Exhibit 10.1





Exhibit 10.1




EXECUTION VERSION




Published CUSIP Number:                     




CREDIT AGREEMENT




Dated as of February 11, 2010




among




HEALTHSPRING, INC.,

as the Borrower,




THE SUBSIDIARIES OF THE BORROWER IDENTIFIED HEREIN,

as the Guarantors,




BANK OF AMERICA, N.A.,

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




JPMORGAN CHASE BANK, N.A.,

as Syndication Agent,




and




THE OTHER LENDERS PARTY HERETO




Arranged By:




BANC OF AMERICA SECURITIES LLC

and

J.P. MORGAN SECURITIES INC.,




as Joint Lead Arrangers and Joint Book Managers





 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	28	 
	1.03 Accounting Terms
	 	 	29	 
	1.04 Rounding
	 	 	30	 
	1.05 Times of Day
	 	 	30	 
	1.06 Letter of Credit Amounts
	 	 	30	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	30	 
	2.01 Revolving Loans and Term Loan
	 	 	30	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	32	 
	2.03 Letters of Credit
	 	 	33	 
	2.04 Swing Line Loans
	 	 	41	 
	2.05 Prepayments
	 	 	43	 
	2.06 Termination or Reduction of Aggregate Revolving Commitments
	 	 	45	 
	2.07 Repayment of Loans
	 	 	45	 
	2.08 Interest
	 	 	46	 
	2.09 Fees
	 	 	47	 
	2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	48	 
	2.11 Evidence of Debt
	 	 	48	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	49	 
	2.13 Sharing of Payments by Lenders
	 	 	50	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	51	 
	3.01 Taxes
	 	 	51	 
	3.02 Illegality
	 	 	54	 
	3.03 Inability to Determine Rates
	 	 	55	 
	3.04 Increased Costs
	 	 	55	 
	3.05 Compensation for Losses
	 	 	56	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	57	 
	3.07 Survival
	 	 	57	 
	ARTICLE IV GUARANTY
	 	 	57	 
	4.01 The Guaranty
	 	 	57	 
	4.02 Obligations Unconditional
	 	 	58	 
	4.03 Reinstatement
	 	 	59	 
	4.04 Certain Additional Waivers
	 	 	59	 
	4.05 Remedies
	 	 	59	 
	4.06 Rights of Contribution
	 	 	59	 
	4.07 Guarantee of Payment; Continuing Guarantee
	 	 	59	 
	ARTICLE V CONDITIONS PRECEDENT TO EFFECTIVENESS AND CREDIT EXTENSIONS
	 	 	60	 
	5.01 Conditions of Effectiveness
	 	 	60	 
	5.02 Conditions to all Credit Extensions
	 	 	62	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	62	 
	6.01 Organization; Requisite Power and Authority; Qualification
	 	 	62	 
	6.02 Equity Interests and Ownership; HMO Subsidiaries
	 	 	63	 
	6.03 Due Authorization
	 	 	63	 
	6.04 No Conflict
	 	 	63	 
	6.05 Governmental Consents
	 	 	64	 
	6.06 Binding Obligation
	 	 	64	 
	6.07 Financial Statements
	 	 	64	 






 


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	6.08 Projections
	 	 	64	 
	6.09 No Material Adverse Change
	 	 	64	 
	6.10 [Intentionally Omitted]
	 	 	65	 
	6.11 Adverse Proceedings, etc.
	 	 	65	 
	6.12 Payment of Taxes
	 	 	65	 
	6.13 Properties
	 	 	65	 
	6.14 Environmental Matters
	 	 	66	 
	6.15 No Defaults
	 	 	66	 
	6.16 Material Contracts
	 	 	66	 
	6.17 Governmental Regulation
	 	 	66	 
	6.18 Margin Stock
	 	 	67	 
	6.19 Employee Matters
	 	 	67	 
	6.20 Employee Benefit Plans
	 	 	67	 
	6.21 Insurance
	 	 	68	 
	6.22 Solvency
	 	 	68	 
	6.23 Intellectual Property; Licenses, Etc.
	 	 	68	 
	6.24 Compliance with Statutes, etc.
	 	 	68	 
	6.25 Disclosure
	 	 	69	 
	6.26 Anti-Terrorism Laws, Foreign Corrupt Practices Act, etc.
	 	 	69	 
	6.27 Fraud and Abuse
	 	 	70	 
	ARTICLE VII AFFIRMATIVE COVENANTS
	 	 	70	 
	7.01 Financial Statements and Other Reports
	 	 	70	 
	7.02 Existence; Licensing
	 	 	75	 
	7.03 Payment of Taxes and Claims
	 	 	75	 
	7.04 Maintenance of Properties
	 	 	76	 
	7.05 Insurance
	 	 	76	 
	7.06 Books and Records; Inspections
	 	 	76	 
	7.07 [Intentionally Omitted]
	 	 	77	 
	7.08 Compliance with Laws
	 	 	77	 
	7.09 Environmental
	 	 	77	 
	7.10 Subsidiaries
	 	 	78	 
	7.11 Pledged Assets
	 	 	79	 
	7.12 Further Assurances
	 	 	81	 
	7.13 Use of Proceeds
	 	 	81	 
	7.14 Post Closing
	 	 	81	 
	ARTICLE VIII NEGATIVE COVENANTS
	 	 	82	 
	8.01 Indebtedness
	 	 	82	 
	8.02 Liens
	 	 	84	 
	8.03 No Further Negative Pledges
	 	 	86	 
	8.04 Restricted Payments
	 	 	86	 
	8.05 Restrictions on Subsidiary Distributions
	 	 	87	 
	8.06 Investments
	 	 	88	 
	8.07 Financial Covenants
	 	 	89	 
	8.08 Fundamental Changes; Disposition of Assets; Acquisitions
	 	 	90	 
	8.09 Disposal of Subsidiary Interests
	 	 	91	 
	8.10 Sales and Lease Backs
	 	 	91	 
	8.11 Transactions with Affiliates
	 	 	91	 
	8.12 Conduct of Business
	 	 	91	 
	8.13 Amendments or Waivers of Organizational Documents
	 	 	91	 
	8.14 Amendments or Waivers with respect to Subordinated Indebtedness
	 	 	92	 
	8.15 Fiscal Year
	 	 	92	 






 


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	8.16 Anti-Terrorism Law; Anti-Money Laundering
	 	 	92	 
	8.17 Embargoed Person
	 	 	92	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES
	 	 	93	 
	9.01 Events of Default
	 	 	93	 
	9.02 Remedies Upon Event of Default
	 	 	95	 
	9.03 Application of Funds
	 	 	96	 
	ARTICLE X ADMINISTRATIVE AGENT
	 	 	97	 
	10.01 Appointment and Authority
	 	 	97	 
	10.02 Rights as a Lender
	 	 	97	 
	10.03 Exculpatory Provisions
	 	 	97	 
	10.04 Reliance by the Administrative Agent
	 	 	98	 
	10.05 Delegation of Duties
	 	 	99	 
	10.06 Resignation of Administrative Agent
	 	 	99	 
	10.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	100	 
	10.08 No Other Duties; Etc.
	 	 	100	 
	10.09 Administrative Agent May File Proofs of Claim
	 	 	100	 
	10.10 Collateral and Guaranty Matters
	 	 	101	 
	ARTICLE XI MISCELLANEOUS
	 	 	101	 
	11.01 Amendments, Etc.
	 	 	101	 
	11.02 Notices; Effectiveness; Electronic Communications
	 	 	103	 
	11.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	105	 
	11.04 Expenses; Indemnity; Damage Waiver
	 	 	105	 
	11.05 Payments Set Aside
	 	 	107	 
	11.06 Successors and Assigns
	 	 	107	 
	11.07 Treatment of Certain Information; Confidentiality
	 	 	111	 
	11.08 Set-off
	 	 	111	 
	11.09 Interest Rate Limitation
	 	 	112	 
	11.10 Counterparts; Integration; Effectiveness
	 	 	112	 
	11.11 Survival of Representations and Warranties
	 	 	112	 
	11.12 Severability
	 	 	112	 
	11.13 Replacement of Lenders
	 	 	113	 
	11.14 Governing Law; Jurisdiction; Etc.
	 	 	113	 
	11.15 Waiver of Right to Trial by Jury
	 	 	114	 
	11.16 No Advisory or Fiduciary Responsibility
	 	 	115	 
	11.17 Electronic Execution of Assignments and Certain Other Documents
	 	 	115	 
	11.18 USA PATRIOT Act Notice
	 	 	115	 






 


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	SCHEDULES
	 	 	 	 
	 
	 	 	 	 
	2.01 Commitments and Applicable Percentages
	 	 	 	 
	6.01 Subsidiaries
	 	 	 	 
	6.02(a) Equity Interests
	 	 	 	 
	6.02(b) Ownership
	 	 	 	 
	6.05 Government Consents
	 	 	 	 
	6.13 Material Real Estate Assets
	 	 	 	 
	6.16 Material Contracts
	 	 	 	 
	6.21 Insurance
	 	 	 	 
	6.23 Intellectual Property
	 	 	 	 
	8.01 Indebtedness Existing on the Closing Date
	 	 	 	 
	8.02 Liens Existing on the Closing Date
	 	 	 	 
	8.03 Negative Pledges
	 	 	 	 
	8.05 Restrictions on Subsidiary Distributions
	 	 	 	 
	8.06 Investments Existing on the Closing Date
	 	 	 	 
	8.11 Transactions with Affiliates
	 	 	 	 
	11.02 Certain Addresses for Notices
	 	 	 	 
	 
	 	 	 	 
	EXHIBITS
	 	 	 	 
	 
	 	 	 	 
	2.02 Form of Loan Notice
	 	 	 	 
	2.04 Form of Swing Line Loan Notice
	 	 	 	 
	2.11(a) Form of Note
	 	 	 	 
	7.01 Form of Compliance Certificate
	 	 	 	 
	7.10 Form of Joinder Agreement
	 	 	 	 
	8.01 Form of Intercompany Note
	 	 	 	 
	11.06(b) Form of Assignment and Assumption
	 	 	 	 
	11.06(b)(iv) Form of Administrative Questionnaire
	 	 	 	 







 


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CREDIT AGREEMENT




This CREDIT AGREEMENT is entered into as of February 11, 2010 among HEALTHSPRING, INC., a
Delaware corporation (the “Borrower”), the Guarantors (defined herein), the Lenders
(defined herein) and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and an L/C
Issuer.



The Borrower has requested that the Lenders provide $350,000,000 in credit facilities for the
purposes set forth herein, and the Lenders are willing to do so on the terms and conditions set
forth herein.



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



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




1.01 Defined Terms.



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



“Acquisition”, means the acquisition by any Person, in a single transaction or in a
series of related transactions, of either (a) all or substantially all of the property of, or a
line of business or division of, another Person or (b) at least a majority of the Voting Stock of
another Person, in each case whether or not involving a merger or consolidation with such other
Person.



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



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



“Administrative Questionnaire” means an Administrative Questionnaire in substantially
the form of Exhibit 11.06(b)(iv) or any other form approved by the Administrative Agent.



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



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



“Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders.
The initial amount of the Aggregate Revolving Commitments in effect on the Closing Date is
$175,000,000.


 


 









 





“Agreement” means this Credit Agreement.



“Anti-Terrorism Laws” has the meaning set forth in Section 6.26.



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



“Applicable Rate” means the following percentages per annum, based upon the
Consolidated Total Leverage Ratio as set forth in the most recent Compliance Certificate received
by the Administrative Agent pursuant to Section 7.01(c):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pricing	 	Consolidated Total	 	Commitment	 	 	Letters of	 	 	Eurodollar Rate	 	 	 	 
	Tier	 	Leverage Ratio	 	Fee	 	 	Credit	 	 	Loans	 	 	Base Rate Loans	 
	 
	1
	 	≤ 0.75 to 1.00	 	 	0.375	%	 	 	2.75	%	 	 	2.75	%	 	 	1.75	%
	2
	 	> 0.75 to 1.00 
but ≤ 1.00 to 1.00	 	 	0.50	%	 	 	3.00	%	 	 	3.00	%	 	 	2.00	%
	3
	 	> 1.00 to 1.00	 	 	0.50	%	 	 	3.25	%	 	 	3.25	%	 	 	2.25	%






Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Total
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate is required to be delivered pursuant to Section 7.01(c);
provided, however, that if a Compliance Certificate is not delivered when due in
accordance with such Section, then, upon the request of the Required Lenders, Pricing Tier 3 shall
apply as of the first Business Day after the date on which such Compliance Certificate was required
to have been delivered and shall remain in effect until the date on which such Compliance
Certificate is delivered in accordance with Section 7.01(c), whereupon the Applicable Rate
shall be adjusted based upon the calculation of the Consolidated Total Leverage Ratio contained in
such Compliance Certificate. The Applicable Rate in effect from the Closing Date through the first
Business Day immediately following the date a Compliance Certificate is required to be delivered
pursuant to Section 7.01(c) for the fiscal quarter ending March 31, 2010 shall be
determined based upon Pricing Tier 3.



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



“Arrangers” means Banc of America Securities LLC and J.P. Morgan Securities Inc., in
their capacity as joint lead arrangers and joint book managers.


 


2









 





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



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



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



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



“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 0.50%, (b) the Prime Rate and (c) except during a Eurodollar
Unavailability Period, the Eurodollar Rate plus 1.0%.



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



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



“Borrower Materials” has the meaning specified in Section 7.01.



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



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



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



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



“Cash Equivalents” means, as at any date of determination, (a) marketable securities
(i) issued or directly and unconditionally guaranteed as to interest and principal by the United
States Government or (ii) 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; (b) 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; (c) 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; (d)
certificates of deposit,



 


3









 






time deposits 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 (i) is at least “adequately
capitalized” (as defined in the regulations of its primary Federal banking regulator) and (ii) has
Tier 1 capital (as defined in such regulations) if not less than $100,000,000; (e) shares of any
money market mutual fund that (i) has substantially all of its assets invested continuously in the
types of investments referred to in clauses (a) and (b) above, (ii) has net assets of not less than
$500,000,000 and (iii) has the highest rating obtainable from either S&P or Moody’s and; (f) with
respect to (i) the Borrower or any other Loan Party, marketable debt securities regularly traded on
a national securities exchange or in the over-the-counter market, if and to the extent such debt
security constitutes a permitted investment under the HMO Regulations applicable to any of the HMO
Subsidiaries or (ii) any HMO Subsidiary, marketable debt securities regularly traded on a national
securities exchange or in the over-the-counter market and any other security, if and to the extent
such security constitutes a permitted investment under the HMO Regulations applicable to such HMO
Subsidiary.



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



“Change of Control” means, at any time, (a) any Person or “group” (within the meaning
of Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934) (i) shall have acquired
beneficial ownership of 35% or more on a fully diluted basis of the voting and/or economic interest
in the Equity Interests of the Borrower or (ii) shall have obtained the power (whether or not
exercised) to elect a majority of the members of the board of directors (or similar governing body)
of the Borrower; (b) the majority of the seats (other than vacant seats) on the board of directors
(or similar governing body) of the Borrower cease to be occupied by Persons who either (i) were
members of the board of directors of the Borrower on the Closing Date or (ii) were nominated for
election by the board of directors of the Borrower, a majority of whom were directors on the
Closing Date or whose election or nomination for election was previously approved by a majority of
such directors and directors approved as provided in this clause (ii); or (c) any “change of
control”, “fundamental event” or similar event under any Subordinated Indebtedness or Subordinated
Indebtedness Indenture shall occur.



“Closing Date” means the date hereof.



“CMS” means the Centers for Medicare and Medicaid Services of the United States
Department of Health and Human Services, any successor thereof and any predecessor thereof
(including the United States Health Care Financing Administration).



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



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



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


 


4









 





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



“Compliance Certificate” means a certificate substantially in the form of Exhibit
7.01.



“Confidential Healthcare Information” has the meaning specified in
Section 7.06(c).



“Consolidated Adjusted EBITDA” means, for any period, an amount determined for the
Borrower and its Subsidiaries on a consolidated basis equal to (i) Consolidated Net Income, plus,
to the extent reducing Consolidated Net Income, the sum, without duplication, of amounts for (a)
Consolidated Interest Expense, (b) provisions for taxes based on income, (c) depreciation expense,
(d) amortization expense, (e) fees, costs and expenses paid on or prior to the date which is 90
days after the Closing Date not to exceed $14,000,000 plus fees, costs and expenses in connection
with Related Convertible Debt Derivative Transactions, (f) fees, costs and expenses not to exceed
$2,000,000 in any fiscal year of the Borrower, directly attributable to the initial expansion of
business into a market where the Borrower and its Subsidiaries had no prior operations and incurred
within the first twelve months following such expansion and (g) other non-cash charges reducing
Consolidated Net Income (including non-cash stock-based compensation expense and any such non-cash
charge to the extent that it represents an unrealized loss with respect to derivatives that is
required by FASB 133, but excluding any such non-cash charge to the extent that it represents an
accrual or reserve for a potential cash charge in any future period or amortization of a prepaid
cash charge that was paid in a prior period), minus (ii) non-cash gains increasing Consolidated Net
Income for such period (including any such non-cash gain to the extent it represents an unrealized
gain with respect to derivatives that is required by FASB 133, but excluding any such non-cash gain
to the extent it represents the reversal of an accrual or reserve for a potential cash gain in any
prior period).



“Consolidated Capital Expenditures” means, for any period, the aggregate of all
expenditures of the Borrower 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 the Borrower
and its Subsidiaries.



“Consolidated Current Assets” means, as at any date of determination, the total assets
of the Borrower and its Subsidiaries (other than any HMO Subsidiaries) on a consolidated basis that
may properly be classified as current assets in conformity with GAAP, excluding cash and Cash
Equivalents.



“Consolidated Current Liabilities” means, as at any date of determination, the total
liabilities of the Borrower and its Subsidiaries (other than any HMO Subsidiaries) on a
consolidated basis that may properly be classified as current liabilities in conformity with GAAP,
excluding the current portion of long term debt.



“Consolidated Excess Cash Flow” means, for the Borrower and its Subsidiaries for any
period, an amount (if positive) equal to: (i) the sum, without duplication, of the amounts for
such period of (a) Consolidated Adjusted EBITDA (other than that portion of Consolidated Adjusted
EBITDA attributable to the HMO Subsidiaries) and (b) the Consolidated Working Capital Adjustment,
minus (ii) the sum, without duplication, of the amounts for such period paid in cash of (a)
scheduled repayments by the Borrower and its Subsidiaries (other than HMO Subsidiaries) of
Indebtedness (including repayments of Revolving Loans or Swing Line Loans to the extent the
Revolving Commitments are permanently reduced in connection with such repayments), (b) Consolidated
Capital Expenditures (excluding any Consolidated Capital Expenditures of the HMO Subsidiaries and
net of any proceeds of (y) any related financings with respect to such expenditures and (z) any
sales of assets used to finance such expenditures), (c) Consolidated Interest Expense (excluding
that portion of Consolidated Interest Expense



 


5









 






attributable to the HMO Subsidiaries) and (d) provisions for current taxes based on income of
the Borrower and its Subsidiaries and payable in cash by the Borrower and its Subsidiaries (other
than HMO Subsidiaries) 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 the Borrower and its Subsidiaries on a consolidated basis with respect to all
outstanding Indebtedness of the Borrower and its Subsidiaries on a consolidated basis, including
all commissions, discounts and other fees and charges owed with respect to letters of credit and
net costs under Swap Contracts, but excluding, however, (i) any amount not payable in cash and (ii)
any amounts referred to in Section 2.09(b) payable on or before the Closing Date.



“Consolidated Net Income” means, for any period, (i) the net income (or loss) of the
Borrower and its Subsidiaries on a consolidated basis for such period taken as a single accounting
period determined in conformity with GAAP, minus, without duplication (ii) (a) the income (or loss)
of any Person (other than a Subsidiary of the Borrower) in which any other Person (other than the
Borrower or any of its Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to the Borrower or any of its Subsidiaries by such
Person during such period, (b) the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of
its Subsidiaries or that Person’s assets are acquired by the Borrower or any of its Subsidiaries,
(c) the income of any Subsidiary of the Borrower (other than any HMO Subsidiary) 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)(1) the income of any HMO Subsidiary that has not been theretofore distributed to a Loan Party
to the extent that the declaration or payment of dividends or similar distributions by that HMO
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 HMO Subsidiary (other than any statute, rule or governmental regulation
generally applicable to HMOs requiring such HMO Subsidiary to maintain a minimum level of Statutory
Net Worth or other similar minimum capital requirements) and (2)(A) in the case of an HMO
Subsidiary that is an RBC HMO, the income of such HMO Subsidiary that has not been theretofore
distributed to a Loan Party to the extent that the retention of such income would be necessary to
cause such HMO Subsidiary to maintain a Statutory Net Worth at the end of such period equal to or
greater than 25% above the upper limit of the Regulatory Action Level in the applicable state and
(B) in the case of an HMO Subsidiary that is not an RBC HMO, the income of such HMO Subsidiary that
has not been theretofore distributed to a Loan Party to the extent that the retention of such
income would be necessary to cause such HMO Subsidiary to maintain a ratio of Statutory Net Worth
to the applicable state’s Statutory Net Worth requirement at the end of such period at a level
equal to or greater than 1.25:1.00, (e) any after-tax gains or losses of the Borrower and its
Subsidiaries attributable to Dispositions or returned surplus assets of any Pension Plan and (f)
(to the extent not included in clauses (a) through (e) above) any net extraordinary gains or net
extraordinary losses.



“Consolidated Total Debt” means, as at any date of determination, the aggregate stated
balance sheet amount of all Indebtedness of the Borrower and its Subsidiaries determined on a
consolidated basis in accordance with GAAP; provided that for purposes of determining
Consolidated Total Debt, the face amount of any Convertible Indebtedness shall be included in such
calculation.



“Consolidated Total 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.


 


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“Consolidated Working Capital” means, as at any date of determination, the excess of
Consolidated Current Assets over Consolidated Current Liabilities.



“Consolidated Working Capital Adjustment” means, for any period on a consolidated
basis, the amount (which may be a negative number) by which Consolidated Working Capital as of the
beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end of
such period.



“Contested Collateral Lien Conditions” shall mean, with respect to any Permitted Lien
of the type described in clause (q) of Section 8.02, the following conditions:




(i) the appropriate Loan Party shall cause any proceeding instituted contesting such
Lien to stay the sale or forfeiture of any portion of the Collateral on account of such
Lien; and




(ii) at the option and at the request of the Administrative Agent, to the extent such
Lien is in an amount in excess of $500,000, the appropriate Loan Party shall maintain cash
reserves in an amount sufficient to pay and discharge such Lien and a reasonable estimate of
all interest and penalties related thereto.



“Contract Provider” means any Person or any employee, agent or subcontractor of such
Person who provides professional health care services under or pursuant to any contract with the
Borrower or any of its Subsidiaries.



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



“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto. Without limiting the generality of the foregoing, a Person
shall be deemed to be Controlled by another Person if such other Person possesses, directly or
indirectly, power to vote 10% or more of the securities having ordinary voting power for the
election of directors, managing general partners or the equivalent.



“Convertible Indebtedness” means any unsecured Indebtedness of the Borrower, (i) no
part of the principal of which is required to be paid (whether by way of mandatory sinking fund,
mandatory redemption or mandatory prepayment), prior to 91 days after the Maturity Date of the Term
Loan (it being understood that any required offer to purchase such Indebtedness as a result of a
“fundamental change” (as such term is generally used with respect to convertible debt securities
issued in a public or Rule 144A offering) shall not violate the foregoing restriction), (ii) the
terms and conditions of which are similar to the terms and conditions customary at the time for
convertible debt securities issued in a public or Rule 144A offering or are otherwise reasonably
satisfactory to Administrative Agent and (iii) that is convertible by its terms into or by
reference to Equity Interests of the Borrower.



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



“Debt Issuance” means the issuance by any Loan Party or any Subsidiary of any
Indebtedness for borrowed money other than Indebtedness permitted under Section 8.01.


