.23

  	
  Fees

  	
  46

  
	
  Section 2.24

  	
  Scheduled
  Installments

  	
  47

  
	
  Section 2.25

  	
  Voluntary
  Prepayments

  	
  49

  
	
  Section 2.26

  	
  Voluntary
  Commitment Reductions

  	
  50

  
	
  Section 2.27

  	
  Mandatory
  Prepayments

  	
  50

  
	
  Section 2.28

  	
  Mandatory
  Commitment Reductions of Revolving Loans

  	
  51

  
	
  Section 2.29

  	
  Prepayment
  Certificate

  	
  52

  
	
  Section 2.30

  	
  Application
  of Prepayments/Reductions

  	
  52

  
	
  Section 2.31

  	
  General
  Provisions Regarding Payments

  	
  53

  
	
  Section 2.32

  	
  Sharing
  of Payments by Lenders

  	
  54

  
	
  Section 2.33

  	
  Making
  or Maintaining Eurodollar Rate Loans

  	
  55

  
	
  Section 2.34

  	
  Compensation
  For Increased Costs

  	
  56

  
	
  Section 2.35

  	
  Capital
  Requirements; Certificates for Reimbursement; Delay in Requests

  	
  57

  
	
  Section 2.36

  	
  Taxes

  	
  58

  
	
  Section 2.37

  	
  Mitigation
  Obligations; Replacement of Lenders

  	
  60

  
	
  Section 2.38

  	
  Defaulting
  Lenders

  	
  61

  



 


i

















 


	
  Section 2.39

  	
  Joint
  and Several Liability

  	
  62

  
	
  Section 2.40

  	
  Increase
  in Commitments

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  Three CONDITIONS PRECEDENT

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Conditions
  to Closing Date

  	
  65

  
	
  Section 3.02

  	
  Conditions
  to Delayed Draw Term Loans

  	
  70

  
	
  Section 3.03

  	
  Conditions
  to Each Credit Extension

  	
  71

  
	
   

  
	
  ARTICLE
  Four REPRESENTATIONS AND WARRANTIES

  
	
   

  
	
  Section 4.01

  	
  Organization;
  Requisite Power and Authority; Qualification

  	
  72

  
	
  Section 4.02

  	
  Capital
  Stock and Ownership

  	
  73

  
	
  Section 4.03

  	
  Due
  Authorization

  	
  73

  
	
  Section 4.04

  	
  No
  Conflict

  	
  73

  
	
  Section 4.05

  	
  Governmental
  Consents

  	
  73

  
	
  Section 4.06

  	
  Binding
  Obligation

  	
  74

  
	
  Section 4.07

  	
  Pro
  Forma Financial Statements

  	
  74

  
	
  Section 4.08

  	
  Projections

  	
  74

  
	
  Section 4.09

  	
  No
  Material Adverse Change

  	
  74

  
	
  Section 4.10

  	
  No
  Restricted Junior Payments

  	
  74

  
	
  Section 4.11

  	
  Adverse
  Proceedings, etc

  	
  74

  
	
  Section 4.12

  	
  Payment
  of Taxes

  	
  75

  
	
  Section 4.13

  	
  Properties

  	
  75

  
	
  Section 4.14

  	
  Environmental
  Matters

  	
  75

  
	
  Section 4.15

  	
  No
  Defaults

  	
  76

  
	
  Section 4.16

  	
  Material
  Contracts

  	
  76

  
	
  Section 4.17

  	
  Governmental
  Regulation

  	
  76

  
	
  Section 4.18

  	
  Margin
  Stock

  	
  76

  
	
  Section 4.19

  	
  Employee
  Matters

  	
  77

  
	
  Section 4.20

  	
  Employee
  Benefit Plans

  	
  77

  
	
  Section 4.21

  	
  Certain
  Fees

  	
  78

  
	
  Section 4.22

  	
  Solvency

  	
  78

  
	
  Section 4.23

  	
  Related
  Agreements

  	
  78

  
	
  Section 4.24

  	
  Compliance
  with Statutes, etc

  	
  78

  
	
  Section 4.25

  	
  Disclosure

  	
  78

  
	
  Section 4.26

  	
  Intellectual
  Property

  	
  79

  
	
  Section 4.27

  	
  No
  Default

  	
  79

  
	
  Section 4.28

  	
  Investigations,
  Audits, Etc

  	
  79

  
	
  Section 4.29

  	
  Agreements
  with Managers

  	
  79

  
	
  Section 4.30

  	
  Subordinated
  Indebtedness

  	
  79

  
	
  Section 4.31

  	
  Foreign
  Assets Control Regulations

  	
  80

  
	
  Section 4.32

  	
  Patriot
  Act

  	
  80

  
	
  Section 4.33

  	
  RICO

  	
  80

  
	
  Section 4.34

  	
  Unauthorized
  UCC Filings

  	
  80

  
	
   

  
	
  ARTICLE
  Five AFFIRMATIVE COVENANTS

  
	
   

  
	
  Section 5.01

  	
  Financial
  Statements and Other Reports

  	
  81

  
	
  Section 5.02

  	
  Existence

  	
  84

  
	
  Section 5.03

  	
  Payment
  of Taxes

  	
  84

  



 


ii

















 


	
  Section 5.04

  	
  Maintenance
  of Properties

  	
  85

  
	
  Section 5.05

  	
  Insurance

  	
  85

  
	
  Section 5.06

  	
  Inspections

  	
  85

  
	
  Section 5.07

  	
  Lenders
  Meetings

  	
  86

  
	
  Section 5.08

  	
  Compliance
  with Laws

  	
  86

  
	
  Section 5.09

  	
  Environmental
  Disclosure

  	
  86

  
	
  Section 5.10

  	
  Hazardous
  Materials Activities, etc

  	
  87

  
	
  Section 5.11

  	
  Subsidiaries

  	
  87

  
	
  Section 5.12

  	
  Additional
  Material Real Estate Assets

  	
  88

  
	
  Section 5.13

  	
  Interest
  Rate Protection

  	
  88

  
	
  Section 5.14

  	
  Further
  Assurances

  	
  88

  
	
  Section 5.15

  	
  Cash
  Management Systems

  	
  88

  
	
  Section 5.16

  	
  Books
  and Records

  	
  88

  
	
  Section 5.17

  	
  Performance
  of Leases, Related Documents and Other Material Agreements

  	
  89

  
	
  Section 5.18

  	
  Unauthorized
  UCC Filings

  	
  89

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  Six NEGATIVE COVENANTS

  
	
   

  
	
  Section 6.01

  	
  Indebtedness

  	
  89

  
	
  Section 6.02

  	
  Liens

  	
  91

  
	
  Section 6.03

  	
  Equitable
  Lien

  	
  93

  
	
  Section 6.04

  	
  No
  Further Negative Pledges

  	
  93

  
	
  Section 6.05

  	
  Restricted
  Junior Payments

  	
  93

  
	
  Section 6.06

  	
  Restrictions
  on Subsidiary Distributions

  	
  94

  
	
  Section 6.07

  	
  Investments

  	
  95

  
	
  Section 6.08

  	
  Financial
  Covenants

  	
  96

  
	
  Section 6.09

  	
  Fundamental
  Changes; Disposition of Assets; Acquisitions

  	
  101

  
	
  Section 6.10

  	
  Disposal
  of Subsidiary Interests

  	
  102

  
	
  Section 6.11

  	
  Sales
  and Lease-Backs

  	
  102

  
	
  Section 6.12

  	
  Transactions
  with Shareholders and Affiliates

  	
  102

  
	
  Section 6.13

  	
  Conduct
  of Business

  	
  103

  
	
  Section 6.14

  	
  Permitted
  Activities of Holdings

  	
  103

  
	
  Section 6.15

  	
  Amendments
  or Waivers of Certain Related Agreements

  	
  103

  
	
  Section 6.16

  	
  Amendments
  or Waivers of with Respect to Senior Subordinated Notes

  	
  103

  
	
  Section 6.17

  	
  Fiscal
  Year

  	
  103

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  Seven GUARANTY

  
	
   

  
	
  Section 7.01

  	
  Guaranty
  of the Obligations

  	
  104

  
	
  Section 7.02

  	
  Contribution
  by Guarantors

  	
  104

  
	
  Section 7.03

  	
  Payment
  by Guarantors

  	
  105

  
	
  Section 7.04

  	
  Liability
  of Guarantors Absolute

  	
  105

  
	
  Section 7.05

  	
  Waivers
  by Guarantors

  	
  107

  
	
  Section 7.06

  	
  Guarantors’
  Rights of Subrogation, Contribution, etc

  	
  107

  
	
  Section 7.07

  	
  Subordination
  of Other Obligations

  	
  108

  
	
  Section 7.08

  	
  Continuing
  Guaranty

  	
  108

  
	
  Section 7.09

  	
  Authority
  of Guarantors or Borrowers

  	
  108

  
	
  Section 7.10

  	
  Financial
  Condition of Borrowers

  	
  109

  
	
  Section 7.11

  	
  Bankruptcy,
  etc

  	
  109

  
	
  Section 7.12

  	
  Discharge
  of Guaranty upon Sale of Guarantor

  	
  110

  



 


iii

















 


	
  ARTICLE
  Eight EVENTS OF DEFAULT

  
	
   

  
	
  Section 8.01

  	
  Events
  of Default

  	
  110

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  Nine AGENTS

  
	
   

  
	
  Section 9.01

  	
  Appointment
  and Authority

  	
  113

  
	
  Section 9.02

  	
  Rights
  as a Lender

  	
  113

  
	
  Section 9.03

  	
  Exculpatory
  Provisions

  	
  113

  
	
  Section 9.04

  	
  Reliance
  by Administrative Agent and Collateral Agent

  	
  114

  
	
  Section 9.05

  	
  Delegation
  of Duties

  	
  114

  
	
  Section 9.06

  	
  Resignation
  of Administrative Agent

  	
  115

  
	
  Section 9.07

  	
  Non-Reliance
  on Agents and Other Lenders

  	
  116

  
	
  Section 9.08

  	
  No
  Other Duties, etc.

  	
  116

  
	
  Section 9.09

  	
  Collateral
  Documents and Guaranty

  	
  116

  
	
  Section 9.10

  	
  Withholding
  Taxes

  	
  117

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  Ten MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Notices;
  Effectiveness; Electronic Communication

  	
  117

  
	
  Section 10.02

  	
  Expenses;
  Indemnity; Damage Waiver

  	
  118

  
	
  Section 10.03

  	
  Right
  of Set-Off

  	
  120

  
	
  Section 10.04

  	
  Amendments
  and Waivers

  	
  121

  
	
  Section 10.05

  	
  Execution
  of Amendments, etc

  	
  122

  
	
  Section 10.06

  	
  Successors
  and Assigns; Participations

  	
  123

  
	
  Section 10.07

  	
  Independence
  of Covenants

  	
  126

  
	
  Section 10.08

  	
  Survival
  of Representations, Warranties and Agreements

  	
  126

  
	
  Section 10.09

  	
  No
  Waiver; Remedies Cumulative

  	
  126

  
	
  Section 10.10

  	
  Marshalling;
  Payments Set Aside

  	
  126

  
	
  Section 10.11

  	
  Severability

  	
  127

  
	
  Section 10.12

  	
  Obligations
  Several; Independent Nature of Lenders’ Rights

  	
  127

  
	
  Section 10.13

  	
  Headings

  	
  127

  
	
  Section 10.14

  	
  Governing
  Law; Jurisdiction; Etc.

  	
  127

  
	
  Section 10.15

  	
  WAIVER
  OF JURY TRIAL

  	
  128

  
	
  Section 10.16

  	
  Treatment
  of Certain Information; Confidentiality

  	
  128

  
	
  Section 10.17

  	
  Usury
  Savings Clause

  	
  129

  
	
  Section 10.18

  	
  Counterparts;
  Integration; Effectiveness

  	
  129

  
	
  Section 10.19

  	
  Electronic
  Execution of Assignments

  	
  129

  
	
  Section 10.20

  	
  Entire
  Agreement

  	
  130

  
	
  Section 10.21

  	
  Patriot Act Notification

  	
  130

  



 


iv

















 


	
  APPENDICES:

  
	
  A-1:

  	
   

  	
  Initial Term Loan
  Commitments

  
	
  A-2:

  	
   

  	
  Delayed Draw Term Loan
  Commitments

  
	
  A-3:

  	
   

  	
  Revolving Commitments

  
	
   

  	
   

  	
   

  
	
  SCHEDULES:

  
	
  1.01:

  	
   

  	
  Designated Consolidated
  Adjusted EBITDA and Consolidated Capital Expenditures

  
	
  3.01(h):

  	
   

  	
  Closing Date Mortgaged
  Properties

  
	
  4.01:

  	
   

  	
  Jurisdictions of
  Organization and Qualification

  
	
  4.02:

  	
   

  	
  Capital Stock and
  Ownership

  
	
  4.13:

  	
   

  	
  Real Estate Assets

  
	
  4.16:

  	
   

  	
  Material Contracts

  
	
  4.21:

  	
   

  	
  Certain Fees

  
	
  4.29:

  	
   

  	
  Agreements with Managers

  
	
  4.34:

  	
   

  	
  Unauthorized UCC Filings

  
	
  6.01:

  	
   

  	
  Certain Indebtedness

  
	
  6.02:

  	
   

  	
  Certain Liens

  
	
  6.07:

  	
   

  	
  Certain Investments

  
	
  6.12:

  	
   

  	
  Certain Affiliate
  Transactions

  
	
   

  	
   

  	
   

  
	
  EXHIBITS:

  
	
  A-1:

  	
   

  	
  Funding Notice

  
	
  A-2:

  	
   

  	
  Conversion/Continuation
  Notice

  
	
  A-3:

  	
   

  	
  Issuance Notice

  
	
  B-1:

  	
   

  	
  Term Loan Note

  
	
  B-2:

  	
   

  	
  Revolving Loan Note

  
	
  B-3:

  	
   

  	
  Swing Line Note

  
	
  B-4:

  	
   

  	
  Incremental Term Loan Note

  
	
  C:

  	
   

  	
  Compliance Certificate

  
	
  D:

  	
   

  	
  Opinions of Counsel

  
	
  E:

  	
   

  	
  Assignment and Assumption
  Agreement

  
	
  F-1:

  	
   

  	
  Closing Date Certificate

  
	
  F-2:

  	
   

  	
  Solvency Certificate

  
	
  G:

  	
   

  	
  Counterpart Agreement

  
	
  H:

  	
   

  	
  Pledge and Security
  Agreement

  
	
  I:

  	
   

  	
  Mortgage

  
	
  J:

  	
   

  	
  Landlord Collateral Access
  Agreement

  



 


v

















 


CREDIT AND GUARANTY AGREEMENT


 


This
CREDIT AND GUARANTY AGREEMENT, dated as of February 9, 2007, is entered
into by and among MR Default Services LLC, a Delaware limited liability company
(“MR”), E-Default Services LLC, a Delaware limited liability company (“E-Default”),
Statewide Tax and Title Services LLC, a Delaware limited liability company (“STT”),
Statewide Publishing Services LLC, a Delaware limited liability company (“Statewide
Publishing” and, together with MR, E-Default and STT, the “Borrowers”),
MR Processing Holding Corp., a Delaware corporation (“Holdings”),
CERTAIN SUBSIDIARIES OF BORROWERS, as Guarantors, the Lenders party hereto from
time to time, RBS SECURITIES CORPORATION (“RBSS”), as Sole Lead
Arranger, Sole Book Runner and Syndication Agent (in such respective
capacities, “Lead Arranger,” “Book Runner,” and “Syndication
Agent”), and THE ROYAL BANK OF SCOTLAND PLC (“RBS plc”), as
Administrative Agent, Collateral Agent and Documentation Agent (in such
respective capacities, “Administrative Agent,” “Collateral Agent”
and “Documentation Agent”).


 


RECITALS


 


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


 


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


 


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


 


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


 


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


 


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


 

















 


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


 


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


 


ARTICLE ONE    

DEFINITIONS


 


Section 1.01         Definitions.


 


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


 


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


 


“Administrative Agent”
as defined in the preamble hereto.


 


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


 


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


 


2

















 


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


 


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


 


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


 


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


 


“Aggregate Payments”
as defined in Section 7.02.


 


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


 


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


 


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


 


	
  TOTAL

  LEVERAGE

  RATIO

  	
   

  	
  APPLICABLE MARGIN FOR

  REVOLVING LOANS, INITIAL

  TERM LOANS AND DELAYED

  DRAW TERM LOANS

  (EURODOLLAR LOANS)

  	
   

  	
  APPLICABLE MARGIN

  FOR REVOLVING

  LOANS, INITIAL TERM

  LOANS, DELAYED

  DRAW TERM LOANS

  AND SWING LINE

  LOANS (BASE RATE

  LOANS)

  	
   

  
	
  >
  4.50:1.00

  	
   

  	
  3.25%

  	
   

  	
  2.25%

  	
   

  
	
  < 4.50:1.00
  and  > 3.50:1.00

  	
   

  	
  3.00%

  	
   

  	
  2.00%

  	
   

  
	
  < 3.50:1.00

  	
   

  	
  2.75%

  	
   

  	
  1.75%

  	
   

  



 


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


 


3














 


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


 


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


 


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


 


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


 


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


 


“Asset Sale” means a
sale, lease or sub-lease (as lessor or sublessor), sale and leaseback,
assignment, conveyance, transfer or other disposition to, or any exchange of
property with, any Person (other than any Borrower or any Guarantor
Subsidiary), in one transaction or a series of transactions, of all or any part
of Holdings’ or any of its Subsidiaries’ businesses, assets or properties of
any kind, whether 


 


4

















 


real, personal, or mixed and
whether tangible or intangible, whether now owned or hereafter acquired,
including, without limitation, the Capital Stock of any of Holdings’
Subsidiaries, other than (i) inventory (or other assets) sold or leased in
the ordinary course of business (excluding any such sales by operations or
divisions discontinued or to be discontinued), and (ii) sales of other
assets for aggregate consideration of less than $250,000 individually or in the
aggregate, during any Fiscal Year.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Borrowers” as
defined in the preamble hereto.


 


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


 


5

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


6

















 


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


 


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


 


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


 


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


 


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


 


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


 


“Collateral Agent” as
defined in the preamble hereto.


 


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


 


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


 


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


 


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


 


“Consolidated Adjusted
EBITDA” means, for any period, an amount determined for Holdings and its
Subsidiaries on a consolidated basis equal to (i) the sum, without
duplication, of the amounts for such period of (a) Consolidated Net
Income, and to the extent any of the items in subparagraphs (b) through (n) (other
than subparagraph (m)) reduce Consolidated Net Income, (b) Consolidated
Interest Expense, (c) provisions for Taxes based on income, (d) total
depreciation expense, (e) total amortization expense, (f) Transaction
Costs incurred and paid in the period (to the extent expensed), (g) any
financial advisory fees, accounting fees, legal fees and other similar advisory
or consulting fees and other out-of-pocket costs and expenses of Holdings, any
Borrower or any Borrower’s 


 


7

















 


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


 


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


 


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


 


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


 


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


 


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


 


8

















 


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


 


“Consolidated Fixed
Charges” means, for any period, the sum, without duplication, of the
amounts determined for Holdings and its Subsidiaries on a consolidated basis
equal to (i) Consolidated Cash Interest Expense (less any payments made to
obtain any Interest Rate Agreements and any expenses reimbursed under this
Agreement, in each case solely to the extent such payments are included in
Consolidated Cash Interest Expense), (ii) payments of principal of the
Term Loans and the Incremental Term Loans under Section 2.24 and scheduled
payments of principal on other Consolidated Total Debt, (iii) Consolidated
Capital Expenditures (net of (x) any proceeds of any related financings
with respect to such expenditures, (y) any proceeds from an Excluded
Issuance, any Net Asset Sale Proceeds permitted to be reinvested under Section 2.27
or any Net Insurance/Condemnation proceeds permitted to be reinvested under Section 2.27,
or (z) any capital expenditures made as a tenant in leasehold improvements
to the extent reimbursed by the landlord), and (iv) the portion of Taxes
based on income actually paid in Cash in such period; provided that,
solely for purposes of calculation of Consolidated Fixed Charges for any period
including the Fiscal Quarters ended June 30, 2006, September 30, 2006
and December 31, 2006 and ending March 31, 2007, each of Consolidated
Capital Expenditures and the portion of Taxes based on income actually paid in
Cash for such Fiscal Quarters shall equal the amount or, in the case of the
Fiscal Quarter ending March 31, 2007, be calculated in the manner, set
forth on Schedule 1.01; provided further that, solely for purposes of
calculation of Consolidated Fixed Charges for any period including the Fiscal
Quarters ended June 30, 2006, September 30, 2006 and December 31,
2006, each of the amounts calculated in accordance with clauses (i), (ii) and
(iv) above shall exclude such Fiscal Quarters and instead be calculated by
annualizing the actual aggregate amounts calculated for the other remaining
Fiscal Quarters occurring in such period (for example, for the twelve-month
period ended March 31, 2007, Consolidated Cash Interest Expense shall
equal the aggregate amount of Consolidated Cash Interest Expense for the Fiscal
Quarter ended on such date multiplied by 4, for the twelve-month period ended June 30,
2007, Consolidated Cash Interest Expense shall equal the aggregate amount of
Consolidated Cash Interest Expense for the two Fiscal Quarters ended on such
date multiplied by 2, and for the for the twelve-month period ended September 30,
2007, Consolidated Cash Interest Expense shall equal the aggregate amount of
Consolidated Cash Interest Expense for the three Fiscal Quarters ended on such
date multiplied by 4/3).


 


“Consolidated Interest
Expense” means, for any period, total interest expense (including that
portion attributable to Capital Leases in accordance with GAAP and capitalized
interest) of Holdings and its Subsidiaries on a consolidated basis with respect
to all outstanding Indebtedness of Holdings and its Subsidiaries, including all
commissions, discounts and other fees and charges owed with respect to letters
of credit and net costs under Interest Rate Agreements, but excluding, however,
any amounts referred to in Section 2.23(d) of this Agreement or in
the Fee Letter (as defined in the Purchase Agreement), in each case payable on
or before the Closing Date; provided further that, solely for purposes
of calculation of Consolidated Interest Expense for any period including the
Fiscal Quarters ended June 30, 2006, September 30, 2006 and December 31,
2006, each of the amounts calculated in accordance with the foregoing shall
exclude such Fiscal Quarters and instead be calculated by annualizing the
actual 


 


9

















 


aggregate amounts calculated
for the other remaining Fiscal Quarters occurring in such period (for example,
for the twelve-month period ended March 31, 2007, Consolidated Interest
Expense shall equal the aggregate amount of Consolidated Interest Expense for
the Fiscal Quarter ended on such date multiplied by 4, for the twelve-month
period ended June 30, 2007, Consolidated Interest Expense shall equal the
aggregate amount of Consolidated Interest Expense for the two Fiscal Quarters
ended on such date multiplied by 2, and for the twelve-month period ended September 30,
2007, Consolidated Interest Expense shall equal the aggregate amount of
Consolidated Interest Expense for the three Fiscal Quarters ended on such date
multiplied by 4/3).


 


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


 


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


 


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


 


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


 


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


 


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


 


10

















 


“Contributing Guarantors”
as defined in Section 7.02.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


11

















 


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


 


“Defaulted Loan” as
defined in Section 2.38.


 


“Defaulting Lender”
as defined in Section 2.38.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Documentation Agent”
as defined in the preamble hereto.


 


12

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


13

















 


Subsidiary and with respect
to liabilities arising after such period for which Holdings or such Subsidiary
could be liable under the Internal Revenue Code or ERISA.


 


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


 


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


 


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


 


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


 


14














 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Fair Share” as
defined in Section 7.02.


 


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


 


15

















 


“Fair Share Shortfall”
as defined in Section 7.02.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


16

















 


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


 


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


 


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


 


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


 


“Funding Default” as
defined in Section 2.38.


 


“Funding Guarantors”
as defined in Section 7.02.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Guaranteed Obligations”
as defined in Section 7.01.


 


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


 


“Guarantor Subsidiary”
means each Guarantor other than Holdings.


 


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


 


“Hazardous Materials”
means any chemical, material or substance, exposure to which is prohibited,
limited or regulated by any Governmental Authority or which may or could pose a
hazard to 


 


17

















 


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


 


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


 


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


 


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


 


“Holdings” as defined
in the preamble hereto.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Indebtedness”, as
applied to any Person, means, without duplication, (i) all indebtedness
for borrowed money; (ii) that portion of obligations with respect to
Capital Leases that is properly classified as a liability on a balance sheet in
conformity with GAAP; (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed
money; (iv) any obligation owed for all or any part of the deferred
purchase price of property or services (excluding any such obligations incurred
under ERISA), which purchase price is (a) due more than six (6) months
from the date of incurrence of the obligation in respect thereof or (b) evidenced
by a note or similar written instrument; (v) all indebtedness secured by
any Lien on any property or asset owned or held by that Person regardless of
whether the indebtedness secured thereby shall have been assumed by 


 


18

















 


that Person or is
nonrecourse to the credit of that Person; (vi) the face amount of any
letter of credit issued for the account of that Person or as to which that
Person is otherwise liable for reimbursement of drawings; (vii) the direct
or indirect guaranty, endorsement (otherwise than for collection or deposit in
the ordinary course of business), co-making, discounting with recourse or sale
with recourse by such Person of the obligation of another; (viii) any
obligation of such Person the primary purpose or intent of which is to provide
assurance to an obligee that the obligation of the obligor thereof will be paid
or discharged, or any agreement relating thereto will be complied with, or the
holders thereof will be protected (in whole or in part) against loss in respect
thereof; (ix) any liability of such Person for the obligation of another
through any agreement (contingent or otherwise) (a) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions or otherwise)
or (b) to maintain the solvency or any balance sheet item, level of income
or financial condition of another if, in the case of any agreement described
under subclauses (a) or (b) of this clause (ix), the primary purpose
or intent thereof is as described in clause (viii) above; and (x) obligations
of such Person in respect of any exchange traded or over the counter derivative
transaction, including, without limitation, any Interest Rate Agreement and
Currency Agreement, whether entered into for hedging or speculative purposes; provided,
in no event shall obligations under any Interest Rate Agreement and any
Currency Agreement be deemed “Indebtedness” for any purpose under Section 6.08;
provided, further, that Indebtedness shall not include accrued
expenses arising in the ordinary course of business.


 


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


 


“Indemnified Taxes”
means Taxes other than Excluded Taxes.


 


“Indemnitee” as
defined in Section 10.02.


 


19

















 


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


 


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


 


“Installment” as
defined in Section 2.24.


 


“Installment Date” as
defined in Section 2.24.


 


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


 


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


 


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


 


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


 


20

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


21

















 


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


 


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


 


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


 


“Lead Arranger” as
defined in the preamble hereto.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


22

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


23

















 


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


 


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


 


“MR” as defined in
the preamble hereto.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


24














 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Obligations” means
all obligations of every nature of each Loan Party from time to time owed to
the Agents (including former Agents), the Lenders or any of them and Lender
Counterparties, under any Loan Document or Hedge Agreement, whether for
principal, interest (including interest which, but for the filing of a petition
in bankruptcy with respect to such Loan Party, would have accrued on any
Obligation, whether or not a claim is allowed against such Loan Party for such
interest in the related bankruptcy proceeding), reimbursement of amounts drawn
under Letters of Credit, payments for early termination of Hedge Agreements,
fees, expenses, indemnification or otherwise.


 


“Obligee Guarantor”
as defined in Section 7.07.


 


“Organizational Documents”
means (i) with respect to any corporation, its certificate or articles of
incorporation or organization, as amended, and its bylaws, as amended, (ii) with
respect to any limited partnership, its certificate of limited partnership, as
amended, and its partnership agreement, as amended, (iii) with respect to
any general partnership, its partnership agreement, as amended, and (iv) with
respect to any limited liability company, its articles of organization, as
amended, and its operating agreement, as amended.  In the event any term or condition of this
Agreement or any other


 


25

















 


Loan Document requires any
Organizational Document to be certified by a secretary of state or similar
governmental official, the reference to any such “Organizational Document”
shall only be to a document of a type customarily certified by such
governmental official.


 


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


 


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


 


“Patriot Act” as
defined in Section 4.32.


 


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


 


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


 


“Permitted Acquisition”
means any acquisition by any Borrower or any of its wholly-owned Subsidiaries,
whether by purchase, merger or otherwise, of all or substantially all of the
assets of, all of the Capital Stock of, or a business line or unit or a
division of, any Person (the “Target”); provided:


 


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


 


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


 


(c)                                  in the case of
the acquisition of Capital Stock, all of the Capital Stock (except for any such
Securities in the nature of directors’ qualifying shares required pursuant to
applicable law) acquired or otherwise issued by the Target or any newly formed
Subsidiary of a Borrower in connection with such acquisition shall be owned
100% by a Borrower or a Guarantor Subsidiary thereof, and such Borrower shall
have taken, or caused to be taken, as of the date such Person becomes a
Subsidiary of such Borrower, each of the actions set forth in Sections 5.11
and/or 5.12, as applicable and such other actions necessary to grant or confirm
to Collateral Agent a Lien on or security interest in the assets so acquired
subject to no Liens other than Permitted Liens;


 


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


 


(e)                                  Borrowers shall
have delivered to Administrative Agent at least ten (10) Business Days
prior to such proposed acquisition, a Compliance Certificate evidencing
compliance with Section 6.08 as required under clause (d) above,
together with all relevant financial


 


26

















 


information with respect to
such acquired assets, including, without limitation, the aggregate
consideration for such acquisition and any other information required to
demonstrate compliance with Section 6.08;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Phase 1 Sellers”
means MHS and MSP.


 


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


 


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


 


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


 


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


 


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


 


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


 


27

















 


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


 


“Projections” as
defined in Section 4.08.


 


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


 


“PWC” means
PricewaterhouseCoopers LLP.


 


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


 


“RBS plc” as defined
in the preamble hereto.


 


“RBSS” as defined in
the preamble hereto.


 


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


 


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


 


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


 


28

















 


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


 


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


 


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


 


“Reimbursement Date”
as defined in Section 2.10.


 


“Related Agreements”
means, collectively:


 


(a)                     the Phase 1 Acquisition
Agreements; and


 


(b)                     the Senior Subordinated
Notes Documents.


 


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


 


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


 


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


 


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


 


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


 


29

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


30

















 


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


 


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


 


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


 


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


 


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


 


“Solvency Certificate”
means a Solvency Certificate of the chief financial officer of Holdings
substantially in the form of Exhibit F-2.


 


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


 


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


 


“SPV” as defined in Section 10.06(g).


 


31

















 


“Statewide Publishing”
as defined in the preamble hereto.


 


“STT” as defined in
the preamble hereto.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Syndication Agent”
as defined in the preamble hereto.


 


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


 


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


 


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


 


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


 


32

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Transactions” means
the Phase 1 Acquisitions, the Phase 2 Acquisitions, the entering into and
funding of the Term Loans and the Revolving Loans, the issuance and purchase of
the Senior Subordinated Notes and all related transactions.


 


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


 


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


 


Section 1.02         Accounting
Terms.


 


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


 


33

















 


affect the computation of
any financial ratio or requirement set forth in any Loan Document, and
Borrowers or Administrative Agent shall so request, Administrative Agent and
Borrowers shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP; provided
that, until so amended, such ratio or requirement shall continue to be
computed in accordance with such GAAP prior to such change therein.


 


Section 1.03         Interpretation,
etc.


 


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


 


Section 1.04         Construction.


 


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


 


ARTICLE TWO

LOANS AND LETTERS OF CREDIT


 


Section 2.01         Term
Loan Commitments.


 


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


 


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


 


34














 


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


 


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


 


Section 2.02         Borrowing
Mechanics for Term Loans.


 


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


 


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


 


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


 


35

















 


Section 2.03         Revolving
Commitments.


 


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


 


Section 2.04         Borrowing
Mechanics for Revolving Loans.


 


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


 


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


 


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


 


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


 


Section 2.05         Swing
Line Loans Commitments.


 


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


 


36

















 


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


 


Section 2.06         Borrowing
Mechanics for Swing Line Loans.


 


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


 


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


 


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


 


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


 


37

















 


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


 


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


 


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


 


38

















 


Section 2.07         Letters
of Credit.


 


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


 


Section 2.08         Notice
of Issuance.


 


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


 


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


 


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


 


39

















 


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


 


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


 


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


 


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


 


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


 


40

















 


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


 


Section 2.12         Obligations
Absolute.


 


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


 


41

















 


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


 


Section 2.13         Indemnification.


 


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


 


Section 2.14         Pro
Rata Shares.


 


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


 


Section 2.15         Availability
of Funds.


 


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


 


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


 


42

















 


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


 


Section 2.16         Use
of Proceeds.


 


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


 


Section 2.17         Lenders’
Evidence of Debt.


 


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


 


Section 2.18         Notes.


 


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


 


43














 


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


 


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


 


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


 


Section 2.20         Interest
Rate.


 


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


 


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


 


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


 


44

















 


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


 


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


 


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


 


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


 


Section 2.21         Conversion/Continuation.


 


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


 


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


 


45

















 


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


 


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


 


Section 2.22         Default Interest.


 


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


 


Section 2.23         Fees.


 


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


 


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


 


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


 


46

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 2.24         Scheduled
Installments.


 


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


 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  INITIAL
  TERM LOAN

  INSTALLMENTS

  	
   

  	
   

  
	
   

  	
  June 30,
  2007

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  September 30,
  2007

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  December 31,
  2007

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  March 31,
  2008

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  June 30,
  2008

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  



 


47

















 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  INITIAL TERM LOAN

  INSTALLMENTS

  	
   

  	
   

  
	
   

  	
  September 30,
  2008

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  December 31,
  2008

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  March 31,
  2009

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  June 30,
  2009

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  September 30,
  2009

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  December 31,
  2009

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  March 31,
  2010

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  June 30,
  2010

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  September 30,
  2010

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  December 31,
  2010

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  March 31,
  2011

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  June 30,
  2011

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  September 30,
  2011

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  December 31,
  2011

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  March 31,
  2012

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  June 30,
  2012

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  September 30,
  2012

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  December 31,
  2012

  	
   

  	
  $

  	
  275,000

  	
   

  	
   

  
	
   

  	
  Term
  Loan Maturity Date

  	
   

  	
  $

  	
  103,675,000

  	
   

  	
   

  



 


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


 


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


 


48

















 


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


 


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


 


Section 2.25         Voluntary
Prepayments.


 


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


 


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


 


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


 


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


 


(b)      All such prepayments shall be made:


 


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


 


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


 


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


 


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


 


49

















 


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


 


Section 2.26         Voluntary
Commitment Reductions.


 


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


 


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


 


Section 2.27         Mandatory
Prepayments.


 


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


 


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


 


50

















 


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


 


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


 


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


 


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


 


Section 2.28         Mandatory
Commitment Reductions of Revolving Loans.


 


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


 


51

















 


Section 2.29         Prepayment
Certificate.


 


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


 


Section 2.30         Application
of Prepayments/Reductions.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


52

















 


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


 


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


 


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


 


Section 2.31         General
Provisions Regarding Payments.


 


(a)      All payments by Borrowers of principal,
interest, fees and other Obligations shall be made in Dollars in same day
funds, without defense, setoff or counterclaim, free of any restriction or
condition, and delivered to Administrative Agent not later than 12:00 p.m.
(New York City time) on the date due at the Administrative Agent’s Principal
Office for the account of Lenders; funds received by Administrative Agent after
that time on such due date shall be deemed to have been paid by Borrowers on
the next succeeding Business Day.


 


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


 


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


 


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


 


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


 


(f)       [Reserved].


 


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


 


53

















 


non-conforming payment.  Any such payment shall not be deemed to have
been received by Administrative Agent until the later of (i) the time such
funds become available funds, and (ii) the applicable next Business
Day.  Administrative Agent shall give
prompt telephonic notice to Borrowers and each applicable Lender (confirmed in
writing) if any payment is non-conforming. 
Any non-conforming payment may constitute or become a Default or Event
of Default in accordance with the terms of Section 8.01(a).  Interest shall continue to accrue on any
principal as to which a non-conforming payment is made until such funds become
available funds (but in no event less than the period from the date of such
payment to the next succeeding applicable Business Day) at the rate determined
pursuant to Section 2.22 from the date such amount was due and payable
until the date such amount is paid in full.


 


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


 


Section 2.32         Sharing
of Payments by Lenders.


 


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


 


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


 


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


 


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


 


54














 


Section 2.33                            Making or Maintaining Eurodollar Rate Loans.


 


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


 


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


 


55

















 


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


 


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


 


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


 


Section 2.34                            Compensation For Increased Costs.


 


If any Change in Law shall:


 


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


 


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


 


56

















 


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


 


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


 


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


 


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


 


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


 


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


 


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Section 2.36                            Taxes.


 


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


 


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


 


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


 


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


 


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


 


58

















 


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


 


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


 


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


 


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


 


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


 


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


 


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Section 2.37                            Mitigation Obligations; Replacement of Lenders.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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Section 2.38                            Defaulting Lenders.


 


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


 


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Section 2.39                            Joint and Several Liability.


 


(a)                  Joint and Several Liability.  All Obligations of Borrowers under this
Agreement and the other Loan Documents shall be joint and several Obligations
of each Borrower.  Anything contained in
this Agreement and the other Loan Documents to the contrary notwithstanding,
the Obligations of each Borrower hereunder, solely to the extent that such
Borrower did not receive proceeds of Loans from any borrowing hereunder, shall
be limited to a maximum aggregate amount equal to the largest amount that would
not render its Obligations hereunder subject to avoidance as a fraudulent
transfer or conveyance under §548 of the Bankruptcy Code, 11 U.S.C. §548, or
any applicable provisions of comparable state law (collectively, the “Fraudulent
Transfer Laws”), in each case after giving effect to all other liabilities
of such Borrower, contingent or otherwise, that are relevant under the
Fraudulent Transfer Laws (specifically excluding, however, any liabilities of
such Borrower  in respect of
intercompany Indebtedness to any other Loan Party or Affiliates of any other
Loan Party to the extent that such Indebtedness would be discharged in an
amount equal to the amount paid by such Loan Party hereunder) and after giving
effect as assets to the value (as determined under the applicable provisions of
the Fraudulent Transfer Laws) of any rights to subrogation or contribution of
such Borrower pursuant to (i) applicable law or (ii) any agreement
providing for an equitable allocation among such Borrower and other Affiliates
of any Loan Party of Obligations arising under Guaranties by such parties.


 


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


 


62

















 


Contribution Amount with
respect to any Borrower for purposes of this Section 2.39, any assets or
liabilities of such Borrower arising by virtue of any rights to subrogation,
reimbursement or indemnification or any rights to or Obligations of
contribution hereunder shall not be considered as assets or liabilities of such
Borrower.  “Obligation Aggregate
Payments” means, with respect to a Borrower as of any date of
determination, an amount equal to (i) the aggregate amount of all payments
and distributions made on or before such date by such Borrower in respect of
this Agreement and the other Loan Documents (including in respect of this Section 2.39)
minus (ii) the aggregate amount of all payments received on or
before such date by such Borrower from the other Borrowers as contributions
under this Section 2.39.  The
amounts payable as contributions hereunder shall be determined as of the date
on which the related payment or distribution is made by the applicable Funding
Borrower.  The allocation among the
Borrowers of their Obligations as set forth in this Section 2.39 shall not
be construed in any way to limit the liability of any Borrower hereunder or
under any Loan Document.


 


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


 


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


 


Section 2.40                            Increase in Commitments.


 


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


 


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


 


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


 


63

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


ARTICLE THREE

CONDITIONS PRECEDENT


 


Section 3.01                            Conditions to Closing Date.


 


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


 


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


 


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


 


(c)                  Organizational and Capital
Structure.  The
organizational structure and capital structure of Holdings and its Subsidiaries
shall be as set forth on Schedule 4.02. 
The Administrative Agent shall have received reasonably satisfactory
evidence that (i) at least a majority of the ownership interests in
Holdings shall be owned by the Sponsor, (ii) the Sponsor shall control the
Board of Directors of Holdings, and (iii) all ownership interests in each
Borrower’s Subsidiaries shall be 


 


65

















 


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


 


(d)                 Consummation of Transactions
Contemplated by Related Agreements.


 


(i)             (1) The
Lenders shall be reasonably satisfied with the Phase 1 Acquisition Agreements,
and the Phase 1 Acquisition Agreements shall not be altered, amended or
otherwise changed or supplemented or any condition therein waived in any
respect materially adverse to the Lenders without the prior written consent of
Requisite Lenders and (2) the Phase 1 Acquisitions shall have been consummated
in accordance with the terms thereof in all material respects and in compliance
with applicable law and regulatory approvals.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(k)                  Evidence of Insurance.  Administrative Agent shall have received a
certificate from Borrowers’ insurance broker or other evidence reasonably
satisfactory to it that all insurance required to be maintained pursuant to Section 5.05
is in full force and effect and that Collateral 


 


68

















 


Agent, for the benefit of
Lenders has been named as additional insured and loss payee thereunder to the
extent required under Section 5.05. 
The Administrative Agent shall be reasonably satisfied with the amount,
types, and terms and conditions of all insurance maintained by Holdings and its
Subsidiaries.


 


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


 


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


 


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


 


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


 


(p)                 Closing Date.  Lenders shall have made the Initial Term
Loans to Borrowers on or before February 28, 2007.


 


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


 


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


 


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


 


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


 


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


 


69

















 


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


 


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


 


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


 


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


 


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


 


Section 3.02                            Conditions to Delayed Draw Term Loans.


 


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


 


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


 


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


 


(c)                  Solvency Certificate.  On the applicable Credit Date with respect to
the Delayed Draw Term Loans, Administrative Agent shall have received a
Solvency Certificate from the chief financial officer of Holdings and each
Borrower demonstrating that after giving effect to the consummation of the
Phase 2 Acquisitions and the incurrence of the Delayed Draw Term Loans on the 


 


70

















 


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


 


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


 


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


 


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


 


Section 3.03                            Conditions to Each Credit Extension.


 


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


 


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


 


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


 


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


 


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


 


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


 


71

















 


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


 


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


 


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


 


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


 


ARTICLE FOUR

REPRESENTATIONS AND WARRANTIES


 


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


 


Section 4.01                            Organization; Requisite Power and Authority; Qualification.


 


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


 


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Section 4.02                            Capital Stock and Ownership.


 


The Capital Stock of each of
Holdings and its Subsidiaries has been duly authorized and validly issued and
is fully paid and non-assessable.  Except
as set forth on Schedule 4.02, as of the Closing Date, there is no existing
option, warrant, call, right, commitment or other agreement to which Holdings
or any of its Subsidiaries is a party requiring, and there is no membership
interest or other Capital Stock of Holdings or any of its Subsidiaries
outstanding which upon conversion or exchange would require, the issuance by
Holdings or any of its Subsidiaries of any additional membership interests or
other Capital Stock of Holdings or any of its Subsidiaries or other Securities
convertible into, exchangeable for or evidencing the right to subscribe for or
purchase, a membership interest or other Capital Stock of Holdings or any of
its Subsidiaries.  Schedule 4.02
correctly sets forth the ownership interest of Holdings and each of its
Subsidiaries in their respective Subsidiaries as of the Closing Date after
giving effect to the Transaction.


 


Section 4.03                            Due Authorization.


 


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


 


Section 4.04                            No Conflict.


 


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


 


Section 4.05                            Governmental Consents.


 


The execution, delivery and
performance by Loan Parties of the Loan Documents to which they are parties and
the consummation of the transactions contemplated by the Loan Documents do not
and will not require any registration with, consent or approval of, or notice
to, or other action to, with or by, any Governmental Authority except as
otherwise set forth in the Phase 1 Acquisition Agreements and except for
filings and recordings with respect to the Collateral to be made, or otherwise
delivered to Collateral Agent for filing and/or recordation, as of the Closing
Date.


 


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Section 4.06                            Binding Obligation.


 


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


 


Section 4.07                            Pro Forma Financial Statements.


 


The Pro Forma Financial
Statements were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were believed to have been reasonable when
made.  As of the Closing Date, neither
Holdings nor any of its Subsidiaries has any material contingent liability or
liability for taxes, long-term lease or unusual forward or long-term commitment
that is not reflected in the Pro Forma Financial Statements.


 


Section 4.08                            Projections.


 


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


 


Section 4.09                            No Material Adverse Change.


 


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


 


Section 4.10                            No Restricted Junior Payments.


 


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


 


Section 4.11                            Adverse Proceedings, etc.


 


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


 


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Section 4.12                            Payment
of Taxes.


 


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


 


Section 4.13                            Properties.


 


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


 


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


 


Section 4.14                            Environmental Matters.


 


Neither Holdings nor any of
its Subsidiaries nor any of their respective Facilities or operations are
subject to any outstanding written order, consent decree or settlement
agreement with any Person relating to any Environmental Law, any Environmental
Claim, or any Hazardous Materials Activity that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.  As of the Closing Date, neither Holdings nor
any of its Subsidiaries has received any letter or request for information
under Section 104 of the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable state
law.  There are and, to the knowledge of
any Authorized Officers of Holdings and its Subsidiaries, have been, no
conditions, occurrences, or Hazardous Materials Activities which could
reasonably be expected to form the basis of an Environmental Claim against
Holdings or any of its Subsidiaries that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.  As of the Closing Date, neither 


 


75

















 


Holdings nor any of its
Subsidiaries nor, to the knowledge of any Authorized Officers of any Loan
Party, any predecessor of Holdings or any of its Subsidiaries has filed any
notice under any Environmental Law indicating past or present treatment of
Hazardous Materials at any Facility, and none of Holdings’ or any of its
Subsidiaries’ operations involves the generation, transportation, treatment,
storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts
260-270 or any state equivalent. 
Compliance with all current or reasonably foreseeable future
requirements pursuant to or under Environmental Laws could not be reasonably
expected to have, individually or in the aggregate, a Material Adverse
Effect.  No event or condition has
occurred or is occurring with respect to Holdings or any of its Subsidiaries
relating to any Environmental Law, any Release of Hazardous Materials, or any
Hazardous Materials Activity which individually or in the aggregate has had, or
could reasonably be expected to have, a Material Adverse Effect.


 


Section 4.15                            No Defaults.


 


Neither Holdings nor any of
its Subsidiaries is in default in the performance, observance or fulfillment of
any of the obligations, covenants or conditions contained in any of its
Contractual Obligations (other than this Agreement), and no condition exists
which could constitute such a default, except where the consequences, direct or
indirect, of such default or defaults, if any, could not reasonably be expected
to have a Material Adverse Effect.


 


Section 4.16                            Material Contracts.


 


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


 


Section 4.17                            Governmental Regulation.


 


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


 


Section 4.18                            Margin Stock.


 


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


 


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Section 4.19                            Employee Matters.


 


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


 


Section 4.20                            Employee Benefit Plans.


 


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


 


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Section 4.21                            Certain Fees.


 


Except as set forth on
Schedule 4.21, no broker’s or finder’s fee or commission will be payable with
respect to any of the transactions contemplated by the Related Agreements
except as payable to the Agents, the Lenders and the purchasers of the Senior
Subordinated Notes.


 


Section 4.22                            Solvency.


 


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


 


Section 4.23                            Related Agreements.


 


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


 


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


 


Section 4.24                            Compliance with Statutes, etc.


 


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


 


Section 4.25                            Disclosure.


 


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


 


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expected to result in a
Material Adverse Effect and that have not been disclosed herein or in such
other documents, certificates and statements furnished to Lenders for use in
connection with the transactions contemplated hereby.


 


Section 4.26                            Intellectual Property.


 


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


 


Section 4.27                            No Default.


 


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


 


Section 4.28                            Investigations, Audits, Etc.


 


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


 


Section 4.29                            Agreements with Managers.


 


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


 


Section 4.30                            Subordinated Indebtedness.


 


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


 


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Section 4.31                            Foreign Assets Control Regulations.


 


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


 


Section 4.32                            Patriot Act.


 


To
the extent applicable, each Loan Party is in compliance, in all material
respects, with (i) the Trading with the Enemy Act, as amended, and each of
the foreign assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation
or executive order relating thereto, and (ii) the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA Patriot Act of 2001) (the “Patriot Act”).  No part of the proceeds of the Loans will be
used, directly or indirectly, for any payments to any governmental official or
employee, political party, official of a political party, candidate for
political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as
amended.


 


Section 4.33                            RICO.


 


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


 


Section 4.34                            Unauthorized UCC Filings.


 


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


 


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ARTICLE
FIVE

AFFIRMATIVE COVENANTS


 


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


 


Section 5.01                            Financial Statements and Other Reports.


 


Holdings will deliver to
Administrative Agent, for further distribution to the Lenders:


 


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


 


(b)                 Reserved.


