AMENDED AND RESTATED SECOND LIEN CREDIT AGREEMENT

Exhibit 10.35

$25,000,000

AMENDED AND RESTATED SECOND LIEN CREDIT AGREEMENT

Dated as of March 12, 2009

among

MEDICAL STAFFING NETWORK, INC., AS BORROWER

MEDICAL STAFFING HOLDINGS, LLC AND

MEDICAL STAFFING NETWORK HOLDINGS, INC.

AS CERTAIN OF THE GUARANTORS

THE LENDERS PARTY HERETO

and

GENERAL ELECTRIC CAPITAL CORPORATION,

AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

¿    ¿    ¿

GE CAPITAL MARKETS, INC.,

AS SOLE LEAD ARRANGER AND SOLE BOOKRUNNER

 

AMENDED AND RESTATED SECOND LIEN CREDIT AGREEMENT

MEDICAL STAFFING NETWORK, INC.

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AMENDED AND RESTATED SECOND LIEN CREDIT AGREEMENT

THIS AMENDED AND RESTATED SECOND LIEN CREDIT AGREEMENT (THIS “ AGREEMENT ”) IS MADE AS OF THIS 12 ^TH DAY OF MARCH, 2009 BY AND AMONG MEDICAL STAFFING NETWORK, INC., A DELAWARE CORPORATION (THE “ BORROWER ”), MEDICAL STAFFING HOLDINGS, LLC, A DELAWARE LIMITED LIABILITY COMPANY (“ MSH ”), AND MEDICAL STAFFING NETWORK HOLDINGS, INC., A DELAWARE CORPORATION (“ MSNH ”, EACH A “ HOLDINGS ENTITY ” AND COLLECTIVELY, “ HOLDINGS ”), THE LENDERS (AS DEFINED BELOW) AND GENERAL ELECTRIC CAPITAL CORPORATION (“ GE CAPITAL ”), AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT FOR THE LENDERS (IN SUCH CAPACITY, AND TOGETHER WITH ITS SUCCESSORS AND PERMITTED ASSIGNS, THE “ ADMINISTRATIVE AGENT ”).

W I T N E S S E T H:

WHEREAS, the Borrower, Holdings, Lenders and Administrative Agent are all parties to that certain Second Lien Credit Agreement dated as of July 2, 2007 (as amended, supplemented, restated or otherwise modified from time to time prior to the date hereof, the “ Existing Credit Agreement ”); and

WHEREAS, the Borrower has requested that the Administrative Agent and Required Lenders consent to certain amendments to the Existing Credit Agreement, as more fully set forth in this Amended and Restated Second Lien Credit Agreement; and

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, the parties hereby agree as follows:

ARTICLE I

DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS

Section 1.1 Defined Terms . As used in this Agreement, the following terms have the following meanings:

“ Acquired Company ” means InteliStaf Holdings, Inc., a Delaware corporation.

“ Acquisition Agreement ” means that certain Agreement and Plan of Merger dated as of May 11, 2007 by and among Borrower, MSNH, the Merger Sub, the Acquired Company and TC Group, L.L.C.

“ Additional PIK Interest ” has the meaning specified in Section 2.9(b)(viii) .

“ Affected Lender ” has the meaning specified in Section 2.18 .

“ Affiliate ” means, with respect to any Person, each officer, director, general partner or joint-venturer of such Person and any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person; provided , however , that no Secured Party shall be an Affiliate of the Borrower. For purpose of this definition, “ control ” means the possession of either (a) the power to vote, or the beneficial ownership of, 10% or more of the Voting Stock of such Person or (b) the power to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.

 

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“ Agreement ” means the Existing Second Lien Credit Agreement, as amended and restated by this Amended and Restated Second Lien Credit Agreement.

“ Applicable Margin ” means 9.00% for Loans constituting Eurodollar Rate Loans and 8.00% for Loans constituting Base Rate Loans.

“ Approved Fund ” means, with respect to any Lender, any Person (other than a natural Person) that (a) 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 (b) is advised or managed by (i) such Lender, (ii) any Affiliate of such Lender or (iii) any Person (other than an individual) or any Affiliate of any Person (other than an individual) that administers or manages such Lender.

“ Assignment ” means an assignment agreement entered into by a Lender, as assignor, and any Person, as assignee, pursuant to the terms and provisions of Section 11.2 (with the consent of any party whose consent is required by Section 11.2 ), in substantially the form of Exhibit A , or any other form approved by the Administrative Agent.

“ Assignment of Representations ” means that certain Assignment of Representations, Warranties, Covenants and Indemnities, dated as of the Initial Closing Date, executed by the Borrower, MSNH and Merger Sub in favor of the Administrative Agent, and consented to by the Acquired Company, in connection with the Acquisition Agreement.

“ Base Rate ” means, at any time, a rate per annum equal to the higher of (a) the rate last quoted by The Wall Street Journal as the latest “US Prime Rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent), (b) the sum of 3.00% per annum and the Federal Funds Rate, (c) the sum of (x) the Eurodollar Rate for an Interest Period of three months as it appears on Reuters Screen LIBOR01 Page as of 11:00 A.M. (London, England time) two (2) Business Days prior to such day, plus (y) 1.00% and (d) 3.50%. Any change in the Base Rate due to a change in the prime rate, the Federal Funds Rate or the Eurodollar Rate for an Interest Period of three months, shall be effective as of the opening of business on the effective day of such change.

“ Base Rate Loan ” means any Loan that bears interest based on the Base Rate.

“ Benefit Plan ” means any employee benefit plan as defined in Section 3(3) of ERISA (whether governed by the laws of the United States or otherwise) to which any Group Member incurs or otherwise has any obligation or liability, contingent or otherwise.

“ Borrowing ” means a borrowing consisting of Term Loans made on the Initial Closing Date by the Lenders according to their respective Commitments.

 

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“ Business Day ” means any day of the year that is not a Saturday, Sunday or a day on which banks are required or authorized to close in New York City and, when determined in connection with notices and determinations in respect of any Eurodollar Rate or Eurodollar Rate Loan or any funding, conversion, continuation, Interest Period or payment of any Eurodollar Rate Loan, that is also a day on which dealings in Dollar deposits are carried on in the London interbank market.

“ Capital Expenditures ” means, for any Person for any period, the aggregate of all expenditures, including, without limitation, capitalized software costs, whether or not made through the incurrence of Indebtedness, by such Person and its Subsidiaries during such period for the acquisition, leasing (pursuant to a Capital Lease), construction, replacement, repair, substitution or improvement of fixed or capital assets or additions to equipment, in each case required to be capitalized under GAAP on a Consolidated balance sheet of such Person, excluding interest capitalized during construction.

“ Capital Lease ” means, with respect to any Person, any lease of, or other arrangement conveying the right to use, any property (whether real, personal or mixed) by such Person as lessee that has been or should be accounted for as a capital lease on a balance sheet of such Person prepared in accordance with GAAP.

“ Capitalized Lease Obligations ” means, at any time, with respect to any Capital Lease, any lease entered into as part of any Sale and Leaseback Transaction of any Person or any synthetic lease, the amount of all obligations of such Person that is (or that would be, if such synthetic lease or other lease were accounted for as a Capital Lease) capitalized on a balance sheet of such Person prepared in accordance with GAAP.

“ Cash Collateral Account ” means a deposit account or securities account in the name of the Borrower and under the sole control (as defined in the applicable UCC) of the Administrative Agent and (a) in the case of a deposit account, from which the Borrower may not make withdrawals except as permitted by the Administrative Agent and (b) in the case of a securities account, with respect to which the Administrative Agent shall be the entitlement holder and the only Person authorized to give entitlement orders with respect thereto.

“ Cash Equivalents ” means (a) any readily-marketable securities (i) issued by, or directly, unconditionally and fully guaranteed or insured by the United States federal government or (ii) issued by any agency of the United States federal government the obligations of which are fully backed by the full faith and credit of the United States federal government, (b) any readily-marketable direct obligations issued by any other agency of the United States federal government, any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case having a rating of at least “A-1” from S&P or at least “P-1” from Moody’s, (c) any commercial paper rated at least “ A-1 ” by S&P or “ P-1 ” by Moody’s and issued by any Person organized under the laws of any state of the United States, (d) any Dollar-denominated time deposit, insured certificate of deposit, overnight bank deposit or bankers’ acceptance issued or accepted by (i) any Lender or (ii) any commercial bank that is (A) organized under the laws of the United States, any state thereof or the District of Columbia, (B) “adequately capitalized” (as defined in the regulations of its primary federal banking regulators) and (C) has Tier 1 capital (as defined in such regulations) in excess of $250,000,000 and (e) shares of any United States money market fund that (i) has substantially all of its assets invested continuously in the types of

 

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investments referred to in clause (a) , (b) , (c)  or (d) above with maturities as set forth in the proviso below, (ii) has net assets in excess of $500,000,000 and (iii) has obtained from either S&P or Moody’s the highest rating obtainable for money market funds in the United States; provided , however , that the maturities of all obligations specified in any of clauses (a) , (b) , (c)  and (d)  above shall not exceed 365 days.

“ CERCLA ” means the United States Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. §§ 9601 et seq.).

“ Change of Control ” means the occurrence of any of the following: (a) any person or group of persons (within the meaning of the Securities Exchange Act of 1934) other than the Permitted Investor shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934) of 50% or more of the issued and outstanding shares of capital Stock of Borrower having the right to vote for the election of directors of Borrower under ordinary circumstances, or (b) during any period of twelve consecutive calendar months, individuals who at the beginning of such period constituted the board of directors of Borrower and/or Holdings (together with any new directors whose election by the board of directors of Borrower and/or Holdings or whose nomination for election by the Stockholders of Borrower and/or Holdings was approved by a vote of at least a majority of the directors then still in office who either were directors at the beginning of such period or whose election or nominations for election was previously so approved) cease for any reason other than death or disability to constitute a majority of the directors then in office or (c) the Borrower or any other Loan Party shall cease to own and control, legally and beneficially, all of the economic and voting rights associated with ownership of all outstanding Voting Stock of all classes of Voting Stock of each Wholly Owned Subsidiary of Borrower or such other Loan Party.

“ Closing Date ” means March 12, 2009, such being the date upon which the conditions precedent in Article III hereof have been satisfied.

