Blueprint





 






  Exhibit
10.1



 


 


 


 


 


 


AMENDED
AND RESTATED CREDIT AGREEMENT


 


dated
as of August 1, 2017


 


among


 


CROSS
COUNTRY HEALTHCARE, INC.,


as the
Borrower


 


THE
SUBSIDIARIES OF THE BORROWER IDENTIFIED HEREIN,


as the
Guarantors


 


 


THE
LENDERS FROM TIME TO TIME PARTY HERETO


 


 


and


 


 


SUNTRUST
BANK,


as
Administrative Agent, Swingline Lender and an Issuing
Bank,


 


 


 


 


BMO
HARRIS BANK, N.A.,


as
Syndication Agent


 


and


 


BANK
UNITED, N.A.,


BANK OF
AMERICA, N.A.


 


and


 


FIFTH
THIRD BANK,


as
Co-Documentation Agents


 


 


 


 


SUNTRUST
ROBINSON HUMPHREY, INC.,


as Sole
Lead Arranger and Sole Bookrunner


 














 






 


TABLE
OF CONTENTS



 


 


	


 

	


  
Page


	


Article I DEFINITIONS; CONSTRUCTION

	


1


	

Section
1.1

	


Definitions

	


1


	

Section
1.2

	


Classifications of Loans and Borrowings

	


32


	

Section
1.3

	


Accounting Terms and Determination

	


33


	

Section
1.4

	


Terms Generally

	


34


	

Section
1.5

	


Letter of Credit Amounts

	


34


	

Section
1.6

	


Times of Day

	


34


	


Article II AMOUNT AND TERMS OF THE COMMITMENTS

	


34


	

Section
2.1

	


General Description of Facilities

	


34


	

Section
2.2

	


Revolving Loans

	


35


	

Section
2.3

	


Procedure for Revolving Borrowings

	


35


	

Section
2.4

	


Swingline Commitment

	


35


	

Section
2.5

	


Term Loan A Commitment

	


37


	

Section
2.6

	


Funding of Borrowings

	


37


	

Section
2.7

	


Interest Elections

	


37


	

Section
2.8

	


Optional Reduction and Termination of Commitments

	


38


	

Section
2.9

	


Repayment of Loans

	


39


	

Section
2.10

	


Evidence of Indebtedness

	


39


	

Section
2.11

	


Optional Prepayments

	


40


	

Section
2.12

	


Mandatory Prepayments

	


40


	

Section
2.13

	


Interest on Loans

	


41


	

Section
2.14

	


Fees

	


42


	

Section
2.15

	


Computation of Interest and Fees

	


43


	

Section
2.16

	


Inability to Determine Interest Rates

	


44


	

Section
2.17

	


Illegality

	


44


	

Section
2.18

	


Increased Costs

	


45


	

Section
2.19

	


Funding Indemnity

	


46


	

Section
2.20

	


Taxes

	


46


	

Section
2.21

	


Payments Generally; Pro Rata Treatment; Sharing of
Set-offs

	


49


	

Section
2.22

	


Letters of Credit

	


51


	

Section
2.23

	


Increase of Commitments; Additional Lenders

	


56


	

Section
2.24

	


Mitigation of Obligations

	


59


	

Section
2.25

	


Replacement of Lenders

	


60



	

Section
2.26

	


Reallocation and Cash Collateralization of Defaulting Lender
Commitment

	


60



	


Article III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF
CREDIT

	


61


	

Section
3.1

	


Conditions To Effectiveness

	


61


	

Section
3.2

	


Each Credit Event

	


64


	

Section
3.3

	


Delivery of Documents

	


64


	


Article IV REPRESENTATIONS AND WARRANTIES

	


65


	

Section
4.1

	


Existence; Power

	


65


	

Section
4.2

	


Organizational Power; Authorization

	


65


	

Section
4.3

	


Governmental Approvals; No Conflicts

	


65


	

Section
4.4

	


Financial Statements

	


65


	

Section
4.5

	


Litigation and Environmental Matters

	


66






 



 







 





 


	

Section
4.6

	


Compliance with Laws and Agreements

	


66


	

Section
4.7

	


No Default

	


66


	

Section
4.8

	


Investment Company Act, Etc.

	


66


	

Section
4.9

	


Taxes

	


66


	

Section
4.10

	


Margin Regulations

	


67


	

Section
4.11

	


ERISA

	


67


	

Section
4.12

	


Ownership of Property

	


67


	

Section
4.13

	


Disclosure

	


68


	

Section
4.14

	


Labor Relations

	


68


	

Section
4.15

	


Subsidiaries

	


68


	

Section
4.16

	


Solvency

	


68


	

Section
4.17

	


Business Locations; Taxpayer Identification Number

	


68


	

Section
4.18

	


Material Agreements

	


69


	

Section
4.19

	


Anti-Corruption Laws and Sanctions

	


69


	

Section
4.20

	


Subordination of Subordinated Debt

	


69


	

Section
4.21

	


No EEA Financial Institutions

	


69


	

Section
4.22

	


Perfection of Security Interests in the Collateral

	


69


	

Section
4.23

	


HIPAA Compliance

	


70



	

Section
4.24

	


Compliance With Health Care Laws

	


71



	

Section
4.25

	


Patriot Act

	


71


	


Article V AFFIRMATIVE COVENANTS

	


71


	

Section
5.1

	


Financial Statements and Other Information

	


72


	

Section
5.2

	


Notices of Material Events

	


74


	

Section
5.3

	


Existence; Conduct of Business

	


74


	

Section
5.4

	


Compliance with Laws, Etc

	


75


	

Section
5.5

	


Payment of Obligations

	


75


	

Section
5.6

	


Books and Records

	


75


	

Section
5.7

	


Visitation, Inspection, Etc

	


75


	

Section
5.8

	


Maintenance of Properties; Insurance

	


76


	

Section
5.9

	


Use of Proceeds

	


76


	

Section
5.10

	


Additional Subsidiaries

	


77


	

Section
5.11

	


Further Assurances

	


77


	

Section
5.12

	


Cash Management

	


78


	

Section
5.13

	


Healthcare Matters

	


78


	


Article VI FINANCIAL COVENANTS

	


79


	

Section
6.1

	


Consolidated Total Leverage Ratio

	


79


	

Section
6.2

	


Consolidated Fixed Charge Coverage Ratio

	


79


	


Article VII NEGATIVE COVENANTS

	


80


	

Section
7.1

	


Indebtedness and Preferred Equity

	


80


	

Section
7.2

	


Negative Pledge

	


81


	

Section
7.3

	


Fundamental Changes

	


81


	

Section
7.4

	


Investments, Loans, Etc

	


82


	

Section
7.5

	


Restricted Payments

	


83


	

Section
7.6

	


Payment on Indebtedness

	


83


	

Section
7.7

	


Sale of Assets

	


83


	

Section
7.8

	


Transactions with Affiliates

	


84


	

Section
7.9

	


Restrictive Agreements

	


84


	

Section
7.10

	


Sale and Leaseback Transactions

	


84






 



 

ii







 





 


	

Section
7.11

	


Hedging Transactions

	


84


	

Section
7.12

	


Amendments to Certain Documents

	


84


	

Section
7.13

	


Accounting Changes

	


85


	

Section
7.14

	


Government Regulation

	


85


	

Section
7.15

	


Ownership of Subsidiaries

	


85


	

Section
7.16

	


Use of Proceeds

	


85


	

Section
7.17

	


Sanctions and Anti-Corruption Laws

	


85


	


Article VIII EVENTS OF DEFAULT

	


86


	

Section
8.1

	


Events of Default

	


86


	

Section
8.2

	


Application of Funds

	


88


	

Section
8.3

	


Borrower’s Right to Cure

	


89


	


Article IX THE ADMINISTRATIVE AGENT

	


91



	

Section
9.1

	


Appointment of Administrative Agent

	


91



	

Section
9.2

	


Nature of Duties of Administrative Agent

	


91



	

Section
9.3

	


Lack of Reliance on the Administrative Agent

	


91


	

Section
9.4

	


Certain Rights of the Administrative Agent

	


91


	

Section
9.5

	


Reliance by Administrative Agent

	


91


	

Section
9.6

	


The Administrative Agent in its Individual Capacity

	


92


	

Section
9.7

	


Successor Administrative Agent

	


92


	

Section
9.8

	


Withholding Tax

	


93


	

Section
9.9

	


Administrative Agent May File Proofs of Claim

	


93


	

Section
9.10

	


Authorization to Execute Other Loan Documents

	


94


	

Section
9.11

	


Collateral and Guaranty Matters

	


94


	

Section
9.12

	


No Other Duties, Etc

	


94


	

Section
9.13

	


Right to Realize on Collateral and Enforce Guarantee

	


96


	

Section
9.14

	


Hedging Obligations and Bank Product Obligations

	


96


	


Article X THE GUARANTY  

	


96


	

Section
10.1

	


The Guaranty

	


96


	

Section
10.2

	


Obligations Unconditional

	


97


	

Section
10.3

	


Reinstatement

	


97


	

Section
10.4

	


Certain Additional Waivers

	


97


	

Section
10.5

	


Remedies

	


98


	

Section
10.6

	


Rights of Contribution

	


98


	

Section
10.7

	


Guarantee of Payment; Continuing Guarantee

	


98


	

Section
10.8

	


Keepwell

	


98


	


Article XI MISCELLANEOUS  

	


98


	

Section
11.1

	


Notices

	


98


	

Section
11.2

	


Waiver; Amendments

	


101



	

Section
11.3

	


Expenses; Indemnification

	


102


	

Section
11.4

	


Successors and Assigns

	


103


	

Section
11.5

	


Governing Law; Jurisdiction; Consent to Service of
Process

	


106


	

Section
11.6

	


WAIVER OF JURY TRIAL

	


107


	

Section
11.7

	


Right of Setoff

	


107


	

Section
11.8

	


Counterparts; Integration

	


108


	

Section
11.9

	


Survival

	


108


	

Section
11.10

	


Severability

	


108


	

Section
11.11

	


Confidentiality

	


109






 



 

iii







 





 


	

Section
11.12

	


Interest Rate Limitation

	


109


	

Section
11.13

	


Waiver of Effect of Corporate Seal

	


109


	

Section
11.14

	


Patriot Act

	


109


	

Section
11.15

	


No Advisory or Fiduciary Responsibility

	


110


	

Section
11.16

	


Electronic Execution of Assignments and Certain Other
Documents

	


110


	

Section
11.17

	


Acknowledgement and Consent to Bail-In of EEA Financial
Institutions

	


110


	

Section
11.18

	


Amendment and Restatement

	


111


	

Section
11.19

	


Waiver of Breakage Costs

	


111


	

Section
11.20

	


Reallocation.

	


111







 


 



 

iv







 






 



Schedules


 


	

Schedule
I

	

-

	

Commitment
Amounts


	

Schedule
2.22

	

-

	

Existing
Letters of Credit


	

Schedule
4.15

	

-

	

Subsidiaries


	

Schedule
4.17-1

	

-

	

Locations
of Real Property


	

Schedule
4.17-2

	

-

	

Locations
of Chief Executive Office, Taxpayer Identification Number,
Etc.


	

Schedule
4.17-3

	

-

	

Changes
in Legal Name, State of Formation and Structure


	

Schedule
4.18

	

-

	

Material
Agreements


	

Schedule
7.1

	

-

	

Outstanding
Indebtedness


	

Schedule
7.2

	

-

	

Existing
Liens


	

Schedule
7.4

	

-

	

Existing
Investments







 



Exhibits


 


	

Exhibit
2.3

	

-

	

Form of
Notice of Revolving Borrowing


	

Exhibit
2.4

	

-

	

Form of
Notice of Swingline Borrowing


	

Exhibit
2.7

	

-

	

Form of
Notice of Conversion/Continuation


	

Exhibit
2.10

	

-

	

Form of
Note


	

Exhibits 2.20
(1-4)

	

-

	

Forms
of U.S. Tax Compliance Certificates


	

Exhibit
5.1(c)

	

-

	

Form of
Compliance Certificate


	

Exhibit
5.10

	

-

	

Form of
Guarantor Joinder Agreement


	

Exhibit
11.4

	

-

	

Form of
Assignment and Acceptance







 

 





 




 

v








 










 


 



AMENDED AND RESTATED CREDIT AGREEMENT


 


THIS
AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is made and
entered into as of August 1, 2017 by and among CROSS COUNTRY
HEALTHCARE, INC., a Delaware corporation (the “Borrower”), the
Guarantors (defined herein), the Lenders (defined herein), and
SUNTRUST BANK, in its capacities as Administrative Agent, an
Issuing Bank and Swingline Lender.

 



W I T N E S S E T H:


 


WHEREAS, a
$100,000,000 revolving credit facility and a term loan in an
aggregate principal amount equal to $40,000,000 have been
established in favor of the Borrower pursuant to the terms of that
certain Credit Agreement dated as of June 22, 2016 (as amended by
that First Amendment to Credit Agreement dated May 16, 2017, that
certain Incremental Term Loan Agreement dated as of July 1, 2016,
that Second Amendment to Credit Agreement dated July 5, 2017 and as
further amended or modified to date, the “Existing Credit
Agreement”) by and among the Borrower, the guarantors
from time to time party thereto, the lenders from time to time
party thereto and SunTrust Bank, in its capacities as
administrative agent, an issuing bank and the swingline
lender;

 


WHEREAS, the
Borrower has requested certain modifications to the Existing Credit
Agreement, and the Lenders have agreed to the requested
modifications on the terms and conditions provided herein;
and

 


WHEREAS, this
Agreement is given in amendment to, restatement of and substitution
for the Existing Credit Agreement.

 


NOW,
THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders, the
Administrative Agent, the Issuing Banks and the Swingline Lender
agree as follows:

 


ARTICLE I

 


DEFINITIONS;
CONSTRUCTION

 


Section
1.1      Definitions. In addition to the
other terms defined herein, the following terms used herein shall
have the meanings herein specified (to be equally applicable to
both the singular and plural forms of the terms
defined):

 


 


“Accurate Applicable
Margin” shall have the meaning set forth in the
definition of “Applicable Margin”.


 


“Acquired Business” shall
mean the entity or assets acquired by the Borrower or any
Subsidiary in an Acquisition on or after the date
hereof.


 


“Acquisition” shall mean (a) any Investment by the Borrower or any of its Subsidiaries in any other Person pursuant to which such Person shall become a Subsidiary or shall be merged with the Borrower
or any of its Subsidiaries
or (b) any acquisition by the Borrower
or any of its Subsidiaries
of the assets of any Person
(other than a
Subsidiary) that constitute all or a
substantial portion of the assets of such Person
or a division or business unit of
such Person.


 


“Acquisition
Agreement” shall have the
meaning set forth in Section
2.23.




 








 






 


 


“Additional Lender” shall
have the meaning set forth in Section 2.23.

 


“Adjusted LIBOR” shall
mean, with respect to each Interest Period for a Eurodollar Loan,
(a) the rate per annum
equal to the London interbank offered rate for deposits in Dollars
appearing on Reuters screen page LIBOR 01 (or, if such service is
not available, on any successor or substitute page of such service
or any successor to such service, or such other commercially
available source providing such quotations as may be designated by
the Administrative Agent from time to time) at approximately 11:00
A.M. (London time) two (2) Business Days prior to the first day of
such Interest Period, with a maturity comparable to such Interest
Period, divided by (b) a percentage equal to one hundred percent
(100%) minus the then
stated maximum rate of all reserve requirements (including any
marginal, emergency, supplemental, special or other reserves and
without benefit of credits for proration, exceptions or offsets
that may be available from time to time) applicable to any member
bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D (or any successor category
of liabilities under Regulation D); provided, that if the rate referred to
in clause (a) above
is not available at any such time for any reason, then the rate
referred to in clause
(a) shall instead be the interest rate per annum, as reasonably determined by
the Administrative Agent, to be the arithmetic average of the rates
per annum at which deposits
in Dollars in an approximate amount equal to the amount of such
Eurodollar Loan are offered by major banks in the London interbank
market to the Administrative Agent at approximately 10:00 A.M.
(Atlanta, Georgia time), two (2) Business Days prior to the first
day of such Interest Period. Notwithstanding anything to the
contrary in the foregoing, if the Adjusted LIBOR is less than zero,
such rate shall be deemed to be zero for purposes of this
Agreement.

 


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

 


“Administrative
Questionnaire” shall mean, with respect to each
Lender, an administrative questionnaire in the form provided by the
Administrative Agent and submitted to the Administrative Agent duly
completed by such Lender.

 


“Affiliate” shall mean, as
to any Person, any other Person that directly, or indirectly
through one or more intermediaries, Controls, is Controlled by, or
is under common Control with, such Person. For the purposes of this definition,
“Control” shall
mean the power, directly or indirectly, either to (a)
vote ten percent (10%) or more of the
securities having ordinary voting power for the election of
directors (or persons performing similar functions) of a
Person or (b) direct or cause the direction of the management
and policies of a Person,
whether through the ability to exercise voting power, by control or otherwise.
The terms “Controlling”, “Controlled by”,
and “under common Control with” have the meanings correlative
thereto.

 


“Agent Parties” shall have
the meaning set forth in Section
11.1(b)(iv).

 


“Aggregate Revolving
Commitments” shall mean the Revolving Commitments of
all the Lenders at any time outstanding. On the Effective Date, the
aggregate amount of the Aggregate Revolving Commitments is One
Hundred Fifteen Million Dollars ($115,000,000).

 


“Agreement” shall have the
meaning set forth in the introductory paragraph
hereof.

 


“Anti-Corruption Laws”
shall mean all laws, rules, and regulations of any jurisdiction
applicable to the Borrower or its Subsidiaries from time to time
concerning or relating to bribery or corruption.

 




 

2








 






 

 


“Applicable Lending
Office” shall mean, for each Lender and for each Type
of Loan, the “Lending Office” of such Lender (or an
Affiliate of such Lender) designated for such Type of Loan in the
Administrative Questionnaire submitted by such Lender or such other
office of such Lender (or an Affiliate of such Lender) as such
Lender may from time to time specify to the Administrative Agent
and the Borrower as the office by which its Loans of such Type are
to be made and maintained.

 


“Applicable Margin” shall
mean, as of any date, a percentage per annum determined by
reference to the applicable Consolidated Net Leverage Ratio in
effect on such date as set forth in the table below; provided, that a change in the
Applicable Margin resulting from a change in the Consolidated Net
Leverage Ratio shall be effective on the second Business Day after
which the Borrower delivers each of the financial statements
required by Section
5.1(a) and (b) and the Compliance
Certificate required by Section 5.1(c); provided, further, that if at any time
the Borrower shall have failed to deliver such financial statements
and such Compliance Certificate when so required, the Applicable
Margin shall be at Level V as set forth in the table below until
the second Business Day after which such financial statements and
Compliance Certificate are delivered, at which time the Applicable
Margin shall be determined as provided above. Notwithstanding the
foregoing, the Applicable Margin from the Effective Date until the
second Business Day after which the financial statements and
Compliance Certificate for the Fiscal Quarter ending September 30,
2017 are required to be delivered shall be at Level III as set
forth in the table below. In the event that any financial statement
or Compliance Certificate delivered hereunder is shown to be
inaccurate (regardless of whether this Agreement or the Commitments
are in effect when such inaccuracy is discovered), and such
inaccuracy, if corrected, would have led to the application of a
higher Applicable Margin based upon the pricing grid set forth in
the table below (the “Accurate Applicable
Margin”) for any period that such financial statement
or Compliance Certificate covered, then (i) the Borrower shall as
promptly as practicable deliver to the Administrative Agent a
correct financial statement or Compliance Certificate, as the case
may be, for such period, (ii) the Applicable Margin shall be
adjusted such that after giving effect to the corrected financial
statements or Compliance Certificate, as the case may be, the
Applicable Margin shall be reset to the Accurate Applicable Margin
based upon the pricing grid set forth in the table below for such
period and (iii) the Borrower shall immediately pay to the
Administrative Agent, for the account of the Lenders, the accrued
additional interest owing as a result of such Accurate Applicable
Margin for such period.  The provisions of this definition
shall not limit the rights of the Administrative Agent and the
Lenders with respect to Section 2.13(d) or Article VIII.

 


	

Level

	

Consolidated
Net Leverage Ratio

	

Eurodollar
Loans, LIBOR Index Rate Loans and Letter of Credit Fee

	

Base
Rate


Loans

	

Commitment


Fee


	

I

	

<
1.50:1.00

	

1.75%

	

0.75%

	

0.25%


	

II

	

≥
1.50:1.00 but < 2.00:1.00

	

2.00%

	

1.00%

	

0.30%


	

III

	

≥
2.00:1.00 but < 2.50:1.00

	

2.25%

	

1.25%

	

0.30%


	

IV

	

≥
2.50:1.00 but < 3.00:1.00

	

2.50%

	

1.50%

	

0.35%


	

V

	

≥
3.00:1.00

	

2.75%

	

1.75%

	

0.40%







 


The
“Applicable Margin” for any Incremental Term Loan shall
be the percentage per annum provided in the definitive
documentation for such Incremental Term Loan.

 


“Applicable Quarter” shall
have the meaning set forth in Section 8.3(a)(i).

 




 

3








 






 

 


“Approved Fund” shall mean 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 and 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.

 


“Arranger”
shall mean SunTrust Robinson Humphrey, Inc., in its capacity as
sole lead arranger and sole bookrunner.

 


“Asset Sale” shall mean
the sale, transfer, license, lease or other disposition of any
property by the Borrower or any Subsidiary, including any sale and
leaseback transaction and any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts
receivable or any rights and claims associated therewith, but
excluding (a) the sale of inventory in the ordinary course of
business; (b) the sale or disposition for fair market value of
obsolete or worn out property or other property not necessary for
operations of the Borrower and its Subsidiaries disposed of in the
ordinary course of business; (c) the disposition of property
(including the cancellation of Indebtedness permitted by
Section 7.4(d)) to
the Borrower or any Subsidiary; provided, that if the
transferor of such property is a Loan Party then the transferee
thereof must be a Loan Party; (d) the disposition of accounts
receivable in connection with the collection or compromise thereof;
(e) licenses, sublicenses, leases or subleases granted to others in
the ordinary course of business or not interfering in any material
respect with the business of the Borrower or any Subsidiary; (f)
the sale or disposition of Permitted Investments for fair market
value in the ordinary course of business; and (g) the disposition
of shares of Capital Stock of any Subsidiary in order to qualify
members of the governing body of such Subsidiary if required by
applicable Law.

 


“Assignment and
Acceptance” shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any
party whose consent is required by Section 11.4(b)) and accepted
by the Administrative Agent, in the form of Exhibit 11.4 attached hereto or
any other form approved by the Administrative Agent.

 


“Audited Financial
Statements” shall mean the audited consolidated
balance sheet of the Borrower and its Subsidiaries for the Fiscal
Year ended December 31, 2016, and the related consolidated
statements of income or operations, shareholders’ equity and
cash flows of the Borrower and its Subsidiaries for such Fiscal
Year, including the notes thereto.


 


“Availability Period” shall mean the period from the
Effective Date to but excluding the Revolving Commitment
Termination Date.

 


“Bail-In Action” shall
mean the exercise of any Write-Down and Conversion Powers by the
applicable EEA Resolution Authority in respect of any liability of
an EEA Financial Institution.

 


“Bail-In Legislation”
shall mean, with respect to any EEA Member Country implementing
Article 55 of Directive 2014/59/EU of the European Parliament and
of the Council of the European Union, the implementing law for such
EEA Member Country from time to time which is described in the EU
Bail-In Legislation Schedule.

 


“Bank Product Obligations”
shall mean, collectively, all obligations and other liabilities of
any Loan Party to any Bank Product Provider arising with respect to
any Bank Products.


 


“Bank Product Provider”
shall mean any Person that (a) (i) at the time it provides any Bank
Products to any Loan Party, is a Lender or an Affiliate of a Lender
or (ii) has provided any Bank Products to any Loan Party that exist
on the Effective Date, and such Person is a Lender or an Affiliate
of a Lender on the Effective Date and (b) except when the Bank
Product Provider is SunTrust Bank and its Affiliates, has provided
prior written notice to the Administrative Agent, which has been
acknowledged by the Borrower of the existence of such Bank Product.
In no event shall any Bank Product Provider acting in such capacity
be deemed a Lender for purposes hereof to the extent of and as to
Bank Products except that each reference to the term
“Lender” in Article IX and Section 11.4 shall be deemed to
include such Bank Product Provider and in no event shall the
approval of any such person in its capacity as Bank Product
Provider be required in connection with the release or termination
of any security interest or Lien of the Administrative
Agent.

 




 

4








 






 


“Bank Products” shall mean
any of the following services provided to any Loan Party by any
Bank Product Provider: (a) any treasury or other cash management
services, including deposit accounts, automated clearing house
(ACH) origination and other funds transfer, depository (including
cash vault and check deposit), zero balance accounts and sweeps,
return items processing, controlled disbursement accounts, positive
pay, lockboxes and lockbox accounts, account reconciliation and
information reporting, payables outsourcing, payroll processing,
trade finance services, investment accounts and securities
accounts, and (b) card services, including credit card (including
purchasing card and commercial card), prepaid cards, including
payroll, stored value and gift cards, merchant services processing,
and debit card services.

 


“Base Rate” shall mean the
highest of (a) the rate that the Administrative Agent announces
from time to time as its prime lending rate, as in effect from time
to time, (b) the Federal Funds Rate, as in effect from time to
time, plus 0.5% per annum
and (c) the One Month LIBOR Index Rate plus 1.00% per annum (any changes in
such rates to be effective as of the date of any change in such
rate). The Administrative Agent’s prime lending rate is a
reference rate and does not necessarily represent the lowest or
best rate actually charged to any customer. The Administrative
Agent may make commercial loans or other loans at rates of interest
at, above, or below the Administrative Agent’s prime lending
rate. Notwithstanding anything to the contrary in the foregoing, if
the Base Rate is less than zero, such rate shall be deemed to be
zero for purposes of this Agreement.

 


“Borrower” shall have the
meaning set forth in the introductory paragraph
hereof.

 


“Borrower Materials” shall
have the meaning set forth in Section 5.1.


 


“Borrowing” shall mean a
borrowing consisting of (a) Loans of the same Class and Type, made,
converted or continued on the same date and in the case of
Eurodollar Loans, as to which a single Interest Period is in
effect, or (b) a Swingline Loan.

 


“Business Day” shall mean
any day other than (a) a Saturday, Sunday or other day on which
commercial banks in Atlanta, Georgia are authorized or required by
Law to close and (b) if such day relates to a Borrowing of, a
payment or prepayment of principal or interest on, a conversion of
or into, or an Interest Period for, a Eurodollar Loan or a LIBOR
Index Rate Loan or a notice with respect to any of the foregoing,
any day on which banks are not open for dealings in dollar deposits
in the London interbank market.

 


“Capital Expenditures”
shall mean for any period, without duplication, (a) the additions
to property, plant and equipment and other capital expenditures of
the Borrower and its Subsidiaries that are (or would be) set forth
on a consolidated statement of cash flows of the Borrower for such
period and (b) Capital Lease Obligations incurred by the Borrower
and its Subsidiaries during such period.

 


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

 




 

5








 






 

 


“Capital Stock” shall mean
all shares, options, warrants, general or limited partnership
interests, membership interests or other equivalents (regardless of
how designated) of or in a corporation, partnership, limited
liability company or equivalent entity whether voting or nonvoting,
including common stock, preferred stock or any other “equity
security” (as such term is defined in Rule 3a11-1 of the
General Rules and Regulations promulgated by the SEC under the
Securities Exchange Act of 1934).

 


“Cash Collateralize” shall
mean, in respect of any obligations, to provide and pledge (as a
first priority perfected security interest) cash collateral for
such obligations in Dollars, to the Administrative Agent pursuant
to documentation in form and substance, reasonably satisfactory to
the Administrative Agent (and “Cash Collateralization”
and “Cash
Collateral” have a corresponding
meaning).

 


“Change in Control” shall
mean the occurrence of one or more of the following events: (a) any
sale, lease, exchange or other transfer (in a single transaction or
a series of related transactions) of all or substantially all of
the assets of the Borrower to any Person or “group”
(within the meaning of the Securities Exchange Act of 1934 and the
rules of the SEC thereunder in effect on the date hereof), (b) the
acquisition of ownership, directly or indirectly, beneficially or
of record, by any Person or “group” (within the meaning
of the Securities Exchange Act of 1934 and the rules of the SEC
thereunder as in effect on the date hereof) of thirty-five percent
(35%) or more of the outstanding shares of the voting stock of the
Borrower, or (c) during any period of twenty-four (24) consecutive
months, a majority of the members of the board of directors or
other equivalent governing body of the Borrower cease to be
composed of individuals who that are Continuing
Directors.


 


“CCTag” shall mean Cross
Country Talent Acquisition Group, L.L.C., an Oklahoma limited
liability company.

 


“Change in Law” shall mean
(a) the adoption of any applicable Law after the date of this
Agreement, (b) any change in any applicable Law after the date of
this Agreement, or (c) compliance by any Lender (or its Applicable
Lending Office) or either Issuing Bank (or for purposes of
Section 2.18(b), by
the Parent Company of such Lender or such Issuing Bank, if
applicable) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement. Notwithstanding anything
herein to the contrary, (x) the Dodd-Frank Wall Street Reform and
Consumer Protection Act, and all requests, rules, guidelines and
directives promulgated thereunder, and (y) all requests, rules,
guidelines or directives promulgated by the Bank for International
Settlements, the Basel Committee on Banking Supervision (or any
successor or similar authority) or the United States regulatory
authorities, in each case pursuant to Basel III, in each case, are
deemed to have been introduced or adopted after the date hereof,
regardless of the date enacted or adopted.

 


“Charges” shall have the
meaning set forth in Section 11.12.

 


“Class”, when used in
reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are Revolving Loans, Swingline
Loans or Term Loans and when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment, a
Swingline Commitment or a Term Loan Commitment.

 


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

 




 

6








 






 

 


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

 


“Collateral Documents”
shall mean a collective reference to the Security Agreement, any
Mortgage and any other security documents executed and delivered by
any Loan Party pursuant to Section 5.11.

 


“Commitment” shall mean a
Revolving Commitment, a Swingline Commitment or a Term Loan
Commitment or any combination thereof (as the context shall permit
or require).

 


“Commitment Fee” shall
have the meaning set forth in Section 2.14(b).

 


“Commodity Exchange Act”
shall mean the Commodity Exchange Act (7 U.S.C. § 1
et seq.), as amended from
time to time, and any successor statute.

 


“Communications” shall
have the meaning set forth in Section
11.1(b)(iv).

 


“Compliance Certificate”
shall mean a certificate from the principal executive officer or
the principal financial officer of the Borrower in the form of, and
containing the certifications set forth in, the certificate
attached hereto as Exhibit
5.1(c).

 


“Connection Income Taxes”
shall mean Other Connection Taxes that are imposed on or measured
by net income (however denominated) or that are franchise Taxes or
branch profits Taxes.

 


“Consolidated EBITDA”
shall mean, for the Borrower and its Subsidiaries for any period,
determined on a consolidated basis, an amount equal to the sum of
(a) Consolidated Net Income for such period (excluding gains and
losses from any sale of assets, other than sales of inventory in
the ordinary course of business) plus (b) to the extent deducted in
determining Consolidated Net Income for such period, without
duplication, (i) Consolidated Interest Expense for such period,
(ii) income tax expense for such period, (iii) depreciation and
amortization for such period, (iv) non-cash charges (or minus
non-cash gains), including non-cash charges with respect to asset
impairment, stock based compensation, adjustments of contingent
consideration liabilities (including, but not limited to,
adjustments made at the time of payment) and losses on derivatives
(other than the write-down of current assets) for such period and
(v) fees and expenses in connection with Permitted Acquisitions,
permitted issuances of Indebtedness or equity securities and Asset
Sales plus (c) integration
and restructuring costs, cost savings and synergies that are
supported by quality of earnings reports or other reports in form
and substance reasonably acceptable to the Administrative Agent;
provided, that, in
any event, the aggregate amount added back pursuant to clauses (b)(v) and (c) above shall not exceed (i)
for all charges incurred on or prior to the Effective Date,
$3,500,000 and (ii) for all charges after the Effective Date, an
amount equal to five percent (5.0%) of Consolidated EBITDA for such
period (determined prior to giving effect to such
add-backs).

 


“Consolidated Fixed Charge Coverage
Ratio” shall mean, as of any date, the ratio of (a)
Consolidated EBITDA less
the actual amount paid by the Borrower and its Subsidiaries in cash
on account of Capital Expenditures less taxes paid in cash by the Borrower
and its Subsidiaries less
Restricted Payments paid in cash by the Borrower and its
Subsidiaries to (b) Consolidated Fixed Charges, in each case
measured on a consolidated basis as of the last day of the most
recently ended four (4) consecutive Fiscal Quarters for which
financial statements are required to have been delivered pursuant
to Section 5.1(a)
or (b).

 




 

7








 






 

 


“Consolidated Fixed
Charges” shall mean, for the Borrower and its
Subsidiaries for any period, the sum, without duplication, of (a)
Consolidated Interest Expense paid in cash for such period and (b)
scheduled principal payments made on Consolidated Total Debt during
such period.

 


“Consolidated Interest
Expense” shall mean, for the Borrower and its
Subsidiaries for any period determined on a consolidated basis, the
sum of (a) total interest expense, including without limitation the
interest component of any payments in respect of Capital Lease
Obligations capitalized or expensed during such period (whether or
not actually paid during such period) plus (b) the net amount payable (or
minus the net amount
receivable) with respect to Hedging Transactions during such period
(whether or not actually paid or received during such
period).

 


“Consolidated Net Income”
shall mean, for the Borrower and its Subsidiaries for any period
determined on a consolidated basis, the net income (or loss) of the
Borrower and its Subsidiaries for such period but excluding
therefrom (to the extent otherwise included therein) (a) any
extraordinary gains or losses, (b) any gains attributable to
write-ups of assets and (c) any equity interest of the Borrower or
any Subsidiary of the Borrower in the unremitted earnings of any
Person that is not a Subsidiary.

 


“Consolidated Net Leverage
Ratio” shall mean, as of any date, the ratio of (a)
Consolidated Total Debt as of such date less up to $10,000,000 of unencumbered
and available cash of the Borrower and the Guarantors as of such
date to (b) Consolidated EBITDA, in each case measured as of the
last day of the most recently ended four (4) consecutive Fiscal
Quarters for which financial statements are required to have been
delivered pursuant to Section 5.1(a) or (b).

 


“Consolidated Total
Assets” shall mean, as of any date, the total assets
of the Borrower and its Subsidiaries determined in accordance with
GAAP, as of the last day of the fiscal quarter ended immediately
prior to the date of such determination for which financial
statements have been (or are required pursuant to Section 5.1(a) or (b) to have been) delivered to
the Administrative Agent pursuant to Section 5.1(a) or (b).

 


“Consolidated Total Debt”
shall mean, as of any date, all Indebtedness of the Borrower and
its Subsidiaries measured on a consolidated basis as of such date,
but excluding Indebtedness of the type described in clause (i) of the definition
thereto.

 


“Consolidated Total Leverage
Ratio” shall mean, as of any date, the ratio of (a)
Consolidated Total Debt as of such date to (b) Consolidated EBITDA,
in each case measured as of the last day of the most recently ended
four (4) consecutive Fiscal Quarters for which financial statements
are required to have been delivered pursuant to Section 5.1(a) or (b).

 


“Continuing Director” shall mean, with respect to any period,
any individuals (a) who were members of the board of
directors or other equivalent governing body of the Borrower on the
first day of such period, (b) whose election or nomination to that
board or equivalent governing body was approved by individuals
referred to in clause
(a) above constituting at the time of such election or
nomination at least a majority of that board or equivalent
governing body, or (c) whose election or nomination to that board
or other equivalent governing body was approved by individuals
referred to in clauses
(a) and (b)
above constituting at the time of such election or nomination at
least a majority of that board or equivalent governing
body.

 


“Contractual
Obligation” of any Person
shall mean any provision of any security issued by such
Person or of any agreement, instrument
or undertaking under which such Person is obligated or by which it or any of the property
in which it has an interest is bound.

 




 

8








 






 

 


“Credit
Event” shall mean the
advancing of any Loan, or the issuance of, or extension of the
expiration date or increase in the amount of, any Letter of
Credit.

 


“Cure Notice” shall have
the meaning set forth in Section 8.3(b).

 


“Cure Period” shall have
the meaning set forth in Section 8.3(a).

 


“Cure Right” shall have
the meaning set forth in Section 8.3(a).

 


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

 


“Default” shall mean any
condition or event that, with the giving of notice or the lapse of
time or both, would constitute an Event of Default.

 


“Default Interest” shall
have the meaning set forth in Section 2.13(d).

 


“Defaulting Lender” shall
mean, at any time, any Lender as to which the Administrative Agent
has notified the Borrower that (a) such Lender has failed for three
(3) or more Business Days to comply with its obligations under this
Agreement to make a Loan and/or to make a payment to the applicable
Issuing Bank in respect of a Letter of Credit or to the Swingline
Lender in respect of a Swingline Loan (each a “funding obligation”), (b)
such Lender has notified the Administrative Agent or the Borrower,
or has stated publicly, that it will not comply with any such
funding obligation hereunder (unless such writing or public
statement relates to such Lender’s obligation to fund a
Borrowing hereunder and states that such position is based on such
Lender’s determination that a condition precedent to funding
(which condition precedent, together with any applicable default,
shall be specifically identified in such writing or public
statement) cannot be satisfied), or has defaulted on, its
obligation to fund generally under any other loan agreement, credit
agreement or other financing agreement, (c) such Lender has, for
three (3) or more Business Days, failed to confirm in writing to
the Administrative Agent, in response to a written request of the
Administrative Agent, that it will comply with its funding
obligations hereunder (provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (c) upon
receipt of such written confirmation by the Administrative Agent
and the Borrower), (d) a Lender Insolvency Event has occurred and
is continuing with respect to such Lender, or (e) such Lender has
become the subject of a Bail-In Action. The Administrative Agent
will promptly send to all parties hereto a copy of any notice to
the Borrower provided for in this definition.

 


“Disqualified Capital
Stock” shall mean Capital Stock that by its terms (or
by the terms of any security into which they are convertible or for
which they are exchangeable) (a) require the payment of any cash
dividends (other than dividends payable solely in shares of
Qualified Capital Stock or, in the case of any pass through entity,
in respect of taxes), (b) mature or are mandatorily redeemable or
subject to mandatory repurchase or redemption or repurchase at the
option of the holders thereof, in whole or in part and whether upon
the occurrence of any event, pursuant to a sinking fund obligation,
on a fixed date or otherwise, prior to the date that is ninety-one
(91) days after the latest of the Revolving Commitment Termination
Date and any maturity date for any Term Loan then outstanding at
the time of issuance of such Capital Stock (other than (i) upon
payment in full of the Obligations and the expiration or
termination of all Letters of Credit and termination of the
Commitments or (ii) upon a “change in control,” initial
public offering, asset sale, dissolution, liquidation or similar
event) or (c) are convertible or exchangeable, automatically or at
the option of any holder thereof, into any Indebtedness other than
Indebtedness otherwise permitted under Section 7.1; provided that if such Capital
Stock is issued pursuant to a plan or other agreement (including,
without limitation, any Organization Document of such Person) for
the benefit of current or former employees, officers, directors, or
consultants of the Borrower or the Subsidiaries or by any such plan
or other agreement to such Persons, such Capital Stock shall not
constitute Disqualified Capital Stock solely because it may be
required to be repurchased by the Borrower or its Subsidiaries in
order to satisfy applicable statutory or regulatory obligations or
as a result of such Person’s termination or cessation of
services, death or disability.

 




 

9








 






 

 


“Dollar(s)” and the sign
“$”
shall mean lawful money of the United States of
America.

 


“Domestic Subsidiary”
shall mean any Subsidiary that is organized under the laws of any
political subdivision of the United States.

 


“EEA Financial
Institution” shall mean (a) any credit institution or
investment firm established in any EEA Member Country which is
subject to the supervision of an EEA Resolution Authority, (b) any
entity established in an EEA Member Country which is a parent of an
institution described in clause (a) of this definition,
or (c) any financial institution established in an EEA Member
Country that is a subsidiary of an institution described in
clause (a) or
(b) of this
definition and is subject to consolidated supervision with its
parent.

 


“EEA Member Country” shall
mean any of the member states of the European Union, Iceland,
Liechtenstein, and Norway.

 


“EEA Resolution Authority”
shall mean any public administrative authority or any person
entrusted with public administrative authority of any EEA Member
Country (including any delegee) having responsibility for the
resolution of any EEA Financial Institution.

 


“Effective Date” shall
mean the date hereof.

 


“Environmental Indemnity”
shall mean each environmental indemnity made by each Loan Party
with real property required to be pledged as Collateral in favor of
the Administrative Agent for the benefit of the holders of the
Obligations, in each case in form and substance satisfactory to the
Administrative Agent.

 


“Environmental Laws” shall
mean all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements
issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, Release or
threatened Release of any Hazardous Material or to health and
safety matters.

 


“Environmental Liability”
shall mean any liability, contingent or otherwise (including any
liability for damages, costs of environmental investigation and
remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any
Subsidiary directly or indirectly resulting from or based upon (a)
any actual or alleged violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) any actual or alleged
exposure to any Hazardous Materials, (d) the Release or threatened
Release of any Hazardous Materials or (e) any contract, agreement
or other consensual arrangement pursuant to which liability is
assumed or imposed with respect to any of the
foregoing.

