Exhibit 10.1





EXHIBIT 10.1




REVOLVING CREDIT AND TERM LOAN AGREEMENT




dated as of May 19, 2009




among




EASYLINK SERVICES INTERNATIONAL CORPORATION

as Borrower




THE LENDERS FROM TIME TO TIME PARTY HERETO,




SUNTRUST BANK,

as Administrative Agent




and




THE PRIVATE BANK AND TRUST COMPANY,

as Syndication Agent




SUNTRUST ROBINSON HUMPHREY, INC.,

as Sole Lead Arranger and Sole Book Manager




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I DEFINITIONS; CONSTRUCTION
	 	 	1	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. Classifications of Loans and Borrowings
	 	 	27	 
	Section 1.3. Accounting Terms and Determination
	 	 	27	 
	Section 1.4. Terms Generally
	 	 	27	 
	 
	 	 	 	 
	ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS
	 	 	28	 
	Section 2.1. General Description of Facilities
	 	 	28	 
	Section 2.2. Revolving Loans
	 	 	28	 
	Section 2.3. Procedure for Revolving Borrowings
	 	 	28	 
	Section 2.5. Term Loan Commitments
	 	 	29	 
	Section 2.6. Funding of Borrowings
	 	 	29	 
	Section 2.7. Interest Elections
	 	 	30	 
	Section 2.8. Optional Reduction and Termination of Commitments
	 	 	31	 
	Section 2.9. Repayment of Loans
	 	 	32	 
	Section 2.10. Evidence of Indebtedness
	 	 	33	 
	Section 2.11. Optional Prepayments
	 	 	34	 
	Section 2.12. Mandatory Prepayments
	 	 	34	 
	Section 2.13. Interest on Loans
	 	 	36	 
	Section 2.14. Fees
	 	 	36	 
	Section 2.15. Computation of Interest and Fees
	 	 	38	 
	Section 2.16. Inability to Determine Interest Rates
	 	 	38	 
	Section 2.17. Illegality
	 	 	38	 
	Section 2.18. Increased Costs
	 	 	39	 
	Section 2.19. Funding Indemnity
	 	 	40	 
	Section 2.20. Taxes
	 	 	40	 
	Section 2.21. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	42	 
	Section 2.22. Letters of Credit
	 	 	44	 
	Section 2.23. Increase of Commitments; Additional Lenders
	 	 	48	 
	Section 2.24. Mitigation of Obligations
	 	 	50	 
	Section 2.25. Replacement of Lenders
	 	 	51	 
	Section 2.26. Cash Collateralization of Defaulting Lender Commitment
	 	 	51	 
	 
	 	 	 	 
	ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
	 	 	52	 
	Section 3.1. Conditions To Effectiveness
	 	 	52	 
	Section 3.2. Each Credit Event
	 	 	55	 
	Section 3.3. Delivery of Documents
	 	 	56	 
	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES
	 	 	56	 
	Section 4.1. Existence; Power
	 	 	56	 
	Section 4.2. Organizational Power; Authorization
	 	 	56	 
	Section 4.3. Governmental Approvals; No Conflicts
	 	 	57	 
	Section 4.4. Financial Statements
	 	 	57	 
	Section 4.5. Litigation and Environmental Matters
	 	 	57	 






 


 









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	Section 4.6. Compliance with Laws and Agreements
	 	 	57	 
	Section 4.7. Investment Company Act, Etc.
	 	 	58	 
	Section 4.8. Taxes
	 	 	58	 
	Section 4.9. Margin Regulations
	 	 	58	 
	Section 4.10. ERISA
	 	 	58	 
	Section 4.11. Ownership of Property
	 	 	58	 
	Section 4.12. Disclosure
	 	 	59	 
	Section 4.13. Labor Relations
	 	 	59	 
	Section 4.14. Subsidiaries
	 	 	59	 
	Section 4.15. Solvency
	 	 	59	 
	Section 4.17. OFAC
	 	 	60	 
	Section 4.18. Patriot Act
	 	 	60	 
	 
	 	 	 	 
	ARTICLE V AFFIRMATIVE COVENANTS
	 	 	60	 
	Section 5.1. Financial Statements and Other Information
	 	 	60	 
	Section 5.2. Notices of Material Events
	 	 	62	 
	Section 5.3. Existence; Conduct of Business
	 	 	62	 
	Section 5.4. Compliance with Laws, Etc.
	 	 	63	 
	Section 5.5. Payment of Obligations
	 	 	63	 
	Section 5.6. Books and Records
	 	 	63	 
	Section 5.7. Visitation, Inspection, Etc.
	 	 	63	 
	Section 5.8. Maintenance of Properties; Insurance
	 	 	63	 
	Section 5.9. Use of Proceeds and Letters of Credit
	 	 	64	 
	Section 5.11. Additional Subsidiaries
	 	 	64	 
	Section 5.12 Post-Closing Requirements
	 	 	64	 
	 
	 	 	 	 
	ARTICLE VI FINANCIAL COVENANTS
	 	 	65	 
	Section 6.1. Leverage Ratio
	 	 	65	 
	Section 6.2. Fixed Charge Coverage Ratio
	 	 	65	 
	Section 6.3. Minimum EBITDA
	 	 	66	 
	Section 6.4. Minimum Liquidity
	 	 	66	 
	Section 6.5. Capital Expenditures
	 	 	66	 
	 
	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	66	 
	Section 7.1. Indebtedness and Preferred Equity
	 	 	66	 
	Section 7.2. Negative Pledge
	 	 	67	 
	Section 7.3. Fundamental Changes
	 	 	68	 
	Section 7.4. Investments, Loans, Etc.
	 	 	69	 
	Section 7.5. Restricted Payments
	 	 	70	 
	Section 7.6. Sale of Assets
	 	 	71	 
	Section 7.7. Transactions with Affiliates
	 	 	71	 
	Section 7.8. Restrictive Agreements
	 	 	71	 
	Section 7.9. Sale and Leaseback Transactions
	 	 	71	 
	Section 7.10. Hedging Transactions
	 	 	72	 
	Section 7.11. Amendment to Material Documents
	 	 	72	 
	Section 7.13. Accounting Changes
	 	 	72	 
	Section 7.14. Lease Obligations
	 	 	72	 
	Section 7.15. Government Regulation
	 	 	72	 






 


ii









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT
	 	 	73	 
	Section 8.1. Events of Default
	 	 	73	 
	 
	 	 	 	 
	ARTICLE IX THE ADMINISTRATIVE AGENT
	 	 	76	 
	Section 9.1. Appointment of Administrative Agent
	 	 	76	 
	Section 9.2. Nature of Duties of Administrative Agent
	 	 	76	 
	Section 9.3. Lack of Reliance on the Administrative Agent
	 	 	77	 
	Section 9.4. Certain Rights of the Administrative Agent
	 	 	77	 
	Section 9.5. Reliance by Administrative Agent
	 	 	77	 
	Section 9.6. The Administrative Agent in its Individual Capacity
	 	 	77	 
	Section 9.7. Successor Administrative Agent
	 	 	78	 
	Section 9.8. Withholding Tax
	 	 	79	 
	Section 9.9. Administrative Agent May File Proofs of Claim
	 	 	79	 
	Section 9.10. Authorization to Execute other Loan Documents
	 	 	80	 
	Section 9.11. Syndication Agent
	 	 	80	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS
	 	 	80	 
	Section 10.1. Notices
	 	 	80	 
	Section 10.2. Waiver; Amendments
	 	 	82	 
	Section 10.3. Expenses; Indemnification
	 	 	84	 
	Section 10.4. Successors and Assigns
	 	 	85	 
	Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	89	 
	Section 10.6. WAIVER OF JURY TRIAL
	 	 	89	 
	Section 10.7. Right of Setoff
	 	 	90	 
	Section 10.8. Counterparts; Integration
	 	 	90	 
	Section 10.9. Survival
	 	 	90	 
	Section 10.10. Severability
	 	 	91	 
	Section 10.11. Confidentiality
	 	 	91	 
	Section 10.12. Interest Rate Limitation
	 	 	92	 
	Section 10.13. Waiver of Effect of Corporate Seal
	 	 	92	 
	Section 10.14. Patriot Act
	 	 	92	 






 


iii









 







Schedules




	 	 	 	 	 
	Schedule I

	 	—
	 	Applicable Margin and Applicable Percentage
	Schedule II

	 	—	 	Commitment Amounts
	Schedule 3.1(b)(xxii)

	 	—	 	Landlord Waiver Locations
	Schedule 4.5(a)

	 	—	 	Litigation
	Schedule 4.5(b)

	 	—
	 	Environmental Matters
	Schedule 4.14

	 	—
	 	Subsidiaries
	Schedule 7.1

	 	—
	 	Outstanding Indebtedness
	Schedule 7.2

	 	—
	 	Existing Liens
	Schedule 7.4

	 	—
	 	Existing Investments






Exhibits




	 	 	 	 	 
	Exhibit A

	 	—
	 	Form of Revolving Credit Note
	Exhibit B

	 	—
	 	Form of Term Note
	Exhibit C

	 	—
	 	Form of Assignment and Acceptance
	Exhibit D

	 	—
	 	Form of Subsidiary Guaranty Agreement
	Exhibit 2.3

	 	—
	 	Form of Notice of Revolving Borrowing
	Exhibit 2.7

	 	—
	 	Form of Notice of Conversion/Continuation
	Exhibit 3.1(b)(vi)

	 	—
	 	Form of Secretary’s Certificate
	Exhibit 2.5

	 	—
	 	Form of Notice of Term Loan Borrowing
	Exhibit 3.1(b)(ix)

	 	—
	 	Form of Officer’s Certificate
	Exhibit 5.1(c)

	 	—
	 	Form of Compliance Certificate




 


iv









 







REVOLVING CREDIT AND TERM LOAN AGREEMENT




THIS REVOLVING CREDIT AND TERM LOAN AGREEMENT (this “Agreement”) is made and entered
into as of May 19, 2009, by and among EASYLINK SERVICES INTERNATIONAL CORPORATION, a Delaware
corporation (the “Borrower”), the several banks and other financial institutions and
lenders from time to time party hereto (the “Lenders”), and SUNTRUST BANK, in its capacity
as administrative agent for the Lenders (the “Administrative Agent”), as issuing bank (the
“Issuing Bank”).



W I T N E S S E T H:




WHEREAS, the Borrower has requested that the Lenders (a) establish a $2,000,000 revolving
credit facility in favor of, and (b) make a term loan in the principal amount equal to $30,000,000
to, the Borrower;



WHEREAS, subject to the terms and conditions of this Agreement, the Lenders and the Issuing
Bank to the extent of their respective Commitments as defined herein, are willing severally to
establish the requested revolving credit facility, letter of credit subfacility and severally to
make the term loan to the Borrower.



NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
the Borrower, the Lenders, the Administrative Agent and the Issuing Bank 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):



“Additional Commitment Amount” shall have the meaning given to such term in Section
2.23.




“Additional Lender” shall have the meaning given to such term in Section 2.23.



“Adjusted LIBO Rate” shall mean, with respect to each Interest Period for a Eurodollar
Borrowing, the rate per annum obtained by dividing (i) LIBOR for such Interest Period by (ii) a
percentage equal to 1.00 minus the Eurodollar Reserve Percentage.



“Administrative Agent” shall have the meaning assigned to such term in the opening
paragraph hereof.



“Administrative Questionnaire” shall mean, with respect to each Lender, an
administrative questionnaire in the form prepared 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 (i) vote 5% or more of the securities having ordinary voting power for the
election of directors (or persons performing similar functions) of a Person or (ii) 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.



“Aggregate Revolving Commitment Amount” shall mean the aggregate principal amount of
the Aggregate Revolving Commitments from time to time. On the Closing Date, the Aggregate
Revolving Commitment Amount is $2,000,000.



“Aggregate Revolving Commitments” shall mean, collectively, all Revolving Commitments
of all Lenders at any time outstanding.



“Aggregate Term Loan Commitments” shall mean, collectively, all Term Loan Commitments
of all Lenders at any time outstanding.



“Anti-Terrorism Order” shall mean Executive Order 13224, signed by President George W.
Bush on September 24, 2001.



“Annualized” means, with respect to any amount for any applicable period, the
applicable amount for the applicable period divided by the number of months in such applicable
period times twelve (12).



“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) with respect to all Term Loans
outstanding on such date and (b) with respect to interest on all Revolving Loans outstanding on
such date or the letter of credit fee, as the case may be, a percentage per annum determined by
reference to the applicable Leverage Ratio in effect on such date as set forth on Schedule
I; provided, that a change in the Applicable Margin resulting from a change in the
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 on Schedule I
until such time as 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 Closing Date until the financial statements and Compliance
Certificate for the Fiscal Quarter ending October 31, 2009 are required to be delivered shall be at
Level IV as set forth on Schedule I. In the event that any financial statement or
Compliance Certificate



 


2









 






 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 or lower Applicable Margin based upon the pricing grid set forth
on Schedule I (the “Accurate Applicable Margin”) for any period that such financial
statement or Compliance Certificate covered, then (i) the Borrower shall, within one (1) Business
Day, 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 on Schedule I for such period and (iii) either the Borrower shall, within one (1)
Business Day, 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, or, in
the case of a lower Accurate Applicable Margin, the Lenders shall promptly pay any resulting excess
interest to Administrative Agent, for the account of the Borrower. The provisions of this
definition shall not limit the rights of the Administrative Agent and the Lenders with respect to
Section 2.13(c) or Article VIII.



“Applicable Percentage” shall mean, as of any date, with respect to the commitment fee
as of any date, the percentage per annum determined by reference to the Leverage Ratio in effect on
such date as set forth on Schedule I; provided, that a change in the Applicable
Percentage resulting from a change in the 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, the Applicable Percentage shall
be at Level V as set forth on Schedule I until such time as such financial statements and
Compliance Certificate are delivered, at which time the Applicable Percentage shall be determined
as provided above. Notwithstanding the foregoing, the Applicable Percentage for the commitment fee
from the Closing Date until the financial statements and Compliance Certificate for the Fiscal
Quarter ending October 31, 2009 are required to be delivered shall be at Level IV as set forth on
Schedule I. 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 Percentage based upon the pricing grid set forth on
Schedule I (the “Accurate Applicable Percentage”) for any period that such
financial statement or Compliance Certificate covered, then (i) the Borrower shall, within one (1)
Business Day, deliver to the Administrative Agent a correct Financial Statement or Compliance
Certificate, as the case may be, for such period, (ii) the Applicable Percentage shall be adjusted
such that after giving effect to the corrected financial statements or Compliance Certificate, as
the case may be, the Applicable Percentage shall be reset to the Accurate Applicable Percentage
based upon the pricing grid set forth on Schedule I for such period as set forth in the
foregoing pricing grid for such period and (iii) the Borrower shall, within one (1) Business Day,
pay to the Administrative Agent, for the account of the Lenders, the accrued additional commitment
fee owing as a result of such Accurate Applicable Percentage for such period or, in the case of a
lower Applicable Percentage, the Lenders shall promptly pay any excess resulting commitment fees
paid to the Lenders to the Administrative Agent, for the account of the Borrower. The provisions
of this definition shall
not limit the rights of the Administrative Agent and the Lenders with respect to Section
2.13(c) or Article VIII.


 


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
(i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.



“Acquired Adjusted EBITDA” shall mean, with respect to any Acquired Business for any
period, the amount for such period of Consolidated Adjusted EBITDA of such Acquired Business, all
as determined on a consolidated basis for such Acquired Business in a manner not inconsistent with
GAAP.



“Acquired Business” shall have the meaning provided in the definition of the term
Permitted Acquisition.



“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
10.4(b)) and accepted by the Administrative Agent, in the form of Exhibit C attached
hereto or any other form approved by the Administrative Agent.



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



“Base Rate” shall mean the highest of (i) the rate which the Administrative Agent
announces from time to time as its prime lending rate, as in effect from time to time, (ii) the
Federal Funds rate, as in effect from time to time, plus one-half of one percent (1/2%) per annum and
(iii) the Adjusted LIBO Rate determined on a daily basis for an Interest Period of one (1) month,
plus one percent (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 of interest charged to any customer of the
Administrative Agent. 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.




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



“Borrowing” shall mean a borrowing consisting of 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.



“Business Day” shall mean (i) any day other than a Saturday, Sunday or other day on
which commercial banks in Atlanta, Georgia are authorized or required by law to close and (ii) 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 are carried on in the London interbank market.


 


4









 





“Capital Expenditures” shall mean for any period, without duplication, (i) 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 prepared in accordance with GAAP and (ii) 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 under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.



“Capital Stock” means 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 Securities and
Exchange Commission 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,
with a depository institution, and pursuant to documentation in form and substance, reasonably
satisfactory to the Administrative Agent (and “Cash Collateralization” has a corresponding
meaning).



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


 


5









 






“Cash Taxes” means those Taxes evidenced by or requiring the payment of cash.



“Change in Control” shall mean the occurrence of one or more of the following events:
(i) 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 Securities and
Exchange Commission thereunder in effect on the date hereof), (ii) 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 Securities and Exchange Commission
thereunder as in effect on the date hereof) of 30% or more of the outstanding shares of the voting
stock of the Borrower, or (iii) occupation of a majority of the seats (other than vacant seats) on
the board of directors of the Borrower by Persons who were neither (a) nominated by the current
board of directors nor (b) appointed by directors so nominated.