 


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


 


81

















 


attention or, if such a
condition or event has come to their attention, specifying the nature and
period of existence thereof or a similar written statement reasonably
acceptable to the Administrative Agent;


 


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


 


(e)                  Statements of Reconciliation
after Change in Accounting Principles.  If, as a result of any change in accounting
principles and policies from those used in the preparation of the Pro Forma
Financial Statements, the consolidated financial statements of Holdings and its
Subsidiaries delivered pursuant to Section 5.01(a) or 5.01(c) will
differ in any material respect from the consolidated financial statements that
would have been delivered pursuant to such subdivisions had no such change in
accounting principles and policies been made, then, together with the first
delivery of such financial statements after such change, one or more statements
of reconciliation for all such prior financial statements in form and substance
satisfactory to Administrative Agent;


 


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


 


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


 


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


 


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


 


(j)                     Insurance
Certificate(s).  On each
anniversary of the Closing Date, a certificate or
certificates from the insurance broker for Holdings and its
Subsidiaries or other evidence reasonably satisfactory to Administrative
Agent outlining all material insurance coverage maintained as of such date
by Holdings and its Subsidiaries, such certificate to note that with respect to
all such insurance Collateral Agent, for the benefit of Lenders, has been
named as additional insured and loss payee thereunder to the extent required
under Section 5.05.


 


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


 


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


 


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


 


(n)                 Information Regarding
Collateral.  (a) 
Borrowers will furnish to the Collateral Agent prompt written notice of any
change (i) in any Loan Party’s corporate name, (ii) in any Loan Party’s
identity or corporate structure, (iii) in any Loan Party’s jurisdiction of
formation or (iv) in any Loan Party’s Federal Taxpayer Identification
Number or organizational identification number. 
Borrowers agree not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform
Commercial Code or otherwise that are required in order for the Collateral
Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral as contemplated in the
Collateral Documents.  Borrowers also
agree promptly to notify the Collateral Agent if any material portion of the
Collateral is damaged or destroyed;


 


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


 


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


 


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


 


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


 


Section 5.02                            Existence.


 


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


 


Section 5.03                            Payment of Taxes.


 


Each Loan Party will, and
will cause each of its Subsidiaries to, pay all material Taxes imposed upon it
or any of its properties or assets or in respect of any of its income,
businesses or franchises before any penalty or fine accrues thereon; provided,
no such Tax need be paid if it is being


 


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contested in good faith by
appropriate proceedings promptly instituted and diligently conducted, so long
as (a) adequate reserve or other appropriate provision, as shall be
required in conformity with GAAP shall have been made therefor, and (b) in
the case of a charge that has or may become a Lien against any of the
Collateral, such contest proceedings conclusively operate to stay the sale of
any portion of the Collateral to satisfy such Tax.  No Loan Party will, nor will it permit any of
its Subsidiaries to, file or consent to the filing of any consolidated income
Tax return with any Person (other than Holdings or any of its Subsidiaries).


 


Section 5.04         Maintenance
of Properties.


 


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


 


Section 5.05         Insurance.


 


Holdings will maintain or
cause to be maintained, with insurers who are reputable and with respect to
which Holdings has used commercially reasonable efforts both at the time of
inception of each insurance policy and upon each renewal thereof to confirm
that such insurer is financially sound: (i) business interruption
insurance reasonably satisfactory to Administrative Agent and (ii) casualty
insurance, public liability insurance, third party property damage insurance
with respect to liabilities, losses or damage in respect of the assets,
properties and businesses of Holdings and its Subsidiaries as, in the case of
the insurance described in clause (ii), may customarily be carried or maintained
under similar circumstances by Persons of established reputation engaged in
similar businesses, in such amounts (giving effect to self-insurance), with
such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for such Persons.  Without limiting the generality of the
foregoing, Holdings will maintain or cause to be maintained (a) flood
insurance with respect to each Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program, in each
case in compliance with any applicable regulations of the Board of Governors of
the Federal Reserve System, and (b) replacement value casualty insurance
on the Collateral under such policies of insurance, with such insurance companies,
in such amounts, with such deductibles, and covering such risks as are at all
times carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses.  Each such policy of insurance shall (i) name
Collateral Agent, on behalf of Lenders, as an additional insured thereunder as
its interests may appear and (ii) in the case of each casualty insurance
policy, contain a loss payable clause or endorsement, satisfactory in form and
substance to Collateral Agent, that names Collateral Agent, on behalf of
Lenders as the loss payee thereunder and provides for at least thirty (30) days’
(or ten (10) days’ in the case of non-payment of premiums) prior written
notice to Collateral Agent of any modification or cancellation of such policy.


 


Section 5.06         Inspections.


 


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


 


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


 


Section 5.07         Lenders
Meetings.


 


Holdings and each Borrower
will, upon the request of Administrative Agent or Requisite Lenders,
participate in a meeting of Administrative Agent and Lenders once during each
Fiscal Year to be held at a Borrower’s corporate offices (or at such other
location as may be agreed to by Borrowers and Administrative Agent) at such
time as may be agreed to by Borrowers and Administrative Agent.


 


Section 5.08         Compliance
with Laws.


 


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


 


Section 5.09         Environmental
Disclosure.


 


Holdings will deliver to
Administrative Agent, for further distribution to the Lenders:


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 5.10         Hazardous
Materials Activities, etc.


 


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


 


Section 5.11         Subsidiaries.


 


In the event that any Person
becomes a Domestic Subsidiary of any Borrower, such Borrower shall (a) promptly
cause such Domestic Subsidiary to become a Guarantor hereunder and a
Grantor under the Pledge and Security Agreement by executing and delivering to
Administrative Agent and Collateral Agent a Counterpart Agreement, and (b) take
all such actions and execute and deliver, or cause to be executed and
delivered, all such documents, instruments, agreements, and certificates as are
similar to those described in Sections 3.01(b), 3.01(h), 3.01(i) and
3.01(l).  In the event that any Person
becomes a Foreign Subsidiary of any Borrower, and the ownership interests of
such Foreign Subsidiary are directly owned by such Borrower or by any Domestic
Subsidiary thereof, such Borrower shall, or shall cause such Domestic
Subsidiary to, deliver, all such documents, instruments, agreements, and
certificates as are similar to those described in Sections 3.01(b), and such
Borrower shall take, or shall cause such Domestic Subsidiary to take, all of
the actions referred to in Section 3.01(i)(i) necessary to grant and
to perfect a First Priority Lien in favor of Collateral Agent, for the benefit
of Secured Parties, under the Pledge and Security Agreement in 65% of such
ownership interests.  With respect to each
such Subsidiary, the applicable Borrower shall promptly send to Administrative
Agent written notice setting forth with respect to such Person (i) the
date on which such Person became a Subsidiary of such Borrower, and (ii) all
of the data required to be set forth in Schedules 4.01 and 4.02 with respect to
all Subsidiaries of such Borrower; provided, such written notice shall
be deemed to supplement Schedule 4.01 and 4.02 for all purposes hereof.


 


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Section 5.12         Additional
Material Real Estate Assets.


 


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


 


Section 5.13         Interest
Rate Protection.


 


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


 


Section 5.14         Further
Assurances.


 


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


 


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


 


Section 5.16         Books
and Records.


 


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


 


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


 


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


 


Section 5.18         Unauthorized
UCC Filings.


 


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


 


ARTICLE SIX

NEGATIVE COVENANTS


 


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


 


Section 6.01         Indebtedness.


 


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


 


(a)      the Obligations;


 


(b)      Indebtedness of any Loan Party to any
other Loan Party; provided, that any such Indebtedness of Holdings to
any other Loan Party shall constitute a Restricted Junior Payment subject to Section 6.05
hereof; provided  further, (i) all such Indebtedness shall be
evidenced by promissory notes and all such notes shall be subject to a First
Priority Lien pursuant to the Pledge and Security Agreement, (ii) all such
Indebtedness shall be unsecured and subordinated in right of payment to the
payment in full of the Obligations pursuant to the terms of the applicable
promissory notes or an intercompany subordination agreement that in any such
case, is reasonably satisfactory to Administrative Agent, and (iii) any
payment by any Guarantor under any guaranty of the Obligations shall result in
a pro 


 


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tanto reduction of the
amount of any Indebtedness owed by such Guarantor to such Loan Party or to any
of its Subsidiaries for whose benefit such payment is made;


 


(c)      Indebtedness evidenced by the Senior
Subordinated Notes Documents;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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(l)       (i) Indebtedness of Borrowers
incurred in connection with a Permitted Acquisition (either in the form of
Seller Subordinated Notes, earn out obligations, deferred purchase price or
otherwise) in an aggregate amount not to exceed $2,500,000 with respect to any
single Permitted Acquisition or series of related Permitted Acquisitions and
$7,500,000 with respect to all Permitted Acquisitions consummated since the
Closing Date, in either case, at any one time outstanding, and (ii) any
extension, renewal or refinancing of any Indebtedness specified in clause (i) above,
provided, that such Indebtedness permitted under this clause (ii) shall
not (A) include Indebtedness of an obligor that was not an obligor with
respect to the Indebtedness being extended, renewed or refinanced, (B) exceed
in a principal amount the Indebtedness being renewed, extended or refinanced or
(C) be incurred, created or assumed if any Default or Event of Default has
occurred and is continuing or would result therefrom;


 


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


 


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


 


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


 


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


 


Section 6.02         Liens.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(i)       [Reserved];


 


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


 


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


 


(l)       Liens described in Schedule 6.02 or
on a title report delivered pursuant to Section 3.01(h)(iv);


 


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


 


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


 


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


 


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


 


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


 


(r)       other Liens securing Indebtedness or
other obligations in an aggregate amount not to exceed $500,000 at any time
outstanding.


 


Section 6.03         Equitable
Lien.


 


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


 


Section 6.04         No
Further Negative Pledges.


 


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


 


Section 6.05         Restricted
Junior Payments.


 


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


 


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


 


(b)      Borrowers may make Restricted Junior
Payments to Holdings (i) so long as no Default or Event of Default shall
have occurred and be continuing or shall be caused thereby, in an aggregate
amount not to exceed $250,000 in any Fiscal Year, to the extent necessary to
permit Holdings to pay general administrative costs and expenses and (ii) so
long as any of the Borrowers and/or any of their Subsidiaries is a partnership
or disregarded entity for U.S. federal and state income tax purposes or is
otherwise filing a consolidated or combined tax return with Holdings, to the
extent necessary to permit 


 


93

















 


Holdings to discharge any
tax liabilities payable by Holdings, in each case so long as Holdings applies
the amount of any such Restricted Junior Payment for such purpose;


 


(c)      commencing with the Fiscal Year beginning January 1,
2007, and so long as no Default or Event of Default shall have occurred and be
continuing or shall be caused thereby, Borrowers may make Restricted Junior
Payments to Holdings, and Holdings may then make Restricted Junior Payments, in
each case for the purpose of repurchasing or redeeming Capital Stock of
Holdings from employees upon the death, disability or other termination of
employment of any such employee in an amount not to exceed $750,000 in any
Fiscal Year;


 


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


 


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


 


Section 6.06         Restrictions
on Subsidiary Distributions.


 


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


 


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


 


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


 


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


 


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


 


other than restrictions (i) in
agreements evidencing Indebtedness permitted by Sections 6.01(j) or 6.01(k) that
impose restrictions on the property so acquired, (ii) by reason of
customary provisions restricting assignments, subletting or other transfers
contained in leases, licenses, joint venture agreements and


 


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similar agreements entered
into in the ordinary course of business, or (iii) that are or were created
by virtue of any transfer of, agreement to transfer or option or right with
respect to any property, assets or Capital Stock not otherwise prohibited under
this Agreement.


 


Section 6.07         Investments.


 


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


 


(a)      Cash Equivalents;


 


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


 


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


 


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


 


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


 


(f)       loans and advances to employees and
directors of Holdings and its Subsidiaries made in the ordinary course of
business in an aggregate principal amount not to exceed $250,000 in the
aggregate;


 


(g)      Permitted Acquisitions permitted pursuant
to Section 6.09;


 


(h)      Investments described in
Schedule 6.07;


 


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


 


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


 


(k)      to the extent permitted by applicable law,
promissory notes received from officers and employees of any Loan Party in
exchange for Capital Stock of Holdings purchased by such Persons pursuant to a
stock ownership or purchase plan or compensation plan; provided, that
all such promissory notes shall be subject to a First Priority Lien pursuant to
the Pledge and Security Agreement;


 


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


 


95

















 


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


 


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


 


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


 


Section 6.08         Financial
Covenants.


 


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


 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  INTEREST

  COVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2007

  	
   

  	
  1.70:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2007

  	
   

  	
  1.70:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2007

  	
   

  	
  1.70:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2007

  	
   

  	
  1.70:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2008

  	
   

  	
  1.80:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2008

  	
   

  	
  1.90:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2008

  	
   

  	
  2.00:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2008

  	
   

  	
  2.05:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2009

  	
   

  	
  2.10:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2009

  	
   

  	
  2.20:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2009

  	
   

  	
  2.30:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2009

  	
   

  	
  2.40:1.00

  	
   

  	
   

  



 


96

















 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  INTEREST

  COVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2010

  	
   

  	
  2.50:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2010

  	
   

  	
  2.60:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2010

  	
   

  	
  2.70:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2010

  	
   

  	
  2.80:1.00

  	
   

  	
   

  
	
   

  	
  Thereafter

  	
   

  	
  3.00:1.00

  	
   

  	
   

  



 


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


 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  FIXED CHARGE

  COVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2007

  	
   

  	
  1.30:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2007

  	
   

  	
  1.30:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2007

  	
   

  	
  1.30:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2007

  	
   

  	
  1.30:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2008

  	
   

  	
  1.35:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2008

  	
   

  	
  1.35:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2008

  	
   

  	
  1.40:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2008

  	
   

  	
  1.40:1.00

  	
   

  	
   

  
	
   

  	
  March 31,
  2009

  	
   

  	
  1.40:1.00

  	
   

  	
   

  
	
   

  	
  June 30,
  2009

  	
   

  	
  1.40:1.00

  	
   

  	
   

  
	
   

  	
  September 30,
  2009

  	
   

  	
  1.45:1.00

  	
   

  	
   

  
	
   

  	
  December 31,
  2009

  	
   

  	
  1.45:1.00

  	
   

  	
   

  



 


97

















 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  FIXED CHARGE

  COVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31,
  2010

  	
   

  	
  1.45:1.00

  	
   

  	
   

  
	
   

  	
  June 30,
  2010

  	
   

  	
  1.45:1.00

  	
   

  	
   

  
	
   

  	
  September 30,
  2010

  	
   

  	
  1.50:1.00

  	
   

  	
   

  
	
   

  	
  December 31,
  2010

  	
   

  	
  1.50:1.00

  	
   

  	
   

  
	
   

  	
  Thereafter

  	
   

  	
  1.50:1.00

  	
   

  	
   

  



 


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


 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  TOTAL

  LEVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2007

  	
   

  	
  5.75:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2007

  	
   

  	
  5.75:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2007

  	
   

  	
  5.75:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2007

  	
   

  	
  5.50:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2008

  	
   

  	
  5.25:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2008

  	
   

  	
  5.00:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2008

  	
   

  	
  4.75:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2008

  	
   

  	
  4.75:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2009

  	
   

  	
  4.50:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2009

  	
   

  	
  4.50:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2009

  	
   

  	
  4.25:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2009

  	
   

  	
  4.25:1.00

  	
   

  	
   

  



 


98

















 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  TOTAL

  LEVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2010

  	
   

  	
  4.00:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2010

  	
   

  	
  4.00:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2010

  	
   

  	
  3.75:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2010

  	
   

  	
  3.50:1.00

  	
   

  	
   

  
	
   

  	
  Thereafter

  	
   

  	
  3.50:1.00

  	
   

  	
   

  



 


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


 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  SENIOR

  LEVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2007

  	
   

  	
  3.75:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2007

  	
   

  	
  3.75:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2007

  	
   

  	
  3.50:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2007

  	
   

  	
  3.50:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2008

  	
   

  	
  3.25:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2008

  	
   

  	
  3.00:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2008

  	
   

  	
  2.75:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2008

  	
   

  	
  2.75:1.00

  	
   

  	
   

  
	
   

  	
  March 31, 2009

  	
   

  	
  2.50:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2009

  	
   

  	
  2.50:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2009

  	
   

  	
  2.25:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2009

  	
   

  	
  2.25:1.00

  	
   

  	
   

  



 


99

















 


	
   

  	
  FISCAL QUARTER

  	
   

  	
  SENIOR

  LEVERAGE RATIO

  	
   

  	
   

  
	
   

  	
  March 31, 2010

  	
   

  	
  2.00:1.00

  	
   

  	
   

  
	
   

  	
  June 30, 2010

  	
   

  	
  2.00:1.00

  	
   

  	
   

  
	
   

  	
  September 30, 2010

  	
   

  	
  2.00:1.00

  	
   

  	
   

  
	
   

  	
  December 31, 2010

  	
   

  	
  2.00:1.00

  	
   

  	
   

  
	
   

  	
  Thereafter

  	
   

  	
  2.00:1.00

  	
   

  	
   

  



 


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


 


	
   

  	
  FISCAL YEAR

  	
   

  	
  CONSOLIDATED

  CAPITAL EXPENDITURES

  	
   

  	
   

  
	
   

  	
  2006

  	
   

  	
  $

  	
  3,000,000

  	
   

  	
   

  
	
   

  	
  2007

  	
   

  	
  $

  	
  3,000,000

  	
   

  	
   

  
	
   

  	
  2008

  	
   

  	
  $

  	
  3,000,000

  	
   

  	
   

  
	
   

  	
  2009

  	
   

  	
  $

  	
  3,000,000

  	
   

  	
   

  
	
   

  	
  2010

  	
   

  	
  $

  	
  3,000,000

  	
   

  	
   

  
	
   

  	
  2011

  	
   

  	
  $

  	
  3,000,000

  	
   

  	
   

  
	
   

  	
  Thereafter

  	
   

  	
  $

  	
  3,000,000

  	
   

  	
   

  



 


(f)       Certain Calculations.  With respect to any period during which a
Permitted Acquisition or an Asset Sale has occurred (each, a “Subject
Transaction”), for purposes of determining compliance with the financial
covenants set forth in this Section 6.08 and for purposes of determining
the Applicable Margin, Consolidated Adjusted EBITDA shall be calculated with
respect to such period on a pro forma basis (including pro forma adjustments
arising out of events which are directly attributable to a specific
transaction, are factually supportable and are expected to have a continuing
impact, in each case determined on a basis consistent with Article 11 of
Regulation S-X promulgated under the Securities Act and as interpreted by the
staff of the Securities and Exchange Commission or as reasonably acceptable to
the Requisite Lenders, which would include cost savings resulting from head
count reduction, closure of 


 


100

















 


facilities and similar
restructuring charges, which pro forma adjustments shall be certified by the
chief financial officer of Holdings) using the historical audited financial
statements of any business so acquired or to be acquired or sold or to be sold
and the consolidated financial statements of Holdings and its Subsidiaries
which shall be reformulated as if such Subject Transaction, and any Indebtedness
incurred or repaid in connection therewith, had been consummated or incurred or
repaid at the beginning of such period (and assuming that such Indebtedness
bears interest during any portion of the applicable measurement period prior to
the relevant acquisition at the weighted average of the interest rates
applicable to outstanding Loans incurred during such period).


 


Section 6.09         Fundamental
Changes; Disposition of Assets; Acquisitions.


 


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


 


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


 


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


 


(c)      Asset Sales, the proceeds of which (valued
at the principal amount thereof in the case of non-Cash proceeds consisting of
notes or other debt Securities and valued at fair market value in the case of
other non-Cash proceeds), when aggregated with the proceeds of all other Asset
Sales made within the same Fiscal Year, are less than $500,000; provided
(1) the consideration received for such assets shall be in an amount at
least equal to the fair market value thereof (determined in good faith by an
Authorized Officer of the applicable Borrower or, if the consideration is
greater than $100,000, determined in good faith by the Board of Directors of
the applicable Borrower), (2) no less than 75% of such consideration shall
be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be
applied as required in Section 2.30;


 


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


 


(e)      Permitted Acquisitions;


 


(f)       Investments made in accordance with Section 6.07;


 


101

















 


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


 


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


 


(i)       so long as no Event of Default has
occurred and is continuing, any Loan Party may (1) compromise or settle
any dispute, claim or legal proceeding with respect to accounts receivable for
less than the total unpaid balance thereof, (2) release, wholly or
partially, any Person liable for the payment thereof, or (3) allow any
credit or discount thereon, in each case in the ordinary course of business.


 


Section 6.10         Disposal
of Subsidiary Interests.


 


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


 


Section 6.11         Sales
and Lease-Backs.


 


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


 


Section 6.12         Transactions
with Shareholders and Affiliates.


 


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


 


102

















 


transactions described in
Schedule 6.12; and (e) expense reimbursements and indemnification payments
made to Sponsor.


 


Section 6.13         Conduct
of Business.


 


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


 


Section 6.14         Permitted
Activities of Holdings.


 


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


 


Section 6.15         Amendments
or Waivers of Certain Related Agreements.


 


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


 


Section 6.16         Amendments
or Waivers of with Respect to Senior Subordinated Notes.


 


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


 


Section 6.17         Fiscal
Year.


 


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


 


103














 


ARTICLE SEVEN

GUARANTY


 


Section 7.01         Guaranty
of the Obligations.


 


Subject to the provisions of
Section 7.02, Guarantors jointly and severally hereby irrevocably and
unconditionally guaranty to Administrative Agent for the ratable benefit of the
Beneficiaries the due and punctual payment in full of all Obligations when the
same shall become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts that would
become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively, the “Guaranteed
Obligations”).


 


Section 7.02         Contribution
by Guarantors.


 


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


 


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Section 7.03         Payment
by Guarantors.


 


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


 


Section 7.04         Liability
of Guarantors Absolute.


 


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


 


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


 


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


 


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


 


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


 


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


 


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manner or terms of payment
of the Guaranteed Obligations; (ii) settle, compromise, release or
discharge, or accept or refuse any offer of performance with respect to, or
substitutions for, the Guaranteed Obligations or any agreement relating thereto
and/or subordinate the payment of the same to the payment of any other
obligations; (iii) request and accept other guaranties of the Guaranteed
Obligations and take and hold security for the payment thereof or of the
Guaranteed Obligations; (iv) release, surrender, exchange, substitute,
compromise, settle, rescind, waive, alter, subordinate or modify, with or
without consideration, any security for payment of the Guaranteed Obligations,
any other guaranties of the Guaranteed Obligations, or any other obligation of
any Person (including any other Guarantor) with respect to the Guaranteed
Obligations; (v) enforce and apply any security now or hereafter held by
or for the benefit of such Beneficiary in respect hereof or of the Guaranteed
Obligations and direct the order or manner of sale thereof, or exercise any
other right or remedy that such Beneficiary may have against any such security,
in each case as such Beneficiary in its discretion may determine consistent
with this Agreement or the applicable Hedge Agreement and any applicable security
agreement, including foreclosure on any such security pursuant to one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable, and even though such action operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy
of any Guarantor against any Borrower or any security for the Guaranteed
Obligations; and (vi) exercise any other rights available to it under the
Loan Documents or the Hedge Agreements; and


 


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


 


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omission, or delay to do any
other act or thing, which may or might in any manner or to any extent vary the
risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.


 


Section 7.05         Waivers
by Guarantors.


 


Each Guarantor hereby
waives, for the benefit of Beneficiaries: (a) any right to require any
Beneficiary, as a condition of payment or performance by such Guarantor, to (i) proceed
against any Borrower, any other guarantor (including any other Guarantor) of
the Guaranteed Obligations or any other Person, (ii) proceed against or
exhaust any security held from any Borrower, any such other guarantor or any
other Person, (iii) proceed against or have resort to any balance of any
Deposit Account or credit on the books of any Beneficiary in favor of any
Borrower or any other Person, or (iv) pursue any other remedy in the power
of any Beneficiary whatsoever; (b) any defense arising by reason of the
incapacity, lack of authority or any disability or other defense of any
Borrower or any other Guarantor including any defense based on or arising out
of the lack of validity or the unenforceability of the Guaranteed Obligations
or any agreement or instrument relating thereto or by reason of the cessation
of the liability of any Borrower or any other Guarantor from any cause other
than payment in full of the Guaranteed Obligations; (c) any defense based
upon any statute or rule of law which provides that the obligation of a
surety must be neither larger in amount nor in other respects more burdensome
than that of the principal; (d) any defense based upon any Beneficiary’s
errors or omissions in the administration of the Guaranteed Obligations, except
behavior which amounts to bad faith; (e) (i) any principles or
provisions of law, statutory or otherwise, which are or might be in conflict
with the terms hereof and any legal or equitable discharge of such Guarantor’s
obligations hereunder, (ii) the benefit of any statute of limitations
affecting such Guarantor’s liability hereunder or the enforcement hereof, (iii) any
rights to set-offs, recoupments and counterclaims, and (iv) promptness,
diligence and any requirement that any Beneficiary protect, secure, perfect or
insure any security interest or lien or any property subject thereto; (f) notices,
demands, presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance hereof, notices of
default under this Agreement, the Hedge Agreements or any agreement or
instrument related thereto, notices of any renewal, extension or modification
of the Guaranteed Obligations or any agreement related thereto, notices of any
extension of credit to any Borrower and notices of any of the matters referred
to in Section 7.04 and any right to consent to any thereof; and (g) any
defenses or benefits that may be derived from or afforded by law which limit
the liability of or exonerate guarantors or sureties, or which may conflict
with the terms hereof.


 


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


 


Until the Guaranteed
Obligations (other than contingent indemnity obligations not then due and
payable) shall have been paid in full and the Revolving Commitments shall have
terminated and all Letters of Credit shall have expired or been cancelled, each
Guarantor hereby waives any claim, right or remedy, direct or indirect, that
such Guarantor now has or may hereafter have against any Borrower or any other
Guarantor or any of its assets in connection with this Guaranty or the
performance by such Guarantor of its obligations hereunder, in each case
whether such claim, right or remedy arises in equity, under contract, by
statute, under common law or otherwise and including without limitation (a) any
right of subrogation, reimbursement or indemnification that such Guarantor now
has or may hereafter have against any Borrower with respect to the Guaranteed
Obligations, (b) any right to enforce, or to participate in, any claim,
right or remedy that any Beneficiary now has or may hereafter have against any
Borrower, and (c) any benefit of, and any right to participate in, any
collateral or security now or hereafter 


 


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held by any
Beneficiary.  In addition, until the
Guaranteed Obligations (other than contingent indemnity obligations not then
due and payable) shall have been paid in full and the Revolving Commitments
shall have terminated and all Letters of Credit shall have expired or been
cancelled, each Guarantor shall withhold exercise of any right of contribution
such Guarantor may have against any other guarantor (including any other
Guarantor) of the Guaranteed Obligations, including, without limitation, any such
right of contribution as contemplated by Section 7.02.  Each Guarantor further agrees that, to the
extent the waiver or agreement to withhold the exercise of its rights of
subrogation, reimbursement, indemnification and contribution as set forth herein
is found by a court of competent jurisdiction to be void or voidable for any
reason, any rights of subrogation, reimbursement or indemnification such
Guarantor may have against any Borrower or against any collateral or security,
and any rights of contribution such Guarantor may have against any such other
guarantor, shall be junior and subordinate to any rights any Beneficiary may
have against such Borrower, to all right, title and interest any Beneficiary
may have in any such collateral or security, and to any right any Beneficiary
may have against such other guarantor. 
If any amount shall be paid to any Guarantor on account of any such
subrogation, reimbursement, indemnification or contribution rights at any time when
all Guaranteed Obligations (other than contingent indemnity obligations not
then due and payable) shall not have been paid in full, such amount shall be
held in trust for Administrative Agent on behalf of Beneficiaries and shall
forthwith be paid over to Administrative Agent for the benefit of Beneficiaries
to be credited and applied against the Guaranteed Obligations, whether matured
or unmatured, in accordance with the terms hereof.


 


Section 7.07         Subordination
of Other Obligations.


 


Any Indebtedness of any
Borrower or any Guarantor now or hereafter held by any Guarantor (the “Obligee
Guarantor”) is hereby subordinated in right of payment to the Guaranteed
Obligations, and any such Indebtedness collected or received by the Obligee
Guarantor after an Event of Default has occurred and is continuing shall be
held in trust for Administrative Agent on behalf of Beneficiaries, at the
request of Administrative Agent, and shall forthwith be paid over to
Administrative Agent for the benefit of Beneficiaries to be credited and
applied against the Guaranteed Obligations but without affecting, impairing or
limiting in any manner the liability of the Obligee Guarantor under any other
provision hereof.


 


Section 7.08         Continuing
Guaranty.


 


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


 


Section 7.09         Authority
of Guarantors or Borrowers.


 


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


 


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Section 7.10         Financial
Condition of Borrowers.


 


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


 


Section 7.11         Bankruptcy,
etc.


 


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


 


(b)      Each Guarantor acknowledges and agrees
that any interest on any portion of the Guaranteed Obligations which accrues
after the commencement of any case or proceeding referred to in clause (a) above
(or, if interest on any portion of the Guaranteed Obligations ceases to accrue
by operation of law by reason of the commencement of such case or proceeding,
such interest as would have accrued on such portion of the Guaranteed
Obligations if such case or proceeding had not been commenced) shall be
included in the Guaranteed Obligations because it is the intention of
Guarantors and Beneficiaries that the Guaranteed Obligations which are
guaranteed by Guarantors pursuant hereto should be determined without regard to
any rule of law or order which may relieve any Borrower of any portion of
such Guaranteed Obligations.  Guarantors
will permit any trustee in bankruptcy, receiver, debtor in possession, assignee
for the benefit of creditors or similar person to pay Administrative Agent, or
allow the claim of Administrative Agent in respect of, any such interest
accruing after the date on which such case or proceeding is commenced.


 


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


 


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Section 7.12         Discharge
of Guaranty upon Sale of Guarantor.


 


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


 


ARTICLE EIGHT

EVENTS OF DEFAULT


 


Section 8.01         Events
of Default.


 


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


 


(a)      Failure to Make Payments When Due.  Failure by Borrowers to pay (i) when due
any installment of principal of any Loan, whether at stated maturity, by
acceleration, by notice of voluntary prepayment, by mandatory prepayment or
otherwise; (ii) when due any amount payable to Issuing Bank in
reimbursement of any drawing under a Letter of Credit; or (iii) any
interest on any Loan or any fee or any other amount due hereunder within five (5) days
after the date due; or


 


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


 


(c)      Breach of Certain Covenants.  (i) Failure of any Loan Party to perform
or comply with any term or condition contained in Section 2.16, Section 5.02,
Section 5.15 or Article Six; or (ii) failure of any Loan Party
to perform or comply with any term or condition contained in Section 5.01(a) through
(d) and such failure shall not have been remedied or waived within ten (10) Business
Days after such failure; or


 


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


 


(e)      Other Defaults Under Loan Documents.  Any Loan Party shall default in the
performance of or compliance with any term contained herein or any of the other
Loan Documents, other than any such term referred to in any other Section of
this Section 8.01, and such default shall not have been remedied or waived
within thirty (30) days after the earlier of (i) an Authorized Officer of
such Loan Party becoming aware of such default or (ii) receipt by
Borrowers of notice from Administrative Agent or any Lender of such default; or


 


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


 


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


 


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


 


(i)       Dissolution.  Any order, judgment or decree shall be
entered against any Loan Party decreeing the dissolution or split up of such
Loan Party and such order shall remain undischarged or unstayed for a period in
excess of thirty (30) days; or


 


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


 


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


 


(l)       Guaranties, Collateral Documents and
other Loan Documents.  At any time
after the execution and delivery thereof, (i) the Guaranty for any reason,
other than the satisfaction in full of all Obligations, shall cease to be in
full force and effect (other than in accordance with its terms) or shall be
declared to be null and void or any Guarantor shall repudiate its obligations
thereunder, (ii) this Agreement or any Collateral Document ceases to be in
full force and effect (other than by reason of a release of Collateral in
accordance with the terms hereof or thereof or the satisfaction in full of the
Obligations in accordance with the terms hereof) or shall be declared null and
void, or Collateral Agent shall not have or shall cease to have a valid and
perfected Lien in any Collateral (other than an immaterial amount of Collateral)
purported to be covered by the Collateral Documents with the priority required
by the relevant Collateral Document, in each case for any reason other than the
failure of Collateral Agent or any Secured Party to take any action within its
control, (iii) any Loan Party shall contest the validity or enforceability
of any Loan Document in writing or deny in writing that it has any further
liability, including with respect to future advances by Lenders, under any Loan
Document to which it is a party, or shall contest the validity or perfection of
any Lien in any Collateral purported to be covered by the Collateral Documents;
or (iv) the Loans shall cease to constitute senior indebtedness under the
subordination provisions of the Senior Subordinated Notes or the Subordination
Agreement or, in any case, such subordination provisions shall be invalidated
or otherwise cease to be legal, valid and binding obligations of the parties
thereto, enforceable in accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors’ rights generally or by equitable principles relating to
enforceability;


 


THEN, (1) upon the
occurrence of any Event of Default described in Section 8.01(f) or
8.01(g), automatically, and (2) upon the occurrence and during the
continuation of any other Event of Default, at the request of (or with the
consent of) Requisite Lenders, upon notice to Borrowers by Administrative
Agent, (A) the Revolving Commitments, if any, of each Lender having such
Revolving Commitments and the obligation of Issuing Bank to issue any Letter of
Credit shall immediately terminate; (B) each of the following shall
immediately become due and payable, in each case without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by each Loan Party: (I) the unpaid principal amount of and accrued
interest on the Loans, (II) an amount equal to the maximum amount that may
at any time be drawn under all Letters of Credit then outstanding (regardless
of whether any beneficiary under any such Letter of Credit shall have
presented, or shall be entitled at such time to present, the drafts or other
documents or certificates required to draw under such Letters of Credit), and (III) all
other Obligations; provided, the foregoing shall not affect in any way
the obligations of Lenders under Section 2.06(d) and Section 2.11;
(C) Administrative Agent may cause Collateral Agent to enforce any and all
Liens and security interests created pursuant to Collateral Documents; and (D) Administrative
Agent shall direct Borrowers to pay (and Borrowers hereby agree upon receipt of
such notice, or upon the occurrence of any Event of Default specified in Section 8.01(f) and
(g) to pay) to Administrative Agent such additional amounts of cash, to be
held as security for Borrowers’ reimbursement Obligations in respect of Letters
of Credit then outstanding, equal to the Letter of Credit Usage at such time.


 


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ARTICLE NINE

AGENTS


 


Section 9.01         Appointment
and Authority.


 


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


 


Section 9.02         Rights
as a Lender.


 


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


 


Section 9.03         Exculpatory
Provisions.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 9.04         Reliance
by Administrative Agent and Collateral Agent.


 


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


 


Section 9.05         Delegation
of Duties.


 


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


 


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


 


Section 9.06         Resignation
of Administrative Agent.


 


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


 


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


 


Section 9.07         Non-Reliance
on Agents and Other Lenders.


 


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


 


Section 9.08         No
Other Duties, etc.


 


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


 


Section 9.09         Collateral
Documents and Guaranty.


 


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


 


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


 


Section 9.10         Withholding
Taxes.


 


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


 


ARTICLE TEN

MISCELLANEOUS


 


Section 10.01       Notices;
Effectiveness; Electronic Communication.


 


(a)      Notices Generally.  Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in paragraph (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopier as follows:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 10.02       Expenses;
Indemnity; Damage Waiver.


 


(a)      Costs and Expenses.  Borrowers shall pay (i) all reasonable
out-of-pocket expenses incurred by Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of outside counsel for
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Bank in connection with the issuance, amendment, renewal or extension
of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Agents, any Lender or the Issuing Bank,
including the fees, charges and disbursements of any counsel for the Agents,
any Lender or the Issuing Bank, in connection with the enforcement or
protection of its rights in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or in connection with the
Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.  It is understood and 


 


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agreed by all parties hereto
that the foregoing expense reimbursement obligations shall not be applicable
to, and shall not be deemed to include, any expenses of any Lender relating
solely and exclusively to, or arising solely and exclusively from, such Lender’s
ownership, if any, of any Capital Stock of Holdings (other than any Capital
Stock received by such Lender in exchange for any Obligations owed to it
hereunder).


 


(b)      Indemnification by Borrowers.  In addition to the payment of expenses
pursuant to Section 10.02, Borrowers shall indemnify the Agents (and any
sub-agent thereof), each Lender and the Issuing Bank, and each Related Party of
any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any outside counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
the consummation of the transactions contemplated hereby or thereby, (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any
actual or alleged presence or Release of Hazardous Materials on or from any
property owned or operated by any Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to any Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by any
Borrower or any other Loan Party, and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (A) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence, bad faith or willful misconduct of such Indemnitee or (B) resulted
solely from the failure to pay any expenses that a Loan Party is not required
to reimburse under Section 10.02(a); provided
further that no Loan Party shall have any obligation to any Indemnitee
hereunder with respect to Indemnified Liabilities arising out of legal
proceedings commenced against a Lender by the assignee of such Lender to the
extent such proceedings relate (A) solely to breaches of representations
or warranties of such assigning Lender regarding ownership or authority to
assign all or a portion of its Commitment or Loans owing to it or other
Obligation, or (B) principally to statements or representations made by an
assigning Lender to such assignee that were not based upon information supplied
by Borrowers; and provided  further that Borrowers and the other
Loan Parties shall not be required to reimburse the legal fees and expenses of
more than one firm of outside counsel (in addition to any reasonably necessary
special counsel and up to one local counsel in each applicable local
jurisdiction) for all Indemnitees unless, in the reasonable opinion of outside
counsel reasonably satisfactory to Borrowers and Administrative Agent,
representation of all such Indemnitees would be inappropriate due to the
existence of an actual or potential conflict of interest.  It is understood and agreed by all parties
hereto that the foregoing indemnity reimbursement obligations shall not be
applicable to, and shall not be deemed to include, any losses, claims, damages,
liabilities and related expenses of any Lender relating solely and exclusively
to, or arising solely and exclusively from, such Lender’s ownership, if any, of
any Capital Stock of Holdings (other than any Capital Stock received by such
Lender in exchange for any Obligations owed to it hereunder).


 


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


 


(d)      Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable
law, Borrowers shall not assert, and hereby waive, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or Letter of Credit or the use of the proceeds
thereof.  No Indemnitee referred to in
paragraph (b) above shall be liable for any damages arising from the use
by unintended recipients of any information or other materials distributed by
it through telecommunications, electronic or other information transmission
systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.


 


(e)      Payments.  All amounts due under this Section 10.02
shall be payable not later than ten (10) days after written demand
therefor (which writing shall contain a reasonably detailed calculation of such
amounts); provided, that if Borrowers have a good faith dispute with
respect to such amounts and no Agent or Lender has incurred out-of-pocket
expenses with respect thereto, such amounts shall be payable upon the earlier
to occur of the resolution of the dispute and thirty (30) days after such
written demand.


 


Section 10.03       Right
of Set-Off.


 


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


 


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


 


Section 10.04       Amendments
and Waivers.


 


(a)      Requisite Lenders’ Consent.  Subject to the additional requirements of Section 10.04(b) and
10.04(c), no amendment, modification, termination or waiver of any provision of
the Loan Documents, or consent to any departure by any Loan Party therefrom,
shall in any event be effective without the written concurrence of the
Requisite Lenders.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 10.05       Execution
of Amendments, etc.


 


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


 


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


 


Section 10.06                     Successors and Assigns; Participations.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


125

















 


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


 


Section 10.07                     Independence of Covenants.


 


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


 


Section 10.08                     Survival of Representations, Warranties and Agreements.


 


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


 


Section 10.09                     No Waiver; Remedies Cumulative.


 


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


 


Section 10.10                     Marshalling; Payments Set Aside.


 


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


 


126

















 


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


 


Section 10.11                     Severability.  In
case any provision in or obligation hereunder or any Note shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.


 


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


 


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


 


Section 10.13                     Headings.


 


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


 


Section 10.14                     Governing Law; Jurisdiction; Etc.


 


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


 


(b)                 Submission to
Jurisdiction.  Each
Borrower and each other Loan Party irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of the courts of the
State of New York sitting in New York County and of the United States District
Court of the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State court or, to the fullest extent permitted by
applicable law, in such Federal court. 
Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.  Nothing in this Agreement or in any
other Loan Document shall affect any right that any Agent, any Lender or the
Issuing Bank may otherwise have to bring any action or proceeding relating to
this Agreement or any other Loan Document against a Borrower or any other Loan
Party or its properties in the courts of any jurisdiction.


 


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


 


(d)                 Service of
Process.  Each party hereto irrevocably
consents to service of process in the manner provided for notices in Section 10.01.  Nothing in this Agreement will affect the
right of any party hereto to serve process in any other manner permitted by
applicable law.


 


Section 10.15                     WAIVER OF JURY TRIAL.


 


EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). 
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER  LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


Section 10.16                     Treatment of Certain Information; Confidentiality.


 


Each of the Agents, the
Lenders and the Issuing Bank agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
it, its Affiliates and their respective partners, directors, officers,
employees, agents, advisors, auditors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and agree to keep such Information
confidential in accordance with this Section 10.16), (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d) to
any other party hereto, provided that the disclosing party will promptly notify
the Borrowers of such disclosure to the extent permitted by applicable law, (e) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors)
to any swap or derivative transaction relating to any Borrower and its
obligations, (g) with the consent of Borrowers or (h) to the extent
such Information (x) becomes publicly available other than as a result of
a breach of this Section or (y) becomes available to Agents, any
Lender or the Issuing Bank on a nonconfidential basis from a source other than
a Borrower or a Person that such disclosing party knows is in breach of a
confidentiality obligation to a Loan Party.


 


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For purposes of this
Section, “Information” means all information received from any Borrower or any
of its Subsidiaries relating to Holdings, Borrowers or any of their
Subsidiaries or any of their respective businesses, other than any such
information that is available to any Agent, any Lender or the Issuing Bank on a
nonconfidential basis prior to disclosure by a Borrower.  Any Person required to maintain the
confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


Section 10.17                     Usury Savings Clause.


 


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


 


Section 10.18                     Counterparts; Integration; Effectiveness.


 


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


 


Section 10.19                     Electronic Execution of Assignments.


 


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


 


129

















 


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


 


Section 10.20                     Entire Agreement.


 


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


 


Section 10.21                     Patriot Act Notification.


 


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


 


[Remainder of page intentionally left blank]


 


130

















 


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


 


 


	
   

  	
  MR DEFAULT SERVICES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer Dorris

  
	
   

  	
   

  	
  Name: Jennifer
  Dorris

  
	
   

  	
   

  	
  Title: Vice President, CFO
  and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  E-DEFAULT SERVICES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer Dorris

  
	
   

  	
   

  	
  Name: Jennifer
  Dorris

  
	
   

  	
   

  	
  Title: Vice President, CFO
  and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  STATEWIDE TAX AND TITLE
  SERVICES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer Dorris

  
	
   

  	
   

  	
  Name: Jennifer
  Dorris

  
	
   

  	
   

  	
  Title: Vice President, CFO
  and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  STATEWIDE PUBLISHING
  SERVICES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer Dorris

  
	
   

  	
   

  	
  Name: Jennifer
  Dorris

  
	
   

  	
   

  	
  Title: Vice President, CFO
  and Secretary

  



 


S-1

















 


	
   

  	
  MR PROCESSING HOLDING
  CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer Dorris

  
	
   

  	
   

  	
  Name: Jennifer
  Dorris

  
	
   

  	
   

  	
  Title: Vice President, CFO
  and Secretary

  



 


S-2

















 


	
   

  	
  RBS
  SECURITIES CORPORATION,

  
	
   

  	
  as Sole Lead Arranger,
  Sole Book Runner and Syndication Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William Stafeil

  
	
   

  	
   

  	
  Name:
  William Stafeil

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  
	
   

  	
  THE
  ROYAL BANK OF SCOTLAND PLC,

  
	
   

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

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William Stafeil

  
	
   

  	
   

  	
  Name:
  William Stafeil

  
	
   

  	
   

  	
  Title:
  Managing Director

  



 


S-3














 


APPENDIX A-1


TO CREDIT AND GUARANTY
AGREEMENT


 


Initial Term Loan
Commitments


 


	
  LENDER

  	
   

  	
  INITIAL
  TERM LOAN COMMITMENT

  	
   

  	
  PRO

  RATA SHARE

  	
   

  
	
  The
  Royal Bank of Scotland plc

  	
   

  	
  $

  	
  110,000,000.00

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  110,000,000.00

  	
   

  	
  100

  	
  %

  



 


A-1-1

















 


APPENDIX A-2


TO CREDIT AND GUARANTY
AGREEMENT


 


Delayed Draw Term Loan
Commitments


 


	
  LENDER

  	
   

  	
  DELAYED
  DRAW TERM LOAN

  COMMITMENT

  	
   

  	
  PRO

  RATA SHARE

  	
   

  
	
  The
  Royal Bank of Scotland plc

  	
   

  	
  $

  	
  30,000,000.00

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  30,000,000.00

  	
   

  	
  100

  	
  %

  



 


A-3-1

















 


APPENDIX A-3


TO CREDIT AND GUARANTY
AGREEMENT


 


Revolving Commitments


 


	
  LENDER

  	
   

  	
  REVOLVING
  COMMITMENT

  	
   

  	
  PRO

  RATA SHARE

  	
   

  
	
  The
  Royal Bank of Scotland plc

  	
   

  	
  $

  	
  10,000,000.00

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  10,000,000.00

  	
   

  	
  100

  	
  %

  



 


A-4-1

















 


SCHEDULE 1.01


TO
CREDIT AND GUARANTY AGREEMENT


 


Consolidated Adjusted
EBITDA:


 


	
   

  	
  FISCAL
  QUARTER

  ENDING

  	
   

  	
  CONSOLIDATED ADJUSTED EBITDA

  	
   

  	
   

  
	
   

  	
  June 30, 2006

  	
   

  	
  $

  	
  7,091,644

  	
   

  	
   

  
	
   

  	
  September 30, 2006

  	
   

  	
  $

  	
  7,816,682

  	
   

  	
   

  
	
   

  	
  December 31, 2006

  	
   

  	
  $

  	
  9,325,170

  	
   

  	
   

  
	
   

  	
  March 31, 2007

  	
   

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

  	
   

  	
   

  



 


Consolidated Capital
Expenditures:


 


	
   

  	
  FISCAL
  QUARTER

  ENDING

  	
   

  	
  CONSOLIDATED CAPITAL

  EXPENDITURES

  	
   

  	
   

  
	
   

  	
  June 30, 2006

  	
   

  	
  $

  	
  439,127

  	
   

  	
   

  
	
   

  	
  September 30, 2006

  	
   

  	
  $

  	
  190,620

  	
   

  	
   

  
	
   

  	
  December 31, 2006

  	
   

  	
  $

  	
  363,789

  	
   

  	
   

  
	
   

  	
  March 31, 2007

  	
   

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

  	
   

  	
   

  



 

















 


Taxes
on income paid in Cash:


 


	
   

  	
  FISCAL
  QUARTER

  ENDING

  	
   

  	
  TAXES ON INCOME PAID IN CASH

  	
   

  	
   

  
	
   

  	
  June 30, 2006

  	
   

  	
  $

  	
  0

  	
   

  	
   

  
	
   

  	
  September 30, 2006

  	
   

  	
  $

  	
  0

  	
   

  	
   

  
	
   

  	
  December 31, 2006

  	
   

  	
  $

  	
  0

  	
   

  	
   

  
	
   

  	
  March 31, 2007

  	
   

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

  	
   

  	
   

  



 














 


DISCLOSURE SCHEDULES


 


CREDIT AND GUARANTY AGREEMENT




DATED AS OF FEBRUARY 24, 2006


 


 


MR PROCESSING HOLDING CORP., AS HOLDINGS,




AND THE OTHER PARTIES THERETO


 

















 


Schedule
1.01: Designated Consolidated Adjusted EBITDA and Consolidated Capital
Expenditures




See attached


 


Disclosure Schedules


 

















 


SCHEDULE 1.01


TO CREDIT AND GUARANTY
AGREEMENT


 


Consolidated Adjusted
EBITDA:


 


	
  FISCALQUARTER

  ENDING

  	
   

  	
  CONSOLIDATED ADJUSTED EBITDA

  
	
   

  	
   

  	
   

  
	
  September 30, 2005

  	
   

  	
  $

  	
  3,554,353

  
	
   

  	
   

  	
   

  
	
  December 31, 2005

  	
   

  	
  $

  	
  4,982,567

  
	
   

  	
   

  	
   

  
	
  March 31, 2006

  	
   

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

  



 


Consolidated Capital
Expenditures:


 


	
  FISCAL
  QUARTER

  ENDING

  	
   

  	
  CONSOLIDATED CAPITAL

  EXPENDITURES

  
	
   

  	
   

  	
   

  
	
  September 30, 2005

  	
   

  	
  $

  	
  87,500

  
	
   

  	
   

  	
   

  
	
  December 31, 2005

  	
   

  	
  $

  	
  87,500

  
	
   

  	
   

  	
   

  
	
  March 31, 2006

  	
   

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

  



 


Taxes on income paid in
Cash:


 


1

















 


	
  FISCAL
  QUARTER

  ENDING

  	
   

  	
  TAXES ON INCOME PAID IN CASH

  
	
   

  	
   

  	
   

  
	
  September 30,
  2005

  	
   

  	
  $

  	
  0

  
	
   

  	
   

  	
   

  
	
  December 31,
  2005

  	
   

  	
  $

  	
  0

  
	
   

  	
   

  	
   

  
	
  March 31,
  2006

  	
   

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

  



 


2

















 


Schedule 3.01(h): Closing Date Mortgaged Properties




None.


