EX-10.1 CREDIT AGREEMENT



 






Exhibit 10.1




 




CREDIT AGREEMENT



Dated as of January 19, 2006



among



MATRIA HEALTHCARE, INC.,

as the Borrower,



THE SUBSIDIARIES OF THE BORROWER,

as the Guarantors,



BANK OF AMERICA, N.A.,

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



and



THE OTHER LENDERS PARTY HERETO



BANC OF AMERICA SECURITIES LLC,

as Sole Lead Arranger and Sole Book Manager



 





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	 
	 	1.01	 	Defined Terms	 	 	1	 
	 
	 	1.02	 	Other Interpretive Provisions	 	 	25	 
	 
	 	1.03	 	Accounting Terms	 	 	26	 
	 
	 	1.04	 	Rounding	 	 	26	 
	 
	 	1.05	 	Times of Day	 	 	26	 
	 
	 	1.06	 	Letter of Credit Amounts	 	 	26	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS	 	 	27	 
	 
	 	2.01	 	Revolving Loans and Term Loans	 	 	27	 
	 
	 	2.02	 	Borrowings, Conversions and Continuations of Loans	 	 	27	 
	 
	 	2.03	 	Letters of Credit	 	 	28	 
	 
	 	2.04	 	Swing Line Loans	 	 	36	 
	 
	 	2.05	 	Prepayments	 	 	38	 
	 
	 	2.06	 	Termination or Reduction of Aggregate Revolving Commitments	 	 	40	 
	 
	 	2.07	 	Repayment of Loans	 	 	41	 
	 
	 	2.08	 	Interest	 	 	42	 
	 
	 	2.09	 	Fees	 	 	42	 
	 
	 	2.10	 	Computation of Interest and Fees	 	 	43	 
	 
	 	2.11	 	Evidence of Debt	 	 	43	 
	 
	 	2.12	 	Payments Generally; Administrative Agent's Clawback	 	 	43	 
	 
	 	2.13	 	Sharing of Payments by Lenders	 	 	45	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	46	 
	 
	 	3.01	 	Taxes	 	 	46	 
	 
	 	3.02	 	Illegality	 	 	47	 
	 
	 	3.03	 	Inability to Determine Rates	 	 	48	 
	 
	 	3.04	 	Increased Costs	 	 	48	 
	 
	 	3.05	 	Compensation for Losses	 	 	49	 
	 
	 	3.06	 	Mitigation Obligations; Replacement of Lenders	 	 	50	 
	 
	 	3.07	 	Survival	 	 	51	 
	ARTICLE IV GUARANTY	 	 	51	 
	 
	 	4.01	 	The Guaranty	 	 	51	 
	 
	 	4.02	 	Obligations Unconditional	 	 	51	 
	 
	 	4.03	 	Reinstatement	 	 	52	 
	 
	 	4.04	 	Certain Additional Waivers	 	 	52	 
	 
	 	4.05	 	Remedies	 	 	52	 
	 
	 	4.06	 	Rights of Contribution	 	 	53	 
	 
	 	4.07	 	Guarantee of Payment; Continuing Guarantee	 	 	53	 
	ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	 	 	53	 
	 
	 	5.01	 	Conditions of Initial Credit Extension	 	 	53	 
	 
	 	5.02	 	Conditions to all Credit Extensions	 	 	57	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES	 	 	57	 
	 
	 	6.01	 	Existence, Qualification and Power	 	 	57	 
	 
	 	6.02	 	Authorization; No Contravention	 	 	57	 






 









 






	 	 	 	 	 	 	 	 	 
	 
	 	6.03	 	Governmental Authorization; Other Consents	 	 	58	 
	 
	 	6.04	 	Binding Effect	 	 	58	 
	 
	 	6.05	 	Financial Statements; No Material Adverse Effect; No Internal Control Event	 	 	58	 
	 
	 	6.06	 	Litigation	 	 	59	 
	 
	 	6.07	 	No Default	 	 	59	 
	 
	 	6.08	 	Ownership of Property; Liens	 	 	59	 
	 
	 	6.09	 	Environmental Compliance	 	 	59	 
	 
	 	6.10	 	Insurance	 	 	60	 
	 
	 	6.11	 	Taxes	 	 	60	 
	 
	 	6.12	 	ERISA Compliance	 	 	61	 
	 
	 	6.13	 	Subsidiaries	 	 	61	 
	 
	 	6.14	 	Margin Regulations; Investment Company Act; Public Utility Holding Company Act	 	 	61	 
	 
	 	6.15	 	Disclosure	 	 	62	 
	 
	 	6.16	 	Compliance with Laws	 	 	62	 
	 
	 	6.17	 	Intellectual Property; Licenses, Etc.	 	 	62	 
	 
	 	6.18	 	Solvency	 	 	62	 
	 
	 	6.19	 	Perfection of Security Interests in the Collateral	 	 	63	 
	 
	 	6.20	 	Business Locations	 	 	63	 
	 
	 	6.21	 	Labor Matters	 	 	63	 
	ARTICLE VII AFFIRMATIVE COVENANTS	 	 	63	 
	 
	 	7.01	 	Financial Statements	 	 	63	 
	 
	 	7.02	 	Certificates; Other Information	 	 	64	 
	 
	 	7.03	 	Notices	 	 	66	 
	 
	 	7.04	 	Payment of Obligations	 	 	66	 
	 
	 	7.05	 	Preservation of Existence, Etc.	 	 	67	 
	 
	 	7.06	 	Maintenance of Properties	 	 	67	 
	 
	 	7.07	 	Maintenance of Insurance	 	 	67	 
	 
	 	7.08	 	Compliance with Laws	 	 	67	 
	 
	 	7.09	 	Books and Records	 	 	68	 
	 
	 	7.10	 	Inspection Rights	 	 	68	 
	 
	 	7.11	 	Use of Proceeds	 	 	68	 
	 
	 	7.12	 	Additional Subsidiaries	 	 	68	 
	 
	 	7.13	 	ERISA Compliance	 	 	69	 
	 
	 	7.14	 	Pledged Assets	 	 	69	 
	 
	 	7.15	 	Interest Rate Protection Agreements	 	 	70	 
	 
	 	7.16	 	Post-Closing Deliverables	 	 	70	 
	ARTICLE VIII NEGATIVE COVENANTS	 	 	71	 
	 
	 	8.01	 	Liens	 	 	71	 
	 
	 	8.02	 	Investments	 	 	72	 
	 
	 	8.03	 	Indebtedness	 	 	73	 
	 
	 	8.04	 	Fundamental Changes	 	 	74	 
	 
	 	8.05	 	Dispositions	 	 	74	 
	 
	 	8.06	 	Restricted Payments	 	 	75	 
	 
	 	8.07	 	Change in Nature of Business	 	 	75	 
	 
	 	8.08	 	Transactions with Affiliates and Insiders	 	 	75	 
	 
	 	8.09	 	Burdensome Agreements	 	 	75	 






 









 






	 	 	 	 	 	 	 	 	 
	 
	 	8.10	 	Use of Proceeds	 	 	76	 
	 
	 	8.11	 	Financial Covenants	 	 	76	 
	 
	 	8.12	 	Prepayment of Second Lien Term Loan	 	 	76	 
	 
	 	8.13	 	Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity	 	 	76	 
	 
	 	8.14	 	Ownership of Subsidiaries	 	 	77	 
	 
	 	8.15	 	Inactive Subsidiaries	 	 	77	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES	 	 	77	 
	 
	 	9.01	 	Events of Default	 	 	77	 
	 
	 	9.02	 	Remedies Upon Event of Default	 	 	79	 
	 
	 	9.03	 	Application of Funds	 	 	80	 
	ARTICLE X ADMINISTRATIVE AGENT	 	 	81	 
	 
	 	10.01	 	Appointment and Authority	 	 	81	 
	 
	 	10.02	 	Rights as a Lender	 	 	81	 
	 
	 	10.03	 	Exculpatory Provisions	 	 	82	 
	 
	 	10.04	 	Reliance by Administrative Agent	 	 	83	 
	 
	 	10.05	 	Delegation of Duties	 	 	83	 
	 
	 	10.06	 	Resignation of Administrative Agent	 	 	83	 
	 
	 	10.07	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	84	 
	 
	 	10.08	 	No Other Duties; Etc.	 	 	84	 
	 
	 	10.09	 	Administrative Agent May File Proofs of Claim	 	 	84	 
	 
	 	10.10	 	Collateral and Guaranty Matters	 	 	85	 
	ARTICLE XI MISCELLANEOUS	 	 	86	 
	 
	 	11.01	 	Amendments, Etc.	 	 	86	 
	 
	 	11.02	 	Notices and Other Communications; Facsimile Copies	 	 	87	 
	 
	 	11.03	 	No Waiver; Cumulative Remedies	 	 	89	 
	 
	 	11.04	 	Expenses; Indemnity; and Damage Waiver	 	 	89	 
	 
	 	11.05	 	Payments Set Aside	 	 	91	 
	 
	 	11.06	 	Successors and Assigns	 	 	91	 
	 
	 	11.07	 	Treatment of Certain Information; Confidentiality	 	 	94	 
	 
	 	11.08	 	Set-off	 	 	95	 
	 
	 	11.09	 	Interest Rate Limitation	 	 	95	 
	 
	 	11.10	 	Counterparts; Integration; Effectiveness	 	 	95	 
	 
	 	11.11	 	Survival of Representations and Warranties	 	 	96	 
	 
	 	11.12	 	Severability	 	 	96	 
	 
	 	11.13	 	Replacement of Lenders	 	 	96	 
	 
	 	11.14	 	Governing Law; Jurisdiction; Etc.	 	 	97	 
	 
	 	11.15	 	Waiver of Right to Trial by Jury	 	 	98	 
	 
	 	11.16	 	USA PATRIOT Act Notice	 	 	98	 






 









 






SCHEDULES




	 	 	 	 	 
	 
	 	1.01(a)	 	Consolidated EBITDA
	 
	 	1.01(b)	 	Existing Letter of Credit
	 
	 	1.01(c)	 	Inactive Subsidiaries
	 
	 	2.01	 	Commitments and Applicable Percentages
	 
	 	6.10	 	Insurance
	 
	 	6.13	 	Subsidiaries
	 
	 	6.17	 	IP Rights
	 
	 	6.20(a)	 	Locations of Real Property
	 
	 	6.20(b)	 	Locations of Tangible Personal Property
	 
	 	6.20(c)	 	Location of Chief Executive Office, Etc.
	 
	 	6.20(d)	 	Changes in Legal Name, State of Formation and Structure
	 
	 	7.16(a)	 	Lien Waivers
	 
	 	8.01	 	Liens Existing on the Closing Date
	 
	 	8.02	 	Investments Existing on the Closing Date
	 
	 	8.03	 	Indebtedness Existing on the Closing Date
	 
	 	8.14	 	Non Wholly Owned Subsidiaries
	 
	 	11.02	 	Certain Addresses for Notices
	 
	 	11.06	 	Processing and Recordation Fees






EXHIBITS




	 	 	 	 	 
	 
	 	2.02	 	Form of Loan Notice
	 
	 	2.10(a)(i)	 	Form of Revolving Note
	 
	 	2.10(a)(ii)	 	Form of Swing Line Note
	 
	 	2.10(a)(iii)	 	Form of Tranche B Term Loan Note
	 
	 	2.10(a)(iv)	 	Form of Tranche C Term Loan Note
	 
	 	7.02	 	Form of Compliance Certificate
	 
	 	7.12	 	Form of Joinder Agreement
	 
	 	11.06	 	Form of Assignment and Assumption






 









 






CREDIT AGREEMENT




     This CREDIT AGREEMENT is entered into as of January 19, 2006 among MATRIA HEALTHCARE, INC., a
Delaware corporation (the “Borrower”), the Guarantors (defined herein), the Lenders
(defined herein) and BANK OF AMERICA, N.A., as Administrative Agent, Collateral Agent, Swing Line
Lender and L/C Issuer.



     The Borrower has requested that the Lenders provide $400,000,000 in credit facilities for the
purposes set forth herein, and the Lenders are willing to do so on the terms and conditions set
forth herein.



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



ARTICLE I



DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms.



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



     “Acquired Company” means CorSolutions Medical, Inc., a Delaware corporation.



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



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



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



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



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



     “Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders.
The amount of the Aggregate Revolving Commitments in effect on the Closing Date is THIRTY MILLION
DOLLARS ($30,000,000).



     “Agreement” means this Credit Agreement.



 









 





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



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



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Consolidated	 	 	 	 	 	 	 	 
	Pricing	 	Leverage	 	Commitment	 	Letters of	 	Eurodollar Rate	 	Base Rate
	 Tier	 	Ratio	 	Fee	 	Credit	 	Loans	 	Loans
	1
	 	3 3.5:1.0	 	 	0.50	%	 	 	2.50	%	 	 	2.50	%	 	 	1.50	%
	2
	 	3 2.5:1.0 but < 3.5:1.0	 	 	0.50	%	 	 	2.25	%	 	 	2.25	%	 	 	1.25	%
	3
	 	< 2.5:1.0	 	 	0.50	%	 	 	2.00	%	 	 	2.00	%	 	 	1.00	%





and (b) with respect to the Tranche B Term Loan, a percentage per annum equal to (i) for Eurodollar
Rate Loans, 2.50% and (ii) for Base Rate Loans, 1.50% and (c) with respect to the Tranche C Term
Loan, a percentage per annum equal to (i) for Eurodollar Rate Loans, 2.50% and (ii) for Base Rate
Loans, 1.50%. Any increase or decrease in the Applicable Rate with respect to Revolving Loans,
Swing Line Loans, Letters of Credit and the Commitment Fee resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to Section 7.02(a);
provided, however, that if a Compliance Certificate is not delivered when due
(after giving effect to any applicable grace period) in accordance with such Section, then Pricing
Tier 1 shall apply as of the first Business Day after the date on which such Compliance Certificate
was required to have been delivered and shall continue to apply until the first Business Day
immediately following the date a Compliance Certificate is delivered in accordance with Section
7.02(a), whereupon the Applicable Rate with respect to Revolving Loans, Swing Line Loans,
Letters of Credit and the Commitment Fee shall be adjusted based upon the calculation of the
Consolidated Leverage Ratio contained in such Compliance Certificate. The Applicable Rate with
respect to Revolving Loans, Swing Line Loans, Letters of Credit and the Commitment Fee in effect
from the Closing Date through the first Business Day immediately following the date a Compliance
Certificate is required to be delivered pursuant to Section 7.02(a) for the fiscal quarter
ending March 31, 2006 shall be determined based upon Pricing Tier 1.




