exv10w1






Exhibit 10.1




CREDIT AND GUARANTY AGREEMENT




dated as of August 19, 2010




among



VICAR OPERATING, INC.,



VCA ANTECH, INC.,



CERTAIN SUBSIDIARIES OF COMPANY,

as Guarantors,



VARIOUS LENDERS,



WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent, Collateral Agent, Issuing Bank and Swing Line Lender,



BANK OF AMERICA, N.A.,

as Syndication Agent



and



JPMORGAN CHASE BANK, N.A.,

U.S. BANK NATIONAL ASSOCIATION, and

UNION BANK, N.A.,

as Co-Documentation Agents

 





$600,000,000 Senior Secured Credit Facilities



 





WELLS FARGO SECURITIES, LLC and BANC OF AMERICA SECURITIES LLC,

as Joint Lead Arrangers and Joint Lead Bookrunners



 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	SECTION 1. DEFINITIONS AND INTERPRETATION	 	 	2	 
	 
	 	 	 	 	 	 
	1.1
	 	Definitions	 	 	2	 
	1.2
	 	Accounting Terms	 	 	30	 
	1.3
	 	Interpretation, etc.	 	 	31	 
	 
	 	 	 	 	 	 
	SECTION 2. LOANS	 	 	31	 
	 
	 	 	 	 	 	 
	2.1
	 	Closing Date Term Loans	 	 	31	 
	2.2
	 	Revolving Loans	 	 	32	 
	2.3
	 	Swing Line Loans	 	 	33	 
	2.4
	 	Pro Rata Shares; Availability of Funds	 	 	35	 
	2.5
	 	Use of Proceeds	 	 	36	 
	2.6
	 	Evidence of Debt; Register;
Lenders’ Books and Records; Notes	 	 	36	 
	2.7
	 	Interest on Loans	 	 	37	 
	2.8
	 	Conversion/Continuation	 	 	39	 
	2.9
	 	Default Interest	 	 	39	 
	2.10
	 	Fees	 	 	39	 
	2.11
	 	Scheduled Payments	 	 	40	 
	2.12
	 	Voluntary Prepayments/Commitment Reductions	 	 	41	 
	2.13
	 	Mandatory Prepayments/Commitment Reductions	 	 	42	 
	2.14
	 	Application of Prepayments/Reductions	 	 	44	 
	2.15
	 	General Provisions Regarding Payments	 	 	45	 
	2.16
	 	Ratable Sharing	 	 	46	 
	2.17
	 	Making or Maintaining Eurodollar Rate Loans	 	 	47	 
	2.18
	 	Increased Costs; Capital Adequacy	 	 	48	 
	2.19
	 	Taxes; Withholding, etc	 	 	50	 
	2.20
	 	Obligation to Mitigate	 	 	52	 
	2.21
	 	Defaulting Lenders	 	 	52	 
	2.22
	 	Removal or Replacement of a Lender	 	 	53	 
	2.23
	 	Issuance of Letters of Credit and Purchase of Participations Therein	 	 	54	 
	2.24
	 	Incremental Facilities	 	 	58	 
	 
	 	 	 	 	 	 
	SECTION 3. CONDITIONS PRECEDENT	 	 	60	 
	 
	 	 	 	 	 	 
	3.1
	 	Closing Date	 	 	60	 
	3.2
	 	Conditions to Each Credit Extension	 	 	63	 
	 
	 	 	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES	 	 	64	 
	 
	 	 	 	 	 	 
	4.1
	 	Organization; Requisite Power and Authority; Qualification	 	 	64	 
	4.2
	 	Capital Stock and Ownership	 	 	64	 
	4.3
	 	Due Authorization	 	 	64	 
	4.4
	 	No Conflict	 	 	64	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	4.5
	 	Governmental Consents	 	 	65	 
	4.6
	 	Binding Obligation	 	 	65	 
	4.7
	 	Historical Financial Statements	 	 	65	 
	4.8
	 	[Reserved]	 	 	65	 
	4.9
	 	No Material Adverse Change	 	 	65	 
	4.10
	 	No Restricted Junior Payments	 	 	65	 
	4.11
	 	Adverse Proceedings, etc	 	 	65	 
	4.12
	 	Payment of Taxes	 	 	66	 
	4.13
	 	Properties	 	 	66	 
	4.14
	 	Environmental Matters	 	 	66	 
	4.15
	 	No Defaults	 	 	67	 
	4.16
	 	Governmental Regulation	 	 	67	 
	4.17
	 	Margin Stock	 	 	67	 
	4.18
	 	Employee Matters	 	 	67	 
	4.19
	 	Employee Benefit Plans	 	 	68	 
	4.20
	 	Certain Fees	 	 	68	 
	4.21
	 	Solvency	 	 	68	 
	4.22
	 	[Reserved]	 	 	68	 
	4.23
	 	Subordination	 	 	68	 
	4.24
	 	Compliance with Statutes, etc	 	 	69	 
	4.25
	 	Disclosure	 	 	69	 
	4.26
	 	U.S. Foreign Corrupt Practices Act and OFAC	 	 	69	 
	 
	 	 	 	 	 	 
	SECTION 5. AFFIRMATIVE COVENANTS	 	 	69	 
	 
	 	 	 	 	 	 
	5.1
	 	Financial Statements and Other Reports	 	 	69	 
	5.2
	 	Existence	 	 	73	 
	5.3
	 	Payment of Taxes and Claims	 	 	73	 
	5.4
	 	Maintenance of Properties	 	 	73	 
	5.5
	 	Insurance	 	 	73	 
	5.6
	 	Inspections	 	 	74	 
	5.7
	 	Lenders Meetings	 	 	74	 
	5.8
	 	Compliance with Laws	 	 	74	 
	5.9
	 	Environmental	 	 	74	 
	5.10
	 	Subsidiaries	 	 	76	 
	5.11
	 	Mortgages on Material Real Estate Assets	 	 	76	 
	5.12
	 	Public Lenders	 	 	77	 
	5.13
	 	Further Assurances	 	 	78	 
	5.14
	 	Post-Closing Covenant	 	 	78	 
	 
	 	 	 	 	 	 
	SECTION 6. NEGATIVE COVENANTS	 	 	78	 
	 
	 	 	 	 	 	 
	6.1
	 	Indebtedness	 	 	78	 
	6.2
	 	Liens	 	 	80	 
	6.3
	 	Equitable Lien	 	 	82	 
	6.4
	 	No Further Negative Pledges	 	 	82	 
	6.5
	 	Restricted Junior Payments	 	 	82	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	6.6
	 	Restrictions on Subsidiary Distributions	 	 	84	 
	6.7
	 	Investments	 	 	84	 
	6.8
	 	Financial Covenants	 	 	86	 
	6.9
	 	Fundamental Changes; Disposition of Assets; Acquisitions	 	 	87	 
	6.10
	 	Disposal of Subsidiary Interests	 	 	88	 
	6.11
	 	Sales and Lease-Backs	 	 	88	 
	6.12
	 	Transactions with Shareholders and Affiliates	 	 	88	 
	6.13
	 	Conduct of Business	 	 	89	 
	6.14
	 	Permitted Activities of Holdings	 	 	89	 
	6.15
	 	Permitted Partially-Owned Subsidiaries	 	 	89	 
	6.16
	 	Amendments or Waivers with respect to Subordinated Indebtedness and
Permitted Unsecured Indebtedness	 	 	89	 
	6.17
	 	Designation of “Senior
Indebtedness”	 	 	89	 
	6.18
	 	Fiscal Year	 	 	90	 
	 
	 	 	 	 	 	 
	SECTION 7. GUARANTY	 	 	90	 
	 
	 	 	 	 	 	 
	7.1
	 	Guaranty of the Obligations	 	 	90	 
	7.2
	 	Contribution by Guarantors	 	 	90	 
	7.3
	 	Payment by Guarantors	 	 	91	 
	7.4
	 	Liability of Guarantors Absolute	 	 	91	 
	7.5
	 	Waivers by Guarantors	 	 	93	 
	7.6
	 	Guarantors’ Rights of Subrogation, Contribution, etc	 	 	93	 
	7.7
	 	Subordination of Other Obligations	 	 	94	 
	7.8
	 	Continuing Guaranty	 	 	94	 
	7.9
	 	Authority of Guarantors or Company	 	 	94	 
	7.10
	 	Financial Condition of Company	 	 	94	 
	7.11
	 	Bankruptcy, etc	 	 	95	 
	7.12
	 	Discharge of Guaranty Upon Sale of Guarantor	 	 	95	 
	 
	 	 	 	 	 	 
	SECTION 8. EVENTS OF DEFAULT	 	 	96	 
	 
	 	 	 	 	 	 
	8.1
	 	Events of Default	 	 	96	 
	 
	 	 	 	 	 	 
	SECTION 9. AGENTS	 	 	98	 
	 
	 	 	 	 	 	 
	9.1
	 	Appointment of Agents	 	 	98	 
	9.2
	 	Powers and Duties	 	 	99	 
	9.3
	 	General Immunity	 	 	99	 
	9.4
	 	Agents Entitled to Act as Lender	 	 	101	 
	9.5
	 	Lenders’ Representations, Warranties and Acknowledgment	 	 	101	 
	9.6
	 	Right to Indemnity	 	 	101	 
	9.7
	 	Successor Administrative Agent, Collateral Agent and Swing Line Lender	 	 	102	 
	9.8
	 	Collateral Documents and Guaranty	 	 	103	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	SECTION 10. MISCELLANEOUS	 	 	104	 
	 
	 	 	 	 	 	 
	10.1
	 	Notices	 	 	104	 
	10.2
	 	Expenses	 	 	105	 
	10.3
	 	Indemnity	 	 	106	 
	10.4
	 	Set-Off	 	 	106	 
	10.5
	 	Amendments and Waivers	 	 	107	 
	10.6
	 	Successors and Assigns; Participations	 	 	109	 
	10.7
	 	Independence of Covenants	 	 	113	 
	10.8
	 	Survival of Representations, Warranties and Agreements	 	 	113	 
	10.9
	 	No Waiver; Remedies Cumulative	 	 	113	 
	10.10
	 	Marshalling; Payments Set Aside	 	 	113	 
	10.11
	 	Severability	 	 	113	 
	10.12
	 	Obligations Several; Independent
Nature of Lenders’ Rights	 	 	113	 
	10.13
	 	Entire Agreement	 	 	114	 
	10.14
	 	Headings	 	 	114	 
	10.15
	 	APPLICABLE LAW	 	 	114	 
	10.16
	 	CONSENT TO JURISDICTION	 	 	114	 
	10.17
	 	WAIVER OF JURY TRIAL	 	 	115	 
	10.18
	 	Confidentiality	 	 	115	 
	10.19
	 	Usury Savings Clause	 	 	116	 
	10.20
	 	Counterparts	 	 	116	 
	10.21
	 	Electronic Execution of Assignments	 	 	116	 
	10.22
	 	USA PATRIOT Act	 	 	116	 
	10.23
	 	No Fiduciary Duty	 	 	117	 






iv









 






	 	 	 	 	 

	APPENDICES:
	 	A-1	 	Closing Date Term Loan Commitments
	 
	 	A-2	 	Revolving Loan Commitments
	 
	 	B	 	Notice Addresses
	 
	 	 	 	 
	SCHEDULES:
	 	1.1	 	Existing Permitted Partially-Owned Subsidiaries
	 
	 	4.1	 	Jurisdictions of Organization
	 
	 	4.2	 	Capital Stock and Ownership
	 
	 	4.13	 	Real Estate Assets
	 
	 	5.14	 	Post-Closing Items
	 
	 	6.1	 	Certain Indebtedness
	 
	 	6.2	 	Certain Liens
	 
	 	6.7	 	Certain Investments
	 
	 	 	 	 
	EXHIBITS:
	 	A-1	 	Funding Notice
	 
	 	A-2	 	Conversion/Continuation Notice
	 
	 	A-3	 	Issuance Notice
	 
	 	B-1	 	Term Loan Note
	 
	 	B-2	 	Revolving Loan Note
	 
	 	B-3	 	Swing Line Note
	 
	 	C	 	Compliance Certificate
	 
	 	D	 	[Reserved]
	 
	 	E	 	Assignment Agreement
	 
	 	F	 	Certificate Re Non-bank Status
	 
	 	G-1	 	Closing Date Certificate
	 
	 	G-2	 	Solvency Certificate
	 
	 	H	 	Counterpart Agreement
	 
	 	I	 	[Reserved]
	 
	 	J	 	Mortgage
	 
	 	K	 	Form of Permitted Seller Note
	 
	 	L	 	Joinder Agreement







v











 





CREDIT AND GUARANTY AGREEMENT




     This CREDIT AND GUARANTY AGREEMENT, dated as of August 19, 2010, is entered into by and among
VICAR OPERATING, INC., a Delaware corporation
(“Company”), VCA ANTECH, INC., a Delaware corporation
(“Holdings”), CERTAIN SUBSIDIARIES OF COMPANY, as Guarantors, the Lenders party hereto from time to
time, WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells Fargo”), as Administrative Agent (together
with its permitted successors in such capacity,
“Administrative Agent”), Collateral Agent (together
with its permitted successors in such capacity, “Collateral
Agent”), Issuing Bank and Swing Line
Lender, BANK OF AMERICA, N.A. (“Bank of America”), as Syndication Agent (in such capacity,
“Syndication Agent”), and JPMORGAN CHASE BANK, N.A., U.S. BANK NATIONAL ASSOCIATION and UNION BANK,
N.A., as Co-Documentation Agents (in such capacity, “Co-Documentation Agents”).



RECITALS:




     WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth
for such terms in Section 1.1 hereof;



     WHEREAS, Company, Holdings, Guarantors, certain financial institutions and other persons (the
“Existing Lenders”), Goldman Sachs Credit Partners L.P., as joint lead arranger, joint bookrunner
and sole syndication agent, and Wells Fargo, as joint lead arranger, joint bookrunner,
administrative agent and collateral agent, are parties to that certain Credit and Guaranty
Agreement dated as of May 16, 2005 (as heretofore amended, supplemented or otherwise modified, the
“Existing Credit Agreement”), pursuant to which the Existing Lenders have extended certain credit
facilities to Company;



     WHEREAS, Company, Holdings, Guarantors, Wells Fargo and the Lenders party hereto agree to
enter into this Credit and Guaranty Agreement (as amended, restated, modified or supplemented from
time to time, this “Agreement”) to extend certain credit facilities to Company hereunder, the
proceeds of which that are funded on the Closing Date to be used (i) to refinance in full the
Existing Credit Agreement, (ii) to pay Transaction Costs and (iii) for working capital and other
general corporate purposes (including Permitted Acquisitions from time to time after the Closing
Date);



     WHEREAS, Company has agreed to secure all of its Obligations by granting to Collateral Agent,
for the benefit of Secured Parties, a First Priority Lien on certain of its assets, including a
pledge of all of the Capital Stock of each of its Domestic Subsidiaries and 65% of all the Capital
Stock of each of its Foreign Subsidiaries; and



     WHEREAS, Guarantors have agreed to guarantee the obligations of Company hereunder and to
secure their respective Obligations by granting to Collateral Agent, for the benefit of Secured
Parties, a First Priority Lien on certain of their respective assets, including a pledge of all of
the Capital Stock in each of their respective Domestic Subsidiaries (including Company) and 65% of
all the Capital Stock in each of their respective Foreign Subsidiaries;



     NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained the parties hereto agree as follows:



 









 





SECTION 1. DEFINITIONS AND INTERPRETATION




     1.1      Definitions. The following terms used herein, including in the preamble, recitals,
exhibits and schedules hereto, shall have the following meanings:



     “Adjusted Eurodollar Rate” means, for any Interest Rate Determination Date with respect to an
Interest Period for a Eurodollar Rate Loan, the rate per annum obtained by dividing (and rounding
upward to the next whole multiple of 1/100 of 1%) (i)(a) the rate per annum (rounded to the nearest
1/100 of 1%) equal to the rate determined by Administrative Agent to be the offered rate which
appears on the page of the Reuters Screen which displays an average British Bankers Association
Interest Settlement Rate (such page currently being LIBOR01 page) for deposits (for delivery on the
first day of such period) with a term equivalent to such period in Dollars, determined as of
approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, or (b) in
the event the rate referenced in the preceding clause (a) does not appear on such page or service
or if such page or service shall cease to be available, the rate per annum (rounded to the nearest
1/100 of 1%) equal to the rate determined by Administrative Agent to be the offered rate on such
other page or other service which displays an average British Bankers Association Interest
Settlement Rate for deposits (for delivery on the first day of such period) with a term equivalent
to such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such
Interest Rate Determination Date, or (c) in the event the rates referenced in the preceding clauses
(a) and (b) are not available, the rate per annum (rounded to the nearest 1/100 of 1%) equal to the
offered quotation rate to first class banks in the London interbank market by Wells Fargo for
deposits (for delivery on the first day of the relevant period) in Dollars of amounts in same day
funds comparable to the principal amount of the applicable Loan of Administrative Agent, in its
capacity as a Lender, for which the Adjusted Eurodollar Rate is then being determined with
maturities comparable to such period as of approximately 11:00 a.m. (London, England time) on such
Interest Rate Determination Date, by (ii) an amount equal to (a) one minus (b) the
Applicable Reserve Requirement.



     “Administrative Agent” as defined in the preamble hereto.



     “Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of
Holdings or any of its Subsidiaries) at law or in equity, or before or by any Governmental
Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the
knowledge of Holdings or any of its Subsidiaries, threatened in writing against or affecting
Holdings or any of its Subsidiaries or any property of Holdings or any of its Subsidiaries.



     “Affected Lender” as defined in Section 2.17(b).



     “Affected Loans” as defined in Section 2.17(b).



     “Affiliate” means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, “control” (including, with
correlative meanings, the terms
“controlling”, “controlled
by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 10% or more of the Securities having ordinary voting power for
the election of



2









 




directors of such Person or (ii) to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or by contract or
otherwise.




     “Agent” means each of Lead Arrangers, Syndication Agent, Administrative Agent and Collateral
Agent.



     “Aggregate Amounts Due” as defined in Section 2.16.



     “Aggregate Payments” as defined in Section 7.2.



     “Agreement” as defined in the Preamble hereto.



     “Applicable Margin’’ and “Applicable Revolving Commitment Fee Percentage’’ mean (i) with
respect to Eurodollar Rate Loans, (a) from the Closing Date until the date of delivery of the
Compliance Certificate and the financial statements for the period ending March 31, 2011, a
percentage, per annum, determined by reference to the following table as if the Leverage Ratio then
in effect were in Level III below; and (b) thereafter, a percentage, per annum, determined by
reference to the Leverage Ratio in effect from time to time as set forth below:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Applicable Revolving
	 	 	 	 	Applicable Margin for	 	Commitment Fee
	Level	 	Leverage Ratio	 	Eurodollar Rate Loans	 	Percentage
	I

	 	>
 2.75:1.00
	 	 	2.75	%	 	 	0.50	%
	II

	 	< 2.75:1.00 and
> 2.25:1.00
	 	 	2.50	%	 	 	0.50	%
	III

	 	< 2.25:1.00 and
> 1.75:1.00
	 	 	2.25	%	 	 	0.50	%
	IV

	 	< 1.75:1.00 and
> 1.25:1.00
	 	 	2.00	%	 	 	0.50	%
	V

	 	< 1.25:1.00
	 	 	1.75	%	 	 	0.375	%





and (ii) with respect to Swing Line Loans and other Base Rate Loans, an amount equal to (a) the
Applicable Margin for Eurodollar Rate Loans as set forth in clause (i)(a) or (i)(b) above, as
applicable, minus (b) 1.00% per annum and (iii) with respect to the Applicable Revolving Commitment
Fee Percentage, a percentage, per annum, determined by reference to the Leverage Ratio in effect
from time to time as set forth in the table above. No change in the Applicable Margin or the
Applicable Revolving Commitment Fee Percentage shall be effective until three Business Days after
the date on





3









 







which Administrative Agent shall have received the applicable financial statements and a Compliance
Certificate pursuant to Section 5.1(d) calculating the Leverage Ratio. At any time Company has not
submitted to Administrative Agent the applicable information as and when required under Section
5.1(d), the Applicable Margin and the Applicable Revolving Commitment Fee Percentage shall be
determined as if the Leverage Ratio were in Level I above. Within one Business Day of receipt of
the applicable information under Section 5.1(d), Administrative Agent shall give each Lender notice
in accordance with Section 10.1 of the Applicable Margin and the Applicable Revolving Commitment
Fee Percentage in effect from such date. In the event that any financial statement or certificate
delivered pursuant to Section 5.1 is shown to be inaccurate (at a time when this Agreement is in
effect and unpaid Obligations under this Agreement are outstanding (other than indemnities and
other contingent obligations not yet due and payable), and such inaccuracy, if corrected, would
have led to the application of a higher Applicable Margin for any period (an “Applicable Period”)
than the Applicable Margin applied for such Applicable Period, then (i) Company shall immediately
deliver to Administrative Agent a correct certificate required by Section 5.1 for such Applicable
Period, (ii) if such inaccuracy would lead to the application of a higher Applicable Margin, the
Applicable Margin shall be increased to such higher Applicable Margin and (iii) Company shall
immediately pay to Administrative Agent the accrued additional interest owing as a result of such
increased Applicable Margin for such Applicable Period. Nothing in this paragraph shall limit the
right of Administrative Agent or any Lender under Section 2.9 or Section 8.




     “Applicable Reserve Requirement” means, at any time, for any Eurodollar Rate Loan, the maximum
rate, expressed as a decimal, at which reserves (including, without limitation, any basic marginal,
special, supplemental, emergency or other reserves) are required to be maintained with respect
thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under
regulations issued from time to time by the Board of Governors of the Federal Reserve System or
other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable
Reserve Requirement shall reflect any other reserves required to be maintained by such member banks
with respect to (i) any category of liabilities which includes deposits by reference to which the
applicable Adjusted Eurodollar Rate or any other interest rate of a Loan is to be determined, or
(ii) any category of extensions of credit or other assets which include Eurodollar Rate Loans. A
Eurodollar Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be
deemed subject to reserve requirements without benefits of credit for proration, exceptions or
offsets that may be available from time to time to the applicable Lender. The rate of interest on
Eurodollar Rate Loans shall be adjusted automatically on and as of the effective date of any change
in the Applicable Reserve Requirement.



     “Asset Sale” means a sale, lease or sub-lease (as lessor or sublessor), sale and leaseback,
assignment, conveyance, transfer or other disposition to, or any exchange of property with, any
Person (other than Company or a Guarantor Subsidiary), in one transaction or a series of
transactions, of all or any part of Holdings’ or any of its Subsidiaries’ businesses, assets or
properties of any kind, whether real, personal, or mixed and whether tangible or intangible,
whether now owned or hereafter acquired, including, without limitation, the Capital Stock of any of
Holdings’ Subsidiaries (provided, however, that solely for purposes of Section
2.13(a), such sale of Capital Stock shall not be considered an Asset Sale), other than (i)
inventory, equipment or other assets sold or leased in the ordinary course of business, and (ii)
sales of other assets for aggregate consideration of less than $5,000,000 with respect to any
transaction or series of related transactions; provided, further that (x) the
transfer or issuance of any Capital Stock of any Domestic Subsidiary of Company to a Person other
than a Credit Party in



4









 




connection with a Permitted Subsidiary Dropdown shall not constitute an Asset Sale for
purposes of this Agreement to the extent that the aggregate value of such transfer as determined by
Company in good faith does not exceed $5,000,000 and (y) to the extent that such aggregate value
exceeds $5,000,000, the aggregate value of such transfer in excess of $5,000,000 shall constitute
an Asset Sale only to the extent of the aggregate value of such transfer in excess of $5,000,000.




     “Assignment Agreement” means an Assignment Agreement substantially in the form of Exhibit E,
with such amendments or modifications as may be approved by Administrative Agent.



     “Assignment Effective Date” as defined in Section 10.6(b).



     “Authorized Officer” means, as applied to any Person, any individual holding the position of
chairman of the board (if an officer), chief executive officer, president or one of its vice
presidents (or the equivalent thereof), and such Person’s chief financial officer or treasurer.



     “Bankruptcy
Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and
hereafter in effect, or any successor statute.



     “Base Rate” means, for any day, a rate per annum equal to the greatest of (i) the Prime Rate
in effect on such day, (ii) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1% and (iii) the Adjusted Eurodollar Rate for a one month interest period commencing on such day
plus 1.0%. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds
Effective Rate or the Adjusted Eurodollar Rate for a one month interest period shall be effective
on the effective day of such change in the Prime Rate, the Federal Funds Effective Rate or the
Adjusted Eurodollar Rate for a one month interest period, respectively.



     “Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base
Rate.



     “Beneficiary” means each Agent, Issuing Bank, Lender and Lender Counterparty.



     “Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York and/or California or is a day on which banking
institutions located in either such state are authorized or required by law or other governmental
action to close and (ii) with respect to all notices, determinations, fundings and payments in
connection with the Adjusted Eurodollar Rate or any Eurodollar Rate Loans, the term “Business Day”
shall mean any day which is a Business Day described in clause (i) and which is also a day for
trading by and between banks in Dollar deposits in the London interbank market.



     “Capital Lease” means, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be
accounted for as a capital lease on the balance sheet of that Person.



     “Capital Stock” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including, without limitation, partnership interests and
membership interests, and any and all warrants, rights or options to purchase or other arrangements
or rights to acquire any of the foregoing.



5









 





     “Cash” means money, currency or a credit balance in any demand or Deposit Account.



     “Cash Equivalents” means, as at any date of determination, (i) marketable securities (a)
issued or directly and unconditionally guaranteed as to interest and principal by the United States
Government or (b) issued by any agency of the United States the obligations of which are backed by
the full faith and credit of the United States, in each case maturing within one year after such
date; (ii) marketable direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof, in each case
maturing within one year after such date and having, at the time of the acquisition thereof, a
rating of at least A-1 from S&P or at least P-1 from Moody’s; (iii) commercial paper maturing no
more than one year from the date of creation thereof and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iv) certificates of
deposit or bankers’ acceptances maturing within one year after such date and issued or accepted by
any Lender or by any commercial bank organized under the laws of the United States of America or
any state thereof or the District of Columbia that (a) is at least “adequately capitalized” (as
defined in the regulations of its primary Federal banking regulator) and (b) has Tier 1 capital (as
defined in such regulations) of not less than $100,000,000; (v) shares of any money market mutual
fund that (a) has substantially all of its assets invested continuously in the types of investments
referred to in clauses (i) through (iv) above, (b) has net assets of not less than $500,000,000,
and (c) has the highest rating obtainable from either S&P or Moody’s; and (vi) guaranteed
investment contracts (a) that are provided by a provider that maintains a short-term certificate of
deposit rating of at least A-1 from S&P or the equivalent from Moody’s and, if the term of such
investment contract is one year or more, a long-term certificate of deposit rating of at least A
from S&P or the equivalent from Moody’s and (b) that are redeemable at no less than par on not more
than seven days’ notice to the provider.



     “Certificate re Non-Bank Status” means a certificate substantially in the form of Exhibit F.



     “Change of Control” means the occurrence of any of the following: (i) the sale, lease,
transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or
more related transactions, of all or substantially all of the properties or assets of Holdings and
its Subsidiaries taken as a whole, or of Company and it Subsidiaries taken as a whole, to any
Person or “person” (as such term is used in Section 13(d)(3) of the Exchange Act); (ii) the
adoption of a plan relating to the liquidation or dissolution of Holdings or Company; or (iii) the
consummation of any transaction (including without limitation, any merger or consolidation), as a
result of which (y) Holdings ceases to own directly 100% of the Capital Stock of Company or (z) any
Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act), shall have
acquired, directly or indirectly, beneficial ownership of 35% or more on a fully diluted basis of
the aggregate voting interest attributable to all outstanding Capital Stock of Holdings.



     “Class” means (i) with respect to Lenders, each of the following classes of Lenders: (a)
Lenders having Closing Date Term Loan Exposure; (b) Lenders having Revolving Exposure (including
Swing Line Lender), and (c) Lenders having New Term Loan Exposure of a particular Series and (ii)
with respect to Loans, each of the following classes of Loans: (a) Closing Date Term Loans; (b)
Revolving Loans (including Swing Line Loans); and (c) each Series of New Term Loans.



     “Closing Date” means the date upon which the conditions set forth in Section 3.1 are
satisfied.



6









 





     “Closing Date Certificate” means the Closing Date Certificate substantially in the form of
Exhibit G-1.



     “Closing Date Term Loan” means a Term Loan made by a Lender to Company pursuant to Section
2.1(a).



     “Closing Date Term Loan Commitment” means the commitment of a Lender to make or otherwise fund
a Closing Date Term Loan and “Closing Date Term Loan Commitments” means such commitments of all
Lenders in the aggregate. The amount of each Lender’s Closing Date Term Loan Commitment, if any,
is set forth on Appendix A-1 or in the applicable Assignment Agreement, subject to any adjustment
or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Closing Date
Term Loan Commitments as of the Closing Date is $500,000,000.



     “Closing Date Term Loan Exposure” means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the Closing Date Term Loans of such Lender;
provided, at any time prior to the making of the Closing Date Term Loans, the Closing Date
Term Loan Exposure of any Lender shall be equal to such Lender’s Closing Date Term Loan Commitment.



     “Closing Date Term Loan Maturity Date” means the earlier of (i) August 19, 2015 and (ii) the
date that all Closing Date Term Loans shall become due and payable in full hereunder, whether by
acceleration or otherwise.



     “Co-Documentation Agents” as defined in the preamble hereto.



     “Collateral” means, collectively, all of the real, personal and mixed property (including
Capital Stock) in which Liens are purported to be granted pursuant to the Collateral Documents as
security for the Obligations.



     “Collateral Agent” means the institution serving as such under the Collateral Documents.



     “Collateral Documents” means the Pledge and Security Agreement, the Mortgages (if any) and all
other instruments, documents and agreements delivered by any Credit Party pursuant to this
Agreement or any of the other Credit Documents in order to grant to Collateral Agent, for the
benefit of Secured Parties, a Lien on any real, personal or mixed property of that Credit Party as
security for the Obligations.



     “Commitment” means any Revolving Commitment, Closing Date Term Loan Commitment or New Term
Loan Commitment.



     “Commitment Letter” means that certain commitment letter dated as of July 16, 2010 among
Company, the Lead Arrangers, the Administrative Agent and the Syndication Agent, as it may be
amended, supplemented or otherwise modified from time to time.



     “Company” as defined in the preamble hereto.



     “Company Materials” as defined in Section 5.12.



7









 





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



     “Consolidated Adjusted EBITDA” means, for any period, an amount determined for Company and its
Subsidiaries on a consolidated basis equal to (i) the sum, without duplication, of the amounts for
such period of (a) Consolidated Net Income, (b) Consolidated Interest Expense, (c) provisions for
taxes based on income, (d) total depreciation expense, (e) total amortization expense, (f) non-cash
stock based compensation reducing Consolidated Net Income, (g) other non-Cash items, including
write-offs of assets, reducing Consolidated Net Income (excluding any such non-Cash item to the
extent that it represents an accrual or reserve for potential Cash items in any future period or
amortization of a prepaid Cash item that was paid in a prior period but, notwithstanding anything
to the contrary herein, including without limitation, reserves for lease expense and other charges
and expenses related to the closure of hospitals to the extent not paid in cash), and (h) to the
extent deducted in calculating Consolidated Net Income, Transaction Costs, minus (ii)
non-Cash items increasing Consolidated Net Income for such period (excluding any such non-Cash item
to the extent it represents the reversal of an accrual or reserve for potential Cash item in any
prior period).



     “Consolidated Capital Expenditures” means, for any period, the aggregate of the expenditures
of Company and its Subsidiaries during such period determined on a consolidated basis that, in
accordance with GAAP, are or should be included in “purchase of property and equipment” or similar
items reflected in the consolidated statement of cash flows of Company and its Subsidiaries
excluding any acquisition of assets that constitutes a Permitted Acquisition; provided, however,
that notwithstanding any of the foregoing to the contrary, Consolidated Capital Expenditures shall
include expenditures of Company and its Subsidiaries with respect to assets constituting a fee
interest in real property acquired by Company or its Subsidiaries other than in connection with a
Permitted Acquisition.



     “Consolidated Cash Interest Expense” means, for any period, Consolidated Interest Expense for
such period, excluding any amounts not payable in Cash.



     “Consolidated Fixed Charges” means, for any period, the sum, without duplication, of the
amounts determined for Company and its Subsidiaries on a consolidated basis equal to (i)
Consolidated Cash Interest Expense, (ii) scheduled payments of principal (other than the principal
payment due on the Closing Date Term Loan Maturity Date and on any New Term Loan Maturity Date) on
Consolidated Total Debt, (iii) Consolidated Capital Expenditures and (iv) provisions for current
cash taxes based on income with respect to such period.



     “Consolidated Interest Expense” means, for any period, total interest expense (including that
portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of Company
and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of
Company and its Subsidiaries, including all commissions, discounts and other fees and charges owed
with respect to letters of credit and net costs under Interest Rate Agreements, but excluding,
however, any amounts referred to in Sections 2.10(e) and (f) payable on or before the Closing Date.



     “Consolidated Net Income” means, for any period, (i) the net income (or loss) of Company and
its Subsidiaries on a consolidated basis for such period taken as a single accounting period



8









 




determined in conformity with GAAP, minus (ii)(a) the income of any Person (other than a Subsidiary
of Company) in which any other Person (other than Company or any of its Subsidiaries) has a
joint interest, except to the extent of the amount of dividends or other distributions actually
paid to Company or any of its Subsidiaries by such Person during such period, (b) the income (or
plus the loss) of any Person accrued prior to the date it becomes a Subsidiary of Company
or is merged into or consolidated with Company or any of its Subsidiaries or that Person’s assets
are acquired by Company or any of its Subsidiaries, (c) the income of any Subsidiary of Company to
the extent that the declaration or payment of dividends or similar distributions by that Subsidiary
of that income is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable
to that Subsidiary, (d) any after-tax gains (or plus any after-tax losses) attributable to
Asset Sales or returned surplus assets of any Pension Plan, and (e) (to the extent not included in
clauses (a) through (d) above) any net extraordinary gains (or plus any net extraordinary
losses).




     “Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance
sheet amount of all Indebtedness (other than items described in clauses (iv), (v) and (x) thereof)
of Company and its Subsidiaries determined on a consolidated basis in accordance with GAAP.



     “Contractual Obligation” means, as applied to any Person, any provision of any Security issued
by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or
other instrument to which that Person is a party or by which it or any of its properties is bound
or to which it or any of its properties is subject.



     “Contributing Guarantors” as defined in Section 7.2.



     “Conversion/Continuation Date” means the effective date of a continuation or conversion, as
the case may be, as set forth in the applicable Conversion/Continuation Notice.



     “Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the
form of Exhibit A-2.



     “Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit H
delivered by a Credit Party pursuant to Section 5.10.



     “Credit Date” means the date of a Credit Extension.



     “Credit Document” means any of this Agreement, the Notes, if any, the Collateral Documents,
any documents or certificates executed by Company in favor of Issuing Bank relating to Letters of
Credit, and all other documents, instruments or agreements executed and delivered by a Credit Party
for the benefit of any Agent, Issuing Bank or Lender (excluding Hedge Agreements and Specified Cash
Management Agreements).




	 	 	“Credit Extension” means the making of a Loan or the issuing of a Letter of Credit.





     “Credit Party” means each Person (other than any Agent, Issuing Bank, Swing Line Lender, any
Lender or any Lender Counterparty or any other representative of any thereof) from time to time
party to a Credit Document.



9









 





     “Currency Agreement” means any foreign exchange contract, currency swap agreement, futures
contract, option contract, synthetic cap or other similar agreement or arrangement, each of which
is for the purpose of hedging the projected foreign currency risk associated with Holdings’ and its
Subsidiaries’ operations and not for speculative purposes.



     “Default” means a condition or event that, after notice or lapse of time or both, would
constitute an Event of Default.



     “Default Excess” means, with respect to any Defaulting Lender, the excess, if any, of such
Defaulting Lender’s Pro Rata Share of the aggregate outstanding principal amount of Loans of all
Lenders (calculated as if all Defaulting Lenders (including such Defaulting Lender) had funded all
of their respective Defaulted Loans) over the aggregate outstanding principal amount of all Loans
of such Defaulting Lender.



     “Default Period” means, (x) with respect to any Funds Defaulting Lender, the period commencing
on the date of the applicable Funding Default and ending on the earliest of the following dates:
(i) the date on which all Commitments are cancelled or terminated and/or the Obligations are
declared or become immediately due and payable, (ii) the date on which (a) the Default Excess with
respect to such Defaulting Lender shall have been reduced to zero (whether by the funding by such
Defaulting Lender of any Defaulted Loans of such Defaulting Lender or by the non-pro rata
application of any voluntary or mandatory prepayments of the Loans in accordance with the terms of
Section 2.12, Section 2.13 or Section 2.14 or by a combination thereof) and (b) such Defaulting
Lender shall have delivered to Company and Administrative Agent a written reaffirmation of its
intention to honor its obligations hereunder with respect to its Commitments, and (iii) the date on
which Company, Administrative Agent and Requisite Lenders waive all Funding Defaults of such
Defaulting Lender in writing; and (y) with respect to any Insolvency Defaulting Lender, the period
commencing on the date of the applicable Lender Insolvency Default and ending on the earliest of
the following dates: (i) the date on which all Commitments are cancelled or terminated and/or the
Obligations are declared or become immediately due and payable and (ii) the date that such
Defaulting Lender ceases to hold any portion of the Loans or Commitments.



     “Defaulted Loan” as defined in Section 2.21.



     “Defaulting Lender” as defined in Section 2.21.



     “Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account evidenced by a
negotiable certificate of deposit.



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



     “Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of
America, any State thereof or the District of Columbia.



     “Earn-Out Obligations” means any unsecured contingent liability of Holdings or any of its
Subsidiaries owed to any seller in connection with a Permitted Acquisition that (a) constitutes a
portion of the purchase price for such Permitted Acquisition but is not an amount certain on the
date of incurrence thereof and is not subject to any right of acceleration by such seller and (b)
is only payable



10









 




upon the achievement of performance standards by the Person or other property acquired in such
Permitted Acquisition and in an amount based upon such achievement provided that the
formula for determining the aggregate amount of such liability shall be fixed at the date of such
Permitted Acquisition.




     “Eligible Assignee” means (i) any Lender, any Affiliate of any Lender and any Related Fund
(any two or more Related Funds being treated as a single Eligible Assignee for all purposes
hereof), and (ii) any commercial bank, insurance company, investment or mutual fund or other entity
that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which
extends credit or buys loans as one of its businesses; provided, Company, any Affiliate of
Company or any natural person shall not be an Eligible Assignee.



     “Employee
Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA
which is or was sponsored, maintained or contributed to by, or required to be contributed by,
Holdings or any of its Subsidiaries or, to the extent that Holdings or any of its Subsidiaries
would be liable under ERISA in respect thereof, any of their respective ERISA Affiliates.



     “Enumerated Costs” as defined in the definition of “Net Asset Sale Proceeds”.



     “Environmental Claim” means any investigation, notice, notice of violation, claim, action,
suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise),
by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with
any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous
Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any
actual or alleged damage, injury, threat or harm to health, safety, natural resources or the
environment.



     “Environmental Laws” means any and all current or future foreign or domestic, federal or state
(or any subdivision of either of them), statutes, ordinances, orders, rules, regulations, guidance
documents, judgments, Governmental Authorizations, or any other requirements of Governmental
Authorities relating to (i) environmental matters, including those relating to any Hazardous
Materials Activity; (ii) the generation, use, storage, transportation or disposal of Hazardous
Materials; or (iii) occupational safety and health, industrial hygiene, land use or the protection
of human, plant or animal health or welfare, in any manner applicable to Holdings or any of its
Subsidiaries or any Facility.



     “Environmental Reports” means any reports and other information, in form scope and substance
satisfactory to the Administrative Agent regarding environmental matters relating to the
Facilities.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and any successor thereto.



     “ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a
controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is
a member of a group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an
affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of



11









 




which that Person, any corporation described in clause (i) above or any trade or business described in
clause (ii) above is a member. Any former ERISA Affiliate of Holdings or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of Holdings or any such Subsidiary
within the meaning of this definition with respect to the period such entity was an ERISA Affiliate
of Holdings or such Subsidiary and with respect to liabilities arising after such period for which
Holdings or such Subsidiary could be liable under the Internal Revenue Code or ERISA.




     “ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan (excluding those for which the
provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet
the minimum funding standard of Sections 412 or 430 of the Internal Revenue Code or Sections 302 or
303 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section
412(c) of the Internal Revenue Code or Section 302(c) of ERISA) or the failure to make by its due
date a required installment under Section 412(m) of the Internal Revenue Code with respect to any
Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the
provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a
notice of intent to terminate such plan in a distress termination described in Section 4041(c) of
ERISA; (iv) the withdrawal by Holdings, any of its Subsidiaries or any of their respective ERISA
Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any
such Pension Plan resulting in liability pursuant to Section 4063 or 4064 of ERISA; (v) the
institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any
event or condition which might constitute grounds under ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on
Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section
4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the
withdrawal of Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in a
complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any
Multiemployer Plan if there is any potential liability therefor, or the receipt by Holdings, any of
its Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan
that it is in reorganization or insolvency within the meaning of Title IV of ERISA, or that it
intends to terminate or has terminated pursuant to Title IV of ERISA; (viii) the occurrence of an
act or omission which could give rise to the imposition on Holdings, any of its Subsidiaries or any
of their respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43
of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of
ERISA in respect of any Employee Benefit Plan; (ix) receipt from the Internal Revenue Service of
notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be
qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the
Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for
exemption from taxation under Section 501(a) of the Internal Revenue Code; or (xi) the imposition
of a Lien pursuant to Section 430(k) of the Internal Revenue Code or Section 303(k) of ERISA.



     “Eurodollar Rate Loan” means a Loan bearing interest at a rate determined by reference to the
Adjusted Eurodollar Rate.



     “Event of Default” means each of the conditions or events set forth in Section 8.1.



12









 





     “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and
any successor statute.



     “Existing Credit Agreement” as defined in the recitals hereto.



     “Existing Lenders” as defined in the recitals hereto.



     “Facility” means any real property (including all buildings, fixtures or other improvements
located thereon) now, hereafter or heretofore owned, leased, operated or used by Holdings or any of
its Subsidiaries or any of their respective predecessors or Affiliates.



     “Fair Share Contribution Amount” as defined in Section 7.2.



     “Fair Share” as defined in Section 7.2.



     “Fair Share Shortfall” as defined in Section 7.2.



     “Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal,
rounded upwards, if necessary, to the next higher 1/100 of 1%) 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, (i) if such day is not a Business Day, the
Federal Funds Effective 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 (ii) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for
such day shall be the average rate charged to Administrative Agent, in its capacity as a lender, on
such day on such Federal funds transactions as determined by Administrative Agent.



     “Financial Officer Certification” means, with respect to the financial statements for which
such certification is required, the certification of the chief financial officer of Holdings that
such financial statements fairly present, in all material respects, the financial condition of
Holdings and its Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated, subject to changes resulting from audit and normal
year-end adjustments.



     “Financial Plan” as defined in Section 5.1(i).



     “First Priority” means, with respect to any Lien purported to be created in any Collateral
pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is
subject, other than Permitted Liens.



     “Fiscal Quarter” means a fiscal quarter of any Fiscal Year.



     “Fiscal Year” means the fiscal year of Holdings and its Subsidiaries ending on December 31 of
each calendar year.



     “Fixed Charge Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i)
Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ending, to (ii) Consolidated
Fixed Charges for such four-Fiscal Quarter period.




13












 





     “Flood Hazard Property” means any Real Estate Asset subject to a Mortgage and located in
an area designated by the Federal Emergency Management Agency as having special flood or mud slide
hazards.



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



     “Funding Default” as defined in Section 2.21.



     “Funding Guarantors” as defined in Section 7.2.



     “Funds Defaulting Lender” as defined in Section 2.21.



     “Funding Notice” means a notice substantially in the form of Exhibit A-1.



     “GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2,
United States generally accepted accounting principles in effect as of the date of determination
thereof.



     “Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or Governmental Authority.



     “Governmental Authority” means any federal, state, municipal, national or other government,
governmental department, commission, board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each
case whether associated with a state of the United States, the United States, or a foreign entity
or government.



     “Governmental Authorization” means any permit, license, authorization, plan, directive,
consent order or consent decree of or from any Governmental Authority.



     “Grantor” as defined in the Pledge and Security Agreement.



     “Guaranteed Obligations” as defined in Section 7.1.



     “Guarantor” means each of Holdings and each Domestic Subsidiary of Holdings (other than
Company and certain Permitted Partially-Owned Subsidiaries that do not provide a Guaranty).



     “Guarantor Subsidiary” means each Guarantor other than Holdings.



     “Guaranty” means the guaranty of each Guarantor set forth in Section 7.



     “Hazardous Materials” means any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Governmental Authority or which may or could pose a hazard
to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or
to the indoor or outdoor environment.



     “Hazardous Materials Activity” means any past, current, proposed or threatened activity, event
or occurrence involving any Hazardous Materials, including the use, manufacture, possession,



14









 




storage, holding, presence, existence, location, Release, threatened Release, discharge,
placement, generation, transportation, processing, construction, treatment, abatement, removal,
remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective
action or response action with respect to any of the foregoing.




     “Hedge Agreement” means an Interest Rate Agreement or a Currency Agreement entered into with a
Lender Counterparty.



     “Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from
time to time may be contracted for, charged, or received under the laws applicable to any Lender
which are presently in effect or, to the extent allowed by law, under such applicable laws which
may hereafter be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.



     “Historical Financial Statements” means as of the Closing Date, (i) the audited financial
statements of Holdings and its Subsidiaries, for the immediately preceding three Fiscal Years,
consisting of balance sheets and the related consolidated statements of income, stockholders’
equity and cash flows for such Fiscal Years, and (ii) the unaudited financial statements of
Holdings and its Subsidiaries as at the most recently ended Fiscal Quarter, consisting of a balance
sheet and the related consolidated statements of income, stockholders’ equity and cash flows for
the three-, six- or nine-month period, as applicable, ending on such date, and, in the case of
clauses (i) and (ii), certified by the chief financial officer of Company that they fairly present,
in all material respects, the financial condition of Holdings and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for the periods indicated,
subject to changes resulting from audit and normal year-end adjustments.



     “Holdings” as defined in the preamble hereto.



     “Immaterial Subsidiary” for purposes of Section 8.1(f) and Section 8.1(g), shall mean one or
more Subsidiaries of Holdings that, on a consolidated basis did not (i) for the most recently
concluded Fiscal Year account for more than 3.0% of consolidated revenues of Holdings and its
Subsidiaries and (ii) as of the last day of such Fiscal Year own more than 3.0% of the consolidated
assets of Holdings and its Subsidiaries.



     “Increased Amount Date” as defined in Section 2.24.



     “Increased-Cost Lenders” as defined in Section 2.22.



     “Indebtedness”, as applied to any Person, means, without duplication, (i) all indebtedness for
borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly
classified as a liability on a balance sheet in conformity with GAAP; (iii) notes payable and
drafts accepted representing extensions of credit whether or not representing obligations for
borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of
property or services (excluding any such obligations incurred under ERISA and ordinary course trade
payables), which purchase price is (a) due more than six months from the date of incurrence of the
obligation in respect thereof or (b) evidenced by a note or similar written instrument; (v) all
indebtedness secured by any Lien on any property or asset owned or held by that Person regardless
of whether the indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of



15









 




that Person; (vi) the face amount of any letter of credit issued for the account of that
Person or as to which that Person is otherwise liable for reimbursement of drawings; (vii) the
direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with recourse by such Person of
the obligation of another; (viii) any obligation of such Person the primary purpose or intent of
which is to provide assurance to an obligee that the obligation of the obligor thereof will be paid
or discharged, or any agreement relating thereto will be complied with, or the holders thereof will
be protected (in whole or in part) against loss in respect thereof; (ix) any liability of such
Person for the obligation of another through any agreement (contingent or otherwise) (a) to
purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide
funds for the payment or discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise) or (b) to maintain the solvency or any balance
sheet item, level of income or financial condition of another if, in the case of any agreement
described under subclauses (a) or (b) of this clause (ix), the primary purpose or intent thereof is
as described in clause (viii) above; and (x) obligations of such Person in respect of any exchange
traded or over the counter derivative transaction, including, without limitation, any Interest Rate
Agreement and Currency Agreement, whether entered into for hedging or speculative purposes;
provided, in no event shall obligations under any Interest Rate Agreement and any Currency
Agreements be deemed “Indebtedness” for any purpose under Section 6.8.




     “Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses,
damages (including natural resource damages), penalties and claims (including Environmental
Claims), and any and all reasonable and documented costs (including the costs of any investigation,
study, sampling, testing, abatement, cleanup, removal, remediation or other response action
necessary to remove, remediate, clean up or abate any Hazardous Materials Activity), expenses and
disbursements of any kind or nature whatsoever (including the reasonable and documented fees and
disbursements of counsel for Indemnitees in connection with any investigative, administrative or
judicial proceeding commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any fees or expenses incurred by
Indemnitees in enforcing this indemnity), whether direct, indirect or consequential and whether
based on any federal, state or foreign laws, statutes, rules or regulations (including securities
and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted
against any such Indemnitee, in any manner relating to or arising out of (i) this Agreement or the
other Credit Documents or the transactions contemplated hereby or thereby (including the Lenders’
agreement to make Credit Extensions, the syndication of the credit facilities provided for herein
or the use or intended use of the proceeds thereof, or any enforcement of any of the Credit
Documents (including any sale of, collection from, or other realization upon any of the Collateral
or the enforcement of the Guaranty)); (ii) the Commitment Letter (and any fee letter related
thereto); or (iii) any Environmental Claim or any Hazardous Materials Activity relating to or
arising from, directly or indirectly, any past or present activity, operation, land ownership, or
practice of Holdings or any of its Subsidiaries.



     “Indemnitee” as defined in Section 10.3.



     “Insolvency Defaulting Lender” as defined in Section 2.21.



     “Installment” as defined in Section 2.11.



16









 





     “Installment Date” as defined in Section 2.11.



     “Interest Payment Date” means with respect to (i) any Loan that is a Base Rate Loan, the last
Business Day of each March, June, September and December of each year, commencing on the first such
date to occur after the Closing Date, and the final maturity date of such Loan; and (ii) any Loan
that is a Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan;
provided, in the case of each Interest Period of longer than three months “Interest Payment
Date” shall also include each date that is three months, or an integral multiple thereof, after the
commencement of such Interest Period.



     “Interest Period” means, in connection with a Eurodollar Rate Loan, an interest period of
one-, two-, three- or six-months, as selected by Company in the applicable Funding Notice or
Conversion/Continuation Notice, (i) initially, commencing on the Credit Date or
Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on the
day on which the immediately preceding Interest Period expires; provided, (a) if an
Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day unless no further Business Day occurs in such
month, in which case such Interest Period shall expire on the immediately preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clauses (c) and (d) of this definition, end on the last Business Day of a
calendar month; (c) no Interest Period with respect to any portion of any Class of Term Loans shall
extend beyond such Class’s Term Loan Maturity Date; and (d) no Interest Period with respect to any
portion of the Revolving Loans shall extend beyond the Revolving Commitment Termination Date.



     “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedging agreement or other similar agreement or
arrangement, each of which is for the purpose of hedging the projected interest rate exposure
associated with Holdings’ and its Subsidiaries’ operations and not for speculative purposes.



     “Interest Rate Determination Date” means, with respect to any Interest Period, the date that
is two Business Days prior to the first day of such Interest Period.



     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof
and from time to time hereafter, and any successor statute.



     “Investment” means (i) any direct or indirect purchase or other acquisition by Holdings or any
of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person
(other than Company or a Guarantor Subsidiary); (ii) any direct or indirect redemption, retirement,
purchase or other acquisition for value, by any Subsidiary of Holdings from any Person (other than
Holdings, Company or any Guarantor Subsidiary), of any Capital Stock of such Person; and (iii) any
direct or indirect loan, advance (other than advances to employees for moving, entertainment and
travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or
capital contribution by Holdings or any of its Subsidiaries to any other Person (other than
Holdings, Company or any Guarantor Subsidiary), including all indebtedness and accounts receivable
from that other Person that are not current assets or did not arise from sales to that other Person
in the ordinary course of business. The amount of any Investment shall be the original cost of such
Investment plus



17









 




the cost of all additions thereto, without any adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with respect to such Investment.




     “Issuance Notice” means an Issuance Notice substantially in the form of Exhibit A-3.



     “Issuing Bank” means Wells Fargo as Issuing Bank hereunder, together with its permitted
successors and assigns in such capacity.



     “Joinder Agreement” means an agreement substantially in the form of Exhibit L.



     “Joint Venture” means a joint venture, partnership or other similar arrangement, whether in
corporate, partnership or other legal form; provided, in no event shall any corporate
Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.



     “Landlord Consent and Estoppel” means, with respect to any Leasehold Property, a letter,
certificate or other instrument in writing from the lessor under the related lease, pursuant to
which, among other things, the landlord consents to the granting of a Mortgage on such Leasehold
Property by the Credit Party tenant, such Landlord Consent and Estoppel to be in form and substance
acceptable to the Collateral Agent in its reasonable discretion, but in any event sufficient for
the Collateral Agent to obtain a Title Policy with respect to such Mortgage.



     “Lead Arrangers” means Wells Fargo Securities, LLC and Banc of America Securities LLC.



     “Leasehold Property” means any leasehold interest of any Credit Party as lessee under any
lease of real property, other than any such leasehold interest designated from time to time by
Collateral Agent in its sole discretion as not being required to be included in the Collateral.



     “Lender” means each financial institution listed on the signature pages hereto as a Lender and
any other Person that becomes a party hereto pursuant to an Assignment Agreement or a Joinder
Agreement.



     “Lender Counterparty” means each Lender or any Affiliate of a Lender counterparty to a Hedge
Agreement or a Specified Cash Management Arrangement (including any Person who is a Lender (and any
Affiliate thereof) as of the Closing Date but subsequently, whether before or after entering into a
Hedge Agreement or Specified Cash Management Arrangement, ceases to be a Lender), including,
without limitation, each such Affiliate that enters into a joinder agreement with the Collateral
Agent.



     “Lender Insolvency Default” as defined in Section 2.21.



     “Letter of Credit” means a commercial or standby letter of credit issued or to be issued by
Issuing Bank pursuant to this Agreement.



     “Letter of Credit Sublimit” means the lesser of (i) $15,000,000 and (ii) the aggregate unused
amount of the Revolving Commitments then in effect.



     “Letter of Credit Usage” means, as at any date of determination, the sum of (i) the maximum
aggregate amount which is, or at any time thereafter may become, available for drawing under all



18









 




Letters of Credit then outstanding, and (ii) the aggregate amount of all drawings under
Letters of Credit honored by Issuing Bank and not theretofore reimbursed by or on behalf of
Company.




     “Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i) Consolidated
Total Debt as of such day to (ii) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period
ending on such date (as determined in accordance with Section 6.8(f)).



     “Lien” means (i) any lien, claim, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale
or other title retention agreement, and any lease in the nature thereof) and any option, trust or
other preferential arrangement having the practical effect of any of the foregoing and (ii) in the
case of Securities, any purchase option, call or similar right of a third party with respect to
such Securities.



     “Liquidity Amount” means the sum of (i) cash of Company and its wholly-owned Domestic
Subsidiaries as of such day that is uncommitted and, other than in favor of the Collateral Agent,
unrestricted and unencumbered, and (ii) if the conditions to funding set forth in Section 3.2 could
be met on such day, an amount equal to (x) the aggregate amount of the Revolving Commitments less
(y) the Revolving Exposure, in each case as of such day after giving effect to the transaction(s)
in connection with which the Liquidity Amount is being determined.



     “Loan” means a Closing Date Term Loan, a Revolving Loan, a Swing Line Loan or a New Term Loan.



     “Margin Stock” as defined in Regulation U of the Board of Governors of the Federal Reserve
System as in effect from time to time.



     “Material Adverse Effect” means a material adverse effect on (i) the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Holdings and its
Subsidiaries, taken as a whole; (ii) the ability of the Credit Parties to fully and timely perform
the Obligations, taking into consideration the Guaranty and the joint and several obligations of
Guarantors in respect of the Guaranty; (iii) the legality, validity, binding effect or
enforceability against the Credit Parties of the Credit Documents, taking into consideration the
Guaranty and the joint and several obligations of Guarantors in respect of the Guaranty; (iv) the
rights, remedies and benefits available to, or conferred upon, any Agent and any Lender or any
Secured Party under the Credit Documents, taking into consideration the Guaranty and the joint and
several obligations of Guarantors in respect of the Guaranty; or (v) the Collateral or the
Collateral Agent’s Liens, on behalf of Secured Parties on the Collateral or the First Priority of
such Liens.



     “Material Contract” means any contract or other arrangement to which Holdings or any of its
Subsidiaries is a party (other than the Credit Documents) for which breach, nonperformance,
cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect.



     “Material Real Estate Asset” means (i) (a) any fee owned Real Estate Asset having a fair
market value in excess of $1,000,000 as of the date of the acquisition thereof and (b) all
Leasehold Properties other than those with respect to which the aggregate payments under the term
of the lease are less than $500,000 per annum or (ii) any Real Estate Asset that the Requisite
Lenders have reasonably determined is material to the business, operations, properties, assets,
condition (financial or



19









 




otherwise) or prospects of Holdings or any Subsidiary thereof, including Company and with
respect to which the Administrative Agent has provided written notice to Company of such
determination.




     “Moody’s” means Moody’s Investor Services, Inc.



     “Mortgage” means a Mortgage substantially in the form of Exhibit J, as it may be amended,
restated, supplemented or otherwise modified from time to time to reflect such changes as Company
and Administrative Agent may agree.



     “Mortgaged Property” as defined in Section 5.11.



     “Multiemployer
Plan” means any Employee Benefit Plan which is a “multiemployer plan” as
defined in Section 3(37) of ERISA.



     “NAIC” means The National Association of Insurance Commissioners, and any successor thereto.



     “Narrative Report” means, with respect to the financial statements for which such narrative
report is required, a narrative report describing the operations of Holdings and its Subsidiaries
in the form and to the extent prepared for presentation to senior management thereof for the
applicable month, Fiscal Quarter or Fiscal Year and for the period from the beginning of the then
current Fiscal Year to the end of such period to which such financial statements relate.



     “Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) Cash
payments (including any Cash received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received) received by Holdings or any
of its Subsidiaries from such Asset Sale, minus (ii) any bona fide direct costs incurred in
connection with such Asset Sale, including (a) income or gains taxes payable by the seller as a
result of any gain recognized in connection with such Asset Sale, (b) payment of the outstanding
principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the
Loans) that is secured by a Lien on the stock or assets in question and that is required to be
repaid under the terms thereof as a result of such Asset Sale, (c) a reasonable reserve for any
indemnification payments (fixed or contingent) attributable to seller’s indemnities and
representations and warranties to purchaser in respect of such Asset Sale undertaken by Holdings or
any of its Subsidiaries in connection with such Asset Sale and (d) payment of legal, broker or
other fees and commissions (items (a)-(d) collectively, the “Enumerated Costs”).



     “Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or
proceeds received by Holdings or any of its Subsidiaries (a) under any casualty insurance policy in
respect of a covered loss thereunder or (b) as a result of the taking of any assets of Holdings or
any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or
otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of
such a taking, minus (ii)(a) any actual and reasonable costs incurred by Holdings or any of
its Subsidiaries in connection with the adjustment or settlement of any claims of Holdings or such
Subsidiary in respect thereof, and (b) any bona fide direct costs incurred in connection with any
sale of such assets as referred to in clause (i)(b) of this definition, including any Enumerated
Costs.



     “New Revolving Loan Commitments” as defined in Section 2.24.



20









 





     “New Revolving Lender” as defined in Section 2.24.



     “New Revolving Loans” as defined in Section 2.24.



     “New Term Loan Commitments” as defined in Section 2.24.