 


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



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



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



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



“Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition of any property by any Loan Party or any Subsidiary, including any Sale and Leaseback
Transaction and any sale, assignment, transfer or other disposal, with or without recourse, of any
notes or accounts receivable or any rights and claims associated therewith, but excluding any
Involuntary Disposition.



“Disqualified Equity Interests” means any Equity Interest which, by its terms (or by
the terms of any security or other Equity Interests into which it is convertible or for which it is
exchangeable), or upon the happening of any event or condition (i) matures or is mandatorily
redeemable (other than solely for Equity Interests which are not otherwise Disqualified Equity
Interests), pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of
the holder thereof (other than solely for Equity Interests which are not otherwise Disqualified
Equity Interests), in whole or in part, (iii) provides for the scheduled payments or dividends in
cash, or (iv) is or becomes convertible into or exchangeable for Indebtedness or any other Equity
Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that
is 91 days after the Maturity Date of the Term Loan.



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



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



“Eligible Assignee” means any Person that meets the requirements to be an assignee
under Sections 11.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 11.06(b)(iii)).



“Environmental Claim” means any 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



 


8









 






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,
judgments, Governmental Authorizations, or any other requirements of Governmental Authorities
relating to (i) environmental matters, including those relating to any Hazardous Materials Activity
or (ii) the generation, use, storage, transportation or disposal of Hazardous Materials, in any
manner applicable to the Borrower or any of its Subsidiaries or any Facility.



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



“Equity Issuance” means any issuance by any Loan Party or any Subsidiary to any Person
of its Equity Interests, other than (a) any issuance of its Equity Interests pursuant to the
exercise of options or warrants, (b) any issuance of its Equity Interests pursuant to the
conversion of any debt securities to equity or the conversion of any class of equity securities to
any other class of equity securities, (c) any issuance of options or warrants relating to its
Equity Interests, and (d) any issuance by the Borrower of its Equity Interests as consideration for
a Permitted Acquisition or Consolidated Capital Expenditures. The term “Equity Issuance” shall not
be deemed to include any Disposition.



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



“ERISA Affiliate” means, as applied to any Person, (i) any corporation that 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 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 the
Borrower or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of the
Borrower or any such Subsidiary within the meaning of this definition with respect to the period
such entity was an ERISA Affiliate of the Borrower or such Subsidiary and with respect to
liabilities arising after such period for which the Borrower 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 make the minimum required contribution (as defined in Section 430(a) of the Code) to each
Pension Plan or the contribution required under Section 431 to any Multiemployer Plan, or the
determination that a Pension Plan is in “at risk status” as defined in Section 430(i)(4) of the
Code (without regard to the transition rule set forth in Section 430(i)(4)(B)); (iii) the provision
by the administrator of any Pension Plan pursuant to



 


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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 the Borrower, 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 to the
Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates 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 the Borrower, 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 the Borrower, 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 the Borrower, any of its Subsidiaries or any of
their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the assertion of a
material claim (other than routine claims for benefits) against any Pension Plan other than a
Multiemployer Plan or the assets thereof, or against the Borrower, any of its Subsidiaries or any
of their respective ERISA Affiliates in connection with any Pension Plan; (ix) receipt from the
Internal Revenue Service of notice of the failure of any Pension Plan 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 (x) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or pursuant to ERISA with respect to any Pension Plan.



“Eurodollar Base Rate” means:




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




(b) For any day with respect to an interest rate calculation for a Base Rate Loan, the
rate per annum equal to (i) BBA LIBOR at approximately 11:00 a.m., London time, two Business
Days prior to such date for Dollar deposits (for delivery on such day) with a term
equivalent to one month or (ii) if such rate is not available at such time for any reason,
the rate determined by the Administrative Agent to be the rate at which deposits in Dollars
for delivery on such day in same day funds in the approximate amount of the subject Base
Rate Loan and with a term equivalent to one month would be offered by Bank of America’s
London Branch to major banks in the London interbank eurodollar market at approximately
11:00 a.m. (London time) two Business Days prior to such day.


 


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“Eurodollar Rate” means (a) for any Interest Period with respect to any Eurodollar
Rate Loan, a rate per annum determined by the Administrative Agent to be equal to the quotient
obtained by dividing (i) the Eurodollar Base Rate for such Eurodollar Rate Loan for such Interest
Period by (ii) one minus the Eurodollar Reserve Percentage for such Eurodollar Rate Loan for such
Interest Period and (b) for any day with respect to any Base Rate Loan bearing interest at a rate
based on the Eurodollar Rate, a rate per annum determined by the Administrative Agent to be equal
to the quotient obtained by dividing (i) the Eurodollar Base Rate for such Base Rate Loan for such
day by (ii) one minus the Eurodollar Reserve Percentage for such Base Rate Loan for such day.



“Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the
Eurodollar Rate (other than a Base Rate Loan bearing interest at a rate based on the Eurodollar
Rate).



“Eurodollar Reserve Percentage” means, for any day, the reserve percentage (expressed
as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable
to any Lender, under regulations issued from time to time by the FRB for determining the maximum
reserve requirement (including any emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The
Eurodollar Rate for each outstanding Eurodollar Rate Loan and for each outstanding Base Rate Loan
bearing interest at a rate based on the Eurodollar Rate shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.



“Eurodollar Unavailability Period” means any period during which the obligation of the
Lenders to make or maintain Eurodollar Rate Loans has been suspended pursuant to Section
3.02 or Section 3.03.



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



“Excluded Property” means, with respect to any Loan Party, (a) any owned or leased
real property that is located outside of the United States, unless requested by the Administrative
Agent or the Required Lenders (b) any owned or leased real property that is not a Material Real
Estate Asset, (c) unless requested by the Administrative Agent or the Required Lenders, any IP
Rights for which a perfected Lien thereon is not effected either by filing of a Uniform Commercial
Code financing statement or by appropriate evidence of such Lien being filed in either the United
States Copyright Office or the United States Patent and Trademark Office, (d) unless requested by
the Administrative Agent or the Required Lenders, any personal property (other than personal
property described in clause (c) above) for which the attachment or perfection of a Lien thereon is
not governed by the Uniform Commercial Code, (e) the Equity Interests of any direct Foreign
Subsidiary of any Loan Party to the extent not required to be pledged to secure the Obligations
pursuant to Section 7.10(c) and (f) any property that, subject to the terms of Section
8.03, is subject to a Lien of the type described in Section 8.02(m) pursuant to
documents that prohibit such Loan Party from granting any other Liens in such property.



“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise and excise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the Laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable Lending Office is located, (b) any branch profits taxes imposed by the United States or
any similar tax imposed by any other jurisdiction in which the Borrower is located (c) any backup
withholding tax that is required by the Internal Revenue Code to be withheld from amounts payable
to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii) and (d) in the
case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under
Section 11.13), any United States withholding tax that (i) is required to be imposed on
amounts payable to such Foreign Lender pursuant to the



 


11









 






Laws in force at the time such Foreign Lender becomes a party hereto (or designates a new
Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other than
as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii), except to
the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new Lending Office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 3.01(a)(ii) or
(iii).



“Exclusion Event” means an event or related events resulting in the exclusion of the
Borrower or any of its Subsidiaries from participation in any Medical Reimbursement Program.



“Executive Order” has the meaning set forth in Section 6.26.



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



“Family Care” means health care programs designed for uninsured segments of the
population (other than Medicaid-eligible or SCHIP-eligible segments of the population) that are
operated by or financed in part by federal and state government.



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



“Fee Letters” means (a) the letter agreement, dated January 15, 2010 among the
Borrower, the Administrative Agent and Banc of America Securities LLC and (b) the letter agreement
dated January 15, 2010 among the Borrower, JPMorgan Chase Bank, N.A. and J.P. Morgan Securities
Inc.



“Financial Officer Certification” means, with respect to the financial statements for
which such certification is required, the certification of the chief financial officer of the
Borrower that such financial statements fairly present, in all material respects, the financial
condition of the Borrower 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 and the absence of footnotes.



“Financial Plan” has the meaning set forth in Section 7.01(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 any Permitted Lien.



“Flood Hazard Property” means any Real Estate Asset subject to a Mortgage in favor of
Administrative Agent, on behalf of the holders of the Obligations, and located in an area
designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.


 


12









 





“Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes (including such a Lender when
acting in the capacity of an L/C Issuer). For purposes of this definition, the United States, each
State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.



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



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



“Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its activities.



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



“Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.



“Guarantors” means each wholly-owned Domestic Subsidiary of the Borrower (other than
an HMO Subsidiary) and each other Person that joins as a Guarantor pursuant to Section 7.10
or otherwise, together with their successors and permitted assigns.



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


 


13









 





“Hazardous Materials” means any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Governmental Authority or that 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 or current activity, event or occurrence
involving any Hazardous Materials, including the use, manufacture, possession, storage, holding,
presence, existence, Release, threatened Release, discharge, placement, generation, transportation,
processing, 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.



“HHS” means the United States Department of Health and Human Services and any
successor thereof.



“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, Pub. L.
104-191, Aug. 21, 1996, 110 Stat. 1936, and regulations promulgated pursuant thereto regarding
privacy, security and transmission of health information, all as amended from time to time, and any
successor statute and regulations.



“Historical Financial Statements” means as of the Closing Date, the audited financial
statements of the Borrower and its Subsidiaries, for the immediately preceding three fiscal years
prior to the Closing Date, consisting of consolidated balance sheets and the related consolidated
statements of income, stockholders’ equity and cash flows for such fiscal years.



“HITECH Act” means the Health Information Technology for Economic and Clinical Health
Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment
Act of 2009 (ARRA), Pub. L. 111-5, Feb. 17, 2009, and regulations promulgated pursuant thereto, all
as amended from time to time, and any successor statute and regulations.



“HMO” means any health maintenance organization, managed care organization, any Person
doing business as a health maintenance organization or managed care organization, or any Person
required to qualify or be licensed as a health maintenance organization or managed care
organization under applicable federal or state law (including, without limitation, HMO
Regulations).



“HMO Business” means the business of owning and operating an HMO or other similar
regulated entity or business.



“HMO Event” means any material non-compliance by the Borrower or any of its HMO
Subsidiaries with any of the terms and provisions of the HMO Regulations pertaining to its fiscal
soundness, solvency or financial condition; or the assertion in writing, after the date hereof, by
an HMO Regulator that it intends to take administrative action against the Borrower or any of its
HMO Subsidiaries to revoke or modify any license, charter or permit or to enforce the fiscal
soundness, solvency or financial provisions or requirements of the HMO Regulations against the
Borrower or any of its HMO Subsidiaries.



“HMO Regulations” means all laws, regulations, directives and administrative orders
applicable under federal or state law to any HMO Subsidiary whether or not specifically applicable
to an HMO (and any regulations, orders and directives promulgated or issued pursuant to any of the
foregoing) and Subchapter XI of Title 42 of the United States Code and the rules and regulations of
any accrediting authority having jurisdiction over any HMO Subsidiary.


 


14









 





“HMO Regulator” means any Person charged with the administration, oversight or
enforcement of an HMO Regulation, whether primarily, secondarily or jointly.



“HMO Subsidiary” means each Subsidiary of the Borrower that is (i) an HMO or other
similar regulated entity or business, or (ii) an insurance company licensed and regulated as such
by a Governmental Authority.



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



“Impacted Lender” means any Lender as to which (a) any L/C Issuer has a good faith
belief that such Lender has failed to fulfill its obligations under one or more other syndicated
credit facilities or (b) any Person that Controls such Lender has been deemed insolvent or become
the subject of a bankruptcy or insolvency proceeding.



“Indebtedness” as applied to any Person, means, without duplication, (a) all
indebtedness for borrowed money; (b) that portion of obligations with respect to Capital Leases
that is properly classified as a liability on a balance sheet in conformity with GAAP; (c) notes
payable and drafts accepted representing extensions of credit whether or not representing
obligations for borrowed money; (d) any obligation owed for all or any part of the deferred
purchase price of property or services, including any earn-out obligations other than those
earn-out obligations payable solely in Qualified Equity Interests (excluding any such obligations
incurred under ERISA), which purchase price is (i) due more than six months from the date of
incurrence of the obligation in respect thereof or (ii) evidenced by a note or similar written
instrument; (e) 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 that Person; (f) 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; (g) Disqualified Equity Interests, (h) 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; (i) any obligation or agreement of such Person the primary purpose or intent of which is
to provide assurance to an obligee that the subject Indebtedness of the obligor thereof will be
paid or discharged, or that the holders thereof will be protected (in whole or in part) against
loss in respect thereof; (j) any liability of such Person for Indebtedness of another through any
agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise acquire such
Indebtedness or any security therefor, or to provide funds for the payment or discharge of such
Indebtedness (whether in the form of loans, advances, stock purchases, capital contributions or
otherwise) or (ii) 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 (i) or (ii) of
this clause (j), the primary purpose or intent thereof is as described in clause (i) above; and (k)
all obligations of such Person in respect of any exchange-traded or over the counter derivative
transaction, including any Swap Contract, whether entered into for hedging or speculative purposes;
provided, in no event shall obligations under (x) any Swap Contracts be deemed
“Indebtedness” for any purpose under Section 8.07 and (y) any Related Convertible Debt
Derivative Transaction be deemed “Indebtedness” for any purpose under this Agreement.



“Indemnified Taxes” means Taxes other than Excluded Taxes.



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



“Information” has the meaning specified in Section 11.07.


 


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“Intercompany Note” means a promissory note substantially in the form of
Exhibit 8.01 evidencing Indebtedness owed among the Loan Parties and their Subsidiaries.



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



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




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




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




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



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



“Investment” means (i) any direct or indirect purchase or other acquisition by the
Borrower or any of its Subsidiaries of, or of a beneficial interest in, any of the Securities of
any other Person (other than a Guarantor); (ii) any direct or indirect purchase or other
acquisition for value, by any Subsidiary of the Borrower from any Person (other than the Borrower
or any Guarantor), of any Equity Interests 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), extension of credit (by way
of guarantee or otherwise) or capital contributions by the Borrower or any of its Subsidiaries to
any other Person (other than the Borrower or any Guarantor), 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 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.



“Involuntary Disposition” means any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any property of any Loan Party or any Subsidiary.



“IP Rights” has the meaning specified in Section 6.23.



“IRS” means the United States Internal Revenue Service.


 


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



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



“Joinder Agreement” means a joinder agreement substantially in the form of Exhibit
7.10 executed and delivered by a Domestic Subsidiary in accordance with the provisions of
Section 7.10.



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



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



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



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



“L/C Issuer” means Bank of America and any other Lender from time to time designated
by the Borrower as an L/C Issuer with the consent of such Lender, in its sole discretion, and the
Administrative Agent (such consent not to be unreasonably withheld or delayed), in each case in its
capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit
hereunder.



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



“Landlord Consent and Estoppel” means, with respect to any Leasehold Property
constituting a Material Real Estate Asset, 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 collateral assignment with respect to such Leasehold Property by the
Loan Party tenant, such Landlord Consent and Estoppel to be in form and substance acceptable to the
Administrative Agent in its reasonable discretion.



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


 


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“Lenders” means each of the Persons identified as a “Lender” on the signature pages
hereto, each other Person that becomes a “Lender” in accordance with this Agreement and their
successors and assigns and, as the context requires, includes the Swing Line Lender.



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



“Letter of Credit” means any standby letter of credit issued hereunder.



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



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



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



“Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate
Revolving Commitments and (b) $25,000,000. The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Revolving Commitments.



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



“Liquidity” means at any time the sum of (i) the unused portion of the Aggregate
Revolving Commitments at such time and (ii) the aggregate amount of cash and Cash Equivalents
included in the consolidated balance sheet of the Borrower and its Subsidiaries (other than any HMO
Subsidiaries) as of such date that, in each case, are free and clear of all Liens, other than Liens
in favor of the Administrative Agent for the benefit of the holders of the Obligations and
nonconsensual Liens permitted by Section 8.02.



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



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



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



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



“Material Adverse Effect” means a material adverse effect with respect to (i) the
business, operations, properties, assets or condition (financial or otherwise) of the Borrower and
its Subsidiaries taken as a whole; (ii) the ability of the Loan Parties, taken as a whole, to fully
and timely perform the



 


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Obligations; (iii) the legality, validity, binding effect or enforceability against a Loan
Party of a material Loan Document to which it is a party; or (iv) the rights, remedies and benefits
available to, or conferred upon, the Administrative Agent and any Lender or any other holder of the
Obligations under the Loan Documents, taken as a whole.



“Material Contract” means any contract or other arrangement to which the Borrower or
any of its Subsidiaries is a party (other than the Loan 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) any fee owned Real Estate Asset having a fair
market value in excess of $2,500,000 as of the date of the acquisition thereof, (ii) any other fee
owned Real Estate Asset that the Required Lenders have determined and have indicated by notice to
the Borrower is material to the business, operations, properties, assets or condition (financial or
otherwise) of the Borrower and its Subsidiaries, taken as a whole and (iii) each Leasehold Property
as to which the leasehold interest has a fair market value in excess of $2,500,000 as of the date
of the acquisition of such leasehold interest.



“Maturity Date” means (a) as to the Revolving Loans, Swing Line Loans and Letters of
Credit (and the related L/C Obligations), February 11, 2014 and (b) as to the Term Loan, February
11, 2015; provided, however, that, in each case, if such date is not a Business
Day, the Maturity Date shall be the next preceding Business Day.



“Medicaid” means that means-tested entitlement program under Title XIX, P.L. 89-97, of
the Social Security Act, which provides federal grants to states for medical assistance based on
specific eligibility criteria, as set forth at Section 1396, et seq. of Title 42 of the United
Sates Code, as amended.



“Medicaid Regulations” means, collectively, (i) all federal statutes (whether set
forth in Title XIX of the Social Security Act or elsewhere) regarding the medical assistance
program established by Title XIX of the Social Security Act and any statutes succeeding thereto;
(ii) all applicable provisions of all federal rules, regulations, manuals and orders of all
Governmental Authorities promulgated pursuant to or in connection with the statutes described in
clause (i) above and all applicable federal administrative, reimbursement and other guidelines of
all Governmental Authorities having the force of law promulgated pursuant to or in connection with
the statutes described in clause (i) above; (iii) all applicable state statutes and plans for
medical assistance enacted in connection with the statutes and provisions described in clauses (i)
and (ii) above; and (iv) all applicable provisions of all rules, regulations, manuals and orders of
all Governmental Authorities promulgated pursuant to or in connection with the statutes described
in clause (iii) above and all applicable state administrative, reimbursement and other guidelines
of all Governmental Authorities having the force of law promulgated pursuant to or in connection
with the statutes described in clause (ii) above, in each case as may be amended, supplemented or
otherwise modified from time to time.



“Medical Reimbursement Programs” means a collective reference to the Medicare,
Medicaid, SCHIP and Family Care programs and any other health care program operated by or financed
in whole or in part by any foreign or domestic federal, state or local government and any other
non-government funded third-party payor programs.



“Medical Reimbursement Program Provider Agreement” means an agreement entered into
with a Medical Reimbursement Program to provide services for program patients in accordance with
the terms thereof and applicable law.



“Medicare” means that government-sponsored entitlement program under Title XVIII, P.L.
89-97, of the Social Security Act, which provides for a health insurance system for eligible
elderly and



 


19









 






disabled individuals, as set forth at Section 1395, et seq. of Title 42 of the United States
Code, as amended.



“Medicare Advantage Program” means the optional health insurance benefit program
available to Medicare beneficiaries under Part C of Title XVIII, P.L. 89-97, of the Social Security
Act, as amended by the Medicare Prescription Drug, Improvement and Modernization Act, Pub. L.
108-173 (to the extent applicable to the aforesaid Part C), as set forth at Section 1395w, et seq.
of Title 42 of the United States Code, as amended.



“Medicare Regulations” means, collectively, all federal statutes (whether set forth in
Title XVIII of the Social Security Act or elsewhere) regarding the health insurance program for the
aged and disabled established by Title XVIII of the Social Security Act and any statutes succeeding
thereto; together with all applicable provisions of all rules, regulations, manuals and orders and
administrative, reimbursement and other guidelines having the force of law of all Governmental
Authorities (including, without limitation, CMS, the OIG, HHS, or any Person succeeding to the
functions of any of the foregoing) promulgated pursuant to or in connection with any of the
foregoing having the force of law, as each may be amended, supplemented or otherwise modified from
time to time.



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



“Mortgages” means the mortgages, deeds of trust or deeds to secure debt that purport
to grant to the Administrative Agent a security interest in the fee interests and/or leasehold
interests of any Loan Party in any Real Estate Asset.



“Multiemployer Plan” means any Pension Plan that 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 the Borrower and its
Subsidiaries in the form prepared for presentation to senior management thereof for the applicable
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 or, if applicable, in the form
included in Borrower’s Quarterly Report on Form 10-Q or Annual Report on Form 10-K, in each case,
filed with the SEC.



“Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by
any Loan Party or any Subsidiary in respect of any Disposition, Equity Issuance, Debt Issuance or
Involuntary Disposition, net of (a) direct costs incurred in connection therewith (including,
without limitation, legal, accounting and investment banking fees, and sales commissions), (b)
taxes paid or payable as a result thereof, (c) in the case of any Disposition or any Involuntary
Disposition, the amount necessary to retire any Indebtedness secured by a Permitted Lien on the
related property and (d) in the case of any Disposition, a reasonable reserve for any
indemnification payments (fixed or contingent) attributable to the seller’s indemnities and
representations and warranties to the purchaser in respect of such Disposition undertaken by the
Borrower or any of its Subsidiaries in connection with such Disposition; it being understood that
“Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents received upon
the sale or other disposition of any non-cash consideration received by any Loan Party or any
Subsidiary in any Disposition, Equity Issuance, Debt Issuance or Involuntary Disposition.



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


 


20









 





“Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding. The foregoing
shall also include (a) all obligations under any Swap Contract between any Loan Party or any
Subsidiary and any Lender or Affiliate of a Lender that is permitted to be incurred pursuant to
Section 8.01(o) and (b) all obligations under any Treasury Management Agreement between any
Loan Party or any Subsidiary and any Lender or Affiliate of a Lender.



“OFAC” has the meaning set forth in Section 6.26.



“OIG” means the Office of Inspector General of HHS and any successor thereof.



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



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



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



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



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



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



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


 


21









 





“Permitted Acquisition” means an Investment consisting of an Acquisition by any Loan
Party, provided that (a) the property acquired (or the property of the Person
acquired) in such Acquisition is used or useful in a line of business permitted by Section
8.12, (b) in the case of an Acquisition of the Equity Interests of another Person, the board of
directors (or other comparable governing body) of such other Person shall have duly approved such
Acquisition, (c) the Borrower shall have delivered to the Administrative Agent a Pro Forma
Compliance Certificate demonstrating that, upon giving effect to such Acquisition, the pro forma
Consolidated Total Leverage Ratio is 0.25 less than the then required Consolidated Total Leverage
Ratio set forth in Section 8.07(b), (d) the representations and warranties made by the Loan
Parties in each Loan Document shall be true and correct in all material respects at and as if made
as of the date of such Acquisition (after giving effect thereto), (e) if such transaction involves
the purchase of an interest in a partnership between any Loan Party as a general partner and
entities unaffiliated with the Borrower as the other partners, such transaction shall be effected
by having such equity interest acquired by a corporate holding company directly or indirectly
wholly-owned by such Loan Party newly formed for the sole purpose of effecting such transaction and
(f) immediately after giving effect to such Acquisition, the Borrower’s Liquidity is greater than
or equal to $50,000,000.



“Permitted Liens” means, at any time, Liens in respect of property of any Loan Party
or any Subsidiary permitted to exist at such time pursuant to the terms of Section 8.02.