“Change in Law” shall mean (i) the adoption of any applicable law, rule or regulation
after the date of this Agreement, (ii) any change in any applicable law, rule or regulation, or any
change in the interpretation or application thereof, by any Governmental Authority after the date
of this Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office) or the
Issuing Bank (or for purposes of Section 2.18(b), by the parent corporation of such Lender
or the 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.



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



“Closing Date” shall mean the date on which the conditions precedent set forth in
Section 3.1 and Section 3.2 have been satisfied or waived in accordance with
Section 10.2.



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



“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 the Lenders 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,
the Stock Pledge Agreement, each other security agreement and intellectual property security
agreement, and such other documents executed and delivered in connection with the attachment and
perfection of the Administrative Agent’s security interests and liens arising thereunder (for the
benefit of the Lenders), including without limitation, UCC financing statements and patent and
trademark filings.


 


6









 





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



“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).



“Consolidated Adjusted EBITDA” shall mean, for the Borrower and its Subsidiaries for
any period, an amount equal to the sum of (i) Consolidated Net Income for such period plus (ii) to
the extent deducted in determining Consolidated Net Income for such period, and without
duplication, (A) Consolidated Interest Expense, (B) income tax expense determined on a consolidated
basis in accordance with GAAP, (C) depreciation and amortization determined on a consolidated basis
in accordance with GAAP, (D) non-cash compensation expense, (E) any non-cash losses attributable to
writedowns of assets or any non-cash gains attributable to writeups of assets (as the case may be),
(F) all other non-cash or non-recurring charges reasonably acceptable to the Administrative Agent,
determined on a consolidated basis in accordance with GAAP, in each case for such period; provided,
however, that (x) there shall be included in determining Consolidated Adjusted EBITDA for any
period, without duplication, the Acquired Adjusted EBITDA of any Acquired Business during such
period, based on the actual Acquired Adjusted EBITDA of such Acquired Business for such period
(including the portion thereof occurring prior to such Permitted Acquisition).



“Consolidated Fixed Charges” shall mean, for the Borrower and its Subsidiaries for any
period, the sum (without duplication) of (i) Consolidated Interest Expense for such period (but
only to the extent comprised of cash interest expense), (ii) scheduled principal payments made on
Consolidated Total Debt during such period plus (iii) Restricted Payments paid in cash during such
period, provided, however, that, for the purpose of computing (x) Consolidated Interest Expense and
(y) scheduled principal payments made on Consolidated Total Debt for the Initial Fiscal Quarters,
(1) Consolidated Interest Expense shall be equal to actual Consolidated Interest Expense incurred,
measured from the Closing Date to the last day of any such applicable Initial Fiscal Quarter,
computed on an Annualized basis and (2) scheduled principal payments made on Consolidated Total
Debt for the Initial Fiscal Quarters shall be equal to actual scheduled principal payments made on
Consolidated Total Debt measured from the Closing Date to the last day of any such applicable
Initial Fiscal Quarter, computed on an Annualized basis.



“Consolidated Interest Expense” shall mean, for the Borrower and its Subsidiaries for
any period determined on a consolidated basis in accordance with GAAP, the sum of (i) 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 (ii) 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).


 


7









 





“Consolidated Net Income” shall mean, for the Borrower and its Subsidiaries for any
period, the net income (or loss) of the Borrower and its Subsidiaries for such period determined on
a consolidated basis in accordance with GAAP, but excluding therefrom (to the extent otherwise
included therein) (i) any extraordinary gains or losses, (ii) any gains attributable to
write-ups of assets, (iii) any equity interest of the Borrower or any Subsidiary of the
Borrower in the unremitted earnings of any Person that is not a Subsidiary and (iv) any income (or
loss) of any Person accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary on the date that such Person’s assets are acquired
by the Borrower or any Subsidiary.



“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 subsection (xi) of the definition thereto.



“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.



“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(c).



“Defaulting Lender” shall mean, at any time, a Lender as to which the Administrative
Agent has notified the Borrower that (i) such Lender has failed for two or more Business Days to
comply with its obligations under this Agreement to make a Loan and/or to make a payment to the
Issuing Bank in respect of a Letter of Credit (each a “funding obligation”), (ii) such
Lender has notified the Administrative Agent, or has stated publicly, that it will not comply with
any such funding obligation hereunder, (iii) such Lender has, for three 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, or (iv) a Lender
Insolvency Event has occurred and is continuing with respect to such Lender. Any determination
that a Lender is a Defaulting Lender under clauses (i) through (iv) above will be made by the
Administrative Agent in its sole discretion acting in good faith. The Administrative Agent will
promptly send to all parties hereto a copy of any notice to the Borrower provided for in this
definition.



“Distributions” shall mean all dividends paid in stock, liquidating dividends, shares
of stock resulting from stock splits, reclassifications, warrants, options, non-cash dividends and
other distributions (whether similar or dissimilar to the foregoing) on or with respect to any
Pledged Shares or other shares of capital stock constituting Collateral, but shall not mean
Dividends.



“Dividends” shall mean cash dividends and cash distributions with respect to any
Pledged Shares made out of capital surplus.




“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
one of the fifty states of the United States or the District of Columbia.


 


8









 





“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 (i) any actual or
alleged violation of any Environmental Law, (ii) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (iii) any actual or alleged exposure to
any Hazardous Materials, (iv) the Release or threatened Release of any Hazardous Materials or (v)
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, as amended
from time to time, and any successor statute.



“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 (i) any “reportable event”, as defined in Section 4043 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); (ii) the failure of any Plan to meet the minimum funding
standard applicable to the Plan for a plan year under Section 412 of the Code or Section 302 of
ERISA, whether or not waived; (iii) 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; (iv) 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; (v) 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; (vi) 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 (vii) 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.



“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 LIBO Rate.


 


9









 





“Eurodollar Reserve Percentage” shall mean the aggregate of the maximum reserve
percentages (including, without limitation, any emergency, supplemental, special or other marginal
reserves) expressed as a decimal (rounded upwards to the next 1/100th of 1%) in effect
on any day to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate
pursuant to regulations issued by the Board of Governors of the Federal Reserve System (or any
Governmental Authority succeeding to any of its principal functions) with respect to eurocurrency
funding (currently referred to as “eurocurrency liabilities” under Regulation D). Eurodollar Loans
shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be available from time
to time to any Lender under Regulation D. The Eurodollar Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in any reserve percentage.




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



“Excluded Taxes” shall mean with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income or
profits by the United States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the case of any Lender,
in which its Applicable Lending Office is located, (b) any branch profits taxes imposed by the
United States of America or any similar tax imposed by any other jurisdiction in which any Lender
is located and (c) in the case of a Foreign Lender, any withholding tax that (i) is imposed on
amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement, (ii) is imposed on amounts payable to such Foreign Lender at any time that such Foreign
Lender designates a new lending office, other than taxes that have accrued prior to the designation
of such lending office that are otherwise not Excluded Taxes, and (iii) is attributable to such
Foreign Lender’s failure to comply with Section 2.20(e).



“Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if
necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with member banks of the Federal Reserve System arranged by
Federal funds brokers, as published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the
quotations for such day on such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by the Administrative Agent.



“Fee Letter” shall mean that certain fee letter, dated as of March 17, 2009, 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.



“Fixed Charge Coverage Ratio” shall mean, as of any date, the ratio of (a)
Consolidated Adjusted EBITDA less the actual amount paid by the Borrower and its Subsidiaries in
cash on account of Capital Expenditures less Cash Taxes to (b) Consolidated Fixed Charges, in each
case measured for the four consecutive Fiscal Quarters ending on or immediately prior to such date.



“Foreign Lender” shall mean any Lender that is not a United States person under
Section
7701(a)(30) of the Code.


 


10









 





“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.



“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 (i) 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, (ii) 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, (iii) 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 (iv) 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” shall mean each of the Subsidiary Loan Parties.



“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.



“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 (i) any and all Hedging Transactions, (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Hedging Transactions and (iii) any and all renewals, extensions
and modifications of any Hedging Transactions and any and all substitutions for any Hedging
Transactions.


 


11









 





“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.



“Indebtedness” of any Person shall mean, without duplication (i) all obligations of
such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) 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(g), trade payables
overdue by more than 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), (iv) all
obligations of such Person under any conditional sale or other title retention agreement(s)
relating to property acquired by such Person, (v) all Capital Lease Obligations of such Person,
(vi) all obligations, contingent or otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (vii) all Guarantees of such Person of the type of
Indebtedness described in clauses (i) through (vi) above, (viii) 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, (ix) all obligations of such Person, contingent or otherwise, to purchase,
redeem, retire or otherwise acquire for value any Capital Stock of such Person, (x) Off-Balance
Sheet Liabilities and (xi) all Hedging Obligations. 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 Taxes other than Excluded Taxes.



“Information Memorandum” shall mean the Confidential Information Memorandum dated
April, 2009 relating to the Borrower and the transactions contemplated by this Agreement and the
other Loan Documents.



“Initial Fiscal Quarters” shall mean the fiscal quarters of the Consolidated Parties
ending July 31, 2009, October 31, 2009, January 31, 2010 and April 30, 2010.


 


12









 





“Intellectual Property” shall mean any or all of the following: (a) works of
authorship including advertising and/or programming content, computer programs, source code, and
executable code, whether embodied in software, firmware or otherwise, documentation, designs,
files, records, data and mask works, (b) inventions (whether or not patentable),
(c) confidential information, trade secrets and know how, (d) databases, data compilations and
collections and technical data, (e) logos, trade names, trade dress, trademarks, service marks and
brand names, (f) domain names, web sites, universal resource locators and email addresses, and
(g) any and all instantiations of the foregoing in any form and embodied in any media.



“Interest Period” shall mean, with respect to (i) Eurodollar Borrowing, a period of
one, two, three or six months and (ii) any LIBOR Index Rate Borrowing, a period of one month,
provided, that, in either case:




(i) 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 next preceding Interest Period expires;




(ii) 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 next preceding Business Day;




(iii) 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;




(iv) 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




(v) 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 or LIBOR Index Rate Loans (as the case may be) with Interest Periods
expiring after such date, and no Interest Period may extend beyond the Maturity Date.



“Issuing Bank” shall mean SunTrust Bank in its capacity as the issuer of Letters of
Credit pursuant to Section 2.22.



“LC Commitment” shall mean that portion of the Aggregate Revolving Commitment Amount
that may be used by the Borrower for the issuance of Letters of Credit in an aggregate face amount
not to exceed $2,000,000.



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



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


 


13









 





“LC Exposure” shall mean, at any time, the sum of (i) the aggregate undrawn amount of
all outstanding Letters of Credit at such time, plus (ii) 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.



“Lenders” shall have the meaning assigned to such term in the opening paragraph of
this Agreement and shall include, where appropriate, and each Additional Lender that joins this
Agreement pursuant to Section 2.23.



“Lender Insolvency Event” shall mean that (i) 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, or (ii) such Lender or its Parent Company is the subject of a bankruptcy, insolvency,
reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor
or sequestrator 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.



“Letter of Credit” shall mean any stand-by letter of credit issued pursuant to
Section 2.22 by the Issuing Bank for the account of the Borrower pursuant to the LC
Commitment.



“Leverage Ratio” shall mean, as of any date, the ratio of (i) Consolidated Total Debt
as of such date to (ii) Consolidated Adjusted EBITDA for the four consecutive Fiscal Quarters
ending on or immediately prior to such date.



“LIBOR” shall mean, for any Interest Period with respect to a Eurodollar Loan, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBOR01 Page (or any successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London, England time), two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period. If for any reason such
rate is not available, LIBOR shall be, for any Interest Period, the rate per annum reasonably
determined by the Administrative Agent as the rate of interest at which Dollar deposits in the
approximate amount of the Eurodollar Loan comprising part of such borrowing would be offered by the
Administrative Agent to major banks in the London interbank Eurodollar market at their request at
or about 10:00 a.m. two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period.



“LIBOR Index Rate Determination Date” shall mean the Closing Date and the first
(1st) Business Day of each calendar month thereafter.


 


14









 





“LIBOR Index Rate” shall mean, 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 LIBOR Index Rate, which shall be that rate per annum effective on any LIBOR
Index Rate Determination Date which is equal to the quotient of:



(i) the rate per annum equal to the offered rate for deposits in Dollars for a one (1) month
period, which rate appears on that page of Bloomberg reporting service, or such similar service as
determined by the Administrative Agent, that displays British Bankers’
Association interest settlement rates for deposits in Dollars, as of 11: 00 A.M. (London, England
time) two (2) Business Days prior to the LIBOR Index Rate Determination Date; provided, however,
that if no such offered rate appears on such page, the rate used for such Interest Period will be
the per annum rate of interest determined by Administrative Agent to be the rate at which U.S.
dollar deposits for the Interest Period are offered to the Administrative Agent in the London
Inter-Bank Market as of 11:00 A.M. (London, England time), on the day which is two (2) Business
Days prior to the LIBOR Index Rate Determination Date, divided by



(ii) a percentage equal to 1.00 minus the maximum reserve percentages (including any
emergency, supplemental, special or other marginal reserves) expressed as a decimal (rounded upward
to the next 1/100th of 1%) in effect on any day to which Administrative Agent is subject with
respect to any LIBOR Index Rate Borrowing pursuant to regulations issued by the Board of Governors
of the Federal Reserve System with respect to Eurocurrency funding (currently referred to as
“eurocurrency liabilities” under Regulation D). This percentage will be adjusted automatically on
and as of the effective date of any change in any reserve percentage.



“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).



“Liquidity” means, as of any date of determination for any Person, the sum of (i) cash
plus (ii) Cash Equivalents, provided, however, that, in each case as to clauses (i) and (ii), all
such cash and Cash Equivalents are not subject to any Liens other than Liens permitted pursuant to
Section 7.2(a) hereof.



“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 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 the Borrower and the Subsidiary Loan Parties.



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



“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, (i) the
business, results of operations, financial condition, assets or liabilities of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Loan Parties to perform any of their
respective material obligations under the Loan Documents, (iii) the rights and remedies of the
Administrative Agent, the Issuing Bank and the Lenders under any of the Loan Documents or (iv) the
legality, validity or enforceability of any of the Loan Documents.


 


15









 





“Material Indebtedness” shall mean any Indebtedness (other than the Loans and Letters
of Credit) and Hedging Obligations of the Borrower or any of its Subsidiaries, individually or in
an aggregate 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.



“Material Non-Indebtedness Obligations” shall mean any obligations and liabilities of
the Borrower or any of its Subsidiaries (including without limitation all taxes, assessments and
other governmental charges, levies and all other claims that could result in a statutory Lien, but
excluding Indebtedness), individually or in an aggregate amount exceeding $1,000,000.



“Maturity Date” shall mean, with respect to the Term Loans, the earlier of (i) April
30, 2012, (ii) the Revolving Commitment Termination Date or (iii) the date on which the principal
amount of all outstanding Term Loans have been declared or automatically have become due and
payable (whether by acceleration or otherwise).




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



“Multiemployer Plan” shall be a plan having the meaning set forth in
Section 4001(a)(3) of ERISA, to which the Borrower has any liability.



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




“Notes” shall mean, collectively, the Revolving Credit Notes and the Term Notes.




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



“Notice of Conversion/Continuation” shall mean the notice given by the Borrower to the
Administrative Agent in respect of the conversion or continuation of an outstanding Borrowing as
provided in Section 2.7(b).



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


 


16









 





“Notice of Term Loan Borrowing” shall have the meaning as set forth in Section
2.5.



“Obligations” shall mean (a) all amounts owing by the Loan Parties to the
Administrative Agent, the Issuing Bank, any Lender or SunTrust Robinson Humphrey, Inc. as the Lead
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, the Issuing Bank and any
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 or Affiliate of any
Lender, (c) all Treasury Management Obligations between any Loan Party and any Lender or Affiliate
of any Lender, (d) all purchasing cards, corporate credit cards or similar extensions of credit
between any Loan Party and any Lender or Affiliate of any Lender, together with all renewals,
extensions, modifications or refinancings of any of the foregoing.



“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 (i) any repurchase obligation
or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii)
any liability of such Person under any sale and leaseback transactions that do not create a
liability on the balance sheet of such Person, (iii) any Synthetic Lease Obligation or (iv) 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.



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



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



“Parent Company” shall mean, with respect to a Lender, the bank holding company (as
defined in Federal Reserve Board 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 10.4(d).




“Patriot Act” shall have the meaning set forth in Section 10.14.



“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.