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



2









 





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



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



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



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended December 31, 2004, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes thereto.



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



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



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



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



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



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



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



     “Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and,
in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders
pursuant to Section 2.01.



3









 





     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.



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



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



     “Captive Insurance Subsidiary” means MHI Insurance Ltd., a Vermont corporation.



     “Cash Collateralize” has the meaning specified in Section 2.03(g).



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



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



     “Change of Control” means, with respect to the Borrower, an event or series of events
by which:




     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed



4









 






to have “beneficial ownership” of all Equity Interests that such person or group has
the right to acquire (such right, an “option right”), whether such right is
exercisable immediately or only after the passage of time), directly or indirectly, of
thirty five (35%) of the Equity Interests of the Borrower entitled to vote for members of
the board of directors or equivalent governing body of the Borrower on a fully diluted basis
(and taking into account all such securities that such person or group has the right to
acquire pursuant to any option right);




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




     (c) the occurrence of a “Change of Control” (or any comparable term) under, and as
defined in, the Second Lien Term Loan Agreement.



     “Closing Date” means the date hereof.



     “Collateral” means a collective reference to all real and personal property with
respect to which Liens in favor of the Collateral Agent, for the benefit of the Lenders, or Liens
in favor of the Control Agent, for the benefit of the Collateral Agent (on behalf of the Lenders)
are purported to be granted pursuant to and in accordance with the terms of the Collateral
Documents.



     “Collateral Agent” means Bank of America in its capacity as collateral agent under any
of the Collateral Documents or any successor collateral agent.



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



     “Commitment” means, as to each Lender, the Revolving Commitment of such Lender, the
Tranche B Term Loan Commitment of such Lender and/or the Tranche C Term Loan Commitment of such
Lender.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
7.02.



     “Consolidated Adjusted EBITDA” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (i) Consolidated EBITDA for
such period minus (ii) Consolidated Capital Expenditures for such period minus
(iii) Consolidated Cash Taxes for such period, all as determined in accordance with GAAP.



5









 





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



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



     “Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a)
the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated
Interest Charges for such period, (ii) the provision for federal, state, local and foreign income
taxes payable by the Borrower and its Subsidiaries for such period, (iii) the amount of
depreciation and amortization expense for such period, (iv) non-cash stock-based compensation
expenses for such period, (v) the one-time, non recurring cash charges during such period related
to the two qui tam claims filed against the Borrower and its former Subsidiary, Diabetes Self Care,
Inc., in an aggregate amount not to exceed $10,000,000 and (vi) the one-time, non-recurring
non-cash charges during such period related to write off of certain accounts receivable of Diabetes
Self Care, Inc. in an aggregate amount not to exceed $2,000,000 plus (b) for the fiscal
quarter periods ending December 31, 2005 and March 31, 2006 only, the amount of costs that would
have been saved during each such fiscal quarter period by the Borrower and its Subsidiaries if the
Merger had occurred on the first day of each such fiscal quarter period due to synergies with the
Acquired Company in an aggregate amount not to exceed $4,725,000 for each such period, all as
determined in accordance with GAAP; provided, that Consolidated EBITDA for the fiscal
periods ending June 30, 2005 and September 30, 2005 shall be deemed to equal the amounts for such
fiscal periods set forth on Schedule 1.01(a) opposite each such period.



     “Consolidated First Lien Leverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Funded Indebtedness (excluding Funded Indebtedness outstanding under the
Second Lien Loan Documents) as of such date to (b) Consolidated EBITDA for the period of the four
fiscal quarters most recently ended for which the Borrower has delivered financial statements
pursuant to Section 7.01(a) or (b).



     “Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Adjusted EBITDA for the period of the four fiscal quarters most recently
ended for which the Borrower has delivered financial statements pursuant to Section 7.01(a)
or (b) to (b) Consolidated Fixed Charges for the period of the four fiscal quarters most
recently ended for which the Borrower has delivered financial statements pursuant to Section
7.01(a) or (b).



     “Consolidated Fixed Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (i) the cash portion of
Consolidated Interest Charges for such period plus (ii) Consolidated Scheduled Funded Debt
Payments for such period, all as determined in accordance with GAAP.



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



     “Consolidated Interest Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (i) all interest, premium
payments, debt discount, fees, charges and related expenses in connection with borrowed money
(including capitalized interest) or in



6









 




connection with the deferred purchase price of assets, in each case to the extent treated as
interest in accordance with GAAP, plus (ii) the portion of rent expense with respect to
such period under Capital Leases that is treated as interest in accordance with GAAP plus
(iii) the implied interest component of Synthetic Leases with respect to such period;
provided, however, that (a) Consolidated Interest Charges for the four fiscal
quarter period ending March 31, 2006 shall be calculated as Consolidated Interest Charges for the
fiscal quarter period ending March 31, 2006 multiplied by four, (b) Consolidated Interest Charges
for the four fiscal quarter period June 30, 2006 shall be calculated as Consolidated Interest
Charges for the two fiscal quarter period ending June 30, 2006 multiplied by two and (c)
Consolidated Interest Charges for the four fiscal quarter period September 30, 2006 shall be
calculated as Consolidated Interest Charges for the three fiscal quarter period ending September
30, 2006 multiplied by one and one third.




     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the
four fiscal quarters most recently ended for which the Borrower has delivered financial statements
pursuant to Section 7.01(a) or (b).



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



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



     “Consolidated Working Capital” means, at any time, the excess of (i) current assets
(excluding cash and Cash Equivalents) of the Borrower and its Subsidiaries on a consolidated basis
at such time over (ii) current liabilities (excluding any outstanding Revolving Loans and current
maturities of Indebtedness) of the Borrower and its Subsidiaries on a consolidated basis at such
time, all as determined in accordance with GAAP.



     “Contingent Purchase Price Obligations” means, with respect to an Acquisition, all
obligations of the Borrower or any Subsidiary to make earn out or similar deferred or contingent
purchase price payments pursuant to the documentation relating to such Acquisition, not including
any amounts payable in any form of Equity Interest. The amount of any Contingent Purchase Price
Obligation shall be deemed to be the aggregate amount of all earn out payments of the Borrower and
its Subsidiaries potentially due in connection with any Acquisition as set forth in the applicable
definitive documentation with respect to such Acquisition.



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



     “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto. Without limiting the generality of the foregoing, a Person
shall be deemed to be Controlled by another Person if



7









 




such other Person possesses, directly or indirectly, power to vote 10% or more of the
securities having ordinary voting power for the election of directors, managing general partners or
the equivalent.




     “Control Agent” has the meaning specified in the Intercreditor Agreement.



     “Cor Credit Agreement” means that certain Credit Agreement dated as of November 5,
2004 by and among the Acquired Company, CorSolutions, Inc., Health and Productivity Corporation of
America, Inc., the other loan parties thereto, the lenders party thereto and JPMorgan Chase Bank,
N.A. (formerly Bank One, NA), as administrative agent, as heretofore amended.



     “Cor Audited Financial Statements” means the audited consolidated balance sheet of the
Acquired Company and its Subsidiaries for the fiscal year ended December 31, 2004, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Acquired Company and its Subsidiaries, including the notes thereto.



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



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



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



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



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



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Loans, participations in L/C Obligations or participations in Swing Line Loans required to be
funded by it hereunder within one Business Day of the date required to be funded by it hereunder,
(b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other
amount required to be paid by it hereunder within one Business Day of the date when due, unless the
subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by the Borrower or any
Subsidiary (including the Equity Interests of any Subsidiary), including any (a) sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith and (b) any “Asset Sale” or “Disposition” (or any comparable
term) under, and as defined in, the Second Lien Term Loan Agreement, but excluding (i) the sale,
lease, license, transfer or other disposition of inventory in the ordinary course of business; (ii)
the sale, lease, license, transfer or other disposition of machinery and



8









 




equipment that is obsolete or no longer used or useful in the conduct of business of the
Borrower and its Subsidiaries; (iii) any sale, lease, license, transfer or other disposition of
property to the Borrower or any Subsidiary; provided, that (A) if the transferor of such
property is a Loan Party the transferee thereof must be a Loan Party or (B) to the extent such
transaction constitutes an Investment, such transaction is permitted under Section 8.02;
(iv) any Involuntary Disposition; (v) any license, sublicense, lease or sublease granted to others
not interfering in any material respect with the business of the Borrower and its Subsidiaries; and
(vi) the sale or disposition of Cash Equivalents for fair market value.




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



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



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



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



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



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



     “Equity Issuance” means any issuance by the Borrower or any Subsidiary to any Person
of its Equity Interests, other than (a) any issuance of its Equity Interests pursuant to the
exercise of options or warrants, (b) any issuance of its Equity Interests pursuant to the
conversion of any debt securities to equity or the conversion of any class equity securities to any
other class of equity securities, (c) any issuance of options or



9









 




warrants relating to its Equity Interests, (d) any issuance by the Borrower of its Equity
Interests as consideration for a Permitted Acquisition, and (e) any issuance by the Borrower of its
Equity Interests pursuant to any employee stock ownership plan. The term “Equity Issuance” shall
not be deemed to include any Disposition.




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



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



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension 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) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.



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



     “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the
Eurodollar Rate.



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



     “Excess Cash Flow” means, for any period for the Borrower and its Subsidiaries, an
amount equal to the sum of (a) Consolidated EBITDA minus (b) Consolidated Capital
Expenditures paid in cash minus (c) the cash portion of Consolidated Interest Charges
minus (d) cash taxes paid minus (e) Consolidated Scheduled Funded Debt Payments
minus (f) the amount of any voluntary prepayments made on the Tranche B Term Loan and the
Tranche C Term Loan minus (g) the amount of Contingent Purchase Price Obligations
minus (h) increases in Consolidated Working Capital plus (i) decreases in
Consolidated Working Capital, in each case on a consolidated basis determined in accordance with
GAAP.



10









 





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



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section
11.13), any withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is
attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in
Law) to comply with Section 3.01(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment),
to receive additional amounts from the Borrower with respect to such withholding tax pursuant to
Section 3.01(a).



     “Existing Credit Agreement” means that certain Loan and Security Agreement between the
Borrower, certain of its Subsidiaries and HFG HealthCo-4 LLC, as amended from time to time.



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



     “Extraordinary Receipt” means any cash received by or paid to or for the account of
any Person not in the ordinary course of business, including, without limitation, tax refunds,
pension plan reversions, proceeds of insurance (including, without limitation, any key man life
insurance but excluding proceeds of business interruption insurance to the extent such proceeds
constitute compensation for lost earnings), any loss of, damage to or destruction or, or any
condemnation or other taking for public use of, any property of any Loan Party or any of its
Subsidiaries (and payments in lieu thereof), indemnity payments and any purchase price adjustment
received in connection with any purchase agreement.



     “Facet Business” means the business of Facet Technologies, LLC, a Georgia limited
liability company, and its wholly owned subsidiary, Facet Technologies Limited, a private limited
company incorporated in the United Kingdom, including without limitation the design, development,
assembly and distribution of products (including microsampling devices for blood glucose
monitoring) for the medical device and drug delivery industry.



11









 





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



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by the Administrative
Agent.



     “Fee Letter” means the letter agreement dated December 14, 2005 among the Borrower,
Bank of America and BAS.



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



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



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



     “Fund” means any Person (other than a natural person) that is (or, at all times that
such Fund is a Lender hereunder, 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.



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




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




     (b) all purchase money Indebtedness;




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




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




     (e) all obligations in respect of the deferred purchase price of property or services
(including without limitation the amount of Contingent Purchase Price Obligations recognized
as a liability on the balance sheet of the Borrower and its Subsidiaries in accordance with
GAAP but excluding (i) any such obligations to be paid in any form of Equity Interest and
(ii) trade accounts payable in the ordinary course of business and, in each case, not past
due for more than 90 days after the date on which such trade account payable was created);



12









 






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




     (g) the Attributable Indebtedness of Securitization Transactions;




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




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




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




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




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



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



     “German Subsidiary” means the collective reference to Matria Holding GmbH KG, a
company organized under the laws of Germany and its two Subsidiaries, eu-Medical GmbH and Dia Real
GmbH & Co. KG.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.



     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or



13









 




level of income or cash flow of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any
other manner the obligee in respect of such Indebtedness or other obligation of the payment or
performance thereof or to protect such obligee against loss in respect thereof (in whole or in
part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person
(or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such
Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as
a verb has a corresponding meaning.




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



     “Guarantors” means each Domestic Subsidiary of the Borrower identified as a
“Guarantor” on the signature pages hereto and each other Person that joins as a Guarantor pursuant
to Section 7.12, together with their successors and permitted assigns. For the avoidance
of doubt, it is understood and agreed that the Captive Insurance Subsidiary and the Inactive
Subsidiaries shall not be Guarantors hereunder.



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



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



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



     “Inactive Subsidiaries” means those Subsidiaries of the Borrower identified on
Schedule 1.01(c) and “Inactive Subsidiary” means any one of them.



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




     (a) all Funded Indebtedness;




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




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




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



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



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



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     “Information” has the meaning specified in Section 11.07.



     “Intercreditor Agreement” means the Intercreditor Agreement, dated as of the Closing
Date, among the Administrative Agent, the Second Lien Agent, the Control Agent and the Loan
Parties, as amended in accordance with the terms thereof and hereof.



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



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




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




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




     (iii) no Interest Period shall extend beyond the Maturity Date.



     “Interim Financial Statements” unaudited consolidated and consolidating financial
statements of the Borrower and its Subsidiaries for the fiscal quarter ending September 30, 2005,
including balance sheets and statements of income or operations, shareholders’ equity and cash
flows.



     “Internal Control Event” means a material weakness in, or fraud that involves
management or other employees who have a significant role in, the Borrower’s internal controls over
financial reporting, in each case as described in the Securities Laws.



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



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



15









 





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



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



     “IRS” means the United States Internal Revenue Service.



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



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



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



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



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



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



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



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



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



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



16









 





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



     “Letter of Credit” means (a) any standby letter of credit issued hereunder and (b) the
Existing Letter of Credit.



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



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



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



     “Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate
Revolving Commitments and (b) $10,000,000. The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Revolving Commitments.



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



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



     “Loan Documents” means this Agreement, each Note, each Issuer Document, each Joinder
Agreement, the Intercreditor Agreement, the Fee Letter and the Collateral Documents.



