EX-10.2 TERM LOAN AGREEMENT



 






Exhibit 10.2




 





TERM LOAN 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 and Collateral Agent,




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
	 	 	22	 
	1.03 Accounting Terms
	 	 	22	 
	1.04 Rounding
	 	 	23	 
	1.05 Times of Day
	 	 	23	 
	ARTICLE II TERM LOAN
	 	 	23	 
	2.01 Term Loan
	 	 	23	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	23	 
	2.03 Prepayments
	 	 	24	 
	2.04 Repayment of Loans
	 	 	26	 
	2.05 Interest
	 	 	26	 
	2.06 Fees
	 	 	27	 
	2.07 Computation of Interest and Fees
	 	 	27	 
	2.08 Evidence of Debt
	 	 	27	 
	2.09 Payments Generally; Administrative Agent’s Clawback
	 	 	28	 
	2.11 Sharing of Payments by Lenders
	 	 	29	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	30	 
	3.01 Taxes
	 	 	30	 
	3.02 Illegality
	 	 	31	 
	3.03 Inability to Determine Rates
	 	 	32	 
	3.04 Increased Costs
	 	 	32	 
	3.05 Compensation for Losses
	 	 	33	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	34	 
	3.07 Survival
	 	 	34	 
	ARTICLE IV GUARANTY
	 	 	34	 
	4.01 The Guaranty
	 	 	34	 
	4.02 Obligations Unconditional
	 	 	35	 
	4.03 Reinstatement
	 	 	36	 
	4.04 Certain Additional Waivers
	 	 	36	 
	4.05 Remedies
	 	 	36	 
	4.06 Rights of Contribution
	 	 	36	 
	4.07 Guarantee of Payment; Continuing Guarantee
	 	 	36	 
	ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	37	 
	5.01 Conditions of Initial Credit Extension
	 	 	37	 
	5.02 Conditions to all Credit Extensions
	 	 	40	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	41	 
	6.01 Existence, Qualification and Power
	 	 	41	 
	6.02 Authorization; No Contravention
	 	 	41	 
	6.03 Governmental Authorization; Other Consents
	 	 	41	 
	6.04 Binding Effect
	 	 	41	 
	6.05 Financial Statements; No Material Adverse Effect; No Internal Control Event
	 	 	41	 
	6.06 Litigation
	 	 	42	 






 









 






	 	 	 	 	 
	6.07 No Default
	 	 	43	 
	6.08 Ownership of Property; Liens
	 	 	43	 
	6.09 Environmental Compliance
	 	 	43	 
	6.10 Insurance
	 	 	44	 
	6.11 Taxes
	 	 	44	 
	6.12 ERISA Compliance
	 	 	44	 
	6.13 Subsidiaries
	 	 	45	 
	6.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act
	 	 	45	 
	6.15 Disclosure
	 	 	45	 
	6.16 Compliance with Laws
	 	 	45	 
	6.17
Intellectual Property; Licenses, Etc.
	 	 	46	 
	6.18 Solvency
	 	 	46	 
	6.19 Perfection of Security Interests in the Collateral
	 	 	46	 
	6.20 Business Locations
	 	 	46	 
	6.21 Labor Matters
	 	 	46	 
	ARTICLE VII AFFIRMATIVE COVENANTS
	 	 	47	 
	7.01 Financial Statements
	 	 	47	 
	7.02 Certificates; Other Information
	 	 	47	 
	7.03 Notices
	 	 	49	 
	7.04 Payment of Obligations
	 	 	50	 
	7.05
Preservation of Existence, Etc.
	 	 	50	 
	7.06 Maintenance of Properties
	 	 	50	 
	7.07 Maintenance of Insurance
	 	 	51	 
	7.08 Compliance with Laws
	 	 	51	 
	7.09 Books and Records
	 	 	51	 
	7.10 Inspection Rights
	 	 	51	 
	7.11 Use of Proceeds
	 	 	52	 
	7.12 Additional Subsidiaries
	 	 	52	 
	7.13 ERISA Compliance
	 	 	52	 
	7.14 Pledged Assets
	 	 	53	 
	7.15 Interest Rate Protection Agreements
	 	 	53	 
	7.16
Post-Closing Deliverables
	 	 	53	 
	ARTICLE VIII NEGATIVE COVENANTS
	 	 	54	 
	8.01 Liens
	 	 	54	 
	8.02 Investments
	 	 	55	 
	8.03 Indebtedness
	 	 	56	 
	8.04 Fundamental Changes
	 	 	57	 
	8.05 Dispositions
	 	 	58	 
	8.06 Restricted Payments
	 	 	58	 
	8.07 Change in Nature of Business
	 	 	58	 
	8.08 Transactions with Affiliates and Insiders
	 	 	58	 
	8.09 Burdensome Agreements
	 	 	58	 
	8.10 Use of Proceeds
	 	 	59	 
	8.11 Financial Covenants
	 	 	59	 
	8.12 First Lien Loan Documents
	 	 	59	 