 

















 


Schedule
4.01: Jurisdictions of Organization and Qualification


 


	
  Entity

  	
   

  	
  Jurisdiction of Organization

  
	
  MR
  Processing Holding Corp.

  	
   

  	
  Delaware

  
	
  MR
  Default Services LLC

  	
   

  	
  Delaware

  
	
  E-Default
  Services LLC

  	
   

  	
  Delaware

  
	
  Statewide
  Tax and Title Services LLC

  	
   

  	
  Delaware

  
	
  Statewide
  Publishing Services LLC

  	
   

  	
  Delaware

  



 

















 


Schedule 4.02: Capital Stock and Ownership




Options, Calls, Warrants, Etc.


 


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


 


Capital Stock and Ownership


 


(a)                                  MR Processing Holding Corp.


 


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


 


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


 


	
   

  	
   

  	
  Series A Convertible

  	
   

  	
  Series A Convertible

  	
   

  
	
  Stockholder

  	
   

  	
  Preferred Shares

  	
   

  	
  Preferred Value

  	
   

  
	
  RBS Equity Corporation

  	
   

  	
  30,000

  	
   

  	
  $

  	
  3,000,000

  	
   

  
	
  Great Hill Equity Partners II Limited

  	
   

  	
  200,253

  	
   

  	
  $

  	
  20,025,362

  	
   

  
	
  Partnership

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Great Hill Affiliate Partners II Limited

  	
   

  	
  7,629

  	
   

  	
  $

  	
  762,930

  	
   

  
	
  Partnership

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Great Hill Equity Partners III, LP

  	
   

  	
  361,858

  	
   

  	
  $

  	
  36,185,793

  	
   

  
	
  Great Hill Investors, LLC

  	
   

  	
  3,504

  	
   

  	
  $

  	
  350,406

  	
   

  
	
  Daniel D. Phelan

  	
   

  	
  35,689

  	
   

  	
  $

  	
  3,568,877

  	
   

  
	
  Penni A. Alper

  	
   

  	
  35,689

  	
   

  	
  $

  	
  3,568,877

  	
   

  
	
  John G. Aldridge, Jr.

  	
   

  	
  35,689

  	
   

  	
  $

  	
  3,568,877

  	
   

  
	
  Shell L. Rutledge

  	
   

  	
  35,689

  	
   

  	
  $

  	
  3,568,877

  	
   

  
	
   

  	
   

  	
  746,000

  	
   

  	
  $

  	
  74,600,000

  	
   

  



 


(b)                                 MR Default Services LLC


 


Total Number of Units: 1000 Common Units


 


	
  Unitholder

  	
   

  	
  Units

  	
   

  	
  % Ownership

  
	
  MR  Processing
  Holding Corp.

  	
   

  	
  1000 Common Units

  	
   

  	
  100

  



 


(c)                                  E-Default Services LLC 


 


Total Number of Units: 1000 Common Units


 


	
  Unitholder

  	
   

  	
  Units

  	
   

  	
  % Ownership

  
	
  MR Processing Holding Corp.

  	
   

  	
  1000 Common Units

  	
   

  	
  100

  



 

















 


(d)                                 Statewide Tax and Title Services LLC 


 


Total Number of Units: 1000
Common Units


 


	
  Unitholder

  	
   

  	
  Units

  	
   

  	
  % Ownership

  
	
  MR Processing Holding Corp.

  	
   

  	
  1000 Common Units

  	
   

  	
  100

  



 


(e)                                  Statewide Publishing Services LLC 


 


Total Number of Units: 1000
Common Units


 


	
  Unitholder

  	
   

  	
  Units

  	
   

  	
  % Ownership

  
	
  Statewide Tax and Title Services LLC

  	
   

  	
  1000 Common Units

  	
   

  	
  100

  



 

















 


Schedule 4.13: Real Estate Assets


 


Owned Property


 


None.


 


Leased Property


 


	
  Street
  Address

  	
   

  	
  Lessor

  	
   

  	
  Lessee

  	
   

  	
  Date of Lease

  	
   

  	
  Expiration

  of Lease

  
	
  1423
  Trae Land, Corporate

  Ridge Business Park, Douglas

  County, Georgia

  	
   

  	
  Corporate
  Ridge I Associates

  	
   

  	
  Statewide
  Tax and Title Services, LLC

  	
   

  	
  Lease
  Agreement is dated as of July 28, 2004

   

  Lease
  Expansion Agreement is dated as of March 2005

  	
   

  	
  February 29,
  2008

  
	
  1544
  Old Alabama Rd.,

  Roswell, Georgia

  	
   

  	
  Rubicon
  Investments LLC, as assignee

  	
   

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

  	
   

  	
  February 24,
  2006

  	
   

  	
  September 30,
  2021

  
	
  900
  Holcombs Woods

  Parkway, Roswell, Georgia

   

  (Sublease)

  	
   

  	
  Sublessor:

   

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

  	
   

  	
  Sublessees:

   

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

  	
   

  	
  February 24,
  2006

  	
   

  	
  September 30,
  2021

  



 

















 


Schedule 4.16: Material Contracts


 


1.           The Services
Agreement.


 


2.           The Acquisition
Agreement.


 














 


Schedule 4.21: Fees


 


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


 


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


 

















 


Schedule 4.29: Agreements
with Managers


 


1.             Holdings Option Plan as described
on Schedule 4.02.


 

















 


Schedule 4.34: Unauthorized UCC Filings


 


Unauthorized UCC filings
listing MR Law as debtor:


 


	
  Filing
  No.

  	
   

  	
  Creditor

  	
   

  	
  Jurisdiction

  	
   

  	
  Date of Filing

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  060-2005-04805

  	
   

  	
  Diani Naja Ba al Mashiyah Bey-E1

  	
   

  	
  Georgia Superior
  Court, Fulton County

  	
   

  	
  Date Unavailable

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  060-2005-014955

  	
   

  	
  Diani Naja Ba al Mashiyah Bey-E1

  	
   

  	
  Georgia Superior
  Court, Fulton County

  	
   

  	
  Filed: 12/06/05

   

  File #:
  060200514955

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  060-2005-15294

  	
   

  	
  Diani Naja Ba al Mashiyah Bey-El

  	
   

  	
  Georgia Superior
  Court, Fulton County

  	
   

  	
  Amended: 12/14/05

   

  File #:
  060200515294

   

  Amended to add
  Marty M. Stone as Debtor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  060-2005-15358

  	
   

  	
  Diani Naja Ba al Mashiyah Bey-El

  	
   

  	
  Georgia Superior
  Court, Fulton County

  	
   

  	
  Amended:
  12/15/05

   

  File:
  060200515358

   

  Amended to add
  Denali Home Loans as Debtor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  File Number Unavailable

  	
   

  	
  Diani Naja Ba al Mashiyah Bey-El

  	
   

  	
  Georgia Superior
  Court, Fulton County

  	
   

  	
  1/5/06

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  060-2002-00578

  	
   

  	
  Renee Brown Sanders -EL

  	
   

  	
  Georgia Superior
  Court, Fulton County

  	
   

  	
  01/04/02

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  060-2002-00578

  	
   

  	
  Renee Sanders

  	
   

  	
  Georgia Superior
  Court, Fulton County

  	
   

  	
  01/04/02

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  060-2002-00578

  	
   

  	
  Renee Sanders

  	
   

  	
  Georgia Superior
  Court, Fulton County

  	
   

  	
  01/04/02

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  44-2003-0001019

  	
   

  	
  Georgiana Pettrolla
  Kidd

  	
   

  	
  Georgia Superior
  Court, De Kalb County

  	
   

  	
  03/07/03

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  44-2003-001817

  	
   

  	
  Georgiana Pettrolla
  Kidd

  	
   

  	
  Georgia Superior
  Court, De Kalb County

  	
   

  	
  04/22/03

  



 

















 


	
  Filing No.

  	
   

  	
  Creditor

  	
   

  	
  Jurisdiction

  	
   

  	
  Date of Filing

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  44-2003-001649

  	
   

  	
  Georgiana
  Pettrolla Kidd

  	
   

  	
  Georgia Superior Court, De Kalb County

  	
   

  	
  04/14/03

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  012-2004-0895

  	
   

  	
  Kimberly
  D. Stubbert

  	
   

  	
  State of Georgia

  	
   

  	
  Date Unavailable

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  012-2005-0097

  	
   

  	
  Kimberly
  D. Stubbert

  	
   

  	
  State of Georgia

  	
   

  	
  Date Unavailable

  



 


12

















 


Schedule 6.01: Certain Indebtedness


 


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


 


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


 


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


 


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


 


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


 

















 


Schedule 6.02: Certain Liens


 


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


 


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


 

















 


Schedule
6.07: Certain Investments


 


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


 


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


 

















 


Schedule
6.12: Certain Affiliate Transactions


 


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


 


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


 














 


EXHIBIT A-1  TO


CREDIT AND GUARANTY
AGREEMENT


 


FUNDING NOTICE


 


Reference is made
to the Credit and Guaranty Agreement, dated as of February 24, 2006 (as it
may be amended, supplemented, restated or otherwise modified, the “Credit
Agreement”; the terms defined therein and not otherwise defined herein
being used herein as therein defined), by and among MR DEFAULT SERVICES LLC, a
Delaware limited liability company (“MR”), E-DEFAULT SERVICES LLC, a
Delaware limited liability company (“E-Defeult”), STATEWIDE TAX AND
TITLE SERVICES LLC, a Delaware limited liability company (“STT”),
STATEWIDE PUBLISHING SERVICES LLC, a Delaware limited liability company (“Statewide
Publishing” and, together with MR, E-Default and STT on a joint and several
basis, “Borrowers”), MR PROCESSING HOLDING CORP., a Delaware corporation
(“Holdings”), certain subsidiaries of Borrowers, as Guarantors, the
Lenders party thereto from time to time, THE ROYAL BANK OF SCOTLAND PLC, as
Administrative Agent, Collateral Agent and Documentation Agent, and RBS
SECURITIES CORPORATION as Sole Lead Arranger, Sole Book Runner and Syndication
Agent.


 


Pursuant to [Section 2.01]
[Section 2.03] [Section 2.05] of the Credit Agreement, Borrowers
desire that Lenders make the following Loans to Borrowers in accordance with
the applicable terms and conditions of the Credit Agreement on [mm/dd/yy]:


 


	
  Term Loans

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   ̈

  	
  Base Rate Loans:

  	
  $

  	
  [    ,    ,    ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   ̈

  	
  Eurodollar Rate Loans,
  with an Initial

  	
   

  	
   

  
	
   

  	
  Interest Period of                      
  Month(s):

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
  [    ,    ,    ]

  	
   

  
	
  Revolving Loans

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   ̈

  	
  Base Rate Loans:

  	
  $

  	
  [    ,    ,    ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   ̈

  	
  Eurodollar Rate Loans,
  with an Initial

  	
   

  	
   

  
	
   

  	
  Interest Period of                      
  Month(s):

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
  [    ,    ,    ]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Swing Line Loans

  	
  $

  	
  [    ,    ,    ]

  	
   

  



 


The Loans requested hereunder
shall be allocated as follows:(1)


 


	
  o

  	
  MR Default Services LLC

  	
  $

  	
  [    ,    ,    ]

  	
   

  
	
  o

  	
  E-Default Services LLC

  	
  $

  	
  [    ,    ,    ]

  	
   

  
	
  o

  	
  Statewide Tax and Title
  Services LLC

  	
  $

  	
  [    ,    ,    ]

  	
   

  
	
  o

  	
  Statewide Publishing
  Services LLC

  	
  $

  	
  [    ,    ,    ]

  	
   

  



 






(1)                                  This statement need only be included if
Loans are being requested to be allocated to E-Default, STT and/or Statewide
Publishing.


 


1

















 


Borrowers hereby
certify that:


 


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


 


(ii)           as of the Credit
Date, the representations and warranties contained in each of the Loan
Documents are true, correct and complete in all material respects on and as of
such Credit Date to the same extent as though made on and as of such date,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case such representations and warranties are true,
correct and complete in all material respects on and as of such earlier date;


 


(iii)          as of the Credit
Date, no event has occurred and is continuing or would result from the
consummation of the borrowing contemplated hereby that would constitute an
Event of Default or a Default; and


 


(iv)          since December 31,
2005, no event, circumstance or change has occurred that has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect.


 


2

















 


	
  Date: [mm/dd/yy]

  	
  MR
  DEFAULT SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


	
   

  	
  E-DEFAULT
  SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


	
   

  	
  STATEWIDE
  TAX AND TITLE SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


	
   

  	
  STATEWIDE
  PUBLISHING SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


3

















 


EXHIBIT A-2 TO


CREDIT AND GUARANTY
AGREEMENT


 


CONVERSION/CONTINUATION NOTICE


 


Reference is made
to the Credit and Guaranty Agreement, dated as of February 24, 2006 (as it
may be amended, supplemented, restated or otherwise modified, the “Credit
Agreement”; the terms defined therein and not otherwise defined herein
being used herein as therein defined), by and among MR DEFAULT SERVICES LLC, a
Delaware limited liability company (“MR”), E-DEFAULT SERVICES LLC, a
Delaware limited liability company (“E-Default”), STATEWIDE TAX AND
TITLE SERVICES LLC, a Delaware limited liability company (“STT”),
STATEWIDE PUBLISHING SERVICES LLC, a Delaware limited liability company (“Statewide
Publishing” and, together with MR, E-Default and STT on a joint and several
basis, “Borrowers”), MR PROCESSING HOLDING CORP., a Delaware corporation
(“Holdings”), certain subsidiaries of Borrowers, as Guarantors, the
Lenders party thereto from time to time, THE ROYAL BANK OF SCOTLAND PLC, as
Administrative Agent, Collateral Agent and Documentation Agent, and RBS
SECURITIES CORPORATION as Sole Lead Arranger, Sole Book Runner and Syndication
Agent.


 


Pursuant to Section 2.21
of the Credit Agreement, Borrowers desire to convert or to continue the
following Loans, each such conversion and/or continuation to be effective as of
[mm/dd/yy]:


 


	
  1.  Term
  Loans:

  
	
   

  	
   

  
	
  $[    ,    ,    ]

  	
  Eurodollar Rate Loans
  to be continued with Interest Period of          
  month(s)

  
	
   

  	
   

  
	
  $[    ,    ,    ]

  	
  Base Rate Loans to be
  converted to Eurodollar Rate Loans with Interest Period of           month(s)

  
	
   

  	
   

  
	
  $[    ,    ,    ]

  	
  Eurodollar Rate Loans
  to be converted to Base Rate Loans

  
	
   

  	
   

  
	
  2.  Revolving
  Loans:

  
	
   

  	
   

  
	
  $[    ,    ,    ]

  	
  Eurodollar Rate Loans
  to be continued with Interest Period of           month(s)

  
	
   

  	
   

  
	
  $[    ,    ,    ]

  	
  Base Rate Loans to be
  converted to Eurodollar Rate Loans with Interest Period of           month(s)

  
	
   

  	
   

  
	
  $[    ,    ,    ]

  	
  Eurodollar Rate Loans
  to be converted to Base Rate Loans

  



 


Borrowers hereby
certify that as of the date hereof, no event has occurred and is continuing or
would result from the consummation of the conversion and/or continuation
contemplated hereby that would constitute an Event of Default or a Default.


 


1

















 


	
  Date: [mm/dd/yy]

  	
   

  
	
   

  	
   

  
	
   

  	
  MR
  DEFAULT SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


	
   

  	
  E-DEFAULT
  SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


	
   

  	
  STATEWIDE
  TAX AND TITLE SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


	
   

  	
  STATEWIDE
  PUBLISHING SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


2

















 


EXHIBIT A-3 TO


CREDIT AND GUARANTY
AGREEMENT


 


ISSUANCE NOTICE


 


Reference is made
to the Credit and Guaranty Agreement, dated as of February 24, 2006 (as it
may be amended, supplemented, restated or otherwise modified, the “Credit
Agreement”; the terms defined therein and not otherwise defined herein
being used herein as therein defined), by and among MR DEFAULT SERVICES LLC, a
Delaware limited liability company (“MR”), E-DEFAULT SERVICES LLC, a
Delaware limited liability company (“E-Default”), STATEWIDE TAX AND
TITLE SERVICES LLC, a Delaware limited liability company (“STT”),
STATEWIDE PUBLISHING SERVICES LLC, a Delaware limited liability company (“Statewide
Publishing” and, together with MR, E-Default and STT on a joint and several
basis, “Borrowers”), MR PROCESSING HOLDING CORP., a Delaware corporation
(“Holdings”), certain subsidiaries of Borrowers, as Guarantors, the
Lenders party thereto from time to time, THE ROYAL BANK OF SCOTLAND PLC, as
Administrative Agent, Collateral Agent and Documentation Agent, and RBS
SECURITIES CORPORATION as Sole Lead Arranger, Sole Book Runner and Syndication
Agent.


 


Pursuant to Section 2.07
of the Credit Agreement, Borrowers desire a Letter of Credit on [mm/dd/yy] (the “Credit Date”) to be
issued in accordance with the terms and conditions of the Credit Agreement in
an aggregate face amount of
$[    ,    ,    ].


 


Attached hereto
for each such Letter of Credit are the following:


 


(a)       the stated amount of
such Letter of Credit;


 


(b)      the name and address of
the beneficiary;


 


(c)       the expiration date; and


 


(d)      either (i) the
verbatim text of such proposed Letter of Credit, or (ii) a description of
the proposed terms and conditions of such Letter of Credit, including a precise
description of any documents to be presented by the beneficiary which, if
presented by the beneficiary prior to the expiration date of such Letter of Credit,
would require the Issuing Bank to make payment under such Letter of Credit.


 


The Letter of
Credit requested hereunder shall be for the account of:(1)


 


 ̈                      MR
Default Services LLC


 ̈                      E-Default
Services LLC


 ̈                      Statewide
Tax and Title Services LLC


 ̈                      Statewide
Publishing Services LLC


 






(1)         This
statement need only be included if Letters of Credit are being requested for
E-Default, STT and/or Statewide Publishing.


 


1

















 


Borrowers hereby
certify that:


 


(i)            after issuing such Letter of Credit
requested on the Credit Date, the Total Utilization of Revolving Commitments
shall not exceed the Revolving Commitments then in effect;


 


(ii)           as of the Credit Date, the
representations and warranties contained in each of the Loan Documents are
true, correct and complete in all material respects on and as of such Credit
Date to the same extent as though made on and as of such date, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case such representations and warranties are true, correct and
complete in all material respects on and as of such earlier date;


 


(iii)          as of such Credit Date, no event has
occurred and is continuing or would result from the consummation of the issuance
contemplated hereby that would constitute an Event of Default or a Default; and


 


(iv)          since December 31, 2005, no
event, circumstance or change has occurred that has caused or evidences, either
in any case or in the aggregate, a Material Adverse Effect.


 


2

















 


	
  Date: [mm/dd/yy]

  	
  MR
  DEFAULT SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


	
   

  	
  E-DEFAULT
  SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


	
   

  	
  STATEWIDE
  TAX AND TITLE SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


	
   

  	
  STATEWIDE
  PUBLISHING SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


3














 


EXHIBIT B-l TO


CREDIT AND GUARANTY
AGREEMENT


 


FORM OF TERM LOAN NOTE


 


	
  $[    ,    ,    ]

  	
   

  
	
  February     ,
  2006

  	
  New York, New
  York

  



 


FOR VALUE RECEIVED, MR DEFAULT SERVICES LLC, a Delaware
limited liability company (“MR”), E-DEFAULT SERVICES LLC, a Delaware
limited liability company (“E-Default”), STATEWIDE TAX AND TITLE
SERVICES LLC, a Delaware limited liability company (“STT”), and
STATEWIDE PUBLISHING SERVICES LLC, a Delaware limited liability company (“Statewide
Publishing” and, together with MR, E-Default and STT on a joint and several
basis, “Borrowers”), promise to pay, on a joint and several basis, [NAME OF LENDER] (“Payee”) or its registered
assigns the principal amount of [           ] DOLLARS] ($[    ,    ,    ]) in the installments referred to below.


 


Borrowers also promise to pay, on a joint and several
basis, interest on the unpaid principal amount hereof, from the date hereof
until paid in full, at the rates and at the times which shall be determined in
accordance with the provisions of that certain Credit and Guaranty Agreement,
dated as of February 24, 2006 (as it may be amended, supplemented,
restated or otherwise modified, the “Credit Agreement”; the terms
defined therein and not otherwise defined herein being used herein as therein
defined), by and among Borrowers, MR PROCESSING HOLDING CORP., a Delaware
corporation (“Holdings”), certain subsidiaries of Borrowers, as
Guarantors, the Lenders party thereto from time to time, THE ROYAL BANK OF
SCOTLAND PLC, as Administrative Agent, Collateral Agent and Documentation
Agent, and RBS SECURITIES CORPORATION as Sole Lead Arranger, Sole Book Runner
and Syndication Agent.


 


Borrowers shall make scheduled principal payments on
this Note as set forth in Section 2.24 of the Credit Agreement.


 


This Note is one of the “Term Loan Notes” in the aggregate principal amount of
$70,000,000 and is issued pursuant to and entitled to the benefits of the
Credit Agreement, to which reference is hereby made for a more complete
statement of the terms and conditions under which the Term Loan evidenced
hereby was made and is to be repaid.


 


All payments of
principal and interest in respect of this Note shall be made in lawful money of
the United States of America in same day funds at the Principal Office of
Administrative Agent or at such other place as shall be designated in writing
for such purpose in accordance with the terms of the Credit Agreement. Unless
and until an Assignment and Assumption Agreement effecting the assignment or
transfer of the obligations evidenced hereby shall have been accepted by
Administrative Agent and recorded in the Register, Borrowers, each Agent and
Lenders shall be entitled to deem and treat Payee as the owner and holder of
this Note and the obligations evidenced hereby. Payee hereby agrees, by its
acceptance hereof, that before disposing of this Note or any part hereof it
will make a notation hereon of all principal payments previously made hereunder
and of the date to which interest hereon has been paid; provided, the failure
to make a notation of any payment made on this Note shall not


 


1

















 


limit
or otherwise affect the obligations of Borrowers hereunder with respect to
payments of principal of or interest on this Note.


 


This Note is subject to mandatory prepayment and to
prepayment at the option of Borrowers, each as provided in the Credit
Agreement.


 


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


 


Upon the occurrence of an Event of Default, the unpaid
balance of the principal amount of this Note, together with all accrued and
unpaid interest thereon, may become, or may be declared to be, due and payable
in the manner, upon the conditions and with the effect provided in the Credit
Agreement.


 


The terms of this Note are subject to amendment only
in the manner provided in the Credit Agreement.


 


No reference herein to the Credit Agreement and no
provision of this Note or the Credit Agreement shall alter or impair the
obligations of Borrowers, which are absolute and unconditional, to pay the
principal of and interest on this Note at the place, at the respective times,
and in the currency herein prescribed.


 


Borrowers promise,
on a joint and several basis, to pay all reasonable and out-of-pocket costs and
expenses, including reasonable attorneys’ fees, all as provided in the Credit
Agreement, incurred in the collection and enforcement of this Note. Borrowers
and any endorsers of this Note hereby consent to renewals and extensions of
time at or after the maturity hereof, without notice, and hereby waive
diligence, presentment, protest, demand notice of every kind and, to the full
extent permitted by law, the right to plead any statute of limitations as a
defense to any demand hereunder.


 


2

















 


IN WITNESS WHEREOF, each Borrower has caused this Note to be duly executed
and delivered by its officer thereunto duly authorized as of the date and at
the place first written above.


 


 


	
   

  	
  MR
  DEFAULT SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  E-DEFAULT
  SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STATEWIDE
  TAX AND TITLE SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STATEWIDE
  PUBLISHING SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


3

















 


EXHIBIT
B-2 TO


CREDIT AND
GUARANTY AGREEMENT


 


FORM OF REVOLVING LOAN NOTE


 


	
  $[    ,    ,    ]

  	
   

  
	
  February     ,
  2006

  	
  New York, New
  York

  



 


FOR VALUE RECEIVED, MR DEFAULT SERVICES LLC, a Delaware
limited liability company (“MR”), E-DEFAULT SERVICES LLC, a Delaware
limited liability company (“E-Default”), STATEWIDE TAX AND TITLE
SERVICES LLC, a Delaware limited liability company (“STT”), and
STATEWIDE PUBLISHING SERVICES LLC, a Delaware limited liability company (“Statewide
Publishing” and, together with MR, E-Default and STT on a joint and several
basis, “Borrowers”), promise to pay, on a joint and several basis, [NAME OF LENDER] (“Payee”) or its
registered assigns, on or before the Revolving Commitment Termination Date (as
defined in the Credit Agreement referred to below), the lesser of (a) [           ] [DOLLARS] ($[    ,    ,    ])
and (b) the unpaid principal amount of all advances made by
Payee to Borrowers as Revolving Loans under the Credit Agreement referred to
below.


 


Borrowers also promise to pay, on a joint and several
basis, interest on the unpaid principal amount hereof, from the date hereof
until paid in full, at the rates and at the times which shall be determined in
accordance with the provisions of that certain Credit and Guaranty Agreement,
dated as of February 24, 2006 (as it may be amended, supplemented,
restated or otherwise modified, the “Credit Agreement”; the terms
defined therein and not otherwise defined herein being used herein as therein
defined), by and among Borrowers, MR PROCESSING HOLDING CORP., a Delaware
corporation (“Holdings”), certain subsidiaries of Borrowers, as
Guarantors, the Lenders party thereto from time to time, THE ROYAL BANK OF
SCOTLAND PLC, as Administrative Agent, Collateral Agent and Documentation
Agent, and RBS SECURITIES CORPORATION as Sole Lead Arranger, Sole Book Runner
and Syndication Agent.


 


This Note is one of the “Revolving Loan Notes” in the aggregate principal amount of $
10,000,000 and is issued pursuant to and entitled to the benefits of the Credit
Agreement, to which reference is hereby made for a more complete statement of
the terms and conditions under which the Loans evidenced hereby were made and
are to be repaid.


 


All payments of
principal and interest in respect of this Note shall be made in lawful money of
the United States of America in same day funds at the Principal Office of
Administrative Agent or at such other place as shall be designated in writing
for such purpose in accordance with the terms of the Credit Agreement. Unless
and until an Assignment and Assumption Agreement effecting the assignment or
transfer of the obligations evidenced hereby shall have been accepted by
Administrative Agent and recorded in the Register, Borrowers, each Agent and
Lenders shall be entitled to deem and treat Payee as the owner and holder of
this Note and the obligations evidenced hereby. Payee hereby agrees, by its
acceptance hereof, that before disposing of this Note or any part hereof it
will make a notation hereon of all principal payments previously made hereunder
and of the date to which interest hereon has been paid; provided, the failure
to make a notation of any payment made on this Note shall not


 


1

















 


limit
or otherwise affect the obligations of Borrowers hereunder with respect to
payments of principal of or interest on this Note.


 


This Note is subject to mandatory prepayment and to
prepayment at the option of Borrowers, each as provided in the Credit
Agreement.


 


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


 


Upon the occurrence of an Event of Default, the unpaid
balance of the principal amount of this Note, together with all accrued and
unpaid interest thereon, may become, or may be declared to be, due and payable
in the manner, upon the conditions and with the effect provided in the Credit
Agreement.


 


The terms of this Note are subject to amendment only
in the manner provided in the Credit Agreement.


 


No reference herein to the Credit Agreement and no provision
of this Note or the Credit Agreement shall alter or impair the obligations of
Borrowers, which are absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the
currency herein prescribed.


 


Borrowers promise,
on a joint and several basis, to pay all reasonable out-of-pocket costs and
expenses, including reasonable attorneys’ fees, all as provided in the Credit
Agreement, incurred in the collection and enforcement of this Note. Borrowers
and any endorsers of this Note hereby consent to renewals and extensions of
time at or after the maturity hereof, without notice, and hereby waive
diligence, presentment, protest, demand notice of every kind and, to the full
extent permitted by law, the right to plead any statute of limitations as a
defense to any demand hereunder.


 


2

















 


IN
WITNESS WHEREOF, each
Borrower has caused this Note to be duly executed and delivered by its officer
thereunto duly authorized as of the date and at the place first written above.


 


 


	
   

  	
  MR
  DEFAULT SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  E-DEFAULT
  SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STATEWIDE
  TAX AND TITLE SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STATEWIDE
  PUBLISHING SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


3

















 


TRANSACTIONS ON

REVOLVING LOAN NOTE


 


	
  Date

  	
   

  	
  Amount of Loan

  Made This Date

  	
   

  	
  Amount of Principal

  Paid This Date

  	
   

  	
  Outstanding Principal

  Balance This Date

  	
   

  	
  Notation

  Made By

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


4

















 


EXHIBIT B-3 TO


CREDIT AND
GUARANTY AGREEMENT


 


FORM OF SWING LINE NOTE


 


	
  $1,000,000

  	
   

  
	
  February     ,
  2006

  	
  New York, New
  York

  



 


FOR
VALUE RECEIVED, MR
DEFAULT SERVICES LLC, a Delaware limited liability company (“MR”),
E-DEFAULT SERVICES LLC, a Delaware limited liability company (“E-Default”),
STATEWIDE TAX AND TITLE SERVICES LLC, a Delaware limited liability company (“STT”),
and STATEWIDE PUBLISHING SERVICES LLC, a Delaware limited liability company (“Statewide
Publishing” and, together with MR, E-Default and STT on a joint and several
basis, “Borrowers”), promise to pay, on a joint and several basis, to
THE ROYAL BANK OF SCOTLAND PLC (“RBS plc”), as Swing Line Lender or its
registered assigns in such capacity (“Payee”), on or before the
Revolving Credit Commitment Termination Date (as defined in the Credit
Agreement referred to below), the lesser of (a) ONE MILLION DOLLARS ($1,000,000) and (b) the unpaid
principal amount of all advances made by Payee to Borrowers as Swing Line Loans
under the Credit Agreement referred to below.


 


Borrowers also
promise to pay, on a joint and several basis, interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates and at the
times which shall be determined in accordance with the provisions of that
certain Credit and Guaranty Agreement, dated as of February 24, 2006 (as
it may be amended, supplemented, restated or otherwise modified, the “Credit
Agreement”; the terms defined therein and not otherwise defined herein
being used herein as therein defined), by and among Borrowers, MR PROCESSING
HOLDING CORP., a Delaware corporation (“Holdings”), certain subsidiaries
of Borrowers, as Guarantors, the Lenders party thereto from time to time, RBS plc,
as Administrative Agent, Collateral Agent and Documentation Agent, and RBS
SECURITIES CORPORATION as Sole Lead Arranger, Sole Book Runner and Syndication
Agent.


 


This Note is the “Swing Line Note” and is issued pursuant to
and entitled to the benefits of the Credit Agreement, to which reference is
hereby made for a more complete statement of the terms and conditions under
which the Swing Line Loans evidenced hereby were made and are to be repaid.


 


All payments of
principal and interest in respect of this Note shall be made in lawful money of
the United States of America in same day funds at the Principal Office of Swing
Line Lender or at such other place as shall be designated in writing for such
purpose in accordance with the terms of the Credit Agreement.


 


This Note is
subject to mandatory prepayment and to prepayment at the option of Borrowers,
each as provided in the Credit Agreement.


 


THIS NOTE AND THE
RIGHTS AND OBLIGATIONS OF BORROWERS AND PAYEE HEREUNDER SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.


 


1

















 


Upon the
occurrence of an Event of Default, the unpaid balance of the principal amount
of this Note, together with all accrued and unpaid interest thereon, may
become, or may be declared to be, due and payable in the manner, upon the
conditions and with the effect provided in the Credit Agreement.


 


The terms of this
Note are subject to amendment only in the manner provided in the Credit
Agreement.


 


No reference
herein to the Credit Agreement and no provision of this Note or the Credit
Agreement shall alter or impair the obligations of Borrowers, which are
absolute and unconditional, to pay the principal of and interest on this Note
at the place, at the respective times, and in the currency herein prescribed.


 


Borrowers promise
to pay, on a joint and several basis, all reasonable out-of-pocket costs and
expenses, including reasonable attorneys’ fees, all as provided in the Credit
Agreement, incurred in the collection and enforcement of this Note. Borrowers
and any endorsers of this Note hereby consent to renewals and extensions of
time at or after the maturity hereof, without notice, and hereby waive
diligence, presentment, protest, demand notice of every kind and, to the full
extent permitted by law, the right to plead any statute of limitations as a
defense to any demand hereunder.


 


2

















 


IN WITNESS
WHEREOF, each Borrower has caused this Note to be duly executed and delivered
by its officer thereunto duly authorized as of the date and at the place first
written above.


 


 


	
   

  	
  MR
  DEFAULT SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  E-DEFAULT
  SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STATEWIDE
  TAX AND TITLE SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STATEWIDE
  PUBLISHING SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


3

















 


TRANSACTIONS ON 


SWING LINE LOAN NOTE


 


	
  Date

  	
   

  	
  Amount of Loan

  Made This Date

  	
   

  	
  Amount of Principal

  Paid This Date

  	
   

  	
  Outstanding Principal

  Balance This Date

  	
   

  	
  Notation

  Made By

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


4














 


EXHIBIT
C TO


CREDIT AND
GUARANTY AGREEMENT


 


COMPLIANCE CERTIFICATE


 


THE
UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS:


 


1.   I  am the Chief
Financial Officer of each of MR DEFAULT SERVICES LLC, a Delaware limited
liability company (“MR”), E-DEFAULT SERVICES LLC, a Delaware limited
liability company (“E-Default”), STATEWIDE TAX AND TITLE SERVICES LLC, a
Delaware limited liability company (“STT”), STATEWIDE PUBLISHING
SERVICES LLC, a Delaware limited liability company (“Statewide Publishing”
and, together with MR, E-Default and STT on a joint and several basis, “Borrowers”)
and MR PROCESSING HOLDING CORP., a Delaware corporation (“Holdings”).


 


I have reviewed
the terms of that certain Credit and Guaranty Agreement, dated as of February 24,
2006 (as it may be amended, supplemented, restated or otherwise modified, the “Credit
Agreement”; the terms defined therein and not otherwise defined herein
being used herein as therein defined), by and among Borrowers, Holdings,
certain subsidiaries of Borrowers, as Guarantors, the Lenders party thereto
from time to time, THE ROYAL BANK OF SCOTLAND PLC, as Administrative Agent,
Collateral Agent and Documentation Agent, and RBS SECURITIES CORPORATION as
Sole Lead Arranger, Sole Book Runner and Syndication Agent, and I have made, or
have caused to be made under my supervision, a review in reasonable detail of
the transactions and the financial condition of Holdings and its Subsidiaries
during the accounting period covered by the attached financial statements.


 


2.   The examination described in
paragraph 1 above did not disclose, and I have no knowledge of, the existence
of any condition or event which constitutes an Event of Default or Default
during or at the end of the accounting period covered by the attached financial
statements or as of the date of this Certificate, except as set forth in a
separate attachment, if any, to this Certificate, describing in reasonable detail,
the nature of the condition or event, the period during which it has existed
and the action which Borrowers have taken, are taking, or propose to take with
respect to each such condition or event.


 


1

















 


The foregoing certifications, together with the
computations set forth in the Annex A hereto and the financial statements
delivered with this Certificate in support hereof, are made and delivered [mm/dd/yy] pursuant to Section 5.01(d) of
the Credit Agreement.


 


	
   

  	
  MR
  DEFAULT SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  E-DEFAULT SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STATEWIDE
  TAX AND TITLE SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STATEWIDE
  PUBLISHING SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MR
  PROCESSING HOLDING CORP.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: Chief Financial
  Officer

  



 


2

















 


ANNEX A TO

COMPLIANCE CERTIFICATE


 


FOR THE FISCAL [QUARTER] [YEAR] ENDING [mm/dd/yy].


 


	
  1. Consolidated Adjusted EBITDA: (i) - (ii) =

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (i)

  	
  (a)

  	
   

  	
  Consolidated
  Net Income:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
   

  	
  Consolidated
  Interest Expense:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
   

  	
  provisions
  for Taxes based on income:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (d)

  	
   

  	
  total
  depreciation expense:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (e)

  	
   

  	
  total
  amortization expense:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (f)

  	
   

  	
  Transaction
  Costs incurred and paid in the period (to the extent expensed):

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (g)

  	
   

  	
  any
  financial advisory fees, accounting fees, legal fees and other similar
  advisory or consulting fees and other out-of-pocket costs and expenses of
  Holdings, any Borrower or any Borrower’s Subsidiaries in connection with the
  Acquisition, deducted from Consolidated Net Income for any period terminating
  within six months of the Closing Date and in an aggregate amount not to
  exceed $1,000,000:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (h)

  	
   

  	
  reimbursement
  of out-of-pocket expenses incurred by directors of any Loan Party or by
  Sponsor under any management agreement or arrangement with any Loan Party:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (i)

  	
   

  	
  any
  transaction costs incurred in connection with the issuance of Securities or
  any refinancing transaction and any fees and expenses related to any
  Permitted Acquisitions, in each case to the extent reducing Consolidated Net
  Income for such period:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (j)

  	
   

  	
  all
  one-time compensation charges, including without limitation, stay bonuses
  paid to existing management and severance costs, in an aggregate amount not
  to exceed $500,000 per Fiscal Year:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (k)

  	
   

  	
  all
  expenses and charges which are not subject to dispute and with respect to
  which a third party is contractually obligated to reimburse Holdings or any
  of its Subsidiaries in a later period:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (1)

  	
   

  	
  losses
  relating to Interest Rate Agreements or Currency Agreements:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (m)

  	
   

  	
  the
  proceeds of any claim by any Borrower on business interruption insurance held
  by it in an amount not to exceed the

  	
   

  	
   

  	
   

  



 


3

















 


	
   

  	
   

  	
   

  	
  earnings
  for such period that such proceeds were intended to replace(1):

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (n)

  	
   

  	
  other
  non-cash items reducing Consolidated Net Income(2):

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
  (a)

  	
   

  	
  all
  expenses and charges under clause (i)(k) above at the time reimbursed:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
   

  	
  gains
  relating to Interest Rate Agreements or Currency Agreements:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
   

  	
  other
  non-cash items increasing Consolidated Net Income(3):

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2. Consolidated Capital Expenditures:

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  
	
  3. Consolidated Cash Interest Expense:

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  
	
  4. Consolidated Current Assets:

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  
	
  5. Consolidated Current Liabilities:

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  
	
  6. Consolidated Excess Cash Flow:  (i) - (ii) =

  	
  $

  	
  [    ,    ,    ]

  
	
   

  
	
  (i)

  	
  (a)

  	
   

  	
  Consolidated
  Adjusted EBITDA:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
   

  	
  Consolidated
  Working Capital Adjustment:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
  (a)

  	
   

  	
  voluntary
  and scheduled repayments of Consolidated Total Debt(4):

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
   

  	
  Consolidated
  Capital Expenditures(5):

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
   

  	
  Consolidated
  Cash Interest Expense:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (d)

  	
   

  	
  provisions
  for current taxes based on

  	
   

  	
   

  	
   

  



 






	
  (1)

  	
  Provided
  that this clause (m) shall not apply for more than two consecutive
  Fiscal Quarters.

  
	
   

  	
   

  
	
  (2)

  	
  Excluding
  any such non-Cash item to the extent that it represents an accrual or reserve
  for potential Cash items in any future period or amortization of a prepaid
  Cash item that was paid in a prior period.

  
	
   

  	
   

  
	
  (3)

  	
  Excluding
  any such non-Cash item to the extent that it represents the reversal of an
  accrual or reserve for potential Cash item in any future period.

  
	
   

  	
   

  
	
  (4)

  	
  Excluding
  voluntary repayments of the Loans.

  
	
   

  	
   

  
	
  (5)

  	
  Net
  of any proceeds of any related financings with respect to such expenditures
  and any sales of assets used to finance such expenditures.

  



 


4

















 


	
   

  	
   

  	
   

  	
  income
  of Holdings and its Subsidiaries and payable in cash with respect to such
  period:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (e)

  	
   

  	
  any
  working capital adjustment or other adjustment to the purchase price payable
  by any Loan Party under the Acquisition Agreement after the Closing Date:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (f)

  	
   

  	
  Investments
  permitted under Sections 6.07(f) and 6.07(n) of the Credit Agreement:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (g)

  	
   

  	
  Restricted
  Junior Payments permitted under Sections 6.05(a) and 6.05(b):

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (h)

  	
   

  	
  an
  amount equal to the aggregate of all amounts added to Consolidated Adjusted
  EBITDA under clauses (f), (g), (h), (i), (j) and (1) of the
  definition of Consolidated Adjusted EBITDA in the Credit Agreement:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7. Consolidated Fixed Charges: (i) + (ii) + (iii) + (iv) =

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (i)

  	
  Consolidated
  Cash Interest Expense(6):

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
  payments
  of principal of the Term Loans under Section 2.24 of the Credit
  Agreement and scheduled payments of principal on other Consolidated Total
  Debt:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  
	
  (iii)

  	
  Consolidated
  Capital Expenditures(7):

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  
	
  (iv)

  	
  the
  portion of Taxes based on income actually paid in Cash in such period(8):

  	
   

  	
  $

  	
  [    ,    ,    ]

  



 






(6)                              Less any
payments made to obtain any Interest Rate Agreements and any expenses
reimbursed under the Agreement, in each case solely to the extent such payments
are included in Consolidated Cash Interest Expense.


 


(7)                              Net of (x) any
proceeds of any related financings with respect to such expenditures, (y) any
proceeds from an Excluded Issuance, any Net Asset Sale Proceeds permitted to be
reinvested under Section 2.27 of the Credit Agreement or any Net
Insurance/Condemnation proceeds permitted to be reinvested under Section 2.27
of the Credit Agreement, or (z) any capital expenditures made as a tenant
in leasehold improvements to the extent reimbursed by the landlord.


 


(8)                              Provided that,
solely for purposes of calculation of Consolidated Fixed Charges for any period
including the Fiscal Quarters ended September 30, 2005 and December 31,
2005 and ending March 31, 2006, each of Consolidated Capital Expenditures
and the portion of Taxes based on income actually paid in Cash for such Fiscal
Quarters shall equal the amount or, in the case of the Fiscal Quarter ending March 31,
2006, be calculated in the manner set forth on Schedule 1.01 to the Agreement;
provided further that, solely for purposes of calculation of Consolidated Fixed
Charges for any period including the Fiscal Quarters ended September 30,
2005 and December 31, 2005, each of the amounts calculated in accordance
with clauses (i), (ii) and (iv) above shall exclude such Fiscal
Quarters and instead be calculated by annualizing the actual aggregate amounts
calculated for the other remaining Fiscal Quarter occurring in such period (for
example, for the twelve-month period ended June 30, 2006, Consolidated
Cash Interest Expense shall equal the aggregate amount of Consolidated Cash
Interest Expense for the two Fiscal Quarters ended on such date multiplied by
2, and for the twelve-month period ended September 30, 2006, Consolidated
Cash Interest Expense shall equal the aggregate amount of Consolidated Cash
Interest Expense for the three Fiscal Quarters ended on such date multiplied by
4/3).


 


5

















 


	
  8.
  Consolidated Interest Expense:

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  
	
  9. Consolidated Net Income:  (i) - (ii) =

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (i)

  	
  the
  net income (or loss) of Holdings and its Subsidiaries on a consolidated basis
  for such period taken as a single accounting period determined in conformity
  with GAAP:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
  (a)

  	
   

  	
  the
  income (or loss) of any Person (other than a Subsidiary of Holdings) in which
  any other Person (other than Holdings or any of its Subsidiaries) has a joint
  interest, except to the extent of the amount of dividends or other
  distributions actually paid to Holdings or any of its Subsidiaries by such
  Person:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
   

  	
  the
  income (or loss) of any Person accrued prior to the date it becomes a
  Subsidiary of Holdings or is merged into or consolidated with Holdings or any
  of its Subsidiaries or that Person’s assets are acquired by Holdings  or any of its Subsidiaries:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
   

  	
  the
  income of any Subsidiary of Holdings to the extent that the declaration or
  payment of dividends or similar distributions by that Subsidiary of that
  income is not at the time permitted by operation of the terms of its charter
  or any agreement, instrument, judgment, decree, order, statute, rule or
  governmental regulation  applicable to that Subsidiary:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (d)

  	
   

  	
  any
  after-tax gains or losses attributable to Asset Sales, discontinued
  operations or returned surplus assets of any Pension Plan:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (e)

  	
   

  	
  to
  the extent not included in clauses (ii)(a) through (d) above, any net
  extraordinary gains or net extraordinary losses:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.
  Consolidated Total Debt:

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  
	
  11. Consolidated Senior Secured Debt:

  	
  $

  	
  [    ,    ,    ]

  



 


6

















 


	
  12. Consolidated
  Working Capital: (i) - (ii) =

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (i)

  	
  Consolidated
  Current Assets:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
  Consolidated
  Current Liabilities:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13. Consolidated Working Capital Adjustment:
  (i) - (ii) =

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (i)

  	
  Consolidated
  Working Capital as of the beginning of such period:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
  Consolidated
  Working Capital as of the end of such period:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.
  Fixed Charge Coverage Ratio: (i)/(ii) =

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (i)

  	
  Consolidated
  Adjusted EBITDA for the four-Fiscal Quarter Period then ended:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
  Consolidated
  Fixed Charges for such four-Fiscal Quarter Period:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Actual:

  	
   

  	
  .   :1.00

  
	
   

  	
   

  	
   

  	
   

  	
  Required:

  	
   

  	
  .   :1.00

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  15.
  Interest Coverage Ratio: (i)/(ii) =

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (i)

  	
  Consolidated
  Adjusted EBITDA for the four-Fiscal Quarter Period then ended:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
  Consolidated
  Cash Interest Expense for such four-Fiscal Quarter Period:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Actual:

  	
   

  	
  .   :1.00

  
	
   

  	
   

  	
   

  	
   

  	
  Required:

  	
   

  	
  .   :1.00

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  16.
  Total Leverage Ratio: (i)/(ii) =

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (i)

  	
  Consolidated
  Total Debt

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
  Consolidated
  Adjusted EBITDA for the four-Fiscal Quarter period then ended(9):

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Actual:

  	
   

  	
  .   :1.00

  
	
   

  	
   

  	
   

  	
   

  	
  Required:

  	
   

  	
  .   :1.00

  



 






(9)                              Less any
payments made to obtain any Interest Rate Agreements and any expenses
reimbursed under the Agreement, in each case solely to the extent such payments
are included in Consolidated Cash Interest Expense.