 


17









 





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



“Permitted Acquisition” means any transaction consummated after the date hereof, in
which the Borrower or a Subsidiary acquires all or substantially all of the assets or outstanding
Capital Stock of any Person or any division or business line of any Person, or merges or
consolidates with any Person (with any such acquisition being referred to as an “Acquired
Business” and any such Person, division or line of business being the “Target”), with
respect to which either:



(1) the Transaction Value of such transaction, when combined with the Transaction Values of
any prior transaction consummated during such Fiscal Year, shall not exceed $1,000,000, provided,
that, at the closing of any such transaction, after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing; or



(2) the Transaction Value of such transaction, when combined with the Transaction Values of
any prior transactions consummated during such Fiscal Year, shall exceed $1,000,000 and be less
than $3,000,000, and the following conditions shall be satisfied with respect to such transaction,
as determined by the Administrative Agent in its reasonable discretion: (a) at the closing of such
transaction, after giving effect thereto, no Default or Event of Default shall have occurred and be
continuing, (b) such acquisition is not a “hostile” acquisition and has been approved by the Board
of Directors and/or shareholders of the Borrower, the applicable Subsidiary and the Target, (c) the
Target is not subject to pending insolvency proceedings, nor has it expressed in writing its
intention to commence a voluntary case or other proceeding, to file any petition seeking
liquidation, reorganization or other relief under any federal, state or foreign bankruptcy,
insolvency or other similar law or to seek the appointment of a custodian, trustee, receiver,
liquidator or other similar official of it or any substantial part of its property, or to consent
to the institution of, or fail to contest in a timely and appropriate manner, any insolvency
proceeding or petition; (d) at least 10 Business Days prior to the closing of the transaction, the
Borrower shall provide the Administrative Agent (which shall promptly deliver a copy to the
Lenders) pro forma financial statements of the Target for the twelve month period to immediately
follow the closing of the transaction, reflecting that the Target is projected to have Consolidated
Adjusted EBITDA (assuming that Consolidated Adjusted EBITDA were to be determined for the Target
and its Subsidiaries rather than the Borrower and its Subsidiaries, and without regard to
adjustments for acquisition expenses) for such twelve month period in an amount greater than $0
(after excluding permitted non-recurring or non-cash charges), (e) at least 10 Business Days prior
to the closing of such transaction, the Borrower shall give written notice of such transaction to
the Administrative Agent (which shall promptly deliver a copy to the Lenders) (the “Acquisition
Notice”), which shall include either (i) the final acquisition agreement or the then current
draft of the acquisition agreement or (ii) a reasonably detailed description of the material terms
of such Permitted Acquisition (including, without limitation, the purchase price and method and
structure of payment), (f) the Borrower or a Subsidiary shall be the surviving entity of any
merger, (g) the Acquired Business shall be in a line of business reasonably related to the
then-current business of the Borrower and its Subsidiaries or a line of business permitted by
Section 5.3, (h) the



 


18









 






Transaction Value of all such transactions (taken together with any Permitted Acquisitions permitted pursuant to the foregoing clause (1) of
this definition) shall not exceed $3,000,000 in any Fiscal Year of the Borrower, unless otherwise
approved by the Administrative Agent and the Required Lenders, (i) at the time it gives the
Acquisition Notice, the Borrower shall deliver to the Administrative Agent financial statements for
next succeeding two-year period prepared on a Pro Forma Basis, which shall reflect to the
Administrative Agent’s reasonable satisfaction that the Borrower and its Subsidiaries will continue
to be in compliance with all of the financial covenants set forth in this Agreement, (j) the
Administrative Agent shall receive and approve all documents relating to the acquisition and such
additional documentation regarding the acquisition as it shall reasonably require, including,
without limitation, financial statements or a financial review of such Target, as applicable, for
its two most recent fiscal years in form and substance reasonably acceptable to the Administrative
Agent and unaudited fiscal year-to-date statements for the two most recent interim periods,
provided, that if such financial statements, financial reviews or unaudited fiscal year-to-date
statements (as the case may be) are not available for the Target’s most recent two fiscal years,
then the Administrative Agent, in its sole discretion, may permit and accept the delivery of such
financial statements, financial reviews or unaudited fiscal year-to-date statements (as the case
may be) comprised of a shorter time-frame and (k) at the time it gives the Acquisition Notice, the
Borrower shall deliver to the Administrative Agent (which shall promptly deliver a copy to the
Lenders) a certificate, executed by a Responsible Officer of the Borrower, demonstrating in
sufficient detail compliance with the financial covenants contained in Article 6 of the Agreement
on a Pro Forma Basis after giving effect to such acquisition and, further, certifying that, after
giving effect to the consummation of such acquisition, the representations and warranties of the
Borrower contained herein will be true and correct in all material respects and as of the date of
such consummation, except to the extent such representations or warranties expressly relate to an
earlier date, and that the Borrower, as of the date of such consummation, will be in compliance
with all other terms and conditions contained herein.




“Permitted Encumbrances” shall mean:




(i) solely to the extent subordinated in priority to the security interest granted by
the Loan Parties to the Agent for the benefit of the Lenders pursuant to the Collateral
Documents, Liens imposed by law for taxes, assessments and other governmental charges or
levies 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;




(ii) Liens of landlords, carriers, warehousemen, mechanics, materialmen and other Liens
of similar nature imposed by law or contract in the ordinary course of business for amounts
not more than 30 days past 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;




(iii) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations;


 


19









 






(iv) deposits 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;




(v) solely to the extent subordinated in priority to the security interest granted by
the Loan Parties to the Agent for the benefit of the Lenders pursuant to the Collateral
Documents, judgment and attachment liens not giving rise to 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;




(vi) 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;




(vii) 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; and




(viii) other Liens securing obligations in an aggregate amount not to exceed $100,000
at any time;



provided, that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




“Permitted Investments” shall mean:




(i) 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 one year from the date of acquisition thereof;




(ii) 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;




(iii) certificates of deposit, bankers’ acceptances, time deposits maturing within 180
days of the date of acquisition thereof issued or guaranteed by or placed with, demand
deposits 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 or any
Lender;


 


20









 






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




(v) mutual funds investing solely in any one or more of the Permitted Investments
described in clauses (i) through (iv) above.



“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.



“Pledged Property” shall mean all Pledged Shares and the certificates evidencing the
Pledged Shares, and all Dividends, Distributions, securities, cash, instruments, interest payments
and other property and proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Shares.



“Pledged Shares” shall mean all of the capital stock of the Subsidiaries owned by the
Loan Parties from time to time, including without limitation the capital stock more particularly
described in Schedule 1 to the Stock Pledge Agreement, as amended and supplemented from
time to time and all other shares of capital stock which are pledged by the Loan Parties to the
Administrative Agent as Pledged Property under the Stock Pledge Agreement. The Pledged Shares
shall expressly exclude the capital stock constituting more than sixty-five percent (65%) of all
issued and outstanding shares of all classes of capital stock or other equity interests of any
Subsidiary of any Loan Party which Subsidiary is not a Domestic Subsidiary.



“Pro Forma Basis” means, for purposes of calculating compliance with respect to a
proposed Permitted Acquisition, that such transaction shall be deemed to have occurred as of the
first day of the four Fiscal Quarter period ending as of the most recent Fiscal Quarter end
preceding the date of such transaction. For purposes of any such calculation in respect of any
Permitted Acquisition, (a) any Indebtedness incurred or assumed in connection with such transaction
that 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, (b) income statement items (whether positive
or negative) and Capital Expenditures attributable to the Person or property acquired shall be
included beginning as of the first day of the applicable period and (c) no adjustments for
unrealized synergies shall be included.


 


21









 





“Pro Rata Share” shall mean (i) 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 Loans, 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 (ii) 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 Loans
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.



“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.



“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 or other representatives of such Person and such Person’s Affiliates.



“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, Lenders holding more than 66.66% of the
aggregate outstanding Revolving Commitments and Term Loans at such time or if the Lenders have no
Commitments outstanding, then Lenders holding more than 66.66% of the Revolving Credit Exposure and
Term Loans, provided, however, that to the extent that any Lender is a Defaulting
Lender, such Defaulting Lender and all of its Commitments and Revolving Credit Exposure shall be
excluded for purposes of determining Required Lenders.



“Requirement of Law” for any Person shall mean the articles or certificate of
incorporation, bylaws, partnership certificate and agreement, or limited liability company
certificate of organization and agreement, as the case may be, and other organizational and
governing documents of such Person, and any law, treaty, rule or regulation, or determination of a
Governmental Authority, in each case applicable to and binding upon such Person or any of its
property or to which such Person or any of its property is subject.


 


22









 





“Responsible Officer” shall mean any of the president, the chief executive officer,
the chief operating officer, the chief financial officer, the treasurer or a vice president of the
Borrower or such other representative of the Borrower 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 the Borrower.




“Restricted Payment” shall have the meaning set forth in Section 7.5.



“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
in an aggregate principal amount not exceeding the amount set forth with respect to such Lender on
Schedule II, as such schedule may be amended pursuant to Section 2.23, or in the
case of a Person becoming a Lender after the Closing 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 (i) May 19, 2012,
(ii) the date on which the Revolving Commitments are terminated pursuant to Section 2.8 and
(iii) 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 and LC Exposure.



“Revolving Credit Note” shall mean a promissory note of the Borrower payable to the
order of a requesting Lender in the principal amount of such Lender’s Revolving Commitment, in
substantially the form of Exhibit F.



“Revolving Loan” shall mean a loan made by a 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, a Division of the McGraw-Hill Companies.



“Sanctioned Country” shall mean a country subject to a sanctions program identified on
the list maintained by OFAC and available at
http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise published
from time to time.



“Sanctioned Person” shall mean (i) a Person named on the list of “Specially
Designated Nationals and Blocked Persons” maintained by OFAC available at
http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or as otherwise published from
time to time, or (ii) (A) an agency of the government of a Sanctioned Country, (B) an organization
controlled by a Sanctioned Country, or (C) a person resident in a Sanctioned Country, to the extent
subject to a sanctions program administered by OFAC.



“Security Agreement” shall mean the Security Agreement, dated as of the date hereof,
made by the Loan Parties in favor of the Administrative Agent for the benefit of the Lenders.


 


23









 





“Stock Pledge Agreement” shall mean the Stock Pledge Agreement, dated as of the date
hereof, made by certain of the Loan Parties in favor of the Administrative Agent for the benefit of
the Lenders.



“Solvent” shall mean, with respect to any Person on a particular date, that on such
date (a) the fair value of the property of such Person (including the fair value of any intangible
good will 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 (including the present fair saleable value of any intangible good will 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; and
(d) such Person is not engaged in a business or transaction, and is not committed to engage in a
business or transaction, for which such Person’s property would constitute an unreasonably small
capital. 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.



“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, as well as any other corporation, partnership, joint venture, limited liability company,
association or other entity (i) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power, or in the case of a
partnership, more than 50% of the general partnership interests are, as of such date, owned,
controlled or held, or (ii) 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.



“Subsidiary Guaranty Agreement” shall mean the Subsidiary Guaranty Agreement, dated as
of the date hereof and substantially in the form of Exhibit D, made by certain Subsidiaries
of the Borrower in favor of the Administrative Agent for the benefit of the Lenders.



“Subsidiary Loan Party” shall mean any Subsidiary that executes or becomes a party to
the Subsidiary Guaranty Agreement.



“Synthetic Lease” shall mean a lease transaction under which the parties intend that
(i) the lease will be treated as an “operating lease” by the lessee pursuant to Statement of
Financial Accounting Standards No. 13, as amended and (ii) the lessee will be entitled to various
tax and other benefits ordinarily available to owners (as opposed to lessees) of like property.


 


24









 





“Synthetic Lease Obligations” shall mean, with respect to any Person, the sum of (i)
all
remaining rental obligations of such Person as lessee under Synthetic Leases which are
attributable to principal and, without duplication, (ii) 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.



“Target” shall have the meaning provided in the definition of the term Permitted
Acquisition.



“Taxes” shall mean any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.




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



“Term Loan Commitment” shall mean, with respect to each Lender, the commitment of such
Lender to make Term Loans to the Borrower in an aggregate principal amount not exceeding the amount
set forth with respect to such Lender on Schedule II, as such schedule may be amended
pursuant to Section 2.23, or in the case of a Person becoming a Lender after the Closing
Date, the amount of the assigned “Term Loan 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.



“Term Note” shall mean a promissory note of the Borrower payable to the order of a
requesting Lender in the principal amount of such Lender’s Term Loan Commitment on the Closing
Date, and in the principal amount of any increase in such Lender’s Term Loan Commitment pursuant to
Section 2.23, in substantially the form of Exhibit B.



“Transaction Value” shall mean the total consideration paid in connection with any
Permitted Acquisition (including any Indebtedness of the Acquired Business that is assumed by the
Borrower or any Subsidiary following such acquisition and any amounts actually paid or reasonably
estimated at closing to be paid pursuant to any post-closing payment adjustments, earn-outs or
non-compete payments, but excluding transaction costs in an amount not to exceed 25% of the
Transaction Value with respect to any such Permitted Acquisition).



“Treasury Management Obligations” shall mean, collectively, all obligations and other
liabilities of any Loan Parties pursuant to any agreements governing the provision to such Loan
Parties of treasury or cash management services, including deposit accounts, funds transfer,
automated clearing house, zero balance accounts, returned check concentration, controlled
disbursement, lockbox, account reconciliation and reporting and trade finance services.



“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 LIBO Rate, the LIBOR Index Rate or the Base Rate.



“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.


 


25









 





“York Capital” shall mean, collectively, York Capital Management, L.P., a Delaware
limited partnership, York Investment Limited, a Bahamian corporation, York Select, L.P., a Delaware
limited partnership, York Select Unit Trust, a Cayman Islands unit trust and York Credit
Opportunities Fund, L.P., a Delaware limited partnership.



“York Capital Indebtedness” shall mean the Indebtedness of the Borrower owing to York
Capital pursuant to, and as evidenced by, collectively, those certain Series A Senior Secured
Convertible Notes due August 20, 2011 and Series B Senior Secured Convertible Notes due August 20,
2011.



“York Capital Recapitalization Transaction” shall mean the transaction pursuant to
which (i) $30,000,000 of the York Capital Indebtedness is repaid with the proceeds of the Term
Loan, (ii) each of the Series A Senior Secured Convertible Notes due August 20, 2011, the Series B
Senior Secured Convertible Notes due August 20, 2011, the Additional Investment Rights and the
Warrants issued by the Borrower in favor of York Capital are cancelled, and (iii) any remaining
amounts due and owing with respect to the York Capital Indebtedness are permanently converted to
Capital Stock of the Borrower, all as is more specifically set forth in the York Capital
Recapitalization Transaction Documents, resulting in the indefeasible retirement of the York
Capital Indebtedness.



“York Capital Recapitalization Transaction Documents” shall, collectively, mean the
documents, certificates and other agreements evidencing or otherwise relating to or contemplated by
the York Capital Recapitalization Transaction, including, without limitation, the York Warrants and
the Securities Exchange Agreement by and among York Capital and the Borrower dated as of the
Closing Date.



“York Preferred Stock” shall, collectively, mean all shares of Series E Redeemable
Preferred Stock, par value $.01 per share, of the Borrower that are issued in connection with the
York Capital Recapitalization Transaction.




“York Warrants” means, collectively,



(i) that certain Warrant No. 2009-001, dated as of May 19, 2009, issued by the Borrower to
York Capital Management, L.P. or its registered assigns;



(ii) that certain Warrant No. 2009-002, dated as of May 19, 2009, issued by the Borrower to
York Investment Limited or its registered assigns;



(iii) that certain Warrant No. 2009-003, dated as of May 19, 2009, issued by the Borrower to
York Select, L.P. or its registered assigns;



(iv) that certain Warrant No. 2009-004, dated as of May 19, 2009, issued by the Borrower to
York Select Unit Trust or its registered assigns;



(v) that certain Warrant No. 2009-005, dated as of May 19, 2009, issued by the Borrower to
York Credit Opportunities Fund, L.P. or its registered assigns;


or any warrant that replaces any of the foregoing, in whole or in part, so long as the terms
of such replacement warrant (other than as to number of shares for which the same may be exercised)
are identical to the warrant so replaced.




 


26









 





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”, a “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 a “LIBOR Index Rate
Borrowing”) or by Class and Type (e.g. “Revolving Eurodollar Borrowing” or a “Revolving LIBOR Index
Rate Borrowing”).



Section 1.3. Accounting Terms and Determination. 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.



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 and (v) 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.


 


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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, (i) 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 to the Borrower in accordance with Section 2.2, (ii) the Issuing Bank agrees to issue Letters of Credit in accordance with Section 2.22, and (iii) each Lender agrees to purchase a participation interest in the Letters of
Credit (to the extent of such Lender’s Revolving Commitment) pursuant to the terms and conditions
hereof; provided, that in no event shall the aggregate principal amount of all outstanding
Revolving Loans and outstanding LC Exposure exceed at any time the Aggregate Revolving Commitment
Amount from time to time in effect; and (v) each Lender severally agrees to make a Term Loan to the
Borrower in a principal amount equal to such Lender’s Term Loan Commitment on the Closing Date.



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,
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 Commitment Amount. 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 11:00 a.m. one (1) Business Day prior to
the requested date of each Base Rate Borrowing or LIBOR Index Rate Borrowing and (y) prior to 11:00
a.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 entirely of Base Rate
Loans, Eurodollar Loans or LIBOR Index Rate Loans, as the Borrower may request. The aggregate
principal amount of each Eurodollar Borrowing shall be not less than $100,000 or a larger multiple
of $100,000, and the aggregate principal amount of each LIBOR Index Rate Borrowing or Base Rate
Borrowing shall not be less than $100,000 or a larger multiple of $100,000; provided, that
Base Rate Loans made pursuant to 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
four. 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.