 


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

 




 

10








 






 

 


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

 


“ERISA Event” shall mean (a) any
“reportable event”, as defined in Section 4043(c) of
ERISA or the regulations issued thereunder with respect to a Plan
(other than an event for which the 30-day notice period is waived);
(b) the failure of any Plan to meet the minimum funding standard
applicable to the Plan for a plan year under Section 412(c) of the
Code or Section 302(c) of ERISA, whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan; (e)
the receipt by the Borrower or any ERISA Affiliate from the PBGC or
a plan administrator appointed by the PBGC of any notice relating
to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by the Borrower
or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the
imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of
ERISA.

 


“EU Bail-In Legislation
Schedule” shall mean the EU Bail-In Legislation
Schedule published by the Loan Market Association (or any successor
Person), as in effect from time to time.

 


“Eurodollar” when used in
reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, bears interest at a rate
determined by reference to the Adjusted LIBOR.

 


“Event of Default” shall
have the meaning set forth in Article VIII.

 


“Excluded Accounts” shall
mean (a) deposit and/or securities accounts the balance of
which consists exclusively of (i) withheld income taxes and
federal, state or local employment taxes in such amounts as are
required in the reasonable judgment of the Borrower to be paid to
the IRS or state or local government agencies within the following
two (2) months with respect to employees of any of the Loan Parties
or (ii) amounts required to be paid over to an employee benefit
plan pursuant to DOL Reg. Sec. 2510.3-102 on behalf of or for the
benefit of employees of one or more Loan Parties, (b) all tax
accounts (including, without limitation, sales tax accounts),
accounts used solely for payroll, accounts maintained solely in
trust for the benefit of third parties and fiduciary purposes,
escrow accounts, zero balance or swept accounts and employee
benefit accounts (including 401(k) accounts and pension fund
accounts), in each case, so long as such account is used solely for
such purpose, (c) any deposit and/or securities account maintained
in a jurisdiction outside of the United States and (d) any
disbursement account, so long as funds are not held in such account
except to the extent necessary for a substantially concurrent
disbursement.

 




 

11








 






 


“Excluded Property” shall
mean, with respect to any Loan Party, (a) any fee-owned real
property (i) which is located outside of the United States or (ii)
which has a fair market value of less than $1,000,000 on an
individual basis or $2,500,000 when taken together with all other
fee-owned real property not subject to a mortgage in favor of the
Administrative Agent, (b) any leased real property, (c) unless
requested by the Administrative Agent or the Required Lenders, any
IP Rights for which a perfected Lien thereon is not effected either
by filing of a Uniform Commercial Code financing statement or by
appropriate evidence of such Lien being filed in either the United
States Copyright Office or the United States Patent and Trademark
Office, (d) any personal property (including, without limitation,
motor vehicles and railroad rolling stock) (other than personal
property described in clause (c) above) for which the
attachment or perfection of a Lien thereon is not governed by the
Uniform Commercial Code, (e) the Capital Stock of any Foreign
Subsidiary to the extent not required to be pledged to secure the
Obligations pursuant to Section 5.11(a), (f) letter of
credit rights (as defined in the Uniform Commercial Code) with
respect to any individual or related letters of credit with a
maximum stated amount of less than $10,000, or $20,000 when taken
together with all other letters of credit for which the letter of
credit rights are not subject to a security agreement in favor of
the Administrative Agent (unless a security interest therein can be
perfected by the filing of a UCC-1 financing statement), (g)
commercial tort claims involving a monetary claim for less than
$20,000, (h) any lease, license or other similar agreement or any
property subject to a purchase money security interest or similar
arrangement to the extent that a grant of a security interest
therein would violate or invalidate such lease, license or similar
agreement or purchase money security interest or similar
arrangement or create a right of termination in favor of any other
party thereto (other than the Borrower or a Guarantor) after giving
effect to the applicable anti-assignment provisions of the Uniform
Commercial Code and other applicable Laws, other than proceeds and
receivables thereof, the assignment of which is expressly deemed
effective under the Uniform Commercial Code and other applicable
Laws notwithstanding such prohibition, (i) any application for
registration of a trademark, service mark or other mark filed with
the U.S. Patent and Trademark Office on an intent-to-use basis only
to the extent that and solely during the period if any in which the
grant of a security interest therein would void or invalidate such
application, until such time (if any) as a verified statement of
use (or the equivalent) for such trademark, service mark or other
mark is filed with and accepted by the U.S. Patent and Trademark
Office, at which time such trademark, service mark or other mark
shall automatically become part of the Collateral and subject to
the security interest pledged, (j) any property to the extent the
grant of a security interest in such property is prohibited by
applicable Law, (k) any property owned by a Foreign Subsidiary, (l)
to the extent requiring the consent of one or more third parties
(other than a Loan Party) or prohibited by the terms of any
applicable Organization Documents, joint venture agreement or
shareholders’ agreement, Capital Stock in any Person other
than wholly-owned Subsidiaries, and (m) any governmental licenses
or state or local franchises, charters and authorizations, to the
extent security interests in such licenses, franchises, charters or
authorizations are prohibited or restricted thereby; provided, however, that the security
interests granted under the Collateral Documents in favor of the
Administrative Agent shall attach immediately to any asset that
ceases to meet any of the criteria for Excluded Property described
in any of the foregoing clauses (a) through
(m) above,
including, without limitation, if the terms of the agreement(s)
relating thereto that prohibit or limit the pledge or granting of
security interest therein or that would give rise to a violation or
invalidation of the agreement(s) with respect thereto, (A) are no
longer in effect or (B) have been waived by the other party to any
such lease, license or other agreement.

 


“Excluded Swap Obligation”
shall mean, with respect to any Guarantor, any Swap Obligation if,
and to the extent that, all or a portion of the Guaranty of such
Guarantor of, or the grant by such Guarantor of a security interest
to secure, such Swap Obligation (or any Guarantee thereof) is or
becomes illegal under the Commodity Exchange Act or any rule,
regulation or order of the Commodity Futures Trading Commission (or
the application or official interpretation of any thereof) by
virtue of such Guarantor’s failure for any reason to
constitute an “eligible contract participant” as
defined in the Commodity Exchange Act and the regulations
thereunder at the time the Guaranty of such Guarantor, or the grant
by such Guarantor of a security interest, becomes effective with
respect to such Swap Obligation; provided that, for the
avoidance of doubt, in determining whether any Guarantor is an
“eligible contract participant” under the Commodity
Exchange Act, the keepwell agreement set forth in Section 10.8 shall be taken
into account. If a Swap Obligation arises under a Master Agreement
governing more than one Hedging Transaction, such exclusion shall
apply only to the portion of such Swap Obligation that is
attributable to Hedging Transactions for which such Guaranty or
security interest is or becomes excluded in accordance with the
first sentence of this definition.

 




 

12








 






 

 


“Excluded Taxes” shall mean any of the following
Taxes imposed on with respect to a Recipient or required to be
withheld or deducted from a payment to a Recipient: (a) Taxes
imposed on or measured by net income (however denominated),
franchise Taxes, and branch profits Taxes, in each case, (i)
imposed as a result of such Recipient being organized under the
Laws of, or having its principal office or, in the case of any
Lender, its Applicable Lending Office in the jurisdiction imposing
such Tax (or any political subdivision thereof) or (ii) that are
Other Connection Taxes, (b) in the case of a Lender, U.S. federal
withholding Taxes imposed on amounts payable to or for the account
of such Lender with respect to an applicable interest in a Loan or
Commitment pursuant to a Law in effect on the date on which (i)
such Lender acquires such interest in the Loan or Commitment (other
than pursuant to an assignment request by the Borrower under
Section 2.25) or
(ii) such Lender changes its lending office, except in each case to
the extent that, pursuant to Section 2.20, amounts with
respect to such Taxes were payable either to such Lender’s
assignor immediately before such Lender became a party hereto or to
such Lender immediately before it changed its lending office, (c)
Taxes attributable to such Recipient’s failure to comply with
Section 2.20(g) and
(d) any U.S. federal withholding Taxes imposed under
FATCA.

 


“Existing Credit
Agreement” shall have the meaning set forth in the
recitals hereof.

 


“Existing Letters of
Credit” shall mean the letters of credit set forth on
Schedule 2.22 as in
effect on the Effective Date.


 


“FATCA” shall mean
Sections 1471 through 1474 of the Code, as of the date of this
Agreement (or any amended or successor version that is
substantively comparable and not materially more onerous to comply
with), any current or future regulations or official
interpretations thereof, any agreements entered into pursuant to
Section 1471(b)(1) of the Code and any intergovernmental agreement
entered into between the United States and a foreign government to
implement any of the foregoing.

 


“Federal Funds Rate” shall
mean, for any day, the rate per annum (expressed, as a decimal,
rounded upwards, if necessary, to the next higher one one-hundredth
of one percent (1/100 of 1%)) equal to the weighted average of the
rates on overnight federal funds transactions with members of the
Federal Reserve System, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided, (a) if such day
is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day
as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate charged
to SunTrust Bank or any other Lender selected by the Administrative
Agent on such day on such transactions as determined by the
Administrative Agent.

 


“Fee Letter” shall mean that certain amendment fee
letter, dated as of July 11, 2017, executed by SunTrust Robinson Humphrey,
Inc. and SunTrust Bank
and accepted by
Borrower.

 


“Fiscal Quarter” shall
mean any fiscal quarter of the Borrower.

 


“Fiscal Year” shall mean any fiscal year of the
Borrower.

 


“Flood Hazard Property”
shall have the meaning set forth in clause (d) off the definition
of “Real Property Security Documents”.

 


“Foreign
Lender” shall mean (a) if the Borrower is
a U.S. Person, a Lender that is not a U.S. Person, and (b) if the
Borrower is not a U.S. Person, a Lender that is resident or
organized under the laws of a jurisdiction other than that in which
the Borrower is resident for tax purposes.

 




 

13








 






 

 


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

 


“GAAP” shall mean
generally accepted accounting principles in the United States
applied on a consistent basis and subject to the terms of
Section
1.3.

 


“Governmental Authority”
shall mean the government of the United States of America, any
other nation or 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 exercising such powers or functions, such as
the European Union or the European Central Bank).

 


“Guarantee” of or by any
Person (the “guarantor”) shall mean
any obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the
“primary
obligor”) in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the
guarantor (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase of)
any security for the payment thereof, (b) to purchase or lease
property, securities or services for the purpose of assuring the
owner of such Indebtedness or other obligation of the payment
thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty issued in
support of such Indebtedness or obligation; provided, that the term
“Guarantee” shall not include endorsements for
collection or deposit in the ordinary course of business. The
amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in
respect of which Guarantee is made or, if not so stated or
determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith. The term
“Guarantee” used as a verb has a corresponding
meaning.

 


“Guarantor Joinder
Agreement” shall mean a joinder agreement
substantially in the form of Exhibit 5.10 executed and
delivered by a Subsidiary in accordance with the provisions of
Section 5.10 or any
other documents as the Administrative Agent shall deem appropriate
for such purpose.

 


“Guarantors” shall mean,
collectively, (a) each Domestic Subsidiary identified as a
“Guarantor” on the signature pages hereto, (b) each
Person that joins as a Guarantor pursuant to Section 5.10 or otherwise, (c)
with respect to (i) any Hedging Obligations between any Loan Party
(other than the Borrower) and any Lender-Related Hedge Provider and
any Bank Products Obligations owing by any Loan Party (other than
the Borrower), the Borrower and (ii) the payment and performance by
each Specified Loan Party of its obligations under its Guaranty
with respect to all Swap Obligations, the Borrower, and (d) the
successors and permitted assigns of the foregoing; provided, however, that such term shall
not include (A) any Domestic Subsidiary of a Foreign Subsidiary
that is a “controlled foreign corporation” within the
meaning of Section 957 of the Code or (B) CCTag.

 


“Guaranty” shall mean the
Guaranty made by the Guarantors in favor of the Administrative
Agent, for the benefit of the holders of the Obligations, pursuant
to Article
X.

 


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

 




 

14








 






 

 


“Healthcare Laws” shall
have the meaning set forth in Section 4.24.


 


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

 


 “Hedging
Obligations” of any Person shall mean any and all
obligations of such Person, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
under (a) any and all Hedging Transactions, (b) any and all
cancellations, buy backs, reversals, terminations or assignments of
any Hedging Transactions and (c) any and all renewals, extensions
and modifications of any Hedging Transactions and any and all
substitutions for any Hedging Transactions.

 


“Hedging Transaction” of
any Person shall mean (a) any transaction (including an agreement
with respect to any such transaction) now existing or hereafter
entered into by such Person that is a rate swap transaction, swap
option, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap or option, bond
option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency option,
spot transaction, credit protection transaction, credit swap,
credit default swap, credit default option, total return swap,
credit spread transaction, repurchase transaction, reverse
repurchase transaction, buy/sell-back transaction, securities
lending transaction, or any other similar transaction (including
any option with respect to any of these transactions) or any
combination thereof, whether or not any such transaction is
governed by or subject to any master agreement and (b) any and all
transactions of any kind, and the related confirmations, which are
subject to the terms and conditions of, or governed by, any form of
master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a
“Master
Agreement”), including any such obligations or
liabilities under any Master Agreement.

 


“HIPAA” shall mean the
Health Insurance Portability and Accountability Act of 1996, as the
same may be amended, modified or supplemented from time to time,
and any successor statute thereto, and any and all rules or
regulations promulgated from time to time thereunder.

 


“HIPAA Compliant” shall
have the meaning set forth in Section 4.23.


 


“Hostile
Acquisition” shall mean
the Acquisition of the Capital Stock of a Person through a tender
offer or similar solicitation of the owners of such Capital Stock
which has not been approved (prior to such Acquisition) by
resolutions of the Board of Directors of such Person (or by similar
action if such Person is not a corporation) or if such approval has
been withdrawn.


 


“Incremental Funds
Certain Provision” shall
have the meaning set forth in Section
2.23.


 


“Incremental Term
Loan” shall have
the meaning set forth in
Section
2.23.


 


“Incremental Term Loan
Commitment” shall mean, with respect to Persons
identified as an “Incremental Term Loan Lender” in the
applicable supplement or joinder in form and substance satisfactory
to the Administrative Agent, together with their respective
successors and assigns, the commitment of such Person to make the
Incremental Term Loan hereunder pursuant to such supplement or
joinder; provided
that, at any time after the funding of the Incremental Term Loan,
determination of “Required Lenders” shall include the
outstanding principal amount of the Incremental Term
Loan.




 

15








 






 


 


“Indebtedness” of any
Person shall mean, without duplication (a) all obligations of
such Person for borrowed money, (b) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments,
(c) all obligations of such Person in respect of the deferred
purchase price of property or services (other than trade payables
incurred in the ordinary course of business; provided, that for purposes of
Section 8.1(f),
trade payables overdue by more than one hundred twenty (120) days
shall be included in this definition except to the extent that any
of such trade payables are being disputed in good faith and by
appropriate measures), (d) all obligations of such Person under any
conditional sale or other title retention agreement(s) relating to
property acquired by such Person, (e) all Capital Lease
Obligations of such Person, (f) all obligations, contingent or
otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (g) all
obligations of such Person, contingent or otherwise, to purchase,
redeem, retire or otherwise acquire for value any Capital Stock of
such Person, (h) Off-Balance Sheet Liabilities, (i) the Hedge
Termination Value of all Hedging Obligations, (j) all Guarantees of
such Person of the type of Indebtedness described in clauses (a) through
(i) above and (k)
all Indebtedness of a third party secured by any Lien on property
owned by such Person, whether or not such Indebtedness has been
assumed by such Person. The Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture in
which such Person is a general partner or a joint venturer, except
to the extent that the terms of such Indebtedness provide that such
Person is not liable therefor.

 


“Indemnified Taxes” shall
mean (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of
the any Loan Party under any Loan Document and (b) to the extent
not otherwise described in clause (a), Other
Taxes.

 


“Indemnitee” shall have
the meaning set forth in Section 11.3(b).

 


“Interest Period” shall mean with respect to any
Eurodollar Borrowing, a period of one or two weeks or one, two,
three or six months (in each case, subject to availability);
provided,
that:

 


(a)           the
initial Interest Period for such Borrowing shall commence on the
date of such Borrowing (including the date of any conversion from a
Borrowing of another Type), and each Interest Period occurring
thereafter in respect of such Borrowing shall commence on the day
on which the first preceding Interest Period expires;

 


(b)           if
any Interest Period would otherwise end on a day other than a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless such Business Day falls in another
calendar month, in which case such Interest Period would end on the
first preceding Business Day;

 


(c)           any
Interest Period which begins on the last Business Day of a calendar
month or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period shall
end on the last Business Day of such calendar month;

 


(d)           each
principal installment of the Term Loans shall have an Interest
Period ending on each installment payment date and the remaining
principal balance (if any) of the Term Loans shall have an Interest
Period determined as set forth above; and

 


(e)           no
Interest Period may extend beyond the Revolving Commitment
Termination Date, unless on the Revolving Commitment Termination
Date the aggregate outstanding principal amount of Term Loans is
equal to or greater than the aggregate principal amount of
Eurodollar Loans with Interest Periods expiring after such date,
and no Interest Period may extend beyond the Maturity
Date.

 




 

16








 






 

 


“Interest Rate Determination
Date” shall mean the date of any Borrowing of LIBOR
Index Rate Loans and the first Business Day of each calendar month
thereafter.


 


“Interim Financial
Statements” shall mean the unaudited consolidated
financial statements of the Borrower and its Subsidiaries for the
Fiscal Quarter ending March 31, 2017, including balance sheets and
statements of income or operations, shareholders’ equity and
cash flows.


 


“Investments” shall mean,
as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) purchase or other
acquisition of any Capital Stock of another Person, (b) a loan,
advance, other evidence of indebtedness or capital contribution to,
Guarantee or assumption of debt of, or purchase or other
acquisition of any other indebtedness or equity participation or
interest in, another Person, or (c) an Acquisition. For purposes of
covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent
increases or decreases in the value of such
Investment.

 


“IP Rights” shall mean all
of the trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intellectual property
rights that are reasonably necessary for the operation of their
respective businesses that the Borrower or any of its Subsidiaries
owns, or possesses the legal right to use.

 


“IRS” shall mean the
United States Internal Revenue Service.

 


“Issuer Documents” shall
mean with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument
entered into by an Issuing Bank and any Borrower (or any
Subsidiary) or in favor of an Issuing Bank and relating to such
Letter of Credit.

 


“Issuing Bank” shall mean
(a) with respect to all Letters of Credit issued on or after the
Effective Date, SunTrust Bank, in its capacity as an issuer of
Letters of Credit hereunder, or any successor issuer of Letters of
Credit, (b) with respect to any Existing Letter of Credit issued by
SunTrust Bank pursuant to the Existing Credit Agreement, SunTrust
Bank, or any successor and (c) with respect to the Existing Letter
of Credit issued by Bank of America, N.A. (no. 68104784), Bank of
America, N.A. or any successor.

 


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

 


“LC Commitment” shall mean
that portion of the Aggregate Revolving Commitments that may be
used by the Borrower for the issuance of Letters of Credit in an
aggregate face amount not to exceed Thirty-Five Million Dollars
($35,000,000).

 


“LC Disbursement” shall
mean a payment made by an Issuing Bank pursuant to a Letter of
Credit.

 




 

17








 






 

 


“LC Documents” shall mean
all applications, agreements and instruments relating to the
Letters of Credit but excluding the Letters of Credit.

 


“LC Exposure” shall mean,
at any time, the sum of (a) the aggregate undrawn amount of
all outstanding Letters of Credit at such time, plus (b) the aggregate amount of
all LC Disbursements that have not been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Lender shall
be its Pro Rata Share of the total LC Exposure at such time. For
all purposes of this Agreement, if on any date of determination a
Letter of Credit has expired by its terms but any amount may still
be drawn thereunder by reason of the operation of Rule 3.14 of the
International Standby Practices 1998, such Letter of Credit shall
be deemed to be “outstanding” in the amount so
remaining available to be drawn.


 


“Lender Insolvency Event”
shall mean that (a) a Lender or its Parent Company is insolvent, or
is generally unable to pay its debts as they become due, or admits
in writing its inability to pay its debts as they become due, or
makes a general assignment for the benefit of its creditors, (b) a
Lender or its Parent Company is the subject of a bankruptcy,
insolvency, reorganization, liquidation or similar proceeding, or a
receiver, trustee, conservator, custodian or the like has been
appointed for such Lender or its Parent Company, or such Lender or
its Parent Company has taken any action in furtherance of or
indicating its consent to or acquiescence in any such proceeding or
appointment, or (c) a Lender or its Parent Company has been
adjudicated as, or determined by any Governmental Authority having
regulatory authority over such Person or its assets to be,
insolvent; provided
that, for the avoidance of doubt, a Lender Insolvency Event 
shall not be deemed to have occurred solely by virtue of the
ownership or acquisition of any equity interest in or control of a
Lender or a Parent Company thereof by a Governmental Authority or
an instrumentality thereof.

 


“Lender-Related Hedge
Provider” shall mean any Person that, (a) (i) at the
time it enters into a Hedging Transaction with any Loan Party, is a
Lender or an Affiliate of a Lender or (ii) has entered into a
Hedging Transaction with any Loan Party that exists on the
Effective Date, and such Person is a Lender or an Affiliate of a
Lender on the Effective Date and (b) except when the Lender-Related
Hedge Provider is SunTrust Bank and its Affiliates, has provided
prior written notice to the Administrative Agent which has been
acknowledged by the Borrower of the existence of such Hedging
Transaction. In no event shall any Lender-Related Hedge Provider
acting in such capacity be deemed a Lender for purposes hereof to
the extent of and as to Hedging Obligations except that each
reference to the term “Lender” in Article IX and Section 11.4 shall be deemed to
include such Lender-Related Hedge Provider. In no event shall the
approval of any such Person in its capacity as Lender-Related Hedge
Provider be required in connection with the release or termination
of any security interest or Lien of the Administrative
Agent.


 


“Lenders” shall mean each
of the Persons identified as a “Lender” on the
signature pages hereto and each Additional Lender that joins this
Agreement pursuant to Section 2.23 and their
successors and assigns and shall include, where appropriate, the
Swingline Lender.

 


“Letter of Credit” shall
mean (a) any stand-by letter of credit issued pursuant to
Section 2.22 by
SunTrust Bank, in its capacity as an Issuing Bank, for the account
of the Borrower or any Subsidiary pursuant to the LC Commitment and
(b) any of the Existing Letters of Credit.

 


“Letter of Credit
Application” shall mean an application and agreement
for the issuance or amendment of a Letter of Credit in the form
from time to time in use by the applicable Issuing
Bank.

 


“Letter of Credit Fee”
shall have the meaning set forth in Section 2.14(c).

 




 

18








 






 

 


“LIBOR Index Rate Loan”
when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, bears interest
at a rate determined by reference to the One Month LIBOR Index
Rate.

 


“Lien” shall mean any
mortgage, pledge, security interest, lien (statutory or otherwise),
charge, encumbrance, hypothecation, assignment, deposit
arrangement, or other arrangement having the practical effect of
any of the foregoing or any preference, priority or other security
agreement or preferential arrangement of any kind or nature
whatsoever (including any conditional sale or other title retention
agreement and any capital lease having the same economic effect as
any of the foregoing).

 


“Loan Documents” shall
mean, collectively, this Agreement, the Collateral Documents, the
LC Documents, the Fee Letter, all Notices of Borrowing, all Notices
of Conversion/Continuation, all Compliance Certificates, all Issuer
Documents, all UCC Financing Statements, all stock powers and
similar instruments of transfer, any promissory notes issued
hereunder and any and all other instruments, agreements, documents
and writings executed in connection with any of the
foregoing.

 


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

 


“Loans” shall mean all
Revolving Loans, Swingline Loans and Term Loans in the aggregate or
any of them, as the context shall require.

 


“Master Agreement” shall
have the meaning set forth in the definition of “Hedging
Transaction.”

 


“Material Adverse Effect”
shall mean, with respect to any event, act, condition or occurrence
of whatever nature (including any adverse determination in any
litigation, arbitration, or governmental investigation or
proceeding), whether singularly or in conjunction with any other
event or events, act or acts, condition or conditions, occurrence
or occurrences whether or not related, resulting in a material
adverse change in, or a material adverse effect on, (a) the
business, results of operations, financial condition, assets,
liabilities or prospects of the Borrower and its Subsidiaries taken
as a whole, (b) the ability of the Loan Parties to perform any
of their respective obligations under the Loan Documents, (c) the
rights and remedies of the Administrative Agent, the Issuing Banks,
Swingline Lender, and the Lenders under any of the Loan Documents
or (d) the legality, validity or enforceability of any of the Loan
Documents.

 


“Material Agreements”
shall mean such material definitive contracts filed with the SEC or
that are required to be filed with the SEC pursuant to SEC rules
and regulations.

 


“Material Foreign
Subsidiary” shall mean, at any time, any Foreign
Subsidiary that is directly owned by any Loan Party having (a)
assets in an amount equal to at least two and one-half percent
(2.5%) of the total assets of the Borrower and its Subsidiaries
determined on a consolidated basis as of the last day of the most
recent Fiscal Quarter at such time; or (b) revenues in an amount
equal to at least two and one-half percent (2.5%) of the total
revenues of the Borrower and its Subsidiaries on a consolidated
basis for the 12-month period ending on the last day of the most
recent Fiscal Quarter at such time.

 


“Material Indebtedness”
shall mean any Indebtedness (other than the Loans, Letters of
Credit and Indebtedness under any of the Subordinated Debt
Documents) and Hedging Obligations of the Borrower or any of its
Subsidiaries, individually or in an aggregate committed or
outstanding principal amount exceeding $1,000,000. For purposes of
determining the amount of attributed Indebtedness from Hedging
Obligations, the “principal amount” of any Hedging
Obligations at any time shall be the Net Mark-to-Market Exposure of
such Hedging Obligations.

 




 

19








 






 

 


“Maturity Date” shall mean
(a) with respect to the Term Loan A, the earlier of (i) August 1,
2022 or (ii) the date on which the principal amount of all
outstanding Term Loans has been declared or automatically has
become due and payable pursuant to Section 8.1 (whether by
acceleration or otherwise) and (b) with respect to any Incremental
Term Loan, the earlier of (i) the maturity date identified in the
definitive documentation therefor or (ii) the date on which the
principal amount of all outstanding Term Loans has been declared or
automatically has become due and payable pursuant to Section 8.1 (whether by
acceleration or otherwise).

 


“Maximum Rate” shall have
the meaning set forth in Section 11.12.

 


“Moody’s” shall mean
Moody’s Investors Service, Inc.

 


“Mortgaged Property” shall
mean any real property that is owned by a Loan Party and is subject
to a Mortgage.

 


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

 


“Multiemployer Plan” shall
mean any employee benefit plan of the type described in Section
4001(a)(3) of ERISA to which the Borrower makes or is obligated to
make contributions or with respect to which Borrower has any
liability (including on account of an ERISA
Affiliate).

 


“Net Cash Proceeds” shall
mean the aggregate cash or Permitted Investments proceeds received
by the Borrower or any Subsidiary in respect of any Asset Sale,
Recovery Event or any issuance of Indebtedness or equity securities
net of (a) direct costs incurred in connection therewith (including
legal, accounting and investment banking fees, and sales
commissions), (b) taxes paid or payable as a result thereof and (c)
in the case of any Asset Sale or any Recovery Event, the amount
necessary to retire any Indebtedness secured by a Lien permitted by
Section 7.2
(ranking senior to any Lien of the Administrative Agent) on the
related property.

 


“Net Mark-to-Market
Exposure” of any Person shall mean, as of any date of
determination with respect to any Hedging Obligation, the excess
(if any) of all unrealized losses over all unrealized profits of
such Person arising from such Hedging Obligation. “Unrealized
losses” shall mean the fair market value of the cost to such
Person of replacing the Hedging Transaction giving rise to such
Hedging Obligation as of the date of determination (assuming the
Hedging Transaction were to be terminated as of that date), and
“unrealized profits” means the fair market value of the
gain to such Person of replacing such Hedging Transaction as of the
date of determination (assuming such Hedging Transaction were to be
terminated as of that date).

 


“Non-Consenting Lender”
shall have the meaning set forth in Section 2.25.

 


“Non-Defaulting Lender”
shall mean, at any time, a Lender that is not a Defaulting
Lender.

 


“Note” shall have the
meaning set forth in Section 2.10(b).

 


“Notice of
Conversion/Continuation” shall have the meaning set
forth in Section
2.7(b).

 


“Notice of Revolving
Borrowing” shall have the meaning set forth in
Section
2.3.

 


“Notice of Swingline
Borrowing” shall have the meaning set forth
in Section
2.4.

 




 

20








 






 

 


“Notices of Borrowing”
shall mean, collectively, the Notices of Revolving Borrowing and
the Notices of Swingline Borrowing.

 


“Obligations” shall mean,
collectively, (a) all amounts owing by the Loan Parties to the
Administrative Agent, any Issuing Bank, any Lender (including the
Swingline Lender) or the Arranger pursuant to or in connection with
this Agreement or any other Loan Document or otherwise with respect
to any Loan or Letter of Credit including without limitation, all
principal, interest (including any interest accruing after the
filing of any petition in bankruptcy or the commencement of any
insolvency, reorganization or like proceeding relating to the
Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), all reimbursement
obligations, fees, expenses, indemnification and reimbursement
payments, costs and expenses (including all fees and expenses of
counsel to the Administrative Agent, any Issuing Bank and any
Lender (including the Swingline Lender) incurred pursuant to this
Agreement or any other Loan Document), whether direct or indirect,
absolute or contingent, liquidated or unliquidated, now existing or
hereafter arising hereunder or thereunder, (b) all Hedging
Obligations owed by any Loan Party to any Lender-Related Hedge
Provider permitted by Section 7.11, and (c) all Bank
Product Obligations, together with all renewals, extensions,
modifications or refinancings of any of the foregoing; provided, that
“Obligations” of a Guarantor shall exclude any Excluded
Swap Obligations of such Guarantor.

 


“OFAC” shall mean the U.S.
Department of the Treasury’s Office of Foreign Assets
Control.

 


“Off-Balance Sheet
Liabilities” of any Person shall mean (a) any
repurchase obligation or liability of such Person with respect to
accounts or notes receivable sold by such Person, (b) any liability
of such Person under any sale and leaseback transactions that do
not create a liability on the balance sheet of such Person, (c) any
Synthetic Lease Obligation or (d) any obligation arising with
respect to any other transaction which is the functional equivalent
of or takes the place of borrowing but which does not constitute a
liability on the balance sheet of such Person.

 


“OIG” shall have the
meaning set forth in Section 4.24.

 


“One Month LIBOR Index
Rate” shall mean a rate per annum equal to the
one-month LIBOR which appears on Reuters Screen LIBOR01 as of 11:00
a.m., London time, two (2) Business Days prior to each Interest
Rate Determination Date. Notwithstanding anything to the contrary
in the foregoing, if the One Month LIBOR Index Rate is less than
zero, such rate shall be deemed to be zero for purposes of this
Agreement.


 


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




 

21








 






 


“OSHA” shall mean the Occupational Safety
and Health Act of 1970, as
amended from time to
time, and any successor
statute.

 


“Other Connection Taxes”
shall mean, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and
the jurisdiction imposing such Tax (other than connections arising
from such Recipient having executed, delivered, become a party to,
performed its obligations under, received payments under, received
or perfected a security interest under, engaged in any other
transaction pursuant to or enforced any Loan Document, or sold or
assigned an interest in any Loan or Loan Document).

 


“Other Taxes” shall mean
all present or future stamp, court or documentary, intangible,
recording, filing or similar Taxes that arise from any payment made
under, from the execution, delivery, performance, enforcement or
registration of, from the receipt or perfection of a security
interest under, or otherwise with respect to, any Loan Document,
except any such Taxes that are Other Connection Taxes imposed with
respect to an assignment (other than an assignment made pursuant to
Section
2.25).

 


“Parent Company” shall
mean, with respect to a Lender, the bank holding company (as
defined in Regulation Y), if any, of such Lender, and/or any Person
owning, beneficially or of record, directly or indirectly, a
majority of the shares of such Lender.

 


“Participant” shall have
the meaning set forth in Section 11.4(d).

 


“Participant Register”
shall have the meaning set forth in Section 11.4(e).

 


“Patriot Act” shall mean
the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act
of 2001) (as amended from time to time).

 


“Payment Office” shall
mean the office of the Administrative Agent located at 303
Peachtree Street, N.E., Atlanta, Georgia 30308, or such other
location as to which the Administrative Agent shall have given
written notice to the Borrower and the other Lenders.

 


“PBGC” shall mean the
Pension Benefit Guaranty Corporation referred to and defined in
ERISA, and any successor entity performing similar
functions.

 


“Permitted Acquisition”
shall mean any Acquisition that has either been approved in writing
by the Required Lenders or with respect to which all of the
following conditions shall have been satisfied:

 


(a)           the
Acquired Business is in the same or similar line of business as the
Borrower and its Subsidiaries and has its primary operations within
the United States of America;

 


(b)           the
Acquisition shall not be a Hostile Acquisition;

 




 

22








 






 


 


(c)           (i)
no Default or Event of Default shall exist and be continuing
immediately before or immediately after giving effect thereto
(except, in the case of an Acquisition subject to the Incremental
Funds Certain Provision, in which case there is no Default or Event
of Default immediately before or immediately after execution and
delivery of the applicable Acquisition Agreement and there is no
Specified Event of Default at the date the applicable Permitted
Acquisition is consummated), (ii) the representations and
warranties made by each of the Loan Parties in each Loan Document
shall be true and correct in all material respects (other than
those representations and warranties that are expressly qualified
by a Material Adverse Effect or other materiality, in which case
such representations and warranties shall be true and correct in
all respects) as if made on the date of such Acquisition (after
giving effect thereto) except to the extent such representations
and warranties expressly relate to an earlier date, in which case
such representations and warranties shall be true and correct in
all material respects (other than those representations and
warranties that are expressly qualified by a Material Adverse
Effect or other materiality, in which case such representations and
warranties shall be true and correct in all respects) as of such
earlier date; provided, that, in the case of
an Acquisition subject to the Incremental Funds Certain Provision,
the representations and warranties made by each of the Loan Parties
in each Loan Document shall be true and correct in all material
respects (other than those representations and warranties that are
expressly qualified by a Material Adverse Effect or other
materiality, in which case such representations and warranties
shall be true and correct in all respects) as if made on the date
of the execution and delivery of the Acquisition Agreement and the
Specified Representations shall be true and correct in all material
respects (other than those representations and warranties that are
expressly qualified by a Material Adverse Effect or other
materiality, in which case such representations and warranties
shall be true and correct in all respects) as if made on the date
of such Acquisition, and (iii) after giving effect thereto on a Pro
Forma Basis, the Borrower shall be in compliance with the financial
covenants set forth in Article VI for the period of
four (4) Fiscal Quarters most recently ended prior to the date of
determination for which financial statements were delivered under
Section 5.1(a) or
(b) (except, in the
case of an Acquisition subject to the Incremental Funds Certain
Provision, in which case, the date of determination of the
financial covenants set forth in Article VI on a Pro Forma Basis
shall, at the option of the Borrower, be the date of execution of
such Acquisition Agreement, and such determination shall be made
after giving effect to such Acquisition (and the other transactions
to be entered into in connection therewith (including any
incurrence of Indebtedness and the use of proceeds thereof));
provided that such
Acquisition must close within ninety (90) days of the signing of
the applicable Acquisition Agreement) on a Pro Forma Basis and
(iv) at least five (5) Business Days prior to the consummation
of such Acquisition (or, in the case of an Acquisition subject to
the Incremental Funds Certain Provision, at least five (5) Business
Days prior to the execution and delivery of the applicable
Acquisition Agreement), the Borrower shall have delivered to the
Administrative Agent a duly completed Pro Forma Compliance
Certificate;

 


(d)           upon
request, Borrower shall have promptly furnished to Administrative
Agent such financial and other information as to such Acquisition
or Acquired Business as Administrative Agent may reasonably request
including, without limitation, (i) a description of the
material terms of such Acquisition and (ii) either, at
Borrower’s option, (A) audited financial statements of
the Acquired Business for its most recent fiscal year ended, which
audited financial statements shall have been audited by an
independent public account reasonably satisfactory to the
Administrative Agent, and financial statements for any fiscal
quarters ended within the fiscal year to date prepared by
management of the Acquired Business (which shall be certified by
the chief financial officer or treasurer (or manager or member
holding performing similar roles) of the Acquired Business as
fairly presenting in all material respects the consolidated
financial condition of the Acquired Business and its subsidiaries
as of such dates and the consolidated results of operations for
such periods in conformity with GAAP consistently applied, subject
to year-end audit adjustments and the absence of footnotes in the
case of the statements), or (B) a quality of earnings report or
other due diligence report on the Acquired Business from a third
party reasonably acceptable to the Administrative Agent, which
report shall be in form and detail reasonably satisfactory to the
Administrative Agent;

 


(e)           if
a new Subsidiary is formed or acquired as a result of or in
connection with the Acquisition, the Borrower shall have caused
such Subsidiary to join as a Guarantor within ten (10) Business
Days of the Acquisition as provided for in Sections 5.10 and 5.11 in connection therewith;
and

 


(f)           the
aggregate cash and non-cash consideration (including any assumption
of Indebtedness, deferred purchase price and any earn-out
obligations and any equity consideration) paid by the Borrower and
its Subsidiaries shall not exceed (i) with respect to any
individual Acquisition (or series of related Acquisitions),
$50,000,000 and (ii) with respect to all Acquisitions occurring
during the term of this Agreement, $100,000,000.

 




 

23








 






 


 


“Permitted Encumbrances”
shall mean:

 


(a)           Liens
imposed by Law for taxes not yet due or which are being contested
in good faith by appropriate proceedings diligently conducted and
with respect to which adequate reserves are being maintained in
accordance with GAAP;

 


(b)           statutory
Liens of landlords, carriers, warehousemen, mechanics, materialmen,
repairmen and other Liens imposed by Law in the ordinary course of
business for amounts not yet due or which are being contested in
good faith by appropriate proceedings and with respect to which
adequate reserves are being maintained in accordance with
GAAP;

 


(c)           pledges
and deposits made (i) in the ordinary course of business in
compliance with workers’ compensation, unemployment insurance
and other social security Laws or regulations and (ii) in respect
of letters of credit, bank guarantees or similar instruments issued
for the account of the Borrower or any Subsidiary in the ordinary
course of business supporting obligations of the type set forth in
clause (i)
immediately above;

 


(d)           pledges
and deposits made (i) to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each
case in the ordinary course of business, and (ii) in respect of
letters of credit, bank guarantees or similar instruments issued
for the account of the Borrower or any Subsidiary in the ordinary
course of business supporting obligations of the type set forth in
clause (i)
immediately above;

 


(e)           judgment
and attachment liens not giving rise to a Default or an Event of
Default or Liens created by or existing from any litigation or
legal proceeding that are currently being contested in good faith
by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP;

 


(f)           customary
rights of set-off, revocation, refund or chargeback under deposit
agreements or under the Uniform Commercial Code or common law of
banks or other financial institutions where Borrower or any of its
Subsidiaries maintains deposits (other than deposits intended as
cash collateral) in the ordinary course of business;
and

 


(g)           easements,
zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by Law or arising in the ordinary course of
business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or
materially interfere with the ordinary conduct of business of the
Borrower and its Subsidiaries taken as a whole;

 


provided, that the term
“Permitted Encumbrances” shall not include any Lien
securing Indebtedness, other than Liens referred to in clauses (c) and (d) above securing letters of
credit, bank guarantees or similar instruments issued for the
account of the Borrower or any Subsidiary in the ordinary course of
business supporting obligations of the type set forth in
clauses (c)(i) and
(d)(i)
above;

 


“Permitted Investments”
shall mean:

 




 

24








 






 

 


(a)           direct
obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States (or by
any agency thereof to the extent such obligations are backed by the
full faith and credit of the United States), in each case maturing
within two (2) years from the date of acquisition
thereof;

 


(b)           commercial
paper having the highest rating, at the time of acquisition
thereof, of S&P or Moody’s and in either case maturing
within six months from the date of acquisition
thereof;

 


(c)           certificates
of deposit, bankers’ acceptances and time deposits maturing
within two hundred seventy (270) days of the date of acquisition
thereof issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the Laws of the United States or
any state thereof which has a combined capital and surplus and
undivided profits of not less than $500,000,000;

 


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

 


(e)           mutual
funds investing solely in any one or more of the Permitted
Investments described in clauses (a) through
(d)
above.

 


“Permitted Refinancing”
means any extension, renewal or replacement of any existing
Indebtedness so long as any such renewal, refinancing and extension
of such Indebtedness (a) has market terms and conditions, (b) has
an average life to maturity that is greater than that of the
Indebtedness being extended, renewed or refinanced, (c) does not
include an obligor that was not an obligor with respect to the
Indebtedness being extended, renewed or refinanced, unless such
additional obligor is also a Guarantor, (d) remains subordinated,
if the Indebtedness being renewed, extended or refinanced was
subordinated to the prior payment of the Obligations, (e) does not
exceed in a principal amount the Indebtedness being renewed,
extended or refinanced plus reasonable fees and expenses incurred
in connection therewith, and (f) is not incurred, created or
assumed if any Default or Event of Default has occurred and
continues to exist or would result therefrom.

 


“Permitted Subordinated
Debt” shall mean any Indebtedness of the Borrower or
any Guarantor incurred in connection with deferred purchase price
obligations arising in an Acquisition consummated prior to the
Effective Date or any Permitted Acquisition after the Effective
Date that is evidenced by, and subject to the terms of,
Subordinated Debt Documents or otherwise on terms and (including
without limitation subordination provisions) acceptable to the
Administrative Agent and the Required Lenders, which shall include
that the applicable Loan Party may not make payments of principal
or interest during the occurrence or continuance of a Default or
Event of Default.

 


“Person” shall mean any
individual, partnership, firm, corporation, association, joint
venture, limited liability company, trust or other entity, or any
Governmental Authority.