 


7

















 


	
  17.
  Senior Leverage Ratio: (i)/(ii) =

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (i)

  	
  Consolidated
  Senior Secured Debt

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
  Consolidated
  Adjusted EBITDA for the four-Fiscal Quarter period then ended:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Actual:

  	
   

  	
  .   :1.00

  
	
   

  	
   

  	
   

  	
   

  	
  Required:

  	
   

  	
  .   :1.00

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  18. Maximum Consolidated Capital Expenditures

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Actual:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  	
  Permitted:

  	
   

  	
  $

  	
  [    ,    ,    ]

  
	
   

  	
   

  	
   

  	
   

  
	
  plus, an amount equal
  to 50% of the excess, if any (without giving effect to any adjustment in
  accordance herewith) over the actual amount of Consolidated Capital
  Expenditures for the previous Fiscal Year:

  	
   

  	
  $

  	
  [    ,    ,    ]

  



 


8

















 


EXHIBIT D TO


CREDIT AND GUARANTY AGREEMENT


 


OPINIONS OF
COUNSEL


 


See Tab 14


 


1














 


KIRKLAND &
ELLIS LLP


AND
AFFILIATED PARTNERSHIPS


 


Citigroup
Center


153 East
53rd Street


New York,
New York 10022-4611


 


	
   

  	
  Facsimile:

  
	
   

  	
  (212) 446-4800

  	
   

  	
  (212) 446-4900

  
	
   

  
	
  www.kirkland.com

  
				



 


February 9, 2007


 


To
each of the Agents


and
each of the Lenders party to the


Credit
Agreement referred to below:


 


Ladies
and Gentlemen:


 


We are issuing this opinion letter in our capacity
as special legal counsel to MR Default Services LLC, a Delaware limited
liability company (“MR”), E-Default Services LLC, a Delaware limited
liability company (“E-Default”), Statewide Tax and Title Services LLC, a
Delaware limited liability company (“STT”), Statewide Publishing
Services LLC, a Delaware limited liability company (“Statewide Publishing”
and, together with MR, E-Default, and SIT, collectively the “Borrowers”
and each a “Borrower”) and MR Processing Holding Corp., a Delaware
corporation (“Holdings” and, together with the Borrowers, the “Credit
Parties” and each a “Credit Party”) in response to the requirement
in Section 3.01(1) of the Credit and Guaranty Agreement (the “Credit
Agreement”), dated as of the date hereof, by and among the Credit Parties,
the Lenders party thereto from time to time, RBS Securities Corporation, as
Sole Lead Arranger, Sole Book Runner and Syndication Agent (in such capacity,
the “Syndication Agent”), and The Royal Bank of Scotland plc (“RBS”),
as Administrative Agent, Collateral Agent and Documentation Agent (in such
respective capacities, the “Administrative Agent”, “Collateral Agent”,
and “Documentation Agent”, and together with the Syndication Agent,
collectively the “Agents,” and each, an “Agent” and, together
with the Lenders being herein referred to as “you”).


 


We have reviewed executed counterparts of the Credit Agreement and each
of the other documents and instruments identified on the Schedule of Other
Loan Documents attached hereto (the “Other Loan Documents”), each in
the form executed and delivered on this date. We have also reviewed copies of
the UCC Form-1 Financing Statements (attached hereto) authorized this date
naming, respectively, each Credit Party, as debtor, and the Collateral Agent,
as secured party, which are to be filed with the Delaware Secretary of State
(the “Delaware Financing Statements”).


 


	
  Chicago

  	
  Hong Kong

  	
  London

  	
  Los Angeles

  	
  Munich

  	
  San Francisco

  	
  Washington, D.C.

  





















 


For purposes hereof, the Credit Agreement and the Other Loan Documents,
each in the form reviewed by us on the date hereof for purposes of this opinion
letter, are called the “Loan Documents.” References in this opinion
letter to the “New York UCC” mean the Uniform Commercial Code as in
effect on the date hereof in the State of New York. Unless otherwise indicated,
capitalized terms used herein but not otherwise defined herein have the
respective meanings set forth in the Credit Agreement.


 


Subject to the assumptions, qualifications, exclusions and other
limitations which are identified in this letter and in the schedules attached
to this letter, we advise you, and with respect to each legal issue addressed
in the opinion paragraphs of this letter, it is our opinion, that:


 


1.                                      Holdings is a
corporation existing and in good standing under the Delaware General
Corporation Law (the “DGCL”). Each of MR, E-Default, STT, and Statewide
Publishing is a limited liability company existing and in good standing under
the Delaware Limited Liability Company Act (the “DLLCA”).


 


2.                                      Each Credit
Party has the corporate power or limited liability company power, as
applicable, to execute and deliver each Loan Document to which it is a party
and perform its obligations under each Loan Document to which it is a party.


 


3.                                      The board of
directors or board of managers, as applicable, of each Credit Party, has duly
authorized the execution and delivery of the Loan Documents to which it is a
party and the performance of its respective obligations under the Loan
Documents to which it is a party.


 


4.                                      Each Credit
Party has duly executed and delivered under the DGCL or the DLLCA, as
applicable, the Loan Documents to which it is a party.


 


5.                                      Each of the
Loan Documents is a valid and binding obligation of each Credit Party that is a
party thereto and is enforceable against each such Credit Party in accordance
with its terms.


 


6.                                      The execution
and delivery by each Credit Party of the Loan Documents to which it is a party
and the performance by such Credit Party of its obligations under the Loan
Documents to which it is a party will not (i) violate any existing
provisions of such Credit Party’s Certificate of Incorporation or Bylaws or
Certificate of Formation or Limited


 


2

















 


Liability Company Agreement, as applicable, (ii) constitute a
violation by such Credit Party of the statute under which it is organized or
any applicable provision of existing New York or United States federal
statutory law or governmental regulation applicable to such Credit Party, in
each case to the extent covered by this letter, (iii) result in the
creation or imposition of (or the obligation to create or impose) any Lien on
the assets of such Credit Party pursuant to any contract or agreement set forth
on the Schedule of Specified Agreements attached hereto (the “Specified
Agreements”), other than Liens created pursuant to the Loan Documents or (iv) violate
the terms or provisions of any Specified Agreements (provided that in each case
we express no opinion as to compliance with any financial covenant or test or
the effect of any cross-default provision in any such agreement).


 


7.                                      Assuming
application of the proceeds of the Loans as contemplated by the Credit
Agreement, the borrowings by the Borrowers under the Credit Agreement will not,
in and of themselves, result in a violation of Regulation U or Regulation X of
the Board of Governors of the Federal Reserve System.


 


8.                                      None of the Credit
Parties is presently required to obtain any consent, approval, authorization or
order of, or make any filing or registration with any United States federal or
New York State court or governmental body, authority or agency in order to
obtain the right (a) to execute and deliver the Loan Documents to which it
is a party, (b) to pledge and grant or convey security interests in and
liens upon its assets as collateral as required under the Loan Documents to
which it is a party or (c) to perform its obligations under the Loan
Documents to which it is party, except for: (i) those obtained or made on
or prior to the date hereof, (ii) any actions or filings necessary to
perfect the liens and security interests granted under the Loan Documents and
to release existing liens, (iii) actions or filings required in connection
with ordinary course conduct by the Credit Parties of their respective
businesses and ownership or operation by the Credit Parties of their respective
assets and (iv) actions and filings which might be required under any of
the laws, regulations or governmental requirements set forth on Schedule C
hereto (as to which we express no opinion).


 


9.                                      The Pledge and
Security Agreement and the IP Security Agreement each create valid security
interests in favor of the Collateral Agent, for the benefit of the Secured
Parties, in each Credit Party’s collateral described therein with respect to
which such Credit Party has rights or has the power to transfer rights (the “Collateral”)
and which constitutes


 


3

















 


property in which a security interest can be granted
under Article 9 of the New York UCC. Such Collateral is referred to herein
as the “Code Collateral.”


 


10.                               (a)           Under the New York UCC, the
perfection of the Collateral Agent’s security interests in the Code Collateral (i) will,
as a general matter and except as otherwise provided in Sections 9-301 through
9-307 of the New York UCC, be governed by the local law of the jurisdiction in
which the applicable grantor is located (which in the case of (A) a
registered organization (as defined in the New York UCC) such as a corporation
that is organized under the laws of a State (as defined in the New York UCC) is
the State under whose laws such registered organization is organized, (B) an
organization that is not a registered organization, at its chief executive
office or (C) an organization whose chief executive office is located in a
jurisdiction whose law does not generally require information concerning the
existence of a nonpossessory security interest to be made generally available
in a filing, recording, or registration system, the District of Columbia)), (ii) will,
in the case of a possessory security interest, generally be governed by the
local law of the jurisdiction in which the collateral is located, (iii) which
constitutes certificated securities will be governed by the local law of the
jurisdiction in which the security certificates are located (other than
perfection by filing, which is governed by the local law of the jurisdiction in
which the applicable grantor is located) as specified in Section 9-305(a)(l) of
the New York UCC, (iv) which constitutes uncertificated securities will be
governed by the local law of the issuer’s jurisdiction as specified in Section 8-110(d) of
the New York UCC pursuant to Section 9-305(a)(2) of the New York UCC
(other than perfection by filing, which is governed by the local law of the
jurisdiction in which the applicable grantor is located), (v) which
constitutes a security entitlement or a securities account will be governed by
the local law of the securities intermediary’s jurisdiction as specified in Section 8-110(e) of
the New York UCC pursuant to Section 9-305(a)(3) of the New York UCC
(other than perfection by filing, which is governed by the local law of the
jurisdiction in which the applicable grantor is located), (vi) which
constitutes goods covered by a certificate of title will be governed by the
local law of the jurisdiction under whose certificate of title the goods are
covered as specified in Section 9-303 of the New York UCC, (vii) which
constitutes deposit accounts will be governed by the local law of the
depositary bank’s jurisdiction as specified in Section 9-304 of the New
York UCC, (viii) which constitutes letter-of-credit rights will generally
be governed by the local law of the issuer’s or nominated person’s jurisdiction
as specified in Section 9-306 of the New York UCC, and (ix) which


 


4

















 


constitutes other categories will be governed by the
laws of the jurisdiction or jurisdictions specified in Sections 9-301 through
9-307 of the New York UCC.


 


(b)           Under
the principles described in the preceding subparagraph (a)(i) of this
paragraph 10 and, with respect to perfection by filing, in the preceding
subparagraphs (a)(iii), (a)(iv) and (a)(v) of this paragraph 10, the
perfection of the Collateral Agent’s security interests in the Code Collateral
of the Credit Parties as to which such subparagraphs apply (the “Filing Code
Collateral”) is governed by the laws of the state of Delaware. We have
reviewed the provisions of the Uniform Commercial Code as in effect on the date
hereof in the State of Delaware as set forth in the Commerce Clearing House, Inc.
Secured Transactions Guide as supplemented through January 24, 2007 (the “Guide”).
Based solely on such review, we are of the opinion that when the Delaware
Financing Statements are duly filed with the Delaware Secretary of State, then
with respect to each Credit Party, the security interests granted to the
Collateral Agent under the Pledge and Security Agreement and the IP Security
Agreement in the Filing Code Collateral of such Credit Party will be perfected
to the extent such security interests can be perfected by the filing of Uniform
Commercial Code financing statements in such jurisdiction.


 


(c)           Upon
the delivery of the certificates representing the shares of stock and
membership interests identified on the Schedule of Pledged Securities
attached hereto (in the case of such membership interests, to the extent they
constitute “securities” under the applicable Uniform Commercial Code, as to
which we express no opinion) (the “Pledged Securities”) to the
Collateral Agent in the State of New York, endorsed in blank or to the Collateral
Agent, and the retention by the Collateral Agent of possession of such
certificates in such state, the security interest in the Pledged Securities
represented by such certificates and granted under the Pledge and Security
Agreement in favor of the Collateral Agent will be perfected under the New York
UCC. Assuming that the Collateral Agent has no notice of any adverse claim (as
such term is used in the New York UCC), such security interest will have been
acquired free of any adverse claim.


 


(d)           Upon
the filing and recordation of the IP Security Agreement in the United States
Copyright Office (“Copyright Office”) and the payment of all filing and
recordation fees associated therewith, the security interests created by the IP
Security Agreement in the United States registered copyrights and applications
therefor which are specifically identified in the IP Security Agreement will be
perfected to the extent the same may be


 


5

















 


perfected by such filing and recordation. We note
for your information that filing with Copyright Office alone may not be
sufficient to perfect fully the security interests in such Collateral, and that
under the applicable Uniform Commercial Code and federal law, the filing of
appropriate Uniform Commercial Code financing statements may also be required
in respect of such Collateral under the applicable Uniform Commercial Code.


 


(e)           Upon
execution and delivery of the Deposit Account Control Agreements by the
Collateral Agent, the Bank and each of the Credit Parties, the Deposit Account
Control Agreements are effective to perfect the Collateral Agent’s security
interest in each Account listed on Exhibit A thereto under the New York
UCC, assuming that (a) each Account is a “deposit account” as defined in Section 9-102
of the New York UCC, (b) for purposes of the New York UCC, the
jurisdiction of the Bank is the State of New York and (c) Bank is the
depository bank with respect to such account.


 


(f)            Upon
the delivery of the Intercompany Note to the Collateral Agent in the State of
New York, endorsed in blank or to the Collateral Agent, and the retention by
the Collateral Agent of possession of such note in such state, the security
interest in such note granted under the Pledge and Security Agreement will be
perfected under the New York UCC.


 


11.                            No Credit Party
is an “investment company” required to be registered as such within the meaning
of the Investment Company Act of 1940, as amended.


 


12.                            We do not have
actual knowledge that any provision in any Court Order (as defined below) would
be breached or otherwise violated by any Credit Party’s execution or delivery
of the Loan Documents to which it is a party or by any Credit Party’s
performance of any of its agreements in the Loan Documents to which it is a
party. For purposes of this letter, the term “Court Order” means a court
or administrative order, writ, judgment or decree that names any of the Credit
Parties and is specifically directed to any of the Credit Parties or their
property. For purposes of this letter, we have not undertaken any investigation
to identify Court Orders to which any Credit Party may be subject, other than
to review the responses given in the support certificate referenced in (iii) of
the second sentence of the immediately following paragraph.


 


Each opinion in this letter is subject to the General Qualifications
that are recited in Schedule A to this letter to the extent relevant to
that opinion. In preparing this letter, we have relied without any independent
verification upon the assumptions recited in Schedule B to this


 


6

















 


letter and upon: (i) information contained in certificates
obtained from governmental authorities; (ii) factual information
represented in the Credit Agreement and the Other Loan Documents; (iii) factual
information provided to us in a support certificate executed by the Credit
Parties; and (iv) factual information we have obtained from such other
sources as we have deemed reasonable. We have examined the originals or copies
certified to our satisfaction of such other corporate records of the Credit
Parties as we deem necessary for or relevant to this letter and certificates of
public officials and other officers of the Credit Parties, and we have assumed
without investigation that there has been no relevant change or development
between the dates as of which the information cited in the preceding sentence
was given and the date of this letter and that the information upon which we
have relied is accurate and does not omit disclosures necessary to prevent such
information from being misleading.


 


While we have not conducted any independent investigation to determine
facts upon which our opinions are based or to obtain information about which
this letter advises you, we confirm that we do not have any actual knowledge
which has caused us to conclude that our reliance and assumptions cited in the
preceding paragraph are unwarranted or that any information supplied to us in
connection with the preparation of this letter is wrong. The term “actual
knowledge” whenever it is used in this letter with respect to our firm means
conscious awareness at the time this letter is delivered on the date it bears
by the following Kirkland & Ellis lawyers who have had significant
involvement with negotiation or preparation of the Loan Documents and the due
diligence associated therewith (herein called “our Designated Transaction
Lawyers”): Jeffrey J. Seifman, Michael D. Paley, Louis R. Hernandez, Neal
J. Reenan, Andrew Lehman and Marisa Murillo.


 


Our advice on every legal issue addressed in this letter is based
exclusively on the internal laws of New York or the federal law of the United
States, except that (i) the opinions in paragraphs 1 through 4, 6(i) and
6(ii) are also based on the DGCL or the DLLCA, as applicable, and are
rendered only with respect to the Credit Parties, and (ii) our opinions in
paragraph 10 with respect to the laws of the State of Delaware are based
exclusively upon our review of the Guide and on the assumption that such
statutory provisions are given the same interpretation and application in such
states as the corresponding provisions of the New York UCC are given in New
York. For purposes of each opinion in paragraph 1, we have relied exclusively
upon certificates issued by a governmental authority in each relevant
jurisdiction and such opinions are not intended to provide any conclusion or
assurance beyond that conveyed by such certificates. We advise you that issues
addressed by this letter may be governed in whole or in part by other laws, but
we express no opinion as to whether any relevant difference exists


 


7

















 


between
the laws upon which our opinions are based and any other laws which may
actually govern. Our opinions do not cover or otherwise address any law or
legal issue which is identified in the attached Schedule C or any
provision in the Credit Agreement or any of the Other Loan Documents of any
type identified in Schedule D. Provisions in the Loan Documents which
are not excluded by Schedule D or any other part of this letter or its
attachments are called the “Relevant Agreement Terms.”


 


Our advice on each legal issue addressed in this letter represents our
opinion as to how that issue would be resolved were it to be considered by the
highest court of the jurisdiction upon whose law our opinion on that issue is
based. The manner in which any particular issue would be treated in any actual
court case would depend in part on facts and circumstances particular to the
case, and this letter is not intended to guarantee the outcome of any legal
dispute which may arise in the future. It is possible that some Relevant
Agreement Terms of a remedial nature contained in the Loan Documents may not
prove enforceable for reasons other than those cited in this letter should an
actual enforcement action be brought, but (subject to all the exceptions,
qualifications, exclusions and other limitations contained in this letter) such
unenforceability would not in our opinion prevent you from realizing the
principal benefits purported to be provided by the Relevant Agreement Terms of
a remedial nature contained in the Loan Documents, as the case may be.


 


This opinion
letter speaks as of the time of its delivery on the date it bears. We do not
assume any obligation to provide you with any subsequent opinion or advice by
reason of any fact about which our Designated Transaction Lawyers did not have
actual knowledge at that time, by reason of any change subsequent to that time
in any law covered by any of our opinions, or for any other reason. The
attached schedules are an integral part of this letter, and any term defined in
this letter or any schedule has that defined meaning wherever it is used in
this letter or in any schedule to this letter.


 


8

















 


You may rely upon this letter only for the purpose served by the
satisfaction of the condition precedent to the initial financing under Section 3.01(1) of
the Credit Agreement. Without our written consent: (i) subject to the
immediately succeeding sentence, no person other than you may rely on this
letter for any purpose; (ii) this letter may not be cited or quoted in any
financial statement, prospectus, private placement memorandum or other similar
document; (iii) this letter may not be cited or quoted in any other
document or communication which might encourage reliance upon this letter by
any person or for any purpose excluded by the restrictions in this paragraph;
and (iv) copies of this letter may not be furnished to anyone for purposes
of encouraging such reliance. Notwithstanding the foregoing, persons who are or
who subsequently become Lenders (or participants in accordance with the terms
of the Credit Agreement) may rely on this letter as of the time of its delivery
on the date hereof as if this letter were addressed to them.


 


	
   

  	
  Sincerely,

  
	
   

  	
  /s/
  Kirkland & Ellis LLP

  
	
   

  	
  Kirkland &
  Ellis LLP

  



 


9














 


Schedule A


 


General
Qualifications


 


All of our opinions (“our opinions”) in the
letter to which this Schedule is attached (“our letter”) are subject to each of
the qualifications set forth in this Schedule.


 


1.                                     Bankruptcy and
Insolvency Exception. Each of our opinions in opinion paragraphs 5, 9 and
10 in our letter as to the validity, binding effect or enforceability of any of
the Loan Documents or to the availability of injunctive relief and other
equitable remedies (“Specified Opinions”) is subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium and other
similar laws relating to or affecting creditors’ rights. This exception
includes:


 


(a)                                 the Federal
Bankruptcy Code and thus comprehends, among others, matters of turn-over,
automatic stay, avoiding powers, fraudulent transfer, preference, discharge,
conversion of a non-recourse obligation into a recourse claim, limitations on ipso facto and anti-assignment clauses and
the coverage of pre-petition security agreements applicable to property
acquired after a petition is filed;


 


(b)                                all other
Federal and state bankruptcy, insolvency, reorganization, receivership,
moratorium, arrangement and assignment for the benefit of creditors laws that
affect the rights of creditors generally or that have reference to or affect
only creditors of specific types of debtors;


 


(c)           state fraudulent transfer and conveyance laws: and


 


(d)                                judicially
developed doctrines in this area, such as substantive consolidation of entities
and equitable subordination.


 


2.                                     Equitable
Principles Limitation. Each of our Specified Opinions is subject
to the effect of general principles of equity, whether applied by a court of
law or equity. This limitation includes principles:


 


(a)                                  governing the
availability of specific performance, injunctive relief or other equitable
remedies, which generally place the award of such remedies, subject to certain
guidelines, in the discretion of the court to which application for such relief
is made;


 


(b)                                 affording
equitable defenses (e.g., waiver, laches and estoppel) against a party seeking
enforcement;


 


(c)                                  requiring good
faith and fair dealing in the performance and enforcement of a contract by the
party seeking its enforcement;


 


(d)                                 requiring
reasonableness in the performance and enforcement of an agreement by the party
seeking enforcement of the contract;


 


A-1

















 


(e)                                 requiring
consideration of the materiality of (i) a breach and (ii) the
consequences of the breach to the party seeking enforcement;


 


(f)                                   requiring
consideration of the impracticability or impossibility of performance at the
time of attempted enforcement; and


 


(g)                                affording
defenses based upon the unconscionability of the enforcing party’s conduct
after the parties have entered into the contract.


 


3.             Other Common
Qualifications. Each of our Specified Opinions is subject to the
effect of  rules of
law that:


 


(a)                                 limit or affect
the enforcement of provisions of a contract that purport to waive, or to
require waiver of, the obligations of good faith, fair dealing, diligence and
reasonableness;


 


(b)                                provide that
forum selection clauses in contracts are not necessarily binding on the court(s) in
the forum selected;


 


(c)                                 limit the
availability of a remedy under certain circumstances where another remedy has
been elected;


 


(d)                                provide a time
limitation after which a remedy may not be enforced;


 


(e)                                 limit the right
of a creditor to use force or cause a breach of the peace in enforcing rights;


 


(f)                                   relate to the
sale or disposition of collateral or the requirements of a commercially
reasonable sale;


 


(g)                                limit the
enforceability of provisions releasing, exculpating or exempting a party from,
or requiring indemnification of a party for, liability for its own action or
inaction, to the extent the action or inaction involves negligence,
recklessness, willful misconduct, unlawful conduct, violation of public policy
or litigation against another party determined adversely to such party;


 


(h)                                 may, where less
than all of a contract may be unenforceable, limit the enforceability of the
balance of the contract to circumstances in which the unenforceable portion is
not an essential part of the agreed exchange;


 


(i)                                     govern and
afford judicial discretion regarding the determination of damages and
entitlement to attorneys’ fees and other costs;


 


(j)                                     may permit a
party that has materially failed to render or offer performance required by the
contract to cure that failure unless (i) permitting a cure would
unreasonably hinder the aggrieved party from making substitute arrangements for
performance or (ii) it was important in the circumstances to the aggrieved
party that performance occur by the date stated in the contract;


 


A-2

















 


(k)                                 limit the
enforceability of requirements in the Loan Documents that provisions therein
may only be waived or amended in writing, to the extent that an oral agreement
or an implied agreement by trade practice or course of conduct has been created
modifying any such provision; and


 


(1)                                 may render
guaranties or other similar instruments or agreements unenforceable under
circumstances where your actions, failures to act or waivers, amendments or
replacement of the Loan Documents (i) so radically change the essential
nature of the terms and conditions of the guaranteed obligations and the
related transactions that, in effect, a new relationship has arisen between you
and the Credit Parties which is substantially and materially different from
that presently contemplated by the Loan Documents, or (ii) release the
primary obligor or (iii) impair the guarantor’s recourse against the
primary obligor.


 


4.                                       Referenced
Provision Qualification. Each opinion regarding the validity,
binding effect or enforceability of a provision (the “First Provision”)
in any of the Loan Documents requiring any Credit Party to perform its
obligations under, or to cause any other person to perform its obligations
under, any other provision (a “Second Provision”) of any Loan Document
or stating that any action will be taken as provided in or in accordance with
such Second Provision are subject to the same qualifications as the
corresponding opinion in this letter relating to the validity, binding effect
and enforceability of such Second Provision.


 


5.                                       Collateral Qualifications. Terms used
herein which are defined in the New York UCC or any other applicable Uniform
Commercial Code have the meanings for purposes hereof given to them therein.
The opinions and advice contained in our letter are subject to the following advice:


 


(a)                                  rights of
debtors and obligors and duties of secured parties referred to in Sections
1-102(3) and 9-602 of the New York UCC (and the corresponding sections of
any other applicable Uniform Commercial Code) may not be waived, released,
varied or disclaimed by agreement prior to a default, and our opinions
regarding any such waivers, releases, variations and disclaimers are limited
accordingly;


 


(b)                                 our opinions
regarding the creation and perfection of security interests are subject to the
effect of (i) the limitations on the existence and perfection of security
interests in proceeds resulting from the operation of Section 9-315 of any
applicable Uniform Commercial Code; (ii) the limitations in favor of
buyers, licensees and lessees imposed by Sections 9-320, 9-321 and 9-323 of any
applicable Uniform Commercial Code; (iii) the limitations with respect to
securities imposed by Section 8-303 of any applicable Uniform Commercial
Code; (iv) other rights of persons in possession of money, instruments and
proceeds constituting certificated or uncertificated securities; and (v) section
547 of the Bankruptcy Code with respect to preferential transfers and section
552 of the Bankruptcy Code with respect to any Collateral acquired by any of
the Credit Parties subsequent to the commencement of a case against or by any
of the Credit Parties under the Bankruptcy Code;


 


A-3

















 


(c)                                  Article 9
of each applicable Uniform Commercial Code requires the filing of continuation
statements within specified periods in order to maintain the effectiveness of
the filings referred to in our letter;


 


(d)                                 additional
filings or actions may be necessary if any Credit Party changes its name,
identity or corporate structure or the jurisdiction in which it is organized or
in which any Collateral referred to in opinion 10(c) is located;


 


(e)                                  except as
specifically set forth in paragraph 10 of our letter, we express no opinion
regarding the perfection of any lien or security interest in any property
(whether real, personal or mixed, and whether such perfection be accomplished
or purport to be accomplished by filing, by possession, by control or
otherwise) or regarding the continued perfection of any possessory security
interests in any Collateral (or other security interest the perfection of which
depends upon the location of such Collateral) upon or following the removal of
such Collateral to another jurisdiction; except as specifically set forth in
paragraph 10 of our letter, we express no opinion regarding the perfection of
any security interests in deposit accounts, money or letter of credit rights or
regarding the perfection of any possessory security interests in Collateral in
possession of a person other than the secured party; we express no opinion with
respect to the perfection by filing of any security interests with respect to
Collateral as to which the filing of a Uniform Commercial Code financing
statement has not been authorized by the debtor either in an authenticated
record pursuant to Section 9-509(a) or pursuant to Section 9-509(b) or
(c) of the New York UCC; and except as expressly set forth in opinion
paragraph 10(c) (regarding certain security interests being acquired free
of adverse claims), we express no opinion regarding the priority of any lien or
security interest;


 


(f)                                    the assignment
of or creation of a security interest in any contract, lease, license, permit
or other general intangible or account, chattel paper or promissory note may
require the approval of the issuer thereof or the other parties thereto, except
to the extent that restrictions on the creation, attachment, perfection or
enforcement of a security interest therein are unenforceable under Sections
9-406 and 9-408 of the New York UCC;


 


(g)                                 we express no
opinion with respect to any self-help remedies with respect to Collateral to
the extent they vary from those available under the New York UCC or other
applicable Uniform Commercial Code or with respect to any remedies otherwise
inconsistent with the New York UCC (to the extent that the New York UCC is
applicable thereto) or other applicable law (including, without limitation, any
other applicable Uniform Commercial Code);


 


(h)                                 we express no
opinion with respect to (1) the creation, perfection or enforceability of
agricultural liens or (2) the creation, perfection or enforceability of
security interests in: property in which it is illegal or violative of
governmental rules or regulations to grant a security interest (such as,
for example, governmental permits and licenses); general intangibles which
terminate or become terminable


 


A-4

















 


if a security interest is granted therein (except to the extent that
restrictions on the creation, attachment, perfection or enforcement of a
security interest therein are unenforceable under Section 9-406 and 9-408
of the New York UCC); property subject to negative pledge clauses of which you
have knowledge; vehicles, ships, vessels, barges, boats, railroad cars,
locomotives and other rolling stock, aircraft, aircraft engines, propellers and
related parts, and other property for which a state or federal statute or
treaty (including without limitation any applicable Uniform Commercial Code)
provides for registration or certification of title or specifies a place of
filing different from that specified in Section 9-501 of any applicable
Uniform Commercial Code (other than our opinions in opinion paragraph 10(d));
commercial tort claims; crops, farm products, equipment used in farming
operations and accounts or general intangibles arising from or relating to the
sale of farm products by a farmer; timber to be cut; fixtures; “as-extracted
collateral” (including without limitation oil, gas or other minerals and
accounts arising out of the sale at the wellhead or minehead of oil, gas or
other minerals); consumer goods; property identified to a contract with, or in
the possession of, the United States of America or any state, county, city,
municipality or other governmental body or agency; goods for which a negotiable
document of title has been issued; and (other than to the extent covered by our
opinions in opinion paragraphs 10(b) and 10(d)) copyrights, patents and
trademarks, other literary property rights, service marks, know-how, processes,
trade secrets, undocumented computer software, unrecorded and unwritten data
and information, and rights and licenses thereunder;


 


(i)                                     we note that
your remedies under the Pledge and Security Agreement with regard to the sale
or after the sale of any securities subject to any security interest are
subject to compliance with state and federal securities laws;


 


(j)                                     we express no
opinion regarding the enforceability of any security interest in any accounts,
chattel paper, documents, instruments or general intangibles with respect to
which the account debtor or obligor is the United States of America, any state,
county, city, municipality or other governmental body, or any department,
agency or instrumentality thereof;


 


(k)                                  we express no
opinion with respect to the enforceability of any provision of any Loan
Document which purports to authorize you to file financing statements under
circumstances not authorized under the applicable Uniform Commercial Code;


 


(l)                                     we express no
opinion regarding the enforceability of any provision of any Loan Document
which purports to authorize you to purchase at a private sale Collateral which
is not subject to widely distributed standard price quotations or sold on a
recognized market;


 


(m)                               we express no
opinion regarding any Credit Party’s rights in or title to any of its
properties including, without limitation, any of the Collateral;


 


A-5

















 


(n)                                 we express no
opinion regarding the characterization of a transaction as one involving the
creation of a lien on real property, the characterization of a contract as one
in a form sufficient to create a lien or a security interest in real property,
the creation, perfection, priority or enforcement of a lien on real property or
matters involving ownership or title to any real property;


 


(o)                                 we note that
the perfection of any security interest may be terminated as to Collateral
otherwise disposed of by any Credit Party if such disposition is authorized in
the Loan Documents or otherwise by you;


 


(p)                                 we express no
opinion regarding the enforceability of any pre-default waiver of notification
of disposition of Collateral, mandatory disposition of Collateral or redemption
rights;


 


(q)                                 we express no
opinion regarding the enforceability of any provisions asserting that
Collateral is owned by or is property of a secured party prior to such secured
party’s foreclosure of such Collateral in accordance with the applicable
Uniform Commercial Code or, in the case of cash Collateral, the application of
such cash Collateral in payment of the secured obligations;


 


(r)                                    we note that
our opinions as to the validity, binding effect and enforceability of any Loan
Document do not constitute opinions as to the creation, perfection, effect of
perfection or priority of any lien or security interest purported to be granted
thereunder; opinions as to the creation, perfection, effect of perfection or
priority of any lien or security interest are given, if any at all, only in
opinion paragraphs 9 and 10;


 


(s)                                  as to the (i) shares
of stock or other equity interests issued by any issuer thereof and (ii) assets
of any Credit Party, in each case which is organized under the laws of any
jurisdiction other than the United States of America or a State thereof, we
note that the creation and perfection of security interests therein may require
actions in addition to those referenced in opinion paragraphs 9 and 10, and we
express no opinion regarding such actions or the effect that the failure to
take any such actions may have on the creation and perfection of any security
interests therein created and perfected or purported to be created and
perfected under any pledge agreement and any applicable Uniform Commercial
Code; and


 


(t)                                    we express no
opinion regarding the creation, attachment, perfection, effect of perfection or
enforceability of any security interest created in Collateral described in the
Pledge and Security Agreement, the Patent Security Agreement, the Copyright
Security Agreement and the Trademark Security Agreement as “any property or
assets whatsoever”, “all other tangible and intangible personal property”, “all
assets”, “all personal property” or words of similar import, but we advise you
that such generic descriptions of Collateral are sufficient in any Delaware
Financing Statements.


 


A-6

















 


6.                                      Lender’s
Regulatory Qualification. We express no opinion with respect to, and
all our opinions are subject to, the effect of the compliance or noncompliance
of each of you with any state or federal laws or regulations applicable to you
because of your legal or regulatory status or the nature of your business or
requiring you to qualify to conduct business in any jurisdiction.


 


7.                                      Usury
Qualification. We express no opinion with regard to usury or other
laws limiting or regulating the maximum amount of interest that may be charged,
collected, received or contracted for other than the internal laws of the State
of New York and the Federal laws of the United States, and without limiting the
foregoing, we expressly disclaim any opinion as to the usury or other such laws
of any other jurisdiction (including laws of other states made applicable
through principles of Federal preemption or otherwise) which may be applicable
to the transactions contemplated by the Loan Documents.


 


A-7

















 


Schedule B


 


Assumptions


 


For purposes of our letter, we have relied, without investigation, upon
each of the following assumptions:


 


1.                                       The Loan
Documents to which you are party constitute valid and binding obligations of
yours and are enforceable against you in accordance with their terms (subject
to qualifications, exclusions and other limitations similar to those applicable
to this letter).


 


2.                                       You have
satisfied those legal requirements that are applicable to you to the extent
necessary to make the Loan Documents to which you are a party enforceable
against you.


 


3.                                       You have
complied with all legal requirements pertaining to your status as such status
relates to your rights to enforce the Loan Documents against the Credit
Parties, as applicable.


 


4.                                       Each document
submitted to us for review is accurate and complete, each such document that is
an original is authentic, each such document that is a copy conforms to an
authentic original, and all signatures (other than those of or on behalf of a
Credit Party) on each such document are genuine.


 


5.                                       There has not
been any mutual mistake of fact or misunderstanding, fraud, duress or undue
influence among you and the Credit Parties.


 


6.                                       The conduct of
the parties to the Loan Documents has complied with any requirement of good
faith, fair dealing and conscionability.


 


7.                                       You have acted
in good faith and without notice of any defense against the enforcement of any
rights created by, or adverse claim to any property or security interest
transferred or created as part of, the transactions effected under the Loan
Documents (herein called the “Transactions”).


 


8.                                       There are no
agreements or understandings among the parties, written or oral (other than the
Loan Documents), and there is no usage of trade or course of prior dealing
among the parties that would, in either case, define, supplement or qualify the
terms of the Credit Agreement or any of the Other Loan Documents.


 


9.                                       The
constitutionality or validity of a relevant statute, rule, regulation or agency
action is not in issue.


 


10.                                 For purposes of
our opinions in opinion paragraphs 6, 8 and 12, all parties to the Loan
Documents will act in accordance with, and will refrain from taking any action that
is forbidden by, the terms and conditions of the Loan Documents.


 


B-1

















 


11.                               All agreements
other than the Loan Documents (if any) with respect to which we have provided
an opinion or advice in our letter or reviewed in connection with our letter
would be enforced as written.


 


12.                               For purposes of
our opinions in opinion paragraphs 6, 8 and 12, no Credit Party will in the
future take any discretionary action (including a decision not to act)
permitted under the Loan Documents that would result in a violation of law or
constitute a breach or default under any other agreements or court orders to
which such Credit Party may be subject.


 


13.                               Each natural
person who is executing any Loan Document on behalf of any Credit Party has
sufficient legal capacity to enter into such Loan Document, and we have no
actual knowledge of any such incapacity.


 


14.                               Each
certificate obtained from a governmental authority relied on by us is accurate,
complete and authentic and all relevant official public records to which each
such certificate relates are accurate and complete.


 


15.                               No Lender or
Agent is subject to Regulation T of the Board of Governors of the Federal
Reserve System; and no proceeds of the Loans will be used for any purpose which
would violate or be inconsistent with terms of the Credit Agreement.


 


16.                               For purposes of
our opinions in opinion paragraphs 6, 8 and 12, each Credit Party will in the
future obtain all permits and governmental approvals required, and will in the
future take all actions required, relevant to the consummations of the
Transactions or performance of the Loan Documents.


 


17.                               Any information
required to be disclosed to the Credit Parties or their governing bodies in
connection with any matter relevant to any legal issue covered by our opinions
has been fully and fairly disclosed to such Persons and no such disclosure
contains any relevant error or omission.


 


18.                               Each person who
has taken any action relevant to any of our opinions in the capacity of
director, management committee member, or officer was duly elected to that
director, management committee member, or officer position and held that
position when such action was taken (except that this assumption is limited to
those of the preceding items with respect to the adoption of which we did not
have involvement).


 


19.                               Each Credit
Party’s certificate of incorporation (or equivalent governing instrument), all
amendments to that instrument, all resolutions adopted establishing classes or
series of stock or other equity interests under that instrument, each Credit
Party’s bylaws or limited liability agreement (or equivalent governing
instrument) and all amendments to its bylaws or limited liability agreement (or
equivalent governing instrument) have been adopted in accordance with all
applicable legal requirements (except that this assumption is limited to those
of the preceding items with respect to the adoption of which we did not have
involvement).


 


B-2

















 


20.                                 The
transactions contemplated by the Loan Documents are directly or indirectly
related to the business interests of each Credit Party thereto and the
transactions were fair and reasonable to each such entity at the time each such
transaction was authorized by such Credit Party.


 


21.                                 Collateral
Assumptions. The opinions and advice contained in our letter
are subject to the following assumptions:


 


(a)                                 Each Credit
Party which grants or purports to grant any lien or security interest in any
property or Collateral (i) has the requisite title and rights to any
property involved in the Transactions including without limiting the generality
of the foregoing, each item of Collateral existing on the date hereof and (ii) will
have the requisite title and rights to each item of Collateral arising after
the date hereof.


 


(b)                                Value (as
defined in Section 1-201(44) of the New York UCC) has been given by you to
each Credit Party for the security interests and other rights in and
assignments of Collateral described in or contemplated by the Loan Documents.


 


(c)                                 The
descriptions of Collateral in the Loan Documents and all Uniform Commercial
Code financing statements accurately describe the property intended to be
described as Collateral.


 


(d)                                The
representations made by each Credit Party in the Loan Documents to which it is
a party with respect to its jurisdiction of organization and chief executive
office are true and correct.


 


(e)                                 The information
regarding the secured party listed on each Uniform Commercial Code financing
statement is accurate and complete in all respects.


 


B-3














 


Schedule C


 


Excluded
Law and Legal Issues


 


None of the opinions or advice contained in our
letter covers or otherwise addresses any of the following laws, regulations or
other governmental requirements or legal issues:


 


1.                                      except with
respect to the Investment Company Act of 1940, as amended, to the extent of our
opinion in opinion paragraph 11, federal securities laws and regulations
(including all other laws and regulations administered by the United States
Securities and Exchange Commission), state “Blue Sky” laws and regulations, and
laws and regulations relating to commodity (and other) futures and indices and
other similar instruments;


 


2.             pension and
employee benefit laws and regulations (e.g., ERISA);


 


3.                                      other than to
the extent of our opinions in opinion paragraph 10, federal and state laws and
regulations concerning filing and notice requirements (such as the
Hart-Scott-Rodino Antitrust Improvements Act of 1986, as amended, and the
Exon-Florio Act, as amended) other than requirements applicable to
charter-related documents such as a certificate of merger;


 


4.             federal and
state antitrust and unfair competition laws and regulations;


 


5.             compliance with
fiduciary duty requirements;


 


6.                                      the statutes
and ordinances, the administrative decisions and the rules and regulations
of counties, towns, municipalities and special political subdivisions (whether
created or enabled through legislative action at the federal, state or regional
level—e.g., water agencies, joint power districts, turnpike and tollroad authorities,
rapid transit districts or authorities, and port authorities) and judicial
decisions to the extent that they deal with any of the foregoing;


 


7.             fraudulent
transfer and fraudulent conveyance laws;


 


8.                                      federal and
state environmental, tax, land use and subdivision, racketeering laws and
regulations (e.g., RICO), health and safety (e.g. OSHA) and labor laws and
regulations;


 


9.                                      other than to
the extent of our opinions in opinion paragraph 10, federal patent, trademark
and copyright, state trademark, and other federal and state intellectual
property laws and regulations;


 


10.                                federal and
state laws, regulations and policies concerning (i) national and local
emergency, (ii) possible judicial deference to acts of sovereign states,
and (iii) criminal and civil forfeiture laws;


 


11.                                other than to
the extent of our opinions in opinion paragraph 7 with respect to Regulations U
and X of the Federal Reserve Board, other federal and state statutes of


 


C-1

















 


general application to the extent they provide for
criminal prosecution (e.g., mail fraud and wire fraud statutes);


 


12.                               any laws,
regulations, directives and executive orders that prohibit or limit the
enforceability of obligations based on attributes of the party seeking
enforcement (e.g., the Trading with the Enemy Act and the International
Emergency Economic Powers Act);


 


13.                               the effect of
any law, regulation or order which hereafter is enacted, promulgated or issued;


 


14.                               except as
specifically set forth in opinion paragraph 7, Federal Reserve Board margin
regulations;


 


15.          title to any property; and


 


16.                               the
Anti-Terrorism Order, including Executive Order No. 13224 on Terrorism
Financing, effective September 24, 2001 and the United and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (together, the “Anti-Terrorism Order”) as amended,
all rules and regulations promulgated thereunder and all federal, state
and local laws, statutes, ordinances, orders, governmental rules, regulations,
licensing requirements and policies relating to the Anti-Terrorism Order, the
foreign assets control regulations of the United States Treasury Department,
and the ownership and operation of, or otherwise regulation of, companies which
conduct, operate or otherwise pursue the business or businesses now and in the
future conducted, operated or otherwise pursued by the Borrower including,
without limitation, the importation, transportation, manufacturing, dealing,
purchase, use or storage of explosive materials.


 


We have not undertaken any research for purposes of
determining whether any Credit Party or any of the Transactions which may occur
in connection with the Credit Agreement or any of the Other Loan Documents is
subject to any law or other governmental requirement other than to those laws
and requirements which in our experience would generally be recognized as
applicable in the absence of research by lawyers in New York, and none of our
opinions covers any such law or other requirement unless (i) one of our
Designated Transaction Lawyers had actual knowledge of its applicability at the
time our letter was delivered on the date it bears and (ii) it is not
excluded from coverage by other provisions in our letter or in any Schedule to
our letter.


 


C-2

















 


Schedule D


 


Excluded
Provisions


 


None of the opinions in the letter to which this
Schedule is attached covers or otherwise addresses any of the following types
of provisions which may be contained in the Loan Documents:


 


1.                                       Covenants not
to compete including, without limitation, covenants not to interfere with
business or employee relations, covenants not to solicit customers, and
covenants not to solicit or hire employees.


 


2.                                       Indemnification
for gross negligence, willful misconduct or other wrongdoing or strict product
liability or any indemnification for liabilities arising under securities laws.


 


3.                                       Provisions
mandating contribution towards judgments or settlements among various parties.


 


4.                                       Waivers of (i) legal
or equitable defenses, (ii) rights to damages, (iii) rights to
counter claim or set off, (iv) statutes of limitations, (v) rights to
notice, (vi) the benefits of statutory, regulatory, or constitutional
rights, unless and to the extent the statute, regulation, or constitution
explicitly allows waiver, (vii) broadly or vaguely stated rights, and (viii) other
benefits to the extent they cannot be waived under applicable law.


 


5.                                       Provisions
providing for forfeitures or the recovery of amounts deemed to constitute
penalties, or for liquidated damages, acceleration of future amounts due (other
than principal) without appropriate discount to present value, interest upon
interest and, late charges, prepayment charges, and increased interest rates
upon default.


 


6.             Time-is-of-the-essence
clauses.


 


7.             Provisions
which provide a time limitation after which a remedy may not be enforced.


 


8.             Confession of
judgment clauses.


 


9.                                       Except with
respect to submission to the jurisdiction of the courts of the State of New
York to the extent provided for in §5-1402 of the New York General Obligations
Law, agreements to submit to the jurisdiction of any particular court or other
governmental authority (either as to personal jurisdiction or subject matter
jurisdiction); waiver of service of process requirements which would otherwise
be applicable; and provisions otherwise purporting to affect the jurisdiction
and venue of courts.


 


10.                                 Provisions that
attempt to change or waive rules of evidence or fix the method or quantum
of proof to be applied in litigation or similar proceedings.


 


11.                                 Provisions
appointing one party as an attorney-in-fact for an adverse party or providing
that the decision of any particular person will be conclusive or binding on
others, except to the extent provided under the UCC.


 


D-1

















 


12.                                Provisions
purporting to limit rights of third parties who have not consented thereto or
purporting to grant rights to third parties.


 


13.           Provisions
which purport to award attorneys’ fees solely to one party.


 


14.                                Provisions
purporting to create a trust or constructive trust without compliance with
applicable trust law.


 


15.           Provisions that
provide for the appointment of a receiver.


 


16.                                Provisions or
agreements regarding proxies, shareholders agreements, shareholder voting
rights, voting trusts, and the like.


 


17.           Confidentiality
agreements.


 


18.                                Provisions in
any of the Loan Documents requiring any Credit Party to perform its obligations
under, or to cause any other person to perform its obligations under, or
stating that any action will be taken as provided in or in accordance with, any
agreement or other document that is not a Loan Document.


 


19.           Provisions, if
any, which are contrary to the public policy of any jurisdiction.


 


20.           Arbitration
agreements.


 


21.                                Provisions of
the Loan Documents insofar as they authorize you or your affiliates to set off
and apply deposits and any time held, and any other indebtedness at any time
owing, by you to or for the account of any Credit Party.


 


22.                                Choice-of-law
provisions (other than the selection, under the statutory choice of law rules of
New York, of the internal law of the State of New York as the governing law of
the Loan Documents).


 


D-2

















 


Schedule of


Other Loan
Documents


 


1.                                       Pledge and
Security Agreement, executed and delivered by the Credit Parties in favor of
the Collateral Agent (the “Pledge and Security Agreement”).


 


2.                                       Copyright
Security Agreement, executed and delivered by the Credit Parties listed therein
in favor of the Collateral Agent (the “Copyright Agreement” or the “IP
Security Agreement”).


 


3.                                       Intercompany
Note executed and delivered by Holdings and each of its Subsidiaries, as Payors
(as such term is defined therein) in favor of the Payees (as such term is
defined therein) (the “Intercompany Note”).


 


4.                                       Subordination
Agreement and Intercreditor Agreement executed and delivered by the Credit
Parties in favor of RBS, as senior administrative agent and senior collateral
agent (the “Subordination Agreement”).


 


5.                                       Deposit Account
Control Agreement executed and delivered by Holdings in favor of the Collateral
Agent and the Bank (as such term is defined therein) (the “Holdings Deposit
Account Control Agreement”).


 


6.                                       Deposit Account
Control Agreement executed and delivered by MR in favor of the Collateral Agent
and the Bank (as defined therein) (the “MR Deposit Account Control Agreement).


 


7.                                       Deposit Account
Control Agreement executed and delivered by E-Default in favor of the
Collateral Agent and the Bank (as defined therein) (the “ED Deposit Account
Control Agreement).


 


8.                                       Deposit Account
Control Agreement executed and delivered by STT in favor of the Collateral
Agent and the Bank (as defined therein) (the “STT Deposit Account Control
Agreement”).


 


9.                                       Deposit Account
Control Agreement executed and delivered by Statewide Publishing in favor of
the Collateral Agent and the Bank (as defined therein) (the “Statewide
Publishing Deposit Account Control Agreement” and together with the
Holdings Deposit Account Control Agreement, the MR Deposit Account Control
Agreement, the ED Deposit Account Control Agreement and the STT Deposit Account
Control Agreement, the “Deposit Account Control Agreements”).


 

















 


Schedule of


Specified
Agreements


 


1.             The Loan
Documents.


 


2.             The Phase 1
Acquisition Agreements.


 


3.             The Services
Agreements.


 


4.             The Senior
Subordinated Notes Documents.


 

















 


Schedule of


Pledged
Securities


 


Pledgor: MR Processing Holding Corp.


 


	
  Issuing Entity

  	
   

  	
  Type of

  Interests

  	
   

  	
  Certificate

  Number

  	
   

  	
  Number of

  Interests

  Pledged

  	
   

  	
  % Interest

  	
   

  
	
  MR Default Services LLC

  	
   

  	
  Unit

  	
   

  	
  C-1

  	
   

  	
  1,000 Common Units

  	
   

  	
  100%

  	
   

  



 


Pledgor: MR Processing Holding Corp.


