exv10w2






Exhibit 10.2




[EXECUTION COPY]




 

 






Published CUSIP Number: 04685YAA7




CREDIT AGREEMENT




Dated as of October 20, 2011



among



ATHENAHEALTH, INC.,

as the Borrower,



BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and L/C Issuer,



and



The Other Lenders Party Hereto



MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED



and



TD SECURITIES (USA) LLC

as Joint Lead Arrangers and Joint Book Managers



U.S. BANK NATIONAL ASSOCIATION

as Syndication Agent



FIFTH THIRD BANK, SOVEREIGN BANK



and



TD BANK, N.A.

as Co-Documentation Agents



 

 








 









 





TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page	 
	 
	 	 	 	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 
	 	 	 	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	21	 
	1.03 Accounting Terms
	 	 	22	 
	1.04 Rounding
	 	 	22	 
	1.05 Times of Day
	 	 	23	 
	1.06 Letter of Credit Amounts
	 	 	23	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	23	 
	 
	 	 	 	 
	2.01 Revolving Loans
	 	 	23	 
	2.02 Borrowings, Conversions and Continuations of Revolving Loans
	 	 	23	 
	2.03 Letters of Credit
	 	 	25	 
	2.04 Swing Line Loans
	 	 	33	 
	2.05 Prepayments
	 	 	36	 
	2.06 Termination or Reduction of Commitments
	 	 	37	 
	2.07 Repayment of Loans
	 	 	37	 
	2.08 Interest
	 	 	37	 
	2.09 Fees
	 	 	38	 
	2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	38	 
	2.11 Evidence of Debt
	 	 	39	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	40	 
	2.13 Sharing of Payments by Lenders
	 	 	41	 
	2.14 Increase in Commitments
	 	 	42	 
	2.15 Cash Collateral
	 	 	44	 
	2.16 Defaulting Lenders
	 	 	45	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	47	 
	 
	 	 	 	 
	3.01 Taxes
	 	 	47	 
	3.02 Illegality
	 	 	51	 
	3.03 Inability to Determine Rates
	 	 	51	 
	3.04 Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	52	 
	3.05 Compensation for Losses
	 	 	53	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	54	 
	3.07 Survival
	 	 	54	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	55	 
	 
	 	 	 	 
	4.01 Conditions of Initial Credit Extension
	 	 	55	 
	4.02 Conditions to all Credit Extensions
	 	 	56	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	57	 
	 
	 	 	 	 
	5.01 Existence, Qualification and Power
	 	 	57	 
	5.02 Authorization; No Contravention
	 	 	57	 






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	Section	 	Page	 
	5.03 Governmental Authorization; Other Consents
	 	 	57	 
	5.04 Binding Effect
	 	 	58	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	58	 
	5.06 Litigation
	 	 	58	 
	5.07 No Default
	 	 	59	 
	5.08 Ownership of Property; Liens
	 	 	59	 
	5.09 Environmental Compliance
	 	 	59	 
	5.10 Insurance
	 	 	59	 
	5.11 Taxes
	 	 	59	 
	5.12 ERISA Compliance
	 	 	59	 
	5.13 Subsidiaries; Equity Interests
	 	 	60	 
	5.14 Margin Regulations; Investment Company Act
	 	 	61	 
	5.15 Disclosure
	 	 	61	 
	5.16 Compliance with Laws
	 	 	61	 
	5.17 Taxpayer Identification Number
	 	 	61	 
	5.18 Intellectual Property; Licenses, Etc
	 	 	61	 
	5.19 Foreign Assets Control Regulations and Anti-Money Laundering
	 	 	62	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	62	 
	 
	 	 	 	 
	6.01 Financial Statements
	 	 	62	 
	6.02 Certificates; Other Information
	 	 	63	 
	6.03 Notices
	 	 	65	 
	6.04 Payment of Obligations
	 	 	65	 
	6.05 Preservation of Existence, Etc
	 	 	66	 
	6.06 Maintenance of Properties
	 	 	66	 
	6.07 Maintenance of Insurance
	 	 	66	 
	6.08 Compliance with Laws
	 	 	66	 
	6.09 Books and Records
	 	 	66	 
	6.10 Inspection Rights
	 	 	66	 
	6.11 Use of Proceeds
	 	 	67	 
	6.12 Additional Guarantors
	 	 	67	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	67	 
	 
	 	 	 	 
	7.01 Liens
	 	 	67	 
	7.02 Investments
	 	 	69	 
	7.03 Indebtedness
	 	 	70	 
	7.04 Fundamental Changes
	 	 	72	 
	7.05 Dispositions
	 	 	74	 
	7.06 Restricted Payments
	 	 	75	 
	7.07 Change in Nature of Business
	 	 	76	 
	7.08 Transactions with Affiliates
	 	 	76	 
	7.09 Burdensome Agreements
	 	 	76	 
	7.10 Use of Proceeds
	 	 	76	 
	7.11 Financial Covenants
	 	 	77	 
	7.12 athenahealth Security Corporation
	 	 	77	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	77	 






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	Section	 	Page	 
	8.01 Events of Default
	 	 	77	 
	8.02 Remedies Upon Event of Default
	 	 	80	 
	8.03 Application of Funds
	 	 	79	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	81	 
	 
	 	 	 	 
	9.01 Appointment and Authority
	 	 	81	 
	9.02 Rights as a Lender
	 	 	81	 
	9.03 Exculpatory Provisions
	 	 	81	 
	9.04 Reliance by Administrative Agent
	 	 	82	 
	9.05 Delegation of Duties
	 	 	82	 
	9.06 Resignation of Administrative Agent
	 	 	83	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	83	 
	9.08 No Other Duties, Etc
	 	 	84	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	84	 
	9.10 Guaranty Matters
	 	 	85	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	85	 
	 
	 	 	 	 
	10.01 Amendments, Etc
	 	 	85	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	86	 
	10.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	88	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	89	 
	10.05 Payments Set Aside
	 	 	91	 
	10.06 Successors and Assigns
	 	 	91	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	96	 
	10.08 Right of Setoff
	 	 	97	 
	10.09 Interest Rate Limitation
	 	 	97	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	98	 
	10.11 Survival of Representations and Warranties
	 	 	98	 
	10.12 Severability
	 	 	98	 
	10.13 Replacement of Lenders
	 	 	98	 
	10.14 Governing Law; Jurisdiction; Etc
	 	 	99	 
	10.15 Waiver of Jury Trial
	 	 	100	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	100	 
	10.17 Electronic Execution of Assignments and Certain Other Documents
	 	 	101	 
	10.18 USA PATRIOT Act
	 	 	101	 






iii









 






	 	 	 	 	 

	SCHEDULES	 	 

	 	 	 	 	 

	 	2.01	 	 	Commitments and Applicable Percentages

	 	5.05	 	 	Supplement to Interim Financial Statements

	 	5.06	 	 	Litigation

	 	5.09	 	 	Environmental Matters

	 	5.12	 	 	ERISA

	 	5.13	 	 	Subsidiaries; Other Equity Investments; Equity Interests in the Borrower

	 	5.18	 	 	Intellectual Property Matters

	 	7.01	 	 	Existing Liens

	 	7.03	 	 	Existing Indebtedness

	 	10.02	 	 	Administrative Agent’s Office; Certain Addresses for Notices

	 	 	 	 	 

	EXHIBITS	 	 

	 	 	 	 	Form of

	 	 	 	 	 

	 	A	 	 	Revolving Loan Notice

	 	B	 	 	Swing Line Loan Notice

	 	C	 	 	Note

	 	D	 	 	Compliance Certificate

	 	E-1	 	 	Assignment and Assumption

	 	E-2	 	 	Administrative Questionnaire

	 	F	 	 	Guaranty

	 	G	 	 	Subordination Terms







iv









 





CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of October 20, 2011, among
ATHENAHEALTH, INC., a Delaware corporation (the “Borrower”), each lender from time to time
party hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK
OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.



     The Borrower has requested that the Lenders provide a revolving credit facility, and the
Lenders are willing to do so on the terms and conditions set forth herein.



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



ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS




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



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



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify to the Borrower and the Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in substantially
the form of Exhibit E-2 or any other form approved 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.



     “Agent’s Fee Letter” means the letter agreement, dated September 19, 2011, among the
Borrower, the Administrative Agent and Merrill Lynch, Pierce, Fenner & Smith Incorporated.



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



     “Agreement” means this Credit Agreement.