 


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

 


“Platform” shall have the
meaning set forth in Section 5.1.




 

25








 






 


 


“Pro Forma Basis” shall mean, for purposes of calculating
compliance with respect to any Asset Sale, Recovery Event,
Permitted Acquisition, Restricted Payment, increase in the
Aggregate Revolving Commitments or incurrence of an Incremental
Term Loan pursuant to Section 2.23 or incurrence of
Indebtedness, or any other transaction subject to calculation on a
“Pro Forma Basis” as indicated herein, that such transaction shall be deemed to
have occurred as of the first day of
the period of four (4) Fiscal Quarters most recently ended for
which the Borrower has delivered financial statements
pursuant to Section
5.1(a) or (b). For purposes of any such calculation in respect
of any Permitted Acquisition, (a)  income statement items (whether positive or
negative) attributable to the Person or
property acquired shall be included beginning as of the first day
of the applicable period; (b) any Indebtedness incurred or
assumed by any Borrower or any Subsidiary (including the Person or
property acquired) in connection with such transaction and any
Indebtedness of the Person or property acquired which is not
retired in connection with such transaction (i) shall be
deemed to have been incurred as of the first day of the applicable
period and (ii) if such Indebtedness has a floating or formula
rate, shall have an implied rate of interest for the applicable
period for purposes of this definition determined by utilizing the
rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination; and (c)
Capital Expenditures attributable to the Person or property
acquired shall be included beginning as of the first day of the
applicable period.

 


“Pro Forma Compliance
Certificate” shall mean a certificate of a Responsible
Officer of the Borrower containing (a) reasonably detailed
calculations of the financial covenants set forth in Article VI recomputed as of the
end of the period of the four (4) Fiscal Quarters most recently
ended for which the Borrower has delivered financial statements
pursuant to Section
5.1(a) or (b) after giving effect to the
applicable transaction on a Pro Forma Basis and (b) if delivered in
connection with any Permitted Acquisition, certifications that
clauses (a) through
(f) of the
definition of “Permitted Acquisition” have been
satisfied (or will be satisfied in the time permitted under this
Agreement).

 


“Pro Rata Share” shall
mean (a) with respect to any Commitment of any Lender at any time,
a percentage, the numerator of which shall be such Lender’s
Commitment (or if such Commitments have been terminated or expired
or the Loans have been declared to be due and payable, such
Lender’s Revolving Credit Exposure or Term Loan, as
applicable), and the denominator of which shall be the sum of such
Commitments of all Lenders (or if such Commitments have been
terminated or expired or the Loans have been declared to be due and
payable, all Revolving Credit Exposure or Term Loans, as
applicable, of all Lenders) and (b) with respect to all Commitments
of any Lender at any time, the numerator of which shall be the sum
of such Lender’s Revolving Commitment (or if such Revolving
Commitments have been terminated or expired or the Loans have been
declared to be due and payable, such Lender’s Revolving
Credit Exposure) and Term Loan and the denominator of which shall
be the sum of all Lenders’ Revolving Commitments (or if such
Revolving Commitments have been terminated or expired or the Loans
have been declared to be due and payable, all Revolving Credit
Exposure of all Lenders funded under such Commitments) and Term
Loans.

 


“Public Lender” shall have
the meaning set forth in Section 5.1.

 


“Qualified Capital Stock”
shall mean any Capital Stock other than Disqualified Capital
Stock.

 


“Qualified ECP Guarantor”
shall mean, in respect of any Swap Obligation, each Loan Party that
has total assets exceeding $10,000,000 at the time the relevant
Guaranty or grant of the relevant security interest becomes
effective with respect to such Swap Obligation or such other Loan
Party as constitutes an “eligible contract participant”
under the Commodity Exchange Act or any regulations promulgated
thereunder and can cause another Person to qualify as an
“eligible contract participant” at such time by
entering into a keepwell under Section 1a(18)(A)(v)(II) of the
Commodity Exchange Act.

 




 

26








 






 


 


“Qualified Permitted
Acquisition” shall have the meaning set forth in
Section
6.1.

 


“Real Property Security
Documents” shall mean, with respect to any fee-owned
interest of a Loan Party in any real property:


 


(a)           a
fully executed and notarized Mortgage encumbering the fee or
leasehold interest of such Loan Party in such real
property;


 


(b)           if
requested by the Administrative Agent in its reasonable discretion,
maps or plats of an as built survey of the sites of such real
property certified to the Administrative Agent and the title
insurance company issuing the policies referred to in clause (c) of this definition
in a manner satisfactory to each of the Administrative Agent and
such title insurance company, dated a date reasonably satisfactory
to each of the Administrative Agent and such title insurance
company by an independent professional licensed land surveyor,
which maps or plats and the surveys on which they are based shall
be sufficient to delete any standard printed survey exception
contained in the applicable title policy and be made in accordance
with the Minimum Standard Detail Requirements for Land Title
Surveys jointly established and adopted by the American Land Title
Association and the National Society of Professional Surveyors,
Inc. in 2016 with items 2, 3, 4, 6(b), 7(a), 7(b)(1), 7(c), 8, 9,
10, 11, 13, 14, 16,17, 18 and 19 on Table A thereof
completed;


 


(c)           ALTA
mortgagee title insurance policies issued by a title insurance
company reasonably acceptable to the Administrative Agent with
respect to such real property, assuring the Administrative Agent
that the Mortgage covering such real property creates a valid and
enforceable first priority mortgage lien on such real property,
free and clear of all defects and encumbrances except Permitted
Encumbrances, which title insurance policies shall otherwise be in
form and substance satisfactory to the Administrative Agent and
shall include such endorsements as are requested by the
Administrative Agent;


 


(d)           evidence
as to (i) whether such real property is in an area designated by
the Federal Emergency Management Agency as having special flood or
mud slide hazards (a “Flood Hazard Property”)
and (ii) if such real property is a Flood Hazard Property, (A)
whether the community in which such real property is located is
participating in the National Flood Insurance Program, (B) the
applicable Loan Party’s written acknowledgment of receipt of
written notification from the Administrative Agent (1) as to the
fact that such real property is a Flood Hazard Property and (2) as
to whether the community in which each such Flood Hazard Property
is located is participating in the National Flood Insurance Program
and (C) copies of flood insurance policies under the National Flood
Insurance Program (or private insurance endorsed to cause such
private insurance to be fully compliant with the federal law as
regards private placement insurance applicable to the National
Flood Insurance Program, with financially sound and reputable
insurance companies not Affiliates of the Borrower) or certificates
of insurance of the Borrower and its Subsidiaries evidencing such
flood insurance coverage in such amounts and with such deductibles
as the Administrative Agent (on behalf of itself or any Lender) may
request and naming the Administrative Agent and its successors
and/or assigns as sole loss payee on behalf of the
Lenders;


 


(e)           if
requested by the Administrative Agent, a duly executed
Environmental Indemnity with respect thereto;




 

27








 






 


 


(f)           if
requested by the Administrative Agent, (i) environmental
questionnaires or (ii) Phase I Environmental Site Assessment
Reports, consistent with American Society of Testing and Materials
(ASTM) Standard E 1527-05, and applicable state requirements, on
all of the owned real property, dated no more than six (6) months
prior to the Effective Date (or date of the applicable Mortgage if
provided post-closing), prepared by environmental engineers
satisfactory to the Administrative Agent, all in form and substance
satisfactory to the Administrative Agent, and such environmental
review and audit reports, including Phase II reports, with respect
to the real property of any Loan Party as the Administrative Agent
shall have requested, in each case together with letters executed
by the environmental firms preparing such environmental reports, in
form and substance satisfactory to the Administrative Agent,
authorizing the Administrative Agent and the Lenders to rely on
such reports, and the Administrative Agent shall be satisfied with
the contents of all such environmental questionnaires or
reports;


 


(g)           if
requested by the Administrative Agent, evidence satisfactory to the
Administrative Agent that such real property, and the uses of such
real property, are in compliance in all material respects with all
applicable zoning Laws (the evidence submitted as to which should
include the zoning designation made for such real property, the
permitted uses of such real property under such zoning designation
and, if available, zoning requirements as to parking, lot size,
ingress, egress and building setbacks); and


 


(h)           an
opinion of legal counsel to the Loan Party granting the Mortgage on
such real property, addressed to the Administrative Agent and each
Lender, in form and substance reasonably acceptable to the
Administrative Agent.


 


“Recipient” shall mean (a)
the Administrative Agent, (b) any Lender and (c) any Issuing Bank,
as applicable.

 


“Recovery Event” shall
mean any loss of, damage to or destruction of, or any condemnation
or other taking for public use of, any property of the Borrower or
any Subsidiary.

 


“Register” shall have the
meaning set forth in Section 11.4(c).

 


“Regulation D” shall
mean Regulation D of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and
any successor regulations.

 


“Regulation T” shall
mean Regulation T of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and
any successor regulations.

 


“Regulation U” shall
mean Regulation U of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and
any successor regulations.

 


“Regulation X” shall
mean Regulation X of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and
any successor regulations.

 


“Regulation Y” shall
mean Regulation Y of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and
any successor regulations.

 


“Related Parties” shall
mean, with respect to any specified Person, such Person’s
Affiliates and the respective managers, administrators, trustees,
partners, directors, officers, employees, agents, advisors, legal
counsel, consultants or other representatives of such Person and
such Person’s Affiliates.

 




 

28








 






 


 


“Release” shall mean any
release, spill, emission, leaking, dumping, injection, pouring,
deposit, disposal, discharge, dispersal, leaching or migration into
the environment (including ambient air, surface water, groundwater,
land surface or subsurface strata) or within any building,
structure, facility or fixture.

 


“Required Lenders” shall
mean, at any time, (a) if there are more than three (3) Lenders,
the Lenders holding more than fifty percent (50%) of the aggregate
outstanding Revolving Commitments and the Term Loans at such time
or if the Lenders have no Commitments outstanding, then Lenders
holding more than fifty percent (50%) of the Revolving Credit
Exposure and the Term Loans, (b) if there are three (3) or fewer
Lenders, at least two (2) Lenders holding more than fifty percent
(50%) of the aggregate outstanding Revolving Commitments and the
Term Loans at such time or if the Lenders have no Commitments
outstanding, then at least two (2) Lenders holding more than fifty
percent (50%) of the Revolving Credit Exposure and the Term Loans
or (c) if there is only one (1) Lender, such Lender; provided that to the extent
that any Lender is a Defaulting Lender, such Defaulting Lender and
all of its Revolving Commitments, Revolving Credit Exposure and
Term Loans shall be excluded for purposes of
determining Required Lenders, except as otherwise expressly
set forth herein.

 


“Responsible Officer”
shall mean, with respect to any Person, any of the president, the
chief executive officer, the chief operating officer, the chief
financial officer, the treasurer, the controller or a vice
president of such Person or such other representative of such
Person as may be designated in writing by any one of the foregoing
with the consent of the Administrative Agent; and, with respect to
the financial covenants only, the chief financial officer or the
treasurer of such Person.

 


“Restricted Payment” shall
mean any dividend or other distribution (whether in cash,
securities or other property) with respect to any Capital Stock of
any Person, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, defeasance,
acquisition, cancellation or termination of any such Capital Stock
or on account of any return of capital to such Person’s
stockholders, partners or members (or the equivalent Person
thereof), or any option, warrant or other right to acquire any such
dividend or other distribution or payment.

 


“Revolving Commitment”
shall mean, with respect to each Lender, the commitment of such
Lender to make Revolving Loans to the Borrower and to acquire
participations in Letters of Credit and Swingline Loans in an
aggregate principal amount not exceeding the amount set forth with
respect to such Lender on Schedule I, as such schedule
may be amended pursuant to Section 2.23, or in the case of
a Person becoming a Lender after the Effective Date, the amount of
the assigned “Revolving Commitment” as provided in the
Assignment and Acceptance executed by such Person as an assignee,
or the joinder executed by such Person, in each case as such
commitment may subsequently be increased or decreased pursuant to
terms hereof.

 


“Revolving Commitment Termination
Date” shall mean the earliest of (a) August 1, 2022,
(b) the date on which the Revolving Commitments are terminated
pursuant to Section
2.8 and (c) the date on which all amounts outstanding under
this Agreement have been declared or have automatically become due
and payable (whether by acceleration or otherwise).

 


“Revolving Credit
Exposure” shall mean, with respect to any Lender at
any time, the sum of the outstanding principal amount of such
Lender’s Revolving Loans, LC Exposure and Swingline
Exposure.

 


“Revolving Lenders” shall
mean a collective reference to the Lenders holding Revolving Loans
or Revolving Commitments.

 




 

29








 






 


 


“Revolving Loan” shall
mean a loan made by a Lender (other than the Swingline Lender) to
the Borrower under its Revolving Commitment, which may either be a
Base Rate Loan, a Eurodollar Loan or a LIBOR Index Rate
Loan.

 


“S&P” shall mean
Standard & Poor’s Financial Services LLC, a subsidiary of
The McGraw-Hill Companies, Inc., and any successor
thereto.

 


“Sanctioned Country” shall
mean, at any time, a country or territory that is, or whose
government is, the subject or target of any Sanctions.

 


“Sanctioned Person” shall
mean, at any time, (a) any Person listed in any Sanctions-related
list of designated Persons maintained by OFAC, the U.S. Department
of State, the United Nations Security Council, the European Union
or any European Union member state, (b) any Person located,
organized or resident in a Sanctioned Country or (c) any Person
controlled by any such Person.

 


“Sanctions” shall mean
economic or financial sanctions or trade embargoes administered or
enforced from time to time by (a) the U.S. government, including
those administered by OFAC or the U.S. Department of State, (b) the
United Nations Security Council, the European Union or Her
Majesty’s Treasury of the United Kingdom or (c) any other
relevant sanctions authority.

 


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


 


“Security Agreement” shall
mean the amended and restated security and pledge agreement dated
as of the Effective Date executed in favor of the Administrative
Agent, for the benefit of the holders of the Obligations, by each
of the Loan Parties.


 


“Solvent” shall mean, with
respect to any Person on a particular date, that on such date (a)
the present fair saleable value of the property of such Person is
greater than the total amount of liabilities, including
subordinated and contingent liabilities, of such Person; (b) the
present fair saleable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts and liabilities, including
subordinated and contingent liabilities as they become absolute and
matured; (c) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person’s
ability to pay as such debts and liabilities mature; (d) such
Person is not engaged in a business or transaction, and is not
about to engage in a business or transaction, for which such
Person’s property would constitute unreasonably small
capital; (e) such Person is able to pay its debts and other
liabilities, contingent obligations and other commitments as they
mature in the ordinary course of business; and (f) such Person does
not intend, in any transaction, to hinder, delay or defraud either
present or future creditors or any other Person to which such
Person is or will become, through such transaction, indebted. The
amount of contingent liabilities (such as litigation, guaranties
and pension plan liabilities) at any time shall be computed as the
amount that, in light of all the facts and circumstances existing
at the time, represents the amount that would reasonably be
expected to become an actual or matured liability.

 


“Specified Event of
Default” shall mean an Event of Default arising under
Section 8.1(a),
(g) or (h).

 


“Specified Loan Party”
shall mean each Loan Party that is, at the time on which the
relevant Guarantee or grant of the relevant security interest under
the Loan Documents by such Loan Party becomes effective with
respect to a Swap Obligation, a corporation, partnership,
proprietorship, organization, trust or other entity that would not
be an “eligible contract participant” under the
Commodity Exchange Act at such time but for the effect of
Section
10.8.

 




 

30








 






 

 


“Specified
Representations” shall mean the representations of the
Loan Parties contained in Section 4.1, 4.2, 4.3(b), 4.6 (insofar as it relates to
the execution, delivery and performance of the Loan Documents),
4.8, 4.10, 4.16 and 4.19.

 


“Standstill Period” shall
have the meaning set forth in Section 8.3(b).

 


“Subordinated Debt
Documents” shall mean all indentures, agreements,
notes, guaranties, subordination agreements and other material
agreements governing or evidencing any Permitted Subordinated Debt
and all other material documents relating thereto.

 


“Subsidiary” shall mean,
with respect to any Person (the “parent”), any
corporation, partnership, joint venture, limited liability company,
association or other entity the accounts of which would be
consolidated with those of the parent in the parent’s
consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, (a) of which
securities or other ownership interests representing more than
fifty percent (50%) of the equity or more than fifty percent (50%)
of the ordinary voting power, or in the case of a partnership, more
than fifty percent (50%) of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent. Unless otherwise indicated, all
references to “Subsidiary” hereunder shall mean a
Subsidiary of the Borrower.

 


“SunTrust” shall mean
SunTrust Bank and its successors.

 


“Swap Obligations” shall
mean with respect to any Guarantor any obligation to pay or perform
under any agreement, contract or transaction that constitutes a
“swap” within the meaning of Section 1a(47) of the
Commodity Exchange Act.

 


“Swingline Commitment”
shall mean the commitment of the Swingline Lender to make Swingline
Loans in an aggregate principal amount at any time outstanding not
to exceed Fifteen Million Dollars ($15,000,000).

 


“Swingline Exposure” shall
mean, with respect to each Lender, the principal amount of the
Swingline Loans in which such Lender is legally obligated either to
make a Base Rate Loan or to purchase a participation in accordance
with Section 2.4,
which shall equal such Lender’s Pro Rata Share of all
outstanding Swingline Loans.

 


“Swingline Lender” shall
mean SunTrust Bank in its capacity as provider of Swingline Loans,
or any successor swingline lender hereunder.

 


“Swingline Loan” shall
mean a loan made to the Borrower by the Swingline Lender under the
Swingline Commitment.

 


“Synthetic Lease” shall
mean a lease transaction under which the parties intend that (a)
the lease will be treated as an “operating lease” by
the lessee pursuant to Accounting Standards Codification Sections
840-10 and 840-20, as amended and (b) the lessee will be entitled
to various tax and other benefits ordinarily available to owners
(as opposed to lessees) of like property.

 




 

31








 






 

 


“Synthetic Lease
Obligations” shall mean,
with respect to any
Person, the sum of (a)
all remaining rental obligations of
such Person as lessee
under Synthetic Leases which
are attributable to principal
and, without duplication, (b) all rental and purchase price payment obligations
of such Person under
such Synthetic Leases assuming
such Person exercises the
option to purchase the lease
property at the end of the lease term.

 


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

 


“Term Loan A” shall have
the meaning set forth in Section 2.5.

 


“Term Loan A Commitment”
shall mean, with respect to each Lender, the obligation of such
Lender to make its portion of the Term Loan A hereunder in one
advance on the Effective Date in a principal amount not exceeding
the amount set forth with respect to such Lender on Schedule I. The aggregate
principal amount of all Lenders’ Term Loan A Commitments as
of the Effective Date is One Hundred Million Dollars
($100,000,000).

 


“Term Loan Commitments”
shall mean the Term Loan A Commitments and the Incremental Term
Loan Commitments.

 


“Term Loans” shall mean
the Term Loan A and any Incremental Term Loan.

 


“Trading with the Enemy
Act” shall mean the Trading with the Enemy Act of the
United States of America (50 U.S.C. App. §§ 1
et seq.), as amended and in
effect from time to time.

 


“Type”, when used in
reference to a Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing,
is determined by reference to the Adjusted LIBOR, the One Month
LIBOR Index Rate or the Base Rate.

 


“United States” or
“U.S.”
shall mean the United States of America.

 


“U.S. Person” shall mean
any Person that is a “United States person” as defined
in Section 7701(a)(30) of the Code.

 


“U.S. Tax Compliance
Certificate” shall have the meaning set forth in
Section
2.20(g).

 


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

 


“Withholding Agent” shall
mean any Loan Party and the Administrative Agent.

 


“Write-Down and Conversion
Powers” shall mean, with respect to any EEA Resolution
Authority, the write-down and conversion powers of such EEA
Resolution Authority from time to time under the Bail-In
Legislation for the applicable EEA Member Country, which write-down
and conversion powers are described in the EU Bail-In Legislation
Schedule.

 


Section
1.2           
Classifications of Loans
and Borrowings. For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g. a “Revolving
Loan” or “Term Loan”) or by Type (e.g. a
“Eurodollar Loan”, “LIBOR Index Rate Loan”
or “Base Rate Loan”) or by Class and Type (e.g.
“Revolving Eurodollar Loan”). Borrowings also may be
classified and referred to by Class (e.g. “Revolving
Borrowing”) or by Type (e.g. “Eurodollar
Borrowing”) or by Class and Type (e.g. “Revolving
Eurodollar Borrowing”).

 




 

32








 






 


 


Section
1.3           
Accounting Terms and
Determination.

 


(a)           Unless
otherwise defined or specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared, in accordance with GAAP
as in effect from time to time, applied on a basis consistent with
the most recent audited consolidated financial statement of the
Borrower delivered pursuant to Section 5.1(a); provided, that
if the Borrower notifies the Administrative Agent that the Borrower
wishes to amend any covenant in Article VI to eliminate the effect
of any change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required
Lenders wish to amend Article VI for such purpose),
then the Borrower’s compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the
relevant change in GAAP became effective, until either such notice
is withdrawn or such covenant is amended in a manner satisfactory
to the Borrower and the Required Lenders.

 


(b)           Notwithstanding
any other provision contained herein, all terms of an accounting or
financial nature used herein shall be construed, and all
computations of amounts and ratios referred to herein shall be
made, without giving effect to any election under Accounting
Standards Codification Section 825-10 (or any other Financial
Accounting Standard having a similar result or effect) to value any
Indebtedness or other liabilities of any Loan Party or any
Subsidiary of any Loan Party at "fair value", as defined
therein. Without limiting the
foregoing, leases shall continue to be classified and accounted for
on a basis consistent with that reflected in the Audited Financial
Statements for all purposes of this Agreement, notwithstanding any
change in GAAP relating thereto, unless the parties hereto shall
enter into a mutually acceptable amendment addressing such changes,
as provided for above.

 


(c)           Notwithstanding
the above, the parties hereto acknowledge and agree that all
calculations of the financial covenants in Article VI (including for
purposes of determining the Applicable Margin and any transaction
that by the terms of this Agreement requires that any financial
covenant contained in Article VI be calculated on a
Pro Forma Basis) shall be made on a Pro Forma Basis with respect to
any Asset Sale, Recovery Event or Acquisition occurring during such
period.

 


(d)           Notwithstanding
anything to the contrary in the foregoing, leases shall continue to
be classified and accounted for on a basis consistent with that
reflected in the audited financial statements for the Borrower and
its Subsidiaries for the Fiscal Year ended December 31, 2016 for
all purposes of this Agreement, notwithstanding any change in GAAP
relating thereto, unless the parties hereto shall enter into a
mutually acceptable amendment addressing such changes.

 




 

33








 






 

 


Section
1.4         
Terms Generally.
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”. In the computation of
periods of time from a specified date to a later specified date,
the word “from” means “from and including”
and the word “to” means “to but excluding”.
Unless the context requires otherwise (i) 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 it was originally executed or as it may from time
to time be amended, restated, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or
modifications set forth herein), (ii) any reference herein to any
Person shall be construed to include such Person’s successors
and permitted assigns, (iii) the words “hereof”,
“herein” and “hereunder” and words of
similar import shall be construed to refer to this Agreement as a
whole and not to any particular provision hereof, (iv) all
references to Articles, Sections, Exhibits and Schedules shall
be construed to refer to Articles, Sections, Exhibits and
Schedules to this Agreement, (v) any reference to any law shall
include all statutory and regulatory rules, regulations, orders and
provisions consolidating, amending, replacing or interpreting such
law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended,
modified, extended, restated, replaced or supplemented from time to
time and (vi) all references to a specific time shall be construed
to refer to the time in the city and state of the Administrative
Agent’s principal office, unless otherwise
indicated.

 


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

 


Section
1.6         
Times of Day.
Unless otherwise specified, all references herein to times of day
shall be references to Eastern time (daylight or standard, as
applicable).

 


 


ARTICLE
II


 



AMOUNT
AND TERMS OF THE COMMITMENTS

 


Section
2.1          
General Description of
Facilities. Subject to and upon the terms and conditions
herein set forth, (a) the Lenders hereby establish in favor of
the Borrower a revolving credit facility pursuant to which each
Lender severally agrees (to the extent of such Lender’s
Revolving Commitment) to make Revolving Loans in Dollars to the
Borrower in accordance with Section 2.2, (b) the applicable
Issuing Bank may issue Letters of Credit denominated in Dollars in
accordance with Section
2.22, (c) the Swingline Lender may make Swingline Loans in
Dollars in accordance with Section 2.4, (d) each Lender
agrees to purchase a participation interest in the Letters of
Credit and the Swingline Loans pursuant to the terms and conditions
hereof; provided,
that in no event shall the aggregate principal amount of all
outstanding Revolving Loans, Swingline Loans and outstanding LC
Exposure exceed the Aggregate Revolving Commitments in effect from
time to time, and (e) each Lender severally agrees to advance its
portion of the Term Loan A to the Borrower in Dollars in one
advance on the Effective Date in a principal amount not exceeding
such Lender’s Term Loan A Commitment.

 




 

34








 






 


 


Section
2.2          
Revolving Loans.
Subject to the terms and conditions set forth herein, each Lender
severally agrees to make Revolving Loans, ratably in proportion to
its Pro Rata Share of the Revolving Commitments, to the Borrower,
from time to time during the Availability Period, in an aggregate
principal amount outstanding at any time that will not result in
(a) such Lender’s Revolving Credit Exposure exceeding such
Lender’s Revolving Commitment or (b) the aggregate Revolving
Credit Exposures of all Lenders exceeding the Aggregate Revolving
Commitments. During the Availability Period, the Borrower shall be
entitled to borrow, prepay and reborrow Revolving Loans in
accordance with the terms and conditions of this Agreement;
provided, that the
Borrower may not borrow or reborrow should there exist a Default or
Event of Default.

 


Section
2.3            
Procedure for Revolving
Borrowings. The Borrower shall give the Administrative Agent
written notice (or telephonic notice promptly confirmed in writing)
of each Revolving Borrowing substantially in the form of
Exhibit 2.3 (a
“Notice of Revolving
Borrowing”) (x) prior to 1:00 p.m. on the requested
date of each Borrowing of Base Rate Loans or LIBOR Index Rate Loans
and (y) prior to 1:00 p.m. three (3) Business Days prior to the
requested date of each Eurodollar Borrowing. Each Notice of
Revolving Borrowing shall be irrevocable and shall specify: (i) the
aggregate principal amount of such Borrowing, (ii) the date of such
Borrowing (which shall be a Business Day), (iii) the Type of such
Revolving Loan comprising such Borrowing and (iv) in the case of a
Eurodollar Borrowing, the duration of the initial Interest Period
applicable thereto (subject to the provisions of the definition of
Interest Period). Each Revolving Borrowing shall consist of Base
Rate Loans, LIBOR Index Rate Loans or Eurodollar Loans or a
combination thereof, as the Borrower may request. The aggregate
principal amount of each Eurodollar Borrowing shall be not less
than $3,000,000 or a larger multiple of $500,000, and the aggregate
principal amount of each Base Rate Borrowing or LIBOR Index Rate
Borrowing shall not be less than $1,000,000 or a larger multiple of
$100,000; provided,
that Base Rate Loans made pursuant to Section 2.4 or Section 2.22(d) may be made in
lesser amounts as provided therein. At no time shall the total
number of Eurodollar Borrowings outstanding at any time exceed ten
(10). Promptly following the receipt of a Notice of Revolving
Borrowing in accordance herewith, the Administrative Agent shall
advise each Lender of the details thereof and the amount of such
Lender’s Revolving Loan to be made as part of the requested
Revolving Borrowing.

 


Section
2.4            
Swingline
Commitment.

 


(a)           Subject
to the terms and conditions set forth herein, the Swingline Lender
may, in its sole discretion, make Swingline Loans to the Borrower,
from time to time during the Availability Period, in an aggregate
principal amount outstanding at any time not to exceed the lesser
of (i) the Swingline Commitment then in effect and (ii) the
difference between the Aggregate Revolving Commitments and the
aggregate Revolving Credit Exposures of all Lenders; provided, that the Swingline
Lender shall not be required to make a Swingline Loan to refinance
an outstanding Swingline Loan. The Borrower shall be entitled to
borrow, repay and reborrow Swingline Loans in accordance with the
terms and conditions of this Agreement.

 




 

35








 






 

 


(b)           The
Borrower shall give the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing
of Swingline Loans substantially in the form of Exhibit 2.4 attached hereto
(“Notice of
Swingline Borrowing”) prior to 11:00 a.m. on the
requested date of each Borrowing of Swingline Loans. Each Notice of
Swingline Borrowing shall be irrevocable and shall specify: (i) the
principal amount of such Swingline Loan, (ii) the date of such
Swingline Loan (which shall be a Business Day) and (iii) the
account of the Borrower to which the proceeds of such Swingline
Loan should be credited. The Administrative Agent will promptly
advise the Swingline Lender of each Notice of Swingline Borrowing.
The aggregate principal amount of each Swingline Loan shall not be
less than $100,000 or a larger multiple of $50,000, or such other
minimum amounts agreed to by the Swingline Lender and the Borrower.
The Swingline Lender will make the proceeds of each Swingline Loan
available to the Borrower in Dollars in immediately available funds
at the account specified by the Borrower in the applicable Notice
of Swingline Borrowing not later than 1:00 p.m. on the requested
date of such Swingline Loan.

 


(c)           The
Swingline Lender, at any time and from time to time in its sole
discretion, may, but in no event no less frequently than once each
calendar week shall, on behalf of the Borrower (which hereby
irrevocably authorizes and directs the Swingline Lender to act on
its behalf), give a Notice of Revolving Borrowing to the
Administrative Agent requesting the Lenders (including the
Swingline Lender) to make Base Rate Loans in an amount equal to the
unpaid principal amount of any Swingline Loan. Each Lender will
make the proceeds of its Base Rate Loan included in such Borrowing
available to the Administrative Agent for the account of the
Swingline Lender in accordance with Section 2.6, and such proceeds
will be used solely for the repayment of such Swingline
Loan.

 


(d)           If
for any reason a Base Rate Borrowing may not be (as determined in
the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender
(other than the Swingline Lender) shall purchase an undivided
participating interest in such Swingline Loan in an amount equal to
its Pro Rata Share thereof on the date that such Base Rate
Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately
available funds, the amount of its participating interest to the
Administrative Agent for the account of the Swingline
Lender.

 


(e)           Each
Lender’s obligation to make a Base Rate Loan pursuant to
Section 2.4(c) or
to purchase the participating interests pursuant to Section 2.4(d) shall be
absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff,
counterclaim, recoupment, defense or other right that such Lender
or any other Person may have or claim against the Swingline Lender,
the Borrower or any other Person for any reason whatsoever, (ii)
the existence of a Default or an Event of Default or the
termination of any Lender’s Revolving Commitment, (iii) the
existence (or alleged existence) of any event or condition which
has had or could reasonably be expected to have a Material Adverse
Effect, (iv) any breach of this Agreement or any other Loan
Document by any Loan Party, the Administrative Agent or any Lender
or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. If such amount is
not in fact made available to the Swingline Lender by any Lender,
the Swingline Lender shall be entitled to recover such amount on
demand from such Lender, together with accrued interest thereon for
each day from the date of demand thereof (i) at the Federal Funds
Rate until the second Business Day after such demand and (ii) at
the Base Rate at all times thereafter. Until such time as such
Lender makes its required payment, the Swingline Lender shall be
deemed to continue to have outstanding Swingline Loans in the
amount of the unpaid participation for all purposes of the Loan
Documents. In addition, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on its
Loans and any other amounts due to it hereunder, to the Swingline
Lender to fund the amount of such Lender’s participation
interest in such Swingline Loans that such Lender failed to fund
pursuant to this Section
2.4, until such amount has been purchased in
full.

 




 

36








 






Section
2.5       Term Loan A Commitment.
Immediately prior to the Effective Date, the aggregate outstanding
principal amount of the term loans under the Existing Credit
Agreement was $78,000,000. Subject to the terms and conditions set
forth herein, on the Effective Date, each Lender holding a portion
of any term loan under the Existing Credit Agreement that is a
Lender holding a Term Loan A Commitment agrees to extend the
maturity date of its portion of the outstanding term loan under the
Existing Credit Agreement to the Maturity Date and, to the extent
necessary such that the portion of the term loan held by such
Lender hereunder equals such lender’s Term Loan A Commitment,
make additional advances (such extended term loans in an aggregate
principal amount of $78,000,000, together with additional advances
in an aggregate principal amount of $22,000,000, for one
consolidated term loan in the aggregate principal amount of
$100,000,000 on the Effective Date, the “Term Loan A”). The Term
Loan A may be, from time to time in the Borrower’s discretion
(subject to the terms of this Agreement), Base Rate Loans, LIBOR
Index Rate Loans or Eurodollar Loans or a combination thereof;
provided, that on
the Effective Date the Term Loan A shall be Base Rate Loans unless
the Administrative Agent shall have received a funding indemnity
letter in form and substance reasonably satisfactory to the
Administrative Agent. The execution and delivery of this Agreement
by the Borrower and the satisfaction of all conditions precedent
pursuant to Section
3.1 shall be deemed to constitute the Borrower’s
request to borrow the Term Loan A on the Effective Date. Amounts
repaid on the Term Loan A may not be reborrowed.

 


Section
2.6               
Funding of
Borrowings.

 


(a)           Each
Lender will make available each Loan to be made by it hereunder on
the proposed date thereof by wire transfer in immediately available
funds by 2:00 p.m. to the Administrative Agent at the Payment
Office; provided, that the Swingline Loans will be made as set
forth in Section
2.4. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts that it receives,
in like funds by the close of business on such proposed date, to an
account maintained by the Borrower with the Administrative Agent or
at the Borrower’s option, by effecting a wire transfer of
such amounts to an account designated by the Borrower to the
Administrative Agent.

 


(b)           Unless
the Administrative Agent shall have been notified by any Lender
prior to 5:00 p.m. one (1) Business Day prior to the date of a
Borrowing in which such Lender is to participate that such Lender
will not make available to the Administrative Agent such
Lender’s share of such Borrowing, the Administrative Agent
may assume that such Lender has made such amount available to the
Administrative Agent on such date, and the Administrative Agent, in
reliance on such assumption, may make available to the Borrower on
such date a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such
Lender on the date of such Borrowing, the Administrative Agent
shall be entitled to recover such corresponding amount on demand
from such Lender together with interest at the Federal Funds Rate
until the second Business Day after such demand and thereafter at
the Base Rate. If such Lender does not pay such corresponding
amount forthwith upon the Administrative Agent’s demand
therefor, the Administrative Agent shall promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent together with interest at the
rate specified for such Borrowing. Nothing in this clause (b) shall be deemed to
relieve any Lender from its obligation to fund its Pro Rata Share
of any Borrowing hereunder or to prejudice any rights which the
Borrower may have against any Lender as a result of any default by
such Lender hereunder.

 


(c)           All
Revolving Borrowings shall be made by the Lenders on the basis of
their respective Pro Rata Shares. No Lender shall be responsible
for any default by any other Lender in its obligations hereunder,
and each Lender shall be obligated to make its Loans provided to be
made by it hereunder, regardless of the failure of any other Lender
to make its Loans hereunder.

 


Section
2.7           
Interest
Elections.

 




 

37








 






 


(a)          
Each Borrowing initially shall be of the Type specified in the
applicable Notice of Borrowing. Thereafter, the Borrower may elect
to convert such Borrowing into a different Type or to continue such
Borrowing, all as provided in this Section 2.7. The Borrower may
elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding Loans comprising such
Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.

 


(b)        
To make an election pursuant to this Section 2.7, the Borrower shall
give the Administrative Agent prior written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing that is to
be converted or continued, as the case may be, substantially in the
form of Exhibit 2.7
attached hereto (a “Notice of
Conversion/Continuation”) (x) prior to 11:00 a.m. one
(1) Business Day prior to the requested date of a conversion into a
Base Rate Borrowing or a LIBOR Index Rate Borrowing and (y) prior
to 11:00 a.m. three (3) Business Days prior to a continuation of or
conversion into a Eurodollar Borrowing. Each such Notice of
Conversion/Continuation shall be irrevocable and shall specify (i)
the Borrowing to which such Notice of Conversion/Continuation
applies and if different options are being elected with respect to
different portions thereof, the portions thereof that are to be
allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) shall be specified for
each resulting Borrowing); (ii) the effective date of the election
made pursuant to such Notice of Conversion/Continuation, which
shall be a Business Day; (iii) whether the resulting Borrowing is
to be a Base Rate Borrowing, a LIBOR Index Rate Borrowing or a
Eurodollar Borrowing; and (iv) if the resulting Borrowing is to be
a Eurodollar Borrowing, the Interest Period applicable thereto
after giving effect to such election, which shall be a period
contemplated by the definition of “Interest Period”. If
any such Notice of Conversion/Continuation requests a Eurodollar
Borrowing but does not specify an Interest Period, the Borrower
shall be deemed to have selected an Interest Period of one month.
The principal amount of any resulting Borrowing shall satisfy the
minimum borrowing amount for Eurodollar Borrowings, LIBOR Index
Rate Borrowings and Base Rate Borrowings set forth in Section 2.3.

 


(c)           If,
on the expiration of any Interest Period in respect of any
Eurodollar Borrowing, the Borrower shall have failed to deliver a
Notice of Conversion/Continuation, then, unless such Borrowing is
repaid as provided herein, the Borrower shall be deemed to have
elected to convert such Borrowing to a LIBOR Index Rate Borrowing.
No Borrowing may be converted into, or continued as, a Eurodollar
Borrowing if an Event of Default exists, unless the Administrative
Agent and each of the Lenders shall have otherwise consented in
writing. No conversion of any Eurodollar Loans shall be permitted
except on the last day of the Interest Period in respect
thereof.

 


(d)           Upon
receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the
details thereof and of such Lender’s portion of each
resulting Borrowing.

 


Section
2.8           
Optional Reduction and
Termination of Commitments.

 


(a)           Unless
previously terminated, all Revolving Commitments, Swingline
Commitments and LC Commitments shall terminate on the Revolving
Commitment Termination Date. The Term Loan A Commitments shall
terminate upon the making of the Term Loan A pursuant to
Section
2.5.

 




 

38








 






 

 


(b)           Upon
at least three (3) Business Days’ prior written notice (or
telephonic notice promptly confirmed in writing) to the
Administrative Agent (which notice shall be irrevocable), the
Borrower may reduce the Aggregate Revolving Commitments in part or
terminate the Aggregate Revolving Commitments in whole;
provided, that (i)
any partial reduction shall apply to reduce proportionately and
permanently the Revolving Commitment of each Lender, (ii) any
partial reduction pursuant to this Section 2.8 shall be in an
amount of at least $5,000,000 and any larger multiple of
$1,000,000, and (iii) no such reduction shall be permitted which
would reduce the Aggregate Revolving Commitments to an amount less
than the aggregate outstanding Revolving Credit Exposure of all
Lenders. Any such reduction in the Aggregate Revolving Commitments
below the principal amount of the Swingline Commitment and the LC
Commitment shall result in a dollar-for-dollar reduction in the
Swingline Commitment and the LC Commitment.

 


Section
2.9            
Repayment of
Loans.

 


(a)           The
outstanding principal amount of all Revolving Loans and Swingline
Loans shall be due and payable (together with accrued and unpaid
interest thereon) on the Revolving Commitment Termination
Date.

 


(b)           The
Borrower unconditionally promises to pay to the Administrative
Agent for the account of each Lender the then unpaid principal
amount of the Term Loan A of such Lender in quarterly installments,
commencing with the first full Fiscal Quarter ending after the Term
Loan A is funded, with each such installment being in the aggregate
principal amount (as such installment may be adjusted as a result
of prepayments made pursuant to Sections 2.11 and 2.12) for all Lenders equal to
(i) 1.25% of the principal amount of the Term Loan A actually
advanced for the first four (4) installments, (ii) 1.875% of the
principal amount of the Term Loan A actually advanced for the next
eight (8) installments and (iii) 2.50% of the principal amount of
the Term Loan A actually advanced for the remaining installments
(and on such other date(s) and in such other amounts as may be
required from time to time pursuant to this Agreement);
provided, that, to
the extent not previously paid, the aggregate unpaid principal
balance of the Term Loan A shall be due and payable on the Maturity
Date.

 


(c)           Each
Incremental Term Loan shall be repayable as provided in the
documentation establishing such Incremental Term Loan. Amounts
repaid on any Incremental Term Loan may not be
reborrowed.

 


Section
2.10         
Evidence of
Indebtedness.

 




 

39








 






 


 


(a)         
Each Lender shall maintain in accordance with its usual practice
appropriate records evidencing the Indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender from time
to time, including the amounts of principal and interest payable
thereon and paid to such Lender from time to time under this
Agreement. The Administrative Agent shall maintain appropriate
records in which shall be recorded (i) the Revolving Commitment and
Term Loan Commitment of each Lender, (ii) the amount of each Loan
made hereunder by each Lender, the Class and Type thereof and, in
the case of each Eurodollar Loan, the Interest Period applicable
thereto, (iii) the date of each continuation thereof pursuant to
Section 2.7, (iv)
the date of each conversion of all or a portion thereof to another
Type pursuant to Section
2.7, (v) the date and amount of any principal or interest
due and payable or to become due and payable from the Borrower to
each Lender hereunder in respect of such Loans and (vi) both the
date and amount of any sum received by the Administrative Agent
hereunder from the Borrower in respect of the Loans and each
Lender’s Pro Rata Share thereof. The entries made in such
records shall be prima
facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, that the failure or
delay of any Lender or the Administrative Agent in maintaining or
making entries into any such record or any error therein shall not
in any manner affect the obligation of the Borrower to repay the
Loans (both principal and unpaid accrued interest) of such Lender
in accordance with the terms of this Agreement.