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



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



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



     “Maturity Date” means (a) as to the Revolving Loans, Swing Line Loans and Letters of
Credit (and the related L/C Obligations), January 19, 2011, (b) as to the Tranche B Term Loan,
January 19, 2012 and (c) as to the Tranche C Term Loan, January 19, 2007.



17









 





     “Merger” means the merger of the Merger Subsidiary with and into the Acquired Company
pursuant to and in accordance with the terms of the Merger Documents.



     “Merger Agreement” means that certain Agreement and Plan of Merger dated as of
December 14, 2005 by and among the Acquired Company, the Borrower and the Merger Subsidiary.



     “Merger Documents” means the Merger Agreement and such other agreements, instruments
and documents relating to the Merger.



     “Merger Subsidiary” means Coral Acquisition Corp., a Delaware corporation.



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



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



     “Mortgages” means the mortgages, deeds of trust or deeds to secure debt that purport
to grant to the Collateral Agent a security interest in the fee interest and/or leasehold interests
of any Loan Party in each real property (other than Excluded Property) acquired or leased by a Loan
Party subsequent to the Closing Date.



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



     “Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by
the Borrower or any Subsidiary in respect of any Disposition, Equity Issuance, Debt Issuance or
Involuntary Disposition, net of (a) direct costs incurred in connection therewith (including,
without limitation, legal, accounting and investment banking fees, and sales commissions), (b)
taxes paid or payable as a result thereof and (c) in the case of any Disposition, the amount
necessary to retire any Indebtedness secured by a Permitted Lien (ranking senior to any Lien of the
Collateral Agent) on the related Property; it being understood that “Net Cash Proceeds” shall
include, without limitation, any cash or Cash Equivalents received upon the sale or other
disposition of any non-cash consideration received by the Borrower or any Subsidiary in any
Disposition, Equity Issuance, Debt Issuance or Involuntary Disposition.



     “Note” or “Notes” means the Revolving Notes, the Swing Line Note, the Tranche
B Term Loan Notes and/or the Tranche C Term Loan Notes, individually or collectively, as
appropriate.



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



18









 





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



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



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



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



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



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



     “Permitted Acquisitions” means Investments consisting of an Acquisition by a Loan
Party, provided that (i) the property acquired (or the property of the Person acquired) in
such Acquisition is used or useful in the same or a similar line of business as the Borrower and
its Subsidiaries were engaged in on the Closing Date (or any reasonable extensions or expansions
thereof), (ii) the Collateral Agent and the Control Agent, as applicable, shall have received all
items in respect of the Equity Interests or property acquired in such Acquisition required to be
delivered by the terms of Section 7.12 and/or Section 7.14, (iii) in the case of an
Acquisition of the Equity Interests of another Person, the board of directors (or other comparable
governing body) of such other Person shall have duly approved such Acquisition, (iv) at least five
(5) days prior to date of the closing of any such Acquisition, the Borrower shall have delivered to
the Administrative Agent a pro forma compliance certificate demonstrating that, upon giving effect
to such Acquisition on a Pro Forma Basis, (a) the Consolidated Leverage Ratio is at least 0.50 less
than the ratio required to be maintained by Section 8.11(a) and (b) that the Loan Parties
are in compliance with Section 8.11, (v) the representations and warranties made by the
Loan Parties in each Loan Document shall be true and correct in all material respects at and as if
made as of the date of such Acquisition (after giving effect thereto) except to the extent such
representations and warranties expressly relate to an earlier date, (vi) if such transaction
involves the purchase of an interest in a partnership between the Borrower (or a Subsidiary) as a
general partner and entities unaffiliated with the Borrower or such Subsidiary as the other
partners, such transaction shall be effected by having such equity interest acquired by a corporate
holding company directly or indirectly wholly-owned by



19









 




the Borrower newly formed for the sole purpose of effecting such transaction and (vii) the
aggregate consideration (including cash and non-cash consideration, any assumption of Indebtedness
and Contingent Purchase Price Obligations) paid by the Borrower or any Subsidiary for all such
Acquisitions occurring during the fiscal year ending December 31, 2006 shall not exceed
$10,000,000.




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



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



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



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412
of the Internal Revenue Code or Title IV of ERISA, any ERISA Affiliate.



     “Platform” has the meaning specified in Section 7.02.



     “Pledge Agreement” means the Pledge Agreement (First Lien) dated as of the Closing
Date executed by each of the Loan Parties, the Collateral Agent and the Control Agent for the
benefit of the Collateral Agent (on behalf of the Lenders).



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



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



     “Registered Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Borrower as prescribed by the Securities Laws.



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



20









 





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



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



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



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, chief operating officer, vice president-administration, vice president-legal and general
counsel or vice president-financial planning and budgeting of a Loan Party. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to
have been authorized by all necessary corporate, partnership and/or other action on the part of
such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.



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



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



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



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



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



     “Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.



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



     “Second Lien Agent” means Bank of America, N.A., in its capacity as administrative
agent under any of the Second Lien Loan Documents, or any successor or assignee thereof in such
capacity.



21









 





     “Second Lien Collateral Agent” means Bank of America, N.A., in its capacity as
collateral agent under any of the Second Lien Loan Documents, or any successor or assignee thereof
in such capacity.



     “Second Lien Collateral Documents” means the Second Lien Security Agreement, the
Second Lien Pledge Agreement and each of the other agreements or documents that creates or purports
to create a Lien in favor of the Second Lien Agent for the benefit of the Second Lien Lenders.



     “Second Lien Lender” means each lender from time to time party to the Second Lien Term
Loan Agreement.



     “Second Lien Loan Documents” means the Second Lien Term Loan Agreement, each
promissory note related thereto, the Intercreditor Agreement and the Second Lien Collateral
Documents.



     “Second Lien Pledge Agreement” means the Pledge Agreement (Second Lien) dated as of
the Closing Date, among the Borrower, the other Loan Parties, the Second Lien Collateral Agent and
the Control Agent for the Second Lien Collateral Agent (on behalf of the Second Lien Lenders).



     “Second Lien Security Agreement” means the Security Agreement (Second Lien) dated as
of the Closing Date, among the Borrower, the other Loan Parties, the Second Lien Collateral Agent
and the Control Agent for the Second Lien Collateral Agent (on behalf of the Second Lien Lenders).



     “Second Lien Term Loan” means the terms loans advanced by the Second Lien Lenders
pursuant to the Second Lien Term Loan Agreement.



     “Second Lien Term Loan Agreement” means the Term Loan Agreement dated as of the
Closing Date, among the Borrower, the Guarantors, the lenders from time to time party thereto and
Bank of America, N.A., in its capacity as the Second Lien Agent and the Second Lien Collateral
Agent, as amended or modified from time to time in accordance with the terms thereof and hereof.



     “Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the Public Company Accounting
Oversight Board, as each of the foregoing may be amended and in effect on any applicable date
hereunder.



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



     “Security Agreement” means the Security Agreement (First Lien) dated as of the Closing
Date executed by each of the Loan Parties, the Collateral Agent and the Control Agent for the
benefit of the Collateral Agent (on behalf of the Lenders).



     “Senior Notes” means those 11% senior notes of the Borrower due 2008 issued pursuant
to that certain Indenture dated as of July 9, 2001 among the Borrower, the guarantors named therein
and Wells Fargo Bank Minnesota, National Association, as trustee, as amended or modified from time
to time.



     “Solvent” or “Solvency” means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the ordinary course of business, (b) such
Person does not intend to, and does not believe that it



22









 




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




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



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



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



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



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



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



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



23









 





     “Swing Line Sublimit” means an amount equal to the lesser of (a) $5,000,000 and (b)
the Aggregate Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to,
the Aggregate Revolving Commitments.



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



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



     “Term Loans” means the collective reference to the Tranche B Term Loan and the Tranche
C Term Loan, and “Term Loan” means any one of them.



     “Threshold Amount” means $5,000,000.



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



     “Tranche B Term Loan” has the meaning specified in Section 2.01(b).



     “Tranche B Term Loan Commitment” means, as to each Lender, its obligation to make its
portion of the Tranche B Term Loan to the Borrower pursuant to Section 2.01(b), in the
principal amount set forth opposite such Lender’s name on Schedule 2.01. The aggregate
principal amount of the Tranche B Term Loan Commitments of all of the Lenders as in effect on the
Closing Date is TWO HUNDRED FORTY FIVE MILLION DOLLARS ($245,000,000).



     “Tranche B Term Loan Note” has the meaning specified in Section 2.11(a).



     “Tranche C Term Loan” has the meaning specified in Section 2.01(c).



     “Tranche C Term Loan Commitment” means, as to each Lender, its obligation to make its
portion of the Tranche C Term Loan to the Borrower pursuant to Section 2.01(c), in the
principal amount set forth opposite such Lender’s name on Schedule 2.01. The aggregate
principal amount of the Tranche C Term Loan Commitments of all of the Lenders as in effect on the
Closing Date is ONE HUNDRED TWENTY FIVE MILLION DOLLARS ($125,000,000).



     “Tranche C Term Loan Note” has the meaning specified in Section 2.11(a).



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



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



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in



24









 




accordance with the assumptions used for funding that Pension Plan pursuant to Section 412 of
the Internal Revenue Code for the applicable plan year.




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



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



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



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



     1.02 Other Interpretive Provisions.



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




     (a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth herein or in any
other Loan Document), (ii) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (iii) the words “herein,” “hereof” and
“hereunder,” and words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any
law shall include all statutory and regulatory provisions consolidating, amending, replacing
or interpreting such law and any reference to any law or regulation shall, unless otherwise
specified, refer to such law or regulation as amended, modified or supplemented from time to
time, and (vi) the words “asset” and “property” shall be construed to have
the same meaning and effect and to refer to any and all real and personal property and
tangible and intangible assets and properties, including cash, securities, accounts and
contract rights.




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




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



25









 





     1.03 Accounting Terms.



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



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



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



     1.04 Rounding.



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



     1.05 Times of Day.



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



     1.06 Letter of Credit Amounts.



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



26









 





ARTICLE II



THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Revolving Loans and Term Loans.



     (a) Subject to the terms and conditions set forth herein, each Lender severally agrees to make
loans (each such loan, a “Revolving Loan”) to the Borrower in Dollars from time to time on
any Business Day during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of such Lender’s Revolving Commitment; provided, however,
that after giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings
shall not exceed the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding Amount of
the Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all L/C Obligations plus such Lender’s Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment.
Within the limits of each Lender’s Revolving Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.01, prepay under
Section 2.04, and reborrow under this Section 2.01. Revolving Loans may be Base
Rate Loans or Eurodollar Rate Loans, as further provided herein, provided, however, all Borrowings
made on the Closing Date shall be made as Base Rate Loans.



     (b) Tranche B Term Loan. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make its portion of a term loan (the “Tranche B Term Loan”) to
the Borrower in Dollars on the Closing Date in an amount not to exceed such Lender’s Tranche B Term
Loan Commitment. Amounts repaid on the Tranche B Term Loan may not be reborrowed. The Tranche B
Term Loan may consist of Base Rate Loans or Eurodollar Rate Loans, as further provided herein,
provided, however, all Borrowings made on the Closing Date shall be made as Base
Rate Loans.



     (c) Tranche C Term Loan. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make its portion of a term loan (the “Tranche C Term Loan”) to
the Borrower in Dollars on the Closing Date in an amount not to exceed such Lender’s Tranche C Term
Loan Commitment. Amounts repaid on the Tranche C Term Loan may not be reborrowed. The Tranche C
Term Loan may consist of Base Rate Loans or Eurodollar Rate Loans, as further provided herein,
provided, however, all Borrowings made on the Closing Date shall be made as Base
Rate Loans.



     2.02 Borrowings, Conversions and Continuations of Loans.



     (a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of, Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base
Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of,
conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $1,000,000
or a whole multiple of $500,000 in excess thereof. Except as provided in Section 2.03(c),
each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $1,000,000 or
a whole multiple of $500,000 in excess thereof. Each Loan Notice (whether telephonic or written)
shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from one
Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a



27









 




Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued,
(iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to
specify a Type of a Loan in a Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be made as, or converted
to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the
last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate
Loans in any Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.




     (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Applicable Percentage of the applicable Loans, and if no timely notice
of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base Rate Loans as described in the
preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan
available to the Administrative Agent in immediately available funds at the Administrative Agent’s
Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 5.02 (and, if such Borrowing
is the initial Credit Extension, Section 5.01), the Administrative Agent shall make all
funds so received available to the Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of the Borrower on the books of Bank of America with the amount
of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) the Administrative Agent by the Borrower;
provided, however, that if, on the date of a Borrowing of Revolving Loans, there
are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the
payment in full of any such L/C Borrowings and second, shall be made available to the
Borrower as provided above.



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of the Interest Period for such Eurodollar Rate Loan. During the existence of
a Default, no Loans may be requested as Eurodollar Rate Loans without the consent of the Required
Lenders, and the Required Lenders may demand that any or all of the then outstanding Eurodollar
Rate Loans be converted immediately to Base Rate Loans.



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



     (e) After giving effect to all Borrowings, all conversions of Loans from one Type to the other
and all continuations of Loans as the same Type, there shall not be more than 5 Interest Periods in
effect with respect to Revolving Loans, 5 Interest Periods in effect with respect to the Tranche B
Term Loan and 2 Interest Periods in effect with respect to the Tranche C Term Loan.



     2.03 Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit in Dollars for the account of the
Borrower or any of its



28









 






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




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




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




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




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




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




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




     (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial stated amount less than $50,000;



29









 






     (D) such Letter of Credit is to be denominated in a currency other than
Dollars; or




     (E) a default of any Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C
Issuer has entered into satisfactory arrangements with the Borrower or such Lender
to eliminate the L/C Issuer’s risk with respect to such Lender.




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




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



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




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




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent



30









 






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




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a specified number of days prior to the then effective expiration date (the
“Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at
the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the
Borrower shall not be required to make a specific request to the L/C Issuer for any such
extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be
deemed to have authorized (but may not require) the L/C Issuer to permit the extension of
such Letter of Credit at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that the L/C Issuer shall not permit any
such extension if (A) the L/C Issuer has determined that it would not be permitted, or would
have no obligation, at such time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of
Section 2.03(a) or otherwise), or (B) it has received notice (which may be by
telephone or in writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have
elected not to permit such extension or (2) from the Administrative Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in Section 5.02 is
not then satisfied, and in each case directing the L/C Issuer not to permit such extension.