     “Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time, subject to adjustment as provided in Section 2.16. If the
commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02 or if the Aggregate
Commitments have expired, then the Applicable Percentage of each Lender shall be determined
based on the Applicable Percentage of such Lender most recently in effect, giving effect to any
subsequent assignments. The initial Applicable Percentage of each Lender is set forth opposite



1









 




the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which
such Lender becomes a party hereto, as applicable.




     “Applicable Rate” means the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 6.02(a):



	 	 	 	 	 	 	 	 	 
	 	 	Consolidated	 	Commitment	 	Eurodollar Rate /	 	 
	Pricing Level	 	Leverage Ratio	 	Fee	 	Letters of Credit	 	Base Rate
	1	 	< 0.75:1.00	 	0.20%	 	0.75%	 	0.00%
	2
	 	> 0.75:1.00	 	 	 	 	 	 
	 
	 	but < 1.50:1.00	 	0.20%	 	1.00%	 	0.00%
	3
	 	> 1.50:1.00	 	 	 	 	 	 
	 
	 	but < 2.00:1.00	 	0.25%	 	1.50%	 	0.50%
	4
	 	> 2.00:1.00	 	0.30%	 	1.75%	 	0.75%





Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(a); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then, upon the request of the Required Lenders, Pricing Level 4 shall apply as of the
first Business Day after the date on which such Compliance Certificate was required to have been
delivered and shall remain in effect until the first Business Day immediately following the date on
which such Compliance Certificate is delivered (it being understood that the Administrative Agent
shall endeavor to provide the Borrower of notice of any such request by the Required Lenders,
provided that the (x) that the Administrative Agent shall have no obligation to provide any
such notice and (y) the failure to give such notice shall not affect any increase in the Applicable
Rate as set forth herein). The Applicable Rate in effect from the Closing Date through the date a
Compliance Certificate is delivered pursuant to Section 6.02(a) corresponding to the fiscal
period ending December 31, 2011 shall be determined based upon Pricing Level 1.




     Notwithstanding anything to the contrary contained in this definition, the determination of
the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).



     “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.



     “Arranger” means each of Merrill Lynch, Pierce, Fenner & Smith Incorporated and TD
Securities (USA) LLC, in their capacities as joint lead arrangers and joint book managers.



     “Arranger Fee Letter” means the letter agreement, dated September 19, 2011, among the
Borrower, the Administrative Agent and the Arrangers.



2









 





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



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit
E-1 or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended December 31, 2010, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes thereto.



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to
Section 8.02.



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



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate,” and (c) the Eurodollar Rate
plus 1.00%. 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 such prime rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such change.



     “Base Rate Revolving Loan” means a Revolving Loan that is a Base Rate Loan.



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



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



     “Borrower Materials” has the meaning specified in Section 6.02.



     “Borrowing” means a Revolving Borrowing or a Swing Line Borrowing, as the context may
require.



3









 





     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan, means any such day that is also a London Banking Day.



     “Capital Expenditures” means, with respect to any Person for any period, any
expenditure in respect of the purchase or other acquisition of any fixed or capital asset
(excluding (i) normal replacements and maintenance which are properly charged to current operations
and (ii) Investments permitted under Section 7.02(i)).



     “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the Administrative Agent, L/C Issuer or Swing Line Lender (as applicable)
and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or
obligations of Lenders to fund participations in respect of either thereof (as the context may
require), cash or deposit account balances or, if the L/C Issuer or Swing Line Lender benefitting
from such collateral shall agree in its sole discretion, other credit support, in each case
pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent and
(b) the L/C Issuer or the Swing Line Lender (as applicable). “Cash Collateral” shall have a meaning
correlative to the foregoing and shall include the proceeds of such cash collateral and other
credit support.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation, implementation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
rule, guideline or directive (whether or not having the force of law) by any Governmental
Authority; provided that notwithstanding anything herein to the contrary, (x) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or
directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or
directives promulgated by the Bank for International settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States regulatory authorities, in
each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless
of the date enacted, adopted or issued.



     “Change of Control” means an event or series of events by which:




     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all securities that such person or
group has the right to acquire, whether such right is exercisable immediately or only after
the passage of time (such right, an “option right”)), directly or indirectly, of 35%
or more of the equity securities of the Borrower entitled to vote for members of the board
of directors or equivalent governing body of the Borrower



4









 







on a fully-diluted basis (and
taking into account all such securities that such person or group has the right to acquire
pursuant to any option right); or




     (b) during any period of 12 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of the Borrower cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (i) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent governing body
was approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a majority of that board or
equivalent governing body (excluding, in the case of both clause (ii) and clause
(iii), any individual whose initial nomination for, or assumption of office as, a member
of that board or equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or more directors by
any person or group other than a solicitation for the election of one or more directors by
or on behalf of the board of directors).



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.



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



     “Co-Documentation Agents” means, collectively, Fifth Third Bank, Sovereign Bank and TD
Bank, N.A. in their capacity as co-documentation agents.



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



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



     “Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a)
the following, to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated
Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income
taxes by the Borrower and its Subsidiaries for such period, (iii) depreciation and amortization
expense, (iv) non-cash stock based compensation expenses, (v) other non-recurring expenses of the
Borrower and its Subsidiaries reducing such Consolidated Net Income, which do not represent a cash
item in such period or any future period, including without limitation non-cash expenses related to
any Disposition permitted under this Agreement, and (vi) non-cash expenses relating to any employee
stock purchase plan and minus (b) to the extent included in calculating



5









 




such Consolidated Net Income, all non-cash items increasing Consolidated Net Income for such period.




     “Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such
date, minus the sum of (i) the aggregate amount of all Capital Expenditures for property,
plant and equipment or purchased software made by the Borrower and its Subsidiaries on a
consolidated basis during such period and (ii) the aggregate amount of Federal, state, local and
foreign income taxes paid in cash, in each case, of or by the Borrower and its Subsidiaries on a
consolidated basis during such period, to (b) the sum of (i) Consolidated Interest Charges for such
period, (ii) the aggregate principal amount of all regularly scheduled principal payments or
redemptions or similar acquisitions for value of outstanding Indebtedness for borrowed money, but
excluding such payments to the extent refinanced through the incurrence of additional Indebtedness
otherwise expressly permitted under Section 7.02, in each case, of or by the Borrower and
its Subsidiaries on a consolidated basis during such period, and (iii) the aggregate amount of all
Restricted Payments, excluding purchases, redemptions or acquisitions of Equity Interests issued by
the Borrower or its Subsidiaries permitted under Section 7.06(d), by the Borrower and its
Subsidiaries on a consolidated basis during such period.



     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all Indebtedness, whether current or long-term, for borrowed money (including Obligations
hereunder) and all Indebtedness evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct Indebtedness arising under
letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety
bonds and similar instruments, (d) all Indebtedness in respect of the deferred purchase price of
property or services, but excluding (x) trade accounts payable in the ordinary course of business
and (y) earn-outs and purchase price adjustments payable in cash with respect to a deferred payment
arising in connection with an Investment permitted under Section 7.02(i) solely, in the
case of this clause (y), until the satisfaction or occurrence of any contingency or condition which
gives rise to any such payment, (e) Attributable Indebtedness in respect of capital leases and
Synthetic Lease Obligations, (f)
without duplication, all Guarantees with respect to outstanding Indebtedness of the types
specified in clauses (a) through (e) above of Persons other than the Borrower or
any Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a) through
(f) above of any partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which the Borrower or a Subsidiary is a general
partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Borrower
or such Subsidiary.



     “Consolidated Interest Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt discount,
fees, charges and related expenses of the Borrower and its Subsidiaries in connection with borrowed
money (including capitalized interest) or in connection with the deferred purchase price of assets,
in each case to the extent treated as interest in accordance with GAAP, and (b) the portion of rent
expense of the Borrower and its Subsidiaries with respect to such period under capital leases that
is treated as interest in accordance with GAAP.



6









 





     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the
four fiscal quarters most recently ended.



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



     “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.



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



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



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



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



     “Defaulting Lender” means, subject to Section 2.16(b), any Lender that, as
determined by the Administrative Agent, (a) has failed to perform any of its funding obligations
hereunder, including in respect of its Loans or participations in respect of Letters of Credit or
Swing Line Loans, within three Business Days of the date required to be funded by it hereunder, (b)
has notified the Borrower or the Administrative Agent that it does not intend to comply with its
funding obligations or has made a public statement to that effect with respect to its funding
obligations hereunder or under other agreements in which it commits to extend credit, (c) has
failed, within three Business Days after request by the Administrative Agent, to confirm in a
manner satisfactory to the Administrative Agent that it will comply with its funding obligations,
or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a
proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator,



7









 




assignee for the benefit of creditors or similar Person charged with reorganization or liquidation
of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or
indicated its consent to, approval of or acquiescence in any such proceeding or appointment;
provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership
or acquisition of any equity interest in that Lender or any direct or indirect parent company
thereof by a Governmental Authority.