“Permitted Transfers” means (a) Dispositions of inventory or other assets in the
ordinary course of business; (b) Dispositions of machinery, equipment, and other tangible personal
property no longer used or useful in the conduct of business of the Borrower and its Subsidiaries
that are Disposed of in the ordinary course of business; (c) Dispositions of property to the
Borrower or any Subsidiary; provided, that if the transferor of such property is a Loan
Party then the transferee thereof must be a Loan Party; (d) Dispositions of accounts receivable in
connection with the collection or compromise thereof; (e) licenses, sublicenses, leases or
subleases granted to others not interfering in any material respect with the business of the
Borrower and its Subsidiaries; (f) the sale or disposition of Cash Equivalents for fair market
value; and (g) Dispositions of property for aggregate consideration of less than $500,000 with
respect to any transaction or series of related transactions and less than $2,000,000, in the
aggregate, during any fiscal year.



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



“Platform” has the meaning specified in Section 7.02.



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



“Pro Forma Basis” means, with respect to any transaction, that for purposes of
calculating the financial covenants set forth in Section 8.07, such transaction shall be
deemed to have occurred as of the first day of the most recent four fiscal quarter period preceding
the date of such transaction for which financial statements were required to be delivered pursuant
to Section 7.01(a) or (b). In connection with the foregoing, (a) with respect to
any Disposition or Involuntary Disposition, (i) income statement and cash flow statement items
(whether positive or negative) attributable to the property disposed of shall be excluded to the
extent relating to any period occurring prior to the date of such transaction and (ii) Indebtedness
that is retired shall be excluded and deemed to have been retired as of the first day of the



 


22









 






applicable period and (b) with respect to any Acquisition, (i) income statement and cash flow
statement items attributable to the Person or property acquired shall be included to the extent
relating to any period applicable in such calculations to the extent (A) such items are not
otherwise included in such income statement and cash flow statement items for the Borrower and its
Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in
Section 1.01 and (B) such items are supported by financial statements or other information
reasonably satisfactory to the Administrative Agent and (ii) any Indebtedness incurred or assumed
by any Loan Party or any Subsidiary (including the Person or property acquired) in connection with
such transaction and any Indebtedness of the Person or property acquired that is not retired in
connection with such transaction (A) shall be deemed to have been incurred as of the first day of
the applicable period and (B) if such Indebtedness has a floating or formula rate, shall have an
implied rate of interest for the applicable period for purposes of this definition determined by
utilizing the rate which is or would be in effect with respect to such Indebtedness as at the
relevant date of determination. In addition to and without limitation of the foregoing, with
respect to any Acquisition, income statement and cash flow statement items shall be adjusted, on a
pro forma basis for the periods prior to the consummation of the Acquisition, to reflect cost
savings directly attributable to such Acquisition and that are related to actions to be
implemented, that are of a type reasonably expected to be realized within one year of the date of
the Acquisition and that are factually supportable and quantifiable by the underlying accounting
records of such business or otherwise factually supportable and reasonably identifiable, in each
case, as certified by the chief financial officer of the Borrower and otherwise reasonably
acceptable to the Administrative Agent; provided that, for purposes of this definition, such cost
savings may not exceed the greater of (x) $10,000,000 and (y) 20% of the net income of the Person
acquired (or the net income related to the assets acquired) in such Acquisition, plus interest,
taxes, depreciation expense and amortization expense deducted in calculating such net income, as
reported for the four quarter period most recently ended prior to the consummation of such
Acquisition.



“Pro Forma Compliance Certificate” means a certificate of a Responsible Officer of the
Borrower containing reasonably detailed calculations of the financial covenants set forth in
Section 8.07 as of the end of the period of the four fiscal quarters most recently ended
for which the Borrower has delivered financial statements pursuant to Section 7.01(a) or
(b) after giving effect to the applicable transaction on a Pro Forma Basis.



“Public Lender” has the meaning specified in Section 7.01.



“Qualified Equity Interests” of any Person shall mean any Equity Interests of such
person that are not Disqualified Equity Interests.



“RBC HMO” has the meaning specified in Section 8.07(a).



“Real Estate Asset” means, at any time of determination, any interest (fee, leasehold
or otherwise) then owned by any Loan 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 the
Administrative 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 the Administrative
Agent’s reasonable



 


23









 






judgment, to give constructive notice of such Leasehold Property to third party purchasers and
encumbrances of the affected real property.



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



“Regulatory Action Level” means the regulatory action level risk-based capital
threshold, as defined by NAIC, or, in any state that has not adopted the NAIC definition, as
defined by the applicable state Governmental Authority.



“Reinvestment Deferred Amount” means, with respect to any Reinvestment Event, the
aggregate Net Cash Proceeds received by the Borrower or its Subsidiaries in connection therewith
that are not applied pursuant to Section 2.05(b)(vi) as a result of the delivery of a
Reinvestment Notice.



“Reinvestment Event” means any Disposition or Involuntary Disposition in respect of
which the Borrower has delivered a Reinvestment Notice.



“Reinvestment Notice” means a written notice executed by a Responsible Officer
(i) stating that the Borrower (directly or indirectly through a Subsidiary) intends and expects to
use all or a specified portion of the Net Cash Proceeds of a Disposition or Involuntary Disposition
to repair or replace the assets which were the subject of such Disposition or Involuntary
Disposition or to acquire assets that are used or useful in the business of the Borrower and its
Subsidiaries and (ii) certifying that no Default or Event of Default has occurred and is continuing
at such time.



“Reinvestment Prepayment Amount” means, with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant
Reinvestment Prepayment Date to repair or replace the assets which were the subject of the relevant
Disposition or Involuntary Disposition or to acquire assets that are used or useful in the business
of the Borrower and its Subsidiaries.



“Reinvestment Prepayment Date” means, with respect to any Reinvestment Event, the
earlier of (i) the date occurring twelve months after such Reinvestment Event or, if the Borrower
or its Subsidiaries enter into a legally binding commitment to reinvest the relevant Reinvestment
Deferred Amount prior to the date occurring twelve months after such Reinvestment Event, then the
date occurring eighteen months after such Reinvestment Event and (ii) the date on which Borrower or
its Subsidiaries shall have determined not to use all or any portion of the relevant Reinvestment
Deferred Amount to repair or replace the assets which were the subject of the relevant Disposition
or Involuntary Disposition or to acquire assets that are used or useful in the business of the
Borrower and its Subsidiaries, but in the case of this clause (ii) only with respect to the portion
of the applicable Reinvestment Deferred Amount as to which such determination has been made.



“Related Convertible Debt Derivative Transaction” means one or more options or other
derivative transactions entered into by the Borrower in connection with the issuance by the
Borrower of Convertible Indebtedness, each of which relates to the Equity Interests into which such
Convertible Indebtedness may be converted.



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



“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



 


24









 






closed receptacles containing any Hazardous Material), including the movement of any Hazardous
Material through the air, soil, surface water or groundwater.



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



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



“Required Advances” means advances required by HMO Regulators to be made by the
Borrower or any of its Subsidiaries to a Contract Provider.



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



“Requirement of Law” shall mean, collectively, any and all requirements of any
Governmental Authority including any and all laws, judgments, orders, decrees, ordinances, rules,
regulations, statutes or case law (including all applicable HMO Regulations, Medicare Regulations
and Medicaid Regulations).



“Responsible Officer” means any individual holding the position of chairman of the
board (if an officer), chief executive officer, president, chief financial officer, executive or
senior vice president (or the equivalent thereof) or treasurer of a Loan Party and any other
officer of the applicable Loan Party so designated by any of the foregoing officers in a notice to
the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer
of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.



“Restricted Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of stock of the Borrower now or hereafter outstanding, except
a dividend or other distribution payable solely in shares of Qualified Equity Interests; (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 the Borrower 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 the Borrower 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, cash settlement or similar payment with respect to any earn-out
obligation or any Subordinated Indebtedness.



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



 


25









 






such Lender pursuant to Section 2.01(c), as applicable as such amount may be adjusted
from time to time in accordance with this Agreement.



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



“RS Advances” means advances made by HMO Subsidiaries in the ordinary course of
business to Contract Providers on a per member per month basis designed to cover such Contract
Providers’ anticipated professional risk, which advances are then adjusted on a periodic basis (and
in any event no less than quarterly) between the HMO Subsidiaries and the Contract Providers based
on actual experience measured against pre-determined sharing ratios.



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



“Sale and Leaseback Transaction” means, with respect to any Loan Party or any
Subsidiary, any arrangement, directly or indirectly, with any Person whereby such Loan Party or
such Subsidiary shall sell or transfer any property used or useful in its business, whether now
owned or hereafter acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property being sold or
transferred.



“SAP” means, with respect to each HMO Subsidiary, the statutory accounting principles
and procedures prescribed or permitted by applicable HMO Regulations for such HMO Subsidiary,
applied on a consistent basis, as interpreted by the state in which the applicable HMO Subsidiary
operates.



“SCHIP” means the State Childrens’ Health Insurance Program, a federal/state matching
program that provides health care coverage to children not otherwise covered by Medicaid or other
insurance programs and that may be administered by states through their Medicaid programs.



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



“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.



“Security Agreement” means the security and pledge agreement dated as of the Closing
Date executed in favor of the Administrative Agent by each of the Loan Parties.



“Social Security Act” means the Social Security Act of 1965 as set forth in Title 42
of the United States Code, as amended, and any successor statute thereto, as interpreted by the
rules and regulations promulgated thereunder.



“Solvent” or “Solvency” means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the ordinary course of business, (b) such
Person does not intend to, and does not believe that it will, incur debts or liabilities beyond
such Person’s ability to pay such debts and liabilities as they mature in the ordinary course of
business, (c) such Person is not engaged in a business or a transaction, and is not about to engage
in a business or a transaction, for which such Person’s property would constitute unreasonably



 


26









 






small capital, (d) the fair value of the property of such Person is greater than the total
amount of liabilities, including contingent liabilities, of such Person and (e) the present fair
salable value of the assets of such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become absolute and matured. The amount
of contingent liabilities at any time shall be computed as the amount that, in the light of all the
facts and circumstances existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.



“Stark Law” means Section 1877 of the Social Security Act as set forth at
Section 1395nn of Title 42 of the United States Code, as amended, and any successor statute
thereto, as interpreted by the rules and regulations issued thereunder, in each case as in effect
from time to time.



“Statutory Net Worth” means, for an HMO Subsidiary, the difference between (i) total
admitted assets and (ii) total liabilities, in each case as calculated according to the applicable
state’s interpretation of SAP or other similar state-mandated accounting principles.



“Subordinated Indebtedness” means any unsecured Indebtedness of the Borrower, no part
of the principal of which is required to be paid (whether by way of mandatory sinking fund,
mandatory redemption or mandatory prepayment), prior to the first anniversary of the Maturity Date
of the Term Loan (it being understood that any required offer to purchase such Indebtedness as a
result of a change of control or asset sale shall not violate the foregoing restriction) and the
terms and conditions of which (including subordination provisions) are otherwise reasonably
satisfactory to the Administrative Agent.



“Subordinated Indebtedness Indenture” means any indenture or other agreement pursuant
to which any Subordinated Indebtedness is issued.



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



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



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



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


 


27









 





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



“Swing Line Sublimit” means an amount equal to the lesser of (a) $25,000,000 and (b)
the Aggregate Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to,
the Aggregate Revolving Commitments.



“Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Governmental Authority with respect to this Agreement, any of the other Loan Documents or the
transactions that are the subject thereof, including any interest, additions to tax or penalties
applicable thereto.



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



“Term Loan Commitment” means, as to each Lender, its obligation to make its portion of
the Term Loan to the Borrower pursuant to Section 2.01(b), in the principal amount set
forth opposite such Lender’s name on Schedule 2.01. The aggregate principal amount of the
Term Loan Commitments of all of the Lenders as in effect on the Closing Date is $175,000,000.



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



“Treasury Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, overnight draft, card services,
including credit card (including purchasing card and commercial card), prepaid cards, including
payroll, stored value and gift cards, merchant service processing, and debit card services, funds
transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled
disbursement, lockbox, account reconciliation and reporting and trade finance services and other
cash management services.



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



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



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



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



1.02 Other Interpretive Provisions.



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



(a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context


 


28









 





requires otherwise, (i) any definition of or reference to any agreement, instrument or
other document (including any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein or in any other Loan Document), (ii) any reference herein to
any Person shall be construed to include such Person’s successors and assigns, (iii) the
words “herein,” “hereof” and “hereunder,” and words of similar
import when used in any Loan Document, shall be construed to refer to such Loan Document in
its entirety and not to any particular provision thereof, (iv) all references in a Loan
Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such
references appear, (v) any reference to any law shall include all statutory and regulatory
provisions consolidating, amending, replacing or interpreting such law and any reference to
any law or regulation shall, unless otherwise specified, refer to such law or regulation as
amended, modified or supplemented from time to time, and (vi) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer to
any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.



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



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



1.03 Accounting Terms.



(a) Generally. Except as otherwise specifically prescribed herein, all
accounting terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied
in a manner consistent with that used in preparing the Historical Financial Statements.



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



(c) Calculations. Notwithstanding the above, the parties hereto acknowledge
and agree that all calculations of the financial covenants in Section 8.07
(including for purposes of determining the Applicable Rate) shall be made on a Pro Forma
Basis with respect to any


 


29









 





Disposition (other than Permitted Transfers), Involuntary Disposition or Acquisition
occurring during the applicable period.



1.04 Rounding.



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



1.05 Times of Day.



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



1.06 Letter of Credit Amounts.



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



ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS




2.01 Revolving Loans and Term Loan.



(a) Revolving Loans. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to the Borrower
in Dollars from time to time on any Business Day during the Availability Period in an aggregate
amount not to exceed at any time outstanding the amount of such Lender’s Revolving Commitment;
provided, however, that after giving effect to any Borrowing of Revolving Loans,
(i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii)
the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender’s Revolving Commitment. Within the limits of each Lender’s Revolving Commitment, and
subject to the other terms and conditions hereof, the Borrower may borrow under this Section
2.01, prepay under Section 2.05, and reborrow under this Section 2.01.
Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein,
provided, however, all Borrowings made on the Closing Date shall be made as Base Rate Loans.



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


 


30









 





(c) Increases of the Aggregate Revolving Commitments or the Outstanding Amount of the Term
Loan. The Borrower shall have the right, upon at least five Business Days’ prior written
notice to the Administrative Agent, to increase the Aggregate Revolving Commitments and/or the
Outstanding Amount of the Term Loan by up to $75,000,000 in the aggregate at any time prior to the
date that is six months prior to the Maturity Date, subject, however, in any such
case, to satisfaction of the following conditions precedent:




(i) no Default shall have occurred and be continuing on the date on which such increase
is to become effective;




(ii) the representations and warranties set forth in Article VI shall be true
and correct on and as of the date on which such increase is to become effective, except to
the extent that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct as of such earlier date;




(iii) the Borrower may only request an increase pursuant to this Section
2.01(c) up to three times during the term of this Agreement;




(iv) such increase shall be in a minimum amount of $10,000,000 and in integral
multiples of $5,000,000 in excess thereof and the aggregate amount of all increases shall
not exceed $75,000,000;




(v) such requested increase shall only be effective upon receipt by the Administrative
Agent of (A) additional Commitments in a corresponding amount of such requested increase
from either existing Lenders and/or one or more other institutions that qualify as Eligible
Assignees (it being understood and agreed that no existing Lender shall be required to
provide an additional Commitment) and (B) documentation from each institution providing an
additional Commitment evidencing its additional Commitment and its obligations under this
Agreement in form and substance reasonably acceptable to the Administrative Agent;




(vi) the Administrative Agent shall have received all documents (including resolutions
of the board of directors of the Borrower and the Guarantors) it may reasonably request
relating to the corporate or other necessary authority for such increase and the validity of
such increase in the Aggregate Revolving Commitments and/or the Outstanding Amount of the
Term Loan, and any other matters relevant thereto, all in form and substance reasonably
satisfactory to the Administrative Agent; and




(vii) if any Loans are outstanding at the time of the increase in the Aggregate
Revolving Commitments and/or the Outstanding Amount of the Term Loan, the Borrower shall, if
applicable, prepay one or more existing Loans (such prepayment to be subject to
Section 3.05) in an amount necessary such that after giving effect to the increase
in the Aggregate Revolving Commitments and/or the Outstanding Amount of the Term Loan, each
Lender will hold its pro rata share (based on its Applicable Percentage of the increased
Aggregate Revolving Commitments and/or the Outstanding Amount of the Term Loan) of
outstanding Loans.




In the case of an increase in the amount of the Term Loan after the first principal
amortization payment date, adjustments will be made to the schedule of amortization payment
provided in Section 2.07(c), as appropriate, to give effect thereto such that the
interest in payments of principal, interest and other amounts will be made on the same basis
as for the underlying Term Loan such that the principal amortization payments made to the
holders of the Term Loan will not


 


31









 






be less than that which was payable prior to giving effect to the increase in the amount of
the Term Loan.



2.02 Borrowings, Conversions and Continuations of Loans.



(a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of, Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base
Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of,
conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $5,000,000
or a whole multiple of $1,000,000 in excess thereof. Except as provided in Sections
2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrower is requesting a Borrowing, a
conversion of Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii)
the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be
a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv)
the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to
specify a Type of a Loan in a Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be made as, or converted
to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the
last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate
Loans in any Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month. Notwithstanding anything to the contrary herein, a
Swing Line Loan may not be converted to a Eurodollar Rate Loan.



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



(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of the Interest Period for such Eurodollar Rate Loan. During the existence of
a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without



 


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the consent of the Required Lenders, and the Required Lenders may demand that any or all of
the then outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans.



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



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



2.03 Letters of Credit.



(a) The Letter of Credit Commitment.




(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees,
in reliance upon the agreements of the Revolving Lenders set forth in this Section
2.03, (1) from time to time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue Letters of Credit in Dollars for the
account of the Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings
under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in
Letters of Credit issued for the account of the Borrower or its Subsidiaries and any
drawings thereunder; provided that after giving effect to any L/C Credit Extension
with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed
the Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of the Revolving
Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving
Commitment and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter
of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter
of Credit shall be deemed to be a representation by the Borrower that the L/C Credit
Extension so requested complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject to the terms and conditions
hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn upon and reimbursed.




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




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


 


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




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




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




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




(C) except as otherwise agreed by the Administrative Agent and the applicable
L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000;




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




(E) such Letter of Credit contains any provisions for automatic reinstatement
of the stated amount after any drawing thereunder; or




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




(iv) An L/C Issuer shall not amend any Letter of Credit if such L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under the terms
hereof.




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




(vi) Each L/C Issuer shall act on behalf of the Revolving Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith, and such L/C Issuer
shall have all of the benefits and immunities (A) provided to the Administrative Agent in
Article X with respect to any acts taken or omissions suffered by such L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it and Issuer
Documents pertaining to such


 


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Letters of Credit as fully as if the term “the Administrative Agent” as used in
Article X included such L/C Issuer with respect to such acts or omissions, and (B)
as additionally provided herein with respect to such L/C Issuer.



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




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




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




(iii) If the Borrower so requests in any applicable Letter of Credit Application, the
applicable L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic extension provisions (each, an “Auto-Extension Letter of
Credit”); provided that any such Auto-Extension Letter of Credit must permit
such L/C Issuer to prevent any such


 


35









 






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




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



(c) Drawings and Reimbursements; Funding of Participations.




(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of drawing
under such Letter of Credit, the applicable L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the
applicable L/C Issuer under a Letter of Credit (each such date, an “Honor Date”),
the Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount
equal to the amount of such drawing. If the Borrower fails to so reimburse such L/C Issuer
by such time, the Administrative Agent shall promptly notify each Revolving Lender of the
Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and
the amount of such Revolving Lender’s Applicable Percentage thereof. In such event, the
Borrower shall be deemed to have requested a Borrowing of Base Rate Loans to be disbursed on
the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum
and multiples specified in Section 2.02 for the principal amount of Base Rate Loans,
but subject to the conditions set forth in Section 5.02 (other than the delivery of
a Loan Notice) and provided that, after giving effect to such Borrowing, the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments. Any notice given by such
L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be
given by telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding effect of such
notice.




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


 


36









 






to the Borrower in such amount. The Administrative Agent shall remit the funds so
received to the applicable L/C Issuer.




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




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




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




(vi) If any Revolving Lender fails to make available to the Administrative Agent for
the account of the applicable L/C Issuer any amount required to be paid by such Revolving
Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time
specified in Section 2.03(c)(ii), such L/C Issuer shall be entitled to recover from
such Revolving Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which
such payment is immediately available to such L/C Issuer at a rate per annum equal to the
greater of the Federal Funds Rate and a rate determined by such L/C Issuer in accordance
with banking industry rules on interbank compensation, plus any administrative, processing
or similar fees customarily charged by such L/C Issuer in connection with the foregoing. If
such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so
paid shall constitute such Revolving Lender’s Revolving Loan included in the relevant
Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A
certificate of the applicable L/C Issuer submitted to any Revolving Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.




 


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(d) Repayment of Participations.




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




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



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




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




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




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




(iv) any payment by such L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit, or any payment made by such L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or


 


38









 






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



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



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



(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the
applicable L/C Issuer has honored any full or partial drawing request under any Letter of Credit
and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit
Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall, in each
case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.
Sections 2.05 and 9.02(c) set forth certain additional requirements to deliver Cash
Collateral hereunder. For purposes of this Section 2.03, Section 2.05 and
Section 9.02(c), “Cash Collateralize” means to pledge and deposit with or deliver
to the Administrative Agent, for the benefit of the L/C Issuers and the Revolving Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the L/C Issuers (which documents
are hereby consented to by the Revolving Lenders). Derivatives of such term have corresponding
meanings. The Borrower hereby grants to the Administrative Agent, for the benefit of the L/C
Issuers and the Revolving Lenders, a security interest in



 


39









 






all such cash, deposit accounts and all balances therein and all proceeds of the foregoing.
Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts at Bank of
America.



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



(i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Lender in accordance with its Applicable Percentage a Letter of Credit
fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the daily amount available to be drawn under such Letter of Credit. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit
Fees shall be (i) due and payable on the first Business Day after the end of each March, June,
September and December, commencing with the first such date to occur after the issuance of such
Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii)
computed on a quarterly basis in arrears; provided that (1) no Letter of Credit Fees shall
accrue in favor of a Defaulting Lender so long as such Revolving Lender shall be a Defaulting
Lender and (2) any Letter of Credit Fees accrued in favor of a Defaulting Lender during the period
prior to the time such Revolving Lender became a Defaulting Lender and unpaid at such time shall
not be payable by the Borrower so long as such Revolving Lender shall be a Defaulting Lender. If
there is any change in the Applicable Rate during any quarter, the daily amount available to be
drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in effect.
Notwithstanding anything to the contrary contained herein, upon the request of the Required
Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default
Rate.



(j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the applicable L/C Issuer for its own account a fronting fee with
respect to each Letter of Credit, at the rate per annum specified in the applicable Fee Letter or
otherwise specified by the applicable L/C Issuer, computed on the daily amount available to be
drawn under such Letter of Credit and on a quarterly basis in arrears. Unless otherwise agreed by
the applicable L/C Issuer, such fronting fee shall be due and payable on the tenth Business Day
after the end of each March, June, September and December in respect of the most recently-ended
quarterly period (or portion thereof, in the case of the first payment), commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. In addition, the Borrower shall pay directly to the applicable L/C
Issuer for its own account the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as
from time to time in effect. Such customary fees and standard costs and charges are due and
payable on demand and are nonrefundable.



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



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


 


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2.04 Swing Line Loans.



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



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




(c) Refinancing of Swing Line Loans.




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


 


41









 






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




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




(iii) If any Revolving Lender fails to make available to the Administrative Agent for
the account of the Swing Line Lender any amount required to be paid by such Revolving Lender
pursuant to the foregoing provisions of this Section 2.04(c) by the time specified
in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such
Revolving Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which
such payment is immediately available to the Swing Line Lender at a rate per annum equal to
the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in
accordance with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the Swing Line Lender in connection with
the foregoing. If such Revolving Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Revolving Lender’s Revolving Loan
included in the relevant Borrowing or funded participation in the relevant Swing Line Loan,
as the case may be. A certificate of the Swing Line Lender submitted to any Revolving
Lender (through the Administrative Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.




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


 


42









 






(d) Repayment of Participations.