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



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of drawing
under such Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative
Agent thereof. Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under
a Letter of Credit (each such date, an “Honor Date”), the Borrower shall reimburse
the L/C Issuer through the Administrative Agent in an amount equal to the amount of such
drawing. If the Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Lender’s
Applicable Percentage



31









 






thereof. In such event, the Borrower shall be deemed to have requested a Borrowing of Base
Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02 for the
principal amount of Base Rate Loans, but subject to the conditions set forth in Section
5.02 (other than the delivery of a Loan Notice) and provided that, after giving effect
to such Borrowing, the Total Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments. Any notice given by the L/C Issuer or the Administrative Agent pursuant to
this Section 2.03(c)(i) may be given by telephone if promptly confirmed in writing;
provided that the lack of such prompt confirmation shall not affect the
conclusiveness or binding effect of such notice.




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




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Base Rate Loans because the conditions set forth in Section 5.02 cannot
be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the
L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. In such event, each Lender’s payment to the
Administrative Agent for the account of the L/C Issuer pursuant to Section
2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.




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




     (v) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Revolving Loans
pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 5.02 (other than delivery by the Borrower of a Loan Notice). No such making
of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to
reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the



32









 






date on which such payment is immediately available to the L/C Issuer at a rate per annum
equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer
in accordance with banking industry rules on interbank compensation. A
certificate of the L/C Issuer submitted to any Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest
error.



     (d) Repayment of Participations.




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




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



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




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




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




     (iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




     (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a



33









 






trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with any proceeding
under any Debtor Relief Law; or




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



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



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



     (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. Sections 2.04 and
9.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes of this Section 2.03, Section 2.04 and



34









 




Section 9.02(c), “Cash Collateralize” means to pledge and deposit with or
deliver to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the L/C Issuer (which documents are
hereby consented to by the Lenders). Derivatives of such term have corresponding meanings. The
Borrower hereby grants to the Administrative Agent, for the benefit of the L/C Issuer and the
Lenders, a security interest in all such cash, deposit accounts and all balances therein and all
proceeds of the foregoing. Cash Collateral shall be maintained in blocked, non-interest bearing
deposit accounts at Bank of America.




     (h) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of
Credit.



     (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the
“Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the daily maximum amount available to be drawn under such Letter of Credit. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount
of such Letter of Credit shall be determined in accordance with Section 1.06. Letter of
Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and payable on the
first Business Day after the end of each March, June, September and December, commencing with the
first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. If there is any change in the Applicable Rate during any
quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, while
any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit in an amount specified in the Fee Letter computed on the daily maximum amount
available to be drawn thereunder (whether or not such maximum amount is then in effect under such
Letter of Credit), due and payable quarterly in arrears on the Business Day immediately following
the last Business Day of each March, June, September and December, commencing with the first such
date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date
and thereafter on demand. In addition, the Borrower shall pay directly to the L/C Issuer for its
own account the customary issuance, presentation, amendment and other processing fees, and other
standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in
effect. Such customary fees and standard costs and charges are due and payable on demand and are
nonrefundable.



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



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



35









 





     2.04 Swing Line Loans.



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



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



     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably requests and authorizes the Swing Line
Lender to so request on its behalf), that each Lender make a Base Rate Loan in an amount
equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then



36









 






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




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




     (iii) If any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with
banking industry rules on interbank compensation. A certificate of the Swing Line Lender
submitted to any Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (iii) shall be conclusive absent manifest error.




     (iv) Each Lender’s obligation to make Revolving Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right that such Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 5.02. No such purchase or funding of
risk participations shall relieve or otherwise impair the obligation of the Borrower to
repay Swing Line Loans, together with interest as provided herein.



     (d) Repayment of Participations.




     (i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line
Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage of such
payment (appropriately adjusted, in the case of interest payments, to reflect the period of
time



37









 






during which such Lender’s risk participation was funded) in the same funds as those
received by the Swing Line Lender.




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



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



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



     2.05 Prepayments.



     (a) Voluntary Prepayments of Loans.




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




     (ii) Swing Line Loans. The Borrower may, upon notice to the Swing Line Lender
(with a copy to the Administrative Agent), at any time or from time to time, voluntarily
prepay



38









 






Swing Line Loans in whole or in part without premium or penalty; provided that
(i) such notice must be received by the Swing Line Lender and the Administrative Agent not
later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in
a minimum principal amount of $250,000 or a whole multiple of $100,000 in excess thereof
(or, if less, the entire principal thereof then outstanding). Each such notice shall
specify the date and amount of such prepayment. If such notice is given by the Borrower,
the Borrower shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein.



     (b) Mandatory Prepayments.




     (i) Revolving Commitments.




     (A) If for any reason the Total Revolving Outstandings at any time exceed the
Aggregate Revolving Commitments then in effect, the Borrower shall immediately
prepay Revolving Loans and/or the Swing Line Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided,
however, that the Borrower shall not be required to Cash Collateralize the
L/C Obligations pursuant to this Section 2.04(b)(i) unless after the
prepayment in full of the Revolving Loans and the Swing Line Loans the Total
Revolving Outstandings exceed the Aggregate Revolving Commitments then in effect.




     (B) If any Revolving Loans are used to finance in part the Merger, the Borrower
shall immediately prepay such Revolving Loans with any cash or cash equivalents of
the Acquired Company and its Subsidiaries as of the Closing Date.




     (ii) Dispositions and Involuntary Dispositions.




     (A) Promptly (and in any event within ten days) upon receipt by any Loan Party
or any Subsidiary of the Net Cash Proceeds received from any Disposition, the
Borrower shall prepay the Term Loans as hereafter provided in an aggregate amount
equal to 100% of the Net Cash Proceeds of all Dispositions. Any prepayment pursuant
to this clause (ii)(A) shall be applied as set forth in clause (vii) below.




     (B) In the event there shall occur any Involuntary Disposition, the Borrower
shall promptly (and in any event within ten days) prepay the Term Loans as
hereinafter provided in an aggregate amount equal to 100% of the Net Cash Proceeds
of such Involuntary Disposition to the extent such Net Cash Proceeds are not used to
restore or repair the applicable Property within 180 days of such Involuntary
Disposition. Any prepayment pursuant to this clause (ii)(B) shall be applied as set
forth in clause (vii) below.




     (iii) Extraordinary Receipts. Promptly (and in any event within ten days) upon
receipt by any Loan Party or any Subsidiary of the Net Cash Proceeds of any Extraordinary
Receipt, the Borrower shall prepay the Term Loans as hereafter provided in an aggregate
amount equal to 100% of such Net Cash Proceeds to the extent that the Net Cash Proceeds
received from the Extraordinary Receipts in any fiscal year exceed $1,000,000. Any
prepayment pursuant to this clause (iii) shall be applied as set forth in clause (vii)
below.




     (iv) Debt Issuances. Immediately upon receipt by any Loan Party or any
Subsidiary of the Net Cash Proceeds of any Debt Issuance, the Borrower shall prepay the Term
Loans as hereafter



39









 






provided in an aggregate amount equal to 100% of such Net Cash Proceeds. Any
prepayment pursuant to this clause (iv) shall be applied as set forth in clause (vii) below.




     (v) Equity Issuances. Immediately upon the receipt by any Loan Party or any
Subsidiary of the Net Cash Proceeds of any Equity Issuance, the Borrower shall prepay the
Term Loans in an aggregate amount equal to 50% of such Net Cash Proceeds. Any such
prepayment pursuant to this clause (v) to be applied as set forth in clause (vii) below.
Notwithstanding the foregoing, the parties hereto agree that the Net Cash Proceeds received
from any Equity Issuance by the Borrower shall be used by the Borrower to prepay the Second
Lien Term Loan pursuant to Section 2.03(b) of the Second Lien Term Loan Agreement as
in effect as of the date hereof, unless the Second Lien Lenders waive or otherwise not
require such mandatory prepayment in which case 50% of the Net Cash Proceeds (or such lesser
amount not applied to the Second Lien Term Loan as a result of such waiver) from such Equity
Issuance shall be used by the Borrower to prepay the Term Loan pursuant to this clause (v).




     (vi) Excess Cash Flow. Commencing with the fiscal year ending December 31,
2006 and for each fiscal year ending thereafter, the Borrower shall prepay the Term Loans on
the Business Day following the date for delivery of the annual Compliance Certificate for
such fiscal year in an amount equal to 50% of Excess Cash Flow for such fiscal year. Any
such prepayment pursuant to this clause (vi) to be applied as set forth in clause (vii)
below.




     (vii) Application of Mandatory Prepayments. All amounts required to be paid
pursuant to this Section 2.04(b) shall be applied as follows:




     (A) with respect to all amounts prepaid pursuant to Section 2.04(b)(i),
to Revolving Loans and Swing Line Loans and (after all Revolving Loans and Swing
Line Loans have been repaid) to Cash Collateralize the L/C Obligations; and




     (B) with respect to all amounts prepaid pursuant to Sections
2.04(b)(ii), (iii), (iv), (v), and (vi) first,
to the Tranche C Term Loan and second (after the Tranche C Term Loan has been paid
in full), to the Tranche B Term Loan (ratably to the remaining principal
amortization payments thereof).




Within the parameters of the applications set forth above, prepayments shall be applied
first to Base Rate Loans and then to Eurodollar Rate Loans in direct order of Interest
Period maturities. All prepayments under this Section 2.04(b) shall be subject to
Section 3.05, but otherwise without premium or penalty, and shall be accompanied by
interest on the principal amount prepaid through the date of prepayment.



     2.06 Termination or Reduction of Aggregate Revolving Commitments.



     The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Revolving
Commitments, or from time to time permanently reduce the Aggregate Revolving Commitments to an
amount not less than the Outstanding Amount of Revolving Loans, Swing Line Loans and L/C
Obligations; provided that (i) any such notice shall be received by the Administrative
Agent not later than 12:00 noon three (3) Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof and (iii) if, after giving effect to any reduction
of the Aggregate Revolving Commitments or the Letter of Credit Sublimit or the Swing Line Sublimit
exceeds the amount of the Aggregate Revolving Commitments, such sublimit shall be automatically
reduced by the amount of such excess. The Administrative Agent will promptly notify the Lenders of
any such notice of termination or reduction of



40









 




the Aggregate Revolving Commitments. Any reduction of the Aggregate Revolving Commitments
shall be applied to the Revolving Commitment of each Lender according to its Applicable Percentage.
All fees accrued with respect thereto until the effective date of any termination of the Aggregate
Revolving Commitments shall be paid on the effective date of such termination.




     2.07 Repayment of Loans.



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



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



     (c) Tranche B Term Loan. The Borrower shall repay the outstanding principal amount of
the Tranche B Term Loan in installments on the dates and in the amounts set forth in the table
below (as such installments may hereafter be adjusted as a result of prepayments made pursuant to
Section 2.04), unless accelerated sooner pursuant to Section 9.02:



	 	 	 	 	 
	 	 	Principal Amortization
	Payment Dates 	 	Payment
	March 31, 2006
	 	$	612,500	 
	June 30, 2006
	 	$	612,500	 
	September 30, 2006
	 	$	612,500	 
	December 31, 2006
	 	$	612,500	 
	March 31, 2007
	 	$	612,500	 
	June 30, 2007
	 	$	612,500	 
	September 30, 2007
	 	$	612,500	 
	December 31, 2007
	 	$	612,500	 
	March 31, 2008
	 	$	612,500	 
	June 30, 2008
	 	$	612,500	 
	September 30, 2008
	 	$	612,500	 
	December 31, 2008
	 	$	612,500	 
	March 31, 2009
	 	$	612,500	 
	June 30, 2009
	 	$	612,500	 
	September 30, 2009
	 	$	612,500	 
	December 31, 2009
	 	$	612,500	 
	March 31, 2010
	 	$	612,500	 
	June 30, 2010
	 	$	612,500	 
	September 30, 2010
	 	$	612,500	 
	December 31, 2010
	 	$	612,500	 
	March 31, 2011
	 	$	58,187,500	 
	June 30, 2011
	 	$	58,187,500	 
	September 30, 2011
	 	$	58,187,500	 
	Maturity Date
	 	$	58,187,500	 






41









 






     (d) Tranche C Term Loan. The Borrower shall repay to the Lenders on the Maturity Date
the aggregate principal amount of the Tranche C Term Loan, unless accelerated sooner pursuant to
Section 9.02.



     2.08 Interest.



     (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the sum of the Eurodollar Rate for such Interest Period plus the Applicable
Rate, (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate and (iii) each Swing Line Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate
plus the Applicable Rate.




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




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




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




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



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



     2.09 Fees.



     In addition to certain fees described in subsections (i) and (j) of Section 2.03, the
Borrower shall pay to the Administrative Agent, for the account of each Lender in accordance with
its Applicable Percentage, a commitment fee equal to the product of (a) the Applicable Rate
times (b) the actual daily amount by which the Aggregate Revolving Commitments exceed the
sum of (i) the Outstanding Amount of Revolving Loans and (ii) the Outstanding Amount of L/C
Obligations. The commitment fee shall accrue at all times during the Availability Period, including
at any time during which one or more of the conditions in Article V is not met, and shall
be due and payable quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date, and on the Maturity
Date. The commitment fee shall be calculated quarterly in arrears, and if there is any change in
the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by
the Applicable Rate separately for each period during such quarter that such



42









 




Applicable Rate was in effect. For purposes of clarification, Swing Line Loans shall not be
considered outstanding for purposes of determining the unused portion of the Aggregate Revolving
Commitments.




     2.10 Computation of Interest and Fees.



     All computations of interest for Base Rate Loans when the Base Rate is determined by Bank of
America’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed. All other computations of fees and interest shall be made on the basis of
a 360-day year and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan
for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for
the day on which the Loan or such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall, subject to Section 2.12(a), bear interest for one
day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be
conclusive and binding for all purposes, absent manifest error.



     2.11 Evidence of Debt.



     (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a
promissory note, which shall evidence such Lender’s Loans in addition to such accounts or records.
Each such promissory note shall (i) in the case of Revolving Loans, be in the form of Exhibit
2.10(a)(i) (a “Revolving Note”), (ii) in the case of Swing Line Loans, be in the form
of Exhibit 2.10(a)(ii) (a “Swing Line Note”), (iii) in the case of the Tranche B
Term Loan, be in the form of Exhibit 2.10(a)(iii) (a “Tranche B Term Loan Note”)
and (iv) in the case of the Tranche C Term Loan, be in the form of Exhibit 2.10(a)(iv) (a
“Tranche C Term Loan Note”). Each Lender may attach schedules to its Note and endorse
thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect
thereto.



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



     2.12 Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (or other



43









 




applicable share as provided herein) of such payment in like funds as received by wire
transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after
2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest
or fee shall continue to accrue. Subject to the definition of “Interest Period”, if any payment to
be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on
the next following Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.