“ Closing Date Projections ” means those financial projections, dated February 25, 2009, covering the Fiscal Years ending in 2009 through 2013 and delivered to the Administrative Agent by the Borrower prior to the date hereof.

“ Closing Fee ” shall have the meaning specified in Section 2.11(b) .

“ Code ” means the U.S. Internal Revenue Code of 1986.

“ Collateral ” means all property and interests in property and proceeds thereof now owned or hereafter acquired by any Loan Party in or upon which a Lien is granted or purported to be granted pursuant to any Loan Document.

“ Commitment ” means, with respect to any Lender, such Lender’s Term Loan Commitment.

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

 

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“ Consolidated ” means, with respect to any Person, the accounts of such Person and its Subsidiaries consolidated in accordance with GAAP.

“ Consolidated Cash Interest Expense ” means, with respect to any Person for any period, the Consolidated Interest Expense of such Person for such period less the sum of, in each case to the extent included in the definition of Consolidated Interest Expense and without duplication, (a) the amortized amount of debt discount and debt issuance costs, (b) charges relating to write-ups or write-downs in the book or carrying value of existing Consolidated Total Debt, (c) interest payable in evidences of Indebtedness or by addition to the principal of the related Indebtedness, (d) any PIK Interest and (e) other non-cash interest.

“ Consolidated Current Assets ” means, with respect to any Person at any date, the total Consolidated current assets of such Person at such date other than cash, Cash Equivalents and any Indebtedness owing to such Person or any of its Subsidiaries by Affiliates of such Person.

“ Consolidated Current Liabilities ” means, with respect to any Person at any date, all liabilities of such Person and its Subsidiaries at such date that should be classified as current liabilities on a Consolidated balance sheet of such Person; provided , however , that “ Consolidated Current Liabilities ” shall exclude the principal amount of the Loans and the “Loans” (as that term is defined in the First Lien Credit Agreement) then outstanding.

“ Consolidated EBITDA ” means, with respect to any Person for any period, (a) the Consolidated Net Income of such Person for such period (excluding the effect of any (i) intercompany items, (ii) all earnings attributable to equity interests in Persons that are not Subsidiaries unless actually received by such Person, (iii) all income arising from the forgiveness, adjustment or negotiated settlement of any Indebtedness, (iv) without duplication, any extraordinary items of income and (v) any increase or decrease in income arising from any change in such Person’s method of accounting, subject to Section 1.3 ) plus (b) the sum of, in each case to the extent deducted in the calculation of such Consolidated Net Income but without duplication, (i) any provision for United States federal income taxes or other taxes measured by net income, (ii) Consolidated Interest Expense, amortization of debt discount and commissions and other fees and charges associated with Indebtedness, (iii) any loss from extraordinary items, (iv) any depreciation, depletion and amortization expense, (v) any aggregate net loss on the Sale of property (other than accounts (as defined under the applicable UCC) and inventory) outside the ordinary course of business, (vi) any other non-cash expenditure, charge or loss for such period (other than any non-cash expenditure, charge or loss relating to write-offs, write-downs or reserves with respect to accounts and inventory), including the amount of any compensation deduction as the result of any grant of Stock or Stock Equivalents to employees, officers, directors or consultants, (vii) any fees, costs and expenses paid pursuant to Section 11.4 provided that such addback shall not exceed $500,000 in the aggregate from and after the Closing Date, (viii) any fees, costs and expenses paid pursuant to Section 3.1(b) and (ix) certain one-time cash restructuring expenses (in an aggregate amount not to exceed $4,000,000 during the term hereof beginning on the Closing Date through the Term Loan Maturity Date) minus (c) the sum of, in each case to the extent included in the calculation of such Consolidated Net Income and without duplication, (i) any credit for United States federal income taxes or other taxes measured by net income, (ii) any interest income, (iii) any gain from extraordinary items and any other non-recurring gain, (iv) any aggregate net gain from the Sale of property (other than accounts (as defined in the applicable UCC) and inventory) out of the ordinary course of business by such Person, (v) any other non-cash gain, including any reversal of a charge

 

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referred to in clause (b)(vi) above by reason of a decrease in the value of any Stock or Stock Equivalent, and (vi) any other cash payment in respect of expenditures, charges and losses that have been added to Consolidated EBITDA of such Person pursuant to clause (b)(vi) above in any prior period.

“ Consolidated Fixed Charge Coverage Ratio ” means, with respect to any Person for any period, the ratio of (a) Consolidated EBITDA of such Person for such period minus Capital Expenditures of such Person for such period minus the total liability for United States federal income taxes and other taxes measured by net income actually payable by such Person in respect of such period to (b) the Consolidated Fixed Charges of such Person for such period.

“ Consolidated Fixed Charges ” means, with respect to any Person for any period, the sum, determined on a Consolidated basis, of (a) the Consolidated Cash Interest Expense of such Person and its Subsidiaries for such period, (b) the principal amount of Consolidated Total Debt of such Person and its Subsidiaries having a scheduled due date during such period and (c) all obligations created or arising under any conditional sale or other title retention agreement; provided that, for all fiscal periods ending on or before March 31, 2010, Consolidated Fixed Charges pursuant to subsection (b) hereof for such twelve Fiscal Month period shall be deemed to be $2,025,000.

“ Consolidated Interest Expense ” means, for any Person for any period, (a) Consolidated total interest expense of such Person and its Subsidiaries for such period and including, in any event, (i) interest capitalized during such period and net costs under Interest Rate Contracts for such period and (ii) all fees, charges, commissions, discounts and other similar obligations (other than reimbursement obligations) with respect to letters of credit, bank guarantees, banker’s acceptances, surety bonds and performance bonds (whether or not matured) payable by such Person and its Subsidiaries during such period minus (b) Consolidated net gains of such Person and its Subsidiaries under Interest Rate Contracts for such period.

“ Consolidated Leverage Ratio ” means, with respect to any Person as of any date, the ratio of (a) Consolidated Total Debt of such Person outstanding as of such date to (b) Consolidated EBITDA for such Person for the last period of twelve consecutive Fiscal Months ending on or before such date.

“ Consolidated Net Income ” means, with respect to any Person, for any period, the Consolidated net income (or loss) of such Person and its Subsidiaries for such period; provided , however , that the following shall be excluded: (a) the net income of any other Person in which such Person or one of its Subsidiaries has a joint interest with a third-party (which interest does not cause the net income of such other Person to be Consolidated into the net income of such Person), except to the extent of the amount of dividends or distributions paid to such Person or Subsidiary, (b) the net income of any Subsidiary of such Person that is, on the last day of such period, subject to any restriction or limitation on the payment of dividends or the making of other distributions, to the extent of such restriction or limitation and (c) the net income of any other Person arising prior to such other Person becoming a Subsidiary of such Person or merging or consolidating into such Person or its Subsidiaries.

“ Consolidated Total Assets ” means, with respect to any Person at any date, the total Consolidated assets of such Person as of such date.

 

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“ Consolidated Total Debt ” of any Person means all Indebtedness of a type described in clause (a) , (b) , (c)(i) , (d)  or (f)  of the definition thereof and, without duplication, all Guaranty Obligations with respect to any such Indebtedness.

“ Constituent Documents ” means, with respect to any Person, collectively and, in each case, together with any modification of any term thereof, (a) the articles of incorporation, certificate of incorporation or certificate of formation of such Person, (b) the bylaws, operating agreement or joint venture agreement of such Person, (c) any other constitutive, organizational or governing document of such Person, whether or not equivalent, and (d) any other document setting forth the manner of election or duties of the directors, officers or managing members of such Person or the designation, amount or relative rights, limitations and preferences of any Stock of such Person.

“ Contractual Obligation ” means, with respect to any Person, any provision of any Security issued by such Person or of any agreement or undertaking (other than a Loan Document) to which such Person is a party or by which it or any of its property is bound or to which any of its property is subject.

“ Control Agreement ” means, with respect to any deposit account, any securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance satisfactory to the Administrative Agent, among the Administrative Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Loan Party maintaining such account, effective to grant “control” (as defined under the applicable UCC) over such account to the Administrative Agent.

“ Controlled Deposit Account ” means each deposit account (including all funds on deposit therein) that is the subject of an effective Control Agreement and that is maintained by any Loan Party with a financial institution approved by the Administrative Agent.

“ Controlled Securities Account ” means each securities account or commodity account (including all financial assets held therein and all certificates and instruments, if any, representing or evidencing such financial assets) that is the subject of an effective Control Agreement and that is maintained by any Loan Party with a securities intermediary or commodity intermediary approved by the Administrative Agent.

“ Copyrights ” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating to copyrights and all mask work, database and design rights, whether or not registered or published, all registrations and recordations thereof and all applications in connection therewith.

“ Corporate Chart ” means a document in form reasonably acceptable to the Administrative Agent and setting forth, as of a date set forth therein, for each Person that is a Loan Party, that is subject to Section 7.10 or that is a Subsidiary or joint venture of any of them, (a) the full legal name of such Person, (b) the jurisdiction of organization and any organizational number and tax identification number of such Person, (c) the location of such Person’s chief executive office (or, if applicable, sole place of business) and (d) the number of shares of each class of Stock of such Person (other than Holdings) authorized, the number outstanding and the number and percentage of such outstanding shares for each such class owned, directly or indirectly, by any Loan Party or any Subsidiary of any of them.