     “New Term Loan Exposure” means, with respect to any Lender, as of any date of determination,
the outstanding principal amount of the New Term Loans of such Lender.



     “New Term Loan Lender” as defined in Section 2.24.



     “New Term Loan Maturity Date” means the date that New Term Loans of a Series shall become due
and payable in full hereunder, as specified in the applicable Joinder Agreement, including by
acceleration or otherwise.



     “New Term Loans” as defined in Section 2.24.



     “Non-US Lender” as defined in Section 2.19(c).



     “Note” means a Term Loan Note, a Revolving Loan Note or a Swing Line Note.



     “Notice” means a Funding Notice or a Conversion/Continuation Notice.



     “Obligations” means all obligations of every nature of each Credit Party from time to time
owed to the Agents (including former Agents), the Lenders or any of them or their respective
Affiliates and Lender Counterparties, under any Credit Document, Specified Cash Management
Arrangement or Hedge Agreement (including, without limitation, with respect to a Specified Cash
Management Arrangement or Hedge Agreement, obligations owed thereunder to any person who was a
Lender or an Affiliate of a Lender at the time such Specified Cash Management Arrangement or Hedge
Agreement was entered into), whether for principal, interest (including interest which, but for the
filing of a petition in bankruptcy with respect to such Credit Party, would have accrued on any
Obligation, whether or not a claim is allowed against such Credit Party for such interest in the
related bankruptcy proceeding), reimbursement of amounts drawn under Letters of Credit, payments
for early termination of Hedge Agreements, fees, expenses, indemnification or otherwise.



     “Obligee Credit Party” as defined in Section 7.7.



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



     “Organizational Documents” means (i) with respect to any corporation, its certificate or
articles of incorporation, as amended, and its by-laws, as amended, (ii) with respect to any
limited partnership, its certificate of limited partnership, as amended, and its partnership
agreement, as amended, (iii) with respect to any general partnership, its partnership agreement, as
amended, and (iv) with respect to any limited liability company, its articles of organization, as
amended, and its operating agreement, as amended. In the event any term or condition of this
Agreement or any other Credit Document requires any Organizational Document to be certified by a
secretary of state or similar governmental official, the reference to any such “Organizational
Document” shall only be to a document of a type customarily certified by such governmental
official.



21









 





     “Patriot Act” as defined in Section 3.1(s).



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



     “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, that is
subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.



     “Permitted Acquisition” means any acquisition by Company or any of its Subsidiaries, whether
by purchase, merger or otherwise, of (y) all or substantially all of the assets of, or more than
50% of the Capital Stock of, or a business line or unit or a division of, any Person or (z) any
additional portion, or all, of the Capital Stock of any Permitted Partially-Owned Subsidiary;
provided,



                (i) immediately
prior to, and after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing or would result therefrom;



                (ii) [Reserved];



                (iii) all transactions in connection therewith shall be consummated, in all material respects,
in accordance with all applicable laws and in conformity with all applicable Governmental
Authorizations;



                (iv) in the case of the acquisition of Capital Stock, (i) after giving effect to such
acquisition, more than 50% of the Capital Stock (except for any such Securities in the nature of
directors’ qualifying shares required pursuant to applicable law) acquired or otherwise issued by
such Person or any newly formed Subsidiary of Company in connection with such acquisition shall be
owned by Company or a Guarantor Subsidiary thereof, (ii) in the case of acquisitions where Company
owns more than 50% but less than 100% of such Subsidiary and such Subsidiary is a Domestic
Subsidiary, Company shall designate such Subsidiary as a Permitted Partially-Owned Subsidiary, and
(iii) Company shall have taken, or caused to be taken, as of the date such Person becomes a
Subsidiary of Company, each of the actions set forth in Sections 5.10 and/or 5.11 to the extent
required thereby;



                (v) any Person or assets so acquired shall be located exclusively in the United States, Canada
or the United Kingdom; provided that immediately after giving effect to any such Permitted
Acquisition in Canada or the United Kingdom, Company’s Liquidity Amount shall be greater than or
equal to $50,000,000;



                (vi) Holdings and its Subsidiaries shall be in compliance with the financial covenants set
forth in Section 6.8 on a pro forma basis after giving effect to such acquisition as of the first
day of the four quarter period ending on the last day of the Fiscal Quarter most recently ended (in
accordance with Section 6.8(f));



                (vii) Company shall have delivered to Administrative Agent (A) at least five Business Days
prior to such proposed acquisition, a Compliance Certificate evidencing compliance with Section 6.8
as required under clause (vi) above, together with all relevant financial information with respect
to such acquired assets, including, without limitation, the aggregate consideration for such
acquisition and any other information required to demonstrate compliance with Section 6.8;
provided, however, that Company shall not be required to comply with the provisions of this clause



22









 




(vii) with respect to an acquisition unless the consideration to be paid by Company and its
Subsidiaries in respect of such acquisition is greater than $50,000,000;




                (viii) any Person or assets or division as acquired in accordance herewith shall be in a
business or lines of business the same as, related, complementary or ancillary to, the business or
lines of business in which Company and/or its Subsidiaries are engaged as of the Closing Date; and



                (ix) notwithstanding any of the foregoing to the contrary, “Permitted Acquisition” shall
include any acquisition of any assets constituting a fee interest in real property in connection
with such Permitted Acquisition; provided that an acquisition of a fee interest in real property
“in connection with” a Permitted Acquisition shall include a fee interest in real property acquired
subsequent to the closing date of such Permitted Acquisition so long as Company or its Subsidiary
is obligated as of the closing date of such Permitted Acquisition to purchase the fee interest on a
date certain within one year of the closing date of such Permitted Acquisition.



     “Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.



     “Permitted Partially-Owned Subsidiary” means (a) those Domestic Subsidiaries of Company listed
on Schedule 1.1 existing on the Closing Date, and (b) those Domestic Subsidiaries of Company
acquired or created after the Closing Date, including laboratories and other associated veterinary
businesses, and designated by Company as a Permitted Partially-Owned Subsidiary by written notice
to the Administrative Agent, provided, that, with respect to Permitted Partially-Owned
Subsidiaries acquired or created after the Closing Date, (i) Company owns more than 50% of the
outstanding Capital Stock of such Subsidiary, (ii) Company shall use its commercially reasonable
efforts to cause such Subsidiary to become a Guarantor hereunder and a Grantor under the Pledge and
Security Agreement, and (iii) Company shall use its commercially reasonable efforts to cause the
owner of the remaining Capital Stock of such Subsidiary to pledge his or her Capital Stock in such
Permitted Partially-Owned Subsidiary in favor of the Collateral Agent for the benefit of the
Secured Parties.



     “Permitted Seller Notes” means promissory notes containing subordination provisions in
substantially the form of, or no less favorable to Lenders (in the reasonable judgment of
Administrative Agent) than the subordination provisions contained in, Exhibit K annexed hereto,
representing any Indebtedness of Holdings or Company incurred in connection with any Permitted
Acquisition payable to the seller in connection therewith, as such note may be amended,
supplemented or otherwise modified from time to time to the extent permitted under Section 6.16;
provided that, no Permitted Seller Note shall (i) be guarantied by any Subsidiary of
Holdings or secured by any property of Holdings, Company or any of its Subsidiaries, (ii) bear cash
interest at a rate greater than 8.5% per annum; or, (iii) except in accordance with Section 6.5,
provide for any prepayment or repayment of all or any portion of the principal thereof prior to the
date of the final scheduled installment of principal of the Loans; provided,
further, that in no event shall the aggregate scheduled cash payments of principal and
interest on all outstanding Permitted Seller Notes exceed $4,000,000 in any Fiscal Year.



     “Permitted Subsidiary Dropdown” means a transaction in which (a) a Domestic Subsidiary of
Company (for purposes of this definition, the “existing Subsidiary”) creates a Domestic Subsidiary
(for purposes of this definition, the “new Subsidiary”) and transfers some or all of the assets of
the existing Subsidiary to the new Subsidiary, (b) the existing Subsidiary transfers some of the
Capital



23









 




Stock in the new Subsidiary to a third Person, or the new Subsidiary issues Capital Stock in
the new Subsidiary to a third Person, (i) as part of the transaction pursuant to which a Person was
acquired and merged into the new Subsidiary or (ii) as part of an agreement to retain such Person
as an employee of the business of Holdings and its Subsidiaries and (c) the new Subsidiary is
designated as a Permitted Partially-Owned Subsidiary.




     “Permitted
Transferee” has the meaning set forth in the definition of “Specified Acquisition”.



     “Permitted Unsecured Indebtedness” shall mean unsecured Indebtedness of Company or any of its
Guarantor Subsidiaries; provided that (a) the terms of such debt (i) do not provide for any
scheduled repayment, maturity date, mandatory redemption or sinking fund obligation prior to 90
days after the later of the Closing Date Term Loan Maturity and any then existing New Term Loan
Maturity Date and (ii) do not materially restrict, limit or adversely affect the ability of any
Credit Party to perform their obligations under any of the Credit Documents and (b) to the extent
such Indebtedness is by its terms subordinated in right of payment to the Obligations, (i) such
Indebtedness is subordinated to the Obligations on a basis reasonably satisfactory to
Administrative Agent (it being understood and agreed that any such determination by Administrative
Agent shall be binding on the Lenders and Lender Counterparties) and (ii) the terms of such
subordinated indebtedness provide that no payments of any kind may be made under such subordinated
indebtedness during any period while a Default or an Event of Default has occurred and is
continuing or would arise as a result of such payment and (c) the covenants, events of default and
credit support are (i) reasonably customary for similar offerings by issuers with credit ratings
comparable to that of the issuer of such debt and (ii) no more restrictive than the covenants,
events of default and credit support under this Agreement and (d) the terms of such debt are
otherwise reasonably satisfactory to Administrative Agent (it being understood and agreed that any
such determination by Administrative Agent shall be binding on the Lenders and Lender
Counterparties); provided further that Permitted Seller Notes shall not be
considered Permitted Unsecured Indebtedness.



     “Person” means and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships, joint stock companies,
Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and Governmental Authorities.



     “Platform” as defined in Section 5.12.



     “Pledge and Security Agreement” means the Pledge and Security Agreement executed by Company,
each Guarantor and the Collateral Agent dated as of the date hereof, as it may be amended,
supplemented or otherwise modified from time to time.



     “Prime Rate” means the rate of interest per annum that Wells Fargo announces from time to time
as its prime lending rate, as in effect from time to time. The Prime Rate is a reference rate and
does not necessarily represent the lowest or best rate actually charged to any customer. Wells
Fargo or any other Lender may make commercial loans or other loans at rates of interest at, above
or below the Prime Rate.



24









 





     “Principal Office” means, for each of Administrative Agent, Swing Line Lender and Issuing
Bank, such Person’s “Principal Office” as set forth on Appendix B, or such other office or office
of a third party or sub-agent, as appropriate, as such Person may from time to time designate in
writing to Company, Administrative Agent and each Lender.



     “Projections” as defined in Section 3.1(i).



     “Pro Rata Share” means (i) with respect to all payments, computations and other matters
relating to the Closing Date Term Loan of any Lender, the percentage obtained by dividing (a) the
Closing Date Term Loan Exposure of that Lender by (b) the aggregate Closing Date Term Loan Exposure
of all Lenders; (ii) with respect to all payments, computations and other matters relating to the
Revolving Commitment or Revolving Loans of any Lender or participations purchased therein by any
Lender or any participations in any Swing Line Loans purchased by any Lender, the percentage
obtained by dividing (a) the Revolving Exposure of that Lender by (b) the aggregate Revolving
Exposure of all Lenders; and (iii) with respect to all payments, computations, and other matters
relating to New Term Loan Commitments or New Term Loans of a particular Series, the percentage
obtained by dividing (a) the New Term Loan Exposure of that Lender with respect to that Series by
(b) the aggregate New Term Loan Exposure of all Lenders with respect to that Series. For all other
purposes with respect to each Lender, “Pro Rata Share” means the percentage obtained by dividing
(A) an amount equal to the sum of the Closing Date Term Loan Exposure, the Revolving Exposure and
the New Term Loan Exposure of that Lender, by (B) an amount equal to the sum of the aggregate
Closing Date Term Loan Exposure, the aggregate Revolving Exposure and the aggregate New Term Loan
Exposure of all Lenders.



     “Public Disclosure” means Holdings’ most recent annual report, Form 10-K for the most recently
completed fiscal year, each quarterly report on Form 10-Q or any current reports on Form 8-K (or
similar reports filed on successor forms) filed since the initial filing date of such Form 10-K, in
each case filed at least 5 Business Days prior to the Closing Date.



     “Public Lender” as defined in Section 5.12.



     “Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or
otherwise) then owned by any Credit Party in any real property.



     “Record Document” means, with respect to any Leasehold Property, (i) the lease evidencing such
Leasehold Property or a memorandum thereof, executed and acknowledged by the owner of the affected
real property, as lessor, or (ii) if such Leasehold Property was acquired or subleased from the
holder of a Recorded Leasehold Interest, the applicable assignment or sublease document, executed
and acknowledged by such holder, in each case in form sufficient to give such constructive notice
upon recordation and otherwise in form reasonably satisfactory to Collateral Agent.



     “Recorded Leasehold Interest” means a Leasehold Property with respect to which a Record
Document has been recorded in all places necessary or desirable, in Collateral Agent’s reasonable
judgment, to give constructive notice of such Leasehold Property to third-party purchasers and
encumbrancers of the affected real property.



     “Refunded Swing Line Loans” as defined in Section 2.3(b)(iv).



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     “Register” as defined in Section 2.6(b).



     “Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.



     “Reimbursement Date” as defined in Section 2.23(d).



     “Related Fund” means, with respect to any Lender that is an investment fund, any other
investment fund that invests in commercial loans and that is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.



     “Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material
into the indoor or outdoor environment (including the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Material), including the movement
of any Hazardous Material through the air, soil, surface water or groundwater.



     “Replacement Lender” as defined in Section 2.22.



     “Replacement Term Loans” as defined in Section 10.5(e).



     “Requisite Class Lenders” means, as at any date of determination, (i) for the Class of Lenders
having Closing Date Term Loan Exposure, Lenders holding more than 50% of the aggregate Closing Date
Term Loan Exposure of all Lenders; (ii) for the Class of Lenders having Revolving Exposure, Lenders
having or holding more than 50% of the aggregate Revolving Exposure of all Lenders; and (iii) for
each Class of Lenders having New Term Loan Exposure, Lenders holding more than 50% of the aggregate
New Term Loan Exposure of that Class.



     “Requisite Lenders” means Lenders having or holding Closing Date Term Loan Exposure, New Term
Loan Exposure and/or Revolving Exposure and representing more than 50% of the sum of (i) the
aggregate Closing Date Term Loan Exposure of all Lenders; (ii) the aggregate Revolving Exposure of
all Lenders; and (iii) the aggregate New Term Loan Exposure of all Lenders.



     “Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of stock of Holdings or Company or any of its Subsidiaries
now or hereafter outstanding, except a dividend payable solely in shares of that class of stock to
the holders of that class; (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares of any class of stock of
Holdings or Company or any of its Subsidiaries now or hereafter outstanding; (iii) any payment made
to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of stock of Holdings or Company or any of its Subsidiaries now or
hereafter outstanding and (iv) any payment or prepayment of principal of, premium, if any, or
interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal
defeasance), sinking fund or similar payment with respect to, any Subordinated Indebtedness or any
Permitted Unsecured Indebtedness.



     “Revolving Commitment” means the commitment of a Lender to make or otherwise fund any
Revolving Loan and to acquire participations in Letters of Credit and Swing Line Loans hereunder
and “Revolving Commitments” means such commitments of all Lenders in the aggregate. The amount



26









 




of each Lender’s Revolving Commitment, if any, is set forth on Appendix A-2 or in the
applicable Assignment Agreement or Joinder Agreement, as the case may be, subject to any adjustment
or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Revolving
Commitments as of the Closing Date is $100,000,000.




     “Revolving Commitment Period” means the period from the Closing Date to but excluding the
Revolving Commitment Termination Date.



     “Revolving Commitment Termination Date” means the earliest to occur of (i) August 19, 2015,
(ii) the date the Revolving Commitments are permanently reduced to zero pursuant to Section 2.12(b)
or 2.13, and (iii) the date of the termination of the Revolving Commitments pursuant to Section
8.1.



     “Revolving Exposure” means, with respect to any Lender as of any date of determination, (i)
prior to the termination of the Revolving Commitments, that Lender’s Revolving Commitment; and (ii)
after the termination of the Revolving Commitments, the sum of (a) the aggregate outstanding
principal amount of the Revolving Loans of that Lender, (b) in the case of Issuing Bank, the
aggregate Letter of Credit Usage in respect of all Letters of Credit issued by that Lender (net of
any participations by Lenders in such Letters of Credit), (c) in the case of Lenders (other than an
Issuing Bank with respect to Letters of Credit issued by it), the aggregate amount of all
participations by that Lender in any outstanding Letters of Credit or any unreimbursed drawing
under any Letter of Credit, (d) in the case of Swing Line Lender, the aggregate outstanding
principal amount of all Swing Line Loans (net of any participations therein by other Lenders), and
(e) in the case of Lenders other than the Swing Line Lender, the aggregate amount of all
participations therein by that Lender in any outstanding Swing Line Loans.



     “Revolving Lender” shall mean a Lender with a Revolving Commitment.



     “Revolving Loan” means a Loan made by a Lender to Company pursuant to Section 2.2(a).



     “Revolving Loan Note” means a promissory note in the form of Exhibit B-3, as it may be
amended, supplemented or otherwise modified from time to time.



     “S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation.



     “Sanctioned Entity” means (a) an agency of the government of, (b) an organization directly or
indirectly controlled by, or (c) a person resident in, a country that is subject to a sanctions
program identified on the list maintained by OFAC and available at
http://www.treas.gov/offices/enforcement/ofac/programs, or as otherwise published from time to time
as such program may be applicable to such agency, organization or person.



     “Sanctioned Person” means a person named on the list of Specially Designated Nationals or
Blocked Persons maintained by OFAC available at
http://www.treas.gov/offices/enforcement/ofac/sdn/index.shtml, or as otherwise published from time
to time.



     “Secured Parties” has the meaning assigned to that term in the Pledge and Security Agreement.




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     “Securities” means any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit-sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly known as
“securities” or any certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing.



     “Securities Act” means the Securities Act of 1933, as amended from time to time, and any
successor statute.



     “Series” as defined in Section 2.24.



     “Settlement Confirmation” as defined in Section 10.6(b).



     “Settlement Service” as defined in Section 10.6(d).



     “Solvency Certificate” means a Solvency Certificate of the chief financial officer of Holdings
substantially in the form of Exhibit G-2.



     “Solvent” means, with respect to any Person, that as of the date of determination both (i)(a)
the sum of such Person’s debt (including contingent liabilities) does not exceed all of its
property, at a fair valuation; (b) the present fair saleable value of the property of such Person
is not less than the amount that will be required to pay the probable liabilities on such Person’s
then existing debts as they become absolute and matured; (c) such Person’s capital is not
unreasonably small in relation to its business or any contemplated or undertaken transaction; and
(d) such Person does not intend to incur, or believe (nor should it reasonably believe) that it
will incur, debts beyond its ability to pay such debts as they become due; and (ii) such Person is
“solvent” within the meaning given that term and similar terms under applicable laws relating to
fraudulent transfers and conveyances. For purposes of this definition, the amount of any
contingent liability at any time shall be computed as the amount that, in light of all of the facts
and circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability (irrespective of whether such contingent liabilities meet the
criteria for accrual under Statement of Financial Accounting Standard No. 5).



     “Specified Acquisition” means a Permitted Acquisition in which, as part of such acquisition,
Company or the Company Subsidiary that makes such acquisition sells, assigns or otherwise transfers
Capital Stock of the target company (or, subject to such sale, assignment or transfer not being a
Change of Control or a Default hereunder, any entity into which the target company is merged or
into which substantially all of the assets of the target company are acquired) to any member of the
management of, employee of, or any owner of the Capital Stock of the company that was the subject
of such Permitted Acquisition (such member or owner, a “Permitted Transferee”).



     “Specified Cash Management Arrangement” means any cash management arrangement (a) entered into
by (i) Company or any of its Subsidiaries and (ii) any Lender Counterparty, as counterparty and (b)
which has been designated by such Lender Counterparty and Company, by notice to the Administrative
Agent not later than thirty (30) days after the execution and delivery by Company or such
Subsidiary thereof, as a Specified Cash Management Arrangement. No Lender Counterparty that is a
party to a Specified Cash Management Arrangement shall have any rights in



28









 




connection with the management or release of any Collateral or of the Obligations of any
Credit Party under any Credit Document. For the avoidance of doubt, (i) all cash management
arrangements provided by the Administrative Agent or any of its Affiliates and (ii) all cash
management arrangements in existence on the Closing Date between Company or any of its Subsidiaries
and any Lender or an Affiliate thereof, shall constitute Specified Cash Management Arrangements.




     “Subject Transaction” as defined in Section 6.8(f).



     “Subordinated Indebtedness” means (i) Indebtedness outstanding under Permitted Seller Notes,
(ii) any Permitted Unsecured Indebtedness noted in clause (b) of the definition of Permitted
Unsecured Indebtedness and (iii) any Take Out Securities that constitute Indebtedness.



     “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof; provided, in determining the percentage of ownership
interests of any Person controlled by another Person, no ownership interest in the nature of a
“qualifying share” of the former Person shall be deemed to be outstanding.



     “Swing Line Lender” means Wells Fargo in its capacity as Swing Line Lender hereunder, together
with its permitted successors and assigns in such capacity.



     “Swing Line Loan” means a Loan made by Swing Line Lender to Company pursuant to Section 2.3.



     “Swing Line Note” means a promissory note in the form of Exhibit B-3, as it may be amended,
supplemented or otherwise modified from time to time.



     “Swing Line Sublimit” means the lesser of (i) $10,000,000, and (ii) the aggregate unused
amount of Revolving Commitments then in effect.



     “Syndication Agent” as defined in the preamble hereto.



     “Take Out Securities” means Capital Stock or other securities convertible into or otherwise
linked to Capital Stock, the net proceeds of which are used to repay the Loans and/or the Revolving
Commitments; provided, however, that to the extent the issuance of such Capital Stock or
other securities constitute Indebtedness, such Indebtedness shall be unsecured and subordinated in
a manner satisfactory to the Agents.



     “Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction
or withholding of any nature now or hereafter imposed, levied, collected, withheld or assessed by
any taxing authority; provided, “Tax on the overall net income” of a Person shall be
construed as a reference to a tax imposed by the jurisdiction in which that Person is organized or
in which that Person’s applicable principal office (and/or, in the case of a Lender, its lending
office) is located or in



29









 




which that Person (and/or, in the case of a Lender, its lending office) is deemed to be doing
business on or measured by all or part of the net income, profits or gains (whether worldwide, or
only insofar as such income, profits or gains are considered to arise in or to relate to a
particular jurisdiction, or otherwise) of that Person (and/or, in the case of a Lender, its
applicable lending office).




     “Term Loan” means a Closing Date Term Loan or a New Term Loan.



     “Term Loan Commitment” means a Closing Date Term Loan Commitment or a New Term Loan
Commitment, and “Term Loan Commitments” means such commitments of all Lenders.



     “Term Loan Maturity Date” means the Closing Date Term Loan Maturity Date or the New Term Loan
Maturity Date, as applicable, of any Series of New Term Loans.



     “Term Loan Note” means a promissory note substantially in the form of Exhibit B-1, as it may
be amended, supplemented or otherwise modified from time to time.



     “Terminated Lender” as defined in Section 2.22.



     “Title Policy” as defined in Section 5.11.



     “Total Utilization of Revolving Commitments” means, as at any date of determination, the sum
of (i) the aggregate principal amount of all outstanding Revolving Loans (other than Revolving
Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing Issuing Bank
for any amount drawn under any Letter of Credit, but not yet so applied), (ii) the aggregate
principal amount of all outstanding Swing Line Loans, and (iii) the Letter of Credit Usage.



     “Transaction Costs” means the fees, costs and expenses payable by Holdings, Company or any of
Company’s Subsidiaries in connection with the closing of the transactions contemplated by the
Credit Documents, on the Closing Date.



     “Type of Loan” means (i) with respect to either Term Loans or Revolving Loans, a Base Rate
Loan or a Eurodollar Rate Loan, and (ii) with respect to Swing Line Loans, a Base Rate Loan.



     “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in
effect in any applicable jurisdiction.



     “UCC Questionnaire” means a certificate in form satisfactory to the Collateral Agent that
provides information with respect to the personal or mixed property of each Credit Party.



     1.2 Accounting Terms.



          (a) 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 and in a manner consistent
with
that used in preparing the Historical Financial Statements, except as otherwise specifically
prescribed herein.




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          (b) If at any time any change in GAAP or in the application of GAAP would affect the
computation of any financial ratio or other financial covenant set forth in any Credit Document,
and either Company or the Requisite Lenders shall so request, Administrative Agent, Lenders and
Company shall negotiate in good faith to amend (subject to Section 10.5) such ratio or covenant to
preserve the original intent thereof in light of such change in (or in the application of) GAAP;
provided that, until so amended, (i) such ratio or financial covenant shall continue to be computed
in accordance with GAAP prior to such change in (or in application of) GAAP and (ii) Company shall
provide to the Administrative Agent financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations
of such ratio or financial covenant made before and after giving effect to such change in (or in
the application of) GAAP as is reasonably necessary to demonstrate compliance (or non-compliance)
with such ratio or financial covenants.




          (c) Notwithstanding any other provision contained herein, calculations in connection with the
definitions, covenants and other provisions hereof shall be made without giving effect to any
election under Accounting Standards Codification 825-10 (or any other Financial Accounting Standard
having a similar result or effect) to value any Indebtedness or other liabilities of any Credit
Party or any Subsidiary of any Credit Party at “fair value”).




     1.3 Interpretation, etc. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference. References herein to
any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an
Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the
word “include” or “including”, when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not nonlimiting language
(such as “without limitation” or “but not limited to” or words of similar import) is used with
reference thereto, but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.



SECTION 2. LOANS




     2.1 Closing Date Term Loans.



          (a) Closing Date Term Loan Commitments. Subject to the terms and conditions hereof,
each Lender severally agrees to make, on the Closing Date, a Closing Date Term Loan to Company in
an amount equal to such Lender’s Closing Date Term Loan Commitment. Company may make only one
borrowing under the Closing Date Term Loan Commitments which shall be on the Closing Date. Any
amount borrowed under this Section 2.1(a) and subsequently repaid or prepaid may not be reborrowed.
Subject to Sections 2.12(a)
and 2.13, all amounts owed hereunder with respect to the Closing Date Term Loans shall be paid
in full no later than the Closing Date Term Loan Maturity Date. Each Lender’s Closing Date Term
Loan Commitment shall terminate immediately and without further action on the Closing Date after
giving effect to the funding of such Lender’s Closing Date Term Loan Commitment on such date.




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          (b) Borrowing Mechanics for Closing Date Term Loans.




               (i) Company shall deliver to Administrative Agent a fully executed and delivered Closing Date
Certificate (which shall be deemed to be a Funding Notice with respect to the Closing Date Term
Loans for all purposes hereof) no later than 1:00 p.m. (New York City time) one Business Day prior
to the Closing Date. Promptly upon receipt by Administrative Agent of such certificate,
Administrative Agent shall notify each Lender of the proposed borrowing.



               (ii) Each Lender shall make its Closing Date Term Loan available to Administrative Agent not
later than 12:00 p.m. (New York City time) on the Closing Date, by wire transfer of same day funds
in Dollars, at the Principal Office designated by Administrative Agent. Upon satisfaction or
waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds
of the Closing Date Term Loans available to Company on the Closing Date by causing an amount of
same day funds in Dollars equal to the proceeds of all such Loans received by Administrative Agent
from Lenders to be credited to the account of Company at the Principal Office designated by
Administrative Agent or to such other account as may be designated in writing to Administrative
Agent by Company.



               (iii) All Closing Date Term Loans must be, as of the Closing Date, Base Rate Loans.



     2.2 Revolving Loans.



          (a) Revolving Commitments. During the Revolving Commitment Period, subject to the
terms and conditions hereof, each Lender severally agrees to make Revolving Loans to Company in the
aggregate amount up to but not exceeding such Lender’s Revolving Commitment; provided,
after giving effect to the making of any Revolving Loans in no event shall the Total Utilization of
Revolving Commitments exceed the Revolving Commitments then in effect. Amounts borrowed pursuant
to this Section 2.2(a) may be repaid and reborrowed during the Revolving Commitment Period. Each
Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date and all
Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the
Revolving Commitments shall be paid in full no later than such date.




          (b) Borrowing Mechanics for Revolving Loans.




               (i) Revolving Loans that are Base Rate Loans shall be made in an aggregate minimum amount of
$1,000,000 and integral multiples of $500,000 in excess of that amount, and Revolving Loans that
are Eurodollar Rate Loans shall be in an aggregate minimum amount of $2,000,000 and integral
multiples of $1,000,000 in excess of that amount.



               (ii) Whenever Company desires that Lenders make Revolving Loans, Company shall deliver to
Administrative Agent a fully executed and delivered Funding Notice no later than 1:00 p.m. (New
York City time) at least three Business Days in advance of the proposed Credit Date in the case of
a Eurodollar Rate Loan, and at least one Business Day in advance of the proposed Credit Date in the
case of a Revolving Loan that is a Base Rate Loan. Except as otherwise provided herein, a Funding
Notice for a Revolving Loan that is a Eurodollar Rate Loan shall be irrevocable on



32









 




and after the
related Interest Rate Determination Date, and Company shall be bound to make a borrowing in
accordance therewith.




               (iii) Notice of receipt of each Funding Notice in respect of Revolving Loans, together with
the amount of each Lender’s Pro Rata Share thereof, if any, together with the applicable interest
rate, shall be provided by Administrative Agent to each applicable Lender by telefacsimile with
reasonable promptness, but (provided Administrative Agent shall have received such notice by 1:00
p.m. (New York City time)) not later than 3:00 p.m. (New York City time) on the same day as
Administrative Agent’s receipt of such Notice from Company.



               (iv) Each Lender shall make the amount of its Revolving Loan available to Administrative Agent
not later than 12:00 p.m. (New York City time) on the applicable Credit Date by wire transfer of
same day funds in Dollars, at the Principal Office designated by the Administrative Agent. Except
as provided herein, upon satisfaction or waiver of the conditions precedent specified herein,
Administrative Agent shall make the proceeds of such Revolving Loans available to Company on the
applicable Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of
all such Revolving Loans received by Administrative Agent from Lenders to be credited to the
account of Company at the Principal Office designated by the Administrative Agent or such other
account as may be designated in writing to Administrative Agent by Company.



               (v) Any Revolving Loans made on the Closing Date must be, as of the Closing Date, Base Rate
Loans.



     2.3 Swing Line Loans.



          (a) Swing Line Loans Commitments. During the Revolving Commitment Period, subject to
the terms and conditions hereof, Swing Line Lender hereby agrees to make Swing Line Loans to
Company in the aggregate amount up to but not exceeding the Swing Line Sublimit; provided,
after giving effect to the making of any Swing Line Loan, in no event shall the Total Utilization
of Revolving Commitments exceed the Revolving Commitments then in effect. Amounts borrowed
pursuant to this Section 2.3 may be repaid and reborrowed during the Revolving Commitment Period.
Swing Line Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date
and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans
and the Revolving Commitments shall be paid in full no later than such date.




          (b) Borrowing Mechanics for Swing Line Loans.




               (i) Swing Line Loans shall be made in an aggregate minimum amount of $100,000 and integral
multiples of $100,000 in excess of that amount.



               (ii) Whenever Company desires that Swing Line Lender make a Swing Line Loan, Company shall
deliver to Administrative Agent a Funding Notice no later than 1:00 p.m. (New York City time) on
the proposed Credit Date.



               (iii) Swing Line Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 3:00 p.m. (New York City time) on the applicable Credit Date by
wire transfer of same day funds in Dollars, at the Administrative Agent’s Principal



33









 




Office. Except
as provided herein, upon satisfaction or waiver of the conditions precedent specified herein,
Administrative Agent shall make the proceeds of such Swing Line Loans available to Company on the
applicable Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of
all such Swing Line Loans received by Administrative Agent from Swing Line Lender to be credited to
the account of Company at the Administrative Agent’s Principal Office, or to such other account as
may be designated in writing to Administrative Agent by Company.




               (iv) With respect to any Swing Line Loans which have not been voluntarily prepaid by Company
pursuant to Section 2.12, Swing Line Lender may at any time in its sole and absolute discretion,
deliver to Administrative Agent (with a copy to Company), no later than 11:00 a.m. (New York City
time) at least one (1) Business Day in advance of the proposed Credit Date, a notice (which shall
be deemed to be a Funding Notice given by Company) requesting that each Lender holding a Revolving
Commitment make Revolving Loans that are Base Rate Loans to Company on such Credit Date in an
amount equal to the amount of such Swing Line Loans (the “Refunded Swing Line Loans”) outstanding
on the date such notice is given which the Swing Line Lender requests Lenders to prepay.
Notwithstanding anything contained in this Agreement to the contrary, (1) the proceeds of such
Revolving Loans made by the Lenders other than Swing Line Lender shall be immediately delivered by
the Administrative Agent to Swing Line Lender (and not to Company) and applied to repay a
corresponding portion of the Refunded Swing Line Loans and (2) on the day such Revolving Loans are
made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be
paid with the proceeds of a Revolving Loan made by Swing Line Lender to Company, and such portion
of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and
shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute
part of Swing Line Lender’s outstanding Revolving Loans to Company and shall be due under the
Revolving Loan Note issued by Company to Swing Line Lender. Company hereby authorizes
Administrative Agent and Swing Line Lender to charge Company’s accounts with Administrative Agent
and Swing Line Lender (up to the amount available in each such account) in order to immediately pay
Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such
Revolving Loans made by Lenders, including the Revolving Loan deemed to be made by the Swing Line
Lender, are not sufficient to repay in full the Refunded Swing Line Loans. If any portion of any
such amount paid (or deemed to be paid) to Swing Line Lender should be recovered by or on behalf of
Company from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or
otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in the
manner contemplated by Section 2.16.



               (v) If for any reason Revolving Loans are not made pursuant to Section 2.3(b)(iv) in an amount
sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding Swing Line
Loans on or before the third Business Day after demand for payment thereof by Swing Line Lender,
each Lender holding a Revolving Commitment shall be deemed to, and hereby agrees to, have purchased
a participation in such outstanding Swing Line Loans, and in an amount
equal to its Pro Rata Share of the applicable unpaid amount together with accrued interest
thereon. Upon one (1) Business Day’s notice from Swing Line Lender, each Lender holding a
Revolving Commitment shall deliver to Swing Line Lender an amount equal to its respective
participation in the applicable unpaid amount in same day funds at the Principal Office of Swing
Line Lender. In order to evidence such participation each Lender holding a Revolving Commitment
agrees to enter into a participation agreement at the request of Swing Line Lender in form and
substance reasonably satisfactory to Swing Line Lender. In the event any Lender holding a
Revolving Commitment fails to



34









 




make available to Swing Line Lender the amount of such Lender’s
participation as provided in this paragraph, Swing Line Lender shall be entitled to recover such
amount on demand from such Lender together with interest thereon for three Business Days at the
rate customarily used by Swing Line Lender for the correction of errors among banks and thereafter
at the Base Rate, as applicable.




               (vi) Notwithstanding anything contained herein to the contrary, (1) each Lender’s obligation
to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the
second preceding paragraph and each Lender’s obligation to purchase a participation in any unpaid
Swing Line Loans pursuant to the immediately preceding paragraph shall be absolute and
unconditional and shall not be affected by any circumstance, including without limitation (A) any
set-off, counterclaim, recoupment, defense or other right which such Lender may have against Swing
Line Lender, any Credit Party or any other Person for any reason whatsoever; (B) the occurrence or
continuation of a Default or Event of Default; (C) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of any Credit Party; (D) any
breach of this Agreement or any other Credit Document by any party thereto; or (E) any other
circumstance, happening or event whatsoever, whether or not similar to any of the foregoing;
provided that such obligations of each Lender are subject to the condition that Swing Line
Lender believed in good faith that all conditions under Section 3.2 to the making of the applicable
Refunded Swing Line Loans or other unpaid Swing Line Loans, were satisfied at the time such
Refunded Swing Line Loans or unpaid Swing Line Loans were made, or the satisfaction of any such
condition not satisfied had been waived by Requisite Lenders prior to or at the time such Refunded
Swing Line Loans or other unpaid Swing Line Loans were made; and (2) Swing Line Lender shall not be
obligated to make any Swing Line Loans (A) if it has elected not to do so after the occurrence and
during the continuation of a Default or Event of Default or (B) at a time when a Funding Default or
Lender Insolvency Default exists unless Swing Line Lender has entered into arrangements
satisfactory to it and Company to eliminate Swing Line Lender’s risk with respect to the Defaulting
Lender’s participation in such Swing Line Loan, including by cash collateralizing such Defaulting
Lender’s Pro Rata Share of the outstanding Swing Line Loans.



               (vii) All Swing Line Loans must be, at all times, Base Rate Loans.



     2.4 Pro Rata Shares; Availability of Funds.



          (a) Pro Rata Shares. All Loans shall be made, and all participations purchased, by
Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood
that no Lender shall be responsible for any default by any other Lender in such other Lender’s
obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall
any Term Loan Commitment or any Revolving Commitment of any Lender be increased or decreased
as a result of a default by any other Lender in such other Lender’s obligation to make a Loan
requested hereunder or purchase a participation required hereby.




          (b) Availability of Funds. Unless Administrative Agent shall have been notified by
any Lender prior to the applicable Credit Date that such Lender does not intend to make available
to Administrative Agent the amount of such Lender’s Loan requested on such Credit Date,
Administrative Agent may assume that such Lender has made such amount available to Administrative
Agent on such Credit Date and Administrative Agent may, in its sole discretion, but shall not be
obligated to, make available to Company a corresponding amount on such Credit Date. If




35









 







such
corresponding amount is not in fact made available to Administrative Agent by such Lender,
Administrative Agent shall be entitled to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such Credit Date until the date such
amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the Base Rate. If such
Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand
therefor, Administrative Agent shall promptly notify Company and Company shall immediately pay such
corresponding amount to Administrative Agent together with interest thereon, for each day from such
Credit Date until the date such amount is paid to Administrative Agent, at the rate payable
hereunder for Base Rate Loans for such Class of Loans. Nothing in this Section 2.4(b) shall be
deemed to relieve any Lender from its obligation to fulfill its Term Loan Commitments and Revolving
Commitments hereunder or to prejudice any rights that Company may have against any Lender as a
result of any default by such Lender hereunder.




     2.5 Use of Proceeds. All proceeds of the Closing Date Term Loans shall be applied by Company
to repay and refinance all amounts outstanding under the Existing Credit Agreement and to pay fees,
costs and expenses in connection therewith and, to the extent of any funds remaining thereafter,
for general corporate purposes. The proceeds of the Revolving Loans, Letters of Credit, Swing Line
Loans and any New Term Loans shall be applied by Company for working capital and general corporate
purposes of Company and its Subsidiaries, including Permitted Acquisitions. No portion of the
proceeds of any Credit Extension shall be used in any manner that causes or might cause such Credit
Extension or the application of such proceeds to violate Regulation T, Regulation U or Regulation X
of the Board of Governors of the Federal Reserve System or any other regulation thereof or to
violate the Exchange Act.



     2.6 Evidence of Debt; Register; Lenders’ Books and Records; Notes.



          (a) Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an
account or accounts evidencing the Indebtedness of Company to such Lender, including the amounts of
the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation
shall be prima facie evidence thereof; provided, failure to make any such recordation, or
any error in such recordation, shall not affect any Lender’s Revolving Commitments or Company’s
Obligations in respect of any applicable Loans; and provided further, in the event
of any inconsistency between the Register and any Lender’s records, the recordations in the
Register shall govern.




          (b) Register. Administrative Agent (or its agent or sub-agent appointed by it) shall
maintain at the Principal Office a register for the recordation of the names and addresses of
Lenders and the Revolving Commitments and Loans of each Lender from time to time (the “Register”).
The Register, as in effect at the close of business on the preceding Business Day, shall be
available for inspection by Company or any Lender at any reasonable time and from time to time upon
reasonable prior notice. Administrative Agent shall record, or shall cause to be recorded, in the
Register the Revolving Commitments and the Loans, and each repayment or prepayment in respect of
the principal amount of the Loans, and any such recordation shall be conclusive and binding on
Company and each Lender, absent manifest error; provided, failure to make any such
recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments
or Company’s Obligations in respect of any Loan. Company hereby designates Wells Fargo to serve as
Company’s agent solely for purposes of maintaining the Register as provided in this Section 2.6,
and Company hereby agrees that,




36









 







to the extent Wells Fargo serves in such capacity, Wells Fargo and
its officers, directors, employees, agents, sub-agents and affiliates shall constitute
“Indemnitees.”




          (c) Notes. If so requested by any Lender by written notice to Company (with a copy to
Administrative Agent) at least two Business Days prior to the Closing Date, or at any time
thereafter, Company shall execute and deliver to such Lender (and/or, if applicable and if so
specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6)
on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after
Company’s receipt of such notice) a Note or Notes to evidence such Lender’s Term Loan, Revolving
Loan or Swing Line Loan, as the case may be.




     2.7 Interest on Loans.



          (a) Except as otherwise set forth herein, each Class of Loan shall bear interest on the unpaid
principal amount thereof from the date made through repayment (whether by acceleration or
otherwise) thereof as follows:




               (i) in the case of Term Loans and Revolving Loans:




	 	(1)	 	if a Base Rate Loan, at the Base
Rate plus the Applicable Margin; or
	 
	 	(2)	 	if a Eurodollar Rate Loan, at the
Adjusted Eurodollar Rate plus the Applicable Margin; and





               (ii) in the case of Swing Line Loans, at the Base Rate plus the
Applicable Margin.



          (b) The basis for determining the rate of interest with respect to any Loan (except a Swing
Line Loan which can be made and maintained as Base Rate Loans only), and the Interest Period with
respect to any Eurodollar Rate Loan, shall be selected by Company and notified to Administrative
Agent and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as
the case may be. If on any day a Loan is outstanding with respect to which a Funding Notice or
Conversion/Continuation Notice has not been delivered to
Administrative Agent in accordance with the terms hereof specifying the applicable basis for
determining the rate of interest, then for that day such Loan shall be a Base Rate Loan.




          (c) In connection with Eurodollar Rate Loans there shall be no more than twelve (12) Interest
Periods outstanding at any time. In the event Company fails to specify between a Base Rate Loan or
a Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, such
Loan (if outstanding as a Eurodollar Rate Loan) shall be automatically converted into a Base Rate
Loan on the last day of the then-current Interest Period for such Loan (or if outstanding as a Base
Rate Loan will remain as, or (if not then outstanding) shall be made as, a Base Rate Loan). In the
event Company fails to specify an Interest Period for any Eurodollar Rate Loan in the applicable
Funding Notice or Conversion/Continuation Notice, Company shall be deemed to have selected an
Interest Period of one month. As soon as practicable after 10:00 a.m. (New York City time) on each
Interest Rate Determination Date, Administrative Agent shall determine (which determination shall
be prima facie evidence thereof) the interest rate that shall apply to the Eurodollar Rate Loans
for which




37









 







an interest rate is then being determined for the applicable Interest Period and shall
promptly give notice thereof (in writing or by telephone confirmed in writing) to Company and each
Lender.




          (d) Interest payable pursuant to Section 2.7(a) shall be computed (i) in the case of Base Rate
Loans on the basis of a 365-day or 366-day year, as the case may be, and (ii) in the case of
Eurodollar Rate Loans, on the basis of a 360-day year, in each case for the actual number of days
elapsed in the period during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect
to a Term Loan, the preceding Interest Payment Date with respect to such Term Loan or, with respect
to a Base Rate Loan being converted from a Eurodollar Rate Loan, the date of conversion of such
Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with
respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the date of conversion of
such Base Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded;
provided, if a Loan is repaid on the same day on which it is made, one day’s interest shall
be paid on that Loan.




          (e) Interest on each Loan shall accrue and shall be payable in arrears on each Interest
Payment Date and at maturity, including final maturity; provided, that interest accruing in
accordance with Section 2.7(f)(ii) or Section 2.9 shall be payable on demand.




          (f) Company agrees to pay to Issuing Bank, with respect to drawings honored under any Letter
of Credit, interest on the amount paid by Issuing Bank in respect of each such honored drawing from
the date such drawing is honored to but excluding the date such amount is reimbursed by or on
behalf of Company at a rate equal to (i) for the period from the date such drawing is honored to
but excluding the applicable Reimbursement Date, the rate of interest otherwise payable hereunder
with respect to Revolving Loans that are Base Rate Loans, and (ii) from and after the applicable
Reimbursement Date (if not paid by the applicable Reimbursement Date), a rate which is 2% per annum
in excess of the rate of interest otherwise payable hereunder with respect to Revolving Loans that
are Base Rate Loans.




          (g) Interest payable pursuant to Section 2.7(f) shall be computed on the basis of a
365/366-day year for the actual number of days elapsed in the period during which it accrues, and
shall be payable on demand or, if no demand is made, on the date on which the related drawing under
a Letter of Credit is reimbursed in full. Promptly upon receipt by Issuing Bank of any
payment of interest pursuant to Section 2.7(f), Issuing Bank shall distribute to each Lender, out
of the interest received by Issuing Bank in respect of the period from the date such drawing is
honored to but excluding the date on which Issuing Bank is reimbursed for the amount of such
drawing (including any such reimbursement out of the proceeds of any Revolving Loans), the amount
that such Lender would have been entitled to receive in respect of the letter of credit fee that
would have been payable in respect of such Letter of Credit for such period if no drawing had been
honored under such Letter of Credit. In the event Issuing Bank shall have been reimbursed by
Lenders for all or any portion of such honored drawing, Issuing Bank shall distribute to each
Lender which has paid all amounts payable by it under Section 2.23(e) with respect to such honored
drawing such Lender’s Pro Rata Share of any interest received by Issuing Bank in respect of that
portion of such honored drawing so reimbursed by Lenders for the period from the date on which
Issuing Bank was so reimbursed by Lenders to but excluding the date on which such portion of such
honored drawing is reimbursed by Company.




38









 








     2.8 Conversion/Continuation.



          (a) Subject to Section 2.17 and so long as no Default or Event of Default shall have occurred
and then be continuing, Company shall have the option:




               (i) to convert at any time all or any part of any Term Loan or Revolving Loan equal to
$1,000,000 and integral multiples of $500,000 in excess of that amount from one Type of Loan to
another Type of Loan; provided, a Eurodollar Rate Loan may only be converted on the
expiration of the Interest Period applicable to such Eurodollar Rate Loan unless Company shall pay
all amounts due under Section 2.17 in connection with any such conversion; or



               (ii) upon the expiration of any Interest Period applicable to any Eurodollar Rate Loan, to
continue all or any portion of such Loan equal to $2,000,000 and integral multiples of $1,000,000
in excess of that amount as a Eurodollar Rate Loan.



          (b) Company shall deliver a Conversion/Continuation Notice to Administrative Agent no later
than 1:00 p.m. (New York City time) at least one Business Day in advance of the proposed conversion
date (in the case of a conversion to a Base Rate Loan) and at least three Business Days in advance
of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of,
a Eurodollar Rate Loan). Except as otherwise provided herein, a Conversion/Continuation Notice for
conversion to, or continuation of, any Eurodollar Rate Loans (or telephonic notice in lieu thereof)
shall be irrevocable on and after the related Interest Rate Determination Date, and Company shall
be bound to effect a conversion or continuation in accordance therewith.




     2.9 Default Interest. Upon the occurrence and during the continuance of an Event of Default
described in Section 8.1(a), the principal amount of all Loans and any interest payments on the
Loans or any fees or other amounts owed hereunder not paid when due, in each case whether at stated
maturity, by notice of prepayment, by acceleration or otherwise, shall, to the extent permitted by
applicable law, thereafter bear interest (including post-petition interest in any proceeding under
the Bankruptcy Code or other
applicable bankruptcy laws) payable on demand at a rate that is 2% per annum in excess of the
interest rate otherwise payable hereunder with respect to the applicable Loans (or, in the case of
any such fees and other amounts, at a rate which is 2% per annum in excess of the interest rate
otherwise payable hereunder for Base Rate Loans); provided, in the case of Eurodollar Rate
Loans, upon the expiration of the Interest Period in effect at the time any such increase in
interest rate is effective such Eurodollar Rate Loans shall thereupon become Base Rate Loans and
shall thereafter bear interest payable upon demand at a rate which is 2% per annum in excess of the
interest rate otherwise payable hereunder for Base Rate Loans. Payment or acceptance of the
increased rates of interest provided for in this Section 2.9 is not a permitted alternative to
timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or
limit any rights or remedies of Administrative Agent or any Lender.



     2.10 Fees.



          (a) Company agrees to pay to Lenders having Revolving Exposure:




               (i) commitment fees equal to (1) the average of the daily difference between (a) the Revolving
Commitments, and (b) the sum of (x) the aggregate principal amount of



39









 




outstanding Revolving Loans
(but not any outstanding Swing Line Loans) plus (y) the Letter of Credit Usage, times (2) the
Applicable Revolving Commitment Fee Percentage; and




               (ii) letter of credit fees equal to (1) the Applicable Margin for Revolving Loans that are
Eurodollar Rate Loans, times (2) the average aggregate daily maximum amount available to be drawn
under all such Letters of Credit (regardless of whether any conditions for drawing could then be
met and determined as of the close of business on any date of determination).



          (b) [Reserved].




          (c) Company agrees to pay directly to Issuing Bank, for its own account, the following fees:




               (i) a per annum fronting fee separately agreed between the Issuing Bank and Company, times the
average aggregate daily maximum amount available to be drawn under all Letters of Credit
(determined as of the close of business on any date of determination); and



               (ii) such documentary and processing charges for any issuance, amendment, transfer or payment
of a Letter of Credit as are in accordance with Issuing Bank’s standard schedule for such charges
and as in effect at the time of such issuance, amendment, transfer or payment, as the case may be.



          (d) All fees referred to in Section 2.10(a) shall be calculated on the basis of a 360-day
year, and the actual number of days elapsed and shall be payable quarterly in arrears on April 1,
July 1, October 1 and January 1 of each year during the Revolving Commitment Period, commencing on
the first such date to occur after the Closing Date, and on the Revolving Commitment Termination
Date.




          (e) In addition to any of the foregoing fees, Company agrees to pay to Agents such other fees
in the amounts and at the times separately agreed upon, including but not limited to any closing
fees for the benefit of the Lenders set forth in that certain fee letter dated as of July 16, 2010
among Company, the Lead Arrangers, the Administrative Agent and the Syndication Agent (as it may be
amended, supplemented or otherwise modified from time to time).




     2.11 Scheduled Payments. The principal amount of the Closing Date Term Loans shall be repaid
in consecutive quarterly installments (each, an “Installment”) in the aggregate amounts set forth
below on the last day of each Fiscal Quarter (each, an “Installment Date”) commencing December 31,
2010:



	 	 	 	 	 
	 	 	Closing Date Term
	Installment Date	 	Loan Installments
	December 31, 2010
	 	$	6,250,000	 
	March 31, 2011
	 	$	6,250,000	 
	June 30, 2011
	 	$	6,250,000	 
	September 30, 2011
	 	$	6,250,000	 
	December 31, 2011
	 	$	6,250,000	 






40









 






	 	 	 	 	 
	 	 	Closing Date Term
	Installment Date	 	Loan Installments
	March 31, 2012
	 	$	6,250,000	 
	June 30, 2012
	 	$	6,250,000	 
	September 30, 2012
	 	$	6,250,000	 
	December 31, 2012
	 	$	9,375,000	 
	March 31, 2013
	 	$	9,375,000	 
	June 30, 2013
	 	$	9,375,000	 
	September 30, 2013
	 	$	9,375,000	 
	December 31, 2013
	 	$	9,375,000	 
	March 31, 2014
	 	$	9,375,000	 
	June 30, 2014
	 	$	9,375,000	 
	September 30, 2014
	 	$	9,375,000	 
	December 31, 2014
	 	$	12,500,000	 
	March 31, 2015
	 	$	12,500,000	 
	June 30, 2015
	 	$	12,500,000	 
	Closing Date Term Loan Maturity Date
	 	$	337,500,000	 






     ; provided, in the event any New Term Loans are made, such New Term Loans shall be
repaid on each Installment Date occurring on or after the applicable Increased Amount Date in an
amount not in excess of the product of (i) the aggregate principal amount of New Term Loans of the
applicable Series of New Term Loans, times (ii) the ratio (expressed as a percentage) of (y) the
amount of all
other Term Loans being repaid on such Installment Date and (z) the total aggregate principal
amount of all other Term Loans outstanding on such Increased Amount Date.



     Notwithstanding the foregoing, (y) such Installments shall be reduced in connection with any
voluntary or mandatory prepayments of the Term Loans in accordance with Sections 2.12, 2.13 and
2.14 as applicable; and (z) the Closing Date Term Loans and the New Term Loans, together with all
other amounts owed hereunder with respect thereto, shall, in any event, be paid in full no later
than the Closing Date Term Loan Maturity Date and the New Term Loan Maturity Date, respectively.



     2.12 Voluntary Prepayments/Commitment Reductions.



          (a) Voluntary Prepayments.




               (i) Any time and from time to time:




     (1) with respect to Base Rate Loans, Company may prepay, any such Loans
on any Business Day in whole or in part, in an aggregate minimum amount of
$1,000,000 and integral multiples of $500,000 in excess of that amount;



41









 






     (2) with respect to Eurodollar Rate Loans, Company may prepay, any such
Loans on any Business Day in whole or in part in an aggregate minimum amount
of $2,000,000 and integral multiples of $1,000,000 in excess of that amount;
and




     (3) with respect to Swing Line Loans, Company may prepay, any such Loans
on any Business Day in whole or in part in an aggregate minimum amount of
$100,000, and in integral multiples of $100,000 in excess of that amount.



               (ii) All such prepayments shall be made:




     (1) upon not less than one Business Day’s prior written or telephonic
notice in the case of Base Rate Loans;




     (2) upon not less than three Business Day’s prior written or telephonic
notice in the case of Eurodollar Rate Loans; and




     (3) upon written or telephonic notice on the date of prepayment, in the
case of Swing Line Loans;


in each case given to Administrative Agent or Swing Line Lender, as the case may be, by 1:00 p.m.
(New York City time) on the date required and, if given by telephone, promptly confirmed in writing
to Administrative Agent (and Administrative Agent will promptly transmit such telephonic or
original notice for Term Loans or Revolving Loans, as the case may be, by telefacsimile or
telephone to each Lender) or Swing Line Lender, as the case may be. Upon the giving of any such
notice, the principal
amount of the Loans specified in such notice shall become due and payable on the prepayment date
specified therein.




          (b) Voluntary Commitment Reductions.




               (i) Company may, upon not less than three Business Days’ prior written or telephonic notice
confirmed in writing to Administrative Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by telefacsimile or telephone to each applicable
Lender), at any time and from time to time terminate in whole or permanently reduce in part,
without premium or penalty, the Revolving Commitments in an amount up to the amount by which the
Revolving Commitments exceed the Total Utilization of Revolving Commitments at the time of such
proposed termination or reduction; provided, any such partial reduction of the Revolving
Commitments shall be in an aggregate minimum amount of $5,000,000 and integral multiples of
$1,000,000 in excess of that amount.



               (ii) Company’s notice to Administrative Agent shall designate the date (which shall be a
Business Day) of such termination or reduction and the amount of any partial reduction, and such
termination or reduction of the Revolving Commitments shall be effective on the date specified in
Company’s notice and shall reduce the Revolving Commitment of each Lender proportionately to its
Pro Rata Share thereof.



     2.13 Mandatory Prepayments/Commitment Reductions.




42











 





          (a) Asset Sales. No later than the first Business Day following the date of
receipt by Holdings or any of its Subsidiaries of any Net Asset Sale Proceeds, Company shall prepay
the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section
2.14(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, (i) so long
as no Default or Event of Default shall have occurred and be continuing, and (ii) so long as the
reinvestment of any such Net Asset Sale Proceeds are considered Consolidated Capital Expenditures
in the determination of the Fixed Charge Coverage Ratio, Company shall have the option, directly or
through one or more of its Subsidiaries, to invest Net Asset Sale Proceeds within two hundred
seventy (270) days of receipt thereof in long term productive assets of the general type used in
the business of Company and its Subsidiaries, including the purchase of one or more businesses and
any real estate related to such businesses; provided further, pending any such investment
all such Net Asset Sale Proceeds shall be applied to prepay Revolving Loans to the extent
outstanding (without a reduction in Revolving Commitments). Notwithstanding the foregoing,
proceeds received by Holdings or any of its Subsidiaries from sale lease back transactions
permitted under Section 6.11 shall be subject to the prepayment requirements set forth in Section
6.11 and not the prepayment requirements set forth in this Section 2.13(a).




          (b) Insurance/Condemnation Proceeds. No later than the first Business Day following
the date of receipt by Holdings or any of its Subsidiaries, or Administrative Agent as loss payee,
of any Net Insurance/Condemnation Proceeds, Company shall prepay the Loans and/or the Revolving
Commitments shall be permanently reduced as set forth in Section 2.14(b) in an aggregate amount
equal to such Net Insurance/Condemnation Proceeds; provided, (i) so long as no Default or
Event of Default shall have occurred and be continuing, and (ii) so long as the reinvestment of any
such Net Insurance/Condemnation Proceeds are considered Consolidated Capital Expenditures in
determination of the Fixed Charge Coverage Ratio, Company shall have the option, directly or
through one or more of its Subsidiaries to invest such Net Insurance/Condemnation Proceeds within
two hundred seventy (270) days of receipt thereof in long term productive assets of the general
type used in the business of Holdings and its Subsidiaries, which investment may include the
repair, restoration or replacement of the applicable assets thereof; provided further,
pending any such investment all such Net Insurance/Condemnation Proceeds, as the case may be, shall
be applied to prepay Revolving Loans to the extent outstanding (without a reduction in Revolving
Commitments).




          (c) [Reserved].




          (d) Issuance of Debt. On the date of receipt by Holdings or any of its Subsidiaries
of any Cash proceeds from incurrence of any Indebtedness of Holdings or any of its Subsidiaries
(other than with respect to any Indebtedness permitted to be incurred pursuant to Section 6.1),
Company shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set
forth in Section 2.14(b) in an aggregate amount equal to 100% of such proceeds, net of underwriting
discounts and commissions and other reasonable costs and expenses associated therewith, including
reasonable legal fees and expenses.




          (e) [Reserved].




          (f) Revolving Loans and Swing Loans. Company shall from time to time prepay first,
the Swing Line Loans, and second, the Revolving Loans to the extent necessary so that the Total






43









 







Utilization of Revolving Commitments shall not at any time exceed the Revolving Commitments
then in effect.




          (g) Prepayment Certificate. Concurrently with any prepayment of the Loans and/or
reduction of the Revolving Commitments pursuant to Sections 2.13(a) through 2.13(e) or Section
6.11, Company shall deliver to Administrative Agent a certificate of an Authorized Officer
demonstrating the calculation of the amount of the applicable net proceeds. In the event that
Company shall subsequently determine that the actual amount received exceeded the amount set forth
in such certificate, Company shall promptly make an additional prepayment of the Loans and/or the
Revolving Commitments shall be permanently reduced in an amount equal to such excess, and Company
shall concurrently therewith deliver to Administrative Agent a certificate of an Authorized Officer
demonstrating the derivation of such excess.




