exv10w1






Exhibit 10.1




      




Published CUSIP Number: ___________




AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of November 24, 2009




among




REHABCARE GROUP, INC.,

as Borrower,




CERTAIN SUBSIDIARIES AND AFFILIATES OF THE BORROWER,

as Guarantors,




THE LENDERS NAMED HEREIN,




and




BANK OF AMERICA, N.A.,

as Administrative Agent, Collateral Agent, Swingline Lender and an L/C Issuer




ROYAL BANK OF CANADA

and

BNP PARIBAS,

as Co-Syndication Agents,

and

GENERAL ELECTRIC CAPITAL CORPORATION

and

JPMORGAN CHASE BANK, N.A.,

as Co-Documentation Agents




BANC OF AMERICA SECURITIES LLC,

RBC CAPITAL MARKETS

and

BNP PARIBAS SECURITIES CORP.,

as Joint Lead Arrangers and Joint Book Managers




 






 









 








TABLE OF CONTENTS




Article and Section









	 	 	 	 	 
	 	 	Page
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Interpretive Provisions
	 	 	28	 
	1.03 Accounting Terms and Provisions
	 	 	29	 
	1.04 Rounding
	 	 	29	 
	1.05 Times of Day
	 	 	30	 
	1.06 Letter of Credit Amounts
	 	 	30	 
	1.07 Business Days
	 	 	30	 
	ARTICLE II COMMITMENTS AND CREDIT EXTENSIONS
	 	 	30	 
	2.01 Commitments
	 	 	30	 
	2.02 Borrowings, Conversions and Continuations
	 	 	34	 
	2.03 Additional Provisions with respect to Letters of Credit
	 	 	35	 
	2.04 Additional Provisions with respect to Swingline Loans
	 	 	42	 
	2.05 Repayment of Loans
	 	 	44	 
	2.06 Prepayments
	 	 	45	 
	2.07 Termination or Reduction of Revolving Commitments
	 	 	48	 
	2.08 Interest
	 	 	48	 
	2.09 Fees
	 	 	49	 
	2.10 Computation of Interest and Fees; Retroactive Adjustment of Applicable Percentage
	 	 	50	 
	2.11 Payments Generally; Administrative Agent’s Clawback
	 	 	51	 
	2.12 Sharing of Payments By Lenders
	 	 	52	 
	2.13 Evidence of Debt
	 	 	53	 
	2.14 Defaulting and Impacted Lenders
	 	 	53	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	55	 
	3.01 Taxes
	 	 	55	 
	3.02
Illegality
	 	 	58	 
	3.03 Inability to Determine Rates
	 	 	58	 
	3.04 Increased Cost; Capital Adequacy
	 	 	59	 
	3.05 Compensation for Losses
	 	 	60	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	60	 
	3.07 Survival
	 	 	61	 
	ARTICLE IV GUARANTY
	 	 	61	 
	4.01 The Guaranty
	 	 	61	 
	4.02 Obligations Unconditional
	 	 	62	 
	4.03 Reinstatement
	 	 	63	 
	4.04 Certain Waivers
	 	 	63	 
	4.05 Remedies
	 	 	63	 
	4.06 Rights of Contribution
	 	 	63	 
	4.07 Guaranty of Payment; Continuing Guaranty
	 	 	64	 
	ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	64	 
	5.01 Conditions to Initial Credit Extensions
	 	 	64	 
	5.02 Conditions to all Credit Extensions
	 	 	66	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	66	 
	6.01 Existence, Qualification and Power
	 	 	66	 
	6.02 Authorization; No Contravention
	 	 	67	 
	6.03 Governmental Authorization; Other Consents
	 	 	67	 
	6.04 Binding Effect
	 	 	67	 
	6.05 Financial Statements
	 	 	67	 






 









 






	 	 	 	 	 
	 	 	Page
	6.06 No Material Adverse Effect
	 	 	68	 
	6.07 Litigation
	 	 	68	 
	6.08 No Default
	 	 	68	 
	6.09 Ownership of Property; Liens
	 	 	68	 
	6.10 Environmental Compliance
	 	 	68	 
	6.11 Insurance
	 	 	69	 
	6.12 Taxes
	 	 	69	 
	6.13 ERISA Compliance
	 	 	69	 
	6.14 Subsidiaries
	 	 	70	 
	6.15 Margin Regulations; Investment Company Act
	 	 	70	 
	6.16 Disclosure
	 	 	70	 
	6.17 Taxpayer Identification Number; Other Identifying Information
	 	 	70	 
	6.18 Compliance with Laws
	 	 	70	 
	6.19 Solvency
	 	 	71	 
	6.20 Intellectual Property; Licenses, Etc.
	 	 	71	 
	6.21 Labor Matters
	 	 	71	 
	6.22 Security Agreement
	 	 	72	 
	6.23 Pledge Agreement
	 	 	72	 
	ARTICLE VII AFFIRMATIVE COVENANTS
	 	 	73	 
	7.01 Financial Statements
	 	 	73	 
	7.02 Certificates; Other Information
	 	 	73	 
	7.03 Notification
	 	 	75	 
	7.04 Payment of Taxes
	 	 	75	 
	7.05 Preservation of Existence, Etc.
	 	 	76	 
	7.06 Maintenance of Properties
	 	 	76	 
	7.07 Maintenance of Insurance
	 	 	76	 
	7.08 Compliance with Laws
	 	 	76	 
	7.09 Books and Records
	 	 	76	 
	7.10 Inspection Rights
	 	 	77	 
	7.11 Use of Proceeds
	 	 	77	 
	7.12 Joinder of Subsidiaries as Guarantors
	 	 	77	 
	7.13 Pledge of Capital Stock
	 	 	78	 
	7.14 Pledge of Other Property
	 	 	78	 
	7.15 Maintenance of Debt Ratings
	 	 	79	 
	ARTICLE VIII NEGATIVE COVENANTS
	 	 	79	 
	8.01 Liens
	 	 	79	 
	8.02 Investments
	 	 	82	 
	8.03 Indebtedness
	 	 	83	 
	8.04 Mergers and Dissolutions
	 	 	85	 
	8.05 Dispositions
	 	 	86	 
	8.06 Restricted Payments
	 	 	87	 
	8.07 [Intentionally Omitted]
	 	 	88	 
	8.08 Change in Nature of Business
	 	 	88	 
	8.09 Change in Fiscal Year
	 	 	88	 
	8.10 Transactions with Affiliates
	 	 	88	 
	8.11 Amendments to Documents
	 	 	89	 
	8.12 No Further Negative Pledges
	 	 	89	 
	8.13 Sale Leasebacks
	 	 	90	 
	8.14 Financial Covenants
	 	 	90	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES
	 	 	91	 
	9.01 Events of Default
	 	 	91	 






ii









 






	 	 	 	 	 
	 	 	Page
	9.02 Remedies Upon Event of Default
	 	 	93	 
	9.03 Application of Funds
	 	 	93	 
	ARTICLE X ADMINISTRATIVE AGENT AND COLLATERAL AGENT
	 	 	94	 
	10.01 Appointment and Authorization of Administrative Agent and Collateral Agent
	 	 	94	 
	10.02 Rights as a Lender
	 	 	95	 
	10.03 Exculpatory Provisions
	 	 	95	 
	10.04 Reliance by Administrative Agent
	 	 	96	 
	10.05 Delegation of Duties
	 	 	96	 
	10.06 Resignation of the Administrative Agent
	 	 	96	 
	10.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	97	 
	10.08 No Other Duties
	 	 	97	 
	10.09 Administrative Agent May File Proofs of Claim
	 	 	98	 
	10.10 Collateral and Guaranty Matters
	 	 	98	 
	ARTICLE XI MISCELLANEOUS
	 	 	99	 
	11.01 Amendments, Etc.
	 	 	99	 
	11.02 Notices; Effectiveness; Electronic Communication
	 	 	102	 
	11.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	104	 
	11.04 Expenses; Indemnity; Damage Waiver
	 	 	104	 
	11.05 Payments Set Aside
	 	 	106	 
	11.06 Successors and Assigns
	 	 	106	 
	11.07 Treatment of Certain Information; Confidentiality
	 	 	110	 
	11.08 Right of Setoff
	 	 	111	 
	11.09 Interest Rate Limitation
	 	 	111	 
	11.10 Counterparts; Integration; Effectiveness
	 	 	112	 
	11.11 Survival of Representations and Warranties
	 	 	112	 
	11.12 Severability
	 	 	112	 
	11.13 Replacement of Lenders
	 	 	112	 
	11.14 Governing Law; Jurisdiction; Etc.
	 	 	113	 
	11.15 Waiver of Jury Trial
	 	 	114	 
	11.16 No Advisory or Fiduciary Responsibility
	 	 	114	 
	11.17 Electronic Execution of Assignments and Certain Other Documents
	 	 	115	 
	11.18 USA PATRIOT Act
	 	 	115	 
	11.19 Cooperation
	 	 	115	 






iii









 






SCHEDULES




Schedule 2.01 Lenders and Commitments

Schedule 2.03 Existing Letters of Credit

Schedule 6.14 Subsidiaries

Schedule 6.17 Taxpayer Identification Numbers

Schedule 6.21 Labor Matters

Schedule 8.01 Existing Liens

Schedule 8.02 Existing Investments

Schedule 8.03 Existing Indebtedness

Schedule 11.02 Notice Addresses




EXHIBITS




Exhibit 2.01 Form of Lender Joinder Agreement

Exhibit 2.02 Form of Loan Notice

Exhibit 2.13-1 Form of Revolving Note

Exhibit 2.13-2 Form of Swingline Note

Exhibit 2.13-3 Form of Term Loan B Note

Exhibit 7.02(a) Form of Compliance Certificate

Exhibit 7.12 Form of Guarantor Joinder Agreement

Exhibit 11.06 Form of Assignment and Assumption





iv









 








AMENDED AND RESTATED CREDIT AGREEMENT




     This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 24, 2009 (the “Credit
Agreement”), is by and among REHABCARE GROUP, INC., a Delaware corporation (the
“Borrower”), the Guarantors identified herein, the Lenders party hereto, and BANK OF
AMERICA, N.A., as Administrative Agent and Collateral Agent for the Lenders.



W I T N E S S E T H




     WHEREAS, the Borrower requested, and the Lenders agreed pursuant to the terms of that certain
amended and restated credit agreement, dated as of June 16, 2006 (as amended, modified and
supplemented, the “Existing Credit Agreement”), to provide the Borrower with $175 million
in revolving credit facilities;



     WHEREAS, the Borrower has requested certain modifications to the credit facilities, including,
among other things, the establishment of a term loan, an increase in the overall commitments under
the Existing Credit Agreement and extension of the tenor therefor and consent to the Triumph
Acquisition;



     WHEREAS, the Lenders have agreed to make the requested revolving credit and term loan facility
available to the Borrower on the terms and conditions hereinafter set forth; and



     WHEREAS, this Credit Agreement is given in amendment to, restatement of and substitution for
the Existing Credit Agreement.



     NOW, THEREFORE, in consideration of these premises and the mutual covenants and agreements
contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
covenant and agree as follows:



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms.



     As used in this Credit Agreement, the following terms have the meanings provided below:



     “Acquisition” means the purchase or acquisition by any Person of (a) more than fifty
percent (50%) of the Capital Stock with ordinary voting power of another Person or (b) a line of
business or division of, or all or any substantial portion of the business, property or assets
(other than Capital Stock) of another Person, whether or not involving a merger or consolidation
with such Person.



     “Adequate Assurance” means,




     (a) with respect to L/C Obligations, such assurance as the L/C Issuers may reasonably
require, in their discretion, and




     (b) with respect to Swingline Loans, such assurance as the Swingline Lender may
reasonably require, in its discretion,



 









 




in each case, that such Defaulting Lender or Impacted Lender will be capable of funding its portion
of Revolving Obligations and participation interests therein and otherwise honoring its existing
and future obligations hereunder and under the other Credit Documents, including the posting of
cash collateral or letters of credit, in each case in form and substance and pursuant to
arrangements satisfactory to the L/C Issuers or the Swingline Lender, as appropriate, in their
reasonable discretion.




     “Administrative Agent” means Bank of America in its capacity as administrative agent
for the Lenders under any of the Credit Documents, or any successor administrative agent appointed
in accordance with the terms hereof.



     “Administrative Agent’s Fee Letter” means that certain letter agreement dated as of
November 3, 2009 by and among the Borrower, BAS and Bank of America, as amended, restated, amended
and restated, supplemented or otherwise modified from time to time.



     “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 the Borrower and the Lenders.



     “Administrative Questionnaire” means an administrative questionnaire for the Lenders
in a form supplied by the Administrative Agent.



     “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified; provided that neither the Administrative Agent nor any Lender
shall be deemed to be an “Affiliate” of any Credit Party when acting in its capacity as a holder of
Obligations.



     “Aggregate Commitments” means the Aggregate Revolving Commitments and the Term Loan
Commitments of all the Lenders.



     “Aggregate Commitment Percentage” means, for each Lender, a fraction (expressed as a
percentage carried to the ninth decimal place), the numerator of which is the amount of such
Lender’s respective Revolving Commitment and Term Loan Commitment and the denominator of which is
the Aggregate Commitments.



     “Aggregate Revolving Commitments” means the Revolving Commitments of all the Revolving
Lenders.



     “Aggregate Revolving Committed Amount” has the meaning specified in Section
2.01(a).



     “Alternative Arrangements” has the meaning specified in Section 2.03(g).



2









 





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



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Applicable	 	 	 	 
	 	 	 	 	Percentage for	 	Applicable	 	 
	 	 	 	 	Eurodollar Rate	 	Percentage for	 	 
	Pricing	 	Consolidated Total Leverage	 	Loans and Letter	 	Base Rate	 	Commitment
	Level	 	Ratio	 	of Credit Fee	 	Loans	 	Fee
	I
	 	Equal to or greater than 3.0:1.0

	 	 	4.00	%	 	 	3.00	%	 	 	0.50	%
	II
	 	Equal to or greater than
2.5:1.0 but less than 3.0:1.0

	 	 	3.75	%	 	 	2.75	%	 	 	0.50	%
	III
	 	Equal to or greater than
2.0:1.0 but less than 2.5:1.0

	 	 	3.50	%	 	 	2.50	%	 	 	0.50	%
	IV
	 	Equal to or greater than 1.5
but less than 2.0:1.0

	 	 	3.25	%	 	 	2.25	%	 	 	0.50	%
	V
	 	Less than 1.5:1.0

	 	 	3.00	%	 	 	2.00	%	 	 	0.375	%





and (b) with respect to the Term Loan B, (i) four percent (4.0%) per annum for Eurodollar Rate
Loans and (ii) three percent (3.0%) per annum for Base Rate Loans.



Any increase or decrease in the Applicable Percentage resulting from a change in the Consolidated
Total Leverage Ratio shall become effective immediately following the date a Compliance Certificate
is delivered pursuant to Section 7.02(a); provided, however, that if a Compliance
Certificate is not delivered when due in accordance therewith, then Pricing Level I shall apply as
of the first Business Day after the date on which such Compliance Certificate was required to have
been delivered until the day immediately following delivery thereof. The Applicable Percentage in
effect from the Closing Date through the date for delivery of the Compliance Certificate for the
fiscal quarter ending March 31, 2010 shall be determined based upon Pricing Level I.
Determinations by the Administrative Agent of the appropriate Pricing Level shall be conclusive
absent manifest error.




     The Applicable Percentage with respect to any Incremental Credit Facilities will be provided
in the documentation establishing such Incremental Credit Facilities.



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



     “Assignee Group” means two (2) or more Eligible Assignees that are Affiliates of one
another or two (2) 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 or any other form approved by the Administrative Agent.



     “Attributable Principal Amount” means (a) in the case of capital leases, the amount of
capital lease obligations determined in accordance with GAAP (excluding any such amounts resulting
from a recharacterization of operating leases on account of a change in GAAP after the Closing
Date), (b) in the case of Synthetic Leases, an amount determined by capitalization of the remaining
lease payments thereunder as if it were a capital lease determined in accordance with GAAP
(excluding any such amounts



3









 







resulting from a recharacterization of operating leases on account of a change in GAAP after
the Closing Date), and (c) in the case of Securitization Transactions, the outstanding principal
amount of such financing, after taking into account reserve amounts and making appropriate
adjustments, determined by the Administrative Agent in its reasonable judgment.



     “Auto-Extension Letter of Credit” has the meaning specified in Section
2.03(b)(iii).



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



     “BAS” means Banc of America Securities LLC, together with its successors.



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus one-half of one percent (0.5%), (b) the Prime Rate and (c)
except during a Eurodollar Unavailability Period, the Daily Floating Eurodollar Rate plus
one percent (1.00%).



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



     “BBA LIBOR” means as specified in the definition of “Eurodollar Base Rate” in this
Section 1.01.



     “BNPPSC” means as BNP Paribas Securities Corp., together with its successors.



     “Borrower” has the meaning specified in the recitals hereto, together with its
successors and permitted assigns.



     “Borrowing” means (a) a borrowing consisting of simultaneous Loans of the same Type
and, in the case of Eurodollar Rate Loans, having the same Interest Period, or (b) a borrowing of
Swingline Loans, as appropriate.



     “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, New York City
and/or in the state where the Administrative Agent’s Office is located and, if such day relates to
any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by
and between banks in the London interbank eurodollar market.



     “Capital Stock” means (a) in the case of a corporation, capital stock, (b) in the case
of an association or business entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of capital stock, (c) in the case of a partnership,
partnership interests (whether general or limited), (d) in the case of a limited liability company,
membership interests and (e) any other equity interest or equity participation that confers on a
Person the right to receive a share of the profits and losses of, or distributions of assets of,
the issuing Person.



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



     “Cash Equivalents” means (a) securities issued or directly and fully guaranteed or
insured by the United States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having maturities of not more than
twelve months from the date of acquisition, (b) Dollar-denominated time deposits and certificates
of deposit of (i) any Lender, (ii) any domestic commercial bank of recognized standing having
capital and surplus in excess of $500 million or (iii) any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the
equivalent thereof (each an “Approved Bank”), in each case



4









 







with maturities of not more than 270 days from the date of acquisition, (c) commercial paper
and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or
any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and
maturing within six (6) months of the date of acquisition, (d) repurchase agreements entered into
by any Person with a bank or trust company (including any of the Lenders) or recognized securities
dealer having capital and surplus in excess of $500 million for direct obligations issued by or
fully guaranteed by the United States in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair
market value of at least one hundred percent (100%) of the amount of the repurchase obligations and
(e) Investments (classified in accordance with GAAP as current assets) in money market investment
programs registered under the Investment Company Act of 1940, as amended, that are administered by
reputable financial institutions having capital of at least $500 million and the portfolios of
which are limited to Investments of the character described in the foregoing subclauses hereof.



     “Change in Law” means the occurrence, after the date of this Credit 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 the occurrence of any of the following events: (i) any
Person or two or more Persons acting in concert shall have acquired beneficial ownership, directly
or indirectly, of, or shall have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or their acquisition of or
control over, Voting Stock of the Borrower (or other securities convertible into such Voting Stock)
representing (A) so long as the Borrower maintains a shareholder rights plan pursuant to which the
acquisition by any Person of twenty percent (20%) or more of the Borrower’s outstanding Capital
Stock triggers provisions which could act to significantly dilute the ownership interest of such
Person (a “Shareholder Rights Plan”), fifty and one-tenth percent (50.1%) or more of the
combined voting power of all Voting Stock of the Borrower and (B) at any time the Borrower does not
maintain a Shareholder Rights Plan, thirty-five percent (35%) or more of the combined voting power
of all Voting Stock of the Borrower or (ii) during any period of up to twenty-four (24) consecutive
months, commencing after the Closing Date, individuals who at the beginning of such twenty-four
(24) month period were directors of the Borrower (together with any new director whose election by
the Borrower’s board of directors or whose nomination for election by the Borrower’s shareholders
was approved by a vote of a majority of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the directors of the
Borrower then in office. As used herein, “beneficial ownership” shall have the meaning provided in
Rule 13d-3 of the SEC under the Securities Exchange Act.



     “Closing Date” means the date hereof.



     “Code” means the Internal Revenue Code of 1986, as amended from time to time.



     “Collateral” means the collateral identified in, and at any time covered by, the
Collateral Documents.



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



5









 





     “Collateral Documents” means the Security Agreement, the Pledge Agreement and any
other documents executed and delivered by a Credit Party in connection with the attachment and
perfection of security interests granted to secure the Obligations.



     “Commitment Letter” means that certain letter agreement, dated as of November 3, 2009,
by and among the Borrower, BAS, Bank of America, Royal Bank, BNP Paribas and BNPPSC, as amended,
restated, supplemented or otherwise modified from time to time.



     “Commitment Period” means the period from and including the Closing Date to the
earlier of (a)(i) in the case of Revolving Loans and Swingline Loans, the Revolving Termination
Date or (ii) in the case of the Letters of Credit, the L/C Expiration Date, or (b) in each case,
the date on which the Revolving Commitments shall have been terminated as provided herein.



     “Commitments” means the Revolving Commitments and the Term Loan Commitments.



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



     “Consolidated Adjusted EBITDAR” means, for any period for the Consolidated Group, the
sum of (i) Consolidated EBITDA, plus (ii) rent and operating lease expense, minus
(iii) Consolidated Capital Expenditures, minus (iv) cash income taxes paid net of any
refunds received, in each case determined on a consolidated basis. Except as otherwise expressly
provided, the applicable period shall be the four consecutive fiscal quarters ending as of the date
of determination.



     “Consolidated Capital Expenditures” means, for any period for the Consolidated Group,
without duplication, all expenditures (whether paid in cash or other consideration) that are or
should be included in additions to plant, property and equipment in accordance with GAAP;
provided, that Consolidated Capital Expenditures shall not include, for purposes hereof,
(a) expenditures in connection with any Investments (including Permitted Acquisitions and Permitted
Joint Venture Investments) permitted hereunder, (b) expenditures of proceeds of insurance
settlements, condemnation awards and other settlements in respect of lost, destroyed, damaged or
condemned assets, equipment or other property to the extent such expenditures are made to replace
or repair such lost, destroyed, damaged or condemned assets, equipment or property, (c) the
purchase price of assets that are purchased within thirty (30) days of the trade-in of existing
assets of a similar type and nature to the extent of the trade-in credit or value, or (d)
expenditures accounted for as “capital expenditures” under GAAP to the extent paid for or
reimbursed by a third party that is not a Credit Party or an Affiliate of a Credit Party.



     “Consolidated EBITDA” means, for any period for the Consolidated Group, the sum of (i)
Consolidated Net Income, plus (ii) to the extent deducted in determining Consolidated Net
Income, (A) Consolidated Interest Expense, (B) taxes, (C) depreciation and amortization, (D)
non-recurring non-cash charges or losses, and (E) non-cash charges in connection with the
Accounting Standards Codification (ASC) Topic 718 (Compensation — Stock Compensation) of the
Financial Accounting Standards Board, in each case on a consolidated basis determined in accordance
with GAAP, but with add-backs, in any event, for the following: (1) losses from extraordinary,
unusual or non-recurring events (including hurricanes and other weather-related events,
earthquakes, flooding, acts of war, terrorism and sabotage) in an aggregate amount not to exceed $4
million during such period, (2) losses from the sale, exchange or disposition of capital assets
(including fixed assets and all inventory sold in connection therewith or in connection with a sale
of marketable securities), (3) deferred rent (being the difference between straight-line rent under
GAAP and cash rent), (4) expenses and charges relating to minority interests in an aggregate amount
during such period not to exceed five percent (5%) of Consolidated EBITDA (without giving effect to
the add-back in this clause (4)), (5) cash restructuring charges in an aggregate amount not to
exceed $5 million for the periods ending December 31, 2009 through December 31, 2010 and $2



6









 







million for the periods ending thereafter, (6) all reasonable costs and expenses relating to
acquisitions and financing transactions (previously capitalized under GAAP until January 1, 2009),
(7) all start-up losses for the first year relating to operations of newly-opened healthcare
facilities in an aggregate amount during such period not to exceed $5 million for the periods
ending December 31, 2009 through December 31, 2010 and $2 million for the periods ending
thereafter, (8) all cash expenses paid in connection with Dispositions permitted hereunder;
provided that Consolidated EBITDA will be calculated on a Pro Forma Basis giving effect to
the Triumph Acquisition and other Acquisitions and Dispositions permitted hereunder with pro forma
adjustments as of the Closing Date (w) to exclude any Consolidated EBITDA, whether positive or
negative, associated with the acquisition of the Dallas LTACH acquired in June 2009 on a Pro Forma
Basis as of the Closing Date and for any relevant future calculation periods, (x) to include an
add-back relating to the St. Agnes acquisition in an amount not to exceed $3 million in the
aggregate during such period, (y) to include an add-back relating to the Our Lady of Peace
expansion and relocation in an amount not to exceed $800,000 in the aggregate during such period,
and (z) to include an add-back relating to the Lima expansion in an amount not to exceed $900,000
during such period (it being understood and agreed that the foregoing adjustments will be included
until the end of the period of four complete fiscal quarters following the later of (a) the Closing
Date and (b) such event giving rise to such pro forma calculation). Except as otherwise expressly
provided, the applicable period shall be the four consecutive fiscal quarters ending as of the date
of determination.



     “Consolidated Excess Cash Flow” means, for any period for the Consolidated Group, the
sum of (a) Consolidated EBITDA (but without giving effect to the adjustments and add-backs provided
in the definition thereof and without giving effect to Acquisitions, Dispositions and other similar
adjustments on a Pro Forma Basis), minus (b) the sum of (i) the portion of Consolidated
Interest Expense paid in cash, (ii) cash taxes paid, (iii) scheduled principal payments made on
Consolidated Total Funded Debt (including for purposes hereof, mandatory commitment reductions,
sinking fund payments, payments in respect of the principal components under capital leases and the
like relating thereto), (iv) Consolidated Capital Expenditures, (v) optional prepayments of
Consolidated Total Funded Debt (other than Loans owing under this Credit Agreement), and (vi) sums
expended for Permitted Acquisitions and Permitted Joint Venture Investments, plus (c)
Consolidated Net Changes in Working Capital (which may be a negative amount), in each case on a
consolidated basis determined in accordance with GAAP. “Consolidated Excess Cash Flow” will be
calculated on an “actual” rather than a Pro Forma Basis. Except as otherwise expressly provided,
the applicable period shall be for the four consecutive fiscal quarters ending on the last day of
each fiscal year.



     “Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Adjusted EBITDAR to (b) Consolidated Fixed Charges.



     “Consolidated Fixed Charges” means, for any period for the Consolidated Group, the sum
of (a) the cash portion of Consolidated Interest Expense for the period of four consecutive fiscal
quarters ending as of the date of determination, plus (b) current maturities of
Consolidated Total Funded Debt (but excluding, for purposes hereof, the Revolving Obligations, the
aggregate principal amount of the Term Loan B due on the Term Loan B Maturity Date and the
aggregate principal amount of any other term loan established hereunder due on the maturity date
therefor) for the period of four consecutive fiscal quarters beginning the date after the date of
determination, plus (c) rent and operating lease expense for the period of four consecutive
fiscal quarters ending as of the date of determination, plus (d) all Restricted Payments
made in cash for the period of four consecutive fiscal quarters ending as of the date of
determination.



     “Consolidated Group” means the Borrower and its consolidated Subsidiaries, as
determined in accordance with GAAP.




7









 





     “Consolidated Interest Expense” means, for any period for the Consolidated Group, all
interest expense, on a consolidated basis determined in accordance with GAAP, but including, in any
event, the amortization of debt discount and premium, the interest component under capital leases
and the implied interest component under Securitization Transactions; provided that, solely for
purposes of calculating Consolidated Fixed Charges, Consolidated Interest Expense shall exclude (a)
any fees (including underwriting fees and expenses) paid in connection with the Triumph
Acquisition, any Investment permitted under Section 8.02 (including any Permitted
Acquisition and any Permitted Joint Venture Investment) or in connection with any amendment or
waiver of any debt or equity issuance (including the Credit Documents) and whether or not
consummated, (b) any upfront fees and expenses in connection with any Swap Contracts and fees in
respect of the issuance of Letters of Credit and others letters of credit not prohibited under this
Agreement, and (c) any administration fees payable to the Administrative Agent in connection with
the Credit Documents. Except as expressly provided otherwise, the applicable period shall be the
four consecutive fiscal quarters ending as of the date of determination.



     “Consolidated Net Changes in Working Capital” means, for any period for the
Consolidated Group, an amount (positive or negative) equal to the sum of (a) the net amount of
decreases (or minus the amount of increases) in accounts receivable, inventory, prepaid
expenses and other current assets, and (b) the amount of increases (or minus the amount of
decreases) in accounts payable, accrued salaries and wages and other current liabilities (including
accrued interest expense), in each case on a consolidated basis determined in accordance with GAAP.



     “Consolidated Net Income” means, for any period for the Consolidated Group, net income
(or loss) determined on a consolidated basis in accordance with GAAP, but excluding for purposes of
determining the Consolidated Senior Leverage Ratio, the Consolidated Total Leverage Ratio and the
Consolidated Fixed Charge Coverage Ratio, any extraordinary gains or losses and related tax effects
thereon. Except as otherwise expressly provided, the applicable period shall be the four
consecutive fiscal quarters ending as of the date of determination.



     “Consolidated Senior Funded Debt” means, as of any date of determination, the sum of
Consolidated Total Funded Debt minus Consolidated Subordinated Debt.



     “Consolidated Senior Leverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated Senior Funded Debt on such day to (b) Consolidated EBITDA.



     “Consolidated Subordinated Debt” means, as of any date of determination, Subordinated
Debt of the Consolidated Group determined on a consolidated basis in accordance with GAAP.



     “Consolidated Total Funded Debt” means Funded Debt of the Consolidated Group
determined on a consolidated basis.



     “Consolidated Total Leverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated Total Funded Debt on such day to (b) Consolidated EBITDA.



     “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 thirty percent (30%) or more of the securities having ordinary voting power for the election of directors, managing general
partners or the equivalent.




8









 








     “Credit Agreement” means this Amended and Restated Credit Agreement, as the same may
be amended, restated, amended and restated, supplemented or otherwise modified from time to time.



     “Credit Documents” means this Credit Agreement, the Notes, the Collateral Documents,
the Fee Letters, the Issuer Documents, the Guarantor Joinder Agreements, the Lender Joinder
Agreements and the documents establishing the Incremental Credit Facilities, if any.



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



     “Credit Parties” means, collectively, the Borrower and the Guarantors.



     “Credit Party Materials” has the meaning specified in Section 7.02.



     “Daily Floating Eurodollar Rate” means, for any day, a fluctuating rate per annum
equal to the BBA LIBOR at approximately 11:00 a.m., London time, on such day for Dollar deposits
with a term equivalent to one (1) month. If such rate is not available at such time for any
reason, then the Daily Floating Eurodollar Rate shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars in same day funds in the
approximate amount of the Base Rate Loan being made and with a term equivalent to one (1) month
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) on such day.
Notwithstanding the foregoing, the Daily Floating Eurodollar Rate on any day that is not a Business
Day with respect to Eurodollar Rate Loans shall be the Daily Floating Eurodollar Rate determined on
the immediately preceding Business Day for Eurodollar Loans.



     “Debt Rating” means, as of any date of determination, the rating as determined by
either Moody’s or S&P of the Borrower’s corporate family rating or issuer rating, as applicable.



     “Debt Transaction” means, with respect to any member of the Consolidated Group, any
sale, issuance, placement of Funded Debt, whether or not evidenced by a promissory note or other
written evidence of Indebtedness, except for Funded Debt permitted under clauses (a)
through (h) and (j) through (o) of Section 8.03.



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



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



     “Default Rate” means an interest rate equal to (a) with respect to Obligations other
than (i) Eurodollar Rate Loans and (ii) Letter of Credit Fees, the Base Rate plus the
Applicable Percentage, if any, applicable to such Loans plus two percent (2%) per annum;
(b) with respect to Eurodollar Rate Loans, the Eurodollar Rate plus the Applicable
Percentage, if any, applicable to such Loans plus two percent (2%) per annum; and (c) with
respect to Letter of Credit Fees, a rate equal to the Applicable Percentage plus two
percent (2%) per annum.



9









 





     “Defaulting Lender” means, as of any date of determination, any Lender that (a) has
failed to fund any portion of the Loans, participations in L/C Obligations or participations in
Swingline Loans required to be funded by it hereunder within one (1) Business Day after the date
required to be funded by it hereunder and has not cured such failure prior to the date of
determination, (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 (1) Business Day after the date
when due, unless the subject of a good faith dispute, and has not cured such failure prior to the
date of determination, (c) has been deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding, or (d) with respect to which the Federal Deposit Insurance Corporation has
been appointed receiver or conservator by a federal or state chartering authority or otherwise
pursuant to the Federal Deposit Insurance Act (12 U.S.C. § 11(c)), unless in respect of this
clause (d), such Lender provides Adequate Assurance to the L/C Issuers and the Swingline
Lender, as appropriate, in which case, such Lender shall not be deemed a Defaulting Lender solely
for purposes of this clause (d).



     “Defaulting Lender Account” has the meaning specified in Section 2.14.



     “Disqualified Institutions” means, unless otherwise consented to by the Borrower in
writing, those Persons identified to the Administrative Agent in writing pursuant to the Commitment
Letter.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any Sale and Leaseback Transaction) of any Property by any Person, including
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, for purposes
hereof, (a) Dispositions of obsolete, surplus or worn out property, whether now owned or hereafter
acquired, in the ordinary course of business; (b) Dispositions of inventory in the ordinary course
of business; and (c) Dispositions of equipment or real property to the extent that (i) such
property is exchanged for credit against the purchase price of similar replacement property or
(ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such
replacement property.