     “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.



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



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



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Sections 10.06(b)(iii) and (v) (subject to such consents, if any, as may be
required under Section 10.06(b)(iii)).



     “Environmental Laws” means any and all Federal, state, local, and foreign 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 materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to waste or
public systems.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower, any other Loan Party or any of their respective Subsidiaries 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 release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.



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



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



8









 





     “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) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which such entity 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 Pension Plan amendment as a termination
under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a
Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the
determination that any Pension Plan is considered an at-risk plan or a plan in endangered or
critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304
and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.



     “Eurodollar Rate” means:



     (a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal
to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters
(or such other commercially available source providing quotations of BBA LIBOR as may be designated
by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two London
Banking Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery
on the first day of such Interest Period) with a term equivalent to such Interest Period or, (ii)
if such 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 and with a term equivalent to such Interest Period would be offered by
Bank of America’s London Branch to major banks in the London interbank eurodollar market at their
request at approximately 11:00 a.m. (London time) two London Banking Days prior to the commencement
of such Interest Period; and



     (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per
annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time determined two London
Banking Days prior to such date for Dollar deposits being delivered in the London interbank market
for a term of one month commencing that day or (ii) if such published 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 date of determination in same day funds in the
approximate amount of the Base Rate Loan being made or maintained and with a term equal to one
month would be offered by Bank of America’s London Branch to major banks in the London interbank
Eurodollar market at their request at the date and time of determination.



9









 





     “Eurodollar Rate Revolving Loan” means a Revolving Loan that bears interest at a rate
based on clause (a) of the definition of “Eurodollar Rate.”



     “Eurodollar Rate Loan” means a Eurodollar Rate Revolving Loan.



     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded Subsidiary” means (a) athenahealth Security Corporation, a Massachusetts
securities corporation and (b) any other Subsidiary that (x) individually does not account for more
than 5% of the consolidated total assets of the Borrower and its Subsidiaries or more than 5% of
the consolidated total revenues of the Borrower and its Subsidiaries and (y) together with all
other Excluded Subsidiaries under this clause (b) (and for the avoidance of any doubt,
excluding athenahealth Security Corporation), on a combined consolidated basis, does not account
for more than 10% of the consolidated total assets of the Borrower and its Subsidiaries or more
than 10% of the consolidated total revenues of the Borrower and its Subsidiaries, in each case, at
the end of, or for the period of four fiscal quarters ended with, the most recent fiscal quarter of
the Borrower for which financial statements shall have been delivered pursuant to Section
6.01(a) or (b).



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the Laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which the Borrower is located, (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), (d) any U.S. withholding taxes
imposed under FATCA or which are payable to a Lender that has failed to comply with clause (C) of
Section 3.01(e)(ii), (e) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 10.13), 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) is attributable to such Foreign Lender’s failure or inability (other than as a result of a
Change in Law) to comply with clause (B) of Section 3.01(e)(ii), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new Lending Office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 3.01(a)(ii) or (c), and (f) any
interest additions to taxes or penalties applicable to taxes described in the preceding clauses (a)
through (e). Changes in the effective date of FATCA shall not constitute a Change in Law.



     “Existing Credit Agreement” means that certain Credit Agreement, dated as of September
30, 2008, among the Borrower, Bank of America, N.A., as administrative agent, swing line lender and
L/C issuer, and a syndicate of lenders.



10









 





     “Existing Letters of Credit” means each standby letter of credit issued by Bank of
America, N.A. under the Existing Credit Agreement.



     “FASB ASC” means the Accounting Standards Codification of the Financial Accounting
Standards Board.



     “FATCA” means sections 1471 through 1474 of the Code as of the date of this Agreement
(or any successor provisions thereof that are substantially comparable and not materially more
onerous to comply with) and any regulations that are issued thereunder and official government
interpretations thereof.



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



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



     “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 the 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.



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



     “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C
Obligations other than L/C Obligations as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the
terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable
Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof.



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



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting



11









 





Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



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



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



     “Guarantors” means, collectively, (a) each of Anodyne Health Partners, Inc., a
Delaware corporation, athenahealth MA, Inc., a Massachusetts Corporation, and Proxsys, LLC, an
Alabama limited liability company, and (b) each other Domestic Subsidiary that executes the
Guaranty pursuant to Section 6.12; provided, that in no event shall any (x)
Excluded Subsidiary or (y) Domestic Subsidiary that is prohibited by applicable Law from entering
into a Guaranty, constitute a Guarantor. For the avoidance of doubt, neither athenahealth
Technology Private Limited nor any other Subsidiary that is not a Domestic Subsidiary shall be a
Guarantor hereunder.



     “Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative
Agent and the Lenders, substantially in the form of Exhibit F.



     “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum



12









 





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.



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




     (a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




     (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;




     (c) net obligations of such Person under any Swap Contract;




     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business and, in each
case, not past due for more than 90 days after the date on which such trade account payable
was due);




     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;




     (f) capital leases and Synthetic Lease Obligations;




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




     (h) all Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed
to be the amount of Attributable Indebtedness in respect thereof as of such date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 10.04(b).



13









 





     “Information” has the meaning specified in Section 10.07.



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



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




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




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




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



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



     “IP Rights” has the meaning specified in Section 5.18.



     “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).



     “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer



14









 




and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of
Credit.




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



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



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



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



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



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



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.



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



     “Letter of Credit” means any standby letter of credit issued hereunder and shall
include the Existing Letters of Credit.



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



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



15









 





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



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



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



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



     “Loan Documents” means this Agreement, each Note, each Issuer Document, any agreement
creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.15
of this Agreement, the Fee Letters, and the Guaranty.



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



     “London Banking Day” means any day on which dealings in Dollar deposits are conducted
by and between banks in the London interbank eurodollar market.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities, or financial condition of
the Borrower or the Borrower and its Subsidiaries taken as a whole; or (b) a material adverse
effect upon the legality, validity, binding effect or enforceability against any Loan Party of any
Loan Document to which it is a party.



     “Maturity Date” means October 20, 2016; provided, however, that if
such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.



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



     “Medicare” means that government-sponsored insurance program under Title XVIII, P.L.
89-97, of the Social Security Act, which provides for a health insurance system for eligible
elderly and disabled individuals, as set forth at Section 1395, et seq. of Title 42 of the United
States Code.



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



16









 





     “Multiple Employer Plan” means a Plan which has two or more contributing sponsors
(including the Borrower or any ERISA Affiliate) at least two of whom are not under common control,
as such a plan is described in Section 4064 of ERISA.



     “Note” means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of Exhibit C.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding.



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



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



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



     “Participant” has the meaning specified in Section 10.06(d).



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Act” means the Pension Protection Act of 2006.



17









 





     “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum
required contributions (including any installment payment thereof) to Pension Plans and set forth
in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412
of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter,
Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.



     “Pension Plan” means any employee pension benefit plan (including a Multiple Employer
Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA
Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Code.



     “Permitted Acquisition” has the meaning specified in Section 7.02.



     “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 within the meaning of Section 3(3) of ERISA
(including a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any
such Plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf of any
of its employees.



     “Platform” has the meaning specified in Section 6.02.



     “Public Lender” has the meaning specified in Section 6.02.



     “Register” has the meaning specified in Section 10.06(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 30 day notice period has been waived.



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



     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings
(with
the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total Outstandings
held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.



18









 





     “Responsible Officer” means (a) the chief executive officer, president, chief
financial officer, treasurer, assistant treasurer or controller of a Loan Party, (b) solely for
purposes of the delivery of incumbency and other certificates of the type contemplated under
Section 4.01(a)(iii), the secretary or any assistant secretary of a Loan Party, and (c)
solely for purposes of notices given pursuant to Article II, any other officer of the
applicable Loan Party so designated by any of the foregoing officers in a notice to the
Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of
a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.



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



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



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



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



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



     “Social Security Act” means the Social Security Act of 1965.



     “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, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Borrower.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index



19









 




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




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



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.



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



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



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



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



     “Syndication Agent” means U.S. Bank National Association in its capacity as
syndication agent.



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other similar charges imposed



20









 




by
any Governmental Authority, including any interest, additions to tax or penalties applicable
thereto.




     “Threshold Amount” means $10,000,000.