     2.14 Application of Prepayments/Reductions.




          (a) Application of Voluntary Prepayments by Class of Loans. Any prepayment of any
Loan pursuant to Section 2.12(a) shall be applied as specified by Company in the applicable notice
of prepayment (for the sake of clarity, including the order of application to scheduled
Installments of principal of the Term Loans to the extent any such prepayment is applied to the
Term Loans); provided, in the event Company fails to specify the Loans to which any such
prepayment shall be applied, such prepayment shall be applied as follows:





     first, to repay outstanding Swing Line Loans to the full extent thereof;




     second, to repay outstanding Revolving Loans to the full extent thereof; and




     third, to repay the Term Loans on a pro rata basis (in accordance with the
respective outstanding principal amounts of each Class thereof) and shall be further
applied on a pro rata basis to each scheduled Installment of principal of the Term
Loans (including, for the avoidance of doubt, the Installment due on the Term Loan
Maturity Date for the applicable Class).



          (b) Application of Mandatory Prepayments by Class of Loans. Any amount required to be
paid pursuant to Sections 2.13(a) through 2.13(e) or Section 6.11 shall be applied as follows:





     first, to prepay Term Loans on a pro rata basis (in accordance with the
respective outstanding principal amounts of each Class thereof) and shall be further
applied in direct order of maturity to each scheduled Installment of principal of the
Term Loans (including, for the avoidance of doubt, the Installment due on the Term
Loan Maturity Date for the applicable Class);




     second, to prepay the Swing Line Loans to the full extent thereof and to
permanently reduce the Revolving Commitments by the amount of such prepayment;




     third, to prepay the Revolving Loans to the full extent thereof and to further
permanently reduce the Revolving Commitments by the amount of such prepayment;



44









 






     fourth, to prepay outstanding reimbursement obligations with respect to Letters
of Credit and to further permanently reduce the Revolving Commitments by the amount
of such prepayment;




     fifth, to cash collateralize Letters of Credit and to further permanently reduce
the Revolving Commitments by the amount of such cash collateralization; and




     sixth, to further permanently reduce the Revolving Commitments to the full
extent thereof.



          (c) Application of Prepayments of Loans by Type of Loan. Considering each Class of
Loans being prepaid separately as set forth above, any prepayment thereof shall be applied first to
Base Rate Loans to the full extent thereof before application to Eurodollar Rate Loans, in each
case in a manner which minimizes the amount of any payments required to be made by Company pursuant
to Section 2.17(c).




     2.15 General Provisions Regarding Payments.




          (a) All payments by Company of principal, interest, fees and other Obligations shall be made
in Dollars in same day funds, without defense, setoff or counterclaim, free of any restriction or
condition, and delivered to Administrative Agent not later than 1:00 p.m. (New York City time) on
the date due at the Principal Office designated by the Administrative Agent for the account of
Lenders; for purposes of computing interest and fees, funds received by Administrative Agent after
that time on such due date shall be deemed to have been paid by Company on the next succeeding
Business Day.




          (b) All payments in respect of the principal amount of any Loan (other than voluntary
prepayments of Revolving Loans) shall include payment of accrued interest on the principal amount
being repaid or prepaid, and all such payments (and, in any event, any payments in respect of any
Loan on a date when interest is due and payable with respect to such Loan) shall be applied to the
payment of interest before application to principal.




          (c) Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute
to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable
Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together
with all other amounts due thereto, including, without limitation, all fees payable with respect
thereto, to the extent received by Administrative Agent.




          (d) Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is
withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its
Pro Rata Share of any Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.




          (e) Subject
to the provisos set forth in the definition of “Interest Period” as they may apply
to Eurodollar Rate Loans, whenever any payment to be made hereunder with respect to any Loan shall
be stated to be due on a day that is not a Business Day, such payment shall be made on the next
succeeding Business Day and, with respect to Revolving Loans only, such extension of time shall



45









 






be included in the computation of the payment of interest hereunder or of the Revolving Commitment
fees hereunder.




          (f) Company hereby authorizes Administrative Agent to charge Company’s accounts with
Administrative Agent in order to cause timely payment to be made to Administrative Agent of all
principal, interest, fees and expenses due hereunder (subject to sufficient funds being available
in its accounts for that purpose).




          (g) Administrative Agent shall deem any payment by or on behalf of Company hereunder that is
not made in same day funds prior to 1:00 p.m. (New York City time) to be a non-conforming payment.
Any such payment shall not be deemed to have been received by Administrative Agent until the later
of (i) the time such funds become available funds, and (ii) the applicable next Business Day.
Administrative Agent shall give prompt telephonic notice to Company and each applicable Lender
(confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute
or become a Default or Event of Default in accordance with the terms of Section 8.1(a). Interest
shall continue to accrue on any principal as to which a non-conforming payment is made until such
funds become available funds (but in no event less than the period from the date of such payment to
the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.9 from
the date such amount was due and payable until the date such amount is paid in full.




          (h) If an Event of Default shall have occurred and be continuing and not otherwise been
waived, and the maturity of the Obligations shall have been accelerated pursuant to Section 8.1,
notwithstanding Section 2.14, all payments or proceeds received by Agents hereunder in respect of
any of the Obligations, shall be applied in accordance with the application arrangements described
in Section 6.5 of the Pledge and Security Agreement.




     2.16 Ratable Sharing. Lenders hereby agree among themselves that, except as otherwise provided in the Collateral
Documents with respect to amounts realized from the exercise of rights with respect to Liens on the
Collateral, if any of them shall, whether by voluntary payment (other than a voluntary prepayment
of Loans made and applied in accordance with the terms hereof), through the exercise of any right
of set-off or banker’s lien, by counterclaim or cross action or by the enforcement of any right
under the Credit Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate
amount of principal, interest, fees and other amounts then due and owing to such Lender hereunder
or under the other Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender)
which is greater than the proportion received by any other Lender in respect of the Aggregate
Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment
shall (a) notify Administrative Agent and each other Lender of the receipt of such payment and (b)
apply a portion of such payment to purchase participations (which it shall be deemed to have
purchased from each seller of a participation simultaneously upon the receipt by such seller of its
portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such
recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them;
provided, if all or part of such proportionately greater payment received by such
purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of
Company or otherwise, those purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender ratably to the extent of such



46









 




recovery, but without interest. Company expressly consents to the foregoing arrangement and agrees that any
holder of a participation so purchased may exercise any and all rights of banker’s lien, set-off or
counterclaim with respect to any and all monies owing by Company to that holder with respect
thereto as fully as if that holder were owed the amount of the participation held by that holder.
The provisions of this Section 2.16 shall not be construed to apply to (a) any payment made by
Company pursuant to and in accordance with the express terms of this Agreement or (b) any payment
obtained by any Lender as consideration for the assignment or sale of a participation in any of its
Loans or other Obligations owed to it.




     2.17 Making or Maintaining Eurodollar Rate Loans.



          (a) Inability to Determine Applicable Interest Rate. In the event that Administrative
Agent shall have determined (which determination shall be prima facie evidence thereof), on any
Interest Rate Determination Date with respect to any Eurodollar Rate Loans, that by reason of
circumstances affecting the London interbank market adequate and fair means do not exist for
ascertaining the interest rate applicable to such Loans on the basis provided for in the definition
of Adjusted Eurodollar Rate, Administrative Agent shall on such date give notice (by telefacsimile
or by telephone confirmed in writing) to Company and each Lender of such determination, whereupon
(i) no Loans may be made as, or converted to, Eurodollar Rate Loans until such time as
Administrative Agent notifies Company and Lenders that the circumstances giving rise to such notice
no longer exist, and (ii) any Funding Notice or Conversion/Continuation Notice given by Company
with respect to the Loans in respect of which such determination was made shall be deemed to be
rescinded by Company.




          (b) Illegality or Impracticability of Eurodollar Rate Loans. In the event that on any
date any Lender shall have determined (which determination shall be prima facie evidence thereof,
but shall be made only after consultation with Company and Administrative Agent) that the making,
maintaining or continuation of its Eurodollar Rate Loans (i) has become unlawful as a result of
compliance by such Lender in good faith with any law, treaty, governmental rule, regulation,
guideline or order (or would conflict with any such treaty, governmental rule, regulation,
guideline or order not having the force of law even though the failure to comply therewith would
not be unlawful), or (ii) has become impracticable, as a result of contingencies occurring after
the date hereof which materially and adversely affect the London interbank market or the position
of such Lender in that market, then, and in any such event, such Lender shall be an “Affected
Lender” and it shall on that day give notice (by telefacsimile or by telephone confirmed in
writing) to Company and Administrative Agent of such determination (which notice Administrative
Agent shall promptly transmit to each other Lender). Thereafter (1) the obligation of the Affected
Lender to make Loans as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until
such notice shall be withdrawn by the Affected Lender, (2) to the extent such determination by the
Affected Lender relates to a Eurodollar Rate Loan then being requested by Company pursuant to a
Funding Notice or a Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or
continue such Loan as or convert such Loan to, as the case may be) a Base Rate Loan, (3) the Affected Lender’s obligation to maintain its
outstanding Eurodollar Rate Loans (the “Affected Loans”) shall be terminated at the earlier to
occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or
when required by law, and (4) the Affected Loans shall automatically convert into Base Rate Loans
on the date of such termination. Notwithstanding the foregoing, to the extent a determination by
an Affected Lender as described above relates to a Eurodollar Rate Loan then being requested by
Company pursuant to a Funding Notice or a Conversion/Continuation Notice, Company shall have the
option, subject to the




47









 







provisions of Section 2.17(c), to rescind such Funding Notice or
Conversion/Continuation Notice as to all Lenders by giving notice (by telefacsimile or by telephone
confirmed in writing) to Administrative Agent of such rescission on the date on which the Affected
Lender gives notice of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender). Except as provided in the
immediately preceding sentence, nothing in this Section 2.17(b) shall affect the obligation of any
Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to,
Eurodollar Rate Loans in accordance with the terms hereof.




          (c) Compensation for Breakage or Non-Commencement of Interest Periods. Company shall
compensate each Lender, upon written request by such Lender (which request shall set forth the
basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including
any interest paid by such Lender to lenders of funds borrowed by it to make or carry its Eurodollar
Rate Loans and any loss, expense or liability sustained by such Lender in connection with the
liquidation or re-employment of such funds but excluding loss of anticipated profits) which such
Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Funding Notice or a
telephonic request for borrowing, or a conversion to or continuation of any Eurodollar Rate Loan
does not occur on a date specified therefor in a Conversion/Continuation Notice or a telephonic
request for conversion or continuation; (ii) if any prepayment or other principal payment or any
conversion of any of its Eurodollar Rate Loans occurs on a date prior to the last day of an
Interest Period applicable to that Loan; or (iii) if any prepayment of any of its Eurodollar Rate
Loans is not made on any date specified in a notice of prepayment given by Company.




          (d) Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer
Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office of an
Affiliate of such Lender.




          (e) Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all
amounts payable to a Lender under this Section 2.17 and under Section 2.18 shall be made as though
such Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase of
a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and
having a maturity comparable to the relevant Interest Period and through the transfer of such
Eurodollar deposit from an offshore office of such Lender to a domestic office of such Lender in
the United States of America; provided, however, each Lender may fund each of its
Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized
only for the purposes of calculating amounts payable under this Section 2.17 and under Section
2.18.




     2.18 Increased Costs; Capital Adequacy.




          (a) Compensation For Increased Costs and Taxes. Subject to the provisions of Section
2.19 (which shall be controlling with respect to the matters covered thereby), in the event that
any Lender (which term shall include Issuing Bank for purposes of this Section 2.18(a)) shall
determine (which determination shall be prima facie evidence thereof) that a change to or the
adoption of any law, treaty or governmental rule, regulation or order, or in the interpretation,
administration or application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or governmental authority,
in each case that becomes




48









 







effective after the date hereof, or compliance by such Lender with any
guideline, request or directive issued or made after the date hereof by any central bank or other
governmental or quasi-governmental authority (whether or not having the force of law): (i) subjects
such Lender (or its applicable lending office) to any additional Tax (other than any franchise Tax
or a Tax on the overall net income of such Lender) with respect to this Agreement or any of the
other Credit Documents or any of its obligations hereunder or thereunder or any payments to such
Lender (or its applicable lending office) of principal, interest, fees or any other amount payable
hereunder; (ii) imposes, modifies or holds applicable any reserve (including any marginal,
emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits or other liabilities in or for
the account of, or advances or loans by, or other credit extended by, or any other acquisition of
funds by, any office of such Lender (other than any such reserve or other requirements with respect
to Eurodollar Rate Loans that are reflected in the definition of Adjusted Eurodollar Rate); or
(iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such
Lender (or its applicable lending office) or its obligations hereunder or the London interbank
market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing
to make, making or maintaining Loans hereunder or to reduce any amount received or receivable by
such Lender (or its applicable lending office) with respect thereto; then, in any such case,
Company shall promptly pay to such Lender, upon receipt of the statement referred to in the next
sentence, such additional amount or amounts (in the form of an increased rate of, or a different
method of calculating, interest or otherwise as such Lender in its sole discretion shall determine)
as may be necessary to compensate such Lender for any such increased cost or reduction in amounts
received or receivable hereunder. Such Lender shall deliver to Company (with a copy to
Administrative Agent) a written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to such Lender under this Section 2.18(a), which statement
shall be prima facie evidence thereof.




          (b) Capital Adequacy Adjustment. In the event that any Lender (which term shall
include Issuing Bank for purposes of this Section 2.18(b)) shall have determined that the adoption,
effectiveness, phase-in or applicability after the Closing Date of any law, rule or regulation (or
any provision thereof) regarding capital adequacy, or any change therein or in the interpretation
or administration thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender (or its applicable
lending office) with any guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to, such Lender’s Loans
or Revolving Commitments or Letters of Credit, or participations therein or other obligations
hereunder with respect to the Loans or Letters of Credit to a level below that which such Lender or
such controlling corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of such Lender or such controlling
corporation with regard to capital adequacy), then from time to time, within five Business Days
after receipt by Company from such Lender of the statement referred to in the next sentence,
Company shall pay to such Lender such additional amount or amounts as will compensate such Lender
or such controlling corporation on an after-tax basis for such reduction. Such Lender shall deliver
to Company (with a copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to Lender under this Section 2.18(b),
which statement shall be prima facie evidence thereof.




49









 








          (c) Dodd-Frank Wall Street Reform and Consumer Protection Act. For purposes of this
Section 2.18, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all rules,
regulations, orders, requests, guidelines or directives in connection therewith are deemed to have
been adopted and gone into effect after the date of this Agreement.




          (d) Effect of Failure or Delay in Requesting Compensation. Failure or delay on the
part of any Lender or any Issuing Bank to demand compensation pursuant to this Section 2.18 shall
not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation;
provided that Company shall not be required to compensate a Lender or any Issuing Bank pursuant to
this Section 2.18 for any increased costs or reduction in the rate of return on capital incurred
more than 180 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies
Company of the matter giving rise to such increased costs or reduction in the rate of return on
capital and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor;
provided, further that, if the matter giving rise to such increased costs or reduction in the rate
of return on capital is retroactive, then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof. No Lender or Issuing Bank may make any demand
pursuant to this Section 2.18 more than 180 days after the Revolving Commitment Termination Date or
the Term Loan Maturity Date, as applicable.




     2.19 Taxes; Withholding, etc.




          (a) Payments to Be Free and Clear. All sums payable by any Credit Party hereunder and
under the other Credit Documents shall (except to the extent required by law) be paid free and
clear of, and without any deduction or withholding on account of, any Tax (other than a franchise
Tax or a Tax on the overall net income of any Lender) imposed, levied, collected, withheld or
assessed by or within the United States of America or any political subdivision in or of the United
States of America or any other jurisdiction from or to which a payment is made by or on behalf of
any Credit Party.




          (b) Withholding of Taxes. If any Credit Party or any other Person is required by law
to make any deduction or withholding on account of any such Tax from any sum paid or payable by any
Credit Party to Administrative Agent or any Lender (which term shall include Issuing Bank for
purposes of this Section 2.19(b)) under any of the Credit Documents: (i) Company shall notify
Administrative Agent of any such requirement or any change in any such requirement as soon as
Company becomes aware of it; (ii) Company shall pay any such Tax before the date on which penalties
attach thereto, such payment to be made (if the liability to pay is imposed on any Credit
Party) for its own account or (if that liability is imposed on Administrative Agent or such
Lender, as the case may be) on behalf of and in the name of Administrative Agent or such Lender;
(iii) the sum payable by such Credit Party in respect of which the relevant deduction, withholding
or payment is required shall be increased to the extent necessary to ensure that, after the making
of that deduction, withholding or payment, Administrative Agent or such Lender, as the case may be,
receives on the due date a net sum equal to what it would have received had no such deduction,
withholding or payment been required or made; and (iv) within thirty (30) days after paying any sum
from which it is required by law to make any deduction or withholding, and within thirty (30) days
after the due date of payment of any Tax which it is required by clause (ii) above to pay, Company
shall deliver to Administrative Agent evidence satisfactory to the other affected parties of such
deduction, withholding or payment and of the remittance thereof to the relevant taxing or other
authority;




50









 







provided, no such additional amount shall be required to be paid to any Lender
or Administrative Agent under clause (iii) above except to the extent that any change after the
date hereof (in the case of each Lender listed on the signature pages hereof on the Closing Date)
or after the effective date of the Assignment Agreement pursuant to which such Lender became a
Lender (in the case of each other Lender) in any requirement mentioned therein for a deduction,
withholding or payment shall result in an increase in the rate of such deduction, withholding or
payment from that in effect at the date hereof or at the date of such Assignment Agreement, as the
case may be, in respect of payments to such Lender or Administrative Agent.




          (c) Evidence of Exemption From U.S. Withholding Tax. (i) Each Lender that is not a United States Person (as such term is defined in Section
7701(a)(30) of the Internal Revenue Code) for U.S. federal income tax purposes (a “Non-US Lender”)
shall deliver to Administrative Agent for transmission to Company, on or prior to the Closing Date
(in the case of each Lender listed on the signature pages hereof on the Closing Date) or on or
prior to the date of the Assignment Agreement pursuant to which it becomes a Lender (in the case of
each other Lender), and at such other times as may be necessary in the determination of Company or
Administrative Agent (each in the reasonable exercise of its discretion), (A) two original copies
of Internal Revenue Service Form W-8BEN, W-8ECI and/or W-8IMY (or, in each case, any successor
forms), properly completed and duly executed by such Lender, and such other documentation required
under the Internal Revenue Code and reasonably requested by Company to establish that such Lender
is not subject to deduction or withholding of United States federal income tax with respect to any
payments to such Lender of principal, interest, fees or other amounts payable under any of the
Credit Documents, or (B) if such Lender is not a “bank” or other Person described in Section
881(c)(3) of the Internal Revenue Code, a Certificate re Non-Bank Status together with two original
copies of Internal Revenue Service Form W-8BEN (or any successor form), properly completed and duly
executed by such Lender, and such other documentation required under the Internal Revenue Code and
reasonably requested by Company to establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to any payments to such Lender of
interest payable under any of the Credit Documents. Each Lender required to deliver any forms,
certificates or other evidence with respect to United States federal income tax withholding matters
pursuant to this Section 2.19(c) hereby agrees, from time to time after the initial delivery by
such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any
material respect, that such Lender shall promptly deliver to Administrative Agent for transmission
to Company two new original copies of Internal Revenue Service Form W-8BEN, W-8ECI and/or W-8IMY (or, in each case, any successor form), or a Certificate re Non-Bank Status and two
original copies of Internal Revenue Service Form W-8BEN (or any successor form), as the case may
be, properly completed and duly executed by such Lender, and such other documentation required
under the Internal Revenue Code and reasonably requested by Company to confirm or establish that
such Lender is not subject to deduction or withholding of United States federal income tax with
respect to payments to such Lender under the Credit Documents, or notify Administrative Agent and
Company of its inability to deliver any such forms, certificates or other evidence. Company shall
not be required to pay any additional amount to any Non-US Lender under Section 2.19(b)(iii) if
such Lender shall have failed (1) to deliver the forms, certificates or other evidence referred to
in the first sentence of this Section 2.19(c), or (2) to notify Administrative Agent and Company of
its inability to deliver any such forms, certificates or other evidence, as the case may be;
provided, if such Lender shall have satisfied the requirements of the first sentence of
this Section 2.19(c) on the Closing Date or on the date of the Assignment Agreement pursuant to
which it became




51









 







a Lender, as applicable, nothing in this last sentence of Section 2.19(c) shall
relieve Company of its obligation to pay any additional amounts pursuant to Section 2.18(a) in the
event that, as a result of any change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation, administration or application thereof,
such Lender is no longer properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender is not subject to withholding as described
herein.




               (ii) If any non-corporate Lender is a United States Person as such term is defined in the
Internal Revenue Code, such Lender shall deliver to Administrative Agent on or prior to the Closing
Date or on or prior to the date of the Assignment Agreement, pursuant to which it becomes a Lender
(in the case of each other Lender) two original copies of Internal Revenue Service Form W-9 (or any
successor forms), properly completed and duly executed by such Lender and such other documentation
required under the Internal Revenue Code to establish that such Lender is not subject to deduction
or withholding of United States federal income tax with respect to such principal, interest, fees
or other amounts payable under the any of the Credit Documents.



     2.20 Obligation to Mitigate. Each Lender (which term shall include Issuing Bank for purposes of this Section 2.20)
agrees that, as promptly as practicable after the officer of such Lender responsible for
administering its Loans or Letters of Credit, as the case may be, becomes aware of the occurrence
of an event or the existence of a condition that would cause such Lender to become an Affected
Lender or that would entitle such Lender to receive payments under Section 2.17, 2.18 or 2.19, it
will, to the extent not inconsistent with the internal policies of such Lender and any applicable
legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or maintain its
Credit Extensions, including any Affected Loans, through another office of such Lender, or (b) take
such other measures as such Lender may deem reasonable, if as a result thereof the circumstances
which would cause such Lender to be an Affected Lender would cease to exist or the additional
amounts which would otherwise be required to be paid to such Lender pursuant to Section 2.17, 2.18
or 2.19 would be materially reduced and if, as determined by such Lender in its sole but reasonable
discretion, the making, issuing, funding or maintaining of such Revolving Commitments, Loans or
Letters of Credit through such other office or in accordance with such other measures, as the case
may be, would not otherwise adversely affect such Revolving Commitments, Loans or Letters of Credit
or the interests of such Lender; provided, such Lender will not be obligated to utilize
such other office pursuant to this Section 2.20 unless Company agrees to pay all incremental expenses incurred by such Lender as a result of utilizing such other
office as described above. A certificate as to the amount of any such expenses payable by Company
pursuant to this Section 2.20 (setting forth in reasonable detail the basis for requesting such
amount) submitted by such Lender to Company (with a copy to Administrative Agent) shall be prima
facie evidence thereof.



     2.21 Defaulting Lenders. Anything contained herein to the contrary notwithstanding, if any Lender, (x) other than at
the direction or request of any regulatory agency or authority, defaults (a “Funds Defaulting
Lender”) in its obligation to fund (a “Funding Default”) any Revolving Loan or its portion of any
unreimbursed payment under Section 2.3(b)(iv) or Section 2.23(e) (in each case, a “Defaulted Loan”)
or (y) is deemed insolvent or becomes the subject of an insolvency, bankruptcy, dissolution,
liquidation or reorganization proceeding, or if any Lender or any substantial part of its property
becomes the subject of an appointment of a receiver, intervenor or conservator, or a trustee or
similar officer, or becomes the subject of a bankruptcy proceeding (a “Lender Insolvency Default”)
under the Bankruptcy Code or under any other applicable bankruptcy, insolvency, conservatorship,



52









 




receivership or similar law now or hereafter
in effect (such Lender, an “Insolvency Defaulting
Lender” and, together with any Funds Defaulting Lenders, the “Defaulting Lenders” and each a
“Defaulting Lender”), then: (a) during any Default Period with respect to such Defaulting Lender,
such Defaulting Lender shall be deemed not to be a “Lender” for purposes of calculating Requisite
Lenders or Requisite Class Lenders (including the granting of any consents or waivers) with respect
to any of the Credit Documents and Company shall pay to Administrative Agent such additional
amounts of cash as reasonably requested by the Issuing Bank or the Swing Line Lender to be held as
security for Company’s reimbursement Obligations in respect of Letters of Credit and Swing Line
Loans then outstanding (such amount not to exceed such Defaulting Lender’s obligations under
Sections 2.3 and 2.23); (b) solely with respect to any Funds Defaulting Lender that is not an
Insolvency Defaulting Lender, to the extent permitted by applicable law, until such time as the
Default Excess with respect to such Defaulting Lender shall have been reduced to zero, (i) any
voluntary prepayment of the Revolving Loans shall, if Company so directs at the time of making such
voluntary prepayment, be applied to the Revolving Loans of other Lenders as if such Defaulting
Lender had no Revolving Loans outstanding and the Revolving Exposure of such Defaulting Lender were
zero, and (ii) any mandatory prepayment of the Revolving Loans shall, if Company so directs at the
time of making such mandatory prepayment, be applied to the Revolving Loans of other Lenders (but
not to the Revolving Loans of such Defaulting Lender) as if such Defaulting Lender had funded all
Defaulted Loans of such Defaulting Lender, it being understood and agreed that Company shall be
entitled to retain any portion of any mandatory prepayment of the Revolving Loans that is not paid
to such Defaulting Lender solely as a result of the operation of the provisions of this clause (b);
(c) such Defaulting Lender’s Revolving Commitment and outstanding Revolving Loans and such
Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage shall be excluded for purposes of
calculating the Revolving Commitment fee payable to Lenders in respect of any day during any
Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall not be
entitled to receive any Revolving Commitment fee pursuant to Section 2.10 with respect to such
Defaulting Lender’s Revolving Commitment in respect of any Default Period with respect to such
Defaulting Lender; and (d) the Total Utilization of Revolving Commitments as at any date of
determination shall be calculated as if such Defaulting Lender had funded all Defaulted Loans of
such Defaulting Lender. No Revolving Commitment of any Lender shall be increased or otherwise
affected, and, except as otherwise expressly provided in this Section 2.21, performance by Company of its obligations hereunder
and the other Credit Documents shall not be excused or otherwise modified as a result of any
Funding Default or Lender Insolvency Default or the operation of this Section 2.21. The rights and
remedies against a Defaulting Lender under this Section 2.21 are in addition to other rights and
remedies which Company may have against such Defaulting Lender with respect to any Funding Default
or Lender Insolvency Default and which Administrative Agent or any Lender may have against such
Defaulting Lender with respect to any Funding Default or Lender Insolvency Default.




     2.22 Removal or Replacement of a Lender. Anything contained herein to the contrary notwithstanding, in the event that: (a) any
Lender (an “Increased-Cost Lender”) shall give notice to Company that such Lender is an Affected
Lender or that such Lender is entitled to receive payments under Section 2.17, 2.18 or 2.19, the
circumstances which have caused such Lender to be an Affected Lender or which entitle such Lender
to receive such payments shall remain in effect, and such Lender shall fail to withdraw such notice
within five Business Days after Company’s request for such withdrawal; or (b) any Lender shall
become a Defaulting Lender, the Default Period for such Defaulting Lender shall remain in effect,
and such Defaulting Lender shall fail to cure the default as a result of which it has become a
Defaulting Lender within five Business Days after Company’s request



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that it cure such default; or (c) in connection with any proposed amendment, modification, termination, waiver or consent with
respect to any of the provisions hereof as contemplated by Section 10.5(b), the consent of
Requisite Lenders shall have been obtained but the consent of one or more of such other Lenders
(each a “Non-Consenting Lender”) whose consent is required shall not have been obtained; then, with
respect to each such Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (the
“Terminated Lender”), Company may, by giving written notice to Administrative Agent and any
Terminated Lender of its election to do so, elect to cause such Terminated Lender (and such
Terminated Lender hereby irrevocably agrees) to assign its outstanding Loans and its Revolving
Commitments, if any, in full to one or more Eligible Assignees (each a “Replacement Lender”) in
accordance with the provisions of Section 10.6 and Terminated Lender shall pay any fees payable
thereunder in connection with such assignment (other than with respect to any Terminated Lender
that is an Insolvency Defaulting Lender, in which case such fees shall be payable by Company);
provided, (1) on the date of such assignment, the Replacement Lender shall pay to
Terminated Lender an amount equal to the sum of (A) an amount equal to the principal of, and all
accrued interest on, all outstanding Loans of the Terminated Lender, (B) an amount equal to all
unreimbursed drawing that have been funded by such Terminated Lender, together with all then unpaid
interest with respect thereto at such time and (C) an amount equal to all accrued, but theretofore
unpaid fees owing to such Terminated Lender pursuant to Section 2.10; (2) on the date of such
assignment, Company shall pay any amounts payable to such Terminated Lender pursuant to Section
2.17(c), 2.18 or 2.19 or otherwise as if it were a prepayment; and (3) in the event such Terminated
Lender is a Non-Consenting Lender, each Replacement Lender shall consent, at the time of such
assignment, to each matter in respect of which such Terminated Lender was a Non-Consenting Lender;
provided, Company may not make such election with respect to any Terminated Lender that is
also an Issuing Bank unless, prior to the effectiveness of such election, Company shall have caused
each outstanding Letter of Credit issued thereby to be cancelled. Upon the prepayment of all
amounts owing to any Terminated Lender and the termination of such Terminated Lender’s Revolving
Commitments, if any, such Terminated Lender shall no longer
constitute a “Lender” for purposes
hereof; provided, any rights of such Terminated Lender to indemnification hereunder shall
survive as to such Terminated Lender. Each Lender agrees that if Company exercises its option hereunder to cause an assignment by such Lender as a
Non-Consenting Lender or Terminated Lender, such Lender shall, promptly after receipt of written
notice of such election, execute and deliver all documentation necessary to effectuate such
assignment in accordance with Section 10.6. In the event that a Lender does not comply with the
requirements of the immediately preceding sentence within one Business Day after receipt of such
notice, each Lender hereby authorizes and directs the Administrative Agent to execute and deliver
such documentation as may be required to give effect to an assignment in accordance with Section
10.6 on behalf of a Non-Consenting Lender or Terminated Lender and any such documentation so
executed by the Administrative Agent shall be effective for purposes of documenting an assignment
pursuant to Section 10.6.




     2.23 Issuance of Letters of Credit and Purchase of Participations Therein.



          (a) Letters of Credit. During the Revolving Commitment Period, subject to the terms
and conditions hereof, Issuing Bank agrees to issue Letters of Credit for the account of Company
in the aggregate amount up to but not exceeding the Letter of Credit Sublimit; provided,
(i) each Letter of Credit shall be denominated in Dollars; (ii) the stated amount of each Letter of
Credit shall not be less than $10,000 or such lesser amount as is acceptable to Issuing Bank; (iii)
after giving effect to such issuance, in no event shall the Total Utilization of Revolving
Commitments exceed the



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Revolving Commitments then in effect; (iv) after giving effect to such
issuance, in no event shall the Letter of Credit Usage exceed the Letter of Credit Sublimit then in
effect; (v) in no event shall any standby Letter of Credit have an expiration date later than the
earlier of (1) the Revolving Commitment Termination Date and (2) the date which is one year from
the date of issuance of such standby Letter of Credit; and (vi) in no event shall any commercial
Letter of Credit (x) have an expiration date later than the earlier of (1) the Revolving Loan
Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such
commercial Letter of Credit or (b) be issued if such commercial Letter of Credit is otherwise
unacceptable to Issuing Bank in its reasonable discretion. Subject to the foregoing, Issuing Bank
may agree that a standby Letter of Credit will automatically be extended for one or more successive
periods not to exceed one year each, unless Issuing Bank elects not to extend for any such
additional period; provided, Issuing Bank shall not extend any such Letter of Credit if it
has received written notice that an Event of Default has occurred and is continuing at the time
Issuing Bank must elect to allow such extension; provided, further, in the event a
Funding Default or Lender Insolvency Default exists, Issuing Bank shall not be required to issue
any Letter of Credit unless Issuing Bank has entered into arrangements satisfactory to it and
Company to eliminate Issuing Bank’s risk with respect to the participation in Letters of Credit of
the Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of
the Letter of Credit Usage.




          (b) Notice of Issuance. Whenever Company desires the issuance of a Letter of Credit,
it shall deliver to Administrative Agent an Issuance Notice no later than 12:00 p.m. (New York City
time) at least three Business Days (in the case of standby letters of credit) or five Business Days
(in the case of commercial letters of credit), or in each case such shorter period as may be agreed
to by Issuing Bank in any particular instance, in advance of the proposed date of issuance. Upon
satisfaction or waiver of the conditions set forth in Section 3.2, Issuing Bank shall issue the
requested Letter of Credit only in accordance with Issuing Bank’s standard operating procedures.
Upon the issuance of any Letter of Credit or amendment or modification to a Letter of Credit,
Issuing Bank shall promptly notify each Lender with a Revolving Commitment of such issuance, which
notice shall be accompanied by a copy of such Letter of Credit or amendment or modification to a Letter of
Credit and the amount of such Lender’s respective participation in such Letter of Credit pursuant
to Section 2.23(e).




          (c) Responsibility of Issuing Bank With Respect to Requests for Drawings and Payments.
In determining whether to honor any drawing under any Letter of Credit by the beneficiary thereof,
Issuing Bank shall be responsible only to examine the documents delivered under such Letter of
Credit with reasonable care so as to ascertain whether they appear on their face to be in
accordance with the terms and conditions of such Letter of Credit. As between Company and Issuing
Bank, Company assumes all risks of the acts and omissions of, or misuse of the Letters of Credit
issued by Issuing Bank, by the respective beneficiaries of such Letters of Credit. In furtherance
and not in limitation of the foregoing, Issuing Bank shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party
in connection with the application for and issuance of any such Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii)
failure of the beneficiary of any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit;



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(iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to make a drawing under
any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary
of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii)
any consequences arising from causes beyond the control of Issuing Bank, including any Governmental
Acts; none of the above shall affect or impair, or prevent the vesting of, any of Issuing Bank’s
rights or powers hereunder. Without limiting the foregoing and in furtherance thereof, any action
taken or omitted by Issuing Bank under or in connection with the Letters of Credit or any documents
and certificates delivered thereunder, if taken or omitted in good faith, shall not give rise to
any liability on the part of Issuing Bank to Company. Notwithstanding anything to the contrary
contained in this Section 2.23(c), Company shall retain any and all rights it may have against
Issuing Bank for any liability arising solely out of the gross negligence or willful misconduct of
Issuing Bank.




          (d) Reimbursement by Company of Amounts Drawn or Paid Under Letters of Credit. In the
event Issuing Bank has determined to honor a drawing under a Letter of Credit, it shall immediately
notify Company and Administrative Agent, and Company shall reimburse Issuing Bank on or before the
Business Day immediately following the date on which such drawing is honored (the “Reimbursement
Date”) in an amount in Dollars and in same day funds equal to the amount of such honored drawing;
provided, anything contained herein to the contrary notwithstanding, (i) unless Company
shall have notified Administrative Agent and Issuing Bank prior to 10:00 a.m. (New York City time)
on the date such drawing is honored that Company intends to reimburse Issuing Bank for the amount
of such honored drawing with funds other than the proceeds of Revolving Loans, Company shall be
deemed to have given a timely Funding Notice to Administrative Agent requesting Lenders with
Revolving Commitments to make Revolving Loans that are Base Rate Loans on the Reimbursement Date in
an amount in Dollars equal to the amount of such honored drawing, and (ii) subject to satisfaction
or waiver of the conditions specified in Section 3.2, Lenders with Revolving Commitments shall, on
the Reimbursement Date, make Revolving Loans that are Base Rate Loans in the amount of such honored drawing, the proceeds of which shall be applied directly by
Administrative Agent to reimburse Issuing Bank for the amount of such honored drawing; and
provided further, if for any reason proceeds of Revolving Loans are not received by
Issuing Bank on the Reimbursement Date in an amount equal to the amount of such honored drawing,
Company shall reimburse Issuing Bank, on demand, in an amount in same day funds equal to the excess
of the amount of such honored drawing over the aggregate amount of such Revolving Loans, if any,
which are so received. Nothing in this Section 2.23(d) shall be deemed to relieve any Lender with
a Revolving Commitment from its obligation to make Revolving Loans on the terms and conditions set
forth herein, and Company shall retain any and all rights it may have against any Lender resulting
from the failure of such Lender to make such Revolving Loans under this Section 2.23(d).




          (e) Lenders’ Purchase of Participations in Letters of Credit. Immediately upon the
issuance of each Letter of Credit, each Lender having a Revolving Commitment shall be deemed to
have purchased, and hereby agrees to irrevocably purchase, from Issuing Bank a participation in
such Letter of Credit and any drawings honored thereunder in an amount equal to such Lender’s Pro
Rata Share (with respect to the Revolving Commitments) of the maximum amount which is or at any
time may become available to be drawn thereunder. In the event that Company shall fail for any
reason to reimburse Issuing Bank as provided in Section 2.23(d), Issuing Bank shall promptly notify
each



56









 






Lender with a Revolving Commitment of the unreimbursed amount of such honored drawing and of
such Lender’s respective participation therein based on such Lender’s Pro Rata Share of the
Revolving Commitments. Each Lender with a Revolving Commitment shall make available to Issuing
Bank an amount equal to its respective participation, in Dollars and in same day funds, at the
office of Issuing Bank specified in such notice, not later than 12:00 p.m. (New York City time) on
the first business day (under the laws of the jurisdiction in which such office of Issuing Bank is
located) after the date notified by Issuing Bank. In the event that any Lender with a Revolving
Commitment fails to make available to Issuing Bank on such business day the amount of such Lender’s
participation in such Letter of Credit as provided in this Section 2.23(e), Issuing Bank shall be
entitled to recover such amount on demand from such Lender together with interest thereon for three
Business Days at the rate customarily used by Issuing Bank for the correction of errors among banks
and thereafter at the Base Rate. Nothing in this Section 2.23(e) shall be deemed to prejudice the
right of any Lender with a Revolving Commitment to recover from Issuing Bank any amounts made
available by such Lender to Issuing Bank pursuant to this Section in the event that it is
determined that the payment with respect to a Letter of Credit in respect of which payment was made
by such Lender constituted gross negligence or willful misconduct on the part of Issuing Bank. In
the event Issuing Bank shall have been reimbursed by other Lenders pursuant to this Section 2.23(e)
for all or any portion of any drawing honored by Issuing Bank under a Letter of Credit, such
Issuing Bank shall distribute to each Lender which has paid all amounts payable by it under this
Section 2.23(e) with respect to such honored drawing such Lender’s Pro Rata Share of all payments
subsequently received by Issuing Bank from Company in reimbursement of such honored drawing when
such payments are received. Any such distribution shall be made to a Lender at its primary address
set forth below its name on Appendix B or at such other address as such Lender may request.




          (f) Obligations Absolute. The obligation of Company to reimburse Issuing Bank for
drawings honored under the Letters of Credit issued by it and to repay any Revolving Loans made by
Lenders pursuant to Section 2.23(d) and the obligations of Lenders under Section 2.23(e) shall be
unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof under
all circumstances including any of the following circumstances: (i) any lack of validity or
enforceability of any Letter of Credit; (ii) the existence of any claim, set-off, defense or other right
which Company or any Lender may have at any time against a beneficiary or any transferee of any
Letter of Credit (or any Persons for whom any such transferee may be acting), Issuing Bank, Lender
or any other Person or, in the case of a Lender, against Company, whether in connection herewith,
the transactions contemplated herein or any unrelated transaction (including any underlying
transaction between Company or one of its Subsidiaries and the beneficiary for which any Letter of
Credit was procured); (iii) any draft or other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; (iv) payment by Issuing Bank under any Letter of Credit
against presentation of a draft or other document which does not substantially comply with the
terms of such Letter of Credit; (v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Holdings or any of its Subsidiaries;
(vi) any breach hereof or of any other Credit Document by any party thereto; (vii) any other
circumstance or happening whatsoever, whether or not similar to any of the foregoing; or (viii) the
fact that an Event of Default or a Default shall have occurred and be continuing; provided,
in each case, that payment by Issuing Bank under the applicable Letter of Credit shall not have
constituted gross negligence or willful misconduct of Issuing Bank under the circumstances in
question.





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     (g) Indemnification. Without duplication of any obligation of Company under
Section 10.2 or 10.3, in addition to amounts payable as provided herein, Company hereby agrees to
protect, indemnify, pay and save harmless Issuing Bank from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses (including reasonable fees,
expenses and disbursements of counsel and allocated costs of internal counsel) which Issuing Bank
may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter
of Credit by Issuing Bank, other than as a result of (1) the gross negligence or willful misconduct
of Issuing Bank, as determined by a final, non-appealable judgment of a court of competent
jurisdiction, or (2) the wrongful dishonor by Issuing Bank of a proper demand for payment made
under any Letter of Credit issued by it, or (ii) the failure of Issuing Bank to honor a drawing
under any such Letter of Credit as a result of its compliance with any Governmental Act.



     2.24 Incremental Facilities. Company may by written notice to Administrative Agent elect to
request (A) prior to the Revolving Commitment Termination Date, an increase to the existing
Revolving Loan Commitments (any such increase, the “New Revolving Loan Commitments”) and/or (B) the
establishment of one or more new term loan commitments (the “New Term Loan Commitments”), by an
amount not in excess of $100,000,000 in the aggregate and not less than $10,000,000 individually
(or such lesser amount which shall be approved by Administrative Agent), and integral multiples of
$1,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an
“Increased Amount Date”) on which Company proposes that the New Revolving Loan Commitments or New
Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10
Business Days after the date on which such notice is delivered to Administrative Agent (or such
later date as may be agreed to by the Administrative Agent), and (B) the identity of each Lender or
other Person that is an Eligible Assignee (each, a “New Revolving Loan Lender” or “New Term Loan
Lender”, as applicable) to whom Company proposes any portion of such New Revolving Loan Commitments
or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations;
provided that any Lender approached to provide all or a portion of the New Revolving Loan
Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a
New Revolving Loan Commitment or New Term Loan Commitment. Such New Revolving Loan Commitments or
New Term Loan Commitments shall become effective, as of such Increased Amount Date;
provided that (1) no Default or Event of Default shall exist on such Increased Amount Date
before or after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments,
as applicable; (2) both before and after giving effect to the making of any Series of New Term
Loans, each of the conditions set forth in Section 3.2 shall be satisfied; (3) Company and its
Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 6.8
as of the last day of the most recently ended Fiscal Quarter after giving effect to such New
Revolving Loan Commitments or New Term Loan Commitments, as applicable; (4) the New Revolving Loan
Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more
Joinder Agreements executed and delivered by the New Revolving Loan Lender or New Term Loan Lender,
as applicable, Company and the Administrative Agent, each of which Joinder Agreements shall be
recorded in the Register and each New Revolving Loan Lender or New Term Loan Lender, as applicable,
shall be subject to the requirements set forth in Section 2.19(c); (5) Company shall make any
payments required pursuant to such Joinder Agreements and pursuant to Section 2.17(c) in connection
with the New Revolving Loan Commitments or New Term Loan Commitments; and (6) Company shall deliver
or cause to be delivered any legal opinions or other documents reasonably requested by
Administrative Agent in



58









 




connection with any such transaction. Any New Term Loans made on an Increased Amount Date
shall be designated a separate series (a “Series”) of New Term Loans for all purposes of this
Agreement.




     On any Increased Amount Date on which New Revolving Loan Commitments are effected, subject to
the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall
assign to each of the New Revolving Loan Lenders, and each of the New Revolving Loan Lenders shall
purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued
interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall
be necessary in order that, after giving effect to all such assignments and purchases, such
Revolving Loans will be held by existing Revolving Lenders and New Revolving Loan Lenders ratably
in accordance with their Revolving Commitments after giving effect to the addition of such New
Revolving Loan Commitments to the Revolving Commitments, (b) each New Revolving Loan Commitment
shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (a “New
Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving
Loan Lender shall become a Lender with respect to the Revolving Loans and all matters relating
thereto.



     On any Increased Amount Date on which any New Term Loan Commitments of any Series are
effective, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term
Loan Lender of any Series shall make a Loan to Company (a “New Term Loan”) in an amount equal to
its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall
become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New
Term Loans of such Series made pursuant thereto.



     Administrative Agent shall notify Lenders promptly upon receipt of Company’s notice of each
Increased Amount Date and in respect thereof (y) the New Revolving Loan Commitments and the New
Revolving Loan Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of
such Series, as applicable, and (z) in the case of each notice to any Revolving Lender, the
respective interests in such Revolving Lender’s Revolving Loans, in each case subject to the
assignments contemplated by this Section.



     The terms and provisions of the New Revolving Loans shall be identical to the Revolving Loans.
The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall
be, except as otherwise set forth below or in the Joinder Agreement (in which case they must be
reasonably satisfactory to the Administrative Agent in its discretion), identical to the Closing
Date Term Loans. In any event (i) the weighted average life to maturity of all New Term Loans of
any Series shall be no shorter than the remaining weighted average life to maturity of the Closing
Date Term Loans, (ii) the applicable New Term Loan Maturity Date of each Series shall be no shorter
than the final maturity of the Closing Date Term Loans, and (iii) the yield applicable to the New
Term Loans of each Series shall be as determined by Company and the applicable new Lenders and
shall be set forth in each applicable Joinder Agreement; provided however that the
yield applicable to the New Term Loans (after giving effect to all upfront or similar fees or
original issue discount payable with respect to such New Term Loans and any minimum Adjusted
Eurodollar Rate or minimum Base Rate) shall not be greater than the applicable yield payable
pursuant to the terms of this Agreement as amended through the date of such calculation with
respect to the Closing Date Term Loans (including any upfront fees or original issue discount
payable to the initial Lenders hereunder) plus 0.25% per annum unless the interest rate with
respect to the Closing Date Term Loans is increased so as to equal



59









 




the yield applicable to the New Term Loans (after giving effect to all upfront or similar fees
or original issue discount payable with respect to such New Term Loans and any minimum Adjusted
Eurodollar Rate or minimum Base Rate) less 0.25% per annum. Each Joinder Agreement may, without the
consent of any other Lenders, effect such amendments to this Agreement and the other Credit
Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect
the provisions of this Section 2.24.




     For the avoidance of doubt, any New Term Loans, New Term Loan Commitments, New Revolving Loans
and New Revolving Loan Commitments shall constitute Obligations, Guaranteed Obligations and Secured
Obligations of the Credit Parties and shall rank pari passu with the Closing Date Term Loans,
Revolving Commitments and Revolving Loans.



SECTION 3. CONDITIONS PRECEDENT




     3.1 Closing Date. The obligation of any Lender to make a Credit Extension on the Closing Date
is subject to the satisfaction, or waiver in accordance with Section 10.5, of the following
conditions on or before the Closing Date:



          (a) Credit Documents. Administrative Agent shall have received sufficient copies of
each Credit Document (other than the Notes) originally executed and delivered by each applicable
Credit Party for each Lender and shall have received an executed Note or Notes for each Lender
requesting a Note or Notes.




          (b) Organizational Documents; Incumbency. Administrative Agent shall have received
(i) copies of the Organizational Documents of each Credit Party, to the extent applicable,
certified as of a recent date by the appropriate governmental official, each dated the Closing Date
or a recent date prior thereto; (ii) signature and incumbency certificates of the officers of each
Credit Party executing the Credit Documents to which it is a party; (iii) resolutions of the Board
of Directors or similar governing body of each Credit Party approving and authorizing the
execution, delivery and performance of this Agreement and the other Credit Documents or by which it
or its assets may be bound as of the Closing Date, certified as of the Closing Date by its
secretary or an assistant secretary as being in full force and effect without modification or
amendment; (iv) a good standing certificate from the applicable Governmental Authority of each
Credit Party’s jurisdiction of incorporation, organization or formation, each dated a recent date
prior to the Closing Date; and (v) such other documents as Administrative Agent may reasonably
request.




          (c) Organizational and Capital Structure. The organizational structure and capital
structure of Holdings and its Subsidiaries, shall be as set forth on Schedule 4.1.




          (d) Existing Credit Agreement. On the Closing Date, Holdings and its Subsidiaries
shall have (i) repaid in full the Existing Credit Agreement, (ii) terminated any commitments to
lend or make other extensions of credit thereunder, and (iii) delivered to Administrative Agent all
documents or instruments necessary to release all Liens securing the Existing Credit Agreement or
other obligations of Holdings and its Subsidiaries thereunder being repaid on the Closing Date.




          (e) Transaction Costs. On or prior to the Closing Date, Company shall have delivered
to Administrative Agent Company’s reasonable best estimate of the Transaction Costs (other than
fees payable to any Agent).






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          (f) Governmental Authorizations and Consents. Each Credit Party shall have obtained
all Governmental Authorizations and all consents of other Persons, in each case that are necessary
or advisable in connection with the transactions contemplated by the Credit Documents and each of
the foregoing shall be in full force and effect and in form and substance reasonably satisfactory
to Administrative Agent. All applicable waiting periods shall have expired without any action
being taken or threatened by any competent authority which would restrain, prevent or otherwise
impose adverse conditions on the transactions contemplated by the Credit Documents or the financing
thereof and no action, request for stay, petition for review or rehearing, reconsideration, or
appeal with respect to any of the foregoing shall be pending, and the time for any applicable
agency to take action to set aside its consent on its own motion shall have expired.




          (g) Solvency Certificate. On the Closing Date, Administrative Agent shall have
received a Solvency Certificate in form, scope and substance satisfactory to Administrative Agent,
and demonstrating that after giving effect to the financings and the other transactions
contemplated by the Credit Documents to occur on or prior to the Closing Date and any rights of
contribution, each Credit Party is and will be Solvent.




          (h) Personal Property Collateral. In order to create in favor of Collateral Agent,
for the benefit of Secured Parties, a valid and perfected First Priority security interest in the
personal property Collateral, Collateral Agent shall have received:





               (i) evidence satisfactory to the Collateral Agent of the compliance by each Credit Party of
their obligations under the Pledge and Security Agreement and the other Collateral Documents
(including, without limitation, their obligations to execute and deliver UCC financing statements,
originals of securities, instruments and chattel paper);




               (ii) a completed UCC Questionnaire dated the Closing Date and executed by an Authorized
Officer of each Credit Party, together with all attachments contemplated thereby;




               (iii) evidence that each Credit Party shall have taken or caused to be taken any other action,
executed and delivered or caused to be executed and delivered any other agreement, document and
instrument and made or caused to be made any other filing and recording (other than as set forth
herein) reasonably required by Collateral Agent.



          (i) Financial Statements; Projections. Lenders shall have received from Holdings (i)
the Historical Financial Statements, (ii) pro forma consolidated financial statements of Holdings
and its Subsidiaries as of the last day of and for the four-quarter period most recently ended
prior to the Closing Date for which financial statements are available, giving pro forma effect to
the financings and the other transactions contemplated by the Credit Documents to occur on or prior
to the Closing Date, which pro forma financial statements shall be in form and substance
satisfactory to Administrative Agent, and (iii) projected consolidated financial statements of
Holdings and its Subsidiaries, which will be quarterly for the first year after the Closing Date
and annually thereafter through and including 2015 (the “Projections”), which Projections shall not
be inconsistent with information provided to the Lead Arrangers prior to the delivery of the
Commitment Letter.




          (j) Evidence of Insurance. Administrative Agent shall have received a certificate
from Holdings’ insurance broker or other evidence satisfactory to it that all insurance required to
be





61









 







maintained pursuant to Section 5.5 is in full force and effect and that Collateral Agent, for
the benefit of the Secured Parties has been named as additional insured and loss payee thereunder
to the extent required under Section 5.5, together with endorsements reasonably requested by
Collateral Agent.




          (k) Opinion of Counsel to Credit Parties. Lenders and their respective counsel shall
have received originally executed copies of the favorable written opinion of Akin Gump Strauss
Hauer & Feld LLP, counsel for Credit Parties, dated as of the Closing Date and in form and
substance reasonably satisfactory to Administrative Agent.




          (l) Fees. Company shall have paid to the Agents the fees payable on the Closing Date
referred to in Section 2.10(e).




          (m) Closing Date Certificate. Holdings and Company shall have delivered to the
Administrative Agent an originally executed Closing Date Certificate, together with all attachments
thereto.




          (n) No Litigation. There shall not exist any action, suit, investigation, litigation
or proceeding or other legal or regulatory developments, pending or threatened in any court or
before any arbitrator or Governmental Authority that, in the reasonable opinion of Administrative
Agent, singly or in the aggregate, materially impairs the transactions contemplated by the Credit
Documents, or that could have a Material Adverse Effect.




          (o) Completion of Proceedings. All partnership, corporate and other proceedings taken
or to be taken in connection with the transactions contemplated hereby and all documents incidental
thereto not previously found acceptable by Administrative Agent or Syndication Agent and its
counsel shall be satisfactory in form and substance to Administrative Agent and Syndication Agent
and such counsel, and Administrative Agent, Syndication Agent and such counsel shall have received
all such counterpart originals or certified copies of such documents as Administrative Agent or
Syndication Agent may reasonably request.




          (p) Funding Notice. Company shall have delivered to Administrative Agent a fully
executed Funding Notice with respect to the Closing Date Term Loans and any Revolving Loans to be
made on the Closing Date.




          (q) Credit Rating. If requested by the Lead Arrangers in connection the financings
and the other transactions contemplated by the Credit Documents to occur on or prior to the Closing
Date, Company shall have received a refreshed corporate family rating and a refreshed corporate
rating, respectively, from each of Moody’s and S&P, and the Closing Date Term Loans shall have been
assigned a credit rating from each of Moody’s and S&P.




          (r) Closing Date. Lenders shall have made the Closing Date Term Loans to Company on
or before September 17, 2010.




          (s) Patriot Act. At least 10 days prior to the Closing Date, the Lenders shall have
received all documentation and other information required by bank regulatory authorities under
applicable “know-your-customer” and anti-money laundering rules and regulations, including the
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and





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Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) the
“Patriot Act”).




     Each Lender, by delivering its signature page to this Agreement and funding a Loan on the
Closing Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each
Credit Document and each other document required to be approved by any Agent, Requisite Lenders or
Lenders, as applicable on the Closing Date.



     3.2 Conditions to Each Credit Extension.



          (a) Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing
Bank to issue any Letter of Credit, on any Credit Date, including the Closing Date, are subject to
the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:





               (i) Administrative Agent shall have received a fully executed and delivered Funding Notice;




               (ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization
of Revolving Commitments shall not exceed the Revolving Commitments then in effect;




               (iii) as of such Credit Date, the representations and warranties contained herein and in the
other Credit Documents shall be true and correct in all material respects on and as of that Credit
Date to the same extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material respects on and as
of such earlier date; provided that, in each case, the foregoing materiality qualifier
shall not be applicable to any representations and warranties that already are qualified or
modified by materiality in the text thereof;




               (iv) as of such Credit Date, no event shall have occurred and be continuing or would result
from the consummation of the applicable Credit Extension that would constitute an Event of Default
or a Default; and




               (v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have
received (i) a fully executed and delivered Issuance Notice, (ii) all other information required by
the applicable Issuance Notice and (iii) such other documents or information as Issuing Bank may
reasonably require in connection with the issuance of such Letter of Credit.



          (b) Notices. Any Notice shall be executed by an Authorized Officer in a writing
delivered to Administrative Agent. In lieu of delivering a Notice, Company may give Administrative
Agent telephonic notice by the required time of any proposed borrowing, conversion/continuation or
issuance of a Letter of Credit, as the case may be; provided each such notice shall be
promptly confirmed in writing by delivery of the applicable Notice to Administrative Agent on or
before the applicable date of borrowing or continuation/conversion. Neither Administrative Agent
nor any Lender shall incur any liability to Company in acting upon any telephonic notice referred
to above that Administrative Agent believes in good faith to have been given by a duly authorized
officer or other person authorized on behalf of Company or for otherwise acting in good faith.






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SECTION 4. REPRESENTATIONS AND WARRANTIES




     In order to induce Lenders and Issuing Bank to enter into this Agreement and to make each
Credit Extension to be made thereby, each Credit Party represents and warrants to each Lender and
Issuing Bank, on the Closing Date and on each Credit Date, that the following statements are true
and correct:



     4.1 Organization; Requisite Power and Authority; Qualification. Each of Holdings and its
Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization as identified in Schedule 4.1, (b) has all requisite power and
authority to own and operate its properties, to carry on its business as now conducted and as
proposed to be conducted, to enter into the Credit Documents to which it is a party and to carry
out the transactions contemplated thereby, and (c) is qualified to do business and in good standing
in every jurisdiction where its assets are located and wherever necessary to carry out its business
and operations, except in jurisdictions where the failure to be so qualified or in good standing
has not had, and could not be reasonably expected to have, a Material Adverse Effect.



     4.2 Capital Stock and Ownership. The Capital Stock of each of Holdings and its Subsidiaries
has been duly authorized and validly issued and is fully paid and non-assessable. Except as set
forth on Schedule 4.2, as of the date hereof, there is no existing option, warrant, call, right,
commitment or other agreement to which Holdings or any of its Subsidiaries is a party requiring,
and there is no membership interest or other Capital Stock of Holdings or any of its Subsidiaries
outstanding which upon conversion or exchange would require, the issuance by Holdings or any of its
Subsidiaries of any additional membership interests or other Capital Stock of Holdings or any of
its Subsidiaries or other Securities convertible into, exchangeable for or evidencing the right to
subscribe for or purchase, a membership interest or other Capital Stock of Holdings or any of its
Subsidiaries. Schedule 4.2 correctly sets forth the ownership interest of Holdings and each of its
Subsidiaries in their respective Subsidiaries as of the Closing Date.



     4.3 Due Authorization. The execution, delivery and performance of the Credit Documents have
been duly authorized by all necessary action on the part of each Credit Party that is a party
thereto.



     4.4 No Conflict. The execution, delivery and performance by Credit Parties of the Credit
Documents to which they are parties and the consummation of the transactions contemplated by the
Credit Documents do not and will not (a) violate any provision of any law or any governmental rule
or regulation applicable to Holdings or any of its Subsidiaries, any of the Organizational
Documents of Holdings or any of its Subsidiaries, or any order, judgment or decree of any court or
other agency of government binding on Holdings or any of its Subsidiaries except to the extent such
violation could not be reasonably expected to have a Material Adverse Effect; (b) conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Holdings or any of its Subsidiaries except to the extent such conflict,
breach or default could not reasonably be expected to have a Material Adverse Effect; (c) result in
or require the creation or imposition of any Lien upon any of the properties or assets of Holdings
or any of its Subsidiaries (other than any Liens created under any of the Credit Documents in favor
of Collateral Agent, on behalf of Secured Parties); or (d) require any approval of stockholders,
members or partners or any approval or consent of any Person under any Contractual Obligation of
Holdings or any of its



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Subsidiaries, except for such approvals or consents which will be obtained on or before the
Closing Date and disclosed in writing to Lenders and except for any such approvals or consents the
failure of which to obtain will not have a Material Adverse Effect.




     4.5 Governmental Consents. The execution, delivery and performance by Credit Parties of the
Credit Documents to which they are parties and the consummation of the transactions contemplated by
the Credit Documents do not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any Governmental Authority except for filings and
recordings with respect to the Collateral to be made, or otherwise delivered to Collateral Agent
for filing and/or recordation, as of the Closing Date.



     4.6 Binding Obligation. Each Credit Document has been duly executed and delivered by each
Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit
Party, enforceable against such Credit Party in accordance with its respective terms, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or
limiting creditors’ rights generally or by equitable principles relating to enforceability.



     4.7 Historical Financial Statements. The Historical Financial Statements were prepared in
conformity with GAAP and fairly present, in all material respects, the financial position, on a
consolidated basis, of the Persons described in such financial statements as at the respective
dates thereof and the results of operations and cash flows, on a consolidated basis, of the
entities described therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal year-end adjustments.
As of the Closing Date, neither Holdings nor any of its Subsidiaries has any contingent liability
or liability for taxes, long-term lease or unusual forward or long-term commitment that is not
reflected in the Historical Financial Statements or the notes thereto and which in any such case is
material in relation to the business, operations, properties, assets, condition (financial or
otherwise) or prospects of Holdings and any of its Subsidiaries taken as a whole.



     4.8 [Reserved].



     4.9 No Material Adverse Change. Since December 31, 2009, no event or change has occurred that
has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect.