     “Dollar” or “$” means the lawful currency of the United States.



     “Domestic Credit Party” means any Credit Party that is organized under the laws of any
State of the United States or the District of Columbia.



     “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 Section 11.06(b)(iii), (v), (vi) and (vii) (subject to such
consents, if any, as may be required under Section 11.06(b)(iii)), excluding, for the
avoidance of doubt, any Disqualified Institutions.



     “Environmental Laws” means any and all applicable federal, state and local statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any Hazardous Materials into the environment.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower, any other Credit Party or any of their respective Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure
to any Hazardous Materials, (d) the



10









 







release or threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.



     “Equity Transaction” means, with respect to the Borrower, any issuance or sale of
shares of its Capital Stock, other than an issuance (a) in connection with a conversion of debt
securities to equity, (b) in connection with the exercise by a present or former employee, officer
or director (or such persons, heirs, estate or assigns) under a stock incentive plan, stock option
plan or other equity-based compensation plan or arrangement, or (c) in connection with any
Acquisition permitted hereunder.



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



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



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition that would reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.



     “Eurodollar Base Rate” means for any Interest Period with respect to a Eurodollar Rate
Loan, the rate per annum equal to (i) the British Bankers Association LIBOR Rate as published by
Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by
the Administrative Agent from time to time) (“BBA LIBOR”), at approximately 11:00 a.m.,
London time, two (2) Business Days prior to the commencement of such Interest Period, for deposits
in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such
Interest Period or (ii) if such rate is not available at such time for any reason, the rate per
annum determined by the Administrative Agent to be the rate at which deposits in Dollars for
delivery on the first day of such Interest Period in same day funds in the approximate amount of
the Eurodollar Rate Loan being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America’s London Branch (or other
Bank of America branch or Affiliate) to major banks in the London or other offshore interbank
Eurodollar market at their request at approximately 11:00 a.m., London time, two (2) Business Days
prior to the commencement of such Interest Period.



     “Eurodollar Rate” means for any Interest Period with respect to a Eurodollar Rate
Loan, (a) with respect to Revolving Loans, the rate per annum determined by the Administrative
Agent pursuant to the following formula:




	 	 	 
	 

	 	Eurodollar Base Rate
	 

	 	 
	Eurodollar Rate =

	 	1.00 — Eurodollar Reserve Percentage










11









 






(b) with
respect to the Term Loan B, the greater of (i) the rate per annum determined by the
Administrative Agent pursuant to the formula set forth in clause (a) and (ii) two percent
(2%) per annum and (c) with respect to any other Term Loan, the amount specified in the relevant
documentation for such Term Loan (or, if not specified, the same as for the Term Loan B).




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



     “Eurodollar Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five (5) 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 shall
be adjusted automatically as of the effective date of any change in the Eurodollar Reserve
Percentage.



     “Eurodollar Unavailability Period” means any period of time during which a notice
delivered to the Borrower in accordance with Section 3.02 or 3.03 shall remain in force and
effect.



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



     “Excluded Property” means (a) any personal Property (including motor vehicles) in
respect of which perfection of a Lien is not either (i) governed by the UCC or (ii) effected by
appropriate evidence of the Lien being filed in either the United States Copyright Office or the
United States Patent and Trademark Office, (b) any leasehold interests, (c) any Property that is
subject to a Lien existing on the date hereof and listed on Schedule 8.01 or a Lien
securing capital lease obligations, obligations under Synthetic Leases or purchase money
obligations permitted under this Credit Agreement, in either case, pursuant to documents that
prohibit (or give rise to a right of termination or other remedies upon) the grant of any other
Liens in such property, provided in any such case the prohibition is not rendered ineffective by
the UCC (including the provisions of Section 9-407 and 9-408) or other applicable Law, and (d) any
permit, lease, license, contract or instrument now or hereafter in effect of a Credit Party if the
grant of a security interest in such permit, lease, license, contract or instrument in a manner
contemplated by this Credit Agreement, under the terms thereof or under applicable Law, is
prohibited and would result in the termination thereof or give the other parties thereto the right
to terminate, accelerate or otherwise materially and adversely alter such Credit Party’s rights,
titles and interests thereunder (including upon the giving of notice or the lapse of time or both),
provided in any such case the prohibition is not rendered ineffective by the UCC (including the
provisions of Section 9-407 and 9-408) or other applicable Law.



     “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 taxes imposed on it (in lieu of net income taxes, including the Texas
Margin tax and other similar 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 or with which it has a
present or former connection other than a connection resulting at least in part from any activity
related to this Credit Agreement or any other Credit Document, (b) any branch profits taxes imposed
by the United States or any similar tax imposed by any other jurisdiction (or any political
subdivision) in which the Borrower is located, (c) any backup withholding tax that is required by
the 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 Laws in force at the time such Foreign Lender becomes a party hereto (or designates
a new Lending Office) or (ii)



12









 







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), 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).



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



     “Existing Letters of Credit” means the letters of credit outstanding on the Closing
Date and identified on Schedule 2.03.



     “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 immediately 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 the multiple of 1/100th
of 1%) charged to Bank of America on such day on such transactions as determined by the
Administrative Agent.



     “Fee Letters” means the Administrative Agent’s Fee Letter and the Underwriting Fee
Letter.



     “First-Tier Foreign Subsidiary” means any Foreign Subsidiary that is owned directly by
a Domestic Credit Party.



     “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.



     “Funded Debt” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations for borrowed money, whether current or long-term (including the Loans
hereunder), and all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments; (b) all purchase money indebtedness (including indebtedness and obligations in
respect of conditional sales and title retention arrangements, except for customary conditional
sales and title retention arrangements with suppliers that are entered into in the ordinary course
of business) and all indebtedness and obligations in respect of the deferred purchase price of
property or services (other than trade accounts payable incurred in the ordinary course of business
and payable on customary trade terms); (c) all non-contingent obligations under bankers’
acceptances and similar instruments; (d) the Attributable Principal Amount of capital leases and
Synthetic Leases; (e) the Attributable Principal Amount of Securitization Transactions; (f) all
preferred stock and comparable equity interests providing for mandatory redemption, sinking fund



13









 







or other like payments on or prior to the 120th day after the date of the Term Loan
B Maturity Date, except for any requirement that such stock be redeemed in connection with (i) a
change of control or (ii) a sale of all or substantially all of the assets of such Person; (g)
Support Obligations of Funded Debt of another Person; (h) Funded Debt of any partnership or joint
venture or other similar entity in which such Person is a general partner or joint venturer, and,
as such, has personal liability for such obligations, but only to the extent there is recourse to
such Person for payment thereof; (i) Funded Debt of another Person secured by a Lien on any
Property of such Person, whether or not such Funded Debt has been assumed; provided that
for purposes hereof, the amount of such Funded Debt shall be limited to the amount of such Funded
Debt as to which there is recourse to such Person or the fair market value of the property which is
subject to the Lien, if less; and (j) the amount of payment obligations (including earn-out
payments and the like) incurred in connection with Permitted Acquisitions or Acquisitions
consummated prior to the Closing Date when such obligations have become sufficiently certain and
quantifiable as to be recognized as a liability under GAAP; provided that “Funded Debt”
will not include (A) contingent obligations under letters of credit and (B) capital lease or
similar obligations resulting from a recharacterization of operating leases on account of a change
in GAAP after the Closing Date.



For purposes hereof, the amount of Funded Debt shall be determined (i) based on the outstanding
principal amount in the case of borrowed money indebtedness under clause (a) and purchase
money indebtedness and the deferred purchase obligations under clause (b), and (ii) based
on amounts drawn but not yet reimbursed in the case of the obligations under clause (c).



     “GAAP” means generally accepted accounting principles in effect in the United States
as 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 from time to time applied on a consistent basis, subject to the
provisions of Section 1.03.



     “GE Capital” means General Electric Capital Corporation, a Delaware corporation.



     “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).



     “Guaranteed Obligations” has the meaning specified in Section 4.01(a).



     “Guarantors” means (a) each Person identified on the signature pages hereto as a
“Guarantor”, (b) each other Person that becomes a Guarantor pursuant to the terms hereof and (c)
with respect to the Obligations consisting of obligations of Subsidiaries under Swap Contracts and
Treasury Management Agreements, the Borrower, in each case together with their successors and
permitted assigns.



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



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



     “Honor Date” has the meaning specified in Section 2.03(c)(i).



14









 





     “Impacted Lender” means any Lender as to which (a) any L/C Issuer has a good faith
belief that the Lender has defaulted in fulfilling its obligations under two or more other
syndicated credit facilities, (b) such Lender or an entity that controls such Lender has been
deemed insolvent or become subject to a bankruptcy or other similar proceeding, or (c) with respect
to which the Federal Deposit Insurance Corporation has been appointed receiver or conservator by a
federal or state chartering authority or otherwise pursuant to the Federal Deposit Insurance Act
(12 U.S.C. § 11(c)).



     “Incremental Credit Facilities” has the meaning specified in Section 2.01(e).



     “Incremental Revolving Loan Facility” has the meaning as specified in Section
2.01(e).



     “Incremental Term Loan B Facility” has the meaning specified in Section
2.01(e).



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




     (a) all Funded Debt;




     (b) all contingent obligations under letters of credit (including standby and
commercial), bankers’ acceptances and similar instruments (including bank guaranties, surety
bonds, comfort letters, keep-well agreements and capital maintenance agreements);




     (c) net obligations under any Swap Contract;




     (d) Support Obligations in respect of Indebtedness of another Person; and




     (e) Indebtedness of any partnership or joint venture or other similar entity in which
such Person is a general partner or joint venturer, and, as such, has personal liability for
such obligations, but only to the extent there is recourse to such Person for payment
thereof.


For purposes hereof, the amount of Indebtedness shall be determined based on Swap Termination Value
in the case of net obligations under Swap Contracts under clause (c).




     “Indemnified Taxes” means Taxes other than Excluded Taxes and Other Taxes.



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



     “Information” has the meaning specified in Section 11.07.



     “Interest Payment Date” means, (a) as to any Base Rate Loan (including Swingline
Loans), the last Business Day of each March, June, September and December, the Revolving
Termination Date and the Term Loan B Maturity Date and, in the case of any Swingline Loan, any
other dates as may be mutually agreed upon by the Borrower and the Swingline Lender, and (b) as to
any Eurodollar Rate Loan, the last Business Day of each Interest Period for such Loan, the date of
repayment of principal of such Loan, the Revolving Termination Date and the Term Loan B Maturity
Date, and in addition, where the applicable Interest Period exceeds three months, the date every
three months after the beginning of such Interest Period.



     “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 (1), two (2), three (3) or six (6) months, or, if requested by the
Borrower and



15









 







available to all of the Lenders providing such Eurodollar Rate Loan, nine (9) months or twelve
(12) months thereafter, as selected by the Borrower in its Loan Notice; provided that:




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




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




     (c) no Interest Period with respect to any Revolving Loan shall extend beyond the
Revolving Termination Date; and




     (d) no Interest Period with respect to any Term Loan shall extend beyond any principal
amortization payment date, except to the extent that the portion of such Loan comprised of
Eurodollar Rate Loans that is expiring prior to or on the applicable principal amortization
payment date plus the portion comprised of Base Rate Loans equals or exceeds the principal
amortization payment then due.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person of (a) the purchase or other acquisition of Capital Stock of another Person, (b) a
loan, advance or capital contribution to, guaranty or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another Person, including any
partnership or joint venture interest in such other Person and any arrangement pursuant to which
the investor undertakes any Support Obligation with respect to Indebtedness of such other Person,
or (c) an Acquisition of another Person. For purposes of covenant compliance, the amount of any
Investment shall be the original cost of such Investment plus the cost of all capital
additions thereto, without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment (other than adjustments for the repayment
of, or the refund of capital with respect to, the original principal amount of any such
Investment).



     “Involuntary Disposition” means the receipt by any member of the Consolidated Group of
any cash insurance proceeds or condemnation awards payable by reason of theft, loss, physical
destruction or damage, taking or similar event with respect to any of its Property, other than
proceeds of business interruption insurance.



     “IP Rights” has the meaning specified in Section 6.20.



     “IRS” means the United States Internal Revenue Service.



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



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



16









 





     “Joint Lead Arrangers” means, BAS, RBC Capital Markets and BNPPSC, in their capacities
as joint lead arrangers and joint book managers.



     “Laws” means, collectively, all applicable 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, licenses, authorizations and permits of, and
agreements with, any Governmental Authority.



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



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



     “L/C Borrowing” means any extension of credit resulting from a drawing under any
Letter of Credit that has not been reimbursed 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 Expiration Date” means the day that is five (5) days prior to the Revolving
Termination Date then in effect (or, if such day is not a Business Day, the immediately preceding
Business Day).



     “L/C Issuer” means (a) as to Existing Letters of Credit, any Revolving Lender
identified as an issuer on Schedule 2.03, and (b) as to Letters of Credit issued hereunder,
(i) Bank of America, (ii) Royal Bank and/or (iii) BNP Paribas, in each case in its capacity as
issuer of Letters of Credit hereunder, together with their respective successors in such capacity.



     “L/C Obligations” means, 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 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 Credit 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.



     “L/C Sublimit” has the meaning specified in Section 2.01(b).



     “Lead Banks” means Bank of America, Royal Bank and BNP Paribas.



     “Lender” means each of the Persons identified as a “Lender” on the signature pages
hereto (and, as appropriate, includes the Swingline Lender) and each Person who joins as a Lender
pursuant to the terms hereof, together with their respective successors and assigns.



     “Lender Joinder Agreement” means a joinder agreement, substantially in the form of
Exhibit 2.01, executed and delivered in accordance with the provisions of Section
2.01(e).




17









 






     “Lending Office” means, as to any Lender, the office or offices of such Lender set
forth 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 each Existing Letter of Credit and each standby letter of
credit issued hereunder.



     “Letter of Credit Fee” has the meaning specified in Section 2.09(b)(i).



     “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 of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other encumbrance on title
to real property and any financing lease having substantially the same economic effect as any of
the foregoing).



     “Loan” means any Revolving Loan or Swingline Loan or Term Loan, and the Base Rate
Loans and Eurodollar Rate Loans comprising such Loans.



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



     “Loan Obligations” means the Revolving Obligations and the Term Loans.



     “Material Adverse Effect” means a material adverse effect on (i) the condition
(financial or otherwise), operations, business, assets or liabilities of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Borrower and the Guarantors to perform their
payment obligations, taken as a whole, under this Credit Agreement and the other Credit Documents
or (iii) the material rights and remedies of the Administrative Agent and the Lenders under this
Credit Agreement and the other Credit Documents.



     “Material Domestic Subsidiary” means a Domestic Subsidiary of the Borrower that is a
Wholly-Owned Subsidiary and has total assets of $1 million or more or whose contribution to
Consolidated EBITDA is $3 million or more.



     “Maximum Rate” has the meaning specified in Section 11.09.



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



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



     “Net Cash Proceeds” means the aggregate proceeds paid in cash or Cash Equivalents
received by any member of the Consolidated Group in connection with any Disposition, Debt
Transaction, Equity Transaction or Securitization Transaction, net of (a) direct costs incurred in
connection therewith (including legal, accounting and investment banking fees and expenses, sales
commissions and underwriting discounts) and (b) estimated taxes paid or payable (including sales,
use or other transactional taxes and any net marginal increase in income taxes) as a result
thereof, and (c) the amount to retire any Indebtedness secured by a Permitted Lien on the related
property, and (d) amounts which are required to be reserved for on the balance sheet or otherwise
required to be placed in escrow unless and until such amounts are no longer required to be subject
to a reserve or are released to the Borrower or one



18









 







or more of its Subsidiaries. For purposes hereof, “Net Cash Proceeds” includes any cash or
Cash Equivalents received upon the disposition of any non-cash consideration received by any member
of the Consolidated Group in any Disposition, Debt Transaction, Equity Transaction or
Securitization Transaction.



     “Non-Consenting Lender” has the meaning specified in Section 11.13.



     “Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii).



     “Notes” means the Revolving Notes, the Swingline Note and the Term Loan Notes.



     “Obligations” means, without duplication, (a) all advances to, and debts, liabilities,
obligations, covenants and duties of, any Credit Party arising under any Credit 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 Credit
Party 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, (b)
all obligations under any Secured Swap Contract between any Credit Party and any Secured Swap
Provider to the extent permitted hereunder and (c) all obligations under any Treasury Management
Agreement between any Credit Party and any Lender or Affiliate of a Lender.



     “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 Credit Document or from the execution, delivery or enforcement of, or otherwise
with respect to, this Credit Agreement or any other Credit Document.



     “Outstanding Amount” means (a) with respect to Revolving Loans and Swingline Loans on
any date, the aggregate outstanding principal amount thereof after giving effect to any Borrowings
and prepayments or repayments of Revolving Loans and Swingline Loans, as the case may be, occurring
on such date; (b) with respect to any L/C Obligations on any date, the aggregate outstanding 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 amount of the L/C Obligations as of such date, including as
a result of any reimbursements by the Borrower of Unreimbursed Amounts; and (c) with respect to the
Term Loans on any date, the aggregate outstanding principal amount thereof after giving effect to
any prepayments or repayments of the Term Loan on such date.



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



     “Patriot Act” has the meaning specified in Section 11.18.



19









 





     “PBGC” means the Pension Benefit Guaranty Corporation.



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



     “Permitted Acquisition” means (a) the Triumph Acquisition, and (b) any Acquisition
that satisfies the following conditions:




     (i) if the Acquisition is of an entity, the business of the entity which is the subject
of the Acquisition shall be in compliance with the provisions of Section 8.08
hereof, and if the Acquisition is of Property, then the Property which is the subject of the
Acquisition shall be used in, or useful to, business as described in Section 8.08;




     (ii) the business or Property which is the subject of the Acquisition shall be located
in the United States or Puerto Rico;




     (iii) if the Acquisition involves an interest in a partnership and a requirement that a
member of the Consolidated Group be a general partner, then the general partner shall be a
special purpose Subsidiary of the Borrower;




     (iv) the Acquisition is permitted under Section 8.02(h);




     (v) in the case of an Acquisition of the Capital Stock of a Person, (i) the board of
directors (or other comparable governing body) of such other Person shall have approved the
Acquisition and (ii) the entity that is the subject of the Acquisition will be a
Wholly-Owned Subsidiary of the Borrower after giving effect thereto; and




     (vi) no Default or Event of Default shall exist immediately before or immediately after
giving effect thereto on a Pro Forma Basis.



     “Permitted Joint Venture Investment” means an Investment in (a) a joint venture, (b) a
Domestic Subsidiary that is not a Wholly-Owned Subsidiary, and (c) loans to any non-affiliated
third parties with whom any member of the Consolidated Group has a contract to provide services;
provided that:




     (i) the business of the party in whom the Investment is made shall be in compliance
with the provisions of Section 8.08 hereof;




     (ii) the business and the property of the party in whom the Investment is made shall be
located in the United States or Puerto Rico; and




     (iii) the Investment is permitted under Section 8.02(h); and




     (iv) no Default or Event of Default shall exist immediately before or immediately after
giving effect thereto on a Pro Forma Basis.



     “Permitted Liens” means Liens permitted pursuant to Section 8.01.



20









 





     “Permitted Refinancing Indebtedness” means any Indebtedness issued or incurred in
exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease
or refund (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous
refinancings thereof constituting Permitted Refinancing Indebtedness); provided that (a)
the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so
Refinanced (plus the principal amount of unfunded commitments relating thereto, unpaid
accrued interest and premium thereon and underwriting discounts, fees, commissions and expenses),
except to the extent that the amount of such Refinanced Indebtedness could otherwise be increased
in accordance with Section 8.03, (b) if the aggregate outstanding principal amount of the
Indebtedness being Refinanced exceeds $10 million, the average life to maturity of such Permitted
Refinancing Indebtedness is greater than or equal to that of the Indebtedness being Refinanced, (c)
if the Indebtedness being Refinanced is subordinated in right of payment to the Loan Obligations
under this Agreement, such Permitted Refinancing Indebtedness shall be subordinated in right of
payment to such Loan Obligations on terms no less favorable in any material respect to the Lenders
(as determined by the Administrative Agent in its reasonable discretion) as those contained in the
documentation governing the Indebtedness being Refinanced, and (d) if the Indebtedness being
Refinanced is secured by any collateral (whether equally and ratably with, or junior to, the
Collateral or otherwise), such Permitted Refinancing Indebtedness may be secured by such collateral
on terms no less favorable to the Lenders in any material respect than those contained in the
documentation governing the Indebtedness being Refinanced (except to the extent such security is
otherwise permitted by Section 8.01).



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



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to
Section 412, Section 430 or Section 431 of the Code or Title IV of ERISA, any ERISA Affiliate.



     “Platform” has the meaning specified in Section 7.02.



     “Pledge Agreement” means the amended and restated pledge agreement dated as of the
Closing Date given by the Credit Parties, as pledgors, to the Collateral Agent to secure the
Obligations, and any other pledge agreements that may be given by any Person pursuant to the terms
hereof, in each case as the same may be amended, restated, amended and restated, supplemented or
otherwise modified from time to time.



     “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, for purposes of calculating the financial covenants in
Section 8.14 (including for purposes of determining the Applicable Percentage or any other
transaction or event under this Credit Agreement, the permissibility or status of which is
determined by reference to the Consolidated Fixed Charge Coverage Ratio, the Consolidated Senior
Leverage Ratio or the Consolidated Total Leverage Ratio), that any transaction or event (including
any Disposition, Involuntary Disposition, Acquisition, Equity Transaction, Debt Transaction or
other incurrence of Indebtedness or Investment in a Permitted Acquisition or a Permitted Joint
Venture Investment) 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 or event



21









 







for which the Borrower has delivered financial statements pursuant to Section 7.01(a)
or (b); provided that (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 which is retired shall be
excluded and deemed to have been retired as of the first day of the applicable period and (b) with
respect to any Acquisition, (i) income statement items attributable to the Person or Property
acquired shall be included to the extent relating to any period applicable in such calculations to
the extent (A) such items are not otherwise included in such income statement items for the
Borrower and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set
forth in Section 1.01 and (B) such items are supported by financial statements or other
information reasonably satisfactory to the Administrative Agent and (ii) any Indebtedness incurred
or assumed by the Borrower or any Subsidiary (including the Person or Property acquired) in
connection with such transaction and any Indebtedness of the Person or Property acquired which 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.



     “Property” means an interest of any kind in any property or asset, whether real,
personal or mixed, and whether tangible or intangible.



     “Public Lender” has the meaning specified in Section 7.02.



     “Refinance” has the meaning assigned to that term in the definition of Permitted
Refinancing Indebtedness.



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



     “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.



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the thirty (30) days’ notice period has been waived.



     “Request for Credit Extension” means (a) with respect to a Borrowing of Loans
(including Swingline Loans), a Loan Notice and (b) with respect to an L/C Credit Extension, a L/C
Application.



     “Required Lenders” means, as of any date of determination, Lenders having more than
fifty percent (50%) of the Aggregate Commitments or, if the Commitments shall have expired or been
terminated, Lenders holding in the aggregate more than fifty percent (50%) of the Loan Obligations
(including, in each case, the aggregate amount of each Lender’s risk participation and funded
participation in L/C Obligations and Swingline Loans); provided that the Commitments of, and the
portion of the Loan Obligations held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.



     “Required Revolving Lenders” means, as of any date of determination, Revolving Lenders
having more than fifty percent (50%) of the Aggregate Revolving Commitments or, if the Revolving
Commitments shall have expired or been terminated, Revolving Lenders holding more than fifty
percent (50%) of the aggregate principal amount of Revolving Obligations; provided that the
Revolving Commitment of, and the portion of Revolving Obligations held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required Revolving Lenders.



22









 









     “Required Term Loan B Lenders” means, as of any date of determination, Term Loan B
Lenders holding more than fifty percent (50%) of the aggregate principal amount of Term Loan B
Commitments; provided that the Term Loan B Commitments held or deemed held by any
Defaulting Lender shall be excluded for purposes of making a determination of Required Term Loan B
Lenders.



     “Responsible Officer” means, for purposes of certifying or confirming matters relating
to Organization Documents, incumbency and like matters, the secretary or assistant secretary, and
for other purposes, the chief executive officer, president, chief financial officer, controller or
treasurer of a Credit Party. Any document delivered hereunder that is signed by a Responsible
Officer of a Credit Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Credit Party and such Responsible
Officer shall be conclusively presumed to have acted on behalf of such Credit Party.



     “Restricted Payment” means (i) all dividends or other distributions (whether in cash,
securities or other property) with respect to any Capital Stock of any member of the Consolidated
Group, (ii) all payments (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Capital Stock or of any option, warrant or other right to
acquire any such Capital Stock, and (iii) all prepayments, redemptions, defeasances, repurchases or
other payments of principal prior to the stated maturity on any Subordinated Debt.



     “Revolving Commitment” means, for each Revolving Lender, the commitment of such
Revolving Lender to make Revolving Loans (and, without duplication, to share in Revolving
Obligations) hereunder.



     “Revolving Commitment Percentage” means, for each Revolving Lender, a fraction
(expressed as a percentage carried to the ninth decimal place), the numerator of which is such
Revolving Lender’s Revolving Committed Amount and the denominator of which is Aggregate Revolving
Committed Amount. The initial Revolving Commitment Percentages are set forth on Schedule
2.01.



     “Revolving Committed Amount” means, for each Revolving Lender, the amount of such
Revolving Lender’s Revolving Commitment. The initial Revolving Committed Amounts are set out in
Schedule 2.01.



     “Revolving Lenders” means those Lenders with Revolving Commitments, together with
their successors and permitted assigns. The initial Revolving Lenders are identified on the
signature pages hereto and are set out in Schedule 2.01.



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



     “Revolving Notes” means the promissory notes, if any, given to evidence the Revolving
Loans, as amended, restated, amended and restated, modified, supplemented, extended, renewed or
replaced. A form of Revolving Note is attached as Exhibit 2.13-1.



     “Revolving Obligations” means the Revolving Loans, the L/C Obligations and the
Swingline Loans.



     “Revolving Termination Date” means November 24, 2014.



23









 





     “Royal Bank” means Royal Bank of Canada, together with its successors.



     “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 the Borrower or any
Subsidiary, any arrangement, directly or indirectly, with any Person (other than a Credit Party)
whereby the Borrower or such Subsidiary shall sell or transfer any property, real or personal, used
or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease
(as a capital lease but not as an operating lease) such property.



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



     “Secured Swap Contract” means any Swap Contract between a Credit Party and a Secured
Swap Provider.



     “Secured Swap Provider” means (a) a Lender or an Affiliate of a Lender (or a Person
who was a Lender or an Affiliate of a Lender at the time of execution and delivery of a Swap
Contract) who has entered into a Swap Contract with any Credit Party, or (b) a Person with whom any
Credit Party has entered into a Swap Contract provided or arranged by GE Capital or an Affiliate of
GE Capital, and any assignee thereof.



     “Securitization Transaction” means any financing or factoring or similar transaction
(or series of such transactions) entered by any member of the Consolidated Group pursuant to which
such member of the Consolidated Group may sell, convey or otherwise transfer, or grant a security
interest in, accounts, payments, receivables, rights to future lease payments or residuals or
similar rights to payment (the “Securitization Receivables”) to a special purpose
subsidiary or affiliate (a “Securitization Subsidiary”) or any other Person.



     “Security Agreement” means the amended and restated security agreement dated as of the
Closing Date given by the Credit Parties, as grantors, to the Collateral Agent to secure the
Obligations, and any other security agreements that may be given by any Person pursuant to the
terms hereof, in each case as the same may be amended, restated, amended and restated, supplemented
or otherwise modified from time to time.



     “Subordinated Debt” means any Indebtedness of a member of the Consolidated Group that
(a) by its terms is expressly subordinated in right of payment to the prior payment of the Loan
Obligations on terms and conditions reasonably satisfactory to the Administrative Agent, and (b) is
evidenced by documentation reasonably acceptable to the Administrative Agent; it being understood
that no more than $15 million of all such Subordinated Debt shall amortize or be mandatorily
payable prior to the Term Loan B Maturity Date and provided that any such amortization or mandatory
payment will be subject to the condition that, in any such case, no Default or Event of Default
shall exist hereunder immediately before or immediately after giving effect thereto on a Pro Forma
Basis.



     “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 securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned. Unless otherwise provided, “Subsidiary” shall refer to a
Subsidiary of the Borrower.



24









 





     “Support Obligations” 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. The amount of any Support
Obligations 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 Support Obligation 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.



     “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, that are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



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



     “Swingline Borrowing” means a borrowing of a Swingline Loan pursuant to
Section 2.01(c).



     “Swingline Lender” means Bank of America in its capacity as such, together with any
successor in such capacity.



     “Swingline Loan” has the meaning specified in Section 2.01(c).



     “Swingline Note” means the promissory note given to evidence the Swingline Loans, as
amended, restated, amended and restated, modified, supplemented, extended, renewed or replaced. A
form of Swingline Note is attached as Exhibit 2.13-2.



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     “Swingline Sublimit” has the meaning specified in Section 2.01(c).



     “Synthetic Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement that is considered
borrowed money indebtedness for tax purposes but is classified as an operating lease under GAAP.



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



     “Term Loans” means the Term Loan B and any term loan established under the Incremental
Credit Facilities.



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



     “Term Loan B Commitment” means, for each Term Loan B Lender, the commitment of such
Term Loan B Lender to make a portion of the Term Loan B hereunder; provided that, at any
time after funding of the Term Loan B, determinations of “Required Lenders” and “Required Term Loan
B Lenders” shall be based on the Outstanding Amount of the Term Loan B.



     “Term Loan B Commitment Percentage” means, for each Term Loan B Lender, a fraction
(expressed as a percentage carried to the ninth decimal place), the numerator of which is, prior to
funding of the Term Loan B, such Term Loan B Lender’s Term Loan B Committed Amount, and after
funding of the Term Loan B, is the principal amount of such Lender’s Term Loan B, and the
denominator of which is, prior to funding of the Term Loan B, the aggregate principal amount of the
Term Loan B Commitments, and after funding of the Term Loan B, the Outstanding Amount of the Term
Loan B. The initial Term Loan B Commitment Percentages are set out in Schedule 2.01.



     “Term Loan B Committed Amount” means, for each Term Loan B Lender, the amount of such
Term Loan B Lender’s Term Loan B Commitment. The initial Term Loan B Committed Amounts are set out
in Schedule 2.01.



     “Term Loan B Lender” means those Lenders with Term Loan B Commitments, together with
their successors and permitted assigns. The initial Term Loan B Lenders are identified on the
signature pages hereto and are set out in Schedule 2.01.



     “Term Loan B Maturity Date” means November 24, 2015.



     “Term Loan B Note” means the promissory notes, if any, given to evidence the Term Loan
B, as amended, restated, amended and restated, modified, supplemented, extended, renewed or
replaced. A form of Term Loan B Note is attached as Exhibit 2.13-3.



     “Term Loan Commitment Percentages” means the Term Loan B Commitment Percentage and the
commitment percentages for any term loan established under the Incremental Credit Facilities.



     “Term Loan Commitments” means (i) the Term Loan B Commitment and (ii) any term loan
commitments established under the Incremental Credit Facilities, provided that in any such
case, at any time after funding of the respective term loan, determinations of “Required Lenders”
and required lenders for the particular tranche of term loan thereby established shall be based on
the Outstanding Amount of the Term Loans.



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     “Term Loan Lenders” means the Term Loan B Lenders and the lenders for any term loan
established under the Incremental Credit Facilities.



     “Term Loan Notes” means the Term Loan B Note and any other promissory notes given to
evidence Term Loans hereunder.



     “Termination Date” has the meaning specified in Section 10.10.



     “Transactions” means the transactions contemplated by the Credit Documents, the
Triumph Merger Agreement and the Ancillary Agreements referred to in the Triumph Merger Agreement.



     “Transaction Documents” means all documents executed and delivered in connection with
the Transactions.



     “Treasury Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, funds transfer, automated
clearinghouse, commercial credit cards, purchasing cards, cardless e-payable services, debit cards,
stored value cards, zero balance accounts, returned check concentration, controlled disbursement,
lockbox, account reconciliation and reporting and trade finance services.



     “Triumph Acquisition” means the acquisition of all of the outstanding capital stock of
Triumph Healthcare pursuant to the Triumph Merger Agreement, whereby RehabCare Merger Sub
Corporation, a newly-formed Delaware corporation controlled directly or indirectly by the Borrower,
will merge with and into Triumph Healthcare.



     “Triumph Healthcare” means Triumph HealthCare Holdings, Inc., a Delaware corporation.