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




     (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C
Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case
may be, the amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such Lender or the
L/C Issuer, in immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of payment to
the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank
compensation.




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



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing



44









 




provisions of this Article II, and such funds are not made available to the Borrower
by the Administrative Agent because the conditions to the applicable Credit Extension set forth in
Article V are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.




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



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



     2.13 Sharing of Payments by Lenders.



     If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of the Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Loans or participations and
accrued interest thereon greater than its pro rata share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent
of such fact, and (b) purchase (for cash at face value) participations in the Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided that:




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




     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or subparticipations in L/C Obligations or Swing Line
Loans to any assignee or participant, other than to the Borrower or any Subsidiary thereof
(as to which the provisions of this Section shall apply).



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



45









 





ARTICLE III



TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



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



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



     (c) Indemnification by the Loan Parties. The Loan Parties shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid
by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be
conclusive absent manifest error.



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



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



46









 





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




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




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




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




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



     (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or the L/C
Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party
has paid additional amounts pursuant to this Section, it shall pay to such Loan Party an amount
equal to such refund (but only to the extent of indemnity payments made, or additional amounts
paid, by such Loan Party under this Section with respect to the Taxes or Other Taxes giving rise to
such refund), provided that each Loan Party, upon the request of the Administrative Agent,
such Lender or the L/C Issuer, agrees to repay the amount paid over to such Loan Party (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the L/C Issuer in the event the Administrative Agent, such
Lender or the L/C Issuer is required to repay such refund to such Governmental Authority. This
subsection shall not be construed to require the Administrative Agent, any Lender or the L/C Issuer
to make available its tax returns (or any other information relating to its taxes that it deems
reasonably confidential) to the Borrower or any other Person.



     3.02 Illegality.



     If any Lender determines that any applicable Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on
the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative
Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base
Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of
such Lender to Base Rate Loans, either on the last day of



47









 




the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar
Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted.




     3.03 Inability to Determine Rates.



     If the Required Lenders determine that for any reason in connection with any request for a
Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not
being offered to banks in the London interbank eurodollar market for the applicable amount and
Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurodollar Base Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan, or (c) the Eurodollar Base Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to the
Lenders of funding such Loan, the Administrative Agent will promptly notify the Borrower and all
Lenders. Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall
be suspended until the Administrative Agent revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing, conversion or continuation of Eurodollar
Rate Loans or, failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.



     3.04 Increased Costs.



     (a) Increased Costs Generally. If any Change in Law shall:




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




     (ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender or the L/C Issuer); or




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




and the result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any
such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in,
issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate
in or to issue any Letter of Credit), or to reduce the amount of any sum received or
receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest or any
other amount) then, upon request of such Lender or the L/C Issuer, the Borrower will pay to
such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C Issuer, as the case may be, for such additional costs
incurred or reduction suffered.



48









 





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



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



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



     (e) Reserve Requirements. The Borrower shall pay to each Lender, as long as such
Lender shall be required to maintain reserves with respect to liabilities or assets consisting of
or including Eurodollar funds or deposits (currently known as “Eurodollar Liabilities”),
additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual
costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good
faith, which determination shall be conclusive), which shall be due and payable on each date on
which interest is payable on such Loan, provided the Borrower shall have received at least 10 days
prior notice (with a copy to the Administrative Agent) of such additional interest from such
Lender. If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 10 days from receipt of such notice.



3.05 Compensation for Losses.




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



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




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




     (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of:




     (i) a request by the Borrower pursuant to
Section 11.13; or




     (ii) an assignment by Bank of America pursuant to Section 11.06(b) as
part of the primary syndication of the Commitments and Loans during the 180-day
period immediately following the Closing Date;


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




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



     3.06 Mitigation Obligations; Replacement of Lenders.



     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be materially disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable out of pocket costs and expenses actually incurred by any Lender in connection with any
such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any
Lender is unable to make Loans at the Eurodollar Rate as contemplated in Section 3.02, the
Borrower may replace such Lender in accordance with Section 11.13.



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     3.07 Survival.



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



ARTICLE IV



GUARANTY




     4.01 The Guaranty.



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



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



     4.02 Obligations Unconditional.



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




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



51









 






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




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




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




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



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



     4.03 Reinstatement.



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



     4.04 Certain Additional Waivers.



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



     4.05 Remedies.



     The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors,
on the one hand, and the Administrative Agent and the Lenders, on the other hand, the Obligations
may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be
deemed to have become



52









 




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




     4.06 Rights of Contribution.



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



     4.07 Guarantee of Payment; Continuing Guarantee.



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



ARTICLE V



CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     5.01 Conditions of Initial Credit Extension.



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




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




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




     (c) Financial Statements. The Administrative Agent shall have received:




     (i) pro forma financial statements for the Borrower and its Subsidiaries after
giving effect to the Merger for the fiscal year ending December 31, 2004 and for the
period commencing on January 1, 2005 and ending November 30, 2005 which (A) are in
form and substance reasonably satisfactory to the Administrative Agent and (B) meet
the requirements of Regulation S-X of the Securities Act of 1933; and




     (ii) forecasts prepared by management of the Borrower and its Subsidiaries,
each in form and substance reasonably satisfactory to the Administrative Agent, of
balance sheets, income statements and cash flow statements for each quarter for the
first



53









 






year following the Closing Date and on annual basis for each year thereafter
during the term of this Agreement.




     (d) No Material Adverse Change. Except as disclosed in the Company Disclosure
Letter (as defined in the Merger Agreement), since September 30, 2005, there shall not have
occurred and be continuing a material adverse effect on the business, financial condition or
results of operations of the Acquired Company and its Subsidiaries, taken as a whole, other
than any effect relating to (i) the economy in general in the United States or any state or
locality in which the Acquired Company or any of its subsidiaries conducts business, (ii)
United States or global financial or securities markets or conditions or any act of
terrorism, similar calamity or war, (iii) the health services industry generally, (iv)
changes in applicable law or regulations or in generally accepted accounting principles or
regulatory accounting principles, (v) the execution and delivery of the Merger Agreement or
announcement of the transactions contemplated by the Merger Agreement or the identity,
business or operations of the Borrower or its Subsidiaries or any facts or circumstances
relating to the Borrower or its Subsidiaries, including in each case the loss of customers,
suppliers or vendors, or (vi) any action taken by the Acquired Company or its Subsidiaries
with the Borrower’s consent or from compliance by the Acquired Company with the terms of, or
the taking of any action contemplated or permitted by, the Merger Agreement.




     (e) Litigation. There shall not be pending any suit or formal proceeding by
any Governmental Authority (i) challenging the acquisition by the Borrower or the Merger
Subsidiary of any Shares, Options or Warrants (each as defined in the Merger Agreement),
seeking to restrain or prohibit the consummation of the Merger, seeking to place limitations
on the ownership of shares of Common Stock or Preferred Stock (each as defined in the Merger
Agreement) (or shares of capital stock of the Surviving Corporation (as defined in the
Merger Agreement)) by the Borrower or the Merger Subsidiary, (ii) seeking to prohibit or
limit the ownership or operation by the Acquired Company or any of its Subsidiaries or by
the Borrower or any of its Subsidiaries of any portion of any business or of any assets of
the Acquired Company and its Subsidiaries or the Borrower and its Subsidiaries, (iii)
seeking to obtain from the Acquired Company, the Borrower or the Merger Subsidiary any
damages with respect to the transactions contemplated by the Merger Agreement (including the
Merger), which in the case of clauses (i), (ii) and (iii) above would have, individually or
in the aggregate, a Material Adverse Effect (as defined in the Merger Agreement) on either
the Acquired Company or the Borrower.




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




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




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



54









 






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




     (g) Perfection and Priority of Liens. Receipt by the Collateral Agent or the
Control Agent, as applicable, of the following:




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




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




     (iii) all certificates evidencing any certificated Equity Interests pledged to
the Control Agent for the benefit of the Collateral Agent (on behalf of the Lenders)
pursuant to the Pledge Agreement, together with duly executed in blank, undated
stock powers attached thereto;




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




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




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




     (i) Merger. Receipt by the Administrative Agent of (i) evidence that the
Merger will be consummated concurrent with the advances of the initial Loans in compliance
with applicable Law and regulatory approvals and in accordance with the Merger Documents and
(ii) copies, certified by a Responsible Officer of the Borrower as true and complete, of (A)
the Merger Documents, (B) the Second Lien Term Loan Documents, together will all exhibits
and schedules thereto and (C) the documentation related to the Senior Notes.




     (j) Closing Certificate. Receipt by the Administrative Agent of (i) a
certificate signed by a Responsible Officer of the Borrower certifying that (A) the
conditions specified in Sections 5.01(d) and (e) and Sections
5.02(a), (b) and (c) have been satisfied and (B) the Borrower and its
Subsidiaries (after giving effect to the Merger and the incurrence of the Indebtedness
related thereto) are Solvent on a consolidated basis and (ii) a pro forma compliance



55









 






certificate demonstrating that, upon giving effect to the Merger on a Pro Forma Basis,
the Loan Parties are in compliance with the financial covenants set forth in Section
8.11 as of the most recent fiscal quarter for which the Borrower has prepared financial
statements.




     (k) Existing Debt. Receipt by the Administrative Agent of evidence that (i)
the Existing Credit Agreement has been terminated and all Liens securing obligations under
the Existing Credit Agreement have been released and (ii) the Cor Credit Agreement has been
terminated and all Liens securing obligations under the Cor Credit Agreement have been
released.




     (l) Intercreditor Agreement. The Administrative Agent shall have received
counterparts of the Intercreditor Agreement, duly executed on behalf of each of the
Administrative Agent, the Second Lien Agent, the Control Agent and the Loan Parties.




     (m) Consents. All governmental, shareholder and third party consents
(including Hart-Scott-Rodino clearance) and approvals necessary in connection with the
Merger shall have been obtained; all such consents and approvals shall be in force and
effect; and all applicable waiting periods shall have expired without any action being taken
by any authority that could reasonably be expected to restrain, prevent or impose any
material adverse condition on the Merger or that could seek or threaten any of the
foregoing, and no Law shall be applicable which has, or could reasonably be expected to
have, such effect.




     (n) Fees. Receipt by the Administrative Agent and the Lenders of any fees
required to be paid on or before the Closing Date.




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




     (p) Other. Receipt by the Administrative Agent and the Lenders of such other
documents, instruments, agreements and information as reasonably requested by the
Administrative Agent or any Lender, including, but not limited to, information regarding
litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent),
real estate leases, material contracts, debt agreements, property ownership, environmental
matters, contingent liabilities and management of the Borrower and its Subsidiaries; such
information may include, if requested by the Administrative Agent, asset appraisal reports
and written audits of accounts receivable, inventory, payables, controls and systems.



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



56









 





     5.02 Conditions to all Credit Extensions.



     The obligation of each Lender to honor any Request for Credit Extension (other than a Loan
Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurodollar
Rate Loans) is subject to the following conditions precedent:




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




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




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



     Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of
Loans to the other Type, or a continuation of Eurodollar Rate Loans) submitted by the Borrower
shall be deemed to be a representation and warranty that the conditions specified in Sections
5.02(a) and (b) have been satisfied on and as of the date of the applicable Credit
Extension.



ARTICLE VI



REPRESENTATIONS AND WARRANTIES




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



     6.01 Existence, Qualification and Power.



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



     6.02 Authorization; No Contravention.



     The execution, delivery and performance by each Loan Party of each Loan Document to which such
Person is party have been duly authorized by all necessary corporate or other organizational
action, and do not (a) contravene the terms of any of such Person’s Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of any Lien under, or
require any payment to be



57









 




made under (i) any of the Second Lien Loan Documents, (ii) any material Contractual Obligation
to which such Person is a party or affecting such Person or the properties of such Person or any of
its Subsidiaries or (iii) any order, injunction, writ or decree of any Governmental Authority or
any arbitral award to which such Person or its property is subject; or (c) violate any applicable
Law (including, without limitation, Regulation U or Regulation X issued by the FRB).




     6.03 Governmental Authorization; Other Consents.



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



     6.04 Binding Effect.



     Each Loan Document has been duly executed and delivered by each Loan Party that is party
thereto. Each Loan Document constitutes a legal, valid and binding obligation of each Loan Party
that is party thereto, enforceable against each such Loan Party in accordance with its terms,
except as enforceability may be limited by Debtor Relief Laws and general principles of equity
(regardless of whether such enforceability is considered in a proceeding in equity or at law).



     6.05 Financial Statements; No Material Adverse Effect; No Internal Control Event.



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



     (b) The Interim Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii)
fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby, subject, in the case of clauses (i)
and (ii), to the absence of footnotes and to normal year-end audit adjustments; and (iii) show all
material indebtedness and other liabilities, direct or contingent (other than contingent
liabilities not required to be disclosed thereon in accordance with GAAP), of the Borrower and its
Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and
Indebtedness.



     (c) (i) From the date of the Audited Financial Statements to and including the Closing Date,
there has been no Disposition by the Borrower or any Subsidiary, or any Involuntary Disposition, of
any material part of the business or property of the Borrower and its Subsidiaries, taken as a
whole, and no purchase or other acquisition by any of them of any business or property (including
any Equity Interests of any other Person) material in relation to the consolidated financial
condition of the Borrower and its Subsidiaries, taken as a whole, in each case, which is not
reflected in the foregoing financial statements or in the notes thereto and has not otherwise been
disclosed in writing to the Lenders on or prior to the Closing Date and (ii) from the date of the
Cor Audited Financial Statements to and including the Closing Date, there



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has been no Disposition by the Acquired Company or any of its Subsidiaries, or any Involuntary
Disposition, of any material part of the business or property of the Acquired Company and its
Subsidiaries, taken as a whole, and no purchase or other acquisition by any of them of any business
or property (including any Equity Interests of any other Person) material in relation to the
consolidated financial condition of the Acquired Company and its Subsidiaries, taken as a whole, in
each case, which is not reflected in the foregoing financial statements or in the notes thereto and
has not otherwise been disclosed in writing to the Lenders on or prior to the Closing Date.




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



     (e) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.



     (f) Since the date of the Audited Financial Statements, no Internal Control Event has
occurred.



     6.06 Litigation.



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



     6.07 No Default.



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



     (b) No Default has occurred and is continuing.



     6.08 Ownership of Property; Liens.



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



     6.09 Environmental Compliance.



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



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




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




     (c) Neither the Borrower nor any Subsidiary has received any written or to the
knowledge of the Responsible Officers of the Loan Parties verbal notice of, or inquiry from
any Governmental Authority regarding, any violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or compliance with
applicable Environmental Laws with regard to any of the Facilities or the Businesses.