     “Total Consideration” means, with respect to any purchase or other acquisition
referred to in Section 7.02(f), the total cash and noncash consideration (including the
fair market value of all Equity Interests issued or transferred to the sellers thereof, all
indemnities, earnouts and other contingent payment obligations to, and the aggregate amounts paid
or to be paid under noncompete, consulting and other affiliated agreements (other than employment
agreements for services actually rendered to the Borrower or any of its Subsidiaries after the date
thereof) with, the related sellers, all write-downs of property and reserves for liabilities with
respect thereto and all assumptions of Indebtedness, liabilities and other obligations in
connection therewith) paid by or on behalf of the Borrower and its Subsidiaries for such purchase
or other acquisition.



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



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



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



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



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



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



21









 




refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.




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



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



     1.03 Accounting Terms.



     (a) Generally. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements, except as
otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of
determining compliance with any covenant (including the computation of any financial covenant)
contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried
at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC
470-20 on financial liabilities shall be disregarded.



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



     (c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Borrower and its Subsidiaries or to the determination of
any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference
shall, in each case, be deemed to include each variable interest entity that the Borrower is
required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a
Subsidiary as defined herein.



     1.04 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to
this Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such



22









 







ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).



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



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



ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS




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



     2.02 Borrowings, Conversions and Continuations of Revolving Loans.



     (a) Each Revolving Borrowing, each conversion of Revolving Loans from one Type to the other,
and each continuation of Eurodollar Rate Revolving Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice
must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days
prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate
Revolving Loans or of any conversion of Eurodollar Rate Revolving Loans to Base Rate Revolving
Loans, and (ii) on the requested date of any Borrowing of Base Rate Revolving Loans. Each
telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Revolving Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Revolving Loans shall be in a principal amount of $5,000,000 or a
whole multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.03(c) and
2.04(c), each Borrowing of or conversion to Base Rate Revolving Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Revolving
Loan Notice (whether telephonic or written) shall specify (i)



23









 







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



     (b) Following receipt of a Revolving Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage of the applicable Revolving 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 Revolving Borrowing, each
Lender shall make the amount of its Revolving 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 Revolving Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial
Credit Extension, Section 4.01), 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 the Revolving Loan Notice with respect to
such Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of
such Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings,
and second, shall be made available to the Borrower as provided above.



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



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



24









 





     (e) After giving effect to all Revolving Borrowings, all conversions of Revolving Loans from
one Type to the other, and all continuations of Revolving Loans as the same Type, there shall not
be more than ten (10) Interest Periods in effect with respect to Revolving Loans.



     2.03 Letters of Credit.



     (a) The Letter of Credit Commitment.




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




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




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




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




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




     (A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer from



25









 







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




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




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




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




     (E) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has
entered into arrangements, including the delivery of Cash Collateral, satisfactory
to the L/C Issuer (in its sole discretion) with the Borrower or such
Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure
(after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting
Lender arising from either the Letter of Credit then proposed to be issued or that
Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual
or potential Fronting Exposure, as it may elect in its sole discretion; or




     (F) the Letter of Credit contains any provisions for automatic reinstatement of
the stated amount after any drawing thereunder.




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




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




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



26









 







Agent” as used
in Article IX included the L/C Issuer with respect to such acts or omissions, and
(B) as additionally provided herein with respect to the L/C Issuer.



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




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




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



27









 






     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an “Auto-Extension Letter of Credit”); provided
that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such
extension at least once in each twelve-month period (commencing with the date of issuance of
such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a
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 the L/C
Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for
any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders
shall be deemed to have authorized (but may not require) the L/C Issuer to permit the
extension of such Letter of Credit at any time to an expiry date not later than the Letter
of Credit Expiration Date; provided, however, that the L/C Issuer shall not
permit any such extension if (A) the L/C Issuer has determined that it would not be
permitted, or would have no obligation, at such time to issue such Letter of Credit in its
revised form (as extended) under the terms hereof (by reason of the provisions of clause
(ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received
notice (which may be
by telephone or in writing) on or before the day that is seven Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have
elected not to permit such extension or (2) from the Administrative Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in Section 4.02 is
not then satisfied, and in each such case directing the L/C Issuer not to permit such
extension.




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



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the
L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower
shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing. If the Borrower fails to so reimburse the L/C Issuer by such time,
the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of
the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such
Lender’s Applicable Percentage thereof. In such event, the Borrower shall be deemed to have
requested a Revolving 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 Commitments and the conditions set
forth in Section 4.02 (other than the delivery of a Revolving Loan Notice). Any
notice given by the L/C Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in writing;



28









 






provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.




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




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




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




     (v) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Revolving Loans
pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 4.02 (other than delivery by the Borrower of a Revolving Loan Notice). No
such making of an L/C Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer
under any Letter of Credit, together with interest as provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), then, without limiting the other provisions of this Agreement, the L/C
Issuer shall be



29









 







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



     (d) Repayment of Participations.




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




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal to the Federal
Funds Rate from time to time in effect. The obligations of the Lenders under this clause
shall survive the payment in full of the Obligations and the termination of this Agreement.



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




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




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



30









 







with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;




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




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




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



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



     (f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by 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 Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to, and
shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the Borrower may
have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the
extent, but only to the extent, of any direct, as opposed to



31









 







consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C Issuer’s willful
misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason.



     (g) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and 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 standby Letter of Credit.



     (h) Letter of Credit Fees.
The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee
(the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the daily amount available to be drawn under such Letter of Credit; provided,
however, any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with
respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral
satisfactory to the L/C Issuer pursuant to this Section 2.03 shall be payable, to the
maximum extent permitted by applicable Law, to the other Lenders in accordance with the upward
adjustments in their respective Applicable Percentages allocable to such Letter of Credit pursuant
to Section 2.16(a)(iv), with the balance of such fee, if any, payable to the L/C Issuer for
its own account. For purposes of computing the daily amount available to be drawn under any Letter
of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.
Letter of Credit Fees shall be (i) due and payable on the first Business Day after the
end of each March, June, September and December, commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable
Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall
be computed and multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained
herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of
Credit Fees shall accrue at the Default Rate.



     (i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit, at the rate per annum specified in the Agent’s Fee Letter, computed on the
daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears
Such fronting fee shall be due and payable on the tenth Business Day after the end of each March,
June, September and December in respect of the most recently-ended quarterly period (or portion
thereof, in the case of the first payment), commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. For purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with Section



32









 





1.06. In addition, the Borrower shall pay directly to the L/C Issuer for its own account the
customary issuance, presentation, amendment and other processing fees, and other standard costs and
charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such
customary fees and standard costs and charges are due and payable on demand and are
nonrefundable.



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



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



     2.04 Swing Line Loans.



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



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed



33









 




promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing
Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower.
Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing
Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line
Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Swing Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the
proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan
as a result of the limitations set forth in the first proviso to the first sentence of Section
2.04(a), or (B) that one or more of the applicable conditions specified in Article IV
is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender
will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make
the amount of its Swing Line Loan available to the Borrower.




     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole discretion may request, on behalf of
the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Lender make a Base Rate Revolving Loan in an amount equal to such
Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to be a Revolving
Loan Notice for purposes hereof) and in accordance with the requirements of Section
2.02, without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02. The Swing Line Lender
shall furnish the Borrower with a copy of the applicable Revolving Loan Notice promptly
after delivering such notice to the Administrative Agent. Each Lender shall make an amount
equal to its Applicable Percentage of the amount specified in such Revolving Loan Notice
available to the Administrative Agent in immediately available funds (and the Administrative
Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan)
for the account of the Swing Line Lender at the Administrative Agent’s Office not later than
1:00 p.m. on the day specified in such Revolving Loan Notice, whereupon, subject to
Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to
have made a Base Rate Revolving Loan to the Borrower in such amount. The Administrative
Agent shall remit the funds so received to the Swing Line Lender.




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



34









 






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




     (iv) Each Lender’s obligation to make Revolving Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the Borrower to repay
Swing Line Loans, together with interest as provided herein.



     (d) Repayment of Participations.




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




     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the date
such amount is returned, at a rate per annum equal to the Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the Swing Line Lender. The
obligations of the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.



35









 





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



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



     2.05 Prepayments.



     (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Revolving Loans in whole or in part without premium or penalty;
provided that (i) such notice must be received by the Administrative Agent not later than
11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate Revolving
Loans and (B) on the date of prepayment of Base Rate Revolving Loans; (ii) any prepayment of
Eurodollar Rate Revolving Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Revolving Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding. Each such notice shall specify the
date and amount of such prepayment and the Type(s) of Revolving Loans to be prepaid and, if
Eurodollar Rate Revolving Loans are to be prepaid, the Interest Period(s) of such Loans. The
Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of
the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by
the Borrower, the Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate
Loan shall be accompanied by all accrued interest on the amount prepaid, together with any
additional amounts required pursuant to Section 3.05. Subject to Section 2.16,
each such prepayment shall be applied to the Revolving Loans of the Lenders in accordance with
their respective Applicable Percentages.