     “Triumph Material Adverse Effect” means a material adverse effect (i) on the business,
assets, condition (financial or otherwise), or results of operations of Triumph Healthcare and its
Subsidiaries (solely for purposes of this definition, as defined in the Triumph Merger Agreement),
taken as a whole, or (ii) on the ability of Triumph Healthcare or any Subsidiary to perform on a
timely basis any material obligation under the Triumph Merger Agreement or to consummate the
transactions contemplated thereby; provided, however, that, with respect to Triumph
Healthcare, none of the following constitute, or will be considered in determining whether there
has occurred, a Material Adverse Effect: (A) changes that are the result of factors generally
affecting the industries or markets in which Triumph Healthcare or any of its Subsidiaries operate
(other than those that have had a materially disproportionate adverse effect relative to other
industry participants on Triumph Healthcare and its Subsidiaries taken as a whole); (B) any adverse
change, effect or circumstance arising out of or resulting from actions contemplated by the parties
in connection with the Triumph Merger Agreement or the pendency or announcement of the transactions
contemplated by the Triumph Merger Agreement, including actions of competitors or any delays or
cancellations for services or losses of employees, physicians, customers or referral sources; (C)
changes in laws, rules or regulations or GAAP (solely for purposes of this definition, as defined
in the Triumph Merger Agreement) or the interpretation thereof; (D) any action taken at the written
request of Parent or Merger Sub (solely for purposes of this definition, as each such term is
defined in the Triumph Merger Agreement); (E) any legal or investment banking fees or expenses, or
severance, bonus, benefit or other change in control payments under specified executive benefits or
employment agreement of Triumph Healthcare, incurred or made in connection with the transactions
contemplated by the Triumph Merger Agreement; (F) any failure of Triumph Healthcare to meet any
projection or forecast prior to the Closing (solely for purposes of this definition, as defined in
the Triumph Merger Agreement) (it being understood that any cause of any such failure may be deemed
to constitute, in and of itself, a Material



27









 







Adverse Effect and may be taken into consideration when determining whether a Material Adverse
Effect has occurred) and (G) changes that are the result of economic factors affecting the
national, regional or world economy or acts of war or terrorism (other than those that have had a
materially disproportionate adverse effect relative to other industry participants on Triumph
Healthcare and its Subsidiaries taken as a whole).



     “Triumph Merger Agreement” means that certain Agreement and Plan of Merger, made and
entered into as of November 3, 2009, by and among the Borrower, RehabCare Group East, Inc., a
Delaware corporation, RehabCare Hospital Holdings, LLC, a Delaware limited liability company,
RehabCare Merger Sub Corporation, a Delaware corporation, Triumph Healthcare, and TA Associates,
Inc., a Delaware corporation in its capacity as the securityholder representative, as amended,
restated, amended and restated, supplemented or otherwise modified from time to time.



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



     “UCC” means the Uniform Commercial Code in effect in any applicable jurisdiction from
time to time.



     “Underwriting Fee Letter” means that certain letter agreement, dated November 3, 2009,
among the Borrower, Bank of America, BAS, Royal Bank, BNP Paribas and BNPPSC, as amended, restated,
amended and restated, supplemented or otherwise modified from time to time.



     “United States” or “U.S.” means 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, Capital Stock issued by such Person
the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such Person, even though the
right so to vote has been suspended by the happening of such a contingency.



     “Wholly-Owned Subsidiary” means, with respect to any direct or indirect Subsidiary of
any Person, that one hundred percent (100%) of the Capital Stock with ordinary voting power issued
by such Subsidiary (other than directors’ qualifying shares and investments by foreign nationals
mandated by applicable Law) is beneficially owned, directly or indirectly, by such Person.



     1.02 Interpretive Provisions.



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




     (a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation”. The word “will” shall be construed to have the same meaning
and effect as the word “shall”. Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, restated, amended and restated, supplemented or
otherwise modified (subject to any restrictions on such amendments,



28









 







restatements, amendments and restatements, supplements or modifications set forth herein or
in any other Credit Document), (ii) any reference herein to any Person shall be construed to
include such Person’s successors and permitted assigns, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used in any
Credit Document, shall be construed to refer to such Credit Document in its entirety and not
to any particular provision thereof, (iv) all references in a Credit Document to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, the Credit 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 Credit Documents are included for
convenience of reference only and shall not affect the interpretation of this Credit
Agreement or any other Credit Document.



     1.03 Accounting Terms and Provisions.



     (a) All accounting terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Credit Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to time, except
as otherwise specifically prescribed herein.



     (b) Notwithstanding any provision herein to the contrary, determinations of (i) the applicable
pricing level under the definition of “Applicable Percentage” and (ii) compliance with the
financial covenants (for any purpose) shall be made on a Pro Forma Basis.



     (c) The Borrower will provide a written summary of material changes in GAAP or in the
consistent application thereof with each annual and quarterly Compliance Certificate delivered in
accordance with Section 7.02(a). If at any time any change in GAAP or in the consistent
application thereof would affect the computation of any financial ratio or requirement set forth in
any Credit Document, and either the Borrower or the Required Lenders shall object in writing to
determining compliance based on such change, then such computations shall continue to be made on a
basis consistent with the most recent financial statements delivered pursuant to Section
7.01(a) or (b) as to which no such objection has been made.



     (d) It is understood and agreed that any recharacterized operating leases on account of a
change in GAAP after the Closing Date shall not be deemed to constitute capital leases for any
purposes under this Credit Agreement (other than the preparation of the financial statements
required by Section 7.01).



     1.04 Rounding.



     Any financial ratios required to be maintained by the Borrower pursuant to this Credit
Agreement



29









 







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 provided, all references herein to times of day shall be references to
Central 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.



     1.07 Business Days.



     When the payment of any obligation or the performance of any covenant, duty or obligation is
stated to be due on a day that is not a Business Day or delivery of any notice, document,
certificate or other writing is stated to be required on a day that is not a Business Day, the date
of such payment, performance or delivery shall extend to the immediately succeeding Business Day
(other than as described in the definition of Interest Period).



ARTICLE II




COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Commitments.



     Subject to the terms and conditions set forth herein:



     (a) Revolving Loans. During the Commitment Period, each Revolving Lender severally
agrees to make revolving credit loans (the “Revolving Loans”) in Dollars to the Borrower on
any Business Day; provided that after giving effect to any such Revolving Loan, (i) with
regard to the Revolving Lenders collectively, the Outstanding Amount of Revolving Obligations shall
not exceed ONE HUNDRED TWENTY-FIVE MILLION DOLLARS ($125,000,000) (as such amount may be increased
or decreased in accordance with the provisions hereof, the “Aggregate Revolving Committed
Amount”), and (ii) with regard to each Revolving Lender individually, such Revolving Lender’s
Revolving Commitment Percentage of Revolving Obligations shall not exceed its respective Revolving
Committed Amount. Revolving Loans may consist of Base Rate Loans, Eurodollar Rate Loans or a
combination thereof, as the Borrower may request, and may be repaid and reborrowed in accordance
with the provisions hereof.



     (b) Letters of Credit. During the Commitment Period, (i) each L/C Issuer, in reliance
upon the commitments of the Revolving Lenders set forth herein and subject to payment of a fronting
fee as provided in Section 2.09(b)(ii), agrees (A) to issue Letters of Credit for the
account of the Borrower or any member of the Consolidated Group on any Business Day, (B) to amend
or extend Letters of Credit



30









 







previously issued by it hereunder, and (C) to honor drawings under Letters of Credit issued by
it; and (ii) the Revolving Lenders severally agree to purchase from each L/C Issuer a participation
interest in the Existing Letters of Credit issued by such L/C Issuer and Letters of Credit issued
hereunder by such L/C Issuer in an amount equal to such Revolving Lender’s Revolving Commitment
Percentage thereof; provided that (A) the Outstanding Amount of L/C Obligations shall not
exceed FORTY MILLION DOLLARS ($40,000,000) (as such amount may be decreased in accordance with the
provisions hereof, the “L/C Sublimit”), (B) with regard to the Revolving Lenders
collectively, the Outstanding Amount of Revolving Obligations shall not exceed the Aggregate
Revolving Committed Amount, and (C) with regard to each Revolving Lender individually, such
Revolving Lender’s Revolving Commitment Percentage of Revolving Obligations shall not exceed its
respective Revolving Committed Amount. 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
obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed. Existing Letters of Credit shall be deemed to have been issued hereunder and
shall be subject to and governed by the terms and conditions hereof.



     (c) Swingline Loans. During the Commitment Period, the Swingline Lender may, in its
sole discretion and in reliance upon the commitments of the other Revolving Lenders set forth
herein, make revolving credit loans (the “Swingline Loans”) to the Borrower on any Business
Day; provided that (i) the Outstanding Amount of Swingline Loans shall not exceed
TWENTY-FIVE MILLION DOLLARS ($25,000,000) (as such amount may be decreased in accordance with the
provisions hereof, the “Swingline Sublimit”) and (ii) with respect to the Revolving Lenders
collectively, the Outstanding Amount of Revolving Obligations shall not exceed the Aggregate
Revolving Committed Amount. Swingline Loans shall be comprised solely of Base Rate Loans, and may
be repaid and reborrowed in accordance with the provisions hereof. Immediately upon the making of
a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swingline Lender a participation interest in such
Swingline Loan in an amount equal to the product of such Revolving Lender’s Revolving Commitment
Percentage thereof.



     (d) Term Loan B. On the Closing Date, the Term Loan B Lenders will make their
respective Term Loan B Commitment Percentage of a term loan (the “Term Loan B”) to the
Borrower in an aggregate principal amount of FOUR HUNDRED FIFTY MILLION DOLLARS ($450,000,000) in a
single advance in Dollars. The Term Loan B will be advanced net of original issue discount as may
be agreed and may consist of Base Rate Loans, Eurodollar Rate Loans, or a combination thereof, as
the Borrower may request. Amounts repaid on the Term Loan B may not be reborrowed.



     (e) Incremental Credit Facilities. At any time on or after the Closing Date, the
Borrower may, on written notice to the Administrative Agent, establish additional credit facilities
(collectively, the “Incremental Credit Facilities”) by increasing the Aggregate Revolving
Committed Amount (the “Incremental Revolving Loan Facility”), increasing the amount of the
Term Loan B (the “Incremental Term Loan B Facility”) or establishing a new term loan or loans as
provided herein; provided that, in any such case:




     (i) the aggregate amount of loans and commitments for all Incremental Credit Facilities
established after the Closing Date hereunder shall not exceed FIFTY MILLION DOLLARS
($50,000,000);




     (ii) no Default or Event of Default shall exist immediately before or immediately after
giving effect thereto on a Pro Forma Basis (assuming for purposes hereof, that the amount of
the incremental commitments is fully drawn and funded);




     (iii) the establishment of the Incremental Credit Facilities and the extension of
credit thereunder are subject to satisfaction of the conditions to all Credit Extensions in
Section 5.02;




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     (iv) the Borrower will provide (A) a compliance certificate from a Responsible Officer
confirming satisfaction of the foregoing conditions in clauses (ii) and (iii) above and
demonstrating compliance with the financial covenants hereunder after giving effect to the
Incremental Credit Facility on a Pro Forma Basis (assuming for purposes hereof, that the
amount of the incremental commitments is fully drawn and funded), and (B) supporting
resolutions, legal opinions, promissory notes and other items as may be reasonably required
by the Administrative Agent and the Lenders providing the loans and commitments for the
Incremental Credit Facility;




     (v) lenders providing loans and commitments for the Incremental Credit Facility will
provide a Lender Joinder Agreement and such other agreements reasonably acceptable to the
Administrative Agent;




     (vi) upfront and/or arrangement fees, if any, in respect of the new commitments or
loans so established, shall be paid; and




     (vii) to the extent necessary in the reasonable judgment of the Administrative Agent,
amendments to each of the Collateral Documents, if any, and related documents or agreements
shall have been made, in each case in a manner reasonably satisfactory to the Administrative
Agent.



In connection with establishment of any Incremental Credit Facility, (A) none of the Lenders or
their Affiliates shall have any obligation to provide commitments or loans for any Incremental
Credit Facility without their prior written approval, (B) neither the Administrative Agent nor any
of the Joint Lead Arrangers shall have any responsibility for arranging any such additional
commitments without their prior written consent and subject to such conditions, including fee
arrangements, as they may provide in connection therewith and (C) Schedule 2.01 will be
deemed to be revised to reflect the Lenders, Loans, Commitments and pro rata shares or percentages
after giving effect to establishment of any Incremental Credit Facility.



     (f) Additional Conditions for Establishment of Incremental Revolving Loan Facility.
In addition to the requirements of Section 2.01(e), establishment of an Incremental
Revolving Loan Facility is subject to the following additional conditions:




     (i) any such increase will be in a minimum principal amount of $20 million and integral
multiples of $500,000 in excess thereof;




     (ii) any new lender providing loans and commitments for the Incremental Revolving Loan
Facilities must be reasonably acceptable to the L/C Issuers and the Swingline Lender; and




     (iii) if any Revolving Loans are outstanding at the time of the establishment of an
Incremental Revolving Loan Facility, the Borrower will make such payments and adjustments on
the Revolving Loans (including payment of any break-funding amounts owing under Section
3.05) as may be necessary to give effect to the revised commitment amounts and
percentages, it being agreed that the Administrative Agent shall, in consultation with the
Borrower, manage the allocation of the revised commitments percentages to the existing
Eurodollar Rate Loans in such a manner as to minimize the break-funding amounts so payable
by the Borrower.



     (g) Additional
Conditions for Establishment of Incremental Term Loan B Facility. In addition
to the requirements of Section 2.01(e), establishment of
an Incremental Term Loan B Facility is
subject to the following additional conditions:



     (i) any such increase will be in a minimum principal amount of $20 million and integral
multiples of $1 million in excess thereof;




32









 












     (ii) the Borrower will make such payments and adjustments on the Term Loan B (including
payment of any break-funding amounts owing under Section 3.05) as may be necessary
to give effect to the revised commitment amounts and percentages, it being agreed that the
Administrative Agent shall, in consultation with the Borrower, manage the allocation of the
revised commitments percentages to the existing Eurodollar Rate Loans in such a manner as to
minimize the break-funding amounts so payable by the Borrower; and




     (iii) in the case of an increase in the amount of the Term Loan B after the first
principal amortization payment date, adjustments will be made to the applicable schedule of
amortization payment provided in Section 2.05(c)(i), as appropriate, to give effect
thereto such that payments of principal, interest and other amounts will be made on the same
basis as for the underlying Term Loan B and the principal amortization payments made to the
holders of the Term Loan B will be not less than that which was payable prior to giving
effect to the Incremental Credit Facility.


Any
Incremental Term Loan B Facility shall have terms identical to those for the existing Term Loan B,
except for fees payable to the Lenders providing commitments for the
Incremental Term Loan B Facility.




     (h) Additional Conditions for Establishment of Other Incremental Term Loan Facilities.
In addition to the requirements of Section 2.01(e), establishment of another term loan is
subject to the following additional conditions:




     (i) any such increase will be in a minimum principal amount of $20 million and integral
multiples of $1 million in excess thereof;




     (ii) if the incremental term loan will be made by way of increasing the aggregate
amount of loans and commitments under another term loan established hereunder, the Borrower
will make such payments and adjustments on the existing term loan (including payment of any
break-funding amounts owing under Section 3.05) as may be necessary to give effect
to the revised commitment amounts and percentages, it being agreed that the Administrative
Agent shall, in consultation with the Borrower, manage the allocation of the revised
commitments percentages to the existing Eurodollar Rate Loans in such a manner as to
minimize the break-funding amounts so payable by the Borrower;




     (iii) the term loan being established will have a final maturity date that is
coterminous with or later than the final maturity date for the Term Loan B and an average
life-to-maturity from the date of issuance not sooner than the average life-to-maturity of
the Term Loan B from such date;




     (iv) in the case of an increase in the amount of another term loan established
hereunder after the first principal amortization payment date, adjustments will be made to
the schedule of amortization payment provided in Section 2.05(c) or in other
documentation establishing the existing underlying term loan, as appropriate, to give effect
thereto such that payments of principal, interest and other amounts will be made on the same
basis as for the existing underlying term loan and the principal amortization payments made
to the holders of the existing underlying term loan will be not less than that which was
payable prior to giving effect to the Incremental Credit Facility;



33









 










     (v) the parties acknowledge that pricing for Incremental Credit Facilities that are
term loans established after the Closing Date may be higher or lower than pricing currently
applicable to the Term Loan B; provided, that if the all-in-yield, after giving
effect to any offering of such term loan at a discount from par or any fees (other than
arrangement fees) paid to the lenders in connection therewith, exceeds the all-in-yield (as
reasonably determined by the Administrative Agent) by more than fifty basis points (0.50%)
with respect to the Term Loan B or any term loan established as an Incremental Credit
Facility hereunder (other than arrangement fees), then the Applicable Percentage and/or fees
payable by the Borrower with respect to the Term Loan B and any such other term loan
established as an Incremental Credit Facility hereunder shall be increased to the extent
necessary to cause the all-in-yield with respect thereto (as calculated above) to be no more
than fifty basis points (0.50%) with respect to either of the Term Loan B or any such other
term loan established as an Incremental Credit Facility hereunder less than, in each case,
the all-in-yield (as calculated above) with respect to any such term loan (with the amount
and manner of such increase to be determined by the Administrative Agent and the Borrower,
in accordance with the foregoing, as of the date of effectiveness of the applicable
Incremental Credit Facility); and




     (vi) except with respect to pricing as provided in clause (v) above or maturity and/or
amortization as provided in clause (iii) above, any additional term loan established
pursuant to this clause (h), shall have terms that are the same or less restrictive
than those for the Term Loan B.


For purposes of this subsection only, the Applicable Percentage for any new term loan established
hereunder will be deemed to include all upfront or similar fees or original issue discount
(amortized over the life of such term loan) payable to all Lenders of such term loans, but
exclusive of any arrangement, structuring or other fees payable in connection therewith that are
not shared with all Lenders of such term loans.



This subsection shall supersede any provisions in Section 2.11 or 11.01 to the
contrary.




     2.02 Borrowings, Conversions and Continuations.



     (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) with respect to Eurodollar Rate Loans, three (3) Business Days
prior to the requested date of, or (ii) with respect to Base Rate Loans, on the requested date of,
any Borrowing, conversion or continuation. 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.
Except as provided in Sections 2.03(c) and 2.04(a), each Borrowing, conversion or
continuation shall be in a principal amount of (i) with respect to Eurodollar Rate Loans, $1
million or a whole multiple of $500,000 in excess thereof (or, if less, the entire unfunded amount
of the Aggregate Revolving Committed Amount) or (ii) with respect to Base Rate Loans, $500,000 or a
whole multiple of $100,000 in excess thereof (or, if less, the entire unfunded amount of the
Aggregate Revolving Committed Amount). Each Loan Notice (whether telephonic or written) shall
specify (i) whether the Borrower’s request is with respect to Revolving Loans or the Term Loan,
(ii) whether such request is for a Borrowing, conversion, or continuation, (iii) the requested date
of such Borrowing, conversion or continuation (which shall be a Business Day), (iv) the principal
amount of Loans to be borrowed, converted or continued, (v) the Type



34









 







of Loans to be borrowed, converted or continued, and (vi) if applicable, the duration of the
Interest Period with respect thereto. If the Borrower fails to specify a Type of 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 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, the Interest Period will be deemed to be one month.



     (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its pro rata share 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 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 such Borrowing there are L/C Borrowings
outstanding, then the proceeds of such Borrowing shall be applied, first, to the payment in
full of any such L/C Borrowings, and second, 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 an Interest Period for such Eurodollar Rate Loan. After the occurrence and
during the continuance of an Event of Default, no Loans may be requested as, converted to or
continued as Eurodollar Rate Loans without the consent of the Required Revolving Lenders or
Required Term Loan B Lenders, as appropriate.



     (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. The determination of the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. 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
promptly following the public announcement of such change.



     (e) After giving effect to all Borrowings, conversions and continuations of Revolving Loans,
there shall not be more than (i) ten (10) Interest Periods in effect with respect to Revolving
Loans, (ii) six (6) Interest Periods in effect with respect to the Term Loan B, and (iii) six (6)
Interest Periods in effect with respect to any other term loan established under the Incremental
Credit Facilities.



     2.03 Additional Provisions with respect to Letters of Credit.



     (a) Obligation to Issue or Amend.




     (i) 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 Required Revolving Lenders have approved such expiry date; or



35









 











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




     (ii) 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 letters of credit generally;




     (C) except as otherwise agreed by the Administrative Agent and such L/C Issuer,
such Letter of Credit is in an initial stated amount less than $500,000;




     (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) any Revolving Lender is at such time an Impacted Lender or a Defaulting
Lender, whether on account of a failure to fund its obligations under Section
2.03(c) or otherwise, unless such Revolving Lender shall have provided Adequate
Assurance.




     (iii) 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.




     (iv) An L/C Issuer shall not be under any 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.




     (v) 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 each 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



36









 







Letters of Credit as fully as if the term “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 an L/C Issuer (with a copy to the Administrative Agent)
in the form of a L/C Application, appropriately completed and signed by a Responsible
Officer of the Borrower. Such L/C Application must be received by the applicable L/C Issuer
and the Administrative Agent not later than 11:00 a.m. at least two (2) Business Days (or
such other date and time as the Administrative Agent and such 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 L/C Application shall specify in form and detail reasonably satisfactory to
such 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 such L/C Issuer may
reasonably require. In the case of a request for an amendment of any outstanding Letter of
Credit, such L/C Application shall specify in form and detail satisfactory to such 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 such L/C Issuer may reasonably require. Additionally, the Borrower shall
furnish to 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 reasonably require.




     (ii) Promptly after receipt of any L/C 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 L/C Application from the Borrower and, if not, such L/C
Issuer will provide the Administrative Agent with a copy thereof. Unless such L/C Issuer
has received written notice from the Required Lenders, the Required Revolving Lenders, the
Administrative Agent or any Credit Party, at least one (1) 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 then be satisfied (in which
case the applicable L/C Issuer shall not issue a Letter a Credit), 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 Revolving Commitment Percentage
times the amount of such Letter of Credit.




     (iii) If the Borrower so requests in any applicable L/C 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 extension at least



37









 







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 such 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 L/C
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 (7) Business Days
before the Non-Extension Notice Date from the Administrative Agent, the Required Lenders,
the Required Revolving Lenders or any Credit Party that one or more of the applicable
conditions specified in Section 5.02 is not then satisfied, and 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 any drawing under any 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 Revolving
Commitment 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 amount
of the unutilized portion of the Aggregate Revolving Committed Amount and the conditions set
forth in Section 5.02 (other than the delivery of a Loan Notice). Any notice given
by an 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 Revolving Commitment
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 Revolving Loan that is a Base Rate Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to the applicable L/C
Issuer.







38









 







     (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 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 Revolving
Commitment Percentage of such amount shall be solely for the account of such L/C Issuer.




     (v) Each Revolving Lender’s obligation to make Revolving Loans or L/C Advances to
reimburse the L/C Issuers 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 any L/C Issuer, the Borrower or any other
Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of
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 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 each 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 an 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 (exclusive of such interest and fees) 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 an 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.



     (d) Repayment of Participations.




     (i) At any time after an 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



39









 







Collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Revolving Lender its Revolving Commitment Percentage thereof
(appropriately adjusted, in the case of interest payments, to reflect the period of time
during which such Revolving Lender’s L/C Advance was outstanding) in the same funds as those
received by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of an 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 Revolving Commitment 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 Credit Agreement.



     (e) Obligations Absolute. The obligation of the Borrower to reimburse each L/C Issuer
for each drawing under each Letter of Credit issued by it 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 Credit Agreement under all circumstances, including the following:




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




     (ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), such L/C Issuer or any other Person, whether in connection with this Credit
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




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


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



40









 









     (f) Role of L/C Issuers. Each Revolving Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, an L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the 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 nor any correspondent, participant or
assignee of any L/C Issuer 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 Required Lenders or the
Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence, bad faith 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 any L/C Issuer shall be liable or responsible for any of
the matters described in clauses (i) through (v) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary notwithstanding,
the Borrower may have a claim against the 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, bad faith 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 no L/C Issuer shall 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 an 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 L/C 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 or enter into some other arrangement
satisfactory to such L/C Issuer in its reasonable discretion to ensure that such L/C Issuer will be
made whole with respect to any such L/C Obligation (any such arrangements, “Alternative
Arrangements”). Sections 2.06 and 9.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. “Cash Collateralize” means to pledge
and deposit with or deliver to the Administrative Agent, for the benefit of the applicable L/C
Issuer 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 such L/C Issuer (which documents are hereby consented to by the Revolving Lenders).
Derivatives of such term have corresponding meanings. The Borrower hereby grants to the Collateral
Agent, for the benefit of the L/C Issuers and the Revolving Lenders, a security interest in all
such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash
Collateral shall be maintained in blocked, non-interest bearing deposit accounts at Bank of
America.



     (h) Applicability of ISP. Unless otherwise expressly agreed by the applicable L/C
Issuer and



41









 







the Borrower when a Letter of Credit is issued (including any such agreement applicable to an
Existing Letter of Credit), the rules of the ISP shall apply to each Letter of Credit.



     (i) 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, any Subsidiary of the Borrower, the Borrower shall be obligated to reimburse the applicable L/C
Issuer 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 the Borrower’s Subsidiaries inures to the
benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the
businesses of such Subsidiaries.



     (j) Letter of Credit Fees. The Borrower shall pay Letter of Credit fees as set forth
in Section 2.09.



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



     (l) Agreement of L/C Issuers. Each L/C Issuer (other than any L/C Issuer with respect
to Existing Letters of Credit) hereby agrees to submit to the Administrative Agent on a monthly
basis a report listing each of the Letters of Credit issued by such L/C Issuer, including
information with respect to each Letter of Credit’s stated amount, Letter of Credit number, expiry
date and beneficiary.



     2.04 Additional Provisions with respect to Swingline Loans.



     (a) Borrowing Procedures. Each Swingline Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swingline Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swingline 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 of $100,000, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the
Swingline Lender and the Administrative Agent of a written Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swingline Lender of
any telephonic Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has also received such Loan Notice and, if
not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swingline Lender has received notice (by telephone or in writing)
from the Administrative Agent (including at the request of the Required Revolving Lenders) prior to
2:00 p.m. on the date of the proposed Swingline Borrowing (A) directing the Swingline Lender not to
make such Swingline Loan as a result of the limitations set forth in this Article II, 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 Swingline Lender will, not later
than 3:00 p.m. on the borrowing date specified in such Loan Notice, make the amount of its
Swingline Loan available to the Borrower at its office by crediting the account of the Borrower on
the books of the Swingline Lender in immediately available funds. The Swingline Lender shall not
be under any obligation to make a Swingline Loan if any Revolving Lender is at such time a Impacted
Lender or a Defaulting Lender, whether on account of a failure to fund its obligations under
Section 2.04(b)(ii) or otherwise, unless such Defaulting Lender shall have provided
Adequate Assurance.



     (b) Refinancing.




     (i) The Swingline Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender to so
request on its behalf), that each Revolving Lender make a Revolving Loan that is a Base Rate



42









 







Loan in an amount equal to such Revolving Lender’s Revolving Commitment Percentage of
Swingline Loans then 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, the unutilized portion of the Aggregate
Revolving Commitments or the conditions set forth in Section 5.02. The Swingline
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 Revolving Commitment Percentage of the amount specified in such Loan
Notice available to the Administrative Agent in immediately available funds for the account
of the Swingline 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 Revolving Loan
that is a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall
remit the funds so received to the Swingline Lender.




     (ii) If for any reason any Swingline Loan cannot be refinanced by such a Borrowing of
Revolving Loans in accordance with Section 2.04(b)(i), the request for Revolving
Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request
by the Swingline Lender that each of the Revolving Lenders fund its risk participation in
the relevant Swingline Loan and each Revolving Lender’s payment to the Administrative Agent
for the account of the Swingline Lender pursuant to Section 2.04(b)(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 Swingline Lender any amount required to be paid by such Revolving Lender
pursuant to the foregoing provisions of this Section 2.04(b) by the time specified
in Section 2.04(b)(i), the Swingline 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 Swingline Lender at a rate per annum equal to
the greater of the Federal Funds Rate and a rate determined by the Swingline Lender in
accordance with banking industry rules on interbank compensation. A certificate of the
Swingline 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 Swingline Loans pursuant to this Section 2.04(b) 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 Swingline Lender, the Borrower or any other Person for any reason whatsoever,
(B) the occurrence or continuance of a Default or Event of Default, (C) non-compliance with
the conditions set forth in Section 5.02, or (D) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided that Swingline
Lender has complied with the provisions of Section 2.04(a). No such purchase or
funding of risk participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swingline Loans, together with interest as provided herein.



43









 





     (c)
Repayment of Participations.





     (i)
At any time after any Revolving Lender has purchased and funded a risk
participation in a Swingline Loan, if the Swingline Lender receives any payment on
account of such Swingline Loan, the Swingline Lender will distribute to such Revolving
Lender its Revolving Commitment Percentage of such payment (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such Revolving
Lender’s risk participation was funded) in the same funds as those received by the Swingline
Lender.




     (ii) If any payment received by the Swingline Lender in respect of principal or
interest on any Swingline Loan is required to be returned by the Swingline Lender under any
of the circumstances described in Section 11.05 (including pursuant to any
settlement entered into by the Swingline Lender in its discretion), each Revolving Lender
shall pay to the Swingline Lender its Revolving Commitment 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 Swingline Lender. The
obligations of the Revolving Lenders under this clause shall survive the Termination Date.



     (d) Interest for Account of Swingline Lender. The Swingline Lender shall be
responsible for invoicing the Borrower for interest on the Swingline Loans. Until each Revolving
Lender funds its Revolving Loan or risk participation pursuant to this Section 2.04 to
refinance such Revolving Lender’s Revolving Commitment Percentage of any Swingline Loan, interest
in respect thereof shall be solely for the account of the Swingline Lender.



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



     2.05 Repayment of Loans.



     (a) Revolving Loans. The principal amount of the Revolving Loans is due and payable
in full on the Revolving Termination Date.



     (b) Swingline Loans. The principal amount of the Swingline Loans is due and payable
in full on the earlier to occur of (i) the date three (3) Business Days following demand by the
Swingline Lender and (ii) the Revolving Termination Date.




44









 




     (c) Term Loans.




     (i) The principal amount of the Term Loan B shall be repaid in quarterly installments
on the dates set forth below as follows (as such amounts set forth may be reduced or
eliminated after giving effect to the application of prepayments under Section
2.06):




	 	 	 	 	 	 	 	 	 	 	 
	 	 	Principal	 	 	 	 	Principal	 
	Date	 	Amortization Payment	 	 	Date	 	Amortization Payment	 
	 
	March 31, 2010
	 	$	1,125,000	 	 	March 31, 2013	 	$	1,125,000	 
	June 30, 2010
	 	$	1,125,000	 	 	June 30, 2013	 	$	1,125,000	 
	September 30, 2010
	 	$	1,125,000	 	 	September 30, 2013	 	$	1,125,000	 
	December 31, 2010
	 	$	1,125,000	 	 	December 31, 2013	 	$	1,125,000	 
	March 31, 2011
	 	$	1,125,000	 	 	March 31, 2014	 	$	1,125,000	 
	June 30, 2011
	 	$	1,125,000	 	 	June 30, 2014	 	$	1,125,000	 
	September 30, 2011
	 	$	1,125,000	 	 	September 30, 2014	 	$	1,125,000	 
	December 31, 2011
	 	$	1,125,000	 	 	December 31, 2014	 	$	1,125,000	 
	March 31, 2012
	 	$	1,125,000	 	 	March 31, 2015	 	$	1,125,000	 
	June 30, 2012
	 	$	1,125,000	 	 	June 30, 2015	 	$	1,125,000	 
	September 30, 2012
	 	$	1,125,000	 	 	September 30, 2015	 	$	1,125,000	 
	December 31, 2012
	 	$	1,125,000	 	 	Term Loan B Maturity Date	 	$	424,125,000	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Total:	 	$	450,000,000	 
	 
	 	 	 	 	 	 	 	 	 






     (ii) Incremental Credit Facilities. The Borrower shall repay to the Lenders
the outstanding principal amount of loans under the Incremental Credit Facilities, if any,
as provided in the respective documentation establishing such Incremental Credit Facilities.



     2.06 Prepayments.



     (a) Voluntary Prepayments. The Loans may be repaid in whole or in part without
premium or penalty (except, in the case of Loans other than Base Rate Loans, amounts payable
pursuant to Section 3.05); provided that:




     (i) in the case of Loans other than Swingline Loans, (A) notice thereof must be
received by 11:00 a.m. by the Administrative Agent at least three (3) Business Days prior to
the date of prepayment, in the case of Eurodollar Rate Loans, and one (1) Business Day prior
to the date of prepayment, in the case of Base Rate Loans, (B) any such prepayment shall be
in a minimum principal amount of $5 million and integral multiples of $1 million in excess
thereof, in the case of Eurodollar Rate Loans and $500,000 and integral multiples of
$100,000 in excess thereof, in the case of Base Rate Loans, or, in each case, the entire
remaining principal amount thereof, if less; and




     (ii) in the case of Swingline Loans, (A) notice thereof must be received by the
Swingline Lender by 1:00 p.m. on the date of prepayment (with a copy to the Administrative
Agent), and (B) any such prepayment shall be in the same minimum principal amounts as for
advances thereof (or any lesser amount that may be acceptable to the Swingline Lender).


Each such notice of voluntary prepayment hereunder shall be irrevocable (except as provided below)
and shall specify the date and amount of prepayment and the Loans and Types of Loans that are being
prepaid, and, if Eurodollar Rate Loans are to be prepaid, the Interest Periods therefor. Any
notice delivered under this Section 2.06(a) in connection with an abandoned or delayed refinancing
of, amendment, restatement, amendment and restatement, extension, supplement or other modification
to the Loans or the Credit Documents, as applicable, may be revoked by written or telephonic notice
to the Administrative Agent on or prior to the applicable proposed prepayment date. The
Administrative Agent will give prompt notice to the applicable Lenders of any prepayment on the
Loans and each Lender’s interest therein. Prepayments of Eurodollar Rate Loans hereunder shall be
accompanied by accrued interest on the amount prepaid and breakage or other amounts due, if any,
under Section 3.05.