 


(b)           This
Agreement evidences the obligation of the Borrower to repay the
Loans and is being executed as a “noteless” credit
agreement. However, at the request of any Lender (including the
Swingline Lender) at any time, the Borrower agrees that it will
prepare, execute and deliver to such Lender a promissory note
payable to the order of such Lender in the form of Exhibit 2.10 (a
“Note”). Thereafter, the
Loans evidenced by such promissory note and interest thereon shall
at all times (including after assignment permitted hereunder) be
represented by one or more promissory notes in such form payable to
the order of the payee named therein (or, if such promissory note
is a registered note, to such payee and its registered
assigns).

 


Section
2.11          
Optional
Prepayments. The Borrower shall have the right at any time
and from time to time to prepay any Borrowing, in whole or in part,
without premium or penalty, by giving irrevocable written notice
(or telephonic notice promptly confirmed in writing) except that
such notice shall be revocable if a prepayment is being made in
anticipation of concluding a financing arrangement, and the
Borrower is ultimately unable to secure such financing arrangement
to the Administrative Agent no later than (a) in the case of
prepayment of any Eurodollar Borrowing, 11:00 a.m. not less than
three (3) Business Days prior to any such prepayment, (b) in the
case of any prepayment of any Base Rate Borrowing or LIBOR Index
Rate Borrowing, 11:00 a.m. on the date of such prepayment, and (c)
in the case of Borrowings of Swingline Loans, 11:00 a.m. on the
date of such prepayment. Each such notice shall be irrevocable and
shall specify the proposed date of such prepayment and the
principal amount of each Borrowing or portion thereof to be
prepaid. Upon receipt of any such notice, the Administrative Agent
shall promptly notify each affected Lender of the contents thereof
and of such Lender’s Pro Rata Share of any such prepayment.
If such notice is given, the aggregate amount specified in such
notice shall be due and payable on the date designated in such
notice, together with accrued interest to such date on the amount
so prepaid in accordance with Section 2.13(e); provided, that if a Eurodollar
Borrowing is prepaid on a date other than the last day of an
Interest Period applicable thereto, the Borrower shall also pay all
amounts required pursuant to Section 2.19. Each partial
prepayment of any Loan (other than a Swingline Loan) shall be in an
amount that would be permitted in the case of an advance of a
Revolving Borrowing of the same Type pursuant to Section 2.3 or in the case of a
Swingline Loan pursuant to Section 2.4. Each prepayment of
a Borrowing shall be applied ratably to the Loans comprising such
Borrowing, and in the case of a prepayment of the Term Loan A or
any Incremental Term Loan, ratably to the Term Loan A and all
outstanding Incremental Term Loans, then to principal installments
of the Term Loan A and all outstanding Incremental Term Loans as
directed by the Borrower.

 


Section
2.12            
Mandatory
Prepayments.

 




 

40








 






(a)           
Immediately upon receipt by the Borrower or any of its Domestic
Subsidiaries of Net Cash Proceeds of any Asset Sale or Recovery
Event in excess of (i) $1,000,000, with respect to any individual
Asset Sale or Recovery Event (or series of related Asset Sales or
Recovery Events), or (ii) $2,500,000 in any Fiscal Year with
respect to all such Asset Sales or Recovery Events, respectively,
the Borrower shall prepay the Obligations in accordance with
Section 2.12(d) in
an amount equal to such Net Cash Proceeds, in each case, to the
extent such Net Cash Proceeds are not reinvested or committed to be
reinvested in assets (excluding current assets as classified in
accordance with GAAP) within one hundred eighty (180) days of the
date of such Asset Sale or Recovery Event and, if committed to be
reinvested, actually reinvested in assets (excluding current assets
as classified in accordance with GAAP) within one hundred eighty
(180) days after the date of such commitment (it being understood
that such prepayment shall be due immediately upon the expiration
of the applicable period of one hundred eighty (180)
days).

 


(b)           Immediately
upon the receipt by the Borrower or any of its Subsidiaries of Net
Cash Proceeds of any issuance of Indebtedness (other than
Indebtedness permitted under Section 7.1), the Borrower
shall prepay the Obligations in accordance with Section 2.12(d) in an amount
equal to such Net Cash Proceeds.

 


(c)           Immediately
upon the receipt by the Borrower of Net Cash Proceeds from any
Specified Equity Contribution, the Borrower shall prepay the
Obligations in accordance with Section 2.12(d) in an amount
equal to such Net Cash Proceeds.

 


(d)           Any
prepayments made by the Borrower pursuant to Sections 2.12(a), (b) or (c) above shall be applied as
follows: first, to
Administrative Agent’s fees and reimbursable expenses then
due and payable pursuant to any of the Loan Documents; second, to all reimbursable
expenses of the Lenders and all fees and reimbursable expenses of
the Issuing Banks then due and payable pursuant to any of the Loan
Documents, pro rata to the Lenders and the Issuing Banks based on
their respective Pro Rata Shares of such fees and expenses;
third, to interest
and fees then due and payable hereunder, pro rata to the Lenders
based on their respective Pro Rata Shares of such interest and
fees; fourth, to
the principal balance of the Term Loans (on a pro rata basis) until
the same shall have been paid in full, pro rata to the Lenders
based on their Pro Rata Shares thereof and applied first, to the next four (4)
installments thereof and then, to the remaining
principal installments thereof on a pro rata basis until paid in
full; fifth, to the
principal balance of the Swingline Loans, until the same shall have
been paid in full, to the Swingline Lender, sixth, to the principal balance
of the Revolving Loans, until the same shall have been paid in
full, pro rata to the Lenders based on their respective Revolving
Commitments and seventh, to Cash Collateralize
the Letters of Credit in an amount in cash equal to the LC Exposure
as of such date plus any accrued and unpaid fees thereon. The
Revolving Commitments of the Lenders shall not be permanently
reduced by the amount of any prepayments made pursuant to
clauses
fifth through
seventh
above.

 


(e)           If
at any time the Revolving Credit Exposure of all Lenders exceeds
the Aggregate Revolving Commitments, as reduced pursuant to
Section 2.8 or
otherwise, the Borrower shall immediately repay Swingline Loans and
Revolving Loans in an amount equal to such excess, together with
all accrued and unpaid interest on such excess amount and any
amounts due under Section
2.19. Each prepayment shall be applied first to the
Swingline Loans to the full extent thereof, second to the Base Rate
Loans and LIBOR Index Rate Loans to the full extent thereof, and
finally to Eurodollar Loans to the full extent thereof. If after
giving effect to prepayment of all Swingline Loans and Revolving
Loans, the Revolving Credit Exposure of all Lenders exceeds the
Aggregate Revolving Commitments, the Borrower shall Cash
Collateralize its reimbursement obligations with respect to all
Letters of Credit in an amount equal to such excess plus any
accrued and unpaid fees thereon.

 


Section
2.13         
Interest on
Loans.

 




 

41








 






 

 


(a)           The
Borrower shall pay interest on (i) each Base Rate Loan at the Base
Rate plus the
Applicable Margin in effect from time to time, (ii) each LIBOR
Index Rate Loan at the One Month LIBOR Index Rate plus the Applicable Margin in
effect from time to time and (iii) each Eurodollar Loan at the
Adjusted LIBOR for the applicable Interest Period in effect for
such Loan plus the Applicable Margin in effect from time to
time.

 


(b)           The
Borrower shall pay interest on each Swingline Loan at the Base Rate
plus the Applicable
Margin in effect from time to time.

 


(c)           The
Borrower shall pay interest on each Incremental Term Loan as
provided in the definitive documentation establishing such
Incremental Term Loan.

 


(d)           Notwithstanding
clauses (a),
(b) and
(c) above, if an
Event of Default has occurred and is continuing, at the request of
the Required Lenders, or automatically in the case of an Event of
Default under Sections
8.1(a), (g)
or (h), the
Borrower shall pay interest (“Default Interest”) with
respect to all Eurodollar Loans at the rate per annum equal to
2.00% above the otherwise applicable interest rate for such
Eurodollar Loans for the then-current Interest Period until the
last day of such Interest Period, and thereafter, and with respect
to all Base Rate Loans, LIBOR Index Rate Loans and all other
Obligations hereunder (other than Loans), at the rate per annum
equal to 2.00% above the otherwise applicable interest rate for
Base Rate Loans or LIBOR Index Rate Loans, as the case may
be.

 


(e)           Interest
on the principal amount of all Loans shall accrue from and
including the date such Loans are made to but excluding the date of
any repayment thereof. Interest on all outstanding Base Rate Loans,
LIBOR Index Rate Loans and Swingline Loans shall be payable
quarterly in arrears on the last day of each March, June, September
and December and on the Revolving Commitment Termination Date or
the Maturity Date, as the case may be. Interest on all outstanding
Eurodollar Loans shall be payable on the last day of each Interest
Period applicable thereto, and, in the case of any Eurodollar Loans
having an Interest Period in excess of three months, on each day
which occurs every three (3) months after the initial date of such
Interest Period, and on the Revolving Commitment Termination Date
or the Maturity Date, as the case may be. Interest on any Loan
which is converted into a Loan of another Type or which is repaid
or prepaid shall be payable on the date of such conversion or on
the date of any such repayment or prepayment (on the amount repaid
or prepaid) thereof. All Default Interest shall be payable on
demand.

 


(f)           
The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the
Borrower and the Lenders of such rate in writing (or by telephone,
promptly confirmed in writing). Any such determination shall be
conclusive and binding for all purposes, absent manifest
error.

 


Section
2.14           
Fees.

 


(a)           The
Borrower shall pay to the Administrative Agent for its own account
fees in the amounts and at the times previously agreed upon in
writing by the Borrower and the Administrative Agent.

 


(b)           The
Borrower agrees to pay to the Administrative Agent for the account
of each Lender a commitment fee (the “Commitment Fee”), which
shall accrue at the Applicable Margin on the daily amount of the
unused Revolving Commitment of such Lender during the Availability
Period. For purposes of computing the Commitment Fee with respect
to the Revolving Commitments, the Revolving Commitment of each
Lender shall be deemed used to the extent of the outstanding
Revolving Loans and LC Exposure, but not Swingline Exposure, of
such Lender.

 




 

42








 






(c)           The
Borrower agrees to pay (i) to the Administrative Agent, for the
account of each Lender, a letter of credit fee with respect to its
participation in each Letter of Credit (the “Letter of Credit Fee”),
which shall accrue at a rate per annum equal to the Applicable
Margin then in effect on the average daily amount of such
Lender’s LC Exposure attributable to such Letter of Credit
during the period from and including the date of issuance of such
Letter of Credit to but excluding the date on which such Letter of
Credit expires or is drawn in full (such Letter of Credit Fee shall
continue to accrue on any LC Exposure that remains outstanding
after the Revolving Commitment Termination Date) and (ii) to the
applicable Issuing Bank for its own account a fronting fee, which
shall accrue at the rate set forth in the Fee Letter or other
written agreement between the applicable Issuing Bank and the
Borrower, as applicable, on the average daily amount of the LC
Exposure during the Availability Period (or until the date that
such Letter of Credit is irrevocably cancelled, whichever is
later), as well as the applicable Issuing Bank’s standard
fees with respect to issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder.
Notwithstanding the foregoing, if the Default Interest has been
imposed pursuant to Section 2.13(d), the rate per
annum used to calculate the Letter of Credit Fee pursuant to
clause (i) above
shall automatically be increased by 2.00%.

 


(d)           The
Borrower shall pay on the Effective Date to the Administrative
Agent and its affiliates all fees in the Fee Letter that are due
and payable on the Effective Date. The Borrower shall pay on the
Effective Date to the Lenders all upfront fees previously agreed in
writing.

 


(e)           Accrued
fees under clauses
(b) and (c)
above shall be payable quarterly in arrears on the last day of each
March, June, September and December, commencing on the first such
date to occur after the Effective Date and on the Revolving
Commitment Termination Date (and if later, the date the Loans and
LC Exposure shall be repaid in their entirety); provided further, that any such fees
accruing after the Revolving Commitment Termination Date shall be
payable on demand.

 


(f)           Anything
herein to the contrary notwithstanding, during such period as a
Lender is a Defaulting Lender, such Defaulting Lender will not be
entitled to Commitment Fees during such period pursuant to
Section 2.14(b) or
Letter of Credit Fees accruing during such period pursuant to
Section 2.14(c)
(without prejudice to the rights of the Lenders other than
Defaulting Lenders in respect of such fees), provided that (a) to the extent
that a portion of the LC Exposure of such Defaulting Lender is
reallocated to the Non-Defaulting Lenders pursuant to Section 2.26, such fees that
would have accrued for the benefit of such Defaulting Lender will
instead accrue for the benefit of and be payable to such
Non-Defaulting Lenders, pro rata in accordance with their
respective Revolving Commitments and (b) to the extent any portion
of such LC Exposure cannot be so reallocated, such fees will
instead accrue for the benefit of, and be payable to, the
applicable Issuing Bank. The pro rata payment provisions of
Section 2.21 shall
automatically be deemed adjusted to reflect the provisions of this
clause
(f).

 


Section
2.15         
Computation of Interest
and Fees.

 


Interest hereunder
based on the Administrative Agent’s prime lending rate shall
be computed on the basis of a year of 365 days (or 366 days in a
leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other
interest and all fees payable hereunder shall be computed on the
basis of a year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last day). Each
determination by the Administrative Agent of an interest rate or
fee hereunder shall be made in good faith and, except for manifest
error, shall be final, conclusive and binding for all
purposes.

 




 

43








 






 


Section
2.16           
Inability to Determine
Interest Rates. If prior to the commencement of any Interest
Period for any Eurodollar Borrowing,

 


(a)         
the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower absent manifest
error) that, by reason of circumstances affecting the relevant
interbank market, adequate and reasonable means do not exist for
ascertaining the Adjusted LIBOR for such Interest Period or the One
Month LIBOR Index Rate, or

 


(b)           the
Administrative Agent shall have received notice from the Required
Lenders that the Adjusted LIBOR does not adequately and fairly
reflect the cost to such Lenders of making, funding or maintaining
their (or its, as the case may be) Eurodollar Loans for such
Interest Period,

 


the
Administrative Agent shall give written notice (or telephonic
notice, promptly confirmed in writing) to the Borrower and to the
Lenders as soon as practicable thereafter. Until the Administrative
Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (A) the
obligations of the Lenders to make Eurodollar Loans or LIBOR Index
Rate Loans, as applicable, or to continue or convert outstanding
Loans as or into Eurodollar Loans or LIBOR Index Rate Loans, as
applicable, shall be suspended and (B) all such affected Loans
shall be converted into Base Rate Loans on the last day of the then
current Interest Period applicable thereto unless the Borrower
prepays such Loans in accordance with this Agreement. Unless the
Borrower notifies the Administrative Agent at least one Business
Day before the date of any Eurodollar Borrowing for which a Notice
of Revolving Borrowing or Notice of Conversion/Continuation has
previously been given that it elects not to borrow on such date,
then such Revolving Borrowing shall be made as a Base Rate
Borrowing.


 


Section
2.17         Illegality. If any Change in
Law shall make it unlawful or impossible for any Lender to make,
maintain or fund any Eurodollar Loan or LIBOR Index Rate Loan and
such Lender shall so notify the Administrative Agent, the
Administrative Agent shall promptly give notice thereof to the
Borrower and the other Lenders, whereupon until such Lender
notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make Eurodollar Loans or LIBOR Index
Rate Loans, or to continue or convert outstanding Loans as or into
Eurodollar Loans or LIBOR Index Rate Loans, shall be suspended. In
the case of the making of a Eurodollar Borrowing or LIBOR Index
Rate Borrowing, such Lender’s Revolving Loan shall be made as
a Base Rate Loan as part of the same Revolving Borrowing and, with
respect to Eurodollar Loans, for the same Interest Period, and if
the affected Eurodollar Loan or LIBOR Index Rate Loan is then
outstanding, such Loan shall be converted to a Base Rate Loan
immediately, in the case of a Loan that is a LIBOR Index Rate Loan,
and, in the case of a Loan that is a Eurodollar Loan, either (a) on
the last day of the then current Interest Period applicable to such
Eurodollar Loan if such Lender may lawfully continue to maintain
such Loan to such date or (b) immediately if such Lender shall
determine that it may not lawfully continue to maintain such
Eurodollar Loan to such date. Notwithstanding the foregoing, the
affected Lender shall, prior to giving such notice to the
Administrative Agent, designate a different Applicable Lending
Office if such designation would avoid the need for giving such
notice and if such designation would not otherwise be
disadvantageous to such Lender in the good faith exercise of its
discretion.

 

 




 

44








 






 


Section
2.18         
Increased
Costs.

 


(a)           If
any Change in Law shall:

 


(i)           impose,
modify or deem applicable any reserve, special deposit or similar
requirement that is not otherwise included in the determination of
the Adjusted LIBOR or the One Month LIBOR Index Rate hereunder
against assets of, deposits with or for the account of, or credit
extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBOR or the One Month LIBOR Index Rate)
or any Issuing Bank;

 


(ii)           subject
any Recipient to any Taxes (other than (A) Indemnified Taxes, (B)
Taxes described in clauses
(b) through (d) of the definition of
Excluded Taxes and (C) Connection Income Taxes) on its loans, loan
principal, letters of credit, commitments, or other obligations, or
its deposits, reserves, other liabilities or capital attributable
thereto; or

 


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

 


and the
result of either of the foregoing is to increase the cost to such
Lender of making, converting into, continuing or maintaining a
Eurodollar Loan or LIBOR Index Rate Loan or to increase the cost to
such Lender or such Issuing Bank of participating in or issuing any
Letter of Credit or to reduce the amount received or receivable by
such Lender or such Issuing Bank hereunder (whether of principal,
interest or any other amount), then the Borrower shall promptly
pay, upon written notice from and demand by such Lender on the
Borrower (with a copy of such notice and demand to the
Administrative Agent), to the Administrative Agent for the account
of such Lender, within five (5) Business Days after the date of
such notice and demand, additional amount or amounts sufficient to
compensate such Lender or such Issuing Bank, as the case may be,
for such additional costs incurred or reduction
suffered.

 


(b)           If
any Lender or any Issuing Bank shall have determined that on or
after the date of this Agreement any Change in Law regarding
capital or liquidity requirements has or would have the effect of
reducing the rate of return on such Lender’s or such Issuing
Bank’s capital (or on the capital of the Parent Company of
such Lender or such Issuing Bank) as a consequence of its
obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender, such Issuing Bank
or the Parent Company of such Lender or such Issuing Bank could
have achieved but for such Change in Law (taking into consideration
such Lender’s or such Issuing Bank’s policies or the
policies of the Parent Company of such Lender or such Issuing Bank
with respect to capital adequacy) then, from time to time, within
five (5) Business Days after receipt by the Borrower of written
demand by such Lender (with a copy thereof to the Administrative
Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender, such Issuing Bank or the
Parent Company of such Lender or such Issuing Bank for any such
reduction suffered.

 




 

45








 






(c)           A
certificate of a Lender or an Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender, such Issuing Bank
or the Parent Company of such Lender or such Issuing Bank, as the
case may be, specified in clause (a) or (b) of this Section 2.18 shall be delivered
to the Borrower (with a copy to the Administrative Agent) and shall
be conclusive, absent manifest error. The Borrower shall pay any
such Lender or such Issuing Bank, as the case may be, such amount
or amounts within five (5) Business Days after receipt
thereof.

 


(d)           Failure
or delay on the part of any Lender or any Issuing Bank to demand
compensation pursuant to this Section 2.18 shall not
constitute a waiver of such Lender’s or such Issuing
Bank’s right to demand such compensation; provided that the Borrower
shall not be required to compensate a Lender or an Issuing Bank
under this Section for any increased costs or reductions incurred
more than nine (9) months prior to the date that such Lender or
such Issuing Bank delivers the certificate contemplated by
Section 2.18(c);
provided,
further, that if
the Change in Law giving rise to such increased costs or reductions
is retroactive, then such nine-month period shall be extended to
include the period of such retroactive effect.

 


Section
2.19          
Funding Indemnity.
In the event of (a) the payment of any principal of a Eurodollar
Loan other than on the last day of the Interest Period applicable
thereto (including as a result of an Event of Default), (b) the
conversion or continuation of a Eurodollar Loan other than on the
last day of the Interest Period applicable thereto, or (c) the
failure by the Borrower to borrow, prepay, convert or continue any
Eurodollar Loan on the date specified in any applicable notice
(regardless of whether such notice is withdrawn or revoked), then,
in any such event, the Borrower shall compensate each Lender,
within five (5) Business Days after written demand from such
Lender, for any loss, cost or expense (excluding loss of
anticipated profit) attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense shall be deemed to
include an amount determined by such Lender to be the excess, if
any, of (A) the amount of interest that would have accrued on the
principal amount of such Eurodollar Loan if such event had not
occurred at the Adjusted LIBOR applicable to such Eurodollar Loan
(but, for purposes of clarity, not the Applicable Margin applicable
thereto) for the period from the date of such event to the last day
of the then current Interest Period therefor (or in the case of a
failure to borrow, convert or continue, for the period that would
have been the Interest Period for such Eurodollar Loan) over (B)
the amount of interest that would accrue on the principal amount of
such Eurodollar Loan for the same period if the Adjusted LIBOR were
set on the date such Eurodollar Loan was prepaid or converted or
the date on which the Borrower failed to borrow, convert or
continue such Eurodollar Loan. A certificate as to any additional
amount payable under this Section 2.19 submitted to
the Borrower by any Lender (with a copy to the Administrative
Agent) shall be conclusive, absent manifest error.

 


Section
2.20         
Taxes.

 


(a)           For
purposes of this Section
2.20, the term “Lender” includes any Issuing
Bank and the term “applicable Law” includes
FATCA.

 




 

46








 






(b)        
Any and all payments by or on account of any obligation of any Loan
Party under any Loan Document shall be made without deduction or
withholding for any Taxes, except as required by applicable Law. If
any applicable Law (as determined in the good faith discretion of
an applicable Withholding Agent) requires the deduction or
withholding of any Tax from any such payment by a Withholding
Agent, then the applicable Withholding Agent shall be entitled to
make such deduction or withholding and shall timely pay the full
amount deducted or withheld to the relevant Governmental Authority
in accordance with applicable Law and, if such Tax is an
Indemnified Tax, then the sum payable by the applicable Loan Party
shall be increased as necessary so that after making such deduction
or withholding (including such deductions and withholdings
applicable to additional sums payable under this Section 2.20) the applicable
Recipient shall receive an amount equal to the sum it would have
received had no such deduction or withholding been
made.

 


(c)           In
addition, the Loan Parties shall timely pay to the relevant
Governmental Authority in accordance with applicable Law, or at the
option of the Administrative Agent timely reimburse it for the
payment of, any Other Taxes.

 


(d)           The
Loan Parties shall jointly and severally indemnify each Recipient,
within ten (10) Business Days after demand therefor, for the full
amount of any Indemnified Taxes (including Indemnified Taxes
imposed or asserted on or attributable to amounts payable under
this Section 2.20)
payable or paid by such Recipient or required to be withheld or
deducted from a payment to such Recipient and any reasonable
expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as
to the amount of such payment or liability delivered to the
Borrower by a Lender (with a copy to the Administrative Agent), or
by the Administrative Agent on its own behalf or on behalf of a
Lender, shall be conclusive absent manifest error.

 


(e)           Each
Lender shall severally indemnify the Administrative Agent, within
ten (10) Business Days after demand therefor, for (i) any
Indemnified Taxes attributable to such Lender (but only to the
extent that any Loan Party has not already indemnified the
Administrative Agent for such Indemnified Taxes and without
limiting the obligation of the Loan Parties to do so), (ii) any
Taxes attributable to such Lender’s failure to comply with
the provisions of Section
11.4(e) relating to the maintenance of a Participant
Register and (iii) any Excluded Taxes attributable to such Lender,
in each case, that are payable or paid by the Administrative Agent
in connection with any Loan Document, and any reasonable expenses
arising therefrom or with respect thereto, whether or not such
Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such
payment or liability delivered to any Lender by the Administrative
Agent shall be conclusive absent manifest error. Each Lender hereby
authorizes the Administrative Agent to set off and apply any and
all amounts at any time owing to such Lender under any Loan
Document or otherwise payable by the Administrative Agent to the
Lender from any other source against any amount due to the
Administrative Agent under this clause (e).

 


(f)           As
soon as practicable after any payment of Taxes by any Loan Party to
a Governmental Authority pursuant to this Section 2.20(f), such Loan
Party shall deliver to the 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 the Administrative Agent.

 




 

47








 






 


(g)           (i)
Any Lender that is entitled to an exemption from or reduction of
withholding Tax with respect to payments made under any Loan
Document shall deliver to the Borrower and the Administrative
Agent, at the time or times reasonably requested by the Borrower or
the Administrative Agent, such properly completed and executed
documentation reasonably requested by the Borrower or the
Administrative Agent as will permit such payments to be made
without withholding or at a reduced rate of withholding. In
addition, any Lender, if reasonably requested by the Borrower or
the Administrative Agent, shall deliver such other documentation
prescribed by applicable Law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or
the Administrative Agent to determine whether or not such Lender is
subject to backup withholding or information reporting
requirements. Notwithstanding anything to the contrary in the
preceding two sentences, the completion, execution and submission
of such documentation (other than such documentation set forth in
Section
2.20(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be
required if in the Lender’s reasonable judgment such
completion, execution or submission would subject such Lender to
any material unreimbursed cost or expense or would materially
prejudice the legal or commercial position of such
Lender.

 


(ii)           Without
limiting the generality of the foregoing, in the event that the
Borrower is a U.S. Person,

 


(A)           any
Lender that is a U.S. Person shall deliver to the Borrower and the
Administrative Agent on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower or the
Administrative Agent), executed originals of IRS Form W-9
certifying that such Lender is exempt from U.S. federal backup
withholding tax;

 


(B)           any
Foreign Lender shall, to the extent it is legally entitled to do
so, deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or
prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent),
whichever of the following is applicable:

 


(i)           in
the case of a Foreign Lender claiming the benefits of an income tax
treaty to which the United States is a party (x) with respect to
payments of interest under any Loan Document, executed originals of
IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing
an exemption from, or reduction of, U.S. federal withholding Tax
pursuant to the “interest” article of such tax treaty
and (y) with respect to any other applicable payments under any
Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable,
establishing an exemption from, or reduction of, U.S. federal
withholding Tax pursuant to the “business profits” or
“other income” article of such tax treaty;

 


(ii)           executed
originals of IRS 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 Code, (x) a
certificate substantially in the form of Exhibit 2.20-1 to the effect
that such Foreign Lender is not a “bank” within the
meaning of Section 881(c)(3)(A) of the Code, a “10 percent
shareholder” of the Borrower within the meaning of Section
881(c)(3)(B) of the Code, or a “controlled foreign
corporation” described in Section 881(c)(3)(C) of the Code (a
“U.S. Tax Compliance
Certificate”) and (y) executed originals of IRS Form
W-8BEN or IRS Form W-8BEN-E, as applicable; or

 




 

48








 






 


(iv)           to
the extent a Foreign Lender is not the beneficial owner, executed
originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS
Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax
Compliance Certificate substantially in the form of Exhibit 2.20-2 or Exhibit 2.20-3, IRS Form W-9,
and/or other certification documents from each beneficial owner, as
applicable; provided that if the Foreign
Lender is a partnership and one or more direct or indirect partners
of such Foreign Lender are claiming the portfolio interest
exemption, such Foreign Lender may provide a U.S. Tax Compliance
Certificate substantially in the form of Exhibit 2.20-4 on behalf of
each such direct and indirect partner;

 


(C)           any
Foreign Lender shall, to the extent it is legally entitled to do
so, deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or
prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent),
executed originals of any other form prescribed by applicable Law
as a basis for claiming exemption from or a reduction in U.S.
federal withholding Tax, duly completed, together with such
supplementary documentation as may be prescribed by applicable Law
to permit the Borrower or the Administrative Agent to determine the
withholding or deduction required to be made; and

 


(D)           if
a payment made to a Lender under any Loan Document would be subject
to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements
of FATCA (including those contained in Section 1471(b) or 1472(b)
of the Code, as applicable), such Lender shall deliver to the
Borrower and the Administrative Agent at the time or times
prescribed by law and at such time or times reasonably requested by
the Borrower or the Administrative Agent such documentation
prescribed by applicable Law (including as prescribed by Section
1471(b)(3)(C)(i) of the Code) and such additional documentation
reasonably requested by the Borrower or the Administrative Agent as
may be necessary for the Borrower and the Administrative Agent to
comply with their obligations under FATCA and to determine that
such Lender has complied with such Lender’s obligations under
FATCA or to determine the amount to deduct and withhold from such
payment. Solely for purposes of this clause (D), “FATCA”
shall include any amendments made to FATCA after the date of this
Agreement.

 


Each
Lender agrees that if any form or certification it previously
delivered expires or becomes obsolete or inaccurate in any respect,
it shall update such form or certification or promptly notify the
Borrower and the Administrative Agent in writing of its legal
inability to do so.

 


(h)           If
any Recipient determines, in its sole discretion, that it has
received a refund of any Taxes as to which it has been indemnified
pursuant to this Section
2.20 (including by the payment of additional amounts
pursuant to this Section
2.20), it shall pay to the indemnifying party an amount
equal to such refund (but only to the extent of indemnity payments
made under this Section
2.20 with respect to the Taxes giving rise to such refund),
net of all out-of-pocket expenses (including Taxes) of such
indemnified party and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such
refund). Such indemnifying party, upon the request of such
indemnified party, shall repay to such indemnified party the amount
paid over pursuant to this clause (h) (plus any penalties,
interest or other charges imposed by the relevant Governmental
Authority) in the event that such indemnified party is required to
repay such refund to such Governmental Authority. Notwithstanding
anything to the contrary in this clause (h), in no event will
the indemnified party be required to pay any amount to an
indemnifying party pursuant to this clause (h) the payment of which
would place the indemnified party in a less favorable net after-Tax
position than the indemnified party would have been in if the Tax
subject to indemnification and giving rise to such refund had not
been deducted, withheld or otherwise imposed and the
indemnification payments or additional amounts with respect to such
Tax had never been paid. This clause (h) shall not be
construed to require any indemnified party to make available its
Tax returns (or any other information relating to its Taxes that it
deems confidential) to the indemnifying party or any other
Person.

 




 

49








 






 


Section
2.21         Payments Generally; Pro Rata
Treatment; Sharing of Set-offs.

 


(a)           The
Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of
LC Disbursements, or of amounts payable under Sections 2.18, 2.19 or 2.20, or otherwise) prior to
12:00 noon on the date when due, in immediately available funds,
free and clear of any defenses, rights of set-off, counterclaim, or
withholding or deduction of taxes. Any amounts received after such
time on any date may, in the discretion of the Administrative
Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such
payments shall be made to the Administrative Agent at the Payment
Office, except payments to be made directly to the applicable
Issuing Bank or Swingline Lender as expressly provided herein and
except that payments pursuant to Sections 2.18, 2.19 and 2.20 and 11.3 shall be made directly to
the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day
that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be made payable
for the period of such extension. All payments hereunder shall be
made in Dollars.

 


(b)           If
at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied: first, to Administrative
Agent’s fees and reimbursable expenses then due and payable
pursuant to any of the Loan Documents; second, to all reimbursable
expenses of the Lenders and all fees and reimbursable expenses of
the Issuing Banks then due and payable pursuant to any of the Loan
Documents, pro rata to the Lenders and the Issuing Banks based on
their respective pro rata shares of such fees and expenses;
third, to interest
and fees then due and payable hereunder, pro rata to the Lenders
based on their respective pro rata shares of such interest and
fees; and fourth,
to the payment of principal of the Loans and unreimbursed LC
Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such
parties.

 

 




 

50








 






 


(c)           If
any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Loans or participations in
LC Disbursements or Swingline Loans that would result in such
Lender receiving payment of a greater proportion of the aggregate
amount of its Revolving Credit Exposure, Term Loans and accrued
interest and fees thereon than the proportion received by any other
Lender with respect to its Revolving Credit Exposure or Term Loans,
then the Lender receiving such greater proportion shall purchase
(for cash at face value) participations in the Revolving Credit
Exposure and Term Loans of other Lenders to the extent necessary 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 Revolving
Credit Exposure and Term Loans; 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
clause (c) shall
not be construed to apply to any payment made by the Borrower
pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its
Revolving Credit Exposure and Term Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this clause (c) shall apply). The
Borrower 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 the Borrower rights of set-off and counterclaim with
respect to such participation as fully as if such Lender were a
direct creditor of the Borrower in the amount of such
participation.

 


(d)           Unless
the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing
Banks hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Lenders or the Issuing
Banks, as the case may be, the amount or amounts due. In such
event, if the Borrower has not in fact made such payment, then each
of the Lenders or the Issuing Banks, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or such 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
the Administrative Agent, at the greater of the Federal Funds Rate
and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.

 


(e)           Notwithstanding
anything herein to the contrary, any amount paid by the Borrower
for the account of a Defaulting Lender under this Agreement
(whether on account of principal, interest, fees, reimbursement of
LC Disbursements, indemnity payments or other amounts) will be
retained by the Administrative Agent in a segregated non-interest
bearing account until the Revolving Commitment Termination Date at
which time the funds in such account will be applied by the
Administrative Agent, to the fullest extent permitted by Law, in
the following order of priority: first to the payment of any
amounts owing by such Defaulting Lender to the Administrative Agent
under this Agreement, second to the payment of any
amounts owing by such Defaulting Lender to the Issuing Banks and
the Swingline Lender under this Agreement, third to the payment of
interest due and payable to the Lenders hereunder that are not
Defaulting Lenders, ratably among them in accordance with the
amounts of such interest then due and payable to them, fourth to the payment of fees
then due and payable to the Lenders hereunder that are not
Defaulting Lenders, ratably among them in accordance with the
amounts of such fees then due and payable to them, fifth to pay principal and
unreimbursed LC Disbursements then due and payable to the Lenders
hereunder that are not Defaulting Lenders, ratably in accordance
with the amounts thereof then due and payable to them, sixth to the ratable payment of
other amounts then due and payable to the Lenders hereunder that
are not Defaulting Lenders, and seventh to pay amounts owing
under this Agreement to such Defaulting Lender or as a court of
competent jurisdiction may otherwise direct.

 


Section
2.22        Letters of Credit.

 




 

51








 






 


(a)         
During the Availability Period, the applicable Issuing Bank, in
reliance upon the agreements of the other Lenders pursuant to
Section 2.22(d) and
2.22(e), may, in
its sole discretion, issue, at the request of the Borrower, Letters
of Credit for the account of the Borrower or any Subsidiary on the
terms and conditions hereinafter set forth; provided, that (i) each Letter
of Credit shall expire on the earlier of (A) the date one year
after the date of issuance of such Letter of Credit (or in the case
of any renewal or extension thereof, one year after such renewal or
extension) and (B) the date that is five (5) Business Days prior to
the Revolving Commitment Termination Date, unless the requirement
of Section 2.22(l)
has been satisfied; (ii) each Letter of Credit shall be in a stated
amount of at least $100,000 (or such lesser amount as the
applicable Issuing Bank may agree in its sole discretion); and
(iii) the Borrower may not request any Letter of Credit, if, after
giving effect to such issuance (A) the aggregate LC Exposure would
exceed the LC Commitment or (B) the aggregate Revolving Credit
Exposure of all Lenders would exceed the Aggregate Revolving
Commitments. Each Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the applicable Issuing
Bank without recourse a participation in each Letter of Credit
equal to such Lender’s Pro Rata Share of the aggregate amount
available to be drawn under such Letter of Credit (i) on the
Effective Date, with respect to all Existing Letters of Credit and
(ii) on the date of
issuance, with respect to all other Letters of Credit. Each issued
Letter of Credit (including the Existing Letters of Credit) shall
be deemed to utilize the Revolving Commitment of each Lender by an
amount equal to the amount of such participation. All Existing
Letters of Credit shall be deemed to have been issued pursuant
hereto, and from and after the Effective Date shall be subject to
and governed by the terms and conditions hereof; provided, for
purposes of clarity, that Existing Letter of Credit no. 68104784
may be renewed, extended and otherwise modified from time to time
in accordance with the terms and conditions of this
Agreement.

 


(b)           To
request the issuance of a Letter of Credit (or any amendment,
renewal or extension of an outstanding Letter of Credit), the
Borrower shall give the applicable Issuing Bank and the
Administrative Agent irrevocable written notice (which may be in
the form of a duly completed Letter of Credit Application) at least
three (3) Business Days prior to the requested date of such
issuance specifying the date (which shall be a Business Day) such
Letter of Credit is to be issued (or amended, extended or renewed,
as the case may be), the expiration date of such Letter of Credit,
the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit.
In addition to the satisfaction of the conditions in Article III, the issuance of
such Letter of Credit (or any amendment which increases the amount
of such Letter of Credit) will be subject to the further conditions
that such Letter of Credit shall be in such form and contain such
terms as the applicable Issuing Bank shall approve and that the
Borrower shall have executed and delivered any Issuer Documents as
the applicable Issuing Bank shall require; provided, that in the event of
any conflict between such applications, agreements or instruments
and this Agreement, the terms of this Agreement shall
control.

 


(c)           At
least two (2) Business Days prior to the issuance of any Letter of
Credit, the applicable Issuing Bank will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received such notice and if not, the
applicable Issuing Bank will provide the Administrative Agent with
a copy thereof. Unless the applicable Issuing Bank has received
notice from the Administrative Agent on or before 5:00 p.m. the
Business Day immediately preceding the date the applicable Issuing
Bank is to issue the requested Letter of Credit (i) directing the
applicable Issuing Bank not to issue the Letter of Credit because
such issuance is not then permitted hereunder because of the
limitations set forth in Section 2.22(a) or (ii) that
one or more conditions specified in Article III are not then
satisfied, then, subject to the terms and conditions hereof, the
applicable Issuing Bank shall, on the requested date, issue such
Letter of Credit in accordance with such Issuing Bank’s usual
and customary business practices.

 




 

52








 






 


(d)           The
applicable Issuing Bank shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly
following its receipt thereof. The applicable Issuing Bank shall
notify the Borrower and the Administrative Agent of such demand for
payment and whether such Issuing Bank has made or will make a LC
Disbursement thereunder; provided, that any failure to
give or delay in giving such notice shall not relieve the Borrower
of its obligation to reimburse the applicable Issuing Bank and the
Lenders with respect to such LC Disbursement. The Borrower shall be
irrevocably and unconditionally obligated to reimburse the
applicable Issuing Bank for any LC Disbursements paid by such
Issuing Bank in respect of such drawing, without presentment,
demand or other formalities of any kind. Unless the Borrower shall
have notified the applicable Issuing Bank and the Administrative
Agent prior to 11:00 a.m. on the Business Day immediately prior to
the date on which such drawing is honored that the Borrower intends
to reimburse the applicable Issuing Bank for the amount of such
drawing in funds other than from the proceeds of Revolving Loans,
the Borrower shall be deemed to have timely given a Notice of
Revolving Borrowing to the Administrative Agent requesting the
Lenders to make a Base Rate Borrowing on the date on which such
drawing is honored in an exact amount due to the applicable Issuing
Bank; provided,
that for purposes solely of such Borrowing, the conditions
precedent set forth in Section 3.2 hereof shall not be
applicable. The Administrative Agent shall notify the Lenders of
such Borrowing in accordance with Section 2.3, and each Lender
shall make the proceeds of its Base Rate Loan included in such
Borrowing available to the Administrative Agent for the account of
the applicable Issuing Bank in accordance with Section 2.6. The proceeds of
such Borrowing shall be applied directly by the Administrative
Agent to reimburse the applicable Issuing Bank for such LC
Disbursement.

 


(e)           If
for any reason a Base Rate Borrowing may not be (as determined in
the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender
(other than any Issuing Bank) shall be obligated to fund the
participation that such Lender purchased pursuant to clause (a) in an amount equal
to its Pro Rata Share of such LC Disbursement on and as of the date
which such Base Rate Borrowing should have occurred. Each
Lender’s obligation to fund its participation shall be
absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff,
counterclaim, recoupment, defense or other right that such Lender
or any other Person may have against the applicable Issuing Bank or
any other Person for any reason whatsoever, (ii) the existence of a
Default or an Event of Default or the termination of the Aggregate
Revolving Commitments, (iii) any adverse change in the condition
(financial or otherwise) of the Borrower or any of its
Subsidiaries, (iv) any breach of this Agreement by the Borrower or
any other Lender, (v) any amendment, renewal or extension of any
Letter of Credit or (vi) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing. On the
date that such participation is required to be funded, each Lender
shall promptly transfer, in immediately available funds, the amount
of its participation to the Administrative Agent for the account of
the applicable Issuing Bank. Whenever, at any time after the
applicable Issuing Bank has received from any such Lender the funds
for its participation in a LC Disbursement, the applicable Issuing
Bank (or the Administrative Agent on its behalf) receives any
payment on account thereof, the Administrative Agent or such
Issuing Bank, as the case may be, will distribute to such Lender
its Pro Rata Share of such payment; provided, that if such payment
is required to be returned for any reason to the Borrower or to a
trustee, receiver, liquidator, custodian or similar official in any
bankruptcy proceeding, such Lender will return to the
Administrative Agent or such Issuing Bank any portion thereof
previously distributed by the Administrative Agent or such Issuing
Bank to it.

 




 

53








 






 


(f)           To
the extent that any Lender shall fail to pay any amount required to
be paid pursuant to clauses (d) or (e) of this Section 2.22 on the due date
therefor, such Lender shall pay interest to the applicable Issuing
Bank (through the Administrative Agent) on such amount from such
due date to the date such payment is made at a rate per annum equal
to the Federal Funds Rate; provided, that if such Lender
shall fail to make such payment to such Issuing Bank within three
(3) Business Days of such due date, then, retroactively to the due
date, such Lender shall be obligated to pay interest on such amount
at the rate set forth in Section 2.13(d).