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



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



36









 





     2.06 Termination or Reduction of Commitments. The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce
the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving
effect to any reduction of the Aggregate Commitments, the Letter of Credit Sublimit or the Swing
Line Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be automatically
reduced by the amount of such excess. The Administrative Agent will promptly notify the Lenders of
any such notice of termination or reduction of the Aggregate Commitments. Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable
Percentage. All fees accrued until the effective date of any termination of the Aggregate
Commitments shall be paid on the effective date of such termination.



     2.07 Repayment of Loans.



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



     (b) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date ten
Business Days after such Loan is made and (ii) the Maturity Date.



     2.08 Interest.



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



     (b) (i) If any amount of principal of any Loan is not paid when due, whether at stated
maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.




     (ii) If any Event of Default occurs as a result of the failure by the Borrower or any
other Loan Party to pay any amount (other than principal of any Loan) under any Loan
Document when due, whether at stated maturity, by acceleration or otherwise, then upon the
request of the Required Lenders and written notice by Administrative Agent to the Borrower,
such amount shall (as of the due date therefor) bear interest at a fluctuating



37









 







interest rate
per annum equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (iii) While any Event of Default (not otherwise described in clauses (i) and (ii) above)
exists, from and after the Administrative Agent has sent written notice to the Borrower, the
Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder
at a fluctuating interest rate per annum equal to the Default Rate to the fullest extent
permitted by applicable Laws.




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



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



     2.09 Fees. In addition to certain fees described in subsections (h) and (i)
of Section 2.03:



     (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to the
Applicable Rate times the actual daily amount by which the Aggregate Commitments exceed the
sum of (i) the Outstanding Amount of Revolving Loans and (ii) the Outstanding Amount of L/C
Obligations, subject to adjustment as provided in Section 2.16. The commitment fee shall
accrue at all times during the Availability Period, including at any time during which one or more
of the conditions in Article IV is not met, and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December, commencing with the
first such date to occur after the Closing Date, and on the last day of the Availability Period.
The commitment fee shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect.



     (b) Other Fees. (i) The Borrower shall pay to the Arranger 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.




     (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 agreed. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.



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



38









 





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



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



     2.11 Evidence of Debt.



     (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent demonstrable 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 demonstrable error. Upon the request of any Lender made
through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through
the Administrative Agent) a Note, 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



39









 





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



     2.12 Payments Generally; Administrative Agent’s Clawback.



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



     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Revolving Borrowing of Eurodollar Rate Loans (or, in the case of any Revolving Borrowing of Base
Rate Loans, prior to 12:00 noon on the date of such Revolving Borrowing) that such Lender will not
make available to the Administrative Agent such Lender’s share of such Revolving 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 Revolving 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 Revolving 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 Revolving Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender’s Revolving Loan
included in such Revolving Borrowing. Any payment by the Borrower shall be without



40









 







prejudice to
any claim the Borrower may have against a Lender that shall have failed to make such payment to the
Administrative Agent.




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



     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent demonstrable 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 IV are not satisfied or waived in accordance with the terms hereof, the
Administrative
Agent shall return such funds (in like funds as received from such Lender) to such Lender,
without interest.



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Revolving Loans, to fund participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender
to make any Revolving Loan, to fund any such participation or to make any payment under Section
10.04(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 Revolving Loan, to purchase its participation or to make its payment under
Section 10.04(c).



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



     2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
the Revolving Loans made by it, or the participations in L/C Obligations or in Swing



41









 







Line Loans
held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of
such Revolving 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
Revolving Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans and other amounts owing them, provided
that:




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




     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by or on behalf of the Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from the existence of a
Defaulting Lender), (y) the application of Cash Collateral provided for in Section
2.15, or (z) any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Revolving Loans or subparticipations in L/C
Obligations or Swing Line Loans to any assignee or participant, other than an assignment to
the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall
apply).



     The Borrower, on behalf of itself and each Guarantor, 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 the Borrower and each such Guarantor
rights of setoff and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of the Borrower or such Guarantor in the amount of such participation.



     2.14 Increase in Commitments.



     (a) Request for Increase. Provided there exists no Event of Default, upon notice to
the Administrative Agent (which shall promptly notify the Lenders), the Borrower may from time to
time, request an increase in the Aggregate Commitments by an amount (for all such requests) not
exceeding $100,000,000; provided that (i) any such request for an increase shall be in a
minimum amount of $5,000,000, (ii) the Borrower may make a maximum of five such requests, and (iii)
such increase shall be on the same terms and conditions as are set forth in the Loan Documents. At
the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond (which shall in no event
be less than ten Business Days from the date of delivery of such notice to the Lenders).



     (b) Lender Elections to Increase. The Lenders shall have a pro-rata right of first
refusal as to any increase in the Aggregate Commitments requested by the Borrower pursuant to



42









 





this Section 2.14, provided, however, that no Lender shall be obligated to
participate in such increase by increasing its own Commitment, which decision shall be made in the
sole discretion of each Lender. Each Lender shall notify the Administrative Agent within the time
period specified in clause (a) above whether or not it agrees to increase its Commitment and, if
so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such
requested increase. Any Lender not responding within such time period shall be deemed to have
declined to increase its Commitment. For the avoidance of doubt, subject to subsection
(e), no consent of the Lenders shall be required to implement any increase in the Aggregate
Commitments (other than those Lenders choosing to participate in such increase).



     (c) Notification by Administrative Agent; Additional Lenders. The Administrative
Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made
hereunder. In the event that, following the expiration of the time period referred to in
subsection (a), the total increase in Commitments consented to by the Lenders pursuant to
subsection (b) is less than the increase in the Aggregate Commitments requested by the
Borrower, then to achieve the full amount of a requested increase, the Borrower may also invite
additional Eligible Assignees, or any other financial institution reasonably acceptable to the
Administrative Agent, to become Lenders pursuant to a joinder agreement in form and substance
satisfactory to the Administrative Agent and its counsel.



     (d) Effective Date and Allocations. If the Aggregate Commitments are increased in
accordance with this Section, the Administrative Agent and the Borrower shall determine the
effective date (the “Increase Effective Date”) and the final allocation of such
increase. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final
allocation of such increase and the Increase Effective Date.



     (e) Conditions to Effectiveness of Increase. Any increase in the Aggregate
Commitments shall be subject to the satisfaction of the following conditions precedent:




     (i) as of the Increase Effective Date, before and after giving effect to such increase,
(x) no Default shall exist, (y) the Borrower shall be in compliance on a pro forma basis
with each of the financial covenants set forth in Section 7.11, and (z) the
representations and warranties contained in Article V and each other Loan Documents
shall be true and correct in all material respects (or in the case of a representation or
warranty that is already subject to a materiality condition, in all respects), except to the
extent that such representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct as of such earlier date, and except that (i) for
purposes of this Section 2.14, the representations and warranties contained in
clauses (a) and (b) of Section 5.05 shall be deemed to refer to the
most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01 and (ii) for purposes of this Section 2.14,
the representations and warranties contained in Section 5.13 shall be deemed to
refer to the most recent, updated Schedule 5.13 delivered to the Administrative
Agent pursuant to Sections 6.02(a) and 10.01; and




     (ii) the Borrower shall have delivered to the Administrative Agent a certificate of
each Loan Party dated as of the Increase Effective Date (in sufficient copies for each
Lender) signed by a Responsible Officer of such Loan Party (x) certifying and attaching



43









 







the resolutions adopted by such Loan Party approving or consenting to such increase, and (y)
certifying that the conditions set forth in clauses (ii) are satisfied.


The Borrower shall make such Borrowings and repayments of Revolving Loans on the Increase Effective
Date (and pay any additional amounts required pursuant to Section 3.05) to the extent
necessary to keep the outstanding Revolving Loans ratable with any revised Applicable Percentages
resulting from any nonratable increase in the Commitments under this Section.




     (f) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.13 or 10.01 to the contrary.