     4.10 No Restricted Junior Payments. Since December 31, 2009, neither Holdings nor any of its
Subsidiaries has directly or indirectly declared, ordered, paid or made, or set apart any sum or
property for, any Restricted Junior Payment or agreed to do so except as permitted pursuant to
Section 6.5.



     4.11 Adverse Proceedings, etc. There are no Adverse Proceedings, individually or in the
aggregate, that could reasonably be expected to have a Material Adverse Effect. Neither Holdings
nor any of its Subsidiaries (a) is in violation of any applicable laws (including Environmental
Laws) that, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect, or (b) is subject to or in default with respect to any final judgments, writs,
injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other
governmental department,



65









 




commission, board, bureau, agency or instrumentality, domestic or foreign, that, individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect.




     4.12 Payment of Taxes. Except as otherwise permitted under Section 5.3, all federal and state
income tax returns and all other material tax returns and reports of Holdings and its Subsidiaries
required to be filed by any of them have been timely filed, and all taxes shown on such tax returns
to be due and payable and all material assessments, fees and other governmental charges upon
Holdings and its Subsidiaries and upon their respective properties, assets, income, businesses and
franchises which are due and payable have been paid when due and payable. Holdings knows of no
proposed tax assessment against Holdings or any of its Subsidiaries which is not being actively
contested by Holdings or such Subsidiary in good faith and by appropriate proceedings;
provided, such reserves or other appropriate provisions, if any, as shall be required in
conformity with GAAP shall have been made or provided therefor.



     4.13 Properties.



          (a) Title. Each of Holdings and its Subsidiaries has (i) good, sufficient and
marketable legal title to (in the case of fee interests in real property), (ii) valid leasehold
interests in (in the case of leasehold interests in real or personal property), and (iii) good
title to (in the case of all other personal property), all of their respective properties and
assets reflected in their respective Historical Financial Statements referred to in Section 4.7 and
in the most recent financial statements delivered pursuant to Section 5.1, in each case except for
assets disposed of since the date of such financial statements in the ordinary course of business
or as otherwise permitted under Section 6.9. Except as permitted by this Agreement, all such
properties and assets are free and clear of Liens.




          (b) Real Estate. As of the Closing Date, Schedule 4.13 contains a true, accurate and
complete list of (i) all Real Estate Assets, and (ii) all leases, subleases or assignments of
leases (together with all amendments, modifications, supplements, renewals or extensions of any
thereof) affecting each Real Estate Asset of any Credit Party, regardless of whether such Credit
Party is the landlord or tenant (whether directly or as an assignee or successor in interest) under
such lease, sublease or assignment. Each agreement listed in clause (ii) of the immediately
preceding sentence is in full force and effect and Holdings does not have knowledge of any default
that has occurred and is continuing thereunder, and each such agreement constitutes the legally
valid and binding obligation of each applicable Credit Party, enforceable against such Credit Party
in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or
by equitable principles.




     4.14 Environmental Matters. Neither Holdings nor any of its Subsidiaries nor any of their
respective Facilities or operations are subject to any outstanding written order, consent decree or
settlement agreement with any Person relating to any Environmental Law, any Environmental Claim, to
the knowledge of Holdings or any of its Subsidiaries, or any Hazardous Materials Activity that,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
Neither Holdings nor any of its Subsidiaries has received any letter or request for information
under Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act (42
U.S.C. § 9604) or any comparable state law. There are and, to each of Holdings’ and its
Subsidiaries’ knowledge, have been, no conditions, occurrences, or Hazardous Materials Activities
which could reasonably be expected to form the basis of an Environmental Claim against Holdings or
any of its



66









 




Subsidiaries that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Neither Holdings nor any of its Subsidiaries nor, to any Credit Party’s
knowledge, any predecessor of Holdings or any of its Subsidiaries has filed any notice under any
Environmental Law indicating past or present treatment of Hazardous Materials at any Facility, and
none of Holdings’ or any of its Subsidiaries’ operations involves the generation, transportation,
treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any
state equivalent except for such filings, generation, transportation, treatment, storage or
disposal that could not reasonably be expected to have a Material Adverse Effect. Compliance with
all current or reasonably foreseeable future requirements pursuant to or under Environmental Laws
could not be reasonably expected to have, individually or in the aggregate, a Material Adverse
Effect. No event or condition has occurred or is occurring with respect to Holdings or any of its
Subsidiaries relating to any Environmental Law, any Release of Hazardous Materials, or any
Hazardous Materials Activity which individually or in the aggregate has had, or could reasonably be
expected to have, a Material Adverse Effect.




     4.15 No Defaults. Neither Holdings nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or conditions contained
in any of its Contractual Obligations, and no condition exists which, with the giving of notice or
the lapse of time or both, could constitute such a default, except where the consequences, direct
or indirect, of such default or defaults, if any, could not reasonably be expected to have a
Material Adverse Effect.



     4.16 Governmental Regulation. Neither Holdings nor any of its Subsidiaries is subject to
regulation under the Federal Power Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation which may limit its ability to incur Indebtedness or which
may otherwise render all or any portion of the Obligations unenforceable. Neither Holdings nor any
of its Subsidiaries is a “registered investment company” or is “controlled” by a “registered
investment company” or a “principal underwriter” of a “registered investment company” as such terms
are defined in the Investment Company Act of 1940.



     4.17 Margin Stock. Neither Holdings nor any of its Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the purpose of purchasing
or carrying any Margin Stock. No part of the proceeds of the Loans made to such Credit Party will
be used to purchase or carry any such margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock or for any purpose that violates, or is inconsistent
with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve
System.



     4.18 Employee Matters. Neither Holdings nor any of its Subsidiaries is engaged in any unfair
labor practice that could reasonably be expected to have a Material Adverse Effect. There is (a)
no unfair labor practice complaint pending against Holdings or any of its Subsidiaries, or to the
best knowledge of Holdings and Company, threatened against any of them before the National Labor
Relations Board and no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement that is so pending against Holdings or any of its Subsidiaries or to the best
knowledge of Holdings and Company, threatened against any of them, (b) no strike or work stoppage
in existence or threatened involving Holdings or any of its Subsidiaries that could reasonably be
expected to have a Material Adverse Effect, and (c) to the best knowledge of Holdings and Company,
no union representation question existing with respect to the employees of Holdings or any of its
Subsidiaries and, to the best knowledge of Holdings and Company, no union organization activity
that



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is taking place, except (with respect to any matter specified in clause (a), (b) or (c) above,
either individually or in the aggregate) such as is not reasonably likely to have a Material
Adverse Effect.




     4.19 Employee Benefit Plans. Holdings, each of its Subsidiaries and each of their respective
ERISA Affiliates are in material compliance with all applicable provisions and requirements of
ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder
with respect to each Employee Benefit Plan, and have substantially performed all their obligations
under each Employee Benefit Plan. Each Employee Benefit Plan which is intended to qualify under
Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the
Internal Revenue Service or an application for such a letter is currently being processed by the
Internal Revenue Service with respect thereto and, to the knowledge of Holdings, its Subsidiaries,
and each of their ERISA Affiliates, nothing has occurred which would prevent, or cause the loss of,
such qualification. No material liability to the PBGC (other than required premium payments), the
Internal Revenue Service, any Employee Benefit Plan or any Trust established under Title IV of
ERISA has been or is expected to be incurred by Holdings, any of its Subsidiaries or any of their
ERISA Affiliates. No ERISA Event has occurred or is reasonably expected to occur. Except to the
extent required under Section 4980B of the Internal Revenue Code or similar state laws, no Employee
Benefit Plan provides health or welfare benefits (through the purchase of insurance or otherwise)
for any retired or former employee of Holdings, any of its Subsidiaries or any of their respective
ERISA Affiliates. As of the most recent valuation date for any Pension Plan, the amount of benefit
liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all
Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which
assets exceed benefit liabilities), does not exceed $3,500,000. As of the most recent valuation
date for each Multiemployer Plan for which the actuarial report is available, the potential
liability of Holdings, its Subsidiaries and their respective ERISA Affiliates for a complete
withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when
aggregated with such potential liability for a complete withdrawal from all Multiemployer Plans,
based on information available pursuant to Section 4221(e) of ERISA, does not exceed $3,500,000.
Holdings, each of its Subsidiaries and each of their ERISA Affiliates have complied with the
requirements of Section 515 of ERISA with respect to each Multiemployer Plan and are not in
material “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan.



     4.20 Certain Fees. No broker’s or finder’s fee or commission will be payable with respect
hereto or any of the transactions contemplated hereby, except those broker’s and finder’s fees
otherwise disclosed to the Agents prior to the Closing Date.



     4.21 Solvency. Each Credit Party is and, upon the incurrence of any Obligation by such Credit
Party on any date on which this representation and warranty is made, will be, Solvent.



     4.22 [Reserved]



     4.23 Subordination. The subordination provisions of any Permitted Seller Notes or other
Subordinated Indebtedness are enforceable against the holders thereof, and the loans and other
obligations thereunder are and will be within the definition of
“Subordinated Indebtedness” or
“Subordinated Debt”, or similar term, as applicable, included in such provisions.



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     4.24 Compliance with Statutes, etc. Each of Holdings and its Subsidiaries is in compliance
with all applicable statutes, regulations and orders of, and all applicable restrictions imposed
by, all Governmental Authorities, in respect of the conduct of its business and the ownership of
its property (including compliance with all applicable Environmental Laws with respect to any Real
Estate Asset or governing its business and the requirements of any permits issued under such
Environmental Laws with respect to any such Real Estate Asset or the operations of Holdings or any
of its Subsidiaries), except such non-compliance that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.



     4.25 Disclosure. No representation or warranty of any Credit Party contained in any Credit
Document or in any other documents, certificates or written statements (excluding any projections,
pro-forma financial information or estimates) furnished to Lenders by or on behalf of Holdings or
any of its Subsidiaries for use in connection with the transactions contemplated hereby, when taken
as a whole, together with the Public Disclosure (as modified or supplemented after the Closing Date
by other information furnished to the Lenders or publicly disclosed, in each case prior to the
occurrence of an Event of Default pursuant to Section 8.1(d)), contains any untrue statement of a
material fact or omits to state a material fact (known to Holdings or Company, in the case of any
document not furnished by either of them) necessary in order to make the statements contained
herein or therein not misleading in light of the circumstances in which the same were made. Any
projections and pro forma financial information contained in such materials are based upon good
faith estimates and assumptions believed by Holdings or Company to be reasonable at the time made,
it being recognized by Lenders that such projections as to future events are not to be viewed as
facts and that actual results during the period or periods covered by any such projections may
differ from the projected results by a material amount. There are no facts known (or which should
upon the reasonable exercise of diligence be known) to Holdings or Company (other than matters of a
general economic nature) that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect and that have not been disclosed herein, in the Public
Disclosure, or in such other documents, certificates and statements furnished to Lenders for use in
connection with the transactions contemplated hereby.



     4.26 U.S. Foreign Corrupt Practices Act and OFAC. No Credit Party or any Affiliate thereof (i)
is a Sanctioned Person, (ii) has more than 10% of its assets in Sanctioned Entities or (iii)
derives more than 10% of its operating income from investments in, or transactions with, Sanctioned
Persons or Sanctioned Entities. The proceeds of any Loan will not be used and have not been used
to (i) make any payments to any governmental official or employee, political party, official of a
political party, candidate for political office, or anyone else acting in an official capacity, in
order to obtain, retain or direct business or obtain any improper advantage, in violation of the
United States Foreign Corrupt Practices Act of 1977, as amended, or (ii) fund any operations in,
finance any investments or activities in, or make any payments to, a Sanctioned Person or a
Sanctioned Entity.



SECTION 5. AFFIRMATIVE COVENANTS




     Each Credit Party covenants and agrees that so long as any Commitment is in effect and until
payment in full of all Obligations, each Credit Party shall perform, and shall cause each of its
Subsidiaries to perform, all covenants in this Section 5.



     5.1 Financial Statements and Other Reports. Holdings will deliver to Administrative Agent and
Lenders:



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          (a) [Reserved];




          (b) Quarterly Financial Statements. As soon as available, and in any event within
forty-five (45) days after the end of each of the first three Fiscal Quarters of each Fiscal Year,
the consolidated balance sheet of Holdings and its Subsidiaries as at the end of such Fiscal
Quarter and the related consolidated statements of income, stockholders’ equity and cash flows of
Holdings and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the
then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding periods of the previous Fiscal
Year and the corresponding figures from the Financial Plan for the current Fiscal Year, all in
reasonable detail, together with a Financial Officer Certification and a Narrative Report with
respect thereto;




          (c) Annual Financial Statements. As soon as available, and in any event within ninety
(90) days after the end of each Fiscal Year, (i) the consolidated balance sheet of Holdings and its
Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income,
stockholders’ equity and cash flows of Holdings and its Subsidiaries for such Fiscal Year, setting
forth in each case in comparative form the corresponding figures for the previous Fiscal Year and
the corresponding figures from the Financial Plan for the Fiscal Year covered by such financial
statements, in reasonable detail, together with a Financial Officer Certification and a Narrative
Report with respect thereto; and (ii) with respect such consolidated financial statements a report
thereon of independent certified public accountants of recognized national standing selected by
Holdings, and reasonably satisfactory to Administrative Agent (which report shall be unqualified as
to going concern and scope of audit, and shall state that such consolidated financial statements
fairly present, in all material respects, the consolidated financial position of Holdings and its
Subsidiaries as at the dates indicated and the results of their operations and their cash flows for
the periods indicated in conformity with GAAP applied on a basis consistent with prior years
(except as otherwise disclosed in such financial statements) and that the examination by such
accountants in connection with such consolidated financial statements has been made in accordance
with generally accepted auditing standards) together with a written statement by such independent
certified public accountants stating whether, in connection with their audit examination, any
condition or event that constitutes a Default or an Event of Default under Section 8 hereof has
come to their attention and, if such a condition or event has come to their attention, specifying
the nature and period of existence thereof; provided that such accountants shall not be liable by
reason of any failure to obtain knowledge of any such Default or Event of Default that would not be
disclosed in the course of their audit examination;




          (d) Compliance Certificate. Together with each delivery of financial statements of
Holdings and its Subsidiaries pursuant to Sections 5.1(b) and 5.1(c), a duly executed and completed
Compliance Certificate;




          (e) Statements of Reconciliation after Change in Accounting Principles. If, as a
result of any change in accounting principles and policies from those used in the preparation of
the Historical Financial Statements, the consolidated financial statements of Holdings and its
Subsidiaries delivered pursuant to Section 5.1(b) or 5.1(c) will differ in any material respect
from the consolidated financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles and policies been made, then, together
with the first delivery of such financial statements after such change, one or more statements of
reconciliation for all such prior financial statements in form and substance satisfactory to
Administrative Agent;






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          (f) Notice of Default. Promptly upon any officer of Holdings or Company obtaining
knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that
notice has been given to Holdings or Company with respect thereto; (ii) that any Person has given
any notice to Holdings or any of its Subsidiaries or taken any other action with respect to any
event or condition set forth in Section 8.1(b); or (iii) of the occurrence of any event or change
that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect, a
certificate of its Authorized Officers specifying the nature and period of existence of such
condition, event or change, or specifying the notice given and action taken by any such Person and
the nature of such claimed Event of Default, Default, default, event or condition, and what action
Holdings has taken, is taking and proposes to take with respect thereto;




          (g) Notice of Litigation. Promptly upon any officer of Holdings or Company obtaining
knowledge of (i) the institution of, or non-frivolous threat of, any Adverse Proceeding not
previously disclosed in writing by Company to Lenders, or (ii) any material development in any
Adverse Proceeding that, in the case of either (i) or (ii) if adversely determined, could be
reasonably expected to have a Material Adverse Effect, or seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result of, the transactions
contemplated hereby, written notice thereof together with such other information as may be
reasonably available to Holdings or Company to enable Lenders and their counsel to evaluate such
matters;




          (h) ERISA. (i) Promptly upon becoming aware of the occurrence any ERISA Event, a
written notice specifying the nature thereof, what action Holdings, any of its Subsidiaries or any
of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto
and, when known, any action taken or threatened by the Internal Revenue Service, the Department of
Labor or the PBGC with respect thereto; and (ii) with reasonable promptness, copies of (1) each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by Holdings, any
of its Subsidiaries or any of their respective ERISA Affiliates with the Internal Revenue Service
with respect to each Pension Plan; (2) the most recent actuarial valuation report for each Pension
Plan; (3) all notices received by Holdings, any of its Subsidiaries or any of their respective
ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event; and (4) copies of
such other documents or governmental reports or filings relating to any Employee Benefit Plan as
Administrative Agent shall reasonably request;




          (i) Financial Plan. As soon as practicable and in any event no later than ninety (90)
days after the beginning of each Fiscal Year, a consolidated plan and financial forecast for such
Fiscal Year and the next three succeeding Fiscal Years (a “Financial Plan”), including (i) a
forecasted consolidated balance sheet and forecasted consolidated statements of income and cash
flows of Holdings and its Subsidiaries for each such Fiscal Year, together with a schedule
demonstrating compliance with the financial covenants required by Section 6.8 and an explanation of
the assumptions on which such forecasts are based and (ii) forecasted consolidated statements of
income and cash flows of Holdings and its Subsidiaries for each quarter of the current Fiscal Year,
together with an explanation of the assumptions on which such forecasts are based;




          (j) Insurance Report. As soon as practicable and in any event by the last day of each
Fiscal Year, a report in form and substance satisfactory to Administrative Agent outlining all
material insurance coverage maintained as of the date of such report by Holdings and its
Subsidiaries





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and all material insurance coverage planned to be maintained by Holdings and its Subsidiaries
in the immediately succeeding Fiscal Year;




          (k) Notice of Change in Board of Directors. With reasonable promptness, written
notice of any change in the board of directors (or similar governing body) of Holdings or Company;




          (l) Notice Regarding Material Contracts. Promptly, and in any event within ten (10)
Business Days (i) after any Material Contract of Holdings or any of its Subsidiaries is terminated
or amended in a manner that is materially adverse to Holdings or such Subsidiary, as the case may
be, or (ii) any new Material Contract is entered into, a written statement describing such event,
with copies of such material amendments or new contracts, delivered to Administrative Agent (to the
extent such delivery is permitted by the terms of any such Material Contract; provided, no
such prohibition on delivery shall be effective if it were bargained for by Holdings or its
applicable Subsidiary with the intent of avoiding compliance with this Section 5.1(l)), and an
explanation of any actions being taken with respect thereto;




          (m) Environmental Reports and Audits. As soon as practicable following receipt
thereof, copies of all environmental audits and reports with respect to environmental matters at
any Facility or which relate to any environmental liabilities of Holdings or its Subsidiaries
which, in any such case, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect;




          (n) Information Regarding Collateral. Company will furnish to the Collateral Agent
prompt written notice of any change (i) in any Credit Party’s corporate name, (ii) in the location
of any Credit Party’s chief executive office, its jurisdiction of organization, its principal place
of business, any office in which it maintains books or records relating to Collateral owned by it
or any office or facility at which Collateral (other than real property and improvements and
fixtures thereto) owned by it with a book value in excess of $250,000 is located (including the
establishment of any such new office or facility), (iii) in any Credit Party’s identity or
corporate structure or (iv) in any Credit Party’s Federal Taxpayer Identification Number. Company
agrees not to effect or permit any change referred to in the preceding sentence unless all filings
have been made under the Uniform Commercial Code or otherwise that are required in order for the
Collateral Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral and for the Collateral at all times following
such change to have a valid, legal and perfected security interest as contemplated in the
Collateral Documents. Company also agrees promptly to notify the Collateral Agent if any material
portion of the Collateral is damaged or destroyed;




          (o) Annual Collateral Verifications. Each year, no later than thirty (30) days after
the delivery of annual financial statements with respect to the preceding Fiscal Year pursuant to
Section 5.1, Company shall deliver to the Collateral Agent an Officer’s Certificate (i) either
confirming that there has been no change in such information since the date of the UCC
Questionnaire delivered on the Closing Date or the date of the most recent certificate delivered
pursuant to this Section and/or identifying such changes and (ii) certifying that all Uniform
Commercial Code financing statements (including fixtures filings, as applicable) or other
appropriate filings, recordings or registrations, have been filed of record in each governmental,
municipal or other appropriate office in each jurisdiction identified pursuant to clause (i) above
(or in such updated UCC Questionnaire) to the extent necessary to protect and perfect the security
interests under the Collateral Documents for a





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period of not less than 18 months after the date of such certificate (except as noted therein
with respect to any continuation statements to be filed within such period); and




          (p) Other Information. (A) Promptly upon their becoming available, copies of (i) all
financial statements, reports, notices and proxy statements sent or made available generally by
Holdings to its security holders acting in such capacity or by any Subsidiary of Holdings to its
security holders other than Holdings or another Subsidiary of Holdings, (ii) all regular and
periodic reports and all registration statements and prospectuses, if any, filed by Holdings or any
of its Subsidiaries with any securities exchange or with the Securities and Exchange Commission or
any governmental or private regulatory authority, (iii) all press releases and other statements
made available generally by Holdings or any of its Subsidiaries to the public concerning material
developments in the business of Holdings or any of its Subsidiaries, and (B) such other information
and data with respect to Holdings or any of its Subsidiaries as from time to time may be reasonably
requested by Administrative Agent or any Lender.




     5.2 Existence. Except as otherwise permitted under Section 6.9, each Credit Party will, and
will cause each of its Subsidiaries to, at all times preserve and keep in full force and effect its
existence and all rights and franchises, licenses and permits material to its business;
provided, no Credit Party or any of its Subsidiaries shall be required to preserve any such
existence, right or franchise, licenses and permits if such Person’s board of directors (or similar
governing body) shall determine that the preservation thereof is no longer desirable in the conduct
of the business of such Person, and that the loss thereof is not disadvantageous in any material
respect to such Person or to Lenders.



     5.3 Payment of Taxes and Claims. Each Credit Party will, and will cause each of its
Subsidiaries to, pay all Taxes imposed upon it or any of its properties or assets or in respect of
any of its income, businesses or franchises before any penalty or fine accrues thereon, and all
claims (including claims for labor, services, materials and supplies) for sums that have become due
and payable and that by law have or may become a Lien upon any of its properties or assets, prior
to the time when any penalty or fine shall be incurred with respect thereto; provided, no
such Tax or claim need be paid if it is being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted, so long as (a) an adequate reserve or other
appropriate provision, as shall be required in conformity with GAAP shall have been made therefor,
and (b) in the case of a charge or claim which has or may become a Lien against any of the
Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the
Collateral to satisfy such Tax or claim. No Credit Party will, nor will it permit any of its
Subsidiaries to, file or consent to the filing of any consolidated income Tax return with any
Person (other than Holdings or any of its Subsidiaries).



     5.4 Maintenance of Properties. Each Credit Party will, and will cause each of its Subsidiaries
to, maintain or cause to be maintained in good repair, working order and condition, ordinary wear
and tear excepted, all material properties used or useful in the business of Holdings and its
Subsidiaries and from time to time will make or cause to be made all appropriate repairs, renewals
and replacements thereof, and each Credit Party shall defend any Collateral against all Persons at
any time claiming any interest therein other than Permitted Liens.



     5.5 Insurance. Holdings will maintain or cause to be maintained, with financially sound and
reputable insurers, such public liability insurance, third party property damage insurance,
business



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interruption insurance and casualty insurance with respect to liabilities, losses or damage in
respect of the assets, properties and businesses of Holdings and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by Persons of established
reputation engaged in similar businesses, in each case in such amounts (giving effect to
self-insurance), with such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for such Persons. Without limiting the generality of the
foregoing, Holdings will maintain or cause to be maintained (a) flood insurance with respect to
each Flood Hazard Property that is located in a community that participates in the National Flood
Insurance Program, in each case in compliance with any applicable regulations of the Board of
Governors of the Federal Reserve System, and (b) replacement value casualty insurance on the
Collateral under such policies of insurance, with such insurance companies, in such amounts, with
such deductibles, and covering such risks as are at all times carried or maintained under similar
circumstances by Persons of established reputation engaged in similar businesses. Each such policy
of insurance shall (i) name Collateral Agent, on behalf of the Secured Parties as an additional
insured thereunder as its interests may appear and (ii) in the case of each casualty insurance
policy, contain a loss payable clause or endorsement, satisfactory in form and substance to
Collateral Agent, that names Collateral Agent, on behalf of the Secured Parties as the loss payee
thereunder.




     5.6 Inspections. Each Credit Party will, and will cause each of its Subsidiaries to, permit
any authorized representatives designated by any Lender to visit and inspect any of the properties
of any Credit Party and any of its respective Subsidiaries, to inspect, copy and take extracts from
its and their financial and accounting records, and to discuss its and their affairs, finances and
accounts with its and their officers and independent public accountants, all upon reasonable notice
and at such reasonable times during normal business hours and as often as may reasonably be
requested; provided, that each Lender shall coordinate with Administrative Agent with
respect to the frequency and timing of such visits and inspections so as to reasonably minimize the
burden imposed on each Credit Party and its Subsidiaries.



     5.7 Lenders Meetings. Holdings and Company will, upon the request of Administrative Agent or
Requisite Lenders, participate in a meeting of Administrative Agent and Lenders once during each
Fiscal Year to be held at Company’s corporate offices (or at such other location as may be agreed
to by Company and Administrative Agent) at such time as may be agreed to by Company and
Administrative Agent.



     5.8 Compliance with Laws. Each Credit Party will comply, and shall cause each of its
Subsidiaries and all other Persons, if any, on or occupying any Facilities to comply, with the
requirements of all applicable laws, rules, regulations and orders of any governmental authority
(including all Environmental Laws), noncompliance with which could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.



     5.9 Environmental.



          (a) Environmental Disclosure. Holdings will deliver to Administrative Agent and
Lenders:





               (i) as soon as practicable following receipt thereof, copies of all environmental audits,
investigations, analyses and reports of any kind or character, whether prepared



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by personnel of Holdings or any of its Subsidiaries or by independent consultants,
governmental authorities or any other Persons, with respect to significant environmental matters at
any Facility or with respect to any known Environmental Claims;





               (ii) promptly upon the occurrence thereof, written notice describing in reasonable detail (1)
any Release required to be reported to any federal, state or local governmental or regulatory
agency under any applicable Environmental Laws, (2) any remedial action taken by Holdings or any
other Person in response to (A) any Hazardous Materials Activities the existence of which has a
reasonable possibility of resulting in one or more Environmental Claims having, individually or in
the aggregate, a Material Adverse Effect, or (B) any Environmental Claims that, individually or in
the aggregate, have a reasonable possibility of resulting in a Material Adverse Effect, and (3)
Holdings or Company’s discovery of any occurrence or condition on any real property adjoining or in
the vicinity of any Facility that could cause such Facility or any part thereof to be subject to
any material restrictions on the ownership, occupancy, transferability or use thereof under any
Environmental Laws;




               (iii) as soon as practicable following the sending or receipt thereof by Holdings or any of
its Subsidiaries, a copy of any and all material written communications with respect to (1) any
Environmental Claims that, individually or in the aggregate, have a reasonable possibility of
giving rise to a Material Adverse Effect, (2) any Release required to be reported to any federal,
state or local governmental or regulatory agency, and (3) any request for information from any
governmental agency that suggests such agency is investigating whether Holdings or any of its
Subsidiaries may be potentially responsible for any Hazardous Materials Activity that has a
reasonable possibility of giving rise to a Material Adverse Effect;




               (iv) prompt written notice describing in reasonable detail (1) any proposed acquisition of
stock, assets, or property by Holdings or any of its Subsidiaries that could reasonably be expected
to (A) expose Holdings or any of its Subsidiaries to, or result in, Environmental Claims that could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (B)
affect the ability of Holdings or any of its Subsidiaries to maintain in full force and effect all
material Governmental Authorizations required under any Environmental Laws for their respective
operations and (2) any proposed action to be taken by Holdings or any of its Subsidiaries to modify
current operations in a manner that could reasonably be expected to subject Holdings or any of its
Subsidiaries to any additional material obligations or requirements under any Environmental Laws;
and




               (v) with reasonable promptness, such other documents and information as from time to time may
be reasonably requested by Administrative Agent in relation to any matters disclosed pursuant to
this Section 5.9(a).



          (b) Hazardous Materials Activities, Etc. Each Credit Party shall promptly take, and
shall cause each of its Subsidiaries promptly to take, any and all actions necessary to (i) cure
any violation of applicable Environmental Laws by such Credit Party or its Subsidiaries that could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and
(ii) make an appropriate response to any known Environmental Claim against such Credit Party or any
of its Subsidiaries where failure to do so could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect; provided, however, that nothing in this
Section 5.9(b) shall





75









 







preclude any Credit Party or any of its Subsidiaries from contesting in good faith any such
Environmental Claim.




     5.10 Subsidiaries. In the event that any Person becomes a Domestic Subsidiary of Company,
Company shall, except with respect to Permitted Partially-Owned Subsidiaries (including
Subsidiaries who will, after giving effect to any transfer of Capital Stock to a Permitted
Transferee under Section 6.9(g) be Permitted Partially-Owned Subsidiaries), (a) promptly cause such
Domestic Subsidiary to become a Guarantor hereunder and a Grantor under the Pledge and Security
Agreement by executing and delivering to Administrative Agent and Collateral Agent a Counterpart
Agreement, and (b) take all such actions and execute and deliver, or cause to be executed and
delivered, all such Environmental Reports and all such documents, instruments, agreements, and
certificates as are similar to those described in Sections 3.1(b) and 3.1(h), and to the extent
reasonably requested by Administrative Agent, such documents, instruments, agreements, and
certificates as are similar to those described in Section 3.1(k). In the event that any Person
becomes a Permitted Partially-Owned Subsidiary of Company, Company shall use its commercially
reasonable efforts to cause such Subsidiary to become a Guarantor hereunder and a Grantor under the
Pledge and Security Agreement, and Company shall use commercially reasonable efforts to cause the
owner of the remaining Capital Stock of such Subsidiary to pledge his or her Capital Stock in such
Permitted Partially-Owned Subsidiary in favor of the Collateral Agent for the benefit of the
Secured Parties. In the event that any Person becomes a Foreign Subsidiary of Company, and the
ownership interests of such Foreign Subsidiary are owned by Company or by any Domestic Subsidiary
thereof, Company shall, or shall cause such Domestic Subsidiary to, deliver, all such documents,
instruments, agreements, and certificates as are similar to those described in Sections 3.1(b), and
Company shall take, or shall cause such Domestic Subsidiary to take, all of the actions referred to
in Section 3.1(h)(i) necessary to grant and to perfect a First Priority Lien in favor of
Administrative Agent, for the benefit of Secured Parties, under the Pledge and Security Agreement
in not more than 65% of such ownership interests. With respect to each such Subsidiary, Company
shall promptly send to Administrative Agent written notice setting forth with respect to such
Person (i) the date on which such Person became a Subsidiary of Company, and (ii) all of the data
required to be set forth in Schedules 4.1 and 4.2 with respect to all Subsidiaries of Company;
provided, such written notice shall be deemed to supplement Schedules 4.1 and 4.2 for all
purposes hereof.



     5.11 Mortgages on Material Real Estate Assets. Upon the request of the Collateral Agent or the
Requisite Lenders at any time during the continuance of any Default or Event of Default, each
Credit Party shall, in order to create in favor of Collateral Agent, for the benefit of Secured
Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First
Priority security interest in any Material Real Estate Asset so requested, promptly provide to
Collateral Agent with respect any such Material Real Estate Asset so requested:



          (a) fully executed and notarized Mortgages, in proper form for recording in all appropriate
places in all applicable jurisdictions, encumbering each such Material Real Estate Asset (each such
Material Real Estate Asset subject to a Mortgage, a
“Mortgaged Property”);




          (b) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent)
with respect to each Mortgaged Property, in each case with respect to the enforceability of the
form(s) of Mortgages to be recorded in the relevant state and such other matters





76









 







as Collateral Agent may reasonably request, in each case in form and substance reasonably
satisfactory to Collateral Agent;




          (c) in the case of each Leasehold Property that is a Mortgaged Property, (1) a Landlord
Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold
Interest;




          (d) (A) ALTA mortgagee title insurance policies or unconditional commitments therefor issued
by one or more title companies reasonably satisfactory to Collateral Agent with respect to each
Mortgaged Property (each, a “Title Policy”), in amounts not less than the fair market value of each
Mortgaged Property, together with a title report issued by a title company with respect thereto,
dated not more than thirty days prior to the effectiveness of such Mortgage and copies of all
recorded documents listed as exceptions to title or otherwise referred to therein, each in form and
substance reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral
Agent that such Credit Party has paid to the title company or to the appropriate governmental
authorities all expenses and premiums of the title company and all other sums required in
connection with the issuance of each Title Policy and all recording and stamp taxes (including
mortgage recording and intangible taxes) payable in connection with recording the Mortgages for
each Mortgaged Property in the appropriate real estate records;




          (e) flood certifications with respect to each such Material Real Estate Asset and evidence of
flood insurance with respect to each Flood Hazard Property that is located in a community that
participates in the National Flood Insurance Program, in each case in compliance with any
applicable regulations of the Board of Governors of the Federal Reserve System, in form and
substance reasonably satisfactory to Collateral Agent; and




          (f) such other matters as may be requested by the Collateral Agent or the Requisite Lenders,
including but not limited to ALTA surveys, Environmental Reports and appraisals with respect to
such Material Real Estate Asset.




     5.12 Public Lenders. Company hereby acknowledges that (a) the Administrative Agent will make
available to the Lenders materials and/or information provided by or on behalf of Company hereunder
(collectively, “Company Materials”) by posting the Company Materials on SyndTrak Online 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 Credit Parties or their securities) (each, a “Public Lender”). Company hereby agrees that upon
request by Administrative Agent it will use commercially reasonable efforts to identify that
portion of the Company Materials that may be distributed to the Public Lenders and that (w) all
such Company Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum,
shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Company Materials “PUBLIC,” Company shall be deemed to have authorized the Administrative
Agent and the Lenders to treat such Company Materials as not containing any material non-public
information (although it may be sensitive and proprietary) with respect to the Credit Parties or
their securities for purposes of United States Federal and state securities laws; (y) all Company
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated “Public Investor;” and (z) the Administrative Agent shall be entitled to treat any
Company Materials



77









 




that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform
not designated “Public Investor.”




     5.13 Further Assurances. At any time or from time to time upon the request of Administrative
Agent, each Credit Party will, at its expense, promptly execute, acknowledge and deliver such
further documents and do such other acts and things as Administrative Agent or Collateral Agent may
reasonably request in order to effect fully the purposes of the Credit Documents. In furtherance
and not in limitation of the foregoing, each Credit Party shall take such actions as Administrative
Agent or Collateral Agent may reasonably request from time to time to ensure that the Obligations
are guarantied by Guarantors and are secured by substantially all of the assets of Holdings and its
Subsidiaries (other than Real Estate Assets except to the extent contemplated by Section 5.11
hereof) and all of the outstanding Capital Stock of Company and its Subsidiaries (subject to
limitations contained in the Credit Documents with respect to Foreign Subsidiaries).



     5.14 Post-Closing Covenant. Company shall take all such actions to deliver and/or execute the
certificates or documents set forth on Schedule 5.14 within the time frames specified on Schedule
5.14.



SECTION 6. NEGATIVE COVENANTS




     Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations, such Credit Party shall perform, and shall cause each of its
Subsidiaries to perform, all covenants in this Section 6.



     6.1 Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly
or indirectly liable with respect to any Indebtedness, except:



          (a) the Obligations;




          (b) Indebtedness of any Guarantor Subsidiary to Company or to any other Guarantor Subsidiary,
or of Company to any Guarantor Subsidiary; provided, (i) all such Indebtedness shall be
subject to a First Priority Lien pursuant to the Pledge and Security Agreement, (ii) all such
Indebtedness shall be unsecured and, pursuant to Section 7.7 hereof, subordinated in right of
payment to the payment in full of the Obligations and (iii) to the extent any of such Indebtedness
is evidenced by a promissory note or other similar evidence of Indebtedness, then such note shall
be delivered to the Collateral Agent to the extent required under the Pledge and Security
Agreement;




          (c) [Reserved];




          (d) [Reserved];




          (e) Indebtedness incurred by Holdings or any of its Subsidiaries arising from agreements
providing for indemnification, adjustment of purchase price or similar obligations, or from
guaranties or letters of credit, surety bonds or performance bonds securing the performance of
Company or any such Subsidiary pursuant to such agreements, in connection with Permitted
Acquisitions or permitted dispositions of any business, assets or Subsidiary of Holdings or any of
its Subsidiaries;





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          (f) Indebtedness (i) which may be deemed to exist pursuant to any guaranties,
performance, surety, statutory, appeal or similar obligations (including, for the sake of clarity,
obligations of the type described in Section 6.2(d)) incurred in the ordinary course of business or
(ii) consisting of reimbursement obligations in respect of letters of credit issued in connection
with any such obligations;




          (g) Indebtedness in respect of netting services, overdraft protections and otherwise in
connection with deposit accounts and Specified Cash Management Arrangements;




          (h) guaranties in the ordinary course of business of the obligations of suppliers, customers,
franchisees and licensees of Holdings and its Subsidiaries;




          (i) guaranties by Company of Indebtedness of a Guarantor Subsidiary or guaranties by a
Subsidiary of Company of Indebtedness of Company or a Guarantor Subsidiary with respect, in each
case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1;




          (j) Indebtedness described in Schedule 6.1 or otherwise permitted under this Section 6.1, but
not any extensions, renewals or replacements of such Indebtedness except (i) renewals and
extensions expressly provided for in the agreements evidencing any such Indebtedness as the same
are in effect on the date of this Agreement and (ii) refinancings and extensions of any such
Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or
to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity
thereof is greater than or equal to that of the Indebtedness being refinanced or extended;
provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii)
above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the
Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the
Indebtedness being renewed, extended or refinanced or (C) incurred, created or assumed if any
Default or Event of Default has occurred and is continuing or would result therefrom;




          (k) Indebtedness with respect to Capital Leases not involving real property in an aggregate
amount not to exceed at any time $15,000,000;




          (l) purchase money Indebtedness in an aggregate amount not to exceed at any time $10,000,000
(including any Indebtedness acquired in connection with a Permitted Acquisition); provided,
any such Indebtedness (i) shall be secured only to the asset acquired in connection with the
incurrence of such Indebtedness, and (ii) shall constitute not less than 75% of the aggregate
consideration paid with respect to such asset;




          (m) Permitted Seller Notes (i) issued by Holdings as consideration in Permitted Acquisitions;
provided, that the aggregate principal amount of such Permitted Seller Notes issued by
Holdings shall not exceed $10,500,000; and (ii) issued by Company as consideration in Permitted
Acquisitions; provided, that the aggregate amount of such Permitted Seller Notes issued by
Company shall not exceed $4,500,000;




          (n) Earn-Out Obligations incurred by Holdings constituting consideration payable in connection
with Permitted Acquisitions; provided, that the maximum aggregate exposure, as reasonably
estimated by management under all such Earn-Out Obligations shall not exceed $20,000,000 at any
time outstanding;




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          (o) a Subsidiary acquired pursuant to a Permitted Acquisition may become or remain liable with
respect to Indebtedness of such Subsidiary existing at the time of the acquisition of such
Subsidiary by Company or any of its Subsidiaries and, a Subsidiary may become liable with respect
to Indebtedness secured by assets acquired pursuant to a Permitted Acquisition; provided that (i)
such Indebtedness was not incurred in connection with, or in anticipation of, such Permitted
Acquisition, and (ii) the aggregate principal amount of all such Indebtedness at any time
outstanding does not exceed $10,000,000;




          (p) Indebtedness of Company or any of its Subsidiaries to a Person to the extent incurred in
connection with a Permitted Acquisition of a portion or all of the Capital Stock of a Permitted
Partially-Owned Subsidiary and any guaranty of such Indebtedness by Holdings, in an aggregate
principal amount not to exceed at any time outstanding $5,000,000, provided that any payments on
such Indebtedness shall only be permitted to the extent set forth in Section 6.5(g);




          (q) [Reserved];




          (r) Indebtedness of Holdings constituting Investments by Company permitted under Section 6.7
hereof;




          (s) Indebtedness constituting Permitted Unsecured Indebtedness; provided that, at the
time of incurrence of such Indebtedness, (i) the pro forma Leverage Ratio, after giving effect to
the incurrence of such Permitted Unsecured Indebtedness (as if such Permitted Unsecured
Indebtedness had been incurred on the last day of the prior Fiscal Quarter), shall not exceed
2.75:1.0 and (ii) the Company’s Liquidity Amount shall be greater than or equal to $50,000,000;




          (t) other unsecured Indebtedness of Holdings and its Subsidiaries (other than with respect to
Permitted Seller Notes, Take Out Securities or Permitted Unsecured Indebtedness), in an aggregate
amount not to exceed at any time $20,000,000;




          (u) Indebtedness of Holdings or Company comprised of Take Out Securities; and




          (v) Indebtedness with respect to Capital Leases involving real property in an aggregate amount
not to exceed at any time $70,000,000; provided, however, that to the extent that
the amount of Indebtedness incurred under Section 6.1 (k) remains less than $15,000,000, Company
may increase the Indebtedness allowed under this Section 6.1(v) by the difference between (x)
$15,000,000 and (y) the actual amount of indebtedness incurred under Section 6.1 (k);
provided, further, however, that such an increase in the Indebtedness
allowed by this Section 6.l(v) above $70,000,000 shall reduce the $15,000,000 set forth in Section
6.1(k) on a dollar for dollar basis.




     6.2 Liens. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or
asset of any kind (including any document or instrument in respect of goods or accounts receivable)
of Holdings or any of its Subsidiaries, whether now owned or hereafter acquired, or any income or
profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing
statement or other similar notice of any Lien with respect to any such property, asset, income or
profits under the UCC of any State or under any similar recording or notice statute, except:



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          (a) Liens in favor of Collateral Agent for the benefit of Secured Parties granted pursuant to
any Credit Document;




          (b) Liens for Taxes if obligations with respect to such Taxes are being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted;




          (c) statutory Liens of landlords, banks (and rights of set-off), of carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other than any such
Lien imposed pursuant to Section 430(k) of the Internal Revenue Code or ERISA or a violation of
Section 436 of the Internal Revenue Code), in each case incurred in the ordinary course of business
(i) for amounts not yet overdue or (ii) for amounts that are overdue and that (in the case of any
such amounts overdue for a period in excess of five days) are being contested in good faith by
appropriate proceedings, so long as such reserves or other appropriate provisions, if any, as shall
be required by GAAP shall have been made for any such contested amounts;




          (d) Liens incurred in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money or other Indebtedness), so long as no
foreclosure, sale or similar proceedings have been commenced with respect to any portion of the
Collateral on account thereof;




          (e) easements, rights-of-way, restrictions, encroachments, and other minor defects or
irregularities in title, in each case which do not and will not interfere in any material respect
with the ordinary conduct of the business of Holdings or any of its Subsidiaries;




          (f) any interest or title of a lessor, sublessor, lessee or sub-lessee under any lease of real
estate permitted hereunder;




          (g) Liens solely on any cash earnest money deposits made by Holdings or any of its
Subsidiaries in connection with any letter of intent or purchase agreement entered into by it as
permitted hereunder;




          (h) purported Liens evidenced by the filing of precautionary UCC financing statements relating
solely to operating leases of personal property entered into in the ordinary course of business;




          (i) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods;




          (j) any zoning or similar law or right reserved to or vested in any governmental office or
agency to control or regulate the use of any real property;




          (k) licenses of patents, trademarks and other intellectual property rights granted by Holdings
or any of its Subsidiaries in the ordinary course of business and not interfering in any respect
with the ordinary conduct of the business of Company or such Subsidiary;




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          (l) Liens described in Schedule 6.2;




          (m) Liens securing Indebtedness permitted pursuant to Section 6.1(k), 6.1(l) and 6.1(v);
provided, any such Lien shall encumber only the asset acquired with the proceeds of such
Indebtedness;




          (n) Liens on assets acquired pursuant to a Permitted Acquisition, so long as such Liens were
not created in anticipation of such Permitted Acquisition; and




          (o) Liens in replacement of any of the foregoing to the extent that they do not cover
additional property or secure additional obligations than the Liens which they replace.




     6.3 Equitable Lien. If any Credit Party or any of its Subsidiaries shall create or assume any
Lien upon any of its properties or assets, whether now owned or hereafter acquired, other than
Permitted Liens, it shall make or cause to be made effective provisions whereby the Obligations
will be secured by such Lien equally and ratably with any and all other Indebtedness secured
thereby as long as any such Indebtedness shall be so secured; provided, notwithstanding the
foregoing, this covenant shall not be construed as a consent by Requisite Lenders to the creation
or assumption of any such Lien not otherwise permitted hereby.



     6.4 No Further Negative Pledges. Except with respect to (a) specific property encumbered to
secure payment of particular Indebtedness or to be sold pursuant to an executed agreement with
respect to a permitted Asset Sale and (b) restrictions by reason of customary provisions
restricting assignments, subletting or other transfers contained in leases, licenses and similar
agreements entered into in the ordinary course of business (provided that such restrictions
are limited to the property or assets secured by such Liens or the property or assets subject to
such leases, licenses or similar agreements, as the case may be) no Credit Party nor any of its
Subsidiaries shall enter into any agreement prohibiting the creation or assumption of any Lien upon
any of its properties or assets, whether now owned or hereafter acquired.



     6.5 Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any
Restricted Junior Payment except the following shall be permitted:



          (a) [Reserved];




          (b) [Reserved];




          (c) So long as no Default or Event of Default shall have occurred and be continuing or shall
be caused thereby, Company may make regularly scheduled payments of interest on any Take Out
Securities; provided that (i) the aggregate amount of any such interest payments shall not
exceed $10,000,000 in any Fiscal Year and (ii) at the time of such Restricted Junior Payment, and
after giving
effect thereto, Company shall be in pro forma compliance with the covenants set forth in
Section 6.8 as of the last day of the most recently ended Fiscal Quarter after giving effect to
such payments;




          (d) [Reserved];




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          (e) Subsidiaries of Company may make Restricted Junior Payments by way of dividends to its
shareholders proportionate to their respective holdings;




          (f) Holdings may make regularly scheduled payments in respect of (i) Permitted Seller Notes in
accordance with the terms of, and only to the extent required by, and subject to the subordination
provisions contained in, the agreement pursuant to which such Permitted Seller Notes were issued or
were otherwise subject, and (ii) Earn-Out Obligations in accordance with the terms of, and only to
the extent required by, and subject to the subordination provisions contained in, the documents
related to the relevant Permitted Acquisition;




          (g) Company and any of its Subsidiaries may issue Indebtedness pursuant to Section 6.1(p) and
may make regularly scheduled payments in respect of such Indebtedness and Company and its
Subsidiaries may make Restricted Junior Payments to make a Permitted Acquisition of a portion or
all of the Capital Stock of a Permitted Partially-Owned Subsidiary; provided that (i) the
aggregate amount of such Restricted Junior Payments do not exceed $750,000 in any Fiscal Year, and
(ii) the aggregate principal amount of any such Indebtedness outstanding pursuant to Section 6.1(p)
does not exceed at any time $5,000,000 in the aggregate;




          (h) Company may make Restricted Junior Payments to Holdings to the extent required to enable
Holdings (i) to make scheduled payments of principal and interest on the Permitted Seller Notes and
(ii) to make payments on Earn-Out Obligations in accordance with the terms of, and only to the
extent required by, the documents related to the relevant Permitted Acquisition, so long as
Holdings applies the amount of any such Restricted Junior Payment for such purpose;
provided, that at the time of such Restricted Junior Payment pursuant to this clause (h)
and immediately after giving effect thereto, no Event of Default shall have occurred and be
continuing under Section 8.1(a), Section 8.1(c) or Section 8.1(e);




          (i) Company and the Guarantor Subsidiaries may make Restricted Junior Payments that are
regularly scheduled interest payments on Permitted Unsecured Indebtedness; provided, that
at the time of such Restricted Junior Payment pursuant to this clause (i) and immediately after
giving effect thereto, no Event of Default shall have occurred and be continuing;




          (j) Holdings may repurchase shares of Capital Stock of Holdings held by officers and employees
of Holdings and its Subsidiaries upon the termination of the employment of such officers and
employees; provided, however, that the amount of such repurchase shall not exceed
in any Fiscal Year the sum of (1) $5,000,000 plus (2) the unutilized portion of such
$5,000,000 from the immediately preceding Fiscal Year;




          (k) Company may make Restricted Junior Payments to Holdings to the extent required to enable
Holdings to make the repurchases permitted pursuant to Section 6.5(j), so long as Holdings applies
the amount of any such Restricted Junior Payment for such purpose;




          (l) [Reserved];




          (m) so long as no Default or Event of Default shall have occurred and be continuing or shall
be caused thereby, Company may make Restricted Junior Payments to Holdings, to the extent necessary
to permit Holdings to pay reasonable general administrative costs and expenses and (ii) to the
extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and
its




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Subsidiaries, in each case so long as Holdings applies the amount of any such Restricted Junior
Payment for such purpose;




          (n) [Reserved];




          (o) Company or any of its Subsidiaries may purchase any additional portion, or all, of the
Capital Stock of any Permitted Partially-Owned Subsidiary in accordance with Section 6.9(h); and




          (p) so long as no Default or Event of Default shall have occurred and be continuing or shall
be caused thereby, Holdings may, without limiting the basket set forth in Section 6.5(j),
repurchase shares of Capital Stock of Holdings; provided, however, that the amount
of such repurchase shall not exceed (1) $35,000,000 at any time if the Leverage Ratio at the time
of such repurchase and after giving effect thereto is greater than or equal to 2.00:1.00, (2)
$75,000,000 at any time if the Leverage Ratio at the time of such repurchase and after giving
effect thereto is less than 2.00:1.00 but greater than or equal to 1.00:1.00 or (3) $125,000,000 at
any time if the Leverage Ratio at the time of such repurchase and after giving effect thereto is
less than 1.00:1.00.




     6.6 Restrictions on Subsidiary Distributions. Except as provided herein, no Credit Party shall,
nor shall it permit any of its Subsidiaries to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the ability of any
Subsidiary of Company to (a) pay dividends or make any other distributions on any of such
Subsidiary’s Capital Stock owned by Company or any other Subsidiary of Company, (b) repay or prepay
any Indebtedness owed by such Subsidiary to Company or any other Subsidiary of Company, (c) make
loans or advances to Company or any other Subsidiary of Company, or (d) transfer any of its
property or assets to Company or any other Subsidiary of Company other than restrictions (i) in
agreements evidencing Indebtedness permitted by Section 6.1(k), Section 6.1(l) and Section 6.1(o)
that impose restrictions on the transfer of property so acquired or securing such Indebtedness and
(ii) by reason of customary provisions restricting assignments, subletting or other transfers
contained in leases, licenses, joint venture agreements and similar agreements entered into in the
ordinary course of business, and (iii) that are or were created by virtue of any transfer of,
agreement to transfer or option or right with respect to any property, assets or Capital Stock not
otherwise prohibited under this Agreement.



     6.7 Investments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly
or indirectly, make or own any Investment in any Person, including without limitation any Joint
Venture, except:



          (a) [Reserved];




          (b) Cash Equivalents;




          (c) (i) equity Investments owned as of the Closing Date in any Subsidiary and (ii) Investments
made after the Closing Date in any Domestic Subsidiary of Company that is, after giving effect to
such Investment, a Guarantor Subsidiary;




          (d) Investments (i) in accounts receivable arising and trade credit granted in the ordinary
course of business and in any Securities received in satisfaction or partial satisfaction thereof




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from financially troubled account debtors and (ii) deposits, prepayments and other credits to
suppliers made in the ordinary course of business consistent with the past practices of Holdings
and its Subsidiaries;




          (e) intercompany loans to the extent permitted under Section 6.1(b);




          (f) Investments that constitute Permitted Acquisitions permitted pursuant to Section 6.9;




          (g) loans and advances to employees of Holdings and its Subsidiaries made in the ordinary
course of business, including to purchase Capital Stock of Holdings, in an aggregate principal
amount not to exceed $5,000,000 at any one time outstanding; provided, however,
that the amount allocable to loans and advances to purchase Capital Stock of Holdings shall not
exceed $1,000,000 in the aggregate; provided, further, however, that the
proceeds received by Holdings of such purchase of Holdings’ Capital Stock, shall be used by
Holdings to acquire Capital Stock of Company or otherwise used to make a common equity contribution
to Company or to repay loans or advances made to Holdings by Company pursuant to Section 6.7(i);




          (h) Investments in Permitted Partially-Owned Subsidiaries, subject to no Event of Default
having occurred and be continuing or that would result therefrom (including, for the avoidance of
doubt, pursuant to Section 6.15 hereof);




          (i) loans and advances from Company to Holdings to permit Holdings to make payments
contemplated to be made pursuant to Section 6.5 hereof;




          (j) in connection with a Specified Acquisition, non-cash loans and non-cash advances (that are
reflected as receivables on the consolidated balance sheet of Holdings) made to Permitted
Transferees to purchase the Capital Stock of the target company of such Specified Acquisition (or,
subject to such sale, assignment or transfer not being a Change of Control or a Default hereunder,
any entity into which the target company of such Specified Acquisition is merged or into which
substantially all of the assets of the target company of such Specified Acquisition are acquired);
provided that unless the surviving company or the entity acquiring substantially all of the
assets of the target company is not already a Guarantor Subsidiary or a Permitted Partially-Owned
Subsidiary, Company shall designate such Person (if a Domestic Subsidiary) as a Permitted
Partially-Owned Subsidiary;




          (k) Investments described in Schedule 6.7;




          (l) Investments related to Company’s acquisition of Pet DRx Corporation;




          (m) Investments not to exceed $200,000,000 at any time outstanding (net of return of capital
or repayments of principal actually received, in each case in cash, with respect to any such
Investments (which amount shall not exceed, for purposes of determining the availability of
the above amount, the original cost of such Investment)) made after the Closing Date in Foreign
Subsidiaries in Canada or the United Kingdom, provided that (i) the above amount will be
reduced by the amount of any Permitted Acquisitions made of Foreign Subsidiaries in the United
Kingdom or Canada pursuant to Section 6.9(h) and (ii) to the extent that Investments in Foreign
Subsidiaries in Canada or the United Kingdom are made in the form of shares of common stock of
Holdings not otherwise




85









 







prohibited by the Credit Documents, then the value of such shares of common
stock of Holdings shall not be counted against the above amount; and




          (n) other Investments in an aggregate amount not to exceed at any time $60,000,000;
provided that to the extent that such Investments are made in the form of shares of common
stock of Holdings not otherwise prohibited by the Credit Documents, then the value of such shares
of common stock of Holdings shall not be counted against the above amount.




     6.8 Financial Covenants.



          (a) [Reserved].




          (b) Fixed Charge Coverage Ratio. Company shall not permit the Fixed Charge Coverage
Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending September
30, 2010, to be less than 1.20:1.00.




          (c) Leverage Ratio. Company shall not permit the Leverage Ratio as of the last day of
any Fiscal Quarter, beginning with the Fiscal Quarter ending September 30, 2010, to exceed
3.00:1.00.




          (d) [Reserved].




          (e) [Reserved].




          (f) Certain Calculations. With respect to any period during which a Permitted
Acquisition or an Asset Sale has occurred (each, a “Subject Transaction”), for purposes of
determining compliance with the financial covenants set forth in this Section 6.8, Consolidated
Adjusted EBITDA shall be calculated with respect to such period on a pro forma basis (including pro
forma adjustments arising out of events which are directly attributable to a specific transaction,
are factually supportable and are expected to have a continuing impact, in each case determined on
a basis consistent with Article 11 of Regulation S-X promulgated under the Securities Act and as
interpreted by the staff of the Securities and Exchange Commission, which would include cost
savings resulting from head count reduction, closure of facilities and similar restructuring
charges, which pro forma adjustments shall be certified by the chief financial officer of Company)
using the historical audited financial statements, to the extent available, of any business so
acquired or to be acquired or sold or to be sold and the consolidated financial statements of
Holdings and its Subsidiaries which shall be reformulated as if such Subject Transaction, and any
Indebtedness incurred or repaid in connection therewith, had been consummated or incurred or repaid
at the beginning of such period (and assuming that such Indebtedness bears interest during any
portion of the applicable measurement period prior to the relevant acquisition at the weighted
average of the interest rates applicable to outstanding Loans
incurred during such period); provided, however, calculations of pro forma
Consolidated Adjusted EBITDA with respect to a Permitted Acquisition, the aggregate consideration
for which constitutes $10,000,000 or less, shall be based on reasonable estimations made by Company
of such pre-acquisition EBITDA based on actual pre-acquisition revenues; provided,
further that, such Consolidated Adjusted EBITDA shall not exceed in such case 22% of such
actual pre-acquisition revenues.





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     6.9 Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it
permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or
liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one transaction
or a series of transactions, all or any part of its business, assets or property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now owned
or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other
acquisitions of inventory, materials and equipment in the ordinary course of business) the
business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any
Person or any division or line of business or other business unit of any Person, except:



          (a) any Subsidiary of Holdings may be merged with or into Company or any Guarantor Subsidiary,
or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may
be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of
transactions, to Company or any Guarantor Subsidiary; provided, in the case of such a
merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving
Person;




          (b) sales or other dispositions of assets that do not constitute Asset Sales;




          (c) Asset Sales, the proceeds of which (valued at (x) the principal amount thereof in the case
of non-Cash proceeds consisting of notes or other debt Securities, (y) fair market value in the
case of other non-Cash proceeds or (z) with respect to Asset Sales in connection with Permitted
Subsidiary Dropdowns, the greater of the fair market value of the assets so transferred and any
Cash proceeds actually received) when aggregated with the proceeds of all other Asset Sales (other
than sales and lease backs) made within the same Fiscal Year, are less than $20,000,000;
provided (1) the consideration received for such assets shall be in an amount at least
equal to the fair market value thereof (determined in good faith by the board of directors of
Company (or similar governing body)), (2) other than with respect to Asset Sales in connection with
Permitted Subsidiary Dropdowns, no less than 80% thereof shall be paid in Cash, and (3) the Net
Asset Sale Proceeds thereof shall be applied as required by Section 2.13(a);




          (d) leases and subleases (as lessor or sublessor) of real property to third parties at
reasonable rents, taking into consideration any services provided by lessee or sublessee, in an
aggregate amount not to exceed $1,000,000 in any Fiscal Year;




          (e) [Reserved];




          (f) disposals of obsolete, worn out, redundant or surplus property;




          (g) sales, assignments or other dispositions by Company and any of its Subsidiaries of Capital
Stock to Permitted Transferees in connection with Specified Acquisitions to the extent not
otherwise prohibited hereunder and so long as the proviso in Section 6.7(j) (to the extent
applicable) is complied with;




          (h) Permitted Acquisitions; provided, however, that (i) with respect to any
Permitted Acquisitions of entities outside of the United States, such Permitted Acquisitions shall
be limited to entities in the United Kingdom and Canada and shall not exceed $200,000,000 in the




87









 







aggregate, (ii) the threshold for Permitted Acquisitions of Persons in the United Kingdom and
Canada above will be reduced by the amount of any outstanding Investments made in Foreign
Subsidiaries in the United Kingdom or Canada pursuant to Section 6.7(m) and (iii) to the extent
that any consideration for Permitted Acquisitions is in the form of shares of common stock of
Holdings not otherwise prohibited by the Credit Documents, then the value of such shares of common
stock shall not be counted against the above amount; and




          (i) sales and lease backs permitted pursuant to Section 6.11; and




          (j) Investments made in accordance with Section 6.7.




     6.10 Disposal of Subsidiary Interests. Except for any sale of interests in the Capital Stock of
any of its Subsidiaries in compliance with the provisions of Section 6.9, no Credit Party shall,
(a) directly or indirectly sell, assign, pledge or otherwise encumber or dispose of any Capital
Stock of any of its Subsidiaries, except to qualify directors if required by applicable law; or
(b) permit any of its Subsidiaries directly or indirectly to sell, assign, pledge or otherwise
encumber or dispose of any Capital Stock of any of its Subsidiaries, except to another Credit Party
(subject to the restrictions on such disposition otherwise imposed hereunder), or to qualify
directors if required by applicable law.