 









 






	 	 	 	 	 
	8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity
	 	 	60	 
	8.14 Ownership of Subsidiaries
	 	 	60	 
	8.15 Inactive Subsidiaries
	 	 	60	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES
	 	 	60	 
	9.01 Events of Default
	 	 	60	 
	9.02 Remedies Upon Event of Default
	 	 	63	 
	9.03 Application of Funds
	 	 	63	 
	ARTICLE X ADMINISTRATIVE AGENT
	 	 	64	 
	10.01 Appointment and Authority
	 	 	64	 
	10.02 Rights as a Lender
	 	 	64	 
	10.03 Exculpatory Provisions
	 	 	64	 
	10.04 Reliance by Administrative Agent
	 	 	65	 
	10.05 Delegation of Duties
	 	 	66	 
	10.06 Resignation of Administrative Agent
	 	 	66	 
	10.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	67	 
	10.08 No
Other Duties; Etc.
	 	 	67	 
	10.09 Administrative Agent May File Proofs of Claim
	 	 	67	 
	10.10 Collateral and Guaranty Matters
	 	 	68	 
	ARTICLE XI MISCELLANEOUS
	 	 	68	 
	11.01
Amendments, Etc.
	 	 	68	 
	11.02 Notices and Other Communications; Facsimile Copies
	 	 	69	 
	11.03 No Waiver; Cumulative Remedies
	 	 	71	 
	11.04 Expenses; Indemnity; and Damage Waiver
	 	 	71	 
	11.05 Payments Set Aside
	 	 	72	 
	11.06 Successors and Assigns
	 	 	73	 
	11.07 Treatment of Certain Information; Confidentiality
	 	 	75	 
	11.08 Set-off
	 	 	76	 
	11.09 Interest Rate Limitation
	 	 	76	 
	11.10 Counterparts; Integration; Effectiveness
	 	 	76	 
	11.11 Survival of Representations and Warranties
	 	 	77	 
	11.12 Severability
	 	 	77	 
	11.13 Replacement of Lenders
	 	 	77	 
	11.14
Governing Law; Jurisdiction; Etc.
	 	 	78	 
	11.15 Waiver of Right to Trial by Jury
	 	 	79	 
	11.16 USA PATRIOT Act Notice
	 	 	79	 






 









 






SCHEDULES




	 	 	 
	 	1.01(a)

	Consolidated EBITDA
	 	1.01(b)

	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
	 	2.08

	Form of Term Loan Note
	 	7.02

	Form of Compliance Certificate
	 	7.12

	Form of Joinder Agreement
	 	11.06

	Form of Assignment and Assumption






 









 






TERM LOAN AGREEMENT




     This TERM LOAN 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 and Collateral Agent.



     The Borrower has requested that the Lenders provide an $85,000,000 term loan facility 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.



     “Agreement” means this Term Loan Agreement.



     “Applicable Percentage” means with respect to any Lender at any time, with respect to
such Lender’s portion of the outstanding Term Loan at any time, the percentage of the outstanding
principal amount of the 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 percentage per annum equal to (i) for Eurodollar Rate Loans,
6.75% and (ii) for Base Rate Loans, 5.75%.



     “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.



     “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.



     “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.



2









 





     “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.



     “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 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



3









 






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 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 First Lien Credit 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 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.



4









 





     “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 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 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



5









 




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 First Lien
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 2.03.



     “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 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.



6









 





     “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 a Borrowing.



     “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 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.



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
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 First Lien Credit 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 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.



7









 





     “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 the Administrative Agent
(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 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).



8









 





     “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 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.