 


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Section 2.4. [Intentionally Omitted]



Section 2.5. Term Loan Commitments. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each, a “Term Loan”) to the Borrower on
the Closing Date or if such Lender is joining this Agreement as an Additional Lender and is
establishing its initial Term Loan Commitment pursuant to Section 2.23 (or an existing Lender is
increasing its Term Loan Commitment pursuant to Section 2.23), on the effective date of any
supplement or joinder described in Section 2.23, in a principal amount equal to (a) with respect to
the Term Loans to be made on the Closing Date, the Term Loan Commitment of such Lender as of the
Closing Date, and (b) with respect to any Term Loans made by such Lender after the Closing Date
pursuant to Section 2.23, the amount by which such Lender agreed to increase (or establish, in the
case of an Additional Lender) its Term Loan Commitment; provided, that if for any reason
the full amount of such Lender’s Term Loan Commitment is not fully drawn on the Closing Date, or on
the effective date of any increase pursuant to Section 2.23, as the case may be, the undrawn
portion thereof at such time shall automatically be cancelled. The Term Loans may be, from time to
time, Base Rate Loans, Eurodollar Loans, LIBOR Index Rate Loans or a combination thereof;
provided, that on the Closing Date all Term Loans shall be LIBOR Index Rate Loans. 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 Loans on the Closing Date, and the execution and delivery of a supplement or
joinder described in Section 2.23 by the Borrower and the satisfaction of all conditions precedent
pursuant to Section 3.2 shall be deemed to constitute the Borrower’s request to borrow the
additional Term Loans on the effective date of any such supplement or joinder, provided,
that the Administrative Agent may, in its sole discretion, condition any request by Borrower to
borrow the Term Loans (whether on the Closing Date or, if applicable, thereafter), upon the
Borrower giving the Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of each Term Loan Borrowing substantially in the form of Exhibit 2.5 (a
“Notice of Term Loan Borrowing”) (x) prior to 11:00 a.m. one (1) Business Day prior to the
requested date of each Base Rate Borrowing or LIBOR Index Rate Borrowing and (y) prior to 11:00
a.m. three (3) Business Days prior to the requested date of each Eurodollar Borrowing. Each Notice
of Term Loan 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 Term 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), provided, that on the Closing Date all Term Loans shall be
LIBOR Index Rate Loans.




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 1:00 p.m. to the Administrative Agent at
the Payment Office. 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.


 


29









 





(b) Unless the Administrative Agent shall have been notified by any Lender prior to 11:00 a.m.
on 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, within 1 Business Day, pay such corresponding amount
to the Administrative Agent together with interest at the rate specified for such Borrowing.
Nothing in this subsection 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.



(a) Each Borrowing initially shall be of the Type specified in the applicable Notice of
Revolving Borrowing, and in the case of a Eurodollar Borrowing, shall have an initial Interest
Period as specified in such Notice of Revolving Borrowing. Thereafter, the Borrower may elect to
convert such Borrowing into a different Type or to continue such Borrowing, and in the case of a
Eurodollar Borrowing, may elect Interest Periods therefore, 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.


 


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(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 substantially in the form of Exhibit 2.7 attached hereto (a “Notice of
Conversion/Continuation”) that is to be converted or continued, as the case may be, (x) prior
to 10:00 a.m. time) 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 Eurodollar Borrowing or a LIBOR Index Rate
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, Base Rate Borrowings and LIBOR
Index Rate Borrowings set forth in Section 2.3.



(c) If, on the expiration of any Interest Period in respect of any Eurodollar Borrowing or
LIBOR Index Rate 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 Base Rate Borrowing. No Borrowing may be
converted into, or continued as, a Eurodollar Borrowing or a LIBOR Index Rate Borrowing if a
Default or 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 or LIBOR Index
Rate 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 and LC Commitments shall terminate
on the Revolving Commitment Termination Date. The Term Loan Commitments as of the Closing Date
shall terminate on the Closing Date, and any additional Term Loan Commitments pursuant to Section
2.23 shall terminate upon the effectiveness of any supplement or joinder executed pursuant thereto,
in each case upon the making of the Term Loans pursuant to Section 2.5.



(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 $100,000 and any larger
multiple of $100,000, and (iii) no such reduction shall be permitted which would reduce the
Aggregate Revolving Commitment Amount to an amount less than the
outstanding Revolving Credit Exposures of all Lenders. Any such reduction in the Aggregate
Revolving Commitment Amount below the sum of the principal amount of the LC Commitment shall result
in a proportionate reduction (rounded to the next lowest integral multiple of $100,000) in the LC
Commitment.


 


31









 





(c) The Borrower may terminate (on a non-ratable basis) the unused amount of the Revolving
Commitment of a Defaulting Lender upon not less than five (5) Business Days’ prior notice to the
Administrative Agent (which will promptly notify the Lenders thereof), and in such event the
provisions of Section 2.26 will apply to all amounts thereafter paid by the Borrower for
the account of any such Defaulting Lender under this Agreement (whether on account of principal,
interest, fees, indemnity or other amounts), provided that such termination will not be
deemed to be a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing
Bank or any Lender may have against such Defaulting Lender.




Section 2.9. Repayment of Loans.



(a) The outstanding principal amount of all Revolving Loans shall be due and payable (together
with accrued and unpaid interest thereon) on the Revolving Commitment Termination Date, provided,
however, that, at Borrower’s election, any outstanding Letters of Credit may be Cash Collateralized
for so long as any LC Exposure related to or arising from any such Letters of Credit is
outstanding, by the Borrower depositing in an account with the Administrative Agent, in the name of
the Administrative Agent and for the benefit of the Issuing Bank and the Lenders, an amount in cash
equal to 105% of any such LC Exposure as of such date plus any accrued and unpaid fees thereon.
Such deposit shall be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement with respect to any LC Exposure
related to or arising from any such Letters of Credit, which shall otherwise survive the repayment
of the Loans. The Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Borrower agrees to execute any documents and/or
certificates to effectuate the intent of this paragraph. 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 the 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.




(b) [Intentionally Omitted]


 


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(c) In addition to any amounts due from the Borrower pursuant to Section 2.23(f) of this
Agreement, 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 of such Lender in installments
payable on the dates set forth below, with each such installment being in the aggregate principal
amount for all Lenders set forth opposite such date below (and on such
other date(s) and in such other amounts as may be required from time to time pursuant to this
Agreement):



	 	 	 	 	 
	Installment Date	 	Aggregate Principal Amount	 
	 
	 	 	 	 
	July 31, 2009
	 	$	2,083,333.00	 
	October 31, 2009
	 	$	2,500,000.00	 
	January 31, 2010
	 	$	2,500,000.00	 
	April 30, 2010
	 	$	2,500,000.00	 
	July 31, 2010
	 	$	2,500,000.00	 
	October 31, 2010
	 	$	2,500,000.00	 
	January 31, 2011
	 	$	2,500,000.00	 
	April 30, 2011
	 	$	2,500,000.00	 
	July 31, 2011
	 	$	2,500,000.00	 
	October 31, 2011
	 	$	2,500,000.00	 
	January 31, 2012
	 	$	2,500,000.00	 
	April 30, 2012
	 	$	2,916,667.00	 






provided, that, to the extent not previously paid, the aggregate unpaid principal balance
of the Term Loans (specifically including any Additional Commitment Amount comprised of an increase
to the Term Loan Commitment pursuant to Section 2.23 of this Agreement) shall be due and payable on
the Maturity Date.



Section 2.10. Evidence of Indebtedness. (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 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 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 (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent.
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).


 


33









 





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) to the
Administrative Agent no later than (i) in the case of prepayment of any Eurodollar Borrowing or any
LIBOR Index Rate Borrowing, 11:00 a.m. not less than three (3) Business Days prior to any such
prepayment and (ii) in the case of any prepayment of any Base Rate Borrowing, not less than one
Business Day prior to 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(d); provided, that if a
Eurodollar Borrowing or a LIBOR Index Rate 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 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 2.2. Each prepayment of a Borrowing shall be applied ratably to the Loans
comprising such Borrowing, and in the case of a prepayment of a Term Loan Borrowing, to principal
installments in inverse order of maturity, provided, that any such prepayment of a Borrowing made
within the 15 day period immediately prior to any scheduled principal installment payment date
shall be applied first to the principal and interest payable on such payment date, and then to the
remaining principal installments in the inverse order of their maturity.




Section 2.12. Mandatory Prepayments.



(a) Within 5 Business Days after receipt by the Borrower or any of its Subsidiaries of cash
proceeds of any sale or disposition by the Borrower or such Subsidiary of any of its assets, or
cash proceeds from any casualty insurance policies or eminent domain, condemnation or similar
proceedings, other than proceeds from sales of inventory in the ordinary course of business, the
Borrower shall prepay the Obligations in an amount by which such cash proceeds, net of (i)
commissions and other reasonable and customary transaction costs, fees and expenses properly
attributable to such transaction and payable by such Borrower in connection therewith (in each
case, paid to non-Affiliates), (ii) reasonable reserves with respect to post-closing adjustments,
indemnities and contingent obligations and (iii) amounts paid in respect of any Indebtedness
secured by a Lien on such assets exceed $250,000 in any Fiscal Year, except to the extent that such
proceeds from casualty insurance policies, eminent domain, condemnation or similar proceeds are
reinvested in the business of the Loan Parties within 180 days following receipt thereof, and until
reinvested are held in Controlled Accounts subject to Control Account Agreements. Any such
prepayment shall be applied in accordance with paragraph (c) below.


 


34









 





(b) If the Borrower or any of its Subsidiaries issues any Indebtedness or equity securities
(other than Indebtedness permitted under Section 7.1, and other than equity securities
issued by a Subsidiary of the Borrower to the Borrower or another Subsidiary or by the Borrower to
a director, officer or employee) then no later than the Business Day following the date of receipt
of the cash proceeds thereof, net of underwriting discounts and commissions and other reasonable
costs paid to non-Affiliates in connection therewith, Borrower shall prepay the Obligations in an
amount equal to (i) one hundred percent (100%) of such cash proceeds resulting from any issuance of
any such Indebtedness and (ii) fifty percent (50%) of such cash proceeds resulting from any
issuance of any such equity securities. Any such prepayment shall be applied in accordance with
Section 2.12(c).



(c) Any prepayments made by the Borrower pursuant to Sections 2.12(a) or (b)
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 reasonable and documented out of pocket expenses of the Lenders and all reasonable and
documented out of pocket fees and reimbursable expenses of the Issuing Bank then due and payable
pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their
respective pro rata shares of such reasonable and documented out of pocket 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, until the same shall have been paid in full, pro rata to the Lenders
based on their Pro Rata Shares of the Term Loans, and applied to installments of the Term Loans in
inverse order of maturity; provided, that any such prepayment of a Borrowing made within the 15 day
period immediately prior to any scheduled principal installment payment date shall be applied first
to the principal and interest payable on such payment date, and then to the remaining principal
installments in the inverse order of their maturity, fifth, 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 sixth, to Cash Collateralize the Letters of
Credit in accordance with Section 2.22(g) in an amount in cash equal to 105% of 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 and sixth above, unless an Event of Default has occurred and is continuing and the
Required Revolving Lenders so request.



(d) If at any time the Revolving Credit Exposure of all Lenders exceeds the Aggregate
Revolving Commitment Amount, as reduced pursuant to Section 2.8 or otherwise, the Borrower
shall immediately repay 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 Base Rate Loans to the full extent thereof, next to
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 Revolving Loans, the Revolving Credit
Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, 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 Bank and the Lenders, an amount in cash equal to such excess plus
any accrued and unpaid fees thereon to be held as collateral for the LC Exposure. Such account
shall be administered in accordance with Section 2.22(g) hereof.


 


35









 






Section 2.13. Interest on Loans.



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




(b) [Intentionally Omitted]



(c) Notwithstanding clause (a) above, while an Event of Default exists, at the option of the
Required Lenders, and after acceleration, the Borrower shall pay interest (“Default
Interest”) with respect to (i) all Eurodollar Loans and all LIBOR Index Rate Loans at the
Adjusted LIBOR Rate and at the LIBOR Index Rate (as applicable), plus, in each case, the Applicable
Margin (which, notwithstanding anything to contrary in this Agreement, while an Event of Default
exists, shall be at Level V as set forth in Schedule I), plus an additional 2% per annum,
until the last day of the applicable Interest Period and (ii) all Base Rate Loans and all other
Obligations hereunder (other than Loans), at the Base Rate, plus the Applicable Margin (which,
notwithstanding anything to contrary in this Agreement, while an Event of Default exists, shall be
at Level V as set forth in Schedule I), plus an additional 2% per annum, until the last day
of the applicable Interest Period.



(d) 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 shall be payable quarterly in arrears on the last day of each July,
October, January and April and on the Revolving Commitment Termination Date or the Maturity Date,
as the case may be. Interest on all outstanding Eurodollar Loans and LIBOR Index Rate 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 or 90 days, respectively, on
each day which occurs every three months or 90 days, as the case may be, 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.



(e) The Administrative Agent shall determine each interest rate applicable to the Loans
hereunder in accordance with the terms hereof 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 more specifically set forth in the Fee Letter.


 


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(b) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee, which shall accrue at the Applicable Percentage per annum
(determined daily in accordance with Schedule I) on the daily amount of the unused
Revolving Commitment of such Lender during the Availability Period. For purposes of computing
commitment fees 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 of such
Lender.



(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, which
shall accrue at a rate per annum equal to the Applicable Margin for Eurodollar Loans 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 (including without limitation
any LC Exposure that remains outstanding after the Revolving Commitment Termination Date),
provided, that, notwithstanding the foregoing, the minimum amount of any such letter of credit fee
shall be $1,000 and (ii) to the Issuing Bank for its own account a fronting fee, which shall accrue
at the rate of 0.25% per annum on the average daily amount of the LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the Availability Period (or
until the date that such Letter of Credit is irrevocably cancelled, whichever is later), provided,
however, that such fronting fee shall only be due and payable by the Borrower in the event that the
Borrower exercises its right to increase the Aggregate Commitment Amount through the inclusion of
an Additional Lender having a Revolving Commitment, as well as the 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 Required Lenders elect to increase the
interest rate on the Loans to the Default Interest pursuant to Section 2.13(c), the rate
per annum used to calculate the letter of credit fee pursuant to clause (i) above shall
automatically be increased to Level V as set forth in Schedule I, plus an additional 2% per
annum until the last day of the applicable Interest Period.



(d) The Borrower shall pay to the Administrative Agent, for the ratable benefit of each
Lender, an upfront fee in an amount equal to 1% of each Lender’s Term Loan Commitment and each
Lender’s Revolving Commitment as of the Closing Date, which upfront fee shall be due and payable on
the Closing Date.



(e) Accrued fees under paragraphs (b) and (c) above shall be payable quarterly in arrears on
the last day of each July, October, January and April, commencing on July 31, 2009 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 any fees accruing during such
period pursuant to Sections 2.14(b) and (c) (without prejudice to the rights of the
Lenders other than Defaulting Lenders in respect of such fees), or any amendment fees hereafter
offered to any Lender, and the pro rata payment provisions of Section 2.20
will automatically be deemed adjusted to reflect the provisions of this Section.




 


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Section 2.15. Computation of Interest and Fees.



All computations of interest and fees hereunder shall be made on the basis of a year of 360
days for the actual number of days (including the first day but excluding the last day) occurring
in the period for which such interest or fees are payable (to the extent computed on the basis of
days elapsed). 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.



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




(i) the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances affecting the
relevant interbank market, adequate means do not exist for ascertaining LIBOR for such
Interest Period, or




(ii) the Administrative Agent shall have received notice from the Required Lenders that
either the Adjusted LIBO Rate or the LIBOR Index Rate does not adequately and fairly reflect
the cost to such Lenders (or Lender, as the case may be) of making, funding or maintaining
their (or its, as the case may be) Eurodollar Loans or LIBOR Index Rate Loans (as the case
may be) 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, (i) the obligations of the Lenders to make Eurodollar Revolving
Loans or LIBOR Index Rate Revolving Loans or to continue or convert outstanding Loans as or into
Eurodollar Loans or LIBOR Index Rate Loans shall be suspended and (ii) 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 Revolving Borrowing or LIBOR Index Rate Loan 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 any 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 Revolving 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 Revolving Borrowing or a
LIBOR Index Rate Borrowing, such Lender’s Revolving Loan shall be made as a Base



 


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Rate Loan as part
of the same Revolving Borrowing for the same Interest
 Period and if the affected Eurodollar Loan or LIBOR Index Rate Borrowing is then outstanding,
such Loan shall be converted to a Base Rate Loan either (i) on the last day of the then current
Interest Period applicable to such Eurodollar Loan or such LIBOR Index Rate Loan if such Lender may
lawfully continue to maintain such Loan to such date or (ii) immediately if such Lender shall
determine that it may not lawfully continue to maintain such Eurodollar Loan or such LIBOR Index
Rate Loan (as the case may be) 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.



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 LIBO Rate or
the 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 LIBO Rate or the LIBOR Index Rate) or the Issuing Bank; or




(ii) impose on any Lender or on the Issuing Bank or the eurodollar interbank market any
other condition affecting this Agreement, any Eurodollar Loans or any 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 a LIBOR Index Rate Loan or to
increase the cost to such Lender or the Issuing Bank of participating in or issuing any Letter of
Credit or to reduce the amount received or receivable by such Lender or the 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 the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.