 


(g)           If
any Event of Default shall occur and be continuing, (x) on the
Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders demanding that its
reimbursement obligations with respect to the Letters of Credit be
Cash Collateralized pursuant to this clause (g), if such notice is
received by the Borrower prior to 2:30 p.m. and (y) on the
following Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders demanding that its
reimbursement obligations with respect to the Letters of Credit be
Cash Collateralized pursuant to this clause (g), if such notice is
received by the Borrower after 2:30 p.m. on the preceding Business
Day, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and
for the benefit of the Issuing Banks and the Lenders, an amount in
cash equal to 102% of the aggregate LC Exposure of all Lenders as
of such date plus any accrued and unpaid fees thereon; provided, that such obligation
to Cash Collateralize the reimbursement obligations of the Borrower
with respect to the Letters of Credit shall become effective
immediately, and such deposit shall become immediately due and
payable, without demand or notice of any kind, upon the occurrence
of any Event of Default with respect to the Borrower described in
clause (g) or
(h) of Section 8.1. Such deposit shall
be held by the Administrative Agent as Cash Collateral for the
payment and performance of the obligations of the Borrower under
this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal,
over such account. The Borrower agrees to execute any documents
and/or certificates to effectuate the intent of this clause (g). Other than any
interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower’s risk and expense,
such deposits shall not bear interest. Interest and profits, if
any, on such investments shall accumulate in such account. Moneys
in such account shall be applied by the Administrative Agent to
reimburse each applicable Issuing Bank for LC Disbursements for
which it had not been reimbursed and to the extent so applied,
shall be held for the satisfaction of the reimbursement obligations
of the Borrower for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated, with the consent of the
Required Lenders, be applied to satisfy other obligations of the
Borrower under this Agreement and the other Loan Documents. If the
Borrower is required to Cash Collateralize its reimbursement
obligations with respect to the Letters of Credit as a result of
the occurrence of an Event of Default, such cash collateral so
posted (to the extent not so applied as aforesaid) shall be
returned to the Borrower within three (3) Business Days after all
Events of Default have been cured or waived.

 


(h)           Upon
the request of any Lender, but no more frequently than quarterly,
each of the Issuing Banks shall deliver (through the Administrative
Agent) to each Lender and the Borrower a report describing the
aggregate Letters of Credit then outstanding. Upon the request of
any Lender from time to time, each of the Issuing Banks shall
deliver to such Lender any other information reasonably requested
by such Lender with respect to each Letter of Credit then
outstanding.

 


(i)           The
Borrower’s obligation to reimburse LC Disbursements hereunder
shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement
under all circumstances whatsoever and irrespective of any of the
following circumstances:

 




 

54








 






 


(i)       
    Any lack of validity or enforceability of any Letter
of Credit or this Agreement;

 


(ii)           The
existence of any claim, set-off, defense or other right which the
Borrower or any Subsidiary or Affiliate of the Borrower may have at
any time against a beneficiary or any transferee of any Letter of
Credit (or any Persons or entities for whom any such beneficiary or
transferee may be acting), any Lender (including any Issuing Bank)
or any other Person, whether in connection with this Agreement or
the Letter of Credit or any document related hereto or thereto or
any unrelated transaction;

 


(iii)           Any
draft or other document presented under a Letter of Credit proving
to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect;

 


(iv)           Payment
by the applicable Issuing Bank under a Letter of Credit against
presentation of a draft or other document to such Issuing Bank that
does not comply with the terms of such Letter of
Credit;

 


(v)           Any
other event or circumstance whatsoever, whether or not similar to
any of the foregoing, that might, but for the provisions of this
Section 2.22,
constitute a legal or equitable discharge of, or provide a right of
setoff against, the Borrower’s obligations hereunder;
or

 


(vi)           The
existence of a Default or an Event of Default.

 


Neither
the Administrative Agent, the Issuing Banks, the Lenders nor any
Related Party of any of the foregoing shall have any liability or
responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make
any payment thereunder (irrespective of any of the circumstances
referred to above), or any error, omission, interruption, loss or
delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit (including
any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from
causes beyond the control of the applicable Issuing Bank;
provided, that the
foregoing shall not be construed to excuse any Issuing Bank from
liability to the Borrower to the extent of any actual direct
damages (as opposed to special, indirect (including claims for lost
profits or other consequential damages), or punitive damages,
claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable Law) suffered by the Borrower that
are caused by such Issuing Bank’s failure to exercise due
care when determining whether drafts or other documents presented
under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree, that in the absence of gross negligence,
bad faith or willful misconduct on the part of the applicable
Issuing Bank (as finally determined by a court of competent
jurisdiction), such Issuing Bank shall be deemed to have exercised
due care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties
agree that, with respect to documents presented that appear on
their face to be in substantial compliance with the terms of a
Letter of Credit, the applicable Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any
notice or information to the contrary, or refuse to accept and make
payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.




 

55








 






 


(j)           Unless
otherwise expressly agreed by the applicable Issuing Bank and the
Borrower when a Letter of Credit is issued and subject to
applicable Laws, (i) each standby Letter of Credit shall be
governed by the “International Standby Practices 1998”
(or such later revision as may be published by the Institute of
International Banking Law & Practice on any date any Letter of
Credit may be issued), (ii) each documentary Letter of Credit shall
be governed by the Uniform Customs and Practices for Documentary
Credits (2007 Revision), International Chamber of Commerce
Publication No. 600 (or such later revision as may be published by
the International Chamber of Commerce on any date any Letter of
Credit may be issued) and (iii) the Borrower shall specify the
foregoing in each Letter of Credit Application submitted for the
issuance of a Letter of Credit.

 


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

 


(l)           Expiry
Dates Greater than One Year. If the expiry date of any
requested Letter of Credit (or any extension or renewal of any
Letter of Credit) would occur after the date that is five (5)
Business Days prior to the Revolving Commitment Termination Date,
such Letter of Credit shall be Cash Collateralized on or prior to
the date of issuance of such Letter of Credit (or such later date
as the applicable Issuing Bank may agree in its sole discretion) or
all the Lenders having Revolving Commitments have approved such
expiry date.

 


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

 


Section
2.23            
Increase of Commitments;
Additional Lenders.

 


The
Borrower shall have the right from time to time, upon at least five
(5) Business Days’ prior written notice to the Administrative
Agent (or twenty (20) days’ notice as set forth in
clause (l) below),
to increase the Aggregate Revolving Commitments or establish one or
more additional term loans (each such term loan, an
“Incremental Term
Loan”) by up to $50,000,000, provided,
that:

 


(a)           no
Default or Event of Default shall have occurred and be continuing
on the date on which such increase in the Aggregate Revolving
Commitments or Incremental Term Loan is to become
effective;

 


(b)           such
increase in the Aggregate Revolving Commitments or Incremental Term
Loan shall be in a minimum amount of $10,000,000 and in integral
multiples of $5,000,000 in excess thereof (or such lesser amounts
as the Administrative Agent may agree in its
discretion);

 




 

56








 






 


 


(c)           such
increase in the Aggregate Revolving Commitments or Incremental Term
Loan shall be effective only upon receipt by the Administrative
Agent of (x) additional Revolving Commitments in a corresponding
amount of such requested increase in the Aggregate Revolving
Commitments or Incremental Term Loan Commitments from either
existing Lenders and/or one or more other institutions that qualify
as assignees under Section
11.4 (each such institution, an “Additional Lender”) and
which are reasonably acceptable to the Borrower, the Administrative
Agent and, in the case of any increase in the Aggregate Revolving
Commitments, the Issuing Banks and Swingline Lender and (y)
documentation from each existing Lender or Additional Lender
providing an additional Revolving Commitment or Incremental Term
Loan Commitment evidencing its agreement to provide additional
Revolving Commitment or Incremental Term Loan Commitment and/or its
acceptance of the obligations under this Agreement in form and
substance reasonably acceptable to the Administrative
Agent;

 


(d)           the
Administrative Agent shall have received all documents (including
resolutions of the board of directors of the Loan Parties and
opinions of counsel to the Loan Parties, if required to be provided
by the Lenders, providing such additional Revolving Commitments or
such Incremental Term Loan Commitments) it may reasonably request
relating to the corporate or other necessary authority for such
increase in the Aggregate Revolving Commitments or establishment of
such Incremental Term Loan and the validity of such increase in the
Aggregate Revolving Commitments or establishment of such
Incremental Term Loan, and any other documents relevant thereto,
all in form and substance reasonably satisfactory to the
Administrative Agent;

 


(e)           the
Administrative Agent shall have received a Pro Forma Compliance
Certificate from a Responsible Officer of the Borrower
demonstrating compliance with the financial covenants hereunder
after giving effect to such increase in the Aggregate Revolving
Commitments (assuming, for purposes of such demonstration, that all
Revolving Commitments, as increased, are fully drawn) or
Incremental Term Loan on a Pro Forma Basis in form and substance
reasonably satisfactory to the Administrative Agent; provided, that, in the case of
an Incremental Term Loan subject to the Incremental Funds Certain
Provision, such compliance will be determined at the time the
applicable Acquisition Agreement is entered into (but not more than
ninety (90) days prior to the consummation of such Permitted
Acquisition);

 


(f)           if
any Revolving Loans are outstanding at the time of the increase in
the Aggregate Revolving Commitments, the Borrower shall, if
applicable, have prepaid one or more existing Revolving Loans (such
prepayment to be subject to Section 2.19) in an amount
necessary such that after giving effect to the increase in the
Aggregate Revolving Commitments, each Lender will hold its Pro Rata
Share of outstanding Revolving Loans;

 


(g)           any
increase in the Aggregate Revolving Commitments under this
Section 2.23 shall
have terms identical to those for the Revolving Loans under this
Agreement, except for any fees that may be payable to the Lenders
providing commitments for such increase in the Aggregate Revolving
Commitments;

 




 

57








 






 


 


(h)           amortization,
pricing and use of proceeds applicable to any Incremental Term Loan
shall be as set forth in the definitive documentation therefor;
provided that (i)
any such Incremental Term Loan shall have a final maturity date
that is later than the Revolving Commitment Termination Date and
the Maturity Date of each then outstanding Term Loan, (ii) the
weighted average life to maturity of such Incremental Term Loan
shall be no earlier than the weighted average life to maturity of
the Term Loan A or any other then-existing Incremental Term Loan
and (iii) with respect to any Incremental Term Loan established on
or before the second anniversary of the Effective Date, the all-in
yield (including interest rate margins, any interest rate floors,
original issue discount and upfront fees (based on the lesser of a
four-year average life to maturity or the remaining life to
maturity), but excluding arrangement, structuring and underwriting
fees paid or payable to the Arranger or its Affiliates) applicable
to such Incremental Term Loan shall not be more than 0.50% higher
than the corresponding all-in yield (determined on the same basis)
applicable to the Term Loan A or any then outstanding Incremental
Term Loan (it being understood that interest on the Term Loan A and
any existing Incremental Term Loan may be increased to the extent
necessary to satisfy this requirement);

 


(i)           all
conditions precedent to the making of a Loan and/or the issuance of
a Letter of Credit set forth in Section 3.2 shall have been
satisfied at the time of any increase in the Aggregate Revolving
Commitments (even if there is no Borrowing thereunder on such
date);

 


(j)           no
Lender (or any successor thereto) shall have any obligation to
increase its Revolving Commitment or its other obligations under
this Agreement and the other Loan Documents or provide any
Incremental Term Loan, and any decision by a Lender to increase its
Revolving Commitment or provide any Incremental Term Loan shall be
made in its sole discretion independently from any other
Lender;

 


(k)        
neither the Arranger nor any Lender shall have any responsibility
for arranging any such increased or additional Revolving
Commitments or Incremental Term Loans without their prior written
consent and subject to such conditions, including fee arrangements,
as they may provide in connection therewith; and


 


(l)           prior
to the date of any increase in the Aggregate Revolving Commitments
or establishment of an Incremental Term Loan, the Administrative
Agent shall have received (and promptly furnished to the Lenders)
(i) a completed “life of loan” Federal Emergency
Management Standard Flood Hazard Determination with respect to each
Mortgaged Property (together with a notice about special flood
hazard area status and flood disaster assistance duly executed by
the Borrower and appropriate Loan Party relating thereto if
required) and (ii) proof of flood insurance under the insurance
policies required by Section 5.8(d); provided, that,
notwithstanding anything to the contrary contained herein, if there
are any Mortgaged Properties at the time of any increase or
establishment of any Incremental Term Loan, the Administrative
Agent shall have received (and promptly furnished to the Lenders)
notice from the Borrower of such increase at least twenty (20) days
prior to the date of such increase or establishment of such
Incremental Term Loan.




 

58








 






 


 


 


Notwithstanding
anything to the contrary in the foregoing, if the proceeds of any
Incremental Term Loan are being used to finance a Permitted
Acquisition made pursuant to an acquisition agreement, binding on
the Borrower or any of its Subsidiaries, entered into in advance of
the consummation thereof (an “Acquisition Agreement”),
and the Borrower has obtained on or prior to the closing thereof
binding commitments of Lenders and/or Additional Lenders to fund
such Incremental Term Loan, then the conditions to the funding and
incurrence of any such Incremental Term Loan shall be limited as
follows: (A) the condition set forth in Section 3.2(b) shall apply only
with respect to Specified Representations, (B) the representations
and warranties in the Acquisition Agreement made by or with respect
to the Acquired Business that are material to the interests of the
Lenders shall be true and correct in all material respects, but
only to the extent that the Borrower and/or any of its
Subsidiaries, as applicable, has the right to terminate its or
their obligations under the Acquisition Agreement or not consummate
such Permitted Acquisition as a result of a breach of such
representations in such Acquisition Agreement, and (C) the
reference to “no Default or Event of Default” in
Section 3.2(a)
shall mean (1) the absence of a Default or Event of Default at the
date the applicable Acquisition Agreement is executed and delivered
and (2) the absence of a Specified Event of Default at the date the
applicable Permitted Acquisition is consummated. For purposes of
clarity, increases in the Aggregate Revolving Commitments shall not
be subject at any time to the Incremental Funds Certain Provision.
Nothing in the foregoing constitutes a waiver of any Default or
Event of Default under this Agreement or of any rights or remedies
of Lenders and the Administrative Agent under any provision of the
Loan Documents. The provisions of this paragraph are collectively
referred to in this Agreement as the “Incremental Funds Certain
Provision”.

 


For
purposes of determining compliance on a Pro Forma Basis with the
financial covenants in Article VI or other ratio
requirement under this Agreement, or whether a Default or Event of
Default has occurred and is continuing, in each case in connection
with the consummation of a Permitted Acquisition using proceeds
from an Incremental Term Loan that qualifies to be subject to the
Incremental Funds Certain Provision, the date of determination
shall, at the option of the Borrower, be the date of execution of
such Acquisition Agreement, and such determination shall be made
after giving effect to such Acquisition (and the other transactions
to be entered into in connection therewith (including any
incurrence of Indebtedness and the use of proceeds thereof)) on a
Pro Forma Basis, and, for the avoidance of doubt, if such financial
covenants or other ratio requirement is subsequently breached as a
result of fluctuations in the ratio that is subject of such
financial covenants or other ratio requirement (including due to
fluctuations in Consolidated EBITDA of the Borrower or the EBITDA
of the Acquired Business), at or prior to the consummation of such
Acquisition (and the other transactions to be entered into in
connection therewith), such financial covenants or other ratio
requirement will not be deemed to have been breached as a result of
such fluctuations solely for the purpose of determining whether
such Acquisition (and the other transactions to be entered into in
connection therewith) constitutes a Permitted
Acquisition; provided; that (x) if the Borrower elects
to have such determination occur at the time of entry into the
applicable Acquisition Agreement (and not at the time of
consummation of the Acquisition), (I) the Incremental Term Loan to
be incurred shall be deemed incurred at the time of such election
(unless the applicable Acquisition Agreement is terminated without
actually consummating the applicable Permitted Acquisition (in
which case such Acquisition and related Incremental Term Loan will
not be treated as having occurred)) and outstanding thereafter for
purposes of calculating compliance, on a Pro Forma Basis, with any
applicable financial covenants or other ratio requirement in this
Agreement (even if unrelated to determining whether such
Acquisition is a Permitted Acquisition) and (II) such Permitted
Acquisition must close within ninety (90) days of the signing of
the applicable Acquisition Agreement and (y) EBITDA of the Acquired
Business shall be disregarded for all purposes under this Agreement
other than determining whether such Acquisition is a Permitted
Acquisition until the consummation of such Permitted
Acquisition.


 


Section
2.24      Mitigation of
Obligations.
If any Lender requests compensation under Section 2.18, or if the
Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant
to Section 2.20,
then such Lender shall use commercially 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 sole
judgment of such Lender, such designation or assignment (a) would
eliminate or reduce amounts payable under Section 2.18 or Section 2.20, as the case may
be, in the future and (b) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in
connection with such designation or assignment.

 




 

59








 






 


 


Section
2.25       Replacement of Lenders. If (a)
any Lender requests compensation under Section 2.18, (b) the Borrower
is required to pay any additional amount to any Lender or any
Governmental Authority of the account of any Lender pursuant to
Section 2.20, (c)
any Lender notifies the Borrower and Administrative Agent that it
is unable to fund Eurodollar Loans or LIBOR Index Rate Loans
pursuant to Sections
2.16 or 2.17, (d) a Lender (a
“Non-Consenting
Lender”) does not consent to a proposed change,
waiver, discharge or termination with respect to any Loan Document
that has been approved by the Required Lenders as provided in
Section 11.2(b) but
requires unanimous consent of all Lender or all the Lenders
directly affected thereby (as applicable) or (e) if any Lender is a
Defaulting Lender, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions set forth in
Section 11.4(b))
all 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); provided, that (i) the Borrower
shall have received the prior written consent of the Administrative
Agent, which consent shall not be unreasonably withheld, (ii) such
Lender shall have received payment of an amount equal to the
outstanding principal amount of all Loans owed to it, accrued
interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (in the case of such outstanding
principal and accrued interest) and from the Borrower (in the case
of all other amounts), (iii) in the case of a claim for
compensation under Section
2.18 or payments required to be made pursuant to
Section 2.20, such
assignment will result in a reduction in such compensation or
payments, (iv) such assignment does not conflict with applicable
Law and (v) in the case of any such assignment resulting from a
Non-Consenting Lender’s failure to consent to a proposed
change, waiver, discharge or termination with respect to any Loan
Document, the applicable assignee consents to the proposed change,
waiver, discharge or termination; provided that the failure by
such Non-Consenting Lender to execute and deliver an Assignment and
Acceptance shall not impair the validity of the removal of such
Non-Consenting Lender and the mandatory assignment of such
Non-Consenting Lender’s Commitments and outstanding Loans
pursuant to this Section
2.25 shall nevertheless be effective without the execution
by such Non-Consenting Lender of an Assignment and Acceptance. A
Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.

 


Section
2.26         
Reallocation and Cash
Collateralization of Defaulting Lender
Commitment.

 


(a)           If
a Revolving Lender becomes, and during the period it remains, a
Defaulting Lender, the following provisions shall apply,
notwithstanding anything to the contrary in this
Agreement:

 


(i)           the
LC Exposure and Swingline Exposure of such Defaulting Lender will,
subject to the limitation in the first proviso below, automatically
be reallocated (effective on the day such Revolving Lender becomes
a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their
respective Revolving Commitments (calculated as if the Defaulting
Lender’s Revolving Commitment was reduced to zero and each
Non-Defaulting Lender’s Revolving Commitment had been
increased proportionately); provided that (a) the sum of
each Non-Defaulting Lender’s total Revolving Credit Exposure
may not in any event exceed the Revolving Commitment of such
Non-Defaulting Lender as in effect at the time of such reallocation
and (b) neither such reallocation nor any payment by a
Non-Defaulting Lender pursuant thereto will constitute a waiver or
release of any claim the Borrower, the Administrative Agent, any
Issuing Bank, the Swingline Lender or any other Lender may have
against such Defaulting Lender or cause such Defaulting Lender to
be a Non-Defaulting Lender; and

 




 

60








 






 


 


(ii)           to
the extent that any portion (the “unreallocated
portion”) of the LC Exposure and Swingline Exposure of any
Defaulting Lender cannot be reallocated pursuant to clause (i) for any reason the
Borrower will, not later than two (2) Business Days after demand by
the Administrative Agent (at the direction of each applicable
Issuing Bank and/or the Swingline Lender), (A) Cash Collateralize
the obligations of the Defaulting Lender to each applicable Issuing
Bank or Swingline Lender in respect of such LC Exposure or
Swingline Exposure, as the case may be, in an amount at least equal
to the aggregate amount of the unreallocated portion of the LC
Exposure and Swingline Exposure of such Defaulting Lender, (B) in
the case of such Swingline Exposure, prepay and/or Cash
Collateralize in full the unreallocated portion thereof, or (C)
make other arrangements satisfactory to the Administrative Agent,
each applicable Issuing Bank and the Swingline Lender in their sole
discretion to protect them against the risk of non-payment by such
Defaulting Lender.

 


(b)           If
the Borrower, the Administrative Agent, each of the Issuing Banks
and the Swingline Lender agree in writing in their discretion that
any Defaulting Lender has ceased to be a Defaulting Lender, the
Administrative Agent will so notify the parties hereto, whereupon
as of the effective date specified in such notice and subject to
any conditions set forth therein, the LC Exposure and the Swingline
Exposure of the other Lenders shall be readjusted to reflect the
inclusion of such Lender’s Commitment, and such Lender will
purchase at par such portion of outstanding Revolving Loans of the
other Lenders and/or make such other adjustments as the
Administrative Agent may determine to be necessary to cause the
Revolving Credit Exposure of the Lenders to be on a pro rata basis
in accordance with their respective Revolving Commitments,
whereupon such Lender will cease to be a Defaulting Lender and will
be a Non-Defaulting Lender (and such Revolving Credit Exposure of
each Lender will automatically be adjusted on a prospective basis
to reflect the foregoing). If any cash collateral has been posted
with respect to the LC Exposure or Swingline Exposure of such
Defaulting Lender, the Administrative Agent will promptly return
such cash collateral to the Borrower; provided that no adjustments
will be made retroactively with respect to fees accrued or payments
made by or on behalf of the Borrower while such Lender was a
Defaulting Lender; and provided, further, that except to the extent
otherwise expressly agreed by the affected parties, no change
hereunder from Defaulting Lender to Non-Defaulting Lender will
constitute a waiver or release of any claim of any party hereunder
arising from such Lender’s having been a Defaulting
Lender.

 


ARTICLE
III


 


CONDITIONS
PRECEDENT TO LOANS AND LETTERS OF CREDIT

 


Section
3.1           
Conditions To
Effectiveness. This Agreement and the obligations of the
Lenders (including the Swingline Lender) to make Loans and the
obligation of the applicable Issuing Bank to issue any Letter of
Credit hereunder shall be effective upon satisfaction of the
following conditions precedent in each case in form and substance
reasonably satisfactory to the Administrative Agent and each
Lender:

 


(a)           Loan
Documents. Receipt by the Administrative Agent of a
counterpart of this Agreement and the other Loan Documents signed
by or on behalf of each party hereto or thereto or written evidence
satisfactory to the Administrative Agent (which may include
telecopy transmission of such signed signature page) that such
party has signed a counterpart of this Agreement and the other Loan
Documents to which such party is a party.

 




 

61








 






 

 


(b)           Organization
Documents; Resolutions and Certificates. Receipt by the
Administrative Agent of:

 


(i)           a
certificate of the secretary or assistant secretary of each Loan
Party, attaching and certifying copies of such Loan Party’s
Organization Documents (or certifying that there have been no
changes to such Organization Documents since their prior delivery
to the Administrative Agent) and resolutions of its board of
directors (or equivalent governing body), authorizing the
execution, delivery and performance of this Agreement and the Loan
Documents to which it is a party and certifying the name, title and
true signature of each officer of such Loan Party executing the
Loan Documents to which it is a party; and

 


(ii)           certificates
of good standing or existence, certified as of a recent date by the
Secretary of State (or analogous official) of the jurisdiction of
incorporation or organization of such Loan Party.

 


(c)           Opinions
of Counsel. Receipt by the Administrative Agent of written
opinions of counsel to the Loan Parties addressed to the
Administrative Agent, the Issuing Banks and each of the Lenders,
and covering such matters relating to the Loan Parties, the Loan
Documents and the transactions contemplated therein in form and
substance satisfactory to the Administrative Agent.

 


(d)           Officer’s
Closing Certificate. Receipt by the Administrative Agent of
a certificate, dated the Effective Date and signed by a Responsible
Officer of the Borrower, certifying that after giving effect to the
transactions contemplated hereby on the Effective Date, the
conditions specified in Section 3.1(f) and Sections 3.2(a) and
(b) are satisfied
as of the Effective Date.

 


(e)           Sources
and Uses. Receipt by the Administrative Agent of a duly
executed funds disbursement agreement, together with a report
setting forth the sources and uses of the proceeds
hereof.

 


(f)           Required
Consents and Approvals. The Loan Parties shall have received
all consents (including necessary governmental consents),
approvals, authorizations, registrations and filings and orders
required or advisable to be made or obtained under any applicable
Law, the Organization Documents of any Loan Party or by any
Contractual Obligation of any Loan Party, in connection with the
execution, delivery, performance, validity and enforceability of
the Loan Documents or any of the transactions contemplated thereby,
and such consents, approvals, authorizations, registrations,
filings and orders shall be in full force and effect and all
applicable waiting periods shall have expired, and no investigation
or inquiry by any Governmental Authority regarding the Loan
Documents or any other transaction being financed with the proceeds
thereof shall be ongoing.

 


(g)           Solvency.
Receipt by the Administrative Agent of a certificate, dated the
Effective Date and signed by the chief financial officer of the
Borrower, on behalf of itself and each of its Subsidiaries,
confirming that (x) the Borrower is Solvent and (y) the Loan
Parties on a consolidated basis are Solvent, in each case before
and after giving effect to the funding of the Term Loan A and any
Revolving Loans on the Effective Date and the consummation of the
other transactions contemplated herein.

 


(h)           Insurance.
Receipt by the Administrative Agent of certificates of insurance
issued on behalf of insurers of the Loan Parties, describing in
reasonable detail the types and amounts of insurance (property and
liability) maintained by the Loan Parties, and endorsements naming
the Administrative Agent as additional insured on liability
policies and lender’s loss payee on property and casualty
policies.

 




 

62








 






 

 


(i)           Personal
Property Collateral. Receipt by the Administrative Agent of
the following:

 


(i)           Searches
of Uniform Commercial Code filings in the jurisdiction of formation
of each Loan Party.

 


(ii)           Uniform
Commercial Code financing statements for each appropriate
jurisdiction as is necessary to perfect the Administrative
Agent’s security interest in the Collateral.

 


(iii)           All
certificates evidencing any certificated Capital Stock pledged to
the Administrative Agent pursuant to the Security Agreement or any
other pledge agreement, together with duly executed in blank,
undated stock powers attached thereto (unless, with respect to the
pledged Capital Stock of any Material Foreign Subsidiary, such
stock powers are deemed unnecessary by the Administrative Agent in
its reasonable discretion under the Law of the jurisdiction of
organization of such Person).

 


(iv)           Searches
of ownership of, and Liens on, United States registered
intellectual property owned by each Loan Party in the appropriate
governmental offices.

 


(v)           Duly
executed notices of grant of security interest in the form required
by any security agreement as are necessary, in the Administrative
Agent’s reasonable discretion, to perfect the Administrative
Agent’s security interest in the United States registered
intellectual property owned by the Loan Parties (if and to the
extent perfection may be achieved in the United States Patent and
Trademark Office or the United States Copyright Office by such
filings).

 


(j)           Patriot
Act; Anti-Money Laundering Laws. The provision by the Loan
Parties of all documentation and other information that the
Administrative Agent or such Lender requests in order to comply
with its ongoing obligations under applicable “know your
customer” and anti-money laundering rules and regulations,
including the Patriot Act.

 


(k)           Financial
Statements. Receipt by the Administrative Agent of (i) the
consolidated audited financial statements of the Borrower and its
Subsidiaries for the Fiscal Years ended 2014, 2015 and 2016,
including balance sheets, income statements and cash flow
statements audited by independent public accountants of recognized
national standing and prepared in conformity with GAAP, (ii)
Interim Financial Statements and (iii) five-year financial
projections of the Borrower and its Subsidiaries.

 


(l)           Fees
and Expenses. Receipt by the Administrative Agent of payment
of all fees, expenses and other amounts due and payable on or prior
to the Effective Date, including without limitation reimbursement
or payment of all out-of-pocket expenses of the Administrative
Agent and the Arranger (including reasonable fees, charges and
disbursements of counsel to the Administrative Agent) required to
be reimbursed or paid by the Borrower hereunder, under any other
Loan Document and under any agreement with the Administrative Agent
or the Arranger.

 




 

63








 






 


 


Without
limiting the generality of the provisions of this Section 3.1, for purposes of
determining compliance with the conditions specified in this
Section 3.1, each
Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to a Lender unless the
Administrative Agent shall have received notice from such Lender
prior to the Effective Date specifying its objection
thereto.

 


Section
3.2            
Each Credit
Event. The
obligation of each Lender to make a Loan on the occasion of any
Borrowing and of each of the Issuing Banks to issue, amend, renew
or extend any Letter of Credit is subject to the satisfaction of
the following conditions, in each case, subject to the Incremental
Funds Certain Provision, as applicable:

 


(a)           at
the time of and immediately after giving effect to such Borrowing
or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default or Event of Default shall
exist;

 


(b)        
at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, all representations and warranties
of each Loan Party set forth in the Loan Documents shall be true
and correct in all material respects (other than those
representations and warranties that are expressly qualified by a
Material Adverse Effect or other materiality, in which case such
representations and warranties shall be true and correct in all
respects), except to the extent that such representations and
warranties specifically refer to an earlier date, in which case
they shall be true and correct in all material respects (other than
those representations and warranties that are expressly qualified
by a Material Adverse Effect or other materiality, in which case
such representations and warranties shall be true and correct in
all respects) as of such earlier date;

 


(c)           the
Borrower shall have delivered the required Notice of Borrowing;
and

 


(d)           if
any Revolving Lender is a Defaulting Lender at the time of any
request by the Borrower of a Borrowing of a Swingline Loan or the
issuance, amendment, renewal or extension of a Letter of Credit, as
applicable, set forth in this Section 3.2, neither of the
Issuing Banks will be required to issue, amend, renew or increase
any Letter of Credit and the Swingline Lender will not be required
to make any Swingline Loans, unless they are satisfied that 100% of
the related LC Exposure and Swingline Exposure is fully covered or
eliminated pursuant to Section 2.26.

 


Each
Borrowing and each issuance, amendment, extension or renewal of any
Letter of Credit shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters
specified in clauses
(a) and (b)
of this Section
3.2.

 


Section
3.3           
Delivery of
Documents. All of the Loan Documents, certificates, legal
opinions and other documents and papers referred to in this
Article III, unless
otherwise specified, shall be delivered to the Administrative Agent
for the account of each of the Lenders and in sufficient
counterparts or copies for each of the Lenders and shall be in form
and substance satisfactory in all respects to the Administrative
Agent.

 




 

64








 






 

 


ARTICLE
IV

 


REPRESENTATIONS
AND WARRANTIES

 


Each
Loan Party represents and warrants to the Administrative Agent and
each Lender as follows:

 


Section
4.1       Existence; Power. The Borrower
and each of its Subsidiaries (a) is duly organized, validly
existing and in good standing as a corporation, partnership or
limited liability company, as applicable, under the Laws of the
jurisdiction of its organization, (b) has all requisite power and
authority to carry on its business as now conducted, and
(c) is duly qualified to do business, and is in good standing,
in each jurisdiction where such qualification is required, except
where a failure to be so qualified could not reasonably be expected
to result in a Material Adverse Effect.

 


Section
4.2          
Organizational Power;
Authorization. The execution, delivery and performance by
each Loan Party of the Loan Documents to which it is a party are
within such Loan Party’s organizational powers and have been
duly authorized by all necessary organizational, and if required,
shareholder, partner or member, action. This Agreement has been
duly executed and delivered by each Loan Party, and constitutes,
and each other Loan Document to which any Loan Party is party, when
executed and delivered by such Loan Party, will constitute a legal,
valid and binding obligation of each Loan Party, enforceable
against such Loan Party party thereto, in accordance with their
respective terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting the enforcement of creditors’ rights generally and
by general principles of equity.

 


Section
4.3            
Governmental Approvals; No
Conflicts. The execution, delivery and performance by each
Loan Party of this Agreement, and by each Loan Party of the other
Loan Documents to which it is a party (a) do not require any
consent or approval of, registration or filing with, or any action
by, any Governmental Authority, except (i) those as have been
obtained or made and are in full force and effect and (ii) filings
necessary to perfect and maintain the perfection of the Liens
created under the Collateral Documents, (b) will not violate the
Organization Documents of any Loan Party or any Law applicable to
the Borrower or any of its Subsidiaries or any judgment, order or
ruling of any Governmental Authority, (c) will not violate or
result in a default under any indenture, agreement or other
instrument binding on the Borrower or any of its Subsidiaries or
any of its assets or give rise to a right thereunder to require any
payment to be made by the Borrower or any of its Subsidiaries and
(d) will not result in the creation or imposition of any Lien on
any asset of the Borrower or any of its Subsidiaries, except Liens
(if any) created under the Loan Documents.

 


Section
4.4           
Financial
Statements. The Borrower has furnished to the Lenders (a)
the Audited Financial Statements and (b) the Interim Financial
Statements. Such financial statements fairly present in all
material respects the consolidated financial condition of the
Borrower and its Subsidiaries as of such dates and the consolidated
results of operations for such periods in conformity with GAAP
consistently applied, subject to year-end audit adjustments and the
absence of footnotes in the case of the statements referred to in
clause (b). The
financial statements delivered pursuant to Section 5.1(a) and (b) have been prepared in
accordance with GAAP and present fairly (on the basis disclosed in
the footnotes to such financial statements) the consolidated
financial condition, results of operations and cash flows of the
Borrower and its Subsidiaries as of the dates thereof and for the
periods covered thereby. Since the date of the Audited Financial
Statements, there have been no changes with respect to the Borrower
and its Subsidiaries which have had or could reasonably be expected
to have, singly or in the aggregate, a Material Adverse
Effect.

 




 

65








 






 

 


Section
4.5          
Litigation and
Environmental Matters.

 


(a)         
No litigation, investigation or proceeding of or before any
arbitrators or Governmental Authorities is pending against or, to
the knowledge of any Responsible Officer of the Loan Parties,
threatened against or affecting the Borrower or any of its
Subsidiaries or any employee or contractor of the Borrower or any
of its Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination that could reasonably be
expected to have, either individually or in the aggregate, a
Material Adverse Effect or (ii) which in any manner draws into
question the validity or enforceability of this Agreement or any
other Loan Document.

 


(b)        
Neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to
any Environmental Liability or (iv) knows of any basis for any
Environmental Liability.

 


Section
4.6         
Compliance with Laws and
Agreements. The Borrower and each Subsidiary is in
compliance with (a) all Laws and all judgments, decrees and orders
of any Governmental Authority and (b) all indentures, agreements or
other instruments binding upon it or its properties, except where
non-compliance, either individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse
Effect.

 


Section
4.7           
No
Default.

 


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


 


(b)           No
Default has occurred and is continuing.


 


Section
4.8           
Investment Company Act,
Etc. . Neither the Borrower nor any of its Subsidiaries is
(a) an “investment company” or is
“controlled” by an “investment company”, as
such terms are defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended, or (b) otherwise
subject to any other regulatory scheme limiting its ability to
incur debt or requiring any approval or consent from or
registration or filing with, any Governmental Authority in
connection therewith.

 


Section
4.9            
Taxes. The Borrower
and its Subsidiaries have timely filed or caused to be filed all
federal, state income and other material tax returns required to be
filed by them, and have paid all federal, state income and other
material taxes, assessments made against it or its property and all
other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority, except where the same are
currently being contested in good faith by appropriate proceedings
and for which the Borrower or such Subsidiary, as the case may be,
has set aside on its books adequate reserves therefor in accordance
with GAAP. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of such taxes are adequate
in accordance with GAAP, and no tax liabilities that could be
materially in excess of the amount so provided are
anticipated.

 




 

66








 






 

 


Section
4.10            
Margin Regulations.
None of the proceeds of any of the Loans or Letters of Credit will
be used, directly or indirectly, for “purchasing” or
“carrying” any “margin stock” with the
respective meanings of each of such terms under Regulation U or for
any purpose that violates the provisions of the Regulation T, U or
X. Neither the Borrower nor 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
“margin stock.”

 


Section
4.11            
ERISA. No ERISA
Event has occurred or is reasonably expected to occur that, when
taken together with all other such ERISA Events for which liability
is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the
assumptions used for purposes of Statement of Financial Standards
No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of
the assets of such Plan, and the present value of all accumulated
benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Standards
No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of
the assets of all such underfunded Plans. The Borrower represents
that, as of the date hereof and throughout the term of this
Agreement, no Borrower or Guarantor is (1) an employee benefit plan
subject to Title I of ERISA, (2) a plan or account subject to
Section 4975 of the Code; (3) an entity deemed to hold “plan
assets” of any such plans or accounts for purposes of ERISA
or the Code; or (4) a “governmental plan” within the
meaning of ERISA.

 


Section
4.12             
Ownership of
Property.

 


(a)           Each
of the Borrower and its Subsidiaries has good title to, or valid
leasehold interests in, all of its real and personal property
material to the operation of its business, including all such
properties reflected in the Audited Financial Statements or the
most recent audited consolidated balance sheet of the Borrower
delivered pursuant to Section 5.1(a) or purported to
have been acquired by the Borrower or any Subsidiary after said
date (except as sold or otherwise disposed of in the ordinary
course of business), in each case free and clear of Liens not
permitted by this Agreement. All leases that individually or in the
aggregate are material to the business or operations of the
Borrower and its Subsidiaries are valid and subsisting and are in
full force.

 


(b)           Each
of the Borrower and its Subsidiaries owns, or is licensed, or
otherwise has the right, to use, all patents, trademarks, service
marks, trade names, copyrights and other intellectual property
material to its business, and the use thereof by the Borrower and
its Subsidiaries does not infringe in any material respect on the
rights of any other Person.

 


(c)           The
properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies which are not
Affiliates of the Borrower, in such amounts with such deductibles
and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in
localities where the Borrower or any applicable Subsidiary
operates.

 




 

67








 






 

 


Section
4.13          
Disclosure. Each
Loan Party has disclosed to the Lenders all agreements,
instruments, and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to any
of them, that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. None of the
reports (including without limitation all reports that any Loan
Party is required to file with the SEC), financial statements,
certificates or other information furnished by or on behalf of any
Loan Party to the Administrative Agent or any Lender in connection
with the negotiation or syndication of this Agreement or any other
Loan Document or delivered hereunder or thereunder (as modified or
supplemented by any other information so furnished) contains any
material misstatement of fact or omits to state any material fact
necessary to make the statements therein, taken as a whole, in
light of the circumstances under which they were made, not
misleading; provided, that, with respect to
projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.

 


Section
4.14           
Labor Relations.
There are no strikes, lockouts or other material labor disputes
pending against the Borrower or any of its Subsidiaries, or, to the
knowledge of a Responsible Officer of any Loan Party, threatened
against the Borrower or any of its Subsidiaries, and no significant
unfair labor practice, charges or grievances are pending against
the Borrower or any of its Subsidiaries, or to the knowledge of a
Responsible Officer of any Loan Party, threatened against any of
them before any Governmental Authority that would reasonably be
expected to result, either individually or in the aggregate, a
Material Adverse Effect. All payments due from the Borrower or any
of its Subsidiaries pursuant to the provisions of any collective
bargaining agreement have been paid or accrued as a liability on
the books of the Borrower or any such Subsidiary, except where the
failure to do so could not reasonably be expected to have a
Material Adverse Effect.

 


Section
4.15           
Subsidiaries.
Schedule 4.15 sets
forth (a) the name of, the ownership interest of each Loan Party
in, the jurisdiction of incorporation or organization of, and the
type of, each Subsidiary and identifies each Subsidiary that is a
Loan Party, in each case as of the Effective Date and (b) the
authorized Capital Stock of the Borrower and each of its
Subsidiaries as of the Effective Date. All issued and outstanding
Capital Stock of each of the Borrower’s Subsidiaries is duly
authorized and validly issued, fully paid, non-assessable, as
applicable, and free and clear of all Liens other than those
created under the Loan Documents. All such securities were issued
in compliance with all applicable state and federal Laws concerning
the issuance of securities. As of the Effective Date, all of the
issued and outstanding Capital Stock of each of the
Borrower’s Subsidiaries is owned by the Persons and in the
amounts set forth on Schedule 4.15. Except as set
forth on Schedule
4.15, there are no pre-emptive or other outstanding rights,
options, warrants, conversion rights or other similar agreements or
understandings for the purchase or acquisition of any Capital Stock
of the Borrower or any of its Subsidiaries.

 


Section
4.16          
  Solvency.
After giving effect to the execution and delivery of the Loan
Documents and the making of the Loans under this Agreement, the
Borrower is Solvent and the Loan Parties are Solvent on a
consolidated basis.

 


Section
4.17           
Business Locations;
Taxpayer Identification Number. Set forth on Schedule 4.17-1 is a list of
all real property located in the United States that is owned or
leased by any Loan Party as of the Effective Date (identifying
whether such real property is owned or leased and which Loan Party
owns or leases such real property). Set forth on Schedule 4.17-2 is the chief
executive office, U.S. tax payer identification number and
organizational identification number of each Loan Party as of the
Effective Date. The exact legal name and state of organization of
each Loan Party as of the Effective Date is as set forth on the
signature pages hereto. Except as set forth on Schedule 4.17-3, no Loan Party
has during the five years preceding the Effective Date (i) changed
its legal name, (ii) changed its state of formation, or (iii) been
party to a merger, consolidation or other change in
structure.