     “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



9









 




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 First Lien
Credit Agreement.




     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender 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.



     “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.



     “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.



10









 





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



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



     “First Lien Collateral Documents” means the First Lien Security Agreement, the First
Lien Pledge Agreement and each of the other agreements or documents that creates or purports to
create a Lien in favor of the First Lien Collateral Agent for the benefit of the First Lien Lenders
and a Lien in certain assets in favor of the Control Agent for the benefit of the First Lien
Collateral Agent (on behalf of the First Lien Lenders).



     “First Lien Credit Agreement” means that certain Credit 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., as First Lien Agent and First Lien Collateral Agent, as amended or modified
from time to time in accordance with the terms thereof and hereof.



     “First Lien Event of Default” means an “Event of Default” as defined in the
First Lien Credit Agreement.



     “First Lien Lender” means each lender from time to time party to the First Lien Credit
Agreement.



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



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



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



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



     “First Lien Tranche C Term Loan” means the tranche C terms loan advanced by the First
Lien Lenders pursuant to the First Lien Credit Agreement.



     “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.



11









 





     “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);




     (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.



12









 






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 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.



13









 





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



     “Inactive Subsidiaries” means those Subsidiaries of the Borrower identified on
Schedule 1.01(b) 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).



     “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 First 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, 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



14









 






     (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.



     “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.



     “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.



     “Lenders” means each of the Persons identified as a “Lender” on the signature pages
hereto and their successors and assigns.



     “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.



     “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



15









 




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 Term Loan.



     “Loan Documents” means this Agreement, each Note, 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 July 19, 2012.



     “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.



16









 





     “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 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, 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.



     “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 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.



     “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.



17









 





     “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 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 $11,150,000.



     “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 (Second 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



18









 




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.



     “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, with respect to a Borrowing, conversion or
continuation of Loans, a Loan Notice.



     “Required Lenders” means, at any time, Lenders holding in the aggregate more than 50%
of the outstanding Loans and participations therein. 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.



     “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.



19









 





     “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 (Second 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 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



20









 




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).



     “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 Loan” has the meaning specified in Section 2.01.



     “Term Loan Commitment” means, as to each Lender, its obligation to make its portion of
the Term Loan to the Borrower pursuant to Section 2.01, in the principal amount set forth
opposite such Lender’s name on Schedule 2.01. The aggregate principal amount of the Term
Loan Commitments of all of the Lenders as in effect on the Closing Date is EIGHTY-FIVE MILLION
DOLLARS ($85,000,000).



     “Term Loan Note” has the meaning specified in Section 2.08.



     “Threshold Amount” means $5,750,000.



     “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 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.



     “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.



21









 





     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.



     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



22









 




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).



ARTICLE II




TERM LOAN




     2.01 Term Loan.



     Subject to the terms and conditions set forth herein, each Lender severally agrees to make its
portion of a term loan (the “Term Loan”) to the Borrower in Dollars on the Closing Date in
an amount not to exceed such Lender’s Term Loan Commitment. Amounts repaid on the Term Loan may
not be reborrowed. The 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. Each Borrowing of or conversion to Base Rate
Loans shall be in a principal amount of



23









 




$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 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 5.01 and 5.02, 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.



     (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 the Term Loan.



     2.03 Prepayments.



     (a) Voluntary Prepayments of Loans.




     Subject to Section 2.03(c), the Borrower may, upon notice from the Borrower to
the Administrative Agent, at any time or from time to time voluntarily prepay the Term Loan
in whole or in part without premium or penalty; provided that (i) such notice must
be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days
prior to any date of



24









 






prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate
Loans; (ii) 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); and (iii) 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). 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.



     (b) Mandatory Prepayments. Subject, in each case, to the Intercreditor Agreement and
Section 2.03(c), the Borrower shall prepay the Term Loan as follows:




     (i) 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 Loan as hereafter provided in an aggregate amount
equal to 100% of the Net Cash Proceeds of all Dispositions. Any prepayment pursuant
to this clause (i)(A) shall be applied as set forth in clause (vi) 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 Loan 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 (i)(B) shall be applied as set
forth in clause (vi) below.




     (ii) 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 Loan 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 (ii) shall be applied as set forth in clause (vi) below.




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




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



25









 






     (v) 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 Loan 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 (v) to be applied as set forth in clause (vi) below.