     2.15 Cash Collateral.



     (a) Certain Credit Support Events. Upon the request of the Administrative Agent or
the L/C Issuer, (i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of
Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall,
in the case of clause (i) above, within one Business Day thereof, or in the case of clause (ii)
above, immediately, Cash Collateralize the then Outstanding Amount of all L/C Obligations. Each
Defaulting Lender shall, immediately upon the request of the Administrative Agent, the
L/C Issuer or the Swing Line Lender, deliver to the Administrative Agent Cash Collateral in an
amount sufficient to cover all Fronting Exposure in respect of such Defaulting Lender;
provided, however, that to the extent any such Defaulting Lender shall fail to
provide Cash Collateral as required hereunder, immediately upon the request of the Administrative
Agent, the L/C Issuer or the Swing Line Lender, the Borrower shall deliver to the Administrative
Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect
to Section 2.16(a)(iv) and any Cash Collateral provided by the Defaulting Lender).



     (b) Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America. The Borrower, and to the extent provided by any Lender, such Lender,
hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the
Administrative Agent, the L/C Issuer and the Lenders (including the Swing Line Lender), and agrees
to maintain, a first priority security interest in all such cash, deposit accounts and all balances
therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of
the foregoing, all as security for the obligations to which such Cash Collateral may be applied
pursuant to Section 2.15(c). If at any time the Administrative Agent determines that Cash
Collateral is subject to any right or claim of any Person other than the Administrative Agent as
herein provided, or that the total amount of such Cash Collateral is less than the applicable
Fronting Exposure and other obligations secured thereby, the Borrower or the relevant Defaulting
Lender will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative
Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.



     (c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.15 or Sections
2.03, 2.04, 2.05, 2.16 or 8.02 in respect of Letters of Credit
or Swing Line Loans shall be held and applied to the




44










 




satisfaction of the specific L/C Obligations,
Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral
provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for
which the Cash Collateral was so provided, prior to any other application of such property as may
be provided for herein.




     (d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee
following compliance with Section 10.06(b)(vi))) or (ii) the Administrative Agent’s good
faith determination that there exists excess Cash Collateral; provided, however, (x) that
Cash Collateral furnished by or on behalf of a Loan Party shall not be released during the
continuance of an Event of Default (and following application as provided in this Section
2.15 may be otherwise applied in accordance with Section 8.03), and (y) the Person
providing Cash Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree that
Cash Collateral shall not be released but instead held to support future anticipated Fronting
Exposure or other obligations.



     2.16 Defaulting Lenders.



     (a) Adjustments. Notwithstanding anything to the contrary contained in this
Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no
longer a Defaulting Lender, to the extent permitted by applicable Law:




     (i) Waivers and Amendments. That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 10.01.




     (ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise,
and including any amounts made available to the Administrative Agent by that Defaulting
Lender pursuant to Section 10.08), shall be applied at such time or times as may be
determined by the Administrative Agent as follows: first, to the payment of any amounts
owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the
payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuer
or Swing Line Lender hereunder; third, if so determined by the Administrative Agent or
requested by the L/C Issuer or Swing Line Lender, to be held as Cash Collateral for future
funding obligations of that Defaulting Lender of any participation in any Swing Line Loan or
Letter of Credit; fourth, as the Borrower may request (so long as no Default or Event of
Default exists), to the funding of any Loan in respect of which that Defaulting Lender has
failed to fund its portion thereof as required by this Agreement, as determined by the
Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower,
to be held in a non-interest bearing deposit account and released in order to satisfy
obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the
payment of any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result
of
any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer
or Swing Line Lender against that Defaulting Lender as a result of that Defaulting Lender’s
breach of its obligations under this Agreement; seventh, so long as no Event of Default
exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a
court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a
result of



45









 






that Defaulting Lender’s breach of its obligations under this Agreement; and
eighth, to that Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if (x) such payment is a payment of the principal amount
of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully
funded its appropriate share and (y) such Loans or L/C Borrowings were made at a time when
the conditions set forth in Section 4.02 were satisfied or waived, such payment
shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all non-Defaulting
Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C
Borrowings owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid
or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a
Defaulting Lender or to post Cash
Collateral pursuant to this Section 2.16(a)(ii) shall be deemed paid to and
redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.




     (iii) Certain Fees. That Defaulting Lender (x) shall not be entitled to
receive any commitment fee pursuant to Section 2.09(a) for any period during which
that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such
fee that otherwise would have been required to have been paid to that Defaulting Lender,
provided, that if any other Lender shall at any time assume (as a result of any reallocation
pursuant to clause (iv) below) any portion of the Commitments of a Defaulting Lender, such
Lender shall be entitled to any commitment fee that would have been payable to such
Defaulting Lender relating to such assumed portion) and (y) shall be limited in its right to
receive Letter of Credit Fees as provided in Section 2.03(h).




     (iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure.
During any period in which there is a Defaulting Lender, for purposes of computing the
amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.03
and 2.04, the “Applicable Percentage” of each non-Defaulting Lender shall be
computed without giving effect to the Commitment of that Defaulting Lender;
provided, that, (i) each such reallocation shall be given effect only if, at the
date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default
exists; and (ii) the aggregate obligation of each non-Defaulting Lender to acquire,
refinance or fund participations in Letters of Credit and Swing Line Loans shall not exceed
the positive difference, if any, of (1) the Commitment of that non-Defaulting Lender
minus (2) the aggregate Outstanding Amount of the Revolving Loans of that Lender.



     (b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, Swing Line
Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender should
no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties
hereto, whereupon as of the effective date specified in such notice and subject to any conditions
set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender
will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or
take such other actions as the Administrative Agent may determine to be



46









 







necessary to cause the
Revolving Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to
be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without
giving effect to Section 2.16(a)(iv)), whereupon that Lender will cease to be a Defaulting
Lender; provided that no adjustments will be made retroactively with respect to fees
accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender;
and provided, further, that except to the extent otherwise expressly agreed by the
affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or
release of any claim of any party hereunder arising from that Lender’s having been a Defaulting
Lender.



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 Loan Document shall to the extent permitted by applicable Laws be made free and clear of and
without reduction or withholding for any Taxes. If, however, applicable Laws require 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 Borrower or the Administrative Agent shall
withhold or make such deductions as are determined by the Borrower or the Administrative
Agent to be required based upon the information and documentation it has received pursuant
to subsection (e) below (or lack thereof), (B) the Borrower or 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 (without duplication), 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, Lender or 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 the 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 (without
duplication and



47









 





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 the L/C Issuer, as the case may be, and
any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. 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 the 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 the L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its
own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent demonstrable
error.




     (ii) Without limiting the provisions of subsection (a) or (b) above,
each Lender and the L/C Issuer shall, and does hereby, indemnify the Borrower and the
Administrative Agent, and shall make payment in respect thereof within 10 days after demand
therefor, against any and all Taxes and any and all related losses, claims, liabilities,
penalties, interest and expenses (including the fees, charges and disbursements of any
counsel for the Borrower or the Administrative Agent) incurred by or asserted against the
Borrower or the Administrative Agent by any Governmental Authority as a result of the
failure by such Lender or the 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 the L/C Issuer, as the case may be, to the Borrower or the Administrative
Agent pursuant to subsection (e). Each Lender and the L/C Issuer hereby authorizes
the Borrower or the Administrative Agent, as applicable, to set off and apply any and all
amounts at any time owing to such Lender or the L/C Issuer, as the case may be, under this
Agreement or any other Loan Document against any amount due to the Borrower or the
Administrative Agent, as applicable, 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 the 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 by 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 copy (certified to be a true and correct copy by an officer of the Borrower or
the Administrative Agent, as applicable) of a receipt issued by such Governmental Authority
evidencing such payment, a copy of any return required by Laws 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



48









 







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




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




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




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




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




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




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




     (IV) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate, in the form reasonably acceptable to the Borrower and
Administrative Agent to the effect that such Foreign Lender (or, if
applicable, any of its direct or indirect beneficial owners) 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



49









 






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) properly
completed executed originals of Internal Revenue Service Form W-8BEN, or




     (V) properly completed 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; and




     (C) if a payment made to a Lender under any Loan Document would be subject to
U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply
with the applicable reporting requirements of FATCA (including those contained in
Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to
the Borrower and the Administrative Agent at the time or times prescribed by law and
at such time or times reasonably requested by the Borrower or the Administrative
Agent such documentation prescribed by applicable law (including as prescribed by
Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by the Borrower or the Administrative Agent as may be necessary for the
Borrower and the Administrative Agent to comply with their obligations under FATCA
and to determine that such Lender has complied with such Lender’s obligations under
FATCA or to determine the amount to deduct and withhold from such payment.
Notwithstanding anything to the contrary contained herein, solely for purposes of
this clause (C), “FATCA” shall be deemed to include any amendment to FATCA after the
date of this Agreement.