(i) At any time after any Revolving Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account
of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving Lender its
Applicable Percentage thereof in the same funds as those received by the Swing Line Lender.




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



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



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



2.05 Prepayments.



(a) Voluntary Prepayments of Loans.




(i) Revolving Loans and Term Loan. The Borrower may, upon notice from the
Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay
Revolving Loans and the Term Loan in whole or in part without premium or penalty;
provided that (A) such notice must be received by the Administrative Agent not later
than 11:00 a.m. (1) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (2) on the date of prepayment of Base Rate Loans; (B) any such prepayment of
Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof (or, if less, the entire principal amount thereof then
outstanding); (C) any prepayment of Base Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof (or, if less, the entire
principal amount thereof then outstanding) and (D) any prepayment of the Term Loan
(including prepayments pursuant to Section 2.01(c)(vii)) shall be applied as specified by
the Borrower in the applicable notice of prepayment; provided that in the event the
Borrower fails to specify the how the prepayment shall be applied, such prepayment of the
Term Loan shall be applied ratably to the remaining principal amortization payments. Each
such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to
be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such
Loans. The Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment.
If such notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurodollar Rate Loan shall


 


43









 






be accompanied by all accrued interest on the amount prepaid, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment shall be
applied to the Loans of the Lenders in accordance with their respective Applicable
Percentages.




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




(b) Mandatory Prepayments of Loans.




(i) Revolving Commitments. If for any reason the Total Revolving Outstandings
at any time exceed the Aggregate Revolving Commitments then in effect, the Borrower shall
immediately prepay Revolving Loans and/or Swing Line Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided, however,
that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant
to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving
Loans and Swing Line Loans the Total Revolving Outstandings exceed the Aggregate Revolving
Commitments then in effect.




(ii) Dispositions and Involuntary Dispositions. No later than the first
Business Day following the date of receipt by Borrower or any of its Subsidiaries of any Net
Cash Proceeds from all Dispositions (other than Permitted Transfers) and Involuntary
Dispositions, the Borrower shall prepay the Loans and/or Cash Collateralize the L/C
Obligations as hereafter provided in an aggregate amount equal to 100% of such Net Cash
Proceeds, unless (x) a Reinvestment Notice shall be delivered in respect thereof, (y) the
aggregate Net Cash Proceeds from the Closing Date through the applicable date of
determination that have not been applied to the prepayment of Loans do not exceed (1) with
respect to all Dispositions, $5,000,000 or (2) with respect to all Involuntary Dispositions,
$5,000,000 as applicable, and (z) no Event of Default shall have occurred and be continuing
at such time; provided that, notwithstanding the foregoing, on each Reinvestment
Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the
relevant Reinvestment Event shall be applied as set forth in Section 2.05(b)(vi).




(iii) Consolidated Excess Cash Flow. Within 105 days after the end of each
fiscal year commencing with the fiscal year ending December 31, 2010, the Borrower shall
prepay the Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in an
aggregate amount equal to (x) 50% (if the Consolidated Total Leverage Ratio as of the end of
such fiscal year is equal to or greater than 1.0 to 1.0) of Consolidated Excess Cash Flow
for such fiscal year minus (y) voluntary prepayments of the Loans during such fiscal year
(excluding prepayments of the Revolving Loans and the Swing Line Loans except to the extent
the Revolving Commitments are permanently reduced in connection with such prepayments);
provided, however, if the Consolidated Total Leverage Ratio as of the last
day of such fiscal year is less than 1.0 to 1.0, then the Borrower shall not be required to
make the foregoing payment for such fiscal year.




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


 


44









 






Collateralize the L/C Obligations as hereafter provided in an aggregate amount equal to
100% of such Net Cash Proceeds.




(v) Equity Issuances. Immediately upon the receipt by any Loan Party or any
Subsidiary of the Net Cash Proceeds of any Equity Issuance, the Borrower shall prepay the
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to 50% (if
the Consolidated Total Leverage Ratio as of the end of the preceding fiscal quarter is
greater than 1.0 to 1.0) of such Net Cash Proceeds or 25% (if the Consolidated Total
Leverage Ratio as of the end of the preceding fiscal quarter is equal to or less than 1.0 to
1.0) of such Net Cash Proceeds.




(vi) Application of Mandatory Prepayments. All amounts required to be paid
pursuant to this Section 2.05(b) shall be applied as follows:




(A) with respect to all amounts prepaid pursuant to Section 2.05(b)(i),
first, ratably to the L/C Borrowings and the Swing Line Loans,
second, to the outstanding Revolving Loans, and, third, to Cash
Collateralize the remaining L/C Obligations; and




(B) with respect to all amounts prepaid pursuant to Sections
2.05(b)(ii), (iii), (iv) and (v), first to the
Term Loan (ratably to the remaining principal amortization payments),
second, ratably to the L/C Borrowings and the Swing Line Loans,
third, to the outstanding Revolving Loans, and, fourth, to Cash
Collateralize the remaining L/C Obligations (without a corresponding reduction in
the Aggregate Revolving Commitments in the cases of clauses second through
fourth).




Within the parameters of the applications set forth above, prepayments shall be
applied first to Base Rate Loans and then to Eurodollar Rate Loans in direct order
of Interest Period maturities. All prepayments under this Section 2.05(b)
shall be subject to Section 3.05, but otherwise without premium or penalty,
and shall be accompanied by interest on the principal amount prepaid through the
date of prepayment.



2.06 Termination or Reduction of Aggregate Revolving Commitments.



The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Revolving
Commitments, or from time to time permanently reduce the Aggregate Revolving Commitments to an
amount not less than the Outstanding Amount of Revolving Loans, Swing Line Loans and L/C
Obligations; provided that (i) any such notice shall be received by the Administrative
Agent not later than 12:00 noon five Business Days prior to the date of termination or reduction,
(ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple
of $1,000,000 in excess thereof and (iii) if, after giving effect to any reduction of the Aggregate
Revolving Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount
of the Aggregate Revolving Commitments, such sublimit shall be automatically reduced by the amount
of such excess. The Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Revolving Commitments. Any reduction of the Aggregate
Revolving Commitments shall be applied to the Revolving Commitment of each Lender according to its
Applicable Percentage. All fees accrued with respect thereto until the effective date of any
termination of the Aggregate Revolving Commitments shall be paid on the effective date of such
termination.



2.07 Repayment of Loans.



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


 


45









 





(b) Swing Line Loans. The Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) the first Business Day of the next succeeding month after such Swing Line Loan is made
and (ii) the Maturity Date.



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



	 	 	 	 	 
	 	 	*Principal Amortization
	 	 	Payment (% of Term Loans
	 	 	outstanding on the Closing
	 	 	Date plus the initial amount
	 	 	of any Term Loans funded
	Payment Dates	 	pursuant to Section 2.01(c))
	 
	June 30, 2010

	 	 	2.5	%
	September 30, 2010

	 	 	2.5	%
	December 31, 2010

	 	 	2.5	%
	March 31, 2011

	 	 	2.5	%
	June 30, 2011

	 	 	2.5	%
	September 30, 2011

	 	 	2.5	%
	December 31, 2011

	 	 	2.5	%
	March 31, 2012

	 	 	2.5	%
	June 30, 2012

	 	 	2.5	%
	September 30, 2012

	 	 	2.5	%
	December 31, 2012

	 	 	2.5	%
	March 31, 2013

	 	 	2.5	%
	June 30, 2013

	 	 	3.75	%
	September 30, 2013

	 	 	3.75	%
	December 31, 2013

	 	 	3.75	%
	March 31, 2014

	 	 	3.75	%
	June 30, 2014

	 	 	3.75	%
	September 30, 2014

	 	 	3.75	%
	December 31, 2014

	 	 	3.75	%
	Maturity Date for Term Loan

	 	All remaining principal outstanding under the
Term Loan









	 	 	 
	*	 	The amortization to each Lender will be calculated in accordance with the last paragraph of Section 2.01(c).





2.08 Interest.



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



 


46









 






date at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iii)
each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate.




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




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




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




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



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



2.09 Fees.




In addition to certain fees described in subsections (i) and (j) of Section 2.03:



(a) Commitment Fee. During the Availability Period, the Borrower shall pay to the
Administrative Agent, for the account of each Lender in accordance with its Applicable Percentage,
a commitment fee equal to the product of (i) the Applicable Rate times (ii) the actual
daily amount by which the Aggregate Revolving Commitments exceed the sum of (y) the Outstanding
Amount of Revolving Loans and (z) the Outstanding Amount of L/C Obligations. The commitment fee
shall accrue at all times during the Availability Period, including at any time during which one or
more of the conditions in Article V is not met, and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December, commencing with the
first such date to occur after the Closing Date, and on the last day of the Availability Period;
provided that (1) no commitment fee shall accrue on any of the Revolving Commitment of a
Defaulting Lender so long as such Lender shall be a Defaulting Lender and (2) any commitment fee
accrued with respect to the Revolving Commitment of a Defaulting Lender during the period prior to
the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the
Borrower so long as such Lender shall be a Defaulting Lender. The commitment fee shall be
calculated quarterly in arrears, and if there is any change in the Applicable Rate during any
quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately
for each period during such quarter that such Applicable Rate was in effect. For purposes of
clarification, Swing Line Loans shall not be considered outstanding for purposes of determining the
unused portion of the Aggregate Revolving Commitments.


 


47









 





(b) Fee Letters. The Borrower shall pay to the Arrangers and the Administrative Agent
for their own respective accounts fees in the amounts and at the times specified in the Fee
Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.



2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.




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



(b) If, as a result of any restatement of or other adjustment to the financial statements of
the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the
Consolidated Total Leverage Ratio as calculated by the Borrower as of any applicable date was
inaccurate and (ii) a proper calculation of the Consolidated Total Leverage Ratio would have
resulted in higher pricing for such period, the Borrower shall immediately and retroactively be
obligated to pay to the Administrative Agent for the account of the applicable Lenders or the
applicable L/C Issuer, as the case may be, promptly on demand by the Administrative Agent (or,
after the occurrence of an actual or deemed entry of an order for relief with respect to the
Borrower under the Bankruptcy Code of the United States, automatically and without further action
by the Administrative Agent, any Lender or any L/C Issuer), an amount equal to the excess of the
amount of interest and fees that should have been paid for such period over the amount of interest
and fees actually paid for such period. This paragraph shall not limit the rights of the
Administrative Agent, any Lender or any L/C Issuer, as the case may be, under Section
2.03(c)(iii), 2.03(i) or 2.08(b) or under Article IX. The
Borrower’s obligations under this paragraph shall survive the termination of the Aggregate
Revolving Commitments and the repayment of all other Obligations hereunder.



2.11 Evidence of Debt.



(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a
promissory note, which shall evidence such Lender’s Loans in addition to such accounts or records.
Each such promissory note shall be in the form of Exhibit 2.11(a) (a “Note”). Each
Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount
and maturity of its Loans and payments with respect thereto.



(b) In addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or records
evidencing



 


48









 






the purchases and sales by such Lender of participations in Letters of Credit and Swing Line
Loans. In the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.



2.12 Payments Generally; Administrative Agent’s Clawback.



(a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (or other applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office. All payments received by the Administrative
Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower
shall come due on a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected on computing interest or fees, as the
case may be.




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




(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the time at which
any payment is due to the Administrative Agent for the account of the Lenders or the
applicable L/C Issuer hereunder that the Borrower will not make such payment, the
Administrative Agent may


 


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




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



(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension set forth in
Article V are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.



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



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



(f) Insufficient Funds. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first, toward payment
of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of interest and fees then due to such parties, and (ii) second, toward
payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties.



2.13 Sharing of Payments by Lenders.



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



 


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Lenders ratably in accordance with the aggregate amount of principal of and accrued interest
on their respective Loans and other amounts owing them, provided that:




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




(ii) the provisions of this Section shall not be construed to apply to (A) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (B) any payment obtained by an L/C Issuer or the Swing Line Lender to secure the
obligations of Defaulting Lenders or Impacted Lenders to fund such risk participations or
(C) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or subparticipations in L/C Obligations or Swing Line
Loans to any assignee or participant, other than to any Loan Party or any Subsidiary thereof
(as to which the provisions of this Section shall apply).



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



ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY




3.01 Taxes.



(a)  Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.




(i) Any and all payments by or on account of any obligation of the Loan Parties
hereunder or under any other Loan Document shall to the extent permitted by applicable Laws
be made free and clear of and without reduction or withholding for any Taxes. If, however,
applicable Laws require any Loan Party or the Administrative Agent to withhold or deduct any
Tax, such Tax shall be withheld or deducted in accordance with such Laws as determined by
such Loan Party or the Administrative Agent, as the case may be, upon the basis of the
information and documentation to be delivered pursuant to subsection (e) below.




(ii) If the Loan Parties or the Administrative Agent shall be required by the Internal
Revenue Code to withhold or deduct any Taxes, including both United States Federal backup
withholding and withholding taxes, from any payment, then (A) the Administrative Agent shall
withhold or make such deductions as are determined by the Administrative Agent to be
required based upon the information and documentation it has received pursuant to subsection
(e) below, (B) the Administrative Agent shall timely pay the full amount withheld or
deducted to the relevant Governmental Authority in accordance with the Internal Revenue
Code, and (C) to the extent that the withholding or deduction is made on account of
Indemnified Taxes or Other Taxes, the sum payable by the Loan Parties shall be increased as
necessary so that after any required withholding or the making of all required deductions
(including deductions applicable to additional sums payable under this Section) the
Administrative Agent, any Lender or any L/C


 


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Issuer, as the case may be, receives an amount equal to the sum it would have received
had no such withholding or deduction been made.



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




(c) Tax Indemnification. (i) Without limiting the provisions of subsection (a) or
(b) above, the Loan Parties shall, and do hereby, indemnify the Administrative Agent, each
Lender and each L/C Issuer, and shall make payment in respect thereof within ten days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) withheld or deducted by the Loan Parties or the Administrative Agent or
paid by the Administrative Agent, such Lender or such L/C Issuer, as the case may be, and
any penalties, interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. The Loan Parties shall also, and do
hereby, indemnify the Administrative Agent, and shall make payment in respect thereof within
ten days after demand therefor, for any amount which a Lender or an L/C Issuer for any
reason fails to pay indefeasibly to the Administrative Agent as required by clause (ii) of
this subsection. A certificate as to the amount of any such payment or liability delivered
to the Borrower by a Lender or an L/C Issuer (with a copy to the Administrative Agent), or
by the Administrative Agent on its own behalf or on behalf of a Lender or an L/C Issuer,
shall be conclusive absent manifest error.




(ii) Without limiting the provisions of subsection (a) or (b) above, each Lender and
each L/C Issuer shall, and does hereby, indemnify the Loan Parties and the Administrative
Agent, and shall make payment in respect thereof within ten days after demand therefor,
against any and all Taxes and any and all related losses, claims, liabilities, penalties,
interest and expenses (including the fees, charges and disbursements of any counsel for the
Borrower or the Administrative Agent) incurred by or asserted against the Borrower or the
Administrative Agent by any Governmental Authority as a result of the failure by such Lender
or such L/C Issuer, as the case may be, to deliver, or as a result of the inaccuracy,
inadequacy or deficiency of, any documentation required to be delivered by such Lender or
such L/C Issuer, as the case may be, to the Borrower or the Administrative Agent pursuant to
subsection (e). Each Lender and each L/C Issuer hereby authorizes the Administrative Agent
to set off and apply any and all amounts at any time owing to such Lender or such L/C
Issuer, as the case may be, under this Agreement or any other Loan Document against any
amount due to the Administrative Agent under this clause (ii). The agreements in this
clause (ii) shall survive the resignation and/or replacement of the Administrative Agent,
any assignment of rights by, or the replacement of, a Lender or an L/C Issuer, the
termination of the Commitments and the repayment, satisfaction or discharge of all other
Obligations.



(d) Evidence of Payments. Upon request by any Loan Party or the Administrative Agent,
as the case may be, after any payment of Taxes by such Loan Party or by the Administrative Agent to
a Governmental Authority as provided in this Section 3.01, such Loan Party shall deliver to
the Administrative Agent or the Administrative Agent shall deliver to such Loan Party, as the case
may be, the original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of any return required by Law to report such payment or other
evidence of such payment reasonably satisfactory to such Loan Party or the Administrative Agent, as
the case may be.


 


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(e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
Borrower and to the Administrative Agent, at the time or times prescribed by applicable Laws or
when reasonably requested by the Borrower or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit the Borrower or the
Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder
or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower
pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax
purposes in the applicable jurisdiction.




(ii) Without limiting the generality of the foregoing, if the Borrower is resident for
tax purposes in the United States,




(A) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Internal Revenue Code shall deliver to the Borrower and the
Administrative Agent executed originals of Internal Revenue Service Form W-9 or such
other documentation or information prescribed by applicable Laws or reasonably
requested by the Borrower or the Administrative Agent as will enable the Borrower or
the Administrative Agent, as the case may be, to determine whether or not such
Lender is subject to backup withholding or information reporting requirements; and




(B) each Foreign Lender that is entitled under the Internal Revenue Code or any
applicable treaty to an exemption from or reduction of withholding tax with respect
to payments hereunder or under any other Loan Document shall deliver to the Borrower
and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the request of the
Borrower or the Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:




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




(II) executed originals of Internal Revenue Service Form W-8ECI,




(III) executed originals of Internal Revenue Service Form W-8IMY and
all required supporting documentation,




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




(V) executed originals of any other form prescribed by applicable Laws
as a basis for claiming exemption from or a reduction in United States



 


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Federal withholding tax together with such supplementary documentation
as may be prescribed by applicable Laws to permit the Borrower or the
Administrative Agent to determine the withholding or deduction required to
be made.




(iii) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent
of any change in circumstances which would modify or render invalid any claimed exemption or
reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable Laws of any
jurisdiction that the Borrower or the Administrative Agent make any withholding or deduction
for taxes from amounts payable to such Lender.



(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender or an L/C Issuer, or have any obligation to pay to any Lender or any L/C Issuer, any refund
of Taxes withheld or deducted from funds paid for the account of such Lender or such L/C Issuer, as
the case may be. If the Administrative Agent, any Lender or any L/C Issuer determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts
pursuant to this Section, it shall pay to such Loan Party an amount equal to such refund (but only
to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this
Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses incurred by the Administrative Agent, such Lender or such L/C Issuer, as the
case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that each Loan Party, upon the request of
the Administrative Agent, such Lender or such L/C Issuer, agrees to repay the amount paid over to
such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or such L/C Issuer in the event the
Administrative Agent, such Lender or such L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or any L/C Issuer to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrower or any other Person.



3.02 Illegality.



If any Lender determines that any Law has made it unlawful, or that any Governmental Authority
has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain
or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar
Rate, or any Governmental Authority has imposed material restrictions on the authority of such
Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then,
on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation
of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all of such Lender’s Eurodollar Rate Loans
to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Notwithstanding the
foregoing, and despite the illegality for such a Lender to make, maintain or fund Eurodollar Rate
Loans or Base Rate Loans as to which the interest rate is based on the Eurodollar Rate, that Lender
shall remain committed to make Base Rate Loans and shall be entitled to recover interest at



 


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the Base Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted.



3.03 Inability to Determine Rates.



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



3.04 Increased Costs.




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




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




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




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




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



(b) Capital Requirements. If any Lender or any L/C Issuer determines that any Change
in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such
Lender’s or



 


55









 






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



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



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



3.05 Compensation for Losses.



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




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




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




(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section
11.13; or



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


 


56









 





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



3.06 Mitigation Obligations; Replacement of Lenders.



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



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



3.07 Survival.



All of the Loan Parties’ obligations under this Article III shall survive termination
of the Aggregate Revolving Commitments, repayment of all other Obligations hereunder, and
resignation of the Administrative Agent.



ARTICLE IV




GUARANTY




4.01 The Guaranty.



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



 


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mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in
accordance with the terms of such extension or renewal.



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



4.02 Obligations Unconditional.



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




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




(b) any of the acts mentioned in any of the provisions of any of the Loan Documents or
other documents relating to the Obligations shall be done or omitted;




(c) the maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any right under
any of the Loan Documents or other documents relating to the Obligations shall be waived or
any other guarantee of any of the Obligations or any security therefor shall be released,
impaired or exchanged in whole or in part or otherwise dealt with;




(d) any Lien granted to, or in favor of, the Administrative Agent or any other holder
of the Obligations as security for any of the Obligations shall fail to attach or be
perfected; or




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



With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence,
presentment, demand of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any other holder of the Obligations exhaust any right, power or remedy or
proceed against any Person under any of the Loan Documents or any other document relating to the
Obligations, or against any other Person under any other guarantee of, or security for, any of the
Obligations.


 


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4.03 Reinstatement.



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



4.04 Certain Additional Waivers.



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



4.05 Remedies.



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



4.06 Rights of Contribution.



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



4.07 Guarantee of Payment; Continuing Guarantee.



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


 


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ARTICLE V




CONDITIONS PRECEDENT TO EFFECTIVENESS AND CREDIT EXTENSIONS




5.01 Conditions of Effectiveness.




This Agreement shall be effective upon satisfaction of the following conditions precedent:



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



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



(c) No Material Adverse Change. There shall not have occurred a material adverse
change since December 31, 2009 in the business, operations, properties, assets or condition
(financial or otherwise) of the Borrower and its Subsidiaries, taken as a whole.



(d) Organization Documents, Resolutions, Etc. Receipt by the Administrative Agent of
the following, in form and substance satisfactory to the Administrative Agent:




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




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




(iii) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and is validly
existing, in good standing and qualified to engage in business in its state of organization
or formation, the state of its principal place of business and each other jurisdiction where
its ownership, lease or operation of properties or the conduct of its business requires such
qualification, except to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect.



(e) Personal Property Collateral. Receipt by the Administrative Agent of the
following:




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




(ii) except as permitted by Section 7.14, all certificates evidencing any certificated
Equity Interests pledged to the Administrative Agent pursuant to the Security Agreement,
together with duly executed in blank, undated stock powers attached thereto (unless, with
respect to the pledged Equity Interests of any Foreign Subsidiary, such stock powers are
deemed


 


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unnecessary by the Administrative Agent in its reasonable discretion under the law of
the jurisdiction of organization of such Person);




(iii) duly executed notices of grant of security interest in the form required by the
Security Agreement as are necessary, in the Administrative Agent’s sole discretion, to
perfect the Administrative Agent’s security interest in the United States registered
intellectual property of the Loan Parties; and




(iv) the Intercompany Note, together with a duly executed allonge attached thereto.



(f) Adverse Proceedings. There shall not exist any Adverse Proceedings that could
reasonably be expected to have a Material Adverse Effect.



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



(h) Closing Certificate. Receipt by the Administrative Agent of a certificate signed
by a Responsible Officer of the Borrower certifying (i) that the conditions specified in
Sections 5.01(c) and (f) and Sections 5.02(a) and (b) have been
satisfied as of the Closing Date and (ii) that the Loan Parties do not own any Material Real Estate
Assets as of the Closing Date.



(i) Termination and Repayment of Existing Credit Agreement. Receipt by the
Administrative Agent of evidence that all obligations owing under that certain Credit and Guaranty
Agreement dated as of October 1, 2007 among the Borrower, the guarantors party thereto, the lenders
party thereto and Goldman Sachs Credit Partners, L.P., as administrative agent, concurrently with
the Closing Date, have be paid in full, all commitments thereunder have been terminated and all
Liens in connection therewith have been released or arrangements for such release satisfactory to
the Administrative Agent have been made.



(j) Collateral Questionnaire. Receipt by the Administrative Agent of a Collateral
Questionnaire certified by a Responsible Officer of the Borrower to be true and correct in all
material respects as of the Closing Date.



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



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



Without limiting the generality of the provisions of the last paragraph of Section
10.03, for purposes of determining compliance with the conditions specified in this Section
5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable



 


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or satisfactory to a Lender unless the Administrative Agent shall have received notice from
such Lender prior to the proposed Closing Date specifying its objection thereto.