     (vi) Application of Mandatory Prepayments. All amounts required to be paid
pursuant to this Section 2.03(b) 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 2.03(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.




     Notwithstanding the foregoing, if (a) the First Lien Loan Documents as in effect on the
date hereof require prepayments to be made on the First Lien Obligations from (i) the Net
Cash Proceeds of any Disposition, Involuntary Disposition, Extraordinary Receipt or Debt
Issuance or (ii) Excess Cash Flow for any fiscal year and (b) the First Lien Lenders do not
waive any such prepayments, the Borrower shall not be required to make a mandatory
prepayment of the Term Loan pursuant to this Section 2.03(b) with respect to such
applicable Net Cash Proceeds or Excess Cash Flow.




(c) All prepayments of the Term Loan (whether voluntary or mandatory) that are made (other
than any mandatory prepayment of the Term Loan made pursuant to Section
2.03(b)(iv))(i) prior to the first anniversary of the Closing Date shall be subject to
an additional premium equal to the amount of such prepayment multiplied by 2% and (ii) on or
after the first anniversary of the Closing Date but prior to the second anniversary of the
Closing Date shall be subject to an additional premium equal to the amount of such
prepayment multiplied by 1%. On or after the second anniversary of the Closing Date, no
premiums or penalties shall be payable pursuant to this Section 2.03(c) in
connection with any prepayments of the Term Loan.



     2.04 Repayment of Loans.



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



     2.05 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 and (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.




(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.



26









 






     (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.



     2.06 Fees.



     The Borrower shall pay to the Administrative Agent for its own account fees in the amount and
at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall not
be refundable for any reason whatsoever.



     2.07 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 2.09(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.



     2.08 Evidence of Debt.



     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 be in the form of Exhibit 2.08 (a “Term Note”).
Each Lender may attach schedules to its Term Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.



27









 





     2.09 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 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 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 the amount due. In such event, if the Borrower
has not in fact made such payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender, 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



28









 






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 the Term Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the Term Loan 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 and to make payments pursuant to Section 11.04(c) are several and not joint. The
failure of any Lender to make any Loan 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 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.



     2.10 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, 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 of the other Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans and other amounts
owing them, provided that:




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




     (ii) the provisions of this 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 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.



29









 





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 or Lender, 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 and each Lender, 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 or such Lender, 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
(with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.



     (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.



30









 





     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 or any Lender
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 or such Lender,
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 or such Lender
in the event the Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative Agent
or any Lender 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



31









 




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);




     (ii) subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, or any Eurodollar Rate Loan made by it, or change the basis of taxation of
payments to such Lender 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




     (iii) impose on any Lender or the London interbank market any other condition, cost or
expense affecting this Agreement or Eurodollar Rate Loans made by such Lender;




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 to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender, the Borrower will pay to such Lender, as the case
may be, such additional amount or amounts as will compensate such Lender, as the case may
be, for such additional costs incurred or reduction suffered.



     (b) Capital Requirements. If any Lender determines that any Change in Law affecting
such Lender or any Lending Office of such Lender or such Lender’s holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate of return on such
Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of
this Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below
that which such Lender or such



32









 




Lender’s holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s policies and the policies of such Lender’s holding company with respect
to capital adequacy), then from time to time the Borrower will pay to such Lender, as the case may
be, such additional amount or amounts as will compensate such Lender or such Lender’s holding
company for any such reduction suffered.




     (c) Certificates for Reimbursement. A certificate of a Lender setting forth the
amount or amounts necessary to compensate such Lender 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, 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 to demand
compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of
such Lender’s right to demand such compensation, provided that the Borrower shall not be
required to compensate a Lender 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, 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 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:




     (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:



33









 






     (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 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.



     3.07 Survival.



     All of the Borrower’s obligations under this Article III shall survive the repayment
of all Obligations hereunder.



ARTICLE IV




GUARANTY




     4.01 The Guaranty.



     Each of the Guarantors hereby jointly and severally guarantees to each Lender, and the
Administrative Agent as hereinafter provided, as primary obligor and not as surety, the prompt
payment of



34









 




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, 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, 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. Without limiting the
generality of the foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the liability of any
Guarantor hereunder, which shall remain absolute and unconditional as described above:




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




     (b) any of the acts mentioned in any of the provisions of any of the Loan Documents,
or any other agreement or instrument referred to in the Loan Documents, shall be done or
omitted;




     (c) the maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any right under
any of the Loan Documents, or any other agreement or instrument referred to in the Loan
Documents, 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).