45









 









     (b) Mandatory Prepayments.




     (i) Revolving Commitments. If at any time (A) the Outstanding Amount of
Revolving Obligations shall exceed the Aggregate Revolving Committed Amount, (B) the
Outstanding Amount of L/C Obligations shall exceed the L/C Sublimit, or (C) the Outstanding
Amount of Swingline Loans shall exceed the Swingline Sublimit, immediate prepayment will be
made on or in respect of the Revolving Obligations in an amount equal to such excess;
provided, however, that, except with respect to clause (B), L/C Obligations
will not be Cash Collateralized hereunder until the Revolving Loans and Swingline Loans have
been paid in full.




     (ii) Dispositions and Involuntary Dispositions. Prepayment will be made on the
Loan Obligations no later than the tenth (10th) Business Day following receipt of
Net Cash Proceeds required to be prepaid pursuant to the provisions hereof in an amount
equal to one hundred percent (100%) of the Net Cash Proceeds received from any Disposition
(other than as may be permitted under clauses (a), (c)(i), (e)
through (i), and (k) through (m) of Section 8.05) or
Involuntary Disposition by any member of the Consolidated Group, to the extent (A) such
proceeds are not reinvested in the same or similar properties or assets within 270 days of
the date of receipt of such Net Cash Proceeds and (B) the aggregate amount of such proceeds
that are not reinvested in accordance with clause (A) hereof exceeds (1) $10 million
for any transaction or series of related transactions, (2) $20 million in any fiscal year
and (3) $50 million in the aggregate for all such transactions from the Closing Date.




     (iii) Debt Transactions. Where the Consolidated Total Leverage Ratio is equal
to or greater than 2.25:1.0 after giving effect thereto on a Pro Forma Basis and the
application of the Net Cash Proceeds thereof, prepayment will be made on the Loan
Obligations in an amount equal to one hundred percent (100%) of the Net Cash Proceeds from
any Debt Transactions no later than the tenth (10th) Business Day following
receipt thereof; provided that the mandatory prepayment required under this
clause (iii) with respect to Funded Debt permitted under Section 8.03(i)
shall be reduced in an amount equal to the portion of Net Cash Proceeds used to fund
Permitted Acquisitions and Permitted Joint Venture Investments within ten (10) Business Days
of receipt thereof.




     (iv) Equity Transactions. Where the Consolidated Total Leverage Ratio is equal
to or greater than 2.25:1.0 after giving effect thereto on a Pro Forma Basis and the
application of the Net Cash Proceeds thereof, prepayment will be made on the Loan
Obligations in an amount equal to fifty percent (50%) of the Net Cash Proceeds from any
Equity Transactions no later than the tenth (10th) Business Day following receipt
thereof; provided that the mandatory prepayment required under this clause
(iv) shall be reduced in an amount equal to the portion of Net Cash Proceeds used to
fund Permitted Acquisitions and Permitted Joint Venture Investments within ten (10) Business
Days of receipt thereof.





46









 





     (v) Consolidated Excess Cash Flow. Commencing with the date of delivery of the
Compliance Certificate delivered with respect to fiscal year ending December 31, 2010,
prepayment will be made on the Loan Obligations, on the third Business Day following
delivery of each annual Compliance Certificate delivered under Section 7.02(a) from
Consolidated Excess Cash Flow in an amount equal to the percentage as shown below:




	 	 	 
	 	 	Percentage of Consolidated Excess Cash
	Consolidated Total Leverage Ratio	 	Flow
	 
	> 2.25:1.0
	 	50.0%
	> 1.75:1.0, but
<  2.25:1.0
	 	25.0%
	< 1.75:1.0
	 	     0%







; provided, that the amount of mandatory prepayments required with respect to any
fiscal year required under this clause (v) shall be reduced by the amount of (A) any
voluntary prepayments on the Term Loans pursuant to Section 2.06(a) and (B)
voluntary prepayment on the Revolving Obligations pursuant to Section 2.06(a) that
are accompanied by a permanent reduction in Revolving Commitments pursuant to Section
2.07, in each case made at any time during such fiscal year or (without duplication)
after the end of such fiscal year and prior to the date any such prepayment is required
under this clause (v).



     (c) Application. Within each Loan, prepayments will be applied first to Base Rate
Loans, then to Eurodollar Rate Loans in direct order of Interest Period maturities. In addition:




     (i) Voluntary Prepayments. Voluntary prepayments will be applied as specified
in writing by the Borrower; provided that:




     (A) in the case of prepayments on the Term Loans, the prepayments will be
applied on a pro rata basis to the Term Loan B and any other term loan established
after the Closing Date under the Incremental Credit Facility until paid in full; and




     (B) in the case of prepayments on any Term Loan, the prepayments will be
applied to remaining principal installments thereunder as directed in writing by the
Borrower.




     (ii) Mandatory Prepayments. Mandatory prepayments will be applied as follows:




     (A) Mandatory prepayments in respect of the Revolving Commitments under
subsection (b)(i) above shall be applied to the respective Revolving
Obligations as appropriate.




     (B) Mandatory prepayments in respect of Dispositions and Involuntary
Dispositions under subsection (b)(ii) above, Debt Transactions under
subsection (b)(iii), Equity Transactions under subsection (b)(iv),
and Consolidated Excess Cash Flow under subsection (b)(v) shall be applied
as follows: first, on a pro rata basis to the Term Loans, until paid in full, and
then to the Revolving Obligations. Mandatory prepayments on the Term Loans will be
applied on a pro rata basis among the Term Loans to remaining principal installments
thereunder in direct order of maturity. Mandatory prepayments on the Revolving
Obligations will be applied, first, to the repayment of outstanding Swingline Loans
(without a reduction in the Swingline Sublimit), second, to the repayment of the
outstanding Revolving Loans (without a reduction in the Revolving Commitments or the
Aggregate Revolving Committed Amount) and, third, to Cash Collateralize the L/C
Obligations.




     (iii) Prepayments on the Loan Obligations will be paid by the Administrative Agent to
the Lenders ratably in accordance with their respective interests therein (except for
Defaulting Lenders where their share will be held as provided in Section 2.14(a)
hereof).



47









 





     (d) Option to Decline. The Borrower shall notify the Administrative Agent in writing
of any mandatory prepayment of the Term Loans required to be made pursuant to clauses (ii) through
(v), inclusive, of Section 2.06(b) at least three (3) Business Days prior to the date of such
prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably
detailed calculation of the amount of such prepayment. The Administrative Agent will promptly
notify each of the applicable Term Loan Lenders of the contents of any such prepayment notice and
of its Term Loan Commitment Percentage of the prepayment. Any such Term Loan Lender may elect to
decline its share of the prepayment (a “Declining Lender”, and any such Term Loan Lender
that is not a Declining Lender, an “Accepting Lender”) by delivering written notice of its
election to the Administrative Agent not less than two (2) Business Days prior to the proposed
prepayment date. Any such prepayment amounts that are so declined may be retained by the Borrower.



     2.07 Termination or Reduction of Revolving Commitments.



     The Revolving Commitments hereunder may be permanently reduced in whole or in part by notice
from the Borrower to the Administrative Agent; provided that (i) any such notice thereof
must be received by 11:00 a.m. at least three (3) Business Days prior to the date of reduction or
termination and any such reduction shall be in a minimum principal amount of $5 million and
integral multiples of $1 million in excess thereof; and (ii) the Revolving Commitments may not be
reduced to an amount less than the Revolving Obligations then outstanding thereunder (after giving
effect to any Cash Collateralization or Alternative Arrangements). The Administrative Agent will
give prompt notice to the Revolving Lenders of any such reduction in Revolving Commitments. Except
as provided in Section 2.14, any reduction of Revolving Commitments shall be applied
ratably to the commitment of each Revolving Lender according to its commitment percentage thereof.
All commitment or other fees accrued with respect thereto through the effective date of any
termination of Revolving Commitments shall be paid on the effective date of such termination.



     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 Eurodollar Rate for such Interest Period plus the Applicable
Percentage; (ii) each Loan that is a Base Rate Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base
Rate plus the Applicable Percentage; and (iii) each Swingline 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 Percentage.




(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 Law.




     (ii) During the continuance of an Event of Default under Section 9.01(f), the
Borrower shall pay interest on the principal amount of all outstanding Loans hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Law.




     (iii) During the continuance of an Event of Default other than an Event of Default
under Section 9.01(f), the Borrower shall, upon the written request of the Required
Lenders, pay interest on the principal amount of all outstanding Loans hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Law.



48









 






     (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.



     (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Lender (other than a Defaulting Lender which shall be dealt with as
provided in Section 2.14) in accordance with its Revolving Commitment Percentage, a
commitment fee equal to the Applicable Percentage of the actual daily amount by which the Aggregate
Revolving Committed Amount exceeds the sum of (i) the Outstanding Amount of Revolving Loans
plus (ii) the Outstanding Amount of L/C Obligations. The commitment fee shall accrue at
all times during the Commitment 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 Revolving Termination Date. The commitment fee
shall be calculated quarterly in arrears, and if there is any change in the Applicable Percentage
during any quarter, the actual daily amount shall be computed and multiplied by the Applicable
Percentage separately for each period during such quarter that such Applicable Percentage was in
effect. For purposes hereof, Swingline Loans shall not be counted toward or be considered as usage
of the Aggregate Revolving Committed Amount.



     (b) Letter of Credit Fees.




     (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent
for the account of each Revolving Lender (other than a Defaulting Lender which shall be
dealt with as provided in Section 2.14) in accordance with its Revolving Commitment
Percentage a Letter of Credit fee for each Letter of Credit equal to the Applicable
Percentage multiplied by the daily maximum amount available to be drawn under such
Letter of Credit (the “Letter of Credit Fees”). 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. The Letter of Credit Fees
shall be computed on a quarterly basis in arrears, and shall be due and payable on the last
Business Day of each March, June, September and December, commencing with the first such
date to occur after the issuance of such Letter of Credit, on the L/C Expiration Date and
thereafter on demand. If there is any change in the Applicable Percentage during any
quarter, the daily amount available to be drawn under each Letter of Credit shall be
computed and multiplied by the Applicable Percentage separately for each period during such
quarter that such Applicable Percentage was in effect. Notwithstanding anything to the
contrary contained herein, during the continuance of an Event of Default under Section
9.01(f), all Letter of Credit Fees shall accrue at the Default Rate, and during the
continuance of an Event of Default other than an Event of Default under Section
9.01(f), then upon the request of the Required Revolving Lenders, all Letter of Credit
Fees shall accrue at the Default Rate.




     (ii) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuers. The Borrower shall pay directly to the each L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit issued by it, at the rate per annum as
agreed in writing between the Borrower and such L/C Issuer, computed on the daily amount
available to be drawn under



49









 







such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due
and payable on the last Business Day 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 L/C 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 each 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 issued by it as from time to time in effect.
Such customary fees and standard costs and charges are due and payable on demand and are
nonrefundable.



     (c) Other Fees.




     (i) The Borrower shall pay to the Joint Lead 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, except as otherwise expressly provided therein.




     (ii) The Borrower shall pay to the Lenders such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever, except as
otherwise expressly provided therein.



     2.10 Computation of Interest and Fees; Retroactive Adjustment of Applicable
Percentage.



     (a) All computations of interest for Base Rate Loans shall be made on the basis of a year of
three hundred sixty-five (365) or three hundred sixty-six (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
three hundred sixty (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 three hundred sixty-five (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 2.11(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 (other than as a result of a change in GAAP (or the consistent application thereof) or
as a result of the re-classification of an item on the Borrower’s financial statements on account
of a change in GAAP), 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 retroactively be obligated to pay to the Administrative Agent
for the account of the applicable Lenders and/or the applicable L/C Issuers, as the case may be,
promptly following written demand from the Administrative Agent and including the basis, in
reasonable detail, for such demand (or, after the occurrence of an actual or deemed entry of an
order for relief with respect to any 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



50









 







period. This paragraph shall not limit the rights of the Administrative Agent, any Lender or
the any L/C Issuer, as the case may be, under Section 2.03(c)(iii), 2.03(j),
2.08(b), 2.09 or under Article IX. The Borrower’s obligations under this
paragraph shall survive the Termination Date, but only if the events described in Section
11.05 occur.



     2.11 Payments Generally; Administrative Agent’s Clawback.



     (a) General. Except as otherwise expressly provided herein, 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 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 pro rata share 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 immediately succeeding Business Day and any applicable
interest or fee shall continue to accrue.




     (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 date on which
any payment is due to the Administrative Agent for the account of the Lenders or any L/C
Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or any 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



51









 







the Lenders or such 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) Obligation of the Lenders Several. The obligations of the Lenders hereunder to
make Loans, to fund participations in Letters of Credit and Swingline Loans (as to Revolving
Lenders) 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) Allocation of Funds. If at any time insufficient funds are received by or are
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 costs
and expenses reimbursable by the Borrower pursuant to Section 11.04 (including all
reasonable fees, expenses and disbursements of legal counsel as provided therein and amounts
payable under Article III) incurred by the Administrative Agent and each Lender,
(ii) second, toward repayment 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 (iii) third, toward repayment 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.



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




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     (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 Credit
Agreement, (B) any amounts applied by the Swingline Lender to outstanding Swingline Loans,
(C) any amounts applied to L/C Obligations by any L/C Issuer or Swingline Loans by the
Swingline Lender, as appropriate, from Cash Collateral or other Adequate Assurance provided
under Section 2.14(c), or (D) 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 Swingline Loans to any assignee or participant.


Each Credit 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 Credit Party rights of setoff and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of such Credit Party in the
amount of such participation to the extent a Lender would otherwise be entitled to do so hereunder.




     2.13 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. The Borrower shall execute and deliver to the Administrative Agent a
Note for each Lender which requests one, which shall evidence such Lender’s Loans in addition to
such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.



     (b) In addition to the accounts and records referred to in subsection (a), each Lender
and the Administrative Agent shall maintain in accordance with its usual practice accounts or
records evidencing the purchases and sales by such Lender of participations in Letters of Credit
and Swingline 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.



     2.14 Defaulting and Impacted Lenders.



     (a) Defaulting Lenders. Notwithstanding anything contained herein to the contrary, in
the case of a Defaulting Lender:




     (i) any L/C Issuer may require the Borrower or Defaulting Lender to provide Adequate
Assurance, which may include cash collateral, for the Defaulting Lender’s share of the



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L/C
Obligations as a condition to the issuance or extension of Letters of Credit, as referenced
in Section 2.03(a)(ii)(F) and as provided in Section 2.14(c) hereof;




     (ii) the Swingline Lender may require the Borrower or Defaulting Lender to provide
Adequate Assurance, which may include cash collateral, for the Defaulting Lender’s share of
the Swingline Loans as a condition to the making or extension of Swingline Loans, as
referenced in Section 2.04(a)and as provided in Section 2.14(c) hereof;




     (iii) the Defaulting Lender may be replaced as provided in Section 11.13;




     (iv) all payments of principal and interest owing to a Defaulting Lender will be paid
into an account or subaccount with the Administrative Agent for the benefit of the
Defaulting Lender (collectively, the “Defaulting Lender Account”) and held to secure
the Defaulting Lender’s obligations hereunder. Amounts held in the Defaulting Lender
Account will be used, first, to reimburse the Administrative Agent and Collateral
Agent for the Defaulting Lender’s share of fees and expenses to the extent then unpaid,
second, as cash collateral for the Defaulting Lender’s share of outstanding L/C
Obligations and Swingline Loans (allocated across such Obligations ratably), third,
to fund the Defaulting Lender’s share of Revolving Loan advances, fourth, as cash
collateral for the Defaulting Lender’s unfunded share the of Revolving Commitments. Any
amounts remaining in the Defaulting Lender Account after payment in full of the Defaulting
Lender’s obligations and termination of the commitments under this Credit Agreement and the
other Credit Documents will be paid over to the Defaulting Lender;




     (v) the Defaulting Lender shall not be entitled to vote or receive a commitment fee,
facility fee or Letter of Credit fee hereunder for so long as it shall be a Defaulting
Lender (and the Borrower shall be entitled to retain such fees); and




     (vi) the Borrower may (in its discretion) apply all or any portion to be specified by
the Borrower of any optional reduction of unused Commitments under Section 2.07 to
the unused Commitments of any such Defaulting Lender as specified by the Borrower before
applying any remaining reduction to all Lenders in the manner otherwise specified in
Section 2.07.



     (b) Impacted Lenders. Notwithstanding anything contained herein to the contrary, in
the case of an Impacted Lender:




     (i) any L/C Issuer may require the Borrower or Impacted Lender to provide Adequate
Assurance, which may include cash collateral, for the Impacted Lender’s share of the L/C
Obligations as a condition to the issuance or extension of Letters of Credit, as referenced
in Section 2.03(a)(ii)(F) and as provided in Section 2.14(c) hereof;




     (ii) the Swingline Lender may require the Borrower or Impacted Lender to provide
Adequate Assurance, which may include cash collateral, for the Impacted Lender’s share of
the Swingline Loans as a condition to the making or extension of Swingline Loans, as
referenced in Section 2.04(a)and as provided in Section 2.14(c) hereof; and




     (iii) the Impacted Lender may be replaced as provided in Section 11.13; and




     (iv) the Borrower may (in its discretion) apply all or any portion to be specified by
the Borrower of any optional reduction of unused Revolving Commitments under Section
2.07 to
the unused Revolving Commitments of any such Impacted Lender as specified by the Borrower
before applying any remaining reduction to all Revolving Lenders in
the manner otherwise specified in Section 2.07.




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     (c) Provision of Cash Collateral and Adequate Assurance. Where cash collateral or
other Adequate Assurance is provided in respect of the obligations of a Defaulting Lender or a
Impacted Lender, the cash collateral will be held in a blocked non-interest bearing deposit account
with the applicable L/C Issuer or Swingline Lender, as appropriate, to secure the obligations of
the Defaulting Lender or Impacted Lender to such L/C Issuer or Swingline Lender, as appropriate,
and the Borrower, the Defaulting Lender, the Impacted Lender or other party providing the cash
collateral or other Adequate Assurance pledges and grants a security interest therein to the
applicable L/C Issuer or Swingline Lender, as appropriate.



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 Borrower hereunder or under any
other Credit 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 the
Borrower 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 the Borrower 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 Borrower or the Administrative Agent shall be required by the 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 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 Borrower 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, each Lender or each
L/C 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 Borrower. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable Laws.



     (c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or
(b) above, the Borrower shall, and does hereby, indemnify the Administrative Agent, each Lender and
each L/C Issuer, and shall make payment in respect thereof within 10 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
Borrower or the Administrative Agent or paid by the Administrative Agent, such Lender or each
L/C Issuer, as the case may be, and any penalties, interest, both without duplication, and
reasonable expenses



55









 







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 Borrower shall also, and does hereby, indemnify the Administrative Agent, and shall
make payment in respect thereof within 10 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 Borrower and the Administrative Agent,
and shall make payment in respect thereof within ten (10) days after demand therefor,
against any and all Taxes and any and all related losses, claims, liabilities, penalties,
interest, both without duplication, 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 Credit
Agreement or any other Credit 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 Aggregate Commitments and
the repayment, satisfaction or discharge of all other Obligations.



     (d) Evidence of Payments. Upon request by the Borrower or the Administrative Agent,
as the case may be, after any payment of Taxes by the Borrower or the Administrative Agent to a
Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to the Borrower, 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 the Borrower or the Administrative Agent, as the case may be.



     (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 Credit 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 Credit 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 Code shall deliver to the Borrower and the Administrative Agent executed



56









 







originals of IRS Form W-9 (or any successor form) 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 Code or any applicable treaty to an
exemption from or reduction of withholding tax with respect to payments hereunder or under
any other Credit Document shall deliver to the Borrower and the Administrative Agent (in
such number of originals as shall be requested by the recipient) on or prior to the date on
which such Foreign Lender becomes a Lender under this Credit 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 IRS Form W-8BEN (or any successor form) claiming
eligibility for benefits of an income tax treaty to which the United States is a
party,




     (II) executed originals of IRS Form W-8ECI (or any successor form),




     (III) executed originals of IRS Form W-8IMY (or any successor form) 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 Code, (x) a certificate to the effect
that such Foreign Lender is not (A) a “bank” within the meaning of section
881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the
meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code and (y) two executed
originals of IRS Form W-8BEN (or any successor form), 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 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 as to which it has been indemnified by the Borrower or with
respect to which the



57









 







Borrower has paid additional amounts pursuant to this Section, it shall pay to
the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower 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 the Borrower, upon the request of the Administrative Agent, such Lender or such L/C Issuer,
agrees to repay the amount paid over to the Borrower (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
Base 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, from the date of
such notice to the date such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist (which such Lender shall do
promptly after such determination):




     (a) any obligation of such Lender to make or continue Eurodollar Rate Loans in Dollars
or to convert Base Rate Loans to Eurodollar Rate Loans in Dollars shall be suspended and the
Borrower shall, upon written demand from such Lender (with a copy to the Administrative
Agent), at Borrower’s option either prepay such Eurodollar Loans or convert all Eurodollar
Rate Loans of such Lender to Base Rate Loans (with the Base Rate determined other than by
reference to the Eurodollar Rate), 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; and




     (b) if such notice relates to the unlawfulness or asserted unlawfulness of charging
interest based on the Daily Floating Eurodollar Rate, then all Base Rate Loans shall accrue
interest at a Base Rate determined without reference to the Daily Floating Eurodollar 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 in good faith 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 in connection with the Daily Floating Eurodollar
Rate, or (c) the Eurodollar Base
Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does
not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative
Agent will



58









 







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, which instruction shall be given by the Required Lenders,
as soon as the circumstances described in this Section 3.03 no longer exist) 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 Cost; Capital Adequacy.



     (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; or




     (ii) subject any Lender or any L/C Issuer to any tax of any kind whatsoever with
respect to this Credit 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 any 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 any 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 Credit 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, in accordance with clause (c) below, 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 in good faith
that any Change in Law affecting such Lender or any L/C Issuer or any Lending Office of such Lender
or such Lender’s or 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 Credit Agreement, the Revolving 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 in accordance with clause (c) below 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.



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     (c) Certificates for Reimbursement. A certificate of a Lender or such 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 in reasonable detail 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 (10) Business Days after receipt thereof.



     (d) Delay in Requests. Failure or delay on the part of any Lender or 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 written 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 Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);



     (b) any failure by the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Borrower, except as provided in Section 3.02; 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;


including any loss of anticipated profits (other than loss of the Applicable Percentage) 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.




     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



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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 or if any
Lender gives a notice pursuant to Section 3.02, the Borrower may replace such Lender in
accordance with Section 11.13.



     3.07 Survival.



     All of the Borrower’s obligations under this Article III shall survive the Termination
Date and the resignation of the Administrative Agent.



ARTICLE IV




GUARANTY




     4.01 The Guaranty.



     (a) Each of the Guarantors hereby jointly and severally guarantees to the Administrative Agent
and each of the holders of the Obligations, as hereinafter provided, as primary obligor and not as
surety, the prompt payment of the Obligations (the “Guaranteed 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 Guaranteed 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 Guaranteed Obligations, the same will be promptly paid in full when due
(whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) in accordance with the terms of such extension or renewal.



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



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     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 Credit Documents or other documents relating to the Obligations, or any substitution,
compromise, release, impairment or exchange of any other guarantee of or security for any of the
Guaranteed 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 (other than, where appropriate and subject to the provisions
hereof, a defense that the Guaranteed Obligations have been paid in full and the commitments
relating thereto shall have expired or been terminated) and , 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 Termination
Date has occurred. 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 Guaranteed 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 Credit Documents, or
other documents relating to the Guaranteed Obligations or any other agreement or instrument
referred to therein shall be done or omitted;



     (c) the maturity of any of the Guaranteed 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 Credit Documents or other documents relating to the Guaranteed Obligations, or any other
agreement or instrument referred to therein shall be waived or any other guarantee of any of the
Guaranteed 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 of the holders of the
Guaranteed Obligations as security for any of the Guaranteed Obligations shall fail to attach or be
perfected; or



     (e) any of the Guaranteed 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, to the extent permitted by applicable law, each
Guarantor hereby expressly waives diligence, presentment, demand of payment, protest notice of
acceptance of the guaranty given hereby and of extensions of credit that may constitute obligations
guaranteed hereby, notices of amendments, waivers and supplements to the Credit Documents and other
documents relating to the Guaranteed Obligations, or the compromise, release or exchange of
collateral or security, and all notices whatsoever, and any requirement that the Administrative
Agent or any holder of the Guaranteed Obligations exhaust any right, power or remedy or proceed
against any Person under any of the Credit Documents or any other documents relating to the
Guaranteed Obligations or any other agreement or instrument referred to therein, or against any
other Person under any other guarantee of, or security for, any of the Obligations.



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     4.03 Reinstatement.



     Neither the Guarantors’ obligations hereunder nor any remedy for the enforcement thereof shall
be impaired, modified, changed or released in any manner whatsoever by an impairment, modification,
change, release or limitation of the liability of the Borrower, by reason of the Borrower’s
bankruptcy or insolvency or by reason of the invalidity or unenforceability of all or any portion
of the Guaranteed Obligations. 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 Guaranteed Obligations is rescinded or must be otherwise
restored by any holder of any of the Obligations, whether as a result of any proceedings pursuant
to any Debtor Relief Law or otherwise.



     4.04 Certain Waivers.



     Each Guarantor acknowledges and agrees that (a) the guaranty given hereby may be enforced
without the necessity of resorting to or otherwise exhausting remedies in respect of any other
security or collateral interests, and without the necessity at any time of having to take recourse
against the Borrower hereunder or against any collateral securing the Guaranteed Obligations or
otherwise, (b) it will not assert any right to require the action first be taken against the
Borrower or any other Person (including any co-guarantor) or pursuit of any other remedy or
enforcement any other right and (c) nothing contained herein shall prevent or limit action being
taken against the Borrower hereunder, under the other Credit Documents or the other documents and
agreements relating to the Guaranteed Obligations or from foreclosing on any security or collateral
interests relating hereto or thereto, or from exercising any other rights or remedies available in
respect thereof, if neither the Borrower nor the Guarantors shall timely perform their obligations,
and the exercise of any such rights and completion of any such foreclosure proceedings shall not
constitute a discharge of the Guarantors’ obligations hereunder unless as a result thereof, the
Termination Date shall have occurred, it being the purpose and intent that the Guarantors’
obligations hereunder be absolute, irrevocable, independent and unconditional under all
circumstances.



     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 holders of the Guaranteed Obligations, on the
other hand, the Guaranteed Obligations may be declared to be forthwith due and payable as provided
in Section 9.02 (and shall be deemed to have become automatically due and payable in the
circumstances provided in Section 9.02) for purposes of Section 4.01,
notwithstanding any stay, injunction or other prohibition preventing such declaration (or
preventing the Guaranteed Obligations from becoming automatically due and payable) as against any
other Person and that, in the event of such declaration (or the Guaranteed Obligations being deemed
to have become automatically due and payable), the Guaranteed 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 the Guaranteed Obligations are
secured in accordance with the terms of the Collateral Documents and that the holders of the
Guaranteed Obligations may exercise their remedies thereunder in accordance with the terms thereof.



     4.06 Rights of Contribution.



     The Guarantors hereby agree as among themselves that, in connection with payments made
hereunder, each Guarantor shall have a right of contribution from each other Guarantor in
accordance with applicable Law. Such contribution rights shall be subordinate and subject in right
of payment to the



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Guaranteed Obligations until such time as the Termination Date has occurred, and
none of the Guarantors
shall exercise any such contribution rights until the Termination Date has occurred.



     4.07 Guaranty of Payment; Continuing Guaranty.



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



ARTICLE V




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     5.01 Conditions to Initial Credit Extensions.



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



     (a) Executed Credit Documents. The Administrative Agent’s receipt of counterparts of
this Credit Agreement, the Notes (if any), the Security Agreement and the Pledge Agreement, in each
case, dated as of the Closing Date, duly executed by a Responsible Officer of each Credit Party
party thereto and by each other party thereto.



     (b) Opinions of Counsel. The Administrative Agent’s receipt of duly executed opinions
of counsel to the Credit Parties, dated as of the Closing Date, in form and substance reasonably
satisfactory to the Administrative Agent.



     (c) Organization Documents, Etc. The Administrative Agent’s receipt of a duly
executed certificate of a Responsible Officer of each Credit Party, in form and substance
reasonably satisfactory to the Administrative Agent, attaching each of the following documents and
certifying that each is true, correct and complete and in full force and effect as of the Closing
Date:




     (i) Charter Documents. Copies of such Credit Party’s articles or certificate
of organization or formation, as applicable, certified to be true, correct and complete as
of a recent date by the appropriate Governmental Authority of the jurisdiction of its
organization or formation, as applicable;




     (ii) Bylaws. Copies of such Credit Party’s bylaws, operating agreement or
partnership agreement, as applicable;




     (iii) Resolutions. Copies of resolutions of such Credit Party approving and
adopting the Credit Documents to which it is party, the transactions contemplated therein,
and authorizing the execution and delivery thereof;




     (iv) Incumbency. Incumbency certificates identifying the Responsible Officers
of such Credit Party that have executed Credit Documents on such Credit Party’s behalf; and




     (v) Good Standing Certificates. Certificates of good standing or the
equivalent from its jurisdiction of organization or formation, as applicable, in each case
certified as of a recent date by the appropriate Governmental Authority.



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     (d) Officer Certificate. The Administrative Agent’s receipt of a certificate or
certificates of
a Responsible Officer of the Borrower, dated as of the Closing Date, in form and substance
reasonably satisfactory to the Administrative Agent, certifying each of the following:




     (i) Confirmation of Acquisition. The copy of the Triumph Merger Agreement,
together with all amendments and modifications thereto attached to such certificate as
Exhibit A, (A) provides for a purchase price in an aggregate amount not to exceed $570
million (without giving effect to additional equity investments, working capital adjustments
or purchase price adjustments), (B) has not have been altered, amended or otherwise changed
or supplemented in any material respect, or any material condition therein waived from the
version provided to the Joint Lead Arrangers concurrently with the signing of the Commitment
Letter, in each case in a manner adverse to the Lenders in any material respect without the
prior written consent of the Joint Lead Arrangers and the Lead Banks, and (C) the Triumph
Acquisition has been consummated (or contemporaneously with the closing and initial funding
under this Credit Agreement, will be consummated) substantially in accordance with the terms
of the Triumph Merger Agreement (subject to the preceding sentence) and, in all material
respects, in compliance with applicable Law and regulatory approvals.




     (ii) Gross Proceeds. The Borrower has received combined gross cash proceeds,
in the case of an issuance of additional equity of at least $95.8 million in the aggregate.




     (iii) Financial Covenant Calculations. After giving effect to the Triumph
Acquisition (and the other Transactions) on a Pro Forma Basis at the Closing Date (A) the
Consolidated Total Leverage Ratio shall not exceed 3.3:1.0 and (B) the Outstanding Amount of
Revolving Obligations shall not exceed $25 million, excluding for purposes hereof (x)
Borrowings for payment of fees set forth in the Fee Letters (which amounts shall not be
included in the calculation of the ratio of clause (A) hereof) and (y) Existing
Letters of Credit.




     (iv) Solvency. With respect to the Consolidated Group taken as a whole and
after giving effect to the Transactions, (A) the fair value of the assets of the
Consolidated Group will exceed its debts and liabilities, subordinated, contingent or
otherwise; (B) the present fair saleable value of the property of the Consolidated Group
will be greater than the amount that will be required to pay the probable liability of its
debts and other liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and mature; and (C) the Consolidated Group will not have
unreasonably small capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted following the Closing Date.



     (e) Triumph Material Adverse Effect. There shall not have occurred a Triumph Material
Adverse Effect since the date of the Triumph Merger Agreement.



     (f) Fees and Expenses. Payment of all (i) fees payable on the Closing Date under the
Fee Letters and (ii) expenses payable under the terms of the Commitment Letter (including the fees
and expenses of counsel, including local counsel, estimated through closing and a reasonable
post-closing period, to the extent payable thereunder).


Without limiting the generality of the provisions of 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 Credit Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to a Lender.




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     5.02 Conditions to all Credit Extensions.



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



     (a) The representations and warranties contained in Article VI or any other Credit
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:




     (i) to the extent that such representations and warranties specifically relate to an
earlier date, in which case they shall be true and correct in all material respects as of
such earlier date;




     (ii) in the case of the initial Credit Extension hereunder, but only in such case (it
being understood that, notwithstanding anything else provided for in the Credit Documents,
the only representations and warranties that shall be required to be made as a condition to
the initial Credit Extension hereunder are the representations and warranties referred to in
this Section 5.02(a)(ii)) (A) the representations and warranties in Section 6.01
(a) and (b)(i), 6.02(a), 6.04 and 6.15 of the Credit Agreement
shall be true and correct in all material respects and (B) the representations made by or on
behalf of Triumph Healthcare in the Triumph Merger Agreement, but only to the extent that
the Borrower has the right to terminate its obligations under the Triumph Merger Agreement
as a result of a breach of such representations in the Triumph Merger Agreement, shall be
true and correct in all material respects;




     (iii) that for purposes of this Section 5.02, the representations and
warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to
refer to the most recent annual audited or company-prepared quarterly unaudited, as
applicable, financial statements furnished pursuant to subsections (a) and (b) of
Section 7.01.