5.02 Conditions to all Credit Extensions.



The obligation of each Lender to honor any Request for Credit Extension is subject to the
following conditions precedent:



(a) The representations and warranties of each Loan Party contained in Article VI or
any other Loan Document, or that are contained in any document furnished at any time under or in
connection herewith or therewith, shall be true and correct in all material respects on and as of
the date of such Credit Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and correct in all material
respects as of such earlier date.



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



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



Each Request for Credit Extension submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 5.02(a) and
(b) have been satisfied on and as of the date of the applicable Credit Extension.



ARTICLE VI




REPRESENTATIONS AND WARRANTIES




In order to induce the Lenders and the L/C Issuers to enter into this Agreement and to make
each Credit Extension to be made thereby, each Loan Party represents and warrants to each Lender
and each L/C Issuer, on the Closing Date and on each date of each Credit Extension, that the
following statements are true and correct:



6.01 Organization; Requisite Power and Authority; Qualification.




(a) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization as identified in Schedule
6.01, (ii) 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 Loan Documents to
which it is a party and to carry out the transactions contemplated thereby and (iii) 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.



(b) Except to the extent a failure to do so could not reasonably be expected to result in a
Material Adverse Effect, each Loan Party and each HMO Subsidiary: (i) has obtained and maintains in
good standing without restriction all required licenses and certificates of authority, (ii) to the
extent prudent and customary in the industry in which it is engaged, has obtained and maintains in
good standing without restriction, accreditation from all applicable recognized accrediting
agencies, (iii) has entered into and maintains in good standing without restriction its status
under each Medical Reimbursement Program



 


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Provider Agreement to which it is a party, (iv) has implemented and maintains a compliance
program designed to provide effective internal controls to promote adherence to and to prevent and
detect material violations of Laws applicable to the Loan Parties and the HMO Subsidiaries,
including any applicable HMO Regulations, Medicaid Regulations and Medicare Regulations and (v) has
implemented and maintains policies consistent with HIPAA and the HITECH Act on or before the date
that any provision thereof becomes applicable to the Borrower or any of its Subsidiaries. The Loan
Parties require each Contract Provider to provide evidence, in accordance with re-credentialing
requirements, that such Contract Provider is duly licensed by each Governmental Authority having
jurisdiction over the provision of such service by such Contract Provider in the locations where
the Loan Parties and the HMO Subsidiaries conduct business, to the extent such licensing is
required to enable Contract Provider to provide the professional services provided by such Contract
Provider.



6.02 Equity Interests and Ownership; HMO Subsidiaries.




(a) The Equity Interests of each of the Borrower’s Subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable. Except as set forth on Schedule
6.02(a), as of the date hereof, there is no existing option, warrant, call, right, commitment
or other agreement to which any of the Borrower’s Subsidiaries is a party requiring, and there is
no membership interest or other Equity Interest of any of the Borrower’s Subsidiaries outstanding
which upon conversion or exchange would require, the issuance by such Subsidiary of any additional
membership interests or other Equity Interests or other Securities convertible into, exchangeable
for or evidencing the right to subscribe for or purchase, a membership interest or other Equity
Interest.



(b) Schedule 6.02(b) correctly sets forth the ownership interest of the Borrower and
each of its Subsidiaries in their respective Subsidiaries as of the Closing Date and the Loan
Parties have no HMO Subsidiaries other than those specifically disclosed in Schedule
6.02(b) (as such schedule may be supplemented from time to time in accordance with Section
7.10).



6.03 Due Authorization.




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



6.04 No Conflict.




The execution, delivery and performance by the Loan Parties of the Loan Documents to which
they are parties and the consummation of the transactions contemplated by the Loan Documents do not
and will not (a) violate (i) any provision of any law or any governmental rule or regulation
applicable to the Borrower or any of its Subsidiaries, (ii) any of the Organizational Documents of
the Borrower or any of its Subsidiaries, or (iii) any order, judgment or decree of any court or
other agency of government binding on the Borrower or any of its Subsidiaries; (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 the Borrower 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
the Borrower or any of its Subsidiaries (other than any Liens created under any of the Loan
Documents in favor of the Administrative Agent, on behalf of holders of the Obligations); or (d)
require any approval of stockholders, members or partners or any approval or consent of any Person
under any Contractual Obligation of the Borrower or any of its Subsidiaries, except for such
approvals or consents which will be obtained on or before the Closing Date and except for any such
approvals or consents the failure of which to obtain will not have a Material Adverse Effect.


 


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6.05 Governmental Consents.




The execution, delivery and performance by the Loan Parties of the Loan Documents to which
they are parties and the consummation of the transactions contemplated by the Loan 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 (a) as required by HMO Regulations and described
on Schedule 6.05 and (b) for filings and recordings with respect to the Collateral to be
made or otherwise delivered to the Administrative Agent for filing and/or recordation as of the
Closing Date.



6.06 Binding Obligation.




Each Loan Document has been duly executed and delivered by each Loan Party that is a party
thereto and is the legally valid and binding obligation of such Loan Party, enforceable against
such Loan 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.



6.07 Financial Statements.




(a) The Historical Financial Statements were prepared in conformity with GAAP (or, as
applicable with respect to HMO Subsidiaries, SAP) and fairly present, in all material respects, the
financial position, on a consolidated basis, of the entities 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 and the absence of footnotes. As of the Closing Date, neither the Borrower 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 or condition (financial or otherwise) of the Borrower and any of its
Subsidiaries taken as a whole.



(b) The financial statements delivered pursuant to Section 7.01(a) and 7.01(b)
were prepared in conformity with GAAP (or, as applicable with respect to HMO Subsidiaries, SAP) and
fairly presented, in all material respects, the financial position, on a consolidated basis, of the
entities 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 the
absence of footnotes, changes resulting from audit and normal year end adjustments.



6.08 Projections.




On and as of the Closing Date, the projections of the Borrower and its Subsidiaries for the
period of fiscal year 2010 through and including fiscal year 2013 included in the Confidential
Information Memorandum dated January 2010 delivered to the Lenders (the “Projections”) are
based on good faith estimates and assumptions made by the management of the Borrower;
provided that the Projections are not to be viewed as facts, and actual results during the
period or periods covered by the Projections may differ from such Projections and the differences
may be material; provided further, as of the Closing Date, management of the
Borrower believed in good faith that the Projections were reasonable and attainable.



6.09 No Material Adverse Change.


 


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Since December 31, 2009, no event, circumstance or change has occurred that has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect, other than any
events, developments or occurrences (but not any future updates, developments or other changes in
or to any such events, developments or occurrences) that have been disclosed by the Borrower after
December 31, 2009 and on or prior to the Closing Date in any public filing on Form 10-K, Form 10-Q
or Form 8-K.



6.10 [Intentionally Omitted].




6.11 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 the Borrower 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, 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.



6.12 Payment of Taxes.




Except as otherwise permitted under Section 7.03, all federal income and all other
material tax returns and reports of the Borrower 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 the Borrower 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. The Borrower knows of no proposed tax
assessment against the Borrower or any of its Subsidiaries to which the Borrower or such Subsidiary
objects and which is not being actively contested by the Borrower 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.



6.13 Properties.




(a) Title. Each of the Borrower and its Subsidiaries has (i) good, sufficient and
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), (iii) to the Borrower’s
knowledge, valid licensed rights in (in the case of licensed interests in all material intellectual
property) and (iv) good title to (in the case of all other personal property), all of their
respective properties and assets reflected in the Historical Financial Statements referred to in
Section 6.07 and in the most recent financial statements delivered pursuant to Section
7.01, in each case except for assets disposed of since the dates of such financial statements
in the ordinary course of business or as otherwise permitted under Section 8.08. 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 6.13 contains a true,
accurate and complete list of (i) all Material 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 Material Real Estate Asset of any Loan Party, regardless
of whether such Loan 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, the Borrower does not have
knowledge of any default that has occurred and is continuing



 


65









 






thereunder and each such agreement constitutes the legally valid and binding obligation of
each applicable Loan Party, enforceable against such Loan 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.



6.14 Environmental Matters.




Neither the Borrower 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, or any Hazardous
Materials Activity that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Neither the Borrower 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 the Borrower’s 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 the Borrower or any of its Subsidiaries that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any of its Subsidiaries nor, to any Loan Party’s knowledge, any predecessor of the Borrower 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 the Borrower’s 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. 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 the Borrower or any of
its Subsidiaries relating to any Environmental Law, any Release of Hazardous Materials, or any
Hazardous Materials Activity that individually or in the aggregate has had, or could reasonably be
expected to have, a Material Adverse Effect.



6.15 No Defaults.




Neither the Borrower 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 that, 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.



6.16 Material Contracts.




Schedule 6.16 contains a true, correct and complete list of all the Material Contracts
in effect on the Closing Date. All Material Contracts are in full force and effect, and the
Borrower has no knowledge of the existence of any current defaults thereunder that, individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect.



6.17 Governmental Regulation.




Neither the Borrower nor any Guarantor is subject to regulation under the Investment Company
Act of 1940 or under any other federal or state statute or regulation that may limit its ability to
incur Indebtedness or that may otherwise render all or any portion of the Obligations
unenforceable. Neither the Borrower nor any of its Subsidiaries is a “registered investment
company” or a company “controlled”



 


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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.



6.18 Margin Stock.




The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock.



6.19 Employee Matters.




Neither the Borrower 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 the Borrower or any of its Subsidiaries, or to the best
knowledge of the Borrower, 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 the Borrower or any of its Subsidiaries or to the best
knowledge of the Borrower, threatened against any of them, (b) no strike or work stoppage in
existence or threatened involving the Borrower or any of its Subsidiaries and (c) to the best
knowledge of the Borrower, no union representation question existing with respect to the employees
of the Borrower or any of its Subsidiaries and, to the best knowledge of the Borrower, no union
organization activity that 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.



6.20 Employee Benefit Plans.




The Borrower, each of its Subsidiaries and each of their respective ERISA Affiliates are in
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 Pension Plan or
Multiemployer Plan and have performed all their obligations under each Pension Plan or
Multiemployer Plan. Each Pension Plan or Multiemployer 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 indicating that such Pension Plan or Multiemployer Plan is so qualified
and nothing has occurred subsequent to the issuance of such determination letter which would cause
such Pension Plan or Multiemployer Plan to lose its qualified status. No liability to the PBGC
(other than required premium payments), the Internal Revenue Service, any Pension Plan or
Multiemployer Plan or any trust established under Title IV of ERISA in connection with a Pension
Plan or a Multiemployer Plan has been or is expected to be incurred by the Borrower, any of its
Subsidiaries or any of their ERISA Affiliates. No ERISA Event has occurred or is reasonably
expected to occur. No Pension Plan is in “at risk status” as defined in Section 430(i)(4) of the
Code (without regard to the transition rule set forth in Section 430(i)(4)(B)). As of the most
recent valuation date for each Multiemployer Plan for which the actuarial report is available, the
potential liability of the Borrower, 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 is zero. The Borrower,
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.


 


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6.21 Insurance.



The Loan Parties and their Subsidiaries have insurance (including worker’s compensation
insurance, liability insurance, casualty insurance and business interruption insurance) with
financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts
(after giving effect to self insurance consistent with the self insurance of the Borrower and its
Subsidiaries as in effect on the Closing Date), with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning similar properties in
localities where the applicable Loan Party or the applicable Subsidiary operates. The property and
general liability insurance coverage of the Loan Parties as in effect on the Closing Date is
outlined as to carrier, policy number, expiration date, type, amount and deductibles on
Schedule 6.21.



6.22 Solvency.




The Loan Parties are and, upon the incurrence of any Obligation by any Loan Party on any date
on which this representation and warranty is made, will be, Solvent.



6.23 Intellectual Property; Licenses, Etc.



Each Loan Party and each Subsidiary owns, or possesses the legal right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses
and other intellectual property rights (collectively, “IP Rights”) that are reasonably
necessary for the operation of their respective businesses. Set forth on Schedule 6.23 is
a list of all IP Rights registered or pending registration with the United States Copyright Office
or the United States Patent and Trademark Office and owned by each Loan Party as of the Closing
Date. Except for such claims and infringements that could not reasonably be expected to have a
Material Adverse Effect, no claim has been asserted and is pending by any Person challenging or
questioning the use of any IP Rights or the validity or effectiveness of any IP Rights, nor does
any Loan Party know of any such claim, and, to the knowledge of the Responsible Officers of the
Loan Parties, the use of any IP Rights by any Loan Party or any Subsidiary or the granting of a
right or a license in respect of any IP Rights from any Loan Party or any Subsidiary does not
infringe on the rights of any Person. As of the Closing Date, none of the IP Rights owned by any
Loan Party is subject to any licensing agreement or similar arrangement except as set forth on
Schedule 6.23.



6.24 Compliance with Statutes, etc.




Each of the Borrower and its Subsidiaries is in compliance with all Requirements of Law 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 HMO
Regulations, Medicare Regulations and Medicaid Regulations and applicable provisions of HIPAA, the
HITECH Act and 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 the Borrower 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. Without limiting the generality of the foregoing with respect to the
Borrower and each of its Subsidiaries:




(a) neither the Borrower nor any of its Subsidiaries, nor (to the Borrower’s knowledge)
any individual employed by the Borrower or any of its Subsidiaries, would reasonably be
expected to have criminal culpability or to be excluded from participation in any Medical
Reimbursement Program as a result of individual or corporate actions or failures to act
where such culpability or exclusion has resulted or could reasonably be expected to result
in an Exclusion Event that could reasonably be expected to have a Material Adverse Effect;


 


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(b) no officer continuing to be employed by the Borrower or any of its Subsidiaries may
reasonably be expected to have individual culpability for matters under investigation by the
OIG or other Governmental Authority unless such officer has been, within a reasonable period
of time after discovery of such actual or potential culpability, either suspended or removed
from positions of responsibility related to those activities under challenge by the OIG or
other Governmental Authority;




(c) current billing policies, arrangements, protocols and instructions comply with
requirements of Medical Reimbursement Programs and are administered by properly trained
personnel, except where any such failure to comply would not reasonably be expected to
result in an Exclusion Event that could reasonably be expected to have a Material Adverse
Effect; and




(d) current medical director compensation arrangements and other arrangements with
referring physicians comply with state and federal anti-kickback, fraud and abuse, and
self-referral law requirements, including the requirements of the Stark Law, except where
any such failure to comply would not reasonably be expected to result in an Exclusion Event
that could reasonably be expected to have a Material Adverse Effect.



6.25 Disclosure.




The representations and warranties of the Loan Parties contained in any Loan Document or in
any other documents, certificates or written statements furnished to the Administrative Agent or
any Lender by or on behalf of the Borrower or any of its Subsidiaries for use in connection with
the transactions contemplated hereby, taken as a whole, do not contain any untrue statement of a
material fact or omit to state a material fact (known to the Borrower, in the case of any document
not furnished by the Borrower or its Subsidiaries) necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in which the same were
made. Notwithstanding the foregoing, any projections and pro forma financial information contained
in such materials are based upon good faith estimates and assumptions made by the management of the
Borrower, it being recognized by the 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 and the differences may be material. There are
no facts known (or that should upon the reasonable exercise of diligence be known) to the Borrower
(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 or in such other documents, certificates and statements furnished to the Lenders for use in
connection with the transactions contemplated hereby.



6.26 Anti-Terrorism Laws, Foreign Corrupt Practices Act, etc.




(a) No Loan Party and, to the knowledge of the Loan Parties, none of their respective
Affiliates is in violation of any Requirement of Law relating to terrorism or money laundering
(“Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing,
effective September 24, 2001 (the “Executive Order”), and the Patriot Act.



(b) No Loan Party, and to the knowledge of the Loan Parties, no Affiliate or broker or other
agent of any Loan Party acting or benefiting in any capacity in connection with the Loans is any of
the following:




(i) a person that is listed in the annex to, or is otherwise subject to the provisions
of, the Executive Order;


 


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(ii) a person owned or controlled by, or acting for or on behalf of, any person that is
listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;




(iii) a person with which any Lender is prohibited from dealing or otherwise engaging
in any transaction by any Anti-Terrorism Law;




(iv) a person that commits, threatens or conspires to commit or supports “terrorism” as
defined in the Executive Order; or




(v) a person that is named as a “specially designated national and blocked person” on
the most current list published by the U.S. Treasury Department Office of Foreign Assets
Control (“OFAC”) at its official website or any replacement website or other
replacement official publication of such list.



(c) No Loan Party and, to the knowledge of the Loan Parties, no broker or other agent of any
Loan Party acting in any capacity in connection with the Loans (i) conducts any business or engages
in making or receiving any contribution of funds, goods or services to or for the benefit of any
person described in paragraph (b) above, (ii) deals in, or otherwise engages in any transaction
relating to, any property or interests in property blocked pursuant to the Executive Order, or
(iii) engages in or conspires to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law.



(d) No part of the proceeds of the Loans will be used, directly or indirectly, for any
payments to any governmental official or employee, political party, official of a political party,
candidate for political office, or anyone else acting in an official capacity, in order to obtain,
retain or direct business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended.



6.27 Fraud and Abuse.




To the knowledge of the Responsible Officers of the Loan Parties, neither the Borrower nor any
of its Subsidiaries nor any of their respective officers, directors or Contract Providers have
engaged in any activities that are prohibited under any applicable provision of the Social Security
Act and the regulations promulgated thereunder, including HIPAA, Medicare Regulations and Medicaid
Regulations or binding rules of professional conduct, except to the extent that the same,
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.



ARTICLE VII




AFFIRMATIVE COVENANTS




Each Loan Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations and cancellation or expiration of all Letters of Credit, each
Loan Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Article VII.



7.01 Financial Statements and Other Reports.



The Borrower will deliver to the Administrative Agent (for the benefit of the Lenders):


 


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(a) Quarterly Financial Statements.




(i) As soon as available and in any event within 45 days after the end of each fiscal
quarter (other than the last fiscal quarter) of each fiscal year, commencing with the fiscal
quarter in which the Closing Date occurs, the consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such fiscal quarter and the related consolidated
statements of income and cash flows of the Borrower 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
(it being understood that the information required by this clause (i) may be furnished in
the form of a Form 10-Q and with the accompanying certifications required by the applicable
Requirements of Law for filing Forms 10-Q with the SEC); and




(ii) Within 15 days of the required date for delivery to the applicable state after the
end of each fiscal quarter of the Borrower, quarterly financial statements of each HMO
Subsidiary prepared in accordance with SAP.




(b) Annual Financial Statements.




(i) As soon as available and in any event within 90 days after the end of each fiscal
year, commencing with the fiscal year in which the Closing Date occurs, (1) the consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income, stockholders’ equity and cash flows of the
Borrower 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 (2) a report thereon of KPMG LLP or other
independent certified public accountants of recognized national standing selected by the
Borrower and reasonably satisfactory to the 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 the Borrower 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 (it being understood that the information required by this clause (i) may
be furnished in the form of a Form 10-K and with the accompanying certificates required by
the applicable Requirements of Law for filing Forms 10-K with the SEC); and




(ii) Within 15 days of the required date for delivery to the applicable state after the
end of each fiscal year of the Borrower, annual financial statements of each HMO Subsidiary
prepared in accordance with SAP.



(c) Compliance Certificate. Together with each delivery of financial statements of
the Borrower and its Subsidiaries pursuant to Sections 7.01(a) and 7.01(b), a duly
executed and completed Compliance Certificate.


 


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(d) Notice of Certain Investments and Required Advances. Concurrently with the
delivery of financial statements under Section 7.01(a), (i) written notification of
Investments during such fiscal quarter by the Borrower and its Subsidiaries in any HMO Subsidiary
that, individually or in the aggregate in any fiscal year of the Borrower, exceed 10% of the
Regulatory Action Level or, in any state that has not adopted the NAIC definition, the relevant
state’s reserve requirements, as applicable, (in each case as determined in accordance with SAP at
the immediately preceding fiscal-year-end determination thereof) of such HMO Subsidiary;
provided that, to the extent such Investments, individually or in the aggregate, materially
deviate from the Financial Plan delivered pursuant to Section 7.01(i), written notification
of such Investments shall be provided not later than fifteen days following the end of the calendar
month during which such Investments are made and (ii) evidence of any requirement by an HMO
Regulator for the Borrower or any of its Subsidiaries to make a Required Advance in excess of
$100,000.



(e) Statements of Reconciliation after Change in Accounting Principles. If, as a
result of any change in accounting policies, the consolidated financial statements of the Borrower
and its Subsidiaries delivered pursuant to Section 7.01(a) or 7.01(b) 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 the Administrative Agent; provided that this Section 7.01(e) shall not be
applicable following an amendment of this Agreement contemplated by Section 1.03(b).



(f) Notice of Default. Promptly upon any Responsible Officer of the Borrower
obtaining knowledge (i) of any condition or event that constitutes a Default or an Event of Default
or that notice has been given to the Borrower with respect thereto; (ii) that any Person has given
any notice to the Borrower or any of its Subsidiaries or taken any other action with respect to any
event or condition set forth in Section 9.01(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 Responsible Officer 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 the Borrower has taken, is taking and proposes to take with respect thereto.



(g) Notice of Litigation. Promptly upon any Responsible Officer of the Borrower
obtaining knowledge of (i) the institution of, or non-frivolous threat of, any Adverse Proceeding
not previously disclosed in writing by the Borrower to the Lenders, or (ii) any material
development in any Adverse Proceeding that, in the case of either clause (i) or (ii), could
reasonably be expected to be adversely determined, and 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 the Borrower to enable the Lenders and their counsel to evaluate such
matters.



(h) ERISA. (i) Promptly upon becoming aware of the occurrence of or forthcoming
occurrence of any ERISA Event, a written notice specifying the nature thereof, what action the
Borrower, 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 the Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates with the Internal Revenue Service with respect to each Pension Plan; (2) all notices
received by the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates from
a Multiemployer Plan sponsor concerning an ERISA



 


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Event; and (3) copies of such other documents or governmental reports or filings relating to
any Pension Plan or Multiemployer Plan as the Administrative Agent shall reasonably request.



(i) Financial Plan. As soon as practicable and in any event no later than thirty days
after the beginning of each fiscal year, a consolidated plan and financial forecast for such fiscal
year (a “Financial Plan”), including (i) a forecasted consolidated balance sheet and
forecasted consolidated statements of income and cash flows of the Borrower and its Subsidiaries
for such fiscal year, together with a pro forma Compliance Certificate for such fiscal year and an
explanation of the assumptions on which such forecasts are based and (ii) forecasted consolidated
statements of income and cash flows of the Borrower and its Subsidiaries for each month of such
fiscal year and (iii) a forecast demonstrating projected compliance with the requirements of
Sections 8.07(a) and (b) for such fiscal year.



(j) Insurance Report. As soon as practicable and in any event by the last day of each
fiscal year, a certificate from the Borrower’s insurance broker(s) in form reasonably satisfactory
to the Administrative Agent outlining all material insurance coverage maintained as of the date of
such certificate by the Borrower and its Subsidiaries.



(k) Information Regarding Collateral, etc. (a) The Borrower will furnish to the
Administrative Agent prompt written notice of any change (i) in any Loan Party’s corporate name,
(ii) in any Loan Party’s identity or corporate structure, (iii) in any Loan Party’s jurisdiction of
organization or (iv) in any Loan Party’s Federal Taxpayer Identification Number or state
organizational identification number. The Borrower 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 Administrative Agent to continue at
all times following such change to have a valid, legal and perfected security interest in all the
Collateral as contemplated in the Collateral Documents. The Borrower also agrees promptly to
notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed.



(l) Annual Collateral Verification. Each year, at the time of delivery of annual
financial statements with respect to the preceding fiscal year pursuant to Section 7.01(b),
the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer (i)
either confirming that there has been no change in such information since the date of the
Collateral 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 fixture 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 Collateral Questionnaire) to the extent necessary to effect, protect and perfect the
security interests under the Collateral Documents for a 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).