 

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“ Customary Permitted Liens ” means, with respect to any Person, any of the following:

(a) Liens (i) with respect to the payment of taxes, assessments or other governmental charges or (ii) of suppliers, carriers, materialmen, warehousemen, workmen or mechanics and other similar Liens, in each case imposed by law or arising in the ordinary course of business, and, for each of the Liens in clauses (i)  and (ii)  above for amounts that are not yet due or that are being contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP;

(b) Liens (i) of a collection bank on items in the course of collection arising under Section 4-208 of the UCC as in effect in the State of New York or any similar section under any applicable UCC or any similar Requirement of Law of any foreign jurisdiction, or (ii) arising by virtue of any statutory or common law provision relating to banker’s liens, rights of setoff or similar rights as to deposit accounts or other funds maintained with a creditor depository institution;

(c) pledges or cash deposits made in the ordinary course of business (i) in connection with workers’ compensation, unemployment insurance or other types of social security benefits (other than any Lien imposed by ERISA), (ii) to secure the performance of bids, tenders, leases (other than Capital Leases), sales or other trade contracts (other than for the repayment of borrowed money) or (iii) made in lieu of, or to secure the performance of, surety, customs, reclamation or performance bonds (in each case not related to judgments or litigation);

(d) judgment liens (other than for the payment of taxes, assessments or other governmental charges) securing judgments and other proceedings not constituting an Event of Default under Section 9.1(e) and pledges or cash deposits made in lieu of, or to secure the performance of, judgment or appeal bonds in respect of such judgments and proceedings;

(e) Liens (i) arising by reason of zoning restrictions, easements, licenses, reservations, restrictions, covenants, rights-of-way, encroachments, minor defects or irregularities in title (including leasehold title) and other similar encumbrances on the use of real property or (ii) consisting of leases, licenses or subleases granted by a lessor, licensor or sublessor on its property (in each case other than Capital Leases) otherwise permitted under Section 8.4 that, for each of the Liens in clauses (i)  and (ii)  above, do not, in the aggregate, materially (x) impair the value or marketability of such real property or (y) interfere with the ordinary conduct of the business conducted and proposed to be conducted at such real property;

(f) Liens of landlords or lessors and mortgagees of landlords or lessors (i) arising by statute or under any lease or related Contractual Obligation entered into in the ordinary course of business, (ii) on fixtures and movable tangible property located on the real property leased or subleased from such landlord, (iii) for amounts not yet due or that are being contested in good faith by appropriate proceedings diligently conducted and (iv) to the extent such amounts are contested, for which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP; and

 

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(g) the title and interest of a lessor or sublessor in and to personal property leased or subleased (other than through a Capital Lease), in each case extending only to such personal property.

“ Default ” means any Event of Default and any event that, with the passing of time or the giving of notice or both, would become an Event of Default.

“ Disclosure Documents ” means, collectively, (a) all confidential information memoranda and related materials prepared in connection with the syndication of the Term Loan Facility and (b) all other documents filed by any Group Member with the United States Securities and Exchange Commission.

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

“ Domestic Person ” means any “ United States person ” under and as defined in Section 770l(a)(30) of the Code.

“ E-Fax ” means any system used to receive or transmit faxes electronically.

“ Electronic Transmission ” means each document, instruction, authorization, file, information and any other communication transmitted, posted or otherwise made or communicated by e-mail or E-Fax, or otherwise to or from an E-System or other equivalent service.

“ Environmental Laws ” means all Requirements of Law and Permits imposing liability or standards of conduct for or relating to the regulation and protection of human health, safety, the environment and natural resources, including CERCLA, the SWDA, the Hazardous Materials Transportation Act (49 U.S.C. §§ 5101 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 136 et seq.), the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), the Clean Air Act (42 U.S.C. §§ 7401 et seq.), the Federal Water Pollution Control Act (33 U.S.C. §§ 1251 et seq.), the Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.), the Safe Drinking Water Act (42 U.S.C. §§ 300(f) et seq.), all regulations promulgated under any of the foregoing, all analogous Requirements of Law and Permits and any environmental transfer of ownership notification or approval statutes, including the Industrial Site Recovery Act (N.J. Stat. Ann. §§ 13:1K-6 et seq.).

“ Environmental Liabilities ” means all Liabilities (including costs of Remedial Actions, natural resource damages and costs and expenses of investigation and feasibility studies) that may be imposed on, incurred by or asserted against any Group Member as a result of, or related to, any claim, suit, action, investigation, proceeding or demand by any Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law or otherwise, arising under any Environmental Law or in connection with any environmental, health or safety condition or with any Release and resulting from the ownership, lease, sublease or other operation or occupation of property by any Group Member, whether on, prior or after the date hereof.

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

 

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“ ERISA Affiliate ” means, collectively, any Group Member, and any Person under common control, or treated as a single employer, with any Group Member, within the meaning of Section 414(b), (c), (m) or (o) of the Code.

“ ERISA Event ” means any of the following: (a) a reportable event described in Section 4043(b) of ERISA (or, unless the 30-day notice requirement has been duly waived under the applicable regulations, Section 4043(c) of ERISA) with respect to a Title IV Plan, (b) the withdrawal of any ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA, (c) the complete or partial withdrawal of any ERISA Affiliate from any Multiemployer Plan, (d) with respect to any Multiemployer Plan, the filing of a notice of reorganization, insolvency or termination (or treatment of a plan amendment as termination) under Section 4041A of ERISA, (e) the filing of a notice of intent to terminate a Title IV Plan (or treatment of a plan amendment as termination) under Section 4041 of ERISA, (f) the institution of proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC, (g) the failure to make any required contribution to any Title IV Plan or Multiemployer Plan when due, (h) the imposition of a lien under Section 412 of the Code or Section 302 or 4068 of ERISA on any property (or rights to property, whether real or personal) of any ERISA Affiliate, (i) the failure of a Benefit Plan or any trust thereunder intended to qualify for tax exempt status under Section 401 or 501 of the Code or other Requirements of Law to qualify thereunder and (j) any other event or condition that might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan or for the imposition of any liability upon any ERISA Affiliate under Title IV of ERISA other than for PBGC premiums due but not delinquent.

“ E-Signature ” means the process of attaching to or logically associating with an Electronic Transmission an electronic symbol, encryption, digital signature or process (including the name or an abbreviation of the name of the party transmitting the Electronic Transmission) with the intent to sign, authenticate or accept such Electronic Transmission.

“ E-System ” means any electronic system, including Intralinks ^® and ClearPar ^® and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent, any of its Related Persons or any other Person, providing for access to data protected by passcodes or other security system.

“ Eurodollar Base Rate ” means, with respect to any Interest Period for any Eurodollar Rate Loan, the higher of (i) 2.50% and (ii) the rate determined by the Administrative Agent to be the offered rate for deposits in Dollars for the applicable Interest Period appearing on the Reuters Screen LIBOR01 page as of 11:00 a.m. (London time) on the second full Business Day next preceding the first day of each Interest Period. In the event that such rate does not appear on the Reuters Screen LIBOR01 page at such time, the “ Eurodollar Base Rate ” shall be determined by reference to such other comparable publicly available service for displaying the offered rate for deposit in Dollars in the London interbank market as may be selected by the Administrative Agent and, in the absence of availability, such other method to determine such offered rate as may be selected by the Administrative Agent in its sole discretion.

 

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“ Eurodollar Rate ” means, with respect to any Interest Period and for any Eurodollar Rate Loan, an interest rate per annum determined as the ratio of (a) the Eurodollar Base Rate with respect to such Interest Period for such Eurodollar Rate Loan to (b) the difference between the number one and the Eurodollar Reserve Requirements with respect to such Interest Period and for such Eurodollar Rate Loan.

“ Eurodollar Rate Loan ” means any Loan that bears interest based on the Eurodollar Rate.

“ Eurodollar Reserve Requirements ” means, with respect to any Interest Period and for any Eurodollar Rate Loan, a rate per annum equal to the aggregate, without duplication, of the maximum rates (expressed as a decimal number) of reserve requirements in effect 2 Business Days prior to the first day of such Interest Period (including basic, supplemental, marginal and emergency reserves) under any regulations of the Federal Reserve Board or other Governmental Authority having jurisdiction with respect thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as “eurocurrency liabilities” in Regulation D of the Federal Reserve Board) maintained by a member bank of the United States Federal Reserve System.

“ Event of Default ” has the meaning specified in Section 9.1 .

“ Excess Cash Flow ” means, for any Excess Cash Flow Period, (a) Consolidated EBITDA of Holdings for such period, minus (b) without duplication, (i) any cash principal payment on the Loans during such period other than any mandatory prepayment required pursuant to Section 2.8(a) because of the existence of Excess Cash Flow, (ii) any scheduled or other mandatory cash principal payment made by the Borrower or any of its Subsidiaries during such period on any Capitalized Lease Obligation or other Indebtedness (but only, if such Indebtedness may be reborrowed, to the extent such payment results in a permanent reduction in commitments thereof), (iii) any Capital Expenditure made by such Person or any of its Subsidiaries during such period to the extent permitted by this Agreement, excluding any such Capital Expenditure to the extent financed through the incurrence of Capitalized Lease Obligations or any long-term Indebtedness other than the Obligations and any Capitalized Lease Obligations, (iv) the Consolidated Interest Expense of such Person for such period, (v) any cash losses from extraordinary items, (vi) any cash payment made during such period to satisfy obligations for United States federal income taxes or other taxes measured by net income, (vii) cash expenditures made in respect of Hedging Agreements during any Excess Cash Flow Period, to the extent not deducted in the computation of EBITDA or Consolidated Interest Expense during such Excess Cash Flow Period, (viii) dividends or distributions or purchases of equity interests made during such Excess Cash Flow Period, to the extent permitted hereunder and (ix) any increase in the Working Capital of Holdings during such period (measured as the excess of such Working Capital at the end of such period over such Working Capital at the beginning of such period) and plus (c) without duplication, any decrease in the Working Capital of Holdings during such period (measured as the excess of such Working Capital at the beginning of such period over such Working Capital at the end thereof).

“ Excess Cash Flow Period ” means (i) for 2009, the three consecutive Fiscal Quarters ending December 31, 2009, and (ii) for each year thereafter, each Fiscal Year of the Borrower. There is no Excess Cash Flow Period for 2008.

 

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“ Excluded Foreign Subsidiary ” means any Subsidiary that is not a Domestic Person and in respect of which any of (a) the pledge of all of the Stock of such Subsidiary as Collateral for any Obligation of the Borrower, (b) the grant by such Subsidiary of a Lien on any of its property as Collateral for any Obligation of the Borrower or (c) such Subsidiary incurring Guaranty Obligations with respect to any Obligation of Holdings, the Borrower or any Domestic Person would, in the good faith judgment of the Borrower, result in materially adverse tax consequences to the Loan Parties and their Subsidiaries, taken as a whole; provided , however , that (x) the Administrative Agent and the Borrower may agree that, despite the foregoing, any such Subsidiary shall not be an “ Excluded Foreign Subsidiary ” and (y) no such Subsidiary shall be an “ Excluded Foreign Subsidiary ” if, with substantially similar tax consequences, such Subsidiary has entered into any Guaranty Obligations with respect to, such Subsidiary has granted a security interest in any of its property to secure, or more than 66% of the Voting Stock of such Subsidiary was pledged to secure, directly or indirectly, any Indebtedness (other than the Obligations) of any Loan Party.