 




 

68








 






 

 


Section
4.18          
Material
Agreements. As of the Effective Date, all Material
Agreements of the Borrower and its Subsidiaries are described on
Schedule 4.18, and
each such Material Agreement is in full force and effect. The
Borrower does not have any knowledge of any pending amendments or
threatened termination of any of the Material Agreements. As of the
Effective Date, the Borrower has delivered to the Administrative
Agent a true, complete and correct copy of each Material Agreement
(including all schedules, exhibits, amendments, supplements,
modifications, assignments and all other documents delivered
pursuant thereto or in connection therewith).

 


Section
4.19           
Anti-Corruption Laws and
Sanctions. None of the Borrower or any of its Subsidiaries
or, to the knowledge of the Borrower or such Subsidiary, any of
their respective directors, officers, employees or agents acting or
benefitting in any capacity in connection with this Agreement, (a)
is a Person that is owned or controlled by a Sanctioned Person, (b)
is a Sanctioned Person or (c) is located, organized or resident in
a Sanctioned Country. The Borrower and its Subsidiaries have
conducted their businesses in compliance with Anti-Corruption Laws
and applicable Sanctions and have instituted and maintain policies
and procedures designed to promote and achieve compliance with
Anti-Corruption Laws and applicable Sanctions. No Borrowing or
Letter of Credit, use of proceeds or other transactions will
violate Anti-Corruption Laws or applicable Sanctions.

 


Section
4.20           
Subordination of
Subordinated Debt. This Agreement, and all amendments,
modifications, extensions, renewals, refinancings and refundings
hereof, constitute the “Senior Credit Agreement” (or
similar or analogous term) within the meaning of the applicable
Subordinated Debt Document; and the Revolving Loans, the Term Loans
and all other Obligations of the Borrower to the Lenders and the
Administrative Agent under this Agreement and all other Loan
Documents, and all amendments, modifications, extensions, renewals,
refinancings or refundings of any of the foregoing, constitute
“Senior Indebtedness” (or similar or analogous term) of
the Borrower within the meaning of the applicable Subordinated Debt
Document, and the holders thereof from time to time shall be
entitled to all of the rights of a holder of “Senior
Indebtedness” (or similar or analogous term) pursuant to the
applicable Subordinated Debt Document.

 


Section
4.21             
No EEA Financial
Institutions. No Loan Party is an EEA Financial
Institution.

 


Section
4.22             
Perfection of Security
Interests in the Collateral.

 




 

69








 






 


 


(a)                      The
Security Agreement is effective to create in favor of the
Administrative Agent, for the ratable benefit of the holders of the
Obligations, a legal, valid and enforceable security interest in
the Collateral identified therein, except to the extent the
enforceability thereof may be limited by applicable Debtor Relief
Laws affecting creditors’ rights generally and by equitable
principles of law (regardless of whether enforcement is sought in
equity or at law), and the Security Agreement shall create a fully
perfected Lien on, and security interest in, all right, title and
interest of the obligors thereunder in such Collateral, in each
case prior and superior in right to any other Lien (other than
Permitted Encumbrances) (i) with respect to any such Collateral
that is a “security” (as such term is defined in the
UCC) and is evidenced by a certificate, when such Collateral is
delivered to the Administrative Agent with duly executed stock
powers with respect thereto, (ii) with respect to any such
Collateral that is a “security” (as such term is
defined in the UCC) but is not evidenced by a certificate, when UCC
financing statements in appropriate form are filed in the
appropriate filing offices in the jurisdiction of organization of
the pledgor or when “control” (as such term is defined
in the UCC) is established by the Administrative Agent over such
interests in accordance with the provision of Section 8-106 of the
UCC, or any successor provision, and (iii) with respect to any
such Collateral that is not a “security” (as such term
is defined in the UCC), when UCC financing statements in
appropriate form are filed in the appropriate filing offices in the
jurisdiction of organization of the pledgor (to the extent such
security interest can be perfected by filing under the
UCC).

 


(b)           Each
of the Mortgages, if any, is effective to create in favor of the
Administrative Agent, for the ratable benefit of the holders of the
Obligations, a legal, valid and enforceable security interest in
the real property and improvements identified therein in conformity
with applicable Laws, except to the extent the enforceability
thereof may be limited by applicable Debtor Relief Laws affecting
creditors’ rights generally and by equitable principles of
law (regardless of whether enforcement is sought in equity or at
law) and, when the Mortgages and UCC financing statements in
appropriate form are duly recorded at the locations identified in
the Mortgages, and recording or similar taxes, if any, are paid,
the Mortgages shall constitute a legal, valid and enforceable Lien
on, and security interest in, all right, title and interest of the
grantors thereunder in such real property and improvements, in each
case prior and superior in right to any other Lien (other than
Permitted Encumbrances).

 


Section
4.23          HIPAA Compliance. To the extent
that and for so long as (i) the Borrower or any of its Subsidiaries
is a “covered entity” and/or a “business
associate” as defined in 45 C.F.R. § 160.103, (ii) the
Borrower or any of its Subsidiaries and/or their business and
operations are subject to or covered by HIPAA, and/or (iii) the
Borrower or any of its Subsidiaries sponsors any “group
health plans” as defined in 45 C.F.R. § 160.103, the
Borrower and each such Subsidiary has implemented, or will
implement on or before any applicable compliance date, those
provisions of its HIPAA compliance plan necessary to ensure that
the Loan Parties are HIPAA Compliant, except where non-compliance,
either individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. For purposes of
this Agreement, “HIPAA Compliant” shall
mean that each Loan Party and each applicable Subsidiary (i) is in
full compliance with any and all of the applicable requirements of
HIPAA, as amended from time to time and (ii) is not subject to, and
could not reasonably be expected to become subject to, any civil or
criminal penalty or any investigation, claim or process as the
result of any breach or other failure to comply with
HIPAA.

 




 

70








 






 


Section
4.24          
Compliance With Health
Care Laws. Without limiting the generality of any other
provision that is set forth herein (including, without limitation,
any covenant, representation or warranty), the Borrower and each of
its Subsidiaries, and each of the Borrower’s and each
Subsidiary’s employees and contractors in the exercise of
their respective duties on behalf of the Borrower, any such
Subsidiary or any facilities where such licensed employees and
contractors perform services on behalf of customers of the Borrower
or any Subsidiary, is in compliance in all respects with all
applicable statutes, laws, ordinances, rules and regulations of any
federal, state or local governmental authority with respect to
regulatory matters primarily relating to patient healthcare
(collectively, “Healthcare Laws”), except
where non-compliance, either individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect. The Borrower and each of its Subsidiaries has maintained in
all material respects all records required to be maintained by the
Healthcare Laws and, to the knowledge of the Loan Parties, there
are no presently existing circumstances which would result or
likely would result in violations of the Healthcare Laws, except
where such violations, either individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect. The Borrower and its Subsidiaries and, to the Loan
Parties’ knowledge, the owners of other businesses managed by
the Borrower or its Subsidiaries have such permits, licenses,
franchises, certificates and other approvals or authorizations of
Governmental Authorities as are necessary under applicable
Healthcare Laws to own their respective properties and to conduct
their respective business (including without limitation such
permits as are required under such federal, state and other health
care laws, and under licensure laws and such insurance laws and
regulations, as are applicable thereto), except where the failure
to have such permits, licenses, franchises, certificates and other
approvals or authorizations of Governmental Authorities,
individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect. In addition, each such
employee and contractor holds, without restriction, such permits,
licenses, franchises, certificates and other approvals or
authorizations of Governmental Authorities as are necessary under
applicable Healthcare Laws to perform services on behalf of any
customer of the Borrower or any Subsidiary in the exercise of such
employees’ and contractors’ respective duties on behalf
of the Borrower or any such Subsidiary, except where the failure to
have such permits, licenses, franchises, certificates and other
approvals or authorizations of Governmental Authorities,
individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect. Further, each such employee
and contractor, if required by the applicable facility where such
employee or contractor performs services on behalf of the Borrower
or any Subsidiary, holds unrestricted medical staff privileges to
perform professional services at such facility, except where such
failure to maintain medical staff privileges could not reasonably
be expected to result in a Material Adverse Effect. Neither the
Borrower nor any of its Subsidiaries are enrolled in, bill to or
receive any reimbursement from third party payors, including
without limitation, Medicare, Medicaid, or any other federal,
state, or other government or commercial health care program.
Neither the Borrower, any Subsidiary, or any of their respective
employees or independent contractors: (i) have been convicted of a
criminal offense related to healthcare (unless such individual has
been officially reinstated into the federal healthcare programs by
the U.S. Department of Health and Human Services Office of
Inspector General (“OIG”)); (ii) are
currently under sanction, exclusion or investigation (civil or
criminal) by any federal or state enforcement, regulatory,
administrative or licensing agency or is ineligible for federal or
state program participation; or (iii) are currently listed on the
General Services Administration List of Parties Excluded from the
Federal Procurement and Non-Procurement Programs or the OIG List of
Excluded Individuals/Entities.

 


Section
4.25         
Patriot Act. No
Loan Party nor any of its Subsidiaries is an “enemy” or
an “ally of the enemy” within the meaning of Section 2
of the Trading with the Enemy Act of the United States of America
(50 U.S.C. App. §§ 1 et
seq.), as amended. To its knowledge, no Loan Party or any of
its Subsidiaries is in violation of (a) the Trading with the Enemy
Act, as amended, (b) any of the foreign assets control regulations
of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) or any enabling legislation or executive
order relating thereto or (c) the Patriot Act. No Loan Party or any
of its Subsidiaries (i) is a “blocked person” described
in Section 1 of the Anti-Terrorism Order or (ii) to the best of its
knowledge, engages in any dealings or transactions, or is otherwise
associated, with any such blocked person.

 


ARTICLE
V


 


AFFIRMATIVE
COVENANTS

 


Each
Loan Party covenants and agrees that so long as any Lender has a
Commitment hereunder, any Obligation remains unpaid or outstanding,
or any Letter of Credit shall remain outstanding, such Loan Party
shall and shall cause each Subsidiary to:

 




 

71








 






 

 


Section
5.1            
Financial Statements and
Other Information. Deliver to the Administrative Agent, for
further distribution to the Lenders:

 


(a)           as
soon as available and in any event within ninety (90) days after
the end of each Fiscal Year, a copy of the annual audited report
for such Fiscal Year for the Borrower and its Subsidiaries,
containing a consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and the related
consolidated statements of income or operations, changes in
stockholders’ equity and cash flows (together with all
footnotes thereto) of the Borrower and its Subsidiaries for such
Fiscal Year, setting forth in each case in comparative form the
figures for the previous Fiscal Year, all in reasonable detail and
reported on by independent public accountants of nationally
recognized standing (without a “going concern” or like
qualification, exception or explanation and without any
qualification or exception as to scope of such audit, except for
qualifications arising solely as a result of upcoming maturities of
Loans under this Agreement) to the effect that such financial
statements present fairly in all material respects the financial
condition and the results of operations of the Borrower and its
Subsidiaries for such Fiscal Year on a consolidated basis in
accordance with GAAP and that the examination by such accountants
in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing
standards;

 


(b)           as
soon as available and in any event within forty-five (45) days
after the end of each of the first three Fiscal Quarters, an
unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Quarter and the related
unaudited consolidated statements of income or operations and cash
flows of the Borrower and its Subsidiaries for such Fiscal Quarter
and the then elapsed portion of such Fiscal Year, setting forth in
each case in comparative form the figures for the corresponding
quarter and the corresponding portion of Borrower’s previous
Fiscal Year, all in reasonable detail and prepared in accordance
with GAAP, such consolidated statements to be certified by the
chief executive officer, chief financial officer, treasurer or
controller of the Borrower as presenting fairly in all material
respects the financial condition, results of operations and cash
flows of the Borrower and its Subsidiaries in accordance with GAAP,
subject only to normal year-end audit adjustments and the absence
of footnotes;

 


(c)           concurrently
with the delivery of the financial statements referred to in
clauses (a) and
(b) above, a
Compliance Certificate signed by the principal executive officer or
the principal financial officer of the Borrower (i) certifying as
to whether there exists a Default or Event of Default on the date
of such certificate, and if a Default or an Event of Default then
exists, (ii) setting forth in reasonable detail calculations
demonstrating compliance with the financial covenants set forth in
Article VI, (iii)
certifying that as of the date thereof, all representations and
warranties of each Loan Party set forth in the Loan Documents are
true and correct in all material respects (other than those
representations and warranties that are expressly qualified by a
Material Adverse Effect or other materiality, in which case such
representations and warranties are true and correct in all
respects), except to the extent that such representations and
warranties specifically refer to an earlier date, in which case
they are true and correct in all material respects (other than
those representations and warranties that are expressly qualified
by a Material Adverse Effect or other materiality, in which case
such representations and warranties shall be true and correct in
all respects) as of such earlier date, (iv) stating whether any
change in GAAP or the application thereof has occurred since the
date of the Audited Financial Statements, and if any change has
occurred, specifying the effect of such change on the financial
statements accompanying such Compliance Certificate and (v)
specifying any change in the identity of the Subsidiaries as of the
end of such Fiscal Year or Fiscal Quarter from the Subsidiaries
identified to the Lenders on the Effective Date or as of the most
recent Fiscal Year or Fiscal Quarter, as the case may
be;

 




 

72








 






 

 


(d)           concurrently
with the delivery of the financial statements referred to in
clause (a)
above, a negative assurance letter from the accounting firm that
reported on such financial statements stating whether they obtained
any knowledge during the course of their audit of such financial
statements of any Default or Event of Default arising from a breach
of the financial covenants set forth in Article VI in so far as they
relate to accounting matters (which negative assurance letter may
be limited to the extent required by accounting and auditing rules,
standards or guidelines);

 


(e)           as
soon as available and in any event within forty-five (45) days
after the end of the Fiscal Year, a pro forma budget for the
succeeding Fiscal Year, containing an income statement, balance
sheet and statement of cash flow of the Borrower and its
Subsidiaries on a quarterly basis for such succeeding Fiscal
Year;

 


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

 


(g)           promptly
following any request therefor, such other information regarding
the results of operations, business affairs and financial condition
of the Borrower or any Subsidiary as the Administrative Agent or
any Lender may reasonably request.

 


If at
any time the Borrower is required to file periodic reports under
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934, as amended, Borrower may satisfy its obligation to deliver
the financial statements referred to in clauses (a) and (b) above by delivering such
financial statements by electronic mail to such e-mail addresses as
the Administrative Agent and Lenders shall have provided to
Borrower from time to time.

 


The
Borrower hereby acknowledges that (A) the Administrative Agent
and/or an Affiliate thereof may, but shall not be obligated to,
make available to the Lenders and the Issuing Banks materials
and/or information provided by or on behalf of the Borrower
hereunder (collectively, “Borrower Materials”) by
posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar,
Debt Domain or a substantially similar electronic transmission
system (the “Platform”) and
(B) certain of the Lenders (each, a “Public Lender”) may have
personnel who do not wish to receive material non-public
information with respect to the Borrower or its Affiliates, or the
respective securities of any of the foregoing, and who may be
engaged in investment and other market-related activities with
respect to such Persons’ securities. The Borrower hereby
agrees that it will use commercially reasonable efforts to identify
that portion of the Borrower Materials that may be distributed to
the Public Lenders and that (1) all such Borrower Materials
shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC”
shall appear prominently on the first page thereof; (2) by
marking Borrower Materials “PUBLIC,” the Borrower shall
be deemed to have authorized the Administrative Agent, any
Affiliate thereof, the Arranger, the Issuing Banks and the Lenders
to treat such Borrower Materials as not containing any material
non-public information (although it may be sensitive and
proprietary) with respect to the Borrower or its securities for
purposes of United States federal and state securities laws
(provided,
however, that to
the extent such Borrower Materials constitute information subject
to the confidentiality provisions of Section 11.11, they shall be
treated as set forth in Section 11.11); (3) all
Borrower Materials marked “PUBLIC” are permitted to be
made available through a portion of the Platform designated
“Public Side Information;” and (4) the
Administrative Agent and any Affiliate thereof and the Arranger
shall be entitled to treat any Borrower Materials that are not
marked “PUBLIC” as being suitable only for posting on a
portion of the Platform not designated “Public Side
Information.”

 




 

73








 






 


Section
5.2           
Notices of Material
Events. Furnish to the Administrative Agent (for further
distribution to the Lenders) prompt written notice of the
following:

 


(a)           the
occurrence of any Default or Event of Default;

 


(b)           the
filing or commencement of, or any material development in, any
action, suit or proceeding by or before any arbitrator or
Governmental Authority against or, to the knowledge of the
Borrower, affecting the Borrower or any Subsidiary which, if
adversely determined, could reasonably be expected to result in a
Material Adverse Effect;

 


(c)           the
occurrence of any event or any other development by which the
Borrower or any of its Subsidiaries (i) fails to comply with any
Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law,
(ii) becomes subject to any Environmental Liability, (iii) receives
notice of any claim with respect to any Environmental Liability, or
(iv) becomes aware of any basis for any Environmental Liability and
in each of the preceding clauses, which individually or in the
aggregate, could reasonably be expected to result in a Material
Adverse Effect;

 


(d)        
   the occurrence of any ERISA Event that alone, or
together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Borrower and
its Subsidiaries in an aggregate amount exceeding
$500,000;

 



(e)           the
occurrence of any default or event of default, or the receipt by
Borrower or any of its Subsidiaries of any written notice of an
alleged default or event of default with respect to the
Subordinated Debt Documents, or any Material Indebtedness of the
Borrower or any of its Subsidiaries;

 


(f)        
   any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect;
and

 


(g)        
  promptly and in any event at least thirty (30) days prior
thereto, notice of any change (i) in any Loan Party’s legal
name, (ii) in any Loan Party’s chief executive office, its
principal place of business, any office in which it maintains books
or records or any office or facility at which Collateral owned by
it is located (including the establishment of any such new office
or facility), (iii) in any Loan Party’s identity or legal
structure, (iv) in any Loan Party’s federal taxpayer
identification number or organizational number or (v) in any Loan
Party’s jurisdiction of organization.

 


Each
notice delivered under this Section 5.2 shall be
accompanied by a written statement of a Responsible Officer setting
forth the details of the event or development requiring such notice
and any action taken or proposed to be taken with respect
thereto.

 


Section
5.3           
  Existence; Conduct
of Business.

 


(a)           Do
or cause to be done all things reasonably necessary to preserve,
renew and maintain in full force and effect its legal existence and
its respective rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names material to the
conduct of its business; provided, that nothing in this
Section 5.3 shall
prohibit any merger, consolidation, liquidation or dissolution
permitted under Section
7.3; and

 




 

74








 






 

 


(b)           Engage
in the business of the type conducted by the Borrower and its
Subsidiaries on the date hereof and businesses reasonably related
or reasonably ancillary thereto.

 


Section
5.4         
Compliance with Laws,
Etc. (a)
Comply with all laws, rules, regulations and requirements of any
Governmental Authority applicable to its business and properties,
including, without limitation, all Environmental Laws, Healthcare
Laws, ERISA and OSHA, except where the failure to do so, either
individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect, and (b) maintain in effect
and enforce policies and procedures reasonably designed to promote
and achieve compliance by the Loan Parties, their Subsidiaries and
their respective directors, officers, employees and agents which
are acting or benefitting in any capacity in connection with this
Agreement with Anti-Corruption Laws and applicable
Sanctions.

 


Section
5.5           
Payment of
Obligations.
Pay and discharge at or before maturity, all of its obligations and
liabilities (other than Indebtedness and any obligations in respect
of any Hedging Transactions but including, without limitation, all
taxes, assessments and other governmental charges, levies and all
other claims that could result in a statutory Lien) before the same
shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) the Borrower or such Subsidiary has
set aside on its books adequate reserves with respect thereto in
accordance with GAAP, (c) such contest effectively suspends
collection of the contested obligation and the enforcement of any
Lien securing such obligation, and (d) the failure to make payment
pending such contest could not reasonably be expected to result in
a Material Adverse Effect.

 


Section
5.6           
Books and Records.
Keep proper books of record and account in which full, true and
correct entries shall be made of all dealings and transactions in
relation to its business and activities to the extent necessary to
prepare the consolidated financial statements of the Borrower and
its Subsidiaries in conformity with GAAP.

 


Section
5.7          
Visitation, Inspection,
Etc. Permit
any representative of the Administrative Agent (it being understood
the Lenders may accompany the Administrative Agent at the sole cost
of such Lender) to visit and inspect its properties, to examine its
books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its
officers and independent certified public accountants, all at such
reasonable times and as often as the Administrative Agent may
reasonably request after reasonable prior notice to the Borrowers;
provided that only
the Administrative Agent on behalf of the Lenders may exercise
rights under this Section 5.7 and the
Administrative Agent shall not exercise such rights more often than
one time during any Fiscal Year absent the existence of an Event of
Default and, in any event, only one such time shall be at the
Borrowers’ expense, and provided, further, that when an Event
of Default has occurred and is continuing the Administrative Agent
(or any of its designated representatives) may do any of the
foregoing at the expense of the Borrowers at any time during normal
business hours without prior notice.

 




 

75








 






 


Section
5.8           
Maintenance of Properties;
Insurance.

 


(a)           Keep
and maintain all property material to the conduct of its business
in good working order and condition, ordinary wear and tear
excepted;

 


(b)           Maintain
with financially sound and reputable insurance companies not
Affiliates of the Borrower, insurance with respect to its
properties and business, and the properties and business of its
Subsidiaries, against loss or damage of the kinds customarily
insured against by companies in the same or similar businesses
operating in the same or similar locations;

 


(c)           At
all times shall name Administrative Agent as additional insured on
all liability policies and loss payee on all property or casualty
polices of the Borrower and its Subsidiaries (which policies shall
be endorsed or otherwise amended to include a customary
lender’s loss payable endorsement and to name the
Administrative Agent as additional insured or loss payee, in form
and substance reasonably satisfactory to the Administrative Agent);
and

 


(d)           Cause
all Mortgaged Property that constitutes Flood Hazard Property to be
covered by flood insurance provided under the National Flood
Insurance Program (or with private insurance endorsed to cause such
private insurance to be fully compliant with the federal law as
regards private placement insurance applicable to the National
Flood Insurance Program, with financially sound and reputable
insurance companies not Affiliates of the Borrower), in such
amounts and with such deductibles as the Administrative Agent (on
behalf of itself or any Lender) may request.

 


Section
5.9            
Use of
Proceeds.

 


(a)         
Use the proceeds of the Revolving Loans (i) on the Effective Date,
to refinance Indebtedness under the Existing Credit Agreement and
to pay related transaction fees and expenses, and (ii) after the
Effective Date, to finance Permitted Acquisitions, for working
capital needs, for capital expenditures and for other general
corporate purposes of the Borrower and its
Subsidiaries.

 


(b)           Use
the proceeds of the Term Loan A advanced on the Effective Date to
(i) refinance Indebtedness under the Existing Credit Agreement and
to pay related transaction fees and expenses, and (ii) finance
Permitted Acquisitions.

 


(c)           Use
the proceeds of each Incremental Term Loan for the purposes set
forth in the definitive documentation therefor.

 


(d)           Use
all Letters of Credit for general corporate purposes.

 




 

76








 






 

 


Section
5.10         
Additional
Subsidiaries. If any Subsidiary is acquired or formed after
the Effective Date, promptly notify the Administrative Agent and
the Lenders thereof and, within ten (10) Business Days (or such
later date as the Administrative Agent may agree in its sole
discretion) after any such Subsidiary is acquired or formed, if
such Subsidiary is a Domestic Subsidiary (other than (i) any
Domestic Subsidiary of a Foreign Subsidiary that is a
“controlled foreign corporation” within the meaning of
Section 957 of the Code (except any such Domestic Subsidiary that
is treated as a C corporation for federal income tax purposes) and
(ii) CCTag), cause such Subsidiary to become a Guarantor. A
Subsidiary shall become an additional Guarantor by executing and
delivering to the Administrative Agent a Guarantor Joinder
Agreement in form and substance reasonably satisfactory to the
Administrative Agent, accompanied by (a) all other Loan
Documents related thereto, (b) certified copies of
Organization Documents, appropriate authorizing resolutions of the
board of directors of such Subsidiaries, and, upon the reasonable
request of the Administrative Agent, opinions of counsel comparable
to those delivered pursuant to Section 3.1(c), and (c) such
other documents as the Administrative Agent may reasonably
request.

 


Section
5.11          
Further
Assurances

 


(a)           Capital
Stock. Cause (i) 100% of the issued and outstanding Capital
Stock of each Domestic Subsidiary (other than CCTag) and (ii) 65%
(or such greater percentage that, due to a Change in Law after the
date hereof, (A) could not reasonably be expected to cause the
undistributed earnings of such Material Foreign Subsidiary as
determined for United States federal income tax purposes to be
treated as a deemed dividend to such Material Foreign
Subsidiary’s United States parent and (B) could not
reasonably be expected to cause any adverse tax consequences) of
the issued and outstanding Capital Stock entitled to vote (within
the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the
issued and outstanding Capital Stock not entitled to vote (within
the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Material
Foreign Subsidiary (other than any Domestic Subsidiary of a Foreign
Subsidiary that is a “controlled foreign corporation”
within the meaning of Section 957 of the Code (except any such
Domestic Subsidiary that is treated as a C corporation for federal
income tax purposes)) directly owned by any Loan Party to be
subject at all times to a first priority, perfected Lien in favor
of the Administrative Agent, for the benefit of the holders of the
Obligations, to secure the Obligations pursuant to the Collateral
Documents (subject to Liens permitted by Section 7.2), and, in
connection with the foregoing, deliver to the Administrative Agent
such other documentation as the Administrative Agent may reasonably
request including, any filings and deliveries to perfect such
Liens, Organization Documents, resolutions and opinions of counsel,
all in form, content and scope reasonably satisfactory to the
Administrative Agent.

 


(b)           Personal
Property. Cause all personal property (other than Excluded
Property) owned by each Loan Party to be subject at all times to
first priority, perfected Liens in favor of the Administrative
Agent, for the benefit of the holders of the Obligations, to secure
the Obligations as required by the Collateral Documents (subject to
Liens permitted by Section
7.2) and, in connection with the foregoing, deliver to the
Administrative Agent such documentation as the Administrative Agent
may reasonably request including filings and deliveries necessary
to perfect such Liens, Organization Documents, resolutions and
favorable opinions of counsel to such Person, all in form, content
and scope reasonably satisfactory to the Administrative
Agent.

 




 

77








 






 

 


(c)           Control
Agreements.  To the extent that a deposit account,
disbursement account, investment account, cash management account,
lockbox account or other account (other than an Excluded Account)
is maintained with a Lender (or any of its Affiliates) other than
SunTrust Bank (or any of its Affiliates), cause such deposit
account, disbursement account, investment account, cash management
account, lockbox account or other account to be subject to an
account control agreement in form and substance reasonably
satisfactory to the Administrative Agent (it being understood and
agreed that the Loan Parties shall have up to sixty (60) days after
the Effective Date (or such later date as the Administrative Agent
may agree in its sole discretion) to cause any such accounts
existing as of the Effective Date to become subject to such an
account control agreement); provided that no such account
control agreement shall be required with respect to any account
maintained with a Lender other than SunTrust Bank that has a
balance (or which holds assets with a fair market value) less than
$50,000, in any individual instance, or $100,000, when taken
together with the account balances (or aggregate amount of the fair
market value of assets) of all other accounts (other than Excluded
Accounts) that are not either maintained at SunTrust Bank or
subject to an account control agreement in form and substance
reasonably acceptable to the Administrative Agent.

 


(d)           Landlord
Consents.  Within ninety (90) days (or such later date
as the Administrative Agent may agree in its sole discretion) of
(i) the Effective Date, with respect to leased locations of the
Loan Parties existing on the Effective Date and (ii) the date a new
leasehold interest in real property is acquired by a Loan Party (or
an existing lease is renewed or extended), use commercially
reasonable efforts to deliver or cause to be delivered to the
Administrative Agent a duly executed landlord consent with respect
to each leased location where material corporate books and records
of any of the Loan Parties are maintained, which consents shall be
in form and substance reasonably acceptable to the Administrative
Agent.


 


(e)           Real
Property. Within forty-five (45) days (or such later date as
the Administrative Agent may agree in its sole discretion) of (i)
the Effective Date, with respect to fee-owned real property owned
as of the Effective Date and (ii) the date new fee-owned real
property is acquired by a Loan Party, cause all fee-owned real
property (other than Excluded Property) owned by each Loan Party to
be subject at all times to a valid and, subject to any filing
and/or recording referred to herein, enforceable Lien on, and
security interest in, such fee-owned real property that is prior
and superior in right to any other Lien in favor of the
Administrative Agent, for the benefit of the holders of the
Obligations, to secure the Obligations as required by the
Collateral Documents (subject to Liens permitted by Section 7.2) and, in connection
with the foregoing, deliver to the Administrative Agent such
documentation as the Administrative Agent may reasonably request
including filings and deliveries necessary to perfect such Liens,
Organization Documents, resolutions, Real Property Security
Documents and favorable opinions of counsel to such Person, all in
form, content and scope reasonably satisfactory to the
Administrative Agent.


 


Section
5.12        Cash Management. The Borrower
shall, and shall cause its Domestic Subsidiaries to, maintain all
cash management and treasury business (other than Excluded
Accounts) with SunTrust Bank or another Lender or any of their
respective Affiliates, including, without limitation, all deposit
accounts, disbursement accounts, investment accounts and lockbox
accounts; provided
however, that with
respect to all cash management and treasury business accounts
maintained with financial institutions other than SunTrust Bank or
any other Lender (or their respective Affiliates) acquired in
connection with a Permitted Acquisition, the Loan Parties shall
have ninety (90) days (or such later date as the Administrative
Agent may agree in its sole discretion) after the consummation of
such Permitted Acquisition to close such accounts and open new or
replacement accounts in compliance with this Section 5.12. Each account
maintained with a Lender (or any of its Affiliates) other than
SunTrust Bank shall be subject to an account control agreement to
the extent required under Section 5.11(c).

 


Section
5.13         Healthcare Matters. The
Borrower and its Subsidiaries shall maintain without restriction,
and shall cause each employee and contractor of the Borrower or any
Subsidiary to maintain without restriction, at all times all
necessary registrations, permits, licenses, franchises,
authorizations and clearances of all federal, state and local
governmental or regulatory authorities as are required or necessary
(i) for the Borrower and its Subsidiaries to own their respective
properties and to conduct their respective business as of any date
of determination in each jurisdiction in which each does business
as of the Effective Date and (ii) own and operate any business
acquired in each jurisdiction in which such business is located,
except in each of clauses
(i) and (ii)
where the failure to maintain any such necessary registrations,
permits, licenses, franchises, authorizations and clearances of all
federal, state and local governmental or regulatory authorities as
are required or necessary, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse
Effect.

 




 

78








 






 

 


ARTICLE
VI

 


FINANCIAL
COVENANTS

 


Each
Loan Party covenants and agrees that so long as any Lender has a
Commitment hereunder, any Obligation remains unpaid or outstanding,
or any Letter of Credit shall remain outstanding, no Loan Party
shall, nor shall it permit any Subsidiary to, directly or
indirectly:

 


Section
6.1         
Consolidated Total
Leverage Ratio. Permit the Consolidated Total Leverage Ratio
as of the end of each Fiscal Quarter, commencing with the Fiscal
Quarter ending September 30, 2017, to be greater than (a) for each
Fiscal Quarter ending from September 30, 2017 through and including
June 30, 2018, 3.50:1.00, (b) for each Fiscal Quarter ending from
September 30, 2018 through and including June 30, 2019, 3.25:1.00,
and (c) for each Fiscal Quarter ending thereafter,
3.00:1.00;

 



provided, however, that the Consolidated
Total Leverage Ratio levels set forth above may, at the election of
the Borrower and upon written notice to the Administrative Agent
prior to the consummation of any Qualified Permitted Acquisition,
be increased by 0.25:1.00 (a “quarter-turn”) in
connection with one or more Permitted Acquisitions made within a
twelve (12) month period with aggregate cash and non-cash
consideration (including assumed Indebtedness, the good faith
estimate by the Borrower of the maximum amount of any deferred
purchase price obligations (including the Borrower’s good
faith estimate of any anticipated earn-out obligations) and Capital
Stock) paid in connection therewith in excess of $20,000,000 (each
such Permitted Acquisition, whether individually satisfying such
consideration threshold amount or satisfying such consideration
threshold amount when taken together with other Permitted
Acquisitions made within a twelve (12) month period, a
“Qualified Permitted
Acquisition”), with a 0.25:1.0 step-down (returning
the required Consolidated Total Leverage Ratio to the then
otherwise required ratio) for the period of four Fiscal Quarters
ending with the second Fiscal Quarter ending after the period of
four Fiscal Quarters for which the maximum Consolidated Total
Leverage Ratio was first increased by 0.25:1.00 (a
“quarter-turn”) pursuant to this Section 6.1; provided further that, (x) in any event,
the maximum Consolidated Total Leverage Ratio for any period of
four Fiscal Quarters shall not be increased to be greater than
0.25:1.00 (a “quarter-turn”) more than the otherwise
required Consolidated Total Leverage Ratio as provided above, (y)
the Consolidated Total Leverage Ratio levels shall not be increased
pursuant to the foregoing proviso on more than two (2) occasions in
the period from the Effective Date through the Revolving Commitment
Termination Date and (z) following any increase in the Consolidated
Total Leverage Ratio level pursuant to the foregoing proviso, no
subsequent increase in the Consolidated Total Leverage Ratio level
pursuant to the foregoing proviso may be made until after the
required Consolidated Total Leverage Ratio has been at the
applicable level set forth above (without giving effect to any
increase pursuant to the foregoing proviso) for at least one full
Fiscal Quarter.


 


Section
6.2          
Consolidated Fixed Charge
Coverage Ratio. Permit a Consolidated Fixed Charge Coverage
Ratio as of the end of each Fiscal Quarter, commencing with the
Fiscal Quarter ending September 30, 2017, to be less than
1.50:1.00.

 




 

79








 






 

 


ARTICLE
VII

 


NEGATIVE
COVENANTS

 


Each
Loan Party covenants and agrees that so long as any Lender has a
Commitment hereunder, any Obligation remains unpaid or outstanding,
or any Letter of Credit shall remain outstanding, no Loan Party
shall, nor shall it permit any Subsidiary to, directly or
indirectly:

 


Section
7.1           
Indebtedness and Preferred
Equity. Create, incur, assume or suffer to exist any
Indebtedness, except:

 


(a)           Indebtedness
created pursuant to the Loan Documents;

 


(b)           Indebtedness
of the Borrower or any Subsidiary existing on the date hereof and
set forth on Schedule
7.1 and any Permitted Refinancing thereof;

 


(c)           Indebtedness
of the Borrower or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations; provided, that such
Indebtedness is incurred prior to or within ninety (90) days after
such acquisition or the completion of such construction or
improvements, and any Permitted Refinancing thereof; provided
further, that the aggregate principal amount of such Indebtedness
does not exceed $4,000,000 at any time outstanding;

 


(d)           Indebtedness
of the Borrower owing to any Subsidiary and of any Subsidiary owing
to the Borrower or any other Subsidiary; provided, that any such
Indebtedness that is owed by a Subsidiary that is not a Loan Party
shall be subject to Section 7.4;

 


(e)           Guarantees
by the Borrower of Indebtedness of any Subsidiary and by any
Subsidiary of Indebtedness of the Borrower or any other Subsidiary;
provided, that
Guarantees by any Loan Party of Indebtedness of any Subsidiary that
is not a Loan Party shall be subject to Section 7.4;

 


(f)        
   Hedging Obligations permitted by Section 7.11;

 


(g)         
  Permitted Subordinated Debt;

 


(h)           (i)
Indebtedness of any Person that becomes a Subsidiary (or of any
Person not previously a Subsidiary that is merged or consolidated
with or into a Subsidiary in a transaction permitted hereunder)
after the Effective Date, or Indebtedness of any Person that is
assumed by any Subsidiary in connection with an acquisition of
assets by such Subsidiary in a Permitted Acquisition after the
Effective Date; provided that, in each case,
such Indebtedness exists at the time such Person becomes a
Subsidiary (or is so merged or consolidated) or such assets are
acquired and is not created in contemplation of or in connection
with such Person becoming a Subsidiary (or such merger or
consolidation) or such assets being acquired, and (ii) Permitted
Refinancings in respect of Indebtedness assumed pursuant to
clause (i)
above; provided
further that the aggregate principal amount of Indebtedness
permitted by this clause (h) shall not
exceed $2,500,000 at any time outstanding; and

 




 

80








 






 

 


(i)           unsecured
Indebtedness of the Borrower or its Subsidiaries of a type not
contemplated in the foregoing in an aggregate principal amount not
to exceed $2,500,000 at any time outstanding.

 


Section
7.2           
Negative Pledge.
Create, incur, assume or suffer to exist any Lien on any of its
assets or property now owned or hereafter acquired,
except:

 


(a)           Liens
securing the Obligations pursuant to the Loan Documents and any
Liens on cash or deposits granted in favor of an Issuing Bank to
Cash Collateralize any Defaulting Lender’s participation in
Letters of Credit as contemplated by this Agreement;

 


(b)           Permitted
Encumbrances;

 


(c)           any
Liens on any property or assets of the Borrower or its Subsidiaries
existing on the Effective Date and set forth on Schedule 7.2; provided, that such Lien shall
not apply to any other property or asset of the Borrower or any
Subsidiary;

 


(d)           Liens
securing Indebtedness incurred pursuant to Section 7.1(h); provided that (i) such Liens do
not at any time encumber any property other than the property
financed by such Indebtedness, (ii) the Indebtedness secured
thereby does not exceed the cost (negotiated on an arm’s
length basis) of the property being acquired on the date of
acquisition and (iii) such Liens attached to such property
concurrently with or within ninety (90) days after the acquisition
thereof;

 


(e)           purchase
money Liens upon or in any fixed or capital assets to secure the
purchase price or the cost of construction or improvement of such
fixed or capital assets or to secure Indebtedness incurred solely
for the purpose of financing the acquisition, construction or
improvement of such fixed or capital assets (including Liens
securing any Capital Lease Obligations); provided, that (i) such Lien
secured Indebtedness permitted by Section 7.1(c), (ii) such Lien
attaches to such asset concurrently or within ninety (90) days
after the acquisition, improvement or completion of the
construction thereof; (iii) such Lien does not extend to any other
asset; and (iv) the Indebtedness secured thereby does not exceed
the cost of acquiring, constructing or improving such fixed or
capital assets; and

 


(f)           extensions,
renewals, or replacements of any Lien referred to in clauses (a) through
(e) of this
Section 7.2;
provided, that the
principal amount of the Indebtedness secured thereby is not
increased and that any such extension, renewal or replacement is
limited to the assets originally encumbered thereby;
and

 


(g)           other
Liens affecting property with an aggregate fair value not to exceed
$2,500,000 at any time, provided that no such Lien
shall extend to or cover any Collateral.

 


Section
7.3            
Fundamental
Changes.

 




 

81








 






 

 


(a)           Merge
into or consolidate into any other Person, or permit any other
Person to merge into or consolidate with it, or sell, lease,
transfer or otherwise dispose of (in a single transaction or a
series of transactions) all or substantially all of its assets (in
each case, whether now owned or hereafter acquired) or any line of
business or all or substantially all of the stock of any of its
Subsidiaries (in each case, whether now owned or hereafter
acquired) or liquidate or dissolve; provided, that if at the time
thereof and immediately after giving effect thereto, no Event of
Default shall have occurred and be continuing (except, in the case
of an Acquisition subject to the Incremental Funds Certain
Provision, in which case there is no Default or Event of Default
immediately before or immediately after execution and delivery of
the applicable Acquisition Agreement and there is no Specified
Event of Default at the date the applicable Permitted Acquisition
is consummated) (i) the Borrower or any Subsidiary may merge with a
Person pursuant to a Permitted Acquisition if the Borrower (or such
Subsidiary if the Borrower is not a party to such merger) is the
surviving Person, (ii) any Subsidiary may merge into another
Subsidiary; provided, that if any party to
such merger is a Guarantor, the Guarantor shall be the surviving
Person, (iii) any Subsidiary may sell, transfer, lease or otherwise
dispose of all or substantially all of its assets to any Loan Party
and (iv) any Subsidiary (other than a Guarantor) may liquidate or
dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower
and is not materially disadvantageous to the Lenders; provided that (x) its assets are all
disposed of pursuant to Section 2.12(a) and (y) any
such merger involving a Person that is not a wholly-owned
Subsidiary immediately prior to such merger shall not be permitted
unless also permitted by Section 7.4.

 


(b)           Engage
in any business other than businesses of the type conducted by the
Borrower and its Subsidiaries on the date hereof and businesses
reasonably related thereto.

 


Section
7.4           
Investments, Loans,
Etc. Make any Investment except:

 


(a)           Investments
existing on the date hereof and set forth on Schedule 7.4 (including
Investments in Subsidiaries);

 


(b)           Permitted
Investments;

 


(c)           Guarantees
by Borrower or any Subsidiary constituting Indebtedness permitted
by Section
7.1;

 


(d)           Investments
made by the Borrower in or to any Subsidiary and by any Subsidiary
to the Borrower or in or to another Subsidiary; provided, that the aggregate
amount of Investments by Loan Parties in or to, and Guarantees by
Loan Parties of Indebtedness of any Subsidiary that is not a
Guarantor (including all such Investments and Guarantees existing
on the Effective Date) shall not exceed $2,000,000 at any time
outstanding;

 


(e)           loans
or advances to employees, officers or directors of the Borrower or
any Subsidiary in the ordinary course of business; provided, that the aggregate
amount of all such loans and advances does not exceed $500,000 in
the aggregate at any time outstanding;

 


(f)           Hedging
Transactions permitted by Section 7.11;

 


(g)           Permitted
Acquisitions; and

 


(h)           other
Investments which in the aggregate do not exceed $2,500,000 in any
Fiscal Year.