     (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 the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund
of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as
the case may be. If the Administrative Agent, any Lender or the L/C Issuer determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the 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),



50









 




net of all out-of-pocket expenses incurred by the Administrative Agent, such Lender or the 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 the 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 the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information
relating to its taxes that it deems 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 Loans whose interest is determined by reference to the Eurodollar
Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental
Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or
to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender
to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or
continue Eurodollar Rate Loans or to convert Base Rate Revolving Loans to Eurodollar Rate Revolving
Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or
maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar
Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall,
if necessary to avoid such illegality, be determined by the Administrative Agent without reference
to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender
(with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender
shall, if necessary to avoid such illegality, be determined by the Administrative Agent without
reference to the Eurodollar Rate component of the Base 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 (y) if such notice asserts the illegality of such Lender determining or
charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the
period of such suspension compute the Base Rate applicable to such Lender without reference to the
Eurodollar Rate component thereof until the Administrative is advised in writing by such Lender
that it is no longer illegal for such Lender to determine or charge interest rates based upon the
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 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 Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Revolving Loan or



51









 




in connection with an existing or
proposed Base Rate Loan, or (c) the Eurodollar Rate for any requested Interest Period with respect
to a proposed Eurodollar Rate Revolving Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower
and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate
Loans shall be suspended, and (y) in the event of a determination described in the preceding
sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the
Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion
to or continuation of Eurodollar Rate Revolving Loans or, failing that, will be deemed to have
converted such request into a request for a Revolving Borrowing of Base Rate Loans in the amount
specified therein.




     3.04 Increased Costs; Reserves on Eurodollar Rate Loans.



     (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
contemplated by Section 3.04(e)) or the L/C Issuer;




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




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


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




     (b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change
in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such
Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or



52









 




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




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



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



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



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



53









 





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



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



     (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section 10.13;


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



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 Revolving Loan made by it
at 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 Revolving 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,
the L/C Issuer, or any Governmental Authority for the account of any Lender or the L/C Issuer
pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02,
then such Lender or the 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 the 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 the L/C Issuer, as the case may be, to any unreimbursed cost
or expense and would not
otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or the L/C
Issuer in connection with any such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower
may replace such Lender in accordance with Section 10.13.



     3.07 Survival. All of the Borrower’s obligations under this Article III shall survive
termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and
resignation of the Administrative Agent.



54









 





ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




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



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals or
telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date) and each in form and
substance satisfactory to the Administrative Agent:




     (i) executed counterparts of this Agreement and the Guaranty, sufficient in number for
distribution to the Administrative Agent, each Lender and the Borrower;




     (ii) a Note executed by the Borrower in favor of each Lender requesting a Note;




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




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




     (v) a favorable opinion of Goodwin Procter LLP, counsel to the Loan Parties, addressed
to the Administrative Agent and each Lender, in form and substance reasonably satisfactory
to the Administrative Agent and the Lenders, covering such matters relating to the Loan
Documents and the transactions contemplated thereby as the Administrative Agent and the
Lenders shall reasonably request;




     (vi) a favorable opinion of Baker, Donelson, Bearman, Caldwell & Berkowitz, local
Alabama counsel to the Loan Parties, addressed to the Administrative Agent and each Lender,
in form and substance reasonably satisfactory to the Administrative Agent and the Lenders,
covering such matters relating to the Loan Documents and the transactions contemplated
thereby as the Administrative Agent and the Lenders shall reasonably request;




     (vii) a certificate of a Responsible Officer of the Borrower either (A) attaching
copies of all consents, licenses and approvals required in connection with the execution,
delivery and performance by each Loan Party and the validity against each Loan Party of



55









 






the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in
full force and effect, or (B) stating that no such consents, licenses or approvals are so
required;




     (viii) a certificate signed by a Responsible Officer of the Borrower certifying (A)
that the conditions specified in Sections 4.02(a) and (b) have been
satisfied and (B) that there has been no event or circumstance since the date of the
quarterly financial statements delivered pursuant to Section 6.01(b) for the fiscal
quarter ended June 30, 2011 that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect; and




     (ix) evidence that all insurance required to be maintained pursuant to the Loan
Documents has been obtained and is in effect.



     (b) Any fees required to be paid on or before the Closing Date shall have been paid.



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



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



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



     (a) The representations and warranties of the Borrower and each other Loan Party contained in
Article V or any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true and correct on and as of the
date of such Credit Extension in all material respects (or in the case of a representation or
warranty that is already subject to a materiality condition, in all respects), except to the extent
that such representations and warranties specifically refer to an earlier date, in which case they
shall be true and correct as of such earlier date, and except that for purposes of this Section
4.02, (i) the representations and warranties contained in
subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01,
and (ii) the representations and warranties contained in



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Section 5.13 shall be deemed to
refer to the most recent, updated
Schedule 5.13 delivered to the Administrative Agent pursuant to Sections 6.02(a) and 10.01.




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



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



     Each Request for Credit Extension (other than a Revolving Loan Notice requesting only a
conversion of Revolving Loans to the other Type or a continuation of Eurodollar Rate Revolving
Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of
the date of the applicable Credit Extension.



ARTICLE V. REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and the Lenders that:



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



     5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of such Person’s Organization Documents; (b) result in the imposition or the creation
of (or requirement to create) any Lien on any asset of any Loan Party; (c) conflict with or result
in any breach or contravention of, or require any payment to be made under (i) any Contractual
Obligation to which such Person is a party or affecting such Person or the properties of such
Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is subject; or (d) violate any
Law, except with respect to any conflict, breach or contravention, payment or violation in clauses
(c) or (d) above, to the extent that such conflict, breach, contravention or payment, individually
or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.



     5.03 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



57









 




or performance by,
or enforcement against, any Loan Party of this Agreement or any other Loan Document except for
approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly
obtained, taken, given or made and are in full force and effect or the failure to obtain would not
reasonably be expected to have a Material Adverse Effect.




     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of each Loan Party that is party thereto, enforceable against
such Loan Party in accordance with its terms.



     5.05 Financial Statements; No Material Adverse Effect.



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



     (b) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated June
30, 2011 and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for the fiscal quarter ended on that date (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 Borrower and its Subsidiaries as of the date thereof and their results
of operations for the period covered thereby, subject, in the case of clauses (i) and
(ii), to the absence of footnotes and to normal year-end audit adjustments. Schedule
5.05 sets forth all material indebtedness and other liabilities, direct or contingent, of the
Borrower and its consolidated Subsidiaries as of the date of such financial statements, including
liabilities for taxes, material commitments and Indebtedness.



     (c) The consolidated forecasted balance sheet and statements of income and cash flows of the
Borrower and its Subsidiaries delivered pursuant to Section 6.01(c) were prepared in good
faith on the basis of the assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts, and represented, at the time of
delivery, the Borrower’s best estimate of its future financial condition and performance.



     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Borrower after due investigation, overtly threatened, at law, in equity, in
arbitration or before any Governmental Authority, by or against the Borrower or any of its
Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain
to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or
(b) except as specifically disclosed in Schedule 5.06, either individually or in the
aggregate (in each case, taking into account the reasonable likelihood of an adverse
determination), would



58









 







reasonably be expected to have a Material Adverse Effect, and there has been
no material adverse change in the status, or the financial effect on any Loan Party or any
Subsidiary thereof, of the matters described on Schedule 5.06.



     5.07 No Default. Neither any Loan Party nor any Subsidiary thereof is in default under or
with respect to any Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has occurred and is
continuing or would result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.



     5.08 Ownership of Property; Liens. Each of the Borrower and each Subsidiary has good record
and marketable title in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted by
Section 7.01.



     5.09 Environmental Compliance. The Borrower and its Subsidiaries conduct in the ordinary
course of business a review of the effect of existing Environmental Laws and claims alleging
potential liability or responsibility for violation of any Environmental Law on their respective
businesses, operations and properties, and as a result thereof the Borrower has
reasonably concluded that, except as specifically disclosed in Schedule 5.09, such
Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.



     5.10 Insurance. The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Borrower, in such
amounts, with such deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where the Borrower or the
applicable Subsidiary operates.



     5.11 Taxes. The Borrower and its Subsidiaries have filed all Federal, state and other
material Tax returns and reports required to be filed, and have paid all Federal, state and other
material Taxes due and payable by them, except those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Borrower or any Subsidiary
that would, if made, have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary
thereof is party to any tax sharing agreement.