“ Existing Credit Agreement ” has the meaning specified in the recitals hereto.

“ Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as determined by the Administrative Agent in its sole discretion.

“ Federal Reserve Board ” means the Board of Governors of the United States Federal Reserve System and any successor thereto.

“ Fee Letter ” means the letter agreement, dated as of the Closing Date, addressed to the Borrower from the Administrative Agent and accepted by the Borrower, with respect to certain fees to be paid from time to time to the Administrative Agent and its Related Persons.

“ Financial Statement ” means each financial statement delivered pursuant to Section 4.4 or 6.1 .

“ First Lien Agent ” means GE Capital in its capacity as administrative agent and collateral agent under the First Lien Credit Agreement, together with its successors and permitted assigns.

“ First Lien Credit Agreement ” means that certain Amended and Restated First Lien Credit Agreement, dated as of the Closing Date, among the Borrower, the other credit parties party thereto, the other lenders party thereto and the First Lien Agent as amended, supplemented, amended and restated or otherwise modified from time to time.

“ First Lien Facility ” means, collectively, the “ Facilities ” as defined in the First Lien Credit Agreement.

“ First Lien Loan Documents ” means the “ Loan Documents ” as defined in the First Lien Credit Agreement.

“ Fiscal Month ” means each fiscal month period ending on or about January 31, February 28/29, March 31, April 30, May 31, June 30, July 31, August 31, September 30, October 31, November 30 or December 31.

 

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“ Fiscal Quarter ” means each 3 Fiscal Month period ending on or about March 31, June 30, September 30 or December 31.

“ Fiscal Year ” means the twelve-month period ending on or about December 31.

“ GAAP ” means generally accepted accounting principles in the United States of America, as in effect from time to time, set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants, in the statements and pronouncements of the Financial Accounting Standards Board and in such other statements by such other entity as may be in general use by significant segments of the accounting profession that are applicable to the circumstances as of the date of determination. Subject to Section 1.3 , all references to “ GAAP ” shall be to GAAP applied consistently with the principles used in the preparation of the Financial Statements described in Section 4.4(a) .

“ Governmental Authority ” means any nation, sovereign or government, any state or other political subdivision thereof, any agency, authority or instrumentality thereof and any entity or authority exercising executive, legislative, taxing, judicial, regulatory or administrative functions of or pertaining to government, including any stock exchange, regulatory body, arbitrator, public sector entity, or supra-national entity (including the European Union and the European Central Bank).

“ Group Members ” means, collectively, the Borrower, its Subsidiaries and Holdings.

“ Group Members’ Accountants ” means Ernst & Young or other nationally-recognized independent registered certified public accountants reasonably acceptable to the Administrative Agent.

“ Guarantor ” means Holdings, each Wholly Owned Subsidiary of the Borrower that is not an Excluded Foreign Subsidiary and each other Person that enters into any Guaranty Obligation with respect to any Obligation of any Loan Party.

“ Guaranty and Security Agreement ” means a guaranty and security agreement, in substantially the form of Exhibit H , among the Administrative Agent, the Borrower and other Guarantors from time to time party thereto.

“ Guaranty Obligation ” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of such Person for any Indebtedness, lease, dividend or other obligation (the “ primary obligation ”) of another Person (the “ primary obligor ”), if the purpose or intent of such Person in incurring such liability, or the economic effect thereof, is to guarantee such primary obligation or provide support, assurance or comfort to the holder of such primary obligation or to protect or indemnify such holder against loss with respect to such primary obligation, including (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of any primary obligation, (b) the incurrence of reimbursement obligations with respect to any letter of credit or bank guarantee in support of any primary obligation, (c) the existence of any Lien, or any right, contingent or otherwise, to receive a Lien, on the property of such Person securing any part of any primary obligation and (d) any liability of such Person for a primary obligation through any

 

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Contractual Obligation (contingent or otherwise) or other arrangement (i) to purchase, repurchase or otherwise acquire such primary obligation or any security therefor or to provide funds for the payment or discharge of such primary obligation (whether in the form of a loan, advance, stock purchase, capital contribution or otherwise), (ii) to maintain the solvency, working capital, equity capital or any balance sheet item, level of income or cash flow, liquidity or financial condition of any primary obligor, (iii) to make take-or-pay or similar payments, if required, regardless of non-performance by any other party to any Contractual Obligation, (iv) to purchase, sell or lease (as lessor or lessee) any property, or to purchase or sell services, primarily for the purpose of enabling the primary obligor to satisfy such primary obligation or to protect the holder of such primary obligation against loss or (v) to supply funds to or in any other manner invest in, such primary obligor (including to pay for property or services irrespective of whether such property is received or such services are rendered); provided , however , that “ Guaranty Obligations ” shall not include (x) endorsements for collection or deposit in the ordinary course of business and (y) product warranties given in the ordinary course of business. The outstanding amount of any Guaranty Obligation shall equal the outstanding amount of the primary obligation so guaranteed or otherwise supported or, if lower, the stated maximum amount for which such Person may be liable under such Guaranty Obligation.

“ Hazardous Material ” means any substance, material or waste that is classified, regulated or otherwise characterized under any Environmental Law as hazardous, toxic, a contaminant or a pollutant or by other words of similar meaning or regulatory effect, including petroleum or any fraction thereof, asbestos, polychlorinated biphenyls and radioactive substances.

“ Hedging Agreement ” means any Interest Rate Contract, foreign exchange, swap, option or forward contract, spot, cap, floor or collar transaction, any other derivative instrument and any other similar speculative transaction and any other similar agreement or arrangement designed to alter the risks of any Person arising from fluctuations in any underlying variable.

“ HIPAA ” means the Health Insurance Portability and Accountability Act of 1996, as amended from time to time, and any rules or regulation promulgated from time to time thereunder.

“ Holdings ” has the meaning specified in the preamble.

“ Holdings Entity ” has the meaning specified in the preamble.

“ Indebtedness ” of any Person means, without duplication, any of the following, whether or not matured: (a) all indebtedness for borrowed money, (b) all obligations evidenced by notes, bonds, debentures or similar instruments, (c) all reimbursement and all obligations with respect to (i) letters of credit, bank guarantees or bankers’ acceptances or (ii) surety, customs, reclamation or performance bonds (in each case not related to judgments or litigation) other than those entered into in the ordinary course of business, (d) all obligations to pay the deferred purchase price of property or services, other than trade payables incurred in the ordinary course of business, (e) all obligations created or arising under any conditional sale or other title retention agreement, regardless of whether the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property, (f) all Capitalized Lease Obligations, (g) all obligations, whether or not contingent, to purchase, redeem, retire, defease or otherwise acquire for value any of its own Stock or Stock Equivalents (or any Stock or Stock

 

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Equivalent of a direct or indirect parent entity thereof) prior to the Term Loan Maturity Date, valued at, in the case of redeemable preferred Stock, the greater of the voluntary liquidation preference and the involuntary liquidation preference of such Stock plus accrued and unpaid dividends, (h) all payments that would be required to be made in respect of any Hedging Agreement, to the extent that a termination (including an early termination) has occurred and (i) all Guaranty Obligations for obligations of any other Person constituting Indebtedness of such other Person; provided , however , that the items in each of clauses (a)  through (i)  above shall constitute “ Indebtedness ” of such Person solely to the extent, directly or indirectly, (x) such Person is liable for any part of any such item, (y) any such item is secured by a Lien on such Person’s property or (z) any other Person has a right, contingent or otherwise, to cause such Person to become liable for any part of any such item or to grant such a Lien.

“ Indemnified Matter ” has the meaning specified in Section 11.5 .

“ Indemnitee ” has the meaning specified in Section 11.5 .

“ Initial Closing Date ” means July 2, 2007.

“ Intellectual Property ” means all rights, title and interests in or relating to intellectual property and industrial property arising under any Requirement of Law and all IP Ancillary Rights relating thereto, including all Copyrights, Patents, Trademarks, Internet Domain Names, Trade Secrets and IP Licenses.

“ Intercreditor Agreement ” means that certain Intercreditor Agreement dated as of the Initial Closing Date, by and among the Borrower, Holdings, the First Lien Agent and the Administrative Agent, as amended, supplemented, restated or otherwise modified from time to time.

“ Interest Period ” means, with respect to any Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is made or converted to a Eurodollar Rate Loan or, if such loan is continued, on the last day of the immediately preceding Interest Period therefor and, in each case, ending 1, 2, 3 or 6 months thereafter or, to the extent available to all applicable Lenders, ending 9 or 12 months thereafter, as selected by the Borrower pursuant hereto; provided , however , that (a) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless the result of such extension would be to extend such Interest Period into another such Business Day falls in the next calendar month, in which case such Interest Period shall end on the immediately preceding Business Day, (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month, (c) the Borrower may not select any Interest Period ending after the Term Loan Maturity Date, (d) the Borrower may not select any Interest Period having an aggregate principal amount of less than $2,500,000 and (e) there shall be outstanding at any one time no more than 10 Interest Periods.

“ Interest Rate Contracts ” means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and interest rate insurance.

 

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“ Internet Domain Names ” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating to Internet domain names.

“ Investment ” means, with respect to any Person, directly or indirectly, (a) to own, purchase or otherwise acquire, in each case whether beneficially or otherwise, any investment in, including any interest in, any Security of any other Person (other than any evidence of any Obligation), (b) to purchase or otherwise acquire, whether in one transaction or in a series of transactions, all or a significant part of the property of any other Person or a business conducted by any other Person or all or substantially all of the assets constituting the business of a division, branch, brand or other unit operation of any other Person, (c) to incur, or to remain liable under, any Guaranty Obligation for Indebtedness of any other Person, to assume the Indebtedness of any other Person or to make, hold, purchase or otherwise acquire, in each case directly or indirectly, any deposit, loan, advance, commitment to lend or advance, or other extension of credit (including by deferring or extending the date of, in each case outside the ordinary course of business, the payment of the purchase price for Sales of property or services to any other Person, to the extent such payment obligation constitutes Indebtedness of such other Person), excluding deposits with financial institutions available for withdrawal on demand, prepaid expenses, accounts receivable, deposits made in connection with the purchase of equipment or other assets and similar items created in the ordinary course of business or (d) to make, directly or indirectly, any contribution to the capital of any other Person.