(m) Other Information. (i) Promptly upon their becoming available, copies of (1) all
financial statements, reports, notices and proxy statements sent or made available generally by the
Borrower to its security holders acting in such capacity or by any Subsidiary of the Borrower to
its security holders other than the Borrower or another Subsidiary of the Borrower, (2) all regular
and periodic reports and all registration statements and prospectuses, if any, filed by the
Borrower or any of its Subsidiaries with any securities exchange or with the SEC or any
governmental or private regulatory authority and (3) all press releases and other statements made
available generally by the Borrower or any of its Subsidiaries to the public concerning material
developments in the business of the Borrower or any of its Subsidiaries and (ii) such other
information and data with respect to the Borrower or any of its Subsidiaries as from time to time
may be reasonably requested by the Administrative Agent or any Lender.


 


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(n) [Intentionally omitted].



(o) Medicare, Medicaid, Medical Reimbursement Program Status. Notice of the
institution of any investigation or proceeding: (i) to suspend, revoke or terminate (or that could
reasonably be expected to result in the suspension, revocation or termination of) (A) the contract
of any of the HMO Subsidiaries to be a Medicare Advantage Program contractor or state Medicaid
Program contractor or of any other Medical Reimbursement Program Agreement or (B) the status or
participation of any HMO Subsidiary under any Medical Reimbursement Program; or (ii) that could
reasonably be expected to result in an Exclusion Event.



(p) Notice of Exclusion Event. Promptly after receipt thereof, notice of intent to
exclude, any notice of proposal to exclude issued by the OIG or notice of any other Exclusion Event
(together with a copy of any such notice).



(q) Loss of Accreditation, Participation, License or Certificate of Authority.
Promptly after receipt thereof, notice of receipt of any loss or threatened loss of accreditation,
loss or threatened loss of participation under any Medical Reimbursement Program or loss or
threatened loss of applicable license or certificate of authority of any HMO Subsidiary and any
other material deficiency notices, compliance orders or adverse reports issued by any HMO Regulator
or other Governmental Authority or private insurance company that, if not promptly complied with or
cured, could result in a suspension or forfeiture of any license, certification, or accreditation
necessary for such HMO Subsidiary to carry on its business as then conducted or in a termination of
any insurance or reimbursement program in which any HMO Subsidiary participates (in each case
together with a copy of any such notice).



(r) Non-Compliance with HMO Regulations. Promptly after receipt thereof, notice of
receipt of any correspondence from an HMO Regulator asserting that the Borrower or any of its
Subsidiaries is not in compliance in all material respects with HMO Regulations or threatening
action against the Borrower or any of its Subsidiaries under the HMO Regulations (together with a
copy of such correspondence).



(s) HMO Events. Promptly after occurrence thereof, notice of the occurrence of any
HMO Event upon any Responsible Officer of the Borrower becoming aware thereof.



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



 


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Borrower with any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.



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



7.02 Existence; Licensing.




Except as otherwise permitted under Section 8.08, each Loan Party will and will cause
each of its Subsidiaries to, at all times:



(a) Preserve and keep in full force and effect its existence and all rights and franchises,
licenses and permits material to its business; provided, no Loan Party (other than the
Borrower with respect to existence) or any of its Subsidiaries shall be required to preserve any
such existence, right or franchise, license or permit 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 the Borrower and its Subsidiaries and that the loss thereof is not
disadvantageous in any material respect to the Borrower and its Subsidiaries or to the Lenders; and



(b) Preserve and maintain (i) the licensing and certification of each HMO Subsidiary pursuant
to the HMO Regulations; (ii) all certifications and authorizations necessary to ensure that the HMO
Subsidiaries are eligible for all reimbursements available under the HMO Regulations to the extent
applicable; and (iii) all licenses, permits, authorizations and qualifications required under the
HMO Regulations in connection with the ownership or operation of HMOs except, in each case, to the
extent that a failure to do so could not reasonably be expected to have a Material Adverse Effect.



7.03 Payment of Taxes and Claims.




Each Loan Party will and will cause each of its Subsidiaries to, pay all federal income taxes
and all other material 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



 


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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) adequate reserves or other appropriate provision, as shall be required in
conformity with GAAP, shall have been made therefor and (b) in the case of a Tax 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 Loan 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 the Borrower or any of its
Subsidiaries).



7.04 Maintenance of Properties.




Each Loan 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 the Borrower and its Subsidiaries and from
time to time will make or cause to be made all appropriate repairs, renewals and replacements
thereof, except to the extent that a failure to do so could not reasonably be expected to have a
Material Adverse Effect.



7.05 Insurance.




The Borrower will maintain or cause to be maintained, with financially sound and reputable
insurers, such public liability insurance, third party property damage insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the assets, properties and
businesses of the Borrower 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, the Borrower 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 FRB and (b) replacement value casualty insurance on the tangible
Collateral under such policies of insurance, with such insurance companies, in such amounts (giving
effect to self insurance that is consistent with self insurance of the Borrower and its
Subsidiaries as in effect on the Closing Date), 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 the
Administrative Agent, on behalf of the holders of the Obligations, as an additional insured
thereunder as its interests may appear, (ii) in the case of each casualty insurance policy, contain
a loss payable clause or endorsement, satisfactory in form and substance to the Administrative
Agent, that names the Administrative Agent, on behalf of the holders of the Obligations, as the
lender’s loss payee thereunder and provides for at least thirty days’ prior written notice to the
Administrative Agent of any modification or cancellation of such policy.



7.06 Books and Records; Inspections.




(a) Each Loan Party will and will cause each of its Subsidiaries to (i) keep proper books of
record and accounts in which full, true and correct entries in conformity with GAAP and in all
material respects with all Requirements of Law are made of all dealings and transactions in
relation to its business and activities and (ii) maintain such books of record and accounts in
material conformity with all applicable requirements of any Governmental Authority having
regulatory jurisdiction over the Borrower or such Subsidiary; and



(b) Each Loan 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 Loan
Party and



 


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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 (i) this Section 7.06(b) shall not apply to HMO Subsidiaries to the
extent prohibited by any Requirements of Law, (ii) a representative of the Borrower shall be given
the opportunity to be present for any communication with the Borrower’s independent accountants,
(iii) the Loan Parties shall not be required to pay the expenses of more than one such visit and
inspection during any fiscal year of the Borrower unless any Default or Event of Default has
occurred and is continuing and (iv) each Lender shall coordinate with the Administrative Agent the
frequency and timing of any such visits and inspections so as to reasonably minimize the burden and
expense imposed on the Loan Parties.



(c) During the course of the aforementioned visits, inspections and discussions,
representatives of the Administrative Agent and the Lenders may encounter individually identifiable
healthcare information or other confidential information relating to healthcare patients
(collectively, the “Confidential Healthcare Information”). Unless otherwise required by
law, the Administrative Agent and the Lenders, and their respective representatives, shall not
disclose, compile, aggregate, remove from the properties of the Borrower or any of its Subsidiaries
or record in any manner any Confidential Healthcare Information, and shall not require the Borrower
or any of its Subsidiaries to violate any laws, regulations or ordinances intended to protect the
privacy rights of healthcare patients, including HIPAA and the HITECH Act.



7.07 [Intentionally Omitted].




7.08 Compliance with Laws.




Except to the extent noncompliance could not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect, each Loan Party will and shall cause each of its
Subsidiaries and, to the extent feasible using commercially reasonable efforts, all other Persons,
if any, on or occupying any Facilities to (i) comply with the requirements of all applicable Laws,
(including the Social Security Act, Medicare Regulations, Medicaid Regulations, HIPAA, the HITECH
Act and all Environmental Laws); and (ii) ensure that billing policies, arrangements, protocols and
instructions will comply with reimbursement requirements under Medical Reimbursement Programs, to
the extent applicable to the Borrower and its Subsidiaries, and will be administered by properly
trained personnel.



7.09 Environmental.




(a) Environmental Disclosure. The Borrower will deliver to the Administrative Agent
and the Lenders:




(i) as soon as practicable following receipt thereof, copies of all environmental
audits, investigations, analyses and reports of any kind or character other than routine
sampling, monitoring or similar activities required by a Governmental Authority, whether
prepared by personnel of the Borrower 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 Environmental Claim that,
individually or in the aggregate, have a reasonable possibility of resulting in a Material
Adverse Effect;




(ii) promptly upon the occurrence thereof, written notice describing in reasonable
detail (1) any Release required to be reported by the Borrower or any Subsidiary to any
federal, state or local governmental or regulatory agency under any applicable Environmental
Laws, (2)


 


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any remedial action taken by the Borrower or any Subsidiary at or concerning a Facility
in response to (A) any Release of Hazardous Materials, 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 Claim that,
individually or in the aggregate, has a reasonable possibility of resulting in a Material
Adverse Effect and (3) the Borrower’s discovery of any occurrence or condition on any real
property adjoining or in the vicinity of any Facility that reasonably 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 that could reasonably
be expected to have a Material Adverse Effect;




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




(iv) prompt written notice describing in reasonable detail of (1) any proposed
acquisition of stock, assets or property by the Borrower or any of its Subsidiaries that
could reasonably be expected to (A) expose the Borrower 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 the Borrower 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 the Borrower or any of its Subsidiaries to modify current
operations in a manner that could reasonably be expected to subject the Borrower 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 the Administrative Agent in relation to any matters
disclosed pursuant to this Section 7.09(a).



(b) Hazardous Materials Activities, Etc. Each Loan Party shall promptly take, and
shall cause each of its Subsidiaries promptly to take, the actions necessary to (i) cure any
violation of applicable Environmental Laws by such Loan 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 Environmental Claim against such Loan Party or any of its
Subsidiaries and discharge any obligations it may have to any Person thereunder where failure to do
so could reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.



7.10 Subsidiaries.




(a) In the event that any Person becomes a wholly-owned Domestic Subsidiary (other than an HMO
Subsidiary) of the Borrower, the Borrower shall (i) promptly cause such Domestic Subsidiary to
become a Guarantor hereunder and a Grantor under the Security Agreement by executing and delivering
to the Administrative Agent and the Administrative Agent a Joinder Agreement and (ii) take all such
actions and execute and deliver, or cause to be executed and delivered, all such documents,
instruments, agreements and certificates as are similar to those described in Sections
5.01(b), 5.01(d) and 5.01(e).


 


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(b) In the event that any Person becomes an HMO Subsidiary and the Equity Interests of such
HMO Subsidiary are owned by the Borrower or by any Domestic Subsidiary thereof (other than an HMO
Subsidiary), the Borrower shall, or shall cause such Domestic Subsidiary to, deliver all such
documents, instruments, agreements and certificates as are similar to those described in
Section 5.01(d) and the Borrower shall take, or shall cause such Domestic Subsidiary to
take, all of the actions referred to in Section 5.01(e) necessary to grant and to perfect a
First Priority Lien in favor of the Administrative Agent, for the benefit of the holders of the
Obligations, under the Security Agreement in 100% of such Equity Interests.



(c) In the event that any Person becomes a Foreign Subsidiary of the Borrower and the Equity
Interests of such Foreign Subsidiary are owned by the Borrower or by any Domestic Subsidiary
thereof (other than an HMO Subsidiary), the Borrower shall, or shall cause such Domestic Subsidiary
to, deliver, all such documents, instruments, agreements and certificates as are similar to those
described in Section 5.01(d) and the Borrower shall take, or shall cause such Domestic
Subsidiary to take, all of the actions referred to in Section 5.01(e) necessary to grant
and to perfect a First Priority Lien in favor of the Administrative Agent, for the benefit of the
holders of the Obligations, under the Security Agreement in 65% (or such lesser percentage as will
not result in material adverse tax consequences to the Borrower and its Subsidiaries) of such
Equity Interests.



(d) With respect to each Subsidiary described in clauses (a) — (c) above, the Borrower shall
promptly send to the Administrative Agent written notice setting forth with respect to such Person
(i) the date on which such Person became a Subsidiary of the Borrower and (ii) all of the data
required to be set forth in Schedules 6.01, 6.02(a) and 6.02(b) with
respect to the Subsidiaries of the Borrower; and such written notice shall be deemed to supplement
Schedules 6.01, 6.02(a) and 6.02(b) for all purposes hereof.



Notwithstanding the foregoing, the Administrative Agent shall not take a security interest in those
assets as to which the Administrative Agent shall determine, in its discretion, that the cost of
obtaining such Lien is excessive in relation to the benefit to the Lenders of the security afforded
thereby.



7.11 Pledged Assets.




(a) Equity Interests. Each Loan Party shall cause (i) 100% of the issued and
outstanding Equity Interests of each Domestic Subsidiary directly owned by such Loan Party and (ii)
65% (or such lesser percentage as will not result in material adverse tax consequences to the
Borrower and its Subsidiaries) of the issued and outstanding Equity Interests in each Foreign
Subsidiary directly owned by any Loan Party to be subject at all times to a First Priority,
perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the
Collateral Documents, together with opinions of counsel and any filings and deliveries reasonably
necessary in connection therewith to perfect the security interests therein, all in form and
substance reasonably satisfactory to the Administrative Agent.



(b) Personal Property. Each Loan Party shall (i) cause all personal property (other
than Excluded Property) of each Loan Party to be subject at all times to First Priority, perfected
Liens in favor of the Administrative Agent to secure the Obligations pursuant to the terms and
conditions of the Collateral Documents, subject in any case to Permitted Liens and (ii) deliver
such other documentation as the Administrative Agent may reasonably request in connection with the
foregoing, including, without limitation, appropriate UCC-1 financing statements, landlord’s
waivers, certified resolutions and other organizational and authorizing documents of such Person,
satisfactory opinions of counsel to such Person (covering, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to above and the
perfection of the Administrative Agent’s Liens thereunder) and other items of the types required to
be delivered pursuant to Sections 5.01(e), all in form, content and scope reasonably
satisfactory to the Administrative Agent.




 


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(c) Material Real Estate Assets.




(i) In the event that any Loan Party acquires a Material Real Estate Asset or a Real
Estate Asset owned or leased on the Closing Date becomes a Material Real Estate Asset and
such interest has not otherwise been made subject to the Lien of the Collateral Documents in
favor of the Administrative Agent, for the benefit of the holders of the Obligations, then
such Loan Party shall promptly take all such actions and execute and deliver, or cause to be
executed and delivered, all such mortgages, documents, instruments, agreements, opinions and
certificates specified in clause (ii) below with respect to each such Material Real Estate
Asset that the Administrative Agent shall reasonably request to create in favor of the
Administrative Agent, for the benefit of the holders of the Obligations, a valid and,
subject to any filing and/or recording referred to herein, perfected First Priority security
interest in such Material Real Estate Asset. In addition to the foregoing, the Borrower
shall, at the request of the Administrative Agent, deliver, from time to time, to the
Administrative Agent such appraisals as are required by law or regulation of Real Estate
Assets with respect to which the Administrative Agent has been granted a Lien.




(ii) In order to create in favor of the Administrative Agent, for the benefit of the
holders of the Obligations, a valid and, subject to any filing and/or recording referred to
herein or permitted hereby, perfected First Priority security interest in certain Material
Real Estate Assets as provided in clause (a) above, the Administrative Agent shall have
received from the Borrower or the applicable Guarantor:




(A) a fully executed and notarized Mortgage, in proper form for recording in
all appropriate places in all applicable jurisdictions, encumbering each owned
Material Real Estate Asset;




(B) an opinion of counsel (which counsel shall be reasonably satisfactory to
the Administrative Agent) in the state in which such owned Material Real Estate
Asset is located with respect to the enforceability of the form(s) of Mortgage to be
recorded in such state and such other matters as the Administrative Agent may
reasonably request, in each case in form and substance reasonably satisfactory to
the Administrative Agent;




(C) in the case of each Leasehold Property that is a Material Real Estate
Asset, (1) a collateral assignment of the lease, in form and substance reasonably
satisfactory to the Administrative Agent, (2) a Landlord Consent and Estoppel and
(3) evidence that such Leasehold Property is a Recorded Leasehold Interest;




(D) (1) an ALTA mortgagee title insurance policy or unconditional commitment
therefor issued by one or more title companies reasonably satisfactory to the
Administrative Agent with respect to each Material Real Estate Asset (each, a
“Title Policy”), in an amount not less than the fair market value of each
Material Real Estate Asset, together with a title report issued by a title company
with respect thereto and copies of all recorded documents listed as exceptions to
title or otherwise referred to therein, each in form and substance reasonably
satisfactory to the Administrative Agent and (2) evidence satisfactory to the
Administrative Agent that such Loan 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 such Title Policy and
all recording and stamp taxes (including mortgage


 


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recording and intangible taxes) payable in connection with recording the
Mortgages for such Material Real Estate Asset in the appropriate real estate
records;




(E) a flood certification with respect to 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 FRB, in form and
substance reasonably satisfactory to the Administrative Agent;




(F) an ALTA survey of each Material Real Estate Asset that is not a Leasehold
Property, certified to the Administrative Agent and dated not more than thirty days
prior to the Closing Date; and




(G) reports and other information regarding environmental matters related to
such Material Real Estate Asset as may be reasonably requested by the Administrative
Agent.



Notwithstanding the foregoing, the Administrative Agent shall not take a security interest in
those assets as to which the Administrative Agent shall determine, in its discretion, that the cost
of obtaining such Lien is excessive in relation to the benefit to the Lenders of the security
afforded thereby.



7.12 Further Assurances.




At any time or from time to time upon the request of the Administrative Agent, each Loan Party
will, at its expense, promptly execute, acknowledge and deliver such further documents and do such
other acts and things as the Administrative Agent may reasonably request in order to effect fully
the purposes of the Loan Documents. In furtherance and not in limitation of the foregoing, each
Loan Party shall take such actions as the Administrative Agent may reasonably request from time to
time to ensure that the Obligations are guarantied by the Guarantors and are secured by the assets
of the Borrower and the Guarantors and all of the outstanding Equity Interests of the Borrower’s
Subsidiaries (subject to limitations contained in the Loan Documents with respect to Foreign
Subsidiaries) as contemplated hereby and by the other Loan Documents.



7.13 Use of Proceeds.



Use the proceeds of the Credit Extensions solely (a) to finance working capital, Consolidated
Capital Expenditures, Permitted Acquisitions, share repurchases and bond hedges and for other
lawful corporate purposes and (b) to refinance existing Indebtedness; provided that in no
event shall the proceeds of the Credit Extensions be used in contravention of any Law or of any
Loan Document.



7.14 Post Closing.



Within three (3) Business Days following the Closing Date, deliver to the Administrative Agent
all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent
pursuant to the Security Agreement.


 


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ARTICLE VIII




NEGATIVE COVENANTS




Each Loan Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations and cancellation or expiration of all Letters of Credit, such
Loan Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Article VIII.



8.01 Indebtedness.




No Loan 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 to the Borrower or to any other Guarantor, or of the
Borrower to any Guarantor; provided, (i) all such Indebtedness shall be evidenced by the
Intercompany Note, which shall be subject to a First Priority Lien pursuant to the Security
Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to
the payment in full of the Obligations pursuant to the terms of the Intercompany Note and (iii) any
payment by any such Guarantor under any guaranty of the Obligations shall result in a corresponding
reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of
its Subsidiaries for whose benefit such payment is made;



(c) Subordinated Indebtedness of the Borrower (and guarantee obligations of any Guarantor in
respect of such Subordinated Indebtedness so long as such guarantee obligations are subordinated to
the same extent as the obligations of the Borrower in respect of such Subordinated Indebtedness);
provided that both immediately prior and after giving effect to the incurrence thereof, (i)
no Default or Event of Default shall exist or result therefrom and (ii) the Borrower and its
Subsidiaries are in compliance on a Pro Forma Basis with the financial covenants set forth in
Section 8.07.



(d) Indebtedness incurred by the Borrower or any of its Subsidiaries arising from agreements
providing for indemnification, adjustment of purchase price or similar obligations (including
Indebtedness consisting of the deferred purchase price of property acquired in a Permitted
Acquisition), or from guaranties or letters of credit, surety bonds or performance bonds securing
the performance of the Borrower or any such Subsidiary pursuant to such agreements, in connection
with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary of the
Borrower or any of its Subsidiaries;



(e) Indebtedness that may be deemed to exist pursuant to any guaranties, performance, surety,
statutory, appeal or similar obligations incurred in the ordinary course of business;



(f) Indebtedness in respect of netting services, overdraft protections and otherwise in
connection with deposit accounts; provided, such Indebtedness shall be extinguished within ten days
after the incurrence thereof;



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



(h) guaranties by the Borrower of Indebtedness of a Guarantor or guaranties by a Guarantor of
Indebtedness of the Borrower or another Guarantor with respect, in each case, to Indebtedness



 


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otherwise permitted to be incurred pursuant to this Section 8.01; provided,
that if the Indebtedness that is being guarantied is unsecured and/or subordinated to the
Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;



(i) Indebtedness described in Schedule 8.01, 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
taken as a whole are not materially 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 (1)
include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being
extended, renewed or refinanced, (2) exceed in a principal amount the Indebtedness being renewed,
extended or refinanced or (3) be incurred, created or assumed if any Default or Event of Default
has occurred and is continuing or would result therefrom;



(j) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an
aggregate amount not to exceed at any time $25,000,000, and any extensions, renewals or
refinancings thereof; provided, any such Indebtedness shall be secured only by the asset(s)
acquired in connection with the incurrence of such Indebtedness;



(k) (i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in
either case, becomes a Subsidiary or Indebtedness attaching to assets that are acquired by the
Borrower or any of its Subsidiaries, in each case after the Closing Date as the result of a
Permitted Acquisition, in an aggregate amount not to exceed $50,000,000 at any one time
outstanding, provided that (1) such Indebtedness existed at the time such Person became a
Subsidiary or at the time such assets were acquired and, in each case, was not created in
anticipation thereof and (2) such Indebtedness is not guaranteed in any respect by the Borrower or
any Subsidiary (other than by any such Person that so becomes a Subsidiary) and (ii) any
refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above,
provided, that (x) the principal amount of any such Indebtedness is not increased above the
principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or
extension, (y) the direct and contingent obligors with respect to such Indebtedness are not changed
and (z) such Indebtedness shall not be secured by any assets other than the assets securing the
Indebtedness being renewed, extended or refinanced;



(l) Indebtedness of any HMO Subsidiary to (i) any other wholly-owned HMO Subsidiary or (ii)
the Borrower or any Guarantor to extent permitted as an Investment pursuant to clauses (i), (l) and
(q) of Section 8.06;



(m) Indebtedness incurred in the ordinary course of business and owed to any Person providing
property, casualty or liability insurance to the Borrower or its Subsidiaries, so long as such
Indebtedness shall not be in excess of the amount of the unpaid cost of and shall be incurred only
to defer the cost of such insurance for a period of twelve months after the date on which such
Indebtedness is incurred and such Indebtedness shall only be outstanding during such twelve-month
period;



(n) subordinated Indebtedness (subordinated on terms reasonably satisfactory to the
Administrative Agent) of the Borrower or any Guarantor consisting of promissory notes issued to
current or former directors, consultants, managers, officers and employees or their spouses or
estates to purchase or redeem an Equity Interest of the Borrower issued to such person not to
exceed $5,000,000 in aggregate principal amount per fiscal year and $10,000,000 in aggregate
principal amount prior to the Maturity Date for the Term Loan; provided that such amount shall be
reduced dollar-for-dollar by payments made



 


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pursuant to Section 8.04(a) (other than payments made with proceeds from issuances of
Qualified Equity Interests attributed thereto);



(o) Indebtedness of the Borrower or any Guarantor under Swap Contracts entered into with a
Lender or an Affiliate of a Lender; provided that if such Swap Contracts relate to interest
rates, (i) such Swap Contracts relate to payment obligations on Indebtedness otherwise permitted to
be incurred by the Loan Documents and (ii) the notional principal amount of such Swap Contracts at
the time incurred does not exceed the principal amount of the Indebtedness to which such Swap
Contracts relate; and



(p) Convertible Indebtedness of the Borrower incurred prior to March 31, 2010, in an aggregate
principal amount not to exceed $200,000,000.



(q) other unsecured Indebtedness of the Borrower and its Subsidiaries so long as (i) no
Default exists, (ii) after giving effect to such issuance, the Borrower and its Subsidiaries are in
compliance on a Pro Forma Basis with the financial covenants set forth in Section 8.07,
(iii) the pro forma Consolidated Total Leverage Ratio is 0.25 less than the then required
Consolidated Total Leverage Ratio set forth in Section 8.07(b) and (iv) the Borrower’s
Liquidity is greater than or equal to $50,000,000.