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




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




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



     6.10 Insurance.



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



     6.11 Taxes.



     The Borrower and its Subsidiaries have filed all federal, state and other material tax returns
and reports required to be filed, and have paid all federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves have been provided in
accordance with GAAP.



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There is no proposed tax assessment against the Borrower or any Subsidiary that would, if
made, have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is party
to any tax sharing agreement.




     6.12 ERISA Compliance.



     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Internal Revenue Code and other federal or state Laws. Each Plan that is intended to
qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination
letter from the IRS or an application for such a letter is currently being processed by the IRS
with respect thereto and, to the best knowledge of the Responsible Officers of the Loan Parties,
nothing has occurred which would prevent, or cause the loss of, such qualification. Each Loan
Party and each ERISA Affiliate have made all required contributions to each Plan subject to Section
412 of the Internal Revenue Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Internal Revenue Code has been made with respect
to any Plan.



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



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) no Loan Party or any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv) no Loan Party or any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) no
Loan Party or any ERISA Affiliate has engaged in a transaction that could be subject to Section
4069 or 4212(c) of ERISA.



     6.13 Subsidiaries.



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



     6.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.



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



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     (b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary (i) is a
“holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a
“holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the
Public Utility Holding Company Act of 1935, or (ii) is or is required to be registered as an
“investment company” under the Investment Company Act of 1940.



     6.15 Disclosure.



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



     6.16 Compliance with Laws.



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



     6.17 Intellectual Property; Licenses, Etc.



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



     6.18 Solvency.



     The Loan Parties are Solvent on a consolidated basis.



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     6.19 Perfection of Security Interests in the Collateral.



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



     6.20 Business Locations.



     Set forth on Schedule 6.20(a) is a list of all real property located in the United
States that is owned or leased by the Loan Parties as of the Closing Date. Set forth on
Schedule 6.20(b) is a list of all locations where any tangible personal property of any
Loan Party is located as of the Closing Date. Set forth on Schedule 6.20(c) is the chief
executive office, tax payer identification number and organizational identification number of each
Loan Party as of the Closing Date. The exact legal name and state of organization of each Loan
Party as of the Closing Date is as set forth on the signature pages hereto. Except as set forth on
Schedule 6.20(d), no Loan Party has during the five years preceding the Closing Date (i)
changed its legal name, (ii) changed its state of formation, or (iii) been party to a merger,
consolidation or other change in structure.



     6.21 Labor Matters.



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



ARTICLE VII



AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder (other than indemnity obligations that, by their terms, survive the termination of this
Agreement) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
the Loan Parties shall and shall cause each Subsidiary to:



     7.01 Financial Statements.



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




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



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Accounting Firm as to the Borrower’s internal controls pursuant to Section 404 of
Sarbanes-Oxley; and




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



     7.02 Certificates; Other Information.



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




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




     (b) not later than the end of each fiscal year of the Borrower, beginning with the
fiscal year ending December 31, 2006, an annual business plan and budget of the Borrower and
its Subsidiaries containing, among other things, pro forma financial statements for each
quarter of the next fiscal year;




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




     (d) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a certificate of a Responsible Officer of the
Borrower containing information regarding the amount of all Dispositions, Involuntary
Dispositions, Equity Issuances and Acquisitions, in each case involving an amount equal to
or in excess of $1,000,000, that occurred during the period covered by such financial
statements; provided that no such certificate shall be required if no such Dispositions,
Involuntary Dispositions, Equity Issuances and Acquisitions occurred during such period;




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



64









 






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




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




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




     (i) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a certificate of a Responsible Officer of the
Borrower (i) listing (A) all applications, if any, for Copyrights, Patents or Trademarks
(each such term as defined in the Security Agreement) made since the date of the prior
certificate (or, in the case of the first such certificate, the Closing Date), (B) all
issuances of registrations or letters on existing applications for Copyrights, Patents and
Trademarks (each such term as defined in the Security Agreement) received since the date of
the prior certificate (or, in the case of the first such certificate, the Closing Date), and
(C) all Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as
defined in the Security Agreement) entered into since the date of the prior certificate (or,
in the case of the first such certificate, the Closing Date), and (ii) attaching the
insurance binder or other evidence of insurance for any insurance coverage of the Borrower
or any Subsidiary that was renewed, replaced or modified during the period covered by such
financial statements.



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



     The Borrower hereby acknowledges that (a) the Administrative Agent and/or BAS will make
available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf
of the



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Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on
IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may
be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information
with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby
agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC”
shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the
Borrower shall be deemed to have authorized the Administrative Agent, BAS and the Lenders to treat
such Borrower Materials as not containing any material non-public information with respect to the
Borrower or its securities for purposes of United States federal and state securities laws
(provided, however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 11.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated as “Public Investor;” and (z) the Administrative Agent and BAS shall be entitled to
treat the Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a
portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the
Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC.”




     7.03 Notices.



     (a) Promptly (and in any event, within two Business Days) after a Responsible Officer of any
Loan Party obtains knowledge thereof, notify the Administrative Agent and each Lender of the
occurrence of any Default.



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



     (c) Promptly upon a Responsible Officer of any Loan Party becoming aware thereof, notify the
Administrative Agent and each Lender of the occurrence of any ERISA Event.



     (d) Promptly notify the Administrative Agent and each Lender of (i) any material change in
accounting policies or financial reporting practices by the Borrower or any Subsidiary or (ii) the
occurrence of any Internal Control Event.



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



     7.04 Payment of Obligations.



     Pay and discharge, as the same shall become due and payable, all its material obligations and
liabilities, including (a) all material tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are
being maintained by the



66









 




Borrower or such Subsidiary; and (b) all lawful claims which, if unpaid, would by law become a
Lien (other than a Permitted Lien) upon its property.




     7.05 Preservation of Existence, Etc.



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



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



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



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



     7.06 Maintenance of Properties.



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



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



     7.07 Maintenance of Insurance.



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



     7.08 Compliance with Laws.



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



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     7.09 Books and Records.



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



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



     7.10 Inspection Rights.



     (a) Permit representatives and independent contractors of the Administrative Agent and each
Lender to visit and inspect any of its properties, to examine its corporate, financial and
operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public accountants, all at the
expense of the Borrower and at such reasonable times during normal business hours and as often as
may be reasonably desired, upon reasonable advance notice to the Borrower; provided,
however, that unless an Event of Default has occurred and is continuing at the time such
inspection commences, the Borrower shall not be required to pay expenses relating to more than one
inspection in any twelve-month period; provided further when an Event of Default
exists the Administrative Agent or any Lender (or any of their respective representatives or
independent contractors) may do any of the foregoing at the expense of the Borrower at any time
during normal business hours and without advance notice; provided, further,
however, that neither the Borrower nor any Subsidiary shall be required to disclose any
records to the extent that such disclosure would constitute a breach or violation of any applicable
federal or state privacy or confidentiality laws or regulations, including without limitation
HIPAA.



     (b) If requested by the Administrative Agent, promptly deliver to the Administrative Agent (i)
asset appraisal reports with respect to all of the real and personal property owned by the Borrower
and its Subsidiaries, and (ii) a written audit of the accounts receivable, inventory, payables,
controls and systems of the Borrower and its Subsidiaries.



     7.11 Use of Proceeds.



     Use the proceeds of the Credit Extensions to (a) finance, in part, the Merger and any costs
and expenses related thereto and (b) finance working capital, capital expenditures, Permitted
Acquisitions and other lawful corporate purposes, provided that in no event shall the
proceeds of the Credit Extensions be used in contravention of any applicable Law or of any Loan
Document.



     7.12 Additional Subsidiaries.




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




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



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     (ii) if such Subsidiary is a Domestic Subsidiary, cause such Person to (A)
become a Guarantor by executing and delivering to the Administrative Agent a Joinder
Agreement or such other documents as the Administrative Agent shall deem appropriate
for such purpose, and (B) deliver to the Collateral Agent or the Control Agent, as
applicable, documents of the types referred to in Sections 5.01(f) and
(g) and favorable opinions of counsel to such Person (which shall cover,
among other things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause (a)), all in form, content and scope reasonably
satisfactory to the Administrative Agent and the Collateral Agent (it being
understood and agreed that the corporate opinions with respect to such Person may be
provided by in-house counsel of such Person).




     (b) If at any time any Subsidiary that is not required to be a Guarantor hereunder
provides a guarantee of the Borrower’s obligations under the Second Lien Term Loan
Agreement, then promptly (and in any event within thirty (30) days thereof), cause such
Subsidiary to (i) become a Guarantor by executing and delivering to the Administrative Agent
a Joinder Agreement or such other documents as the Administrative Agent shall deem
appropriate for such purpose, and (ii) deliver to the Collateral Agent or the Control Agent,
as applicable, documents of the types referred to in Sections 5.01(f) and
(g) and favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the documentation
referred to in clause (a)), all in form, content and scope reasonably satisfactory to the
Administrative Agent and the Collateral Agent.



     7.13 ERISA Compliance.



     Do, and cause each of its ERISA Affiliates to do, each of the following: (a) maintain each
Plan in compliance in all material respects with the applicable provisions of ERISA, the Internal
Revenue Code and other federal or state law; (b) cause each Plan that is qualified under Section
401(a) of the Internal Revenue Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Internal Revenue Code.



     7.14 Pledged Assets.



     (a) Equity Interests. Except as provided in Section 7.16(b), cause (a) 100%
of the issued and outstanding Equity Interests of each Domestic Subsidiary and (b) 65% (or such
greater percentage that, due to a change in an applicable Law after the date hereof, (1) could not
reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined
for United States federal income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary’s United States parent and (2) could not reasonably be expected to cause any material
adverse tax consequences) of the issued and outstanding Equity Interests entitled to vote (within
the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity
Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each
Foreign Subsidiary directly owned by the Borrower or any Domestic Subsidiary to be subject at all
times to a first priority, perfected Lien in favor of the Control Agent for the benefit of the
Collateral Agent (on behalf of the Lenders) pursuant to the terms and conditions of the Collateral
Documents, together with opinions of counsel and any filings and deliveries reasonably necessary
in connection therewith to perfect the security interests therein, all in form and substance
reasonably satisfactory to the Control Agent.



     (b) Other Property. (i) Cause all of its owned and leased real and personal property
other than Excluded Property to be subject at all times to first priority, perfected and, in the
case of real property (whether leased or owned), title insured Liens in favor of the Collateral
Agent to secure the Obligations pursuant to the terms and conditions of the Collateral Documents
or, with respect to any such



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property acquired subsequent to the Closing Date, such other additional security documents as
the Collateral Agent shall reasonably request, subject in any case to Permitted Liens and (ii)
deliver such other documentation as the Collateral Agent may reasonably request in connection with
the foregoing, including, without limitation, appropriate UCC-1 financing statements, real estate
title insurance policies, surveys, environmental reports, landlord’s waivers, certified resolutions
and other organizational and authorizing documents of such Person, favorable opinions of counsel to
such Person (which shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above and the perfection of the Collateral Agent’s
Liens thereunder) and other items of the types required to be delivered pursuant to Section
5.01(g), all in form, content and scope reasonably satisfactory to the Collateral Agent.




     7.15 Interest Rate Protection Agreements.



     Within thirty (30) days of the Closing Date, the Borrower shall enter into interest rate
protection agreements (protecting against fluctuations in interest rates) reasonably acceptable to
the Administrative Agent, which agreements shall provide coverage in an amount equal to
$100,000,000 and for a duration of at least two (2) years.



     7.16 Post-Closing Deliverables.



     (a) Lien Waivers. Use commercially reasonable efforts to obtain landlord consents and
lien waivers, in form and substance reasonably satisfactory to the Collateral Agent, with respect
to Collateral held on the leased premises identified on Schedule 7.16(a).



     (b) Stock of Foreign Subsidiaries. (i) Within sixty (60) days of the Closing Date,
pledge to the Control Agent for the benefit of the Collateral Agent (on behalf of the Lenders) 65%
of the issued and outstanding Equity Interests of Facet Technologies Limited, together with stock
certificates and undated stock powers executed in blank and opinions of counsel and any filings and
deliveries reasonably necessary in connection therewith to perfect the security interest of the
Control Agent therein, all in form and substance reasonably satisfactory to the Control Agent.



     (ii) Within ninety (90) days of the Closing Date, either (A) Dispose of the German Subsidiary
and apply the Net Cash Proceeds received from such Disposition in accordance with the terms of
Section 2.05(b)(ii) or (B) pledge to the Control Agent for the benefit of the Collateral
Agent (on behalf of the Lenders) 65% of the issued and outstanding Equity Interests of the German
Subsidiary, together with stock certificates and undated stock powers executed in blank and
opinions of counsel and any filings and deliveries reasonably necessary in connection therewith to
perfect the security interest of the Control Agent therein, all in form and substance reasonably
satisfactory to the Control Agent.



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ARTICLE VIII



NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder (other than any indemnity obligations that, by their terms, survive the termination of
this Agreement) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain
outstanding, no Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly:



     8.01 Liens.



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




     (a) Liens pursuant to any Loan Document or otherwise securing any of the Obligations;




     (b) Liens existing on the date hereof and listed on Schedule 8.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby is
not changed, (ii) the amount secured or benefited thereby is not increased except to the
extent permitted by Section 8.03(b), and (iii) any renewal or extension of the
obligations secured or benefited thereby is permitted by Section 8.03(b);




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




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




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




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




     (g) easements, rights-of-way, restrictions and other similar encumbrances affecting
real property which do not materially interfere with the ordinary conduct of the business of
the applicable Person;




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



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     (i) Liens securing Indebtedness permitted under Section 8.03(e);
provided that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness, (ii) the Indebtedness secured thereby does not
exceed the cost or fair market value, whichever is lower, of the property being acquired on
the date of acquisition and (iii) such Liens attach to such property concurrently with or
within ninety days after the acquisition thereof;




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




     (k) any interest of title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or agreements in foreign jurisdictions)
relating to, leases not prohibited by this Agreement;




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




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




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




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




     (p) Liens pursuant to any Second Lien Collateral Document; provided that the
same are subject to, and subordinated to the Liens granted pursuant to the Loan Documents in
accordance with, the Intercreditor Agreement; and




     (q) other Liens on assets of the Borrower and its Subsidiaries that cover assets having
a value, in the aggregate, not in excess of $2,000,000 at any time.