     (b) With respect to Requests for Credit Extension made after the Closing Date, no Default or
Event of Default shall exist, or would result from such proposed Credit Extension.



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



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



ARTICLE VI




REPRESENTATIONS AND WARRANTIES




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



     6.01 Existence, Qualification and Power.



     Each Credit Party (a) is duly organized or formed, validly existing and in good standing under
the



66









 







Laws of the jurisdiction of its incorporation or formation, as applicable, (b) has all
requisite power and
authority and all requisite governmental licenses, authorizations, consents and approvals to
(i) execute, deliver and perform its obligations under the Credit Documents to which it is a party
and (ii) except to the extent it would not reasonably be expected to have a Material Adverse
Effect, own or lease its assets and carry on its business, and (c) except to the extent it would
not reasonably be expected to have a Material Adverse Effect, is duly qualified and is licensed and
in good standing under the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or license.



     6.02 Authorization; No Contravention.



     The execution, delivery and performance by each Credit Party of each Credit Document to which
it is a party:



     (a) have been duly authorized by all necessary corporate or other organizational action by
such Credit Party; and



     (b) do not (i) contravene the terms of such Credit Party’s Organization Documents; or (ii)
conflict with or result in any breach or contravention of, or the creation of any Lien (other than
Permitted Liens) under, (A) any Contractual Obligation to which such Credit Party is party or (B)
any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which
such Credit Party or its Property is subject; or (iii) violate any Law, in the case of the
foregoing clauses (ii) and (iii), except to the extent such contravention,
conflict, breach, lien or violation would not reasonably be expected to result in a Material
Adverse Effect.



     6.03 Governmental Authorization; Other Consents.



     No approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection with
the execution, delivery or performance by, or enforcement against, any Credit Party of this Credit
Agreement or any other Credit Document (other than (a) as have already been obtained and are in
full force and effect, (b) filings and other actions to perfect security interests granted pursuant
to the Credit Documents (c) those otherwise delivered to the Administrative Agent or Collateral
Agent for filing and/or recordation and (d) except as would not reasonably be expected to result in
a Material Adverse Effect).



     6.04 Binding Effect.



     This Credit Agreement and each other Credit Document has been duly executed and delivered by
each Credit Party that is party thereto. This Credit Agreement and the other Credit Documents
constitute legal, valid and binding obligations of such Credit Party, enforceable against such
Credit Party in accordance with its terms, except as may be limited by Debtor Relief Laws or by
equitable principles relating to enforceability (whether considered in a proceeding at law or in
equity).



     6.05 Financial Statements.



     (a) The audited consolidated balance sheet of the Consolidated Group for the most recent
fiscal year ended, and the related consolidated statements of income or operations, shareholders’
equity and cash flows for such fiscal year, including the notes thereto (i) were prepared in
accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; and (ii) fairly present, in all material respects, the financial
condition of the Consolidated Group as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted
therein.




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     (b) The unaudited consolidated balance sheet of the Consolidated Group for the most recent
fiscal quarter ended, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal quarter (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present, in all material respects, the financial condition of the
Consolidated Group as of the date thereof and their results of operations for the period covered
thereby, subject to the absence of footnotes and to normal year-end audit adjustments.



     (c) [Reserved]



     (d) The consolidated forecasted balance sheet and statements of income and cash flows of the
Borrower and its Subsidiaries delivered pursuant to Section 7.01(c) were prepared in good
faith on the basis of the assumptions stated therein, which assumptions were believed by the
Borrower to be reasonable at the time furnished (it being recognized that such forecasted balance
sheet and statement of income and cash flows are not to be viewed as facts and that actual results
covered by the period or periods covered thereby may differ from the projected results and such
differences may be material).



     6.06 No Material Adverse Effect.



     Since the date of this Credit Agreement, there has been no event or circumstance, either
individually or in the aggregate, that has had or would reasonably be expected to have a Material
Adverse Effect.



     6.07 Litigation.



     There are no actions, suits, investigations, criminal prosecutions, civil investigative
demands, imposition of criminal or civil fines or penalties, proceedings, claims or disputes
pending or, to the knowledge of the Borrower threatened in writing, at law, in equity, in
arbitration or before any Governmental Authority, by or against any member of the Consolidated
Group or against any of their properties or revenues that either individually or in the aggregate
would reasonably be expected to have a Material Adverse Effect.



     6.08 No Default.



     No Default or Event of Default has occurred and is continuing or would result from the
consummation of the transactions contemplated by this Credit Agreement or any other Credit
Document.



     6.09 Ownership of Property; Liens.



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



     6.10 Environmental Compliance.



     The
Borrower has reasonably concluded that existing Environmental Laws and claims brought under such Environmental Laws would not, individually or in the aggregate, reasonably be expected
to
have a Material Adverse Effect.




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     6.11 Insurance.



     The properties of the Consolidated Group are insured with financially sound and reputable
insurance companies, in such amounts, with such deductibles, retentions and covering such risks as
are customarily carried by companies engaged in similar businesses and owning similar properties in
localities where the Borrower or the applicable Subsidiary operates.



     6.12 Taxes.



     Each member of the Consolidated Group has filed, or caused to be filed, all federal, state and
other material tax returns and reports required to be filed, except where the failure to so file
would not reasonably be expected to result in fines, penalties or other amounts in excess of $10
million in the aggregate, or otherwise have a Material Adverse Effect. Each member of the
Consolidated Group has paid all federal, state and other material taxes, assessments, fees and
other governmental charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except (a) those not overdue by more than thirty (30) days, (b) those
in an aggregate amount not in excess of $10 million that are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves have been provided in
accordance with GAAP, or (c) the non-payment of such amounts not in excess of $10 million which
would not reasonably be expected to result in a Material Adverse Effect. There is no proposed tax
assessment against the Borrower or any Subsidiary in excess of $10 million that remains unpaid or
that is not being contested in good faith by appropriate proceedings diligently conducted and for
which adequate reserves have been provided in accordance with GAAP.



     6.13 ERISA Compliance.



     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other federal or state Laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently pending before the IRS with respect thereto and, to the
knowledge of the Borrower, nothing has occurred that would prevent, or cause the loss of, such
qualification. The Borrower and each ERISA Affiliate have made all required contributions to each
Plan subject to Section 412, Section 430 or Section 431 of the Code, and no application for a
funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan.



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



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) the minimum
required contribution (as defined in Section 430(a) of the Code) has been made for each Pension
Plan; (iii) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) neither the Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred
that, with the giving of notice under Section 4219 of ERISA, would result in such liability) under
Section 4201 or 4243 of



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ERISA with respect to a Multiemployer Plan; and (v) neither the Borrower
nor any ERISA Affiliate has engaged in a transaction that would reasonably be expected to be
subject to Section 4069 or 4212(c) of
ERISA.



     6.14 Subsidiaries.



     As of the Closing Date, set forth on Schedule 6.14, with respect to each Credit Party,
is the jurisdiction of organization, classes of Capital Stock (including options, warrants, rights
of subscription, conversion, exchangeability and other similar rights), and ownership and ownership
percentages of each Subsidiary of such Credit Party. The outstanding Capital Stock of each
Subsidiary has been validly issued, and with respect to any outstanding shares of Capital Stock of
a corporation, such shares have been validly issued and are fully paid and non-assessable. As of
the Closing Date, the outstanding shares of Capital Stock are not subject to any buy-sell, voting
trust or other shareholder agreement except as identified on Schedule 6.14. As of the
Closing Date, the Credit Parties have no Subsidiaries other than those specifically disclosed on
Schedule 6.14.



     6.15 Margin Regulations; Investment Company Act.



     (a) The Credit Parties are not engaged and will not engage, principally or as one of their
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.



     (b) None of the Credit Parties, any Person Controlling a Credit Party or any Subsidiary is or
is required to be registered as an “investment company” under the Investment Company Act of 1940.



     6.16 Disclosure.



     No written report, financial statement, certificate or other written information (other than
information of a general economic or industry-specific nature) furnished by or on behalf of any
Credit Party to the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Credit Agreement or delivered hereunder or under
any other Credit Document (in each case, as modified or supplemented by other information so
furnished), when taken as a whole and at the time furnished contains any material misstatement of a
material fact or omits to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading in any material respect;
provided that, with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions believed by the
Borrower to be reasonable at the time furnished (it being understood that such projected financial
information is not to be viewed as fact and that actual results during the period or periods
covered thereby may differ from the projected results and that such differences may be material).



     6.17 Taxpayer Identification Number; Other Identifying Information.



     As of the Closing Date, the true and correct U.S. taxpayer identification number of the
Borrower and each Guarantor is set forth on Schedule 6.17.



     6.18 Compliance with Laws.



     (a) Each member of the Consolidated Group is in compliance in all material respects with the
requirements of all Laws and all orders, writs, injunctions, settlements or other agreements with
any Governmental Authority and decrees applicable to it or to its properties, except in such
instances in which



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(a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted or (b) the failure to
comply therewith, either individually or
in the aggregate, would not reasonably be expected to have a Material Adverse Effect.



     (b) Each member of the Consolidated Group which maintains health care facilities or provides
health care services has procured and maintains all required licenses, permits and accreditations
for all of its (if any) health care facilities (other than those of a type for which accreditation
is not available) by the Joint Commission on Accreditation of Health Care Organizations or other
applicable recognized accrediting body, and the status of their respective health care facilities
(other than those not having such status as of the date of this Credit Agreement or, if later, as
of the date such entity became a member of the Consolidated Group) as a provider of health care
services eligible for reimbursement or payment under the Medicare, Medicaid and comparable
programs, including future governmental programs, except where a failure to procure or maintain any
such license, permit and accreditation would not reasonably be expected to have a Material Adverse
Effect.



     6.19 Solvency.



     Immediately after giving effect to each Credit Extension, (a) the fair value of the assets of
the Credit Parties, taken as a whole, on a consolidated basis, will exceed their debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the
property of the Credit Parties, taken as a whole, on a consolidated basis, will be greater than the
amount that will be required to pay the probable liability of their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities become absolute and
mature; and (c) the Credit Parties, taken as a whole, on a consolidated basis will not have
unreasonably small capital with which to conduct the business in which they are engaged as such
business is now conducted and is proposed to be conducted following the Closing Date.



     6.20 Intellectual Property; Licenses, Etc.



     Each member of the Consolidated Group owns, or possesses the 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, without conflict with the rights of any
other Person, except to the extent any failure to own or possess such right in the aggregate would
not reasonably be expected to result in a Material Adverse Effect. To the knowledge of the Credit
Parties, no slogan or other advertising device, product, process, method, substance, part or other
material now employed, or now contemplated to be employed, by any member of the Consolidated Group
infringes upon any rights held by any other Person, except for such infringements that, in the
aggregate, would not reasonably be expected to result in a Material Adverse Effect. No claim or
litigation regarding any of the foregoing is pending or, to the knowledge of the Credit Parties,
threatened in writing, that, either individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect.



     6.21 Labor Matters.



     Except as set forth in Schedule 6.21, or as would not reasonably be expected to have a
Material Adverse Effect:




     (i) There are no strikes or lockouts against any members of the Consolidated Group
pending or, to the knowledge of the Credit Parties, threatened;



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     (ii) the hours worked by and payments made to employees of the Consolidated Group have
not been in violation of the Fair Labor Standards Act or any other applicable Law
dealing with such matters;




     (iii) all payments due from members of the Consolidated Group, or for which any claim
may be made against a member of the Consolidated Group, on account of wages and employee
health and welfare insurance and other benefits, have been paid or accrued as a liability on
the books of the respective members of the Consolidated Group; and




     (iv) none of the members of the Consolidated Group is party to a collective bargaining
agreement.



     6.22 Security Agreement.



     The Security Agreement is effective to create in favor of the Collateral Agent, for the
ratable benefit of the holders of the Obligations, a legal, valid and enforceable security interest
in the Collateral identified therein, except to the extent the enforceability thereof may be
limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable
principles of law (regardless of whether enforcement is sought in equity or at law) and, when UCC
financing statements (or other appropriate notices) in appropriate form are duly filed at the
locations identified in the Security Agreement, the Security Agreement shall create a fully
perfected Lien on, and security interest in, all right, title and interest of the grantors
thereunder in such Collateral, in which a security interest may be perfected by the filing of a UCC
financing statement, in each case prior and superior in right to any other Lien (other than
Permitted Liens).



     6.23 Pledge Agreement.



     The Pledge Agreement is effective to create in favor of the Collateral Agent, for the ratable
benefit of the holders of the Obligations, a legal, valid and enforceable security interest in the
Collateral identified therein, except to the extent the enforceability thereof may be limited by
applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of
law (regardless of whether enforcement is sought in equity or at law) and the Pledge Agreement
shall create a fully perfected first priority Lien on, and security interest in, all right, title
and interest of the pledgors thereunder in such Collateral, in each case prior and superior in
right to any other Lien (i) with respect to any such Collateral that is a “security” (as such term
is defined in the UCC) and is evidenced by a certificate, when such Collateral is delivered to the
Collateral Agent with duly executed stock powers with respect thereto, (ii) with respect to any
such Collateral that is a “security” (as such term is defined in the UCC) but is not evidenced by a
certificate, when UCC financing statements in appropriate form are filed in the appropriate filing
offices in the jurisdiction of organization of the pledgor or when “control” (as such term is
defined in the UCC) is established by the Collateral Agent over such interests in accordance with
the provision of Section 8-106 of the UCC, or any successor provision, and (iii) with respect to
any such Collateral that is not a “security” (as such term is defined in the UCC), when UCC
financing statements in appropriate form are filed in the appropriate filing offices in the
jurisdiction of organization of the pledgor.



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ARTICLE VII




AFFIRMATIVE COVENANTS




     Until the Termination Date has occurred, the Credit Parties will, and (except in the case of
the covenants set forth in Section 7.01) will cause each of their Subsidiaries to:



     7.01 Financial Statements.



     Deliver to the Administrative Agent for further distribution to each Lender:



     (a) as soon as available, but in any event not later than the earlier of (i) the date such
deliveries are required by the SEC and (ii) ninety (90) days after the end of each fiscal year of
the Borrower, a consolidated balance sheet of the Consolidated Group as at the end of such fiscal
year (beginning with the fiscal year ending December 31, 2009), and the related consolidated
statements of income or operations, changes in shareholders’ equity, and cash flows for such fiscal
year, setting forth in each case in comparative form the figures for the previous fiscal year,
prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent
certified public accounting firm of nationally recognized standing or other accounting firm
reasonably acceptable to the Required Lenders, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception as to the scope of
such audit; and



     (b) as soon as available, but in any event not later than (i) the date such deliveries are
required by the SEC and (ii) forty-five (45) days after the end of each of the first three (3)
fiscal quarters of each fiscal year of the Borrower (beginning with the fiscal quarter ending March
31, 2010), a consolidated balance sheet of the Consolidated Group as at the end of such fiscal
quarter, and the related consolidated statements of income or operations for such fiscal quarter
and for the portion of the Borrower’s fiscal year then ended, and the related consolidated
statements of changes in shareholders’ equity, and cash flows for the portion of the Borrower’s
fiscal year then ended, in each case setting forth in comparative form, as applicable, the figures
for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of
the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the
Borrower as fairly presenting, in all material respects, the financial condition, results of
operations, shareholders’ equity and cash flows of the Consolidated Group on a consolidated basis
in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes.



     (c) as soon as available, but in any event within sixty (60) days after the end of each fiscal
year of the Borrower (commencing with the fiscal year beginning January 1, 2010), forecasts
prepared by management of the Borrower, of consolidated balance sheet and statements of income or
operations and cash flows of the Borrower and its Subsidiaries on a monthly basis for the
immediately following fiscal year (including, if applicable, the fiscal year in which the Term Loan
B Maturity Date occurs).



As to any information contained in materials furnished pursuant to Section 7.02(c), the
Borrower shall not be separately required to furnish such information under clause (a) or
(b) above, but the foregoing shall not be in derogation of the obligation of the Borrower
to furnish the information and materials described in clauses (a) and (b) above at
the times specified therein.



     7.02 Certificates; Other Information.



     Deliver to the Administrative Agent:



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     (a) concurrently with the delivery of the financial statements referred to in Sections
7.01(a) and (b), (beginning with the fiscal year ending December 31, 2009), a duly
completed Compliance Certificate signed by a Responsible Officer of the Borrower (i) setting forth
computations in reasonable detail demonstrating compliance with the financial covenants contained
herein and, in the case of a certificate delivered concurrently with the financial statements
referred to in Section 7.01(a), a calculation
of Consolidated Excess Cash Flow and the amount, if any, payable pursuant to Section
2.06(b)(v), (ii) certifying that no Default or Event of Default exists as of the date thereof
(or the nature and extent thereof and proposed actions with respect thereto) and (iii) including a
summary of material changes in GAAP or the consistent application thereof and any reconciliation
required by Section 1.03(c);



     (b) [Reserved];



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



     (d) promptly after the furnishing thereof, copies of any statement or report furnished to the
holders of debt securities of any Credit Party or any Subsidiary thereof pursuant to the terms of
any indenture, loan or credit or similar agreement governing any item of Indebtedness having a
principal amount in excess of $10 million and not otherwise required to be furnished to the
Administrative Agent pursuant to Section 7.01 or any other clause of this Section
7.02;



     (e) promptly, and in any event within five (5) Business Days after receipt thereof by any
Credit Party or any Subsidiary thereof, copies of each notice or other correspondence received from
the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation
or possible investigation or other inquiry by such agency regarding financial or other operational
results of any Credit Party or any Subsidiary thereof that would reasonably be expected to have a
Material Adverse Effect; and



     (f) promptly, such additional information regarding the business, financial or corporate
affairs of any Credit Party or any Subsidiary of a Credit Party, or compliance with the terms of
the Credit Documents, as the Administrative Agent or any Lender (through the Administrative Agent)
may from time to time reasonably request.



     Documents required to be delivered pursuant to Section 7.01(a) , Section
7.01(b) , Section 7.02(c) or Section 7.02(d) (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, including “www.sec.gov”). Notwithstanding anything contained herein, in
every instance the Borrower shall be required to provide paper copies (which may include documents
in a “.pdf” format delivered by email) of the Compliance Certificates required by Section
7.02(a) to the Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to maintain copies of the
documents referred to above.




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     The
Credit Parties hereby acknowledge that the Administrative Agent will make available to the
Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Credit
Parties hereunder (collectively, the “Credit Party Materials”) by posting the Credit Party
Materials on IntraLinks or another similar electronic system (the “Platform”) and that
certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to any of the Credit Parties or their
respective 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 Credit Parties hereby agree that (1) all Credit Party 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); (2)
by marking the Credit Party Materials “PUBLIC,” the Credit Parties shall be deemed to have
authorized the Administrative Agent and the Lenders to treat such Credit Party Materials as either
publicly available information or not material information (although it may be sensitive and
proprietary) with respect to the Credit Parties or their securities for purposes of United States
federal and state securities laws; (3) all Credit Party Materials marked “PUBLIC” are permitted to
be made available through a portion of the Platform designated as “Public Side Information”; and
(4) the Administrative Agent shall treat any Credit Party Materials that are not designated
“PUBLIC” as being suitable only for posting on a portion of the Platform that is not marked as
“Public Side Information”.



     7.03  Notification.



     Promptly notify the Administrative Agent of:



     (a) the occurrence of any Default or Event of Default;



     (b) any (i) breach or non-performance of, or any default under, a Contractual Obligation of
the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between the Borrower or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding affecting the
Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws, in each case,
to the extent that any of the foregoing would reasonably be expected to have a Material Adverse
Effect; and



     (c) the occurrence of any ERISA Event that would reasonably be expected to result in a
Material Adverse Effect;



     (d) any change in Debt Rating (or the discontinuance thereof) on the Term Loan B or any other
term loan established hereunder;



     Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Borrower setting forth reasonable details of the occurrence referred to therein and
stating what action the Borrower has taken and proposes to take with respect thereto. Each notice
pursuant to Section 7.03(a) shall identify the applicable provisions of this Credit
Agreement and any other Credit Document underlying the applicable Default or Event of Default.



     7.04 Payment of Taxes.



     Pay and discharge (or in the case of Subsidiaries that are not Credit Parties, cause to be
paid and discharged) as the same shall become due and payable, all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, except (a) those not overdue by
more than thirty (30) days, (b) those in an aggregate amount not in excess of $10 million that are
being contested in good faith by appropriate proceedings diligently conducted and for which
adequate reserves have been provided in accordance with GAAP, or (c) the non-payment of such
amounts not in excess of $10 million which would not reasonably be expected to result in a Material
Adverse Effect.




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     7.05 Preservation of Existence, Etc.



     (a) Preserve, renew and maintain in full force and effect its legal existence and good
standing under the Laws of the jurisdiction of its organization (except in connection with a
transaction permitted
by Section 8.04 or 8.05); provided, however, other than the Borrower,
no Credit Party nor any of its Subsidiaries shall be required to preserve, renew or maintain its
legal existence or good standing if such Credit Party or Subsidiary shall determine such
preservation, renewal or maintenance is no longer desirable in the conduct of the business of such
Credit Party or Subsidiary;



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



     (c) preserve or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which would reasonably be expected to have a Material Adverse
Effect.



     7.06 Maintenance of Properties.



     (a) Maintain, preserve and protect all of its material Property and equipment necessary in the
operation of its business in good working order and condition, ordinary wear and tear and casualty
and condemnation excepted, except to the extent the failure to so maintain, preserve and protect
would not reasonably be expected to result in a Material Adverse Effect; and



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



     7.07 Maintenance of Insurance.



     Maintain in full force and effect with financially sound and reputable insurance companies,
insurance with respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business, of such types and
in such amounts as are customarily carried under similar circumstances by such other Persons and
identifying the Collateral Agent as loss payee, with respect to casualty insurance, and as
additional insured, with respect to liability insurance and providing for not less than thirty (30)
days’ prior notice to the Collateral Agent of the termination, lapse or cancellation of any such
insurance, except in the case of cancellation for failure to make a scheduled payment when due, in
which case ten (10) days’ prior written notice shall be required.



     7.08 Compliance with Laws.



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



     7.09 Books and Records.



     Maintain (a) proper books of record and account, in which true and correct entries in
conformity with GAAP shall be made of all financial transactions and matters involving the assets
and business of the



76









 







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



     7.10 Inspection Rights.



     Permit representatives and independent contractors of the Administrative Agent to visit and
inspect any of its properties, to conduct field audits, to examine its corporate, financial and
operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public accountants (provided
that the Borrower may, if it so chooses, be present at or participate in any such discussion), in
each case, subject to matters which are privileged or otherwise subject to confidentiality
restrictions, all at the expense of the Borrower (but subject to the limitations set forth in
Section 11.04) and at such reasonable times and reasonable durational periods during normal
business hours and as often as may be reasonably desired, upon reasonable advance notice to the
Borrower; provided, however, that prior to the occurrence and continuance of an
Event of Default, the Borrower shall be responsible for the costs and expenses of only one (1) such
inspection each calendar year.



     7.11 Use of Proceeds.



     (a) Revolving Obligations. Use proceeds of the Revolving Obligations to (i) refinance
existing Indebtedness, (ii) finance, in part, the Triumph Acquisition and fees and expenses
incurred in connection therewith, and (iii) finance working capital needs (including capital
expenditures) and general corporate purposes not prohibited by the terms hereof (including
acquisitions and investments permitted hereunder and capital expenditures).



     (b) Term Loan B. Use proceeds of the Term Loan B to (i) refinance existing
Indebtedness, (ii) finance, in part, the Triumph Acquisition and (iii) finance the fees and
expenses incurred in connection with the Transactions.



     (c) Incremental Term Loan Facilities. Use proceeds of any Incremental Credit Facility
that is a term loan as provided in the documentation establishing such Incremental Credit Facility.



     7.12 Joinder of Subsidiaries as Guarantors.



     (a) Domestic Subsidiaries. Promptly notify the Administrative Agent of the formation,
acquisition (or other receipt of interests) or existence of a Material Domestic Subsidiary, which
notice shall include information as to the jurisdiction of organization, the number and class of
Capital Stock outstanding and ownership thereof (including options, warrants, rights of conversion
or purchase relating thereto); and with respect to any such Subsidiary, cause the joinder of such
Subsidiary as a Guarantor pursuant to a Guarantor Joinder Agreement (or such other documentation in
form and substance reasonably acceptable to the Administrative Agent) within thirty (30) days (or
such later date as the Administrative Agent may agree to in its sole discretion) of such Subsidiary
becoming a Material Domestic Subsidiary (except with respect to Triumph Healthcare and its
Subsidiaries, which guaranties shall be provided on the Closing Date) accompanied by Organization
Documents and an opinion of counsel to such Credit Party, in form and substance reasonably
satisfactory to the Administrative Agent.



     (b) Foreign Subsidiaries. Not form or acquire any Foreign Subsidiaries (other than in
Puerto Rico) without the prior written consent of the Required Lenders.




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     (c) Guaranties and Support Obligations in Respect of Other Funded Debt. Not permit
any of its Subsidiaries to give a guaranty or other Support Obligation in respect of Funded Debt,
unless (i) the guaranty or other Support Obligation is otherwise permitted hereunder and (ii) such
Subsidiary shall have given a guaranty of the Obligations hereunder on an equal and ratable basis
by becoming a Guarantor pursuant to the terms hereof.



     7.13 Pledge of Capital Stock.



     Pledge or cause to be pledged to the Collateral Agent to secure the Obligations (a) one
hundred percent (100%) of the issued and outstanding Capital Stock of each Material Domestic
Subsidiary within thirty (30) days (or such later date as the Administrative Agent may agree to in
its sole discretion) of its formation, acquisition or other receipt of such interests (except with
respect to Triumph Healthcare and its Subsidiaries, which pledges shall be provided on the Closing
Date to the extent otherwise required hereunder) and (b) sixty-five percent (65%) of the issued and
outstanding Capital Stock of each of First-Tier Foreign Subsidiary within sixty (60) days (or such
later date as the Administrative Agent may agree to in its sole discretion) of its formation,
acquisition or other receipt of such interests, in each case pursuant to the Pledge Agreement or
pledge joinder agreements, together with opinions of counsel and any filings and deliveries
reasonably requested by the Collateral Agent in connection therewith to perfect the security
interests therein, all in form and substance reasonably satisfactory to the Administrative Agent.
The requirement pursuant to clause (b) for the pledge of not more than sixty-five percent
(65%) of the Capital Stock in each First-Tier Foreign Subsidiary is intended to avoid treatment of
the undistributed earnings of a Foreign Subsidiary as a deemed dividend to its United States parent
for United States federal income tax purposes. Each Credit Party shall pledge or cause to be
pledged any greater or lesser percentage of its interest in a Foreign Subsidiary that (whether
pursuant to existing Law or as the result of changes to, or clarifications of, existing Law after
the date hereof) (i) would not reasonably be expected to cause the undistributed earnings of such
Foreign Subsidiary to be treated as a deemed dividend to the United States parent of such Foreign
Subsidiary, as determined for United States federal income tax purposes, and (ii) would not
otherwise reasonably be expected to result in material adverse tax consequences to such Foreign
Subsidiary or its United States parent. In no event will any Credit Party be required to pledge
ownership interests in joint ventures and non-Wholly-Owned Subsidiaries which by the terms of their
governing documents do not permit a pledge of the ownership interests without the consent of the
other owners, provided that such ownership interest shall be subject to the general grant of a
security interest regardless of any such prohibition unless the prohibition is not rendered
ineffective under the UCC (including the provisions of Sections 9-407 and 9-408 thereof) or other
applicable Law.



     7.14 Pledge of Other Property.



     Except for Subsidiaries not required to become a Guarantor pursuant to Section 7.12,
pledge and grant a security interest in substantially all personal property (including accounts,
contract rights, deposit accounts, chattel paper, insurance proceeds, inventory, investments and
financial assets, general intangibles, intellectual property, licenses, machinery and equipment)
located in the United States and which may be perfected by filing financing statements under the
UCC or by filing notices of security interests in respect of intellectual property with the United
States Copyright Office or the United States Patent and Trademark Office. The scope of the
personal property covered by this subsection will not include Excluded Property. In connection
with any grant of security interest under this subsection, the Credit Parties will deliver to the
Collateral Agent within thirty (30) days (or such later date as the Administrative Agent may agree
in its sole discretion) (i) a security agreement in form and substance reasonably satisfactory to
the Administrative Agent and Collateral Agent, executed in multiple counterparts, and (ii) upon the
Collateral Agent’s reasonable written request, (a) notices of grant of security interest in respect
of intellectual property with the United States Copyright Office or the United States Patent and
Trademark Office reasonably satisfactory to the Collateral Agent, executed in multiple
counterparts, (b) such opinions of counsel as the Administrative Agent and Collateral Agent may
deem



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necessary or appropriate, in form and substance reasonably satisfactory to the Administrative
Agent and Collateral Agent, (c) evidence of casualty insurance (consistent with the requirements
for insurance hereunder) on personal property showing the Collateral Agent as loss payee (if
insurance is provided by a commercial insurer), and (d) such other filings and deliveries as may be
necessary or appropriate as
determined by the Collateral Agent in its reasonable discretion; provided
however, that the Credit Parties shall not be required to provide (or cause to be provided)
securities account control agreements, deposit account control agreements, leasehold mortgages,
collateral assignment of leases, landlord lien waivers, landlord consents, control of letter of
credit rights or any pledge of ownership interests in joint ventures and non-Wholly-Owned
Subsidiaries which by the terms of their governing documents do not permit a pledge of the
ownership interests without the consent of the other owners, provided that such ownership interest
shall be subject to the general grant of a security interest regardless of any such prohibition
unless the prohibition is not rendered ineffective under the UCC (including the provisions of
Sections 9-407 and 9-408 thereof) or other applicable Law.



     7.15 Maintenance of Debt Ratings.



     Use commercially reasonable efforts to maintain a Debt Rating with each of Moody’s and S&P as
long as the Term Loan B or any other term loan established hereunder remains outstanding.



ARTICLE VIII




NEGATIVE COVENANTS




     Until the Termination Date has occurred, the Credit Parties will not, and will not permit any
of their Subsidiaries to:



     8.01 Liens.



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



     (a) Liens securing the Loan Obligations hereunder, including cash collateral and other
Adequate Assurance pledged to any L/C Issuer or the Swingline Lender to secure obligations of
Defaulting Lenders and Impacted Lenders as provided in Section 2.14;



     (b) Liens in favor of a Lender or any of its Affiliates pursuant to a Secured Swap Contract or
Treasury Management Agreement, but only to the extent that (i) the obligations under such Secured
Swap Contract or Treasury Management Agreement are permitted under Section 8.03, (ii) such
Liens are on the same collateral that secures the Loan Obligations (other than cash collateral and
other Adequate Assurance referred to in clause (a) above) and (iii) the obligations under
such Secured Swap Contract or Treasury Management Agreement and the Loan Obligations share pari
passu (subject to Section 9.03) in the collateral that is subject to such Liens;



     (c) Liens existing on the date hereof and listed on Schedule 8.01 and any
replacements, renewals or extensions thereof, provided that the property covered thereby is
not increased except as contemplated by Section 8.03(b) and any replacement, renewal or
extension of the obligations secured or benefited thereby is permitted by Section 8.03(b);



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     (d) Liens for taxes, assessments or governmental charges (i) that are not overdue for a period
of more than thirty (30) days, (ii) if overdue by more than thirty (30) days that are being
contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person in accordance with GAAP,
or (iii) not in excess of $10
million in the aggregate;



     (e) statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen, repairmen,
suppliers or other like Liens arising in the ordinary course of business (i) that are not overdue
for a period of more than thirty (30) days, (ii) if overdue by more than thirty (30) days that are
being contested in good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable Person, or (iii) not in
excess of $10 million in the aggregate;



     (f) pledges or deposits in the ordinary course of business in connection with (i) workers’
compensation, unemployment insurance and other social security legislation, other than any Lien
imposed by ERISA or (ii) in respect of letters of credit or bank guarantees that have been posted
to support payment of the items in the forgoing clause (i), so long as such pledge or deposit is
limited to not more than 105% of the stated amount of the letter of credit or bank guarantee, as
applicable;



     (g) deposits to secure (i) the performance of bids, contracts and leases (other than
Indebtedness for borrowed money), insurance, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the ordinary course of
business, or (ii) in respect of letters of credit or bank guarantees that have been posted to
support payment of the items in the foregoing clause (i), so long as such pledge or deposit is
limited to not more than 105% of the stated amount of the letter of credit or bank guarantee, as
applicable;



     (h) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property and other minor defects or irregularities in title that, in the aggregate, are not
substantial in amount, and that do not in any case materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct of the business of the
applicable Person;



     (i) any attachment or judgment Lien not constituting an Event of Default under Section
9.01(h);



     (j) Liens securing, or in respect of, obligations under capital leases or Synthetic Leases and
purchase money obligations for fixed or capital assets; provided that (i) such Liens do not
at any time encumber any property other than the property financed by such Indebtedness and (ii)
the amount of Indebtedness secured thereby is not increased (except (A) to the extent of interest
accrued thereon and any fees, premiums or expenses incurred in connection therewith and (B) for any
extensions, renewals, refinancings or replacements of such Indebtedness, in any such case, without
any increase in the principal amount thereof other than for fees, expenses, premiums and accrued
amounts paid in connection therewith);



     (k) Liens on the property or assets of any Person that becomes a member of the Consolidated
Group following the Closing Date to the extent such Liens exist at the time such Person becomes a
member of the Consolidated Group; provided such Liens, to the extent they secure
Indebtedness related to Indebtedness otherwise permitted hereunder, (i) were not created in
contemplation thereof and (ii) do not extend to any property or assets of any other member of the
Consolidated Group;



     (l) (i) licenses, sublicenses, leases or subleases granted to others not interfering in any
material respect with the business of any member of the Consolidated Group and (ii) the rights
reserved



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or vested in any Person by the terms of any lease, license, franchise, grant or permit
held by any member of the Consolidated Group or by statutory provision, to terminate any such
lease, license, franchise, grant, permit, or to require annual or periodic payments as a condition
to the continuance thereof;



     (m) any (i) interest or title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating
to, operating leases, (ii) Lien or restriction that the interest or title of such lessor or
sublessor may be subject to or (iii) subordination of the interest of the lessee or sublessee under
such lease to any Lien or restriction referred to in the preceding clause (ii);



     (n) 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;



     (o) Liens created or deemed to exist in connection with a Securitization Transaction permitted
hereunder (including any related filings of any financing statements), but only to the extent that
any such Lien relates to the applicable Securitization Receivables actually sold, contributed,
financed or otherwise conveyed or pledged pursuant to such transaction (and the proceeds thereof);



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



     (q) bankers liens and rights of setoff with respect to customary depository agreements entered
into in the ordinary course of business and Liens securing amounts owing to such bank with respect
to cash management and operating account arrangements, including those involving pooled accounts
and netting arrangements;



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



     (s) Liens arising out of any conditional sale, title retention, consignment or other similar
arrangements for the sale of goods entered into by a member of the Consolidated Group in the
ordinary course of business to the extent such Liens do not attach to any assets other than the
goods subject to such arrangements and the proceeds thereof;



     (t) Liens (A) (x) on advances of cash and Cash Equivalents in favor of the seller of any
property to be acquired in an Investment permitted pursuant to Section 8.02 to be applied
against the purchase price for such investment or acquisition and (y) consisting of an agreement to
dispose of any property in a Disposition permitted under Section 8.05, and (B) consisting
of earnest money deposits of cash and Cash Equivalents made by a member of the Consolidated Group
in connection with any letter of intent or purchase agreement in connection with any Investment
permitted pursuant to Section 8.02, and (ii) letters of credit in respect of the foregoing
items set forth in clause (i), so long as such Liens are limited to not more than 105% of the
stated amount of the letter of credit or bank guarantee, as applicable;



     (u) Liens created in connection with Indebtedness permitted under Section 8.03(f);
provided that any such Lien does not extend to any other Property;



     (v) Liens on insurance policies and the proceeds thereof securing the premiums therefor;



     (w) Liens encumbering reasonable customary initial deposits and margin deposits and similar
Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary
course of business and not for speculative purposes; and



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     (x) Liens other than those referred to herein above, provided that (i) the aggregate
amount of all obligations secured thereby shall not at any time outstanding exceed $30 million in
the aggregate and (ii) the Liens relate to specific fixed assets and are not blanket liens.