35









 





     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, or any other agreement or instrument referred to in the Loan
Documents, 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 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.



     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.



36









 





ARTICLE V




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     5.01 Conditions of Initial Credit Extension.



     The obligation of each Lender to make its 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 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



37









 






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




     (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;



38









 






     (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 First Lien Collateral
(on behalf of the First Lien Lenders).




     (i) Merger. Receipt by the Administrative Agent of (i) evidence that the
Merger will be consummated concurrent with the advances of the 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 and (B) the First Lien Credit Agreement, 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
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 First 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.



39









 






     (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.



     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 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.



40









 





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 made under (i) any of the First 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



41









 




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 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



42









 




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:




     (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.



43









 






     (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. 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



44









 




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, 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.



     (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.



45









 





     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.



     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.



46









 





ARTICLE VII




AFFIRMATIVE COVENANTS




     So long as 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, 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 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



47









 






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;




     (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



48









 






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 materials and/or information provided by or on behalf of the 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



49









 




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 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.



50









 





     (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.



     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.



51









 





     (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




     (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 First Lien Credit 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



52









 




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 second priority, junior only to the Liens in favor of the Control Agent for the benefit
of the First Lien Collateral Agent (on behalf of the First Lien Lenders), 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 a second priority, junior only to the
Liens in favor of the First Lien Collateral Agent (on behalf of the First Lien Lenders), 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 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).



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     (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 2.03(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.



ARTICLE VIII




NEGATIVE COVENANTS




     So long as 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, 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;



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     (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);




     (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 securing the First Lien Obligations; 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 $2,300,000 at any time.



     8.02 Investments.



     Make any Investments, except:



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     (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
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
$1,380,000 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 $1,150,000;




     (j) Investments in Foreign Subsidiaries in an amount not to exceed (i) $5,750,000 in
the aggregate at any time outstanding prior to the Disposition of the German Subsidiary and
(ii) $2,300,000 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 $5,750,000 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



56









 






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 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 $5,750,000 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 First Lien Loan Documents in an aggregate principal amount
not to exceed $500,000,000 at any one time outstanding as increased, amended or refinanced
in accordance with 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 $5,750,000 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



57









 




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 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 $2,300,000.



     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



58









 




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 First 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 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, 5.25 to 1.0, (ii) for any
fiscal quarter ending during the period from December 31, 2006 to and including September 30, 2007,
4.25 to 1.0 and (iii) for any fiscal quarter ending on and after December 31, 2007, 3.75 to 1.0.



     (b) 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,
1.1 to 1.0 and (ii) for any fiscal quarter ending on and after December 31, 2006, 1.35 to 1.0.



     8.12 First Lien Loan Documents.



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



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     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.



     (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 (ii) within three
days after the same becomes due, any interest on any Loan, 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



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     (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, 7.16 or Article
VIII; or




     (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, Indebtedness under Swap Contracts and the First Lien Obligations) 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



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     (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 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; or




     (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; or




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




     (m) First Lien Loan Documents. (i) A First Lien Event of Default shall have
occurred and remain continuing forty-five (45) days after the First Lien Agent received
notice thereof, (ii) any portion of the First Lien Obligations is declared due and payable
(or automatically becomes due and payable) prior to the applicable stated maturity under
the First Lien Credit Agreement as a result of a First Lien Event of Default or (iii) the
First Lien Agent or the First Lien Collateral Agent exercises any of the remedies pursuant
to Section 9.02 of the First Lien Credit Agreement (other than the institution of
the Default Rate under and as defined in the First Lien Credit Agreement) with respect to
any First Lien Event of Default.



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     9.02 Remedies Upon Event of Default.



     Subject to the terms and conditions of the Intercreditor Agreement, 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 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
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; and




     (b) 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
unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable, 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), 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 and interest) payable to the Lenders
(including fees, charges and disbursements of counsel to the respective Lenders 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 interest on the Loans and fees, premiums and scheduled periodic payments, and any
interest accrued thereon, ratably among the Lenders in proportion to the respective amounts
described in this clause Third held by them;




     Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans, ratably among the Lenders 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.