     6.11 Sales and Lease-Backs. No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with
respect to any lease of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, which such Credit Party (a) has sold or transferred or is to sell or to
transfer to any other Person (other than Holdings or any of its Subsidiaries), or (b) intends to
use for substantially the same purpose as any other property which has been or is to be sold or
transferred by such Credit Party to any Person (other than Holdings or any of its Subsidiaries) in
connection with such lease; provided, however, that Company and its Subsidiaries may sell and
lease-back real estate assets without limitation provided, notwithstanding anything to the contrary
set forth in this Agreement, that any proceeds received from such sale and lease back transactions
in excess of $25,000,000 in the aggregate in any Fiscal Year shall be used to prepay (no later than
the third Business Day following the date of receipt of such proceeds) the Loans in accordance with
Section 2.l4(b).



     6.12 Transactions with Shareholders and Affiliates. No Credit Party shall, nor shall it permit any
of its Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction
(including the purchase, sale, lease or exchange of any
property or the rendering of any service) with any holder of 10% or more of any class of
Capital Stock of Holdings or any of its Subsidiaries or with any Affiliate of Holdings or of any
such holder, on terms that are less favorable to Holdings or that Subsidiary, as the case may be,
than those that might be obtained at the time from a Person who is not such a holder or Affiliate;
provided, the foregoing restriction shall not apply to (a) any transaction between
Holdings, Company and any Subsidiary; (b) reasonable and customary fees paid to members of the
board of directors (or similar governing body) of Holdings and its Subsidiaries; (c) compensation
and management equity arrangements for officers and other employees of Holdings and its
Subsidiaries entered into in the ordinary course of business; (d) payment of Transaction Costs to
the extent such payments are made to any holder of 10% or more of any class of Capital Stock of
Holdings or any of its Subsidiaries or to any Affiliate of Holdings or of any such holder; and (e)
sales or purchases by Company or any of its Subsidiaries of the Capital Stock of a Subsidiary of
Company; provided, that with respect to such sales, Company designates such Subsidiary a
Permitted Partially-



88









 




Owned Subsidiary, and, with respect to such purchases, such purchases are
permitted pursuant to Sections 6.1(p) and 6.5(g).




     6.13 Conduct of Business. From and after the Closing Date, no Credit Party shall, nor shall it
permit any of its Subsidiaries to, engage in any business other than (i) the businesses engaged in
by such Credit Party on the Closing Date and businesses or lines of businesses the same as,
related, complementary or ancillary to, the business in which such Credit Party is engaged as of
the Closing Date and (ii) such other lines of business as may be consented to by Requisite Lenders.



     6.14 Permitted Activities of Holdings. Notwithstanding anything to the contrary contained herein,
Holdings shall not (a) incur, directly or indirectly, any Indebtedness or any other obligation or
liability whatsoever other than the Indebtedness and obligations permitted to be incurred by
Holdings under Section 6.1 (including, without limitation, Indebtedness and obligations owing to
Company, Permitted Seller Notes and Earn-Out Obligations and Indebtedness and obligations set forth
on Schedule 6.1 for which Holdings is obligor as of the Closing Date), obligations to pay
Transaction Costs and obligations for Taxes and administrative costs and expenses as contemplated
on Sections 6.5(l) and 6.5(m); (b) create or suffer to exist any Lien upon any property or assets
now owned or hereafter acquired by it other than the Liens created under the Collateral Documents
to which it is a party or permitted pursuant to Section 6.2; (c) engage in any business or activity
or own any assets other than (i) holding 100% of the Capital Stock of Company, (ii) performing its
obligations under Permitted Seller Notes and Earn-Out Obligations and for Taxes and administrative
costs and expenses as contemplated by Sections 6.5(l) and 6.5(m); (iii) making Restricted Junior
Payments and Investments to the extent not prohibited by this Agreement; (iv) entering into
confidentiality and non-disclosure agreements entered into in the ordinary course of business and
(v) performing its obligations and activities incidental to the foregoing to the extent not
prohibited under the Credit Documents; (d) consolidate with or merge with or into, or convey,
transfer or lease all or substantially all its assets to, any Person; (e) sell or otherwise dispose
of any Capital Stock of any of its Subsidiaries except to the extent permitted by Section 6.9; (f)
create or acquire any Subsidiary or make or own any Investment in any Person other than Company and
other than as permitted under Section 6.7(g); or (g) fail to hold itself out to the public as a
legal entity separate and distinct from all other Persons.



     6.15 Permitted Partially-Owned Subsidiaries. At no time shall the total portion of Consolidated
Adjusted EBITDA contributed by all Subsidiaries constituting Permitted Partially-Owned Subsidiaries
(irrespective of whether or not Guarantor Subsidiaries) exceed 15% of Consolidated Adjusted EBITDA.



     6.16 Amendments or Waivers with respect to Subordinated Indebtedness and Permitted Unsecured
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, amend or
otherwise change the terms of any Subordinated Indebtedness or any Permitted Unsecured Indebtedness
in any manner that is, in the good faith and reasonable determination of Company, adverse in any
material respect to the interests of the Lenders.



     6.17 Designation of “Senior Indebtedness”. Company shall not designate any Indebtedness (other
than the Obligations) as “Senior Indebtedness” or similar term for purposes of any Subordinated
Indebtedness without the prior written consent of Requisite Lenders.



89









 





     6.18 Fiscal Year. No Credit Party shall, nor shall it permit any of its Subsidiaries to, change
its Fiscal Year-end from December 31.



SECTION 7. GUARANTY




     7.1 Guaranty of the Obligations. Subject to the provisions of Section 7.2, Guarantors jointly and
severally hereby irrevocably and unconditionally guaranty to Administrative Agent for the ratable
benefit of the Beneficiaries the due and punctual payment in full of all Obligations when the same
shall become due, whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. 362(a)) (collectively, the “Guaranteed
Obligations”).



     7.2 Contribution by Guarantors. All Guarantors desire to allocate among themselves (collectively,
the “Contributing Guarantors”), in a fair and equitable manner, their obligations arising under
this Guaranty. Accordingly, in the event any payment or distribution is made on any date by a
Guarantor (a “Funding Guarantor”) under this Guaranty that exceeds its Fair Share as of such date,
such Funding Guarantor shall be entitled to a contribution from each of the other Contributing
Guarantors in the amount of such other Contributing Guarantor’s Fair Share Shortfall as of such
date, with the result that all such contributions will cause each Contributing Guarantor’s
Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (a) the ratio of (i) the
Fair Share Contribution Amount with respect to such Contributing Guarantor to (ii) the aggregate of
the Fair Share Contribution Amounts with
respect to all Contributing Guarantors multiplied by (b) the aggregate amount paid or
distributed on or before such date by all Funding Guarantors under this Guaranty in respect of the
obligations Guaranteed. “Fair Share Shortfall” means, with respect to a Contributing Guarantor as
of any date of determination, the excess, if any, of the Fair Share of such Contributing Guarantor
over the Aggregate Payments of such Contributing Guarantor. “Fair Share Contribution Amount”
means, with respect to a Contributing Guarantor as of any date of determination, the maximum
aggregate amount of the obligations of such Contributing Guarantor under this Guaranty that would
not render its obligations hereunder or thereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of Title 11 of the United States Code or any comparable applicable
provisions of state law; provided, solely for purposes of calculating the “Fair Share
Contribution Amount” with respect to any Contributing Guarantor for purposes of this Section 7.2,
any assets or liabilities of such Contributing Guarantor arising by virtue of any rights to
subrogation, reimbursement or indemnification or any rights to or obligations of contribution
hereunder shall not be considered as assets or liabilities of such Contributing Guarantor.
“Aggregate Payments” means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (1) the aggregate amount of all payments and distributions made
on or before such date by such Contributing Guarantor in respect of this Guaranty (including,
without limitation, in respect of this Section 7.2), minus (2) the aggregate amount of all
payments received on or before such date by such Contributing Guarantor from the other Contributing
Guarantors as contributions under this Section 7.2. The amounts payable as contributions hereunder
shall be determined as of the date on which the related payment or distribution is made by the
applicable Funding Guarantor. The allocation among Contributing Guarantors of their obligations as
set forth in this Section 7.2 shall not be construed in any way to limit the liability of any
Contributing Guarantor hereunder. Each Guarantor is a third party beneficiary to the contribution
agreement set forth in this Section 7.2.



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     7.3 Payment by Guarantors. Subject to Section 7.2, Guarantors hereby jointly and severally agree,
in furtherance of the foregoing and not in limitation of any other right which any Beneficiary may
have at law or in equity against any Guarantor by virtue hereof, that upon the failure of Company
to pay any of the Guaranteed Obligations when and as the same shall become due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts
that would become due but for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. § 362(a)), Guarantors will upon demand pay, or cause to be paid, in
Cash, to Administrative Agent for the ratable benefit of Beneficiaries, an amount equal to the sum
of the unpaid principal amount of all Guaranteed Obligations then due as aforesaid, accrued and
unpaid interest on such Guaranteed Obligations (including interest which, but for Company’s
becoming the subject of a case under the Bankruptcy Code, would have accrued on such Guaranteed
Obligations, whether or not a claim is allowed against Company for such interest in the related
bankruptcy case) and all other Guaranteed Obligations then owed to Beneficiaries as aforesaid.



     7.4 Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder are
irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance
which constitutes a legal or equitable discharge of a guarantor or surety other than payment in
full of the Guaranteed Obligations. In
furtherance of the foregoing and without limiting the generality thereof, each Guarantor
agrees as follows:



          (a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty
is a primary obligation of each Guarantor and not merely a contract of surety;




          (b) Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default
notwithstanding the existence of any dispute between Company and any Beneficiary with respect to
the existence of such Event of Default;




          (c) the obligations of each Guarantor hereunder are independent of the obligations of Company
and the obligations of any other guarantor (including any other Guarantor) of the obligations of
Company, and a separate action or actions may be brought and prosecuted against such Guarantor
whether or not any action is brought against Company or any of such other guarantors and whether or
not Company is joined in any such action or actions;




          (d) payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall in
no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the Guaranteed
Obligations which has not been paid. Without limiting the generality of the foregoing, if
Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant
to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such
Guarantor from its covenant to pay the portion of the Guaranteed Obligations that is not the
subject of such suit, and such judgment shall not, except to the extent satisfied by such
Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of
the Guaranteed Obligations;




          (e) any Beneficiary, upon such terms as it deems appropriate, without notice or demand and
without affecting the validity or enforceability hereof or giving rise to any reduction,
limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time
to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change
the time,




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place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise,
release or discharge, or accept or refuse any offer of performance with respect to, or
substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate
the payment of the same to the payment of any other obligations; (iii) request and accept other
guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the
Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind,
waive, alter, subordinate or modify, with or without consideration, any security for payment of the
Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation
of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v)
enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in
respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against any such security, in
each case as such Beneficiary in its discretion may determine consistent herewith or the applicable
Hedge Agreement or Specified Cash Management Arrangement and any applicable security agreement,
including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales,
whether or not every aspect of any such sale is commercially reasonable, and even though such
action operates to impair or extinguish any right of reimbursement or subrogation or other right or
remedy of any Guarantor against Company or
any security for the Guaranteed Obligations; and (vi) exercise any other rights available to
it under the Credit Documents, the Hedge Agreements or the Specified Cash Management Arrangements;
and




          (f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable
and shall not be subject to any reduction, limitation, impairment, discharge or termination for any
reason (other than payment in full of the Guaranteed Obligations), including the occurrence of any
of the following, whether or not any Guarantor shall have had notice or knowledge of any of them:
(i) any failure or omission to assert or enforce or agreement or election not to assert or enforce,
or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or
enforcement of, any claim or demand or any right, power or remedy (whether arising under the Credit
Documents, the Hedge Agreements or the Specified Cash Management Arrangements, at law, in equity or
otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with
respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii)
any rescission, waiver, amendment or modification of, or any consent to departure from, any of the
terms or provisions (including provisions relating to events of default) hereof, any of the other
Credit Documents, any of the Hedge Agreements, any of the Specified Cash Management Arrangements or
any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the
Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such
Credit Document, such Hedge Agreement, such Specified Cash Management Arrangement or any agreement
relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement
relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect;
(iv) the application of payments received from any source (other than payments received pursuant to
the other Credit Documents, any of the Hedge Agreements, or any of the Specified Cash Management
Arrangements or from the proceeds of any security for the Guaranteed Obligations, except to the
extent such security also serves as collateral for indebtedness other than the Guaranteed
Obligations) to the payment of indebtedness other than the Guaranteed Obligations, even though any
Beneficiary might have elected to apply such payment to any part or all of the Guaranteed
Obligations; (v) any Beneficiary’s consent to the change, reorganization or termination of the
corporate structure or existence of Holdings or any of its Subsidiaries and to any corresponding
restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of
a




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security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any
defenses, set-offs or counterclaims which Company may allege or assert against any Beneficiary in
respect of the Guaranteed Obligations, including failure of consideration, breach of warranty,
payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii)
any other act or thing or omission, or delay to do any other act or thing, which may or might in
any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the
Guaranteed Obligations.




     7.5 Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of Beneficiaries: (a)
any right to require any Beneficiary, as a condition of payment or performance by such Guarantor,
to (i) proceed against Company, any other guarantor (including any other Guarantor) of the
Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security held from
Company, any such other guarantor or any other Person, (iii) proceed against or have resort to any
balance of any Deposit Account or credit on the books of any Beneficiary in favor of Company or any
other Person, or (iv) pursue any other remedy in the power of any Beneficiary whatsoever; (b) any
defense arising by reason of the incapacity, lack of authority or any disability or other defense
of Company or any other
Guarantor including any defense based on or arising out of the lack of validity or the
unenforceability of the Guaranteed Obligations or any agreement or instrument relating thereto or
by reason of the cessation of the liability of Company or any other Guarantor from any cause other
than payment in full of the Guaranteed Obligations; (c) any defense based upon any statute or rule
of law which provides that the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal; (d) any defense based upon any Beneficiary’s
errors or omissions in the administration of the Guaranteed Obligations, except behavior which
amounts to bad faith; (e) (i) any principles or provisions of law, statutory or otherwise, which
are or might be in conflict with the terms hereof and any legal or equitable discharge of such
Guarantor’s obligations hereunder, (ii) the benefit of any statute of limitations affecting such
Guarantor’s liability hereunder or the enforcement hereof, (iii) any rights to set-offs,
recoupments and counterclaims, and (iv) promptness, diligence and any requirement that any
Beneficiary protect, secure, perfect or insure any security interest or lien or any property
subject thereto; (f) notices, demands, presentments, protests, notices of protest, notices of
dishonor and notices of any action or inaction, including acceptance hereof, notices of default
hereunder, the Hedge Agreements, the Specified Cash Management Arrangements or any agreement or
instrument related thereto, notices of any renewal, extension or modification of the Guaranteed
Obligations or any agreement related thereto, notices of any extension of credit to Company and
notices of any of the matters referred to in Section 7.4 and any right to consent to any thereof;
and (g) any defenses or benefits that may be derived from or afforded by law which limit the
liability of or exonerate guarantors or sureties, or which may conflict with the terms hereof.



     7.6 Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed Obligations shall
have been indefeasibly paid in full and the Revolving Commitments shall have terminated, each
Guarantor hereby waives any claim, right or remedy, direct or indirect, that such Guarantor now has
or may hereafter have against Company or any other Guarantor or any of its assets in connection
with this Guaranty or the performance by such Guarantor of its obligations hereunder, in each case
whether such claim, right or remedy arises in equity, under contract, by statute, under common law
or otherwise and including without limitation (a) any right of subrogation, reimbursement or
indemnification that such Guarantor now has or may hereafter have against Company with respect to
the Guaranteed Obligations, (b) any right to enforce, or to participate in, any claim, right or
remedy that any Beneficiary now has or may hereafter have against Company, and (c)



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any benefit of,
and any right to participate in, any collateral or security now or hereafter held by any
Beneficiary. In addition, until the Guaranteed Obligations shall have been indefeasibly paid in
full and the Revolving Commitments shall have terminated each Guarantor shall withhold exercise of
any right of contribution such Guarantor may have against any other guarantor (including any other
Guarantor) of the Guaranteed Obligations, including, without limitation, any such right of
contribution as contemplated by Section 7.2. Each Guarantor further agrees that, to the extent the
waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification
such Guarantor may have against Company or against any collateral or security, and any rights of
contribution such Guarantor may have against any such other guarantor, shall be junior and
subordinate to any rights any Beneficiary may have against Company, to all right, title and
interest any Beneficiary may have in any such collateral or security, and to any right any
Beneficiary may have against such other guarantor. If any amount shall be paid to any Guarantor on
account of any such subrogation, reimbursement, indemnification or contribution rights at any time
when all Guaranteed Obligations shall not have been
paid in full, such amount shall be held in trust for Administrative Agent on behalf of
Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of
Beneficiaries to be credited and applied against the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms hereof.




     7.7 Subordination of Other Obligations. Any Indebtedness of Company or any Guarantor now or
hereafter held by any Guarantor or Company (such holder of Indebtedness, the “Obligee Credit
Party”) is hereby subordinated in right of payment to the Obligations (if the Obligee Credit Party
is Company) and the Guaranteed Obligations (if the Obligee Credit Party is a Guarantor), and any
such indebtedness collected or received by the Obligee Credit Party after an Event of Default has
occurred and is continuing shall be held in trust for Administrative Agent on behalf of
Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of
Beneficiaries to be credited and applied against the Obligations or the Guaranteed Obligations, as
the case may be but without affecting, impairing or limiting in any manner the liability of the
Obligee Credit Party under any other provision hereof.



     7.8 Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect until
all of the Guaranteed Obligations shall have been finally and indefeasibly paid in full and the
Revolving Commitments shall have terminated. Each Guarantor hereby irrevocably waives any right to
revoke this Guaranty as to future transactions giving rise to any Guaranteed Obligations.



     7.9 Authority of Guarantors or Company. It is not necessary for any Beneficiary to inquire into
the capacity or powers of any Guarantor or Company or the officers, directors or any agents acting
or purporting to act on behalf of any of them.



     7.10 Financial Condition of Company. Any Credit Extension may be made to Company or continued from
time to time, any Hedge Agreements and any Specified Cash Management Arrangements may be entered
into from time to time, in each case without notice to or authorization from any Guarantor
regardless of the financial or other condition of Company at the time of any such grant or
continuation or at the time such Hedge Agreement or Specified Cash Management Arrangement is
entered into, as the case may be. No Beneficiary shall have any obligation to disclose or discuss
with any Guarantor its assessment, or any Guarantor’s assessment, of the financial



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condition of
Company. Each Guarantor has adequate means to obtain information from Company on a continuing
basis concerning the financial condition of Company and its ability to perform its obligations
under the Credit Documents, the Specified Cash Management Arrangements and the Hedge Agreements,
and each Guarantor assumes the responsibility for being and keeping informed of the financial
condition of Company and of all circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations. Each Guarantor hereby waives and relinquishes any duty on the part of any Beneficiary
to disclose any matter, fact or thing relating to the business, operations or conditions of Company
now known or hereafter known by any Beneficiary.




     7.11 Bankruptcy, etc (a) So long as any Guaranteed Obligations remain outstanding, no
Guarantor shall, without the prior written consent of Administrative Agent acting pursuant to the
instructions of Requisite Lenders, commence or join with any other Person in commencing any
bankruptcy, reorganization or insolvency case or proceeding of or against Company or any other
Guarantor. The obligations of Guarantors hereunder shall not be reduced, limited, impaired,
discharged, deferred, suspended or terminated by any case or proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of
Company or any other Guarantor or by any defense which Company or any other Guarantor may have by
reason of the order, decree or decision of any court or administrative body resulting from any such
proceeding.



          (b) Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed
Obligations which accrues after the commencement of any case or proceeding referred to in clause
(a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by
operation of law by reason of the commencement of such case or proceeding, such interest as would
have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been
commenced) shall be included in the Guaranteed Obligations because it is the intention of
Guarantors and Beneficiaries that the Guaranteed Obligations which are Guaranteed by Guarantors
pursuant hereto should be determined without regard to any rule of law or order which may relieve
Company of any portion of such Guaranteed Obligations. Guarantors will permit any trustee in
bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar person
to pay Administrative Agent, or allow the claim of Administrative Agent in respect of, any such
interest accruing after the date on which such case or proceeding is commenced.




          (c) In the event that all or any portion of the Guaranteed Obligations are paid by Company,
the obligations of Guarantors hereunder shall continue and remain in full force and effect or be
reinstated, as the case may be, in the event that all or any part of such payment(s) are rescinded
or recovered directly or indirectly from any Beneficiary as a preference, fraudulent transfer or
otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed
Obligations for all purposes hereunder.




     7.12 Discharge of Guaranty Upon Sale of Guarantor. If all of the Capital Stock of any Guarantor or
any of its successors in interest hereunder shall be sold or otherwise disposed of (including by
merger or consolidation) in accordance with the terms and conditions hereof, the Guaranty of such
Guarantor or such successor in interest, as the case may be, hereunder shall automatically be
discharged and released without any further action by any Beneficiary or any other Person effective
as of the time of such Asset Sale.




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SECTION 8. EVENTS OF DEFAULT




     8.1
Events of Default. If any one or more of the following conditions or events shall occur:



          (a) Failure to Make Payments When Due. Failure by Company to pay (i) when due any
installment of principal of any Loan, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; (ii) when due any amount payable to
Issuing Bank in reimbursement of any drawing under a Letter of Credit; or (iii) any interest on any
Loan or any fee or any other amount due hereunder within five (5) days after the date due; or



          (b) Default in Other Agreements. (i) Failure of any Credit Party or any of their
respective Subsidiaries to pay when due any principal of or interest on or any other amount payable
in respect of one or more items of Indebtedness (other than Indebtedness referred to in Section
8.1(a)) in a principal amount of $10,000,000 or more, beyond the grace period, if any, provided
therefor and the holder of such Indebtedness has any rights or remedies exercisable as a result of
such failure; or (ii) breach or default by any Credit Party with respect to any other material term
of (1) one or more items of Indebtedness in the individual or aggregate principal amounts referred
to in clause (i) above or (2) any loan agreement, mortgage, indenture or other agreement relating
to such item(s) of Indebtedness, in each case beyond the grace period, if any, provided therefor,
if the effect of such breach or default is to cause, or to permit the holder or holders of that
Indebtedness (or a trustee on behalf of such holder or holders), to cause, that Indebtedness to
become or be declared due and payable (or redeemable) prior to its stated maturity or the stated
maturity of any underlying obligation, as the case may be; or



          (c) Breach of Certain Covenants. Failure of any Credit Party to perform or comply
with any term or condition contained in Section 2.5, Section 5.2 or Section 6; or



          (d) Breach of Representations, etc. Any representation, warranty, certification or
other statement made or deemed made by any Credit Party in any Credit Document or in any statement
or certificate at any time given by any Credit Party or any of its Subsidiaries in writing pursuant
hereto or thereto or in connection herewith or therewith shall be false in any material respect as
of the date made or deemed made; or



          (e) Other Defaults Under Credit Documents. Any Credit Party shall default in the
performance of or compliance with any term contained herein or any of the other Credit Documents,
other than any such term referred to in any other Section of this Section 8.1, and such default
shall not have been remedied or waived within thirty (30) days after the earlier of (i) an officer
of such Credit Party becoming aware of such default or (ii) receipt by Company of notice from
Administrative Agent or any Lender of such default; or



          (f) Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court of competent
jurisdiction shall enter a decree or order for relief in respect of Holdings or any of its
Subsidiaries (other than Immaterial Subsidiaries) in an involuntary case under the Bankruptcy Code
or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect,
which decree or order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be commenced against Holdings or
any of its Subsidiaries (other than Immaterial Subsidiaries) under the Bankruptcy Code or under any
other applicable



96









 







bankruptcy, insolvency or similar law now or hereafter in effect; or a decree or order of a
court having jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over Holdings or any of its
Subsidiaries (other than Immaterial Subsidiaries), or over all or a substantial part of its
property, shall have been entered; or there shall have occurred the involuntary appointment of an
interim receiver, trustee or other custodian of Holdings or any of its Subsidiaries (other than
Immaterial Subsidiaries) for all or a substantial part of its property; or a warrant of attachment,
execution or similar process shall have been issued against any substantial part of the property of
Holdings or any of its Subsidiaries (other than Immaterial Subsidiaries), and any such event
described in this clause (ii) shall continue for sixty (60) days without having been dismissed,
bonded or discharged; or



          (g) Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Holdings or any of its
Subsidiaries (other than Immaterial Subsidiaries) shall have an order for relief entered with
respect to it or shall commence a voluntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, or shall consent to
the entry of an order for relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial part of its property;
or Holdings or any of its Subsidiaries (other than Immaterial Subsidiaries) shall make any
assignment for the benefit of creditors; or (ii) Holdings or any of its Subsidiaries (other than
Immaterial Subsidiaries) shall be unable, or shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due; or the board of directors (or similar
governing body) of Holdings or any of its Subsidiaries (other than Immaterial Subsidiaries) (or any
committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of
the actions referred to herein or in Section 8.1(f); or



          (h) Judgments and Attachments. Any money judgment, writ or warrant of attachment or
similar process involving an amount in excess of $10,000,000 (to the extent not adequately covered
by insurance as to which a solvent and unaffiliated insurance Company has acknowledged coverage)
shall be entered or filed against Holdings or any of its Subsidiaries or any of their respective
assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60)
days (or in any event later than five days prior to the date of any proposed sale thereunder); or



          (i) Dissolution. Any order, judgment or decree shall be entered against any Credit
Party decreeing the dissolution or split up of such Credit Party and such order shall remain
undischarged or unstayed for a period in excess of thirty (30) days; or



          (j) Employee Benefit Plans. There shall occur one or more ERISA Events which
individually or in the aggregate has resulted or could reasonably be expected to result in
liability of Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in
excess of $3,500,000 during the term hereof; there shall exist one or more facts or circumstances
that might reasonably be expected to result in the imposition of a Lien pursuant to Section 430(k)
of the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan; or there shall
exist an amount of benefit liabilities (as defined in ERISA), individually or in the aggregate for
all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to
which assets exceed benefit liabilities), which exceeds $3,500,000; or



97









 





          (k) Change of Control. A Change of Control shall occur; or



          (l) Guaranties, Collateral Documents and other Credit Documents. At any time after
the execution and delivery thereof, (i) any material part of the Guaranty (taking into
consideration the joint and several obligations of Guarantors in respect of the Guaranty) for any
reason, other than the satisfaction in full of all Obligations, shall cease to be in full force and
effect (other than in accordance with its terms) or shall be declared to be null and void or any
Guarantor shall repudiate its obligations thereunder, (ii) this Agreement or any Collateral
Document ceases to be in full force and effect (other than by reason of a release of Collateral in
accordance with the terms hereof or thereof or the satisfaction in full of the Obligations in
accordance with the terms hereof) or shall be declared null and void, or Collateral Agent shall not
have or shall cease to have a valid and perfected Lien in any Collateral purported to be covered by
the Collateral Documents with the priority required by the relevant Collateral Document, in each
case for any reason other than the failure of Collateral Agent or any Secured Party to take any
action within its control, or (iii) any Credit Party shall contest the validity or enforceability
of any Credit Document in writing or deny in writing that it has any further liability, including
with respect to future advances by Lenders, under any Credit Document to which it is a party;


THEN, (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g),
automatically, and (2) upon the occurrence of any other Event of Default, at the request of (or
with the consent of) Requisite Lenders, upon notice to Company by Administrative Agent, (A) the
Revolving Commitments, if any, of each Lender having such Revolving Commitments and the obligation
of Issuing Bank to issue any Letter of Credit shall immediately terminate; (B) each of the
following shall immediately become due and payable, in each case without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly waived by each Credit
Party: (I) the unpaid principal amount of and accrued interest on the Loans, (II) an amount equal
to the Letter of Credit Usage at such time (regardless of whether any beneficiary under any such
Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or
other documents or certificates required to draw under such Letters of Credit) to be applied to the
amount of any drawings under Letters of Credit and not theretofore reimbursed by or on behalf of
Company or held as security for undrawn Letters of Credit, as applicable, and (III) all other
Obligations under the Credit Documents; provided, the foregoing shall not affect in any way
the obligations of Lenders under Section 2.3(b)(iv) or Section 2.23(e); and (C) Administrative
Agent may cause Collateral Agent to enforce any and all Liens and security interests created
pursuant to Collateral Documents.



Notwithstanding any of the foregoing to the contrary set forth herein, it shall not constitute an
Event of Default hereunder if any of the circumstances described above in Sections 8.1(f), 8.1(g),
8.1(i) and 8.1(l) shall have occurred with respect to one or more Subsidiaries of Company which in
the aggregate do not account for more than 2.50% of Company’s total Consolidated Adjusted EBITDA
for the four-Fiscal Quarter period most recently ended.




SECTION 9. AGENTS




     9.1
Appointment of Agents. Wells Fargo and Bank of America are hereby appointed Joint Lead
Arrangers, Bank of America is hereby appointed Syndication Agent, and JPMorgan Chase Bank, N.A.,
U.S. Bank National Association. and Union Bank, N.A. are each hereby appointed as Co-Documentation
Agents hereunder, and each Lender hereby authorizes Lead Arrangers, Syndication



98









 







Agent and Co-Documentation Agents to act as its agents in accordance with the terms hereof and
the other Credit Documents. Wells Fargo is hereby appointed Administrative Agent and Collateral
Agent hereunder and under the other Credit Documents and each Lender hereby authorizes
Administrative Agent and Collateral Agent to act as its agent in accordance with the terms hereof
and the other Credit Documents. Each Agent hereby agrees to act upon the express conditions
contained herein and the other Credit Documents, as applicable. The provisions of this Section 9
are solely for the benefit of Agents and Lenders and no Credit Party shall have any rights as a
third party beneficiary of any of the provisions hereof. In performing its functions and duties
hereunder, each Agent shall act solely as an agent of Lenders and does not assume and shall not be
deemed to have assumed any obligation towards or relationship of agency or trust with or for
Holdings or any of its Subsidiaries. Each of Syndication Agent and each Co-Documentation Agent,
without consent of or notice to any party hereto, may assign any and all of its rights or
obligations hereunder to any of its Affiliates. As of the Closing Date, all the respective
obligations of Wells Fargo and Bank of America, in their capacity as Lead Arrangers, Bank of
America, in its capacity as Syndication Agent, and JPMorgan Chase Bank, N.A., U.S. Bank National
Association and Union Bank, N.A., in their capacity as Co-Documentation Agents, shall terminate.



     9.2
Powers and Duties. Each Lender irrevocably authorizes each Agent to take such action on
such Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other
Credit Documents as are specifically delegated or granted to such Agent by the terms hereof and
thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each
Agent shall have only those duties and responsibilities that are expressly specified herein and the
other Credit Documents. Each Agent may exercise such powers, rights and remedies and perform such
duties by or through its agents or employees. No Agent shall have, by reason hereof or any of the
other Credit Documents, a fiduciary relationship in respect of any Lender or any Credit Party; and
nothing herein or in any of the other Credit Documents, expressed or implied, is intended to or
shall be so construed as to impose upon any Agent any obligations in respect hereof or of any of
the other Credit Documents except as expressly set forth herein or therein.



     9.3
General Immunity.



          (a) No Responsibility for Certain Matters. No Agent shall be responsible to any
Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or
sufficiency hereof or of any other Credit Document or for any representations, warranties, recitals
or statements made herein or therein or made in any written or oral statements or in any financial
or other statements, instruments, reports or certificates or any other documents furnished or made
by any Agent to Lenders or by or on behalf of any Credit Party, any Lender or any person providing
the Settlement Service to any Agent or any Lender in connection with the Credit Documents and the
transactions contemplated thereby or for the financial condition or business affairs of any Credit
Party or any other Person liable for the payment of any Obligations, nor shall any Agent be
required to ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Credit Documents or as to
the use of the proceeds of the Loans or as to the existence or possible existence of any Event of
Default or Default. Anything contained herein to the contrary notwithstanding, Administrative
Agent shall not have any liability arising from confirmations of the amount of outstanding Loans or
the Letter of Credit Usage or the component amounts thereof.



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          (b) Exculpatory Provisions. No Agent nor any of its officers, partners, directors,
employees or agents shall be liable to Lenders for any action taken or omitted by any Agent under
or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross
negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of
competent jurisdiction. Each Agent shall be entitled to refrain from any act or the taking of any
action (including the failure to take an action) in connection herewith or any of the other Credit
Documents or from the exercise of any power, discretion or authority vested in it hereunder or
thereunder unless and until such Agent shall have received instructions in respect thereof from
Requisite Lenders (or such other Lenders as may be required to give such instructions under Section
10.5) and, upon receipt of such instructions from Requisite Lenders (or such other Lenders, as the
case may be), such Agent shall be entitled to act or (where so instructed) refrain from acting, or
to exercise such power, discretion or authority, in accordance with such instructions. Without
prejudice to the generality of the foregoing, (i) each Agent shall be entitled to rely, and shall
be fully protected in relying, upon any communication, instrument or document believed by it to be
genuine and correct and to have been signed or sent by the proper Person or Persons, including any
Settlement Confirmation or other communication issues by any Settlement Service, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may
be attorneys for Holdings and its Subsidiaries), accountants, experts and other professional
advisors selected by it; and (ii) no Lender shall have any right of action whatsoever against any
Agent as a result of such Agent acting or (where so instructed) refraining from acting hereunder or
any of the other Credit Documents in accordance with the instructions of Requisite Lenders (or such
other Lenders as may be required to give such instructions under Section 10.5).



          (c) Delegation of Duties. Administrative Agent may perform any and all of its duties
and exercise its rights and powers under this Agreement or under any other Credit Document by or
through any one or more sub-agents appointed by Administrative Agent; provided, that the
appointment of one or more sub-agents shall not relieve the Administrative Agent of any of its
duties or obligations under this Agreement or any other Credit Documents and the Administrative
Agent shall exercise due care in the selection and monitoring of any such sub-agent. Administrative
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 Affiliates. The exculpatory, indemnification and other
provisions of this Section 9.3 and of Section 9.6 shall apply to any the Affiliates of
Administrative 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. All of the rights, benefits, and privileges (including the exculpatory and indemnification
provisions) of this Section 9.3 and of Section 9.6 shall apply to any such sub-agent and to the
Affiliates of any such sub-agent, and shall apply to their respective activities as sub-agent as if
such sub-agent and Affiliates were named herein. Notwithstanding anything herein to the contrary,
with respect to each sub-agent appointed by the Administrative Agent, (i) such sub-agent shall be a
third party beneficiary under this Agreement with respect to all such rights, benefits and
privileges (including exculpatory rights and rights to indemnification) and shall have all of the
rights and benefits of a third party beneficiary, including an independent right of action to
enforce such rights, benefits and privileges (including exculpatory rights and rights to
indemnification) directly, without the consent or joinder of any other Person, against any or all
of the Credit Parties and the Lenders, and (ii) such rights, benefits and privileges (including
exculpatory rights and rights to indemnification) shall not be modified or amended without the
consent of such sub-agent. Any sub-agent shall be obligated to account for all money and other
property handled by it in connection with this Agreement or any other Credit Document as if it were
a party



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hereto or thereto, as applicable, as Administrative Agent, but shall otherwise deal solely
with and at the direction of Administrative Agent.



     9.4
Agents Entitled to Act as Lender. The agency hereby created shall in no way impair or
affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its
individual capacity as a Lender hereunder. With respect to its participation in the Loans, each
Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same
as if it were not performing the duties and functions delegated to it hereunder, and the term
“Lender” shall, unless the context clearly otherwise indicates, include each Agent in its
individual capacity. Any Agent and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of banking, trust, financial advisory or other business with Holdings
or any of its Affiliates as if it were not performing the duties specified herein, and may accept
fees and other consideration from Company for services in connection herewith and otherwise without
having to account for the same to Lenders.



     9.5
Lenders’ Representations, Warranties and Acknowledgment.



          (a) Each Lender represents and warrants that it has made its own independent investigation of
the financial condition and affairs of Holdings and its Subsidiaries in connection with Credit
Extensions hereunder and that it has made and shall continue to make its own appraisal of the
creditworthiness of Holdings and its Subsidiaries. No Agent shall have any duty or responsibility,
either initially or on a continuing basis, to make any such investigation or any such appraisal on
behalf of Lenders or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at any time or times
thereafter, and no Agent shall have any responsibility with respect to the accuracy of or the
completeness of any information provided to Lenders.



          (b) Each Lender, by delivering its signature page to this Agreement, an Assignment Agreement
or a Joinder Agreement and funding its Closing Date Term Loan and/or a Revolving Loan on the
Closing Date or by the funding of any New Term Loans or New Revolving Loans, as the case may be,
shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit
Document and each other document required to be approved by any Agent, Requisite Lenders or
Lenders, as applicable on the Closing Date or as of the date of funding of such New Term Loans or
New Revolving Loans.



     9.6
Right to Indemnity. Each Lender,
in proportion to its Pro Rata Share, severally agrees to
indemnify each Agent, to the extent that such Agent shall not have been reimbursed by any Credit
Party, for and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Agent
in exercising its powers, rights and remedies or performing its duties hereunder or under the other
Credit Documents or otherwise in its capacity as such Agent in any way relating to or arising out
of this Agreement or the other Credit Documents; provided, no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful
misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
If any indemnity furnished to any Agent for any purpose shall, in the opinion of such Agent, be
insufficient or become impaired, such



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Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished; provided, in no event shall this
sentence require any Lender to indemnify any Agent against any liability, obligation, loss, damage,
penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata
Share thereof; and provided further, this sentence shall not be deemed to require
any Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action,
judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding
sentence.



     9.7
Successor Administrative Agent, Collateral Agent and Swing Line Lender.



          (a) Administrative Agent may resign at any time by giving thirty (30) days’ prior written
notice thereof to Lenders and Company, and Administrative Agent may be removed at any time with or
without cause by an instrument or concurrent instruments in writing delivered to Company and
Administrative Agent and signed by Requisite Lenders. Upon any such notice of resignation or any
such removal, Requisite Lenders shall have the right, in consultation with Company, to appoint a
successor Administrative Agent. If the Requisite Lenders have not appointed a successor
Administrative Agent within 30 days after delivery of the notice of resignation by the
Administrative Agent or a successor Administrative Agent has not accepted such appointment by such
time, the resignation of the Administrative Agent shall nevertheless be effective at such time and
the Requisite Lenders shall be deemed to have succeeded to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative Agent; provided that until a successor
Administrative Agent is so appointed, Administrative Agent may, by notice to Company and Requisite
Lenders, retain its role as Collateral Agent under any Collateral Documents. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor Administrative Agent, that
successor Administrative Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring or removed Administrative Agent and the retiring or
removed Administrative Agent shall promptly (i) transfer to such successor Administrative Agent all
sums, Securities and other items of Collateral held under the Collateral Documents, together with
all records and other documents necessary or appropriate in connection with the performance of the
duties of the successor Administrative Agent under the Credit Documents, and (ii) execute and
deliver to such successor Administrative Agent such amendments to financing statements, and take
such other actions, as may be necessary or appropriate in connection with the assignment to such
successor Administrative Agent of the security interests created under the Collateral Documents,
whereupon such retiring or removed Administrative Agent shall be discharged from its duties and
obligations hereunder. Except as provided above, any resignation or removal of Wells Fargo or its
successor as Administrative Agent pursuant to this Section shall also constitute the resignation or
removal of Wells Fargo or its successor as Collateral Agent. After any retiring or removed
Administrative Agent’s resignation or removal hereunder as Administrative Agent, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent hereunder. Any successor Administrative Agent appointed pursuant to this
Section shall, upon its acceptance of such appointment, become the successor Collateral Agent for
all purposes hereunder. If Wells Fargo or its successor as Administrative Agent pursuant to this
Section has resigned as Administrative Agent but retained its role as Collateral Agent as set forth
above and no successor Collateral Agent has become the Collateral Agent pursuant to the immediately
preceding sentence, Wells Fargo or its successor may resign as Collateral Agent upon notice to
Company and Requisite Lenders at any time.



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          (b) In addition to the foregoing, Collateral Agent may resign at any time by giving thirty 30
days’ prior written notice thereof to Lenders and the Grantors, and Collateral Agent may be removed
at any time with or without cause by an instrument or concurrent instruments in writing delivered
to the Grantors and Collateral Agent signed by Requisite Lenders. Administrative Agent shall have
the rights to appoint a financial institution as Collateral Agent hereunder, subject to the
reasonable satisfaction of Company and the Requisite Lenders and Collateral Agent’s resignation
shall become effective on the earlier of (i) the acceptance of such successor Collateral Agent by
Company and the Requisite Lenders or (ii) the thirtieth day after such notice of resignation. Upon
any such notice of resignation or any such removal, Requisite Lenders shall have the right, upon
five Business Days’ notice to Administrative Agent, to appoint a successor Collateral Agent. Upon
the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent,
that successor Collateral Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring or removed Collateral Agent under this Agreement and
the Collateral Documents, and the retiring or removed Collateral Agent under this Agreement shall
promptly (i) transfer to such successor Collateral Agent all sums, Securities and other items of
Collateral held hereunder or under the Collateral Documents, together with all records and other
documents necessary or appropriate in connection with the performance of the duties of the
successor Collateral Agent under this Agreement and the Collateral Documents, and (ii) execute and
deliver to such successor Collateral Agent or otherwise authorize the filing of such amendments to
financing statements, and take such other actions, as may be necessary or appropriate in connection
with the assignment to such successor Collateral Agent of the security interests created under the
Collateral Documents, whereupon such retiring or removed Collateral Agent shall be discharged from
its duties and obligations under this Agreement and the Collateral Documents. After any retiring
or removed Collateral Agent’s resignation or removal hereunder as the Collateral Agent, the
provisions of this Agreement and the Collateral Documents shall inure to its benefit as to any
actions taken or omitted to be taken by it under this Agreement or the Collateral Documents while
it was the Collateral Agent hereunder.



          (c) Any resignation or removal of Administrative Agent pursuant to this Section shall also
constitute the resignation or removal of Wells Fargo or its successor as Swing Line Lender, and any
successor Administrative Agent appointed pursuant to this Section shall, upon its acceptance of
such appointment, become the successor Swing Line Lender for all purposes hereunder. In such event
(a) Company shall prepay any outstanding Swing Line Loans made by the retiring or removed
Administrative Agent in its capacity as Swing Line Lender, (b) upon such prepayment, the retiring
or removed Administrative Agent and Swing Line Lender shall surrender any Swing Line Note held by
it to Company for cancellation, and (c) Company shall issue, if so requested by Successor
Administrative Agent and Swing Line Loan Lender, a new Swing Line Note to the successor
Administrative Agent and Swing Line Lender, in the principal amount of the Swing Line Loan Sublimit
then in effect and with other appropriate insertions.



     9.8 Collateral Documents and Guaranty.




          (a) Agents under Collateral Documents and Guaranty. Each Secured Party hereby further
authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the
benefit of the Secured Parties, to be the agent for and representative of Lenders with respect to
the Guaranty, the Collateral and the Collateral Documents. Subject to Section 10.5, without
further written consent or authorization from the Secured Parties, Administrative Agent or
Collateral Agent,



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as applicable, may execute any documents or instruments necessary to (i) release
any Lien encumbering any item of Collateral that is the subject of a sale or other disposition of
assets permitted hereby or to which Requisite Lenders (or such other Lenders as may be required to
give such consent under Section 10.5) have otherwise consented or (ii) release any Guarantor from
the Guaranty pursuant to Section 7.12 or with respect to which Requisite Lenders (or such other
Lenders as may be required to give such consent under Section 10.5) have otherwise consented.



          (b) Right to Realize on Collateral and Enforce Guaranty. Anything contained in any of
the Credit Documents to the contrary notwithstanding, Company, Administrative Agent, Collateral
Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right
individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood
and agreed that all powers, rights and remedies hereunder may be exercised solely by Administrative
Agent, on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights
and remedies under the Collateral Documents may be exercised solely by Collateral Agent, and (ii)
in the event of a foreclosure by Collateral Agent on any of the Collateral pursuant to a public or
private sale, Administrative Agent or any Lender may be the purchaser of any or all of such
Collateral at any such sale and Collateral Agent, as agent for and representative of Secured
Parties (but not any Lender or Lenders in its or their respective individual capacities unless
Requisite Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding
and making settlement or payment of the purchase price for all or any portion of the Collateral
sold at any such public sale, to use and apply any of the Obligations as a credit on account of the
purchase price for any collateral payable by Collateral Agent at such sale.



          (c) Lender Counterparties. No Lender Counterparty that obtains the benefits of any
Collateral by virtue of the provisions hereof or of any Collateral Document shall have any right to
notice of any action or to consent to, direct or object to any action hereunder or under any other
Credit Document or otherwise in respect of the Collateral other than its capacity as a Lender and,
in such case, only to the extent expressly provided in the Credit Documents. By accepting the
benefits of the Collateral, such Lender Counterparty shall be deemed to have appointed Collateral
Agent as its agent and agree to be bound by the Credit Documents as a Secured Party.



SECTION 10. MISCELLANEOUS




     10.1
Notices.



          (a) Unless otherwise specifically provided herein, any notice or other communication herein
required or permitted to be given to a Credit Party, Lead Arrangers, Syndication Agent, Collateral
Agent, Administrative Agent, Swing Line Lender or Issuing Bank, shall be sent to such Person’s
address as set forth on Appendix B or in the other relevant Credit Document, and in the case of any
Lender, the address as indicated on Appendix B or otherwise indicated to Administrative Agent in
writing. Each notice hereunder shall be in writing and may be personally served, telexed or sent
by telefacsimile or United States mail or courier service and shall be deemed to have been given
when delivered in person or by courier service and signed for against receipt thereof, upon receipt
of telefacsimile or telex, or three Business Days after depositing it in the United States mail
with postage prepaid and properly addressed; provided, no notice to any Agent shall be
effective
until received by such Agent; provided further, any such notice or other
communication shall at the



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request of the Administrative Agent be provided to any sub-agent
appointed pursuant to Section 9.3(c) hereto as designated by the Administrative Agent from time to
time.



          (b) Notices and other communications to the Lenders and the Issuing Bank hereunder may be
delivered or furnished by electronic communication (including email and internet or intranet
websites) pursuant to procedures approved by the Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant to Section 2 hereof
if such Lender or the Issuing Lender, as applicable, has notified the Administrative Agent in
writing that it is incapable of receiving notices under such section by electronic communication.
The Administrative Agent or Company 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 email 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 other communications posted to an internet or intranet
website shall be deemed received upon the deemed receipt by the intended recipient at its email
address as described in the foregoing clause (i) of this sentence of notification that such notice
or communication is available and identifying the website address therefor.



          (c) Each Credit Party understands that the distribution of material through an electronic
medium is not necessarily secure and that there are confidentiality and other risks associated with
such distribution and agrees and assumes the risks associated with such electronic distribution,
except to the extent caused by the willful misconduct or gross negligence of Administrative Agent,
as determined by a final, non-appealable judgment of a court of competent jurisdiction.



     10.2
Expenses. Whether or not the transactions contemplated hereby shall be consummated,
Company agrees to pay promptly (a) all the actual and reasonable costs and expenses of preparation
of the Credit Documents and any consents, amendments, waivers or other modifications thereto; (b)
all the costs of furnishing all opinions by counsel for Company and the other Credit Parties; (c)
the reasonable and documented fees, expenses and disbursements of counsel to Agents in connection
with the negotiation, preparation, execution and administration of the Credit Documents and any
consents, amendments, waivers or other modifications thereto and any other documents or matters
requested by Company; (d) all the actual costs and reasonable and documented expenses of creating
and perfecting Liens in favor of Collateral Agent, for the benefit of Lenders pursuant hereto,
including filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees,
title insurance premiums and reasonable fees, expenses and disbursements of counsel to each Agent
and of counsel providing any opinions that any Agent or Requisite Lenders may request in respect of
the Collateral or the Liens created pursuant to the Collateral Documents; (e) all the actual costs
and reasonable and documented fees, expenses and disbursements of any auditors, accountants,
consultants or appraisers; (f) all the actual costs and reasonable and documented expenses
(including the reasonable fees, expenses and disbursements of any appraisers, consultants, advisors
and agents employed or retained by Collateral Agent and its counsel) in connection with the custody
or preservation of any of the Collateral; (g) all
other actual and reasonable and documented costs and



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expenses incurred by each Agent in
connection with the syndication of the Loans and Commitments and the negotiation, preparation and
execution of the Credit Documents and any consents, amendments, waivers or other modifications
thereto and the transactions contemplated thereby; and (h) after the occurrence of a Default or an
Event of Default, all costs and expenses, including reasonable and documented attorneys’ fees
(including allocated costs of internal counsel) and costs of settlement, incurred by any Agent and
Lenders in enforcing any Obligations of or in collecting any payments due from any Credit Party
hereunder or under the other Credit Documents by reason of such Default or Event of Default
(including in connection with the sale of, collection from, or other realization upon any of the
Collateral or the enforcement of the Guaranty) or in connection with any refinancing or
restructuring of the credit arrangements provided hereunder in the
nature of a “work-out” or
pursuant to any insolvency or bankruptcy cases or proceedings.



     10.3
Indemnity. In addition to the payment of expenses pursuant to Section 10.2, whether or
not the transactions contemplated hereby shall be consummated, each Credit Party agrees to defend
(subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and
Lender and the officers, partners, directors, trustees, employees, agents, sub-agents and
Affiliates of each Agent and each Lender (each, an “Indemnitee”), from and against any and all
Indemnified Liabilities; provided, no Credit Party shall have any obligation to an
Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified
Liabilities arise from the gross negligence or willful misconduct of that Indemnitee, in each case
as determined by a final, non-appealable judgment of a court of competent jurisdiction. To the
extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section
10.3 may be unenforceable in whole or in part because they are violative of any law or public
policy, the applicable Credit Party shall contribute the maximum portion that it is permitted to
pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them; provided, no Credit Party shall have any obligation
to an Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such
Indemnified Liabilities arise from the gross negligence or willful misconduct of that Indemnitee,
in each case as determined by a final, non-appealable judgment of a court of competent
jurisdiction. To the extent permitted by applicable law, no Credit Party shall assert, and each
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, any Credit Document or any agreement or instrument or
transaction contemplated hereby.



     10.4 Set-Off. In addition to any rights now or hereafter granted under applicable law and not
by way of limitation of any such rights, upon the occurrence of any Event of Default each Lender is
hereby authorized by each Credit Party at any time or from time to time subject to the consent of
Administrative Agent (such consent not to be unreasonably withheld or delayed), without notice to
any Credit Party or to any other Person (other than Administrative Agent), any such notice being
hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general
or special, including Indebtedness evidenced by certificates of deposit, whether matured or
unmatured, but not including trust accounts) and any other Indebtedness at any time held or owing
by such Lender to or for the credit or the account of any Credit Party against and on account of
the obligations and liabilities of any Credit Party to such Lender hereunder, and participations
therein and under the other Credit Documents, including all claims of any nature or description
arising out of or connected hereto and participations therein or with any other Credit Document,
irrespective of whether or not (a) such Lender shall have made any demand hereunder or (b) the
principal of or the interest on the Loans or



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any other amounts due hereunder shall have become due and payable pursuant to Section 2 and
although such obligations and liabilities, or any of them, may be contingent or unmatured. Each
Credit Party hereby further grants to Administrative Agent and each Lender a security interest in
all Deposit Accounts maintained with Administrative Agent or such Lender as security for the
Obligations.



     10.5
Amendments and Waivers.



          (a) Requisite Lenders’ Consent. Subject to Section 10.5(b) and 10.5(c), no amendment,
modification, termination or waiver of any provision of the Credit Documents, or consent to any
departure by any Credit Party therefrom, shall in any event be effective without the written
concurrence of the Requisite Lenders.



          (b) Affected Lenders’ Consent. Without the written consent of each Lender (other
than a Defaulting Lender) that would be affected thereby, no amendment, modification, termination,
or consent shall be effective if the effect thereof would:



               (i) extend the scheduled final maturity of any Loan or Note;



               (ii) waive, reduce or postpone any scheduled repayment (but not prepayment);



               (iii) reduce the rate of interest on any Loan (other than any waiver of any increase in the
interest rate applicable to any Loan pursuant to Section 2.9) or any fee payable hereunder;



               (iv) extend the time for payment of any such interest or fees;



               (v) reduce the principal amount of any Loan;



               (vi) amend, modify, terminate or waive any provision of this Section 10.5(b) or Section
10.5(c);



               (vii) amend
the definition of “Requisite Lenders” or
“Pro Rata Share”; provided, with
the consent of Requisite Lenders, additional extensions of credit pursuant hereto may be included
in the determination of “Requisite Lenders” or “Pro Rata Share” on substantially the same basis as
the Closing Date Term Loan Commitments, the Closing Date Term Loans, any New Term Loan Commitments
and New Term Loans (subject to Section 2.24), the Revolving Commitments (including New Revolving
Loan Commitments subject to Section 2.24) and the Revolving Loans are included on the Closing
Date;



               (viii) release or otherwise subordinate all or substantially all of the Collateral or all or
substantially all Guarantors from the Guaranty except as expressly provided in the Credit
Documents;



               (ix) consent to the assignment or transfer by any Credit Party of any of its rights and
obligations under any Credit Document;



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               (x) extend the stated expiration date of any Letter of Credit beyond the Revolving Commitment
Termination Date; or



               (xi) reduce any reimbursement obligation in respect of any Letter of Credit.



          (c) Other Consents. No amendment, modification, termination or waiver of any
provision of the Credit Documents, or consent to any departure by any Credit Party therefrom,
shall:



               (i) increase any Revolving Commitment of any Lender over the amount thereof then in effect
without the consent of such Lender; provided, no amendment, modification or waiver of any
condition precedent, covenant, Default or Event of Default shall constitute an increase in any
Revolving Commitment of any Lender;



               (ii) amend, modify, terminate or waive any provision hereof relating to the Swing Line
Sublimit or the Swing Line Loans without the consent of Swing Line Lender;



               (iii) amend the definition of “Requisite Class Lenders” without the consent of Requisite Class
Lenders of each Class; provided, with the consent of the Requisite Lenders, additional
extensions of credit pursuant hereto may be included in the determination of such “Requisite Class
Lenders” on substantially the same basis as the Closing Date Term Loan Commitments, the Closing
Date Term Loans, any New Term Loan Commitments and New Term Loans (subject to Section 2.24), the
Revolving Commitments (including New Revolving Loan Commitments subject to Section 2.24) and the
Revolving Loans are included on the Closing Date;



               (iv) alter the required application of any repayments or prepayments as between Classes
pursuant to Section 2.14 without the consent of Requisite Class Lenders of each Class which is
being allocated a lesser repayment or prepayment as a result thereof; provided, Requisite
Lenders may waive, in whole or in part, any prepayment so long as the application, as between
Classes, of any portion of such prepayment which is still required to be made is not altered;



               (v) amend, modify, terminate or waive any provision of Section 9 as the same applies to any
Agent, or any other provision hereof as the same applies to the rights or obligations of any Agent,
in each case without the consent of such Agent; or



               (vi) amend, modify, terminate or waive any obligation of Lenders relating to the purchase of
participations in Letters of Credit as provided in Section 2.23(e) without the written consent of
Administrative Agent and of Issuing Bank.



          (d) Execution of Amendments, etc. Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 10.5 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by a Credit Party, on such Credit Party.



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          (e) Refinancing Term Loans. Notwithstanding anything to the contrary contained
herein, this Agreement may be amended with the written consent of the Administrative Agent,
Company, the holders of not less than 50.0% of the Revolving Exposure and the Lenders providing the
relevant Replacement Term Loans to permit the refinancing of all outstanding Term Loans (the
“Refinanced Term Loan”) with a replacement term loan tranche hereunder (the “Replacement Term
Loans”), provided that (a) the aggregate principal amount of such Replacement Term Loans
shall not exceed the aggregate principal amount of such Refinanced Term Loan, (b) the interest rate
for such Replacement Term Loans shall not be higher than the interest rate for such Refinanced Term
Loan, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter
than the weighted average life to maturity of such Refinanced Term Loan at the time of such
refinancing and (d) all other terms applicable to such Replacement Term Loans shall be
substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans
than those applicable to such Refinanced Term Loan, except to the extent necessary to provide for
covenants and other terms applicable to any period after the latest final maturity of the Term
Loans in effect immediately prior to such refinancing.



          (f) Extension of Loans. Notwithstanding anything to the contrary contained herein,
any amendment that would extend the applicable Term Loan Maturity Date or Revolving Commitment
Termination Date with respect to any Loans or Commitments, provide for any increased pricing
(including fees) for any Lenders agreeing to extend their Loans or Commitments pursuant to the
terms of such amendment and any corresponding modifications under this Agreement related thereto
may be effected pursuant to an agreement or agreements in writing entered into by Company,
Administrative Agent, the Requisite Lenders and the Lenders holding the Loans or Commitments who
are directly and adversely affected thereby.



     10.6 Successors and Assigns; Participations.




          (a) Generally. This Agreement shall (i) be binding upon the parties hereto and their
respective successors and assigns and (ii) shall inure to the benefit of (x) the parties hereto and
the successors and assigns of Lenders and (y) solely to the extent expressly contemplated hereby,
Indemnitees and Lender Counterparties. No Credit Party’s rights or obligations hereunder nor any
interest therein may be assigned or delegated by any Credit Party without the prior written consent
of all Lenders. For the avoidance of doubt, neither any Indemnitee nor any Lender Counterparty
(solely in their capacity as an Indemnitee or Lender Counterparty and not in their capacity as a
Lender, Agent or Issuing Bank) shall have any voting or consent rights in connection with any
amendment, modification, waiver or other change of any term of any Credit Document (including any
indemnity provision therein) except to the extent expressly provided in the Credit Documents.



          (b) Register. Company, Administrative Agent and Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any
such Commitment or Loan shall be effective, in each case, unless and until recorded in the Register
following receipt of (x) a written or electronic confirmation of an assignment issued by a
Settlement Service pursuant to Section 10.6(d) (a “Settlement Confirmation”) or (y) an Assignment
Agreement effecting the assignment or transfer thereof, in each case, as provided in Section
10.6(d). Each
assignment shall be recorded in the Register on the Business Day the Settlement Confirmation
or Assignment Agreement is received by the Administrative Agent, if received by 12:00 noon New York



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City time, and on the following Business Day if received after such time. Prompt notice thereof
shall be provided to Company and a copy of such Assignment Agreement or Settlement Confirmation
shall be maintained, as applicable. The date of such recordation of a transfer shall be referred
to herein as the “Assignment Effective Date.” Any request, authority or consent of any Person who,
at the time of making such request or giving such authority or consent, is listed in the Register
as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans.



          (c) Right to Assign. Each Lender shall have the right at any time to sell, assign or
transfer all or a portion of its rights and obligations under this Agreement, including, without
limitation, all or a portion of its Commitment or Loans owing to it, Note or Notes held by it, or
other Obligation (provided, however, that each such assignment shall be of a
uniform, and not varying, percentage of all rights and obligations under and in respect of any Loan
and any related Commitments):



               (i) to any Person meeting the criteria of clause (i) of the definition of the term of
“Eligible Assignee” upon the giving of notice to Company and Administrative Agent; and



               (ii) to any Person meeting the criteria of clause (ii) of the definition of the term of
“Eligible Assignee” upon giving of notice to Company and Administrative Agent and, in the case of
assignments of Revolving Loans or Revolving Commitments to any such Person, consented to by each of
Company and Administrative Agent (such consent (x) not to be unreasonably withheld or delayed, (y)
in the case of Company, not required at any time an Event of Default shall have occurred and then
be continuing and (z) in the case of Company when no Event of Default has occurred and is
continuing, to be deemed to have been given by Company unless Company objects to such assignment
within five Business Days after having received written notice of such assignment);
provided, further each such assignment pursuant to this Section 10.6(c)(ii) shall
be in an aggregate amount of not less than (A) $2,500,000 (or such lesser amount as may be agreed
to by Company and Administrative Agent or as shall constitute the aggregate amount of the Revolving
Commitments and/or Revolving Loans of the assigning Lender) with respect to the assignment of the
Revolving Commitments and/or Revolving Loans and (B) $500,000 (or such lesser amount as may be
agreed to by Company and Administrative Agent or as shall constitute the aggregate amount of the
Closing Date Term Loans or New Term Loans of a Series of the assigning Lender) with respect to the
assignment of the Term Loans.