 


	
  Issuing Entity

  	
   

  	
  Type of

  Interests

  	
   

  	
  Certificate

  Number

  	
   

  	
  Number of

  Interests

  Pledged

  	
   

  	
  % Interest

  	
   

  
	
  E-Default Services LLC

  	
   

  	
  Unit

  	
   

  	
  C-1

  	
   

  	
  1,000 Common Units

  	
   

  	
  100%

  	
   

  



 


Pledgor: MR Processing Holding Corp.


 


	
  Issuing Entity

  	
   

  	
  Type of

  Interests

  	
   

  	
  Certificate

  Number

  	
   

  	
  Number of

  Interests

  Pledged

  	
   

  	
  % Interest

  	
   

  
	
  Statewide Tax and Title Services LLC

  	
   

  	
  Unit

  	
   

  	
  C-1

  	
   

  	
  1,000 Common Units

  	
   

  	
  100%

  	
   

  



 


Pledgor: Statewide Tax and Title Services LLC


 


	
  Issuing Entity

  	
   

  	
  Type of

  Interests

  	
   

  	
  Certificate

  Number

  	
   

  	
  Number of

  Interests

  Pledged

  	
   

  	
  % Interest

  	
   

  
	
  Statewide Publishing Services LLC

  	
   

  	
  Unit

  	
   

  	
  C-1

  	
   

  	
  1,000 Common Units

  	
   

  	
  100%

  	
   

  



 

















 


Delaware
Financing Statements


 


See attached.


 














 


UCC
FINANCING STATEMENT


FOLLOW
INSTRUCTIONS (front and back) CAREFULLY


A.
NAME & PHONE OF CONTACT AT FILER [optional]


 


B.
SEND ACKNOWLEDGMENT TO: (Name and Address)


 


Stacey Rosenberg.
Esq.

LATHAM & WATKINS LLP

633 West Fifth Street, Suite 4000

Los Angeles, CA 90071


 


THE ABOVE SPACE IS FOR FILING OFFICE
USE ONLY                   


1. DEBTOR’S EXACT FULL
LEGAL NAME - Insert only one debtor name (1a or 1b) - do not abbreviate
or combine names


	
   

  OR

  	
  1a. ORGANIZATION’S NAME  

  MR Processing Holding Corp.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1b. INDIVIDUAL’S LAST
  NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1c. MAILING ADDRESS

  1544 Old Alabama Road

  	
  CITY

  Roswell

  	
  STATE

  GA

  	
  POSTAL CODE

  30076

  	
  COUNTRY

  US

  
	
  1d TAX ID # SSN OR FIN

  	
  ADD’L INFO RE ORGANIZATION
  DEBTOR

  	
  1e TYPE OF ORGANIZATION

  Corporation

  	
  1f. JURISDICTION OF
  ORGANIZATION

  Delaware

  	
  1g. ORGANIZATIONAL ID #.
  If any

                                                                        o  NONE 

  
	
   

  
	
  2.
  ADDITIONAL DEBTOR’S EXACT FULL LEGAL NAME - insert only one debtor
  name (2a or 2b) - do not abbreviate or combine names

  
	
   

  OR

  	
  2a. ORGANIZATION’S NAME

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2b. INDIVIDUAL’S LAST
  NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2c.
  MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2d. TAX ID #. SSN OR EIN

  	
  ADD’L INFO RE
  ORGANIZATION DEBTOR

  	
  2e. TYPE OF ORGANIZATION 

  	
  2f. JURISDICTION OF
  ORGANIZATION

  	
  2g. ORGANIZATIONAL ID #.
  If any

                                                                        o  NONE 

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3. SECURED PARTY’S NAME
  (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P) - insert only one secured
  party name (3a or 3b)

  
	
   

  OR

  	
  3a. ORGANIZATION’S NAME 

  The Royal Bank of Scotland plc, as Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3b. INDIVIDUAL’S LAST
  NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3c. MAILING ADDRESS

  101 Park Avenue

  	
  CITY

  New York

  	
  STATE

  NY

  	
  POSTAL CODE

  10178

  	
  COUNTRY

  US

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
									



4. This FINANCING
STATEMENT covers the following collateral:


 


All assets of debtor, now owned or hereafter acquired, and
all proceeds thereof.


 


	
  5. ALTERNATIVE
  DESIGNATION [if applicable]

  	
   

  	
  o LESSEE/LESSOR

  	
   

  	
  o CONSIGNEE/CONSIGNOR

  	
   

  	
  o BAILEE/BAILOR

  	
   

  	
  o SELLER/BUYER

  	
   

  	
  o AG LIEN

  	
   

  	
  o NON-UCC FILING

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6. o This FINANCING STATEMENT is to be filed
  [for record] (or recorded) in the REAL ESTATE RECORDS. Attach
  Addendum      [if applicable]

  	
   

  	
  7.
  Check to REQUEST SEARCH REPORT(S) on Debtor(s) [ADDITIONAL FEE]          [optional]

  	
   

  	
  o All Debtors

  	
   

  	
  o Debtor 1

  	
   

  	
  o Debtor 2

  
																					



 


8 OPTIONAL FILER
REFERENCE DATA


File with DE SOS  (042352-0005)


 


FILING
OFFICE COPY —
NATIONAL UCC FINANCING STATEMENT (FORM UCC1) (REV. 07/29/98)


 

















 


UCC FINANCING STATEMENT


 


FOLLOW
INSTRUCTIONS (front and back) CAREFULLY


A. NAME & PHONE OF CONTACT AT FILER [optional]


B.
SEND ACKNOWLEDGMENT TO: (Name and Address)


 


Stacey Rosenberg, Esq.

LATHAM &WATKINS LLP

633 West Fifth Street, Suite 4000

Los Angeles, CA 90071


 


THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY                       


1. DEBTOR’S EXACT FULL
LEGAL NAME - insert only one debtor name (1a or 1b) - do not abbreviate
or combine names


	
   

  OR

  	
  1a ORGANIZATION’S NAME  

  MR Default
  Services LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1b. INDIVIDUAL’S LAST
  NAM E

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1c. MAILING ADDRESS

  1544 Old Alabama Road

  	
  CITY

  Roswell

  	
  STATE

  GA

  	
  POSTAL CODE

  30076

  	
  COUNTRY

  US

  
	
  1d TAX ID # SSN OR FIN

  	
  ADD’L INFO RE ORGANIZATION
  DEBTOR

  	
  1e. TYPE OF ORGANIZATION

  LLC

  	
  1f. JURISDICTION OF
  ORGANIZATION

  Delaware

  	
  1g. ORGANIZATIONAL ID #.
  If any

                                                                        o  NONE 

  
	
   

  
	
  2.
  ADDITIONAL DEBTOR’S EXACT FULL LEGAL NAME - insert only one debtor
  name (2a or 2b) - do not abbreviate or combine names

  
	
   

  OR

  	
  2a. ORGANIZATION’S NAME

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2b. INDIVIDUAL’S LAST
  NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2c.
  MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2d. TAX ID #. SSN OR EIN

  	
  ADD’L INFO RE
  ORGANIZATION DEBTOR

  	
  2e. TYPE OF
  ORGANIZATION 

  	
  2f. JURISDICTION OF
  ORGANIZATION

  	
  2g. ORGANIZATIONAL ID #.
  If any

                                                                        o  NONE 

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3. SECURED PARTY’S NAME
  (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P) - insert only one secured
  party name (3a or 3b)

  
	
   

  OR

  	
  3a. ORGANIZATION’S NAME 

  The Royal Bank of Scotland plc, as Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3b. INDIVIDUAL’S LAST
  NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3c. MAILING ADDRESS

  101 Park Avenue

  	
  CITY

  New York

  	
  STATE

  NY

  	
  POSTAL CODE

  10178

  	
  COUNTRY

  US

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
									



4. This FINANCING
STATEMENT covers the following collateral:


 


All assets of debtor, now owned or hereafter acquired, and
all proceeds thereof.


 


	
  5. ALTERNATIVE
  DESIGNATION [if applicable]

  	
   

  	
  o LESSEE/LESSOR

  	
   

  	
  o CONSIGNEE/CONSIGNOR

  	
   

  	
  o BAILEE/BAILOR

  	
   

  	
  o SELLER/BUYER

  	
   

  	
  o AG LIEN

  	
   

  	
  o NON-UCC FILING

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6. o This FINANCING STATEMENT is to be filed
  [for record] (or recorded) in the REAL ESTATE RECORDS. Attach
  Addendum      [if applicable]

  	
   

  	
  7.
  Check to REQUEST SEARCH REPORT(S) on Debtor(s) [ADDITIONAL FEE               [optional]

  	
   

  	
  o All Debtors

  	
   

  	
  o Debtor 1

  	
   

  	
  o Debtor 2

  
																					



 


8. OPTIONAL FILER
REFERENCE DATA


File with DE
SOS  (042352-0005)


 


FILING
OFFICE COPY — NATIONAL UCC FINANCING STATEMENT (FORM UCC1) (REV. 07/29/98)


 














 


UCC FINANCING STATEMENT


FOLLOW
INSTRUCTIONS (front and back) CAREFULLY


A.
NAME & PHONE OF CONTACT AT FILER [optional]


 


B.
SEND ACKNOWLEDGMENT TO: (Name and Address)


 


Stacey Rosenberg, Esq.

LATHAM & WATKINS LLP

633 West Fifth Street, Suite 4000

Los Angeles, CA 90071


 


THE ABOVE SPACE IS FOR FILING OFFICE USE
ONLY        


1. DEBTOR’S EXACT FULL
LEGAL NAME - insert only one debtor name (1a or 1b) - do not abbreviate
or combine names


	
   

  OR

  	
  la. ORGANIZATION’S NAME

  E-Default
  Services LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1b. INDIVIDUAL’S LAST
  NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1c. MAILING ADDRESS

  1544
  Old Alabama Road

  	
  CITY

  Roswell

  	
  STATE

  GA

  	
  POSTAL CODE

  30076

  	
  COUNTRY

  US

  
	
  1d TAX ID # SSN OR FIN

  	
  ADD’L INFO RE ORGANIZATION
  DEBTOR

  	
  1e. TYPE OF ORGANIZATION

  LLC

  	
  1f. JURISDICTION OF
  ORGANIZATION 

  Delaware

  	
  1g. ORGANIZATIONAL ID #.
  if any

  o  NONE

  



 


2. ADDITIONAL DEBTOR’S
EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b) - do not
abbreviate or combine names


	
   

  OR

  	
  2a. ORGANIZATION’S NAME

   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2b. INDIVIDUAL’S LAST
  NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2d. TAX ID #.

  SSN OR EIN

  	
  ADD’L INFO RE
  ORGANIZATION DEBTOR

  	
  2e. TYPE OF ORGANIZATION

  	
  2f. JURISDICTION OF
  ORGANIZATION

  	
  2g. ORGANIZATIONAL ID #.
  if any

  o  NONE

  



 


3. SECURED PARTY’S NAME
(or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P) - insert only one secured
party name (3a or 3b)


	
  OR

  	
  3a. ORGANIZATION’S NAME 

  The
  Royal Bank of Scolland plc, as Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3b INDIVIDUAL’S LAST
  NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3c. MAILING ADDRESS

  101 Park Avenue

  	
  CITY

  New
  York

  	
  STATE

  NY

  	
  POSTAL CODE

  10178

  	
  COUNTRY

  US

  



 


4. This FINANCING STATEMENT covers the
following collateral:


 


All
assets of debtor, now owned or hereafter acquired, and all proceeds thereof.


 


	
  5.
  ALTERNATIVE DESIGNATION [if applicable]

  	
   

  	
  o LESSEE/LESSOR

  	
   

  	
  o CONSIGNEE/CONSIGNOR

  	
   

  	
  o BAILEE/BAILOR

  	
   

  	
  o SELLER/BUYER

  	
   

  	
  o AG. LIEN

  	
   

  	
  o NON-UCC FILING

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6. o This FINANCING STATEMENT is to be filed
  [for record] (or recorded) in the REAL ESTATE RECORDS. Attach Addendum       [if
  applicable]

  	
   

  	
  7.  Check to REQUEST SEARCH REPORT(S) on
  Debtor(s) [ADDITIONAL FEE]         [optional]

  	
   

  	
  o All Debtors

  	
   

  	
  o Debtor 1

  	
   

  	
  o Debtor 2

  
																					



 


8. OPTIONAL FILER
REFERENCE DATA


File
with DE SOS        (042352-0005)


 


FILING
OFFICE COPY —
NATIONAL UCC FINANCING STATEMENT (FORM UCC1) (REV 07/29/98)


 

















 


UCC
FINANCING STATEMENT


FOLLOW
INSTRUCTIONS (front and back) CAREFULLY


A.
NAME &  PHONE OF CONTACT
AT FILER [optional]


 


B.
SEND ACKNOWLEDGMENT TO: (Name and Address)


 


Stacey Rosenberg, Esq.

LATHAM & WATKINS LLP

633 West Fifth Street, Suite 4000

Los Angeles, CA 90071


 


THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY        


1. DEBTOR’S EXACT FULL
LEGAL NAME - insert only one debtor name (1a or 1b) - do not abbreviate
or combine names


	
   

  OR

  	
  1a. ORGANIZATION’S NAME 

  Statewinde
  Publishing Services LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1b. INDIVIDUAL’S LAST NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1c. MAILING ADDRESS

  1544 Old Alabama Road

  	
  CITY

  Roswell

  	
  STATE

  GA

  	
  POSTAL CODE

  30076

  	
  COUNTRY

  US

  
	
  ID TAX ID # SSN OR FIN

  	
  ADD’L INFO RE ORGANIZATION
  DEBTOR

  	
  1e. TYPE OF ORGANIZATION
  

  LLC

  	
  1f. JURISDICTION OF
  ORGANIZATION

  Delaware

  	
  1g. ORGANIZATIONAL ID #.
  If any

  o NONE

  



 


2. ADDITIONAL DEBTOR’S
EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b) - do not
abbreviate or combine names


	
   

  OR

  	
  2a. ORGANIZATION’S NAME

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2b. INDIVIDUAL’S LAST
  NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2d. TAX ID #. SSN OR EIN

  	
  ADD’L INFO RE
  ORGANIZATION DEBTOR

  	
  2e. TYPE OF ORGANIZATION

  	
  2f JURISDICTION OF
  ORGANIZATION

  	
  2g ORGANIZATIONAL ID #. If
  any

  o 
  NONE

   

  



 


3. SECURED PARTY’S NAME
(or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P) - insert only one secured
party name (3a or 3b)


	
   

  OR

  	
  3a. ORGANIZATIONS NAME 

  The
  Royal Bank of Scotland plc, as Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3b. INDIVIDUAL’S LAST
  NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3c. MAILING ADDRESS

  101 Park Avenue

  	
  CITY

  New
  York

  	
  STATE

  NY

  	
  POSTAL CODE

  10178

  	
  COUNTRY

  US

  



 


4. This FINANCING
STATEMENT covers the following collateral:


 


All
assets of debtor, now owned or hereafter acquired, and all proceeds thereof.


 


	
  5.
  ALTERNATIVE DESIGNATION [if applicable]

  	
   

  	
  o LESSEE/LESSOR

  	
   

  	
  o CONSIGNEE/CONSIGNOR

  	
   

  	
  o BAILEE/BAILOR

  	
   

  	
  o SELLER/BUYER

  	
   

  	
  o AG. LIEN

  	
   

  	
  o NON-UCC FILING

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6. o This FINANCING STATEMENT is to be filed
  [for record] (or recorded) in the REAL ESTATE RECORDS Attach Addendum      [if
  applicable]

  	
   

  	
  7  Check to REQUEST SEARCH REPORT(S) on
  Debtor(s) [ADDITIONAL FEE]            [optional]

  	
   

  	
  o All Debtors

  	
   

  	
  o Debtor 1

  	
   

  	
  o Debtor 2

  
																					



 


8. OPTIONAL FILER
REFERENCE DATA


File
with DE SOS        (042352-0005)


 


FILING OFFICE COPY — NATIONAL UCC FINANCING
STATEMENT (FORM UCC1) (REV. 07/29/98)


 

















 


UCC FINANCING STATEMENT


FOLLOW
INSTRUCTIONS (front and back) CAREFULLY


A. NAME & PHONE OF CONTACT AT FILER [optional]


B.
SEND ACKNOWLEDGMENT TO: (Name and Address)


 


Stacey Rosenberg, Esq.

LATHAM & WATKINS LLP

633 West Fifth Street, Suite 4000

Los Angeles, CA 90071


 


THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY           


1. DEBTOR’S EXACT FULL
LEGAL NAME - insert only one debtor name (1a or 1b) - do not abbreviate
or combine names


	
   

  OR

  	
  1a. ORGANIZATION’S NAME

  Statewide
  Tax Title Services LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1b. INDIVIDUAL’S LAST
  NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1c. MAILING ADDRESS

  1544 Old Alabama Road

  	
  CITY

  Roswell

  	
  STATE

  GA

  	
  POSTAL CODE

  30076

  	
  COUNTRY

  US

  
	
  1d TAX ID #  SSN OR FIN

  	
  ADD’L INFO RE
  ORGANIZATION DEBTOR

  	
  1e. TYPE OF ORGANIZATION

  LLC

  	
  1f. JURISDICTION OF
  ORGANIZATION

  Delaware

  	
  1g. ORGANIZATIONAL ID #.
  If any

  o NONE

  



 


2. ADDITIONAL DEBTOR’S
EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b) - do not
abbreviate or combine names


	
   

  OR

  	
  2a.
  ORGANIZATIONS NAME

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2b. INDIVIDUAL’S LAST
  NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
  2d. TAX ID #. SSN OR EIN

  	
  ADD’L INFO RE ORGANIZATION
  DEBTOR

  	
  2e. TYPE OF ORGANIZATION
  

  	
  2f. JURISDICTION OF
  ORGANIZATION

  	
  2g. ORGANIZATIONAL ID #.
  It any

  o 
  NONE

  



 


3. SECURED PARTY’S NAME
(or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P) - insert only one secured
party name (3a or 3b)


	
  OR

  	
  3a. ORGANIZATION’S NAME

  The
  Royal Bank of Scotland plc, as Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3b. INDIVIDUAL’S LAST
  NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3c. MAILING ADDRESS

  101 Park
  Avenue

  	
  CITY

  New York

  	
  STATE

  NY

  	
  POSTAL CODE

  10178

  	
  COUNTRY

  US

  



 


4. This FINANCING
STATEMENT covers the following collateral


 


All assets
of debtor, now owned or hereafter acquired, and all proceeds thereof.


 


	
  5.
  ALTERNATIVE DESIGNATION [if applicable]

  	
   

  	
  o LESSEE/LESSOR

  	
   

  	
  o CONSIGNEE/CONSIGNOR

  	
   

  	
  o BAILEE/BAILOR

  	
   

  	
  o SELLER/BUYER

  	
   

  	
  o AG. LIEN

  	
   

  	
  o NON-UCC FILING

  
	
  6. o This FINANCING STATEMENT is to be filed
  [for record] (or recorded) in the REAL ESTATE RECORDS. Attach Addendum         [if
  applicable]

  	
   

  	
  7.
  Check to REQUEST SEARCH REPORT(S) on Debtor(s) [ADDITIONAL FEE]            [optional]

  	
   

  	
  o All Debtors

  	
   

  	
  o Debtor 1

  	
   

  	
  o Debtor 2

  
																					



 


8. OPTIONAL FILER
REFERENCE DATA


File with
DE SOS        (042352-0005)


 


FILING OFFICE COPY — NATIONAL UCC FINANCING
STATEMENT (FORM UCC1) (REV. 07/29/98)


 














 


EXHIBIT E TO


CREDIT AND
GUARANTY AGREEMENT


 


ASSIGNMENT AND ASSUMPTION AGREEMENT


 


This Assignment and Assumption Agreement (the “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 shall have the meanings given to them in the
Credit Agreement identified below (as it may be amended, supplemented, restated
or otherwise modified from time to time, the “Credit Agreement”).
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 in its capacity 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 such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including without
limitation any letters of credit, guarantees, and swingline loans 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](1)

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Borrowers:

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

  



 






(1)  Select
as applicable.


 


1

















 


	
  4.

  	
  Administrative Agent:

  	
  The Royal Bank of Scotland
  plc, as the Administrative Agent under the Credit Agreement

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Credit Agreement:

  	
  The $80,000,000 Credit
  and Guaranty Agreement dated as of February 24, 2006 among MR Default
  Services LLC, E-Default Services LLC, Statewide Tax and Title Services LLC
  and Statewide Publishing Services LLC, as Borrowers, MR Processing Holding
  Corp., certain Subsidiaries of Borrowers, as Guarantors, the Lenders party
  thereto, The Royal Bank of Scotland plc, as Administrative Agent, and the
  other parties thereto

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Assigned Interest:

  	
   

  



 


	
  Facility
  Assigned

  	
   

  	
  Aggregate Amount

  of

  Commitment/Loans

  for all Lenders(1)

  	
   

  	
  Amount of

  Commitment/Loans

  Assigned

  	
   

  	
  Percentage Assigned of

  Commitment/Loans(2)

  	
   

  
	
   

  	
  (3)

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  



 


7.             [Trade Date](4)


 


Effective Date:                      ,20     [TO
BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF
RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


7.             Notice and Wire Instructions:


 


	
  [NAME OF ASSIGNOR]

  	
  [NAME
  OF ASSIGNEE]

  



 






	
  (1)

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

  
	
   

  	
   

  
	
  (2)

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

  
	
   

  	
   

  
	
  (3)

  	
  Fill in the appropriate
  terminology for the types of facilities under the Credit Agreement that are
  being assigned under this Assignment (e.g. “Revolving Loan Commitment”, “Term
  Loan Commitment”, etc.)

  
	
   

  	
   

  
	
  (4)

  	
  To be completed if the
  Assignor and the Assignee intend that the minimum assignment amount is to be
  determined as of the Trade Date.

  



 


2

















 


	
  Notices:

  	
  Notices:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
  Attention:

  
	
  Telecopier:

  	
  Telecopier:

  
	
   

  	
   

  
	
  with a copy to:

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
  Attention:

  
	
  Telecopier:

  	
  Telecopier:

  
	
   

  	
   

  
	
  Wire Instructions:

  	
  Wire Instructions:

  



 


3

















 


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


 


	
   

  	
  ASSIGNOR

  
	
   

  	
  [NAME
  OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  Consented to and
  Accepted:

  	
   

  
	
   

  	
   

  
	
  THE
  ROYAL BANK OF SCOTLAND PLC,

  	
   

  
	
  as
  Administrative Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  



 


 


Consented
to:


 


	
  MR
  DEFAULT SERVICES LLC

  	
   

  	
  E-DEFAULT
  SERVICES LLC

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  STATEWIDE
  TAX AND TITLE SERVICES LLC

  	
   

  	
  STATEWIDE
  PUBLISHING SERVICES LLC

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  



 


4

















 


ANNEX 1 TO


CREDIT AND GUARANTY
AGREEMENT


 


STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION AGREEMENT


 


1.           Representations and Warranties.


 


1.1     Assignor. The Assignor hereby (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 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 any Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or
any other instrument or document delivered pursuant thereto, other than this
Assignment (herein collectively the “Loan Documents”), or any collateral
thereunder, (iii) the financial condition of Borrowers, any of their
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document or (iv) the performance or observance by Borrowers, any of their
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.


 


1.2     Assignee. The Assignee hereby (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 to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all requirements of an Eligible Assignee under
the Credit Agreement, (iii) from and after the Effective Date, it shall be
bound by the provisions of the Credit Agreement and, to the extent of the
Assigned Interest, shall have the obligations of a Lender thereunder, (iv) 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 such other documents and has received or has been
accorded the opportunity to receive copies of the most recent financial statements
delivered pursuant to Section 5.01 thereof, as applicable, and such other
documents and information as it deems appropriate to make its own credit
analysis and decision; (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 to the
Assignment is any documentation required to be delivered by it pursuant to the
terms of the Credit Agreement, duly completed and executed by the Assignee; (b)


 


5

















 


agrees
that (i) it will, independently and without reliance upon the
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at that 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, and (c) agrees that, as of the date hereof,
it has delivered to Administrative Agent and Borrowers (i) any processing
and recordation fees and (ii) the Administrative Questionnaire, if any as
required under Section 10.06(b)(iii) of the Credit Agreement.


 


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 shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
and assigns. This Assignment 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 by telecopy shall be
effective as delivery of a manually executed counterpart of this Assignment.
This Assignment shall be governed by, and construed in accordance with, the
laws of the State of New York.


 


6

















 


EXHIBIT F-l TO


CREDIT AND
GUARANTY AGREEMENT


 


CLOSING DATE CERTIFICATE


 


EACH OF THE UNDERSIGNED HEREBY CERTIFY AS FOLLOWS:


 


1.   We are the chief financial officer and an Authorized
Officer of MR DEFAULT SERVICES LLC, a Delaware limited liability company (“MR”),
E-DEFAULT SERVICES LLC, a Delaware limited liability company (“E-Default”),
STATEWIDE TAX AND TITLE SERVICES LLC, a Delaware limited liability company (“STT”),
STATEWIDE PUBLISHING SERVICES LLC, a Delaware limited liability company (“Statewide
Publishing” and, together with MR, E-Default and STT on a joint and several
basis, “Borrowers”) and MR PROCESSING HOLDING CORP., a Delaware
corporation (“Holdings”).


 


2.   We refer to the Credit and Guaranty Agreement, dated
as of February 24, 2006 (as it may be amended, supplemented, restated or
otherwise modified, the “Credit Agreement”; the terms defined therein
and not otherwise defined herein being used herein as therein defined), by and
among Borrowers, Holdings, certain subsidiaries of Borrowers, as Guarantors,
the Lenders party thereto from time to time, THE ROYAL BANK OF SCOTLAND PLC, as
Administrative Agent, Collateral Agent and Documentation Agent, and RBS
SECURITIES CORPORATION as Sole Lead Arranger, Sole Book Runner and Syndication
Agent.


 


3.   We have reviewed the terms of Articles 3 and 4 of the
Credit Agreement and the definitions and provisions contained in the Credit Agreement
relating thereto, and in our opinion we have made, or have caused to be made
under our supervision, such examination or investigation as is reasonable and
necessary to enable us to express an informed opinion as to the matters
referred to herein.


 


4.   Based upon our review and examination described in
paragraph (3) above, we, in our official capacities and not in our
individual capacities, certify, on behalf of Borrowers, that as of the date
hereof:


 


(i)           the representations and warranties
contained in each of the Loan Documents are true, correct and complete in all
material respects on and as of the Closing Date to the same extent as though
made on and as of such date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties are true, correct and complete in all material
respects on and as of such earlier date;


 


(ii)          no injunction or other restraining order
shall have been issued and no hearing to cause an injunction or other
restraining order to be issued shall be pending or noticed with respect to any
action, suit or proceeding seeking to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result of, the
borrowing contemplated hereby;


 


1

















 


(iii)         no
event has occurred and is continuing or would result from the consummation of
the borrowing contemplated hereby that would constitute an Event of Default or
a Default;


 


(iv)         all conditions to the Acquisition set
forth in the Acquisition Agreement have been satisfied or waived (in accordance
with the terms and provisions of the Credit Agreement) and the aggregate cash
consideration paid to the Sellers in connection with the Acquisition does not
exceed $183,600,000 including fees and transaction costs;


 


(v)          the Equity Contribution has occurred;


 


(vi)         the Senior Subordinated Notes in
aggregate amount not to exceed $39,000,000 have been purchased;


 


(vii)        Holdings
and its Subsidiaries have (i) repaid in full all existing indebtedness
except as otherwise provided in the Credit Agreement, (ii) terminated any
commitments to lend or make other extensions of credit thereunder, and (iii) delivered
to Administrative Agent copies of all documents or instruments necessary to
release all Liens securing existing indebtedness or other obligations of
Holdings and its Subsidiaries being repaid on the Closing Date; and


 


(viii)       Borrowers
have paid, or will on the date hereof pay, all fees due and payable to
Administrative Agent (including, without limitation, reasonable legal fees and
expenses).


 


5.  Attached as Annex A hereto are true,
complete and correct (and, where applicable, executed and conformed) copies of:


 


(a)           each of the Material Contracts, and we
have reviewed the terms of each of such documents and in our opinion we have
made, or have caused to be made under our supervision, such examination or
investigation as is necessary to enable us to express an informed opinion as to
the matters referred to in paragraph (4); and


 


(b)          each Related Agreement.


 


6.  Each Loan Party has requested Kirkland &
Ellis LLP to deliver to the Administrative Agent and Lenders on the Closing Date
favorable written opinions to the Administrative Agent and Lenders in accordance
with Section 3.01(1) of the Credit Agreement.


 


7.  The Administrative Agent and Lenders have
received true, complete and correct (and, where applicable, executed and
conformed) copies of:


 


(1)          pro forma consolidated balance sheets of
Holdings and its Subsidiaries as at the Closing Date, and


 


(2)          the Projections.


 


2

















 


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


 


[Remainder of page intentionally left blank.]


 


3














 


The foregoing
certifications are made and delivered as of February 24, 2006.


 


	
   

  	
  MR DEFAULT SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title: 

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  E-DEFAULT SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title: 

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  STATEWIDE
  TAX AND TITLE SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title: 

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  STATEWIDE
  PUBLISHING SERVICES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title: 

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


4

















 


	
   

  	
  MR
  PROCESSING HOLDING CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title: 

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


5

















 


EXHIBIT F-2 TO


CREDIT AND GUARANTY
AGREEMENT


 


SOLVENCY CERTIFICATE


 


THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS:


 


1.   I  am
the Chief Financial Officer of MR DEFAULT SERVICES LLC, a Delaware limited
liability company (“MR”), E-DEFAULT SERVICES LLC, a Delaware limited
liability company (“E-Default”), STATEWIDE TAX AND TITLE SERVICES LLC, a
Delaware limited liability company (“STT”), STATEWIDE PUBLISHING
SERVICES LLC, a Delaware limited liability company (“Statewide Publishing”
and, together with MR, E-Default and STT on a joint and several basis, “Borrowers”),
and MR PROCESSING HOLDING CORP., a Delaware corporation (“Holdings”).


 


2.   Reference is
made to the Credit and Guaranty Agreement, dated as of February 24, 2006
(as it may be amended, supplemented, restated or otherwise modified, the “Credit
Agreement”; the terms defined therein and not otherwise defined herein
being used herein as therein defined), by and among Borrowers, Holdings,
certain subsidiaries of Borrowers, as Guarantors, the Lenders party thereto
from time to time, THE ROYAL BANK OF SCOTLAND PLC, as Administrative Agent,
Collateral Agent and Documentation Agent, and RBS SECURITIES CORPORATION as
Sole Lead Arranger, Sole Book Runner and Syndication Agent.


 


3.   I have reviewed
the terms of Articles 3 and 4 of the Credit Agreement and the definitions and
provisions contained in the Credit Agreement relating thereto, together with
each of the Related Agreements, and, in my opinion, have made, or have caused
to be made under my supervision, such examination or investigation as is
necessary to enable me to express an informed opinion as to the matters
referred to herein.


 


4.   Based upon
my review and examination described in paragraph (3) above, on behalf of
the Loan Parties in my official capacity and not in my individual capacity, I
hereby certify that as of the date hereof, after giving effect to the
consummation of the Transactions and the initial borrowings under the Credit
Agreement, the Loan Parties, taken as a whole, are Solvent.


 


1

















 


The
foregoing certifications are made and delivered as of February 24, 2006.


 


 


	
   

  	
  MR
  DEFAULT SERVICES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  E-DEFAULT
  SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  STATEWIDE
  TAX AND TITLE SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  STATEWIDE
  PUBLISHING SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MR
  PROCESSING HOLDING CORP.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  



 


2

















 


EXHIBIT G TO


CREDIT AND GUARANTY
AGREEMENT


 


COUNTERPART AGREEMENT


 


This COUNTERPART AGREEMENT, dated [mm/dd/yy] (this “Counterpart Agreement”)
is delivered pursuant to that certain Credit and Guaranty Agreement, dated as
of February 24, 2006 (as it may be amended, supplemented, restated or
otherwise modified, the “Credit Agreement”; the terms defined therein
and not otherwise defined herein being used herein as therein defined), by and
among MR DEFAULT SERVICES LLC, a Delaware limited liability company (“MR”),
E-DEFAULT SERVICES LLC, a Delaware limited liability company (“E-Default”),
STATEWIDE TAX AND TITLE SERVICES LLC, a Delaware limited liability company (“STT”),
STATEWIDE PUBLISHING SERVICES LLC, a Delaware limited liability company (“Statewide
Publishing” and, together with MR, E-Default and STT on a joint and several
basis, “Borrowers”), MR PROCESSING HOLDING CORP., a Delaware corporation
(“Holdings”), certain subsidiaries of Borrowers, as Guarantors, the
Lenders party thereto from time to time, THE ROYAL BANK OF SCOTLAND PLC, as
Administrative Agent, Collateral Agent and Documentation Agent, and RBS SECURITIES
CORPORATION as Sole Lead Arranger, Sole Book Runner and Syndication Agent.


 


Section 1.  Pursuant to Section 5.11
of the Credit Agreement, the undersigned hereby:


 


(a)     agrees
that this Counterpart Agreement may be attached to the Credit Agreement and
that by the execution and delivery hereof, the undersigned becomes a Guarantor
under the Credit Agreement and a Grantor under the Pledge and Security
Agreement and agrees to be bound by all of the terms thereof;


 


(b)     represents
and warrants that each of the representations and warranties set forth in the
Credit Agreement and each other Loan Document that are applicable to the
undersigned is true and correct both before and after giving effect to this
Counterpart Agreement, except to the extent that any such representation and
warranty relates solely to any earlier date, in which case such representation
and warranty is true and correct as of such earlier date;


 


(c)     represents
and warrants that no event has occurred or is continuing as of the date hereof,
or will result from the transactions contemplated hereby on the date hereof,
that would constitute an Event of Default or a Default;


 


(d)     agrees to
irrevocably and unconditionally guaranty the due and punctual payment in full
of all Obligations when the same shall become due, whether at stated maturity,
by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a))
and in accordance with Article 7 of the Credit Agreement; and


 


(e)     (i) agrees
that this counterpart may be attached to the Pledge and Security Agreement, (ii) agrees
that the undersigned will comply with all the terms and conditions of the Pledge
and Security Agreement as if it were an original signatory thereto, (iii) grants
to Collateral Agent (as such term is defined in the Pledge and Security
Agreement) a security interest in all of


 


1

















 


the undersigned’s
right, title and interest in and to all “Collateral” (as such term is defined
in the Pledge and Security Agreement) of the undersigned, in each case whether
now or hereafter existing or in which the undersigned now has or hereafter
acquires an interest and wherever the same may be located and (iv) delivers
to Collateral Agent supplements to all schedules attached to the Pledge and
Security Agreement. All such Collateral shall be deemed to be part of the “Collateral”
and hereafter subject to each of the terms and conditions of the Pledge and
Security Agreement.


 


Section 2.  The undersigned agrees from time to time,
upon reasonable request of Administrative Agent, to take such additional
actions and to execute and deliver such additional documents and instruments as
Administrative Agent may reasonably request to effect the transactions
contemplated by, and to carry out the intent of, this Agreement. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated,
except by an instrument in writing signed by the party (including, if
applicable, any party required to evidence its consent to or acceptance of this
Agreement) against whom enforcement of such change, waiver, discharge or
termination is sought. Any notice or other communication herein required or
permitted to be given shall be given pursuant to Section 10.01 of the
Credit Agreement, and all for purposes thereof, the notice address of the
undersigned shall be the address as set forth on the signature page hereof.
In case any provision in or obligation under this Agreement shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.


 


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


 


2

















 


IN WITNESS WHEREOF, the undersigned has caused this Counterpart Agreement
to be duly executed and delivered by its duly authorized officer as of the date
above first written.


 


	
   

  	
  [NAME
  OF SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Address for Notices:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
   

  
	
  Telecopier

  	
   

  
	
   

  	
   

  
	
  with a copy to:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
   

  
	
  Telecopier

  	
   

  
	
   

  	
   

  
	
  ACKNOWLEDGED AND
  ACCEPTED,

  as of the date above first written:

  	
   

  
	
   

  	
   

  
	
  THE ROYAL BANK OF SCOTLAND PLC,

  	
   

  
	
  as Administrative Agent
  and Collateral Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


3

















 


EXHIBIT H TO  
..


CREDIT AND GUARANTY AGREEMENT


 


PLEDGE AND SECURITY AGREEMENT


 


See Tab 4


 


1














 


EXECUTION
VERSION


	
   

  	
   

  



 


 


PLEDGE AND SECURITY AGREEMENT


 


 


dated as of February 9, 2007


 


among


 


EACH OF THE OTHER GRANTORS PARTY HERETO


 


and


 


THE ROYAL BANK OF SCOTLAND PLC,


 


as the Collateral Agent


 


	
   

  	
   

  



 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 1.01

  	
   

  	
  General
  Definitions

  	
   

  	
  1

  
	
  Section 1.02

  	
   

  	
  Definitions;
  Interpretation

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II GRANT OF SECURITY

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.01

  	
   

  	
  Grant
  of Security

  	
   

  	
  7

  
	
  Section 2.02

  	
   

  	
  Certain
  Limited Exclusions

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III SECURITY FOR OBLIGATIONS; GRANTORS
  REMAIN LIABLE

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3.01

  	
   

  	
  Security
  for Obligations

  	
   

  	
  9

  
	
  Section 3.02

  	
   

  	
  Continuing
  Liability Under Collateral

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV REPRESENTATIONS AND WARRANTIES AND
  COVENANTS

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.01

  	
   

  	
  Generally

  	
   

  	
  9

  
	
  Section 4.02

  	
   

  	
  Equipment
  and Inventory

  	
   

  	
  13

  
	
  Section 4.03

  	
   

  	
  Receivables

  	
   

  	
  14

  
	
  Section 4.04

  	
   

  	
  Investment
  Related Property

  	
   

  	
  16

  
	
  Section 4.05

  	
   

  	
  Pledged
  Equity Interests

  	
   

  	
  18

  
	
  Section 4.06

  	
   

  	
  Pledged
  Debt

  	
   

  	
  20

  
	
  Section 4.07

  	
   

  	
  Investment
  Accounts

  	
   

  	
  20

  
	
  Section 4.08

  	
   

  	
  Material
  Contracts

  	
   

  	
  22

  
	
  Section 4.09

  	
   

  	
  Letter
  of Credit Rights

  	
   

  	
  23

  
	
  Section 4.10

  	
   

  	
  Intellectual
  Property

  	
   

  	
  24

  
	
  Section 4.11

  	
   

  	
  Commercial
  Tort Claims

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V FURTHER ASSURANCES; ADDITIONAL GRANTORS

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.01

  	
   

  	
  Further
  Assurances

  	
   

  	
  27

  
	
  Section 5.02

  	
   

  	
  Additional
  Grantors

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI COLLATERAL AGENT APPOINTED
  ATTORNEY-IN-FACT

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 6.01

  	
   

  	
  Power
  of Attorney

  	
   

  	
  29

  
	
  Section 6.02

  	
   

  	
  No
  Duty on the Part of Collateral Agent or Secured Parties

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII REMEDIES

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 7.01

  	
   

  	
  Generally

  	
   

  	
  30

  
	
  Section 7.02

  	
   

  	
  Application
  of Proceeds

  	
   

  	
  31

  
	
  Section 7.03

  	
   

  	
  Sales
  on Credit

  	
   

  	
  32

  
	
  Section 7.04

  	
   

  	
  Deposit
  Accounts

  	
   

  	
  32

  
	
  Section 7.05

  	
   

  	
  Investment
  Related Property

  	
   

  	
  32

  
	
  Section 7.06

  	
   

  	
  Intellectual
  Property

  	
   

  	
  32

  



 

















 


	
  Section 7.07

  	
   

  	
  Cash
  Proceeds

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII COLLATERAL AGENT

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX CONTINUING SECURITY INTEREST; TRANSFER
  OF LOANS

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X STANDARD OF CARE; COLLATERAL AGENT
  MAY PERFORM

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI MISCELLANEOUS

  	
   

  	
  36

  



 


ii

















 


	
  SCHEDULE 4.01 — GENERAL INFORMATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 4.02 — LOCATION OF EQUIPMENT AND
  INVENTORY

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 4.05 — INVESTMENT RELATED PROPERTY

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 4.08 — MATERIAL CONTRACTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 4.09 — DESCRIPTION OF LETTERS OF CREDIT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 4.10 — INTELLECTUAL PROPERTY EXCEPTIONS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 4.11 — COMMERCIAL TORT CLAIMS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A — PLEDGE SUPPLEMENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT B — UNCERTIFICATED SECURITIES CONTROL
  AGREEMENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT C — SECURITIES ACCOUNT CONTROL AGREEMENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT D — DEPOSIT ACCOUNT CONTROL AGREEMENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT E – TRADEMARK SECURITY AGREEMENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT F – COPYRIGHT SECURITY AGREEMENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT G – PATENT SECURITY AGREEMENT

  	
   

  	
   

  



 


iii

















 


This PLEDGE AND SECURITY AGREEMENT, dated as of February 9,
2007 (this “Agreement”), between EACH OF THE UNDERSIGNED, whether as an
original signatory hereto or as an Additional Grantor (as herein defined)
(each, a “Grantor”), and The Royal Bank of Scotland plc, as collateral
agent for the Secured Parties (as herein defined) (in such capacity, the “Collateral
Agent”).


 


RECITALS:


 


WHEREAS, reference is made
to that certain Credit and Guaranty Agreement, dated as of February 9,
2007 (as it may be amended, supplemented, restated or otherwise modified, the “Credit
Agreement”; the terms defined therein and not otherwise defined herein
being used herein as therein defined), by and among MR DEFAULT SERVICES LLC, a
Delaware limited liability company (“MR”), E-DEFAULT SERVICES LLC, a
Delaware limited liability company (“E-Default”), STATEWIDE TAX AND
TITLE SERVICES LLC, a Delaware limited liability company (“STT”),
STATEWIDE PUBLISHING SERVICES LLC, a Delaware limited liability company (“Statewide
Publishing” and, together with MR, E-Default and STT on a joint and several
basis, the “Companies” or the “Borrowers”), MR PROCESSING HOLDING
CORP., a Delaware corporation (“Holdings”), certain subsidiaries of the
Companies, as Guarantors, the Lenders party thereto from time to time, THE
ROYAL BANK OF SCOTLAND PLC, as Administrative Agent, Collateral Agent and
Documentation Agent and RBS SECURITIES CORPORATION as Sole Lead Arranger, Sole
Book Runner and Syndication Agent;


 


WHEREAS, subject to the
terms and conditions of the Credit Agreement, certain Grantors may enter into
one or more Hedge Agreements (as defined in the Credit Agreement) with one or
more Lender Counterparties;


 


WHEREAS, in consideration of
the extensions of credit to the Borrowers and other accommodations of Lenders
and Lender Counterparties as set forth in the Credit Agreement and the Hedge
Agreements, respectively, each Grantor has agreed to secure such Grantor’s
Obligations under the Loan Documents and the Hedge Agreements as set forth
herein; and


 


NOW, THEREFORE, in
consideration of the premises and the agreements, provisions and covenants
herein contained, each Grantor and the Collateral Agent hereby agree as
follows:


 


ARTICLE I


 


DEFINITIONS


 


Section 1.01          General Definitions. In this Agreement, the
following terms shall have the following meanings:


 


“Account Debtor”
shall mean each Person who is obligated on a Receivable or any Supporting
Obligation related thereto.


“Accounts” shall mean
all “accounts” as defined in Article 9 of the UCC.


 


“Additional Grantors”
shall have the meaning assigned in Section 5.02.


 


“Agreement” shall have the meaning set forth
in the preamble.


 


“Assigned Agreements”
shall mean all agreements and contracts to which such Grantor is a party as of
the date hereof, or to which such Grantor becomes a party after the date
hereof, including,


 

















 


without limitation, each Material Contract, as each such agreement may
be amended, supplemented, restated or otherwise modified from time to time.


 


“Borrowers” shall have the meaning set forth
in the recitals.


 


“Cash Proceeds” shall have the meaning
assigned in Section 7.07.


 


“Chattel Paper” shall
mean all “chattel paper” as defined in Article 9 of the UCC, including,
without limitation, “electronic chattel paper” or “tangible chattel paper”, as
each term is defined in Article 9 of the UCC.


 


“Collateral” shall have the meaning assigned
in Section 2.01.


 


“Collateral Account”
means any account established by the Collateral Agent for the purpose of
serving as a collateral account under this Agreement.


 


“Collateral Agent” shall have the meaning set
forth in the preamble.


 


“Collateral Records”
shall mean books, records, ledger cards, files, correspondence, customer lists,
blueprints, technical specifications, manuals, computer software, computer
printouts, tapes, disks and related data processing software and similar items
that at any time evidence or contain information relating to any of the
Collateral or are otherwise necessary or helpful in the collection thereof or
realization thereupon.


 


“Collateral Support”
shall mean all property (real or personal) assigned, hypothecated or otherwise
securing any Collateral and shall include any security agreement or other
agreement granting a lien or security interest in such real or personal
property.


 


“Commercial Tort Claims”
shall mean all “commercial tort claims” as defined in Article 9 of the
UCC, including, without limitation, all commercial tort claims listed on
Schedule 4.11 (as such schedule may be amended or supplemented from time to
time).


 


“Commodities Accounts”
(i) shall mean all “commodity accounts” as defined in Article 9 of
the UCC and (ii) shall include, without limitation, all of the accounts
listed on Schedule 4.05 under the heading “Commodities Accounts” (as such
schedule may be amended or supplemented from time to time).


 


“Controlled Foreign
Corporation” shall mean “controlled foreign corporation” as defined in the
Internal Revenue Code.


 


“Copyright Licenses”
shall mean any and all agreements providing for the granting of any right in or
to Copyrights (whether such Grantor is licensee or licensor thereunder)
including, without limitation, each agreement referred to in Schedule 4.10(B) (as
such schedule may be amended or supplemented from time to time).


 


“Copyrights” shall
mean all United States and foreign copyrights (including Community designs),
including but not limited to copyrights in software and databases, and all Mask
Works (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether
registered or unregistered, and with respect to any and all of the foregoing: (i) all
registrations and applications therefor including, without limitation, the
registrations and applications referred to in Schedule 4.10(A) (as such
schedule may be amended or supplemented from time to time), (ii) all
extensions and renewals thereof, (iii) all rights


 


2

















 


corresponding
thereto throughout the world, (iv) all rights to sue for past, present and
future infringements thereof, and (v) all Proceeds of the foregoing, including,
without limitation, licenses, royalties, income, payments, claims, damages, and
proceeds of suit.


 


“Core Software” means
the computer software (in source and object code format, and including all
associated libraries and other components necessary for the compilation and
execution thereof) comprising the current (as of the Closing Date and each
Credit Date) commercial production versions of the applications commonly
referred to by Grantors’ predecessors as “Foreclosure Management System,” “Bankruptcy
Management System,” “Accurate Docket Sweep System,” “Electronic Document
Management System”, “Statewide Management System,” and “Time Line Tracker” but
excluding in each case third party computer software licensed to Grantors
pursuant to a valid and enforceable license agreement.


 


“Credit Agreement” shall have the meaning set
forth in the recitals.


 


“Deposit Accounts” (i) shall
mean all “deposit accounts” as defined in Article 9 of the UCC and (ii) shall
include, without limitation, all of the accounts listed on Schedule 4.05 under
the heading “Deposit Accounts” (as such schedule may be amended or supplemented
from time to time).


 


“Documents” shall mean all “documents” as
defined in Article 9 of the UCC.


 


“Equipment” shall
mean: (i) all “equipment” as defined in Article 9 of the UCC, (ii) all
machinery, manufacturing equipment, data processing equipment, computers,
office equipment, furnishings, furniture, appliances, fixtures and tools (in
each case, regardless of whether characterized as equipment under the UCC) and (iii) all
accessions or additions thereto, all parts thereof, whether or not at any time
of determination incorporated or installed therein or attached thereto, and all
replacements therefor, wherever located, now or hereafter existing, including
any fixtures.


 


“General Intangibles”
(i) shall mean all “general intangibles” as defined in Article 9 of
the UCC, including “payment intangibles” also as defined in Article 9 of
the UCC and (ii) shall include, without limitation, all interest rate or
currency protection or hedging arrangements, all tax refunds, all licenses,
permits, concessions and authorizations, all Assigned Agreements and all
Intellectual Property (in each case, regardless of whether characterized as
general intangibles under the UCC).


 


“Goods” (i) shall
mean all “goods” as defined in Article 9 of the UCC and (ii) shall
include, without limitation, all Inventory and Equipment (in each case,
regardless of whether characterized as goods under the UCC).


 


“Grantors” shall have the meaning set forth
in the preamble.


 


“Holdings” shall have the meaning set forth
in the recitals.