“ IP Ancillary Rights ” means, with respect to any other Intellectual Property, as applicable, all foreign counterparts to, and all divisionals, reversions, continuations, continuations-in-part, reissues, reexaminations, renewals and extensions of, such Intellectual Property and all income, royalties, proceeds and Liabilities at any time due or payable or asserted under or with respect to any of the foregoing or otherwise with respect to such Intellectual Property, including all rights to sue or recover at law or in equity for any past, present or future infringement, misappropriation, dilution, violation or other impairment thereof, and, in each case, all rights to obtain any other IP Ancillary Right.

“ IP License ” means all Contractual Obligations (and all related IP Ancillary Rights), whether written or oral, granting any right title and interest in or relating to any Intellectual Property.

“ IRS ” means the Internal Revenue Service of the United States and any successor thereto.

“ Lender ” means, collectively, any financial institution or other Person that (a) is listed on the signature pages hereof as a “ Lender ” or (b) from time to time becomes a party hereto by execution of an Assignment, in each case together with its successors.

“ Liabilities ” means all claims, actions, suits, judgments, damages, losses, liability, obligations, responsibilities, fines, penalties, sanctions, costs, fees, taxes, commissions, charges, disbursements and expenses, in each case of any kind or nature (including interest accrued thereon or as a result thereto and fees, charges and disbursements of financial, legal and other advisors and consultants), whether joint or several, whether or not indirect, contingent, consequential, actual, punitive, treble or otherwise.

 

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“ Lien ” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, easement, lien (statutory or other), security interest or other security arrangement and any other preference, priority or preferential arrangement of any kind or nature whatsoever, including any conditional sale contract or other title retention agreement, the interest of a lessor under a Capital Lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing.

“ Loan ” means any loan made or deemed made by any Lender hereunder, including, without limitation, the PIK Loans.

“ Loan Documents ” means, collectively, this Agreement, any Notes, the Guaranty and Security Agreement, the Mortgages, the Control Agreements, the Fee Letter, the Intercreditor Agreement, the Assignment of Representations, the Secured Hedging Agreements, the Reaffirmation Agreement and, when executed, each document executed by a Loan Party and delivered to the Administrative Agent or any Lender in connection with or pursuant to any of the foregoing or the Obligations, together with any modification of any term, or any waiver with respect to, any of the foregoing.

“ Loan Party ” means each Borrower and each Guarantor.

“ Material Adverse Effect ” means an effect that results in or causes, or would reasonably be expected to result in or cause, a material adverse change in any of (a) the financial condition, business, performance, prospects, operations or property of the Group Members, taken as a whole, (b) the ability of any Loan Party to perform its obligations under any Loan Document, (c) the validity or enforceability of any Loan Document or the rights and remedies of the Administrative Agent, the Lenders and the other Secured Parties under any Loan Document or (d) the Collateral or the Administrative Agent’s Liens, on behalf of itself and Lenders, on the Collateral or the priority of such Liens.

“ Material Environmental Liabilities ” means Environmental Liabilities exceeding $575,000 in the aggregate.

“ Maximum Lawful Rate ” has the meaning specified in Section 2.9(d) .

“ Merger Sub ” means Greenhouse Acquisition Sub, Inc., a Delaware corporation and Wholly Owned Subsidiary of the Borrower.

“ Moody’s ” means Moody’s Investors Service, Inc.

“ Mortgage ” means any mortgage, deed of trust or other document executed or required herein to be executed by any Loan Party and granting a security interest over real property in favor of the Administrative Agent as security for the Obligations.

“ Mortgage Supporting Documents ” means, with respect to any Mortgage for a parcel of real property, each document (including title policies or marked-up unconditional insurance binders (in each case, together with copies of all documents referred to therein), maps, ALTA (or TLTA, if applicable) as-built surveys (in form and as to date that is sufficiently acceptable to the title insurer issuing

 

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title insurance to the Administrative Agent for such title insurer to deliver endorsements to such title insurance as reasonably requested by the Administrative Agent), environmental assessments and reports and evidence regarding recording and payment of fees, insurance premium and taxes) that the Administrative Agent may reasonably request, to create, register, perfect, maintain, evidence the existence, substance, form or validity of or enforce a valid lien on such parcel of real property in favor of the Administrative Agent for the benefit of the Secured Parties, subject only to such Liens as the Administrative Agent may approve.

“ Multiemployer Plan ” means any multiemployer plan, as defined in Section 400l(a)(3) of ERISA, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise.

“ Net Cash Proceeds ” means proceeds received in cash from (a) any Sale of, or Property Loss Event with respect to, property, net of (i) the customary out-of-pocket cash costs, fees and expenses paid or required to be paid in connection therewith, (ii) taxes paid or reasonably estimated to be payable as a result thereof and (iii) any amount required to be paid or prepaid on Indebtedness (other than the Obligations and Indebtedness owing to any Group Member) secured by the property subject thereto or (b) any sale or issuance of Stock or incurrence of Indebtedness, in each case net of brokers’, advisors’ and investment banking fees and other customary out-of-pocket underwriting discounts, commissions and other customary out-of-pocket cash costs, fees and expenses, in each case incurred in connection with such transaction; provided , however , that any such proceeds received by any Subsidiary of the Borrower that is not a Wholly Owned Subsidiary of the Borrower shall constitute “ Net Cash Proceeds ” only to the extent of the aggregate direct and indirect beneficial ownership interest of the Borrower therein.

“ Non-U.S. Lender Party ” means each of the Administrative Agent, each Lender, each SPV and each participant, in each case that is not a Domestic Person.

“ Note ” means (i) a promissory note of the Borrower, in substantially the form of Exhibit B , payable to the order of a Lender in the Term Loan Facility in a principal amount equal to the amount of such Lender’s Commitment under the Term Loan Facility and (ii) any PIK Note.

“ Notice of Conversion or Continuation ” has the meaning specified in Section 2.10 .

“ Obligations ” means, with respect to any Loan Party, all amounts, obligations, liabilities, covenants and duties of every type and description owing by such Loan Party to the Administrative Agent, any Lender, any other Indemnitee, any participant, any SPV or any Secured Hedging Counterparty arising out of, under, or in connection with, any Loan Document, whether direct or indirect (regardless of whether acquired by assignment), absolute or contingent, due or to become due, whether liquidated or not, now existing or hereafter arising and however acquired, and whether or not evidenced by any instrument or for the payment of money, including, without duplication, (a) if such Loan Party is the Borrower, all Loans, (b) all interest, whether or not accruing after the filing of any petition in bankruptcy or after the commencement of any insolvency, reorganization or similar proceeding, and whether or not a claim for post-filing or post-petition interest is allowed in any such proceeding, and (c) all other fees, expenses (including fees, charges and disbursement of counsel), interest, commissions, charges, costs, disbursements, indemnities and reimbursement of amounts paid and other sums chargeable to such Loan Party under any Loan Document.

 

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“ Other Taxes ” has the meaning specified in Section 2.17(c) .

“ Patents ” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating to letters patent and applications therefor.

“ PBGC ” means the United States Pension Benefit Guaranty Corporation and any successor thereto.

“ Permit ” means, with respect to any Person, any permit, approval, authorization, license, registration, certificate, concession, grant, franchise, variance or permission from, and any other Contractual Obligations with, any Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

“ Permitted Investor ” means Warburg Pincus Private Equity VIII, L.P.

“ Permitted Indebtedness ” means any Indebtedness of any Group Member that is not prohibited by Section 8.1 or any other provision of any Loan Document.

“ Permitted Investment ” means any Investment of any Group Member that is not prohibited by Section 8.3 or any other provision of any Loan Document.

“ Permitted Lien ” means any Lien on or with respect to the property of any Group Member that is not prohibited by Section 8.2 or any other provision of any Loan Document.

“ Permitted Refinancing ” means Indebtedness constituting a refinancing or extension of Permitted Indebtedness that (a) has an aggregate outstanding principal amount not greater than the aggregate principal amount of such Permitted Indebtedness outstanding at the time of such refinancing or extension, (b) has a weighted average maturity (measured as of the date of such refinancing or extension) and maturity no shorter than that of such Permitted Indebtedness, (c) is not entered into as part of a Sale and Leaseback Transaction, (d) is not secured by any property or any Lien other than those securing such Permitted Indebtedness and (e) is otherwise on terms no less favorable to the Group Members, taken as a whole, than those of such Permitted Indebtedness; provided , however , that, notwithstanding the foregoing, (x) the terms of such Permitted Indebtedness may be modified as part of such Permitted Refinancing if such modification would have been permitted pursuant to Section 8.11 and (y) no Guaranty Obligation for such Indebtedness shall constitute part of such Permitted Refinancing unless similar Guaranty Obligations with respect to such Permitted Indebtedness existed and constituted Permitted Indebtedness prior to such refinancing or extension.

“ Permitted Reinvestment ” means, with respect to the Net Cash Proceeds of any Sale or Property Loss Event, to acquire (or make Capital Expenditures to finance the acquisition, repair, improvement or construction of), to the extent otherwise permitted hereunder, property useful in the business of the Borrower or any of its Subsidiaries or, if such Property Loss Event involves loss or damage to property, to repair such loss or damage.

“ Person ” means any individual, partnership, corporation (including a business trust and a public benefit corporation), joint stock company, estate, association, firm, enterprise, trust, limited liability company, unincorporated association, joint venture and any other entity or Governmental Authority.

 

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“ PIK Interest ” has the meaning specified in Section 2.9(b)(iii) .

“ PIK Interest Payment Date ” means the last Business Day of each June and December in each year, provided that each of (x) the date upon which all of the Commitments have been terminated and the Loans have been paid in full and (y) the Term Loan Maturity Date, shall be deemed to be a “PIK Interest Payment Date” with respect to any PIK Interest which is then accrued under this Agreement.

“ PIK Loan ” has the meaning specified in Section 2.9(b)(vii) .

“ PIK Note ” has the meaning specified in Section 2.9(b)(v) .

“ Prepayment Premium ” has the meaning specified in Section 2.19 .

“ Post-Closing Obligations Letter ” means that certain letter agreement dated as of the Closing Date between the Loan Parties and the Administrative Agent, together with any amendments or modifications thereto, in form and substance satisfactory to Administrative Agent.