          (d) Mechanics. Assignments of Term Loans by Lenders may be made via an electronic
settlement system acceptable to Administrative Agent as designated in writing from time to time to
the Lenders by Administrative Agent (the “Settlement Service”). Each such assignment shall be
effected by the assigning Lender and proposed assignee pursuant to the procedures then in effect
under the Settlement Service, which procedures shall be consistent with the other provisions of
this Section 10.6. Each assignor Lender and proposed assignee shall comply with the requirements
of the Settlement Service in connection with effecting any transfer of Loans pursuant to the
Settlement Service. Administrative Agent’s and Company’s consent shall be deemed to have been
granted pursuant to Section 10.6(c)(ii) with respect to any transfer of a Term Loan effected
through the Settlement Service. Subject to the other requirements of this Section 10.6,
assignments and
assumptions of Term Loans may also be effected by manual execution delivery to the
Administrative Agent of an Assignment Agreement with the prior written consent of each of Company
and



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Administrative Agent (such consent not to be (x) unreasonably withheld or delayed or (y) in the
case of Company, required at any time an Event of Default shall have occurred and then be
continuing). Initially, assignments and assumptions of Term Loans shall be effected by such manual
execution until Administrative Agent notifies Lenders to the contrary. Assignments and assumptions
of Revolving Loans or Revolving Commitments shall only be effected by manual execution and delivery
to the Administrative Agent of an Assignment Agreement. Assignments made pursuant to the foregoing
provision shall be effective as of the Assignment Effective Date. In connection with all
assignments there shall be delivered to Administrative Agent such forms, certificates or other
evidence, if any, with respect to United States federal income tax withholding matters as the
assignee under such Assignment Agreement may be required to deliver pursuant to Section 2.19(c) and
such other documents as the Administrative Agent may reasonably request. Notwithstanding anything
herein or in any Assignment Agreement to the contrary and (i) unless notice to the contrary is
delivered to the Lenders from the Administrative Agent or (ii) so long as no Default or Event of
Default has occurred and is continuing, payment to the assignor by the assignee in respect of the
settlement of an assignment of any Term Loan (but not any Revolving Loan or Revolving Commitment)
shall include such compensation to the assignor as may be agreed upon by the assignor and the
assignee with respect to all unpaid interest which has accrued on such Term Loan to but excluding
the Assignment Effective Date. On and after the applicable Assignment Effective Date, the
applicable assignee shall be entitled to receive all interest paid or payable with respect to the
assigned Term Loan, whether such interest accrued before or after the applicable Assignment
Effective Date. In connection with any assignment hereunder to any Person meeting the criteria of
clause (ii) of the definition of the term of “Eligible Assignee”, the assignor and assignee shall
pay to Administrative Agent a processing and recordation fee of $3,500 for each such assignment
(provided that only one such fee will be payable in connection simultaneous assignments to two or
more Related Funds).



          (e) Representations and Warranties of Assignee. Each Lender, upon execution and
delivery hereof or upon succeeding to an interest in the Commitments and Loans, as the case may be,
represents and warrants as of the Closing Date or as of the Assignment Effective Date that (i) it
is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in
commitments or loans such as the applicable Commitments or Loans, as the case may be; and (iii) it
will make or invest in, as the case may be, its Commitments or Loans for its own account in the
ordinary course of its business and without a view to distribution of such Commitments or Loans
within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it
being understood that, subject to the provisions of this Section 10.6, the disposition of such
Commitments or Loans or any interests therein shall at all times remain within its exclusive
control).



          (f) Effect of Assignment. Subject to the terms and conditions of this Section 10.6,
as of the Assignment Effective Date: (i) the assignee thereunder shall have the rights and
obligations of a “Lender” hereunder to the extent of its interest in the Loans and Commitments as
reflected in the Register and shall thereafter be a party hereto and
a “Lender” for all purposes
hereof; (ii) the assigning Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned to the assignee, relinquish its rights (other than any rights which
survive the termination hereof under Section 10.8) and be released from its obligations hereunder
(and, in the case of an assignment covering all or the remaining portion of an assigning Lender’s
rights and obligations hereunder, such Lender shall cease to be a party hereto on the Assignment
Effective Date; provided, anything
contained in any of the Credit Documents to the contrary notwithstanding, (y) Issuing Bank
shall continue to have all rights and obligations thereof with respect to such Letters of Credit
until the



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cancellation or expiration of such Letters of Credit and the reimbursement of any amounts
drawn thereunder and (z) such assigning Lender shall continue to be entitled to the benefit of all
indemnities hereunder as specified herein with respect to matters arising out of the prior
involvement of such assigning Lender as a Lender hereunder; (iii) the Commitments shall be modified
to reflect the Commitment of such assignee and any remaining Commitment of such assigning Lender,
if any; and (iv) if any such assignment occurs after the issuance of any Note hereunder, the
assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as
practicable, surrender its applicable Notes to Administrative Agent for cancellation, and thereupon
Company shall issue and deliver new Notes, if so requested by the assignee and/or assigning Lender,
to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new
Commitments and/or outstanding Loans of the assignee and/or the assigning Lender.



          (g) Participations. Each Lender shall have the right at any time to sell one or more
participations to any Person (other than Holdings, any of its Subsidiaries or any of its
Affiliates) in all or any part of its Commitments, Loans or in any other Obligation. The holder of
any such participation, other than an Affiliate of the Lender granting such participation, shall
not be entitled to require such Lender to take or omit to take any action hereunder except with
respect to any amendment, modification or waiver that would (i) extend the final scheduled maturity
of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the
Revolving Commitment Termination Date) in which such participant is participating, or reduce the
rate or extend the time of payment of Interest or Fees thereon (except in connection with a waiver
of applicability of any post-default increase in interest rates) or reduce the principal amount
thereof, or increase the amount of the participant’s participation over the amount thereof then in
effect (it being understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Commitment shall not constitute a change in the terms of such participation, and
that an increase in any Commitment or Loan shall be permitted without the consent of any
participant if the participant’s participation is not increased as a result thereof), (ii) consent
to the assignment or transfer by any Credit Party of any of its rights and obligations under this
Agreement or (iii) release all or substantially all of the Collateral under the Collateral
Documents (except as expressly provided in the Credit Documents) supporting the Loans hereunder in
which such participant is participating. All amounts payable by any Credit Party hereunder,
including amounts payable to such Lender pursuant to Section 2.17(c), 2.18 or 2.19, shall be
determined as if such Lender had not sold such participation. Each Credit Party and each Lender
hereby acknowledge and agree that, solely for purposes of Sections 2.16 and 10.4, (1) any
participation will give rise to a direct obligation of each Credit Party to the participant and (2)
the participant shall be considered to be a “Lender.”



          (h) Certain Other Assignments. In addition to any other assignment permitted pursuant
to this Section 10.6, (i) any Lender may assign and pledge all or any portion of its Loans, the
other Obligations owed to such Lender, and its Notes, if any, to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve
System and any operating circular issued by such Federal Reserve Bank or to any other central bank
having jurisdiction over such Lender as collateral security, and (ii) any Lender which is an
investment fund may pledge all or any portion of its Notes, if any, or Loans to its trustee in
support of its obligations to such trustee; provided, no Lender, as between Company and
such Lender, shall be relieved of any of its obligations hereunder as a result of any such
assignment and pledge, and provided further, in no
event shall the applicable Federal Reserve Bank or central bank or trustee be considered to be
a “Lender” or be entitled to require the assigning Lender to take or omit to take any action
hereunder.



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     10.7 Independence of Covenants. All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such covenants, the fact that
it would be permitted by an exception to, or would otherwise be within the limitations of, another
covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken
or condition exists.



     10.8 Survival of Representations, Warranties and Agreements. All representations, warranties
and agreements made herein shall survive the execution and delivery hereof and the making of any
Credit Extension. Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.17(c), 2.18, 2.19, 10.2, 10.3 and 10.4 and
the agreements of Lenders set forth in Sections 2.16 and 9.6 shall survive the payment of the Loans
and the reimbursement of any amounts drawn thereunder, and the termination hereof.



     10.9 No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any
Lender in the exercise of any power, right or privilege hereunder or under any other Credit
Document shall impair such power, right or privilege or be construed to be a waiver of any default
or acquiescence therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power, right or privilege.
The rights, powers and remedies given to each Agent and each Lender hereby are cumulative and shall
be in addition to and independent of all rights, powers and remedies existing by virtue of any
statute or rule of law or in any of the other Credit Documents, the Specified Cash Management
Arrangements or any of the Hedge Agreements. Any forbearance or failure to exercise, and any delay
in exercising, any right, power or remedy hereunder shall not impair any such right, power or
remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any
such right, power or remedy.



     10.10 Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any
obligation to marshal any assets in favor of any Credit Party or any other Person or against or in
payment of any or all of the Obligations. To the extent that any Credit Party makes a payment or
payments to Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or
Administrative Agent or Lenders enforce any security interests or exercise their rights of setoff,
and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to
be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or
federal law, common law or any equitable cause, then, to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor or related thereto, shall be revived and continued in full force and effect as if such
payment or payments had not been made or such enforcement or setoff had not occurred.



     10.11 Severability. In case any provision in or obligation hereunder, any Note or any other
Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.



     10.12 Obligations Several; Independent Nature of Lenders’ Rights. The obligations of Lenders
hereunder are several and no Lender shall be responsible for the obligations or Commitment of any
other Lender hereunder. Nothing contained herein or in any other Credit Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a



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partnership, an association, a joint venture or any other kind of entity. The amounts payable at
any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall
be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for
any other Lender to be joined as an additional party in any proceeding for such purpose.



     10.13 Entire Agreement. This Agreement (together with the schedules hereto, the letter
agreements dated the date hereof and making specific reference hereto, exhibits hereto, annexes
hereto and the other agreements, documents and instruments delivered pursuant hereto), the Credit
Documents and any separate letter agreements with respect to fees payable to the Administrative
Agent and the Issuing Bank constitute the entire agreement among the parties or any of them with
respect to the subject matter hereof and thereof and supersede all other prior agreements and
understandings, both written and verbal, among the parties or any of them with respect to the
subject matter hereof.



     10.14 Headings. Section headings herein are included herein for convenience of reference only
and shall not constitute a part hereof for any other purpose or be given any substantive effect.



     10.15 APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK), WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.



     10.16 CONSENT TO JURISDICTION. SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY CREDIT PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT
DOCUMENT, OR ANY OF THE OBLIGATIONS, SHALL BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS
AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A)
ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (OTHER
THAN WITH RESPECT TO ACTIONS BY ANY AGENT IN RESPECT OF RIGHTS UNDER ANY COLLATERAL DOCUMENT
GOVERNED BY A LAW OTHER THAN THE LAWS OF THE STATE OF NEW YORK OR WITH RESPECT TO ANY COLLATERAL
SUBJECT THERETO); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SECTION 10.1; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER
PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH
COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E)
AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY



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OTHER JURISDICTION IN
CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY COLLATERAL DOCUMENT OR THE ENFORCEMENT OF ANY
JUDGMENT.



     10.17 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY
OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
LOAN TRANSACTION OR THE LENDER/COMPANY RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE
TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A
MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.17 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.



     10.18 Confidentiality. Each Lender shall hold all non-public information obtained pursuant to
the requirements hereof which has been identified as confidential by Company in accordance with
such Lender’s customary procedures for handling confidential information of this nature and in
accordance with prudent lending or investing practices, it being understood and agreed by Company
that in any event a Lender may make disclosures to Affiliates of such Lender and to their
respective agents and advisors (and to other persons authorized by a Lender or Agent to organize,
present or disseminate such information in connection with disclosures otherwise made in accordance
with this Section 10.18), disclosures reasonably required by any bona fide or potential assignee,
transferee or participant in connection with the contemplated assignment, transfer or participation
by such Lender of any Loans or any participations therein or by any direct or indirect contractual
counterparties (or the professional advisors thereto) in Hedge Agreements or Specified Cash
Management Arrangements (provided, such counterparties and advisors are advised of and
agree to be bound by the provisions of
this Section 10.18), disclosure to any rating agency when required by it (provided
that, prior to any disclosure, such rating agency shall undertake in writing to preserve the
confidentiality of any confidential information relating to Credit Parties received by it from any
Agent or any Lender), disclosures in connection with the exercise of any remedies hereunder or
under any other Credit



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Document or disclosures required or requested by any governmental agency,
regulatory authority or representative thereof or by the NAIC or pursuant to legal or judicial
process; provided, unless specifically prohibited by applicable law or court order, each
Lender shall make reasonable efforts to notify Company of any request by any governmental agency or
representative thereof (other than any such request in connection with any examination of the
financial condition or other routine examination of such Lender by such governmental agency) for
disclosure of any such non-public information prior to disclosure of such information. In
addition, each Agent and each Lender may disclose the existence of this Agreement and the
information about this Agreement to market data collectors, similar services providers to the
lending industry, and service providers to the Agents and the Lenders in connection with the
administration and management of this Agreement and the other Credit Documents.



     10.19 Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest
rate charged with respect to any of the Obligations, including all charges or fees in connection
therewith deemed in the nature of interest under applicable law shall not exceed the Highest Lawful
Rate. If the rate of interest (determined without regard to the preceding sentence) under this
Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the Loans made
hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect. In addition, if when the
Loans made hereunder are repaid in full the total interest due hereunder (taking into account the
increase provided for above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all times been in
effect, then to the extent permitted by law, Company shall pay to Administrative Agent an amount
equal to the difference between the amount of interest paid and the amount of interest which would
have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of Lenders and Company to conform strictly to any applicable usury
laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which
constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled
automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding
amount of the Loans made hereunder or be refunded to Company.



     10.20 Counterparts. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.



     10.21 Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and
words of like import in any Assignment Agreement 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.



     10.22 USA PATRIOT Act. Each Lender hereby notifies Company that pursuant to the requirements
of the Patriot Act it is required to obtain, verify and record information that identifies



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Company,
which information includes the name and address of Company and other information that will allow
such Lender to identify Company in accordance with the Patriot Act.



     10.23 No Fiduciary Duty. Each Agent, each Lender and their Affiliates (collectively, solely for purposes of this
paragraph, the “Lender Parties”), may have economic interests that conflict with those of Company,
its stockholders and/or its affiliates. Company agrees that nothing in the Credit Documents or
otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or
other implied duty between any Lender Party, on the one hand, and Company, its stockholders or its
affiliates, on the other. The Credit Parties acknowledge and agree that (i) the transactions
contemplated by the Credit Documents (including the exercise of rights and remedies hereunder and
thereunder) are arm’s-length commercial transactions between the Lender Parties, on the one hand,
and Company, on the other, and (ii) in connection therewith and with the process leading thereto,
(x) no Lender Party has assumed an advisory or fiduciary responsibility in favor of Company, its
stockholders or its affiliates with respect to the transactions contemplated hereby (or the
exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective
of whether any Lender Party has advised, is currently advising or will advise Company, its
stockholders or its Affiliates on other matters) or any other obligation to Company except the
obligations expressly set forth in the Credit Documents and (y) each Lender Party is acting solely
as principal and not as the agent or fiduciary of Company, its management, stockholders, creditors
or any other Person. Company acknowledges and agrees that Company has consulted its own legal and
financial advisors to the extent it deemed appropriate and that it is responsible for making its
own independent judgment with respect to such transactions and the process leading thereto.
Company agrees that it will not claim that any Lender Party has rendered advisory services of any
nature or respect, or owes a fiduciary or similar duty to Company, in connection with such
transaction or the process leading thereto.



[Remainder of page intentionally left blank]





117












 





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



	 	 	 	 	 
	COMPANY:               	VICAR OPERATING, INC.,

 	 
	 	By:  	/s/ Robert L. Antin
 	 
	 	 	Name:  	Robert L. Antin 	 
	 	 	Title:  	Chief Executive Officer and President 	 
	 
	HOLDINGS:                         	VCA ANTECN, INC.,

 	 
	 	By:  	/s/ Robert L. Antin
 	 
	 	 	Name:  	Robert L. Antin 	 
	 	 	Title:  	Chief Executive Officer and President 	 
	 



Signature Page to Credit and Guaranty Agreement





 









 








GUARANTOR SUBSIDIARIES:




	 	 	 	 	 
	 	ALBANY VETERINARY CLINIC

ANIMAL CARE CENTER AT MILL RUN, INC.

ANIMAL CARE CENTERS OF AMERICA, INC.

ARROYO PETCARE CENTER, INC.

ASSOCIATES IN PET CARE, INC.

DIAGNOSTIC VETERINARY SERVICE, INC.

EDGEBROOK, INC.

EKLIN MEDICAL SYSTEMS, INC.

EKLIN SUB GEORGIA, INC.

HEALTHY PET CORP.

INDIANA VETERINARY DIAGNOSTIC LAB, INC.

PET’S CHOICE, INC.

PETS’ RX, INC.

PRESTON PARK ANIMAL HOSPITAL, INC.

SNOW MERGER ACQUISITION, INC.

SOUND TECHNOLOGIES, INC.

SOUTH COUNTY VETERINARY CLINIC, INC.

TOMS RIVER VETERINARY HOSPITAL, P.A.

VCA—ASHER, INC.

VCA ALABAMA, INC.

VCA ALBANY ANIMAL HOSPITAL, INC.

VCA ANIMAL HOSPITALS, INC.

VCA CENTERS-TEXAS, INC.

VCA CENVET, INC.

VCA CLINIPATH LABS, INC.

VCA MAPLE LEAF, INC.

VCA MILLER-ROBERTSON #152

VCA MISSOURI, INC.

VCA NORTHWEST VETERINARY DIAGNOSTICS, INC.

VCA OF NEW YORK, INC.

VCA PROFESSIONAL ANIMAL LABORATORY, INC.

VCA REAL PROPERTY ACQUISITION CORPORATION
VETERINARY CENTERS OF AMERICA-TEXAS, INC.

WEST LOS ANGELES VETERINARY MEDICAL GROUP,
INC.

 	 
	 	By:  	/s/ Robert L. Antin
 	 
	 	 	Name:  	Robert L. Antin 	 
	 	 	Title:  	Chief Executive Officer and President 	 
	 



Signature Page to Credit and Guaranty Agreement






 









 








ADMINISTRATIVE AGENT, COLLATERAL AGENT,

ISSUING BANK, SWING LINE LENDER

AND LENDER:




	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL 

ASSOCIATION

 	 
	 	By:  	/s/ Maribelle Villaseñor
 	 
	 	 	Name:  	Maribelle Villaseñor  	 
	 	 	Title:  	Assistant Vice President 	 
	 



Signature Page to Credit and Guaranty Agreement







 









 








SYNDICATION AGENT AND

LENDER:




	 	 	 	 	 
	 	BANK OF AMERICA, N.A.

 	 
	 	By:  	/s/ Amie L. Edwards
 	 
	 	 	Name:  	Amie L. Edwards 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Credit and Guaranty Agreement







 









 








CO-DOCUMENTATION AGENT AND

LENDER:




	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.

 	 
	 	By:  	/s/ Ling Li
 	 
	 	 	Name:  	Ling Li 	 
	 	 	Title:  	Vice President 	 



S-5 









 






	 	 	 	 	 



CO-DOCUMENTATION AGENT AND

LENDER:




	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ David Mruk
 	 
	 	 	Name:  	David Mruk 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit and Guaranty Agreement





 









 








CO-DOCUMENTATION AGENT AND

LENDER:




	 	 	 	 	 
	 	UNION BANK, N.A.

 	 
	 	By:  	/s/ Erik Siegfried
 	 
	 	 	Name:  	Erik Siegfried  	 
	 	 	Title:  	Vice President 	 



S-7 









 






	 	 	 	 	 



LENDER: KEYBANK NATIONAL ASSOCIATION




	 	 	 	 	 
	 	 	 
	 	By:  	                                                  /s/ Frank J. Jancar
 	 
	 	 	Name:  	Frank J. Jancar 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit and Guaranty Agreement





 











 





	 	 	 	 	 
	LENDER: 	Sumitomo Mitsui Banking Corporation

 	 
	 	By:  	/s/ William M. Ginn
 	 
	 	 	Name:  	William M. Ginn 	 
	 	 	Title:  	Executive Officer 	 
	 



Signature Page to Credit and Guaranty Agreement



 









 





	 	 	 	 	 
	LENDER: 	TD BANK, N.A.

 	 
	 	By:  	/s/ Ted Hopkinson
 	 
	 	 	Ted Hopkinson 	 
	 	 	Senior Vice President 	 
	 



Signature Page to Credit and Guaranty Agreement



 









 





	 	 	 	 	 
	LENDER: 	ING Capital LLC

 	 
	 	By:  	/s/ Steven G. Fleenor
 	 
	 	 	Name:  	Steven G. Fleenor 	 
	 	 	Title:  	Managing Director 	 
	 



 









 





	 	 	 	 	 
	LENDER: 	The Governor and Company of the Bank of Ireland

 	 
	 	By:  	/s/  Edward A. Boyle
 	 
	 	 	Name:  	Edward A. Boyle 	 
	 	 	Title:  	Sr. V P 	 
	 
	 	 	 
	 	By:  	/s/ Carl Andresen
 	 
	 	 	Name:  	Carl Andresen 	 
	 	 	Title:  	Director 	 
	 



Signature Page to Credit and Guaranty Agreement



 









 





	 	 	 	 	 
	LENDER: 	PNC Bank, N.A.

 	 
	 	By:  	/s/  Jennifer L. Loew
 	 
	 	 	Name:  	Jennifer L. Loew 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit and Guaranty Agreement



 









 





	 	 	 	 	 
	LENDER: 	Raymond James Bank, FSB

 	 
	 	By:  	/s/ Steven Paley
 	 
	 	 	Steven Paley 	 
	 	 	Senior Vice President 	 
	 



Signature Page to Credit and Guaranty Agreement



 









 





	 	 	 	 	 
	LENDER: 	COMPASS BANK

 	 
	 	By:  	/s/ Mark Sunderland
 	 
	 	 	Name:  	Mark Sunderland 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Credit and Guaranty Agreement




 











 





LENDER: Capital One, N.A.




	 	 	 	 	 
	 	 	 
	 	By:  	                                                        /s/ Gina M. Monette
 	 
	 	 	Name:  	Gina M. Monette  	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit and Guaranty Agreement







 









 








LENDER: Bank of the West




	 	 	 	 	 
	 	 	 
	 	By:  	                                                                   /s/ Brock Mullins
 	 
	 	 	Name:  	Brock Mullins 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit and Guaranty Agreement







 









 








LENDER: East West Bank




	 	 	 	 	 
	 	 	 
	 	By:  	                                  /s/ Nancy A. Moore
 	 
	 	 	Name:  	Nancy A. Moore 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Credit and Guaranty Agreement







 









 








	 	 	 	 	 
	LENDER:	HSBC Bank USA, National Association

 	 
	 	By:  	/s/ James C. Colman
 	 
	 	 	Name:  	James C. Colman 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit and Guaranty Agreement








 









 








LENDER: Bank Leumi USA




	 	 	 	 	 
	 	 	 
	 	By:  	                         /s/ Joung Hee Hong
 	 
	 	 	Name:  	Joung Hee Hong 	 
	 	 	Title:  	First Vice President 	 
	 



Signature Page to Credit and Guaranty Agreement







 









 








	 	 	 	 	 
	LENDER:	BANK OF TAIWAN, NEW YORK AGENCY

 	 
	 	By:  	/s/ Thomas K.C. Wu
 	 
	 	 	Name:  	Thomas K.C. Wu  	 
	 	 	Title:  	VP & General Manager 	 
	 



Signature Page to Credit and Guaranty Agreement







 









 








LENDER: Manufacturers Bank




	 	 	 	 	 
	 	 	 
	 	By:  	                                                          /s/ Maureen Kelly
 	 
	 	 	Name:  	Maureen Kelly 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit and Guaranty Agreement







 









 










	 	 	 	 	 
	 
	LENDER: STATE BANK OF INDIA

                   LOS ANGELES AGENCY

	 
	 	By:  	                                     /s/ Sanjay Gautam
 	 
	 	 	Name:  	Sanjay Gautam 	 
	 	 	Title:  	Vice-President (Credit & Operations) 	 
	 



Signature Page to Credit and Guaranty Agreement







 









 








LENDER: Erste Group Bank AG




	 	 	 	 	 
	 	 	 
	 	By:  	                                              /s/ Robert J. Wagman
 	 
	 	 	Name:  	Robert J. Wagman 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                                                  /s/ Paul Judicke
 	 
	 	 	Name:  	Paul Judicke  	 
	 	 	Title:  	Director 	 
	 



Signature Page to Credit and Guaranty Agreement



 











 





	 	 	 	 	 
	LENDER: 

Israel Discount Bank of New York

888 So. Figueroa Street, Suite 550

Los Angeles, CA 90017

 	 	 
	 	By:  	/s/ Lorraine Drasser
 	 
	 	 	Name:  	Lorraine Drasser 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	 	 
	 	By:  	                                       /s/ Barbara Perez
 	 
	 	 	Name:  	Barbara  Perez 	 
	 	 	Title:  	Vice President 	 



 









 







	 	 	 	 	 



	 	 	 	 	 
	LENDER:	 Mega International Commercial Bank Co., Ltd.

New York Branch

 	 
	 	By:  	/s/ Priscilla H.T. Hsing
 	 
	 	 	Name:  	Priscilla H.T. Hsing 
	 	 	Title:  	VP & DGM 
	 



Signature Page to Credit and Guaranty Agreement



 









 





	 	 	 	 	 
	LENDER:	 Firstrust Bank

 	 
	 	By:  	/s/ Ellen Frank
 	 
	 	 	Name:  	Ellen Frank 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit and Guaranty Agreement



 









 





	 	 	 	 	 	 	 
	LENDER:	Grandpoint Bank

355 South Grand Avenue

24th Floor

Los Angeles, CA 90071

 	 	 	 	 
	 	 	 	By:  	/s/ Phil Soh
 	 
	 	 	 	 	Name:  	Phil Soh 	 
	 	 	 	 	Title:  	SVP, Senior Underwriter 	 
	 



Signature Page to Credit and Guaranty Agreement



 









 





	 	 	 	 	 
	LENDER: Hua Nan Commercial Bank, Los Angeles Branch

 	 
	 	By:  	/s/ Oliver Hsu
 	 
	 	 	Name:  	Oliver Hsu 	 
	 	 	Title:    VP & General Manager 	 
	 



Signature Page to Credit and Guaranty Agreement



 









 





APPENDIX A-1

TO CREDIT AND GUARANTY AGREEMENT




Closing Date Term Loan Commitments



On file with the Administrative Agent



APPENDIX A-l-1



 









 





APPENDIX A-2

TO CREDIT AND GUARANTY AGREEMENT




Revolving Commitments



On file with the Administrative Agent



APPENDIX A-2-1



 









 





APPENDIX B

TO CREDIT AND GUARANTY AGREEMENT




Notice Addresses




VICAR OPERATING, INC.

12401 West Olympic Boulevard

Los Angeles, California 90064-1022

Attention: Tomas Fuller

Telecopier: (310) 571-6700




VCA ANTECH, INC.

12401 West Olympic Boulevard

Los Angeles, California 90064-1022

Attention: Tomas Fuller

Telecopier: (310) 571-6700




GUARANTOR SUBSIDIARIES

c/o VCA Antech, Inc.

12401 West Olympic Boulevard

Los Angeles, California 90064-1022

Attention: Tomas Fuller

Telecopier: (310) 571-6700




WELLS FARGO BANK, NATIONAL ASSOCIATION

as Administrative Agent, Collateral Agent, Issuing Bank and Swing Line Lender




333 South Grand Avenue, 9th Floor

Los Angeles, California 90071

Attention: Belle Villaseñor

Telecopier: (213) 628-1188





 











 






1.1: Existing Permitted Partially-Owned Subsidiaries




	 	 	 	 	 	 	 	 	 
	AU#	 	Legal Name	 	General Partner	 	GP%	 
	 
	 
	 	 	 	 	 	 	 	 
	814
	 	ASC Yonkers Management, LLC	 	VCA of New York, Inc.	 	 	65	%
	316
	 	Edgebrook Animal Hospital, LP	 	Edgebrook, Inc.	 	 	80	%
	772
	 	VCA Academy Animal Hospital, LP	 	VCA Animal Hospitals, Inc.	 	 	51	%
	140
	 	VCA Albany Animal Hospital, LP	 	Albany Veterinary Clinic	 	 	70	%
	506
	 	VCA All Care Animal Hospital, LP	 	VCA Animal Hospitals, Inc.	 	 	55	%
	345
	 	VCA Animal Hospitals-Texas, L.P.	 	VCA Centers-Texas, Inc.	 	 	1	%
	 
	 	 	 	VCA Animal Hospitals, Inc.	 	 	74	%
	591
	 	VCA Animal Medical Center, LP	 	VCA Animal Hospitals, Inc.	 	 	80	%
	126
	 	VCA Asher Animal Hospital, LP	 	VCA—Asher, Inc.	 	 	80	%
	433
	 	VCA Associates Animal Hospital, L.P.	 	Associates in Pet Care, Inc.	 	 	75	%
	406
	 	VCA Becker Animal Hospital, LP	 	VCA Alabama, Inc.	 	 	80	%
	213
	 	VCA Black Mountain Animal Hospital, L.P.	 	Pets’ Rx, Inc.	 	 	75	%
	137
	 	VCA Companion Animal Hospital, L.P.	 	VCA Animal Hospitals, Inc.	 	 	80	%
	167
	 	VCA Glasgow Animal Hospital, L.P.	 	VCA Animal Hospitals, Inc.	 	 	80	%
	809
	 	VCA Green Animal Medical Center, LP	 	VCA Animal Hospitals, Inc.	 	 	90	%
	437
	 	VCA Heritage Animal Hospital, L.P.	 	VCA Animal Hospitals, Inc.	 	 	80	%
	111
	 	VCA Lakewood Animal Hospital (Cerritos), LP	 	West Los Angeles Veterinary Medical Group, Inc.	 	 	80	%
	799
	 	VCA Madera Pet Hospital, LP	 	VCA Animal Hospitals, Inc.	 	 	80	%
	558
	 	VCA Metroplex Animal Hospital, LP	 	Veterinary Centers of America-Texas, Inc.	 	 	90	%
	647
	 	VCA Mill Run Animal Hospital, LP	 	Animal Care Center at Mill Run, Inc.	 	 	95	%
	454
	 	VCA Preston Park Animal Hospital, L.P.	 	VCA Centers-Texas, Inc.	 	 	1	%
	 
	 	 	 	Preston Park Animal Hospital, Inc.	 	 	74	%
	418
	 	VCA Rome Animal Hospital, L.P.	 	VCA Animal Hospitals, Inc.	 	 	80	%
	871
	 	VCA San Francisco Veterinary Specialists, LP	 	VCA Animal Hospitals, Inc.	 	 	90	%
	648
	 	VCA Saw Mill Animal Hospital, LP	 	Animal Care Centers of America, Inc.	 	 	95	%
	149
	 	VCA South County Animal Hospital, LLC	 	South County Veterinary Clinic, Inc.	 	 	70	%
	439
	 	VCA Toms River Veterinary Hospital, L.P.	 	Toms River Veterinary Hospital, P.A.	 	 	80	%
	774
	 	VCA Woodford Animal Hospital, LP	 	VCA Animal Hospitals, Inc.	 	 	80	%






 









 






SCHEDULE 4.1: JURISDICTIONS OF ORGANIZATION




	 	 	 	 	 	 	 
	 	 	TYPE OF	 	JURISDICTION OF	 	ORGANIZATIONAL
	NAME OF SUBSIDIARY/GRANTOR	 	ORGANIZATION	 	ORGANIZATION	 	ID NUMBERS
	 
	 	 	 	 	 	 
	VCA Antech, Inc.
	 	Corporation	 	Delaware	 	2125345
	 
	 	 	 	 	 	 
	Vicar Operating, Inc.
	 	Corporation	 	Delaware	 	3203348
	 
	 	 	 	 	 	 
	Albany Veterinary Clinic
	 	Corporation	 	California	 	C0602028
	 
	 	 	 	 	 	 
	Animal Care Center at Mill Run,
	 	Corporation	 	Ohio	 	1106760
	Inc.
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Animal Care Centers of America,
	 	Corporation	 	Ohio	 	405602
	Inc.
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Arroyo PetCare Center, Inc.
	 	Corporation	 	California	 	C2117430
	 
	 	 	 	 	 	 
	Associates in Pet Care, Inc.
	 	Corporation	 	Wisconsin	 	5F09971
	 
	 	 	 	 	 	 
	Diagnostic Veterinary Service, Inc.
	 	Corporation	 	California	 	C1240642
	 
	 	 	 	 	 	 
	Edgebrook, Inc.
	 	Corporation	 	New Jersey	 	3613650000
	 
	 	 	 	 	 	 
	Eklin Medical Systems, Inc.
	 	Corporation	 	Delaware	 	3481774
	 
	 	 	 	 	 	 
	Eklin Sub Georgia, Inc.
	 	Corporation	 	Delaware	 	4596571
	 
	 	 	 	 	 	 
	Healthy Pet Corp.
	 	Corporation	 	Delaware	 	2805053
	 
	 	 	 	 	 	 
	Indiana Veterinary Diagnostic Lab,
	 	Corporation	 	Indiana	 	1992070350
	Inc.
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Pet’s Choice, Inc.
	 	Corporation	 	Washington	 	601714738
	 
	 	 	 	 	 	 
	Pets’ Rx, Inc.
	 	Corporation	 	Delaware	 	2264199
	 
	 	 	 	 	 	 
	Preston Park Animal Hospital, Inc.
	 	Corporation	 	California	 	C2683426
	 
	 	 	 	 	 	 
	Snow Merger Acquisition, Inc.
	 	Corporation	 	Delaware	 	4826710
	 
	 	 	 	 	 	 
	Sound Technologies, Inc.
	 	Corporation	 	Delaware	 	3188358
	 
	 	 	 	 	 	 
	South County Veterinary Clinic,
	 	Corporation	 	California	 	C0632872
	Inc.
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Toms River Veterinary Hospital,
	 	Corporation	 	New Jersey	 	0000003384
	P.A.
	 	 	 	 	 	 
	VCA — Asher, Inc.
	 	Corporation	 	California	 	C1699787
	 
	 	 	 	 	 	 
	VCA Alabama, Inc.
	 	Corporation	 	Alabama	 	104—820
	 
	 	 	 	 	 	 
	VCA Albany Animal Hospital, Inc.
	 	Corporation	 	California	 	C1708192






 









 






	 	 	 	 	 	 	 
	 	 	TYPE OF	 	JURISDICTION OF	 	ORGANIZATIONAL
	NAME OF SUBSIDIARY/GRANTOR	 	ORGANIZATION	 	ORGANIZATION	 	ID NUMBERS
	 
	 	 	 	 	 	 
	VCA Animal Hospitals, Inc.
	 	Corporation	 	California	 	C1 965050
	 
	 	 	 	 	 	 
	VCA Centers-Texas, Inc.
	 	Corporation	 	Texas	 	141948300
	 
	 	 	 	 	 	 
	VCA Cenvet, Inc.
	 	Corporation	 	California	 	C1891461
	 
	 	 	 	 	 	 
	VCA Clinipath Labs, Inc.
	 	Corporation	 	California	 	C1764088
	 
	 	 	 	 	 	 
	VCA Maple Leaf, Inc.
	 	Corporation	 	California	 	C3056151
	 
	 	 	 	 	 	 
	VCA Miller-Robertson #152
	 	Corporation	 	Californja	 	C1940475
	 
	 	 	 	 	 	 
	VCA Missouri, Inc.
	 	Corporation	 	Missouri	 	00544467
	 
	 	 	 	 	 	 
	VCA Northwest Veterinary
	 	Corporation	 	California	 	C1944092
	Diagnostics, Inc.
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	VCA of New York, Inc.
	 	Corporation	 	Delaware	 	2782761
	 
	 	 	 	 	 	 
	VCA Professional Animal
	 	Corporation	 	California	 	C1880335
	Laboratory, Inc.
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	VCA Real Property Acquisition
	 	Corporation	 	California	 	C1453424
	Corporation
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Veterinary Centers of America-
	 	Corporation	 	Texas	 	800911284
	Texas, Inc.
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	West Los Angeles Veterinary
	 	Corporation	 	California	 	C0709486
	Medical Group, Inc.
	 	 	 	 	 	 







 











 





SCHEDULE 4.2: CAPITAL STOCK AND OWNERSHIP




EQUITY INTERESTS: CORPORATIONS



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Company	 	No. of	 	Total	 	 	 	Stock	 	 
	 	 	Party to whom	 	whose Stock is	 	Shares	 	Issued	 	% and Type of	 	Certificate	 	 
	Grantor/Pledgor	 	Stock Pledged	 	Pledged	 	Pledged	 	Shares	 	Interest Pledged	 	No.	 	Par Value
	1. VCA Albany Animal Hospital, Inc.
	 	Wells Fargo Bank, National Association	 	Albany Veterinary Clinic	 	100	 	100	 	100%
Common Stock	 	2	 	$10.00
	2. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	Animal Care Center at Mill Run, Inc.	 	3,150	 	3,150	 	100%
Common Stock	 	6	 	None
	3. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	Animal Care Centers of America, Inc.	 	78,750	 	78,750	 	100%
Common Stock	 	22	 	None
	4. VCA Maple Leaf, Inc.
	 	Wells Fargo Bank, National Association	 	Antech Diagnostics Canada Ltd.1	 	65	 	100	 	65%
Common Stock	 	C-l	 	None
	5. Pets’ Rx, Inc.2
	 	Wells Fargo Bank, National Association	 	Arroyo PetCare Center, Inc.	 	1,000	 	1,000	 	100%
Common Stock	 	3	 	$0.01
	6. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	Associates in Pet Care, Inc.	 	100	 	100	 	100%
Common Stock	 	3	 	None
	7. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	Diagnostic Veterinary Service, Inc.	 	528	 	528	 	100%
Common Stock	 	6	 	None
	8. VCA Animal Hospitals, Inc.3
	 	Wells Fargo Bank, National Association	 	Edgebrook, Inc.	 	100	 	100	 	100%
Common Stock	 	8	 	None
	9. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	Eklin Medical Systems, Inc.	 	100	 	100	 	100%
Common Stock	 	C-55	 	$ .001
	10. Eklin Medical Systems, Inc.
	 	Wells Fargo Bank, National Association	 	Eklin Sub Georgia, Inc.	 	1,000	 	1,000	 	100%
Common Stock	 	C-l	 	$ .001








 




			
	1	 	Antech Diagnostics Canada Ltd. is a corporation organized under the laws of
Alberta, Canada and is a wholly-owned subsidiary of
VCA Maple Leaf, Inc. Pursuant to Section 5.10 of the Credit and Guaranty Agreement dated
August 19, 2010, 65% of its stock is
being pledged.
	 
	2	 	Successor-in-interest to NPC Operations, Inc., the shareholder identified on
the stock certificate. NPC Operations, Inc. was merged
into Pets’ Rx, Inc. as part of the Roll-Up of Guarantors, for which notice was provided on
approximately 12/28/05 (the “Roll-Up”).
	 
	3	 	Successor-in-interest to Golden Merger Corporation, the shareholder
identified on the stock certificate. Golden Merger Corporation
was merged into VCA Animal Hospitals, Inc. as part of the Roll-Up.




1









 










	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Company	 	No. of	 	Total	 	 	 	Stock	 	 
	 	 	Party to whom	 	whose Stock is	 	Shares	 	Issued	 	% and Type of	 	Certificate	 	 
	Grantor/Pledgor	 	Stock Pledged	 	Pledged	 	Pledged	 	Shares	 	Interest Pledged	 	No.	 	Par Value
	11. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	Healthy Pet Corp.	 	100	 	100	 	100%
Common Stock	 	48	 	$  .01
	12. VCA Professional Animal Laboratory, Inc.
	 	Wells Fargo Bank, National Association	 	Indiana Veterinary Diagnostic Lab, Inc.	 	200	 	200	 	100%
Common Stock	 	4	 	None
	13. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	Pet’s Choice, Inc.	 	500,000	 	500,000	 	100%
Common Stock	 	176	 	$0.001
	14. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	Pets’ Rx, Inc.	 	100	 	100	 	100%
Common Stock	 	C81	 	$0.01
	15. VCA Centers-Texas, Inc.
	 	Wells Fargo Bank, National Association	 	Preston Park Animal Hospital, Inc.	 	100	 	100	 	100%
Common Stock	 	3	 	$0.001
	16. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	Snow Merger Acquisition, Inc.	 	1,000	 	1,000	 	100%
Common Stock	 	1	 	$0.001
	17. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	Sound Technologies, Inc.	 	1,000	 	1,000	 	100%
Common Stock	 	133	 	$0.001
	18. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	South County Veterinary Clinic, Inc.	 	800	 	800	 	100%
Common Stock	 	4	 	$10.00
	19. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	Toms River Veterinary Hospital, P.A.	 	100	 	100	 	100%
Common Stock	 	36	 	None
	20. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	VCA - Asher, Inc.	 	100	 	100	 	100%
Common Stock	 	2	 	$0.001
	21. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Alabama, Inc.	 	100	 	100	 	100%
Common Stock	 	2	 	$10.00
	22. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Albany Animal Hospital, Inc.	 	100	 	100	 	100%
Common Stock	 	2	 	$0.001
	23. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Animal Hospitals, Inc.	 	100	 	100	 	100%
Common Stock	 	2	 	$0.001
	24. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Centers-Texas, Inc.	 	100	 	100	 	100%
Common Stock	 	2	 	$0.01






2









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Company	 	No. of	 	Total	 	 	 	Stock	 	 
	 	 	Party to whom	 	whose Stock is	 	Shares	 	Issued	 	% and Type of	 	Certificate	 	 
	Grantor/Pledgor	 	Stock Pledged	 	Pledged	 	Pledged	 	Shares	 	Interest Pledged	 	No.	 	Par Value
	25. VCA Professional Animal , Laboratory, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Cenvet, Inc.	 	100	 	100	 	100%
Common Stock	 	2	 	$0.001
	26. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Clinipath Labs, Inc.	 	10,000	 	10,000	 	100%
Common Stock	 	3	 	None
	27. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Maple Leaf, Inc.	 	100	 	100	 	100%
Common Stock	 	1	 	$ .001
	28. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Miller-Robertson #152	 	100	 	100	 	100%
Common Stock	 	3	 	$0.001
	29. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Missouri, Inc.	 	100	 	100	 	100%
Common Stock	 	1	 	$0.001
	30. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Northwest Veterinary Diagnostics, Inc.	 	100	 	100	 	100%
Common Stock	 	2	 	$0.001
	31. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	VCA of New York, Inc.	 	100	 	100	 	100%
Common Stock	 	R2	 	$0.01
	32. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Professional Animal Laboratory, Inc.	 	100	 	100	 	100%
Common Stock	 	2	 	$0.001
	33. Vicar Operating, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Real Property Acquisition Corporation	 	100	 	100	 	100%
Common Stock	 	2	 	None
	34. VCA Centers-Texas, Inc.
	 	Wells Fargo Bank, National Association	 	Veterinary Centers of America-Texas, Inc.	 	100	 	100	 	100%
Common Stock	 	1	 	$ .001
	35. VCA Antech, Inc.
	 	Wells Fargo Bank, National Association	 	Vicar Operating, Inc.	 	100	 	100	 	100%
Common Stock	 	2	 	$0.001
	36. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	West Los Angeles Veterinary Medical Group, Inc.	 	800	 	800	 	100%
Common Stock	 	5	 	$5.00






3









 






EQUITY INTERESTS: PARTNERSHIPS AND LLCS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	No. of	 	Total	 	 	 	Stock	 	 
	 	 	Party to whom	 	Company whose	 	Shares	 	Issued	 	% and Type of	 	Certificate	 	Par
	Grantor/Pledgor	 	Stock Pledged	 	Stock is Pledged	 	Pledged	 	Shares	 	Interest Pledged	 	No.	 	Value
	37. VCA of New York, Inc.
	 	Wells Fargo Bank, National Association	 	ASC Yonkers Management, LLC	 	N/A	 	N/A	 	65% interest in limited liability company	 	N/A	 	N/A
	38. Edgebrook, Inc.
	 	Wells Fargo Bank, National Association	 	Edgebrook Animal Hospital, LP	 	N/A	 	N/A	 	80% interest in partnership	 	N/A	 	N/A
	39. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Academy Animal Hospital, LP	 	N/A	 	N/A	 	51% interest in partnership	 	N/A	 	N/A
	40. Albany Veterinary Clinic
	 	Wells Fargo Bank, National Association	 	VCA Albany Animal Hospital, LP	 	N/A	 	N/A	 	70% interest in partnership	 	N/A	 	N/A
	41. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National . Association	 	VCA All Care Animal Hospital, LP	 	N/A	 	N/A	 	55% interest in partnership	 	N/A	 	N/A
	42. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Animal Hospitals-Texas, L.P.	 	N/A	 	N/A	 	74% interest in partnership	 	N/A	 	N/A
	43. VCA Centers-Texas, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Animal Hospitals-Texas, L.P.	 	N/A	 	N/A	 	1% interest in partnership	 	N/A	 	N/A
	44. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Animal Medical Center, LP	 	N/A	 	N/A	 	80% interest in partnership	 	N/A	 	N/A
	45.VCA-Asher, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Asher Animal Hospital, LP	 	N/A	 	N/A	 	80% interest in partnership	 	N/A	 	N/A
	46. Associates In Pet Care, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Associates Animal Hospital, L.P.	 	N/A	 	N/A	 	75% interest in partnership	 	N/A	 	N/A
	47. VCA Alabama, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Becker Animal Hospital, LP	 	N/A	 	N/A	 	80% interest in partnership	 	N/A	 	N/A
	48. Pets’ Rx, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Black Mountain Animal Hospital, L.P.	 	N/A	 	N/A	 	75% interest in partnership	 	N/A	 	N/A
	49. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Companion Animal Hospital,	 	N/A	 	N/A	 	80% interest in partnership	 	N/A	 	N/A
	 
	 	 	 	L.P.	 	 	 	 	 	 	 	 	 	 
	50. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Glasgow Animal Hospital, L.P.	 	N/A	 	N/A	 	80% interest in partnership	 	N/A	 	N/A






4









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	No. of	 	Total	 	 	 	Stock	 	 
	 	 	Party to whom	 	Company whose	 	Shares	 	Issued	 	% and Type of	 	Certificate	 	Par
	Grantor/Pledgor	 	Stock Pledged	 	Stock is Pledged	 	Pledged	 	Shares	 	Interest Pledged	 	No.	 	Value
	51. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Green Animal Medical Center, LP	 	N/A	 	N/A	 	90% interest in partnership	 	N/A	 	N/A
	52. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Heritage Animal Hospital, L.P.	 	N/A	 	N/A	 	80% interest in partnership	 	N/A	 	N/A
	53. West Los Angeles Veterinary Medical Group, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Lakewood Animal Hospital (Cerritos), LP	 	N/A	 	N/A	 	80% interest in partnership	 	N/A	 	N/A
	54. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Madera Pet Hospital, LP	 	N/A	 	N/A	 	80% interest in partnership	 	N/A	 	N/A
	55. Veterinary Centers of America-Texas, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Metroplex Animal Hospital, LP	 	N/A	 	N/A	 	90% interest in partnership	 	N/A	 	N/A
	56. Animal Care Center at Mill Run, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Mill Run Animal Hospital, LP	 	N/A	 	N/A	 	95% interest in partnership	 	N/A	 	N/A
	57. Preston Park Animal Hospital, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Preston Park Animal Hospital, L.P.	 	N/A	 	N/A	 	74% interest in partnership	 	N/A	 	N/A
	58. VCA Centers-Texas, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Preston Park Animal Hospital, L.P.	 	N/A	 	N/A	 	1%  interest in partnership	 	N/A	 	N/A
	59. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Rome Animal Hospital, L.P.	 	N/A	 	N/A	 	80% interest in partnership	 	N/A	 	N/A
	60. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	VCA San Francisco Veterinary Specialists, LP	 	N/A	 	N/A	 	90% interest in partnership	 	N/A	 	N/A
	61. Animal Care Centers of America, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Saw Mill Animal Hospital, LP	 	N/A	 	N/A	 	95% interest in partnership	 	N/A	 	N/A
	62. South County Veterinary Clinic, Inc.
	 	Wells Fargo Bank, National Association	 	VCA South County Animal Hospital, LLC	 	N/A	 	N/A	 	70% interest in limited liability company	 	N/A	 	N/A
	63. Toms River Veterinary Hospital, P.A.
	 	Wells Fargo Bank, National Association	 	VCA Toms River Veterinary Hospital, L.P.	 	N/A	 	N/A	 	80% interest in partnership	 	N/A	 	N/A
	64. VCA Animal Hospitals, Inc.
	 	Wells Fargo Bank, National Association	 	VCA Woodford Animal Hospital, LP	 	N/A	 	N/A	 	80% interest in partnership	 	N/A	 	N/A






5









 






EQUITY INTERESTS: INVESTMENTS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Party to	 	Company	 	No. of	 	Total	 	 	 	Stock	 	 
	 	 	whom Stock	 	whose Stock is	 	Shares	 	Issued	 	Type of Interest	 	Certificate	 	 
	Grantor/Pledgor	 	Pledged	 	Pledged	 	Pledged	 	Shares	 	Pledged	 	No.	 	Par Value
	1. Snow MergerAcquisition, Inc.
	 	Wells Fargo Bank, National Association	 	Pet DRx Corporation	 	23,073,863	 	N/A	 	Common Stock	 	525-6	 	$0.0001







6











 












 








 












 








 












 








 












 








 












 








 












 








 












 








 












 








 





SCHEDULE 4.13: PART III

OWNED/LEASED LOCATIONS

MEDICAL EQUIPMENT




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Type of	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Grantor	 	Organization	 	Business Name	 	Address	 	City	 	State	 	Zip Code	 	County	 	Leased/Owned	 	Notes
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Sound Technologies, Inc.

	 	Corporation
	 	Sound Techonologies, Inc.
	 	5817 Dryden Place, Suite 101
	 	Carlsbad
	 	CA
	 	 	92008	 	 	San Diego
	 	Leased	 	 
	Sound Technologies, Inc.

	 	Corporation
	 	Sound Techonologies, Inc.
	 	2409 Avenue J, Suite C
	 	Arlington
	 	TX
	 	 	76006	 	 	Tarrant
	 	Leased
	 	Educational facility
	Eklin Medical Systems, Inc.

	 	Corporation
	 	Eklin Medical Systems, Inc.
	 	1605 Wyatt Drive
	 	Santa Clara
	 	CA
	 	 	95054	 	 	San Jose
	 	Leased	 	 
	Elinc Corporation

	 	Corporation
	 	Elinc Corporation
	 	2401 Internet Boulevard
	 	Frisco
	 	TX
	 	 	75034	 	 	Collin
	 	Leased	 	 






Page 1 of 1









 






SCHEDULE 4.13: PART IV

OWNED/LEASED LOCATIONS

CORPORATE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Type of	 	 	 	 	 	 	 	 	 	 	 	Leased/ 	 	 
	Grantor	 	Organization	 	Address	 	City	 	State	 	Zip Code	 	County	 	Owned	 	Notes
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	VCA Antech. Inc.

	 	Corporation
	 	12401 West Olympic Blvd.
	 	Los Angeles
	 	CA
	 	 	90064	 	 	Los Angeles
	 	Leased
	 	 
	VCA Antech. Inc.

	 	Corporation
	 	12421 West Olympic Blvd.
	 	Los Angeles
	 	CA
	 	 	90064	 	 	Los Angeles
	 	Leased
	 	 






Page 1 of 1









 






SCHEDULE 5.14

POST-CLOSING ITEMS



Within 45 days after the Closing Date, or such later date as the Collateral Agent in its
discretion may agree, Company shall:





	1.	 	deliver to the Collateral Agent evidence of the filing with the relevant secretary of state of
an amendment to the Certificate of Incorporation of Edgebrook, Inc. and the amendment to the
Articles of Incorporation of South County Veterinary Clinic, Inc., in each case covering such
matters as have been reasonably requested by the Collateral Agent prior to the Closing Date.


















 





SCHEDULE 6.1: INDEBTEDNESS




Capital Leases Excluding Real Estate



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Balance at	 
	AU	 	 	Hospital Name	 	6/30/2010	 
	 
	 	587	 	 	Raleigh Hills AH
	 	 	15,270	 
	 	814	 	 	Animal Specialty Center
	 	 	70,451	 
	 	818	 	 	Avalon-Heart of Gwinnett
	 	 	19,302	 
	 	828	 	 	NE Canine Rehab Center
	 	 	39,366	 
	 	846	 	 	Littleton AH
	 	 	51,939	 
	 	702	 	 	Boston Road- HP
	 	 	1,132	 
	 	728	 	 	Baybrook — HP
	 	 	1,602	 
	 	729	 	 	Cheshire — HP
	 	 	703	 
	 	730	 	 	Darien- HP
	 	 	9,929	 
	 	733	 	 	Shoreline — HP
	 	 	3,565	 
	 	733	 	 	Shoreline — HP
	 	 	19,828	 
	 	735	 	 	Veterinary Referral — HP
	 	 	2,341	 
	 	735	 	 	Veterinary Referral — HP
	 	 	20,365	 
	 	9403	 	 	Healthy Pet Corporate — HP
	 	 	6,997	 
	 	9403	 	 	Healthy Pet Corporate — HP
	 	 	8,489	 
	 	00320	 	 	Enterprise Fleet Service (Antech)
	 	 	14,647	 
	 	 	 	 	Baytree & Cisco (Eklin)
	 	 	5,559	 
	 	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	 
	 	 	291,482	 






Notes Payable




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Balance at	 
	 	 	 	 	 	 	 	 	 	 	6/30/2010	 
	 	 	 	 	 	 	 	 	 	 	Issued by	 
	Issuer	 	Hospital Name	 	Payee	 	Int. Rate	 	 	VCA Antech	 
	VCA Antech
	 	Madera	 	Andrew J. Kallet	 	 	7	%	 	 	1,092,313.57	 
	 
	 	 	 	 	 	 	 	 	 	$	—	 
	 
	 	 	 	 	 	 	 	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	1,092,314	 






Earn-Out Obligations




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Balance at	 
	AU	 	Hospital Name	 	Payee*	 	6/30/2010	 
	 
	 	 	 	 	 	 	 	 
	694
	 	All Pets Salinas	 	*	 	$	—	 
	775
	 	Dunmore	 	*	 	 	—	 
	791
	 	Plymouth AH	 	*	 	 	225,000	 
	801
	 	NVWS	 	*	 	 	150,000	 
	805
	 	ACC Sonoma	 	*	 	 	200,000	 
	10120
	 	Advance Vet Lab	 	*	 	 	—	 
	40020
	 	Churchill Vet Lab	 	*	 	 	15,000	 
	199
	 	North Valley Vet Lab	 	*	 	 	10,000	 
	199
	 	Diagnostic Vet Lab	 	*	 	 	180,000	 
	50320
	 	Quadraspec	 	*	 	 	600.000	 
	20120
	 	Anipath	 	*	 	 	7,000	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	1,387,000	 








 




			
	*	 	The payee information has been omitted and filed separately with the Securities and Exchange Commission.




Page 1 of 2









 






Indebtedness of Subsidiary Exisiting at Time of Permitted Acquisition




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Balance at	 
	Issuer	 	AU	 	Hospital Name	 	Payee	 	6/30/2010	 
	 
	 	 	 	 	 	 	 	 	 	 
	Healthy Pet
	 	9403	 	Healthy Pet	 	BNR	 	$	190,942	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	$	190,942	 






Other Unsecured Indebtedness




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Balance at	 
	AU	 	Hospital Name	 	Payee	 	Type	 	6/30/2010	 
	8213	 	Black Mountain
	 	Dr. Winn	 	MRPI	 	$	506,997	 
	8345	 	Lakewood
	 	Dr. Dunn	 	MRPI	 	 	399,651	 
	8398	 	MacArthur
	 	Dr. Moris	 	MRPI	 	 	214,590	 
	8433	 	Assoc. in Pet Care
	 	Dr. Johnson	 	MRPI	 	$	316,626	 
	 	 	 
	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	1,437,864	 
	 	 	 
	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	Holdbacks	 	$	2,328,000	 
	 	 	 
	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	Other	 	 	—	 
	 	 	 
	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	$	3,765,864	 






Capital Leases in Respect of Real Estate




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Balance at	 
	AU	 	 	Hospital Name	 	6/30/2010	 
	 	 	 	 	 
	 	 	 	 
	 	596	 	 	Alderwood Companion
	 	$	675,135	 
	 	599	 	 	Five Comers
	 	 	450,232	 
	 	602	 	 	Vet Spec Center of Seattle
	 	 	390,425	 
	 	619	 	 	AMC of Pasadena
	 	 	593,089	 
	 	620	 	 	Ashford Vet Hospital
	 	 	805,326	 
	 	624	 	 	Tomball Veterinary Clinic
	 	 	914,224	 
	 	627	 	 	Saginaw
	 	 	1,096,269	 
	 	628	 	 	Leon Springs
	 	 	750,333	 
	 	634	 	 	Animal Refferal Ctr of AZ
	 	 	3,389,060	 
	 	655	 	 	Desert Animal Hospital
	 	 	2,277,600	 
	 	701	 	 	Blacksone Valley — HP
	 	 	460,442	 
	 	702	 	 	Boston Road — HP
	 	 	2,136,950	 
	 	710	 	 	Palmer-HP
	 	 	331,967	 
	 	712	 	 	South Hadley — HP
	 	 	560,415	 
	 	714	 	 	Animal Healing — HP
	 	 	240,378	 
	 	720	 	 	Animal Care Clinic — HP
	 	 	892,772	 
	 	721	 	 	Boulevard — HP
	 	 	798,393	 
	 	730	 	 	Darien-HP
	 	 	1.474,440	 
	 	731	 	 	Davis — HP
	 	 	925,786	 
	 	735	 	 	Veterinary Referral — HP
	 	 	2,196,141	 
	 	736	 	 	Falcon Village — HP
	 	 	1,136,008	 
	 	738	 	 	Rosewell — HP
	 	 	1,181,098	 
	 	739	 	 	Windham — HP
	 	 	238,028	 
	 	742	 	 	Madison — HP
	 	 	964,722	 
	 	744	 	 	Turco — HP
	 	 	537,636	 
	 	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	 	25,416,868	 







Page 2 of 2











 





SCHEDULE 6.2

PERMITTED LIENS




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Original File	 	 
	Debtor	 	Secured Party	 	Collateral	 	Jurisdiction	 	Date and Number	 	Notes
	 
	 	 	 	 	 	 	 	 	 	 
	Pets RX, Inc.
Successor-in-interest to National
PetCare Centers,
Inc.

	 	Aubrey Garner, DVM
	 	No financing
statement on file.
VCA has no
documentation to
support that the
debt is secured or
that a security
agreement exists,
other than a note
to file that the
debt is secured. If
the debt is
secured, the
collateral is
expected to be the
assets of a single
animal hospital in
accordance with
National PetCare
Centers, Inc.
(“NPC”) customary
practice prior to
VCA’s purchase of
NPC. Total
outstanding balance
at 6/30/10 is equal
to $493,597.
	 	N/A
	 	N/A	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Pets RX, Inc.
Successor-in-interest to National
PetCare Centers,
Inc.