 


“Instruments” shall mean all “instruments” as
defined in Article 9 of the UCC.


 


“Insurance” shall
mean (i) all insurance policies covering any or all of the Collateral
(regardless of whether the Collateral Agent is the loss payee thereof) and (ii) any
key man life insurance policies.


 


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


 


3

















 


“Inventory” shall mean (i) all “inventory” as defined in Article 9
of the UCC and (ii) all goods held for sale or lease or to be furnished
under contracts of service or so leased or furnished, all raw materials, work
in process, finished goods, and materials used or consumed in the manufacture,
packing, shipping, advertising, selling, leasing, furnishing or production of
such inventory or otherwise used or consumed in any Grantor’s business; all
goods in which any Grantor has an interest in mass or a joint or other interest
or right of any kind; and all goods which are returned to or repossessed by any
Grantor, all computer programs embedded in any goods and all accessions thereto
and products thereof (in each case, regardless of whether characterized as
inventory under the UCC).


 


“Investment Accounts”
shall mean the Collateral Account, Securities Accounts, Commodities Accounts
and Deposit Accounts.


 


“Investment Related
Property” shall mean: (i) all “investment property” (as such term is
defined in Article 9 of the UCC) and (ii) all of the following
(regardless of whether classified as investment property under the UCC): all
Pledged Equity Interests, Pledged Debt, the Investment Accounts and
certificates of deposit.


 


“Letter of Credit Right”
shall mean “letter-of-credit right” as defined in Article 9 of the UCC.


 


“Loan Documents”
shall mean the Credit Agreement, the other Loan Documents (as defined in the
Credit Agreement) and the Hedge Agreement.


 


“Money” shall mean “money” as defined in the
UCC.


 


“Non-Assignable Contract”
shall mean any agreement, contract or license to which any Grantor is a party
that by its terms purport to restrict or prevent the assignment or granting of
a security interest therein (either by its terms or by any federal or state
statutory prohibition or otherwise irrespective of whether such prohibition or
restriction is enforceable under Section 9-406 through 409 of the UCC).


 


“Patent Licenses”
shall mean all agreements providing for the granting of any right in or to
Patents (whether such Grantor is licensee or licensor thereunder) including,
without limitation, each agreement referred to in Schedule 4.10(D) (as
such schedule may be amended or supplemented from time to time).


 


“Patents” shall mean
all United States and foreign patents and certificates of invention, or similar
industrial property rights, and applications for any of the foregoing,
including, but not limited to: (i) each patent and patent application
referred to in Schedule 4.10(C) hereto (as such schedule may be amended or
supplemented from time to time), (ii) all reissues, divisions,
continuations, continuations-in-part, extensions, renewals, and reexaminations
thereof, (iii) all rights corresponding thereto throughout the world, (iv) all
inventions and improvements described therein, (v) all rights to sue for
past, present and future infringements thereof, (vi) all licenses, claims,
damages, and proceeds of suit arising therefrom, and (vii) all Proceeds of
the foregoing, including, without limitation, licenses, royalties, income,
payments, claims, damages, and proceeds of suit.


 


“Permitted Sale”
shall mean those sales, transfers or assignments permitted by the Credit
Agreement.


 


“Pledge Supplement”
shall mean any supplement to this agreement in substantially the form of Exhibit A.


 


4

















 


“Pledged Debt” shall mean all Indebtedness
owed to such Grantor, including, without limitation, all Indebtedness described
on Schedule 4.05(A) under the heading “Pledged Debt” (as such schedule may
be amended or supplemented from time to time), issued by the obligors named
therein, the instruments evidencing such Indebtedness, and all interest, cash,
instruments and other property or proceeds from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all of such
Indebtedness.


 


“Pledged Equity Interests”
shall mean all Pledged Stock, Pledged LLC Interests, Pledged Partnership
Interests and Pledged Trust Interests.


 


“Pledged LLC Interests”
shall mean all interests in any limited liability company including, without
limitation, all limited liability company interests listed on Schedule 4.05(A) under
the heading “Pledged LLC Interests” (as such schedule may be amended or
supplemented from time to time) and the certificates, if any, representing such
limited liability company interests and any interest of such Grantor on the
books and records of such limited liability company or on the books and records
of any securities intermediary pertaining to such interest and all dividends,
distributions, cash, warrants, rights, options, instruments, securities and
other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such limited
liability company interests.


 


“Pledged Partnership
Interests” shall mean all interests in any general partnership, limited
partnership, limited liability partnership or other partnership including,
without limitation, all partnership interests listed on Schedule 4.05(A) under
the heading “Pledged Partnership Interests” (as such schedule may be amended or
supplemented from time to time) and the certificates, if any, representing such
partnership interests and any interest of such Grantor on the books and records
of such partnership or on the books and records of any securities intermediary
pertaining to such interest and all dividends, distributions, cash, warrants,
rights, options, instruments, securities and other property or proceeds from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such partnership interests.


 


“Pledged Stock” shall
mean all shares of capital stock owned by such Grantor, including, without
limitation, all shares of capital stock described on Schedule 4.05(A) under
the heading “Pledged Stock” (as such schedule may be amended or supplemented
from time to time), and the certificates, if any, representing such shares and
any interest of such Grantor in the entries on the books of the issuer of such
shares or on the books of any securities intermediary pertaining to such
shares, and all dividends, distributions, cash, warrants, rights, options,
instruments, securities and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such shares.


 


“Pledged Trust Interests”
shall mean all interests in a Delaware business trust or other trust including,
without limitation, all trust interests listed on Schedule 4.05(A) under
the heading “Pledged Trust Interests” (as such schedule may be amended or
supplemented from time to time) and the certificates, if any, representing such
trust interests and any interest of such Grantor on the books and records of
such trust or on the books and records of any securities intermediary
pertaining to such interest and all dividends, distributions, cash, warrants,
rights, options, instruments, securities and other property or proceeds from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such trust interests.


 


“Proceeds” shall
mean: (i) all “proceeds” as defined in Article 9 of the UCC, (ii) payments
or distributions made with respect to any Investment Related Property and (iii) whatever
is receivable or received when Collateral or proceeds are sold, exchanged,
collected or otherwise disposed of, whether such disposition is voluntary or
involuntary.


 


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“Receivables” shall mean all rights to
payment, whether or not earned by performance, for goods or other property
sold, leased, licensed, assigned or otherwise disposed of, or services rendered
or to be rendered, including, without limitation all such rights constituting
or evidenced by any Account, Chattel Paper, Instrument, General Intangible or
Investment Related Property, together with all of Grantor’s rights, if any, in
any goods or other property giving rise to such right to payment and all
Collateral Support and Supporting Obligations related thereto and all
Receivables Records.


 


“Receivables Records”
shall mean (i) all original copies of all documents, instruments or other
writings or electronic records or other Records evidencing the Receivables, (ii) all
books, correspondence, credit or other files, Records, ledger sheets or cards,
invoices, and other papers relating to Receivables, including, without
limitation, all tapes, cards, computer tapes, computer discs, computer runs,
record keeping systems and other papers and documents relating to the
Receivables, whether in the possession or under the control of Grantor or any
computer bureau or agent from time to time acting for Grantor or otherwise, (iii) all
evidences of the filing of financing statements and the registration of other
instruments in connection therewith, and amendments, supplements or other
modifications thereto, notices to other creditors or secured parties, and
certificates, acknowledgments, or other writings, including, without
limitation, lien search reports, from filing or other registration officers, (iv) all
credit information, reports and memoranda relating thereto and (v) all
other written or nonwritten forms of information related in any way to the
foregoing or any Receivable.


 


“Record” shall have the meaning specified in Article 9
of the UCC.


 


“Secured Obligations” shall have the meaning
assigned in Section 3.01.


 


“Secured Parties”
shall mean the Lenders and the Lender Counterparties and shall include, without
limitation, all former Lenders and Lender Counterparties to the extent that any
Obligations owing to such Persons were incurred while such Persons were Lenders
or Lender Counterparties and such Obligations have not been paid or satisfied
in full.


 


“Securities Accounts”
(i) shall mean all “securities accounts” as defined in Article 8 of
the UCC and (ii) shall include, without limitation, all of the accounts
listed on Schedule 4.05(A) under the heading “Securities Accounts” (as
such schedule may be amended or supplemented from time to time).


 


“Supporting Obligation”
shall mean all “supporting obligations” as defined in Article 9 of the
UCC.


 


“Trademark Licenses”
shall mean any and all agreements providing for the granting of any right in or
to Trademarks (whether such Grantor is licensee or licensor thereunder)
including, without limitation, each agreement referred to in Schedule 4.10(F) (as
such schedule may be amended or supplemented from time to time).


 


“Trademarks” shall
mean all United States, state and foreign trademarks, trade names, corporate
names, company names, business names, fictitious business names, internet
domain names, trade styles, service marks, certification marks, collective
marks, logos, other source or business identifiers, designs and general
intangibles of a like nature, all registrations and applications for any of the
foregoing including, but not limited to the registrations and applications
referred to in Schedule 4.10(E) (as such schedule may be amended or
supplemented from time to time), all extensions or renewals of any of the
foregoing, all of the goodwill of the business connected with the use of and
symbolized by the foregoing, the right to sue for past, present and future
infringement or dilution of any of the foregoing or for any injury to goodwill,
and all Proceeds of the foregoing, including, without limitation, licenses,
royalties, income, payments, claims, damages, and proceeds of suit.


 


6

















 


“Trade Secret Licenses” shall mean any and all agreements
providing for the granting of any right in or to Trade Secrets (whether such
Grantor is licensee or licensor thereunder) including, without limitation, each
agreement referred to in Schedule 4.10(G) (as such schedule may be amended
or supplemented from time to time).


 


“Trade Secrets” shall
mean all trade secrets and all other confidential or proprietary information
and know-how whether or not such Trade Secret has been reduced to a writing or
other tangible form, including all documents and things embodying, incorporating,
or referring in any way to such Trade Secret, including but not limited to: (i) the
right to sue for past, present and future misappropriation or other violation
of any Trade Secret, and (ii) all Proceeds of the foregoing, including,
without limitation, licenses, royalties, income, payments, claims, damages, and
proceeds of suit.


 


“UCC” shall mean the
Uniform Commercial Code as in effect from time to time in the State of New York
or, when the context implies, the Uniform Commercial Code as in effect from
time to time in any other applicable jurisdiction.


 


“United States” shall mean the United States
of America.


 


Section 1.02          Definitions; Interpretation. All
capitalized terms used herein (including the preamble and recitals hereto) and
not otherwise defined herein shall have the meanings ascribed thereto in the
Credit Agreement or, if not defined therein, in the UCC. References to “Sections,”
“Exhibits” and “Schedules” shall be to Sections, Exhibits and Schedules, as the
case may be, of this Agreement unless otherwise specifically provided. Section headings
in this Agreement are included herein for convenience of reference only and
shall not constitute a part of this Agreement for any other purpose or be given
any substantive effect. Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference. The use herein of the word “include” or “including”, when following
any general statement, term or matter, shall not be construed to limit such
statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not
nonlimiting language (such as “without limitation” or “but not limited to” or
words of similar import) is used with reference thereto, but rather shall be
deemed to refer to all other items or matters that fall within the broadest
possible scope of such general statement, term or matter. If any conflict or
inconsistency exists between this Agreement and the Credit Agreement, the
Credit Agreement shall govern. All references herein to provisions of the UCC
shall include all successor provisions under any subsequent version or
amendment to any Article of the UCC.


 


ARTICLE II


 


GRANT OF SECURITY


 


Section 2.01          Grant of Security. Each Grantor hereby grants
to the Collateral Agent a security interest and continuing lien on all of such
Grantor’s right, title and interest in, to and under all personal property of
such Grantor including, but not limited to the following, in each case whether
now owned or existing or hereafter acquired or arising and wherever located
(all of which being hereinafter collectively referred to as the “Collateral”):


 


(a)       Accounts;


 


(b)       Chattel Paper;


 


(c)       Documents;


 


7














 


(d)       General Intangibles;


 


(e)       Goods;


 


(f)        Instruments;


 


(g)       Insurance;


 


(h)       Intellectual Property;


 


(i)        Investment Related Property;


 


(j)        Letter of Credit Rights;


 


(k)       Money;


 


(1)       Receivables and Receivable Records;


 


(m)      Commercial Tort Claims;


 


(n)      to
the extent not otherwise included above, all Collateral Records, Collateral
Support and Supporting Obligations relating to any of the foregoing; and


 


(o)      to
the extent not otherwise included above, all Proceeds, products, accessions,
rents and profits of or in respect of any of the foregoing.


 


Section 2.02           Certain Limited Exclusions.
Notwithstanding anything herein to the contrary, in no event shall the security
interest granted under Section 2.01 hereof attach to (a) any lease,
license, contract, property rights or agreement to which any Grantor is a party
or any of its rights or interests thereunder if and for so long as the grant of
such security interest shall constitute or result in (i) the abandonment,
invalidation or unenforceability of any right, title or interest of any Grantor
therein or (ii) in a breach or termination pursuant to the terms of, or a
default under, any such lease, license, contract property rights or agreement
(other than to the extent that any such term would be rendered ineffective pursuant
to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision
or provisions) of any relevant jurisdiction or any other applicable law
(including the Bankruptcy Code) or principles of equity), provided however that
such security interest shall attach immediately at such time as the condition
causing such abandonment, invalidation or unenforceability shall be remedied
and to the extent severable, shall attach immediately to any portion of such
Lease, license, contract, property rights or agreement that does not result in
any of the consequences specified in (i) or (ii) above; (b) in
any of the outstanding capital stock of a Controlled Foreign Corporation in
excess of 65% of the voting power of all classes of capital stock of such Controlled
Foreign Corporation entitled to vote; provided that immediately upon the
amendment of the Internal Revenue Code to allow the pledge of a greater
percentage of the voting power of capital stock in a Controlled Foreign
Corporation without adverse tax consequences, the Collateral shall include, and
the security interest granted by each Grantor shall attach to, such greater
percentage of capital stock of each Controlled Foreign Corporation; or (c) any
United States intent-to-use trademark or service mark application to the extent
that any such security interest (and solely during the period in which the
grant of a security interest therein) would impair the validity or
enforceability of such intent-to-use application under federal law.


 


8

















 


ARTICLE III


 


SECURITY FOR OBLIGATIONS; GRANTORS REMAIN
LIABLE


 


Section 3.01           Security for Obligations. This
Agreement secures, and the Collateral is collateral security for, the prompt
and complete payment or performance in full when due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or
otherwise (including the payment of amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. §362(a) (and any successor provision thereof)),
of all Obligations with respect to every Grantor (the “Secured Obligations”).


 


Section 3.02           Continuing Liability Under
Collateral. Notwithstanding anything herein to the contrary, (i) each
Grantor shall remain liable for all obligations under the Collateral and
nothing contained herein is intended or shall be a delegation of duties to the
Collateral Agent or any Secured Party, (ii) each Grantor shall remain
liable under each of the agreements included in the Collateral, including,
without limitation, any agreements relating to Pledged Partnership Interests or
Pledged LLC Interests, to perform all of the obligations undertaken by it
thereunder all in accordance with and pursuant to the terms and provisions
thereof and neither the Collateral Agent nor any Secured Party shall have any
obligation or liability under any of such agreements by reason of or arising
out of this Agreement or any other document related thereto nor shall the
Collateral Agent nor any Secured Party have any obligation to make any inquiry
as to the nature or sufficiency of any payment received by it or have any
obligation to take any action to collect or enforce any rights under any
agreement included in the Collateral, including, without limitation, any
agreements relating to Pledged Partnership Interests or Pledged LLC Interests,
and (iii) the exercise by the Collateral Agent of any of its rights
hereunder shall not release any Grantor from any of its duties or obligations
under the contracts and agreements included in the Collateral.


 


ARTICLE IV


 


REPRESENTATIONS AND WARRANTIES AND COVENANTS


 


Section 4.01           Generally.


 


(a)     Representations
and Warranties. Each Grantor hereby represents and warrants, on the Closing
Date and on each Credit Date, that:


 


(i)       it owns the Collateral purported to be owned by it or
otherwise has the rights it purports to have in each item of Collateral and, as
to all Collateral whether now existing or hereafter acquired, will continue to
own or have such rights in each item of the Collateral (except for Collateral
and assets which are disposed of as permitted under the Credit Agreement), in
each case free and clear of any and all Liens, rights or claims of all other
Persons, other than Permitted Liens;


 


(ii)      it has indicated on Schedule 4.01(A)(as such schedule may be
amended or supplemented from time to time): (w) the type of organization
of such Grantor, (x) the jurisdiction of organization of such Grantor, (y) its
organizational identification number and (z) the jurisdiction where the
chief executive office or its sole place of business is (or the principal
residence if such Grantor is a natural person) located.


 


9

















 


(iii)     the full legal name of such Grantor and any prior legal name of
such Grantor used in the last year is set forth on Schedule 4.01(A), and such
Grantor does not do, business under any other name (including any trade-name or
fictitious business name) except for those names set forth on Schedule 4.01(B) (as
such schedule may be amended or supplemented from time to time);


 


(iv)    except as provided on Schedule 4.01(C), it has not changed its
name, jurisdiction of organization, chief executive office or sole place of
business (or principal residence if such Grantor is a natural person) or its
corporate structure in any way (e.g., by merger, consolidation, change in
corporate form or otherwise) within the past year;


 


(v)     it has not within the last year become bound (whether as a
result of merger or otherwise) as debtor under a security agreement entered
into by another Person, which has not heretofore been terminated other than the
agreements identified on Schedule 4.01(D) hereof (as such schedule may be
amended or supplemented from time to time);


 


(vi)    with respect to each agreement identified on Schedule 4.01(D), it
has indicated on Schedule 4.01 (A) and Schedule 4.01(B) the
information required pursuant to Section 4.01(a)(ii), (iii) and (iv) with
respect to the debtor under each such agreement;


 


(vii)   upon the proper filing of all UCC financing statements naming each
Grantor as “debtor” and the Collateral Agent as “secured party” and describing
the Collateral in the filing offices set forth opposite such Grantor’s name on
Schedule 4.01(E) hereof (as such schedule may be amended or supplemented
from time to time) and other filings delivered by each Grantor, (v) upon
delivery of all Instruments, Chattel Paper and certificated Pledged Equity
Interests and Pledged Debt, (w) upon sufficient identification of Commercial
Tort Claims, (x) upon execution of a control agreement establishing the
Collateral Agent’s “Control” (within the meaning of Section 8-106, 9-106
or 9-104 of the UCC, as applicable) with respect to any Investment Account, (y) upon
consent of the issuer with respect to Letter of Credit Rights, and (z) to
the extent not subject to Article 9 of the UCC, upon recordation of the
security interests granted hereunder in Patents, Trademarks and Copyrights in
the applicable intellectual property registries, including but not limited to
the United States Patent and Trademark Office and the United States Copyright
Office, the security interests granted to the Collateral Agent hereunder
constitute valid and perfected First Priority Liens (subject in the case of
priority only to Permitted Liens and to the rights of the United States
government (including any agency or department thereof) with respect to United
States government Receivables) on all such Collateral to the extent such
action, delivery or filing would be effective to perfect an interest under the
UCC;


 


(viii)  all actions and material consents, including
all filings, notices, registrations and recordings necessary for the exercise
by the Collateral Agent of the voting or other rights provided for in this
Agreement or the exercise of remedies in respect of the Collateral have been
made or obtained;


 


(ix)     other than the financing statements filed in favor of the
Collateral Agent, no effective UCC financing statement, fixture filing or other
instrument similar in effect under any applicable law covering all or any part
of the Collateral is on


 


10

















 


file in any filing or recording office except for (x) financing
statements for which proper termination statements have been delivered to the
Collateral Agent for filing, (y) financing statements or other instruments
similar in effect under any applicable law filed in connection with Permitted
Liens and (z) financing statements which are expressly permitted under Section 4.34
of the Credit Agreement;


 


(x)      no material authorization, approval or other action by, and no
notice to or filing with, any Governmental Authority or regulatory body is
required for either (i) the pledge or grant by any Grantor of the Liens
purported to be created in favor of the Collateral Agent hereunder or (ii) the
exercise by Collateral Agent of any rights or remedies in respect of any
Collateral (whether specifically granted or created hereunder or created or
provided for by applicable law), except (A) for the filings contemplated
by clause (vii) above, (B) as set forth in the Phase 1 Acquisition
Agreements and (C) as may be required, in connection with the disposition
of any Investment Related Property, by laws generally affecting the offering and
sale of Securities;


 


(xi)     all information supplied by any Grantor with respect to any of
the Collateral (in each case taken as a whole with respect to any particular
Collateral) is accurate and complete in all material respects;


 


(xii)    none of the Collateral constitutes, or is the Proceeds of, “farm
products” (as defined in the UCC);


 


(xiii)   it does not own any “as extracted collateral”
(as defined in the UCC) or any timber to be cut;


 


(xiv)   except for Permitted Liens, such Grantor has not become bound as a
debtor, either by contract or by operation of law, by a security agreement
previously entered into by another Person; and


 


(xv)    such Grantor has been duly organized as an entity of the type as
set forth opposite such Grantor’s name on Schedule 4.01(A) under the laws
of the jurisdiction as set forth opposite such Grantor’s name on Schedule 4.01(A) and
remains duly existing as such. Such Grantor has not filed any certificates of
domestication, transfer or continuance in any other jurisdiction.


 


(b)     Covenants
and Agreements. Each Grantor hereby covenants and agrees that:


 


(i)       except for the security interest created by this Agreement, it
shall not create or suffer to exist any Lien upon or with respect to any of the
Collateral, except Permitted Liens, and such Grantor shall, to the extent it
deems appropriate in its reasonable business judgment (other than in connection
with unauthorized UCC filings, in which case such Grantor shall use
commercially reasonable efforts to cause such UCC financing statement to be
terminated as soon as is reasonably practicable), defend the Collateral against
all Persons at any time claiming any interest therein;


 


(ii)      it shall not produce, use or permit any Collateral to be used (A) in
violation of any provision of this Agreement or (B) in violation of any
applicable statute, regulation or ordinance or any policy of insurance covering
the


 


11

















 


Collateral, except in the case of clause (B) to
the extent such violation could not reasonably be expected to have a Material
Adverse Effect;


 


(iii)     except as otherwise permitted by the Credit Agreement, it shall
not change such Grantor’s legal name, identity, corporate structure (e.g., by
merger, consolidation, change in corporate form or otherwise), sole place of
business (or principal residence if such Grantor is a natural person), chief
executive office, type of organization or jurisdiction of organization or
establish any trade names unless it shall have (a) promptly notified the
Collateral Agent in writing, by executing and delivering to the Collateral
Agent a completed Pledge Supplement, substantially in the form of Exhibit A
attached hereto, together with all Supplements to Schedules thereto,
identifying such new proposed legal name, identity, corporate structure, sole
place of business (or principal residence if such Grantor is a natural person),
chief executive office, jurisdiction of organization or trade name and
providing such other information in connection therewith as the Collateral
Agent may reasonably request and (b) taken all actions necessary to
maintain the continuous validity, perfection and the same or better priority of
the Collateral Agent’s security interest in the Collateral intended to be
granted and agreed to hereby (except as otherwise permitted hereby);


 


(iv)    if the Collateral Agent or any Secured Party gives value to
enable Grantor to acquire rights in or the use of any Collateral, it shall use
such value for such purposes and such Grantor further agrees that repayment of
any Obligation shall apply on a “first-in, first-out” basis so that the portion
of the value used to acquire rights in any Collateral shall be paid in the
chronological order such Grantor acquired rights therein;


 


(v)     it shall pay promptly all property and other taxes, assessments
and governmental charges or levies imposed upon, and all claims (including
claims for labor, materials and supplies) against, the Collateral, except to
the extent the validity thereof is being contested in good faith; provided,
such Grantor shall in any event pay such taxes, assessments, charges, levies or
claims not later than five (5) days prior to the date of any proposed sale
under any judgment, writ or warrant of attachment entered or filed against such
Grantor or any of the Collateral as a result of the failure to make such
payment;


 


(vi)    upon such Grantor or any Authorized Officer of such Grantor
obtaining knowledge thereof, it shall promptly notify the Collateral Agent in
writing of any event that may have a Material Adverse Effect on the value of
the Collateral or any portion thereof, the ability of any Grantor or the
Collateral Agent to dispose of the Collateral or any portion thereof, or the
rights and remedies of the Collateral Agent in relation thereto, including,
without limitation, the levy of any legal process against the Collateral or any
portion thereof;


 


(vii)   it shall not take any action which could materially impair the
Collateral Agent’s rights in the Collateral except as otherwise permitted under
the Credit Agreement and


 


(viii)  it shall not sell, transfer or assign (by
operation of law or otherwise) any Collateral except as Permitted Sales.


 


12

















 


Section 4.02           Equipment
and Inventory.


 


(a)     Representations
and Warranties. Each Grantor represents and warrants, on the Closing Date
and on each Credit Date, that:


 


(i)       all of the Equipment and Inventory included in the Collateral
is kept for the past four (4) years only at the locations specified in
Schedule 4.02 (as such schedule may be amended or supplemented from time to
time) except for Equipment and Inventory which is on loan to employees or
customers of any Grantor in the ordinary course of business (referred to herein
as “Excluded Equipment”);


 


(ii)      to the knowledge of any Authorized Officer of such Grantor, any
Goods now or hereafter produced by any Grantor included in the Collateral have
been and will be produced in compliance with the requirements of the Fair Labor
Standards Act, as amended; and


 


(iii)      none of the Equipment or Inventory is in the possession of an
issuer of a negotiable document (as defined in Section 7-104 of the UCC)
therefor or otherwise in the possession of a bailee or warehouseman.


 


(b)     Covenants
and Agreements. Each Grantor covenants and agrees that:


 


(i)       it shall keep the Equipment, Inventory and any Documents
evidencing any Equipment and Inventory other than Excluded Equipment in the
locations specified on Schedule 4.02 (as such schedule may be amended or
supplemented from time to time) unless it shall have (a) promptly notified
the Collateral Agent in writing, by executing and delivering to the Collateral
Agent a completed Pledge Supplement, substantially in the form of Exhibit A
attached hereto, together with all Supplements to Schedules thereto,
identifying such new locations and providing such other information in
connection therewith as the Collateral Agent may reasonably request and (b) taken
all actions necessary to maintain the continuous validity, perfection and the
same or better priority of the Collateral Agent’s security interest in the
Collateral intended to be granted and agreed to hereby, or to enable the
Collateral Agent to exercise and enforce its rights and remedies hereunder,
with respect to such Equipment and Inventory;


 


(ii)      it shall keep correct and accurate records of the Inventory, as
is customarily maintained under similar circumstances by Persons of established
reputation engaged in similar business, and in any event in conformity with
GAAP;


 


(iii)     it shall not deliver any Document evidencing any Equipment and
Inventory to any Person other than the issuer of such Document to claim the
Goods evidenced therefor or the Collateral Agent;


 


(iv)    if any Equipment or Inventory other than Excluded Equipment is in
possession or control of any third party, each Grantor shall join with the
Collateral Agent in notifying the third party of the Collateral Agent’s
security interest and shall use commercially reasonable efforts to obtain an
acknowledgment from the third party that it is holding the Equipment and
Inventory for the benefit of the Collateral Agent; and


 


(v)     with respect to any item of Equipment which is covered by a
certificate of title under a statute of any jurisdiction under the law of which
indication of a security interest on such certificate is required as a
condition of perfection


 


13

















 


thereof, upon the reasonable request of the
Collateral Agent with respect to any such Equipment in excess of $50,000
individually or $200,000 in the aggregate, (A) execute and file with the
registrar of motor vehicles or other appropriate authority in such jurisdiction
an application or other document requesting the notation or other indication of
the security interest created hereunder on such certificate of title, and (B) deliver
to the Collateral Agent copies of all such applications or other documents
filed during such calendar quarter and copies of all such certificates of title
issued during such calendar quarter indicating the security interest created
hereunder in the items of Equipment covered thereby.


 


Section 4.03           Receivables.


 


(a)     Representations
and Warranties. Each Grantor represents and warrants, on the Closing Date
and on each Credit Date, that:


 


(i)       each Receivable (a) is and will be the legal, valid and
binding obligation of the Account Debtor in respect thereof, representing an
unsatisfied obligation of such Account Debtor, (b) is and will be
enforceable in accordance with its terms, (c) is not and will not be
subject to any setoffs, defenses, taxes, counterclaims (except with respect to
refunds, returns and allowances in the ordinary course of business with respect
to damaged merchandise) and (d) is and will be in compliance with all
material applicable laws, whether federal, state, local or foreign;


 


(ii)      none of the Account Debtors in respect of any Receivable in
excess of $100,000 individually or $500,000 in the aggregate is the government
of the United States, any agency or instrumentality thereof, any state or
municipality or any foreign sovereign. No Receivable in excess of $100,000
individually or $500,000 in the aggregate requires the consent of the Account
Debtor in respect thereof in connection with the pledge hereunder, except any
consent which has been obtained; and


 


(iii)     no Receivable is evidenced by, or constitutes, an Instrument or
Chattel Paper which has not been delivered to, or otherwise subjected to the
control of, the Collateral Agent to the extent required by, and in accordance
with Section 4.03(c).


 


(b)     Covenants
and Agreements: Each Grantor hereby covenants and agrees that:


 


(i)       it shall keep and maintain at its own cost and expense
reasonably satisfactory records of the Receivables which are complete in all
material respects, including, but not limited to, all material documentation
with respect to all Receivables and records of all material payments received
and all credits granted on the Receivables, all merchandise returned and all
other dealings therewith;


 


(ii)      upon the written request of Collateral Agent, it shall mark
conspicuously, in form and manner reasonably satisfactory to the Collateral
Agent, all Chattel Paper, Instruments and other evidence of Receivables (other
than any delivered to the Collateral Agent as provided herein), as well as the
Receivables Records with an appropriate reference to the fact that the
Collateral Agent has a security interest therein;


 


14

















 


(iii)     it shall perform in all material respects all of its Obligations
with respect to the Receivables;


 


(iv)    it shall not amend, modify, terminate or waive any provision of
any Receivable in any manner which would reasonably be expected to have a
Material Adverse Effect on the value of such Receivable as Collateral. Other
than in the ordinary course of business as generally conducted by it on and
prior to the date hereof, and except as otherwise provided in subsection (v) below,
following the occurrence and during the continuation of an Event of Default,
such Grantor shall not (w) grant any extension or renewal of the time of
payment of any Receivable, (x) compromise or settle any dispute, claim or
legal proceeding with respect to any Receivable for less than the total unpaid
balance thereof, (y) release, wholly or partially, any Person liable for
the payment thereof, or (z) allow any credit or discount thereon;


 


(v)     except as otherwise provided in this subsection, each Grantor
shall continue to collect all amounts due or to become due to such Grantor
under the Receivables and any Supporting Obligation and exercise each material
right it may have under any Receivable, any Supporting Obligation or Collateral
Support, in each case, at its own expense and in the ordinary course of
business as generally conducted by it on the date hereof. Notwithstanding the
foregoing, the Collateral Agent shall have the right (A) at any time, to
require any Grantor to notify any Account Debtor of the Collateral Agent’s
security interest in the Receivables and any Supporting Obligation and, in
addition, (B) at any time following the occurrence and during the
continuation of an Event of Default, to: (1) notify any Account Debtor of
the Collateral Agent’s security interest in the Receivables and any Supporting
Obligation, (2) direct the Account Debtors under any Receivables to make
payment of all amounts due or to become due to such Grantor thereunder directly
to the Collateral Agent; (3) notify, or require any Grantor to notify,
each Person maintaining a lockbox or similar arrangement to which Account
Debtors under any Receivables have been directed to make payment to remit all
amounts representing collections on checks and other payment items from time to
time sent to or deposited in such lockbox or other arrangement directly to the
Collateral Agent; and (4) enforce, at the expense of such Grantor,
collection of any such Receivables and to adjust, settle or compromise the
amount or payment thereof, in the same manner and to the same extent as such
Grantor might have done in the ordinary course of business. If the Collateral
Agent notifies any Grantor that it has elected to collect the Receivables in
accordance with the preceding sentence, any payments of Receivables received by
such Grantor shall be forthwith (and in any event within five (5) Business
Days) deposited by such Grantor in the exact form received, duly indorsed by
such Grantor to the Collateral Agent if required, in the Collateral Account
maintained under the sole dominion and control of the Collateral Agent, and
until so turned over, all amounts and proceeds (including checks and other
instruments) received by such Grantor in respect of the Receivables, any
Supporting Obligation or Collateral Support shall be received for the benefit
of the Collateral Agent hereunder and shall be segregated from other funds of
such Grantor and such Grantor shall not adjust, settle or compromise the amount
or payment of any Receivable, or release wholly or partly any Account Debtor or
obligor thereof, or allow any credit or discount thereon; and


 


(vi)    it shall use commercially reasonable efforts to keep in full
force and effect any Supporting Obligation or Collateral Support relating to
any Receivable.


 


15

















 


(c)     Delivery
and Control of Receivables. With respect to any Receivables in excess of
$100,000 individually or $500,000 in the aggregate that is evidenced by, or
constitutes, Chattel Paper or Instruments, each Grantor shall cause each
originally executed copy thereof to be delivered to the Collateral Agent (or
its agent or designee) appropriately indorsed to the Collateral Agent or
indorsed in blank: (i) with respect to any such Receivables in existence
on the date hereof, on or prior to the date hereof and (ii) with respect
to any such Receivables hereafter arising, within ten (10) days of such
Grantor acquiring rights therein. With respect to any Receivables in excess of
$100,000 individually or $1,000,000 in the aggregate which would constitute “electronic
chattel paper” under Article 9 of the UCC, each Grantor shall take all
steps necessary to give the Collateral Agent control over such Receivables
(within the meaning of Section 9-105 of the UCC): (i) with respect to
any such Receivables in existence on the date hereof, on or prior to the date
hereof and (ii) with respect to any such Receivables hereafter arising,
within ten (10) days of such Grantor acquiring rights therein. Any
Receivable not otherwise required to be delivered or subjected to the control
of the Collateral Agent in accordance with this subsection (c) shall be
delivered or subjected to such control upon request of the Collateral Agent.


 


Section 4.04          Investment
Related Property.


 


(a)     Covenants
and Agreements. Each Grantor hereby covenants and agrees that:


 


(i)       in the event it acquires rights in any Investment Related
Property after the date hereof, it shall deliver to the Collateral Agent a
completed Pledge Supplement, substantially in the form of Exhibit A
attached hereto, together with all Supplements to Schedules thereto, reflecting
such new Investment Related Property and all other Investment Related Property.
Notwithstanding the foregoing, it is understood and agreed that the security
interest of the Collateral Agent shall attach to all Investment Related
Property immediately upon any Grantor’s acquisition of rights therein and shall
not be affected by the failure of any Grantor to deliver a supplement to
Schedule 4.05 as required hereby;


 


(ii)      except as provided in the next sentence, in the event such
Grantor receives any dividends, interest or distributions on any Investment
Related Property, or any securities or other property upon the merger,
consolidation, liquidation or dissolution of any issuer of any Investment
Related Property, then (a) such dividends, interest or distributions and
securities or other property shall be included in the definition of Collateral
without further action and (b) such Grantor shall promptly take all
necessary steps, if any, to ensure the validity, perfection, priority and, if
applicable, control of the Collateral Agent over such Investment Related
Property (including, without limitation, delivery thereof to the Collateral
Agent) and pending any such action such Grantor shall be deemed to hold such
dividends, interest, distributions, securities or other property for the benefit
of the Collateral Agent and shall segregate such dividends, distributions,
Securities or other property from all other property of such Grantor.
Notwithstanding the foregoing, so long as no Event of Default shall have
occurred and be continuing, the Collateral Agent authorizes each Grantor to
retain all ordinary cash dividends and distributions paid in the normal course
of the business of the issuer and consistent with the past practice of the
issuer and all scheduled payments of interest;


 


(iii)     each Grantor consents to the grant by each other Grantor to the
Collateral Agent of a Lien in all Investment Related Property.


 


16

















 


(b)     Delivery
and Control.


 


(i)       Each Grantor agrees that with respect to any Investment
Related Property in which it currently has rights it shall comply with the
provisions of this Section 4.04(b) on or before the Credit Date and
with respect to any Investment Related Property hereafter acquired by such
Grantor it shall comply with the provisions of this Section 4.04(b) immediately
upon acquiring rights therein, in each case in form and substance reasonably
satisfactory to the Collateral Agent. With respect to any Investment Related
Property that is represented by a certificate or that is an “instrument” (other
than any Investment Related Property credited to a Securities Account) it shall
cause such certificate or instrument to be delivered to the Collateral Agent,
indorsed in blank by an “effective endorsement” (as defined in Section 8-107
of the UCC), regardless of whether such certificate constitutes a “certificated
security” for purposes of the UCC. With respect to any Investment Related
Property that is an “uncertificated security” for purposes of the UCC (other
than any “uncertificated securities” credited to a Securities Account), it
shall use commercially reasonable efforts to cause the issuer of such
uncertificated security to either (i) register the Collateral Agent as the
registered owner thereof on the books and records of the issuer or (ii) execute
an agreement substantially in the form of Exhibit B hereto, pursuant to
which such issuer agrees to comply with the Collateral Agent’s instructions
with respect to such uncertificated security without further consent by such
Grantor.


 


(c)     Voting
and Distributions.


 


(i)       So long as no Event of Default shall have occurred and be
continuing:


 


(1)     except as otherwise provided under the covenants and agreements
relating to Investment Related Property in this Agreement or elsewhere herein
or in the Credit Agreement, each Grantor shall be entitled to exercise or
refrain from exercising any and all voting and other consensual rights
pertaining to the Investment Related Property or any part thereof for any
purpose not inconsistent with the terms of this Agreement or the Credit
Agreement; provided, no Grantor shall exercise or refrain from exercising any
such right if the Collateral Agent shall have given such Grantor at least two (2) Business
Days prior written notice that, in the Collateral Agent’s reasonable judgment,
such action would have a Material Adverse Effect on the value of the Investment
Related Property or any part thereof; and provided further, such Grantor shall
give the Collateral Agent at least five (5) Business Days prior written notice
of the manner in which it intends to exercise, or the reasons for refraining
from exercising, any such right; it being understood, however, that neither the
voting by such Grantor of any Pledged Stock for, or such Grantor’s consent to,
the election of directors (or similar governing body) at a regularly scheduled
annual or other meeting of stockholders or with respect to incidental matters
at any such meeting, nor such Grantor’s consent to or approval of any action
otherwise permitted under this Agreement and the Credit Agreement, shall not be
deemed inconsistent with the terms of this Agreement or the Credit Agreement
within the meaning of this Section 4.04(c)(i)(l), and no notice of any
such voting or consent need be given to the Collateral Agent; and


 


(2)     the Collateral Agent shall promptly execute and deliver (or
cause to be executed and delivered) to each Grantor all proxies, and other
instruments as such Grantor may from time to time reasonably request for the
purpose of enabling such Grantor to exercise the voting and other consensual
rights when and to the extent which it is entitled to exercise pursuant to
clause (1) above;


 


17














 


(3)           Upon the
occurrence and during the continuation of an Event of Default:


 


(A)          all rights of each Grantor to exercise or refrain from
exercising the voting and other consensual rights which it would otherwise be
entitled to exercise pursuant hereto shall cease and all such rights shall
thereupon become vested in the Collateral Agent who shall thereupon have the
sole right to exercise such voting and other consensual rights; and


 


(B)           in order to permit the Collateral Agent to exercise the
voting and other consensual rights which it may be entitled to exercise
pursuant hereto and to receive all dividends and other distributions which it
may be entitled to receive hereunder: (1) each Grantor shall promptly
execute and deliver (or cause to be executed and delivered) to the Collateral
Agent all proxies, dividend payment orders and other instruments as the
Collateral Agent may from time to time reasonably request and (2) each
Grantor acknowledges that the Collateral Agent may utilize the power of
attorney set forth in Section 6.01.


 


Section 4.05                   Pledged Equity Interests.


 


(a)           Representations
and Warranties. Each Grantor hereby represents and warrants, on the Closing
Date and on each Credit Date, that:


 


(i)      Schedule 4.05(A) (as such schedule may be amended or supplemented
from time to time) sets forth under the headings “Pledged Stock, “Pledged LLC
Interests,” “Pledged Partnership Interests” and “Pledged Trust Interests,”
respectively, all of the Pledged Stock, Pledged LLC Interests, Pledged
Partnership Interests and Pledged Trust Interests owned by any Grantor and such
Pledged Equity Interests constitute the percentage of issued and outstanding
shares of stock, percentage of membership interests, percentage of partnership
interests or percentage of beneficial interest of the respective issuers
thereof indicated on such Schedule;


 


(ii)     except as set forth on Schedule 4.05(B), it has not acquired any
equity interests of another entity or substantially all the assets of another
entity within the past five (5) years;


 


(iii)    it is the record and beneficial owner of the Pledged Equity
Interests free of all Liens, rights or claims of other Persons other than
Permitted Liens and there are no outstanding warrants, options or other rights
to purchase, or shareholder, voting trust or similar agreements outstanding
with respect to, or property that is convertible into, or that requires the
issuance or sale of, any Pledged Equity Interests;


 


(iv)    without limiting the generality of Section 4.01(a)(v), no
consent of any Person including any other general or limited partner, any other
member of a limited liability company, any other shareholder or any other trust
beneficiary is necessary or desirable in connection with the creation,
perfection or First Priority status of the security interest of the Collateral
Agent in any Pledged Equity Interests or the exercise by the Collateral Agent
of the voting or other rights provided for in this Agreement or the exercise of
remedies in respect thereof;


 


18

















 


(v)     none of the Pledged LLC Interests nor Pledged Partnership
Interests are or represent interests in issuers that: (a) are registered
as investment companies or (b) are dealt in or traded on securities
exchanges or markets; and


 


(vi)    all of the Pledged LLC Interests and Pledged Partnership
Interests have opted to be treated as securities under the uniform commercial
code of any jurisdiction.


 


(b)           Covenants
and Agreements. Each Grantor hereby covenants and agrees that:


 


(i)      without the prior written consent of the Collateral Agent or
other than as permitted under the Credit Agreement, it shall not vote to enable
or take any other action to: (a) amend or terminate any partnership
agreement, limited liability company agreement, certificate of incorporation,
by-laws or other organizational documents in any way that materially and
adversely changes the rights of such Grantor with respect to any Investment
Related Property or adversely affects the validity, perfection or priority of
the Collateral Agent’s security interest, (b) permit any issuer of any
Pledged Equity Interest to issue any additional stock, partnership interests,
limited liability company interests or other equity interests of any nature or
to issue securities convertible into or granting the right of purchase or
exchange for any stock or other equity interest of any nature of such issuer, (c) permit
any issuer of any Pledged Equity Interest to dispose of all or a material
portion of its assets, (d) waive any default under or breach of any terms
of organizational document relating to the issuer of any Pledged Equity
Interest or the terms of any Pledged Debt, or (e) cause any issuer of any
Pledged Partnership Interests or Pledged LLC Interests which are not securities
(for purposes of the UCC) on the date hereof to elect or otherwise take any
action to cause such Pledged Partnership Interests or Pledged LLC Interests to
be treated as securities for purposes of the UCC; provided, however,
notwithstanding the foregoing, if any issuer of any Pledged Partnership
Interests or Pledged LLC Interests takes any such action in violation of the
foregoing in this clause (e), such Grantor shall promptly notify the Collateral
Agent in writing of any such election or action and, in such event, shall take
all necessary steps to establish the Collateral Agent’s “control” thereof;


 


(ii)     it shall comply with all of its obligations under any
partnership agreement or limited liability company agreement relating to
Pledged Partnership Interests or Pledged LLC Interests and shall enforce all of
its rights with respect to any Investment Related Property;


 


(iii)    except as permitted under the Credit Agreement, without the prior
written consent of the Collateral Agent, it shall not permit any issuer of any
Pledged Equity Interest to merge or consolidate unless (i) such issuer
creates a security interest that is perfected by a filed financing statement
(that is not effective solely under section 9-508 of the UCC) in collateral in
which such new debtor has or acquires rights, and (ii) all the outstanding
capital stock or other equity interests of the surviving or resulting
corporation, limited liability company, partnership or other entity is, upon
such merger or consolidation, pledged hereunder and no cash, securities or
other property is distributed in respect of the outstanding equity interests of
any other constituent Grantor; provided that if the surviving or resulting
Grantor upon any such merger or consolidation


 


19

















 


involving
an issuer which is a Controlled Foreign Corporation, then such Grantor shall
only be required to pledge equity interests in accordance with
Section 2.02; and


 


(iv)    each
Grantor consents to the grant by each other Grantor of a security interest in all
Investment Related Property to the Collateral Agent and, without limiting the
foregoing, consents to the transfer of any Pledged Partnership Interest and any
Pledged LLC Interest to the Collateral Agent or its nominee following an Event
of Default and to the substitution of the Collateral Agent or its nominee as a
partner in any partnership or as a member in any limited liability company with
all the rights and powers related thereto; and


 


(v)     it shall
notify the Collateral Agent of any default under any Pledged Debt that has
caused, either in any case or in the aggregate, a Material Adverse Effect.


 


(vi)    In
addition to the foregoing, if any issuer of any Investment Related Property is
located in a jurisdiction outside of the United States, each Grantor shall take such additional
actions, including, without limitation, causing the issuer to register the
pledge on its books and records or making such filings or recordings, in each
case as may be necessary or advisable, under the laws of such issuer’s jurisdiction
to insure the validity, perfection and priority of the security interest of the
Collateral Agent. Upon the occurrence of an Event of Default, the Collateral
Agent shall have the right, without notice to any Grantor, to transfer all or
any portion of the Investment Related Property to its name or the name of its
nominee or agent. In addition, the Collateral Agent shall have the right at any
time, without notice to any Grantor, to exchange any certificates or
instruments representing any Investment Related Property for certificates or
instruments of smaller or larger denominations.


 


Section 4.06                   Pledged
Debt.


 


(a)           Representations
and Warranties. Each Grantor hereby represents and warrants, on the Closing
Date and each Credit Date, that:


 


(i)      Schedule
4.05 (as such schedule may be amended or supplemented from time to time) sets
forth under the heading “Pledged Debt” all of the Pledged Debt owned by any
Grantor and all of such Pledged Debt has been duly authorized, authenticated or
issued, and delivered and is the legal, valid and binding obligation of the
issuers thereof and is not in default and constitutes all of the issued and
outstanding inter-company Indebtedness;


 


(b)           Covenants and
Agreements. Each Grantor hereby covenants and agrees that:


 


(i)      it shall
notify the Collateral Agent of any default under any Pledged Debt that has
caused, either in any individual case or in the aggregate, a Material Adverse
Effect.


 


Section 4.07                   Investment
Accounts.


 


(a)           Representations
and Warranties. Each Grantor hereby represents and warrants, on the Closing
Date and each Credit Date, that:


 


20

















 


(i)      Schedule
4.05 hereto (as such schedule may be amended or supplemented from time to time)
sets forth under the headings “Securities Accounts” and “Commodities Accounts,”
respectively, all of the Securities Accounts and Commodities Accounts in which
each Grantor has an interest. Each Grantor is the sole entitlement holder of
each such Securities Account and Commodity Account, and such Grantor has not
consented to, and is not otherwise aware of, any Person (other than the
Collateral Agent pursuant thereto) having “control” (within the meanings of
Sections 8-106 and 9-106 of the UCC) over, or any other interest in, any such
Securities Account or Commodity Account or securities or other property
credited thereto;


 


(ii)     Schedule
4.05 hereto (as such schedule may be amended or supplemented from time to time)
sets forth under the headings “Deposit Accounts” all of the Deposit Accounts in
which each Grantor has an interest. Except as set forth on Schedule 4.05, each
Grantor is the sole account holder of each such Deposit Account and such
Grantor has not consented to, and is not otherwise aware of, any Person (other
than the Collateral Agent pursuant thereto) having either sole dominion and
control (within the meaning of common law) or “control” (within the meanings of
Section 9-104 of the UCC) over, or any other interest in, any such Deposit
Account or any money or other property deposited therein; and


 


(iii)    Each
Grantor has taken all reasonable actions, including those specified in
Section 4.05(c), to: (a) establish Collateral Agent’s “control”
(within the meanings of Sections 8-106 and 9-106 of the UCC) over any portion
of the Investment Related Property constituting Certificated Securities,
Uncertificated Securities, Securities Accounts, Securities Entitlements or
Commodities Accounts (each as defined in the UCC); (b) establish the
Collateral Agent’s “control” (within the meaning of Section 9-104 of the
UCC) over all Deposit Accounts other than (A) Deposit Accounts with an
aggregate balance not in excess of $100,000 in the aggregate, (B) Deposit
Accounts used for workers compensation purposes, to the extent that all of the
funds in such account are used for such purposes, (C) Deposit Accounts
used for employee benefit purposes, to the extent that all of the funds in such
account are used for such purposes, or (D) payroll accounts; and
(c) deliver all Instruments to the Collateral Agent


 


(b)           Covenant and
Agreement. Each Grantor hereby covenants and agrees with the Collateral
Agent and each other Secured Party that it shall not close or terminate any
Investment Account without the prior consent of the Collateral Agent and unless
a successor or replacement account has been established with the consent of the
Collateral Agent with respect to which successor or replacement account a
control agreement has been entered into by the appropriate Grantor, Collateral
Agent and securities intermediary or depository institution at which such
successor or replacement account is to be maintained in accordance with the
provisions of Section 4.05(c).