     8.02 Investments.



     Make or permit to exist any Investments, except:




     (a) cash and Cash Equivalents, provided that any Investment which when made
complies with the requirements of the definition of the term Cash Equivalents may continue
to be held notwithstanding that such Investment if made thereafter would not comply with
such requirements;




     (b) Investments (including intercompany Investments) existing on the date hereof and
listed on Schedule 8.02 and any extensions and renewals thereof;




     (c) to the extent not prohibited by applicable Law, advances to officers, directors and
employees of the Borrower and its Subsidiaries in an aggregate amount not to exceed $500,000
at any time outstanding, for travel, entertainment, relocation and analogous ordinary
business purposes;




     (d) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors in the ordinary course of business;




     (e) Investments by the Borrower and Domestic Subsidiaries in the Borrower and Domestic
Subsidiaries that are Wholly-Owned Subsidiaries;




     (f) advances or loans to customers and suppliers in the ordinary course of business;




     (g) Support Obligations permitted by Section 8.03;




     (h) Investments by the Borrower and its Subsidiaries that constitute Permitted
Acquisitions or Permitted Joint Venture Investments; provided that (except with
respect to the Triumph Acquisition):




     (i) the aggregate amount of all such Investments (including cash and non-cash
consideration, Funded Debt assumed or guaranteed and the expected amount of earn-out
payments) shall not exceed $150 million in the aggregate in any calendar year; and




     (ii) the aggregate amount of all such Permitted Joint Venture Investments
including, for purposes hereof, any Subsidiaries in Puerto Rico (including cash and
non-cash consideration, Funded Debt assumed or guaranteed and the expected amount of
earn-out payments) shall not exceed $60 million in the aggregate in any calendar
year (and provided further that not more than $15 million in the aggregate may be
invested in any calendar year in Wholly-Owned Subsidiaries in Puerto Rico,
non-Wholly Owned Subsidiaries in Puerto Rico or Permitted Joint Venture Investments
in Puerto Rico, and, otherwise, not more than $5 million in the aggregate may be
invested in any calendar




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year in joint ventures (other than in Puerto Rico) in which the Borrower or its
Wholly-Owned Subsidiaries does not own more than 50% of the economic and voting
interests);




     (i) Investments by Foreign Subsidiaries and Domestic Subsidiaries that are not
Wholly-Owned Subsidiaries in other members of the Consolidated Group (including other
Foreign Subsidiaries and other Domestic Subsidiaries that are not Wholly-Owned
Subsidiaries);




     (j) Investments resulting from a nonqualified deferred compensation plan (structured as
a “Rabbi Trust”) pursuant to which eligible employees have a right to direct their
respective Investments, but which are being held in the name of the Borrower;




     (k) advances of payroll payments in the ordinary course of business;




     (l) Investments in the form of a cash deposit or prepayment of expenses to vendors,
suppliers and trade creditors so long as such deposits are made and such expenses are
incurred in the ordinary course of business;




     (m) Borrower and its Subsidiaries may receive and hold promissory notes and other
non-cash consideration received in connection with any Disposition permitted by Section
8.05;




     (n) Liens, Indebtedness, fundamental changes, Dispositions and Restricted Payments
permitted by Sections 8.01, 8.03, 8.04, 8.05 and
8.06, to the extent they could be considered Investments;




     (o) Investments received in connection with the satisfaction or enforcement of
Indebtedness or claims due or owing to members of the Consolidated Group or as security for
any such Indebtedness or claim;




     (p) capitalization or forgiveness of Indebtedness owing by and among members of the
Consolidated Group to the extent otherwise permitted hereunder;




     (q) Investments constituting (i) endorsements of negotiable instruments held for
collection or (ii) lease, utility and other similar deposits, in each case in the ordinary
course of business; and




     (r) other Investments not contemplated in the foregoing clauses of this Section in an
aggregate principal amount not to exceed $5 million at any time outstanding.



     8.03
Indebtedness.



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




     (a) Indebtedness under the Credit Documents;




     (b) Indebtedness outstanding on the date hereof (including Indebtedness assumed in
connection with the Triumph Acquisition) and listed on Schedule 8.03 and Permitted
Refinancing Indebtedness incurred to Refinance such Indebtedness;




     (c) obligations (contingent or otherwise) of any member of the Consolidated Group
existing or arising under any Treasury Management Agreement or any Swap Contract,
provided that with respect to obligations under Swap Contracts, such
obligations are
entered into by such



83









 







Person in the ordinary course of business for the purpose of mitigating
risks associated with liabilities, commitments, investments, assets, or property held or
reasonably anticipated by such Person, or changes in the value of securities issued by such
Person, and not for purposes of speculation or taking a “market view”;




     (d) unsecured intercompany Indebtedness owing by and among members of the Consolidated
Group to the extent permitted by Section 8.02;




     (e) obligations to make contingent payments (including earn-out payments) incurred in
connection with (i) Permitted Acquisitions, Permitted Joint Venture Investments,
Dispositions permitted under Section 8.05, and (ii) Dispositions or Acquisitions
consummated prior to the Closing Date;




     (f) (i) secured Indebtedness of the Borrower or any of its Subsidiaries, including term
loan indebtedness, mortgage indebtedness, purchase money indebtedness, capital leases
(provided that any recharacterized operating leases on account of a change in GAAP after the
Closing Date shall not be deemed to constitute capital leases for purposes hereof) and
Synthetic Leases, provided that (A) the aggregate amount of all such Indebtedness
shall not at any time outstanding exceed $50 million, (B) with respect to such secured
Indebtedness, the liens and security interests relating thereto shall be limited to the
fixed assets that are the subject of the financing and (C) in the case of Indebtedness
assumed in connection with a Permitted Acquisition or Permitted Joint Venture Investment,
(x) the Indebtedness was not created in anticipation or contemplation of such acquisition or
investment and (y) no Default or Event of Default shall exist immediately before or
immediately after giving effect thereto on a Pro Forma Basis and (ii) Permitted Refinancing
Indebtedness in respect of Indebtedness described in clause (i) above.




     (g) Support Obligations of the Borrower or any of its Subsidiaries in respect of the
Indebtedness permitted by this Section 8.03; provided that Support
Obligations in respect of any Subordinated Debt shall be subordinated in right and time of
payment to the Loan Obligations owing hereunder on the same terms and conditions as the
Subordinated Debt to which they relate;




     (h) Support Obligations of Funded Debt of a Permitted Joint Venture Investment;
provided that (i) the aggregate principal amount of all such Support Obligations
shall not exceed $20 million at any time outstanding and (ii) no Default or Event of Default
shall existing immediately before or immediately after giving effect thereto on a Pro Forma
Basis;




     (i) (i) unsecured Indebtedness of the Borrower, including Subordinated Debt and seller
financing in connection with a Permitted Acquisition or a Permitted Joint Venture
Investment; provided that (A) no Default or Event of Default shall exist immediately before
or immediately after giving effect thereto on a Pro Forma Basis, (B) the aggregate principal
amount thereof shall not exceed $200 million at any time outstanding, (C) any seller
financing will be Subordinated Debt, and (D) the proceeds of such unsecured Indebtedness
shall be subject to the mandatory prepayment provisions of Section 2.06(b)(iii) and
(ii) Permitted Refinancing Indebtedness in respect of Indebtedness described in clause
(i) above;




     (j) Indebtedness in respect of netting services, temporary overdraft protections and
similar arrangements in each case in connection with cash management services in the
ordinary course of business;




     (k) Indebtedness representing deferred compensation to officers, directors, employees
of the Consolidated Group;



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     (l) endorsement of items for deposit or collection received in the ordinary course of
business;




     (m) other Indebtedness of the Borrower not contemplated in the foregoing clauses of
this Section in an aggregate principal amount not to exceed $30 million at any time
outstanding.




     (n) obligations with respect to (i) workers’ compensation, unemployment insurance or
other forms of governmental insurance or benefits of social security, to secure the
performance of tenders, statutory obligations, bids, leases, government contracts, contracts
(other than in respect of Indebtedness for borrowed money) and other similar obligations,
insurance premiums or reimbursement obligations, surety, stay, customs and appeal bonds,
performance bonds, performance and return-of-money bonds and completion guarantees and other
obligations of a similar nature and (ii) letters of credit or guarantees to support the
payment of such items; and




     (o) premiums (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest on obligations described in clauses
(a) through (n) of this Section 8.03.



     8.04 Mergers and Dissolutions.



     Merge, dissolve, liquidate, consolidate with or into another Person, except that:




     (a) so long as no Default or Event of Default exists or would result therefrom, (a) any
Subsidiary may merge or consolidate with (i) the Borrower; provided that the
Borrower shall be the continuing or surviving Person, (ii) any Guarantor; provided
that if such Guarantor is a Domestic Credit Party, a Domestic Credit Party shall be the
continuing or surviving Person or (iii) another Subsidiary; provided that (A) if
such Subsidiary is a Wholly-Owed Subsidiary, a Wholly-Owned Subsidiary shall be the
continuing or surviving Person and (B) if such Subsidiary is a Domestic Subsidiary, a
Domestic Subsidiary shall be the continuing or surviving Person;




     (b) any Subsidiary may consummate a merger, dissolution, liquidation, consolidation or
winding up, the purpose of which is to effect a disposition otherwise permitted by Section
8.05;




     (c) any Person may be merged or consolidated with or into the Borrower or any
Subsidiary if the acquisition of the Capital Stock (or the assets) of such Person by the
Borrower or such Guarantor is permitted by Section 8.02; provided that (i)
in the case of the Borrower, the Borrower shall be the continuing or surviving Person and
(ii) if a Guarantor is not the surviving or continuing Person, the surviving Person becomes
a Guarantor and complies with the provisions of Section 7.12(a);




     (d) any Subsidiary of the Borrower may (i) dissolve, liquidate or wind up its affairs
at any time; provided that such dissolution, liquidation or winding up, as
applicable, would not reasonably be expected to have a Material Adverse Effect or (ii) be
converted into, or reorganized or reconstituted as, a corporation, limited partnership or
limited liability company; provided that at the time of such conversion,
reorganization or reconstitution, (A) all actions required to maintain the perfection and
priority of the Liens of the Credit Documents shall have been taken to the reasonable
satisfaction of Administrative Agent, and (B) if the entity being converted, reorganized or
reconstituted, as applicable, is a Guarantor, the entity formed and/or surviving as a result
of any such conversion shall be a Guarantor; and



85









 






     (e) the Borrower and its Subsidiaries may consummate the Triumph Acquisition.



     8.05 Dispositions.



     Make any Disposition to or in favor of any Person, except:




     (a) Dispositions of property by any Subsidiary to a Credit Party or another Subsidiary;
provided that (i) if the transferor in such transaction is a Guarantor, then the
transferee must be a Credit Party, (ii) if the transferor in such transaction is a
Wholly-Owned Subsidiary, then the transferee must be a Credit Party or a Wholly-Owned
Subsidiary, and (iii) if the transferor in such a transaction is a Domestic Subsidiary, then
the transferee must also be a Domestic Subsidiary, in each case, unless such Disposition is
otherwise permitted by the terms of this Section 8.05;




     (b) Dispositions by the Consolidated Group of property pursuant to Sale and Leaseback
Transactions permitted pursuant to 
Section 8.03(f);




     (c) Dispositions (i) of notes or accounts receivable in connection with the collection
or compromise thereof or (ii) in connection with a Securitization Transaction permitted
hereunder;




     (d) Disposition of assets comprising hospitals or hospital units (or the Capital Stock
of a Person owning such assets) pursuant to one or more asset exchange transactions for like
or similar assets; provided that (i) the assets to be received by any member of the
Consolidated Group shall be received within three (3) months of the Disposition of the
assets subject to the exchange by such member of the Consolidated Group, (ii) the portion of
total consideration received by any member of the Consolidated Group comprised of cash or
Cash Equivalents shall be included in calculations for determining the amount of mandatory
prepayments required, if any, pursuant to Section 2.06(b)(ii), and any consideration
paid by any member of the Consolidated Group comprised of cash or Cash Equivalents shall
constitute an Investment permitted under Section 8.02, (iii) any such swap shall not
result in a “net” loss of more than $5 million of Consolidated EBITDA, (iv) any Indebtedness
assumed in connection with any such exchange transaction shall be permitted under
Section 8.03, (v) any Liens on the assets received by the Borrower or any of its
Wholly-Owned Subsidiaries shall be permitted under Section 8.01, (vi) the Borrower
shall be in compliance with the financial covenants in Section 8.14 after giving
effect thereto on a Pro Forma Basis, and (v) no Default or Event of Default shall exist
immediately after giving effect thereto;




     (e) licenses, sublicenses, leases or subleases granted to others not interfering in any
material respect with the business of the Consolidated Group;




     (f) Dispositions of Investments permitted by Section 8.02(a);




     (g) the Borrower and other members of the Consolidated Group may sell or dispose of
shares of Capital Stock to the extent required to qualify members of the governing body of
such member of the Consolidated Group under applicable Law;




     (h) Dispositions of any asset subject to any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding;



86









 






     (i) Dispositions of Investments in joint ventures, to the extent required by, or made
pursuant to buy/sell arrangements between the joint venture parties in, joint venture
agreements and similar binding arrangements entered into in the ordinary course of business;




     (j) the Borrower and its Subsidiaries may dispose of property no longer useful in the
business, or may abandon, fail to maintain or otherwise dispose of assets (including IP
Rights and leasehold properties) that are no longer material to the business of the Borrower
or any of its Subsidiaries, in each case in the ordinary course of business;




     (k) cancellations of any intercompany Indebtedness among the Borrower and its
Subsidiaries and, to the extent constituting an Investment, such Investment is permitted
under Section 8.02;




     (l) Liens granted in compliance with Section 8.01, Investments made in
compliance with Section 8.02 and Restricted Payments made in compliance with
Section 8.06;




     (m) voluntary terminations of obligations in respect of Swap Contracts; and




     (n) other Dispositions by the Consolidated Group, provided that (i) any such
Disposition is for fair market value, (ii) for any Disposition, or series of related
Dispositions, in excess of $12.5 million, at least seventy-five percent (75%) of the gross
sales price shall be comprised of cash or Cash Equivalents, and (iii) all such Dispositions
will not exceed $25 million in the aggregate in any calendar year; and (iv) no Default or
Event of Default shall exist immediately before or immediately after giving effect thereto
on a Pro Forma Basis.


The Collateral Agent will promptly deliver to the Borrower upon request, at the Borrower’s expense,
such release documentation (including delivery of applicable stock certificates) as may be
reasonably requested to evidence the release of subject Property from the security interests
securing the obligations hereunder in connection with dispositions permitted hereunder.




     8.06 Restricted Payments.



     Declare or make, directly or indirectly, any Restricted Payment, except that,




     (a) Subsidiaries of the Borrower may pay dividends and make distributions in respect of
their Capital Stock;




     (b) the Borrower may declare and make dividend payments or other distributions payable
solely in the common stock or other common equity interests of such Person;




     (c) the Borrower may purchase, redeem or otherwise acquire shares of its common stock
or other common equity interests or warrants or options to acquire any such shares with the
proceeds received from the substantially concurrent issue of new shares of its common stock
or other common equity interests;




     (d) The Borrower may make non-cash payments-in-kind on or in respect of Subordinated
Debt permitted hereunder;




     (e) beginning on the date twelve months after the Closing Date, the Borrower may pay
dividends and/or make cash purchases of its own Capital Stock if (i) total cash
consideration therefor does not exceed (A) $25 million in the aggregate in any calendar year
and (B) $75



87









 







million in the aggregate from the Closing Date and (ii) no Event of Default
shall exist immediately before or immediately after giving effect thereto on a Pro Forma
Basis;




     (f) Restricted Payments not in excess of $100,000 in the aggregate shall be permitted
in lieu of issuing fractional shares in connection with the exercise of warrants, options or
other securities convertible into or exchangeable for Capital Stock of the Borrower or its
Subsidiaries;




     (g) repurchases of Capital Stock deemed to occur upon exercise of stock options, rights
or warrants, if such options represent a portion of the exercise price of such Capital
Stock;




     (h) to the extent constituting Restricted Payments, the Borrower and its Subsidiaries
may enter into the transactions permitted by Section 8.02; and




     (i) Restricted Payments (and regularly scheduled or required payments of principal) in
respect of Subordinated Debt or any Permitted Refinancing Indebtedness thereof; provided
that (i) the amount of all such payments shall not exceed $15 million in the aggregate from
the Closing Date, and (ii) in any such case, no Default or Event of Default shall exist
immediately before or immediately after giving effect thereto on a Pro Forma Basis.



     8.07 [Intentionally Omitted].



     8.08 Change in Nature of Business.



     Engage in any material line of business substantially different from those lines of business
conducted by the Consolidated Group on the date hereof or any business reasonably related, similar,
ancillary or incidental thereto.



     8.09 Change in Fiscal Year.



     Change its fiscal year without the prior written consent of the Administrative Agent (not to
be unreasonably withheld, but with amendment, as necessary and appropriate, of the reference dates
on the financial covenants in Section 8.14).



     8.10 Transactions with Affiliates.



     Enter into any transaction of any kind with any Affiliate of the Borrower, whether or not in
the ordinary course of business, other than on fair and reasonable terms substantially as favorable
to the Borrower or such Subsidiary as would be obtainable by the Borrower or such Subsidiary at the
time in a comparable arm’s length transaction with a Person other than an Affiliate;
provided that the foregoing restriction shall not apply to the following:




     (a) transactions between or among the Credit Parties;




     (b) the consummation of the Triumph Acquisition, including the payment of all fees,
expenses, bonuses and awards related to the transactions contemplated by the Triumph Merger
Agreement;




     (c) indemnification payments to officers or directors of the Borrower and its
Subsidiaries to the extent required by the applicable Organization Documents or applicable
law;



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     (d) transactions otherwise expressly permitted by this Agreement;




     (e) the performance of the Borrower’s or any Subsidiary’s obligations under any
employment contract or collective bargaining agreement, employee benefit plan, related
trust agreement or any other similar agreement;




     (f) compensation (including bonuses and severance benefits and indemnification
arrangements) to directors, employees, officers or members of management of the Borrower and
its Subsidiaries in the ordinary course of business; and




     (g) equity issuances not prohibited by this Agreement.



     8.11 Amendments to Documents.



     Amend or otherwise change the terms of any Subordinated Debt having an aggregate principal
amount then outstanding in excess of $10 million (other than any intercompany Indebtedness), 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 Debt (or a trustee or other representative on their behalf) which
would be materially adverse to the Borrower or the interest of the Lenders; it being understood
that Permitted Refinancing Indebtedness is permitted.



     8.12 No Further Negative Pledges.



     Enter into any Contractual Obligation (other than this Credit Agreement and the other Credit
Documents) that limits the ability:



     (a) of any Subsidiary to make Restricted Payments or to otherwise transfer property to the
Borrower or any Guarantor; provided, however, that this clause (a) shall not
prohibit (i) any limitations set forth in the Organization Documents or to the extent required by
Law, (ii) any limitations set forth in any joint venture arrangements or similar arrangements to
the extent permitted to be entered into as expressly provided or required by this Credit Agreement,
(iii) any limitations on the disposition of assets subject to Permitted Liens, (iv) restrictions
which are not more restrictive than those contained in this Agreement contained in any documents
governing any Indebtedness incurred after the Closing Date in accordance with the provisions of
this Agreement, (v) any instrument governing Indebtedness assumed in connection with any Permitted
Acquisition or Permitted Joint Venture Investment, 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, and (vi) any encumbrances or restrictions imposed
by any amendments or refinancings that are otherwise permitted by the Credit Documents of the
contracts, instruments or obligations referred to above; provided that such amendments or
refinancings are no more restrictive in any material respect with respect to such encumbrances and
restrictions than those prior to such amendment or refinancing and (vii) customary restrictions and
conditions contained in any agreement relating to the Disposition of any property or assets
permitted under Section 8.05 pending the consummation of such Disposition,



     (b) of any Domestic Subsidiary that is a Wholly-Owned Subsidiary to guarantee the Obligations,
or



     (c) of the Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person to secure the Obligations; provided, however, that this
clause (c) shall not prohibit (i) any negative pledge incurred or provided in favor of any
holder of Indebtedness permitted



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under Section 8.03 solely to the extent any such negative
pledge relates to the property financed by or the subject of such Indebtedness, (ii) any Permitted
Lien or any document or instrument governing any Permitted Lien; provided that any such
restriction contained therein relates only to the asset or assets
subject to such Permitted Lien, (iii) customary restrictions and conditions contained in any
agreement relating to the Disposition of any property or assets permitted under Section
8.05 pending the consummation of such Disposition, (iv) 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, (v) with respect to
customary restrictions entered into in the ordinary course of business with respect to IP Rights
that limit the ability to grant a security interest in such IP Rights, (vi) any agreements
governing any leasehold interest (including any rights of way, allocation agreements and other
similar such interests in real estate) or building entry agreements that limit the ability to grant
a security interest in such leasehold interest or building entry agreements, (vii) customary
anti-assignment provisions in contracts restricting the assignment thereof, (viii) restrictions
which are not more restrictive than those contained in this Agreement contained in any documents
governing any Indebtedness incurred after the Closing Date in accordance with the provisions of
this Agreement, (ix) any agreement in effect on the Closing Date or at the time any Person becomes
a Subsidiary of the Borrower, so long as such agreement was not entered into solely in
contemplation of such Person becoming a Subsidiary of the Borrower, and (x) any encumbrances or
restrictions imposed by any amendments or refinancings that are otherwise permitted by the Credit
Documents of the contracts, instruments or obligations referred to above; provided that
such amendments or refinancings are no more restrictive in any material respect with respect to
such encumbrances and restrictions than those prior to such amendment or refinancing.



     8.13 Sale Leasebacks.



     Except with the prior written consent of the Required Lenders, the Credit Parties will not
permit any member of the Consolidated Group to enter into any Sale and Leaseback Transaction unless
such Sale and Leaseback Transaction would be permitted under Section 8.03(f) hereof.



     8.14 Financial Covenants.



     (a) Consolidated Senior Leverage Ratio. As of the last day of each fiscal quarter,
the Consolidated Senior Leverage Ratio shall be not greater than:



	 	 	 	 	 
	 	 	Maximum Consolidated
	Fiscal Quarters Ending	 	Senior Leverage Ratio
	Closing Date through June 30, 2010
	 	 	3.75:1.0	 
	September 30, 2010
	 	 	3.50:1.0	 
	December 31, 2010 through September 30, 2011
	 	 	3.25:1.0	 
	December 31, 2011 through September 30, 2012
	 	 	3.00:1.0	 
	December 31, 2012 through December 31, 2013
	 	 	2.75:1.0	 
	March 31, 2014 and thereafter
	 	 	2.50:1.0	 






     (b) Consolidated Total Leverage Ratio. As of the last day of each fiscal quarter, the
Consolidated Total Leverage Ratio shall be not greater than:



	 	 	 	 	 
	 	 	Maximum Consolidated
	Fiscal Quarters Ending	 	Total Leverage Ratio
	Closing Date through September 30, 2011
	 	 	3.75:1.0	 
	December 31, 2011 through September 30, 2013
	 	 	3.50:1.0	 
	December 31, 2013 and thereafter
	 	 	3.25:1.0	 






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     (c) Consolidated Fixed Charge Coverage Ratio. As of the last day of each fiscal
quarter, the Consolidated Fixed Charge Coverage Ratio shall be not less than:



	 	 	 	 	 
	 	 	Minimum Consolidated
	 	 	Fixed Charge Coverage
	Fiscal Quarters Ending	 	Ratio
	Closing Date through December 31, 2011
	 	 	1.25:1.0	 
	March 31, 2012 and thereafter
	 	 	1.50:1.0	 






ARTICLE IX




EVENTS OF DEFAULT AND REMEDIES




     9.01 Events of Default.



     Any of the following shall constitute an Event of Default:



     (a) Non-Payment. The Borrower or any other Credit Party fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan, or (ii) within one (1) Business
Day after notice of a drawing under a Letter of Credit to the Borrower or other Credit Party, any
reimbursement obligation in respect thereof, or (iii) within three (3) Business Days after the same
becomes due, any interest on any Loan or on any L/C Obligation, or any fee or other amount due
hereunder or under any other Credit Document; or



     (b) Specific Covenants. The Borrower or any other Credit Party fails to perform or
observe any term, covenant or agreement contained in (i) Section 7.01 and Section
7.02(a), and such failure shall continue unremedied for a period of at least five (5)
Business Days after the earlier of a Responsible Officer of a Credit Party, becoming aware of such
default or written notice thereof by the Administrative Agent or (ii) any of Section
7.03(a), Section 7.05(a) (solely with respect to the Borrower) or Section 7.11
or Article VIII.



     (c) Other Defaults. The Borrower or any other Credit Party fails to perform or
observe any other covenant or agreement (not specified in subsection (a) or (b)
above) contained in any Credit Document on its part to be performed or observed and such failure
continues for thirty (30) days after written notice thereof to the Borrower by the Administrative
Agent; or



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



     (e) Cross-Default. (i) Any member of the Consolidated Group (A) fails to make any
payment when due (after giving effect to any grace period applicable thereto and whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any
Indebtedness (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an
aggregate principal amount (including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement) of more than $10
million, or (B) fails to observe or perform any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto,
or any other event occurs, the effect of



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which default or other event is to cause, or to permit the
holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Indebtedness (or
a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause
such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to
repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity;
or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap Contract as to which the Borrower
or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination
Event (as so defined) under such Swap Contract as to which the Borrower or any Subsidiary is an
Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the
Borrower or such Subsidiary as a result thereof is greater than $10 million; or



     (f) Insolvency Proceedings, Etc. Any member of the Consolidated Group institutes or
consents to the institution of any proceeding under any Debtor Relief Law, or makes a general
assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for sixty (60) days; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or any material part
of its property is instituted without the consent of such Person and continues undismissed or
unstayed for sixty (60) days, or an order for relief is entered in any such proceeding; or



     (g) Inability to Pay Debts. Any member of the Consolidated Group becomes unable or
admits in writing its inability or fails generally to pay its debts as they become due; or



     (h) Judgments. There is entered against any member of the Consolidated Group one or
more final judgments or orders for the payment of money in an aggregate amount (as to all such
judgments or orders) exceeding $10 million (to the extent not covered by independent third-party
insurance as to which the insurer has not denied coverage) and remains undischarged, unvacated,
unbonded or unstayed pending appeal for a period in excess of thirty (30) days from the date of
entry; or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan that has resulted or would reasonably be expected to result in liability of a Credit Party
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of $10 million, or (ii) a Credit Party or any ERISA Affiliate fails to pay when due,
after the expiration of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of $10 million; or



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



     (k) Change of Control. There occurs any Change of Control with respect to the
Borrower.




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     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) upon written notice to the Borrower, declare the commitments of the Lenders to make
Loans and the obligations of the L/C Issuers to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligations shall be terminated;




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




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




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


provided, however, that upon the occurrence of an Event of Default under Section
9.01(f) or (g), 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,
non-contingent indemnities and expenses and amounts payable under Article III
payable to the Administrative Agent and the Collateral Agent, in each case in its capacity
as such;




     Second, to payment of that portion of the Obligations constituting fees,
non-contingent indemnities and amounts payable to the Lenders under Article III,
ratably among the Lenders 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, L/C Borrowings and other Loan
Obligations, ratably among the Lenders, the Swingline Lender and the L/C Issuers in
proportion to the respective amounts described in this clause Third payable to 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
amounts owing in respect of any Secured Swap Contract between any Credit Party and any
Secured Swap Provider, to the extent such Secured Swap Contract is permitted hereunder, (c)
payments of amounts due under any Treasury Management Agreement between any Credit Party and
any Lender, or any



93









 







Affiliate of a Lender and (d) the Administrative Agent for the account of
the applicable L/C Issuers, to Cash Collateralize that portion of the L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit, ratably among such parties
in proportion to the respective amounts described in this clause Fourth payable to
them; and




     Last, the balance, if any, after all of the Obligations have been 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 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 AND COLLATERAL AGENT




     10.01 Appointment and Authorization of Administrative Agent and Collateral Agent.



     (a) Each of the Lenders and each of the L/C Issuers hereby irrevocably appoints Bank of
America to act on its behalf as the Administrative Agent hereunder and under the other Credit
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
(other than the provisions of this Section 10.01 but only for the limited purpose of
acknowledging and consenting to the appointment of the Administrative Agent and Collateral Agent
hereunder and Section 10.06), and neither the Borrower nor any other Credit Party shall
have rights as a third party beneficiary of any of such provisions.



     (b) Each of the Lenders hereby irrevocably appoints, designates and authorizes the Collateral
Agent to take such action on its behalf under the provisions of this Credit Agreement and each
other Credit Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Credit Agreement or any other Credit Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any Collateral Document, the Collateral Agent shall not have any
duties or responsibilities, except those expressly set forth herein or therein, nor shall the
Collateral Agent have or be deemed to have any fiduciary relationship with any Lender or
participant, and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Credit Agreement or any Collateral Document or otherwise exist
against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use
of the term “agent” herein and in the Collateral Documents with reference to the Collateral Agent
is not intended to connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative relationship between
independent contracting parties. The Collateral Agent shall act on behalf of the Lenders with
respect to any Collateral and the Credit Documents, and the Collateral Agent shall have all of the
benefits and immunities (i) provided to the Administrative Agent under the Credit Documents with
respect to any acts taken or omissions suffered by the Collateral Agent in connection with any
Collateral or the Credit Documents as fully as if the term “Administrative Agent” as used in such
Credit Documents included the Collateral Agent with respect to such acts or omissions, and (ii) as
additionally provided herein or in the Credit Documents with respect to the Collateral Agent.




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     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 the Borrower 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 Credit Documents. Without limiting the generality of the foregoing,
the Administrative Agent:




     (a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default or Event of 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 Credit 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 Credit 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 Credit Document or applicable law; and




     (c) shall not, except as expressly set forth herein and in the other Credit Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower 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, bad faith 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 Credit
Agreement or any other Credit 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 or Event of Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Credit Agreement, any other Credit Document or
any other agreement, instrument or document or (v) the



95









 







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



     10.05 Delegation of Duties.



     The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Credit 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 the Administrative Agent.