“ Pro Forma Basis ” means, with respect to any determination for any period and any Pro Forma Transaction, that such determination shall be made by giving pro forma effect to each such Pro Forma Transaction, as if each such Pro Forma Transaction had been consummated on the first day of such period, based on historical results accounted for in accordance with GAAP, with other customary adjustments thereto reasonably acceptable to the Administrative Agent, and, to the extent applicable, reasonable assumptions that are specified in reasonable detail in the relevant Compliance Certificate, Financial Statement or other document provided to the Administrative Agent or any Lender in connection herewith in accordance with Regulation S-X promulgated pursuant to the Securities Act of 1933.

“ Pro Forma Transaction ” means any transaction consummated as part of an acquisition consented to pursuant to the terms of this Agreement, together with each other transaction relating thereto and consummated in connection therewith, including any incurrence or repayment of Indebtedness.

“ Projections ” means, collectively, the Closing Date Projections and any document delivered pursuant to Section 6.1(e) .

“ Property Loss Event ” means, with respect to any property, any loss of or damage to such property or any taking of such property or condemnation thereof.

“ Pro Rata Outstandings ”, of any Lender at any time, means the outstanding principal amount of the Term Loans owing to such Lender.

 

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“ Pro Rata Share ” means, with respect to any Lender, at any time, the percentage obtained by dividing (a) the sum of the Commitments (or, if such Commitments are terminated, the Pro Rata Outstandings) of such Lender then in effect, by (b) the sum of the Commitments (or, if such Commitments are terminated, the Pro Rata Outstandings) of all Lenders then in effect; provided , however , that, if there are no Commitments and no Pro Rata Outstandings, such Lender’s Pro Rata Share shall be determined based on the Pro Rata Share most recently in effect, after giving effect to any subsequent assignment and any subsequent non-pro rata payments of any Lender pursuant to Section 2.18 .

“ Reaffirmation Agreement ” means that certain Reaffirmation Agreement dated as of the date hereof by and among the Borrower, the Administrative Agent and other parties signatory thereto.

“ Register ” has the meaning specified in Section 2.14(b) .

“ Reinvestment Prepayment Amount ” means, with respect to any Net Cash Proceeds on the Reinvestment Prepayment Date therefor, the amount of such Net Cash Proceeds less any amount paid or required to be paid by any Group Member to make Permitted Reinvestments with such Net Cash Proceeds pursuant to a Contractual Obligation entered into prior to such Reinvestment Prepayment Date with any Person that is not an Affiliate of the Borrower.

“ Reinvestment Prepayment Date ” means, with respect to any portion of any Net Cash Proceeds of any Sale or Property Loss Event, the earliest of (a) the 180 ^th day after the completion of the portion of such Sale or Property Loss Event corresponding to such Net Cash Proceeds, (b) the date that is 5 Business Days after the date on which the Borrower shall have notified the Administrative Agent of the Borrower’s determination not to make Permitted Reinvestments with such Net Cash Proceeds, (c) the occurrence of any Event of Default set forth in Section 9.1(e)(ii) and (d) 5 Business Days after the delivery of a notice requiring repayment by the Administrative Agent or the Required Lenders to the Borrower during the continuance of any other Event of Default.

“ Related Documents ” means, collectively, the First Lien Loan Documents and each other document executed with respect to the foregoing.

“ Related Person ” means, with respect to any Person, each Affiliate of such Person and each director, officer, employee, agent, trustee, representative, attorney, accountant, together with, if such Person is the Administrative Agent, each other Person to which the Administrative Agent has delegated duties pursuant to and in accordance with Section 10.4 or any comparable provision of any Loan Document.

“ Related Transactions ” means, collectively, the closing of the First Lien Facility, the execution and delivery of all Related Documents and the payment of all related fees, costs and expenses.

“ Release ” means any release, threatened release, spill, emission, leaking, pumping, pouring, emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Material into or through the environment.

 

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“ Remedial Action ” means all actions required to (a) clean up, remove, treat or in any other way address any Hazardous Material in the indoor or outdoor environment, (b) prevent or minimize any Release so that a Hazardous Material does not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment or (c) perform pre-remedial studies and investigations and post-remedial monitoring and care with respect to any Hazardous Material.

“ Required Lenders ” means, at any time, Lenders having at such time in excess of 50% of the sum of the Term Loan Commitments (or, if such Commitments are terminated, the Pro Rata Outstandings in the Term Loan Facility).

“ Requirements of Law ” means, with respect to any Person, collectively, the common law and all federal, state, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of, any Governmental Authority, in each case that are binding upon such Person or any of its property or to which such Person or any of its property is subject.

“ Responsible Officer ” means, with respect to any Person, any of the president, chief executive officer, treasurer, assistant treasurer, controller, managing member or general partner of such Person but, in any event, with respect to financial matters, any such officer that is responsible for preparing the Financial Statements delivered hereunder and, with respect to the Corporate Chart and other documents delivered pursuant to Section 6.1(e) , documents delivered on the Closing Date and documents delivered pursuant to Section 7.10 , the secretary or assistant secretary of such Person or any other officer responsible for maintaining the corporate and similar records of such Person.

“ Restricted Payment ” means (a) any dividend, return of capital, distribution or any other payment, whether direct or indirect (including through the use of Hedging Agreements, or the sale of property for less than fair market value, or the making, repayment, cancellation or forgiveness of Indebtedness and similar Contractual Obligations) and whether in cash, Securities or other property, in each case on account of any Stock or Stock Equivalent of the Borrower or any of its Subsidiaries, in each case now or hereafter outstanding and (b) any redemption, retirement, termination, defeasance, cancellation, purchase or other acquisition for value, whether direct or indirect (including through the use of Hedging Agreements, the making, repayment, cancellation or forgiveness of Indebtedness and similar Contractual Obligations), of any Stock or Stock Equivalent of any Group Member or of any direct or indirect parent entity of the Borrower, now or hereafter outstanding, and any payment for any such redemption, retirement, termination, cancellation, purchase or other acquisition, whether directly or indirectly and whether to a sinking fund or a similar fund.

“ S&P ” means Standard & Poor’s Rating Services.

“ Sale and Leaseback Transaction ” means, with respect to any Person (the “ obligor ”), any Contractual Obligation or other arrangement with any other Person (the “ counterparty ”) consisting of a lease by such obligor of any property that, directly or indirectly, has been or is to be Sold by the obligor to such counterparty or to any other Person to whom funds have been advanced by such counterparty based on a Lien on, or an assignment of, such property or any obligations of such obligor under such lease.

 

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“ Secured Hedging Agreement ” means any Hedging Agreement that (a) has been entered into with a Secured Hedging Counterparty, (b) in the case of a Hedging Agreement not entered into with or provided or arranged by the Administrative Agent or an Affiliate of the Administrative Agent, is expressly identified as being a “Secured Hedging Agreement” hereunder in a joint notice from such Loan Party and such Person delivered to the Administrative Agent reasonably promptly after the execution of such Hedging Agreement and (c) meets the requirements of Section 8.1(f) .

“ Secured Hedging Counterparty ” means (a) a Person who has entered into a Hedging Agreement with a Loan Party if such Hedging Agreement was provided or arranged by the Administrative Agent or an Affiliate of the Administrative Agent, and any assignee of such Person or (b) a Lender or an Affiliate of a Lender who has entered into a Hedging Agreement with a Loan Party (or a Person who was a Lender or an Affiliate of a Lender at the time of execution and delivery of the Hedging Agreement).

“ Secured Parties ” means the Lenders, the Administrative Agent, any Secured Hedging Counterparty, each other Indemnitee and any other holder of any Obligation of any Loan Party.

“ Security ” means all Stock, Stock Equivalents, voting trust certificates, bonds, debentures, instruments and other evidence of Indebtedness, whether or not secured, convertible or subordinated, all certificates of interest, share or participation in, all certificates for the acquisition of, and all warrants, options and other rights to acquire, any Security.

“ Sell ” means, with respect to any property, to sell, convey, transfer, assign, license, lease or otherwise dispose of, any interest therein or to permit any Person to acquire any such interest, including, in each case, through a Sale and Leaseback Transaction or through a sale, factoring at maturity, collection of or other disposal, with or without recourse, of any notes or accounts receivable. Conjugated forms thereof and the noun “ Sale ” have correlative meanings.

“ Solvent ” means, with respect to any Person as of any date of determination, that, as of such date, (a) such Person is able to pay all liabilities of such Person as such liabilities mature and (b) such Person does not have unreasonably small capital. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“ SPV ” means any special purpose funding vehicle identified as such in a writing by any Lender to the Administrative Agent.

“ Stated Rate ” has the meaning specified in Section 2.9(d) .

“ Stock ” means all shares of capital stock (whether denominated as common stock or preferred stock), equity interests, beneficial, partnership or membership interests, joint venture interests, participations or other ownership or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting.

“ Stock Equivalents ” means all securities convertible into or exchangeable for Stock or any other Stock Equivalent and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any Stock or any other Stock Equivalent, whether or not presently convertible, exchangeable or exercisable.

 

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“ Subordinated Debt ” means any Indebtedness that is subordinated to the payment in full of the Obligations on terms and conditions satisfactory to the Administrative Agent.

“ Subsidiary ” means, with respect to any Person, any corporation, partnership, joint venture, limited liability company, association or other entity of which an aggregate of more than 50% of the outstanding Voting Stock is, at the time, owned or controlled directly or indirectly by, such Person or one or more Subsidiaries of such Person.

“ Substitute Lender ” has the meaning specified in Section 2.18(a) .

“ SWDA ” means the Solid Waste Disposal Act (42 U.S.C. §§ 6901 et seq.).

“ Tax Affiliate ” means (a) the Borrower and its Subsidiaries and (b) any Affiliate of the Borrower with which the Borrower files or is eligible to file consolidated, combined or unitary tax returns.

“ Tax Return ” has the meaning specified in Section 4.8 .

“ Taxes ” has the meaning specified in Section 2.17(a) .

“ Term Loan ” has the meaning specified in Section 2.1 ; the aggregate principal amount of Term Loans outstanding on the date hereof is $25,000,000.