 


(c)           Delivery and
Control.


 


(i)      With
respect to any Investment Related Property consisting of Securities Accounts or
Securities Entitlements, it shall cause the securities intermediary maintaining
such Securities Account or Securities Entitlement to enter into an agreement
substantially in the form of Exhibit C hereto pursuant to which it shall
agree to comply with the Collateral Agent’s “entitlement orders” without
further consent by such Grantor with respect to any Investment Related Property
that is a “Deposit Account,” it shall cause the depositary institution
maintaining such account to enter into an agreement substantially in the form
of Exhibit D hereto, pursuant to which the


 


21

















 


Collateral
Agent shall have both sole dominion and control over such Deposit Account
(within the meaning of the common law) and “control” (within the meaning of
Section 9-104 of the UCC) over such Deposit Account. Each Grantor shall
have entered into such control agreement or agreements with respect to:
(i) any Securities Accounts, Securities Entitlements or Deposit Accounts that
exist on the Credit Date, as of or prior to the Credit Date and (ii) any
Securities Accounts, Securities Entitlements or Deposit Accounts that are
created or acquired after the Credit Date, as of or prior to the deposit or
transfer of any such Securities Entitlements or funds, whether constituting
moneys or investments, into such Securities Accounts or Deposit Accounts.


 


Section 4.08                   Material
Contracts.


 


(a)           Representations
and Warranties. Each Grantor hereby represents and warrants, on the Closing
Date and on each Credit Date, that:


 


(i)      Schedule
4.08 (as such schedule may be amended or supplemented from time to time) sets
forth all of the Material Contracts to which such Grantor has rights;


 


(ii)     the
Material Contracts, true and complete copies (including any amendments or
supplements thereof) of which have been furnished to the Collateral Agent, have
been duly authorized, executed and delivered by all parties thereto, are in
full force and effect and are binding upon and enforceable against all parties
thereto in accordance with their respective terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws affecting creditors’ rights and remedies in general. There
exists no default under any Material Contract by any Grantor party thereto, nor
to the knowledge of any Authorized Officer of any Grantor, any other Person
party thereto is likely to become in default thereunder and no Person party
thereto has any defenses, counterclaims or right of set-off with respect to any
Material Contract; and


 


(iii)    no
Material Contract prohibits assignment or requires consent of or notice to any
Person in connection with the assignment to the Collateral Agent hereunder,
except as has been given or made or is currently sought pursuant to
Section 4.08(b)(vii) hereof.


 


(b)           Covenants and
Agreements. Each Grantor hereby covenants and agrees that:


 


(i)      in
addition to any rights under this Agreement relating to Receivables, the
Collateral Agent may at any time notify, or require any Grantor to so notify,
the counterparty on any Material Contract of the security interest of the
Collateral Agent therein. In addition, after the occurrence and during the
continuance of an Event of Default, the Collateral Agent may upon written notice
to the applicable Grantor, notify, or require any Grantor to notify, such
counterparty to make all payments under such Material Contracts directly to the
Collateral Agent;


 


(ii)     each
Grantor shall deliver promptly to the Collateral Agent, and in any event within
ten (10) Business Days, after (1) any Material Contract of such
Grantor is terminated or amended in a manner that is materially adverse to such
Grantor or (2) any new Material Contract is entered into by such Grantor,
a written


 


22

















 


statement
describing such event, with copies of such material amendments or new
contracts, delivered to the Collateral Agent (to the extent such delivery is
permitted by the terms of any such Material Contract, provided, no prohibition
on delivery shall be effective if it were bargained for by such Grantor with
the intent of avoiding compliance with this Section 4.08(b)(iii)), and an
explanation of any actions being taken with respect thereto;


 


(iii)    it shall
perform in all material respects all of its obligations with respect to the
Material Contracts;


 


(iv)    it shall
promptly exercise each material right (except the right of termination) it may
have under any Material Contract, any Supporting Obligation or Collateral Support,
in each case, at its own expense and in connection with such collections and
exercise, such Grantor shall take such action as such Grantor or the Collateral
Agent may deem necessary;


 


(v)     it shall
use commercially reasonable efforts to keep in full force and effect any
Supporting Obligation or Collateral Support relating to any Material Contract;
and


 


(vi)    each
Grantor shall, within thirty (30) days of the date hereof with respect to any
Non-Assignable Contract in effect on the date hereof and within thirty (30)
days after entering into any Non-Assignable Contract after the Closing Date,
request in writing the consent of the counterparty or counterparties to the
Non-Assignable Contract pursuant to the terms of such Non-Assignable Contract
or applicable law to the assignment or granting of a security interest in such
Non-Assignable Contract to Secured Party and use commercially reasonable
efforts to obtain such consent as soon as practicable thereafter.


 


Section 4.09                   Letter
of Credit Rights.


 


(a)           Representations
and Warranties. Each Grantor hereby represents and

warrants, on the Closing Date and on each Credit Date, that:


 


(i)      all
material letters of credit to which such Grantor has rights is listed on
Schedule 4.09(as such schedule may be amended or supplemented from time to
time) hereto; and


 


(ii)     it has
used commercially reasonable efforts to obtain the consent of each issuer of
any letter of credit valued in excess of $500,000 to the assignment of the
proceeds of the letter of credit to the Collateral Agent.


 


(b)           Covenants and
Agreements. Each Grantor hereby covenants and agrees that with respect to
any letter of credit valued in excess of $500,000 hereafter arising it shall
use commercially reasonable efforts to obtain the consent of the issuer thereof
to the assignment of the proceeds of the letter of credit to the Collateral
Agent and shall deliver to the Collateral Agent a completed Pledge Supplement,
substantially in the form of Exhibit A attached hereto, together with all Supplements
to Schedules thereto.


 


23

















 


Section 4.10                   Intellectual
Property.


 


(a)           Representations
and Warranties. Except as disclosed in Schedule 4.10(H) (as such
schedule may be amended or supplemented from time to time), each Grantor hereby
represents and warrants, on the Closing Date and on each Credit Date, that:


 


(i)      Schedule
4.10 (as such schedule may be amended or supplemented from time to time) sets
forth a true and complete list of (i) all United States, state and foreign
registrations of and applications for Patents, Trademarks, and Copyrights owned
by each Grantor and (ii) all Patent Licenses, Trademark Licenses, Trade
Secret Licenses and Copyright Licenses material to the business of such Grantor
(notwithstanding anything to the contrary herein, Schedule 4.10 does not, and
need not, include any licenses for click-wrap or shrink-wrap computer
software);


 


(ii)     it
(x) is the sole and exclusive owner of the entire right, title, and
interest in and to all Intellectual Property listed on Schedule 4.10(A), (C),
and (E) (as such schedule may be amended or supplemented from time to
time), (y) owns or has the valid right to use all Core Software and
(z) except as could not reasonably be expected to cause a Material Adverse
Effect, owns or has the valid right to use all other Intellectual Property used
in or necessary to conduct its business, in each case free and clear of all
Liens, claims, encumbrances and licenses, except for Permitted Liens and the
licenses set forth on Schedule 4.10(B), (D), (F) and (G) (as each may
be amended or supplemented from time to time);


 


(iii)    all
Intellectual Property owned by or exclusively licensed to each Grantor is
subsisting and has not been adjudged invalid or unenforceable, in whole or in
part, and each Grantor has performed all acts and has paid all renewal,
maintenance, and other fees and taxes required to maintain each and every
registration and application of Copyrights, Patents and Trademarks in full
force and effect;


 


(iv)    all
material Intellectual Property owned by each Grantor (including without
limitation the Core Software) and exclusively licensed to each Grantor is valid
and enforceable in all material respects; no holding, decision, or judgment has
been rendered in any action or proceeding before any court or administrative
authority denying or otherwise having an effect on the validity of, such
Grantor’s right to register, or such Grantor’s rights to own or use, any
Intellectual Property and, to the knowledge of any Authorized Officer of such Grantor,
no such action or proceeding is pending or threatened;


 


(v)     all
registrations and applications for Copyrights, Patents and Trademarks owned by
such Grantor are in the name of such Grantor and no Trademarks, Patents,
Copyrights or Trade Secrets owned by a Grantor have been licensed by any
Grantor to any affiliate or third party, except as disclosed in Schedule
4.10(B), (D), (F), or (G) (as each may be amended or supplemented from
time to time);


 


(vi)    each
Grantor has been using appropriate statutory notice of registration in
connection with its use of registered Trademarks, proper marking practices in
connection with the use of Patents, and appropriate notice of copyright in
connection with the publication of Copyrights, in each case, which are material
to the operation of such Grantor’s business;


 


(vii)   each
Grantor has taken all action necessary to insure that all licensees of the
Trademark Collateral owned by such Grantor use adequate standards


 


24

















 


of quality
in the manufacture, distribution, promotion, advertising, marketing and sale of
all products sold and in the provision of all services rendered under or in
connection with all Trademark Collateral;


 


(viii)  the
conduct of such Grantor’s business does not infringe upon or otherwise violate
any trademark, patent, copyright, trade secret or other intellectual property
right owned or controlled by a third party except as could not reasonably be
expected to cause a Material Adverse Effect; to the knowledge of any Authorized
Officer of such Grantor, no claim has been made to a Grantor that any
Intellectual Property owned or used by Grantor violates the asserted rights of
any third party;


 


(ix)    to the
knowledge of any Authorized Officer of such Grantor, no third party is
infringing upon or otherwise violating any rights in any Intellectual Property
owned or used by such Grantor;


 


(x)     no
settlement or consents, covenants not to sue, nonassertion assurances, or
releases have been entered into by Grantor or to which Grantor is bound that
adversely affect Grantor’s rights to own or use any Intellectual Property; and


 


(xi)    each
Grantor has not made an agreement constituting a present or future assignment,
sale or transfer of any Intellectual Property that has not been terminated or
released. There is no effective financing statement or other document or
instrument now executed, or on file or recorded in any public office, granting
a security interest in or otherwise encumbering any part of the Intellectual
Property, other than in favor of the Collateral Agent.


 


(b)           Covenants and
Agreements. Each Grantor hereby covenants and agrees as follows:


 


(i)      it shall
not do any act or omit to do any commercially reasonable act whereby any of the
Intellectual Property which is material to the business of Grantor may lapse,
or become abandoned, dedicated to the public, or unenforceable, or which would
adversely affect the validity, grant, or enforceability of the security
interest granted therein;


 


(ii)     it shall
not, with respect to any Trademarks which are material to the business of any
Grantor, cease the use of any of such Trademarks, and each Grantor shall take
all steps reasonably necessary to insure that licensees of such Trademarks
maintain the level of quality of products sold and services rendered under any
of such Trademark at a level at least substantially consistent with the quality
of such products and services as of the date hereof;


 


(iii)    to the
extent that it applies to register any Intellectual Property with the United
States Patent and Trademark Office, the United States Copyright Office or any
state registry or foreign counterpart of the foregoing, it shall only make such
application if it files a patent security agreement (substantially in the form
set forth in Exhibit G hereto, including the schedules thereto), trademark
security agreement (substantially in the form set forth in Exhibit E
hereto, including the schedules thereto) or copyright security agreement
(substantially in the form set forth in Exhibit F hereto,


 


25

















 


including
the schedules thereto), as appropriate, executed by the Grantors and the
Collateral Agent, together with such application for the purpose of creating a
perfected security interest for the benefit of the Collateral Agent in such
Intellectual Property; provided however that to the extent that the
Intellectual Property such Grantor is applying to register with the United
States Patent and Trademark Office, the United States Copyright Office or any
state registry or foreign counterpart of the foregoing was acquired from a
third party, such Grantor shall file the relevant security agreement with such
office or registry either at the same time as such application or as soon as
practicable thereafter, but in no event more than five (5) days after the
filing of such application;


 


(iv)    it shall
promptly notify the Collateral Agent if it knows or has reason to know that any
item of the Intellectual Property that is material to the business of any
Grantor may become (a) abandoned or dedicated to the public or placed in
the public domain, (b) invalid or unenforceable, or (c) subject to
any adverse determination in any action or proceeding;


 


(v)     it shall
take all reasonable steps in the United States Patent and Trademark Office, the
United States Copyright Office, any state registry or any foreign counterpart
of the foregoing, to pursue any application and maintain any registration of
each Trademark, Patent, and Copyright owned by any Grantor and material to its
business which is now or shall become included in the Intellectual Property
owned by such Grantor including, but not limited to, those items on Schedule
4.10(A), (C) and (E) (as each may be amended or supplemented from
time to time);


 


(vi)    in the
event that any Intellectual Property owned by or exclusively licensed to any
Grantor is infringed, misappropriated, or diluted by a third party, such
Grantor, shall promptly take all reasonable and permitted actions which in
Grantor’s reasonable business judgment are necessary to stop such infringement,
misappropriation, or dilution and protect its rights in such Intellectual
Property which may include, but is not limited to, the initiation of a suit for
injunctive relief and to recover damages;


 


(vii)   [Reserved]


 


(viii)  it shall,
execute and deliver to the Collateral Agent any document required to
acknowledge, confirm, register, record, or perfect the Collateral Agent’s
interest in any part of the Intellectual Property, whether now owned or
hereafter acquired (including, but not limited to Trademark Security
Agreements, Copyright Security Agreements and Patent Security Agreements), in
the form of Exhibits E, F and G, respectively);


 


(ix)    except
with the prior consent of the Collateral Agent or as permitted under the Credit
Agreement, each Grantor shall not execute, and there will not be on file in any
public office, any financing statement or other document or instruments, except
financing statements or other documents or instruments filed or to be filed in
favor of the Collateral Agent and except as permitted in the Credit Agreement
each Grantor shall not sell, assign, transfer, license, grant any option, or
create or suffer to exist any Lien upon or with respect to the Intellectual
Property, except for the Permitted Liens, the Lien created by and under this
Agreement and the other Loan Documents;


 


26

















 


(x)     it shall
hereafter use best efforts so as not to permit the inclusion in any contract to
which it hereafter becomes a party of any provision that could or might in any
way materially impair or prevent the creation of a security interest in, or the
assignment of, such Grantor’s rights and interests in any property included
within the definitions of any Intellectual Property acquired under such
contracts;


 


(xi)    it shall
take all steps reasonably necessary to protect the secrecy of all Trade Secrets
owned by or exclusively licensed to such Grantor, including, without
limitation, entering into confidentiality agreements with employees and
labeling and restricting access to secret information and documents;


 


(xii)   it shall
use reasonable efforts to use proper statutory notice in connection with its
use of any of the Intellectual Property owned by or exclusively licensed to
such Grantor; and


 


(xiii)  it shall
continue to collect, at its own expense, all amounts due or to become due to
such Grantor in respect of the Intellectual Property licensed by Grantor or any
portion thereof. In connection with such collections, each Grantor may take
(and, at the Collateral Agent’s reasonable direction, shall take) such action
as such Grantor or the Collateral Agent may deem reasonably necessary or
advisable to enforce collection of such amounts. Notwithstanding the foregoing,
the Collateral Agent shall have the right at any time, to notify, or require
any Grantor to notify, any obligors with respect to any such amounts of the
existence of the security interest created hereby.


 


Section 4.11                   Commercial
Tort Claims.


 


(a)           Representations
and Warranties. Each Grantor hereby represents and warrants, on the Closing
Date and on each Credit Date, that Schedule 4.11 (as such schedule may be
amended or supplemented from time to time) sets forth all Commercial Tort
Claims of each Grantor in excess of $100,000; and


 


(b)           Covenants and
Agreements. Each Grantor hereby covenants and agrees that with respect to
any Commercial Tort Claim in excess of $100,000 hereafter arising it shall
deliver to the Collateral Agent a completed Pledge Supplement, substantially in
the form of Exhibit A attached hereto, together with all Supplements to
Schedules thereto, identifying such new Commercial Tort Claims.


 


ARTICLE V


 


FURTHER ASSURANCES; ADDITIONAL GRANTORS


 


Section 5.01                   Further
Assurances.


 


(a)           Each Grantor agrees
that from time to time, at the expense of such Grantor, that it shall promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary, or that the Collateral Agent may reasonably
request, in order to create and/or maintain the validity, perfection or
priority of and protect any security interest granted or purported to be
granted hereby or to enable the Collateral Agent to exercise and enforce its
rights and remedies hereunder with respect to any Collateral. Without limiting
the generality of the foregoing, each Grantor shall:


 


27














 


(i)      file
such financing or continuation statements, or amendments thereto, and execute
and deliver such other agreements, instruments, endorsements, powers of
attorney or notices, as may be necessary, or as the Collateral Agent may
reasonably request, in order to perfect and preserve the security interests
granted or purported to be granted hereby;


 


(ii)     take all
actions necessary to ensure the recordation of appropriate evidence of the
liens and security interest granted hereunder in the Intellectual Property
owned by such Grantor with any intellectual property registry in which said
Intellectual Property is registered or in which an application for registration
is pending including, without limitation, the United States Patent and
Trademark Office, the United States Copyright Office, the various Secretaries
of State, and, if requested by Collateral Agent, the foreign counterparts of
any of the foregoing;


 


(iii)    at any
time following the occurrence and during the continuation of an Event of
Default, assemble the Collateral and allow inspection of the Collateral by the
Collateral Agent, or persons designated by the Collateral Agent; and


 


(iv)    at the
Collateral Agent’s reasonable request, appear in and defend any action or
proceeding that may affect such Grantor’s title to or the Collateral Agent’s
security interest in any material part of the Collateral.


 


(b)           Each Grantor hereby
authorizes the Collateral Agent to file a Record or Records, including, without
limitation, financing or continuation statements, and amendments thereto, in
any jurisdictions and with any filing offices as the Collateral Agent may
determine, in its sole discretion, are necessary to perfect the security
interest granted to the Collateral Agent herein. Such financing statements may
describe the Collateral in the same manner as described herein or may contain
an indication or description of collateral that describes such property in any
other manner as the Collateral Agent may determine, in its sole discretion, is
necessary to ensure the perfection of the security interest in the Collateral
granted to the Collateral Agent herein, including, without limitation,
describing such property as “all assets” or “all personal property, whether now
owned or hereafter acquired.” Each Grantor shall furnish to the Collateral
Agent from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Collateral Agent may reasonably request, all in reasonable
detail.


 


(c)           Each Grantor hereby
authorizes the Collateral Agent to modify this Agreement after obtaining such
Grantor’s approval of or signature to such modification by amending Schedule
4.10 (as such schedule may be amended or supplemented from time to time) to include
reference to any right, title or interest in any existing Intellectual Property
or any Intellectual Property acquired or developed by any Grantor after the
execution hereof or to delete any reference to any right, title or interest in
any Intellectual Property in which any Grantor no longer has or claims any
right, title or interest.


 


Section 5.02                   Additional
Grantors. From time to time subsequent to the date hereof, additional
Persons may become parties hereto as additional Grantors (each, an “Additional
Grantor”), by executing a Counterpart Agreement. Upon delivery of any such
counterpart agreement to the Collateral Agent, notice of which is hereby waived
by Grantors, each Additional Grantor shall be a Grantor and shall be as fully a
party hereto as if Additional Grantor were an original signatory hereto. Each
Grantor expressly agrees that its Obligations arising hereunder shall not be
affected or diminished by the addition or release of any other Grantor
hereunder, nor by any election of Collateral Agent not to cause any Subsidiary
of Borrower to become an Additional Grantor hereunder. This Agreement shall be


 


28

















 


fully effective as to any
Grantor that is or becomes a party hereto regardless of whether any other
Person becomes or fails to become or ceases to be a Grantor hereunder.


 


ARTICLE VI


 


COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT


 


Section 6.01                   Power
of Attorney. Each Grantor hereby irrevocably appoints the Collateral Agent
(such appointment being coupled with an interest) as such Grantor’s
attorney-in-fact, with full authority in the place and stead of such Grantor
and in the name of such Grantor, the Collateral Agent or otherwise, from time
to time in the Collateral Agent’s discretion to take any action and to execute
any instrument that the Collateral Agent may deem reasonably necessary to
accomplish the purposes of this Agreement, including, without limitation, the
following:


 


(a)           upon the occurrence
and during the continuance of any Event of Default, to obtain and adjust
insurance required to be maintained by such Grantor or paid to the Collateral
Agent pursuant to the Credit Agreement;


 


(b)           upon the occurrence
and during the continuance of any Event of Default, to ask for, demand,
collect, sue for, recover, compound, receive and give acquittance and receipts
for moneys due and to become due under or in respect of any of the Collateral;


 


(c)           upon the occurrence
and during the continuance of any Event of Default, to receive, endorse and
collect any drafts or other instruments, documents and chattel paper in
connection with clause (b) above;


 


(d)           upon the occurrence
and during the continuance of any Event of Default, to file any claims or take
any action or institute any proceedings that the Collateral Agent may deem
necessary for the collection of any of the Collateral or otherwise to enforce
the rights of the Collateral Agent with respect to any of the Collateral;


 


(e)           to prepare and file
any UCC financing statements against such Grantor as debtor;


 


(f)            to prepare, sign,
and file for recordation in any intellectual property registry, appropriate
evidence of the lien and security interest granted herein in the Intellectual
Property in the name of such Grantor as debtor;


 


(g)           to take or cause to
be taken all actions necessary to perform or comply or cause performance or
compliance with the terms of this Agreement, including, without limitation,
actions to pay or discharge taxes or Liens (other than Permitted Liens) levied
or placed upon or threatened against the Collateral, the legality or validity
thereof and the amounts necessary to discharge the same to be determined by the
Collateral Agent in its sole discretion, any such payments made by the
Collateral Agent to become Obligations of such Grantor to the Collateral Agent,
due and payable immediately without demand; and


 


(h)           upon the occurrence
and during the continuance of any Event of Default, generally to sell,
transfer, pledge, make any agreement with respect to or otherwise deal with any
of the Collateral as fully and completely as though the Collateral Agent were
the absolute owner thereof for all purposes, and to do, at the Collateral
Agent’s option and such Grantor’s expense, at any time or from time to time,
all acts and things that the Collateral Agent deems reasonably necessary to
protect, preserve or


 


29

















 


realize upon the
Collateral and the Collateral Agent’s security interest therein in order to
effect the intent of this Agreement, all as fully and effectively as such
Grantor might do.


 


Section 6.02                   No
Duty on the Part of Collateral Agent or Secured Parties. The powers
conferred on the Collateral Agent hereunder are solely to protect the interests
of the Secured Parties in the Collateral and shall not impose any duty upon the
Collateral Agent or any Secured Party to exercise any such powers. The
Collateral Agent and the Secured Parties shall be accountable only for amounts
that they actually receive as a result of the exercise of such powers, and
neither they nor any of their officers, directors, employees or agents shall be
responsible to any Grantor for any act or failure to act hereunder, except for
their own gross negligence or willful misconduct.


 


ARTICLE VII


 


REMEDIES


 


Section 7.01                   Generally.


 


(a)           If any Event of
Default shall have occurred and be continuing, the Collateral Agent may
exercise in respect of the Collateral, in addition to all other rights and
remedies provided for herein or otherwise available to it at law or in equity,
all the rights and remedies of a secured party on default under the UCC
(whether or not the UCC applies to the affected Collateral) to collect, enforce
or satisfy any Secured Obligations (other than contingent indemnification
obligations) then owing, whether by acceleration or otherwise, and also may
pursue any of the following separately, successively or simultaneously:


 


(i)      require
any Grantor to, and each Grantor hereby agrees that it shall at its expense and
promptly upon prior request of the Collateral Agent forthwith, assemble all or
part of the Collateral as directed by the Collateral Agent and make it
available to the Collateral Agent at a place to be designated by the Collateral
Agent that is reasonably convenient to both parties;


 


(ii)     peaceably
enter onto the property where any Collateral is located and take possession
thereof with or without judicial process;


 


(iii)    prior to
the disposition of the Collateral, store, process, repair or recondition the
Collateral or otherwise prepare the Collateral for disposition in any manner to
the extent the Collateral Agent deems commercially reasonable; and


 


(iv)    without
notice except as specified below or under the UCC, sell, assign, lease, license
(on an exclusive or nonexclusive basis) or otherwise dispose of the Collateral
or any part thereof in one or more parcels at public or private sale, at any of
the Collateral Agent’s offices or elsewhere, for cash, on credit or for future
delivery, at such time or times and at such price or prices and upon such other
terms as the Collateral Agent may deem commercially reasonable.


 


(b)           The Collateral Agent
or any Secured Party may be the purchaser of any or all of the Collateral at
any public or private (to the extent the portion of the Collateral being
privately sold is of a kind that is customarily sold on a recognized market or
the subject of widely distributed standard price quotations) sale in accordance
with the UCC and the Collateral Agent, as Collateral Agent for and representative
of the Secured Parties, shall be entitled, for the purpose of bidding and
making settlement or payment of the purchase price for all or any portion of
the Collateral sold at any such sale made in


 


30

















 


accordance with the UCC,
to use and apply any of the Secured Obligations as a credit on account of the
purchase price for any Collateral payable by the Collateral Agent at such sale.
Each purchaser at any such sale shall hold the property sold absolutely free
from any claim or right on the part of any Grantor, and each Grantor hereby
waives (to the extent permitted by applicable law) all rights of redemption,
stay and/or appraisal which it now has or may at any time in the future have
under any rule of law or statute now existing or hereafter enacted. Each
Grantor agrees that, to the extent notice of sale shall be required by law, at
least ten (10) days notice to such Grantor of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Collateral Agent shall not be obligated
to make any sale of Collateral regardless of notice of sale having been given.
The Collateral Agent may adjourn any public or private sale from time to time
by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. Each Grantor agrees that it would not be commercially unreasonable
for the Collateral Agent to dispose of the Collateral or any portion thereof by
using Internet sites that provide for the auction of assets of the types
included in the Collateral or that have the reasonable capability of doing so,
or that match buyers and sellers of assets. Each Grantor hereby waives any
claims against the Collateral Agent arising by reason of the fact that the
price at which any Collateral may have been sold at such a private sale was
less than the price which might have been obtained at a public sale, even if
the Collateral Agent accepts the first offer received and does not offer such
Collateral to more than one offeree. If the proceeds of any sale or other
disposition of the Collateral are insufficient to pay all the Secured
Obligations, Grantors shall be liable for the deficiency and the fees of any
attorneys employed by the Collateral Agent to collect such deficiency. Each
Grantor further agrees that a breach of any of the covenants contained in this
Section will cause irreparable injury to the Collateral Agent, that the
Collateral Agent has no adequate remedy at law in respect of such breach and,
as a consequence, that each and every covenant contained in this
Section shall be specifically enforceable against such Grantor, and such
Grantor hereby waives and agrees not to assert any defenses against an action
for specific performance of such covenants except for a defense that no default
has occurred giving rise to the Secured Obligations becoming due and payable
prior to their stated maturities. Nothing in this Section shall in any way
alter the rights of the Collateral Agent hereunder.


 


(c)           The Collateral Agent
may sell the Collateral without giving any warranties as to the Collateral. The
Collateral Agent may specifically disclaim or modify any warranties of title or
the like. This procedure will not be considered to adversely affect the
commercial reasonableness of any sale of the Collateral.


 


(d)           The Collateral Agent
shall have no obligation to marshal any of the Collateral.


 


Section 7.02                   Application
of Proceeds. Except as expressly provided elsewhere in this Agreement, all
proceeds received by the Collateral Agent in respect of any sale, any
collection from, or other realization upon all or any part of the Collateral
shall be applied in full or in part by the Collateral Agent against, the
Secured Obligations in the following order of priority: first, to the payment
of all costs and expenses of such sale, collection or other realization,
including reasonable compensation to the Collateral Agent and its agents and
external counsel, and all other expenses, liabilities and advances made or
incurred by the Collateral Agent in connection therewith, and all amounts for
which the Collateral Agent is entitled to indemnification hereunder (in its
capacity as the Collateral Agent and not as a Lender) and all advances made by
the Collateral Agent hereunder for the account of the applicable Grantor, and
to the payment of all costs and expenses paid or incurred by the Collateral
Agent in connection with the exercise of any right or remedy hereunder or under
the Credit Agreement, all in accordance with the terms hereof or thereof;
second, to the extent of any excess of such proceeds, to the payment of all
other Secured Obligations for the ratable benefit of the Lenders and the Lender
Counterparties; and third, to the


 


31

















 


extent of any excess of
such proceeds, to the payment to or upon the order of such Grantor or to
whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.


 


Section 7.03                   Sales
on Credit. If Collateral Agent sells any of the Collateral upon credit,
Grantor will be credited only with payments actually made by purchaser and
received by Collateral Agent and applied to indebtedness of the purchaser. In
the event the purchaser fails to pay for the Collateral, Collateral Agent may
resell the Collateral and Grantor shall be credited with proceeds of the sale.


 


Section 7.04                   Deposit
Accounts. If any Event of Default shall have occurred and be continuing,
the Collateral Agent may apply the balance from any Deposit Account or instruct
the bank at which any Deposit Account is maintained to pay the balance of any
Deposit Account to or for the benefit of the Collateral Agent; provided that
this Section 7.04 shall not apply to any of the following:
(A) Deposit Accounts with an aggregate balance not in excess of $100,000
in the aggregate, (B) Deposit Accounts used for workers compensation
purposes, to the extent that all of the funds in such account are used for such
purposes, (C) Deposit Accounts used for employee benefit purposes, to the
extent that all of the funds in such account are used for such purposes or
(D) payroll accounts.


 


Section 7.05                   Investment
Related Property. Each Grantor recognizes that, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws, the Collateral Agent may be compelled, with respect to any sale of all or
any part of the Investment Related Property conducted without prior
registration or qualification of such Investment Related Property under the
Securities Act and/or such state securities laws, to limit purchasers to those
who will agree, among other things, to acquire the Investment Related Property
for their own account, for investment and not with a view to the distribution
or resale thereof. Each Grantor acknowledges that any such private sale may be
at prices and on terms less favorable than those obtainable through a public
sale without such restrictions (including a public offering made pursuant to a
registration statement under the Securities Act) and, notwithstanding such
circumstances, each Grantor agrees that any such private sale shall be deemed
to have been made in a commercially reasonable manner and that the Collateral
Agent shall have no obligation to engage in public sales and no obligation to
delay the sale of any Investment Related Property for the period of time
necessary to permit the issuer thereof to register it for a form of public sale
requiring registration under the Securities Act or under applicable state
securities laws, even if such issuer would, or should, agree to so register it.
If the Collateral Agent determines to exercise its right to sell any or all of
the Investment Related Property, upon prior written request, each Grantor shall
and shall cause each issuer of any Pledged Stock to be sold hereunder, each
partnership and each limited liability company from time to time to furnish to
the Collateral Agent all such information as the Collateral Agent may request
in order to determine the number and nature of interest, shares or other
instruments included in the Investment Related Property which may be sold by
the Collateral Agent in exempt transactions under the Securities Act and the
rules and regulations of the Securities and Exchange Commission
thereunder, as the same are from time to time in effect.


 


Section 7.06                    Intellectual
Property.


 


(a)           Anything contained
herein to the contrary notwithstanding, upon the occurrence and during the
continuation of an Event of Default:


 


(i)      the
Collateral Agent shall have the right (but not the obligation) to bring suit or
otherwise commence any action or proceeding in the name of any Grantor, the
Collateral Agent or otherwise, in the Collateral Agent’s sole discretion, to
enforce any of such Grantor’s rights in any Intellectual Property, in which
event such Grantor shall, at the request of the Collateral Agent, do any and
all lawful acts and


 


32

















 


execute
any and all documents required by the Collateral Agent in aid of such
enforcement and such Grantor shall promptly, upon written demand, reimburse and
indemnify the Collateral Agent as provided in Article 10 of the Credit
Agreement in connection with the exercise of its rights under this Section, and,
to the extent that the Collateral Agent shall elect not to bring suit to
enforce any Intellectual Property as provided in this Section, each Grantor
agrees to use all commercially reasonable measures, whether by action, suit,
proceeding or otherwise, to prevent the infringement or other violation of any
of such Grantor’s rights in the Intellectual Property by others and for that
purpose agrees to diligently maintain any action, suit or proceeding against
any Person so infringing as shall be necessary to prevent such infringement or
violation;


 


(ii)     upon
written demand from the Collateral Agent, each Grantor shall grant, assign,
convey or otherwise transfer to the Collateral Agent or such Collateral Agent’s
designee an absolute assignment of all of such Grantor’s right, title and
interest in and to the Intellectual Property, to the extent such right, title
and interest is assignable or transferable, and shall execute and deliver to
the Collateral Agent such documents as are necessary or appropriate to carry
out the intent and purposes of this Agreement;


 


(iii)    each
Grantor agrees that such a grant, conveyance, transfer, assignment and/or
recording shall be applied to reduce the Secured Obligations outstanding only
to the extent that the Collateral Agent (or any Secured Party) receives cash
proceeds in respect of the sale of, or other realization upon, the Intellectual
Property; and


 


(iv)    the
Collateral Agent shall have the right to notify, or require each Grantor to
notify, any obligors with respect to amounts due or to become due to such
Grantor in respect of the Intellectual Property, of the existence of the
security interest created herein, to direct such obligors to make payment of
all such amounts directly to the Collateral Agent, and, upon such notification
and at the expense of such Grantor, to enforce collection of any such amounts
and to adjust, settle or compromise the amount or payment thereof, in the same
manner and to the same extent as such Grantor might have done;


 


(1)       all
amounts and proceeds (including checks and other instruments) received by
Grantor in respect of amounts due to such Grantor in respect of the Collateral
or any portion thereof shall be received in trust for the benefit of the
Collateral Agent hereunder, shall be segregated from other funds of such
Grantor and shall be forthwith paid over or delivered to the Collateral Agent
in the same form as so received (with any necessary endorsement) to be held as
cash Collateral and applied as provided by Section 7.07 hereof; and


 


(2)       Grantor
shall not adjust, settle or compromise the amount or payment of any such amount
or release wholly or partly any obligor with respect thereto or allow any
credit or discount thereon.


 


(b)           If (i) an Event
of Default shall have occurred and, by reason of cure, waiver, modification,
amendment or otherwise, no longer be continuing, (ii) no other Event of
Default shall have occurred and be continuing, (iii) an assignment or
other transfer to the Collateral Agent of any rights, title and interests in
and to the Intellectual Property shall have been previously made and shall have
become absolute and effective, and (iv) the Secured Obligations shall not
have become immediately due


 


33

















 


and payable, upon
the written request of any Grantor, the Collateral Agent shall promptly execute
and deliver to such Grantor, at such Grantor’s sole cost and expense, such
assignments or other transfer as may be necessary to reassign to such Grantor
any such rights, title and interests as may have been assigned to the
Collateral Agent as aforesaid, subject to any disposition thereof that may have
been made by the Collateral Agent; provided, after giving effect to such
reassignment, the Collateral Agent’s security interest granted pursuant hereto,
as well as all other rights and remedies of the Collateral Agent granted
hereunder, shall continue to be in full force and effect; and provided further,
the rights, title and interests so reassigned shall be free and clear of any
other Liens granted by or on behalf of the Collateral Agent and the Secured
Parties.


 


(c)           Solely for the
purpose of enabling the Collateral Agent to exercise rights and remedies under
this Article 7 and at such time as the Collateral Agent shall be lawfully
entitled to exercise such rights and remedies, each Grantor hereby grants to
the Collateral Agent, to the extent it has the right to do so, an irrevocable,
nonexclusive license (exercisable without payment of royalty or other
compensation to such Grantor), subject, in the case of Trademarks, to
sufficient rights to quality control and inspection in favor of such Grantor to
avoid the risk of invalidation of said Trademarks, to use, operate under,
license, or sublicense any Intellectual Property now owned or hereafter
acquired by such Grantor, and wherever the same may be located.


 


Section 7.07                   Cash
Proceeds. In addition to the rights of the Collateral Agent specified in
Section 4.03 with respect to payments of Receivables, all proceeds of any
Collateral received by any Grantor consisting of cash, checks and other
non-cash items (collectively, “Cash Proceeds”) shall be held by such
Grantor for the benefit of the Collateral Agent, segregated from other funds of
such Grantor, and shall, forthwith upon receipt by such Grantor, unless otherwise
provided pursuant to Section 4.4(a)(ii), be turned over to the Collateral
Agent in the exact form received by such Grantor (duly indorsed by such Grantor
to the Collateral Agent, if required) and held by the Collateral Agent in the
Collateral Account. Any Cash Proceeds received by the Collateral Agent (whether
from a Grantor or otherwise): (i) if no Event of Default shall have
occurred and be continuing, shall be held by the Collateral Agent for the
ratable benefit of the Secured Parties, as collateral security for the Secured
Obligations in accordance with the provisions hereunder and of the Credit
Agreement and (ii) if an Event of Default shall have occurred and be
continuing, may, in the sole discretion of the Collateral Agent, (A) be
held by the Collateral Agent for the ratable benefit of the Secured Parties, as
collateral security for the Secured Obligations and/or (B) then or at any
time thereafter may be applied by the Collateral Agent against the Secured
Obligations then due and owing.


 


ARTICLE VIII


 


COLLATERAL AGENT


 


The Collateral
Agent has been appointed to act as Collateral Agent hereunder and, by their
acceptance of the benefits hereof, the other Secured Parties. The Collateral
Agent shall be obligated, and shall have the right hereunder, to make demands,
to give notices, to exercise or refrain from exercising any rights, and to take
or refrain from taking any action (including, without limitation, the release
or substitution of Collateral), solely in accordance with this Agreement and the
Credit Agreement; provided, the Collateral Agent shall, after payment in full
of all Obligations under the Credit Agreement and the other Loan Documents,
exercise, or refrain from exercising, any remedies provided for herein in
accordance with the instructions of the holders of a majority of the aggregate
notional amount (or, with respect to any Hedge Agreement that has been
terminated in accordance with its terms, the amount then due and payable
(exclusive of expenses and similar payments but including any early termination
payments then due) under such Hedge Agreement) under all Hedge Agreements. In
furtherance of the foregoing provisions of this Section, each Secured Party, by
its acceptance of the benefits hereof, agrees that it shall have no right


 


34

















 


individually to realize
upon any of the Collateral hereunder, it being understood and agreed by such
Secured Party that all rights and remedies hereunder may be exercised solely by
the Collateral Agent for the benefit of Lenders in accordance with the terms of
this Section. Collateral Agent may resign at any time by giving thirty (30)
days’ prior written notice thereof to Lenders and the Grantors, and Collateral
Agent may be removed at any time with or without cause by an instrument or
concurrent instruments in writing delivered to the Grantors and Collateral
Agent signed by the Requisite Lenders. Subject to the terms of the Credit
Agreement, upon any such notice of resignation or any such removal, Requisite Lenders
shall have the right, upon five (5) Business Days’ notice to the
Administrative Agent, to appoint a successor Collateral Agent with the consent
of the Borrowers (such consent not to be (x) unreasonably withheld or
delayed or (y) required at any time an Event of Default shall have
occurred and be continuing). Upon the acceptance of any appointment as
Collateral Agent hereunder by a successor Collateral Agent, that successor
Collateral Agent shall thereupon succeed to and become vested with all of the rights,
power, privileges and duties of that the retiring or removed Collateral Agent
possesses under this Agreement, and the retiring or removed Collateral Agent
under this Agreement shall promptly (i) transfer to such successor
Collateral Agent all sums, Securities and other items of Collateral held
hereunder, together with all records and other documents necessary or
appropriate in connection with the performance of the duties of the successor
Collateral Agent under this Agreement, and (ii) execute and deliver to
such successor Collateral Agent or otherwise authorize the filing of such
amendments to financing statements, and take such other actions, as may be
necessary or appropriate in connection with the assignment to such successor
Collateral Agent of the security interests created hereunder, whereupon such
retiring or removed Collateral Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring or removed Collateral
Agent’s resignation or removal hereunder as the Collateral Agent, the
provisions of this Agreement shall inure to its benefit as to any actions taken
or omitted to be taken by it under this Agreement while it was the Collateral
Agent hereunder.


 


ARTICLE IX


 


CONTINUING SECURITY INTEREST; TRANSFER OF LOANS


 


This Agreement shall create a continuing security
interest in the Collateral and shall remain in full force and effect until the
payment in full of all Secured Obligations (other than contingent
indemnification obligations), the cancellation or termination of the
Commitments and the cancellation or expiration of all outstanding Letters of
Credit, be binding upon each Grantor, its successors and assigns, and inure,
together with the rights and remedies of the Collateral Agent hereunder, to the
benefit of the Collateral Agent and its successors, transferees and permitted
assigns. Without limiting the generality of the foregoing, but subject to the
terms of the Credit Agreement, any Lender may assign or otherwise transfer any
Loans held by it to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to Lenders
herein or otherwise. Upon the payment in full of all Secured Obligations (other
than contingent indemnification obligations), the cancellation or termination
of the Commitments and the cancellation or expiration of all outstanding
Letters of Credit, the security interest granted hereby shall terminate
hereunder and of record and all rights to the Collateral shall revert to
Grantors. Upon any such termination the Collateral Agent shall, at Grantors’
expense, execute and deliver to Grantors or otherwise authorize the filing of
such documents as Grantors shall reasonably request, including, without
limitation, financing statement amendments, account control termination
letters, and any other such documents, to evidence such termination. Upon any
disposition or property permitted by the Credit Agreement, the Liens granted
herein shall be deemed to be automatically released and such property shall
automatically revert to the applicable Grantor with no further action on the
party of any Person. The Collateral Agent shall, at Grantor’s expense, execute
and deliver or otherwise authorize the filing of such documents as Grantors
shall reasonably request, in form and substance reasonably satisfactory to the
Collateral Agent, including, without limitation, financing


 


35

















 


statement amendments,
account control termination letters, and any other such documents to evidence
such release.


 


ARTICLE X


 


STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM


 


The powers conferred on the Collateral Agent hereunder
are solely to protect its interest in the Collateral and shall not impose any
duty upon it to exercise any such powers. Except for the exercise of reasonable
care in the custody of any Collateral in its possession and the accounting for
moneys actually received by it hereunder, the Collateral Agent shall have no
duty as to any Collateral or as to the taking of any necessary steps to
preserve rights against prior parties or any other rights pertaining to any
Collateral. The Collateral Agent shall be deemed to have exercised reasonable
care in the custody and preservation of Collateral in its possession if such
Collateral is accorded treatment substantially equal to that which the
Collateral Agent accords its own property. Neither the Collateral Agent nor any
of its directors, officers, employees or agents shall be liable for failure to
demand, collect or realize upon all or any part of the Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise dispose
of any Collateral upon the request of any Grantor or otherwise. If any Grantor
fails to perform any agreement contained herein, the Collateral Agent may
itself perform, or cause performance of, such agreement, and the expenses of
the Collateral Agent incurred in connection therewith shall be payable by each
Grantor under Section 10.02 of the Credit Agreement.


 


ARTICLE XI


 


MISCELLANEOUS.


 


Any notice required or permitted to be given under
this Agreement shall be given in accordance with Section 10.01 of the
Credit Agreement. No failure or delay on the part of the Collateral Agent in
the exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further exercise
thereof or of any other power, right or privilege. All rights and remedies
existing under this Agreement and the other Loan Documents are cumulative to,
and not exclusive of, any rights or remedies otherwise available. In case any
provision in or obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be
within the limitations of, another covenant shall not avoid the occurrence of a
Default or an Event of Default if such action is taken or condition exists.
This Agreement shall be binding upon and inure to the benefit of the Collateral
Agent and Grantors and their respective successors and permitted assigns. No
Grantor shall, without the prior written consent of the Collateral Agent given
in accordance with the Credit Agreement, assign any right, duty or obligation
hereunder. This Agreement and the other Loan Documents embody the entire
agreement and understanding between Grantors and the Collateral Agent and
supersede all prior agreements and understandings between such parties relating
to the subject matter hereof and thereof. Accordingly, the Loan Documents may
not be contradicted by evidence of prior, contemporaneous or subsequent oral
agreements of the parties. There are no unwritten oral agreements between the
parties. This Agreement may be executed in one or more counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature
pages may be detached from multiple separate


 


36

















 


counterparts and
attached to a single counterpart so that all signature pages are
physically attached to the same document.


 


THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 AND
SECTION 5-1402) OF THE NEW YORK GENERAL OBLIGATIONS LAW.


 


37

















 


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


 


	
   

  	
  MR
  DEFAULT SERVICES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer Dorris

  
	
   

  	
  Name:

  	
  Jennifer Dorris

  
	
   

  	
  Title:

  	
  Vice President, CFO &
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  E-DEFAULT SERVICES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer Dorris

  
	
   

  	
  Name:

  	
  Jennifer Dorris

  
	
   

  	
  Title:

  	
  Vice President, CFO &
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  STATEWIDE TAX AND TITLE
  SERVICES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer Dorris

  
	
   

  	
  Name:

  	
  Jennifer Dorris

  
	
   

  	
  Title:

  	
  Vice President, CFO &
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  STATEWIDE PUBLISHING SERVICES
  LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer Dorris

  
	
   

  	
  Name:

  	
  Jennifer Dorris

  
	
   

  	
  Title:

  	
  Vice President, CFO &
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  MR PROCESSING HOLDING CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jennifer Dorris

  
	
   

  	
  Name:

  	
  Jennifer Dorris

  
	
   

  	
  Title:

  	
  Vice President, CFO &
  Secretary

  



 


Signature page to Pledge and Security Agreement


 

















 


	
   

  	
  THE ROYAL BANK OF SCOTLAND PLC,

  
	
   

  	
  as the Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William Stafeil

  
	
   

  	
  Name:

  	
  William Stafeil

  
	
   

  	
  Title:

  	
  Managing Director

  



 


Signature page to Pledge and Security Agreement


 














 


EXHIBIT I TO


CREDIT AND GUARANTY
AGREEMENT


 


RECORDING
REQUESTED BY:


Latham & Watkins
LLP


 


AND WHEN
RECORDED MAIL TO:


 


Latham & Watkins
LLP


633 West 5th Street,
Suite 4000


Los Angeles, CA 90071


Attn: Mohammad
Hayat, Esq.


 


Re:
[LOAN PARTY]


 


Location:


 


Municipality:


 


County:


 


State:


 


	
   

  	
  Space above this line
  for recorder’s use only

  



 


MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF RENTS


AND LEASES AND FIXTURE FILING


([State] Leasehold Interest)


 


This
document serves as a Fixture Filing under Section [  ] of the [State] Uniform Commercial Code.


 


This
MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND LEASES AND FIXTURE
FILING, dated as of [mm/dd/yy] (this “Mortgage”), by and from [NAME OF
MORTGAGOR], a [Type of Person] (“Mortgagor”), to THE ROYAL BANK OF
SCOTLAND PLC, as agent for Lenders and Lender Counterparties (in such capacity,
“Mortgagee”).


 


RECITALS:


 


WHEREAS,
reference is made to that certain Credit and Guaranty Agreement, dated as of
February 24, 2006 (as it may be amended, supplemented, restated or otherwise
modified, the “Credit Agreement”; the terms defined therein and not
otherwise defined herein being used herein as therein defined), by and among MR
DEFAULT SERVICES LLC, a Delaware limited liability company (“MR”),
E-DEFAULT SERVICES LLC, a Delaware limited liability company (“E-Default”),
STATEWIDE TAX AND TITLE SERVICES LLC, a Delaware limited liability company (“STT”),
STATEWIDE PUBLISHING SERVICES LLC, a Delaware limited liability company (“Statewide
Publishing” and,


 


1

















 


together with MR,
E-Default and STT on a joint and several basis, “Borrowers”), MR
PROCESSING HOLDING CORP., a Delaware corporation (“Holdings”), certain
subsidiaries of Borrowers, as guarantors, the lenders party thereto from time to
time, THE ROYAL BANK OF SCOTLAND PLC, as administrative agent, collateral agent
and documentation agent and RBS SECURITIES CORPORATION as sole lead arranger,
sole book runner and syndication agent;


 


WHEREAS,
subject to the terms and conditions of the Credit Agreement, [Mortgagor]
[Borrowers] may enter into one or more Hedge Agreements with one or more Lender
Counterparties;


 


WHEREAS,
in consideration of the extensions of credit and other accommodations of
Lenders and Lender Counterparties as set forth in the Credit Agreement and the
Hedge Agreements, respectively, Mortgagor has agreed, subject to the terms and
conditions hereof, of each other Loan Document and of each of the Hedge
Agreements, to secure Mortgagor’s obligations under the Loan Documents and the
Hedge Agreements as set forth herein; and


 


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


 


ARTICLE ONE


DEFINITIONS


 


Section 1.01            Definitions.