     8.02 Investments.



     Make any Investments, except:




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




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




     (c) Investments in any Person that is a Loan Party;




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




     (e) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of



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business, and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss;




     (f) Guarantees permitted by Section 8.03;




     (g) Permitted Acquisitions;




     (h) Investments in the Captive Insurance Subsidiary in an amount not to exceed
$1,200,000 in the aggregate in any fiscal year;




     (i) loans and advances in the ordinary course of business to employees of the Borrower
or any of its Subsidiaries for reasonable travel, relocation and business expenses;
provided, that the aggregate principal amount of such loans and advances outstanding at any
time shall not exceed $1,000,000;




     (j) Investments in Foreign Subsidiaries in an amount not to exceed (i) $5,000,000 in
the aggregate at any time outstanding prior to the Disposition of the German Subsidiary and
(ii) $2,000,000 in the aggregate at any time outstanding following the Disposition of the
German Subsidiary; and




     (k) any other Investments in an amount not to exceed $5,000,000 in the aggregate at any
time outstanding.



     8.03 Indebtedness.



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




     (a) Indebtedness under the Loan Documents;




     (b) Indebtedness of the Borrower and its Subsidiaries set forth in Schedule
8.03 (and renewals, refinancings and extensions thereof; provided that (i) the
amount of such Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to a reasonable premium or other reasonable
amount paid, and fees and expenses reasonably incurred, in connection with such refinancing
and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms
relating to principal amount, amortization, maturity, collateral (if any) and subordination
(if any), and other material terms taken as a whole, of any such refinancing, refunding,
renewing or extending Indebtedness, and of any agreement entered into and of any instrument
issued in connection therewith, are no less favorable in any material respect to the Loan
Parties or the Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded, renewed or extended and the interest rate
applicable to any such refinancing, refunding, renewing or extending Indebtedness does not
exceed the then applicable market interest rate;




     (c) intercompany Indebtedness permitted under Section 8.02;




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



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contain any provision exonerating the non-defaulting party from its obligation to make
payments on outstanding transactions to the defaulting party;




     (e) purchase money Indebtedness (including obligations in respect of Capital Leases or
Synthetic Leases) hereafter incurred by the Borrower or any of its Subsidiaries to finance
the purchase of fixed assets, and renewals, refinancings and extensions thereof,
provided that (i) the total of all such Indebtedness for all such Persons taken
together shall not exceed an aggregate principal amount of $5,000,000 at any one time
outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase price of the
asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a principal amount
in excess of the principal balance outstanding thereon at the time of such refinancing;




     (f) Indebtedness under the Second Lien Loan Documents in an aggregate principal amount
not to exceed $85,000,000 at any one time outstanding; provided that the same is
subject to the terms of the Intercreditor Agreement;




     (g) Indebtedness under the Senior Notes in an aggregate principal amount not to exceed
$2,000,000;




     (h) other unsecured Indebtedness of the Borrower or any of its Subsidiaries in an
aggregate principal amount not to exceed $5,000,000 at any one time outstanding;




     (i) Contingent Purchase Price Obligations incurred in connection with any Permitted
Acquisition; and




     (j) Guarantees with respect to Indebtedness permitted under clauses (a) through (h) of
this Section 8.03.



     8.04 Fundamental Changes.



     Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person; provided that, notwithstanding the
foregoing provisions of this Section 8.04 but subject to the terms of Sections 7.12
and 7.14, (a) the Borrower may merge or consolidate with any of its Subsidiaries provided
that the Borrower shall be the continuing or surviving corporation, (b) any Loan Party other than
the Borrower may merge or consolidate with any other Loan Party other than the Borrower, (c) any
Foreign Subsidiary or Inactive Subsidiary may be merged or consolidated with or into any Loan Party
provided that such Loan Party shall be the continuing or surviving corporation, (d) any Foreign
Subsidiary may be merged or consolidated with or into any other Foreign Subsidiary, (e) any
Inactive Subsidiary may be dissolved or liquidated and (f) the Facet Business and the German
Subsidiary may each be sold in accordance with the terms of Section 8.05.



     8.05 Dispositions.



     Make any Disposition other than (a) the sale of the Facet Business provided, that (i)
no Default shall exist prior to and after giving effect to such sale and (ii) after giving effect
to such sale on a Pro Forma Basis the Consolidated Leverage Ratio shall not be greater than 4.9 to
1.0, (b) the sale of the German Subsidiary and (c) any Disposition in which (i) the consideration
paid in connection therewith shall be cash or Cash Equivalents paid contemporaneous with
consummation of the transaction and shall be in an amount not less than the fair market value of
the property disposed of, (ii) such transaction does not involve a sale or other disposition of
receivables other than receivables owned by or attributable to other property



74









 




concurrently being disposed of in a transaction otherwise permitted under this Section
8.05 and (iii) the aggregate net book value of all of the assets sold or otherwise disposed of
by the Borrower and its Subsidiaries in all such transactions occurring in any fiscal year shall
not exceed $2,000,000.




     8.06 Restricted Payments.



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




     (a) each Subsidiary may make Restricted Payments to any Loan Party; and




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



     8.07 Change in Nature of Business.



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



     8.08 Transactions with Affiliates and Insiders.



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



     8.09 Burdensome Agreements.



     (a) Enter into, or permit to exist, any Contractual Obligation that encumbers or restricts on
the ability of any such Person to (i) pay dividends or make any other distributions to any Loan
Party on its Equity Interests or with respect to any other interest or participation in, or
measured by, its profits, (ii) pay any Indebtedness or other obligation owed to any Loan Party,
(iii) make loans or advances to any Loan Party, (iv) sell, lease or transfer any of its property to
any Loan Party, (v) pledge its property pursuant to the Loan Documents or any renewals,
refinancings, exchanges, refundings or extension thereof or (vi) act as a Loan Party pursuant to
the Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof,
except (in respect of any of the matters referred to in clauses (i)-(iv) above) for (1) this
Agreement and the other Loan Documents, (2) any Second Lien Loan Document, (3) any document or
instrument governing Indebtedness incurred pursuant to Section 8.03(e), provided
that any such restriction contained therein relates only to the asset or assets constructed or
acquired in connection therewith, (4) any Permitted Lien or any document or instrument governing
any Permitted Lien, provided that any such restriction contained therein relates only to
the asset or assets subject to such Permitted Lien or (5) customary restrictions and conditions
contained in any agreement relating to the sale of any property permitted under Section
8.05 pending the consummation of such sale.



     (b) Enter into, or permit to exist, any Contractual Obligation that prohibits or otherwise
restricts the existence of any Lien upon any of its property in favor of the Collateral Agent (for
the benefit of



75









 




the Lenders) for the purpose of securing the Obligations, whether now owned or hereafter
acquired, or requiring the grant of any security for any obligation if such property is given as
security for the Obligations, except (i) any document or instrument governing Indebtedness incurred
pursuant to Section 8.03(e), provided that any such restriction contained therein
relates only to the asset or assets constructed or acquired in connection therewith, (ii) in
connection with any Permitted Lien or any document or instrument governing any Permitted Lien,
provided that any such restriction contained therein relates only to the asset or assets
subject to such Permitted Lien and (iii) pursuant to customary restrictions and conditions
contained in any agreement relating to the sale of any property permitted under Section
8.05, pending the consummation of such sale.




     8.10 Use of Proceeds.



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



     8.11 Financial Covenants.



     (a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end
of any fiscal quarter of the Borrower to be greater than (i) for any fiscal quarter ending during
the period from the Closing Date to and including September 30, 2006, 5.0 to 1.0, (ii) for any
fiscal quarter ending during the period from December 31, 2006 to and including September 30, 2007,
4.0 to 1.0 and (iii) for any fiscal quarter ending on and after December 31, 2007, 3.5 to 1.0.



     (b) Consolidated First Lien Leverage Ratio. Permit the Consolidated First Lien
Leverage Ratio as of the end of any fiscal quarter of the Borrower to be greater than (i) for any
fiscal quarter ending during the period from the Closing Date to and including September 30, 2006,
4.0 to 1.0, (ii) for any fiscal quarter ending during the period from December 31, 2006 to and
including September 30, 2007, 3.0 to 1.0 and (iii) for any fiscal quarter ending on and after
December 31, 2007, 2.5 to 1.0.



     (c) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge
Coverage Ratio as of the end of any fiscal quarter of the Borrower to be less than (i) for any
fiscal quarter ending during the period from the Closing Date to and including September 31, 2006,
1.25 to 1.0 and (ii) for any fiscal quarter ending on and after December 31, 2006, 1.5 to 1.0.



     8.12 Prepayment of Second Lien Term Loan.



     (a) Make (or give any notice with respect thereto) any prepayment of the Second Lien Term Loan
other than (i) any prepayment of the Second Lien Term Loan with Net Cash Proceeds received from any
Equity Issuance by the Borrower and (ii) any prepayment of the Second Lien Term Loan made in
accordance with Section 4.3 of the Intercreditor Agreement.



     (b) Permit the Second Lien Loan Documents to be amended, supplemented or otherwise modified,
except as permitted pursuant to the Intercreditor Agreement.



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



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



76









 





     (b) Change its fiscal year.



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



     8.14 Ownership of Subsidiaries.



     Notwithstanding any other provisions of this Agreement to the contrary, (a) permit any Person
(other than the Borrower or any Wholly Owned Subsidiary of the Borrower) to own any Equity
Interests of any Subsidiary of the Borrower, except (i) to qualify directors where required by
applicable law and (ii) those non wholly owned Subsidiaries of the Borrower identified on
Schedule 8.14, (b) permit any Subsidiary of the Borrower to issue or have outstanding any
shares of preferred Equity Interests or (c) create, incur, assume or suffer to exist any Lien on
any Equity Interests of any Subsidiary of the Borrower, except for Permitted Liens.



     8.15 Inactive Subsidiaries.



     Permit any Inactive Subsidiary to (a) conduct any business other than those actions directly
and exclusively (i) necessary for the purpose of liquidating and dissolving such Inactive
Subsidiary, (ii) relating to defending or settling any action, suit, proceeding, claim, dispute,
lawsuit or action, or (iii) with respect to National Reproductive Centers, Inc. or any of its
Inactive Subsidiaries, relating to the continued storage and maintenance of cryopreserved tissue,
(b) own any assets other than (i) with respect to Diabetes Self Care, Inc., a Virginia corporation,
the ownership of certain accounts receivable in an aggregate amount not to exceed $2,000,000, which
accounts receivable are expected to be written off as of December 31, 2005 and are fully reserved
for in the consolidated financial statements of the Borrower, and (ii) cyropreserved tissue owned
by National Reproductive Centers, Inc. or any of its Inactive Subsidiaries, or (c) have any
liabilities other than any liabilities (i) resulting from any action, suit, proceeding, claim or
dispute, including, without limitation, any settlement thereof and expenses related thereto, and
(ii) with respect to National Reproductive Centers, Inc. or any of its Inactive Subsidiaries, the
storage and maintenance costs of cryopreserved tissue.



ARTICLE IX



EVENTS OF DEFAULT AND REMEDIES




     9.01 Events of Default.



     Any of the following shall constitute an Event of Default:




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




     (b) Specific Covenants. Any Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Section 7.03(a), 7.05,
7.10, 7.11, 7.12, 7.15, or 7.16 or Article
VIII; or



77









 






     (c) Information Covenants. Any Loan Party fails to perform or observe any
term, covenant or agreement contained in any of Section 7.01 or 7.02 and
such failure continues for five days; or




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




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




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




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




     (h) Inability to Pay Debts; Attachment. (i) The Borrower or any Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its debts as
they become due, or (ii) any writ or warrant of attachment or execution or similar process
is issued or levied against all



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or any material part of the property of any such Person and is not released, vacated or
fully bonded within thirty days after its issue or levy; or




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




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




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




     (l) Intercreditor Agreement. The Intercreditor Agreement ceases to be in full
force and effect or is determined by any Governmental Authority or arbitral entity having
jurisdiction to be void, unenforceable or otherwise not in full force and effect, in whole
or in part, for any reason;




     (l) Change of Control. There occurs any Change of Control;
or




     (m) Second Lien Loan Documents. There shall occur an “Event of Default” (or
any comparable term) under, and as defined in, the Second Lien Loan Documents.



     9.02 Remedies Upon Event of Default.



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




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




     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued
and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan



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Document to be immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by the Borrower;




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




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


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




     9.03 Application of Funds.



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




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




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




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




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



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Lenders (and, in the case of such Swap Contracts, Affiliates of Lenders) and the L/C
Issuer in proportion to the respective amounts described in this clause Fourth held
by them; and




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



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



ARTICLE X



ADMINISTRATIVE AGENT




     10.01 Appointment and Authority.



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



     (b) Each of the Lenders hereby acknowledges that it has received and reviewed the
Intercreditor Agreement and agrees to be bound by the terms thereof. Each Lender hereby (i)
acknowledges that Bank of America is acting under the Intercreditor Agreement in multiple
capacities as the Administrative Agent, the Second Lien Lender and the Control Agent and (ii)
waives any conflict of interest, now contemplated or arising hereafter, in connection therewith and
agrees not to assert against Bank of America any claims, causes of action, damages or liabilities
of whatever kind or nature relating thereto. Each Lender hereby authorizes and directs Bank of
America to enter into the Intercreditor Agreement on behalf of such Lender and agrees that Bank of
America, in its various capacities thereunder, may take such actions on its behalf as is
contemplated by the terms of the Intercreditor Agreement.



     10.02 Rights as a Lender.



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



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     10.03 Exculpatory Provisions.



     Neither the Administrative Agent nor the Collateral Agent shall have any duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without limiting the
generality of the foregoing, the Administrative Agent and the Collateral Agent:




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




     (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except (i) with respect to the Administrative Agent, discretionary
rights and powers expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be expressly provided for herein
or in the other Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Loan Document or applicable
law and (ii) with respect to the Collateral Agent, discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Collateral Agent is required to
exercise as directed in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that the Collateral Agent shall not be required to take any action that, in
its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or
that is contrary to any Loan Document or applicable law; and




     (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any Loan Party or any of its Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent, the Collateral Agent or any of
its Affiliates in any capacity.



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



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



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satisfaction of any condition set forth in Article V or elsewhere herein, other than
to confirm receipt of items expressly required to be delivered to the Administrative Agent or the
Collateral Agent, as applicable.




     10.04 Reliance by Administrative Agent.



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



     10.05 Delegation of Duties.



     The Administrative Agent and the Collateral Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or through any one or
more sub-agents appointed by the Administrative Agent or the Collateral Agent, as applicable. The
Administrative Agent, the Collateral Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective Related Parties. The
exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties
of the Administrative Agent and/or the Collateral Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent and the Collateral Agent.