(b) If any Lender or the Issuing Bank shall have determined that on or after the date of this
Agreement any Change in Law regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender’s or the Issuing Bank’s capital (or on the capital of such
Lender’s or the Issuing Bank’s parent corporation) 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 or the Issuing
Bank or such Lender’s or the Issuing Bank’s parent corporation could have achieved but for such
Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies or the
policies of such Lender’s or the Issuing Bank’s parent corporation 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 or the Issuing Bank or such Lender’s or the Issuing Bank’s parent
corporation for any such reduction suffered.


 


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(c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s
parent corporation, as the case may be, specified in paragraph (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 the Issuing Bank, as
the case may be, such amount or amounts within five (5) Business Days after receipt thereof.



(d) Notwithstanding the foregoing, the Borrower shall not be obligated to pay any amounts to
any Lender or the Issuing Bank under this Section 2.18 to the extent that any such amounts
arose more than 6 months prior to the date that the Borrower received the certificate contemplated
in Section 2.18(c).



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 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 LIBO Rate applicable
to such Eurodollar Loan for the period from the date of such event to the last day of the then
current Interest Period therefore (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 LIBO Rate 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) Any and all payments by or on account of any obligation of the Borrower hereunder shall be
made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided, that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section 2.21) the Administrative Agent, any Lender or the Issuing Bank (as the case
may be) shall receive an amount equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant Governmental Authority in accordance with applicable law.


 


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(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.



(c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within five (5) Business Days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the case
may be, on or with respect to any payment by or on account of any obligation of the Borrower
hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section 2.20) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the Borrower, along with a
copy of the written notice issued by a Governmental Authority of demand or request for payment, by
a Lender or the Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of a
Lender or the Issuing Bank, shall be conclusive absent manifest error. If the Borrower determines
in good faith that a reasonable basis exists for contesting any Taxes for which indemnification has
been demanded hereunder, the relevant Lender shall cooperate with the Borrower in challenging such
Taxes at the Borrower’s expense if so requested by the Borrower in writing.



(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower 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.



(e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the Code or any treaty to which the United States is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will permit such payments
to be made without withholding or at a reduced rate. Without limiting the generality of the
foregoing, each Foreign Lender agrees that it will deliver to the Administrative Agent and the
Borrower (or in the case of a Participant, to the Lender from which the related participation shall
have been purchased), as appropriate, two (2) duly completed copies of (i) Internal Revenue Service
Form W-8 ECI, or any successor form thereto, certifying that the payments received from the
Borrower hereunder are effectively connected with such Foreign Lender’s conduct of a trade or
business in the United States; or (ii) Internal Revenue Service Form W-8 BEN, or any successor form
thereto, certifying that such Foreign Lender is entitled to benefits under an income tax treaty to
which the United States is a party which reduces the rate of withholding tax on payments of
interest; or (iii) Internal Revenue Service Form W-8 BEN, or any successor form prescribed by the
Internal Revenue Service, together with a certificate (A) establishing that the payment to the
Foreign Lender qualifies as “portfolio interest” exempt from U.S. withholding tax under


 


41









 





Code
section 871(h) or 881(c), and
 (B) stating that (1) the Foreign Lender is not a bank for purposes of Code section
881(c)(3)(A), or the obligation of the Borrower hereunder is not, with respect to such
Foreign Lender, a loan agreement entered into in the ordinary course of its trade or business,
within the meaning of that section; (2) the Foreign Lender is not a 10% shareholder of the Borrower
within the meaning of Code section 871(h)(3) or 881(c)(3)(B); and (3) the Foreign Lender is not a
controlled foreign corporation that is related to the Borrower within the meaning of Code section
881(c)(3)(C); or (iv) such other Internal Revenue Service forms as may be applicable to the Foreign
Lender, including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender shall deliver to the Borrower
and the Administrative Agent such forms on or before the date that it becomes a party to this
Agreement (or in the case of a Participant, on or before the date such Participant purchases the
related participation). In addition, each such Foreign Lender shall deliver such forms promptly
upon the obsolescence or invalidity of any form previously delivered by such Foreign Lender. Each
such Foreign Lender shall promptly notify the Borrower and the Administrative Agent at any time
that it determines that it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification adopted by the Internal Revenue
Service for such purpose).



(f) If the Administrative Agent or any Lender determines, in its sole discretion, that it has
received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by
the Borrower, or with respect to which the Borrower has paid additional amounts pursuant to this
Section, it shall pay to the Borrower an amount equal to such refund (but only the extent of
indemnity payments made, or additional amounts paid, by Borrower under this Section with respect to
the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out of pocket expenses
of the Administrative Agent or such Lender, as the case may be, and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such refund), provided
that Borrower upon the request of the Administrative Agent or such Lender, agrees to repay the
amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender if the Administrative
Agent or such Lender is required to repay such refund to such Governmental Authority. This
subsection (f) shall not be construed to (i) require the Administrative Agent or any Lender to make
available its Tax returns (or any other information relating to its Taxes that it deems, in its
sole discretion, to be confidential) to the Borrower or any Person or (ii) impose an obligation on
the Administrative Agent or any Lender to seek a refund of any Indemnified Taxes or Other Taxes for
which it has been indemnified by the Borrower, or with respect to which the Borrower has paid
additional amounts pursuant to this Section, unless otherwise requested by the Borrower in writing
pursuant to Section 2.20(c).



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, Atlanta,
Georgia time, 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 Indemnified or Other 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 Issuing Bank as
expressly provided herein and except that payments pursuant to Sections 2.18, 2.19
and 2.20 and 10.3 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.


 


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(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 reasonable and
documented out of pocket fees and reimbursable expenses then due and payable pursuant to any of the
Loan Documents; second, to all reasonable and documented out of pocket fees, reimbursable
expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and
payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank 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.



(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 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 paragraph 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 paragraph 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.


 


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(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 Bank 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 Bank, 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 Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender or 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) If any Lender shall fail to make any payment required to be made by it hereunder, then the
Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent for the account of such Lender to
satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are
fully paid.



Section 2.22. Letters of Credit.



(a) During the Availability Period, the Issuing Bank, in reliance upon the agreements of the
other Lenders pursuant to Section 2.22(d), agrees to issue, at the request of the Borrower,
Letters of Credit for the account of the Borrower on the terms and conditions hereinafter set
forth; provided, that (i) each Letter of Credit shall expire not later than 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); (ii) each Letter of Credit shall be
in a stated amount of at least $10,000, or such lesser amount as may be agreed to in writing by the
Issuing Bank; 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 Commitment Amount.
Each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
the Issuing Bank without recourse a participation in each Letter of Credit equal to such Lender’s
Pro Rata Share (but only to the extent of each such Lender’s Revolving Commitment) of the aggregate
amount available to be drawn under such Letter of Credit on the date of issuance with respect to
all other Letters of Credit. Each issuance of a Letter of Credit shall be deemed to utilize the
Revolving Commitment of each Lender by an amount equal to the amount of such participation.



(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 Issuing Bank and the Administrative
Agent irrevocable written notice 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 Issuing Bank shall approve and that the Borrower shall have
executed and delivered any additional applications, agreements and instruments relating to such
Letter of Credit as the Issuing Bank shall reasonably 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.


 


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(c) At least two Business Days prior to the issuance of any Letter of Credit, the 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 Issuing Bank will provide the Administrative Agent
with a copy thereof. Unless the Issuing Bank has received notice from the Administrative Agent on
or before the Business Day immediately preceding the date the Issuing Bank is to issue the
requested Letter of Credit (1) directing the 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 that one or more conditions specified in Article III are not then satisfied,
then, subject to the terms and conditions hereof, the Issuing Bank shall, on the requested date,
issue such Letter of Credit in accordance with the Issuing Bank’s usual and customary business
practices.



(d) The Issuing Bank shall examine all documents purporting to represent a demand for payment
under a Letter of Credit promptly following its receipt thereof. The Issuing Bank shall notify the
Borrower and the Administrative Agent of such demand for payment and whether the 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 Issuing
Bank and the Lenders (but only to the extent of each such Lender’s Revolving Commitment) with
respect to such LC Disbursement. The Borrower shall be irrevocably and unconditionally obligated
to reimburse the Issuing Bank for any LC Disbursements paid by the Issuing Bank in respect of such
drawing, without presentment, demand or other formalities of any kind. Unless the Borrower shall
have notified the 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 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 the extent of each such Lender’s Revolving
Commitment) make a Base Rate Borrowing on the date on which such drawing is honored in an exact
amount due to the 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 (but only to the extent of each such Lender’s Revolving Commitment)
make the proceeds of its Base Rate Loan included in such Borrowing available to the Administrative
Agent for the account of the Issuing Bank in accordance with Section 2.6. The proceeds of
such Borrowing shall be applied directly by the Administrative Agent to reimburse the Issuing Bank
for such LC Disbursement.


 


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(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 the Issuing Bank and only to the extent of each such
Lender’s Revolving Commitment) shall be obligated to fund the participation that such Lender
purchased pursuant to subsection (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. Except as
is otherwise set forth in this Section 2.22, 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 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 applicable Lender shall promptly
transfer, in immediately available funds, the amount of its participation to the Administrative
Agent for the account of the Issuing Bank. Whenever, at any time after the Issuing Bank has
received from any such applicable Lender the funds for its participation in a LC Disbursement, the
Issuing Bank (or the Administrative Agent on its behalf) receives any payment on account thereof,
the Administrative Agent or the Issuing Bank, as the case may be, will distribute to such
applicable 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 the Issuing Bank any portion thereof previously distributed by the
Administrative Agent or the Issuing Bank to it.



(f) To the extent that any applicable Lender shall fail to pay any amount required to be paid
pursuant to paragraphs (d) or (e) of this Section on the due date therefor, such Lender shall pay
interest to the 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 the 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, on the Business Day that the
Borrower receives notice from the Administrative Agent or the Required Lenders demanding the
deposit of Cash Collateral pursuant to this paragraph, 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 Bank and the Lenders, an amount in cash equal to 105% of the LC Exposure as of such date
plus any accrued and unpaid fees thereon; provided, that the obligation to deposit such
Cash Collateral 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 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. Borrower
agrees to execute any documents and/or certificates to effectuate the intent of this paragraph.
Other than any



 


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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 the 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 provide an amount of Cash Collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not so applied as aforesaid) shall be
returned to the Borrower within three 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, the Issuing Bank
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, the Issuing Bank 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:




(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 the
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 Issuing Bank under a Letter of Credit against presentation of a
draft or other document to the 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.


 


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Neither the Administrative Agent, the Issuing Bank, 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 Issuing Bank; provided, that the foregoing shall not be construed
to excuse the 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 the 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 or willful misconduct on the part of the Issuing Bank (as determined by
a court of competent jurisdiction), the 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 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.



(j) Unless otherwise expressly agreed by the 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” (ISP98) (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.



Section 2.23. Increase of Commitments; Additional Lenders.



(a) So long as no Event of Default has occurred and is continuing, from time to time after May
19, 2010, Borrower may, upon at least 30 days’ written notice to the Administrative Agent (who
shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate
Revolving Commitments and/or the Aggregate Term Loan Commitments by an amount not to exceed
$10,000,000 in the aggregate during the term of this Agreement (the amount of any such increase,
the “Additional Commitment Amount”), provided, however, that (i) the sum of the Revolving
Commitment, plus the outstanding principal balance of the Term Loans, plus all Additional
Commitment Amounts shall never exceed $32,000,000,
(ii) each Additional Commitment Amount shall be in a principal amount of not less than
$2,500,000 and (iii) each Additional Commitment Amount shall be subject to the specific use
restrictions with respect thereto that are set forth in Section 5.9 of this Agreement. Each Lender
shall have the right for a period of 15 days following receipt of such notice, to elect by written notice



 


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 to the Borrower and the Administrative Agent to increase its Revolving Commitment and/or its
Term Loan Commitment (as the case may be) by a principal amount equal to its Pro Rata Share of the
Additional Commitment Amount allocated in the Borrower’s request to an increase in the Aggregate
Revolving Commitments and/or Aggregate Term Loan Commitments, as applicable. No Lender (or any
successor thereto) shall have any obligation to increase its Revolving Commitment, its Term Loan
Commitment or its other obligations under this Agreement and the other Loan Documents, and any
decision by a Lender to increase its Revolving Commitment or its Term Loan Commitment (as the case
may be) shall be made in its sole discretion independently from any other Lender. If any Lender
shall fail to notify the Borrower and the Administrative Agent in writing about whether it will
increase its Revolving Commitment or its Term Loan Commitment (as the case may be) within 15 days
after receipt of such notice, such Lender shall be deemed to have declined to increase its
Revolving Commitment or its Term Loan Commitment (as the case may be).



(b) If any Lender shall not elect to increase its Revolving Commitment or its Term Loan
Commitment (as the case may be) pursuant to subsection (a) of this Section 2.23, the
Borrower may designate another bank or other financial institution (which may be, but need not be,
one or more of the existing Lenders) which at the time agrees to, in the case of any such Person
that is an existing Lender, increase its Revolving Commitment or its Term Loan Commitment (as the
case may be) and in the case of any other such Person (an “Additional Lender”), become a
party to this Agreement; provided, however, that any new bank or financial
institution must be acceptable to the Administrative Agent, which acceptance will not be
unreasonably withheld or delayed. The sum of the increases in the Revolving Commitments and the
Term Loan Commitments of the existing Lenders pursuant to this subsection (b) plus the Revolving
Commitments and the Term Loan Commitments of the Additional Lenders shall not in the aggregate
exceed the unsubscribed amount of any applicable Additional Commitment Amount.



(c) An increase in the aggregate amount of the Revolving Commitments or the Term Loan
Commitments (as the case may be) pursuant to this Section 2.23 shall become effective upon
the receipt by the Administrative Agent of a supplement or joinder in form and substance
satisfactory to the Administrative Agent executed by the Borrower, by each Additional Lender and by
each other Lender whose Revolving Commitment or Term Loan Commitment (as the case may be) is to be
increased, setting forth the new Revolving Commitments or Term Loan Commitment (as the case may be)
of such Lenders and setting forth the agreement of each Additional Lender to become a party to this
Agreement and to be bound by all the terms and provisions hereof, together with Notes (if requested
pursuant to Section 2.10(b)) evidencing such increase in the Commitments, and such evidence of
appropriate corporate authorization on the part of the Borrower with respect to the increase in the
Revolving Commitments or the Term Loan Commitment (as the case may be) and such opinions of counsel
for the Borrower with respect to the increase in the Revolving Commitments or the Term Loan
Commitment (as the case may be) as the Administrative Agent may reasonably request.


 


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(d) Upon the acceptance of any such supplement or joinder by the Administrative Agent, the
Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the
Revolving Commitments added through such supplement or joinder and Schedule II shall
automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving
effect to the addition of such Revolving Commitments. Likewise, upon the acceptance of any such
supplement or joinder by the Administrative Agent, the Term Loan Commitment Amount shall
automatically be increased by the amount of the Term Loan Commitments added through such supplement
or joinder, the Lenders will advance to Borrower such increased amount of Term Loans added through
such supplement or joinder in accordance with Section 2.5 and Schedule II shall
automatically be deemed amended to reflect the Term Loan Commitments of all Lenders after giving
effect to the addition of such Term Loan Commitments.



(e) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this
Section 2.23 that is not pro rata among all Lenders, (x) within five Business Days, in the
case of any Base Rate Loans then outstanding, and at the end of the then current Interest Period
with respect thereto, in the case of any Eurodollar Loans and any LIBOR Index Rate Loans then
outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower
elects to do so and subject to the conditions specified in Article III, the Borrower shall
reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after
giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in
proportion to their respective Commitments after giving effect to such increase and (y) effective
upon such increase, the amount of the participations held by each Lender in each Letter of Credit
then outstanding shall be adjusted automatically such that, after giving effect to such
adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to
their respective Revolving Commitments.



(f) The Borrower unconditionally promises to pay to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Additional Commitment Amount comprised of
an increase in the Term Loan Commitment of each such Lender in fully-amortizing, quarterly
installments, computed from the date of any such Additional Commitment Amount through the Maturity
Date (the exact amounts of which, absent manifest error, shall be determined by the Administrative
Agent in its sole discretion), on the dates set forth in Section 2.9(c) of this Agreement, and in
addition to the amounts more specifically set forth in Section 2.9(c) of this Agreement, provided,
that the initial amount of any such principal payment shall be due and payable at the end of the
first (1st) Fiscal Quarter immediately succeeding the date of any such Additional
Commitment Amount, to be calculated on a pro-rated basis for the number of days remaining in such
initial Fiscal Quarter (based upon a fully-amortizing computation through the Maturity Date).



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 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 (i) would eliminate or reduce amounts payable under Section 2.18 or Section
2.20, as the case may
be, in the future and (ii) would not subject such Lender to any unreimbursed out of pocket
cost or expense and would not otherwise be materially disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable and documented out of pocket costs and expenses incurred by any
Lender in connection with such designation or assignment.


 


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Section 2.25. Replacement of Lenders. 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 of the account of any Lender pursuant to Section 2.20, or 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 10.4(b))
all its interests, rights and obligations under this Agreement 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) and (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. 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, and the Borrower shall not have
previously paid any amounts to such Lender under such Sections.