 


Capitalized
terms used herein (including the recitals hereto) not otherwise defined herein
shall have the meanings ascribed thereto in the Credit Agreement. In addition,
as used herein, the following terms shall have the following meanings:


 


“Indebtedness”
means (i) with respect to [Mortgagor] [Borrowers], all obligations and
liabilities of every nature of [Mortgagor] [Borrowers] now or hereafter
existing under or arising out of or in connection with the Credit Agreement and
the other Loan Documents and any Hedge Agreement; and (ii) with respect to
any other Mortgagor, all obligations and liabilities of every nature of such
Mortgagor now or hereafter existing under or arising out of or in connection
with any other Loan Document, in each case together with all extensions or
renewals thereof, whether for principal, interest (including interest that, but
for the filing of a petition in bankruptcy with respect to any [Mortgagor]
[Borrowers], would accrue on such obligations, whether or not a claim is
allowed against such [Mortgagor] [Borrowers] for such interest in the related
bankruptcy proceeding), reimbursement of amounts drawn under Letters of Credit,
payments for early termination of Hedge Agreements, fees, expenses, indemnities
or otherwise, whether voluntary or involuntary, direct or indirect, absolute or
contingent, liquidated or unliquidated, whether or not jointly owed with
others, and whether or not from time to time decreased or extinguished and
later increased, created or incurred, and all or any portion of such
obligations or liabilities that are paid, to the extent all or any part of such
payment is avoided or recovered directly or indirectly from Mortgagor, any
Lender or Lender Counterparty as a preference, fraudulent transfer or
otherwise, and all obligations of every nature of Mortgagor now or hereafter
existing under this Agreement. The Credit Agreement contains a revolving credit
facility which permits [Mortgagor] [Borrowers] to borrow certain principal
amounts, repay all or a portion of such principal amounts, and reborrow the
amounts previously paid to the Administrative Agent or Lenders, all upon
satisfaction of certain conditions stated in the Credit Agreement. This
Mortgage secures all advances and re-advances under the revolving credit
feature of the Credit Agreement.


 


2

















 


“Mortgaged
Property” means all of Mortgagor’s interest in (i) [the leasehold
estate in] the real property described in Exhibit A [created by the
Subject Lease (as defined below)], together with any greater or additional
estate therein as hereafter may be acquired by Mortgagor (the “Land”); [(ii) all
assignments, modifications, extensions and renewals of the Subject Lease and
all credits, deposits, options, privileges and rights of Mortgagor as tenant
under the Subject Lease, including, but not limited to, rights of first
refusal, if any, and the right, if any, to renew or extend the Subject Lease
for a succeeding term or terms,] (iii) all improvements now owned or
hereafter acquired by Mortgagor, now or at any time situated, placed or
constructed upon the Land subject to the Permitted Liens (the “Improvements”;
the Land and Improvements are collectively referred to as the “Premises”);
(iv) all materials, supplies, equipment, apparatus and other items of
personal property now owned or hereafter acquired by Mortgagor and now or
hereafter attached to, installed in or used in connection with any of the
Improvements or the Land, and water, gas, electrical, telephone, storm and
sanitary sewer facilities and all other utilities whether or not situated in
easements (the “Fixtures”); (v) all right, title and interest of
Mortgagor in and to all goods, accounts, general intangibles, instruments,
documents, chattel paper and all other personal property of any kind or
character, including such items of personal property as defined in the UCC
(defined below), now owned or hereafter acquired by Mortgagor and now or
hereafter affixed to, placed upon, used in connection with, arising from or
otherwise related to the Premises (the “Personalty”); (vi) all
reserves, escrows or impounds required under the Credit Agreement and all
deposit accounts maintained by Mortgagor with respect to the Mortgaged Property
(the “Deposit Accounts”); (vii) all leases, licenses, concessions,
occupancy agreements or other agreements (written or oral, now or at any time
in effect) which grant to any Person (other than Mortgagor) a possessory
interest in, or the right to use, all or any part of the Mortgaged Property,
together with all related security and other deposits subject to depositors’
rights and requirements of law (the “Leases”); (viii) all of the
rents, revenues, royalties, income, proceeds, profits, security and other types
of deposits subject to depositors’ rights and requirements of law, and other
benefits paid or payable by parties to the Leases for using, leasing,
licensing, possessing, operating from, residing in, selling or otherwise
enjoying the Mortgaged Property (the “Rents”), (ix) to the extent
mortgageable or assignable all other agreements, such as construction
contracts, architects’ agreements, engineers’ contracts, utility contracts,
maintenance agreements, management agreements, service contracts, listing
agreements, guaranties, warranties, permits, licenses, certificates and
entitlements in any way relating to the construction, use, occupancy,
operation, maintenance, enjoyment or ownership of the Mortgaged Property (the “Property
Agreements”); (x) to the extent mortgageable or assignable all rights,
privileges, tenements, hereditaments, rights-of-way, easements, appendages and
appurtenances appertaining to the foregoing; (xi) all property tax refunds
payable to Mortgagor (the “Tax Refunds”); (xii) all accessions,
replacements and substitutions for any of the foregoing and all proceeds
thereof (the “Proceeds”); (xiii) all insurance policies, unearned
premiums therefor and proceeds from such policies covering any of the above
property now or hereafter acquired by Mortgagor (the “Insurance”); and
(xiv) all of Mortgagor’s right, title and interest in and to any awards,
damages, remunerations, reimbursements, settlements or compensation heretofore
made or hereafter to be made by any governmental authority pertaining to the
Land, Improvements, Fixtures or Personalty (the “Condemnation Awards”).
As used in this Mortgage, the term “Mortgaged Property” shall mean all or,
where the context permits or requires, any portion of the above or any interest
therein.


 


“Obligations”
means all of the agreements, covenants, conditions, warranties, representations
and other obligations of Mortgagor (including, without limitation, the
obligation to repay the Indebtedness) under the Credit Agreement, any other
Loan Documents or any of the Hedge Agreements.


 


3

















 


[“Subject
Lease” means that certain [DESCRIBE LEASE], dated [mm/dd/yy], pursuant to
which Mortgagor leases all or a portion of the Land from [NAME OF LANDLORD], a
memorandum of which was recorded with the [FILING OFFICE].]


 


“UCC”
means the Uniform Commercial Code of New York or, if the creation, perfection
and enforcement of any security interest herein granted is governed by the laws
of a state other than New York, then, as to the matter in question, the Uniform
Commercial Code in effect in that state.


 


1.02           Interpretation.


 


References
to “Sections” shall be to Sections of this Mortgage unless otherwise
specifically provided. Section headings in this Mortgage are included
herein for convenience of reference only and shall not constitute a part of
this Mortgage for any other purpose or be given any substantive effect. The
rules of construction set forth in Section 1.03 of the Credit
Agreement shall be applicable to this Mortgage mutatis mutandis. If any
conflict or inconsistency exists between this Mortgage and the Credit
Agreement, the Credit Agreement shall govern.


 


ARTICLE TWO


GRANT


 


To
secure the full and timely payment of the Indebtedness and the full and timely
performance of the Obligations, Mortgagor MORTGAGES, GRANTS, BARGAINS, ASSIGNS,
SELLS and CONVEYS, to Mortgagee the Mortgaged Property, subject, however, to
the Permitted Liens, TO HAVE AND TO HOLD the Mortgaged Property to Mortgagee,
and Mortgagor does hereby bind itself, its successors and assigns to WARRANT
AND FOREVER DEFEND the title to the Mortgaged Property unto Mortgagee for so
long as any of the Obligations remain outstanding.


 


ARTICLE THREE


WARRANTIES, REPRESENTATIONS AND
COVENANTS


 


Section 3.01            Title.


 


Mortgagor
represents and warrants to Mortgagee that except for the Permitted Liens,
(a) Mortgagor owns the Mortgaged Property free and clear of any liens,
claims or interests, and (b) this Mortgage creates valid, enforceable
first priority liens and security interests against the Mortgaged Property.


 


Section 3.02            First
Lien Status.


 


Mortgagor
shall preserve and protect the first lien and security interest status of this
Mortgage and the other Loan Documents to the extent related to the Mortgaged
Property. If any lien or security interest other than a Permitted Lien is asserted
against the Mortgaged Property, Mortgagor shall promptly, and at its expense,
(a) give Mortgagee a detailed written notice of such lien or security
interest (including origin, amount and other terms), and (b) pay the
underlying claim in full or take such other action so as to cause it to be
released.


 


4

















 


Section 3.03            Payment and Performance.


 


Mortgagor
shall pay the Indebtedness when due under the Loan Documents and shall perform
the Obligations in full when they are required to be performed as required
under the Loan Documents.


 


Section 3.04            Replacement of Fixtures and Personalty.


 


Mortgagor
shall not, without the prior written consent of Mortgagee, except as permitted
under the Credit Agreement, permit any of the Fixtures or Personalty to be
removed at any time from the Land or Improvements, unless the removed item is
removed temporarily for maintenance and repair or, if removed permanently, is
obsolete and is replaced by an article of equal or better suitability and
value, owned by Mortgagor subject to the liens and security interests of this
Mortgage and the other Loan Documents, and free and clear of any other lien or
security interest except such as may be permitted under the Credit Agreement or
first approved in writing by Mortgagee.


 


Section 3.05            Inspection.


 


Mortgagor
shall permit Mortgagee, and Mortgagee’s agents, representatives and employees,
upon reasonable prior notice to Mortgagor, and in compliance with the Subject
Lease, to inspect the Mortgaged Property and all books and records of Mortgagor
located thereon, and to conduct such environmental and engineering studies as
Mortgagee may reasonably require; provided, such inspections and studies shall
not materially interfere with the use and operation of the Mortgaged Property.


 


Section 3.06            Covenants Running with the Land.


 


All
Obligations contained in this Mortgage are intended by Mortgagor and Mortgagee
to be, and shall be construed as, covenants running with the Mortgaged
Property. As used herein, “Mortgagor” shall refer to the party named in the
first paragraph of this Mortgage and to any subsequent owner of all or any
portion of the Mortgaged Property. All Persons who may have or acquire an
interest in the Mortgaged Property shall be deemed to have notice of, and be
bound by, the terms of the Credit Agreement and the other Loan Documents;
however, no such party shall be entitled to any rights thereunder without the
prior written consent of Mortgagee. In addition, all of the covenants of Mortgagor
in any Loan Document party thereto are incorporated herein by reference and,
together with covenants in this Section, shall be covenants running with the
land.


 


Section 3.07            Condemnation Awards and Insurance Proceeds.


 


Mortgagor
assigns all awards and compensation to which it is entitled for any
condemnation or other taking, or any purchase in lieu thereof, to Mortgagee and
authorizes Mortgagee to collect and receive such awards and compensation and to
give proper receipts and acquittances therefor, subject to the terms of the
Credit Agreement. Mortgagor assigns to Mortgagee all proceeds of any insurance
policies insuring against loss or damage to the Mortgaged Property, subject to
the terms of the Credit Agreement. Mortgagor authorizes Mortgagee to collect
and receive such proceeds and authorizes and directs the issuer of each of such
insurance policies to make payment for all such losses directly to Mortgagee,
instead of to Mortgagor and Mortgagee jointly, subject to the terms of the
Credit Agreement.


 


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Section 3.08            Change
in Tax Law.


 


Upon
the enactment of or change in (including, without limitation, a change in
interpretation of) any applicable law (i) deducting or allowing Mortgagor
to deduct from the value of the Mortgaged Property for the purpose of taxation
any lien or security interest thereon or (ii) subjecting Mortgagee or any
of the Lenders to any tax or changing the basis of taxation of mortgages, deeds
of trust, or other liens or debts secured thereby, or the manner of collection
of such taxes, in each such case, so as to affect this Mortgage, the
Indebtedness or Mortgagee, and the result is to increase the taxes imposed upon
or the cost to Mortgagee of maintaining the Indebtedness, or to reduce the
amount of any payments receivable hereunder, then, and in any such event,
Mortgagor shall, on demand, pay to Mortgagee and the Lenders additional amounts
to compensate for such increased costs or reduced amounts, provided that
if any such payment or reimbursement shall be unlawful, or taxable to
Mortgagee, or would constitute usury or render the Indebtedness wholly or
partially usurious under applicable law, then Mortgagor shall pay or reimburse
Mortgagee or the Lenders for payment of the lawful and non-urious portion
thereof.


 


Section 3.09            Mortgage Tax.


 


Mortgagor
shall (i) pay when due any tax imposed upon it or upon Mortgagee or any
Lender pursuant to the tax law of the state in which the Mortgaged Property is
located in connection with the execution, delivery and recordation of this
Mortgage and any of the other Loan Documents, and (ii) prepare, execute
and file any form required to be prepared, executed and filed in connection
therewith.


 


Section 3.10            Reduction
Of Secured Amount.


 


In
the event that the amount secured by the Mortgage is less than the
Indebtedness, then the amount secured shall be reduced only by the last and
final sums that Mortgagor [or Borrowers] repays with respect to the
Indebtedness and shall not be reduced by any intervening repayments of the
Indebtedness unless arising from the Mortgaged Property. So long as the balance
of the Indebtedness exceeds the amount secured, any payments of the
Indebtedness shall not be deemed to be applied against, or to reduce, the
portion of the Indebtedness secured by this Mortgage. Such payments shall
instead be deemed to reduce only such portions of the Indebtedness as are
secured by other collateral located outside of the state in which the Mortgaged
Property is located or as are unsecured.


 


Section [3.11           Certain
Leasehold Representations, Warranties and Covenants.


 


(a) 
Mortgagor represents and warrants to Mortgagee that (a) the Subject Lease
is unmodified and in full force and effect, (b) all rent and other charges
therein have been paid to the extent they are payable to the date hereof,
(c) Mortgagor enjoys the quiet and peaceful possession of the property
demised thereby, (d) Mortgagor is not in default under any of the terms
thereof and there are no circumstances which, with the passage of time or the
giving of notice or both, would constitute an event of default thereunder, and
(e) to the knowledge of Mortgagor, the lessor thereunder is not in default
under any of the terms or provisions thereof on the part of the lessor to be
observed or performed (but this statement is made for the benefit of and may
only be relied upon by Mortgagee and Lenders). Mortgagor shall promptly pay,
when due and payable, the rent and other charges payable pursuant to the
Subject Lease, and will timely perform and observe all of the other terms,
covenants and conditions required to be performed and observed by Mortgagor as
lessee under the Subject Lease. Mortgagor shall notify Mortgagee in writing of
any default by Mortgagor in the performance or observance of any terms,
covenants or conditions on the part of Mortgagor to be performed or observed
under the Subject Lease


 


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within ten (10) days
after Mortgagor knows of such default. Mortgagor shall, promptly following the
receipt thereof, deliver a copy of any notice of default given to Mortgagor by
the lessor pursuant to the Subject Lease and promptly notify Mortgagee in
writing of any default by the lessor in the performance or observance of any of
the terms, covenants or conditions on the part of the lessor to be performed or
observed thereunder. Unless required under the terms of the Subject Lease,
except as set forth in the Credit Agreement, Mortgagor shall not, without the
prior written consent of Mortgagee (which may be granted or withheld in
Mortgagee’s sole and absolute discretion) (i) terminate, or surrender the
Subject Lease, or (ii) enter into any modification of the Subject Lease
which materially impairs the practical realization of the security interest
granted by this Mortgage, and any such attempted termination, modification or
surrender without Mortgagee’s written consent shall be void. Mortgagor shall,
within thirty (30) days after written request from Mortgagee, use reasonable
efforts to obtain from the lessor and deliver to Mortgagee a certificate
setting forth the name of the tenant thereunder and stating that the Subject
Lease is in full force and effect, is unmodified or, if the Subject Lease has
been modified, the date of each modification (together with copies of each such
modification), that no notice of termination thereon has been served on
Mortgagor, stating that to the best of Mortgagee’s knowledge, no default or
event which with notice or lapse of time (or both) would become a default is
existing under the Subject Lease, stating the date to which rent has been paid,
and specifying the nature of any defaults, if any, and containing such other
statements and representations as may be reasonably requested by Mortgagee.


 


(b)      So long
as any of the Indebtedness or the Obligations remain unpaid or unperformed, the
fee title to and the leasehold estate in the premises subject to each Subject
Lease shall not merge but shall always be kept separate and distinct
notwithstanding the union of such estates in the lessor or Mortgagor, or in a
third party, by purchase or otherwise. If Mortgagor acquires the fee title or
any other estate, title or interest in the property demised by the Subject
Lease, or any part thereof, the lien of this Mortgage shall attach to, cover
and be a lien upon such acquired estate, title or interest and the same shall
thereupon be and become a part of the Mortgaged Property with the same force
and effect as if specifically encumbered herein. Mortgagor agrees to execute
all instruments and documents that Mortgagee may reasonably require to ratify,
confirm and further evidence the lien of this Mortgage on the acquired estate,
title or interest. Furthermore, Mortgagor hereby appoints Mortgagee as its true
and lawful attorney-in-fact to execute and deliver, following an Event of
Default, all such instruments and documents in the name and on behalf of
Mortgagor. This power, being coupled with an interest, shall be irrevocable as
long as any portion of the Indebtedness remains unpaid.


 


(c)       If the
Subject Lease shall be terminated prior to the natural expiration of its term
due to default by Mortgagor or any tenant thereunder, and if, pursuant to the
provisions of the Subject Lease, Mortgagee or its designee shall acquire from
the lessor a new lease of the premises subject to the Subject Lease, Mortgagor
shall have no right, title or interest in or to such new lease or the leasehold
estate created thereby, or renewal privileges therein contained.


 


(d)      If the
Term Loan Maturity Date, as set forth in the Credit Agreement, is extended with
the consent of Mortgagor and Mortgagee, or if Mortgagee elects to foreclose,
either by judicial action or by power of sale, or seek any other remedy set
forth in Sections 4 and 9 of this Mortgage after the occurrence and continuance
of an Event of Default, Mortgagor shall, if requested by Mortgagee, exercise
any option to renew or extend the Subject Lease, and Mortgagor shall give
written confirmation thereof to Mortgagee within ten (10) days after such
option is exercised; and Mortgagor hereby irrevocably appoints Mortgagee as its
attorney-in-fact, with power of substitution, to exercise such option on behalf
of Mortgagor if Mortgagor is required under the foregoing provisions to
exercise said option but for any reason fails or refuses to exercise said
option on a timely basis.


 


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(e)       Notwithstanding
anything to the contrary contained herein, this Mortgage shall not constitute
an assignment of the Subject Lease within the meaning of any provision thereof
prohibiting its assignment and Mortgagee shall have no liability or obligation
thereunder by reason of its acceptance of this Mortgage. Mortgagee shall be
liable for the obligations of the tenant arising out of any Subject Lease for
only that period of time for which Mortgagee is in possession of the premises
demised thereunder or has acquired, by foreclosure or otherwise, and is holding
all of Mortgagor’s right, title and interest therein.


 


ARTICLE FOUR


DEFAULT AND FORECLOSURE


 


Section 4.01            Remedies.


 


If an
Event of Default has occurred and is continuing, Mortgagee may, at Mortgagee’s
election, exercise any or all of the following rights, remedies and recourses: (a) declare
the Indebtedness to be immediately due and payable, without further notice,
presentment, protest, notice of intent to accelerate, notice of acceleration,
demand or action of any nature whatsoever (each of which hereby is expressly
waived by Mortgagor), whereupon the same shall become immediately due and payable;
(b) enter the Mortgaged Property and take exclusive possession thereof and
of all books, records and accounts relating thereto or located thereon; (c) if
Mortgagor remains in possession of the Mortgaged Property after an Event of
Default and without Mortgagee’s prior written consent, Mortgagee may invoke any
legal remedies to dispossess Mortgagor; (d) hold, lease, develop, manage,
operate or otherwise use the Mortgaged Property upon such terms and conditions
as Mortgagee may deem reasonable under the circumstances (making such repairs,
alterations, additions and improvements and taking other actions, from time to
time, as Mortgagee deems necessary or desirable), and apply all Rents and other
amounts collected by Mortgagee in connection therewith in accordance with the
provisions hereof; or (e) institute proceedings for the complete
foreclosure of this Mortgage, either by judicial action or by power of sale, in
which case the Mortgaged Property may be sold for cash or credit in one or more
parcels. With respect to any notices required or permitted under the UCC,
Mortgagor agrees that ten (10) days’ prior written notice shall be deemed
commercially reasonable. At any such sale by virtue of any judicial
proceedings, power of sale, or any other legal right, remedy or recourse, the
title to and right of possession of any such property shall pass to the
purchaser thereof, and to the fullest extent permitted by law, Mortgagor shall
be completely and irrevocably divested of all of its right, title, interest, claim,
equity, equity of redemption, and demand whatsoever, either at law or in
equity, in and to the property sold and such sale shall be a perpetual bar both
at law and in equity against Mortgagor, and against all other Persons claiming
or to claim the property sold or any part thereof, by, through or under
Mortgagor. Mortgagee or any of the Lenders may be a purchaser at such sale and
if Mortgagee is the highest bidder, Mortgagee shall credit the portion of the
purchase price that would be distributed to Mortgagee against the Indebtedness
in lieu of paying cash. In the event this Mortgage is foreclosed by judicial
action, appraisement of the Mortgaged Property is waived. In addition, if an
Event of Default has occurred and is continuing, Mortgagee may, at Mortgagee’s
election, make application to a court of competent jurisdiction for, and obtain
from such court as a matter of strict right and without notice to Mortgagor or
regard to the adequacy of the Mortgaged Property for the repayment of the
Indebtedness, the appointment of a receiver of the Mortgaged Property, and
Mortgagor irrevocably consents to such appointment. Any such receiver shall
have all the usual powers and duties of receivers in similar cases, including
the full power to rent, maintain and otherwise operate the Mortgaged Property
upon such terms as may be approved by the court, and shall apply such Rents in
accordance with the provisions hereof, Mortgagee may, at it’s


 


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election, exercise all other
rights, remedies and recourses granted under the Loan Documents or otherwise
available at law or in equity.


 


Section 4.02            Separate
Sales.


 


The
Mortgaged Property may be sold in one or more parcels and in such manner and
order as Mortgagee in its sole discretion may elect; the right of sale arising
out of any Event of Default shall not be exhausted by any one or more sales.


 


Section 4.03            Remedies
Cumulative, Concurrent and Nonexclusive.


 


Mortgagee
shall have all rights, remedies and recourses granted in the Loan Documents and
available at law or equity (including the UCC), which rights (a) shall be
cumulated and concurrent, (b) may be pursued separately, successively or
concurrently against Mortgagor or others obligated under the Loan Documents, or
against the Mortgaged Property, or against any one or more of them, at the sole
discretion of Mortgagee or the Lenders, (c) may be exercised as often as
occasion therefor shall arise, and the exercise or failure to exercise any of
them shall not be construed as a waiver or release thereof or of any other
right, remedy or recourse, and (d) are intended to be, and shall be,
nonexclusive. No action by Mortgagee or the Lenders in the enforcement of any
rights, remedies or recourses under the Loan Documents or otherwise at law or
equity shall be deemed to cure any Event of Default.


 


Section 4.04            Release
of and Resort to Collateral.


 


Mortgagee
may release, regardless of consideration and without the necessity for any
notice to or consent by the holder of any subordinate lien on the Mortgaged
Property, any part of the Mortgaged Property without, as to the remainder, in
any way impairing, affecting, subordinating or releasing the lien or security
interest created in or evidenced by the Loan Documents or their status as a first
and prior lien and security interest in and to the Mortgaged Property. For
payment of the Indebtedness, Mortgagee may resort to any other security in such
order and manner as Mortgagee may elect.


 


Section 4.05            Waiver
of Redemption, Notice and Marshalling of Assets.


 


To
the fullest extent permitted by law, Mortgagor hereby irrevocably and
unconditionally waives and releases (a) all benefit that might accrue to
Mortgagor by virtue of any present or future statute of limitations or law or
judicial decision exempting the Mortgaged Property from attachment, levy or
sale on execution or providing for any stay of execution, exemption from civil
process, redemption or extension of time for payment; (b) all notices of
any Event of Default or of Mortgagee’s election to exercise or the actual
exercise of any right, remedy or recourse provided for under the Loan
Documents; and (c) any right to a marshalling of assets or a sale in
inverse order of alienation.


 


Section 4.06            Discontinuance
of Proceedings.


 


If
Mortgagee or the Lenders shall have proceeded to invoke any right, remedy or
recourse permitted under the Loan Documents and shall thereafter elect to
discontinue or abandon it for any reason, Mortgagee or the Lenders shall have
the unqualified right to do so and, in such an event, Mortgagor and Mortgagee
or the Lenders shall be restored to their former positions with respect to the
Indebtedness, the Obligations, the Loan Documents, the Mortgaged Property and
otherwise, and the rights, remedies, recourses and powers of Mortgagee or the
Lenders shall continue as if the right, remedy


 


9

















 


or recourse had never
been invoked, but no such discontinuance or abandonment shall waive any Event
of Default which may then exist or the right of Mortgagee or the Lenders
thereafter to exercise any right, remedy or recourse under the Loan Documents
for such Event of Default.


 


Section 4.07            Application
of Proceeds.


 


The
proceeds of any sale of, and the Rents and other amounts generated by the
holding, leasing, management, operation or other use of the Mortgaged Property,
shall be applied by Mortgagee (or the receiver, if one is appointed) in the
following order unless otherwise required by applicable law: first, to the
payment of the costs and expenses of taking possession of the Mortgaged
Property and of holding, using, leasing, repairing, improving and selling the
same, including, without limitation, (a) receiver’s fees and expenses, including
the repayment of the amounts evidenced by any receiver’s certificates, (b) court
costs, (c) reasonable attorneys’ and accountants’ fees and expenses, (d) costs
of advertisement [, and (e) the payment of all rent and other charges
under the Subject Lease]; and second, as provided in Section 7.02 of the
Pledge and Security Agreement.


 


Section 4.08            Occupancy
After Foreclosure.


 


Any
sale of the Mortgaged Property or any part thereof will divest all right, title
and interest of Mortgagor in and to the property sold. Subject to applicable
law, any purchaser at a foreclosure sale will receive immediate possession of
the property purchased. If Mortgagor retains possession of such property or any
part thereof subsequent to such sale, Mortgagor will be considered a tenant at
sufferance of the purchaser, and will, if Mortgagor remains in possession after
demand to remove, be subject to eviction and removal, forcible or otherwise,
with or without process of law.


 


Section 4.09            Additional
Advances and Disbursements; Costs of Enforcement.


 


If
any Event of Default exists, Mortgagee and each of the Lenders shall have the
right, but not the obligation, to cure such Event of Default in the name and on
behalf of Mortgagor in accordance with the Credit Agreement. All sums advanced
and expenses incurred at any time by Mortgagee or any Lender under this
Section, or otherwise under this Mortgage or any of the other Loan Documents or
applicable law, shall bear interest from the date that such sum is advanced or
expense incurred if not repaid within five (5) days after demand therefor,
to and including the date of reimbursement, computed at the rate or rates at
which interest is then computed on the Indebtedness, and all such sums,
together with interest thereon, shall be secured by this Mortgage. Mortgagor
shall pay all expenses (including reasonable attorneys’ fees and expenses) of
or incidental to the perfection and enforcement of this Mortgage and the other
Loan Documents, or the enforcement, compromise or settlement of the
Indebtedness or any claim under this Mortgage and the other Loan Documents, and
for the curing thereof, or for defending or asserting the rights and claims of
Mortgagee or the Lenders in respect thereof, by litigation or otherwise.


 


Section 4.10            No
Mortgagee in Possession.


 


Neither
the enforcement of any of the remedies under this Section, the assignment of
the Rents and Leases under Section 5, the security interests under Section 6,
nor any other remedies afforded to Mortgagee or the Lenders under the Loan
Documents, at law or in equity shall cause Mortgagee or any Lender to be deemed
or construed to be a mortgagee in possession of the Mortgaged Property, to
obligate Mortgagee or any Lender to lease the Mortgaged Property or attempt to
do so, or to take any action, incur


 


10

















 


any expense, or perform
or discharge any obligation, duty or liability whatsoever under any of the
Leases or otherwise.


 


ARTICLE FIVE


ASSIGNMENT OF RENTS AND LEASES


 


Section 5.01            Assignment.


 


In
furtherance of and in addition to the assignment made by Mortgagor herein,
Mortgagor hereby absolutely and unconditionally assigns, sells, transfers and
conveys to Mortgagee all of its right, title and interest in and to all Leases,
whether now existing or hereafter entered into, and all of its right, title and
interest in and to all Rents. This assignment is an absolute assignment and not
an assignment for additional security only. So long as no Event of Default
shall have occurred and be continuing, Mortgagor shall have a revocable license
from Mortgagee to exercise all rights extended to the landlord under the
Leases, including the right to receive and collect all Rents and to hold the
Rents in trust for use in the payment and performance of the Obligations and to
otherwise use the same. The foregoing license is granted subject to the
conditional limitation that no Event of Default shall have occurred and be
continuing. Upon the occurrence and during the continuance of an Event of
Default, whether or not legal proceedings have commenced, and without regard
to waste, adequacy of security for the Obligations or solvency of Mortgagor,
the license herein granted shall automatically expire and terminate, without
notice by Mortgagee (any such notice being hereby expressly waived by
Mortgagor).


 


Section 5.02            Perfection
Upon Recordation.


 


Mortgagor
acknowledges that Mortgagee has taken all reasonable actions necessary to
obtain, and that upon recordation of this Mortgage Mortgagee shall have, to the
extent permitted under applicable law, a valid and fully perfected, first
priority, present assignment of the Rents arising out of the Leases and all
security for such Leases subject to the Permitted Liens and in the case of
security deposits, rights of depositors and requirements of law. Mortgagor
acknowledges and agrees that upon recordation of this Mortgage Mortgagee’s
interest in the Rents shall be deemed to be fully perfected, “choate” and
enforced as to Mortgagor and all third parties, including, without limitation,
any subsequently appointed trustee in any case under Title 11 of the United
States Code (the “Bankruptcy Code”), without the necessity of commencing
a foreclosure action with respect to this Mortgage, making formal demand for
the Rents, obtaining the appointment of a receiver or taking any other affirmative
action.


 


Section 5.03            Bankruptcy
Provisions.


 


Without
limitation of the absolute nature of the assignment of the Rents hereunder,
Mortgagor and Mortgagee agree that (a) this Mortgage shall constitute a
“security agreement” for purposes of Section 552(b) of the Bankruptcy
Code, (b) the security interest created by this Mortgage extends to
property of Mortgagor acquired before the commencement of a case in bankruptcy
and to all amounts paid as Rents, and (c) such security interest shall
extend to all Rents acquired by the estate after the commencement of any case
in bankruptcy.


 


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ARTICLE SIX


SECURITY AGREEMENT


 


Section 6.01            Security
Interest.


 


This
Mortgage constitutes a “security agreement” on personal property within the
meaning of the UCC and other applicable law and with respect to the Personalty,
Fixtures, Leases, Rents, Deposit Accounts, Property Agreements, Tax Refunds,
Proceeds, Insurance and Condemnation Awards. To this end, Mortgagor grants to
Mortgagee a first and prior security interest in the Personalty, Fixtures,
Leases, Rents, Deposit Accounts, Property Agreements, Tax Refunds, Proceeds,
Insurance, Condemnation Awards and all other Mortgaged Property which is
personal property to secure the payment of the Indebtedness and performance of
the Obligations subject to the Permitted Liens, and agrees that Mortgagee shall
have all the rights and remedies of a secured parry under the UCC with respect
to such property. Any notice of sale, disposition or other intended action by
Mortgagee with respect to the Personalty, Fixtures, Leases, Rents, Deposit
Accounts, Property Agreements, Tax Refunds, Proceeds, Insurance and
Condemnation Awards sent to Mortgagor at least ten (10) days prior to any
action under the UCC shall constitute reasonable notice to Mortgagor.


 


Section 6.02            Financing
Statements.


 


Mortgagor
shall execute and deliver to Mortgagee, in form and substance satisfactory to
Mortgagee, such financing statements and such further assurances as Mortgagee
may, from time to time, reasonably consider necessary to create, perfect and
preserve Mortgagee’s security interest hereunder and Mortgagee may cause such
statements and assurances to be recorded and filed, at such times and places as
may be required or permitted by law to so create, perfect and preserve such
security interest. Mortgagor’s chief executive office is at the address set
forth in Section 10.01 of the Credit Agreement.


 


Section 6.03            Fixture
Filing.


 


This
Mortgage shall also constitute a “fixture filing” for the purposes of the UCC
against all of the Mortgaged Property which is or is to become fixtures.
Information concerning the security interest herein granted may be obtained at
the addresses of Debtor (Mortgagor) and Secured Party (Mortgagee) as set forth
in the first paragraph of this Mortgage.


 


ARTICLE SEVEN


ATTORNEY-IN-FACT


 


Mortgagor
hereby irrevocably appoints Mortgagee and its successors and assigns, as its
attorney-in-fact, which agency is coupled with an interest and with full power
of substitution, (a) to execute and/or record any notices of completion,
cessation of labor or any other notices that Mortgagee deems appropriate to
protect Mortgagee’s interest, if Mortgagor shall fail to do so within ten (10) days
after written request by Mortgagee, (b) upon the issuance of a deed
pursuant to the foreclosure of this Mortgage or the delivery of a deed in lieu
of foreclosure, to execute all instruments of assignment, conveyance or further
assurance with respect to the Leases, Rents, Deposit Accounts, Fixtures,
Personalty, Property Agreements, Tax Refunds, Proceeds, Insurance and
Condemnation Awards in favor of the grantee of any such deed and as may be
necessary or desirable for such purpose, (c) to prepare, execute and file
or record financing statements, continuation statements, applications for
registration and like papers necessary to create, perfect or preserve
Mortgagee’s security interests and rights in or to any


 


12

















 


of the Mortgaged
Property, and (d) while any Event of Default exists, to perform any
obligation of Mortgagor hereunder; provided, (i) Mortgagee shall not under
any circumstances be obligated to perform any obligation of Mortgagor; (ii) any
sums advanced by Mortgagee in such performance shall be added to and included
in the Indebtedness and shall bear interest at the rate or rates at which
interest is then computed on the Indebtedness provided that from the
date incurred said advance is not repaid within five (5) days demand
therefor; (iii) Mortgagee as such attorney-in-fact shall only be
accountable for such funds as are actually received by Mortgagee; and (iv) Mortgagee
shall not be liable to Mortgagor or any other person or entity for any failure
to take any action which it is empowered to take under this Section.


 


ARTICLE EIGHT


MORTGAGEE AS AGENT


 


Mortgagee
has been appointed to act as Mortgagee hereunder by Lenders and, by their
acceptance of the benefits hereof, Lender Counterparties. Mortgagee shall be
obligated, and shall have the right hereunder, to make demands, to give
notices, to exercise or refrain from exercising any rights, and to take or
refrain from taking any action (including the release or substitution of
Mortgaged Property), solely in accordance with this Mortgage and the Credit
Agreement; provided, Mortgagee shall exercise, or refrain from exercising, any
remedies provided for herein in accordance with the instructions of (a) Requisite
Lenders, or (b) after payment in full of all Obligations under the Credit
Agreement and the other Loan Documents, the holders of a majority of the
aggregate notional amount (or, with respect to any Hedge Agreement that has
been terminated in accordance with its terms, the amount then due and payable
(exclusive of expenses and similar payments but including any early termination
payments then due) under such Hedge Agreement) under all Hedge Agreements
(Requisite Lenders or, if applicable, such holders being referred to herein as
“Requisite Obligees”). In furtherance of the foregoing provisions of
this Section, each Lender Counterparty, by its acceptance of the benefits
hereof, agrees that it shall have no right individually to realize upon any of
the Mortgaged Property, it being understood and agreed by such Lender
Counterparty that all rights and remedies hereunder may be exercised solely by
Mortgagee for the benefit of Lenders and Lender Counterparties in accordance
with the terms of this Section. Mortgagee shall at all times be the same Person
that is Collateral Agent under the Credit Agreement. Written notice of
resignation by Collateral Agent pursuant to terms of the Credit Agreement shall
also constitute notice of resignation as Mortgagee under this Agreement;
removal of Collateral Agent pursuant to the terms of the Credit Agreement shall
also constitute removal as Mortgagee under this Agreement; and appointment of a
successor Collateral Agent pursuant to the terms of the Credit Agreement shall
also constitute appointment of a successor Mortgagee under this Agreement. Upon
the acceptance of any appointment as Collateral Agent under the terms of the
Credit Agreement by a successor Collateral Agent, that successor Collateral
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Mortgagee under this
Agreement, and the retiring or removed Mortgagee under this Agreement shall
promptly (i) transfer to such successor Mortgagee all sums, securities and
other items of Mortgaged Property held hereunder, together with all records and
other documents necessary or appropriate in connection with the performance of
the duties of the successor Mortgagee under this Mortgage, and (ii) execute
and deliver to such successor Mortgagee such amendments to financing
statements, and take such other actions, as may be necessary or appropriate in
connection with the assignment to such successor Mortgagee of the security
interests created hereunder, whereupon such retiring or removed Mortgagee shall
be discharged from its duties and obligations under this Mortgage thereafter
accruing. After any retiring or removed Collateral Agent’s resignation or
removal hereunder as Mortgagee, the provisions of this Mortgage shall continue
to enure to its benefit as to any actions taken or omitted to be taken by it
under this Mortgage while it was Mortgagee hereunder.


 


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ARTICLE NINE


LOCAL LAW PROVISIONS


 


[to
be provided, if any, by local counsel]


 


ARTICLE TEN


MISCELLANEOUS


 


Any
notice required or permitted to be given under this Mortgage shall be given in
accordance with Section 10.01 of the Credit Agreement. No failure or delay
on the part of Mortgagee or any Lender in the exercise of any power, right or
privilege hereunder or under any other Loan Document shall impair such power,
right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise thereof or of any
other power, right or privilege. All rights and remedies existing under this
Mortgage and the other Loan Documents are cumulative to, and not exclusive of,
any rights or remedies otherwise available. In case any provision in or
obligation under this Mortgage shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining provisions
or obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby. All covenants hereunder
shall be given independent effect so that if a particular action or condition
is not permitted by any of such covenants, the fact that it would be permitted
by an exception to, or would otherwise be within the limitations of, another
covenant shall not avoid the occurrence of a Default or an Event of Default if
such action is taken or condition exists. This Mortgage shall be binding upon
and inure to the benefit of Mortgagee and Mortgagor and their respective
successors and assigns. Except as permitted in the Credit Agreement, Mortgagor
shall not, without the prior written consent of Mortgagee, assign any rights,
duties or obligations hereunder. Upon payment in full of the Indebtedness and
performance in full of the Obligations, or upon prepayment of a portion of the
Indebtedness equal to the Net Asset Sale Proceeds for the Mortgaged Property in
connection with a permitted Asset Sale, subject to and in accordance with the
terms and provisions of the Credit Agreement, Mortgagee, at Mortgagor’s
expense, shall release the liens and security interests created by this
Mortgage or reconvey the Mortgaged Property to Mortgagor or, at the request of
Mortgagor, assign this Mortgage without recourse. This Mortgage and the other
Loan Documents embody the entire agreement and understanding between Mortgagee
and Mortgagor and supersede all prior agreements and understandings between
such parties relating to the subject matter hereof and thereof. Accordingly,
the Loan Documents may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties. Notwithstanding anything to the
contrary herewithin, this Mortgage is subject to the Credit Agreement; in case
of a conflict between this Mortgage and the Credit Agreement, the Credit
Agreement shall take precedence and shall be controlling.


 


THE
PROVISIONS OF THIS MORTGAGE REGARDING THE CREATION, PERFECTION AND ENFORCEMENT
OF THE LIENS AND SECURITY INTERESTS HEREIN GRANTED SHALL BE GOVERNED BY AND
CONSTRUED UNDER THE LAWS OF THE STATE IN WHICH THE MORTGAGED PROPERTY IS
LOCATED. ALL OTHER PROVISIONS OF THIS MORTGAGE AND THE RIGHTS AND OBLIGATIONS
OF MORTGAGOR AND MORTGAGEE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND RULE 327(b) OF THE NEW YORK CIVIL PRACTICE LAW AND
RULES.


 


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blank]


 


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IN
WITNESS WHEREOF, Mortgagor has on the date set forth in the acknowledgment
hereto, effective as of the date first above written, caused this instrument to
be duly executed and delivered by authority duly given.


 


 


	
   

  	
  [NAME OF MORTGAGOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


 


[APPROPRIATE
NOTARY BLOCK]


 


16

















 


EXHIBIT A TO


MORTGAGE


 


Legal Description of
Premises:


 


1

















 


EXHIBIT J TO


CREDIT AND GUARANTY
AGREEMENT


 


RECORDING
REQUESTED BY:


Latham & Watkins LLP


 


AND WHEN RECORDED MAIL TO:


 


Latham & Watkins LLP

633 West 5th Street, Suite 4000

Los Angeles, CA 90071

Attn: Mohammad Hayat, Esq.


 


Re: [LOAN PARTY]


 


Location:


 


Municipality:


 


County:


 


State:


 


	
   

  	
  Space above this line
  for recorder’s use only

  



 


LANDLORD WAIVER AND CONSENT AGREEMENT


 


This
LANDLORD WAIVER AND CONSENT AGREEMENT (this “Agreement”) is dated as of
[mm/dd/yy] and entered into by [NAME OF LANDLORD] (“Landlord”), to and
for the benefit of THE ROYAL BANK OF SCOTLAND PLC, as collateral agent for
Lenders (as defined below) and Lender Counterparties (in such capacity “Agent”).


 


RECITALS:


 


WHEREAS,
[NAME OF TENANT], a [Type of Person] (“Tenant”), has possession of and
occupies all or a portion of the property described on Exhibit A
annexed hereto (the “Premises”);


 


WHEREAS,
Tenant’s interest in the Premises arises under the lease agreement (the “Lease”)
more particularly described on Exhibit B annexed hereto, pursuant
to which Landlord has rights, upon the terms and conditions set forth therein,
to take possession of, and otherwise assert control over, the Premises;


 


WHEREAS,
reference is made to that certain Credit and Guaranty Agreement, dated as of February 24,
2006 (as it may be amended, supplemented, restated or otherwise modified, the “Credit
Agreement”; the terms defined therein and not otherwise defined herein
being used herein as therein


 


1

















 


defined), by and among MR
DEFAULT SERVICES LLC, a Delaware limited liability company (“MR”),
E-DEFAULT SERVICES LLC, a Delaware limited liability company (“E-Default”).
STATEWIDE TAX AND TITLE SERVICES LLC, a Delaware limited liability company (“STT”),
STATEWIDE PUBLISHING SERVICES LLC, a Delaware limited liability company (“Statewide
Publishing” and, together with MR, E-Default and STT “Borrowers”),
MR PROCESSING HOLDING CORP., a Delaware corporation (“Holdings”),
certain subsidiaries of Borrowers, as Guarantors, the Lenders party thereto
from time to time, THE ROYAL BANK OF SCOTLAND PLC, as Administrative Agent,
Collateral Agent and Documentation Agent, and RBS SECURITIES CORPORATION as
Sole Lead Arranger, Sole Book Runner and Syndication Agent, pursuant to which
Tenant has executed a security agreement, mortgages, deeds of trust, deeds to
secure debt and assignments of rents and leases, and other collateral documents
in relation to the Credit Agreement;


 


WHEREAS,
Tenant’s repayment of the extensions of credit made by Lenders under the Credit
Agreement will be secured by substantially all assets of Tenant, including all
assets of Tenant now or hereafter located on the Premises (the “Collateral”);
and


 


WHEREAS,
Agent has requested that Landlord execute this Agreement as a condition to the
extension of credit to Tenant under the Credit Agreement.


 


NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord hereby represents and warrants to, and covenants and agrees with, Agent
as follows:


 


1.  Landlord
hereby (a) waives and releases unto Agent and its successors and assigns
any and all rights granted by or under any present or future laws to levy or
distraint for rent or any other charges which may be due to Landlord against the
Collateral, and any and all other claims, liens and demands of every kind which
it now has or may hereafter have against the Collateral, and (b) agrees
that any rights it may have in or to the Collateral, no matter how arising (to
the extent not effectively waived pursuant to clause (a) of this paragraph
1), shall be second and subordinate to the rights of Agent in respect thereof.
Landlord acknowledges that the Collateral is and will remain personal property
and not fixtures even though it may be affixed to or placed on the Premises.


 


2.  Landlord
certifies that (a) Landlord is the landlord under the Lease, (b) the
Lease is in full force and effect and has not been amended, modified, or
supplemented except as set forth on Exhibit B annexed hereto, (c) to
the knowledge of Landlord, there is no defense, offset, claim or counterclaim
by or in favor of Landlord against Tenant under the Lease or against the
obligations of Landlord under the Lease, (d) no notice of default has been
given under or in connection with the Lease which has not been cured, and
Landlord has no knowledge of the occurrence of any other default under or in
connection with the Lease, and (e) except as disclosed to Agent, no
portion of the Premises is encumbered in any way by any deed of trust or
mortgage lien or ground or superior lease.


 


3.  Landlord
consents to the installation or placement of the Collateral on the Premises,
and Landlord grants to Agent a license to enter upon and into the Premises to
do any or all of the following with respect to the Collateral: assemble, have
appraised, display, remove, maintain, prepare for sale or lease, repair,
transfer, or sell (at public or private sale). In entering upon or into the
Premises, Agent hereby agrees to indemnify, defend and hold Landlord harmless
from and against any and all claims, judgments, liabilities, costs and expenses
incurred by Landlord caused solely by Agent’s entering upon or


 


2

















 


into the Premises and
taking any of the foregoing actions with respect to the Collateral. Such costs
shall include any damage to the Premises made by Agent in severing and/or
removing the Collateral therefrom.


 


4.   Landlord
agrees that it will not prevent Agent or its designee from entering upon the
Premises at all reasonable times to inspect or remove the Collateral. In the
event that Landlord has the right to, and desires to, obtain possession of the
Premises (either through expiration of the Lease or termination thereof due to
the default of Tenant thereunder), Landlord will deliver notice (the “Landlord’s
Notice”) to Agent to that effect. Within the 45 day period after Agent
receives the Landlord’s Notice, Agent shall have the right, but not the
obligation, to cause the Collateral to be removed from the Premises. During
such 45 day period, Landlord will not remove the Collateral from the Premises
nor interfere with Agent’s actions in removing the Collateral from the Premises
or Agent’s actions in otherwise enforcing its security interest in the Collateral.
Notwithstanding anything to the contrary in this paragraph, Agent shall at no
time have any obligation to remove the Collateral from the Premises.


 


5.   Landlord
shall send to Agent a copy of any notice of default under the Lease sent by
Landlord to Tenant. In addition, Landlord shall send to Agent a copy of any
notice received by Landlord of a breach or default under any other lease,
mortgage, deed of trust, security agreement or other instrument to which
Landlord is a party which may affect Landlord’s rights in, or possession of,
the Premises.


 


6.   All notices
to Agent under this Agreement shall be in writing and sent to Agent at its
address set forth on the signature page hereof by telefacsimile, by United
States mail, or by overnight delivery service.


 


7.   The
provisions of this Agreement shall continue in effect until Landlord shall have
received Agent’s written certification that all amounts advanced under the
Credit Agreement have been paid in full.


 


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


 


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IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
and delivered as of the day and year first set forth above.


 


 


	
   

  	
  [NAME
  OF LANDLORD]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  
	
   

  	
  Telecopier:

  



 


By
its acceptance hereof, as of the day and year first set forth above, Agent
agrees to be bound by the provisions hereof.


 


 


	
   

  	
  THE
  ROYAL BANK OF SCOTLAND PLC,

  
	
   

  	
  as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  
	
   

  	
  Telecopier:

  



 


 


[APPROPRIATE
NOTARY BLOCK]


 


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EXHIBIT A TO


LANDLORD WAIVER
AND CONSENT


 


 


Legal Description of
Premises:


 


1

















 


EXHIBIT
B TO


LANDLORD
WAIVER AND CONSENT


 


Description
of Lease:


 


1