	 	Lavac Enterprises, Inc.
	 	No financing
statement on file.
Security agreement
identifies
collateral as the
assets of VCA
Wilshire Animal
Hospital.
Outstanding balance
at 6/30/10 is
$223,560.
	 	N/A
	 	N/A	 	 











 









 











SCHEDULE 6.7: INVESTMENTS




Loans and Advances to Employees



	 	 	 	 	 	 	 	 	 	 	 
	Employee /	 	Source of	 	Amount for	 	 	Balance at	 
	Description	 	Detail	 	Other	 	 	6/30/2010	 
	 
	Hosp A/R Employee (acct. 1110-2)
	 	G/L Acct.	 	$	24,646	 	 	$	24,646	 
	US Lab A/R Employee (acct. 1110-2)
	 	G/L Acct.	 	 	162,397	 	 	 	162,397	 
	Corp A/R Employee (acct. 1110-2)
	 	G/L Acct.	 	 	220	 	 	 	220	 
	Med Tech Employee Ady (acct 14120)
	 	Med Tech Balance Sheet	 	 	79,038	 	 	 	79,038	 
	*
	 	NR Rollforward (Hosp)	 	 	72,401	 	 	 	72,401	 
	*
	 	NR Rollforward (Hosp)	 	 	176,384	 	 	 	176,384	 
	*
	 	NR Rollforward (Hosp)	 	 	110,240	 	 	 	110,240	 
	*
	 	NR Rollforward (Hosp)	 	 	147,577	 	 	 	147,577	 
	*
	 	NR Rollforward (Hosp)	 	 	33,968	 	 	 	33,968	 
	*
	 	NR Rollforward (Hosp)	 	 	360,224	 	 	 	360,224	 
	Other
	 	 	 	 	—	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	1,167,094	 	 	 	1,167,094	 







 




			
	*	 	The employee/description has been omitted and filed separately with the Securities and Exchange Commission.



 











 





Other Investments




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Employee /	 	Source of	 	 	 	 	 	Balance at	 	 	 	 	 
	Description	 	Detail	 	AU	 	Comment	 	6/30/2010	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ASC (LOC)
	 	NR Rollforward (Corp)	 	Co. 1 001 1400-4	 	Note receivable	 	 	1,147,664	 	 	 	 	 
	*
	 	NR Rollforward (Corp)	 	Co. 1 001 1400-5	 	Note receivable	 	 	1,032,986	 	 	 	 	 
	*
	 	NR Rollforward (Corp)	 	Co. 1 9402 1400-3	 	Note receivable	 	 	609	 	 	 	 	 
	Sarah Scruggs
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-1	 	Residency Program	 	 	67,548,47	 	 	 	 	 
	Stacy Dillard
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-2	 	Residency Program	 	 	85,986.10	 	 	 	 	 
	Robert Brian Martin
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-3	 	Residency Program	 	 	129,129.84	 	 	 	 	 
	Benjamin Bayer
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-4	 	Residency Program	 	 	85,277.07	 	 	 	 	 
	Amanda Duffy
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-5	 	Residency Program	 	 	103,416.52	 	 	 	 	 
	Laura Seibert
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-6	 	Residency Program	 	 	91,488.41	 	 	 	 	 
	Melissa Holahan
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-7	 	Residency Program	 	 	81,757.10	 	 	 	 	 
	Jerome Gagnon
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-8	 	Residency Program	 	 	30,468.88	 	 	 	 	 
	Michelle France
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-9	 	Residency Program	 	 	32,297.96	 	 	 	 	 
	Brian MacKie
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-10	 	Residency Program	 	 	29,872.80	 	 	 	 	 
	Anthony Acquaviva
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-11	 	Residency Program	 	 	56,238.38	 	 	 	 	 
	Donna Almondia
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-12	 	Residency Program	 	 	49,014.87	 	 	 	 	 
	Christie Anderson
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-13	 	Residency Program	 	 	57,691.61	 	 	 	 	 
	April Durtschi
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-14	 	Residency Program	 	 	64,382.70	 	 	 	 	 
	Jeanne Ficociello
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-15	 	Residency Program	 	 	81,138.77	 	 	 	 	 
	Ketaki Kamik
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-16	 	Residency Program	 	 	104,967.51	 	 	 	 	 
	Meredith Miller
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-17	 	Residency Program	 	 	64,313.07	 	 	 	 	 
	Elizabeth Orcutt
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-18	 	Residency Program	 	 	62,223.41	 	 	 	 	 
	Shanna Pace
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-19	 	Residency Program	 	 	48,592.50	 	 	 	 	 
	Alix Partnow
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-20	 	Residency Program	 	 	46,562.48	 	 	 	 	 
	Kerensa Rechner
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-21	 	Residency Program	 	 	58,600.86	 	 	 	 	 
	Meghan Sullivan
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-22	 	Residency Program	 	 	76,497.47	 	 	 	 	 
	Netalle Tabacca
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-23	 	Residency Program	 	 	71,255.14	 	 	 	 	 
	Marcos Unis
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-24	 	Residency Program	 	 	53,451.59	 	 	 	 	 
	William Fitzpatrick
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-25	 	Residency Program	 	 	19,820.99	 	 	 	 	 
	Matthew Hamilton
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-26	 	Residency Program	 	 	54,838.28	 	 	 	 	 
	Maura Carney
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-27	 	Residency Program	 	 	60,570.98	 	 	 	 	 
	Jenefer Stillion
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-28	 	Residency Program	 	 	56,936.20	 	 	 	 	 
	Diana Allevato
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-29	 	Residency Program	 	 	41,479.87	 	 	 	 	 
	Mary Buelow
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-30	 	Residency Program	 	 	41,823.20	 	 	 	 	 
	Tai Casagrande
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-31	 	Residency Program	 	 	35,907.83	 	 	 	 	 
	Loren Cohen
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-32	 	Residency Program	 	 	46,740.41	 	 	 	 	 
	Bill Draper
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-33	 	Residency Program	 	 	46,668.47	 	 	 	 	 
	Russell Fugazzi
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-34	 	Residency Program	 	 	35,672.34	 	 	 	 	 
	Jin Heo
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-35	 	Residency Program	 	 	37,599.26	 	 	 	 	 
	Leilani Ireland
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-36	 	Residency Program	 	 	40,495.36	 	 	 	 	 
	Shanti Jha
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-37	 	Residency Program	 	 	49,767.38	 	 	 	 	 
	Amy Komitor
	 	NR Rollforward (Hosp)	 	Co. 1 60001410-38	 	Residency Program	 	 	14,675.51	 	 	 	 	 
	Holly MacLea
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-39	 	Residency Program	 	 	49,358.70	 	 	 	 	 
	Jessica Markovich
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-40	 	Residency Program	 	 	44,871.09	 	 	 	 	 
	Kristin Miller
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-41	 	Residency Program	 	 	29,380.41	 	 	 	 	 
	Nora Ortinau
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-42	 	Residency Program	 	 	33,262.79	 	 	 	 	 
	Andrea Peterson
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-43	 	Residency Program	 	 	39,406.22	 	 	 	 	 
	Adam Porter
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-44	 	Residency Program	 	 	44,050.45	 	 	 	 	 
	Lauren Talarico
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-45	 	Residency Program	 	 	36,680.02	 	 	 	 	 
	Chantal Tu
	 	NR Rollforward (Hosp)	 	Co. 1 6000 1410-46	 	Residency Program	 	 	44,672.91	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	$	4,717,912	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SPS Inc. “Vetsource” — Ml
	 	Investment Rollforward	 	Co. 1 001 1960-2	 	Investment	 	$	1,116,227	 	 	 	 	 
	Broadway
	 	Investment Rollforward	 	Co. 1 9500 1960-2	 	Investment	 	 	2,511,496	 	 	 	 	 
	AVC — Canada
	 	Investment Rollforward	 	Co. 1 001 1960-2	 	Investment	 	 	6,131,238	 	 	 	 	 
	Animal Specialty Center
	 	Investment Rollforward	 	Co. 1 814 1960-2	 	Investment	 	 	1,077,000	 	 	 	 	 
	Phoenix Lab common stock
	 	Other LT Assets R/F	 	Co. 1 001 1950-1	 	Investment (acq’d PCI)	 	 	37,196	 	 	 	 	 
	*
	 	Leadsheet	 	Co. 3 1970-1	 	Investment	 	 	8,444,643	 	 	 	 	 
	Antech Service Agreements Other Receivable
	 	Leadsheet	 	Co. 3 1970-2	 	Investment	 	 	113,954	 	 	 	 	 
	Antech Lease Receivables
	 	Leadsheet	 	Co. 3 1971-1	 	Investment	 	 	3,545,007	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	$	22,976,761	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Other
	 	 	 	 	 	 	 	 	 	 	 	 	-	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	27,694,673	 	 	 	 	 







 




			
	*	 	The employee/description has been omitted and filed separately with the Securities and Exchange Commission.



Page 2 of 2












 





EXHIBIT A-1 TO

CREDIT AND GUARANTY AGREEMENT




FUNDING NOTICE




     Reference is made to the Credit and Guaranty Agreement, dated as of August 19, 2010 (as it may
be amended, supplemented or otherwise modified, the “Credit Agreement”; the terms defined therein
and not otherwise defined herein being used herein as therein defined), by and among VICAR
OPERATING, INC. (“Company”), VCA ANTECH, INC., (“Holdings”) and certain Subsidiaries of Company, as
Guarantors, the Lenders party thereto from time to time, WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent, Collateral Agent, Issuing Bank and Swing Line Lender, BANK OF AMERICA, N.A.,
as Syndication Agent and the other agents party thereto.



     Pursuant to the applicable Section of the Credit Agreement (2.2 for Revolving Loans; 2.3 for
Swing Line Loans), Company desires that Lenders make the following Loans to Company in accordance
with the applicable terms and conditions of the Credit Agreement on [mm/dd/yy] (the “Credit
Date”):




	 	1.	 	Revolving Loans






	 	•	 	 Base Rate Loans:         
              
              
             $[___,___,___]
	 
	 	•	 	Eurodollar Rate Loans, with an

Initial Interest Period of ________

Month(s):           
              
               
                
      $[___,___,___]






	 	2.	 	Swing Line Loans:           
               
                
               $[___,___,___]






	 	•	 	 Base Rate Loans:           
               
                
        $[___,___,___]





     Company hereby certifies that:




     (i) with respect to any Revolving Loan, after making any such Loan requested on such
Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving
Commitments then in effect;




     (ii) as of the Credit Date, the representations and warranties contained in each of the
Credit Documents are true, correct and complete in all material respects on and as of such
Credit Date to the same extent as though made on and as of such date, except to
the extent such representations and warranties specifically relate to an earlier date, in



A-1-1









 






which case such representations and warranties are true, correct and complete in all
material respects on and as of such earlier date; provided, that, in each case, the
foregoing materiality qualifier shall not be applicable to any representation and warranties
that already are qualified or modified by materiality in the text thereof;




     (iii) as of such Credit Date, no event has occurred and is continuing or would result
from the consummation of the borrowing contemplated hereby that would constitute an Event of
Default or a Default.



	 	 	 	 	 
	Date: [mm/dd/yy]              	VICAR OPERATING, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A-1-2









 






	 	 	 	 	 



EXHIBIT A-2 TO

CREDIT AND GUARANTY AGREEMENT




CONVERSION/CONTINUATION NOTICE





     Reference is made to the Credit and Guaranty Agreement, dated as of August 19, 2010 (as it may
be amended, supplemented or otherwise modified, the “Credit Agreement”; the terms defined therein
and not otherwise defined herein being used herein as therein defined), by and among VICAR
OPERATING, INC. (“Company”), VCA ANTECH, INC., (“Holdings”) and certain Subsidiaries of Company, as
Guarantors, the Lenders party thereto from time to time, WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent, Collateral Agent, Issuing Bank and Swing Line Lender, BANK OF AMERICA, N.A.,
as Syndication Agent and the other agents party thereto.



     Pursuant to Section 2.8 of the Credit Agreement, Company desires to convert or to continue the
following Loans, each such conversion and/or continuation to be effective as of [mm/dd/yy]:



     1. Term Loans:



	 	 	 	 	 

	 

	 	$[___,___,___]
	 	Eurodollar Rate Loans to Initial Interest
Period of be continued _______ month(s)
	 
	 	 	 	 
	 

	 	$[___,___,___]
	 	Base Rate Loans to be Initial Interest
Period of 

converted to Eurodollar  _______ month(s)
Rate Loans
	 
	 	 	 	 
	 

	 	$[___,___,___]
	 	Eurodollar Rate Loans to
be converted to Base Rate 

Loans






     2. Revolving Loans:





	 	 	 	 	 

	 

	 	$[___,___,___]
	 	Eurodollar Rate Loans to Initial Interest
Period of
 be continued _______ month(s)
	 
	 	 	 	 
	 

	 	$[___,___,___]
	 	Base Rate Loans to be Initial Interest
Period of 

converted to Eurodollar _______ month(s)

Rate Loans
	 
	 	 	 	 
	 

	 	$[___,___,___]
	 	Eurodollar Rate Loans to

be converted to Base Rate 

Loans






EXHIBIT A-2-1









 






     Company hereby certifies that as of the date hereof, no event has occurred and is continuing
or would result from the consummation of the conversion and/or continuation contemplated hereby
that would constitute an Event of Default or a Default.



	 	 	 	 	 
	Date: [mm/dd/yy]        	VICAR OPERATING, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



EXHIBIT A-2-2









 






	 	 	 	 	 



EXHIBIT A-3 TO

CREDIT AND GUARANTY AGREEMENT




ISSUANCE NOTICE





     Reference is made to the Credit and Guaranty Agreement, dated as of August 19, 2010 (as it may
be amended, supplemented or otherwise modified, the “Credit Agreement”; the terms defined therein
and not otherwise defined herein being used herein as therein defined), by and among VICAR
OPERATING, INC. (“Company”), VCA ANTECH, INC., (“Holdings”) and certain Subsidiaries of Company, as
Guarantors, the Lenders party thereto from time to time, WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent, Collateral Agent, Issuing Bank and Swing Line Lender, BANK OF AMERICA, N.A.,
as Syndication Agent and the other agents party thereto.



     Pursuant to Section 2.23 of the Credit Agreement, Company desires a Letter of Credit to be
issued in accordance with the terms and conditions of the Credit Agreement on [mm/dd/yy] (the
“Credit Date”) in an aggregate face amount of $[___,___,___].



     Attached hereto for each such Letter of Credit are the following:



               (a) the stated amount of such Letter of Credit;



               (b) the name and address of the beneficiary;



               (c) the expiration date; and




          (d) either (i) the verbatim text of such proposed Letter of Credit, or (ii) a
description of the proposed terms and conditions of such Letter of Credit, including a
precise description of any documents to be presented by the beneficiary which, if presented
by the beneficiary prior to the expiration date of such Letter of Credit, would require the
Issuing Lender to make payment under such Letter of Credit.



     Company hereby certifies that:




     (i) after issuing such Letter of Credit requested on the Credit Date, the Total
Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in
effect;




     (ii) as of the Credit Date, the representations and warranties contained in each of the
Credit Documents are true, correct and complete in all material respects on and as of such
Credit Date to the same extent as though made on and as of such date, except to the extent
such representations and warranties specifically relate to an earlier date, in which case
such representations and warranties are true, correct and complete in all material respects
on and as of such earlier date; provided, that, in each case, the foregoing



EXHIBIT A-3-1









 






materiality qualifier shall not be applicable to any representation and warranties that
already are qualified or modified by materiality in the text thereof;




     (iii) as of such Credit Date, no event has occurred and is continuing or would result
from the consummation of the issuance contemplated hereby that would constitute an Event of
Default or a Default.



	 	 	 	 	 
	Date: [mm/dd/yy]                    	VICAR OPERATING, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



EXHIBIT A-3-2









 






	 	 	 	 	 



EXHIBIT B-1 TO

CREDIT AND GUARANTY AGREEMENT




TERM LOAN NOTE




			
	 	 	 
	$[1][___,___,___]
	 	[2][mm/dd/yy]






     FOR VALUE RECEIVED, VICAR OPERATING, INC., a Delaware corporation (“Company”), promises to pay
[NAME OF LENDER] (“Payee”) or its registered assigns the principal amount of [1][DOLLARS]
($[___,___,___][1]) in the installments referred to below.



     Company also promises to pay interest on the unpaid principal amount hereof, from the date
hereof until paid in full, at the rates and at the times which shall be determined in accordance
with the provisions of that certain Credit and Guaranty Agreement, dated as of August 19, 2010 (as
it may be amended, supplemented or otherwise modified, the “Credit Agreement”; the terms defined
therein and not otherwise defined herein being used herein as therein defined), by and among VICAR
OPERATING, INC. (“Company”), VCA ANTECH, INC., (“Holdings”) and certain Subsidiaries of Company, as
Guarantors, the Lenders party thereto from time to time, WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent (in such capacity, the “Administrative Agent”), Collateral Agent, Issuing Bank
and Swing Line Lender, BANK OF AMERICA, N.A., as Syndication Agent and the other agents party
thereto.



     Company shall make principal payments on this Note as set forth in Section 2.11 of the Credit
Agreement.



     This Note is one of the “Term Notes” in respect of [Closing Date Term Loans in the aggregate
principal amount of $500,000,000] [New Term Loans in the aggregate principal amount of $___________
for the Series of which the New Term Loan evidenced by this Note is a part] and is issued pursuant
to and entitled to the benefits of the Credit Agreement, to which reference is hereby made for a
more complete statement of the terms and conditions under which the [New] Term Loan evidenced
hereby was made and is to be repaid.



     All payments of principal and interest in respect of this Note shall be made in lawful money
of the United States of America in same day funds at the Principal Office of Administrative Agent
or at such other place as shall be designated in writing for such purpose in accordance with the
terms of the Credit Agreement. Unless and until an Assignment Agreement effecting the assignment
or transfer of this Note shall have been accepted by Administrative
Agent and recorded in the Register, Company, each Agent and Lenders shall be entitled to deem





 




			
	[1]	 	Lender’s Term Loan Commitment
	 
	[2]	 	Date of Issuance




EXHIBIT B-1-1









 









and treat Payee as the owner and holder of this Note and the Loan evidenced hereby. Payee hereby
agrees, by its acceptance hereof, that before disposing of this Note or any part hereof it will
make a notation hereon of all principal payments previously made hereunder and of the date to which
interest hereon has been paid; provided, the failure to make a notation of any payment made on this
Note shall not limit or otherwise affect the obligations of Company hereunder with respect to
payments of principal of or interest on this Note.




     This Note is subject to mandatory prepayment and to prepayment at the option of Company, each
as provided in the Credit Agreement.



     THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE HEREUNDER SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.



     Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this
Note, together with all accrued and unpaid interest thereon, may become, or may be declared to be,
due and payable in the manner, upon the conditions and with the effect provided in the Credit
Agreement.



     The terms of this Note are subject to amendment only in the manner provided in the Credit
Agreement.



     This Note is subject to restrictions on transfer or assignment as provided in the Credit
Agreement.



EXHIBIT B-1-2









 





     IN WITNESS WHEREOF, Company has caused this Note to be duly executed and delivered by its
officer thereunto duly authorized as of the date and at the place first written above.



	 	 	 	 	 
	 	VICAR OPERATING, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



EXHIBIT B-1-3









 






	 	 	 	 	 



EXHIBIT B-2 TO

CREDIT AND GUARANTY AGREEMENT




REVOLVING LOAN NOTE




			
	 	 	 
	$[1][___,___,___]
	 	[2][mm/dd/yy]






     FOR VALUE RECEIVED, VICAR OPERATING, INC., a Delaware corporation (“Company”), promises to pay
[NAME OF LENDER] (“Payee”) or its registered assigns, on or before [mm/dd/yy], the lesser of (a)
[1][DOLLARS] ($[1][___,___,___]) and (b) the unpaid principal amount of all advances made by Payee
to Company as Revolving Loans under the Credit Agreement referred to below.



     Company also promises to pay interest on the unpaid principal amount hereof, from the date
hereof until paid in full, at the rates and at the times which shall be determined in accordance
with the provisions of that certain Credit and Guaranty Agreement, dated as of August 19, 2010 (as
it may be amended, supplemented or otherwise modified, the “Credit Agreement”; the terms defined
therein and not otherwise defined herein being used herein as therein defined), by and among VICAR
OPERATING, INC. (“Company”), VCA ANTECH, INC., (“Holdings”) and certain Subsidiaries of Company, as
Guarantors, the Lenders party thereto from time to time, WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent (in such capacity, the “Administrative Agent”), Collateral Agent, Issuing Bank
and Swing Line Lender, BANK OF AMERICA, N.A., as Syndication Agent and the other agents party
thereto.



     This Note is one of the “Revolving Loan Notes” in the aggregate principal amount of
$100,000,000[3] and is issued pursuant to and entitled to the benefits of the Credit Agreement, to
which reference is hereby made for a more complete statement of the terms and conditions under
which the Loans evidenced hereby were made and are to be repaid.



     All payments of principal and interest in respect of this Note shall be made in lawful money
of the United States of America in same day funds at the Principal Office of Administrative Agent
or at such other place as shall be designated in writing for such purpose in accordance with the
terms of the Credit Agreement. Unless and until an Assignment Agreement effecting the assignment
or transfer of this Note shall have been accepted by Administrative Agent and recorded in the
Register, Company, each Agent and Lenders shall be entitled to deem
and treat Payee as the owner and holder of this Note and the Loans evidenced hereby. Payee





 




			
	[1]	 	Lender’s Revolving Credit Commitment
	 
	[2]	 	Date of Issuance
	 
	[3]	 	To be increased if New Revolving Loan Commitments are entered into




EXHIBIT B-2-1









 









hereby agrees, by its acceptance hereof, that before disposing of this Note or any part hereof it
will make a notation hereon of all principal payments previously made hereunder and of the date to
which interest hereon has been paid; provided, the failure to make a notation of any payment made
on this Note shall not limit or otherwise affect the obligations of Company hereunder with respect
to payments of principal of or interest on this Note.




     This Note is subject to mandatory prepayment and to prepayment at the option of Company, each
as provided in the Credit Agreement.



     THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE HEREUNDER SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.



     Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this
Note, together with all accrued and unpaid interest thereon, may become, or may be declared to be,
due and payable in the manner, upon the conditions and with the effect provided in the Credit
Agreement.



     The terms of this Note are subject to amendment only in the manner provided in the Credit
Agreement.



     This Note is subject to restrictions on transfer or assignment as provided in the Credit
Agreement.



EXHIBIT B-2-2









 





     IN WITNESS WHEREOF, Company has caused this Note to be duly executed and delivered by its
officer thereunto duly authorized as of the date and at the place first written above.



	 	 	 	 	 
	 	VICAR OPERATING, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



EXHIBIT B-2-3









 






	 	 	 	 	 



TRANSACTIONS

ON

REVOLVING LOAN NOTE




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Outstanding	 	 
	 	 	Type of	 	Amount of	 	Amount of	 	Principal	 	 
	 	 	Loan Made	 	Loan Made	 	Principal Paid	 	Balance	 	Notation
	Date	 	This Date	 	This Date	 	This Date	 	This Date	 	Made By
	 
	 	 	 	 	 	 	 	 	 	 






EXHIBIT B-2-4











 





EXHIBIT B-3 TO

CREDIT AND GUARANTY AGREEMENT




SWING LINE NOTE




			
	 	 	 
	$[1][___,___,___]
	 	[2][mm/dd/yy]






     FOR VALUE RECEIVED, VICAR OPERATING, INC., a Delaware corporation (“Company”), promises to pay
to WELLS FARGO BANK, NATIONAL ASSOCIATION, as Swing Line Lender (“Payee”), on or before [mm/dd/yy],
the lesser of (a) [1][DOLLARS] ($[___,___,___]) and (b) the unpaid principal amount of all advances
made by Payee to Company as Swing Line Loans under the Credit Agreement referred to below.



     Company also promises to pay interest on the unpaid principal amount hereof, from the date
hereof until paid in full, at the rates and at the times which shall be determined in accordance
with the provisions of that certain Credit and Guaranty Agreement, dated as of August 19, 2010 (as
it may be amended, supplemented or otherwise modified, the “Credit Agreement”; the terms defined
therein and not otherwise defined herein being used herein as therein defined), by and among VICAR
OPERATING, INC. (“Company”), VCA ANTECH, INC., (“Holdings”) and certain Subsidiaries of Company, as
Guarantors, the Lenders party thereto from time to time, WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent (in such capacity, the “Administrative Agent”), Collateral Agent, Issuing Bank
and Swing Line Lender, BANK OF AMERICA, N.A., as Syndication Agent and the other agents party
thereto.



     This Note is the “Swing Line Note” and is issued pursuant to and entitled to the benefits of
the Credit Agreement, to which reference is hereby made for a more complete statement of the terms
and conditions under which the Swing Line Loans evidenced hereby were made and are to be repaid.



     All payments of principal and interest in respect of this Note shall be made in lawful money
of the United States of America in same day funds at the Principal Office of Swing Line Lender or
at such other place as shall be designated in writing for such purpose in accordance with the terms
of the Credit Agreement.



     This Note is subject to mandatory prepayment and to prepayment at the option of Company, each
as provided in the Credit Agreement.





 




			
	[1] 	 	Swing Line Sublimit
	 
	[2] 	 	Date of Issuance




EXHIBIT B-3-1









 










     THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE HEREUNDER SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.



     Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this
Note, together with all accrued and unpaid interest thereon, may become, or may be declared to be,
due and payable in the manner, upon the conditions and with the effect provided in the Credit
Agreement.



     The terms of this Note are subject to amendment only in the manner provided in the Credit
Agreement.



     This Note is subject to restrictions on transfer or assignment as provided in the Credit
Agreement.



EXHIBIT B-3-2









 





     IN WITNESS WHEREOF, Company has caused this Note to be duly executed and delivered by its
officer thereunto duly authorized as of the date and at the place first written above.



	 	 	 	 	 
	 	VICAR OPERATING, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



EXHIBIT B-3-3









 






TRANSACTIONS

ON

SWING LINE NOTE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Outstanding	 	 	 	 
	 	 	Amount of	 	 	Amount of	 	 	Principal	 	 	 	 
	 	 	Loan Made	 	 	Principal Paid	 	 	Balance	 	 	Notation	 
	Date	 	This Date	 	 	This Date	 	 	This Date	 	 	Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





 









 






EXHIBIT C TO

CREDIT AND GUARANTY AGREEMENT




COMPLIANCE CERTIFICATE




THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS:




     1. I am the Chief Financial Officer of VCA ANTECH, INC. (“Holdings”) and VICAR OPERATING,
INC. (“Company”).



     2. I have reviewed the terms of that certain Credit and Guaranty Agreement, dated as of
August 19, 2010 (as it may be amended, supplemented or otherwise modified, the “Credit Agreement”;
the terms defined therein and not otherwise defined herein being used herein as therein defined),
by and among VICAR OPERATING, INC., VCA ANTECH, INC., and certain Subsidiaries of Company, as
Guarantors, the Lenders party thereto from time to time, WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent, Collateral Agent, Issuing Bank and Swing Line Lender, BANK OF AMERICA, N.A.,
as Syndication Agent and the other agents party thereto, and I have made, or have caused to be made
under my supervision, a review in reasonable detail of the transactions and condition of Company
and its Subsidiaries during the accounting period covered by the attached financial statements.



     3. The examination described in paragraph 2 above did not disclose, and I have no knowledge
of, the existence of any condition or event which constitutes an Event of Default or Default during
or at the end of the accounting period covered by the attached financial statements or as of the
date of this Certificate, except as set forth in a separate attachment, if any, to this
Certificate, describing in detail, the nature of the condition or event, the period during which it
has existed and the action which Company has taken, is taking, or proposes to take with respect to
each such condition or event.



     The foregoing certifications, together with the computations set forth in the Annex A hereto
and the financial statements delivered with this Certificate in support hereof, are made and
delivered [mm/dd/yy] pursuant to Section 5.1(d) of the Credit Agreement.



	 	 	 	 	 
	 	VCA ANTECH, INC.

VICAR OPERATING, INC.

 	 
	 	By:  	 	 
	 	 	Name:	 
	 	 	Title: Chief Financial Officer 	 
	 	 	 	 



 









 






	 	 	 	 	 



ANNEX A TO

COMPLIANCE CERTIFICATE




FOR THE FISCAL [QUARTER] [YEAR] ENDING [mm/dd/yy].




	 	 	 	 	 	 	 	 	 

	1. Consolidated Adjusted EBITDA: (i) - (ii) =	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 

	 	(i)
	 	(a)
	 	Consolidated Net Income:
	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	(b)
	 	Consolidated Interest Expense:
	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	(c)
	 	provisions for taxes based on income:
	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	(d)
	 	total depreciation expense:
	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	(e)
	 	total amortization expense:
	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	(f)
	 	non-cash stock based compensation
reducing Consolidated Net Income:
	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	(g)
	 	other non-Cash items, including write-offs of
assets, reducing Consolidated Net Income1:
	 	 $[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	(h)
	 	to the extent deducted in calculating
Consolidated Net Income, Transaction
Costs:
	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 	 	(ii)	 	other non-Cash items increasing
Consolidated Net Income1:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	2. Consolidated Fixed Charges: (i) + (ii) + (iii) + (iv) =	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 	 	(i)	 	Consolidated Cash Interest Expense:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 	 	(ii)	 	scheduled payments of principal (other than the
principal payment due on the Closing Date Term Loan
Maturity Date and on any New Term Loan Maturity Date)	 	 








 




			
	1	 	Excluding any such non-Cash item to the extent that it
represents an accrual or reserve for potential Cash items in any future
period or amortization of a prepaid Cash item that was paid in a prior
period but, notwithstanding anything to the contrary herein, including
without limitation, reserves for lease expense and other charges and
expenses related to the closure of hospitals to the extent not paid in
cash.
	 
	2	 	Excluding any such non-Cash item to the extent that it
represents the reversal of an accrual or reserve for potential Cash items in
any prior period.




EXHIBIT C-2









 










	 	 	 	 	 	 	 	 	 

	 	 	 	 	on Consolidated Total Debt:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 	 	(iii)	 	Consolidated Capital Expenditures3:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 	 	(iv)	 	provisions for current cash taxes based on income:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	3. Consolidated Net
Income: (i) - (ii) =	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 	 	(i)	 	the net income (or loss) of Company and its Subsidiaries
on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 

	 	(ii)
	 	(a)
	 	the income of any Person
(other than a Subsidiary of Company)
in which any other Person
(other than Company or any of its Subsidiaries)
has a joint interest, except to the extent of
the amount of dividends or other distributions
actually paid to Company or
any of its Subsidiaries by such Person:
	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	(b)
	 	the income (or plus the loss) of any Person accrued
prior to the date it becomes a Subsidiary of
Company or is merged into or consolidated
with Company or any of its Subsidiaries or that
Person’s assets are acquired by Company
or any of its Subsidiaries:
	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	(c)
	 	the income of any Subsidiary of Company
to the extent that the declaration or payment
of dividends or similar distributions by that
Subsidiary of that income is not at the time
permitted by operation of the terms of its charter
or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation
applicable to that Subsidiary:
	 	$[___,___,___]








 




			
	3	 	For any period, the aggregate of the expenditures of
Company and its Subsidiaries during such period determined on a
consolidated basis that, in accordance with GAAP, are or should be
included in “purchase of property and equipment” or similar items
reflected in the consolidated statement of cash flows of Company and its
Subsidiaries excluding any acquisition of assets that constitutes a
Permitted Acquisition; provided, however, that notwithstanding any of the
foregoing to the contrary, Consolidated Capital Expenditures shall include
expenditures of Company and its Subsidiaries with respect to assets
constituting a fee interest in real property acquired by Company or its
Subsidiaries other than in connection with a Permitted Acquisition.




EXHIBIT C-3









 










	 	 	 	 	 	 	 	 	 

	 

	 	 	 	(d)
	 	any after-tax gains (or plus any after-tax losses)
attributable to Asset Sales or returned surplus assets
of any Pension Plan:
	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	(e)
	 	to the extent not included in clauses (ii)(a)
through (d) above, any net extraordinary
gains (or plus any net extraordinary losses):
	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	4. Fixed Charge Coverage Ratio: (i)/(ii) =	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	(i)	 	Consolidated Adjusted EBITDA
for the four-Fiscal Quarter period then ended:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 	 	(ii)	 	Consolidated Fixed Charges
for such four-Fiscal Quarter period:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Actual:    
	 	_.__:1.00
	 

	 	 	 	 	 	Required:
	 	1.20:1.00
	 
	 	 	 	 	 	 	 	 
	5. Leverage Ratio: (i)/(ii) =	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	(i)	 	Consolidated Total Debt	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 	 	(ii)	 	Consolidated Adjusted EBITDA
for the four-Fiscal Quarter period then ended:	 	$[___,___,___]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Actual:    
	 	_.__:1.00
	 

	 	 	 	 	 	Required:
	 	3.00:1.00






EXHIBIT C-4









 






EXHIBIT D TO

CREDIT AND GUARANTY AGREEMENT




[Reserved]





EXHIBIT D-1











 





EXHIBIT E TO

CREDIT AND GUARANTY AGREEMENT




ASSIGNMENT AGREEMENT




     This ASSIGNMENT AGREEMENT (this “Agreement”), dated as of the Effective Date as set forth on
Schedule I annexed hereto (the “Effective Date”), by and between the parties signatory hereto and
designated as Assignor (“Assignor”) and Assignee (“Assignee”).



RECITALS:




     WHEREAS, Assignor is party to that certain Credit and Guaranty Agreement, dated as of August
19, 2010 (as it may be amended, supplemented or otherwise modified, the “Credit Agreement”; the
terms defined therein and not otherwise defined herein being used herein as therein defined), by
and among VICAR OPERATING, INC. (“Company”), VCA ANTECH, INC., (“Holdings”) and certain
Subsidiaries of Company, as Guarantors, the Lenders party thereto from time to time, WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Administrative Agent, Collateral Agent, Issuing Bank and Swing Line
Lender, BANK OF AMERICA, N.A., as Syndication Agent and the other agents party thereto; and



     WHEREAS, Assignor desires to sell and assign to Assignee, and Assignee desires to purchase and
assume from Assignor, certain rights and obligations of Assignor under the Credit Agreement.



     NOW, THEREFORE, in consideration of the agreements and covenants herein contained and for such
other valuable consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:



     Section 1. Assignment and Assumption. (a) Subject to the terms and conditions hereof, as of
the Effective Date, Assignor sells and assigns to Assignee, without recourse, representation or
warranty (except as expressly set forth herein), and Assignee purchases and assumes from Assignor,
the percentage interest specified on Schedule I, which is determined as a percentage of the
aggregate amount of all Term Loan Commitments, New Term Loan Commitments, Revolving Commitments and
outstanding Loans, in all of the rights and obligations with respect to the Term Loan Commitments,
New Term Loan Commitments, Revolving Commitments and outstanding Loans arising under the Credit
Agreement and the other Credit Documents (the “Assigned Share”).



          (b) Upon the occurrence of the Effective Date: the Assignee shall have the rights and
obligations of a “Lender” to the extent of the Assigned Share and shall thereafter be a party to
the Credit Agreement and a “Lender” for all purposes of the Credit Documents; Assignor shall, to
the extent of the Assigned Share, relinquish its rights (other than any rights which survive the
termination of the Credit Agreement under Section 10.8 thereof) and be released from its
obligations under the Credit Agreement; and the Commitments shall be




EXHIBIT E-1



 









 




modified to reflect the
Commitments of Assignee and the remaining Commitments of Assignor,
if any.




          (c) From and after the Effective Date, Administrative Agent shall make all payments under the
Credit Agreement in respect of the Assigned Share (i) in the case of any interest and fees that
shall have accrued prior to the Settlement Date, to Assignor, and (ii) in all other cases, to
Assignee; provided, Assignor and Assignee shall make payments directly to each other to the extent
necessary to effect any appropriate adjustments in any amounts distributed to Assignor and/or
Assignee by Administrative Agent under the Credit Documents in respect of the Assigned Share in the
event that, for any reason whatsoever, the payment of the applicable consideration for this
Assignment (the “Purchase Price”) occurs on a date other than the Settlement Date as set forth on
Schedule I annexed hereto (the “Settlement Date”).




     Section 2. Effective Date. Notwithstanding anything herein to the contrary, the Effective
Date shall not be deemed to have occurred until each of the following conditions are satisfied, as
determined in the reasonable judgment of each of Assignor, Assignee and Administrative Agent: the
execution of a counterpart hereof by each of Assignor and Assignee (and, if applicable, any
consents thereto required pursuant to Section 10.6(c)(ii) of the Credit Agreement other than any
such consent deemed to have been given pursuant to such section); the payment of the Purchase Price
on the Settlement Date; if applicable, the receipt by Administrative Agent of the processing and
recordation fee referred to in Section 10.6 of the Credit Agreement; in the event Assignee is a
Non-US Lender, the delivery by Assignee to Administrative Agent of such forms, certificates or
other evidence with respect to United States federal income tax withholding matters as Assignee may
be required to deliver to Administrative Agent pursuant to Section 2.19(c) of the Credit Agreement;
the receipt by Administrative Agent of originals or telefacsimiles of executed counterparts hereof
(including any consents thereto required pursuant to Section 10.6(c)(ii) of the Credit Agreement
other than any such consent deemed to have been given pursuant to such section); and the
recordation by Administrative Agent in the Register of the pertinent information regarding this
Assignment pursuant to Section 10.6 of the Credit Agreement.



     Section 3. Certain Representations, Warranties and Agreements. Assignor represents and
warrants to Assignee that Assignor is the legal and beneficial owner of the Assigned Share, free
and clear of any adverse claim.



          (a) Assignee represents and warrants to Assignor that (i) Assignee is an Eligible Assignee and
that it has experience and expertise in the making or purchasing of loans such as the Loans; (ii)
it has acquired the Assigned Share for its own account in the ordinary course of its business and
without a view to distribution of the Loans within the meaning of the Securities Act or the
Exchange Act or other federal securities laws (it being understood that, subject to the provisions
of Section 10.6 of the Credit Agreement, the disposition of the Assigned Share or any interests
therein shall at all times remain within its exclusive control); (iii) it has received, reviewed
and approved a copy of the Credit Agreement (including all Appendices, Schedules and Exhibits
thereto); and (iv) it has received from Assignor such financial information regarding Company and
its Subsidiaries as is available to Assignor and as Assignee




EXHIBIT E-2



 









 




has requested, that it has made its
own independent investigation of the financial condition and
affairs of Company and its Subsidiaries in connection with the assignment evidenced by this
Agreement, and that it has made and shall continue to make its own appraisal of the
creditworthiness of Company and its Subsidiaries. Assignor shall have no duty or responsibility,
either initially or on a continuing basis, to make any such investigation or any such appraisal on
behalf of Assignee or to provide Assignee with any other credit or other information with respect
thereto, whether coming into its possession before the making of the initial Loans or at any time
or times thereafter, and Assignor shall not have any responsibility with respect to the accuracy of
or the completeness of any information provided to Assignee.




          (b) Each party to this Agreement represents and warrants to the other party hereto that it has
full power and authority to enter into this Agreement and to perform its obligations hereunder in
accordance with the provisions hereof, that this Agreement has been duly authorized, executed and
delivered by such party and that this Agreement constitutes a legal, valid and binding obligation
of such party, enforceable against such party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors’ rights generally and by general principles of equity.




          (c) Assignor shall not be responsible to Assignee for the execution, effectiveness,
genuineness, validity, enforceability, collectability or sufficiency of any of the Credit Documents
or for any representations, warranties, recitals or statements made therein or made in any written
or oral statements or in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by Assignor to Assignee or by or on behalf of Company or any
of its Subsidiaries to Assignor or Assignee in connection with the Credit Documents and the
transactions contemplated thereby or for the financial condition or business affairs of Company or
any other Person liable for the payment of any Obligations, nor shall Assignor be required to
ascertain or inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Credit Documents or as to the use of
the proceeds of the Loans or as to the existence or possible existence of any Event of Default or
Default.




     Section 4. Miscellaneous. Assignor and Assignee each agrees from time to time, upon request
of such other party, to take such additional actions and to execute and deliver such additional
documents and instruments as such other party may reasonably request to effect the transactions
contemplated by, and to carry out the intent of, this Agreement. Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated, except by an instrument in writing
signed by the party (including, if applicable, any party required to evidence its consent to or
acceptance of this Agreement) against whom enforcement of such change, waiver, discharge or
termination is sought. Any notice or other communication herein required or permitted to be given
shall be given pursuant to Section 10.1 of the Credit Agreement, and all for purposes thereof, the
notice address of Assignor and Assignee shall be the addresses as set forth on Schedule I hereof.
In case any provision in or obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other jurisdiction,



EXHIBIT E-3



 









 




shall not
in any way be affected or impaired thereby. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective successors and assigns.
This Agreement may be executed in one or more counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be deemed an original,
but all such counterparts together shall constitute but one and the same instrument; signature
pages may be detached from multiple separate counterparts and attached to a single counterpart so
that all signature pages are physically attached to the same document.




     THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING, WITHOUT LIMITATION, SECTION 5-1404 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.



[Remainder of page intentionally left blank]



EXHIBIT E-4



 









 





     IN WITNESS WHEREOF, the parties hereto have caused their respective officers thereunto duly
authorized to execute and deliver this Agreement as of the Effective Date.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	[NAME OF ASSIGNOR], 

Assignor	 	 	 	[NAME OF
ASSIGNEE],

Assignee
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	 	 	Name:	 	 	 	 
	 

	 	Title:
	 	 	 	 	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	[*Consented to as of the Effective Date:	 	[*Consented to as of the Effective Date:
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	VICAR OPERATING, INC.,

as Company	 	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	 	 	Name:	 	 	 	 
	 

	 	Title:
	 	 	 	 	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 




*    Only if required pursuant to Section
10.6(c)(ii) of the Credit Agreement.]

*    Only if required pursuant to Section
10.6(c)(ii) of the Credit Agreement.]



EXHIBIT E-5



 









 





SCHEDULE I TO

ASSIGNMENT AGREEMENT



1. Effective Date: [mm/dd/yy]



2. Settlement Date: [mm/dd/yy]



3. Assigned Share:




	 	 	 	 	 	 	 	 	 
	 	 	Percentage	 	Principal Amount
	 
	Term Loan Commitments:
	 	 	__._____	%	 	$	 	 
	Term Loans
(other than New Term Loans):
	 	 	__._____	%	 	$	 	 
	New Term Loan Commitment (Series ):
	 	 	__._____	%	 	$	 	 
	New Term Loan (Series ):
	 	 	__._____	%	 	$	 	 
	Revolving Commitments:
	 	 	__._____	%	 	$	 	 






EXHIBIT E-6



 









 





1. Notice and Wire Instructions:




	 	 	 	 	 	 	 	 	 	 	 
	[NAME OF ASSIGNOR]	 	 	 	[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Notices:	 	 	 	Notices:	 	 
	 

	 	 

	 	 
	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 
	 	 
	 

	 	Attention:
	 	 	 	 	 	Attention:	 	 
	 

	 	Telecopier:
	 	 	 	 	 	Telecopier:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	with a copy to:	 	 	 	with a copy to:	 	 
	 

	 	 

	 	 	 	 	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 
	 	 
	 

	 	Attention:
	 	 	 	 	 	Attention:	 	 
	 

	 	Telecopier:
	 	 	 	 	 	Telecopier:	 	 
	 
	Wire Instructions:	 	 	 	Wire Instructions:	 	 






EXHIBIT E-7



 









 





EXHIBIT F TO

CREDIT AND GUARANTY AGREEMENT




CERTIFICATE RE NON-BANK STATUS




     Reference is made to the Credit and Guaranty Agreement, dated as of August 19, 2010 (as it may
be amended, supplemented or otherwise modified, the “Credit Agreement”; the terms defined therein
and not otherwise defined herein being used herein as therein defined), by and among VICAR
OPERATING, INC., VCA ANTECH, INC., and certain Subsidiaries of Company, as Guarantors, the Lenders
party thereto from time to time, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent,
Collateral Agent, Issuing Bank and Swing Line Lender, BANK OF AMERICA, N.A., as Syndication Agent
and the other agents party thereto. Pursuant to Section 2.19(c) of the Credit Agreement, the
undersigned hereby certifies that it is not a “bank” or other Person described in Section 881(c)(3)
of the Internal Revenue Code of 1986, as amended.



	 	 	 	 	 
	 	[NAME OF LENDER]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



EXHIBIT F-1




 











 





EXHIBIT G-1 TO

CREDIT AND GUARANTY AGREEMENT




CLOSING DATE CERTIFICATE

August 19, 2010




     THE UNDERSIGNED HEREBY CERTIFY AS FOLLOWS:



     1. We are, respectively, the chief executive officer and the chief financial officer of VCA
ANTECH, INC., a Delaware corporation (“Holdings”), and VICAR OPERATING, INC., a Delaware
corporation (“Company”).



     2. Pursuant to Sections 2.1 and 2.2 of the Credit and Guaranty Agreement, dated as of August
19, 2010 (as it may be amended, supplemented or otherwise modified, the “Credit Agreement”; the
terms defined therein and not otherwise defined herein being used herein as therein defined), by
and among VICAR OPERATING, INC., VCA ANTECH, INC., and certain Subsidiaries of Company, as
Guarantors, the Lenders party thereto from time to time, WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent, Collateral Agent, Issuing Bank and Swing Line Lender, BANK OF AMERICA, N.A.,
as Syndication Agent and the other agents party thereto, Company requests that Lenders make the
following Loans to Company on the Closing Date in accordance with Section 2.4 of the Credit
Agreement:



	 	 	 	 	 	 	 

	 

	 	(a)
	 	Term Loans:
	 	$[___,___,___]
	 
	 	 	 	 	 	 
	 

	 	(b)
	 	Revolving Loans:
	 	$[___,___,___]






     3. We have reviewed the terms of Sections 3 and 4 of the Credit Agreement and the definitions
and provisions contained in such Credit Agreement relating thereto, and in our opinion we have
made, or have caused to be made under our supervision, such examination or investigation as is
necessary to enable us to express an informed opinion as to the matters referred to herein.



     4. Based upon our review and examination described in paragraph (3) above, we certify, on
behalf of Company, that as of the date hereof:




     (a) with respect to any Revolving Loan, after making any such Loan requested on the
Closing Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving
Commitments then in effect;




     (b) as of the Closing Date, the representations and warranties contained in each of the
Credit Documents are true, correct and complete in all respects on and as of the Closing
Date to the same extent as though made on and as of such date, except to the extent such
representations and warranties specifically relate to an earlier date, in which case such
representations and warranties are true, correct and complete in all respects on and as of
such earlier date; provided, that, in each case, the foregoing materiality qualifier



EXHIBIT G-1-1









 






shall not be applicable to any representation and warranties that already are qualified or
modified by materiality in the text thereof;




     (c) as of the Closing Date, no injunction or other restraining order shall have been
issued and no hearing to cause an injunction or other restraining order to be issued shall
be pending or noticed with respect to any action, suit or proceeding seeking to enjoin or
otherwise prevent the consummation of, or to recover any damages or obtain relief as a
result of, the borrowing contemplated hereby; and




     (d) as of the Closing Date, no event has occurred and is continuing or would result
from the consummation of the borrowing contemplated hereby that would constitute an Event of
Default or a Default.




     3. Each Credit Party has requested Akin Gump Strauss Hauer Feld LLP to deliver to Agents and
Lenders on the Closing Date favorable written opinions setting forth such matters as Administrative
Agent may reasonably request.





     4. Company has previously delivered to Administrative Agent, true, complete and correct copies
of (a) the Historical Financial Statements, (b) pro forma consolidated financial statements of
Holdings and its Subsidiaries as of the last day of and for the four-quarter period most recently
ended prior to the Closing Date for which financial statements are available, giving pro forma
effect to the financings and the other transactions contemplated by the Credit Documents to occur
on or prior to the Closing Date, which pro forma financial statements were prepared in accordance
with Regulation S-X under the Securities Act and all other rules and regulations of the Securities
and Exchange Commission under the Securities Act, and including other adjustments reasonably
acceptable to Administrative Agent, and (c) the Projections.



[Remainder of page intentionally left blank]






EXHIBIT G-1-2









 








     The foregoing certifications are made and delivered as of the date first written above.



	 	 	 	 	 
	 	_________________________

Title: Chief Executive Officer





_________________________

Title: Chief Financial Officer
 	 



EXHIBIT G-1-3









 






	 	 	 	 	 



EXHIBIT G-2 TO

CREDIT AND GUARANTY AGREEMENT




SOLVENCY CERTIFICATE

August 19, 2010





     1. I am the chief financial officer of VCA ANTECH, INC., a Delaware corporation (“Holdings”),
and VICAR OPERATING, INC., a Delaware corporation (“Company”).



     2. Reference is made to the Credit and Guaranty Agreement, dated as of August 19, 2010 (as it
may be amended, supplemented or otherwise modified, the “Credit Agreement”; the terms defined
therein and not otherwise defined herein being used herein as therein defined), by and among VICAR
OPERATING, INC., VCA ANTECH, INC., and certain Subsidiaries of Company, as Guarantors, the Lenders
party thereto from time to time, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent,
Collateral Agent, Issuing Bank and Swing Line Lender, BANK OF AMERICA, N.A., as Syndication Agent
and the other agents party thereto.



     3. I have reviewed the terms of Section 3.1(g) of the Credit Agreement and the definitions
and provisions contained in the Credit Agreement relating thereto and, in my opinion, have made, or
have caused to be made under my supervision, such examination or investigation as is necessary to
enable me to express an informed opinion as to the matters referred to herein.



     4. Based upon my review and examination described in paragraph 3 above, I certify that as of
the date hereof, after giving effect to the consummation of the financings and the other
transactions contemplated by the Credit Documents, each Credit Party is Solvent.



[Remainder of page intentionally left blank]






EXHIBIT G-2-1









 








     The foregoing certifications are made and delivered as of the date first written above.



	 	 	 	 	 
	 	________________________

Title: Chief Financial Officer
 	 



EXHIBIT G-2-2









 






	 	 	 	 	 



EXHIBIT H TO

CREDIT AND GUARANTY AGREEMENT




COUNTERPART AGREEMENT





     This COUNTERPART AGREEMENT, dated [mm/dd/yy] (this “Counterpart Agreement”) is delivered
pursuant to that certain Credit and Guaranty Agreement, dated as of August 19, 2010 (as it may be
amended, supplemented or otherwise modified, the “Credit Agreement”; the terms defined therein and
not otherwise defined herein being used herein as therein defined), by and among VICAR OPERATING,
INC. (“Company”), VCA ANTECH, INC., (“Holdings”) and certain Subsidiaries of Company, as
Guarantors, the Lenders party thereto from time to time, WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent (in such capacity, “Administrative Agent”), Collateral Agent, Issuing Bank and
Swing Line Lender, BANK OF AMERICA, N.A., as Syndication Agent and the other agents party thereto.



     Section 1. Pursuant to Section 5.10 of the Credit Agreement, the undersigned hereby:



          (a) agrees that this Counterpart Agreement may be attached to the Credit Agreement and that by
the execution and delivery hereof, the undersigned becomes a Guarantor under the Credit Agreement
and agrees to be bound by all of the terms thereof;




          (b) represents and warrants that each of the representations and warranties set forth in the
Credit Agreement and each other Credit Document and applicable to the undersigned is true and
correct both before and after giving effect to this Counterpart Agreement, except to the extent
that any such representation and warranty relates solely to any earlier date, in which case such
representation and warranty is true and correct as of such earlier date; provided, that, in each
case, the foregoing materiality qualifier shall not be applicable to any representation and
warranties that already are qualified or modified by materiality in the text thereof;




          (c) agrees, subject to the provisions of Section 7.2 of the Credit Agreement, to irrevocably
and unconditionally guaranty the due and punctual payment in full of all Obligations when the same
shall become due, whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)) and in accordance with
Section 7 of the Credit Agreement; and




          (d) (i) agrees that this counterpart may be attached to the Pledge and Security Agreement,
dated as of August 19, 2010 (as it may be amended, supplemented or otherwise modified from time to
time, the “Pledge and Security Agreement”) among Company, each of the other Guarantors party
thereto and the Collateral Agent (as such term is defined in the Credit Agreement), (ii) agrees
that the undersigned will comply with all the terms and conditions of the Pledge and Security
Agreement as if it were an original signatory thereto, (iii) in accordance with the Pledge and
Security Agreement, grants to Collateral Agent a security interest in all of the undersigned’s
right, title and interest in and to all “Collateral” (as such term is defined in the






EXHIBIT H-1









 







Pledge and Security Agreement, it being understood for the avoidance of doubt that Section 1.4
of the Pledge and Security Agreement excludes certain assets from the definition of “Collateral” to
the extent set forth in such section, including, among other such excluded assets, the outstanding
capital stock of any Controlled Foreign Corporation in excess of 65% of the voting power of all
classes of capital stock of such Controlled Foreign Corporation entitled to vote to the extent set
forth in such section) of the undersigned, in each case whether now or hereafter existing or in
which the undersigned now has or hereafter acquires an interest and wherever the same may be
located and (iv) delivers to Collateral Agent supplements with respect to information relating to
the undersigned to all schedules attached to the Pledge and Security Agreement. All such
Collateral shall be deemed to be part of the “Collateral” and hereafter subject to each of the
terms and conditions of the Pledge and Security Agreement.




     Section 2. The undersigned agrees from time to time, upon request of Administrative Agent, to
take such additional actions and to execute and deliver such additional documents and instruments
as Administrative Agent may request to effect the transactions contemplated by, and to carry out
the intent of, this Agreement. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except by an instrument in writing signed by the party (including, if
applicable, any party required to evidence its consent to or acceptance of this Agreement) against
whom enforcement of such change, waiver, discharge or termination is sought. Any notice or other
communication herein required or permitted to be given shall be given in pursuant to Section 10.1
of the Credit Agreement, and all for purposes thereof, the notice address of the undersigned shall
be the address as set forth on the signature page hereof. In case any provision in or obligation
under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.



     THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1404 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
THEREOF.



EXHIBIT H-2









 





     IN WITNESS WHEREOF, the undersigned has caused this Counterpart Agreement to be duly executed
and delivered by its duly authorized officer as of the date above first written.



	 	 	 	 	 
	 	[NAME OF SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Address for Notices:




________________________




________________________




________________________



Attention:

Telecopier



with a copy to:




________________________




________________________




________________________



Attention:

Telecopier




ACKNOWLEDGED AND ACCEPTED,

as of the date above first written:




	 	 	 	 	 
	WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



EXHIBIT H-3









 






	 	 	 	 	 



EXHIBIT I TO

CREDIT AND GUARANTY AGREEMENT




[Reserved]






EXHIBIT I-1









 








EXHIBIT J TO

CREDIT AND GUARANTY AGREEMENT




MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS

AND LEASES AND FIXTURE FILING

(_________________________)




by and from



[_______________________________],

a [_______________],

“Mortgagor”



to



WELLS FARGO BANK, NATIONAL ASSOCIATION

as Collateral Agent,

“Mortgagee”



Dated as of ____________, 201[__]



THE SECURED PARTY (MORTGAGEE) DESIRES THIS FIXTURE FILING

TO BE INDEXED AGAINST THE RECORD OWNER OF THE REAL ESTATE

DESCRIBED HEREIN



PREPARED BY, RECORDING REQUESTED BY,

AND WHEN RECORDED MAIL TO:




Latham & Watkins LLP

885 Third Avenue

New York, New York 10022

Attention: Tamara Katz, Esq.





EXHIBIT J-1











 





MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF

RENTS AND LEASES AND FIXTURE FILING




     This MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND LEASES AND FIXTURE FILING dated as
of                 
    , 201[__] (this “Mortgage”), by
and from [              
                
                
                
                  ], a
[                
                 
       ] corporation (“Mortgagor”), having an
address at 12401 West Olympic
Blvd., Los Angeles, California 90064 to WELLS FARGO BANK, NATIONAL ASSOCIATION as collateral agent
for Lenders and Lender Counterparties (in such capacity as collateral agent, “Mortgagee”),
having an address at 333 South Grand Avenue, 9th Floor, Los Angeles, California 90071.



RECITALS:




     WHEREAS, Mortgagor is a party to that certain Credit and Guaranty Agreement, dated as of
August 19, 2010, by and among VICAR OPERATING, INC., a Delaware corporation (“Company”),
VCA ANTECH, INC., a Delaware corporation (“Holdings”), CERTAIN SUBSIDIARIES OF COMPANY, as
Guarantors (the “Guarantors”), the Lenders party thereto, WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent, Collateral Agent, Issuing Bank and Swing Line Lender, BANK OF
AMERICA, N.A., as Syndication Agent and the other agents party thereto, (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”; capitalized terms used herein but not otherwise defined shall have the meanings set
forth for such terms in the Credit Agreement);



     WHEREAS, subject to the terms and conditions of the Credit Agreement, Mortgagor may enter into
one or more Hedge Agreements and one or more Specified Cash Management Arrangements with one or
more Lender Counterparties; and



     WHEREAS, in consideration of the extensions of credit and other accommodations of Lenders and
Lender Counterparties as set forth in the Credit Agreement, the Hedge Agreements and the Specified
Cash Management Arrangements, respectively, Mortgagor has agreed, subject to the terms and
conditions hereof and of each other Credit Document and each of the Hedge Agreements and Specified
Cash Management Arrangements, to secure Mortgagor’s obligations under the Credit Documents, the
Hedge Agreements and the Specified Cash Management Arrangements as set forth herein.



     NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, Mortgagee and Mortgagor agree as follows:



SECTION 1. DEFINITIONS



1.1. Definitions. Capitalized terms used herein (including the recitals hereto) not otherwise
defined herein shall have the meanings ascribed thereto in the Credit Agreement. In addition, as




EXHIBIT J-2



 









 




used herein, the following terms shall have the following meanings:




     “Indebtedness” means all obligations and liabilities of every nature of Mortgagor now
or hereafter existing under or arising out of or in connection with the Credit Agreement and the
other Credit Documents and any Hedge Agreement and any Specified Cash Management Arrangement, in
each case together with all extensions or renewals thereof, whether for principal, interest
(including interest that, but for the filing of a petition in bankruptcy with respect to Company,
would accrue on such obligations, whether or not a claim is allowed against Company for such
interest in the related bankruptcy proceeding), payments for early termination of Hedge Agreements,
fees, expenses, indemnities or otherwise, whether voluntary or involuntary, direct or indirect,
absolute or contingent, liquidated or unliquidated, whether or not jointly owed with others, and
whether or not from time to time decreased or extinguished and later increased, created or
incurred, and all or any portion of such obligations or liabilities that are paid, to the extent
all or any part of such payment is avoided or recovered directly or indirectly from Mortgagor, any
Lender or Lender Counterparty as a preference, fraudulent transfer or otherwise, and all
obligations of every nature of Mortgagor now or hereafter existing under this Mortgage. The Credit
Agreement contains a revolving credit facility which permits Company to borrow certain principal
amounts, repay all or a portion of such principal amounts, and reborrow the amounts previously paid
to the Mortgagee or Lenders, all upon satisfaction of certain conditions stated in the Credit
Agreement. This Mortgage secures all advances and re-advances under the revolving credit feature
of the Credit Agreement.



     THIS
MORTGAGE SHALL CONTINUE TO SECURE THE ENTIRE INDEBTEDNESS UP TO A MAXIMUM PRINCIPAL
AMOUNT OF              
              
              
               
              
           ($  
           
              
             ), UNTIL THE
ENTIRE INDEBTEDNESS IS PAID IN
FULL.