“ Term Loan Commitment ” means, with respect to each Term Loan Lender, the fulfilled commitment of such Lender to make Term Loans under the Existing Credit Agreement to the Borrower, which is in the amount set forth opposite such Lender’s name on Schedule I to the Existing Credit Agreement under the caption “ Term Loan ”, as amended to reflect Assignments and as such amount may have been reduced or repaid to the Existing Credit Agreement and as further reduced or repaid pursuant to this Agreement.

“ Term Loan Facility ” means the Term Loan Commitments and provisions herein related to the Term Loans.

“ Term Loan Lender ” means each Lender that has a Term Loan Commitment or that holds a Term Loan.

“ Term Loan Maturity Date ” means July 2, 2014.

“ Title IV Plan ” means a pension plan subject to Title IV of ERISA, other than a Multiemployer Plan, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise.

“ Trademarks ” means all rights, title and interests (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating to trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers and, in each case, all goodwill associated therewith, all registrations and recordations thereof and all applications in connection therewith.

 

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“ Trade Secrets ” means all right, title and interest (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating to trade secrets.

“ UCC ” means the Uniform Commercial Code of any applicable jurisdiction and, if the applicable jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial Code as in effect in the State of New York.

“ United States ” means the United States of America.

“ U.S. Lender Party ” means each of the Administrative Agent, each Lender, each SPV and each participant, in each case that is a Domestic Person.

“ Voting Stock ” means Stock of any Person having ordinary power to vote in the election of members of the board of directors, managers, trustees or other controlling Persons, of such Person (irrespective of whether, at the time, Stock of any other class or classes of such entity shall have or might have voting power by reason of the occurrence of any contingency).

“ Wholly Owned Subsidiary ” of any Person means any Subsidiary of such Person, all of the Stock of which (other than nominal holdings and director’s qualifying shares) is owned by such Person, either directly or through one or more Wholly Owned Subsidiaries of such Person.

“ Withdrawal Liability ” means, at any time, any liability incurred (whether or not assessed) by any ERISA Affiliate and not yet satisfied or paid in full at such time with respect to any Multiemployer Plan pursuant to Section 4201 of ERISA.

“ Working Capital ” means, for any Person at any date, its Consolidated Current Assets at such date minus its Consolidated Current Liabilities at such date.

Section 1.2 UCC Terms . The following terms have the meanings given to them in the applicable UCC: “commodity account”, “commodity contract”, “commodity intermediary”, “deposit account”, “entitlement holder”, “entitlement order”, “equipment”, “financial asset”, “general intangible”, “goods”, “instruments”, “inventory”, “securities account”, “securities intermediary” and “security entitlement”.

Section 1.3 Accounting Terms and Principles .

(a) GAAP . All accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in accordance with GAAP. No change in the accounting principles used in the preparation of any Financial Statement hereafter adopted by Holdings shall be given effect if such change would affect a calculation that measures compliance with any provision of Article V or VIII unless the Borrower, the Administrative Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all Financial Statements, Compliance Certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP.

 

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(b) Pro Forma . All components of financial calculations made to determine compliance with Article V shall be adjusted on a Pro Forma Basis to include or exclude, as the case may be, without duplication, such components of such calculations attributable to any Pro Forma Transaction consummated after the first day of the applicable period of determination and prior to the end of such period, as determined in good faith by the Borrower based on assumptions expressed therein and that were reasonable based on the information available to the Borrower at the time of preparation of the Compliance Certificate setting forth such calculations.

Section 1.4 Payments . The Administrative Agent may set up standards and procedures to determine or redetermine the equivalent in Dollars of any amount expressed in any currency other than Dollars and otherwise may, but shall not be obligated to, rely on any determination made by any Loan Party. Any such determination or redetermination by the Administrative Agent shall be conclusive and binding for all purposes, absent manifest error. No determination or redetermination by any Secured Party or Loan Party and no other currency conversion shall change or release any obligation of any Loan Party or of any Secured Party (other than the Administrative Agent and its Related Persons) under any Loan Document, each of which agrees to pay separately for any shortfall remaining after any conversion and payment of the amount as converted. The Administrative Agent may round up or down, and may set up appropriate mechanisms to round up or down, any amount hereunder to nearest higher or lower amounts and may determine reasonable de minimis payment thresholds.

Section 1.5 Interpretation . (a) Certain Terms . Except as set forth in any Loan Document, all accounting terms not specifically defined herein shall be construed in accordance with GAAP (except for the term “ property ” which shall be interpreted as broadly as possible, including, in any case, cash, Securities, other assets, rights under Contractual Obligations and Permits and any right or interest in any property). The terms “ herein ”, “ hereof ” and similar terms refer to this Agreement as a whole. In the computation of periods of time from a specified date to a later specified date in any Loan Document, the terms “ from ” means “from and including” and the words “ to ” and “ until ” each mean “to but excluding” and the word “ through ” means “to and including.” In any other case, the term “ including ” when used in any Loan Document means “including without limitation.” The term “ documents ” means all writings, however evidenced and whether in physical or electronic form, including all documents, instruments, agreements, notices, demands, certificates, forms, financial statements, opinions and reports. The term “ incur ” means incur, create, make, issue, assume or otherwise become directly or indirectly liable in respect of or responsible for, in each case whether directly or indirectly, and the terms “incurrence” and “incurred” and similar derivatives shall have correlative meanings.

(b) Certain References . Unless otherwise expressly indicated, references (i) in this Agreement to an Exhibit, Schedule, Article, Section or clause refer to the appropriate Exhibit or Schedule to, or Article, Section or clause in, this Agreement and (ii) in any Loan Document, to (A) any agreement shall include, without limitation, all exhibits, schedules, appendixes and annexes to such agreement and, unless the prior consent of any Secured Party required therefor is not obtained, any modification to any term of such agreement, (B) any statute shall be to such statute as modified from time to time and to any successor legislation thereto, in each case as in effect at the time any such reference is operative and (C) any time of day shall

 

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be a reference to New York time. Titles of articles, sections, clauses, exhibits, schedules and annexes contained in any Loan Document are without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto. Unless otherwise expressly indicated, the meaning of any term defined (including by reference) in any Loan Document shall be equally applicable to both the singular and plural forms of such term.

ARTICLE II

THE FACILITY

Section 2.1 Term Loan Commitments . Each Lender (as defined in the Existing Credit Agreement) severally, but not jointly, made a loan (each a “ Term Loan ”) in Dollars to the Borrower, in an amount not to exceed such Lender’s Term Loan Commitment (as defined in the Existing Credit Agreement). Amounts of Term Loans repaid may not be reborrowed. The aggregate principal amount of Term Loans outstanding on the date hereof is $25,000,000.

Section 2.2 [Reserved].

Section 2.3 [Reserved].

Section 2.4 [Reserved].

Section 2.5 Termination of the Commitments . All outstanding Commitments shall terminate on the Closing Date (after giving effect to any Borrowing occurring on such date).

Section 2.6 Repayment of Loans . The Borrower promises to repay the Term Loans on the Term Loan Maturity Date.

Section 2.7 Optional Prepayments . Subject to the terms and conditions of the Intercreditor Agreement, the Borrower may prepay the outstanding principal amount of any Loan in whole or in part at any time (together with accrued interest thereon and any breakage costs that may be owing pursuant to Section 2.16(a) after giving effect to such prepayment and the Prepayment Premium as may be applicable to such prepayment in accordance with Section 2.19); provided , however , that each partial prepayment of any Term Loan that is not of the entire outstanding amount of the Term Loans shall be in an aggregate amount that is an integral multiple of $500,000.

Section 2.8 Mandatory Prepayments . (a) Excess Cash Flow . So long as no “Obligations” (as defined in the First Lien Credit Agreement) are outstanding and all “Commitments” (as defined in the First Lien Credit Agreement) have been terminated, the Borrower shall pay or cause to be paid to the Administrative Agent, within 5 Business Days after the last date Financial Statements can be delivered pursuant to Section 6.1(b) for any Excess Cash Flow Period ending after the Closing Date, an amount equal to 75% of the Excess Cash Flow for such Excess Cash Flow Period; provided , however , that should the Consolidated Leverage Ratio of Holdings on the last day of such Excess Cash Flow Period be less than 3.00 to one, such percentage shall be reduced to 50%.

 

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(b) Debt Issuances . So long as no “Obligations” (as defined in the First Lien Credit Agreement) are outstanding and all “Commitments” (as defined in the First Lien Credit Agreement) have been terminated, then upon receipt on or after the Closing Date by any Loan Party or any of its Subsidiaries of Net Cash Proceeds arising from the incurrence by any Loan Party or any of its Subsidiaries of Indebtedness of the type specified in clause (a)  or (b)  of the definition thereof (other than any such Indebtedness permitted hereunder in reliance upon any of clauses (a)  through (g)  of Section 8.1 ), the Borrower shall immediately pay or cause to be paid to the Administrative Agent an amount equal to 100% of such Net Cash Proceeds.

(c) Asset Sales and Property Loss Events . So long as no “Obligations” (as defined in the First Lien Credit Agreement) are outstanding and all “Commitments” (as defined in the First Lien Credit Agreement) have been terminated, then upon receipt on or after the Closing Date by any Loan Party or any of its Subsidiaries of Net Cash Proceeds arising from (i) any Sale by any Group Member of any of its property, to the extent resulting, in the aggregate with all other Sales from and after the Closing Date, in the receipt by any of them of Net Cash Proceeds in excess of $100,000, but excluding any Sales of its own Stock and Sales of property permitted hereunder in reliance upon any of clauses (a)  through (e)  of Section 8.4 or (ii) any Property Loss Event with respect to any property of any Group Member to the extent resulting in the aggregate, with all other such Property Loss Events from and after the Closing Date, in the receipt by any of them of Net Cash Proceeds in excess of $100,000, the Borrower shall immediately pay or cause to be paid to the Administrative Agent an amount equal to 100% of such Net Cash Proceeds; provided , however , that, upon any such receipt, as long as no Event of Default shall be continuing, any Group Member may make Permitted Reinvestments with such Net Cash Proceeds and the Borrower shall not be required to make or cause such payment to the extent such Net Cash Proceeds are intended to be used to make Permitted Reinvestments, so long as, on each Reinvestment Prepayment Date for such Net Cash Proceeds, the Borrower shall pay or cause to be paid to the Administrative Agent an amount equal to the Reinvestment Prepayment Amount applicable to such Reinvestment Prepayment Date and such Net Cash Proceeds.