     10.06 Resignation of Administrative Agent.



     The Administrative Agent may at any time give notice of its resignation to the Lenders, the
L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a
bank with an office in the United States, or an Affiliate of any such bank with an office in the
United States. If no such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C
Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until
such time as the Required Lenders appoint a successor Administrative Agent as provided for above in
this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights, powers,



83









 




privileges and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations hereunder or under
the other Loan Documents (if not already discharged therefrom as provided above in this Section).
The fees payable by the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and such successor. After
the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 11.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.




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



     10.07 Non-Reliance on Administrative Agent and Other Lenders.



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



     10.08 No Other Duties; Etc.



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



     10.09 Administrative Agent May File Proofs of Claim.



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




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations (other than
obligations under Swap Contracts or Treasury Management Agreements to which the



84









 






Administrative Agent is not a party) that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of the Lenders, the
L/C Issuer, the Administrative Agent and the Collateral Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C
Issuer, the Administrative Agent and the Collateral Agent and their respective agents and
counsel and all other amounts due the Lenders, the L/C Issuer, the Administrative Agent and
the Collateral Agent under Sections 2.03(i) and (j), 2.08 and
11.04) allowed in such judicial proceeding; and




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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender, the L/C Issuer and the
Collateral Agent to make such payments to the Administrative Agent and, in the event that the
Administrative Agent shall consent to the making of such payments directly to the Lenders, the L/C
Issuer and the Collateral Agent, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent under Sections 2.08
and 11.04.




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



     10.10 Collateral and Guaranty Matters.



     The Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, the Collateral
Agent and the Control Agent, as applicable, at its option and in its discretion,




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




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




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




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



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ARTICLE XI



MISCELLANEOUS




     11.01 Amendments, Etc.



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



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




     (i) extend or increase the Commitment of a Lender (or reinstate any Commitment
terminated pursuant to Section 9.02) without the written consent of such
Lender whose Commitment is being extended or increased (it being understood and
agreed that a waiver of any condition precedent set forth in Section 5.02 or
of any Default or a mandatory reduction in Commitments or any waiver of any
mandatory prepayment is not considered an extension or increase in Commitments of
any Lender);




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




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




     (iv) change Section 2.13 or Section 9.03 in a manner that would
alter the pro rata sharing of payments required thereby without the written consent
of each Lender directly affected thereby;




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




     (vi) except in connection with a Disposition permitted under Section
8.05, release all or substantially all of the Collateral without the written
consent of each Lender directly affected thereby;




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



86









 






     (viii) without the consent of Lenders (other than Defaulting Lenders) holding
in the aggregate at least a majority of the Revolving Commitments (or if the
Revolving Commitments have been terminated, the outstanding Revolving Loans (and
participations in any Swing Line Loans and L/C Obligations)), (i) waive any Default
or Event of Default for purposes of Section 5.02 for purposes of any
Revolving Loan borrowing or L/C Credit Extension, (ii) amend, change, waive,
discharge or terminate Section 2.01(a), 2.02, 2.03,
2.05(b)(i) or 2.06 or any term, covenant or agreement contained in
Article VIII or Article IX or (iii) amend or change any provision of
this Section 11.01(a)(viii);




     (ix) without the consent of Lenders (other than Defaulting Lenders) holding in
the aggregate at least a majority of each of (i) the outstanding Tranche B Term Loan
and (ii) the outstanding Tranche C Term Loan (and participations therein), (A)
amend, change, waive, discharge or terminate Section 2.05(b)(vii) so as to
alter the manner of application of proceeds of any mandatory prepayment required by
Section 2.05(b)(ii), (iii), (iv), (v) or
(vi) hereof or (B) amend or change any provision of this Section
11.01(a)(ix); or




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




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




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


provided, however, that notwithstanding anything to the contrary herein, (i) no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or extended without the
consent of such Lender, (ii) each Lender is entitled to vote as such Lender sees fit on any
bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the
provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous
consent provisions set forth herein and (iii) the Required Lenders shall determine whether or not
to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding and such determination shall be binding on all of the Lenders.




     11.02 Notices and Other Communications; Facsimile Copies.



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




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



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     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.



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



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



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



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



     (d) Change of Address, Etc. Each of the Borrower, the Administrative Agent, the
Collateral Agent, the L/C Issuer and the Swing Line Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the other parties
hereto. Each other Lender



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may change its address, telecopier or telephone number for notices and other communications
hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line
Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to
ensure that the Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.




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



     11.03 No Waiver; Cumulative Remedies.



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



     11.04 Expenses; Indemnity; and Damage Waiver.



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



     (b) Indemnification by the Loan Parties. The Loan Parties shall indemnify the
Administrative Agent (and any sub-agent thereof), the Collateral Agent (and any sub-agent thereof),
each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such
Person



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being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each
Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of
any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or
by the Borrower or any other Loan Party arising out of, in connection with, or as a result of (i)
the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related
Parties only and in the case of the Collateral Agent (and any sub-agent thereof) its Related
Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or
Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the
L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii)
any actual or alleged presence or release of Hazardous Materials on or from any property owned or
operated by a Loan Party or any of its Subsidiaries, or any Environmental Liability related in any
way to a Loan Party or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by the Borrower or any
other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any
other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan Document, if the Borrower or such Loan Party has obtained a final
and nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction.




     (c) Reimbursement by Lenders. To the extent that the Loan Parties for any reason fail
to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by
them to the Administrative Agent (or any sub-agent thereof), the Collateral Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees
to pay to the Administrative Agent (or any such sub-agent), the Collateral Agent (or any sub-agent
thereof), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent), the Collateral Agent (or any such
sub-agent) or the L/C Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent), the Collateral Agent (or any
such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders
under this subsection (c) are subject to the provisions of Section 2.12(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Loan Party shall assert, and each Loan Party hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the
proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby.



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



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



     11.05 Payments Set Aside.



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



     11.06 Successors and Assigns.



     (a) Successors and Assigns Generally. The provisions of this Agreement and the other
Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and
their respective successors and assigns permitted hereby, except that the Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder or thereunder without the prior
written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of subsection (f) of this Section
(and any other attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent,
the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.



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



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     (i) except in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to
a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment, determined as of the
date the Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as
of the Trade Date, shall not be less than $5,000,000, in the case of Revolving Commitments,
and shall not be less than $1,000,000, in the case of the Tranche B Term Loan and the
Tranche C Term Loan, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each such consent
not to be unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent assignments from
members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and
members of its Assignee Group) will be treated as a single assignment for purposes of
determining whether such minimum amount has been met;




     (ii) any assignment of a Revolving Commitment must be approved by the Administrative
Agent, the L/C Issuer and the Swing Line Lender unless the Person that is the proposed
assignee is itself a Lender (whether or not the proposed assignee would otherwise qualify as
an Eligible Assignee); and




     (iii) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee in the
amount, if any, required as set forth in Schedule 11.06, and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04
with respect to facts and circumstances occurring prior to the effective date of such assignment).
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with subsection (d) of
this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and the L/C Issuer at any reasonable time and
from time to time upon reasonable prior notice. In addition, at any time that a request for a
consent for a material or substantive change to the



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Loan Documents is pending, any Lender may request and receive from the Administrative Agent a copy
of the Register.




     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i)
such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent, the other Lenders and the L/C Issuer shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other modification described in
clauses (i) through (vii) of the Section 11.01(a) that affects such Participant. Subject
to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 11.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.13 as though it were a Lender.



     (e) Limitation on Participant Rights. A Participant shall not be entitled to receive
any greater payment under Section 3.01 or 3.04 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.01(e) as though it were a Lender.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.



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



     (h) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon thirty days’
notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon thirty days’ notice
to the Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the



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




     11.07 Treatment of Certain Information; Confidentiality.



     Each of the Administrative Agent, the Collateral Agent, the Lenders and the L/C Issuer agrees
to maintain the confidentiality of the Confidential Information (as defined below), except that
Confidential Information may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, advisors and representatives and to
any direct or indirect contractual counterparty (or such contractual counterparty’s professional
advisor) under any Swap Contract relating to Loans outstanding under this Agreement (it
being understood that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Confidential Information and instructed to keep such Confidential
Information confidential), (b) to the extent requested by any regulatory authority purporting to
have jurisdiction over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to a Loan Party and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Confidential Information (x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Administrative Agent, the Collateral Agent, any
Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a
source other than the Borrower.



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



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degree of care to maintain the confidentiality of such Confidential Information as such Person
would accord to its own confidential information.




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



     11.08 Set-off.



     If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and
each of their respective Affiliates is hereby authorized at any time and from time to time, after
obtaining the prior written consent of the Administrative Agent, to the fullest extent permitted by
applicable law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the
credit or the account of the Borrower or any other Loan Party against any and all of the
obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or
any other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such
Lender or the L/C Issuer shall have made any demand under this Agreement or any other Loan Document
and although such obligations of the Borrower or such Loan Party may be contingent or unmatured or
are owed to a branch or office of such Lender or the L/C Issuer different from the branch or office
holding such deposit or obligated on such indebtedness. The rights of each Lender, the L/C Issuer
and their respective Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates
may have. Each Lender and the L/C Issuer agrees to notify the Borrower and the Administrative
Agent promptly after any such setoff and application, provided that the failure to give
such notice shall not affect the validity of such setoff and application.



     11.09 Interest Rate Limitation.




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



     11.10 Counterparts; Integration; Effectiveness.



     This Agreement may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and the other Loan Documents constitute the
entire contract among the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 5.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the



95









 




signatures of each of the other parties hereto. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.




     11.11 Survival of Representations and Warranties.



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



     11.12 Severability.



     If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid
or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.



     11.13 Replacement of Lenders.



     If (i) any Lender requests compensation under Section 3.04, (ii) the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 3.01, (iii) any Lender is unable to make Loans at the
Eurodollar Rate as contemplated by Section 3.02 or (iv) a Lender (a “Non-Consenting
Lender”) does not consent to a proposed change, waiver, discharge or termination with respect
to any Loan Document that has been approved by the Required Lenders as provided in Section
11.01 but requires unanimous consent of all Lenders or all Lenders directly affected thereby
(as applicable) and, or (iv) any Lender is a Defaulting Lender, then the Borrower may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Section 11.06), all of its interests, rights and obligations
under this Agreement and the related Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment),
provided that:




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




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



96









 






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




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




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



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



     11.14 Governing Law; Jurisdiction; Etc.



     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.



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



     (c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN



97









 




PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE
OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.




     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     11.15 Waiver of Right to Trial by Jury.



     EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     11.16 USA PATRIOT Act Notice.



     Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and other
information that will allow such Lender or the Administrative Agent, as applicable, to identify the
Borrower in accordance with the Act.



[SIGNATURE PAGES FOLLOW]




98









 








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



	 	 	 	 	 	 	 	 	 
	BORROWER:	 	MATRIA HEALTHCARE, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Stephen M. Mengert	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Stephen M. Mengert	 	 
	 	 	Title:	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	GUARANTORS:	 	MATRIA WOMEN’S AND CHILDREN’S HEALTH, LLC,	 	 
	 	 	a Delaware limited liability company	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Thornton A. Kuntz	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Thornton A. Kuntz	 	 
	 	 	Title:	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	MATRIA CASE MANAGEMENT, INC.,	 	 
	 	 	a Georgia corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Thornton A. Kuntz	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Thornton A. Kuntz	 	 
	 	 	Title:	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	MIAVITA, INC.,	 	 
	 	 	a Georgia corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Thornton A. Kuntz	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Thornton A. Kuntz	 	 
	 	 	Title:	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	MATRIA HEALTH ENHANCEMENT COMPANY,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Thornton A. Kuntz	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Thornton A. Kuntz	 	 
	 	 	Title:	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	DIABETES ACQUISITION, INC.,	 	 
	 	 	a Georgia corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Yvonne V. Scoggins	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Yvonne V. Scoggins	 	 
	 	 	Title:	 	Treasurer	 	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	GAINOR MEDICAL ACQUISITION COMPANY,	 	 
	 	 	a Georgia corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Yvonne V. Scoggins	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Yvonne V. Scoggins	 	 
	 	 	Title:	 	Treasurer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FACET TECHNOLOGIES, LLC,	 	 
	 	 	a Georgia limited liability company	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Thornton A. Kuntz	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Thornton A. Kuntz	 	 
	 	 	Title:	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	MATRIA HEALTHCARE OF ILLINOIS, INC.,	 	 
	 	 	a Georgia corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Yvonne V. Scoggins	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Yvonne V. Scoggins	 	 
	 	 	Title:	 	Treasurer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	MATRIA OF NEW YORK, INC.,	 	 
	 	 	a New York corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Yvonne V. Scoggins	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Yvonne V. Scoggins	 	 
	 	 	Title:	 	Treasurer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	QUALITY ONCOLOGY, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Thornton A. Kuntz	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Thornton A. Kuntz	 	 
	 	 	Title:	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	WINNINGHABITS, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Thornton A. Kuntz	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Thornton A. Kuntz	 	 
	 	 	Title:	 	Vice President	 	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	WINNINGHABITS.COM, LTD.,	 	 
	 	 	a Texas limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	WINNINGHABITS GP, INC., its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Thornton A. Kuntz	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Thornton A. Kuntz	 	 
	 	 	Title:	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	WINNINGHABITS GP, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Thornton A. Kuntz	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Thornton A. Kuntz	 	 
	 	 	Title:	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	WINNINGHABITS LP, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Thornton A. Kuntz	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Thornton A. Kuntz	 	 
	 	 	Title:	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	CORSOLUTIONS MEDICAL, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Stephen M. Mengert	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Stephen M. Mengert	 	 
	 	 	Title:	 	Assistant Treasurer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	CORSOLUTIONS INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Stephen M. Mengert	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Stephen M. Mengert	 	 
	 	 	Title:	 	Treasurer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	HEALTH AND PRODUCTIVITY CORPORATION OF AMERICA, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Stephen M. Mengert	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Stephen M. Mengert	 	 
	 	 	Title:	 	Treasurer	 	 






 









 






	 	 	 	 	 	 	 	 	 
	ADMINISTRATIVE AGENT:	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as Administrative Agent and Collateral Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Kristine Thennes	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Kristine Thennes	 	 
	 	 	Title:	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	LENDERS:	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as a Lender, Swing Line Lender and L/C Issuer	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ William H. Powell	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	William H. Powell	 	 
	 	 	Title:	 	Senior Vice President