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ARTICLE X




ADMINISTRATIVE AGENT




     10.01 Appointment and Authority.



     (a) Each of the Lenders 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 and the Lenders, 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 First 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.



     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



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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. 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 or a Lender.



     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 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, that by its terms must be fulfilled to the satisfaction of a Lender, the
Administrative Agent may presume that such condition is satisfactory to such Lender unless the
Administrative Agent shall have received notice to the contrary



65









 




from such Lender prior to the making of such Loan. 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 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, 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 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, 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 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 Collateral Agent and (b) the retiring
Collateral Agent shall be discharged from all of its duties and obligations hereunder or under the
other Loan Documents.



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     10.07 Non-Reliance on Administrative Agent and Other Lenders.



     Each Lender 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 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 or a Lender 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 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 and all other Obligations that are owing and unpaid and
to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders, the Administrative Agent and the Collateral Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders, the
Administrative Agent and the Collateral Agent and their respective agents and counsel and
all other amounts due the Lenders, 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 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 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 any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.



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     10.10 Collateral and Guaranty Matters.



     The Lenders irrevocably authorize the Administrative Agent, the Collateral Agent and 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 payment in full of all
Obligations (other than contingent indemnification obligations), (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 the 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.



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) 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) without the written consent of each
Lender entitled to receive such payment;




     (ii) reduce the principal of, or the rate of interest specified herein on, any
Loan, 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



68









 






necessary to amend the definition of “Default Rate” or to waive any obligation
of the Borrower to pay interest at the Default Rate;




     (iii) 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;




     (iv) 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;




     (v) 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; or




     (vi) 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;



     (b) 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, (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 or the
Collateral Agent, to the address, telecopier number, electronic mail address or telephone
number specified for such Person on Schedule 11.02; and




     (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



69









 




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
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 pursuant to Article II if such
Lender, 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 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 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 and the
Collateral Agent may change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each other Lender may change its
address, telecopier or telephone number for notices and other communications hereunder by notice to
the Borrower, the Administrative Agent. 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.



70









 





     (e) Reliance by Administrative Agent and Lenders. The Administrative Agent, the
Collateral Agent and the Lenders shall be entitled to rely and act upon any notices (including
telephonic 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, 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 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), and (ii) all
out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent or any Lender
(including the fees, charges and disbursements of any counsel for the Administrative Agent, the
Collateral Agent or any Lender), 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 hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect of such Loans.



     (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 each Related Party of any of the foregoing Persons (each such Person being called
an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses (including the fees, charges and disbursements of
any 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



71









 




thereof) its Related Parties only, the administration of this Agreement and the other Loan
Documents, (ii) any Loan or the use or proposed use of the proceeds therefrom, (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) 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) 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) 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) in
connection with such capacity. The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.09(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 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.



     (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 and the Collateral Agent, 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 or any Lender, or the Administrative Agent, the Collateral Agent or any Lender exercises its
right of setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated,



72









 




declared to be fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent, the Collateral Agent 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 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 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
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 at the time owing to it);
provided that




     (i) except in the case of an assignment of the entire remaining amount of the assigning
Lender’s 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 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 $1,000,000 unless
each of the Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed); 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; and




     (ii) 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



73









 






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 principal amounts of the Loans owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”). The entries in the Register shall be conclusive, and
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 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 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 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 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
(vi) 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
2.10 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



74









 




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.



     11.07 Treatment of Certain Information; Confidentiality.



     Each of the Administrative Agent, the Collateral Agent and the Lenders 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 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 or any Lender or 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 degree of



75









 




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 and the Lenders 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 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 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,
irrespective of whether or not such Lender 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 different from the branch
or office holding such deposit or obligated on such indebtedness. The rights of each Lender and
their respective Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender or their respective Affiliates may have. Each
Lender 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 signatures of each of the other
parties hereto. Delivery of an executed counterpart of a signature page of



76









 




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.



     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, 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);




     (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;



77









 






     (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 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 CONTROL AGENT, THE COLLATERAL AGENT OR ANY LENDER 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 PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW,



78









 




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]




79









 








     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
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ William H. Powell	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	William H. Powell	 	 
	 

	 	Title:
	 	 Senior Vice President