     Each of the Administrative Agent and the Collateral 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, with the consent of the Borrower (which
consent not to be unreasonably withheld or delayed), to appoint a successor, which shall not be a
Disqualified Institution and shall be a bank or other financial institution with an office in the
United States, or an Affiliate of any such bank or financial institution with an office in the
United States; provided, however, that the consent of the Borrower shall not be required if
an Event of Default under Section 9.01(a) or (f) shall have occurred and be
continuing. If no such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty (30) days after the retiring Administrative Agent or
Collateral Agent, as applicable, gives notice of its resignation, then the retiring Administrative
Agent or Collateral Agent, as applicable, shall on behalf of the Lenders and the L/C Issuers,
appoint a successor Administrative Agent or Collateral Agent with the consent of the Borrower
(which consent not to be unreasonably withheld or delayed), as applicable, meeting the
qualifications set forth above; provided, however, that the consent of the Borrower shall
not be required if an Event of Default under Section 9.01(a) or (f) shall have
occurred and be continuing; provided further that if the Administrative Agent or
the Collateral Agent, as applicable, shall notify the Borrower and the Lenders that no qualifying
Person has accepted such appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent or Collateral Agent, as
applicable,



96









 







shall be discharged from its duties and obligations hereunder and under the other
Credit Documents (except that in the case of any collateral security held by the Administrative
Agent or Collateral Agent, as
applicable, on behalf of the Lenders or the L/C Issuers under any of the Credit Documents, the
retiring Administrative Agent or Collateral Agent, as applicable, shall continue to hold such
collateral security until such time as a successor Administrative Agent or Collateral Agent, as
applicable, is appointed) and (2) all payments, communications and determinations provided to be
made by, to or through the Administrative Agent or Collateral Agent, as applicable, shall instead
be made by or to each Lender and each L/C Issuer directly (and each Lender and L/C Issuer will
cooperate with the Borrower to enable the Borrower to take such actions), until such time as the
Required Lenders appoint a successor Administrative Agent or Collateral Agent, as applicable, as
provided for above in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent or Collateral Agent, as applicable, 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 or Collateral Agent, as applicable, and the retiring Administrative
Agent or Collateral Agent, as applicable,
shall be discharged from all of its duties and
obligations hereunder or under the other Credit Documents (if not already discharged therefrom as
provided above in this Section) (other than its obligations under Section 11.07). 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 or Collateral Agent’s resignation, as applicable, hereunder and
under the other Credit Documents, the provisions of this Article and Section 11.04 shall
continue in effect for the benefit of such retiring Administrative Agent or Collateral 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 or Collateral Agent, as applicable,
was acting as Administrative Agent or Collateral Agent, as applicable.



     Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as an L/C Issuer and the Swingline Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swingline Lender, (b) the retiring L/C Issuer and Swingline Lender shall be discharged from all of
their respective duties and obligations hereunder or under the other Credit Documents, and (c) the
successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if
any, issued by the retiring L/C Issuer and 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 Credit 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 Credit Agreement, any other Credit Document or any related agreement or any document
furnished hereunder or thereunder.



     10.08 No Other Duties.



     Anything herein to the contrary notwithstanding, none of the Co-Syndication Agents,
Co-Documentation Agents, Joint Lead Arrangers, Joint Book Managers, Co-Documentation Agents or
other



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similar titles listed on the cover page hereof shall have any powers, duties or
responsibilities under this Credit Agreement or any of the other Credit Documents, except in its
capacity, as applicable, as the
Administrative Agent, the Collateral 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 Credit Party, the Administrative Agent (irrespective of whether the
principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any
demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or
otherwise:



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations (other than obligations
under Swap Contracts or Treasury Management Agreements to which the Administrative Agent is not a
party) that are owing and unpaid and to file such other documents as may be necessary or advisable
in order to have the claims of the Lenders, the L/C 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 2.09
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, in the event that 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,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any
L/C Issuer or 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 each of the Administrative Agent and the
Collateral Agent to (and the Administrative Agent and the Collateral Agent will, in any such case):



     (a) release any Lien on any property granted to or held by the Collateral Agent under any
Credit Document (i) on the date upon which Aggregate Commitments are terminated and all Loan
Obligations (other than contingent indemnification obligations) are paid in full and all Letters of
Credit (other than Letters of Credit as to which Cash Collateral has been provided or Alternative
Arrangements reasonably satisfactory to the Administrative Agent and the applicable L/C Issuers
shall have been made) have expired or terminated (such date, the “Termination Date”), (ii)
that is Disposed or to be Disposed as part of or in connection with any disposition permitted
hereunder or under any other Credit Document, or



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(iii) subject to Section 11.01, if
approved, authorized or ratified in writing by the Required Lenders;



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



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



     Upon request by the Administrative Agent or the Collateral Agent at any time, the Required
Lenders will confirm in writing the authority of the Collateral Agent to release or subordinate its
interest in particular property and of the Administrative Agent to release any Guarantor from its
obligations hereunder pursuant to this Section 10.10.



ARTICLE XI




MISCELLANEOUS




     11.01 Amendments, Etc.



     (a) Except as expressly provided herein below, no amendment or waiver of any provision of this
Credit Agreement or any other Credit Document, and no consent to any departure by the Borrower or
any other Credit Party therefrom, shall be effective unless in writing signed by the Required
Lenders (or by the Administrative Agent on behalf of the Required Lenders upon receipt of a consent
and direction letter from the Required Lenders) and the Borrower or the applicable Credit 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, however, that:




     (i) no such amendment, waiver or consent shall be effective without the written consent
of each Lender directly affected thereby (whose consent shall be sufficient therefor without
the consent of the Required Lenders) where the effect would be to:




     (A) extend the scheduled final maturity of any Loan or Note of such Lender;




     (B) waive, reduce or postpone any scheduled repayment (but not prepayment) in
respect of such Lender’s Loans;




     (C) reduce the rate of interest on any Loan or any fee payable hereunder or
prepayment of any premium payable hereunder, provided that for purposes
hereof, neither the amendment or waiver of application of the Default Rate nor the
amendment, modification or waiver of the financial covenants or the financial
covenant definitions hereunder shall be considered to constitute a reduction in the
rate of interest or fees, even if the effect thereof would be to reduce the rate of
interest or fees otherwise payable hereunder;




     (D) extend the time for payment of any interest or fees or prepayment premium
owing to such Lender;




     (E) reduce or forgive the principal amount of any Loan or any reimbursement
obligation in respect of any Letter of Credit (except by virtue of any waiver of a
prepayment owing to such Lender);



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     (F) increase the Commitment of such Lender hereunder; provided that in
no
event shall an amendment, modification, termination, waiver or consent with respect
to any mandatory prepayment, condition precedent, covenant, Default or Event of
Default be considered an increase in Commitments and that an increase in the
available portion of any Commitment of any Lender or any rescission of the
acceleration of the Loans shall not constitute an increase in Commitments;




     (G) amend, modify, terminate or waive any provision of Section 2.11(f),
Section 2.12, Section 9.03 or clause (a) of this Section
11.01 as to such Lender (except for, in each case, technical amendments with
respect to the establishment of additional tranches or additional extensions of
credit pursuant to this Credit Agreement to provide protective provisions hereunder
of substantially the type afforded those tranches and extensions of credit on the
Closing Date and except for, solely in respect of clause (a) of this Section
11.01, technical amendments which do not adversely affect the rights of any Lender);




     (H) change any provision of this Credit Agreement regarding pro rata sharing or
pro rata funding with respect to (i) the making of advances (including
participations), (ii) the manner of application of payments or prepayments of
principal, interest or fees, (iii) the manner of application of reimbursement
obligations from drawings under Letters of Credit, or (iv) the manner of reduction
of Commitments and committed amounts, except that nothing contained herein shall
limit (A) an “amend and extend” of some, but not all, of the Commitments under a
credit facility hereunder, (B) a termination of Commitments held by a Defaulting
Lender, (C) any changes resulting solely from increases or other changes in the
aggregate amount of the Commitments permitted hereunder or otherwise approved
pursuant to this Section 11.01 and to reflect the addition of any Loans or extension
of credit permitted hereunder or (D) a purchase by the Borrower at a discount of the
loans and obligations hereunder on terms and conditions acceptable to the Required
Lenders;




     (I) amend the definition of “Required Lenders” or “Commitment Percentage”
(except for technical amendments with respect to the establishment of additional
tranches or additional extensions of credit pursuant to this Credit Agreement to
provide for substantially the same kind of treatment afforded those tranches and
extensions of credit on the Closing Date);




     (J) release all or substantially all of the Collateral, or release all or
substantially all of the Guarantors from their guaranty obligations, except as
expressly provided herein or in the other Credit Documents, or otherwise appropriate
in connection with transactions permitted hereunder, provided that it is understood
and agreed that additional tranches or additional extensions of credit established
pursuant to the terms of this Credit Agreement may be equally and ratably secured
(or secured on a junior basis) by the Collateral securing the loans and obligations
hereunder; or




     (ii) unless also signed by the Required Revolving Lenders, no such amendment, waiver or
consent shall:




     (A) waive any Default or Event of Default for purposes of Section 5.02
in respect of a Credit Extension under the Revolving Commitments;



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     (B) amend or waive any mandatory prepayment on the Revolving Obligations under
Section 2.06(b) or the manner of application thereof to the Revolving
Obligations under Section 2.06(c); or




     (C) amend or waive the provisions of this Section 11.01(a)(ii) or the
definition of “Required Revolving Lenders” (except for, in each case, technical
amendments with respect to the establishment of additional tranches or additional
extensions of credit pursuant to this Credit Agreement to provide for substantially
the same kind of treatment afforded those tranches and extensions of credit on the
Closing Date, and except for, solely in respect of this Section 11.01(a)(ii),
technical amendments which do not adversely affect the rights of the Revolving
Lenders); or




     (iii) unless also signed by the Required Term Loan B Lenders, no such amendment, waiver
or consent shall:




     (A) amend or waive any mandatory prepayment on the Term Loan B under
Section 2.06(b) or the manner of application thereof to the Term Loan B
under Section 2.06(c), or




     (B) amend or waive the provisions of this Section 11.01(a)(iii) or the
definition of “Required Term Loan B Lenders” (except for, in each case, technical
amendments with respect to the establishment of additional tranches or additional
extensions of credit pursuant to this Credit Agreement to provide for substantially
the same kind of treatment afforded those tranches and extensions of credit on the
Closing Date, and except for, solely in respect of this Section 11.01(a)(iii),
technical amendments which do not adversely affect the rights of the Term Loan B
Lenders);




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




     (v) unless also consented to in writing by the Swingline Lender, no such amendment,
waiver or consent shall affect the rights or duties of the Swingline Lender under this
Credit Agreement;




     (vi) unless also consented to in writing by the Administrative Agent, no such
amendment, waiver or consent shall affect the rights or duties of the Administrative Agent
under this Credit Agreement or any other Credit Document; and




     (vii) unless also consented to in writing by the Collateral Agent, no such amendment,
waiver or consent shall affect the rights or duties of the Collateral Agent under this
Credit Agreement or any other Credit Document;


and provided further that, notwithstanding anything to the contrary
contained herein, (i) no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that





     (A) the Revolving Commitment of a Defaulting Lender may not be increased or extended
and the principal amount of the Loans or L/C Borrowings of the Defaulting Lender may not be
reduced or forgiven, and



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     (B) the rate of interest for the Defaulting Lender may not be reduced (except as
expressly provided in clause (a)(i)(C) above) in a way that would affect a
Defaulting Lender more
adversely than the other affected Lenders,



     without, in any such case, the consent of the Defaulting Lender,


(ii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy or insolvency
reorganization plan that affects the Loans, (iii) each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersede the unanimous consent provisions set forth herein,
(iv) the Required Lenders may consent to allow a Credit Party to use cash collateral in the context
of a bankruptcy or insolvency proceeding, and (v) each of the Fee Letters may be amended, or rights
or privileges thereunder waived, in a writing executed only by the parties thereto.




     (b) For the avoidance of doubt and notwithstanding provisions to the contrary in this
Section 11.01 or elsewhere in this Credit Agreement, this Credit Agreement may be amended
(or amended and restated) with the written consent of the Credit Parties and the Administrative
Agent for the purpose of including one or more Incremental Credit Facilities contemplated in
subsection (e) of Section 2.01, by (i) increasing the aggregate amount of
Commitments under any of the respective facilities and (ii) adding one or more additional borrowing
tranches hereunder and to provide for the ratable sharing of the benefits of this Credit Agreement
and the other Loan Documents with the Other commitments and Obligations contemplated herein and
therein.



     11.02 Notices; Effectiveness; Electronic Communication.



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




     (i) if to the Borrower, the Administrative Agent, an L/C Issuer or the Swingline
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, 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 Administrative
Agent, the Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic
communication (including e-mail (including by portable document format “pdf”) 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 the L/C



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Issuer, as applicable, has notified the Administrative
Agent and the Borrower that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or communications.



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



     (c) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW)
DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE CREDIT PARTY MATERIALS OR THE ADEQUACY OF THE
PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE CREDIT PARTY
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
CREDIT PARTY 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 any Credit Party,
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 any Credit Party’s or the
Administrative Agent’s transmission of Credit Party 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, bad faith or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to any Credit Party, 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, the L/C
Issuers and the Swingline 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 Swingline 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 Credit Party 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.



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     (e) Reliance by Administrative Agent, L/C Issuers 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) given by or on behalf of the Borrower even if 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. 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.



     11.03 No Waiver; Cumulative Remedies; Enforcement.



     No failure by any Lender, any L/C Issuer, Swingline Lender 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 preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided
by law.



     Notwithstanding anything to the contrary contained herein or in any other Credit Document, the
authority to enforce rights and remedies hereunder and under the other Credit Documents against the
Credit 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 or the Collateral Agent, as the case may be, 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 Credit Documents, (b) any L/C Issuer or the Swingline Lender
from exercising the rights and remedies that inure to its benefit (solely in its capacity as an L/C
Issuer or Swingline Lender, as the case may be) hereunder and under the other Credit Documents, (c)
any Lender from exercising setoff rights in accordance with Section 11.08 (subject to the
terms of Section 2.12), 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 Credit 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 Credit Documents, then the
Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to
Section 9.02.



     11.04 Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees and
expenses of Moore & Van Allen, PLLC, or any successor firm acting in such capacity, and, if
necessary, one (1) local counsel) in connection with the syndication of the credit facilities
provided for herein, the preparation, negotiation, execution, delivery and administration of this
Credit Agreement and the other Credit Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), and (ii) without duplication of Section 2.03, all reasonable
out-of-pocket expenses incurred by any L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent, any Lender or
any L/C Issuer, including the reasonable fees and expenses of counsel (but limited, in the case of
legal fees and expenses, to the reasonable fees and expenses of one outside law firm for the
Administrative Agent or Collateral Agent, as appropriate, and one outside law firm for the Lenders
taken as a whole, and, if necessary and appropriate, one local counsel and one regulatory counsel
for the



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Administrative Agent or the Collateral Agent, as appropriate, and the Lenders taken as a
whole in each appropriate jurisdiction, unless the interests of any Lender or group of Lenders are
distinctly or
disproportionately affected, then one additional counsel for each such Lender or group of
Lenders), in connection with the enforcement or protection of its rights and interests (A) in
connection with this Credit Agreement and the other Credit Documents, including its rights under
this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder,
including all such reasonable out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.



     (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), the Collateral 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 each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the reasonable fees and
expenses of counsel (but limited, in the case of legal fees and expenses, to the reasonable fees
and expenses of one outside law firm for the Administrative Agent and the Lenders taken as a whole,
and, if necessary and appropriate, one local counsel and one regulatory counsel for the
Administrative Agent taken as a whole in each appropriate jurisdiction, unless (x) the interests of
the Administrative Agent and the Lenders are sufficiently divergent, in which case one additional
counsel may be appointed and (y) if the interests of any Lender or group of Lenders are distinctly
or disproportionately affected, one additional counsel for each such Lender or group of Lenders),
in each case incurred by any Indemnitee or asserted against any Indemnitee by any third party or by
the Borrower or any other Credit Party arising out of, in connection with, or as a result of (i)
the execution or delivery of this Credit Agreement, any other Credit 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 Credit Agreement and the other Credit 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 any L/C
Issuer to honor a demand for payment under a Letter of Credit issued by it 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 the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third party or by the
Borrower or any other Credit 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 are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence, bad faith or willful misconduct of any such Indemnitee, in the case of the
Administrative Agent (and any sub-agent thereof), the Collateral Agent (and any sub-agent thereof)
and their Related Parties, and from gross negligence, bad faith, willful misconduct or material
breach of the Indemnitee’s obligations hereunder or under any of the other Credit Documents, in the
case of the Lenders, the L/C Issuers and their Related Parties.



     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), any 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), such L/C Issuer or such Related Party, as the case may be, such Lender’s
Aggregate Commitment Percentage or, in the case of L/C Obligations, Revolving Commitment Percentage
(determined in each case as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount,



105









 







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 such 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 such L/C Issuer in
connection with such capacity. The obligations of the Lenders under this subsection (c)
are subject to the provisions of Section 2.11(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no party hereto (or any Indemnitee) shall assert, and each party hereto (and each
Indemnitee) hereby waives, any claim against any other party hereto (or 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 Credit Agreement,
any other Credit 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 party hereto shall be liable for any damages arising from the unauthorized use by unintended
recipients of any information or other materials distributed to such unintended recipients by such
party through telecommunications, electronic or other information transmission systems in
connection with this Credit Agreement or the other Credit Documents or the transactions
contemplated hereby or thereby other than for direct or actual damages resulting from the gross
negligence, bad faith or willful misconduct of, such party as determined by a final and
nonappealable judgment of a court of competent jurisdiction.



     (e) Payments. All amounts due under this Section shall be payable not later than
fifteen (15) 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 Swingline Lender, the replacement of any Lender, the
termination of the Aggregate 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 the Borrower 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 on 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 Termination Date.



     11.06 Successors and Assigns.



     (a) Successors and Assigns Generally. The provisions of this Credit Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that neither any Borrower nor any other Credit Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the Administrative



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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 Credit 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 Credit 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 Credit Agreement (including all
or a portion of its Commitments and the Loans (including for purposes of this subsection
(b), participations in L/C Obligations and in Swingline Loans) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender, 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 million, in the case of any assignment of a Revolving Commitment, and $1
million, in the case of any assignment with respect to the Term Loan, unless each of
the Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent assignments
from members of an Assignee Group to a single Eligible Assignee (or to an assignee
and members of its Assignee Group) will be treated as a single Eligible Assignee 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 rights and obligations
under this Credit Agreement with respect to the Loans or the Commitment assigned, except
that this clause (ii) shall not (A) apply to the Swingline Lender’s rights and
obligations in respect of Swingline Loans or (B) prohibit any Lender from assigning all or a
portion of its rights and obligations among its separate Revolving Commitment and Term Loan
Commitment on a non-pro rata basis;





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     (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; provided that whether or not an
Event of
Default has occurred and is continuing at the time of such assignment, consent
of the Borrower, which shall be made in its sole discretion, shall be required with
respect to any assignment to a Disqualified Institution, (2) such assignment is to a
Lender, an Affiliate of a Lender or an Approved Fund or (3) such assignment is made
pursuant to Section 11.06(f);




     (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, 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;




     (C) the consent of each L/C Issuer (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




     (D) the consent of the Swingline Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment in respect of a Revolving
Commitment.




     (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 is not 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 without the consent of the
Required Lenders.




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




     (vii) No Assignment to Defaulting Lenders or Impacted Lenders. No assignment
may be made to a Defaulting Lender or an Impacted Lender without the prior written consent
of the Administrative Agent, the L/C Issuers, the Swingline Lender and the Borrower.



     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 Credit Agreement and,
to the extent of the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Credit 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 Credit Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender’s rights and obligations under this Credit Agreement, such Lender shall
cease to be a party hereto) but shall continue to be entitled to the benefits (and be subject to
the obligations) of Sections 3.01, 3.04, 3.05, 11.04 and
11.07 with respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request,



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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 Credit
Agreement that does not comply with this
subsection shall be treated for purposes of this Credit 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 absent manifest error, 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 Credit 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,
any Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person, any Disqualified Institution, or unless otherwise consented to by the Required Lenders, 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 Credit Agreement (including
all or a portion of its Commitments and/or the Loans (including such Lender’s participations in L/C
Obligations and/or Swingline Loans) owing to it); provided that (i) such Lender’s
obligations under this Credit 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 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 Credit Agreement.



     Any agreement or instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Credit Agreement and to approve any
amendment, modification or waiver of any provision of this Credit 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 the first proviso to
Section 11.01 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 2.12 as though it were a Lender.



     (e) Limitations upon 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, without the consent of the Borrower,
pledge or assign a security interest in all or any portion of its rights under this Credit
Agreement (including under its Note(s), 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.




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     (g) Resignation as L/C Issuer or Swingline Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America, Royal Bank or BNP
Paribas assigns all of its Revolving Commitment and Revolving Loans pursuant to subsection
(b) above, Bank of America, Royal Bank or BNP Paribas, as applicable, may, (i) upon thirty (30)
days’ notice to the Borrower and the Revolving Lenders, resign as an L/C Issuer and/or (ii) in the
case of Bank of America, upon thirty (30) days’ notice to the Borrower, resign as Swingline Lender.
In the event of any such resignation as an L/C Issuer or Swingline Lender, the Borrower shall be
entitled to appoint from among the Revolving Lenders a successor L/C Issuer or Swingline Lender
hereunder; provided, however, that no failure by the Borrower to appoint any such
successor shall affect the resignation of Bank of America, Royal Bank or BNP Paribas as an L/C
Issuer or Swingline Lender, as the case may be. If Bank of America, Royal Bank or BNP Paribas
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 issued by it and 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 Revolving 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 Swingline Lender, it shall retain all the rights of the Swingline Lender provided for
hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of
such resignation, including the right to require the Revolving Lenders to make Base Rate Loans or
fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(b). Upon
the appointment of a successor L/C Issuer and/or Swingline Lender, (a) such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of the retiring L/C
Issuer or Swingline Lender, as the case may be, and (b) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit issued by the retiring L/C Issuer, 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 such resigning L/C Issuer with
respect to such Letters of Credit.



     11.07 Treatment of Certain Information; Confidentiality.



     Each of the Administrative Agent, each Lender and each L/C Issuer 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 and, in the case of its Affiliates, the
Administrative Agent, relevant Lender or L/C Issuer, as applicable, shall be responsible for its
Affiliates’ compliance under this Section 11.07), (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
Credit Document or any action or proceeding relating to this Credit Agreement or any other Credit
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 Credit Agreement or any Eligible Assignee invited to be a Lender pursuant to Section
2.01(e) or (ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower 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 that is not known to be bound by confidentiality obligations to the
Borrower and other Credit Parties.




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     For purposes of this Section, “Information” means all information received from the
Borrower or any Subsidiary relating to the Borrower 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 from a source not known by the Administrative
Agent, relevant Lender or L/C Issuer to be bound by confidentiality obligations to the Borrower and
other Credit Parties prior to disclosure by the Borrower or any Subsidiary, provided that,
in the case of information received from the Borrower 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, each Lender and each L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Borrower or a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including United States federal and state securities Laws.



     11.08 Right of Setoff.



     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, 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, each L/C Issuer or any such
Affiliate to or for the credit or the account of the Borrower or any other Credit Party against any
and all of the obligations of such Borrower or such Credit Party now or hereafter existing under
this Credit Agreement or any other Credit 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 Credit
Agreement or any other Credit Document and although such obligations of such Borrower or such
Credit 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 deposit or obligated on such
indebtedness. The rights of each Lender, such 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 such 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 Credit Document, the interest paid
or agreed to be paid under the Credit 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



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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 Credit 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 Credit Agreement and the other Credit 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 Credit 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 Credit Agreement by telecopy or other electronic imaging means (including pdf) shall
be effective as delivery of a manually executed counterpart of this Credit Agreement.



     11.11 Survival of Representations and Warranties.



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



     11.13 Replacement of Lenders.



     If (a) any Lender requests compensation under Section 3.04, (b) any 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, (c) a Lender (a “Non-Consenting Lender”)
does not consent (including, without limitation, by a failure to respond in writing to a proposed
amendment by the date and time specified by the Administrative Agent) to a proposed amendment,
consent, change, waiver, discharge or termination with respect to any Credit Document that has been
approved by Required Lenders or Lenders of a particular class of loans under Section 11.01
but which requires unanimous consent of all Lenders, all affected Lenders or all Lenders of a
particular class of loans, as applicable, or (d) any Lender is a Defaulting Lender or an Impacted
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 Credit Agreement and the
related



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Credit Documents to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment), provided that:




     (i) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 11.06(b)(iv) unless waived by the Administrative Agent in its
discretion;




     (ii) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and, with respect to Revolving Lenders, L/C Advances, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and under the
other Credit 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);




     (iii) 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;




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




     (v) in the case of any such assignment resulting from a Non-Consenting Lender’s failure
to consent to a proposed amendment, consent change, waiver, discharge or termination with
respect to any Credit Document, the applicable replacement bank or financial institution
consents to the proposed change, waiver, discharge or termination;



     provided that the failure by any Lender being replaced hereunder to execute and
deliver an Assignment and Assumption shall not impair the validity of the removal of such Lender
and the mandatory assignment of such Lender’s Commitments and outstanding Loans and, with respect
to the Revolving Lenders, participations in L/C Obligations pursuant to this Section 11.13
shall nevertheless be effective without the execution by such Lender of an Assignment and
Assumption.


Each Lender hereby agrees that in the event it is a Defaulting Lender or an Impacted Lender, it
shall cooperate with and provide assistance to the Borrower as reasonably requested by Borrower in
connection with its replacement pursuant to this Section 11.13. 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 CREDIT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



     (b) SUBMISSION TO JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF SUCH STATE AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER CREDIT
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



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OR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN
ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS CREDIT AGREEMENT OR
IN ANY OTHER CREDIT DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR COLLATERAL
AGENT MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING UNDER THIS CREDIT AGREEMENT, ANY CREDIT
DOCUMENT OR ANY COLLATERAL DOCUMENT AGAINST THE BORROWER OR ANY OTHER CREDIT PARTY TO ENFORCE ITS
RIGHTS WITH RESPECT TO ANY OF THE BORROWER’S OR OTHER CREDIT PARTY’S PROPERTIES IN THE COURTS OF
THE JURISDICTION IN WHICH SUCH PROPERTIES ARE LOCATED.



     (c) WAIVER OF VENUE. EACH OF THE PARTIES HERETO 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 CREDIT AGREEMENT OR ANY OTHER CREDIT 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 CREDIT AGREEMENT WILL
AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.



     11.15 Waiver of Jury Trial.



     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 CREDIT AGREEMENT OR ANY OTHER CREDIT 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 CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     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 Credit
Document), the Borrower and each other Credit Party acknowledges and agrees, and acknowledges its
Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Credit
Agreement provided by the Administrative Agent and the Joint Lead Arrangers are arm’s-length
commercial transactions between the Borrower, each other Credit Party and their respective
Affiliates, on the one hand, and the



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Administrative Agent and the Joint Lead Arrangers, on the
other hand, (B) each of the Borrower and the other Credit Parties has consulted its own legal,
accounting, regulatory and tax advisors to the extent it
has deemed appropriate, and (C) the Borrower and each other Credit Party is capable of
evaluating, and understands and accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Credit Documents; (ii) (A) the Administrative Agent and the
Joint Lead 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 Borrower, any other Credit Party or any of their respective
Affiliates, or any other Person and (B) neither the Administrative Agent nor any of the Joint Lead
Arrangers has any obligation to the Borrower, any other Credit Party or any of their respective
Affiliates with respect to the transactions contemplated hereby except those obligations expressly
set forth herein and in the other Credit Documents; and (iii) the Administrative Agent and the
Joint Lead Arrangers and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Borrower, the other Credit
Parties and their respective Affiliates, and neither the Administrative Agent nor any of the Joint
Lead Arrangers has any obligation to disclose any of such interests to the Borrower, any other
Credit Party or any of their respective Affiliates. To the fullest extent permitted by law, each
of the Borrower and the other Credit Parties hereby waives and releases any claims that it may have
against any of the Administrative Agent and the Joint Lead 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.



     Each Lender that is subject to the PATRIOT 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 “Patriot 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
such Borrower in accordance with the Patriot 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.



     11.19 Cooperation.



     The Administrative Agent and the Collateral Agent owe an obligation to cooperate with the
Borrower and the other Credit Parties with respect to, and to provide assistance in the
facilitation of, transactions permitted hereunder (including releases of guaranty obligations and
security interests in respect of Dispositions permitted hereunder). The Administrative Agent and
the Collateral Agent shall be protected for determinations made in good faith and shall be entitled
to rely on advice of counsel in respect thereof and entitled to wait for confirmation, guidance or
direction from the Required Lenders in respect thereof and entitled to rely on any such
confirmation, guidance or direction.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




115









 








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



	 	 	 	 	 
	BORROWER:

	 	REHABCARE GROUP, INC.,	 	 
	 

	 	a Delaware corporation	 	 
	 
	 	 	 	 
	 

	 	By: /s/ Jay W. Shreiner
 

Name: Jay W. Shreiner
	 	 
	 

	 	Title: Executive Vice President and
Chief Financial Officer	 	 
	 
	 	 	 	 
	GUARANTORS:

	 	AMERICAN VITALCARE, LLC,	 	 
	 

	 	a California limited liability company	 	 
	 

	 	REHABCARE GROUP OF CALIFORNIA, LLC,	 	 
	 

	 	a Delaware limited liability company	 	 
	 

	 	REHABCARE GROUP EAST, INC.,	 	 
	 

	 	a Delaware corporation	 	 
	 

	 	REHABCARE GROUP MANAGEMENT SERVICES, INC.,	 	 
	 

	 	a Delaware corporation	 	 
	 

	 	SALT LAKE PHYSICAL THERAPY ASSOCIATES, INC.,	 	 
	 

	 	a Utah corporation	 	 
	 

	 	LOUISIANA SPECIALTY HOSPITAL, L.L.C.,	 	 
	 

	 	a Delaware limited liability company	 	 
	 

	 	WEST GABLES REHABILITATION HOSPITAL, L.L.C.,	 	 
	 

	 	a Delaware limited liability company	 	 
	 

	 	LAFAYETTE SPECIALTY HOSPITAL, L.L.C.,	 	 
	 

	 	a Delaware limited liability company	 	 
	 

	 	TULSA SPECIALTY HOSPITAL, L.L.C.,	 	 
	 

	 	a Delaware limited liability company	 	 
	 

	 	CLEAR LAKE REHABILITATION HOSPITAL, L.L.C.,	 	 
	 

	 	a Delaware limited liability company	 	 
	 

	 	CANNON & ASSOCIATES, LLC,	 	 
	 

	 	a Delaware limited liability company	 	 
	 

	 	SYMPHONY HEALTH SERVICES, LLC,	 	 
	 

	 	a Delaware limited liability company	 	 
	 

	 	VTA MANAGEMENT SERVICES, LLC,	 	 
	 

	 	a Delaware limited liability company	 	 
	 

	 	VTA STAFFING SERVICES, LLC,	 	 
	 

	 	a Delaware limited liability company	 	 
	 

	 	REHABCARE GROUP OF TEXAS, LLC,	 	 
	 

	 	a Texas limited liability company	 	 
	 
	 	 	 	 
	 

	 	By: /s/ Patricia S. Williams
 

Name: Patricia S. Williams
	 	 
	 

	 	Title:   Sr. Vice President, General Counsel
and Secretary	 	 






REHABCARE GROUP, INC.

AMENDED AND RESTATED CREDIT AGREEMENT








 









 








	 	 	 	 	 
	 	REHABCARE GROUP OF ARLINGTON, LP,

a Texas limited partnership

REHABCARE GROUP OF AMARILLO, LP,

a Texas limited partnership




By:   RehabCare Group, Inc.,

         a Delaware corporation, as its general partner

 	 



	 	 	 	 	 
	 	By:  	           /s/ Patricia S. Williams
 	 
	 	Name:	Patricia S. Williams 	 
	 	Title:  	Senior Vice President, General Counsel
and Corporate Secretary 	 
	 



	 	 	 	 	 
	 	REHABCARE HOSPITAL HOLDINGS, L.L.C.,

a Delaware limited liability company

 	 
	 	By:  	/s/ Patricia S. Williams
 	 
	 	Name:  	Patricia S. Williams 	 
	 	Title:  	Senior Vice President, General Counsel
and Corporate Secretary 	 
	 



	 	 	 	 	 
	 	REHABCARE MERGER SUB CORPORATION,

a Delaware corporation

 	 
	 	By:  	/s/ Patricia S. Williams
 	 
	 	Name:  	Patricia S. Williams 	 
	 	Title:  	Senior Vice President, General Counsel
& Secretary 	 
	 



REHABCARE GROUP, INC.

AMENDED AND RESTATED CREDIT AGREEMENT





 









 





	 	 	 	 	 
	ADMINISTRATIVE AGENT:	BANK OF AMERICA, N.A.,

as Administrative Agent and Collateral Agent

 	 
	 	By:  	/s/ Michael Brashler
 	 
	 	 	Name:  	Michael Brashler 	 
	 	 	Title:  	Vice President 	 
	 



REHABCARE GROUP, INC.

AMENDED AND RESTATED CREDIT AGREEMENT





 









 





	 	 	 	 	 
	LENDERS:	BANK OF AMERICA, N.A.,

as Swingline Lender, an L/C Issuer and a Lender

 	 
	 	By:  	/s/ Stefanie R. Bez
 	 
	 	 	Name:  	Stefanie R. Bez 	 
	 	 	Title:  	Senior Vice President 	 
	 



REHABCARE GROUP, INC.

AMENDED AND RESTATED CREDIT AGREEMENT





 









 





	 	 	 	 	 
	 	ROYAL BANK OF CANADA,

as an L/C Issuer and a Lender

 	 
	 	By:  	/s/ Gordon C. MacArthur
 	 
	 	 	Name:  	Gordon C. MacArthur 	 
	 	 	Title:  	Authorized Signatory 	 
	 



REHABCARE GROUP, INC.