 




 

82








 






 

 


Section
7.5           
Restricted
Payments. Declare or make, or agree to pay or make, directly
or indirectly, any Restricted Payment; provided, that, so long as no Default or
Event of Default has occurred and is continuing at the time of such
Restricted Payment or would result therefrom, the Borrower may
declare or make, directly or indirectly:

 


(a)           dividends
payable by the Borrower solely in shares of any class of its common
stock;

 


(b)           redemptions
or repurchases of Capital Stock in the Borrower made solely in
shares of any class of its common stock;

 


(c)           Restricted
Payments made by any Subsidiary to Persons that own Capital Stock
in such Subsidiary, on a pro rata basis according to their
respective holdings of the type of Capital Stock in respect of
which such Restricted Payment is being made with any other
shareholders if such Subsidiary is not wholly owned by the Borrower
and other wholly owned Subsidiaries; and

 


(d)           redemptions
or repurchases of Capital Stock in the Borrower from employees and
former employees of the Borrower and in connection with the
Borrower’s share repurchase program as in effect on the
Effective Date (i) in an aggregate amount of all such redemptions
or repurchases made pursuant to this Section 7.5(d) in any Fiscal
Year not to exceed $5,000,000 or (ii) in an unlimited amount, so
long as, after giving effect to any such redemption or repurchase
on a Pro Forma Basis, (A) the Borrower shall be in compliance with
the financial covenant set forth in Section 6.2 and (B) the
Consolidated Total Leverage Ratio shall be at least 0.25:1.00 (a
“quarter-turn”) less than the maximum Consolidated
Total Leverage Ratio specified in Section 6.1 for the period of
four (4) Fiscal Quarters most recently ended prior to the date of
determination for which financial statements were delivered under
Section 5.1(a) or
(b), in each case,
as detailed in a Pro Forma Compliance Certificate delivered to the
Administrative Agent at least five (5) days (or such shorter period
as may be agreed to by Administrative Agent) prior to any such
redemption or repurchase.

 


Section
7.6           
Payment on
Indebtedness. Prepay, redeem, purchase, defease or otherwise
satisfy or obligate itself to do so prior to the scheduled maturity
thereof in any manner (including by the exercise of any right of
setoff), or make any payment in violation of any subordination,
standstill or collateral sharing terms of or governing any
Permitted Subordinated Debt; provided that the Borrower may
pay scheduled payments of principal and interest on Permitted
Subordinated Debt, subject to the terms of the applicable
Subordinated Debt Documents.

 


Section
7.7            
Sale of Assets.
Make any Asset Sale or enter into any agreement to make any Asset
Sale, except for Asset Sales for which (a) at least seventy-five
percent (75%) of the consideration paid in connection therewith
shall be cash or Permitted Investments paid contemporaneously with
consummation of the transaction and shall be in an amount not less
than the fair market value of the property disposed of, (b) the Net
Cash Proceeds thereof are applied to repayment of the Loans to the
extent required under Section 2.12(a), (c) such
transaction does not involve the sale or other disposition of
Capital Stock in any Subsidiary (except as contemplated in
clause (g) of the
definition of “Asset Sale” in Section 1.1), (d) such
transaction does not involve a sale or other disposition of
receivables other than (i) receivables owned by or attributable to
other property concurrently being disposed of in a transaction
otherwise permitted under this Section 7.7 or (ii) as
contemplated under clause
(d) of the definition of “Asset Sale” in
Section 1.1, and
(e) the aggregate net book value of all of the assets sold or
otherwise disposed of by the Loan Parties and their Subsidiaries in
all such transactions shall not exceed five percent (5%) of
Consolidated Total Assets during the term of this
Agreement.

 




 

83








 






 


Section
7.8            
Transactions with
Affiliates. Sell, lease or otherwise transfer any property
or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with,
any of its Affiliates, except (a) in the ordinary course of
business at prices and on terms and conditions not less favorable
to the Borrower or such Subsidiary than could be obtained on an
arm’s-length basis from unrelated third parties, (b)
transactions between or among the Loan Parties and (c) any
Restricted Payment permitted by Section 7.5.

 


Section
7.9            
Restrictive
Agreements. Enter into, incur or permit to exist any
agreement that prohibits, restricts or imposes any condition upon
(a) the ability of the Borrower or any Subsidiary to create, incur
or permit any Lien upon any of its assets or properties, whether
now owned or hereafter acquired, or (b) the ability of any
Subsidiary to pay dividends or other distributions with
respect to its Capital Stock, to make or repay loans or advances to
the Borrower or any other Subsidiary, to Guarantee Indebtedness of
the Borrower or any other Subsidiary or to transfer any of its
property or assets to the Borrower or any Subsidiary of the
Borrower; provided,
that (i) the foregoing shall not apply to restrictions or
conditions imposed by Law or by this Agreement or any other
Loan Document, (ii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is sold and such sale
is permitted hereunder, (iii) clause (a) shall not apply to
restrictions or conditions imposed by any agreement relating to
secured Indebtedness or Capital Lease Obligations permitted by this
Agreement so long as such restrictions and conditions apply only to
the property or assets securing such Indebtedness and (iv)
clause (a) shall
not apply to customary provision in leases and other contracts
restricting the assignment thereof.

 


Section
7.10          
Sale and Leaseback
Transactions. Enter into any arrangement, directly or
indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or
hereinafter acquired, and thereafter rent or lease such property or
other property that it intends to use for substantially the same
purpose or purposes as the property sold or
transferred.

 


Section
7.11           
Hedging
Transactions. Enter into any Hedging Transaction, other than
Hedging Transactions entered into in the ordinary course of
business to hedge or mitigate risks to which the Borrower or any
Subsidiary is exposed in the conduct of its business or the
management of its liabilities and not for speculative
purposes.

 


Section
7.12           
Amendments to Certain
Documents.

 


(a)           Amend,
modify or change in any manner any term or condition of any
Subordinated Debt Documents, or give any consent, waiver or
approval thereunder; provided that the Subordinated
Debt Documents may be amended or modified to extend the
amortization or maturity of the indebtedness evidenced thereby,
reduce the interest rate thereon, or otherwise amend or modify the
terms thereof so long as the terms of any such amendment or
modification are not adverse in any material respect to the
Borrower, any Subsidiary, or to the Administrative Agent and the
Lenders; or

 


(c)           Amend,
modify or waive any of its rights in a manner materially adverse to
the Lenders or any Loan Party under (i) its Organization Documents
or (ii) any Material Agreements.




 

84








 






 


 


Section
7.13          
Accounting Changes.
Make any significant change in accounting treatment or reporting
practices, except as required by GAAP, or change the Fiscal Year of
the Borrower or of any of its Subsidiaries, except to change the
fiscal year of a Subsidiary to conform its fiscal year to that of
the Borrower.

 


Section
7.14          
Government
Regulation. The Borrower will not, and will not permit any
of its Subsidiaries to, (a) be or become subject at any time to any
law, regulation or list of any Governmental Authority of the United
States (including, without limitation, the OFAC list) that
prohibits or limits the Lenders or the Administrative Agent from
making any advance or extension of credit to the Borrower or from
otherwise conducting business with the Loan Parties, or (b) fail to
provide documentary and other evidence of the identity of the Loan
Parties as may be requested by the Lenders or the Administrative
Agent at any time to enable the Lenders or the Administrative Agent
to verify the identity of the Loan Parties or to comply with any
applicable Law or regulation, including, without limitation,
Section 326 of the Patriot Act at 31 U.S.C. Section
5318.

 


Section
7.15          
Ownership of
Subsidiaries. Notwithstanding any other provisions of this
Agreement to the contrary, the Borrower will not, and will not
permit any of the Subsidiaries to permit any Subsidiary to issue or
have outstanding any shares of preferred Capital
Stock.

 


Section
7.16            
Use of
Proceeds.

 


(a)           Use
any part of the proceeds of any Loan, whether directly or
indirectly, for any purpose that would violate any rule or
regulation of the Board of Governors of the Federal Reserve System,
including Regulations T, U or X.

 


(b)           Request
any Borrowing or Letter of Credit, or use or allow its respective
directors, officers, employees and agents to use, the proceeds of
any Borrowing or Letter of Credit (i) in furtherance of an offer,
payment, promise to pay, or authorization of the payment or giving
of money, or anything else of value, to any Person in violation of
any Anti-Corruption Laws, (ii) for the purpose of funding,
financing or facilitating any activities, business or transaction
of or with any Sanctioned Person, or in any Sanctioned Country or
(iii) in any manner that would result in the violation of any
Sanctions applicable to any party.

 


Section
7.17          
Sanctions and
Anti-Corruption Laws. Request any Loan or Letter of Credit
or use the proceeds of any Loan and/or Letter of Credit (a) to
fund, finance or facilitate any activities of or business with any
Sanctioned Person or in any Sanctioned Country, (b) that will
result in a violation by any Person (including any Person
participating in the transaction, whether as an Arranger, the
Administrative Agent, any Lender (including a Swingline Lender) or
any Issuing Bank or otherwise) of Sanctions or (c) that would in
any manner violate any Anti-Corruption Laws.

 




 

85








 






 

 


ARTICLE
VIII

 


EVENTS
OF DEFAULT

 


Section
8.1            
Events of Default.
If any of the following events (each an “Event of Default”) shall
occur:

 


(a)           any
Loan Party shall fail to pay any principal of any Loan or of any
reimbursement obligation in respect of any LC Disbursement when and
as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment or otherwise;
or

 


(b)           any
Loan Party shall fail to pay any interest on any Loan or any fee or
any other amount (other than an amount payable under clause (a) of this Section 8.1 or an amount
related to a Bank Product Obligation) payable under this Agreement
or any other Loan Document, when and as the same shall become due
and payable, and such failure shall continue unremedied for a
period of three (3) Business Days; or

 


(c)           any
representation or warranty made or deemed made by or on behalf of
the Borrower or any Subsidiary in or in connection with this
Agreement or any other Loan Document (including the Schedules
attached thereto) and any amendments or modifications hereof or
waivers hereunder, or in any certificate, report, financial
statement or other document submitted to the Administrative Agent
or the Lenders by any Loan Party or any representative of any Loan
Party pursuant to or in connection with this Agreement or any other
Loan Document shall prove to be incorrect in any material respect
(other than a representation or warranty that is expressly
qualified by a Material Adverse Effect or materiality, in which
case such representation or warranty shall prove to be incorrect in
all respects) when made or deemed made or submitted;
or

 


(d)           any
Loan Party shall fail to observe or perform any covenant or
agreement contained in Section 5.1, 5.2, 5.3 (as to the existence of any
Loan Party) 5.7,
5.9 or Articles VI or VII; or

 


(e)           any
Loan Party shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those referred to
in clauses (a),
(b) and
(d) above) or any
other Loan Document or related to any Bank Product Obligation, and
such failure shall remain unremedied for thirty (30) days
after the earlier of (i) any Responsible Officer of any Loan
Party becomes aware of such failure, or (ii) written notice thereof
shall have been given to any Loan Party by the Administrative Agent
or any Lender; or

 


(f)           the
Borrower or any Subsidiary (whether as primary obligor or as
guarantor or other surety) shall fail to pay any principal of, or
premium or interest on, any Material Indebtedness that is
outstanding, when and as the same shall become due and payable
(whether at scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or
instrument evidencing or governing such Material Indebtedness; or
any other event shall occur or condition shall exist under any
agreement or instrument relating to such Material Indebtedness and
shall continue after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the
maturity of such Material Indebtedness; or any such Material
Indebtedness shall be declared to be due and payable, or required
to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or any
offer to prepay, redeem, purchase or defease such Material
Indebtedness shall be required to be made, in each case prior to
the stated maturity thereof; or

 




 

86








 






 

 


(g)           the
Borrower or any Subsidiary shall (i) commence a voluntary case or
other proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or foreign
bankruptcy, insolvency or other similar Law now or hereafter in
effect or seeking the appointment of a custodian, trustee,
receiver, liquidator or other similar official of it or any
substantial part of its property, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Section 8.1, (iii) apply for or
consent to the appointment of a custodian, trustee, receiver,
liquidator or other similar official for the Borrower or any such
Subsidiary or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment
for the benefit of creditors, or (vi) take any action for the
purpose of effecting any of the foregoing; or

 


(h)           an
involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Subsidiary or its
debts, or any substantial part of its assets, under any federal,
state or foreign bankruptcy, insolvency or other similar Law now or
hereafter in effect or (ii) the appointment of a custodian,
trustee, receiver, liquidator or other similar official for the
Borrower or any Subsidiary or for a substantial part of its assets,
and in any such case, such proceeding or petition shall remain
undismissed for a period of sixty (60) days or an order or decree
approving or ordering any of the foregoing shall be entered;
or

 


(i)           the
Borrower or any Subsidiary shall become unable to pay, shall admit
in writing its inability to pay, or shall fail to pay, its debts as
they become due; or

 


(j)           an
ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with other ERISA Events that
have occurred, would reasonably be expected to result in liability
to the Borrower and the Subsidiaries in an aggregate amount
exceeding $2,500,000; or

 


(k)           any
judgment or order for the payment of money in excess of $2,500,000
(to the extent not adequately covered by insurance as to which a
solvent and unaffiliated insurance company has acknowledged
coverage), individually or in the aggregate, shall be rendered
against the Borrower or any Subsidiary, and either (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be a period of thirty
(30) consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or

 


(l)           any
non-monetary judgment or order shall be rendered against the
Borrower or any Subsidiary that would reasonably be expected to
have a Material Adverse Effect, and there shall be a period of
thirty (30) consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or

 


(m)           a
Change in Control shall occur or exist; or

 


(n)           with
respect to any Permitted Subordinated Debt in an aggregate
committed or outstanding principal amount exceeding $1,000,000, any
default or event of default (after giving effect to any grace
period) shall have occurred and be continuing under any of the
Subordinated Debt Documents (even if, for avoidance of doubt, such
default shall have occurred as a result of the failure of any
obligor thereunder to make a payment required under the
Subordinated Debt Documents which payment is not permitted to be
made as a result of Section 7.6 of this Agreement),
or any of the applicable Subordinated Debt Documents shall cease to
be in full force and effect or the validity or enforceability
thereof is disaffirmed by or on behalf of any subordinated lender
party thereto, or any Obligations fail to constitute “Senior
Debt” (or similar or analogous term) for purposes of any of
the applicable Subordinated Debt Documents, or all or any part of
such Permitted Subordinated Debt is accelerated, is declared to be
due and payable is required to be prepaid or redeemed, in each case
prior to the stated maturity thereof; or

 




 

87








 






 

 


(o)           any
Loan Document, at any time after its execution and delivery and for
any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases
to be in full force and effect or ceases to give the Administrative
Agent any material part of the Liens purported to be created
thereby; or any Loan Party or any Person acting by or on behalf of
any Loan Party contests in any manner the validity or
enforceability of any Loan Document; or any Loan Party denies that
it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind any Loan
Document.

 


then,
and in every such event (other than an event with respect to the
Borrower described in clause (g) or (h) of this Section 8.1) and at any time
thereafter during the continuance of such event, the Administrative
Agent may, and upon the written request of the Required Lenders
shall, by notice to the Borrower, take any or all of the following
actions, at the same or different times: (i) terminate the
Commitments, whereupon the Commitment of each Lender shall
terminate immediately, (ii) declare the principal of and any
accrued interest on the Loans then outstanding, and all other
Obligations owing hereunder, to be, whereupon the same shall
become, due and payable immediately, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived
by the Borrower, (iii) exercise all remedies contained in any other
Loan Document, and (iv) exercise any other remedies available at
Law or in equity; and that, if an Event of Default specified in
either clause (g)
or (h) shall occur,
the Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon,
and all fees, and all other Obligations shall automatically become
due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the
Borrower.

 


Section
8.2           
Application of
Funds.

 


After
the exercise of remedies provided for in Section 8.1 (or immediately
after an Event of Default specified in either clause (g) or (h) of Section 8.1), any amounts
received on account of the Obligations shall be applied by the
Administrative Agent in the following order:

 


(a)           first,
to the reimbursable expenses of the Administrative Agent incurred
in connection with such sale or other realization upon the
Collateral, until the same shall have been paid in
full;

 


(b)           second,
to the fees and other reimbursable expenses of the Administrative
Agent and the Issuing Banks then due and payable pursuant to any of
the Loan Documents, until the same shall have been paid in
full;

 


(c)           third,
to all reimbursable expenses, if any, of the Lenders then due and
payable pursuant to any of the Loan Documents, until the same shall
have been paid in full;

 


(d)           fourth,
to the fees due and payable under Sections 2.14(b) and
(c) of this
Agreement and interest then due and payable under the terms of this
Agreement, until the same shall have been paid in
full;

 




 

88








 






 

 


(e)           fifth,
to the aggregate outstanding principal amount of the Term Loans
(allocated among the Term Loan Lenders in respect of their Pro Rata
Shares), to the aggregate outstanding principal amount of the
Revolving Loans, the LC Exposure, the Net Mark-to-Market Exposure
(to the extent secured by Liens) and the Bank Product Obligations
of the Borrower and its Subsidiaries, until the same shall have
been paid in full, allocated pro rata among any Lender, any
Lender-Related Hedge Provider and any Bank Product Provider, based
on their respective Pro Rata Shares of the aggregate amount of such
Revolving Loans, LC Exposure, Net Mark-to-Market Exposure (to the
extent secured by Liens) and Bank Product Obligations;

 


(f)           sixth,
to additional cash collateral for the aggregate amount of all
outstanding Letters of Credit until the aggregate amount of all
cash collateral held by the Administrative Agent pursuant to this
Agreement is equal to 102% of the LC Exposure after giving effect
to the foregoing clause
fifth; and

 


(g)           to
the extent any proceeds remain, to the Borrower or other parties
lawfully entitled thereto.

 


All
amounts allocated pursuant to the foregoing clauses third through sixth to the Lenders as a
result of amounts owed to the Lenders under the Loan Documents
shall be allocated among, and distributed to, the Lenders pro rata
based on their respective Pro Rata Shares; provided, that all amounts
allocated to that portion of the LC Exposure comprised of the
aggregate undrawn amount of all outstanding Letters of Credit
pursuant to clause
fifth and
sixth shall be
distributed to the Administrative Agent, rather than to the
Lenders, and held by the Administrative Agent in an account in the
name of the Administrative Agent for the benefit of the Issuing
Banks and the Revolving Lenders as Cash Collateral for the LC
Exposure, such account to be administered in accordance with
Section
2.22(g).


 


Excluded Swap
Obligations with respect to any Guarantor shall not be paid with
amounts received from such Guarantor or its assets, but appropriate
adjustments shall be made with respect to payments from other Loan
Parties to preserve the allocation to Obligations otherwise set
forth above in this Section 8.2.


 


Notwithstanding the
foregoing, Hedging Obligations and Bank Product Obligations may be
excluded from the application described above without any liability
to the Administrative Agent, if the Administrative Agent has not
received written notice, together with such supporting
documentation as the Administrative Agent may request, from the
applicable Lender-Related Hedge Provider or Bank Product
Provider.  Each Lender-Related Hedge Provider and Bank Product
Provider not a party to this Agreement that has given the notice
contemplated by the preceding sentence shall, by such notice, be
deemed to have acknowledged and accepted the appointment of the
Administrative Agent pursuant to the terms of Article IX for itself and its
Affiliates as if a Lender party hereto.


 


Section
8.3           
Borrower’s Right to
Cure.

 


(a)           Notwithstanding
anything to the contrary contained in Section 8.1, in the event that
the Loan Parties fail (or, but for the operation of this
Section 8.3, would
fail) to comply with the requirements of the covenants set forth in
Article VI, until
the expiration of the 10th Business Day subsequent to the date the
Compliance Certificate is required to be delivered pursuant to
Section 5.1(c)
(such period of ten (10) Business Days, the “Cure Period”), the
Borrower shall have the right to receive a cash equity contribution
that does not take the form of Disqualified Capital Stock from any
Person for cash which it may specify as an increase to Consolidated
EBITDA (such equity contribution, a “Specified Equity
Contribution”), and upon the receipt by the Borrower
of such Specified Equity Contribution within the Cure Period and
application thereof as a mandatory prepayment as provided in
Section 8.3(b)(vi)
below, the covenants set forth in Article VI shall be
recalculated giving effect to the following pro forma adjustments
(collectively, the “Cure
Right”):




 

89








 






 


 


(i)           Consolidated
EBITDA shall be increased for the applicable Fiscal Quarter (the
“Applicable
Quarter”) and any period of four Fiscal Quarters that
includes the Applicable Quarter, solely for the purpose of
measuring the covenants set forth in Article VI, and not for any
other purpose under this Agreement, by an amount equal to the
Specified Equity Contribution; and


 


(ii)           If,
after giving effect to the foregoing recalculations, the Loan
Parties shall then be in compliance with the requirements of the
covenants set forth in Article VI, the Loan Parties
shall be deemed to have satisfied the requirements of the covenants
set forth in Article
VI as of the relevant date of determination with the same
effect as though there had been no failure to comply therewith at
such date, and the applicable breach or default of the covenant set
forth in Article VI
that had occurred shall be deemed cured for the purposes of this
Agreement.


 


(b)           Notwithstanding
anything herein to the contrary, (i) the Loan Parties shall provide
notice to the Administrative Agent of its intention to exercise the
Cure Right (the “Cure Notice”) no later
than the date that is eight (8) Business Days after the date on
which the Compliance Certificate is required to be delivered
pursuant to Section
5.1(c), and the Specified Equity Contribution must actually
be received during the Cure Period, (ii) the Specified Equity
Contribution shall be no greater than the amount required for
purposes of complying with the applicable financial covenants in
Article VI, (iii)
Indebtedness repaid with the proceeds of an issuance of Capital
Stock (other than Disqualified Capital Stock) effected in
connection with the exercise of a Cure Right pursuant to this
Section 8.3 shall
be deemed to be unrepaid for purposes of calculating the applicable
financial covenants specified in Article VI for any period of
four Fiscal Quarters that includes the Applicable Quarter, (iv) the
Specified Equity Contribution received pursuant to any exercise of
the Cure Right shall be disregarded for purposes of determining any
available basket under any covenant in this Agreement, the
calculation of the Applicable Margin at any time and/or compliance
with (or meeting requirement threshold under) the financial
covenants set forth in Article VI on a Pro Forma Basis
for any other purpose of this Agreement, (v) the Cure Right may be
exercised no more than one time during the term of this Agreement,
(vi) 100% of the Net Cash Proceeds received by the Loan Parties in
connection with the exercise of a Cure Right hereunder shall be
applied as a mandatory prepayment of the Loans in accordance with
Section 2.12(d),
(vii) unless (A) the Borrower or any other Loan Party has stated in
writing that it does not intend to cause a Specified Equity
Contribution to be provided or failed to deliver the Cure Notice as
provided in clause
(b)(i) above or (B) the Event of Default is precluded from
being cured pursuant to this Section 8.3 because of
clause (b)(i) or
(b)(v) above,
following receipt of the Cure Notice as provided in clause (b)(i) above, neither
the Administrative Agent nor any Lender shall exercise any remedy
under the Loan Documents (for the avoidance of doubt, including the
institution of Default Interest) or applicable Laws on the basis of
an Event of Default caused solely by the failure of the Loan
Parties to comply with Article VI until the second
Business Day immediately following the end of the Cure Period (the
“Standstill
Period”) and (viii) during the Standstill Period
(unless and until the Event of Default is cured pursuant to this
Section 8.3), the
Borrower shall not request, and the Lenders shall not be required
to make, (A) any Loans or issue any Letters of Credit or (B) any
conversions from Base Rate Loans into Eurodollar Loans or
continuations of Eurodollar Loans (which shall automatically
convert into Base Rate Loans at the end of the applicable Interest
Period).




 

90








 






 


ARTICLE
IX

 


THE
ADMINISTRATIVE AGENT

 


Section
9.1           
Appointment of
Administrative Agent.

 


(a)           Each
Lender irrevocably appoints SunTrust Bank as the Administrative
Agent and authorizes it to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent
under this Agreement and the other Loan Documents, together with
all such actions and powers that are reasonably incidental thereto.
The Administrative Agent may perform any of its duties hereunder or
under the other Loan Documents by or through any one or more
sub-agents or attorneys-in-fact appointed by the Administrative
Agent. The Administrative Agent and any such sub-agent or
attorney-in-fact may perform any and all of its duties and exercise
its rights and powers through their respective Related Parties. The
exculpatory provisions set forth in this Article IX shall apply to any
such sub-agent, attorney-in-fact or Related Party and shall apply
to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities
as the Administrative Agent.

 


(b)           Each
of the Issuing Banks shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Required
Lenders to act for such Issuing Bank with respect thereto; provided
that each of the Issuing Banks shall have all the benefits and
immunities (i) provided to the Administrative Agent in this
Article IX with
respect to any acts taken or omissions suffered by such Issuing
Bank in connection with Letters of Credit issued by it or proposed
to be issued by it and the application and agreements for letters
of credit pertaining to the Letters of Credit as fully as if the
term “Administrative Agent” as used in this
Article IX included
such Issuing Bank with respect to such acts or omissions and (ii)
as additionally provided in this Agreement with respect to such
Issuing Bank.

 




 

91








 






 


 


Section
9.2        Nature of Duties of Administrative
Agent. The Administrative Agent shall not have any duties or
obligations except those expressly set forth in this Agreement and
the other Loan Documents. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default
or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except
those discretionary rights and powers expressly contemplated by the
Loan Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 11.2), provided that
the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan
Document or applicable law, including for the avoidance of doubt
any action that may be in violation of the automatic stay under any
Debtor Relief Law or that may effect a forfeiture, modification or
termination of property of a Defaulting Lender in violation of any
Debtor Relief Law; and (c) except as expressly set forth in the
Loan Documents, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Subsidiaries
that is communicated to or obtained by the Administrative Agent or
any of its Affiliates in any capacity. The Administrative Agent
shall not be liable for any action taken or not taken by it, its
sub-agents or its attorneys-in-fact with the consent or at the
request of the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as
provided in Section
11.2) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall not be
responsible for the negligence or misconduct of any sub-agents or
attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall not be deemed to have knowledge of any
Default or Event of Default unless and until written notice thereof
(which notice shall include an express reference to such event
being a “Default” or “Event of Default”
hereunder) is given to the Administrative Agent by the Borrower or
any Lender, and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with
any 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 and conditions set
forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent. The Administrative
Agent may consult with legal counsel (including counsel for the
Borrower) concerning all matters pertaining to such
duties.

 


Section
9.3         Lack of Reliance on the Administrative
Agent. Each of the Lenders, the Swingline Lender and the
Issuing Banks acknowledges that it has, independently and without
reliance upon the Administrative Agent, any Issuing Bank or any
other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each of the Lenders, the Swingline
Lender and the Issuing Banks also acknowledges that it will,
independently and without reliance upon the Administrative Agent,
any Issuing Bank or any other Lender and based on such documents
and information as it has deemed appropriate, continue to make its
own decisions in taking or not taking any action under or based on
this Agreement, any related agreement or any document furnished
hereunder or thereunder.

 


Section
9.4         Certain Rights of the Administrative
Agent. If the Administrative Agent shall request
instructions from the Required Lenders with respect to any action
or actions (including the failure to act) in connection with this
Agreement, the Administrative Agent shall be entitled to refrain
from such act or taking such act unless and until it shall have
received instructions from such Lenders, and the Administrative
Agent shall not incur liability to any Person by reason of so
refraining. Without limiting the foregoing, no Lender shall have
any right of action whatsoever against the Administrative Agent as
a result of the Administrative Agent acting or refraining from
acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this
Agreement.

 


Section
9.5           
Reliance by Administrative
Agent. The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument,
document or other writing (including any electronic message,
posting or other distribution) believed by it to be genuine and to
have been signed, sent or made by the proper Person. The
Administrative Agent may also rely upon any statement made to it
orally or by telephone and believed by it to be made by the proper
Person and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (including
counsel for the Borrower), independent public 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 such counsel,
accountants or experts.

 




 

92








 






 

 


Section
9.6            
The Administrative Agent
in its Individual Capacity. The bank serving as the
Administrative Agent shall have the same rights and powers under
this Agreement and any other Loan Document in its capacity as a
Lender as any other Lender and may exercise or refrain from
exercising the same as though it were not the Administrative Agent;
and the terms “Lenders”, “Required Lenders”
or any similar terms shall, unless the context clearly otherwise
indicates, include the Administrative Agent in its individual
capacity. The bank acting as the Administrative Agent and its
Affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrower or any Subsidiary
or Affiliate of the Borrower as if it were not the Administrative
Agent hereunder.

 


Section
9.7             
Successor Administrative
Agent.

 


(a)           The
Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a
successor Administrative Agent, subject to approval by the
Borrower, provided that no Default or Event of Default shall exist
at such time. If no successor Administrative Agent shall have been
so appointed, and shall have accepted such appointment within
thirty (30) days after the retiring Administrative Agent gives
notice of resignation, then the retiring Administrative Agent may,
on behalf of the Lenders, appoint a successor Administrative Agent
which shall be a commercial bank organized under the laws of the
United States or any state thereof or a bank which maintains an
office in the United States.

 


(b)           Upon
the acceptance of its appointment as the Administrative Agent
hereunder by a successor, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties
and obligations under this Agreement and the other Loan Documents.
If, within forty-five (45) days after written notice is given of
the retiring Administrative Agent’s resignation under this
Section 9.7, no
successor Administrative Agent shall have been appointed and shall
have accepted such appointment, then on such 45th day (i) the
retiring Administrative Agent’s resignation shall become
effective, (ii) the retiring Administrative Agent shall thereupon
be discharged from its duties and obligations under the Loan
Documents and (iii) the Required Lenders shall thereafter perform
all duties of the retiring Administrative Agent under the Loan
Documents until such time as the Required Lenders appoint a
successor Administrative Agent as provided above. After any
retiring Administrative Agent’s resignation hereunder, the
provisions of this Article
IX shall continue in effect for the benefit of such retiring
Administrative Agent and its representatives and agents in respect
of any actions taken or not taken by any of them while it was
serving as the Administrative Agent.

 


(c)           In
addition to the foregoing, if a Lender becomes, and during the
period it remains, a Defaulting Lender, and if any Default has
arisen from a failure of the Borrower to comply with Section 2.26(b), then each of
the Issuing Banks and the Swingline Lender may, upon prior written
notice to the Borrower and the Administrative Agent, resign as an
Issuing Bank or as Swingline Lender, as the case may be, effective
at the close of business Atlanta, Georgia time on a date specified
in such notice (which date may not be less than five (5) Business
Days after the date of such notice).

 




 

93








 






 

 


Section
9.8            
Withholding Tax. To
the extent required by any applicable Law, the Administrative Agent
may withhold from any interest payment to any Lender an amount
equivalent to any applicable withholding tax. If the Internal
Revenue Service or any authority of the United States or any other
jurisdiction asserts a claim that the 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 the
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 the
Administrative Agent (to the extent that the Administrative Agent
has not already been reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so) fully for all
amounts paid, directly or indirectly, by the Administrative Agent
as tax or otherwise, including penalties and interest, together
with all expenses incurred, including legal expenses, allocated
staff costs and any out of pocket expenses.

 


Section
9.9             
Administrative Agent May
File Proofs of Claim.

 


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

 


(i)           to
file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans or Revolving
Credit Exposure and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable
in order to have the claims of the Lenders, the Issuing Banks and
the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders,
the Issuing Banks and the Administrative Agent and its agents and
counsel and all other amounts due the Lenders, the Issuing Banks
and the Administrative Agent under Section 10.3) allowed in such
judicial proceeding; and

 


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

 


(b)           Any
custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby
authorized by each Lender and each Issuing Bank to make such
payments to the Administrative Agent and, if the Administrative
Agent shall consent to the making of such payments directly to the
Lenders and the Issuing Banks, to pay to the Administrative Agent
any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative
Agent under Section
11.3.

 


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

 




 

94








 






 

 


Section
9.10       Authorization to Execute Other Loan
Documents. Each Lender hereby authorizes the Administrative
Agent to execute on behalf of all Lenders all Loan Documents
(including, without limitation, the Collateral Documents and any
subordination agreements) other than this Agreement.

 


Section
9.11          
Collateral and Guaranty
Matters. The Lenders irrevocably authorize the
Administrative Agent, at its option and in its
discretion:

 


(a)           to
release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon the
termination of all Revolving Commitments, the Cash
Collateralization of all reimbursement obligations with respect to
Letters of Credit in an amount equal to 102% of the aggregate LC
Exposure of all Lenders, and the payment in full of all Obligations
(other than contingent indemnification obligations and such Cash
Collateralized reimbursement obligations), (ii) that is sold or to
be sold as part of or in connection with any sale permitted
hereunder or under any other Loan Document, or (iii) if approved,
authorized or ratified in writing in accordance with Section 11.2; and

 


(b)           to
release any Loan Party from its obligations under the applicable
Collateral Documents if such Person ceases to be a Subsidiary as a
result of a transaction permitted hereunder.

 


Upon
request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent’s
authority to release its interest in particular types or items of
property, or to release any Loan Party from its obligations under
the applicable Collateral Documents pursuant to this Section 9.11. In each case as
specified in this Section
9.11, the Administrative Agent is authorized, at the
Borrower’s expense, to execute and deliver to the applicable
Loan Party such documents as such Loan Party may reasonably request
to evidence the release of such item of Collateral from the Liens
granted under the applicable Collateral Documents, or to release
such Loan Party from its obligations under the applicable
Collateral Documents, in each case in accordance with the terms of
the Loan Documents and this Section 9.11.

 


Section
9.12         No Other Duties, Etc. Anything
herein to the contrary notwithstanding, none of the bookrunners,
arrangers, documentation agents or syndication agents 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 the Administrative Agent, a Lender
or an Issuing Bank hereunder.

 




 

95








 






 

 


Section
9.13          
Right to Realize on
Collateral and Enforce Guarantee. Anything contained in any
of the Loan Documents to the contrary notwithstanding, the
Borrower, the Administrative Agent and each Lender hereby agree
that (i) no Lender shall have any right individually to realize
upon any of the Collateral or enforce the Collateral Documents, it
being understood and agreed that all powers, rights and remedies
hereunder and under the Collateral Documents may be exercised
solely by the Administrative Agent, and (ii) in the event of a
foreclosure by the Administrative Agent on any of the Collateral
pursuant a public or private sale or other disposition, the
Administrative Agent or any Lender may be the purchaser or licensor
of any or all of such Collateral at any such sale or other
disposition and the Administrative Agent, as agent for and
representative of the Lenders (but not any Lender or Lenders in its
or their respective individual capacities unless the Required
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, use and apply any of the Obligations as a credit
on account of the purchase price for any collateral payable by the
Administrative Agent at such sale or other
disposition.

 


Section
9.14          
Hedging Obligations and
Bank Product Obligations. No Bank Product Provider or
Lender-Related Hedge Provider that obtains the benefits of
Section 8.2, the
Collateral Documents or any Collateral by virtue of the provisions
hereof or of any other Loan Document shall have any right to notice
of any action or to consent to, direct or object to any action
hereunder or under any other Loan Document or otherwise in respect
of the Collateral (including the release or impairment of any
Collateral) other than in its capacity as a Lender and, in such
case, only to the extent expressly provided in the Loan Documents.
Notwithstanding any other provision of this Article IX to the contrary, the
Administrative Agent shall not be required to verify the payment
of, or that other satisfactory arrangements have been made with
respect to, Bank Product Obligations and Hedging Obligations unless
the Administrative Agent has received written notice of such
Obligations, together with such supporting documentation as the
Administrative Agent may request, from the applicable Bank Product
Provider or Lender-Related Hedge Provider, as the case may
be.

 


ARTICLE
X

 


THE
GUARANTY

 


Section
10.1          
The Guaranty. Each
of the Guarantors hereby jointly and severally guarantees to the
Administrative Agent, each Lender, each Affiliate of a Lender that
enters into Bank Products or a Hedging Transaction with the
Borrower or any Subsidiary, and each other holder of the
Obligations as hereinafter provided, as primary obligor and not as
surety, the prompt payment of the Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantors
hereby further agree that if any of the Obligations is not paid in
full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization
or otherwise), the Guarantors will, jointly and severally, promptly
pay the same, without any demand or notice whatsoever, and that in
the case of any extension of time of payment or renewal of any of
the Obligations, the same will be promptly paid in full when due
(whether at extended maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise)
in accordance with the terms of such extension or
renewal.

 


Notwithstanding any
provision to the contrary contained herein or in any other of the
Loan Documents or the other documents relating to the Obligations,
the obligations of each Guarantor under this Agreement and the
other Loan Documents shall not exceed an aggregate amount equal to
the largest amount that would not render such obligations subject
to avoidance under applicable Debtor Relief Laws.

 




 

96








 






 


 


Section
10.2           
Obligations
Unconditional. The obligations of the Guarantors under
Section 10.1
are joint and several, absolute and unconditional, irrespective of
the value, genuineness, validity, regularity or enforceability of
any of the Loan Documents or other documents relating to the
Obligations, or any substitution, release, impairment or exchange
of any other guarantee of or security for any of the Obligations,
and, to the fullest extent permitted by applicable Law,
irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section 10.2 that the
obligations of the Guarantors hereunder shall be absolute and
unconditional under any and all circumstances. Each Guarantor
agrees that such Guarantor shall have no right of subrogation,
indemnity, reimbursement or contribution against the Borrower or
any other Guarantor for amounts paid under this Article X until such time
as the Obligations have been paid in full and the Commitments have
expired or terminated. Without limiting the generality of the
foregoing, it is agreed that, to the fullest extent permitted by
Law, the occurrence of any one or more of the following shall not
alter or impair the liability of any Guarantor hereunder, which
shall remain absolute and unconditional as described
above:

 


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

 


(b)           any
of the acts mentioned in any of the provisions of any of the Loan
Documents or any other document relating to the Obligations shall
be done or omitted;

 


(c)      
   the maturity of any of the Obligations shall be
accelerated, or any of the Obligations shall be modified,
supplemented or amended in any respect, or any right under any of
the Loan Documents or any other document relating to the
Obligations shall be waived or any other guarantee of any of the
Obligations or any security therefor shall be released, impaired or
exchanged in whole or in part or otherwise dealt with;

 


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

 


(e)           any
of the Obligations shall be determined to be void or voidable
(including for the benefit of any creditor of any Guarantor) or
shall be subordinated to the claims of any Person (including any
creditor of any Guarantor).

 


With
respect to its obligations hereunder, each Guarantor hereby
expressly waives diligence, presentment, demand of payment, protest
and all notices whatsoever and any requirement that the
Administrative Agent or any other holder of the Obligations exhaust
any right, power or remedy or proceed against any Person under any
of the Loan Documents or any other document relating to the
Obligations or against any other Person under any other guarantee
of, or security for, any of the Obligations.

 


Section
10.3         
Reinstatement. The
obligations of each Guarantor under this Article X shall be
automatically reinstated if and to the extent that for any reason
any payment by or on behalf of any Person in respect of the
Obligations is rescinded or must be otherwise restored by any
holder of any of the Obligations, whether as a result of any Debtor
Relief Law or otherwise, and each Guarantor agrees that it will
indemnify the Administrative Agent and each other holder of the
Obligations on demand for all reasonable costs and expenses
(including the fees, charges and disbursements of counsel) incurred
by the Administrative Agent or such holder of the Obligations in
connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging
that such payment constituted a preference, fraudulent transfer or
similar payment under any Debtor Relief Law.

 


Section
10.4         
Certain Additional
Waivers. Each Guarantor agrees that such Guarantor shall
have no right of recourse to security for the Obligations, except
through the exercise of rights of subrogation pursuant to
Section 10.2
and through the exercise of rights of contribution pursuant to
Section 10.6.

 




 

97








 






 

 


Section
10.5          
Remedies. The
Guarantors agree that, to the fullest extent permitted by Law, as
between the Guarantors, on the one hand, and the Administrative
Agent and the other holders of the Obligations, on the other hand,
the Obligations may be declared to be forthwith due and payable as
specified in Section 8.1 (and shall be
deemed to have become automatically due and payable in the
circumstances specified in Section 8.1) for purposes
of Section 10.1
notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing the Obligations from
becoming automatically due and payable) as against any other Person
and that, in the event of such declaration (or the Obligations
being deemed to have become automatically due and payable), the
Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors for
purposes of Section 10.1. The
Guarantors acknowledge and agree that their obligations hereunder
are secured in accordance with the terms of the Collateral
Documents and that the holders of the Obligations may exercise
their remedies thereunder in accordance with the terms
thereof.

 


Section
10.6         
Rights of
Contribution. The Guarantors agree among themselves that, in
connection with payments made hereunder, each Guarantor shall have
contribution rights against the other Guarantors as permitted under
applicable Law. Such contribution rights shall be subordinate and
subject in right of payment to the obligations of such Guarantors
under the Loan Documents and no Guarantor shall exercise such
rights of contribution until the Obligations have been paid in full
and the Commitments have terminated.

 


Section
10.7           
Guarantee of Payment;
Continuing Guarantee. The guarantee in this Article X
is a guaranty of payment and not of collection, is a continuing
guarantee, and shall apply to the Obligations whenever
arising.