Section 2.26. Cash Collateralization of Defaulting Lender Commitment. If a Lender
becomes, and during the period it remains, a Defaulting Lender, the following provisions shall
apply with respect to any outstanding LC Exposure of such Defaulting Lender:



(a) the Issuing Bank is hereby authorized by the Borrower (which authorization is irrevocable
and coupled with an interest) to give, in its discretion, through the Administrative Agent, Notices
of Borrowing pursuant to Section 2.3 in such amounts and in such times as may be required
to reimburse an outstanding LC Disbursement;



(b) the Borrower will, not later than three (3) Business Days after demand by the
Administrative Agent (at the direction of the Issuing Bank), (a) Cash Collateralize a portion of
the obligations of the Borrower to the Issuing Bank equal to such Defaulting Lender’s LC Exposure
or (b) make other arrangements satisfactory to the Administrative Agent, and to the Issuing Bank,
in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender;
provided that no such Cash Collateralization will constitute a waiver or release of any
claim the Borrower, the Administrative Agent, the Issuing Bank or any other Lender may have against
such Defaulting Lender, or cause such Defaulting Lender to be a Non-Defaulting Lender;


 


51









 





(c) any amount paid by the Borrower for the account of a Defaulting Lender under this
Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts)
will not be paid or distributed to such Defaulting Lender, but will instead be
retained by the Administrative Agent in a segregated non-interest bearing account until the
termination of the Commitments 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 Bank under this Agreement, third to the payment of post-default
interest and then current interest due and payable to the Lenders hereunder other than 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 Non-Defaulting Lenders
hereunder, 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
Non-Defaulting Lenders hereunder 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
Non-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.



ARTICLE III




CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT




Section 3.1. Conditions To Effectiveness. The obligations of the Lenders to make Loans
and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied (or waived in
accordance with Section 10.2).



(a) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the Closing Date, including reimbursement or payment of all reasonable and documented
out-of-pocket expenses (including reasonable and documented 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 SunTrust
Robinson Humphrey, Inc., as Lead Arranger.



(b) The Administrative Agent (or its counsel) shall have received the following, each to be in
form and substance satisfactory to the Administrative Agent:




(i) a counterpart of this Agreement signed by or on behalf of each party hereto or
written evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement;




(ii) duly executed Revolving Credit and Term Notes payable to such Lenders that are
requesting the same;




(iii) the Subsidiary Guaranty Agreement duly executed by each Domestic Subsidiary
(other than Quickstream Software, Inc.);


 


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(iv) duly executed Collateral Documents executed by the applicable Loan Parties;




(v) copies of a duly executed payoff letter, in form and substance satisfactory to
Administrative Agent, executed by York Capital, together with (a) UCC-3 or other appropriate
termination statements, in form and substance satisfactory to Administrative Agent,
releasing all liens of York Capital upon any of the personal property of the Borrower and
its Subsidiaries, (b) cancellations and releases, in form and substance satisfactory to the
Administrative Agent, releasing all liens of York Capital upon any of the real property of
the Borrower and its Subsidiaries, including, without limitation, terminations of the
Security Agreement and Subsidiary Security Agreements between York Capital and Borrower and
its Subsidiaries, (c) delivery to the Administrative Agent of all original possessory
Collateral held by York Capital and (d) any other releases, terminations or other documents
reasonably required by the Administrative Agent to evidence the payoff of the York Capital
Indebtedness;




(vi) a certificate of the Secretary or Assistant Secretary of each Loan Party in the
form of Exhibit 3.1(b)(vi), attaching and certifying copies of its bylaws and of the
resolutions of its board of directors, or partnership agreement or limited liability company
agreement, or comparable organizational documents and authorizations, authorizing the
execution, delivery and performance of 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;




(vii) certified copies of the articles or certificate of incorporation, certificate of
organization or limited partnership, or other registered organizational documents of each
Loan Party, together with certificates of good standing or existence, as may be available
from the Secretary of State of the jurisdiction of organization of such Loan Party and each
other jurisdiction where such Loan Party is required to be qualified to do business as a
foreign corporation;




(viii) a favorable written opinion of Troutman Sanders, LLP, counsel to the Loan
Parties, addressed to the Administrative Agent, the Issuing Bank and each of the Lenders,
and covering such matters relating to the Loan Parties, the Loan Documents and the
transactions contemplated therein as the Administrative Agent or the Required Lenders shall
reasonably request;




(ix) a certificate in the form of Exhibit 3.1(b)(ix), dated the Closing Date
and signed by a Responsible Officer, certifying that after giving effect to the funding of
the Term Loan and any initial Revolving Loan, (x) no Default or Event of Default exists, (y)
all representations and warranties of each Loan Party set forth in the Loan Documents are
true and correct and (z) since the date of the financial statements of the Borrower
described in Section 4.4, there shall have been no change which has had or could
reasonably be expected to have a Material Adverse Effect;




(x) a duly executed Notice of Revolving Borrowing and/or Notice of Term Loan Borrowing,
as applicable;


 


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(xi) a duly executed funds disbursement agreement, together with a report setting forth
the sources and uses of the proceeds hereof;




(xii) certified copies of all material consents, approvals, authorizations,
registrations and filings and orders required or advisable to be made or obtained under any
Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with
the execution, delivery, performance, validity and enforceability of the Loan Documents, the
York Capital Recapitalization Transaction or any of the transactions contemplated thereby,
and such material 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 Commitments or any
transaction being financed with the proceeds thereof shall be ongoing;




(xiii) a duly completed and executed certificate of the type described in Section
5.1(c) reflecting compliance with the financial covenant set forth in Section
6.3 hereof as of the Closing Date, and including such supporting information and
calculations as the Administrative Agent deems to be satisfactory in its sole discretion;




(xiv) a certificate, dated the Closing Date and signed by the chief financial officer
of the Borrower, confirming that (a) the Borrower is Solvent before and after giving effect
to the funding of the initial Borrowing and the consummation of the transactions
contemplated to occur on the Closing Date and (b) the Loan Parties, taken as a whole on a
consolidated basis, are Solvent before and after giving effect to the funding of the initial
Borrowing and the consummation of the transactions contemplated to occur on the Closing
Date;




(xv) certified copies of all agreements, indentures or notes governing the terms of any
Material Indebtedness and all other material agreements, documents and instruments to which
any Loan Party or any of its assets are bound;




(xvi) certificates of insurance issued on behalf of insurers of the Borrower and all
Guarantors, describing in reasonable detail the types and amounts of insurance (property and
liability) maintained by the Borrower and all Guarantors, naming the Administrative Agent as
loss payee and additional insured;




(xvii) executed copies of the York Capital Recapitalization Transaction Documents;




(xviii) searches of Uniform Commercial Code filings in the jurisdiction of the chief
executive office and State of organization of Borrower and each Guarantor and each
jurisdiction where any Collateral is located or where a filing would need to be made in
order to perfect the Administrative Agent’s security interest in the Collateral for the
benefit of the Lenders, copies of the financing statements on file in such jurisdictions and
evidence that no Liens exist other than Permitted Encumbrances;


 


54









 






(ixx) duly authorized UCC financing statements for each appropriate jurisdiction as is
necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative
Agent’s security interest in the Collateral for the benefit of the Lenders;




(xx) searches of ownership of, and Liens on, Intellectual Property of Borrower and each
Guarantor in the appropriate governmental offices;




(xxi) all instruments and chattel paper in the possession of the Borrower or any
Subsidiary, together with allonges or assignments as may be necessary or appropriate to
perfect the Administrative Agent’s security interest in the Collateral for the benefit of
the Lenders; and



Without limiting the generality of the provisions of Section 3.1, for purposes of
determining compliance with the conditions specified in this Section 3.1, each Lender that
has signed this Credit 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 proposed Closing 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 the Issuing Bank to issue, amend, renew or extend any Letter of
Credit is subject to the satisfaction of the following conditions:



(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 on and as
of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such
Letter of Credit, in each case before and after giving effect thereto;



(c) since the date of the financial statements of the Borrower described in Section
4.4, there shall have been no change which has had or could reasonably be expected to have a
Material Adverse Effect; and



(d) the Borrower shall have delivered the required Notice of Revolving Borrowing and/or Notice
of Term Loan Borrowing, as applicable.



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 paragraphs (a), (b) and (c) of this Section 3.2.


 


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In addition to the other conditions precedent herein set forth, if any Lender is a Defaulting
Lender 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, the Issuing
Bank will not be required to issue any Letter of Credit or to extend, renew or amend any
outstanding Letter of Credit, unless the Issuing Bank is satisfied that any exposure that would
result therefrom is fully covered or eliminated by the Borrower Cash Collateralizing the
obligations of the Borrower in respect of such Letter of Credit in an amount at least equal to the
aggregate amount of the obligations (contingent or otherwise) of such Defaulting Lender in respect
of such Letter of Credit, or makes other arrangements satisfactory to the Administrative Agent and
the Issuing Bank in their sole discretion to protect them against the risk of non-payment by such
Defaulting Lender; provided that no such Cash Collateralization will constitute a waiver or
release of any claim the Borrower, the Administrative Agent, the Issuing Bank or any other Lender
may have against such Defaulting Lender, or cause such Defaulting Lender to be a Non-Defaulting
Lender.



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.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES




The Borrower represents and warrants to the Administrative Agent and each Lender as follows:



Section 4.1. Existence; Power. The Borrower and each of its Subsidiaries (i) is duly
organized, validly existing and in good standing as a corporation, partnership or limited liability
company under the laws of the jurisdiction of its organization, (ii) has all requisite power and
authority to carry on its business as now conducted, and (iii) 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 the Borrower, and constitutes, and each other Loan Document to which any Loan Party is
a party, when executed and delivered by such Loan Party, will constitute, valid and binding
obligations of the Borrower or such Loan Party (as the case may be), enforceable against it 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.


 


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Section 4.3. Governmental Approvals; No Conflicts. The execution, delivery and
performance by the Borrower of this Agreement, and by each Loan Party of the other Loan Documents
and the York Capital Recapitalization Transaction 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 those as have been obtained or made and are in full force and
effect, (b) will not violate any Requirements of 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 material 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 each Lender (i) the
audited consolidated balance sheet of the Borrower and its Subsidiaries as of July 31, 2008 and the
related consolidated statements of operations, shareholders’ equity and cash flows for the Fiscal
Year then ended prepared by Friedman LLP and (ii) the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as of January 31, 2009, and the related unaudited consolidated
statements of operations and cash flows for the Fiscal Quarter and year-to-date period then ending,
certified by a Responsible Officer. Such financial statements fairly present 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 (ii). Since July 31, 2008, 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.



Section 4.5. Litigation and Environmental Matters.



(a) Except for the matters set forth on Schedule 4.5(a), no litigation, investigation
or proceeding of or before any arbitrators or Governmental Authorities is pending against or, to
the knowledge of the Borrower, threatened in writing against or affecting 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) Except for the matters set forth on Schedule 4.5(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, which
failure could reasonably be expected to result in a Material Adverse Effect, (ii) has become
subject to any Environmental Liability which could reasonably be expected to result in a Material
Adverse Effect or (iii) has received notice of any claim with respect to any Environmental
Liability which could reasonably be expected to result in a Material Adverse Effect.



Section 4.6. Compliance with Laws and Agreements. The Borrower and each Subsidiary is
in compliance with (a) all Requirements of Law 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 singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.


 


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Section 4.7. 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 4.8. Taxes. The Borrower and its Subsidiaries have timely filed or caused to
be filed all Federal income tax returns and all other material tax returns that are required to be
filed by them, and have paid all material taxes shown to be due and payable on such returns or on
any material 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 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 and have been determined in accordance with GAAP.



Section 4.9. 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 4.10. 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.



Section 4.11. 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 most recent audited consolidated balance sheet of the Borrower
referred to in Section 4.4 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 prohibited 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.


 


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(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.



Section 4.12. Disclosure. The Borrower has disclosed to the Lenders all agreements,
instruments, and corporate or other restrictions to which the Borrower 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. Neither the Information
Memorandum nor any of the reports (including without limitation all reports that the Borrower is
required to file with the Securities and Exchange Commission), financial statements, certificates
or other information furnished by or on behalf of the Borrower 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 4.13. Labor Relations. There are no strikes, lockouts or other material labor
disputes or grievances against the Borrower or any of its Subsidiaries, or, to the Borrower’s
knowledge, threatened against or affecting 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 Borrower’s knowledge, threatened against any of them before any
Governmental Authority. 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 4.14. Subsidiaries. Schedule 4.14 sets forth the name of, the
ownership interest of the Borrower in, the jurisdiction of incorporation or organization of, and
the type of, each Subsidiary and identifies each Subsidiary that is a Subsidiary Loan Party, in
each case as of the Closing Date.



Section 4.15. Solvency. After giving effect to the execution and delivery of the Loan
Documents and the York Capital Recapitalization Transaction Documents, the making of the Loans
under this Agreement and the retirement of the York Capital Indebtedness and consummation of the
other transactions contemplated by the York Capital Recapitalization Transaction Documents (a) the
Borrower is Solvent and (b) the Borrower and its Subsidiaries, taken as a whole on a consolidated
basis, are Solvent.


 


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Section 4.16. [Intentionally Omitted].



Section 4.17. OFAC. None of the Borrower, any Subsidiary of the Borrower or any
Affiliate of the Borrower or any Guarantor (i) is a Sanctioned Person, (ii) has more than 15% of
its assets in Sanctioned Countries, or (iii) derives more than 15% of its operating income from
investments in, or transactions with Sanctioned Persons or Sanctioned Countries. No part of the
proceeds of any Loans hereunder will be used directly or indirectly to fund any operations in,
finance any investments or activities in or make any payments to, a Sanctioned Person or a
Sanctioned Country or for any payments to any governmental official or employee, political party,
official of a political party, candidate for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as amended.



Section 4.18. Patriot Act. Neither any Credit 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 or any enabling
legislation or executive order relating thereto. Neither any Credit Party nor any or 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. None of the Credit Parties (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




The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or any
Obligation (other than in respect of indemnity obligations that survive termination of this
Agreement and in respect of Letters of Credit for which cash collateral has been provided) remains
unpaid or outstanding:



Section 5.1. Financial Statements and Other Information. The Borrower will deliver to
the Administrative Agent and each Lender:



(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of
Borrower, 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 operations, 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 Friedman LLP or other 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) 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 and consolidating 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;


 


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(b) as soon as available and in any event within 45 days after the end of each Fiscal Quarter
of the Borrower, an unaudited consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and
consolidating statements of 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;



(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,
specifying the details thereof and the action which the Borrower has taken or proposes to take with
respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with
the financial covenants set forth in Article VI, (iii) 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 Closing Date or as of the most recent Fiscal Year or
Fiscal Quarter, as the case may be, and (iv) certifying that the consolidated financial statements
of the Borrower and its Subsidiaries attached to such Compliance Certificate for the Fiscal Quarter
or Fiscal Year, as the case may be, fairly present in all material respects the financial condition
of the Borrower and its Subsidiaries as at the end of such Fiscal Quarter or Fiscal Year on a
consolidated basis, and the related statements of operations and cash flows of the Borrower and its
Subsidiaries for such Fiscal Quarter or Fiscal Year, in accordance with generally accepted
accounting principles consistently applied (subject, in the case of such quarterly financial
statements, to normal year-end audit adjustments and the absence of footnotes);



(d) concurrently with the delivery of the financial statements referred to in clause (a)
above, a certificate of the accounting firm that reported on such financial statements stating
whether they obtained any knowledge during the course of their examination of such financial
statements of any Default or Event of Default (which certificate may be limited to the extent
required by accounting rules or guidelines);



(e) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all functions of said Commission, or with any
national securities exchange, or distributed by the Borrower to its shareholders generally, as the
case may be; and



(f) concurrently with the delivery of the financial statements referred to in subsection (a)
above, a pro forma budget (including reasonable data and other information with respect to the
underlying assumptions relied upon in the formulation of such pro forma budget) for the succeeding
Fiscal Year, containing an income statement, balance sheet and statement of cash flow;


 


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(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; and



(h) so long as 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.



Section 5.2. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:




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



(b) the filing or commencement of 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 and remain outstanding, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding $750,000;



(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
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.



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. The Borrower will, and will cause each
of its Subsidiaries to, do or cause to be done all things 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.


 


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Section 5.4. Compliance with Laws, Etc. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and requirements of any Governmental
Authority applicable to its business and properties, including without limitation, all
Environmental 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.



Section 5.5. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay and discharge at or before maturity, all of its Material Indebtedness and all
of its Material Non-Indebtedness Obligations 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 and (c) 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. The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which materially 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 Borrower in conformity
with GAAP.



Section 5.7. Visitation, Inspection, Etc.The Borrower will, and will cause each of
its Subsidiaries to, permit, any representative of the Administrative Agent or any 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 with its
independent certified public accountants, all at such reasonable times and as often as the
Administrative Agent or any Lender may reasonably request after reasonable prior notice to the
Borrower; provided, however, that (i) the Borrower shall only be responsible for reimbursing the
Administrative Agent or any Lender the reasonable and documented costs and expenses of the
Administrative Agent or any Lender not more than 2 times during any Fiscal Year and (ii) the
Administrative Agent or any Lender shall not be permitted to examine the Borrower’s or its
Subsidiaries books and records and to make copies and take extracts therefrom more than 1 time per
fiscal quarter of Borrower, provided, further, that, the foregoing limitations regarding expense
reimbursements and quarterly examination rights shall not be applicable if an Event of Default has
occurred and is continuing, nor shall prior notice to the Borrower be required.