8.02 Liens.




No Loan 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 of its properties or
assets of any kind, whether now owned or hereafter acquired, except:



(a) Liens in favor of the Administrative Agent for the benefit of the holders of the
Obligations granted pursuant to any Loan Document;



(b) Liens for Taxes, assessments and governmental charges not yet due and payable or
delinquent and Liens for Taxes, assessments and governmental charges if the corresponding liability
is being contested in good faith by appropriate proceedings promptly instituted and diligently
conducted;



(c) statutory Liens of landlords, banks (and rights of set-off), carriers, warehousemen,
mechanics, repairmen, workmen and materialmen and other Liens imposed by law (other than any such
Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA), 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 the Borrower and its Subsidiaries;


 


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



(g) Liens solely on any cash earnest money deposits made by the Borrower or any of its
Subsidiaries in connection with any letter of intent or purchase agreement 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 regulation or right reserved to or vested in any governmental
office or agency to control or regulate the use of any real property;



(k) non-exclusive outbound licenses of patents, copyrights, trademarks and other intellectual
property rights granted by the Borrower or any of its Subsidiaries in the ordinary course of
business and not interfering in any respect with the ordinary conduct of or materially detracting
from the value of the business of the Borrower and its Subsidiaries;



(l) Liens described in Schedule 8.02 and any Lien granted as a replacement or
substitute therefor; provided that any such replacement or substitute Lien (i) does not secure an
aggregate amount of Indebtedness, if any, greater than that secured on the Closing Date and (ii)
does not encumber any property other than the property subject thereto on the Closing Date;



(m) Liens securing Indebtedness permitted pursuant to Section 8.01(j), and any
permitted extensions, renewals or refinancings thereof; provided, any such Lien shall
encumber only the assets acquired with the proceeds of such Indebtedness;



(n) Liens securing Indebtedness permitted pursuant to Section 8.01(k), and any
permitted extensions, renewals or refinancings thereof; provided, any such Lien shall
encumber only the assets encumbered at the time of the Permitted Acquisition;



(o) Liens securing Indebtedness permitted pursuant to Section 8.01(m);
provided any such Lien shall encumber only the rights and interests under the insurance
policy that secures such Indebtedness;



(p) Liens of sellers of goods to the Borrower or any of its Subsidiaries arising under
Article 2 of the UCC in effect in the relevant jurisdiction in the ordinary course of business,
covering only the goods sold and covering only the unpaid purchase price not yet due and payable
for such goods and related expenses;



(q) Liens arising out of judgments, attachments or awards not resulting in an Event of Default
and in respect of which the Borrower or its Subsidiaries shall in good faith be prosecuting an
appeal or proceedings for review and in respect of which there shall have been obtained a
subsisting stay of execution pending such appeal or proceedings and, in the case of any such Lien
that has or may become a Lien against any of the Collateral, such Lien and the contest thereof
shall satisfy the Contested Collateral Lien Conditions;



(r) Leases or licenses of the assets or properties of the Borrower or any of its Subsidiaries,
in each case entered into in the ordinary course of the Borrower’s or such Subsidiary’s business
and not



 


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interfering in any material respect with the ordinary conduct of or materially detracting from
the value of the business of the Borrower and its Subsidiaries;



(s) Liens on property of a Person existing at the time such Person is acquired or merged with
or into or consolidated with the Borrower or any of its Subsidiaries to the extent permitted
hereunder (and not created in anticipation or contemplation thereof); provided that such Liens do
not extend to property not subject to such Liens at the time of acquisition (other than
improvements thereon);



(t) Liens deemed to exist in connection with Investments permitted under Section 8.06
that are the subject of repurchase obligations incurred in the ordinary course of business;



(u) Liens of a collecting bank arising in the ordinary course of business under Section 4-210
of the UCC in effect in the relevant jurisdiction covering only the items being collected upon; and



(v) other Liens on assets other than the Collateral securing Indebtedness in an aggregate
amount not to exceed $25,000,000 at any time outstanding.



8.03 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
disposition, (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) and (c) restrictions identified on Schedule 8.03, no Loan
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, to secure the Obligations.



8.04 Restricted Payments.




No Loan Party shall, nor shall it permit any of its Subsidiaries or Affiliates through any
manner or means or through any other Person to, directly or indirectly, declare, order, pay, make
or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted
Payment except that:



(a) the Borrower may make payments to repurchase or redeem Qualified Equity Interests of the
Borrower held by officers, directors or employees or former officers, directors or employees (or
their transferees, estates or beneficiaries under their estates) of any Loan Party, upon their
death, disability, retirement, severance or termination of employment or service; provided
that the aggregate cash consideration paid for all such redemptions and payments (i) shall not
exceed, in any fiscal year, $10,000,000 plus any cash proceeds from sales or issuances of Qualified
Equity Interests of the Borrower at substantially the same time as such repurchase or redemption
and (ii) shall not exceed in the aggregate during the term of this Agreement, $15,000,000 plus any
cash proceeds from sales or issuances of Qualified Equity Interests at substantially the same time
as such repurchase or redemption, plus, in each case the proceeds of any “key-man” life insurance
policies; provided, further, that such amount shall be reduced dollar-for-dollar by
payments made in respect of Indebtedness incurred pursuant to Section 8.01(n);



(b) on or before March 31, 2010, the Borrower may make payments in an aggregate amount not to
exceed $30,000,000 to purchase or redeem Qualified Equity Interests of the Borrower in connection
with the issuance of Convertible Indebtedness;


 


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(c) the Borrower and its Subsidiaries may make such payments as are necessary in connection
with Related Convertible Debt Derivative Transactions;



(d) if the Consolidated Total Leverage Ratio, as of the end of any fiscal year, is less than
0.50 to 1.0, then the Borrower and its Subsidiaries shall be permitted to make Restricted Payments
without limitation during the next succeeding fiscal year; provided that after giving
effect to any such Restricted Payment (including any Indebtedness incurred in connection
therewith), the Consolidated Total Leverage Ratio (calculated on a Pro Forma Basis after giving
effect to such Restricted Payment) shall be less than 0.50 to 1.0;



(e) if the Consolidated Total Leverage Ratio, as of the end of any fiscal year, is greater
than or equal to 0.50 to 1.0 but less than 1.0 to 1.0, then the Borrower and its Subsidiaries shall
be permitted to make Restricted Payments during the next succeeding fiscal year in an amount not to
exceed, in the aggregate, during such fiscal year: the sum of (A) $150,000,000 plus (B) the portion
of Consolidated Excess Cash Flow not required to prepay the Loans pursuant to Section
2.05(b)(iii) from the preceding fiscal year plus (C) beginning with any fiscal year commencing
on or after January 1, 2012, the portion of Consolidated Excess Cash Flow not required to be prepay
the Loans pursuant to Section 2.05(b)(iii) for the second preceding fiscal year (i.e. for
fiscal year 2012, the fiscal year ending December 31, 2010) and not used to make Restricted
Payments during the preceding fiscal year; provided that after giving effect to any such
Restricted Payment (including any Indebtedness incurred in connection therewith), the Consolidated
Total Leverage Ratio (calculated on a Pro Forma Basis after giving effect to such Restricted
Payment) shall be less than 1.0 to 1.0; and



(f) if the Consolidated Total Leverage Ratio, as of the end of any fiscal year, is greater
than or equal to 1.0 to 1.0, then the Borrower and its Subsidiaries shall be permitted to make
Restricted Payments during the next succeeding fiscal year in an amount not to exceed, in the
aggregate, during such fiscal year: the sum of (A) $100,000,000 plus (B) the portion of
Consolidated Excess Cash Flow not required to prepay the Loans pursuant to Section
2.05(b)(iii) from the preceding fiscal year plus (C) beginning with any fiscal year commencing
on or after January 1, 2012, the portion of Consolidated Excess Cash Flow not required to be prepay
the Loans pursuant to Section 2.05(b)(iii) for the second preceding fiscal year (i.e. for
fiscal year 2012, the fiscal year ending December 31, 2010) and not used to make Restricted
Payments during the preceding fiscal year; provided that after giving effect to any such
Restricted Payment (including any Indebtedness incurred in connection therewith), the Consolidated
Total Leverage Ratio (calculated on a Pro Forma Basis after giving effect to such Restricted
Payment) shall not exceed the Consolidated Total Leverage Ratio required by Section
8.07(b).




8.05 Restrictions on Subsidiary Distributions.



Except as provided herein and in the other Loan Documents, no Loan 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 the
Borrower to (a) pay dividends or make any other distributions on any of such Subsidiary’s Equity
Interests owned by the Borrower or any other Subsidiary of the Borrower, (b) repay or prepay any
Indebtedness owed by such Subsidiary to the Borrower or any other Subsidiary of the Borrower, (c)
make loans or advances to the Borrower or any other Subsidiary of the Borrower, or (d) transfer,
lease or license any of its property or assets to the Borrower or any other Subsidiary of the
Borrower other than (i) restrictions in agreements evidencing Indebtedness permitted by
Section 8.01(k) that impose restrictions on the property so acquired, (ii) restrictions 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, (iii) restrictions that are or were created by virtue of any transfer of,



 


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agreement to transfer or option or right with respect to any property, assets or Equity
Interests not otherwise prohibited under this Agreement, (iv) restrictions described on
Schedule 8.05, (v) restrictions pursuant to applicable Requirements of Law; (vi)
restrictions on deposits imposed by suppliers or landlords under contracts entered into in the
ordinary course of business; (vii) any instrument or agreement assumed in connection with any
Permitted Acquisition, which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person or the properties or assets of the Person
so acquired, so long as such agreement or instrument was not entered into in connection with or in
contemplation of such Permitted Acquisition or (viii) any encumbrances or restrictions imposed by
any amendments or refinancings that are otherwise permitted by the Loan Documents of the contracts,
instruments or obligations referred to in clause (vii) above; provided that such amendments or
refinancings are not materially more restrictive with respect to such encumbrances and restrictions
than those prior to such amendment or refinancing.



8.06 Investments.




No Loan Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly,
make or own any Investment in any Person, including any joint venture, except:




(a) Investments in cash and Cash Equivalents;



(b) equity Investments owned as of the Closing Date in any Subsidiary and Investments made
after the Closing Date in the Borrower and any Guarantor;



(c) Investments (i) in any Securities received in satisfaction or partial satisfaction thereof
from financially troubled account debtors, (ii) deposits, prepayments and other credits to
suppliers and others made in the ordinary course of business consistent with the past practices of
the Borrower and its Subsidiaries and (iii) represented by the endorsement of negotiable
instruments held for collection in the ordinary course of business;




(d) intercompany loans and advances to the extent permitted under Section 8.01(b);



(e) Consolidated Capital Expenditures with respect to the Borrower and the Guarantors
permitted by Section 8.07(c);



(f) loans and advances to directors, officers and employees of the Borrower and its
Subsidiaries made in the ordinary course of business in an aggregate principal amount not to exceed
$5,000,000 at any time outstanding;



(g) Permitted Acquisitions;



(h) Investments described in Schedule 8.06;



(i) [Reserved];



(j) (i) Required Advances, (ii) RS Advances and (iii) other advances to Contract Providers in
an aggregate amount outstanding pursuant to this clause (iii) not to exceed $2,500,000 at any one
time outstanding;



(k) to the extent constituting an Investment, any Related Convertible Debt Derivative
Transaction entered into by the Borrower;


 


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(l) intercompany Investments by the Borrower or any Guarantor in any Person, that, prior to
such Investment, is an HMO Subsidiary (including, without limitation, guarantees with respect to
obligations of any such HMO Subsidiary, loans made to any such HMO Subsidiary and Investments
resulting from mergers with or sales of assets to any such HMO Subsidiary) in an aggregate amount
not to exceed (i) the amount outstanding on the Closing Date, plus (ii) $10,000,000, plus (iii) the
amount dividended, distributed or otherwise paid to any Loan Party by an HMO Subsidiary that is
reinvested in a different HMO Subsidiary within 180 days of such dividend, distribution or other
payment, plus (iv) other amounts as required by applicable Requirements of Law (including minimum
capital requirements) or as necessary to comply with the provisions of this Agreement; provided
that Investments pursuant to clauses (ii), (iii) and (iv) above may not be made if at such time a
Default or an Event of Default has occurred and is continuing under Section 9.01(a),
(f) or (g);



(m) Swap Contracts entered into by the Borrower or its Subsidiaries and permitted pursuant to
Section 8.01(o);



(n) Investments made by the Borrower or any Guarantor as a result of consideration received in
connection with a Disposition made in compliance with Section 8.08;




(o) guarantees and other contingent obligations permitted under Section 8.01;



(p) accounts receivable owing to any of them if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary terms; and



(q) other Investments in Subsidiaries of the Borrower other than Guarantors in an aggregate
amount not to exceed $10,000,000 at any time outstanding.



8.07 Financial Covenants.




(a) Statutory Net Worth Ratio. As of the end of each fiscal quarter:




(i) Each HMO Subsidiary operating in a state that requires risk-based capital reporting
(each such HMO Subsidiary, a “RBC HMO”) shall not permit its Statutory Net Worth to
be less than 10% above the upper limit of the Regulatory Action Level in such state; and




(ii) Each HMO Subsidiary operating in a state that does not require risk-based capital
reporting shall not permit its ratio of (A) Statutory Net Worth to (B) such state’s
Statutory Net Worth requirement to be less than 1.10 to 1.00; provided that in no
event will the amount required pursuant to this clause (ii) be greater than the amount which
would be required if clause (i) above were applicable to such HMO Subsidiary.




In each case above, so long as an HMO Subsidiary maintains at least the applicable minimum
Statutory Net Worth threshold of the state in which it operates, (1) unrestricted cash and
Cash Equivalents of the Borrower and (2) any unused availability under the Revolving
Commitments may be included in the computation of its Statutory Net Worth if necessary to
comply with the applicable Statutory Net Worth requirement. Compliance with the applicable
Statutory Net Worth requirement will be determined at the end of each fiscal quarter (using
as the denominator in each case, for the first three fiscal quarters of each year, the
prescribed level as of the end of the preceding fiscal year and for the last fiscal quarter
of each fiscal year, the prescribed level as of the end of such fiscal year).


 


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(b) Consolidated Total Leverage Ratio. The Borrower shall not permit the Consolidated
Total Leverage Ratio as of the last day of any fiscal quarter, beginning with the fiscal quarter
ending March 31, 2010, to exceed (i) from March 31, 2010 through March 31, 2012, 2.0 to 1.0 and
(ii) from June 30, 2012 and thereafter, 1.75 to 1.0.



(c) Maximum Consolidated Capital Expenditures. During any fiscal year, the Borrower
shall not and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures
in an amount that would exceed in the aggregate, the sum of (i) 1.5% of the consolidated gross
revenues of the Borrower and its Subsidiaries generated during the preceding fiscal year
plus (ii) beginning with the fiscal year ending December 31, 2011, the amount of
Consolidated Capital Expenditures permitted but not expended under clause (i) above for the prior
fiscal year (but not to exceed, for the purposes of this clause (ii), $10,000,000).



8.08 Fundamental Changes; Disposition of Assets; Acquisitions.




No Loan 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 license, exchange, 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, leased or licensed, or acquire by purchase or
otherwise (other than purchases or other acquisitions of inventory, materials, equipment and other
fixed or capital assets 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 the Borrower may be merged with or into the Borrower or any Guarantor,
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 the Borrower or any Guarantor; provided, in the case of such a merger, the
Borrower or such Guarantor (and in any event, if the Borrower is party to such transaction, the
Borrower), as applicable, shall be the continuing or surviving Person;




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



(c) Dispositions, the proceeds of which (valued at the principal amount thereof in the case of
non-cash proceeds consisting of notes or other debt Securities and valued at fair market value in
the case of other non-cash proceeds) (i) are less than $1,000,000 with respect to any single
Disposition or series of related Dispositions and (ii) when aggregated with the proceeds of all
other Dispositions made pursuant to this clause (c) within the same fiscal year, are less than
$5,000,000; 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 the
Borrower (or similar governing body)), (2) no less than 75% thereof shall be paid in cash and (3)
the Net Cash Proceeds thereof shall be applied as required by Section 2.05(b);




(d) Permitted Transfers;




(e) Investments made in accordance with Section 8.06;



(f) leases or subleases of real or personal property in the ordinary course of business and
not interfering in any material respect with the ordinary conduct of or materially detracting from
the value of the business of the Borrower and its Subsidiaries; and


 


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(g) sales of non-core assets acquired in a Permitted Acquisition; provided that such sales
shall be consummated within 270 days of the Permitted Acquisition provided further (i) 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 the Borrower (or similar
governing body)), (ii) no less than 75% thereof shall be paid in cash and (iii) the Net Cash
Proceeds thereof shall be applied as and to the extent required by Section 2.05(b).



8.09 Disposal of Subsidiary Interests.




Except for any sale of all of its interests in the Equity Interests of any of its Subsidiaries
in compliance with the provisions of Section 8.08, no Loan Party shall, nor shall it permit
any of its Subsidiaries to, (a) directly or indirectly sell, assign, pledge or otherwise encumber
or dispose of any Equity Interests 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 Equity Interests of any of its Subsidiaries,
except, in the case of clauses (a) and (b), to another Loan Party (subject to the restrictions on
such disposition otherwise imposed hereunder), or to qualify directors if required by applicable
law.



8.10 Sales and Lease Backs.




No Loan Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly,
enter into any Sale and Leaseback Transaction.



8.11 Transactions with Affiliates.




No Loan 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 Affiliate of the Borrower on terms that are
less favorable to the Borrower 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 solely among the Borrower and/or one or more
Guarantors; (b) reasonable and customary fees paid to members of the board of directors (or similar
governing body) of the Borrower and its Subsidiaries; (c) compensation arrangements for officers
and other employees of the Borrower and its Subsidiaries entered into in the ordinary course of
business; (d) transactions described in Schedule 8.11; (e) Restricted Payments permitted by
Section 8.04; (f) Indebtedness permitted by clauses (b), (d), (h) and (l) of
Section 8.01 and Investments permitted by clauses (d), (f), (g), (l) and (q) of
Section 8.06; (g) sales of Qualified Equity Interests of the Borrower to Affiliates of the
Borrower not otherwise prohibited by the Loan Documents and the granting of registration and other
customary rights in connection therewith; and (h) any transaction with an Affiliate where the only
consideration paid is Qualified Equity Interests of the Borrower.



8.12 Conduct of Business.




From and after the Closing Date, no Loan Party shall, nor shall it permit any of its
Subsidiaries to, engage in any business other than (a) the businesses engaged in by such Loan Party
on the Closing Date, any reasonable extension or expansion thereof, and similar or related
businesses and other businesses that, in the good faith judgment of the Board of Directors of the
Borrower, support or enhance the aforesaid businesses and (b) such other lines of business as may
be consented to by Required Lenders.



8.13 Amendments or Waivers of Organizational Documents.


 


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No Loan Party shall nor shall it permit any of its Subsidiaries to, agree to any material
amendment, restatement, supplement or other modification to, or waiver of, any of its
Organizational Documents after the Closing Date in a manner that is adverse to the Lenders without
in each case obtaining the prior written consent of Required Lenders to such amendment,
restatement, supplement or other modification or waiver.



8.14 Amendments or Waivers with respect to Subordinated Indebtedness.




No Loan Party shall, nor shall it permit any of its Subsidiaries to, amend or otherwise change
the terms of any Subordinated Indebtedness, or make any payment consistent with an amendment
thereof or change thereto, if the effect of such amendment or change is to increase the interest
rate on such Subordinated Indebtedness, change (to earlier dates) any dates upon which payments of
principal or interest are due thereon, change any event of default or condition to an event of
default with respect thereto (other than to eliminate any such event of default or increase any
grace period related thereto), change the redemption, payment, prepayment or defeasance provisions
thereof, or change the subordination provisions of any Subordinated Indebtedness (or of any
guaranty thereof), if the effect of such amendment or change, together with all other amendments or
changes made, is to increase materially the obligations of the obligor thereunder or to confer any
additional rights on the holders of such Subordinated Indebtedness (or a trustee or other
representative on their behalf) which would be adverse to any Loan Party or the Lenders.



8.15 Fiscal Year.




No Loan Party shall, nor shall it permit any of its Subsidiaries to change its fiscal year end
from December 31.



8.16 Anti-Terrorism Law; Anti-Money Laundering.




No Loan Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly,
(a) knowingly conduct any business or engage in making or receiving any contribution of funds,
goods or services to or for the benefit of any person described in Section 6.26, (b)
knowingly deal in, or otherwise engage in any transaction relating to, any property or interests in
property blocked pursuant to the Executive Order or any other Anti-Terrorism Law, or (c) knowingly
engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of
evading or avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law (and the Loan Parties shall deliver to the Lenders any certification or other
evidence requested from time to time by any Lender in its reasonable discretion, confirming the
Loan Parties’ compliance with this Section 8.16).



8.17 Embargoed Person.




No Loan Party shall, nor shall it permit any of its Subsidiaries to, knowingly cause or permit
(a) any of the funds or properties of the Loan Parties that are used to repay the Loans to
constitute property of, or be beneficially owned directly or indirectly by, any person subject to
sanctions or trade restrictions under United States law (“Embargoed Person” or “Embargoed Persons”)
that is identified on (i) the “List of Specially Designated Nationals and Blocked Persons”
maintained by OFAC and/or on any other similar list maintained by OFAC pursuant to any authorizing
statute including, but not limited to, the International Emergency Economic Powers Act, 50 U.S.C.
§§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Order
or Requirement of Law promulgated thereunder, with the result that the investment in the Loan
Parties (whether directly or indirectly) is prohibited by a Requirement of Law, or the Loans made
by the Lenders would be in violation of a Requirement of Law,



 


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or (ii) the Executive Order, any related enabling legislation or any other similar Executive
Orders or (b) any Embargoed Person to have any direct or indirect interest, of any nature
whatsoever in the Loan Parties, with the result that the investment in the Loan Parties (whether
directly or indirectly) is prohibited by a Requirement of Law or the Loans are in violation of a
Requirement of Law.