 


Section
10.8           
Keepwell. Each
Qualified ECP Guarantor hereby jointly and severally absolutely,
unconditionally and irrevocably undertakes to provide such funds or
other support as may be needed from time to time by each Specified
Loan Party to honor all of such Specified Loan Party’s
obligations under this Agreement and the other Loan Documents in
respect of Swap Obligations (provided, however, that each Qualified
ECP Guarantor shall only be liable under this Section 10.8 for the maximum
amount of such liability that can be hereby incurred without
rendering its obligations under this Section 10.8 or otherwise under
this Agreement voidable under applicable Law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater amount).
The obligations of each Qualified ECP Guarantor under this
Section 10.8 shall
remain in full force and effect until the Obligations have been
indefeasibly paid and performed in full. Each Qualified ECP
Guarantor intends that this Section 10.8 constitute, and
this Section 10.8
shall be deemed to constitute, a “keepwell, support, or other
agreement” for the benefit of each Specified Loan Party for
all purposes of Section (18)(A)(v)(II) of the Commodity Exchange
Act.

 


ARTICLE
XI

 


MISCELLANEOUS

 


Section
11.1           
Notices.

 




 

98








 






 

 


(a)           Written
Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all
notices and other communications to any party herein to be
effective shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail
or sent by telecopy, as follows:

 


 



To any Loan
Party: 

Cross Country
Healthcare, Inc.






5201
Congress Avenue, Suite 100B


Boca
Raton, FL 33487


Attention: William
J. Burns


Facsimile: (855)
322-1199


Email:
wburns@crosscountry.com


 



To the
Administrative Agent: 

SunTrust
Bank






Agency
Services


303
Peachtree Street, N.E./25th Floor


Atlanta, Georgia
30308


Attention: Mr. Doug
Weltz


Facsimile: (404)
495-2170


Email:
agency.services@suntrust.com


 


With
copies (for



information
purposes only) to: 

SunTrust
Bank






777
Brickell Avenue/2nd Floor


Miami,
Florida 33131


Attention: Mr.
Shawn Wilson


Facsimile: (305)
579-7133


Email:
shawn.p.wilson@suntrust.com


 


To
SunTrust Bank, in its



capacity as an
Issuing Bank: 

SunTrust
Bank






245
Peachtree Center Avenue/17th Floor


Atlanta, Georgia
30303


Attention: Standby
Letter of Credit Dept.


Facsimile: (404)
588-8129


 



To the Swingline
Lender: 

SunTrust
Bank






Agency
Services


303
Peachtree Street, N.E./25th Floor


Atlanta, Georgia
30308


Attention: Mr. Doug
Weltz


Facsimile: (404)
495-2170


 



To any other
Lender: 

To the address or
facsimile number, set forth in the Administrative Questionnaire or
the Assignment and Acceptance executed by such Lender.






 


Any
party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties
hereto. All such notices and other communications shall be
effective upon actual receipt by the relevant Person or, if
delivered by overnight courier service, upon the first Business Day
after the date deposited with such courier service for overnight
(next-day) delivery or, if sent by telecopy, upon transmittal in
legible form by facsimile machine or, if mailed, upon the third
Business Day after the date deposited into the mail or, if
delivered by hand, upon delivery; provided that notices delivered
to the Administrative Agent, an Issuing Bank or the Swingline
Lender shall not be effective until actually received by such
Person at its address specified in this Section 11.1.


 




 

99








 






 


 


(i)           Any
agreement of the Administrative Agent, the Issuing Banks and the
Lenders herein to receive certain notices by telephone or facsimile
is solely for the convenience and at the request of the Borrower.
The Administrative Agent, the Issuing Banks and the Lenders shall
be entitled to rely on the authority of any Person purporting to be
a Person authorized by the Borrower to give such notice and the
Administrative Agent, the Issuing Banks and the Lenders shall not
have any liability to the Borrower or other Person on account of
any action taken or not taken by the Administrative Agent, the
Issuing Banks and the Lenders in reliance upon such telephonic or
facsimile notice. The obligation of the Borrower to repay the Loans
and all other Obligations hereunder shall not be affected in any
way or to any extent by any failure of the Administrative Agent,
the Issuing Banks and the Lenders to receive written confirmation
of any telephonic or facsimile notice or the receipt by the
Administrative Agent, the Issuing Banks and the Lenders of a
confirmation which is at variance with the terms understood by the
Administrative Agent, the Issuing Banks and the Lenders to be
contained in any such telephonic or facsimile notice.

 


(b)           Electronic
Communications.

 


(i)           Notices
and other communications to the Lenders and the Issuing Banks
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 any Issuing Bank
pursuant to Article
II unless such Lender or such Issuing Bank, as applicable,
and Administrative Agent have agreed to receive notices under such
Section by electronic communication and have agreed to the
procedures governing such communications. Administrative Agent or
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of such
procedures may be limited to particular notices or
communications.

 


(ii)           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.

 


(iii)           The
Borrower agrees that the Administrative Agent may, but shall not be
obligated to, make Communications (as defined below) available to
the Issuing Banks and the other Lenders by posting the
Communications on the Platform.

 




 

100








 






 

 


(iv)           The
Platform used by the Administrative Agent is provided “as
is” and “as available.” The Agent Parties (as
defined below) do not warrant the adequacy of the Platform and
expressly disclaim liability for errors or omissions in the
Communications. No warranty of any kind, express, implied or
statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement
of third-party rights or freedom from viruses or other code
defects, is made by any Agent Party in connection with the
Communications or the Platform. In no event shall the
Administrative Agent or any of its Related Parties (collectively,
the “Agent
Parties”) have any liability to any Loan Party, any
Lender, any Issuing Bank or any other Person or entity for damages
of any kind, including, without limitation, direct or indirect,
special, incidental or consequential damages, losses or expenses
(whether in tort, contract or otherwise) arising out of any Loan
Party’s or the Administrative Agent’s transmission of
Communications through the Platform. “Communications” means,
collectively, any notice, demand, communication, information,
document or other material provided by or on behalf of any Loan
Party pursuant to any Loan Document or the transactions
contemplated therein which is distributed by the Administrative
Agent, any Lender or any Issuing Bank by means of electronic
communications pursuant to this Section 11.1, including through
the Platform.

 


Section
11.2         
Waiver;
Amendments.

 


(a)           No
failure or delay by the Administrative Agent, any Issuing Bank or
any Lender in exercising any right or power hereunder or any other
Loan Document, and no course of dealing between any Loan Party and
the Administrative Agent or any Lender, shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right
or power or any abandonment or discontinuance of steps to enforce
such right or power, preclude any other or further exercise thereof
or the exercise of any other right or power hereunder or
thereunder. The rights and remedies of the Administrative Agent,
the Issuing Banks and the Lenders hereunder and under the other
Loan Documents are cumulative and are not exclusive of any rights
or remedies provided by Law. No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by
any Loan Party therefrom shall in any event be effective unless the
same shall be permitted by clause (b) of this Section 11.2, and then such
waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or the issuance
of a Letter of Credit shall not be construed as a waiver of any
Default or Event of Default, regardless of whether the
Administrative Agent, any Lender or any Issuing Bank may have had
notice or knowledge of such Default or Event of Default at the
time.

 


(b)           No
amendment or waiver of any provision of this Agreement or the other
Loan Documents (other than the Fee Letter), nor consent to any
departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Borrower and the Required Lenders or the Borrower and the
Administrative Agent with the consent of the Required Lenders and
then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, that

 


(i)           no
amendment or waiver shall:

 


(A)           increase
the Commitment of any Lender without the written consent of such
Lender;

 




 

101








 






 

 


(B)           reduce
the principal amount of any Loan or LC Disbursement or reduce the
rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby;
provided,
however, that only
the consent of the Required Lenders shall be necessary to amend
(x) the definition of
“Default Interest” or waive any obligation of the
Borrower to pay interest at Default Interest or increased Letter of
Credit Fees pursuant to Section 2.14(c) and (y) amend
any financial covenant hereunder (or any defined term used therein)
even if the effect of such amendment would be to reduce the rate of
interest on any Loan or to reduce any fee payable
hereunder;

 


(C)           postpone
the date fixed for any payment of any principal of, or interest on,
any Loan or LC Disbursement or interest thereon or any fees
hereunder or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date for the termination or
reduction of any Commitment, without the written consent of each
Lender affected thereby;

 


(D)           change
Section 2.21(b) or
(c) in a manner
that would alter the pro rata sharing of payments required thereby
or change the provisions of Section 8.2, without the
written consent of each Lender;

 


(E)           change
any of the provisions of this Section 11.2 or the definition
of “Required Lenders” or any other provision hereof
specifying the number or percentage of Lenders that are required to
waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the consent
of each Lender;

 


(F)           release
the Borrower, or release all or substantially all of the Guarantors
or limit the liability of all or substantially all of the
Guarantors under the Guaranty, without the written consent of each
Lender; or

 


(G)           release
all or substantially all of the Collateral securing any of the
Obligations, without the written consent of each Lender or agree to
subordinate any Lien in such collateral to any other creditor of
the Borrower or any Subsidiary;

 


provided further, that no such
agreement shall amend, modify or otherwise affect the rights,
duties or obligations of the Administrative Agent, the Swingline
Lender or any Issuing Bank without the prior written consent of
such Person. Notwithstanding anything to the contrary herein, (i)
no Defaulting Lender shall have any right to approve or disapprove
any amendment, waiver or consent hereunder (and any amendment,
waiver or consent which by its terms requires the consent of all
Lenders or each affected Lender may be effected with the consent of
the applicable Lenders other than Defaulting Lenders), except that
(A) the Commitment of such Lender may not be increased or extended,
and amounts payable to such Lender hereunder may not be permanently
reduced without the consent of such Lender (other than reductions
in fees and interest in which such reduction does not
disproportionately affect such Lender) and (B) any waiver,
amendment or consent requiring the consent of all Lenders or each
affected Lender, that by its terms affects any Defaulting Lender
disproportionately adversely relative to other affected Lenders
shall require the consent of such Defaulting Lender; (ii) this
Agreement may be amended and restated without the consent of any
Lender (but with the consent of the Borrower and the Administrative
Agent) if, upon giving effect to such amendment and restatement,
such Lender shall no longer be a party to this Agreement (as so
amended and restated), the Commitments of such Lender shall have
terminated (but such Lender shall continue to be entitled to the
benefits of Sections
2.18, 2.19,
2.20 and
11.3), such Lender
shall have no other commitment or other obligation hereunder and
shall have been paid in full all principal, interest and other
amounts owing to it or accrued for its account under this
Agreement; (iii) each Lender is entitled to vote as such Lender
sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section
1126(c) of the Bankruptcy Code of the United States supersedes the
unanimous consent provisions set forth herein; and (iv) the
Required Lenders shall determine whether or not to allow a Loan
Party to use cash collateral in the context of a bankruptcy or
insolvency proceeding and such determination shall be binding on
all of the Lenders.


 


Section
11.3             
Expenses;
Indemnification.

 


(a)           The
Borrower shall pay (i) all reasonable and documented out-of-pocket
costs and expenses of the Administrative Agent, the Arranger and
their Affiliates, including the reasonable and documented
out-of-pocket fees, charges and disbursements of one counsel for
the Administrative Agent, the Arranger and their Affiliates (and,
to the extent deemed reasonably necessary by the Administrative
Agent or the Arranger, special and one local counsel in each
jurisdiction), in connection with the syndication of the credit
facilities provided for herein, the preparation and administration
of the Loan Documents and any amendments, modifications or waivers
thereof (whether or not the transactions contemplated in this
Agreement or any other Loan Document shall be consummated), (ii)
all reasonable and documented out-of-pocket expenses incurred by
any 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 reasonable and documented
out-of-pocket costs and expenses, including the reasonable and
documented out-of-pocket fees, charges and disbursements of one
counsel for the Administrative Agent, the Arranger, the Issuing
Banks and the Lenders (and, to the extent deemed reasonably
necessary by such parties, special and one local counsel in each
jurisdiction and, in the event of an actual or potential conflict
of interest, one additional counsel for each of the foregoing
subject to such conflict), incurred by the Administrative Agent,
the Arranger, any Issuing Bank or any Lender in connection with the
enforcement or protection of its rights in connection with this
Agreement and the other Loan Documents, including its rights under
this Section 11.3,
or in connection with the Loans made or any Letters of Credit
issued hereunder, including all such reasonable and documented
out-of-pocket expenses incurred during any workout, restructuring
or negotiations in respect of such Loans or Letters of
Credit.

 




 

102








 






 

 


(b)           The
Borrower shall indemnify the Administrative Agent (and any
sub-agent thereof), the Arranger, each Lender and each 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, penalties and related expenses (including the
reasonable and documented out-of-pocket fees, charges and
disbursements of one counsel for the Indemnitees (and special and
one local counsel for the Indemnitees in each applicable
jurisdiction deemed reasonably necessary by the Indemnitees, and in
the event of an actual or potential conflict of interest, one
additional counsel for each Indemnitee subject to such conflict)),
and shall indemnify and hold harmless each Indemnitee from all
reasonable and documented fees and time charges and disbursements
for attorneys who may be employees of any Indemnitee, incurred by
any Indemnitee or asserted against any Indemnitee by any third
party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated
hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by
any 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 the Borrower or any of
its Subsidiaries, or any actual or alleged Environmental Liability
related in any way to the 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 the 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, penalties or related
expenses are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted (x) from the
gross negligence, bad faith or willful misconduct of such
Indemnitee (including any Related Party of such Indemnitee), (y)
any settlement of any investigation, litigation or other proceeding
(or expenses solely in respect of such settlement) effected without
the Borrower’s prior written consent (which consent shall not
be unreasonably withheld, delayed or conditioned), provided that if settled with
the Borrower’s prior written consent, or if there is a final
judgment against an Indemnitee in any such investigation,
litigation or other proceeding, the Borrower shall indemnify and
hold harmless each Indemnitee to the extent and in the manner set
forth above or (z) disputes arising solely among Indemnitees, other
than (A) disputes involving SunTrust Bank solely in its capacity as
Administrative Agent or the Arranger in its capacities as lead
arranger and/or bookrunner hereunder and (B) claims arising out of
any act or omission of the Borrower or any of its Subsidiaries or
Affiliates. This Section
11.3(b) shall not apply with respect to Taxes other than any
Taxes that represent losses, claims, damages, etc. arising from any
non-Tax claim.

 


(c)           To
the extent that the Borrower fails to pay any amount required to be
paid to the Administrative Agent, any Issuing Bank or the Swingline
Lender under clause
(a) or (b)
hereof, each Lender severally agrees to pay to the Administrative
Agent (without limiting the obligation of the Borrower to do so),
the applicable Issuing Bank or the Swingline Lender, as the case
may be, such Lender’s Pro Rata Share (determined as of the
time that the unreimbursed expense or indemnity payment is sought)
of such unpaid amount; provided, that the unreimbursed
expense or indemnified payment, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against
the Administrative Agent, any Issuing Bank or the Swingline Lender
in its capacity as such.

 


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

 


(e)           All
amounts due under this Section 11.3 shall be payable
promptly after written demand therefor.

 


Section
11.4         
Successors and
Assigns.

 




 

103








 






 

 


(a)           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 the Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and
each Lender, and no Lender may assign or otherwise transfer any of
its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of clause (b) of this Section 11.4, (ii) by way of
participation in accordance with the provisions of clause (d) of this Section11.4 or (iii) by way of
pledge or assignment of a security interest subject to the
restrictions of clause
(f) of this Section
11.4 (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
clause (d) of this
Section 11.4 and,
to the extent expressly contemplated hereby, the Related Parties of
each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this
Agreement.

 


(b)           Any
Lender may at any time assign to one or more assignees all or a
portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments, Loans, and other
Revolving Credit Exposure at the time owing to it); provided that any such
assignment shall be subject to the following
conditions:

 


(i)           Minimum
Amounts.

 


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

 


(B)           in
any case not described in clause (b)(i)(A) of this
Section 11.4, the
aggregate amount of the Commitment (which for this purpose includes
Loans and Revolving Credit Exposure outstanding thereunder) or, if
the applicable Commitment is not then in effect, the principal
outstanding balance of the Loans and Revolving Credit Exposure of
the assigning Lender subject to each such assignment (determined as
of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and
Acceptance, as of the Trade Date) shall not be less than $1,000,000
with respect to Term Loans and $5,000,000 with respect to Revolving
Loans and in minimum increments of $1,000,000, unless each of the
Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consents in
writing (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 Loans, other Revolving Credit Exposure or the
Commitments assigned.

 


(iii)           Required
Consents. No consent shall be required for any assignment
except to the extent required by clause (b)(i)(B) of this
Section 11.4 and,
in addition:

 




 

104








 






 

 


(A)           the
written consent of the Borrower (such consent not to be
unreasonably withheld or delayed) shall be required unless (x) an
Event of Default has
occurred and is continuing at the time of such assignment or (y)
such assignment is to a Lender, an Affiliate of a Lender or an
Approved Fund;

 


(B)           the
written consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for (x)
assignments to a Person that is not a Lender, an Affiliate of a
Lender or an Approved Fund and (y) assignments by Defaulting
Lenders; and

 


(C)           the
written consent of each of the Issuing Banks (such consent not to
be unreasonably withheld or delayed) shall be required for any
assignment that increases the obligation of the assignee to
participate in exposure under one or more Letters of Credit
(whether or not then outstanding), and the written consent of the
Swingline Lender (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment in respect of the
Revolving Commitments.

 


(iv)           Assignment
and Acceptance. The parties to each assignment shall deliver
to the Administrative Agent (A) a duly executed Assignment and
Acceptance, (B) a processing and recordation fee of $3,500, (C) an
Administrative Questionnaire unless the assignee is already a
Lender and (D) the documents required under Section 2.20 if such assignee
is a Foreign Lender.

 


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

 


(vi)           No
Assignment to Natural Persons. No such assignment shall be
made to a natural person.

 


Subject
to acceptance and recording thereof by the Administrative Agent
pursuant to clause
(c) of this Section
11.4, from and after the effective date specified in each
Assignment and Acceptance, the assignee thereunder shall be a party
to this Agreement and, to the extent of the interest assigned by
such Assignment and Acceptance, have the rights and obligations of
a Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment
and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance
covering all 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 2.18,
2.19, 2.20 and 11.3 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
clause (b) 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
clause (d) of this
Section 11.4.
If the consent of the Borrower
to an assignment is required
hereunder (including
a consent to an assignment which does not meet the minimum
assignment thresholds specified above), the Borrower
shall be deemed to have given its consent five (5) Business
Days after the date notice thereof has
actually been delivered by the assigning Lender (through the Administrative
Agent) to the Borrower,
unless such consent is expressly refused by the Borrower
prior to such fifth Business Day.


 


(c)           The
Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at one of its offices in Atlanta,
Georgia a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of
the Lenders, and the Commitments of, and principal amounts (and
stated interest) of the Loans and Revolving Credit Exposure owing
to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries
in the Register shall be conclusive absent manifest error, and the
Borrower, the Administrative Agent and the Lenders shall 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.
The Register shall be available for inspection by the Borrower and
any Lender at any reasonable time and from time to time upon
reasonable prior notice.

 


(d)           Any
Lender may at any time, without the consent of, or notice to, the
Borrower, the Administrative Agent, the Swingline Lender, the
Issuing Banks or the other Lenders, sell participations to any
Person (other than a natural person, the Borrower or any of the
Borrower’s Affiliates or Subsidiaries or a Defaulting Lender)
(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) the Borrower, the Administrative Agent, the Lenders,
the Issuing Banks and the Swingline Lender shall continue to deal
solely and directly with such Lender in connection with such
Lender’s rights and obligations under this
Agreement.

 




 

105








 






 


 


(e)           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 with respect to the following to the extent
affecting such Participant: (i) increase the Commitment of any
Lender without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or LC Disbursement or reduce the rate
of interest thereon, or reduce any fees payable hereunder, without
the written consent of each Lender affected thereby, (iii) postpone
the date fixed for any payment of any principal of, or interest on,
any Loan or LC Disbursement or interest thereon or any fees
hereunder or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date for the termination or
reduction of any Commitment, without the written consent of each
Lender affected thereby, (iv) change Section 2.21(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without
the written consent of each Lender, (v) change any of the
provisions of this Section
11.4 or the definition of “Required Lenders” or
any other provision hereof specifying the number or percentage of
Lenders which are required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder,
without the consent of each Lender, (vi) release any Guarantor or
limit the liability of any such Guarantor under any Guaranty
without the written consent of each Lender except to the extent
such release is expressly provided under the terms of this
Agreement or (vii) release all or substantially all collateral (if
any) securing any of the Obligations. The Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.18, 2.19, and 2.20 (subject to the
requirements and limitations therein, including the requirements
under Section
2.20(g) (it being understood that the documentation required
under Section
2.20(g) shall be delivered to the participating Lender)) to
the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to clause (b) of this Section 11.4; provided that such Participant
(A) agrees to be subject to the provisions of Sections 2.24 and 2.25 as if it were an assignee
under clause (b) of
this Section 11.4;
and (B) shall not be entitled to receive any greater payment under
Sections 2.18 or
2.20, with respect
to any participation, than its participating Lender would have been
entitled to receive, except to the extent such entitlement to
receive a greater payment results from a Change in Law that occurs
after the Participant acquired the applicable participation. Each
Lender that sells a participation agrees, at the Borrower’s
request and expense, to use reasonable efforts to cooperate with
Borrower to effectuate the provision of Section 2.25 with respect to
any Participant. To the extent permitted by Law, each Participant
also shall be entitled to the benefits of Section 11.7 as though it
were a Lender, provided such Participant agrees to be subject to
Section 2.21 as
though it were a Lender. Each Lender that sells a participation
shall, acting solely for this purpose as an agent of the Borrower,
maintain a register on which it enters the name and address of each
Participant and the principal amounts (and stated interest) of each
Participant’s interest in the Loans or other obligations
under the Loan Documents (the “Participant Register”);
provided that no Lender shall have any obligation to disclose all
or any portion of the Participant Register (including the identity
of any Participant or any information relating to a
Participant’s interest in any commitments, loans, letters of
credit or its other obligations under any Loan Document) to any
Person except to the extent that such disclosure is necessary to
establish that such commitment, loan, letter of credit or other
obligation is in registered form under Section 5f.103-1(c) of the
United States Treasury Regulations. The entries in the Participant
Register shall be conclusive absent manifest error, and such Lender
shall treat each Person whose name is recorded in the Participant
Register as the owner of such participation for all purposes of
this Agreement notwithstanding any notice to the contrary. For the
avoidance of doubt, the Administrative Agent (in its capacity as
Administrative Agent) shall have no responsibility for maintaining
a Participant Register.

 


(f)           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.

 


Section
11.5         
Governing Law;
Jurisdiction; Consent to Service of Process.

 


(a)           This
Agreement and the other Loan Documents and any claims, controversy,
dispute or cause of action (whether in contract or tort or
otherwise) based upon, arising out of or relating to this Agreement
or any other Loan Document (except, as to any other Loan Document,
as expressly set forth therein) and the transactions contemplated
hereby and thereby shall be construed in accordance with and be
governed by the Law of the State of New York.

 


(b)           Each
Loan Party hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of the
United States District Court of the Southern District of New York,
and of the Supreme Court of the State of New York sitting in New
York county 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 the transactions contemplated hereby or
thereby, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding
may be heard and determined in such District Court or New York
state court or, to the extent permitted by applicable Law, 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
any other Loan Document shall affect any right that the
Administrative Agent, any Issuing Bank or any Lender may otherwise
have to bring any action or proceeding relating to this Agreement
or any other Loan Document against any Loan Party or its properties
in the courts of any jurisdiction.

 




 

106








 






 

 


(c)           Each
Loan Party irrevocably and unconditionally waives any objection
that it may now or hereafter have to the laying of venue of
any such suit, action or proceeding described in clause (b) of this Section 11.5 and brought in any
court referred to in clause (b) of this Section 11.5. Each of the
parties hereto 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)           Each
party to this Agreement irrevocably consents to the service of
process in the manner provided for notices in Section 11.1. Nothing in this
Agreement or in any other Loan Document will affect the right of
any party hereto to serve process in any other manner permitted by
Law.

 


Section
11.6        WAIVER OF JURY TRIAL. EACH
PARTY HERETO 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 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 PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 11.6.

 


Section
11.7         Right of Setoff. In addition to
any rights now or hereafter granted under applicable Law and not by
way of limitation of any such rights, each Lender and each Issuing
Bank shall have the right, at any time or from time to time upon
the occurrence and during the continuance of an Event of Default,
without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by
applicable Law, to set off and apply against all deposits (general
or special, time or demand, provisional or final) of the Borrower
at any time held or other obligations at any time owing by such
Lender and such Issuing Bank to or for the credit or the account of
the Borrower against any and all Obligations held by such Lender or
such Issuing Bank, as the case may be, irrespective of whether such
Lender or such Issuing Bank shall have made demand hereunder and
although such Obligations may be unmatured. Each of the Lenders and
the Issuing Banks agrees promptly to notify the Administrative
Agent and the Borrower after any such set-off and any application
made by such Lender and such Issuing Bank, as the case may be;
provided, that the
failure to give such notice shall not affect the validity of such
set-off and application. Each of the Lenders and the Issuing Banks
agrees to apply all amounts collected from any such set-off to the
Obligations before applying such amounts to any other Indebtedness
or other obligations owed by the Borrower and any of its
Subsidiaries to such Lender or such Issuing Bank.

 




 

107








 






 

 


Section
11.8          
Counterparts;
Integration. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate
counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same
instrument. This Agreement, the Fee Letter, the other Loan
Documents, and any separate letter agreement(s) relating to any
fees payable to the Administrative Agent and its Affiliates
constitute the entire agreement among the parties hereto and
thereto and their affiliates regarding the subject matters hereof
and thereof and supersede all prior agreements and understandings,
oral or written, regarding such subject matters. Delivery of an
executed counterpart of a signature page of this Agreement and any
other Loan Document by facsimile transmission or by any other
electronic imaging means (including .pdf), shall be effective as
delivery of a manually executed counterpart of this Agreement or
such other Loan Document.

 


Section
11.9           
Survival. All
covenants, agreements, representations and warranties made by any
Loan Party herein, in the Loan Documents and in the certificates or
other instruments delivered in connection with or pursuant to this
Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this
Agreement and the making of any Loans and issuance of any Letters
of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative
Agent, any Issuing Bank or any Lender may have had notice or
knowledge of any Default or Event of Default or incorrect
representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or
any other amount payable under this Agreement is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of
Sections 2.18,
2.19, 2.20, and 11.3 and Article IX shall survive and
remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans,
the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision
hereof. All representations and warranties made herein, in the Loan
Documents, in the certificates, reports, notices, and other
documents delivered pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the other Loan
Documents, and the making of the Loans and the issuance of the
Letters of Credit.

 


Section
11.10         Severability. Any provision of
this Agreement or any other Loan Document held to be illegal,
invalid or unenforceable in any jurisdiction, shall, as to such
jurisdiction, be ineffective to the extent of such illegality,
invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or
thereof; and the illegality, invalidity or unenforceability of a
particular provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.

 




 

108








 






 

 


Section
11.11          
Confidentiality.
Each of the Administrative Agent, the Issuing Banks and the Lenders
agrees to take normal and reasonable precautions to maintain the
confidentiality of any information relating to the Borrower or any
of its Subsidiaries or any of their respective businesses, to the
extent designated in writing as confidential and provided to it by
the Borrower or any Subsidiary, other than any such information
that is available to the Administrative Agent, any Issuing Bank or
any Lender on a nonconfidential basis prior to disclosure by the
Borrower or any of its Subsidiaries, except that such information
may be disclosed (i) to any Related Party of the Administrative
Agent, any such Issuing Bank or any such Lender including without
limitation accountants, legal counsel and other advisors, (ii) to
the extent required by applicable Laws or regulations or by any
subpoena or similar legal process, (iii) to the extent requested by
any regulatory agency or authority purporting to have jurisdiction
over it (including any self-regulatory authority such as the
National Association of Insurance Commissioners), (iv) to the
extent that such information becomes publicly available other than
as a result of a breach of this Section 11.11, or which becomes
available to the Administrative Agent, any Issuing Bank, any Lender
or any Related Party of any of the foregoing on a non-confidential
basis from a source other than the Borrower, (v) in connection with
the exercise of any remedy hereunder or under any other Loan
Documents or any suit, action or proceeding relating to this
Agreement or any other Loan Documents or the enforcement of rights
hereunder or thereunder, (vi) subject to an agreement containing
provisions substantially the same as those of this Section 11.11, to (A) any
assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this
Agreement, or (B) any actual or prospective party (or its Related
Parties) to any swap or derivative or similar transaction under
which payments are to be made by reference to the Borrower and its
obligations, this Agreement or payments hereunder, (vii) any rating
agency, (viii) the CUSIP Service Bureau or any similar
organization, or (ix) with the consent of the Borrower. Any Person
required to maintain the confidentiality of any information as
provided for in this Section 11.11 shall be
considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the
confidentiality of such information as such Person would accord its
own confidential information.

 


Section
11.12         
Interest Rate
Limitation. Notwithstanding anything herein to the contrary,
if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which may be treated as
interest on such Loan under applicable Law (collectively, the
“Charges”), shall exceed
the maximum lawful rate of interest (the “Maximum Rate”) which may
be contracted for, charged, taken, received or reserved by a Lender
holding such Loan in accordance with applicable Law, the rate of
interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section 11.12 shall be
cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not above
the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Rate to the date of
repayment (to the extent permitted by applicable Law), shall have
been received by such Lender.

 


Section
11.13          
Waiver of Effect of
Corporate Seal. Each Loan Party represents
and warrants to the Administrative Agent and the Lenders that
neither it nor any other Loan Party is required to affix its
corporate seal to this Agreement or any other Loan Document
pursuant to any Law, agrees that this Agreement is delivered by
Borrower under seal and waives any shortening of the statute of
limitations that may result from not affixing the corporate seal to
this Agreement or such other Loan Documents.

 


Section
11.14          
Patriot Act. The
Administrative Agent and each Lender hereby notifies the Loan
Parties that, pursuant to the requirements of the Patriot Act, it
is required to obtain, verify and record information that
identifies each Loan Party, which information includes the name and
address of such Loan Party and other information that will allow
such Lender or the Administrative Agent, as applicable, to identify
such Loan Party in accordance with the Patriot Act.

 




 

109








 






 


 


Section
11.15          
No Advisory or Fiduciary
Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any
amendment, waiver or other modification hereof or of any other Loan
Document), Borrower and each other Loan Party acknowledges and
agrees and acknowledges its Affiliates' understanding that
that:  (i) (A) the services regarding this Agreement 
provided by the Administrative Agent, the Issuing Bank, the
Arranger and/or the Lenders are arm’s-length commercial
transactions between  Borrower, each other Loan Party and
their respective Affiliates, on the one hand, and the
Administrative Agent, the Issuing Bank, the Arranger and the
Lenders, on the other hand, (B) each of Borrower and the other Loan
Parties have consulted their own legal, accounting, regulatory and
tax advisors to the extent they have deemed appropriate, and (C)
Borrower and each other Loan Party is capable of evaluating and
understanding, and understands and accepts, the terms, risks and
conditions of the transactions contemplated hereby and  by the
other Loan Documents; (ii) (A) each of the Administrative Agent,
the Issuing Bank, the Arranger and the Lenders  is and has
been acting solely as a principal and,  except as expressly
agreed in writing by the relevant parties, has not been, is not,
and will not be acting as an advisor, agent or fiduciary, for
Borrower, any other Loan Party, or any of their respective
Affiliates, or any other Person and (B) none of the Administrative
Agent, the Issuing Bank, the Arranger and any Lender has any
obligation to Borrower, any other Loan Party or any of their
Affiliates  with respect to the transaction contemplated
hereby except those obligations expressly set forth herein and in
the other Loan Documents; and (iii)  the Administrative Agent,
the Issuing Bank, the Arranger, the Lenders and their respective
Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of Borrower, the other
Loan Parties and their respective Affiliates, and each of the
Administrative Agent, the Issuing Bank, the Arranger and the
Lenders has no obligation to disclose any of such interests
to  Borrower, any other Loan Party of any of their respective
Affiliates.  To the fullest extent permitted by Law, each of
Borrower and the other Loan Parties hereby waive and
release, any claims that it may have against the
Administrative Agent, the Issuing Bank, the Arranger and each
Lender with respect to any breach or alleged breach of agency or
fiduciary duty in connection with any aspect of any transaction
contemplated hereby.

 


Section
11.16            
Electronic Execution of
Assignments and Certain Other Documents. The words
“execution,” “signed,”
“signature,” and words of like import in any Assignment
and Acceptance or in any amendment or other modification hereof
(including waivers and consents) shall be deemed to include
electronic signatures or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent
and as provided for in any applicable Law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New
York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions
Act.

 


Section
11.17          
Acknowledgement and
Consent to Bail-In of EEA Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in
any other agreement, arrangement or understanding among any such
parties, each party hereto acknowledges that any liability of any
Lender that is an EEA Financial Institution arising under any Loan
Document, to the extent such liability is unsecured, may be subject
to the write-down and conversion powers of an EEA Resolution
Authority and agrees and consents to, and acknowledges and agrees
to be bound by (a) the application of any Write-Down and Conversion
Powers by an EEA Resolution Authority to any such liabilities
arising hereunder which may be payable to it by any Lender that is
an EEA Financial Institution; and (b) the effects of any Bail-In
Action on any such liability, including, if applicable: (i) a
reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into
shares or other instruments of ownership in such EEA Financial
Institution, its parent undertaking, or a bridge institution that
may be issued to it or otherwise conferred on it, and that such
shares or other instruments of ownership will be accepted by it in
lieu of any rights with respect to any such liability under this
Agreement or any other Loan Document; or (iii) the variation of the
terms of such liability in connection with the exercise of the
write-down and conversion powers of any EEA Resolution
Authority.

 




 

110








 






 

 


Section
11.18         
Amendment and
Restatement. The parties hereto agree that, on the Effective
Date, the following transactions shall be deemed to occur
automatically, without further action by any party hereto: (a) the
Existing Credit Agreement shall be deemed to be, and shall be,
amended and restated in its entirety pursuant to this Agreement
(and this Agreement is not executed in novation of the Existing
Credit Agreement); (b) all Obligations under the Existing Credit
Agreement outstanding on the Effective Date shall in all respects
be continuing and shall be deemed to be Obligations outstanding
hereunder; (c) the guaranties made pursuant to the Existing Credit
Agreement to the holders of the Obligations (as defined in the
Existing Credit Agreement) shall remain in full force and effect
with respect to the Obligations and are hereby reaffirmed; (d) the
Collateral Documents and the Liens created thereunder in favor of
SunTrust, as administrative agent for the benefit of the holders of
the Obligations (as defined in the Existing Credit Agreement) shall
remain in full force and effect with respect to the Obligations and
are hereby reaffirmed and (e) all references in the other Loan
Documents to the Existing Credit Agreement shall be deemed to refer
without further amendment to this Agreement.

 


Section
11.19          
Waiver of Breakage
Costs. Inasmuch as revolving loans and term loans are
outstanding under the Existing Credit Agreement immediately prior
to the Effective Date, the Borrower must make prepayments and
adjustments on such loans as are necessary to give effect to the
commitments of the Lenders hereunder. The Borrower, in consultation
with the Administrative Agent, has endeavored to manage the
allocation of commitments and the selection of Interest Periods
with respect to outstanding Eurodollar Loans in such a manner as to
minimize break-funding costs. Nonetheless, such prepayments of such
loans under the Existing Credit Agreement likely will cause
breakage costs. Notwithstanding the provisions of Section 2.19, each of the
Lenders party hereto hereby waives its right to receive
compensation or reimbursement for such breakage costs (a) in
connection with the reallocation of commitment percentages on the
Effective Date and (b) in connection with any resetting of the
Interest Period for Loans outstanding as of the Effective
Date.

 


Section
11.20          
Reallocation. The
Administrative Agent, the Borrower and the Lenders hereby
acknowledge and agree that the Commitment amount(s) of each Lender
as set forth on Schedule
I is/are the Commitment amounts of such Lender as of the
Effective Date, with the reallocation of Loans outstanding under
the Commitments of the Lenders as they existed immediately prior to
the Effective Date having been made per instructions from the
Administrative Agent, and neither any Assignment and Acceptance nor
any other action of any Person is required to give effect to such
Commitments as set forth on Schedule I.

 


 



(remainder of page left intentionally blank)




 

111








 






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

 


 

BORROWER:                                                              
CROSS COUNTRY HEALTHCARE, INC.,


a
Delaware corporation


 



By:   




/s/ William G. Grubbs_______________






Name:
William J. Grubbs


Title:
President and Chief Executive Officer


 

GUARANTORS:                                                         
CEJKA SEARCH, INC.,


a
Delaware corporation


 



By:  




/s/ William G. Grubbs_______________






Name:
William J. Grubbs


Title:
Executive Vice President


 


CROSS
COUNTRY STAFFING, INC.,


a
Delaware corporation


 



By: 



/s/ William G. Grubbs_______________






Name:
William J. Grubbs


Title:
Executive Vice President


 


CROSS
COUNTRY SUPPORT SERVICES, LLC,


a
Delaware limited liability company


 


By:
/s/ William G.
Grubbs_______________


Name:
William J. Grubbs


Title:
Executive Vice President


 


MDA
HOLDINGS, INC.,


a
Delaware corporation


 


By:
/s/ William G.
Grubbs_______________


Name:
William J. Grubbs


Title:
Executive Vice President




 








 






 


ASSIGNMENT AMERICA,
LLC,


a
Delaware limited liability company


 


By:
/s/ William G.
Grubbs_______________


Name:
William J. Grubbs


Title:
Executive Vice President


 


TRAVEL
STAFF, LLC,


a
Delaware limited liability company


 


By:
/s/ William G.
Grubbs_______________


Name:
William J. Grubbs


Title:
Executive Vice President


 


LOCAL
STAFF, LLC,


a
Delaware limited liability company


 


By:
/s/ William G.
Grubbs_______________


Name:
William J. Grubbs


Title:
Executive Vice President


 


MEDICAL
DOCTOR ASSOCIATES, LLC,


a
Delaware limited liability company


 


By:
/s/ William G.
Grubbs_______________


Name:
William J. Grubbs


Title:
Executive Vice President


 


CREDENT
VERIFICATION AND LICENSING SERVICES, LLC,


a
Delaware limited liability company


 


By:
/s/ William G.
Grubbs_______________


Name:
William J. Grubbs


Title:
Executive Vice President


 


OWS,
LLC,


a
Delaware limited liability company


 


By:
/s/ William G.
Grubbs_______________


Name:
William J. Grubbs


Title:
Executive Vice President


 




 








 






 


NEW
MEDISCAN II, LLC,


a
California limited liability company


 


By:
/s/ William G.
Grubbs_______________


Name:
William J. Grubbs


Title:
Vice President


 


MEDISCAN NURSING
STAFFING, LLC,


a
California limited liability company


 


By:
/s/ William G.
Grubbs_______________


Name:
William J. Grubbs


Title:
Vice President


 


MEDISCAN DIAGNOSTIC
SERVICES, LLC,


a
California limited liability company


 


By:
/s/ William G.
Grubbs_______________


Name:
William J. Grubbs


Title:
Vice President


 


ADVANTAGE RN,
LLC,


a
Delaware limited liability company


(f/k/a
ARNC HOLDCO, LLC)


 


By:
/s/ William G.
Grubbs_______________


Name:
William J. Grubbs


Title:
Executive Vice President


 


ADVANTAGE ON CALL,
LLC,


a
Delaware limited liability company


(f/k/a
CAOC, LLC)


 


By:
/s/ William G.
Grubbs_______________


Name:
William J. Grubbs


Title:
Executive Vice President


 



 







 






 


ADVANTAGE LOCUMS,
LLC,


a
Delaware limited liability company


(f/k/a
LTU, LLC)


 


By:
/s/ William G.
Grubbs_______________


Name:
William J. Grubbs


Title:
Executive Vice President


 




                                                                                        
ADVANTAGE RN LOCAL STAFFING, LLC,


a
Delaware limited liability company


(f/k/a
CARNLS, LLC)


 


By:
/s/ William G.
Grubbs_______________


Name:
William J. Grubbs


Title:
Executive Vice President


 


ARNCP,
LLC,


a
Delaware limited liability company


 


By:
/s/ William G.
Grubbs_______________


Name:
William J. Grubbs


Title:
Executive Vice President


 


 


 


 




 








 






 



ADMINISTRATIVE 

SUNTRUST
BANK,







AGENT: 

as Administrative
Agent, as an Issuing Bank, as Swingline Lender and as a
Lender






 


By:
/s/ Sheryl Squires
Kerley___________


Name:
Sheryl Squires Kerley


Title:
Vice President


 


 


 




 








 









LENDERS:                                                                    
BMO HARRIS BANK, N.A.,


as a
Lender


 


By:
/s/ Jillian
Matlock___________


Name:
Jillian Matlock


Title:
Vice President


 


 


 




 








 






 


BANK
UNITED, N.A.,


as a
Lender


 


By:
/s/ Vanessa C.
Civalero___________


Name:
Vanessa C. Civalero


Title:
Senior Vice President


 


 




 








 






 


FIFTH
THIRD BANK,


as a
Lender


 


By:
/s/ William D.
Priester___________


Name:
William D. Priester


Title:
Senior Vice President


 


 


 




 








 






 


BANK OF
AMERICA, N.A.,


as a
Lender


 


By:
/s/ Elizabeth L.
Knox___________


Name:
Elizabeth L. Knox


Title:
SVP


 


 


 


 




 








 






 


CADENCE
BANK,


as a
Lender


 


By:
/s/ John R. Burch
III___________


Name:
John R. Burch III


Title:
AVP


 


 


 




 








 






 


CAPITAL
BANK,


as a
Lender


 


By:
/s/ Dilian
Schulz___________


Name:
Dilian Schulz


Title:
Senior Vice President