AMENDED AND RESTATED CREDIT AGREEMENT





 









 





	 	 	 	 	 
	 	BNP PARIBAS,

as an L/C Issuer and a Lender

 	 
	 	By:  	/s/ Richard Cushing
 	 
	 	 	Name:  	Richard Cushing 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                                      /s/ Guillaume Saban
 	 
	 	 	Name:  	Guillaume Saban 	 
	 	 	Title:  	Vice President 	 
	 



REHABCARE GROUP, INC.

AMENDED AND RESTATED CREDIT AGREEMENT




 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as a Lender

 	 
	 	By:  	/s/ Mary E. Gherty
 	 
	 	 	Name:  	Mary E. Gherty 	 
	 	 	Title:  	Managing Director 	 
	 



REHABCARE GROUP, INC.

AMENDED AND RESTATED CREDIT AGREEMENT





 









 








	 	 	 	 	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION,

as a Lender

 	 
	 	By:  	/s/ Peter B. Zone
 	 
	 	 	Name:  	Peter B. Zone 	 
	 	 	Title:  	Duly Authorized Signatory 	 
	 



REHABCARE GROUP, INC.

AMENDED AND RESTATED CREDIT AGREEMENT





 









 








	 	 	 	 	 
	 	REGIONS BANK,

as a Lender

 	 
	 	By:  	/s/ Helen C. Hartz
 	 
	 	 	Name:  	Helen C. Hartz 	 
	 	 	Title:  	Vice President 	 
	 



REHABCARE GROUP, INC.

AMENDED AND RESTATED CREDIT AGREEMENT





 









 








	 	 	 	 	 
	 	COMPASS BANK,

as a Lender

 	 
	 	By:  	/s/ Spencer L. Sockwell
 	 
	 	 	Name:  	Spencer L. Sockwell 	 
	 	 	Title:  	Sr. Managing Director 	 
	 
	 	 	 
	 	By:  	     /s/ Christopher J. Cain
 	 
	 	 	Name:  	Christopher J. Cain 	 
	 	 	Title:  	Vice President 	 
	 



REHABCARE GROUP, INC.

AMENDED AND RESTATED CREDIT AGREEMENT





 









 








	 	 	 	 	 
	 	RAYMOND JAMES BANK, FSB,

as a Lender

 	 
	 	By:  	/s/ Steven F. Paley
 	 
	 	 	Name:  	Steven F. Paley 	 
	 	 	Title:  	Sr. Vice President 	 
	 



REHABCARE GROUP, INC.

AMENDED AND RESTATED CREDIT AGREEMENT





 











 





Exhibit 2.01




FORM OF LENDER JOINDER AGREEMENT




     THIS LENDER JOINDER AGREEMENT (this “Agreement”), dated as of                      ___, 20___, to the
Credit Agreement referenced below is by and among [NEW LENDER] (the “New Lender”),
REHABCARE GROUP, INC., a Delaware corporation (the “Borrower”), and BANK OF AMERICA, N.A.,
as Administrative Agent. Capitalized terms used but not otherwise defined herein have the meanings
provided in the Credit Agreement.



W I T N E S S E T H




     WHEREAS, pursuant to that Amended and Restated Credit Agreement, dated as of November 24 2009
(as amended, restated, amended and restated, modified, supplemented, increased or extended from
time to time, the “Credit Agreement”), by and among the Borrower, the Guarantors identified
therein, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative
Agent and Collateral Agent, the Lenders have agreed to provide the Borrower with a revolving credit
and term loan facility;



     WHEREAS, pursuant to Section 2.01(e) of the Credit Agreement, the Borrower has
requested that the New Lender provide an Incremental Credit Facility under the Credit Agreement;
and



     WHEREAS, the New Lender has agreed to provide the Incremental Credit Facility on the terms and
conditions set forth herein and to become a “Lender” under the Credit Agreement in connection
therewith;



     NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



     1. Capitalized terms used but not defined herein shall have the meaning provided to such terms
in the Credit Agreement.



     2. The New Lender hereby agrees to provide a [Revolving Commitment] [Term Loan B Commitment]
[other Incremental Credit Facility] to the Borrower [during the Commitment Period] in an amount [up
to its Revolving Committed Amount] [equal to the Term Loan Committed Amount] [other Incremental
Credit Facility amount] set forth on Schedule 2.01 attached hereto. The New Lender’s
[Revolving Commitment Percentage] [Term Loan B Commitment Percentage] [other Incremental Credit
Facility percentage] as of the date hereof shall be as set forth on Schedule 2.01 attached
hereto. The existing Schedule 2.01 to the Credit Agreement shall be deemed to be amended to
include the information set forth on Schedule 2.01 attached hereto.



     [3. The New Lender shall be deemed to have purchased, without recourse, a risk participation
from each of the L/C Issuers in all Letters of Credit issued by it under the Credit Agreement
(including Existing Letters of Credit) and the obligations arising thereunder in an amount equal to
its Revolving Commitment Percentage of the obligations under such Letters of Credit, and shall
absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and be
obligated to pay to the L/C Issuer and discharge when due, its Revolving Commitment Percentage of
the obligations arising under such Letters of Credit.]



 









 





     [4.] The New Lender (a) represents and warrants that (i) it has full power and authority, and
has taken all action necessary, to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets
all requirements of an Eligible Assignee under the Credit Agreement, (iii) from and after the date
hereof, it shall be bound by the provisions of the Credit Agreement as a [Revolving] [Term B Loan]
[other Incremental Credit Facility] Lender thereunder and shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 7.01 thereof and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Agreement and, based on such information, has made such analysis and decision
independently and without reliance on the Administrative Agent or any other Lender and (v) attached
hereto is any documentation required to be delivered by it pursuant to the terms of the Credit
Agreement (including pursuant to Section 3.01(e) of the Credit Agreement), duly completed and
executed by the New Lender; and (b) agrees that (i) it will, independently and without reliance on
the Administrative Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under the Credit Documents and (ii) it will perform in accordance with their terms
all of the obligations which by the terms of the Credit Documents are required to be performed by
it as a Lender.



     5. The Borrower agrees that, as of the date hereof, the New Lender shall (a) be a party to the
Credit Agreement, (b) be a “Lender” for all purposes of the Credit Agreement and the other Credit
Documents and (c) have the rights and obligations of a Lender under the Credit Agreement and the
other Credit Documents.



     6. The address of the New Lender for purposes of all notices and other communications is as
set forth on the Administrative Questionnaire delivered by the New Lender to the Administrative
Agent.



     7. This Agreement may be executed in any number of counterparts and by the various parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one contract. Delivery of an executed
counterpart of this Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.



     8. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK.



[SIGNATURES ON FOLLOWING PAGE]




 









 








     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by a
duly authorized officer as of the date first above written.



	 	 	 	 	 	 	 	 	 
	NEW LENDER:	 	[NEW LENDER]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	Name:
	 	 

	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	BORROWER:	 	REHABCARE GROUP, INC.,	 	 
	 	 	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	Name:
	 	 

	 	 
	 

	 	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Accepted and Agreed:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	BANK OF AMERICA, N.A.,	 	 	 	 	 	 
	as Administrative Agent	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 
	Name:

	 	 

	 	 
	 	 	 	 
	Title:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	[Consented to:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	[L/C Issuer(s)]	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 
	Name:

	 	 

	 	 
	 	 	 	 
	Title:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	BANK OF AMERICA,N.A.,	 	 	 	 	 	 
	as Swingline Lender	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 
	Name:

	 	 

	 	 
	 	 	 	 
	Title:]
	 	 	 	 	 	 	 	 






 









 





Schedule 2.01 to Lender Joinder Agreement




LENDERS AND COMMITMENTS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Term Loan	 	[Incremental	 	[Incremental
	 	 	Revolving	 	Revolving	 	Term Loan B	 	B	 	Facility	 	Facility
	 	 	Commitment	 	Committed	 	Commitment	 	Committed	 	commitment	 	committed
	Lender	 	Percentage	 	Amount	 	Percentage	 	Amount	 	percentage]	 	amount]
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 









 





Exhibit 2.02




FORM OF LOAN NOTICE




Date:                     




To:       Bank of America, N.A., as Administrative Agent





			
	Re:	 	Amended and Restated Credit Agreement, dated as of ______, 20__ (as amended, restated, amended and restated,
modified, supplemented, increased or extended from time to time, the “Credit Agreement”), by and among RehabCare
Group, Inc. (the “Borrower”), the Guarantors identified therein, the Lenders from time to time party thereto and
Bank of America, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used but not otherwise
defined herein have the meanings provided in the Credit Agreement.





Ladies and Gentlemen:




	 	 	 	 	 	 	 
	1.	 	The undersigned hereby requests the following:	 	 
	 
	 	 	 	 	 	 
	 	 	o a Swingline Borrowing	 	o a Revolving Loan Borrowing
	 
	 	 	 	 	 	 
	 	 	o a Revolving Loan continuation	 	o a Revolving Loan conversion
	 
	 	 	 	 	 	 
	 	 	o a Term Loan B Borrowing	 	o a Term Loan B conversion
	 
	 	 	 	 	 	 
	 	 	o a Term Loan B continuation	 	o an [Incremental Term Loan] Borrowing
	 
	 	 	 	 	 	 
	 	 	o an [Incremental Term Loan] conversion	 	 
	 
	 	 	 	 	 	 
	 	 	o an [Incremental Term Loan] continuation	 	 
	 
	 	 	 	 	 	 
	2.	 	Date of Borrowing
(which shall be a Business Day):                                                               
                  
	 
	 	 	 	 	 	 
	3.	 	Amount of Borrowing:                                                                                                                       
             
	 
	 	 	 	 	 	 
	4.	 	Type of Loan requested (select one):
	 
	 	 	 	 	 	 
	 	 	o Base Rate Loan (required for Swingline)
	 
	 	 	 	 	 	 
	 	 	o Eurodollar Rate Loan
	 
	 	 	 	 	 	 
	5.	 	Interest Period for Eurodollar Rate Loans (select one):






	 	 	 	 	 	 	 
	 

	 	o One Month
	 	o Two Months
	 	o Three Months
	 

	 	o Six Months
	 	o Nine Months (if available)
	 	o Twelve Months (if available)





The undersigned Officer (to his or her knowledge and in his or her capacity as an Officer of
Borrower , and not individually) certifies on behalf of the Borrower as of the date hereof that:




 









 







[(a) (i) The representations and warranties set forth in Section 6.01(a) and (b)(i), 6.02(a), 6.04
and 6.15 of the Credit Agreement are true and correct in all material respects, and (ii) the
representations made by or on behalf of Triumph Healthcare in the Triumph Merger Agreement, but
only to the extent that the Borrower has the right to terminate its obligations under the Triumph
Merger Agreement as a result of a breach of such representations in the Triumph Merger Agreement,
are true and correct in all material respects.]1



[(a) The representations and warranties contained in Article VI of the Credit Agreement and in the
other Credit Documents are true and correct in all material respects on and as of the date hereof,
except to the extent such representations and warranties specifically relate to an earlier date, in
which case they were true and correct in all material respects as of such earlier date; and



(b) No event has occurred and is continuing or would result from the consummation of the Borrowing
contemplated hereby that would constitute an Event of Default or a Default.]2




	 	 	 	 	 	 	 
	BORROWER:	 	REHABCARE GROUP, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 
Name:
	 	 
	 

	 	Title:	 	 








 




			
	1	 	For notice given on the Closing Date only.
	 
	2	 	For notices given after the Closing Date but excluding
notices requesting only a conversion of a Loan to, or a continuation of, a
Eurodollar Rate Loan.






 











 





Exhibit 2.13-1




FORM OF REVOLVING NOTE




                     __, 20__




     FOR VALUE RECEIVED, REHABCARE GROUP, INC., a Delaware corporation (the “Borrower”),
hereby promises to pay to [LENDER’S NAME] or its registered permitted assigns (the
“Lender”), in accordance with the provisions of the Credit Agreement (as hereinafter
defined), the lesser of (a) [Lender’s Revolving Committed Amount] and (b) the unpaid principal
amount of all advances made by the Lender to the Borrower as Revolving Loans, when and as provided
under that certain Amended and Restated Credit Agreement, dated as of dated as of November 24, 2009
(as amended, restated, amended and restated, modified, supplemented, increased or extended from
time to time, the “Credit Agreement”), by and among the Borrower, the Guarantors identified
therein, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative
Agent and Collateral Agent. Capitalized terms used but not otherwise defined herein have the
meanings provided in the Credit Agreement.



     The Borrower hereby promises to pay interest on the unpaid principal amount of each Revolving
Loan made by the Lender to the Borrower from the date of such Revolving Loan until such principal
amount is paid in full, at such interest rates and at such times as provided in the Credit
Agreement. All payments of principal and interest shall be made to the Administrative Agent for
the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s
Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear
interest, to be paid upon demand, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement.



     This Revolving Note is one of the Revolving Notes referred to in the Credit Agreement, is
entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. Upon the occurrence and continuation of one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on this Revolving Note
shall become, or may be declared to be, immediately due and payable all as provided in the Credit
Agreement. The Lender may attach schedules to this Revolving Note and endorse thereon the date,
amount and maturity of its Revolving Loans and payments with respect thereto.



     This Revolving Note is subject to restrictions on transfer or assignment as provided in the
Credit Agreement. The terms of this Revolving Note are subject to amendment only in the manner
provided in the Credit Agreement.



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and nonpayment of this Revolving Note.



     THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.



 









 





	 	 	 	 	 	 	 
	BORROWER:	 	 	 	REHABCARE GROUP, INC.,
	 	 	 	 	a Delaware corporation
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 






Exhibit 2.13-2




FORM OF SWINGLINE NOTE




                     __, 200_




     FOR VALUE RECEIVED, REHABCARE GROUP, INC., a Delaware corporation (the “Borrower”),
hereby promises to pay to BANK OF AMERICA, N.A. or its registered permitted assigns (the
“Swingline Lender”), in accordance with the provisions of the Credit Agreement (as
hereinafter defined), the unpaid principal amount of all advances made by the Swingline Lender to
the Borrower as Swingline Loans, when and as provided under that certain Amended and Restated
Credit Agreement dated as of November 24, 2009 (as amended, restated, amended and restated,
modified, supplemented, increased or extended from time to time, the “Credit Agreement”) by
and among the Borrower, the Guarantors identified therein, the Lenders from time to time party
thereto and Bank of America, N.A., as Administrative Agent, Collateral Agent, Swingline Lender and
L/C Issuer. Capitalized terms used but not otherwise defined herein have the meanings provided in
the Credit Agreement.



     The Borrower promises to pay interest on the unpaid principal amount of each Swingline Loan
made by the Swingline Lender to the Borrower from the date of such Swingline Loan until such
principal amount is paid in full, at such interest rates and at such times as provided in the
Credit Agreement. All payments of principal and interest shall be made to the Administrative Agent
for the account of the Swingline Lender in Dollars in immediately available funds at the
Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid
amount shall bear interest, to be paid upon demand, from the due date thereof until the date of
actual payment (and before as well as after judgment) computed at the per annum rate set forth in
the Credit Agreement.



     This Swingline Note is the Swingline Note referred to in the Credit Agreement, is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions
provided therein. Upon the occurrence and continuation of one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this Swingline Note shall
become, or may be declared to be, immediately due and payable all as provided in the Credit
Agreement. The Swingline Lender may attach schedules to this Swingline Note and endorse thereon
the date, amount and maturity of its Swingline Loans and payments with respect thereto.



     This Swingline Note is subject to restrictions on transfer or assignment as provided in the
Credit Agreement. The terms of this Swingline Note are subject to amendment only in the manner
provided in the Credit Agreement.



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and nonpayment of this Swingline Note.



     THIS SWINGLINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.



	 	 	 	 	 	 	 
	BORROWER:	 	 	 	REHABCARE GROUP, INC.,
	 	 	 	 	a Delaware corporation
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 






Exhibit 2.13-3




FORM OF TERM LOAN [B] NOTE




                     __, 20__




     FOR VALUE RECEIVED, REHABCARE GROUP, INC., a Delaware corporation (the “Borrower”),
hereby promises to pay to [LENDER’S NAME] or its registered permitted assigns (the
“Lender”), in accordance with the provisions of the Credit Agreement (as hereinafter
defined), the unpaid principal amount of the Term Loan [B] made by the Lender to the Borrower when
and as provided under that certain Amended and Restated Credit Agreement, dated as of November 24,
2009 (as amended, restated, amended and restated, modified, supplemented, increased or extended
from time to time, the “Credit Agreement”), by and among the Borrower, the Guarantors
identified therein, the Lenders from time to time party thereto and Bank of America, N.A., as
Administrative Agent and Collateral Agent. Capitalized terms used but not otherwise defined herein
have the meanings provided in the Credit Agreement.



     The Borrower hereby promises to pay interest on the unpaid principal amount of the Term Loan
advanced by the Lender to the Borrower from the date hereof until such principal amount is paid in
full, at such interest rates and at such times as provided in the Credit Agreement. All payments
of principal and interest shall be made to the Administrative Agent for the account of the Lender
in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is
not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon
demand, from the due date thereof until the date of actual payment (and before as well as after
judgment) computed at the per annum rate set forth in the Credit Agreement.



     This Term Loan [B] Note is one of the Term Loan Notes referred to in the Credit Agreement, is
entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein. Upon the occurrence and continuation of one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on this Term Loan [B]
Note shall become, or may be declared to be, immediately due and payable all as provided in the
Credit Agreement. The Lender may also attach schedules to this Term Loan [B] Note and endorse
thereon the date, amount and maturity of its Term Loans and payments with respect thereto.



     This Term Loan [B] Note is subject to restrictions on transfer or assignment as provided in
the Credit Agreement. The terms of this Term Loan [B] Note are subject to amendment only in the
manner provided in the Credit Agreement.



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and nonpayment of this Term Loan [B]
Note.



     THIS TERM LOAN [B] NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.



	 	 	 	 	 	 	 
	BORROWER:	 	 	 	REHABCARE GROUP, INC.,
	 	 	 	 	a Delaware corporation
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 






Exhibit 7.02(a)




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                     , 20___





			
	To:	 	Bank of America, N.A., as Administrative Agent






			
	Re:	 	Amended and Restated Credit Agreement, dated as of November 24, 2009
(as amended, restated, amended and restated, modified, supplemented,
increased or extended from time to time, the “Credit Agreement”), by
and among RehabCare Group, Inc. (the “Borrower”), the Guarantors
identified therein, the Lenders from time to time party thereto and
Bank of America, N.A., as Administrative Agent and Collateral Agent.
Capitalized terms used but not otherwise defined herein have the
meanings provided in the Credit Agreement.




Ladies and Gentlemen:



The undersigned Responsible Officer of the Borrower hereby certifies as of the date hereof that
[he/she] is the                      of the Borrower, and that, in [his/her] capacity as such and not
individually, [he/she] is authorized to execute and deliver this Certificate to the Administrative
Agent on the behalf of the Borrower, and that:



[Use following paragraph 1 for fiscal year-end financial statements:]




     [1. [Attached hereto as Schedule 1 are the] [The] year-end audited financial
statements required by Section 7.01(a) of the Credit Agreement for the fiscal year of the
Borrower ended as of the above date, together with the report and opinion of an independent
certified public accountant of nationally recognized standing required by such section [have been
electronically delivered to the Administrative Agent pursuant to the conditions set forth in
Section 7.02 of the Credit Agreement].]


[Use following paragraph 1 for fiscal quarter-end financial statements:]




          [1. [Attached hereto as Schedule 1 are the] [The] unaudited financial statements
required by Section 7.01(b) of the Credit Agreement for the fiscal quarter of the Borrower
ended as of the above date [have been electronically delivered to the Administrative Agent pursuant
to the conditions set forth in Section 7.02 of the Credit Agreement. Such financial statements
fairly present, in all material respects, the financial condition, results of operations,
shareholders’ equity and cash flows of the Consolidated Group on a consolidated basis in accordance
with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.]




     2. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has
made, or has caused to be made, a detailed review of the transactions and financial condition of
each member of the Consolidated Group during the accounting period covered by the attached
financial statements.



     3. I have no knowledge of the existence of any condition or event which constitutes a Default
or an Event of Default at the end of the fiscal period covered by the attached financial statements
[, except as set forth below].



 









 




[Set forth [below] [on Schedule [1] to this Certificate] are all exceptions to paragraph (3) above
listing any Defaults or Events of Default and its nature and status.




     4. Set forth on Schedule [1][2] annexed hereto are calculations demonstrating compliance with
the financial covenants set forth in Section 8.14 of the Credit Agreement. [Set forth on Schedule
[3][4] is a calculation of Consolidated Excess Cash Flow and the amount, if any, payable pursuant
to Section 2.06(b)(v) of the Credit Agreement.]3



     5. Set forth on Schedule [2][3] is a summary of material changes in GAAP or in the
consistent application thereof.



     IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
                    
___, 20______.



	 	 	 	 	 	 	 
	BORROWER:	 	 	 	REHABCARE GROUP, INC.,
	 	 	 	 	a Delaware corporation
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 








 




			
	3	 	To be provided only with respect to the Compliance
Certificate delivered concurrently with annual financial statements and
commencing with the date of delivery of the Compliance Certificate delivered
with respect to the fiscal year ending December 31, 2010.




 









 










Exhibit 7.12




FORM OF GUARANTOR JOINDER AGREEMENT




     THIS GUARANTOR JOINDER AGREEMENT (this “Joinder Agreement”), dated as of                     ,
20___, is by and among [Credit Party],                      a                     (the “New Subsidiary”), and
Bank of America, N.A., as Administrative Agent under that certain Amended and Restated Credit
Agreement, dated as of November 24, 2009 (as amended, restated, amended and restated, modified,
supplemented, increased or extended from time to time, the “Credit Agreement”), by and
among RehabCare Group, Inc. (the “Borrower”), the Guarantors identified therein, the
Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent and
Collateral Agent. Capitalized terms used but not otherwise defined herein have the meanings
provided in the Credit Agreement.



     The Credit Parties are required by Section 7.12 of the Credit Agreement to cause the New
Subsidiary to become a “Guarantor” under the Credit Documents. Accordingly, the New Subsidiary
hereby agrees with the Administrative Agent and the Collateral Agent as follows:



     1. The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this
Joinder Agreement, the New Subsidiary will be deemed to be a party to the Credit Agreement and a
“Guarantor” for all purposes of the Credit Agreement, and shall have all of the obligations of a
Guarantor thereunder as if it had executed the Credit Agreement. The New Subsidiary hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions applicable to a Guarantor contained in the Credit Agreement. Without limiting the
generality of the foregoing terms of this paragraph 1, the New Subsidiary hereby jointly
and severally together with the other Guarantors, guarantees to each Lender and the Administrative
Agent, as provided in Article IV of the Credit Agreement, the prompt payment and performance of the
Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration or otherwise) strictly in accordance with the terms thereof.



     2. The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this
Joinder Agreement, the New Subsidiary will be deemed to be a party to the Security Agreement and a
“Grantor” for all purposes of the Security Agreement, and shall have all the obligations of a
Grantor thereunder as if it had executed the Security Agreement. The New Subsidiary hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions contained in the Security Agreement. Without limiting generality of the foregoing terms
of this paragraph 2, the New Subsidiary hereby grants to the Collateral Agent, for the
benefit of the holders of the Secured Obligations (as defined in the Security Agreement), a
continuing security interest in any and all right, title and interest of the New Subsidiary in and
to the Collateral (as defined in the Security Agreement) of the New Subsidiary to secure the prompt
payment and performance in full when due, whether by lapse of time, acceleration, mandatory
prepayment or otherwise, of the Secured Obligations (as defined in the Security Agreement).



     3. The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this
Joinder Agreement, the New Subsidiary will be deemed to be a party to the Pledge Agreement and a
“Pledgor” for all purposes of the Pledge Agreement, and shall have all the obligations of a Pledgor
thereunder as if it had executed the Pledge Agreement. The New Subsidiary hereby ratifies, as of
the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained
in the Pledge Agreement. Without limiting generality of the foregoing terms of this paragraph
3, the New Subsidiary hereby grants, pledges and assigns to the Collateral Agent, for the
benefit of the holders of the Secured



 









 







Obligations (as defined in the Pledge Agreement), a continuing security interest in any and all
right, title and interest of the New Subsidiary in and to the Capital Stock identified on
Schedule 1 hereto and all other Pledged Collateral (as defined in the Pledge Agreement) of
the New Subsidiary to secure the prompt payment and performance in full when due, whether by lapse
of time, acceleration, mandatory prepayment or otherwise, of the Secured Obligations (as defined in
the Pledge Agreement).



     4. [Credit Party] hereby agrees that the Capital Stock listed on Schedule 2 hereto
shall be deemed to be part of the Pledged Shares within the meaning of the Pledge Agreement, shall
become part of the Pledged Collateral (as defined in the Pledge Agreement) and shall secure all of
the Secured Obligations (as defined in the Pledge Agreement) as provided in the Pledge Agreement.
In furtherance of the foregoing, [Credit Party] hereby grants, pledges and assigns to the
Collateral Agent, for the benefit of the holders of the Secured Obligations (as defined in the
Pledge Agreement), a continuing security interest in any and all right, title and interest of
[Credit Party], in and to the Pledged Shares identified on Schedule 2 hereto and all other
Pledged Collateral (as defined in the Pledge Agreement) relating thereto to secure the prompt
payment and performance in full when due, whether by lapse of time, acceleration, mandatory
prepayment or otherwise, of the Secured Obligations (as defined in the Pledge Agreement) to the
same extent as provided in the Pledge Agreement.



     5. The New Subsidiary hereby represents and warrants to the Administrative Agent that:




     (a) The New Subsidiary’s exact legal name and state of formation are as set forth on
the signature pages hereto.




     (b) The New Subsidiary’s chief executive office is located at the location set forth on
Schedule 3 hereto.




     (c) Other than as set forth on Schedule 4 hereto, the New Subsidiary has not
changed its legal name or changed its state of formation in the five years preceding the
date hereof.




     (d) Schedule 5 hereto includes all Copyrights, Copyright Licenses, Patents,
Patent Licenses, Trademarks and Trademark Licenses (as each term is defined in the Security
Agreement), other than any Trademarks under the Law of any State or any foreign country and
other than any immaterial non-exclusive Copyright Licenses, Patent Licenses and Trademark
Licenses, owned by the New Subsidiary in its own name, or to which the New Subsidiary is a
party (as applicable), as of the date hereof.




     (e) Schedule 6 hereto includes all Commercial Tort Claims (as defined in the
Security Agreement) for an amount in excess of $500,000 in any individual instance and $1
million in the aggregate for all Commercial Tort Claims before any Governmental Authority by
or in favor of the New Subsidiary.




     (f) Schedule 7 hereto includes all Subsidiaries of the New Subsidiary,
including number of shares of outstanding Capital Stock, the certificate number of each
certificate evidencing such Capital Stock (if applicable) and the percentage of such Capital
Stock owned by the New Subsidiary.



     6. The address of the New Subsidiary for purposes of all notices and other communications is
the address designated for all Credit Parties on Schedule 11.02 to the Credit Agreement or
such other address as the New Subsidiary may from time to time notify the Administrative Agent in
writing.



 









 





     7. The New Subsidiary hereby waives acceptance by the Lender of the guaranty by the New
Subsidiary under Article IV of the Credit Agreement upon the execution of this Joinder Agreement by
the New Subsidiary.



     8. This Joinder Agreement may be executed in multiple counterparts, each of which shall
constitute an original but all of which when taken together shall constitute one contract.



     9. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.



[SIGNATURES ON FOLLOWING PAGE]




 









 








     IN WITNESS WHEREOF, the New Subsidiary and [Credit Party] have caused this Joinder Agreement
to be duly executed by its authorized officer, and each of the Administrative Agent and Collateral
Agent has caused the same to be accepted by its authorized officer, as of the day and year first
above written.



	 	 	 	 	 
	 	 	[NEW SUBSIDIARY]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	 	 	[CREDIT PARTY]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






Acknowledged and accepted:




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




	 	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 






 









 






Schedules




	 	 	 
	Schedule 1
	 	Pledged Collateral of New Subsidiary

	Schedule 2
	 	Pledged Collateral of [Credit Party]

	Schedule 3
	 	Chief Executive Office of New Subsidiary

	Schedule 4
	 	Changes in Legal Name and State of Formation

	Schedule 5
	 	Copyrights, Copyright Licenses, Patents, Patent Licenses,
Trademarks and Trademark Licenses

	Schedule 6
	 	Commercial Tort Claims

	Schedule 7
	 	Subsidiaries of the New Subsidiary







 









 






Exhibit 11.06




[FORM OF] ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [the][each] Assignor identified
in item 1 below ([the][each, an] “Assignor”) and [the][each] Assignee identified in
item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights
and obligations of [the Assignors][the Assignees] hereunder are several and not joint.]
Capitalized terms used but not defined herein shall have the meanings given to them in the Credit
Agreement identified below (the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.



     For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below (including, without limitation, the Letters of Credit and the Swingline Loans
included in such facilities) and (ii) to the extent permitted to be assigned under applicable Law,
all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a
Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person,
whether known or unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in
any way based on or related to any of the foregoing, including, but not limited to, contract
claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (i) above (the
rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to
clauses (i) and (ii) above being referred to herein collectively as [the][an]
“Assigned Interest”). Each such sale and assignment is without recourse to [the][any]
Assignor and, except as expressly provided in this Assignment and Assumption, without
representation or warranty by [the][any] Assignor.



	 	 	 	 	 
	1.	 	Assignor[s]:                                              
	 
	 	 	 	 
	2.	 	Assignee[s]:                                              
	 
	 	 	 	 
	 	 	[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
	 
	 	 	 	 
	3.

	 	Borrower:
	 	RehabCare Group, Inc.
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	Bank of America, N.A., as the
administrative agent under the Credit
Agreement.






 









 






	 	 	 	 	 
	5.

	 	Credit Agreement:
	 	Credit Agreement, dated as of November 24,
2009 (as amended, restated, amended and
restated, modified, supplemented, increased
or extended from time to time, the “Credit
Agreement”), by and among RehabCare Group,
Inc., a Delaware corporation (the
“Borrower”), the Guarantors identified
therein, the Lenders from time to time
party thereto, and BANK OF AMERICA, N.A.,
as Administrative Agent, an L/C Issuer and
Swingline Lender
	6.

	 	Assigned Interest[s]:	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Aggregate	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	Amount of	 	 	Percentage	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Commitment/	 	 	Commitment/	 	 	Assigned of	 	 	 	 
	 	 	 	 	 	 	Facility	 	 	Loans	 	 	Loans	 	 	Commitment/	 	 	CUSIP	 
	Assignor[s]	 	Assignee[s]	 	 	Assigned4	 	 	for all Lenders5	 	 	Assigned	 	 	Loans6	 	 	Number	 
	 

	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





	 	 	 	 	 
	[7.	 	Trade Date:                                              ]7





Effective Date:
              
      , 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]




[SIGNATURES ON FOLLOWING PAGE]






 




			
	4	 	Fill in the appropriate terminology for the types of
facilities under the Credit Agreement that are being assigned under this
Assignment (e.g. “Revolving Credit Commitment” or “Term Loan Commitment”).
	 
	5	 	Amounts in this column and in the column immediately to
the right to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective Date.
	 
	6	 	Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder.
	 
	7	 	To be completed if the Assignor and the Assignee intend
that the minimum assignment amount is to be determined as of the Trade Date.




 









 









The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 	 	 
	 	 	 	 	ASSIGNOR
	 	 	 	 	[NAME OF ASSIGNOR]
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	ASSIGNEE
	 	 	 	 	[NAME OF ASSIGNEE]
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	[Consented to and]8 Accepted:	 	 	 	 
	 
	 	 	 	 	 	 
	BANK OF AMERICA, N.A.,	 	 	 	 
	as Administrative Agent	 	 	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Name:
	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	[Consented to:]9	 	 	 	 
	 
	 	 	 	 	 	 
	REHABCARE GROUP, INC.,	 	 	 	 
	as Borrower	 	 	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Name:
	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 








 




			
	8	 	To be added only if the consent of the Administrative
Agent is required by the terms of the Credit Agreement.
	 
	9	 	To be added only if the consent of the Borrower and/or
other parties (e.g. Swingline Lender, L/C Issuer) is required by the terms of
the Credit Agreement.




 









 










STANDARD TERMS AND CONDITIONS FOR




ASSIGNMENT AND ASSUMPTION




          1. Representations and Warranties.




          1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Credit Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit Documents or any
collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or
Affiliates or any other Person obligated in respect of any Credit Document or (iv) the performance
or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of
their respective obligations under any Credit Document.




          1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section
11.06(b)(iii), (v), (vi) and (vii) of the Credit Agreement (subject to such
consents, if any, as may be required under Section 11.06(b)(iii) of the Credit Agreement),
(iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall
have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to
acquire assets of the type represented by [the][such] Assigned Interest and either it, or the
Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is
experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement,
and has received or has been accorded the opportunity to receive copies of the most recent
financial statements delivered pursuant to Section 7.01 thereof, as applicable, and such other
documents and information as it deems appropriate to make its own credit analysis and decision to
enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it
has, independently and without reliance upon the Administrative Agent or any other Lender and based
on such documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned
Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by
[the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the
Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Credit Documents are required to be
performed by it as a Lender.




          2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to
but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date.




 









 








          3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. THIS ASSIGNMENT AND ASSUMPTION SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.