ARTICLE IX




EVENTS OF DEFAULT AND REMEDIES




9.01 Events of Default.




Any of the following shall constitute an Event of Default:



(a) Failure to Make Payments When Due. Failure by the Borrower 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 any
L/C Issuer 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 days after the date due; or



(b) Default in Other Agreements. (i) Failure of any Loan 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 9.01(a)) in an individual principal amount of $10,000,000 or more or with an
aggregate principal amount of $20,000,000 or more, in each case beyond the grace period, if any,
provided therefor; or (ii) breach or default by any Loan 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 Loan Party to perform or comply with
any term or condition contained in Section 7.01, Section 7.02, Section 7.13
or Article VIII; or



(d) Breach of Representations, etc. Any representation, warranty, certification or
other statement made or deemed made by any Loan Party in any Loan Document or in any statement or
certificate at any time given by any Loan 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 Loan Documents. Any Loan Party shall default in the
performance of or compliance with any term contained herein or any of the other Loan Documents,
other than any such term referred to in any other clause of this Section 9.01, and such
default shall not have been remedied or waived within thirty days after the earlier of (i) a
Responsible Officer of such Loan Party becoming aware of such default or (ii) receipt by the
Borrower of notice from the 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 the Borrower or any of its
Subsidiaries in an involuntary case under any Debtor Relief Law now or hereafter in effect, which
decree or order is not



 


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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 the Borrower or any of its Subsidiaries
under any Debtor Relief 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 the Borrower or any of its 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 the
Borrower or any of its 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 the Borrower or any of its Subsidiaries and any such event described in this
clause (ii) shall continue for sixty days without having been dismissed, bonded or discharged; or



(g) Voluntary Bankruptcy; Appointment of Receiver, etc. (i) the Borrower or any of
its Subsidiaries shall have an order for relief entered with respect to it or shall commence a
voluntary case under any Debtor Relief 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 the
Borrower or any of its Subsidiaries shall make any assignment for the benefit of creditors; or (ii)
the Borrower or any of its 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 the Borrower or any of its Subsidiaries (or any committee thereof) shall
adopt any resolution or otherwise authorize any action to approve any of the actions referred to in
this Section 9.01(g) or in Section 9.01(f); or



(h) Judgments and Attachments. Any money judgment, writ or warrant of attachment or
similar process involving (i) in any individual case an amount in excess of $10,000,000 or (ii) in
the aggregate at any time an amount in excess of $20,000,000 (in either case 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 the Borrower or any of its Subsidiaries or
any of their respective assets and shall remain undischarged, unvacated, unbonded or unstayed for a
period of sixty 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 Loan
Party decreeing the dissolution or split up of such Loan Party, and such order shall remain
undischarged or unstayed for a period in excess of thirty days; or



(j) Employee Benefit Plans. (i) There shall occur one or more ERISA Events which
individually or in the aggregate results in or might reasonably be expected to result in liability
of the Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates in excess of
$5,000,000 during the term hereof; or (ii) there exists any fact or circumstance that reasonably
could be expected to result in the imposition of a Lien or security interest under Section 412(n)
of the Internal Revenue Code or under ERISA; or




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



(l) Guaranties, Collateral Documents and other Loan Documents. At any time after the
execution and delivery thereof, (i) 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 the Administrative



 


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Agent shall not have or shall cease to have a valid and perfected Lien in any material
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 the
Administrative Agent or any other holder of the Obligations to take any action within its control,
or (iii) any Loan Party shall contest the validity or enforceability of any Loan Document in
writing or deny in writing that it has any further liability, including with respect to future
advances by the Lenders, under any Loan Document to which it is a party or shall contest the
validity or perfection of any Lien in any Collateral purported to be covered by the Collateral
Documents; or



(m) Subordination. Any Subordinated Indebtedness or the guarantees thereof shall
cease, for any reason, to be validly subordinated to the Borrower’s Obligations hereunder or the
obligations of the Guarantors hereunder in respect thereof, as the case may be, as provided in any
Subordinated Indebtedness Indenture, or any Loan Party, any Affiliate of any Loan Party, the
trustee in respect of any Subordinated Indebtedness, as the case may be, or the holders of at least
25% in aggregate principal amount of the Subordinated Indebtedness, as the case may be, shall so
assert; or



(n) HMO Event. (i) There occurs an HMO Event with respect to the Borrower or any of
its Subsidiaries that could reasonably be expected to have a Material Adverse Effect and such HMO
Event shall remain unremedied for ninety days after the occurrence thereof (or such lesser period
of time, if any, as the HMO Regulator administering the HMO Regulations shall have imposed for the
cure of such HMO Event), (ii) the HMO Subsidiaries, taken as a whole, shall suffer a net loss of
20% or more of their Medicare Advantage Program plan (or any successor plan thereto) members in the
aggregate (other than as the result of any Disposition permitted hereunder), as measured from the
beginning of the previous month or from the close of the immediately preceding fiscal year that
could reasonably be expected to have a Material Adverse Effect; or



(o) Exclusion Event. There shall occur an Exclusion Event that could reasonably be
expected to have a Material Adverse Effect; or



(p) Criminal Indictment. The Borrower becomes subject to a criminal indictment (i)
that could reasonably be expected to have a Material Adverse Effect or (ii) that results in a
conviction or other criminal outcome adverse to the Borrower that could reasonably be expected to
have a Material Adverse Effect.



9.02 Remedies Upon Event of Default.



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



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



(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower;



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


 


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(d) exercise on behalf of itself, the Lenders and the L/C Issuers all rights and remedies
available to it, the Lenders and the L/C Issuers under the Loan Documents or applicable Law;



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



9.03 Application of Funds.



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




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




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




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




Fourth, to (a) payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, (b) payment of breakage, termination or other
payments, and any interest accrued thereon, due under any Swap Contract between any Loan
Party or any Subsidiary and any Lender, or any Affiliate of a Lender,(c) payments of amounts
due under any Treasury Management Agreement between any Loan Party or any Subsidiary and any
Lender, or any Affiliate of a Lender and (d) Cash Collateralize that portion of L/C
Obligations comprised of the aggregate undrawn amount of Letters of Credit, ratably among
the Lenders (and, in the case of such Swap Contracts and Treasury Management Agreements,
Affiliates of Lenders) and the L/C Issuers in proportion to the respective amounts described
in this clause Fourth held by them; and




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



Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn
amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy
drawings under such Letters



 


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of Credit as they occur. If any amount remains on deposit as Cash Collateral after all
Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.



ARTICLE X




ADMINISTRATIVE AGENT




10.01 Appointment and Authority.



Each of the Lenders and the L/C Issuers hereby irrevocably appoints Bank of America to act on
its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent, the Lenders and the L/C Issuers, and no Loan Party shall have
rights as a third party beneficiary of any of such provisions.



The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if
applicable), potential counterparty to a Swap Contract and potential counterparty to a Treasury
Management Agreement) and each of the L/C Issuers hereby irrevocably appoints and authorizes the
Administrative Agent to act as the agent of such Lender and such L/C Issuer for purposes of
acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties
to secure any of the Obligations, together with such powers and discretion as are reasonably
incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any
co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to
Section 10.05 for purposes of holding or enforcing any Lien on the Collateral (or any
portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies
thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all
provisions of this Article X and Article XI (including Section 11.04(c), as
though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan
Documents) as if set forth in full herein with respect thereto.



10.02 Rights as a Lender.



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



10.03 Exculpatory Provisions.



The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein and in the other Loan Documents. Without limiting the generality of the foregoing,
the Administrative Agent:


 


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




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




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



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



The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document, or the creation,
perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the
value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in
Article V or elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.



10.04 Reliance by the Administrative Agent.



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



 


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accountants and other experts selected by it, and shall not be liable for any action taken or
not taken by it in accordance with the advice of any such counsel, accountants or experts.



10.05 Delegation of Duties.



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



10.06 Resignation of Administrative Agent.



The Administrative Agent may at any time give notice of its resignation to the Lenders, the
L/C Issuers and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a
bank with an office in the United States, or an Affiliate of any such bank with an office in the
United States. If no such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C
Issuers, appoint a successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (a) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the Administrative Agent on behalf of the
Lenders or the L/C Issuers under any of the Loan Documents, the retiring Administrative Agent shall
continue to hold such collateral security until such time as a successor Administrative Agent is
appointed) and (b) all payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and each L/C Issuer
directly, until such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the retiring Administrative Agent’s resignation hereunder and under the other
Loan Documents, the provisions of this Article and Section 11.04 shall continue in effect
for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.



Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as an L/C Issuer and as Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (i) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (ii) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of their respective duties and obligations hereunder or under the other Loan Documents, and (iii)
the successor



 


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L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements satisfactory to the retiring
L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such
Letters of Credit.



10.07 Non-Reliance on Administrative Agent and Other Lenders.



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



10.08 No Other Duties; Etc.



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



10.09 Administrative Agent May File Proofs of Claim.



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




(a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations arising under
the Loan Documents that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the
Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers
and the Administrative Agent under Sections 2.03(i) and (j), 2.09
and 11.04) allowed in such judicial proceeding; and




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



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make
such payments to the Administrative Agent and, if the Administrative Agent shall consent to the
making of such payments directly to the Lenders and the L/C Issuers, to pay to the Administrative
Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent
under Sections 2.09 and 11.04.



Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization,



 


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arrangement, adjustment or composition affecting the Obligations or the rights of any Lender
or any L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any
Lender or any L/C Issuer in any such proceeding.



10.10 Collateral and Guaranty Matters.



The Lenders and the L/C Issuers irrevocably authorize the Administrative Agent, at its option
and in its discretion,




(a) to release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Revolving Commitments and
payment in full of all Obligations (other than contingent indemnification obligations and
obligations under Swap Contracts and Treasury Management Agreements) and the expiration or
termination of all Letters of Credit (other than Letters of Credit as to which other
arrangements satisfactory to the Administrative Agent and the applicable L/C Issuer shall
have been made), (ii) that is transferred or to be transferred as part of or in connection
with any Disposition permitted hereunder or under any other Loan Document or any Involuntary
Disposition, or (iii) as approved in accordance with Section 11.01;




(b) to subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that is permitted
by Section 8.02(m); and




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




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



ARTICLE XI




MISCELLANEOUS




11.01 Amendments, Etc.




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




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




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


 


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




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




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




(v) release all or substantially all of the Collateral without the written consent of
each Lender whose Obligations are secured by such Collateral;




(vi) release the Borrower without the consent of each Lender, or, except in connection
with a transaction permitted under Section 8.08, all or substantially all of the
value of the Guaranty without the written consent of each Lender whose Obligations are
guarantied thereby, except to the extent such release is permitted pursuant to Section
10.10 (in which case such release may be made by the Administrative Agent acting alone);
or



(b) prior to the termination of the Revolving Commitments, unless also signed by Lenders
(other than Defaulting Lenders) holding in the aggregate at least a majority of the Revolving
Commitments, no such amendment, waiver or consent shall, (i) waive any Default for purposes of
Section 5.02(b), (ii) amend, change, waive, discharge or terminate Sections 5.02 or
9.01 in a manner adverse to such Lenders or (iii) amend, change, waive, discharge or
terminate Section 8.07 (or any defined term used therein) or this Section 11.01(b);
or



(c) unless also signed by Lenders (other than Defaulting Lenders) holding in the aggregate at
least a majority of the Outstanding Amount of the Term Loan, no such amendment, waiver or consent
shall (i) amend, change, waive, discharge or terminate Section 2.05(b)(vi) so as to alter
the manner of application of proceeds of any mandatory prepayment required by
Section 2.05(b)(ii), (iii), (iv) or (v) hereof or (ii) amend,
change, waive, discharge or terminate this Section 11.01(c) (other than to provide other
term loan Lenders with proportional rights under this Section 11.01(c));



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



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



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


 


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



11.02 Notices; Effectiveness; Electronic Communications.



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




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




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



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



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



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



 


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posted to an Internet or intranet website shall be deemed received upon the deemed receipt by
the intended recipient at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the website address
therefor.



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



(d) Change of Address, Etc. Each of the Borrower, the Administrative Agent, any L/C
Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the Borrower, the Administrative Agent, the L/C Issuers and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that
the Administrative Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to
cause at least one individual at or on behalf of such Public Lender to at all times have selected
the “Private Side Information” or similar designation on the content declaration screen of the
Platform in order to enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable Law, including United States Federal and state
securities Laws, to make reference to Borrower Materials that are not made available through the
“Public Side Information” portion of the Platform and that may contain material non-public
information with respect to the Borrower or its securities for purposes of United States Federal or
state securities laws.



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


 


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11.03 No Waiver; Cumulative Remedies; Enforcement.



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



Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 9.02 for the benefit of all the Lenders and
the L/C Issuers; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its
benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan
Documents, (b) any L/C Issuer or the Swing Line Lender from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may
be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in
accordance with Section 11.08 (subject to the terms of Section 2.13), or (d) any
Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and
provided, further, that if at any time there is no Person acting as Administrative
Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the
rights otherwise ascribed to the Administrative Agent pursuant to Section 9.02 and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject
to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any
rights and remedies available to it and as authorized by the Required Lenders.



11.04 Expenses; Indemnity; Damage Waiver.



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



(b) Indemnification by the Loan Parties. The Loan Parties shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and each L/C Issuer, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold



 


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each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the fees, charges and disbursements of any counsel for any Indemnitee),
incurred by any Indemnitee or asserted against any Indemnitee by any third party or by any Loan
Party arising out of, in connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby,
the performance by the parties hereto of their respective obligations hereunder or thereunder or
the consummation of the transactions contemplated hereby or thereby, or, in the case of the
Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration
of this Agreement and the other Loan Documents (including in respect of any matters addressed in
Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous
Materials on or from any property owned or operated by a Loan Party or any of its Subsidiaries, or
any Environmental Claims related in any way to a Loan Party or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by any Loan Party, and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought by any Loan Party against
an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other
Loan Document, if such Loan Party has obtained a final and nonappealable judgment in its favor on
such claim as determined by a court of competent jurisdiction.



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



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


 


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



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



11.05 Payments Set Aside.



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



11.06 Successors and Assigns.



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



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




(i) Minimum Amounts.


 


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(A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the related Loans at the time owing to it or in
the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund,
no minimum amount need be assigned; and




(B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000 in the case of an assignment of a Revolving Commitment (and the
related Revolving Loans thereunder) and $2,500,000 in the case of an assignment of
Term Loans unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single assignee (or to
an assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been met.




(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s Loans and Commitments, and
rights and obligations with respect thereto, assigned, except that this clause (ii) shall
not (A) apply to the Swing Line Lender’s rights and obligations in respect of Swing Line
Loans or (B) prohibit any Lender from assigning all or a portion of its rights and
obligations in respect of its Revolving Commitment (and the related Revolving Loans
thereunder) and its outstanding Term Loans on a non-pro rata basis;




(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:




(A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;




(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
(1) any Term Loan Commitment or Revolving Commitment if such assignment is to a
Person that is not a Lender with a Commitment in respect of the Commitment subject
to such assignment, an Affiliate of such Lender or an Approved Fund with respect to
such Lender or (2) any Term Loan to a Person that is not a Lender, an Affiliate of a
Lender or an Approved Fund; and




(C) the consent of the L/C Issuers (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more Letters of
Credit (whether or not then outstanding); and


 


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(D) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment in respect of Revolving
Loans and Revolving Commitments.




(iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.




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




(vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.



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



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



(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent, the other Lenders and the L/C Issuers shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells



 


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such a participation shall provide that such Lender shall retain the sole right to enforce
this Agreement and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment, waiver or other modification
described in clauses (i) through (vi) of Section 11.01(a) that affects such Participant.
Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by Law, each Participant also shall be entitled to the
benefits of Section 11.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.13 as though it were a Lender.



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



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



(g) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if any Lender acting as an L/C Issuer or the Swing Line
Lender assigns all of its Revolving Commitment and Revolving Loans pursuant to subsection (b)
above, such Lender may, (i) upon thirty days’ notice to the Borrower and the Lenders, resign as an
L/C Issuer and/or (ii) upon thirty days’ notice to the Borrower, resign as Swing Line Lender. In
the event of any such resignation as an L/C Issuer or Swing Line Lender, the Borrower shall be
entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder;
provided, however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of such Lender as an L/C Issuer or Swing Line Lender, as the case may
be. If a Lender resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and
duties of an L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America resigns as Swing
Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with
respect to Swing Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the
appointment of a successor L/C Issuer and/or Swing Line Lender, (1) such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer
or Swing Line Lender, as the case may be, and (2) the successor L/C Issuer shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to the resigning L/C Issuer to effectively
assume the obligations of the resigning L/C Issuer with respect to such Letters of Credit.


 


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11.07 Treatment of Certain Information; Confidentiality.



Each of the Administrative Agent, the Lenders and the L/C Issuers agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its and its Affiliates’ respective partners, directors, officers,
employees, agents, trustees, advisors and representatives (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory authority, such as
the National Association of Insurance Commissioners), (c) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or any
Eligible Assignee invited to become a Lender pursuant to Section 2.01(c) or (ii) any actual
or prospective counterparty (or its advisors) to any swap or derivative transaction relating to a
Loan Party and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent, any Lender, any L/C Issuer or any of their
respective Affiliates on a nonconfidential basis from a source other than the Borrower.



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



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



11.08 Set-off.



If an Event of Default shall have occurred and be continuing, each Lender, each L/C Issuer and
each of their respective Affiliates is hereby authorized at any time and from time to time, after
obtaining the prior written consent of the Administrative Agent, to the fullest extent permitted by
applicable law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, such L/C Issuer or any such Affiliate to or for the
credit or the account of any Loan Party against any and all of the obligations of such Loan Party
now or hereafter existing under this Agreement or any other Loan Document to such Lender or such
L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall have made any
demand under this Agreement or any other Loan Document and although such obligations of such Loan
Party may be contingent or unmatured or are owed to a branch or office of such Lender or such L/C
Issuer different from the branch or office holding such



 


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deposit or obligated on such indebtedness. The rights of each Lender, each L/C Issuer and
their respective Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates
may have. Each Lender and each L/C Issuer agrees to notify the Borrower and the Administrative
Agent promptly after any such setoff and application, provided that the failure to give
such notice shall not affect the validity of such setoff and application.



11.09 Interest Rate Limitation.



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



11.10 Counterparts; Integration; Effectiveness.



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



11.11 Survival of Representations and Warranties.



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



11.12 Severability.



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



 


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provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.



11.13 Replacement of Lenders.



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




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




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




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




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




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



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



11.14 Governing Law; Jurisdiction; Etc.




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


 


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



(c) WAIVER OF VENUE. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF
AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



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



11.15 Waiver of Right to Trial by Jury.



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


 


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11.16 No Advisory or Fiduciary Responsibility.



In connection with all aspects of each transaction contemplated hereby (including in
connection with any amendment, waiver or other modification hereof or of any other Loan Document),
each of the Loan Parties acknowledges and agrees, and acknowledges its Affiliates’ understanding,
that: (i) (A) the arranging and other services regarding this Agreement provided by the
Administrative Agent and the Arrangers are arm’s-length commercial transactions between the Loan
Parties and their respective Affiliates, on the one hand, and the Administrative Agent and the
Arrangers, on the other hand, (B) each of the Loan Parties has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) each of the Loan
Parties is capable of evaluating, and understands and accepts, the terms, risks and conditions of
the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative
Agent and the Arrangers each is and has been acting solely as a principal and, except as expressly
agreed in writing by the relevant parties, has not been, is not, and will not be acting as an
advisor, agent or fiduciary for the Loan Parties or any of their respective Affiliates, or any
other Person and (B) neither the Administrative Agent nor either Arranger has any obligation to the
Loan Parties or any of their respective Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other Loan Documents; and
(iii) the Administrative Agent and the Arrangers and their respective Affiliates may be engaged in
a broad range of transactions that involve interests that differ from those of the Loan Parties and
their respective Affiliates, and neither the Administrative Agent nor the Arrangers has any
obligation to disclose any of such interests to the Loan Parties and their respective Affiliates.
To the fullest extent permitted by Law, each of the Loan Parties hereby waives and releases any
claims that it may have against the Administrative Agent and the Arrangers with respect to any
breach or alleged breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.



11.17 Electronic Execution of Assignments and Certain Other Documents.



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



11.18 USA PATRIOT Act Notice.



Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act. The Borrower shall, promptly following a request by the Administrative
Agent or any Lender, provide all documentation and other information that the Administrative Agent
or such Lender requests in order to comply with its ongoing obligations under applicable “know your
customer” and anti-money laundering rules and regulations, including the Act.



[SIGNATURE PAGES FOLLOW]





 


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



	 	 	 	 	 
	BORROWER:	 	HEALTHSPRING, INC.,
	 	 	a Delaware corporation
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Karey L. Witty
	 

	 	 	 	 
	 

	 	Name:
	 	Karey L. Witty
	 

	 	Title:
	 	Executive Vice President and Chief Financial Officer
	 
	 	 	 	 
	GUARANTORS:	 	HEALTHSPRING PHARMACY OF TENNESSEE, LLC,
	 	 	a Delaware limited liability company

HEALTHSPRING PHARMACY SERVICES, LLC,

a Delaware limited liability company

HEALTHSPRING MANAGEMENT OF AMERICA, LLC,

a Delaware limited liability company

TEXQUEST, L.L.C.,

a Delaware limited liability company

HOUQUEST, L.L.C.,

a Delaware limited liability company

HEALTHSPRING USA, LLC,

a Tennessee limited liability company

HEALTHSPRING MANAGEMENT, INC.,

a Tennessee corporation

HEALTHSPRING EMPLOYER SERVICES, INC.,

a Tennessee corporation

TENNESSEE QUEST, LLC,

a Tennessee limited liability company

NEWQUEST MANAGEMENT OF FLORIDA, LLC,

a Florida limited liability company

NEWQUEST MANAGEMENT OF ILLINOIS, LLC,

an Illinois limited liability company

NEWQUEST MANAGEMENT OF ALABAMA, LLC,

an Alabama limited liability company

NEWQUEST, LLC,

a Texas limited liability company

GULFQUEST, L.P.,

a Texas limited partnership

	 
	 	 	 	 
	 

	 	By:
	 	/s/ J. Lankford Wade
	 

	 	 	 	 
	 

	 	Name:
	 	J. Lankford Wade
	 

	 	Title:
	 	Senior Vice President












 


116









 







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

	 	By:
	 	/s/ Roberto Salazar
	 

	 	 	 	 
	 

	 	Name:
	 	Roberto Salazar
	 

	 	Title:
	 	Assistant Vice President
	 
	 	 	 	 
	LENDERS	 	BANK OF AMERICA, N.A.,
	 	 	as a Lender, L/C Issuer and Swing Line Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Suzanne B. Smith
	 

	 	 	 	 
	 

	 	Name:
	 	Suzanne B. Smith
	 

	 	Title:
	 	Senior Vice President
	 
	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Sean J. Lynch
	 

	 	 	 	 
	 

	 	Name:
	 	Sean J. Lynch
	 

	 	Title:
	 	Senior Vice President
	 
	 	 	 	 
	 	 	UBS LOAN FINANCE LLC,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Marie Haddad
	 

	 	 	 	 
	 

	 	Name:
	 	Marie Haddad
	 

	 	Title:
	 	Associate Director
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Mary E. Evans
	 

	 	 	 	 
	 

	 	Name:
	 	Mary E. Evans
	 

	 	Title:
	 	Associate Director
	 
	 	 	 	 
	 	 	RAYMOND JAMES BANK, FSB,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Steven Paley
	 

	 	 	 	 
	 

	 	Name:
	 	Steven Paley
	 

	 	Title:
	 	Senior Vice President
	 
	 	 	 	 
	 	 	SUNTRUST BANK,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ J. Ben Cumming
	 

	 	 	 	 
	 

	 	Name:
	 	J. Ben Cumming
	 

	 	Title:
	 	Vice President











 


117









 








	 	 	 	 	 
	 	 	US BANK NATIONAL ASSOCIATION,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Nathan Hall
	 

	 	 	 	 
	 

	 	Name:
	 	Nathan Hall
	 

	 	Title:
	 	AVP
	 
	 	 	 	 
	 	 	WACHOVIA BANK, A WELLS FARGO COMPANY
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Bradford Vieira
	 

	 	 	 	 
	 

	 	Name:
	 	Bradford Vieira
	 

	 	Title:
	 	Vice President
	 
	 	 	 	 
	 	 	AMEGY BANK NATIONAL ASSOCIATION,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Melinda N. Jackson
	 

	 	 	 	 
	 

	 	Name:
	 	Melinda N. Jackson
	 

	 	Title:
	 	Senior Vice President
	 
	 	 	 	 
	 	 	COMPASS BANK,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Jason Consoli
	 

	 	 	 	 
	 

	 	Name:
	 	Jason Consoli
	 

	 	Title:
	 	Senior Vice President
	 
	 	 	 	 
	 	 	FIFTH THIRD BANK,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ William D. Priester
	 

	 	 	 	 
	 

	 	Name:
	 	William D. Priester
	 

	 	Title:
	 	Vice President
	 
	 	 	 	 
	 	 	REGIONS BANK,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Kap Yarbrough
	 

	 	 	 	 
	 

	 	Name:
	 	Kap Yarbrough
	 

	 	Title:
	 	Vice President













 


118









 







	 	 	 	 	 
	 	 	UNION BANK, N.A.,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Sean Conlon
	 

	 	 	 	 
	 

	 	Name:
	 	Sean Conlon
	 

	 	Title:
	 	Senior Vice President
	 
	 	 	 	 
	 	 	FIRST TENNESSEE BANK NATIONAL ASSOCIATION,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Kenneth Berberich
	 

	 	 	 	 
	 

	 	Name:
	 	Kenneth Berberich
	 

	 	Title:
	 	Executive Vice President











 


119