Section 5.8. Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Subsidiaries to, (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, 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, and (c) at all times shall name Administrative Agent as additional insured on
all liability policies of the Borrower and its Subsidiaries.


 


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Section 5.9. Use of Proceeds and Letters of Credit. The Borrower will use the
proceeds of (i) all Revolving Loans to finance working capital needs, transaction fees and expenses
arising on the Closing Date with respect to the Loans or the York Capital Recapitalization
Transaction, to fund Permitted Acquisitions, to finance Capital Expenditures and for other general
corporate purposes of the Borrower and its Subsidiaries and (ii) all Term Loans for repayment of a
portion of the York Capital Indebtedness, provided, however, that the Borrower will use the
proceeds of any Additional Commitment Amount (whether a Revolving Loan or a Term Loan) permitted
pursuant to Section 2.23 of this Agreement, including any reborrowing of such amounts as Revolving
Loans, solely to redeem all or any portion of the York Preferred Stock (including any accrued but
unpaid payment-in-kind dividends with respect thereto). No part of the proceeds of any Loan will
be used, 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. All
Letters of Credit will be used for general corporate purposes.



Section 5.10. [Intentionally Omitted].



Section 5.11. Additional Subsidiaries.



(a) If any Domestic Subsidiary is acquired or formed after the Closing Date, the Borrower will
promptly notify the Administrative Agent and the Lenders thereof and, within ten (10) Business Days
after any such Domestic Subsidiary is acquired or formed, will cause such Domestic Subsidiary to
become a Subsidiary Loan Party.



(b) A Domestic Subsidiary shall become an additional Subsidiary Loan Party by executing and
delivering to the Administrative Agent a Subsidiary Guaranty Supplement, accompanied by (i) all
other Loan Documents related thereto, (ii) certified copies of certificates or articles of
incorporation or organization, by-laws, membership operating agreements, and other organizational
documents, appropriate authorizing resolutions of the board of directors of such Domestic
Subsidiaries, and opinions of counsel comparable to those delivered pursuant to Section
3.1(b), and (iii) such other documents as the Administrative Agent may reasonably request. No
Domestic Subsidiary that becomes a Subsidiary Loan Party shall thereafter cease to be a Subsidiary
Loan Party or be entitled to be released or discharged from its obligations under the Subsidiary
Guaranty Agreement.



Section 5.12. Post-Closing Requirements.



(a) Not later than 45 Business Days after the Closing Date (which time period may be extended
in the Administrative Agent’s sole discretion), in the case of any personal property Collateral
located at the premises leased by Borrower or any Guarantor more specifically set forth in
Schedule 3.1(b)(xxii), Borrower shall use its reasonable efforts to procure such estoppel
letters, consents and waivers from the landlords on such real property as may be reasonably
required by the Administrative Agent, and approval of the leases of such premises by the
Administrative Agent.


 


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(b) Not later than 180 days after the Closing Date (which time period may be extended in the
Administrative Agent’s sole discretion), Borrower shall deliver to the
Administrative Agent all original certificates and instruments representing or evidencing the
Pledged Shares of the following Subsidiaries, which certificates and instruments shall be in
suitable form for transfer by delivery and shall be accompanied by all necessary instruments of
transfer or assignment, duly executed in blank: EasyLink Services Corporation India Private
Limited, EasyLink Services Corp. PTE Ltd. (Singapore), EasyLink Services Corp. SDN BHD (Malaysia)
and EasyLink Services (UK) Limited, in each case with respect to the foregoing certificates and
instruments, in form and substance as determined by the Administrative Agent in its reasonable
discretion. In addition, if requested by the Administrative Agent, Borrower shall execute an
amendment to the Stock Pledge Agreement to reflect the inclusion of the foregoing Pledged Shares
thereunder.



(c) Not later than 45 Business Days after the Closing Date (which time period may be extended
in the Administrative Agent’s sole discretion), in the case of any personal property Collateral
subject to a service agreement between Borrower or any Guarantor and any of the following service
providers, Borrower shall use its reasonable efforts to procure such estoppel letters, consents and
waivers from such service providers as may be reasonably required by the Administrative Agent, and
approval of the service agreements by the Administrative Agent: Quality Technology Services (300
Satellite Boulevard NW, Suwanee, Georgia 30024), Blue Mile (226 North Fifth Street, 3rd
Floor, Columbus, Ohio 43215) and Comsat/Telenor (Telex) (Connecticut).



ARTICLE VI




FINANCIAL COVENANTS




The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or any
Obligation (other than in respect of indemnity obligations that survive termination of this
Agreement and in respect of Letters of Credit for which cash collateral has been provided) remains
unpaid or outstanding:



Section 6.1. Leverage Ratio. The Borrower will maintain at all times a Leverage Ratio
of not greater than:



	 	 	 
	Fiscal Quarter	 	Leverage Ratio
	Each Fiscal Quarter ending on or
prior to April 30, 2010

	 	2.25:1.00
	 
	 	 
	Each Fiscal Quarter ending after
April 30, 2010

	 	1.50:1.00






Section 6.2. Fixed Charge Coverage Ratio. The Borrower will maintain, as of the end
of each Fiscal Quarter, commencing with the Fiscal Quarter ending October 31, 2009, a Fixed Charge
Coverage Ratio of not less than:



	 	 	 
	Fiscal Quarter	 	Fixed Charge Coverage Ratio
	Each Fiscal Quarter ending on or
prior to January 31, 2010

	 	1.20:1.00
	 
	 	 
	Each Fiscal Quarter ending after
January 31, 2010

	 	1.25:1.00





 


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Section 6.3. Minimum Consolidated Adjusted EBITDA. The Borrower will maintain, as of
the last day of each Fiscal Quarter, Consolidated Adjusted EBITDA for the four Fiscal Quarters then
ended of not less than $17,000,000.



Section 6.4. Minimum Liquidity. The Borrower will maintain, as of the last day of
each Fiscal Quarter, a Minimum Liquidity of not less than $5,000,000.



Section 6.5. Capital Expenditures. The Borrower and its Subsidiaries will not make
Capital Expenditures in excess of $2,500,000 during any Fiscal Year, provided, that, to the extent
that Capital Expenditures in any Fiscal Year are less than $2,500,000, the Borrower may increase
the amount of Capital Expenditures in the immediately succeeding Fiscal Year (but solely in such
immediately succeeding Fiscal Year), by an amount equal to the difference between actual Capital
Expenditures and $2,500,000.



ARTICLE VII




NEGATIVE COVENANTS




The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or any
Obligation (other than in respect of indemnity obligations that survive termination of this
Agreement and in respect of Letters of Credit for which cash collateral has been provided) remains
outstanding:



Section 7.1. Indebtedness and Preferred Equity. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
except:




(a) Indebtedness created pursuant to the Loan Documents;



(b) Indebtedness of the Borrower and its Subsidiaries existing on the date hereof and set
forth on Schedule 7.1 and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof (immediately prior to giving effect
to such extension, renewal or replacement) or shorten the maturity or the weighted average life
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,
and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a
Lien on any such assets prior to the acquisition thereof; provided, that such Indebtedness is
incurred prior to or within 90 days after such acquisition or the completion of such construction
or improvements or extensions, renewals, and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof (immediately prior to
giving effect to such extension, renewal or replacement) or shorten the maturity or the
weighted average life thereof; provided further, that the aggregate principal amount of such
Indebtedness does not exceed $500,000 at any time outstanding;


 


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(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 Subsidiary 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 Subsidiary Loan Party shall be subject to
Section 7.4;



(f) Indebtedness of any Person which becomes a Subsidiary after the date of this Agreement;
provided, that such Indebtedness exists at the time that such Person becomes a Subsidiary
and is not created in contemplation of or in connection with such Person becoming a Subsidiary and
(ii) the aggregate principal amount of such Indebtedness permitted hereunder shall not exceed
$500,000 outstanding at any time;




(g) Hedging Obligations permitted by Section 7.10; and



(h) other unsecured Indebtedness of the Borrower or its Subsidiaries in an aggregate principal
amount not to exceed $500,000 at any time outstanding; provided, that the aggregate
principal amount of Indebtedness of all Subsidiaries permitted by this clause (h) shall not exceed
$500,000.



Borrower will not, and will not permit any Subsidiary to, issue any preferred stock or other
preferred equity interests that (i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is or may become redeemable or repurchaseable by Borrower or such
Subsidiary at the option of the holder thereof, in whole or in part or (iii) is convertible or
exchangeable at the option of the holder thereof for Indebtedness or preferred stock or any other
preferred equity interests described in this paragraph, on or prior to, in the case of clause (i),
(ii) or (iii), the first anniversary of the Revolving Commitment Termination Date.



Section 7.2. Negative Pledge. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien on any of its assets or property
now owned or hereafter acquired or, except:



(a) Liens securing the Obligations, provided, however, that no Liens may
secure Hedging Obligations without securing all other Obligations on a basis at least pari passu
with such Hedging Obligations and subject to the priority of payments set forth in Section
2.21of this Agreement;




(b) Permitted Encumbrances;



(c) any Liens on any property or asset of the Borrower or any Subsidiary existing on the
Closing Date 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;


 


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(d) 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 secures Indebtedness permitted by Section
7.1(c), (ii) such Lien attaches to such asset concurrently or within 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;



(e) any Lien (i) existing on any asset of any Person at the time such Person becomes a
Subsidiary of the Borrower, (ii) existing on any asset of any Person at the time such Person is
merged with or into the Borrower or any Subsidiary of the Borrower or (iii) existing on any asset
prior to the acquisition thereof by the Borrower or any Subsidiary of the Borrower;
provided, that any such Lien was not created in the contemplation of any of the foregoing
and any such Lien secures only those obligations which it secures on the date that such Person
becomes a Subsidiary or the date of such merger or the date of such acquisition; and



(f) extensions, renewals, or replacements of any Lien referred to in paragraphs (a) through
(d) 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.



Section 7.3. Fundamental Changes.



(a) The Borrower will not, and will not permit any Subsidiary to, 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 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 Default or Event of Default shall have occurred and be
continuing (i) the Borrower or any Subsidiary may merge with a Person 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 Subsidiary Loan Party, the Subsidiary Loan Party shall be the surviving Person, (iii) any
Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets
to the Borrower or to a Subsidiary Loan Party, (iv) any Subsidiary (other than a Subsidiary Loan
Party) 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 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 and (v) the foregoing shall not prohibit the incurrence of any Liens otherwise
permitted under this Agreement.


 


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(b) The Borrower will not, and will not permit any of its Subsidiaries to, 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. The Borrower will not, and will not permit any
of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly-owned Subsidiary prior to such merger), any common stock, evidence of
indebtedness or other securities (including any option, warrant, or other right to acquire any of
the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of,
or make or permit to exist any investment or any other interest in, any other Person (all of the
foregoing being collectively called “Investments”), or purchase or otherwise acquire (in
one transaction or a series of transactions) any assets of any other Person that constitute a
business unit, or create or form any Subsidiary, except:



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




(b) Permitted Investments;



(c) Guarantees by Borrower and its Subsidiaries constituting Indebtedness permitted by
Section 7.1; provided, that the aggregate principal amount of Indebtedness of
Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Loan Party shall be
subject to the limitation set forth in clause (d) hereof;



(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 (i) the aggregate amount of cash
Investments by Loan Parties in or to, and Guarantees by Loan Parties of Indebtedness of any
Subsidiary that is not a Subsidiary Loan Party (including all such Investments and Guarantees
existing on the Closing Date and not disclosed on Schedule 7.4) shall not exceed $500,000
in the aggregate at any time outstanding and (ii) the aggregate amount of Investments by Loan
Parties (specifically excluding Guarantees) in or to any Subsidiary that is not a Subsidiary Loan
Party comprised of non-cash Investments comprised of intercompany expense allocations by and
between the Borrower and its Subsidiaries shall be unlimited;



(e) loans or advances to employees, officers or directors of the Borrower or any Subsidiary in
the ordinary course of business for travel, relocation and related expenses; provided, however,
that the aggregate amount of all such loans and advances does not exceed $100,000 at any time;




(f) Hedging Transactions permitted by Section 7.10;




(g) Permitted Acquisitions;



(h) Investments consisting of the extension of trade credit in the ordinary course of
business;



(i) Prepaid expenses in the ordinary course of business;


 


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(j) Promissory notes and other assets accepted in connection with the settlement of accounts
receivable; and




(k) Other Investments which in the aggregate do not exceed $500,000 in any Fiscal Year



Section 7.5. Restricted Payments. The Borrower will not, and will not permit its
Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any dividend or
distribution on any class of its Capital Stock, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption, retirement, defeasance
or other acquisition of, any shares of Capital Stock or Indebtedness subordinated to the
Obligations of the Borrower or any Guarantee thereof or any options, warrants, or other rights to
purchase such Capital Stock or such Indebtedness (specifically including any payment or
reimbursement obligation in connection with any purchase or buy-in right with respect thereto),
whether now or hereafter outstanding (each, a “Restricted Payment”), except for (i)
dividends payable by the Borrower solely in shares of any class of its common stock, (ii)
Restricted Payments made by any Subsidiary to the Borrower or to another Subsidiary, on at least a
pro rata basis with any other shareholders if such Subsidiary is not wholly owned by the Borrower
and other wholly owned Subsidiaries, (iii) non-cash, payment-in-kind annual dividends paid on the
York Preferred Stock, in an amount not to exceed 10% of the liquidation preference of any such York
Preferred Stock for the first such annual dividend, with such 10% limitation to increase by an
additional 2% for each succeeding annual dividend, but in no event to exceed a maximum of 16% of
the liquidation preference of any such York Preferred Stock, (iv) cash dividends and distributions
paid on the Series C Preferred Stock of the Borrower, in an amount not to exceed $250,000 (in the
aggregate) during any Fiscal Year, (v) other redemptions of Capital Stock, warrants, options or
similar equity interests of the Borrower owned by officers, directors, employees or advisors of the
Borrower or any of its Subsidiaries in an amount not to exceed $500,000 in any Fiscal Year and (vi)
redemptions of the York Preferred Stock (including any accrued but unpaid payment-in-kind dividends
with respect thereto) to the extent financed solely with the proceeds of any Additional Commitment
Amount (whether a Revolving Loan or a Term Loan) permitted pursuant to Section 2.23 of this
Agreement, including any reborrowing of such amounts as Revolving Loans, provided, for the purpose
of clauses (iv), (v) and (vi), that no Default or Event of Default has occurred and is continuing
at the time such dividend or distribution is paid or at the time such redemption is made (as the
case may be). Nothing in this Section 7.5 shall be construed as prohibiting the entering into by
the Borrower of the York Warrants, provided, that the payment of any amounts owing by the
Borrower in respect of any payment or reimbursement obligation in connection with any purchase or
buy-in right with respect to the York Warrants shall be prohibited by, and subject to, this
Section 7.5.


 


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Section 7.6. Sale of Assets. The Borrower will not, and will not permit any of its
Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of, any of its assets,
business or property, whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary’s Capital Stock to any Person other than the Borrower
(or to qualify directors if required by applicable law), except:



(a) the sale or other disposition for fair market value of obsolete or worn out property or
other property not necessary for operations disposed of in the ordinary course of business;




(b) the sale of inventory and Permitted Investments in the ordinary course of business;



(c) the sale or other disposition of such assets in an aggregate amount not to exceed $500,000
in any Fiscal Year; and




(d) the granting of any Lien otherwise permitted under this Agreement.



Section 7.7. Transactions with Affiliates. The Borrower will not, and will not permit
any of its Subsidiaries to, 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 Borrower and any Subsidiary Loan Party not involving any other Affiliates and (c) any
Restricted Payment permitted by Section 7.5.



Section 7.8. Restrictive Agreements. The Borrower will not, and will not permit any
Subsidiary to, directly or indirectly, 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 permitted by this Agreement if
such restrictions and conditions apply only to the property or assets securing such Indebtedness
and (iv) clause (a) shall not apply to customary provisions in leases restricting the assignment
thereof.



Section 7.9. Sale and Leaseback Transactions. The Borrower will not, and will not
permit any of the Subsidiaries to, 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.


 


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Section 7.10. Hedging Transactions. The Borrower will not, and will not permit any of
the Subsidiaries to, 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. Solely for the avoidance of doubt, the Borrower acknowledges that a Hedging
Transaction entered into for speculative purposes or of a speculative nature (which shall be deemed
to include any Hedging Transaction under which the Borrower or any of the Subsidiaries is or may
become obliged to make any payment (i) in connection with the purchase by any third party of any
Capital Stock or any Indebtedness or (ii) as a result of changes in the market value of any Capital
Stock or any Indebtedness) is not a Hedging Transaction entered into in the ordinary course of
business to hedge or mitigate risks.



Section 7.11. Amendment to Material Documents. The Borrower will not, and will not
permit any of its Subsidiaries to, amend, modify or waive any of its rights in a manner materially
adverse to the Lenders or the Borrower under (a) its certificate of incorporation, bylaws or other
organizational documents or (b) the York Capital Recapitalization Transaction Documents.