     “Mortgaged Property” means all of Mortgagor’s interest in the real properties
generally identified on Schedule 1 attached hereto and incorporated herein by this reference and
more particularly described in Exhibits A-1 and A-2 attached hereto and incorporated herein by this
reference, together with any greater estate therein as hereafter may be acquired by Mortgagor (the
“Land”); all improvements now owned or hereafter acquired by Mortgagor, now or at any time
situated, placed or constructed upon the Land (the “Improvements”); all materials,
supplies, equipment, apparatus and other items of personal property now owned or hereafter acquired
by Mortgagor and now or hereafter attached to, installed in or used in connection with any of the
Improvements or the Land, and water, gas, electrical, telephone, storm and sanitary sewer
facilities and all other utilities whether or not situated in easements (the “Fixtures”);
all leases, licenses, concessions, occupancy agreements or other agreements (written or oral, now
or at any time in effect) which grant to any Person (other than Mortgagor) a possessory interest
in, or the right to use, all or any part of the
Mortgaged Property, together with all related security and other deposits (the
“Leases”); all of the rents, revenues, royalties, income, proceeds, profits, security and
other types of deposits, and other benefits paid or payable by parties to the Leases for using,
leasing, licensing possessing, operating from, residing in, selling or otherwise enjoying the



EXHIBIT J-3



 









 





Mortgaged Property (the “Rents”), all other agreements, such as construction contracts,
architects’ agreements, engineers’ contracts, utility contracts, maintenance agreements, management
agreements, service contracts, listing agreements, guaranties, warranties, permits, licenses,
certificates and entitlements in any way relating to the construction, use, occupancy, operation,
maintenance, enjoyment or ownership of the Mortgaged Property (the “Property Agreements”);
all rights, privileges, tenements, hereditaments, rights-of-way, easements, appendages and
appurtenances appertaining to the foregoing; all property tax refunds (the “Tax Refunds”);
all accessions, replacements and substitutions for any of the foregoing and all proceeds thereof
(the “Proceeds”); all insurance policies, unearned premiums therefor and proceeds from such
policies covering any of the above property now or hereafter acquired by Mortgagor (the
“Insurance”); and all of Mortgagor’s right, title and interest in and to any awards,
damages, remunerations, reimbursements, settlements or compensation heretofore made or hereafter to
be made by any governmental authority pertaining to the Land, Improvements or Fixtures (the
“Condemnation Awards”). As used in this Mortgage, the term “Mortgaged Property”
shall mean all or, where the context permits or requires, any portion of the above or any interest
therein.




     “Obligations” means all of the agreements, covenants, conditions, warranties,
representations and other obligations of Mortgagor (including, without limitation, the obligation
to repay the Indebtedness) under the Credit Agreement, any other Credit Documents or any of the
Hedge Agreements or any of the Specified Cash Management Arrangements.



     “UCC” means the Uniform Commercial Code of New York or, if the creation, perfection
and enforcement of any security interest herein granted is governed by the laws of a state other
than New York, then, as to the matter in question, the Uniform Commercial Code in effect in that
state.



     1.2. Interpretation. References to “Sections” shall be to Sections of this Mortgage
unless otherwise specifically provided. Section headings in this Mortgage are included herein for
convenience of reference only and shall not constitute a part of this Mortgage for any other
purpose or be given any substantive effect. The rules of construction set forth in Section 1.3 of
the Credit Agreement shall be applicable to this Mortgage mutatis mutandis. If any conflict or
inconsistency exists between this Mortgage and the Credit Agreement, the Credit Agreement shall
govern.



SECTION 2. GRANT




     To secure the full and timely payment of the Indebtedness and the full and timely performance
of the Obligations, Mortgagor MORTGAGES, GRANTS, BARGAINS, ASSIGNS, SELLS and CONVEYS, to Mortgagee
the Mortgaged Property, subject, however, to the Permitted Liens, TO HAVE AND TO HOLD the Mortgaged
Property to Mortgagee, and Mortgagor does hereby bind itself, its successors and assigns to WARRANT
AND FOREVER DEFEND the title to the Mortgaged Property unto Mortgagee.



EXHIBIT J-4



 









 





SECTION 3. WARRANTIES, REPRESENTATIONS AND COVENANTS




     3.1. Title. Mortgagor represents and warrants to Mortgagee that (i) Mortgagor owns
the Mortgaged Property free and clear of any liens, claims or interests, except the Permitted
Liens, and (ii) this Mortgage creates valid, enforceable first priority liens and security
interests against the Mortgaged Property, subject to Permitted Liens.



     3.2. First Lien Status. Subject to Permitted Liens, Mortgagor shall preserve and
protect the first lien and security interest status of this Mortgage and the other Credit
Documents. If any lien or security interest other than a Permitted Lien is asserted against the
Mortgaged Property, Mortgagor shall promptly, and at its expense, (i) give Mortgagee a detailed
written notice of such lien or security interest (including origin, amount and other terms), and
(ii) at Mortgagor’s election, pay the underlying claim in full or take such other action so as to
cause it to be released or contest the same in compliance with the requirements of the Credit
Agreement.



     3.3. Payment and Performance. Mortgagor shall pay the Indebtedness when due under the
Credit Documents and shall perform the Obligations in full when they are required to be performed
as required under the Credit Documents.



     3.4. Replacement of Fixtures. Mortgagor shall not, without the prior written consent
of Mortgagee and subject to the provisions of the Credit Agreement, permit any of the Fixtures to
be removed at any time from the Land or Improvements, unless the removed item is removed
temporarily for maintenance and repair or, if removed permanently, is obsolete and is replaced by
an article of equal or better suitability and value, owned by Mortgagor subject to the liens and
security interests of this Mortgage and the other Credit Documents, and free and clear of any other
lien or security interest except such as may be permitted under the Credit Agreement or first
approved in writing by Mortgagee.



     3.5. Inspection. Mortgagor shall permit Mortgagee, and Mortgagee’s agents,
representatives and employees, upon reasonable prior notice to Mortgagor, and subject to the
provisions of the Credit Agreement, to inspect the Mortgaged Property and all books and records of
Mortgagor located thereon and to conduct such environmental and engineering studies as Mortgagee
may require; provided, such inspections and studies shall not materially interfere with the use and
operation of the Mortgaged Property.



     3.6. Covenants Running with the Land. All Obligations contained in this Mortgage are
intended by Mortgagor and Mortgagee to be, and shall be construed as, covenants running with the
Mortgaged Property. As used herein, “Mortgagor” shall refer to the party named in the first
paragraph of this Mortgage and to any subsequent owner of all or any portion of the Mortgaged
Property. All Persons who may have or acquire an interest in the Mortgaged Property shall be
deemed to have notice of, and be bound by, the terms of the Credit Agreement and the other Credit
Documents; however, no such party shall be entitled to any rights thereunder



EXHIBIT J-5



 









 




without the prior written consent of Mortgagee. In addition, all of the covenants of Mortgagor in
any Credit Document party thereto are incorporated herein by reference and, together with covenants
in this Section, shall be covenants running with the land.




     3.7. Condemnation Awards and Insurance Proceeds. Subject to the provisions of the
Credit Agreement, Mortgagor (i) assigns all awards and compensation to which it is entitled for any
condemnation or other taking, or any purchase in lieu thereof, to Mortgagee and authorizes
Mortgagee to collect and receive such awards and compensation and to give proper receipts and
acquittances therefor, subject to the terms of the Credit Agreement, (ii) assigns to Mortgagee all
proceeds of any insurance policies insuring against loss or damage to the Mortgaged Property, (iii)
authorizes Mortgagee to collect and receive such proceeds and authorizes and directs the issuer of
each of such insurance policies to make payment for all such losses directly to Mortgagee, instead
of to Mortgagor and Mortgagee jointly.



     3.8. Change in Tax Law. Upon the enactment of or change in (including, without
limitation, a change in interpretation of) any applicable law (i) deducting or allowing Mortgagor
to deduct from the value of the Mortgaged Property for the purpose of taxation any lien or security
interest thereon or (ii) subjecting Mortgagee or any of the Lenders to any tax or changing the
basis of taxation of mortgages, deeds of trust, or other liens or debts secured thereby, or the
manner of collection of such taxes, in each such case, so as to affect this
Mortgage, the Indebtedness or Mortgagee, and the result is to increase the taxes imposed upon or
the cost to Mortgagee of maintaining the Indebtedness, or to reduce the amount of any payments
receivable hereunder, then, and in any such event, Mortgagor shall, on demand, pay to Mortgagee and
the Lenders additional amounts to compensate for such increased costs or reduced amounts, provided
that if any such payment or reimbursement shall be unlawful, or taxable to Mortgagee, or would
constitute usury or render the Indebtedness wholly or partially usurious under applicable law, then
Mortgagor shall pay or reimburse Mortgagee or the Lenders for payment of the lawful and non
usurious portion thereof.



     3.9. Mortgage Tax. Mortgagor shall (i) pay when due any tax imposed upon it or upon
Mortgagee or any Lender pursuant to the tax law of the state in which the Mortgaged Property is
located in connection with the execution, delivery and recordation of this Mortgage and any of the
other Credit Documents, and (ii) execute and cause to be filed any form required to be executed and
filed in connection therewith.



     3.10. Reduction Of Secured Amount. In the event that the amount secured by this
Mortgage is less than the Indebtedness, then the amount secured shall be reduced only by the last
and final sums that Mortgagor or Company repays with respect to the Indebtedness and shall not be
reduced by any intervening repayments of the Indebtedness unless arising from the Mortgaged
Property. So long as the balance of the Indebtedness exceeds the amount secured, any payments of
the Indebtedness shall not be deemed to be applied against, or to reduce, the portion of the
Indebtedness secured by this Mortgage. Such payments shall instead be deemed to reduce only such
portions of the Indebtedness as are secured by other collateral located outside



EXHIBIT J-6



 









 




of the state in which the Mortgaged Property is located or as are unsecured.




SECTION 4. DEFAULT AND FORECLOSURE




     4.1. Remedies. If an Event of Default exists, Mortgagee may at Mortgagee’s election,
exercise any or all of the following rights, remedies and recourses (which are in addition to all
rights and remedies available under the Credit Agreement and the Pledge and Security Agreement):
(i) declare the Indebtedness to be immediately due and payable, pursuant to and in accordance with
the Credit Agreement without further notice, presentment, protest, notice of intent to accelerate,
notice of acceleration, demand or action of any nature whatsoever (each of which hereby is
expressly waived by Mortgagor), whereupon the same shall become immediately due and payable; (ii)
enter the Mortgaged Property and take exclusive possession thereof and of all books, records and
accounts relating thereto or located thereon (iii); if Mortgagor remains in possession of the
Mortgaged Property after an Event of Default and without Mortgagee’s prior written consent,
Mortgagee may invoke any legal remedies to dispossess Mortgagor; (iv) hold, lease, develop, manage,
operate or otherwise use the Mortgaged
Property upon such terms and conditions as Mortgagee may deem reasonable under the circumstances
(making such repairs, alterations, additions and improvements and taking other actions, from time
to time, as Mortgagee deems necessary or desirable), and apply all Rents and other amounts
collected by Mortgagee in connection therewith in accordance with the provisions hereof; and (v)
institute proceedings for the complete foreclosure of this Mortgage, either by judicial action or
by power of sale, in which case the Mortgaged Property may be sold for cash or credit in one or
more parcels. With respect to any notices required or permitted under the UCC, Mortgagor agrees
that ten (10) days’ prior written notice shall be deemed commercially reasonable. At any such sale
by virtue of any judicial proceedings, power of sale, or any other legal right, remedy or recourse,
the title to and right of possession of any such property shall pass to the purchaser thereof, and
to the fullest extent permitted by law, Mortgagor shall be completely and irrevocably divested of
all of its right, title, interest, claim, equity, equity of redemption, and demand whatsoever,
either at law or in equity, in and to the property sold and such sale shall be a perpetual bar both
at law and in equity against Mortgagor, and against all other Persons claiming or to claim the
property sold or any part thereof, by, through or under Mortgagor. Mortgagee may be a purchaser at
such sale and if Mortgagee is the highest bidder, Mortgagee may credit the portion of the purchase
price that would be distributed to Mortgagee against the Indebtedness in lieu of paying cash. In
the event this Mortgage is foreclosed by judicial action, appraisement of the Mortgaged Property is
waived and Mortgagee may make application to a court of competent jurisdiction for, and obtain from
such court as a matter of strict right and without notice to Mortgagor or regard to the adequacy of
the Mortgaged Property for the repayment of the Indebtedness, the appointment of a receiver of the
Mortgaged Property, and Mortgagor irrevocably consents to such appointment. Any such receiver
shall have all the usual powers and duties of receivers in similar cases, including the full power
to rent, maintain and otherwise operate the Mortgaged Property upon such terms as may be approved
by the court, and shall apply such Rents in accordance with the provisions hereof; and/or exercise
all other rights, remedies and recourses granted under the Credit Documents or otherwise available
at law



EXHIBIT J-7



 









 




or in equity.




     4.2. Separate Sales. The Mortgaged Property may be sold in one or more parcels and
in such manner and order as Mortgagee in its sole discretion may elect; the right of sale arising
out of any Event of Default shall not be exhausted by any one or more sales.



     4.3. Remedies Cumulative, Concurrent and Nonexclusive. Mortgagee shall have all
rights, remedies and recourses granted in the Credit Documents and available at law or equity
(including the UCC), which rights (i) shall be cumulated and concurrent, (ii) may be pursued
separately, successively or concurrently against Mortgagor or others obligated under the Credit
Documents, or against the Mortgaged Property, or against any one or more of them, at the sole
discretion of Mortgagee, (iii) may be exercised as often as occasion therefor shall arise, and the
exercise or failure to exercise any of them shall not be construed as a waiver or release thereof
or of any other right, remedy or recourse, and (iv) are intended to be, and shall be, nonexclusive.
No action by Mortgagee in the enforcement of any rights, remedies or recourses under the Credit
Documents or otherwise at law or equity shall be deemed to cure any Event of Default.



     4.4. Release of and Resort to Collateral. Mortgagee may release, regardless of
consideration and without the necessity for any notice to or consent by the holder of any
subordinate lien on the Mortgaged Property, any part of the Mortgaged Property without, as to the
remainder, in any way impairing, affecting, subordinating or releasing the lien or security
interest created in or evidenced by the Credit Documents or their status as a first and prior lien
and security interest in and to the Mortgaged Property. For payment of the Indebtedness, Mortgagee
may resort to any other security in such order and manner as Mortgagee may elect.



     4.5. Waiver of Redemption, Notice and Marshalling of Assets. To the fullest extent
permitted by law, Mortgagor hereby irrevocably and unconditionally waives and releases all benefit
that might accrue to Mortgagor by virtue of any present or future statute of limitations or law or
judicial decision exempting the Mortgaged Property from attachment, levy or sale on execution or
providing for any stay of execution, exemption from civil process, redemption or extension of time
for payment, all notices of any Event of Default or of Mortgagee’s election to exercise or the
actual exercise of any right, remedy or recourse provided for under the Credit Documents, and any
right to a marshalling of assets or a sale in inverse order of alienation.



     4.6. Discontinuance of Proceedings. If Mortgagee shall have proceeded to invoke any
right, remedy or recourse permitted under the Credit Documents and shall thereafter elect to
discontinue or abandon it for any reason, Mortgagee shall have the unqualified right to do so and,
in such an event, Mortgagor and Mortgagee shall be restored to their former positions with respect
to the Indebtedness, the Obligations, the Credit Documents, the Mortgaged Property and otherwise,
and the rights, remedies, recourses and powers of Mortgagee shall continue as if the right, remedy
or recourse had never been invoked, but no such discontinuance or abandonment shall waive any Event
of Default which may then exist or the right of Mortgagee thereafter to exercise any right, remedy
or recourse under the Credit Documents for such Event of Default.



EXHIBIT J-8



 









 





     4.7. Application of Proceeds. The proceeds of any sale of, and the Rents and other
amounts generated by the holding, leasing, management, operation or other use of the Mortgaged
Property, shall be applied by Mortgagee (or the receiver, if one is appointed) in the following
order unless otherwise required by applicable law: first, to the payment of the actual out of
pocket costs and expenses of taking possession of the Mortgaged Property and of holding, using,
leasing, repairing, improving and selling the same, including, without limitation receiver’s fees
and expenses, including the repayment of the amounts evidenced by any receiver’s certificates,
court costs, reasonable attorneys’ and accountants’ fees and expenses, and costs of
advertisement; and second, as provided in Section 2.14 of the Credit Agreement.



     4.8. Occupancy After Foreclosure. Any sale of the Mortgaged Property or any part
thereof will divest all right, title and interest of Mortgagor in and to the property sold.
Subject to applicable law, any purchaser at a foreclosure sale will receive immediate possession of
the property purchased. If Mortgagor retains possession of such property or any part thereof
subsequent to such sale, Mortgagor will be considered a tenant at sufferance of the purchaser, and
will, if Mortgagor remains in possession after demand to remove, be subject to eviction and
removal, forcible or otherwise, with or without process of law.



     4.9. Additional Advances and Disbursements; Costs of Enforcement. If any Event of
Default exists, Mortgagee shall have the right, but not the obligation, to cure such Event of
Default in the name and on behalf of Mortgagor. All sums advanced and expenses incurred at any
time by Mortgagee under this Section, or otherwise under this Mortgage or any of the other Credit
Documents or applicable law, shall bear interest from the date that such sum is advanced or expense
incurred, to and including the date of reimbursement, computed at the rate or rates at which
interest is then computed on the Indebtedness, and all such sums, together with interest thereon,
shall be secured by this Mortgage. Mortgagor shall pay all reasonable out of pocket expenses
(including reasonable attorneys’ fees and expenses) of or incidental to the perfection and
enforcement of this Mortgage and the other Credit Documents, or the enforcement, compromise or
settlement of the Indebtedness or any claim under this Mortgage and the other Credit Documents, and
for the curing thereof, or for defending or asserting the rights and claims of Mortgagee in respect
thereof, by litigation or otherwise.



     4.10. No Mortgagee in Possession. Neither the enforcement of any of the remedies
under this Section, the assignment of the Rents and Leases under Section 5, the security interests
under Section 6, nor any other remedies afforded to Mortgagee under the Credit Documents, at law or
in equity shall cause Mortgagee to be deemed or construed to be a mortgagee in possession of the
Mortgaged Property, to obligate Mortgagee to lease the Mortgaged Property or attempt to do so, or
to take any action, incur any expense, or perform or discharge any obligation, duty or liability
whatsoever under any of the Leases or otherwise.



     4.11. Waiver of Stay, Moratorium and Similar Rights. Mortgagor agrees, to the full
extent that it may lawfully do so, that it will not at any time insist upon or plead or in any way



EXHIBIT J-9



 









 




take advantage of any stay, marshalling of assets, extension, redemption or moratorium law now or
hereafter in force and effect so as to prevent or hinder the enforcement of the provisions of this
Mortgage or the Indebtedness secured hereby, or any agreement between Mortgagor and Mortgagee or
any rights or remedies of Mortgagee.




SECTION 5. ASSIGNMENT OF RENTS AND LEASES




     5.1. Assignment. In furtherance of and in addition to the assignment made by
Mortgagor herein, Mortgagor hereby absolutely and unconditionally assigns, sells, transfers and
conveys to Mortgagee all of its right, title and interest in and to all Leases, whether now
existing or hereafter entered into, and all of its right, title and interest in and to all Rents.
This assignment is an absolute assignment and not an assignment for additional security only. So
long as no Event of Default shall have occurred and be continuing, Mortgagor shall have a revocable
license from Mortgagee to exercise all rights extended to the landlord under the Leases, including
the right to receive and collect all Rents and to otherwise use the same. The foregoing license is
granted subject to the conditional limitation that no Event of Default shall have occurred and be
continuing. Upon the occurrence and during the continuance of an Event of Default, whether or not
legal proceedings have commenced, and without regard to waste, adequacy of security for the
Obligations or solvency of Mortgagor, the license herein granted shall automatically expire and
terminate, without notice by Mortgagee (any such notice being hereby expressly waived by
Mortgagor).



     5.2. Perfection Upon Recordation. Mortgagor acknowledges that Mortgagee has taken
all actions necessary to obtain, and that upon recordation of this Mortgage, Mortgagee shall have,
to the extent permitted under applicable law and subject to Permitted Liens, a valid and fully
perfected, first priority, present assignment of the Rents arising out of the Leases and all
security for such Leases. Mortgagor acknowledges and agrees that upon recordation of this
Mortgage, Mortgagee’s interest in the Rents shall be deemed to be fully perfected, “choate” and
enforced as to Mortgagor and all third parties, including, without limitation, any subsequently
appointed trustee in any case under Title 11 of the United States Code (the “Bankruptcy Code”),
without the necessity of commencing a foreclosure action with respect to this Mortgage, making
formal demand for the Rents, obtaining the appointment of a receiver or taking any other
affirmative action.



     5.3. Bankruptcy Provisions. Without limitation of the absolute nature of the
assignment of the Rents hereunder, Mortgagor and Mortgagee agree that (i) this Mortgage shall
constitute a “security agreement” for purposes of Section 552(b) of the Bankruptcy Code, (ii) the
security interest created by this Mortgage extends to property of Mortgagor acquired before the
commencement of a case in bankruptcy and to all amounts paid as Rents, and (iii) such security
interest shall extend to all Rents acquired by the estate after the commencement of any case in
bankruptcy.



     5.4. No Merger of Estates. So long as any part of the Indebtedness or the
Obligations



EXHIBIT J-10



 









 




secured hereby remain unpaid and undischarged, the fee and leasehold estates to the Mortgaged
Property shall not merge, but shall remain separate and distinct, notwithstanding the union of such
estates either in Mortgagor, Mortgagee, any tenant or any third party by purchase or otherwise.




SECTION 6. SECURITY AGREEMENT




     6.1. Security Interest. This Mortgage constitutes a “security agreement” on personal
property within the meaning of the UCC and other applicable law and with respect to the Fixtures,
Leases, Rents, Property Agreements, Tax Refunds, Proceeds, Insurance and Condemnation Awards. To
this end, Mortgagor grants to Mortgagee a first and prior security interest in the Fixtures,
Leases, Rents, Property Agreements, Tax Refunds, Proceeds, Insurance, Condemnation Awards to secure
the payment of the Indebtedness and performance of the Obligations, and agrees that Mortgagee shall
have all the rights and remedies of a secured party under the UCC with respect to such property.
Any notice of sale, disposition or other intended action by Mortgagee with respect to the Fixtures,
Leases, Rents, Property Agreements, Tax Refunds, Proceeds, Insurance and Condemnation Awards sent
to Mortgagor at least ten (10) days prior to any action under the UCC shall constitute reasonable
notice to Mortgagor.



     6.2. Financing Statements. Mortgagor shall execute and deliver to Mortgagee, in form
and substance satisfactory to Mortgagee, such financing statements and such further assurances as
Mortgagee may, from time to time, reasonably consider necessary to create, perfect and preserve
Mortgagee’s security interest hereunder and Mortgagee may cause such statements and assurances to
be recorded and filed, at such times and places as may be required or permitted by law to so
create, perfect and preserve such security interest. Mortgagor’s chief executive office is at the
address set forth in Appendix B of the Credit Agreement.



     6.3. Fixture Filing. This Mortgage shall also constitute a “fixture filing” for the
purposes of the UCC against all of the Mortgaged Property which is or is to become fixtures.
Information concerning the security interest herein granted may be obtained at the addresses of
Debtor (Mortgagor) and Secured Party (Mortgagee) as set forth in the first paragraph of this
Mortgage.



SECTION 7. ATTORNEY-IN-FACT




     Mortgagor hereby irrevocably appoints Mortgagee and its successors and assigns, as its
attorney-in-fact, which agency is coupled with an interest and with full power of substitution, (i)
to execute and/or record any notices of completion, cessation of labor or any other notices that
Mortgagee deems appropriate to protect Mortgagee’s interest, if Mortgagor shall fail to do so
within ten (10) days after written request by Mortgagee, (ii) upon the issuance of a deed pursuant
to the foreclosure of this Mortgage or the delivery of a deed in lieu of foreclosure, to execute
all instruments of assignment, conveyance or further assurance with respect to the Leases, Rents,
Fixtures, Property Agreements, Tax Refunds, Proceeds, Insurance and Condemnation Awards in



EXHIBIT J-11



 









 




favor of the grantee of any such deed and as may be necessary or desirable for such purpose, (iii)
to prepare, execute and file or record financing statements, continuation statements, applications
for registration and like papers necessary to create, perfect or preserve Mortgagee’s security
interests and rights in or to any of the Mortgaged Property and (iv) while any Event of Default
exists, to perform any obligation of Mortgagor hereunder; provided, (a) Mortgagee shall not under
any circumstances be obligated to perform any obligation of Mortgagor; (b) any sums advanced by
Mortgagee in such performance shall be added to and included in the Indebtedness and shall bear
interest at the rate or rates at which interest is then computed on the Indebtedness; (c) Mortgagee
as such attorney-in-fact shall only be accountable for such funds as are actually received by
Mortgagee; and (d) Mortgagee shall not be liable to Mortgagor or any other person or entity for any
failure to take any action which it is empowered to take under this Section.




SECTION 8. MORTGAGEE AS AGENT




     Mortgagee has been appointed to act as Mortgagee hereunder by Lenders and, by their acceptance
of the benefits hereof, Lender Counterparties. Mortgagee shall be obligated, and shall have the
right hereunder, to make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action (including the release or substitution of
Mortgaged Property), solely in accordance with this Mortgage and the Credit Agreement; provided,
Mortgagee shall exercise, or refrain from exercising, any remedies provided for herein in
accordance with the instructions of (i) Requisite Lenders, or (ii) after payment in full of all
Obligations under the Credit Agreement and the other Credit Documents, the holders of a majority of
the aggregate notional amount (or, with respect to any Hedge Agreement that has been terminated in
accordance with its terms, the amount then due and payable (exclusive of expenses and similar
payments but including any early termination payments then due) under such Hedge Agreement) under
all Hedge Agreements (Requisite Lenders or, if applicable, such holders being referred to herein as
“Requisite Obligees”). In furtherance of the foregoing provisions of this Section, each Lender
Counterparty, by its acceptance of the benefits hereof, agrees that it shall have no right
individually to realize upon any of the Mortgaged Property, it being understood and agreed by such
Lender Counterparty that all rights and remedies hereunder may be exercised solely by Mortgagee for
the benefit of Lenders and Lender Counterparties in accordance with the terms of this Section.
Mortgagee shall at all times be the same Person that is Collateral Agent under the Credit
Agreement. Written notice of resignation by Collateral Agent pursuant to terms of the Credit
Agreement shall also constitute notice of resignation as Mortgagee under this Mortgage; removal of
Collateral Agent pursuant to the terms of the Credit Agreement shall also constitute removal as
Mortgagee under this Mortgage; and appointment of a successor Collateral Agent pursuant to the
terms of the Credit Agreement shall also constitute appointment of a successor Mortgagee under this
Mortgage. Upon the acceptance of any appointment as Collateral Agent under the terms of the Credit
Agreement by a successor Collateral Agent, that successor Collateral Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges and duties of the
retiring or removed Mortgagee under this Mortgage, and the retiring or removed Mortgagee under this
Mortgage shall promptly (i) transfer to such successor Mortgagee all sums, securities



EXHIBIT J-12



 









 




and other items of Mortgaged Property held hereunder, together with all records and other documents
necessary or appropriate in connection with the performance of the duties of the successor
Mortgagee under this Mortgage, and (ii) execute and deliver to such successor Mortgagee such
amendments to financing statements, and take such other actions, as may be necessary or appropriate
in connection with the assignment to such successor Mortgagee of the security interests created
hereunder, whereupon such retiring or removed Mortgagee shall be discharged from its duties and
obligations under this Mortgage. After any retiring or removed Collateral Agent’s resignation or
removal hereunder as Mortgagee, the provisions of this Mortgage shall inure to its benefit as to
any actions taken or omitted to be taken by it under this Mortgage while it was Mortgagee
hereunder.




SECTION 9. LOCAL LAW PROVISIONS




     9.1. Inconsistencies. In the event of any inconsistencies between this Article 9 and any
other terms and provisions of this Mortgage, the terms and provisions of this Article 9 shall
control and be binding.



     9.2. Local Law Provisions.



     [TO BE PROVIDED BY LOCAL COUNSEL]



SECTION 10. MISCELLANEOUS




     Any notice required or permitted to be given under this Mortgage shall be given in accordance
with Section 10.1 of the Credit Agreement. No failure or delay on the part of Mortgagee in the
exercise of any power, right or privilege hereunder or under any other Credit Document shall impair
such power, right or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Mortgage and the other Credit Documents are cumulative to, and not
exclusive of, any rights or remedies otherwise available. In case any provision in or obligation
under this Mortgage shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
Subject to the provisions of the Credit Agreement, all covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted by
any of such covenants, the fact that it would be permitted by an exception to, or would otherwise
be within the limitations of, another covenant shall not avoid the occurrence of a Default or an
Event of Default if such action is taken or condition exists. This Mortgage shall be binding upon
and inure to the benefit of Mortgagee and Mortgagor and their respective successors and assigns.
Mortgagor shall not, without the prior written consent of Mortgagee, assign any rights, duties or
obligations hereunder. Upon payment in full of the Indebtedness and performance in full of the
Obligations (other than inchoate indemnification obligations with respect to claims, losses or



EXHIBIT J-13



 









 




liabilities which have not yet arisen and are not yet due and payable), Mortgagee, at Mortgagor’s
expense, shall release the liens and security interests created by this Mortgage or reconvey the
Mortgaged Property to Mortgagor. This Mortgage and the other Credit Documents embody the entire
agreement and understanding between Mortgagee and Mortgagor and supersede all prior agreements and
understandings between such parties relating to the subject matter hereof and thereof.
Accordingly, the Credit Documents may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements of the parties. There are no unwritten oral agreements between the
parties.




SECTION 11. MULTI SITE COLLATERAL




     If (a) the real property shall consist of one or more parcels, whether or not contiguous and
whether or not located in the same county or city, or (b) in addition to this Mortgage, Mortgagee
shall now or hereafter hold or be the mortgagee or beneficiary of one or more additional mortgages,
liens, deeds of trust or other security (directly or indirectly) securing the Indebtedness upon
other property in the State in which the real property is located (whether or not such property is
owned by Mortgagor or by others) or (c) both the circumstances described in clauses (a) and (b)
shall be true, then to the fullest extent permitted by law, Mortgagee may, at its election,
commence or consolidate in a single trustee’s sale or foreclosure action all trustee’s sale or
foreclosure proceedings against all such collateral securing the Indebtedness (including the
Mortgaged Property), which action may be brought or consolidated in the courts of, or sale
conducted in, any county or city in which any of such collateral is located. Mortgagor
acknowledges that the right to maintain a consolidated trustee’s sale or foreclosure action is a
specific inducement to Mortgagee to extend the Indebtedness, and Mortgagor expressly and
irrevocably waives any objections to the commencement or consolidation of the foreclosure
proceedings in a single action and any objections to the laying of venue or based on the grounds of
forum non conveniens which it may now or hereafter have. Mortgagor further agrees that if
Mortgagee shall be prosecuting one or more foreclosures or other proceedings against a portion of
the Mortgaged Property or against any collateral other than the Mortgaged Property, which
collateral directly or indirectly secures the Indebtedness, or if Mortgagee shall have obtained a
judgment of foreclosure and sale or similar judgment against such collateral (or, in the case of a
trustee’s sale, shall have met the statutory requirements therefor with respect to such
collateral),
then, whether or not such proceedings are being maintained or judgments were obtained in or outside
the State in which the real property are located, Mortgagee may commence or continue any trustee’s
sale or foreclosure proceedings and exercise its other remedies granted in this Mortgage against
all or any part of the Mortgaged Property and Mortgagor waives any objections to the commencement
or continuation of a foreclosure of this Mortgage or exercise of any other remedies hereunder based
on such other proceedings or judgments, and waives any right to seek to dismiss, stay, remove,
transfer or consolidate either any action under this Mortgage or such other proceedings on such
basis. The commencement or continuation of proceedings to sell the Mortgaged Property in a
trustee’s sale, to foreclose this Mortgage or the exercise of any other rights hereunder or the
recovery of any judgment by Mortgagee or the occurrence of any sale by the Mortgagee in any such
proceedings shall not prejudice, limit or preclude Mortgagee’s right to



EXHIBIT J-14



 









 




commence or continue one or more trustee’s sales, foreclosure or other proceedings or obtain a
judgment against (or, in the case of a trustee’s sale, to meet the statutory requirements for, any
such sale of) any other collateral (either in or outside the State in which the real property is
located) which directly or indirectly secures the Indebtedness, and Mortgagor expressly waives any
objections to the commencement of, continuation of, or entry of a judgment in such other sales or
proceedings or exercise of any remedies in such sales or proceedings based upon any action or
judgment connected to this Mortgagee, and Mortgagor also waives any right to seek to dismiss, stay,
remove, transfer or consolidate either such other sales or proceedings or any sale or action under
this Mortgage on such basis. It is expressly understood and agreed that to the fullest extent
permitted by law, Mortgagee may, at its election, cause the sale of all collateral which is the
subject of a single trustee’s sale or foreclosure action at either a single sale or at multiple
sales conducted simultaneously and take such other measures as are appropriate in order to effect
the agreement of the parties to dispose of and administer all collateral securing the Indebtedness
(directly or indirectly) in the most economical and least time consuming manner.




     THE PROVISIONS OF THIS MORTGAGE REGARDING THE CREATION, PERFECTION AND ENFORCEMENT OF THE
LIENS AND SECURITY INTERESTS HEREIN GRANTED SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF
THE STATE IN WHICH THE MORTGAGED PROPERTY IS LOCATED. ALL OTHER PROVISIONS OF THIS MORTGAGE AND
THE RIGHTS AND OBLIGATIONS OF MORTGAGOR AND MORTGAGEE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT
OF LAWS PRINCIPLES THEREOF



SIGNATURES APPEAR ON FOLLOWING PAGE



EXHIBIT J-15



 









 





     IN WITNESS WHEREOF, the undersigned, by its duly elected officer and pursuant to proper has
duly executed, sealed, acknowledged and delivered this instrument as of the day and year first
above written.



	 	 	 	 	 
	 	Mortgagor:

[            
               
              
                 
                
      ], a

[               
                
                 
            ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT J-16



 









 





State of      
               )

County of               
                )



Multi-State Corporate Acknowledgment: On                     , before me, the under—signed officer,
personally appeared            
          and     
                 personally
known and acknowledged them—selves
to me (or proved to me on the basis of satisfactory evidence) to be the    
               
               
               
               
                
               
               
               
                 
         
                
              , respectively
of                 
                
                 
           ,
a                  
                
                
            (hereinafter, the
“Corporation”) and that as such officer, being duly authorized to do so pursuant to its bylaws or a
resolution of its board of directors, executed, subscribed and acknowledged the foregoing
instru—ment for the purposes therein contained, by signing the name of the Corporation by
themselves in their authorized capacities as such officers as their free and voluntary act and deed
and the free and voluntary act and deed of said Corporation.



[To the extent this instrument was executed in the State of New York, the following is the
prescribed New York statutory form of acknowledgment and is supplemental to the foregoing
acknowledgment: On              
                 
           before me, the undersigned, a Notary Public in and for said
State, personally appeared              
                 
           and       
                  
            
    , personally known to me or proved
to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he / she / they executed the same
in his / her / their capacity(ies), and that by his / her / their signature(s) on the instrument,
the individual(s), or the person upon behalf of which the individual(s) acted, executed the
instrument.]




Witness my hand and official seal.




 


Notary Public

My commission expires:




EXHIBIT A TO

MORTGAGE




Legal Descriptions of Premises: (See attached)




EXHIBIT J-17



 









 





EXHIBIT A TO

MORTGAGE




Legal Descriptions of Premises: (See attached)



EXHIBIT J-18




 











 





EXHIBIT K TO

CREDIT AND GUARANTY AGREEMENT




FORM OF PERMITTED SELLER NOTE




MANDATORY PROVISIONS



          “Senior Agent” shall mean the Administrative Agent for the Lenders under the Senior
Credit Agreement, and its successors in such capacity, or if there is then no acting Administrative
Agent under the Senior Credit Agreement, persons holding a majority in principal amount of the
Senior Debt outstanding thereunder.




          “Senior Credit Agreement” shall mean the Credit and Guaranty Agreement, dated as of
August 19, 2010, by and among VICAR OPERATING, INC. (“Company”), VCA ANTECH, INC., and certain
Subsidiaries of Company, as Guarantors, the Lenders party thereto from time to time, WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Administrative Agent, Collateral Agent, Issuing Bank and Swing Line
Lender, BANK OF AMERICA, N.A., as Syndication Agent and the other parties thereto, together with
any credit agreement or similar document from time to time executed by the Company to evidence any
Refinancing (as defined in the definition of Senior Indebtedness) or successive Refinancings.




          “Senior Indebtedness” shall mean (i) all Obligations (as defined in the Senior Credit
Agreement) now or hereafter incurred pursuant to and in accordance with the terms of the Senior
Debt Documents, (ii) any other Indebtedness which is not, by its terms, expressly subordinated in
right of payment to this Note including, in the case of the amounts described in clause (i) and
(ii) any principal, prepayment charges, interest (including, without limitation, interest accruing
after the filing of a petition initiating any proceeding under the Bankruptcy Code, whether or not
allowed as a claim in such proceeding) indemnities or reimbursement of fees, expenses or other
amounts, and (iii) any indebtedness incurred for the purpose of refinancing, restructuring,
extending or renewing (collectively, “Refinancing”) the obligations of the Company under the Senior
Credit Agreement as set forth in clauses (i) and (ii) above.




          “Senior Debt Documents” shall mean the Senior Credit Agreement and all other documents
and instruments delivered or filed in connection with the creation or incurrence of any Senior
Indebtedness (including, without limitation, the guaranty agreements executed and delivered by the
subsidiaries of the Company in respect of the Obligations under the Senior Credit Agreement or
obligations under any other Senior Indebtedness).




          “Senior Lenders” shall mean the financial institutions party to the Senior Credit
Agreement as “Lenders” from time to time.




Section [   ]







EXHIBIT K-1









 








Subordination.




     [__](a) Agreement to Subordinate. The Company and, by its acceptance hereof, each
Holder agrees that the indebtedness of the Company evidenced by this Note, whether for principal,
interest or any other amount payable under or in respect hereof and all rights or claims arising
out of or associated with such Indebtedness (the “Subordinated Obligations”), shall be junior and
subordinate in right of payment to the prior payment in full in cash of all Senior Indebtedness, in
accordance with the provisions of this Section [   ]. Each holder of Senior Indebtedness shall be
deemed to have acquired Senior Indebtedness in reliance upon the agreements of the Company and the
holder of this Note contained in this Section [   ]. The provisions of this Section [   ] shall be
reinstated if at any time any payment of any of the Senior Indebtedness is rescinded or must
otherwise be returned by any holder of Senior Indebtedness or any representative of such holder
upon the insolvency, bankruptcy or reorganization of the Company. Any provision of this Note to
the contrary notwithstanding (other than the provision contained in Section [   ]), the Company
shall not make, and no Holder shall accept, any payment or prepayment of principal, or prepayment
of other amounts due thereunder, of any kind whatsoever (including without limitation by
distribution of assets, set off, exchange or any other manner) with respect to the Subordinated
Obligations at any time when any of the Senior Indebtedness remains outstanding unless permitted by
the terms of the Senior Credit Agreement. Holder may receive regularly scheduled payments of
principal and interest in respect of the Subordinated Obligations in accordance with the terms of
this Note except to the extent and at the times prohibited or restricted by the provisions of this
Section [   ]. In no event shall the Holder commence any action or proceeding to contest the
provisions of this Section [   ] or the priority of the Liens (as defined in the Senior Credit
Agreement) granted to the holders of the Senior Indebtedness by the Company. No Holder shall take,
accept or receive any collateral security from the Company for the payment of the Subordinated
Obligations.



     [__](b) Liquidation. Dissolution. Bankruptcy. In the event of any insolvency,
bankruptcy, dissolution, winding up, liquidation, arrangement, reorganization, marshalling of
assets or liabilities, composition, assignment for the benefit of creditors or other similar
proceedings relating to the Company, its debts, its property or its operations, whether voluntary
or involuntary, including, without limitation the filing of any petition or the taking of any
action to commence any of the foregoing (which, in the case of action by a third party, is not
dismissed within 60 days) (a “Bankruptcy Event”), all Senior Indebtedness shall first be paid in
full in cash or other immediately available funds before Holder shall be entitled to receive or
retain any payment or distribution of assets of the Company with respect to any Subordinated
Obligations. In the event of any such Bankruptcy Event, any payment or distribution of assets to
which Holder would be entitled if the Subordinated Obligations were not subordinated to the Senior
Indebtedness in accordance with this Section [   ], whether in cash, property, securities or
otherwise, shall be paid or delivered by the debtor, custodian, trustee or agent or other Person
making such payment or distribution, or by the Holder if received by it, directly to the Senior
Agent on behalf of the holders of the Senior Indebtedness for application to the payment of the



EXHIBIT K-2









 







Senior Indebtedness remaining unpaid, to the extent necessary to make payment in full in cash
or other immediately available funds of all Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to or for the holders of the Senior Indebtedness.



     [__](c) No Payments with Respect to Subordinated Obligations in Certain Circumstances.



          [(i)] In circumstances in which Section [   ](b) is not applicable, no payment of any nature
(including, without limitation, any distribution of assets) in respect of the Subordinated
Obligations (including, without limitation, pursuant to any judgment with respect thereto or on
account of the purchase or redemption or other acquisition of Subordinated Obligations, by set off,
prepayment exchange or other manner) shall be made by or on behalf of the Company if, at the time
of such payment:




               [(A)] a default in the payment when due (whether at the maturity thereof, or upon acceleration
of maturity or otherwise and without giving effect to any applicable grace periods) of all or any
portion of the Senior Indebtedness (whether of principal, interest or any other amount with respect
thereto) shall have occurred, and such default shall not have been cured or waived in accordance
with the terms of the Senior Debt Documents; or



               [(B)] subject to the last sentence of this Section [   ](c), (x) the Company shall have
received notice from the Senior Agent of the occurrence of one or more Events of Default (as
defined in the Senior Credit Agreement) in respect of the Senior Indebtedness (other than payment
defaults described in Section [   ](c)(i)(A) above), (y) any such Event of Default shall not have
been cured or waived in accordance with the terms of the Senior Debt Documents, and (z) 360 days
shall not have elapsed since the date such notice was received.



          The Company shall give prompt written notice to the Holder of (i) any default in respect of
Senior Obligations referred to in Section [__](c)(i)(A) and (ii) any notice of the type described
in Section [__](c)(i)(B) from the Senior Agent.




          The Company may resume payments (and may make any payments missed due to the application of
Section [   ](c)(i)) in respect of the Subordinated Obligations or any judgment with respect
thereto:





                    [(1)] in the case of a default referred to in clause (A) of this Section [
](c)(i), upon a cure or waiver thereof in accordance with the terms of the Senior
Debt Documents; or




                    [(2)] in the case of an Event of Default or Events of Default referred to in
clause (B) of this Section [   ](c)(i), upon the earlier to occur of (1) the cure or
waiver of all such Events of Default in accordance with the terms of the Senior Debt
Documents, or (2) the expiration of such period of 360 days.



EXHIBIT K-3









 





     [(ii)] Following any acceleration of the maturity of any Senior Indebtedness and as long as
such acceleration shall continue unrescinded and unannulled, such Senior Indebtedness shall first
be paid in full in cash before any payment is made on account of or applied on the Subordinated
Obligations.



     [__](d) When Distribution Must Be Paid Over. In the event that Holder shall receive
any payment or distribution of assets that Holder is not entitled to receive or retain under the
provisions of this Note, Holder shall hold any amount so received in trust for the holders of
Senior Indebtedness, shall segregate such assets from other assets held by Holder and shall
forthwith turn over such payment or distribution (without liability for interest thereon) to the
Senior Agent on behalf of the holders of Senior Indebtedness in the form received (with any
necessary endorsement) to be applied to Senior Indebtedness.



     [__](e) Exercise of Remedies. So long as any Senior Indebtedness is outstanding
(including any loans, any letters of credit, any commitments to lend or any lender guarantees),
Holder (solely in its capacity as a holder of this Note) shall not exercise any rights or remedies
with respect to an Event of Default under this Note, including, without limitation, any action (1)
to demand or sue for collection of amounts payable hereunder, (2) to accelerate the principal of
this Note, or (3) to commence or join with any other creditor (other than the holder of a majority
in principal amount of the Senior Indebtedness) in commencing any proceeding in connection with or
premised on the occurrence of a Bankruptcy Event prior to the earlier of:




               (A) the payment in full in cash or other immediately available funds of all Senior
Indebtedness;




               (B) the initiation of a proceeding (other than a proceeding prohibited by clause (3) of
this Section [   ](e)) in connection with or premised upon the occurrence of a Bankruptcy
Event;




               (C) the expiration of 360 days immediately following the receipt by the Senior Agent of
notice of the occurrence of such Event of Default from the Holder; and




               (D) the acceleration of the maturity of the Obligations under the Senior Credit
Agreement;


provided, however, that if, with respect to (B) and (D) above, such proceeding or
acceleration, respectively, is rescinded, or with respect to (C) above, during such 180-day period
such Event of Default has been cured or waived, the prohibition against taking the actions
described in this section [   ](e) shall automatically be reinstated as of the date of the
rescission, cure or waiver, as applicable. In all events, unless an event described in clause (A),
(B) or (D) above has occurred and not been rescinded, the Holder shall give thirty (30) days prior
written notice to the Senior Agent before taking any action described in this Section [   ](e),
which notice shall describe with


EXHIBIT K-4









 






specificity the action that the Holder in good faith intends to take.




     [__](f) Acceleration of Payment of Note. If this Note is declared due and payable
prior to its maturity date, no direct or indirect payment that is due solely by reason of such
declaration shall be made, nor shall application be made of any distribution of assets of the
Company (whether by set off or in any other manner, including, without limitation, from or by way
of collateral) to the payment, purchase or other acquisition or retirement of this Note, unless, in
either case, (i) all amounts due or to become due on or in respect of the Senior Indebtedness shall
have been previously paid in full in cash, (ii) all commitments to lend under Senior Indebtedness
shall have been terminated, (iii) all letters of credit issued pursuant to the Senior Debt
Documents shall have been cancelled or otherwise terminated, (iv) all guarantees constituting
Senior Indebtedness shall have been terminated and (v) all lender guarantees constituting Senior
Indebtedness shall have been permanently reduced to zero.



     [__](g) Proceedings Against Company. So long as any Senior Indebtedness is
outstanding (including any loans, any commitments to lend, any letters of credit or any lender
guarantees), Holder (solely in its capacity as a holder of this Note) shall not commence any
bankruptcy, insolvency, reorganization or other similar proceeding against Company.



     [__](h) Amending Senior Indebtedness. Any holder of Senior Indebtedness may, at any
time and from time to time, without the consent of or notice to Holder (i) modify or amend the
terms of the Senior Indebtedness, (ii) sell, exchange, release, fail to perfect a lien on or a
security interest in or otherwise in any manner deal with or apply any property pledged or
mortgaged to secure, or otherwise securing, Senior Indebtedness, (iii) release any guarantor or any
other person liable in any manner for the Senior Indebtedness, (iv) exercise or refrain from
exercising any rights against Company or any other person, (v) apply any sums by whomever paid or
however realized to Senior Indebtedness or (vi) take any other action that might be deemed to
impair in any way the rights of the holder of this Note. Any and all of such actions may be taken
by the holders of Senior Indebtedness without incurring responsibility to Holder and without
impairing or releasing the obligations of Holder to the holders of Senior Indebtedness.



     [__](i) Certain Rights in Bankruptcy. Holder hereby irrevocably authorizes and
empowers each holder of Senior Indebtedness (and its representative or representatives) to demand,
sue for, collect and receive all payments and distributions under the terms of this Note, to file
and prove all claims (including claims in bankruptcy) relating to this Note, to exercise any right
to vote arising with respect to this Note and any claims hereunder in any bankruptcy, insolvency or
similar proceeding and take any and all other actions in the name of Holder (solely in its capacity
as a holder of this Note), as such holder of Senior Indebtedness determines to be necessary or
appropriate.



     [__](j) Subrogation. No payment or distribution to any holder of Senior Indebtedness
pursuant to the provisions of this Note shall entitle Holder to exercise any right of subrogation
in respect thereof until (i)(1) all Senior Indebtedness shall have been paid in full in cash, (2)
all



EXHIBIT K-5









 







commitments to lend under Senior Indebtedness shall have been terminated, (3) all letters of credit
issued pursuant to the Senior Debt Documents shall have been cancelled or otherwise terminated, (4)
all guarantees constituting Senior Indebtedness shall have been terminated and (5) all lender
guarantees constituting Senior Indebtedness shall have been permanently reduced to zero or (ii) all
holders of Senior Indebtedness have consented in writing to the taking of such action.



     [__](k) Relative Rights. The provisions of this Section [   ] are for the benefit of
the holders of Senior Indebtedness (and their successors and assigns) and shall be enforceable by
them directly against Holder. Holder acknowledges and agrees that any breach of the provisions of
this Section [   ] will cause irreparable harm for which the payment of monetary damages may be
inadequate. For this reason, Holder agrees that, in addition to any remedies at law or equity to
which a holder of the Senior Indebtedness may be entitled, a holder of the Senior Indebtedness will
be entitled to an injunction or other equitable relief to prevent breaches of the provisions of
this Section [   ] and/or to compel specific performance of such provisions. The provisions of this
Section [   ] shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of Senior Indebtedness is rescinded or must otherwise be returned by any holder of
Senior Indebtedness upon the occurrence of a Bankruptcy Event or otherwise, all as though such
payment had not been made. The provisions of this Section [   ] are not intended to impair and
shall not impair as between Company and Holder, the obligation of Company, which is absolute and
unconditional, to pay Holder all amounts owing under this Note.



     [__](l) Reliance on Orders and Decrees. Subject to the provisions of Section [   ](d)
hereof, upon any payment or distribution of assets of Company, whether in cash, property,
securities or otherwise, Holder shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which any insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate
of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or distribution, delivered to Holder for the
purpose of ascertaining the Persons entitled to participate in such payment or distribution, the
holders of Senior Indebtedness, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Section [   ].



Section [   ]




          Right of Set-Off. Anything in this Note to the contrary notwithstanding, nothing in
this Note shall preclude the Company from timely exercising such Company’s right pursuant to
Section ______ of the Purchase Agreement to set-off indemnification claims against this Note and/or
interest payments under this Note.]








EXHIBIT K-6









 








Section [   ]




          Amendment. So long as any Senior Indebtedness (including any letter of credit or
lender guarantee) is outstanding or there is a commitment to lend any Senior Indebtedness
(including any commitment under the Senior Debt Documents) the terms of this Note may be amended
only with the consent of the Senior Agent. Subject to the foregoing, without the consent of the
Senior Agent hereof, this Note may be amended by the Company and the Holder to cure any ambiguity,
defect or inconsistency that does not affect the subordination provisions hereof or the rights of
the Senior Lenders.




* * *




Events of Default.




          Permitted Seller Notes shall not cross-default to the Senior Credit Agreement or any of the
other Senior Debt Documents or the Senior Indebtedness.




Prepayment.




          Permitted Seller Notes shall not permit any voluntary or mandatory prepayment.




[Remainder of page intentionally left blank]



EXHIBIT K-7









 





EXHIBIT L TO

CREDIT AND GUARANTY AGREEMENT




JOINDER AGREEMENT




          THIS JOINDER AGREEMENT, dated as of [__________ __, 201_]
(this “Agreement”), by and among
[NEW LENDERS] (each a “Lender” and collectively the “Lenders”), VICAR OPERATING, INC., a Delaware
corporation, as a Borrower (“Company”), VCA ANTECH, INC., as a Guarantor (“Holdings”), and CERTAIN
SUBSIDIARIES OF COMPANY, as Guarantors (“Subsidiaries”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent, Collateral Agent, Issuing Bank and Swing Line Lender, BANK OF AMERICA, N.A.,
as Syndication Agent and the other agents party thereto.




RECITALS:



          WHEREAS, reference is hereby made to the Credit and Guaranty Agreement, dated as of August 19,
2010 (as it may be amended, supplemented or otherwise modified, the “Credit Agreement"; the terms
defined therein and not otherwise defined herein being used herein as therein defined), by and
among Company, Holdings and certain Subsidiaries of Company, as Guarantors, the Lenders party
thereto from time to time, Wells Fargo Bank, National Association, as Administrative Agent,
Collateral Agent, Issuing Bank and Swing Line Lender, Bank of America, N.A., as Syndication Agent
and the other agents party thereto; and




          WHEREAS, subject to the terms and conditions of the Credit Agreement, Company may obtain [New
Term Loan Commitments][New Revolving Loan Commitments] by entering into one or more Joinder
Agreements with the [New Term Loan Lenders][New Revolving Lenders].




          NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants
herein contained, the parties hereto agree as follows:




          Each Lender party hereto hereby agrees to commit to provide its respective Commitment as set
forth on Schedule A annexed hereto, on the terms and subject to the conditions set forth below:




          Each Lender (i) confirms that it has received a copy of the Credit Agreement and the other
Credit Documents, together with copies of the financial statements referred to therein and such
other documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Joinder Agreement (this “Agreement”); (ii) agrees that it will,
independently and without reliance upon the Administrative Agent or any other Lender or Agent and
based on such documents and information as it shall deem appropriate at the time,


EXHIBIT L-1









 







continue to make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) appoints and authorizes Administrative Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are
delegated to Administrative Agent, as the case may be, by the terms thereof, together with such
powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Lender.




          Each Lender hereby agrees to make its Commitment on the following terms and
conditions[***************]:





	1.	 	[Applicable Margin. The Applicable Margin for each Series [__] New Term Loan shall mean, as
of any date of determination, a percentage per annum as set forth below corresponding to the
Total Leverage Ratio as of the last day of the fiscal quarter for which financial statements
have been delivered pursuant to Section [   ] plus the pricing premium, if any, less
the pricing reduction, if any, in each case as set forth below:]





	 	 	 	 	 
	Series [__] New Term Loans
	Total Leverage Ratio	 	Eurodollar Rate Loans	 	Base Rate Loans
	 	 	 	 	 
	____:____
	 	           
                 
                 
        %
	 	          
                
                
           %







	2.	 	[Principal Payments. Subject to Section 3 of this Agreement, Company shall make principal
payments on the Series [__] New Term Loans in installments on the dates and in the amounts set
forth below:]
	 
	3.	 	[Voluntary and Mandatory Prepayments. Scheduled installments of principal of the [Series
[__]] New Term Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the [Series [__]] New Term Loans in accordance with Sections 2.11,
2.12 and 2.13 of the Credit Agreement respectively.]
	 
	4.	 	[Prepayment Fees. Borrower agrees to pay to each Lender the following prepayment fees, if
any: [__________].]





[Insert other additional prepayment provisions with respect to New Term Loans]






 




			
	[***************] 	 	Insert completed items 1-7 as applicable, with
respect to New Term Loans with such modifications as may be agreed to by the
parties hereto to the extent consistent with Section 2.24 of the Credit
Agreement.




EXHIBIT L-2









 











	5.	 	Other Fees. Borrower agrees to pay each [New Term Loan Lender] [New Revolving Lender] a fee
in respect of its [New Term Loan] [New Revolving Commitment] as follows: [__].
	 
	6.	 	[Proposed Borrowing. This Agreement represents Borrower’s request to borrow Series [__] New
Term Loans from the Lenders as follows (the “Proposed
Borrowing”):






	 	a.	 	Business Day of Proposed Borrowing: ___________, ____
	 
	 	b.	 	Amount of Proposed Borrowing: $___________________
	 
	 	c.	 	Interest rate option:






	 	•    a.	 	Base Rate Loan(s)
	 
	 	•    b.	 	Eurodollar Rate Loans
with an initial Interest
Period of ____ month(s)]






	7.	 	New Lenders. Each Lender that is not already a Lender under the Credit Agreement
acknowledges and agrees that upon its execution of this Agreement and the making of [Series
[__] New Term Loans][New Revolving Loans] that such Lender shall become a “Lender” under, and
for all purposes of, the Credit Agreement and the other Credit Documents, and shall be subject
to and bound by the terms thereof, and shall perform all the obligations of and shall have all
rights of a “Lender” thereunder. [***************]
	 
	8.	 	Credit Agreement Governs. Except as set forth in this Agreement, [Series [__] New Term
Loans][New Revolving Loans] shall otherwise be subject to the provisions of the Credit
Agreement and the other Credit Documents.
	 
	9.	 	Company’s Certifications. By its execution of this Agreement, the undersigned officer, to
the best of his or her knowledge, and Company hereby certify that:






	 	i.	 	The representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct in all material
respects on and as of the date hereof to the same extent as though made on and
as of the date hereof, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties were true and correct in all material respects on and as of such
earlier date; provided, that, in each case, the foregoing materiality qualifier
shall not be applicable to any representation and warranties that







 




			
	[***************]	 	Insert bracketed language if the lending
institution is not already a Lender.




EXHIBIT L-3









 











	 	 	 	already are qualified or modified by materiality in the text thereof;
	 
	 	ii.	 	No event has occurred and is continuing or would result from
the consummation of the Proposed Borrowing contemplated hereby that would
constitute a Default or an Event of Default; and
	 
	 	iii.	 	Company has performed in all material respects all agreements
and satisfied all conditions which the Credit Agreement provides shall be
performed or satisfied by it on or before the date hereof.






	10.	 	Company Covenants. By its execution of this Agreement, Company hereby covenants that:






	 	i.	 	Company shall deliver or cause to be delivered the following
legal opinions and documents: [___________], together with all other legal
opinions and other documents reasonably requested by Administrative Agent in
connection with this Agreement; and
	 
	 	ii.	 	Set forth on the attached Officers’ Certificate are the
calculations (in reasonable detail) demonstrating compliance with the financial
tests described in Section 6.8 of the Credit Agreement on a pro-forma basis,
giving effect to the [Series [   ] New Term Loans][New Revolving Loans].






	11.	 	Eligible Assignee. By its execution of this Agreement, each Lender represents and warrants
that it is an Eligible Assignee.
	 
	12.	 	Notice. For purposes of the Credit Agreement, the initial notice address of each Lender
shall be as set forth below its signature below.
	 
	13.	 	Non-US Lenders. For each Lender that is a Non-US Lender, delivered herewith to
Administrative Agent are such forms, certificates or other evidence with respect to United
States federal income tax withholding matters as such Lender may be required to deliver to
Administrative Agent pursuant to subsection 2.19(c) of the Credit Agreement.
	 
	14.	 	Recordation of the New Loans. Upon execution and delivery hereof, Administrative Agent will
record the [Series [__] New Term Loans][New Revolving Loans] made by the Lenders in the
Register.
	 
	15.	 	Amendment, Modification and Waiver. This Agreement may not be amended, modified or waived
except by an instrument or instruments in writing signed and delivered on behalf of each of
the parties hereto.
	 
	16.	 	Entire Agreement. This Agreement, the Credit Agreement and the other Credit




EXHIBIT L-4









 






	 	 	Documents constitute the entire agreement among the parties with respect to the subject
matter hereof and thereof and supersede all other prior agreements and understandings, both
written and verbal, among the parties or any of them with respect to the subject matter
hereof.
	 
	17.	 	GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-14-4 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK).
	 
	18.	 	Severability. Any term or provision of this Agreement which is invalid or unenforceable in
any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of any of the
terms or provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so
broad as would be enforceable.
	 
	19.	 	Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed
to be an original, but all of which shall constitute one and the same agreement.




EXHIBIT L-5









 











          IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute
and deliver this Joinder Agreement as of [_____________, ______].




	 	 	 	 	 
	 	[NAME OF LENDER]

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Notice Address:




Attention:

Telephone:

Facsimile:




	 	 	 	 	 
	 	VICAR OPERATING, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	VCA ANTECH, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[NAME OF SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




EXHIBIT L-6









 








Consented to by:




WELLS FARGO BANK, NATIONAL ASSOCIATION

as Administrative Agent




	 	 	 	 	 
	 	 	 
	By:  	
 	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



EXHIBIT L-7









 






	 	 	 	 	 



SCHEDULE A

TO JOINDER AGREEMENT




	 	 	 	 	 
	Name of Lender	 	Type of Commitment	 	Amount
	 	 	 	 	 
	[       
             
              
            ]
	 	[New Term Loan
Commitment][New
Revolving Loan
Commitment]
	 	          $     
             
             
          
	 
	 	 
	 	 
	 
	 		 	 Total: $         
                 
                







EXHIBIT L-8