(d) [Reserved].

(e) Application of Payments . Any payments made to the Administrative Agent pursuant to this Section 2.8 shall be applied to the Obligations in accordance with Section 2.12(b) .

Section 2.9 Interest . (a) Rate . All Loans and the outstanding amount of all other Obligations (other than pursuant to Secured Hedging Agreements) shall bear interest, in the case of Loans, on the unpaid principal amount thereof from the date such Loans are made and, in the case of such other Obligations, from the date such other Obligations are due and payable until, in all cases, paid in full, except as otherwise provided in clause (c)  below, as follows: (i) in the case of Base Rate Loans at a rate per annum equal to the sum of the Base Rate and the Applicable Margin, each as in effect from time to time, (ii) in the case of Eurodollar Rate Loans, at a rate per annum equal to the sum of the Eurodollar Rate and the Applicable Margin, each as in effect for the applicable Interest Period and (iii) in the case of other Obligations, at a rate per annum equal to the sum of the Base Rate and the Applicable Margin, each as in effect from time to time.

 

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(b) Payments .

(i) Interest accrued shall be payable in arrears (i) if accrued on the principal amount of any Loan, (A) at maturity (whether by acceleration or otherwise), and (B)(1) if such Loan is a Base Rate Loan, on the last day of each calendar quarter commencing on the first such day following the making of such Loan, (2) if such Loan is a Eurodollar Rate Loan, on the last day of each Interest Period applicable to such Loan and, if applicable, on each date during such Interest Period occurring every 3 months from the first day of such Interest Period and (ii) if accrued on any other Obligation, on demand from and after the time such Obligation is due and payable (whether by acceleration or otherwise).

(ii) [Reserved].

(iii) In addition to the interest payable pursuant to Section 2.9(b)(i) hereof on the Term Loan, Borrower shall pay to the Administrative Agent, for the ratable benefit of the Term Loan Lenders, in arrears on each applicable PIK Interest Payment Date, additional interest at the rate of two percent (2.00%) per annum based on the monthly aggregate principal balance of the Term Loan outstanding from time to time since the prior PIK Interest Payment Date (such additional interest is referred to herein as “ PIK Interest ”).

(iv) [Reserved].

(v) If requested by any Lender PIK Interest accruing hereunder that becomes due and payable on a PIK Interest Payment Date shall, within five (5) days of such request, be evidenced by a promissory note, substantially in the form of Exhibit 2.9(b)(v) (a “ PIK Note ”), duly executed and delivered by Borrower to such Term Loan Lender. The Borrower hereby irrevocably authorizes each Term Loan Lender to make (or cause to be made) appropriate notations as to the amount of such Term Loan Lender’s Pro Rata Share of PIK Interest and the amount of each payment or prepayment of PIK Interest and interest thereon on the reverse of, or on an attachment to, any such Term Loan Lender’s PIK Note, or to otherwise maintain such information. Such notations or information shall be presumed correct and binding on the Borrower absent manifest error; provided , however , that the failure of any Term Loan Lender to make any such notations or to maintain such information shall not limit or otherwise affect any Obligations of the Borrower or any other Group Member.

(vi) [Reserved].

(vii) All accrued PIK Interest that becomes due and payable on a PIK Interest Payment Date shall be deemed the extension of an additional loan pursuant to the terms of, and subject to, all Loan Documents (such accrued PIK Interest is referred to herein as a “ PIK Loan ”). The failure of the Borrower to issue to any Term Lender a PIK Note as provided

 

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in Section 2.9(b)(v) shall not alter or affect the payment obligations of the Borrower as to all accrued PIK Interest or the obligation of the Borrower to pay the amount due on such PIK Interest Payment Date under the terms applicable to a PIK Loan, and such accrued and unpaid amount shall in all events be deemed to be a PIK Loan hereunder notwithstanding any action or non-action of the Borrower. The entire unpaid balance of all PIK Loans shall be immediately due and payable in full in immediately available funds on the Term Loan Maturity Date. The amount of any PIK Loan shall not be included in the calculation of the amount of the Term Loan or the Term Loan Commitments.

(viii) Interest on each PIK Loan shall accrue at the Base Rate plus the Applicable Margin per annum or, at the election of Borrower and so long as no Default or Event of Default shall have occurred and be continuing, the Eurodollar Rate plus the Applicable Margin per annum based on the aggregate PIK Loan outstanding from time to time. Interest on each PIK Loan (as determined in the immediately preceding sentence) shall be due and payable in cash in arrears on each applicable PIK Interest Payment Date. In addition to the cash pay interest provided for in the immediately preceding sentence, each PIK Loan shall accrue additional interest (such additional interest is referred to herein as “ Additional PIK Interest ”) at the rate of two percent (2.00%) per annum based on the monthly aggregate principal balance of such PIK Loan outstanding from time to time since the prior PIK Interest Payment Date, which Additional PIK Interest shall be calculated as of each PIK Interest Payment Date and payable in arrears by adding such accrued interest to the outstanding principal of each applicable PIK Note. Unless prepaid earlier, all PIK Notes and all accrued and capitalized Additional PIK Interest thereon are due and payable in cash on the Term Loan Maturity Date.

(c) Default Interest . Notwithstanding the rates of interest specified in clause (a) or (b)  above or elsewhere in any Loan Document, effective immediately upon (A) the occurrence of any Event of Default under Section 9.1(a) or Section 9.1(e)(ii) or (B) the delivery of a notice by the Administrative Agent or the Required Lenders to the Borrower during the continuance of any other Event of Default and, in each case, for as long as such Event of Default shall be continuing, the principal balance of all Obligations (including any Obligation that bears interest by reference to the rate applicable to any other Obligation) (other than any PIK Interest or any Additional PIK Interest) shall bear interest at a rate that is 4% per annum in excess of the interest rate applicable to such Obligations from time to time, payable on demand or, in the absence of demand, on the date that would otherwise be applicable.

(d) Maximum Interest . In no event shall the interest charged with respect to the Loans, the Notes or any other Obligations of the Borrower under the Loan Documents exceed the maximum amount permitted under the laws of the jurisdiction whose law is specified as the governing law of this document pursuant to Section 11.14 or of any other applicable jurisdiction. For the purposes of making any such determination hereunder, the Loans hereunder shall be deemed a single loan in the amount of the Commitments. Notwithstanding anything to the contrary herein or elsewhere, if at any time the rate of interest payable for the account of any Lender hereunder or any other Loan Document (the “ Stated Rate ”) would exceed the highest rate of interest permitted under any applicable law to be charged by such Lender (the “ Maximum Lawful Rate ”), then for so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable for the account of such Lender shall be equal to the

 

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Maximum Lawful Rate; provided that if at any time thereafter the Stated Rate is less than the Maximum Lawful Rate, the Borrower shall, to the extent permitted by law, continue to pay interest for the account of such Lender at the Maximum Lawful Rate until such time as the total interest received by the Lender is equal to the total interest which such Lender would have received had the Stated Rate been (but for the operation of this provision) the interest rate payable. Thereafter, the interest rate payable for the account of such Lender shall be the Stated Rate unless and until the Stated Rate again would exceed the Maximum Lawful Rate, in which event this provision shall again apply. In no event shall the total interest received by any Lender exceed the amount which such Lender could lawfully have received had the interest been calculated for the full term hereof at the Maximum Lawful Rate with respect to such Lender. In computing interest payable with reference to the Maximum Lawful Rate applicable to any Lender, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which such calculation is made. If any Lender has received interest hereunder in excess of the Maximum Lawful Rate with respect to such Lender, such excess amount shall be applied to the reduction of the outstanding principal balance of its Loans or to other amounts (other than interest) payable hereunder, and if no such principal or other amounts are then outstanding, such excess or part thereof remaining shall be paid to the Borrower.

Section 2.10 Conversion and Continuation Options . (a) Option . The Borrower may elect (i) in the case of any Eurodollar Rate Loan, (A) to continue such Eurodollar Rate Loan or any portion thereof for an additional Interest Period on the last day of the Interest Period applicable thereto and (B) to convert such Eurodollar Rate Loan or any portion thereof into a Base Rate Loan at any time on any Business Day, subject to the payment of any breakage costs required by Section 2.16(a) , and (ii) in the case of Base Rate Loans, to convert such Base Rate Loans or any portion thereof into Eurodollar Rate Loans at any time on any Business Day upon 3 Business Days’ prior notice; provided , however , that, (x) for each Interest Period, the aggregate amount of Eurodollar Rate Loans having such Interest Period must be an integral multiple of $500,000 and (y) no conversion in whole or in part of Base Rate Loans to Eurodollar Rate Loans and no continuation in whole or in part of Eurodollar Rate Loans shall be permitted at any time (1) at which an Event of Default shall be continuing and the Administrative Agent or the Required Lenders shall have determined in their sole discretion not to permit such conversions or continuations, or (2) at which such continuation or conversion would be made during a suspension imposed by Section 2.15 .

(b) Procedure . Each such election shall be made by giving the Administrative Agent at least 3 Business Days’ prior notice in substantially the form of Exhibit F (a “ Notice of Conversion or Continuation ”) duly completed. The Administrative Agent shall promptly notify each Lender of its receipt of a Notice of Conversion or Continuation and of the options selected therein. If the Administrative Agent does not receive a timely Notice of Conversion or Continuation from the Borrower containing a permitted election to continue or convert any Eurodollar Rate Loan, then, upon the expiration of the applicable Interest Period, such Loan shall be automatically converted to a Base Rate Loan. Each partial conversion or continuation shall be allocated ratably among the Lenders in the applicable Facility in accordance with their Pro Rata Share.

 

AMENDED AND RESTATED CREDIT AGREEMENT

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Section 2.11 Fees . (a) The Borrower shall pay to the Administrative Agent and its Related Persons its reasonable and customary fees and expenses in connection with any payments made pursuant to Section 2.16(a) ( Breakage Costs ) and has agreed to pay the additional fees described in the Fee Letter.

(b) Closing Fee . To induce the Lenders to enter into this Agreement, Borrower shall pay on the Closing Date to Administrative Agent, for the ratable benefit of such Lenders that have signed this Agreement on or before March 12, 2009, a Closing Fee (the “ Closing Fee ”) equal to 1.00% of each such Lender’s Term Loan.

Section 2.12 Application of