Section 7.12. [Intentionally Omitted].



Section 7.13. Accounting Changes. The Borrower will not, and will not permit any of
its Subsidiaries to, 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. Lease Obligations. The Borrower will not, and will not permit any
Subsidiary to, create or suffer to exist any obligations for the payment under operating leases or
agreements to lease (but excluding any obligations under leases required to be classified as
capital leases under GAAP having a term of five years or more) which would cause the present value
of the direct or contingent liabilities of the Consolidated Companies under such leases or
agreements to lease, on a consolidated basis, to exceed $5,000,000 in the aggregate in any Fiscal
Year.



Section 7.15. Government Regulation. The Borrower shall not (a) be or become subject
at any time to any law, regulation, or list of any Government Authority of the United States
(including, without limitation, the U.S. Office of Foreign Asset Control list) that prohibits or
limits Lenders or the Administrative Agent from making any advance or extension of credit to
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 Lenders
or the Administrative Agent at any time to enable 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 USA Patriot Act of 1 U.S.C. Section 5318.


 


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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) the Borrower 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) the Borrower 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) 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 when made or
deemed made or submitted; or



(d) the Borrower shall fail to observe or perform any covenant or agreement contained in
Sections 5.1, 5.2, or 5.3 (with respect to the Borrower’s existence) 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, and such failure shall remain unremedied for 30 days after the earlier of (i) any officer
of the Borrower becomes aware of such failure, or (ii) notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender; or



(f) (i) 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 Indebtedness; or any other event shall occur or condition shall exist under any
agreement or instrument relating to such 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 Indebtedness; or any such
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 Indebtedness shall be required to be made, in each case prior to the stated maturity thereof, or (ii) the Borrower or any Subsidiary



 


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 (whether as primary obligor or as guarantor or other surety)
shall fail to pay any principal of, or premium or interest on, any Material Non-Indebtedness
Obligation that is outstanding, when and as the same shall become due and payable (whether at a
scheduled due date, required prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement evidencing or
governing such Material Non-Indebtedness Obligation; or any other event shall occur or condition
shall exist under any agreement relating to such Material Non-Indebtedness Obligation and shall
continue after the applicable grace period, if any, specified in such agreement, if the effect of
such event or condition is to accelerate, or permit the acceleration of, the due date of such
Material Non-Indebtedness Obligation; or any such Material Non-Indebtedness Obligation 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 Non-Indebtedness Obligation shall be required to be made,
in each case prior to the stated due date thereof; or



(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 (i) 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 60 days or an order or decree approving or
ordering any of the foregoing shall be entered; or



(i) the Borrower, any other Loan Party or EasyLink Services International Ltd. 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 and remain outstanding, could reasonably
be expected to result in liability to the Borrower and the Subsidiaries in an aggregate amount
exceeding $500,000; or


 


74









 





(k) any judgment or order for the payment of money in excess of $1,000,000 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 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 could reasonably be expected to have a Material Adverse Effect, and there shall be
a period of 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;



(n) any provision of any Subsidiary Guaranty Agreement shall for any reason cease to be valid
and binding on, or enforceable against, any Subsidiary Loan Party, or any Subsidiary Loan Party
shall so state in writing, or any Subsidiary Loan Party shall seek to terminate its Subsidiary
Guaranty Agreement; or



(o) any Loan Document shall fail to be in full force and effect or to give the Administrative
Agent and/or the Lender the Liens, rights, powers and privileges purported to be created thereby,
or any Loan Party shall so state in writing;



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, 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.


 


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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 shall apply to any such sub-agent or
attorney-in-fact and the Related Parties of the Administrative Agent, any such sub-agent and any
such attorney-in-fact and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities as Administrative
Agent.



(b) The Issuing Bank 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 the Issuing Bank
with respect thereto; provided, that the Issuing Bank shall have all the benefits and immunities
(i) provided to the Administrative Agent in this Article with respect to any acts taken or
omissions suffered by the 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
included the Issuing Bank with respect to such acts or omissions and (ii) as additionally provided
in this Agreement with respect to the Issuing Bank.



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 10.2), 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 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 10.2) 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.


 


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Section 9.3. Lack of Reliance on the Administrative Agent. Each of the Lenders and
the Issuing Bank 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 and the Issuing Bank 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 of 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.



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”, “holders of Notes”, 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.


 


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Section 9.7. Successor Administrative Agent.



(a) The Administrative Agent may resign at any time by giving 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 the 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 30 days after the retiring
Administrative Agent gives notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent, which shall
be a commercial bank organized under the laws of the United States of America or any state thereof
or a bank which maintains an office in the United States, having a combined capital and surplus of
at least $500,000,000.



(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 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 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, the Issuing Bank may, upon prior written notice to the Borrower and the
Administrative Agent, resign as Issuing Bank effective at the close of business New York time on a
date specified in such notice (which date may not be less than five Business Days after the date of
such notice); provided that such resignation by the Issuing Bank will have no effect on the
validity or enforceability of any Letter of Credit then outstanding or on the obligations of the
Borrower or any Lender under this Agreement with respect to any such outstanding Letter of Credit
or otherwise to the Issuing Bank.


 


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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 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, 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, Issuing Bank and the Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders, Issuing Bank and the Administrative Agent and its agents and counsel and all
other amounts due the Lenders, Issuing Bank 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; and



(b) Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Lender and the 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 Bank, 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 10.3.



Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the 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.


 


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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 other
than this Agreement.



Section 9.11 Syndication Agent. Each Lender hereby designates The Private Bank and
Trust Company as Syndication Agent and agrees that the Syndication Agent shall have no duties or
obligations under any Loan Documents to any Lender or any Loan Party. In addition, each Lender
hereby acknowledges and agrees that any and all title designations, both on the Closing Date and at
all times thereafter, shall be in the Administrative Agent’s sole discretion.



ARTICLE X




MISCELLANEOUS




Section 10.1. Notices.




(a) Written Notices.




(i) 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 the Borrower:

	 	EasyLink Services International Corporation

6025 The Corners Parkway, Suite 100

Norcross, Georgia 30092

Attention: Mr. Glen Shipley, Chief Financial Officer

Telecopy Number: 678-805-4800
	 
	 	 
	With a copy to:

	 	Troutman Sanders, LLP

600 Peachtree Street, N.E.

Suite 5200

Atlanta, Georgia 30308

Attention: Larry W. Shackelford, Esq.

Telecopy Number: (404) 962-6548
	 
	 	 
	To the Administrative Agent:

	 	SunTrust Bank

303 Peachtree Street, N. E.

24th Floor, MC 3956

Atlanta, Georgia 30308

Attention: Keith Roberts, Director

Telecopy Number: 404-230-5528






 


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	With a copy to:

	 	SunTrust Bank

Agency Services

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

Atlanta, Georgia 30308

Attention: Mr. Doug Weltz

Telecopy Number: (404) 221-2001

	 
	 	 
	 

	 	and
	 
	 	 
	 

	 	SunTrust Bank

25 Park Place, 23rd Floor

Atlanta, Georgia 30303

Attn: Ms. Sherry Harris, Senior Vice President

Telecopy Number: (404) 532-0417
	 
	 	 
	 

	 	and
	 
	 	 
	 

	 	Arnall Golden Gregory LLP

171 17th Street, Suite 2100

Atlanta, Georgia 30363

Attention: Ronald A. Weiner, Esq.

Telecopy Number: (404) 873-8193
	 
	 	 
	To the Issuing Bank:

	 	SunTrust Bank

25 Park Place, N. E./Mail Code 3706

16th Floor

Atlanta, Georgia 30303

Attention: Standby Letter of Credit Dept.

Telecopy Number: (404) 588-8129
	 
	 	 
	To any other Lender:

	 	the address set forth in the Administrative
Questionnaire or the Assignment and Acceptance Agreement 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, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or transmitted in legible
form by facsimile machine, respectively; provided, that notices delivered to the
Administrative Agent or the Issuing Bank shall not be effective until actually received
by such Person at its address specified in this Section 10.1.


 


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(ii) Any agreement of the Administrative Agent, the Issuing Bank 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 Bank 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 Bank 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 Bank 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 Bank and the Lenders to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Administrative Agent, the Issuing Bank and the Lenders of a
confirmation which is at variance with the terms understood by the Administrative Agent, the
Issuing Bank 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 Bank hereunder may
be delivered or furnished by electronic communication (including e-mail and Internet or
intranet websites) pursuant to procedures approved by Administrative Agent, provided
that the foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant to
Article 2 unless such Lender, the 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.



Section 10.2. Waiver; Amendments.



(a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or any other Loan Document, and no course of dealing
between the Borrower 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 Bank and the



 


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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 the Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section 10.2, 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 the 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, 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 no amendment or waiver shall: (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 10.2 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 all or substantially all of the
guarantors or limit the liability of all or substantially all of the guarantors under any guaranty
agreement, without the written consent of each Lender; (vii) release all or substantially all
collateral (if any) securing any of the Obligations or agree to subordinate any Lien in such
collateral to any other creditor of the Borrower or any Subsidiary, without the written consent of
each Lender; provided further, that no such agreement shall amend, modify or otherwise
affect the rights, duties or obligations of the Administrative Agent or the Issuing Bank without
the prior written consent of such Person. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or extended without the
consent of such Lender. Notwithstanding anything contained herein to the contrary, 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 10.3), 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.


 


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Section 10.3. Expenses; Indemnification.



(a) The Borrower shall pay (i) all reasonable and documented out-of-pocket costs and expenses
of the Administrative Agent and its Affiliates, including the reasonable and documented fees,
charges and disbursements of counsel for the Administrative Agent and its Affiliates, 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 the Issuing
Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket costs and
expenses (including, without limitation, the reasonable and documented fees, charges and
disbursements of outside counsel and the allocated cost of inside counsel) actually incurred by the
Administrative Agent, the Issuing Bank or any Lender in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights under this
Section 10.3, 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.



(b) The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each
Lender and the Issuing Bank, and each Related Party of any of the foregoing Persons (each such
Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses (including the reasonable and
documented fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify
and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys
who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence
or Release of Hazardous Materials on or from any property owned or operated by the Borrower or any
of its Subsidiaries, or any 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 or related
expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to
have resulted from (x) the gross negligence or willful misconduct of such Indemnitee or (y) a claim
brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of
such Indemnitee’s obligations hereunder or under any other Loan Document. No Indemnitee shall be
liable for any
damages arising from the use by others of any information or other materials obtained through
Syntrak or any other Internet or intranet website, except as a result of such Indemnitee’s gross
negligence or willful misconduct as determined by a court of competent jurisdiction in a final and
nonappealable judgment.


 


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(c) The Borrower shall pay, and hold the Administrative Agent, the Issuing Bank and each of
the Lenders harmless from and against, any and all present and future stamp, documentary, and other
similar taxes with respect to this Agreement and any other Loan Documents, any Collateral described
therein, or any payments due thereunder, and save the Administrative Agent, the Issuing Bank and
each Lender harmless from and against any and all liabilities with respect to or resulting from any
delay or omission to pay such taxes.



(d) To the extent that the Borrower fails to pay any amount required to be paid to the
Administrative Agent or the Issuing Bank under clauses (a), (b) or (c) hereof, each Lender
severally agrees to pay to the Administrative Agent or the Issuing Bank, 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 or the Issuing Bank in its capacity as such.



(e) 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.



(f) All amounts due under this Section 10.3 shall be payable promptly after written
demand therefor.



Section 10.4. Successors and Assigns.



(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 paragraph (b) of this Section, (ii) by way of participation in
accordance with the provisions of paragraph (d) of this Section or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of paragraph (f) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in paragraph (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


 


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(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 paragraph (b)(i)(A) of this Section, 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,
unless each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consents (each such consent not
to be unreasonably withheld or delayed).




(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 paragraph (b)(i)(B) of this Section and, in addition:




(A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (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 consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments to a Person that
is not a Lender with a Commitment; and




(C) the consent of the Issuing Bank (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).


 


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(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 Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




(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 paragraph (c)
of this Section 10.4, 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
10.3 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 paragraph shall be treated for purposes of this Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance with paragraph (d)
of this Section 10.4. 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 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 amount of the Loans and Revolving Credit Exposure owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”). Information
contained in the Register with respect to any Lender shall be available for inspection by such
Lender at any reasonable time and from time to time upon reasonable prior notice; information
contained in the Register shall also be available for inspection by the Borrower at any reasonable
time and from time to time upon reasonable prior notice. In establishing and maintaining the
Register, Administrative Agent shall serve as Company’s agent solely for tax purposes and solely
with respect to the actions described in this Section, and the Borrower hereby agrees that,
to the extent SunTrust Bank serves in such capacity, SunTrust Bank and its officers, directors,
employees, agents, sub-agents and affiliates shall constitute “Indemnitees.”


 


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(d) Any Lender may at any time, without the consent of, or notice to, the Borrower, the
Administrative Agent or the Issuing Bank sell participations to any Person (other than a natural
person, the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its 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 and the Issuing Bank
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement.



(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 10.4 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 agreement without the written consent of each Lender except to the extent such
release is expressly provided under the terms of such guaranty agreement; or (vii) release all or
substantially all collateral (if any) securing any of the Obligations. Subject to paragraph (e) of
this Section 10.4, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.18, 2.19, and 2.20 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section
10.4. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 10.7 as though it were a Lender, provided such Participant agrees to be subject
to Section 2.21 as though it were a Lender.



(f) A Participant shall not be entitled to receive any greater payment under Section
2.18 and Section 2.20 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.20
unless the Borrower is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.20(e) as though it were a
Lender.


 


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(g) 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 10.5. Governing Law; Jurisdiction; Consent to Service of Process.



(a) This Agreement and the other Loan Documents shall be construed in accordance with and be
governed by the law (without giving effect to the conflict of law principles thereof of the State
of Georgia.



(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the exclusive jurisdiction of the United States District Court of the Northern District of
Georgia, and the Business Case Division of the Fulton County Superior Court located in Atlanta,
Georgia, and of the Business Case Division of the Fulton County Superior Court located in Atlanta,
Georgia 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 Fulton County Superior 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 any party hereto may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against any other party hereto or
its properties in the courts of any jurisdiction.



(c) The Borrower irrevocably and unconditionally waives any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding described in paragraph
(b) of this Section 10.5 and brought in any court referred to in paragraph (b) of this
Section 10.5. 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 10.1. 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 10.6. 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.


 


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Section 10.7. 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 the 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 the Issuing Bank to or for
the credit or the account of the Borrower against any and all Obligations held by such Lender or
the Issuing Bank, as the case may be, irrespective of whether such Lender or the Issuing Bank shall
have made demand hereunder and although such Obligations may be unmatured. Each Lender and the
Issuing Bank agree promptly to notify the Administrative Agent and the Borrower after any such
set-off and any application made by such Lender and the 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 Lender and the Issuing Bank 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 Issuing Bank.



Section 10.8. 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 to this Agreement or
any other Loan Document by facsimile transmission or by electronic mail in pdf form shall be as
effective as delivery of a manually executed counterpart hereof.



Section 10.9. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein 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, the Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and



 


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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 10.3 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 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 10.10. 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.



Section 10.11. Confidentiality. Each of the Administrative Agent, the Issuing Bank
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,
the 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, the 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 10.11, or which becomes available to the Administrative Agent, the 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, (vii) subject to an agreement
containing provisions substantially the same as those of this Section 10.11, 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, (viii) any
rating agency, (ix) the CUSIP Service Bureau or any similar organization, or (x) with the consent
of the Borrower. Any Person required to maintain the confidentiality of any information as
provided for in this Section 10.11 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.


 


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Section 10.12. 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 10.12 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 10.13. Waiver of Effect of Corporate Seal. The Borrower represents and
warrants 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 requirement of law or regulation, 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 10.14. Patriot Act. The Administrative Agent and each Lender hereby notifies
the Loan Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (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.



(remainder of page left intentionally blank)





 


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



	 	 	 	 	 
	 	EASYLINK SERVICES INTERNATIONAL CORPORATION

 	 
	 	By:  	/s/ Glen E. Shipley
 	 
	 	 	Name:  	Glen E. Shipley 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	[SEAL]


SUNTRUST BANK

as Administrative Agent, as Issuing Bank and as a
Lender

 	 
	 	By:  	/s/ Sherry D. Harris
 	 
	 	 	Name:  	Sherry D. Harris 	 
	 	 	Title:  	Senior Vice President 	 
	 



 


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	 	FIFTH THIRD BANK, N.A.

 	 
	 	By:  	/s/ Herman Manderson
 	 
	 	 	Name:  	Herman Manderson 	 
	 	 	Title:  	Vice President 	 
	 



 


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	 	ATLANTIC CAPITAL BANK

 	 
	 	By:  	/s/ H. Glenn Little
 	 
	 	 	Name:  	H. Glenn Little 	 
	 	 	Title:  	Senior Vice President 	 
	 



 


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	 	THE PRIVATE BANK AND TRUST COMPANY

 	 
	 	By:  	/s/ Zennie W. Lynch Jr.
 	 
	 	 	Name:  	Zennie W. Lynch Jr. 	 
	 	 	Title:  	Associate Managing Director 	 
	 




 


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