     5.12 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 Pension Plan that is intended to be a
qualified plan under Section 401(a) of the Code has received a favorable determination or opinion
letter from the Internal Revenue Service to the effect that the form of such Plan is qualified
under Section 401(a) of the Code and the trust related thereto has been determined by the Internal
Revenue Service to be exempt from federal income tax under Section 501(a) of the



59









 







Code. To the best knowledge of the Borrower, nothing has occurred that would prevent or cause the loss of such
tax-qualified status.



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



     (c) (i) No ERISA Event has occurred, and neither the Borrower nor any ERISA Affiliate is aware
of any fact, event or circumstance that could reasonably be expected to constitute or result in an
ERISA Event with respect to any Pension Plan; (ii) the Borrower and each ERISA Affiliate has met
all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no
waiver of the minimum funding standards under the Pension Funding Rules has been applied for or
obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target
attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and neither
the Borrower nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be
expected to cause the funding target attainment percentage for any such plan to drop below 60% as
of the most recent valuation date; (iv) neither
the Borrower nor any ERISA Affiliate has incurred any liability to the PBGC other than for the
payment of premiums, and there are no premium payments which have become due that are unpaid; (v)
neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to
Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan has been terminated by the plan
administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that
could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to
terminate any Pension Plan.



     (d) Neither the Borrower or any ERISA Affiliate maintains or contributes to, or has any
unsatisfied obligation to contribute to, or liability under, any active or terminated Pension Plan
other than (A) on the Closing Date, those listed on Schedule 5.12 hereto and (B)
thereafter, Pension Plans not otherwise prohibited by this Agreement.



     5.13 Subsidiaries; Equity Interests. The Borrower has no Subsidiaries other than those
specifically disclosed in Part (a) of Schedule 5.13 (as such schedule may be updated from
time to time pursuant to Sections 6.02(a) and 10.01), and all of the
outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and
nonassessable (other than for directors’ qualifying shares of a Subsidiary that is not a Domestic
Subsidiary solely to the extent required by applicable Law) and are owned by a Loan Party in the
amounts specified on Part (a) of Schedule 5.13 (as such schedule may be updated from time
to time pursuant to Sections 6.02(a) and 10.01), and, in the case of any
Equity Interests of any other Loan Party, owned free and clear of all Liens (other than
non-consensual Liens permitted by Section 7.01). The Borrower has no equity investments in
any other corporation or entity other than those specifically disclosed in Part (b) of Schedule
5.13 (as such schedule may be updated from time to time pursuant to Sections
6.02(a) and 10.01). All of the outstanding Equity Interests in the Borrower have
been validly issued, are fully paid and nonassessable.



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     5.14 Margin Regulations; Investment Company Act.



     (a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each Borrowing or drawing under each
Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or of
the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section
7.01 or Section 7.05 or subject to any restriction contained in any agreement or
instrument between the Borrower and any Lender or any Affiliate of any Lender relating to
Indebtedness and within the scope of Section 8.01(e) will be margin stock.



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



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



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



     5.17 Taxpayer Identification Number. The Borrower’s true and correct U.S. taxpayer
identification number is set forth on Schedule 10.02.



     5.18 Intellectual Property; Licenses, Etc. The Borrower and its Subsidiaries own, or possess
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. To the best knowledge of the Borrower, no
slogan or other advertising device, product, process, method, substance, part or other material now
employed, or



61









 




now contemplated to be employed, by the Borrower or any Subsidiary infringes upon any
rights held by any other Person. Except as specifically disclosed in Schedule 5.18, no
claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the
Borrower, threatened, which, either individually or in the aggregate (in each case, taking into
account the reasonable likelihood of an adverse determination), would reasonably be expected to
have a Material Adverse Effect.




     5.19 Foreign Assets Control Regulations and Anti-Money Laundering. Each Loan Party and each
Subsidiary of each Loan Party is and will remain in compliance in all material respects with all
U.S. economic sanctions laws, Executive Orders and implementing regulations as promulgated by the
U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), and all applicable
anti-money laundering and counter-terrorism financing provisions of the Bank Secrecy Act and all
regulations issued pursuant to it. No Loan Party and no Subsidiary or Affiliate of a Loan Party
(i) is a Person designated by the U.S. government on the list of the Specially Designated Nationals
and Blocked Persons (the “SDN List”) with which a U.S. Person
cannot deal with or otherwise engage in business transactions, (ii) is a Person who is
otherwise the target of U.S. economic sanctions laws such that a U.S. Person cannot deal or
otherwise engage in business transactions with such Person or (iii) is controlled by (including
without limitation by virtue of such Person being a director or owning voting shares or interests),
or acts, directly or indirectly, for or on behalf of, any Person or entity on the SDN List or a
foreign government that is the target of U.S. economic sanctions prohibitions such that the entry
into, or performance under, this Agreement or any other Loan Document would be prohibited under
U.S. law.



ARTICLE VI. AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied (other than unasserted contingent indemnity
Obligations), or any Letter of Credit shall remain outstanding, the Borrower shall, and shall
(except in the case of the covenants set forth in Sections 6.01, 6.02, 6.03
and 6.12) cause each Subsidiary to::



     6.01 Financial Statements. Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent:



     (a) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Borrower, commencing with the fiscal year ended December 31, 2011, a consolidated balance sheet
of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, 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, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied
by a report and opinion of an independent certified public accountant of nationally recognized
standing reasonably acceptable to the Administrative Agent, 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;



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     (b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower, commencing with the fiscal quarter ended
September 30, 2011, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal quarter, 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, certified by the chief executive officer, chief
financial officer, treasurer or controller of the Borrower as fairly presenting in all material
respects the financial condition, results of operations, shareholders’ equity and cash
flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes; and



     (c) as soon as available, but in any event at least 90 days after the end of each fiscal year
of the Borrower, a budget prepared by management of the Borrower, in form reasonably satisfactory
to the Administrative Agent, of consolidated balance sheets and statements of income or operations
and cash flows of the Borrower and its Subsidiaries on a quarterly basis for the immediately
following fiscal year (including the fiscal year in which the Maturity Date occurs).


As to any information contained in materials furnished pursuant to Section 6.02(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.




     6.02 Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in
form and detail reasonably satisfactory to the Administrative Agent:



     (a) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b) (commencing with the delivery of the financial statements for the
fiscal quarter ended September 30, 2011), a duly completed Compliance Certificate signed by the
chief executive officer, chief financial officer, treasurer or controller of the Borrower (which
delivery may, unless the Administrative Agent, or a Lender requests executed originals, be by
electronic communication including fax or email and shall be deemed to be an original authentic
counterpart thereof for all purposes);



     (b) within five (5) Business Days after any request by the Administrative Agent or any Lender,
copies of any detailed audit reports submitted to the board of directors (or the audit committee of
the board of directors) of the Borrower by independent accountants in connection with the accounts
or books of the Borrower or any Subsidiary, or any audit of any of them;



     (c) within five (5) Business Days after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the stockholders of the
Borrower, and copies of all annual, regular, periodic and special reports and registration
statements which the Borrower may file or be required to file with the SEC under Section 13 or



63









 





15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;



     (d) within five (5) Business Days after the furnishing thereof, copies of any statement or
report furnished to any holder of debt securities of any Loan Party or any Subsidiary thereof
pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise
required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of
this Section 6.02;



     (e) within five (5) Business Days after receipt thereof by any Loan Party or any Subsidiary
thereof, copies of each notice or other correspondence received from the SEC (or comparable agency
in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or
other inquiry by such agency regarding financial or other operational results of any Loan Party or
any Subsidiary thereof; and



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



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or
any Lender upon its request to the Borrower to deliver such paper copies until a written request to
cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the
Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail)
of the posting of any such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall
have no obligation to request the delivery of or to maintain paper copies of the documents referred
to above, and in any event shall have no responsibility to monitor compliance by the Borrower with
any such request by a Lender for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.



     The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to the Borrower or its Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and



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other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees
that, so long as the Borrower is the issuer of any outstanding debt or equity securities that are
registered or issued pursuant to a private offering or is actively contemplating issuing any such
securities, (w) all Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC”
shall appear prominently on the first page thereof; (x) by marking Borrower
Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent,
the Arrangers, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing
any material non-public information with respect to the Borrower or its securities for purposes of
United States Federal and state securities laws (provided, however, that to the
extent such Borrower Materials constitute Information, they shall be treated as set forth in
Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated “Public Side Information;” and (z) the
Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated
“Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no
obligation to mark any Borrower Materials “PUBLIC.”




     6.03 Notices. Promptly notify the Administrative Agent and each Lender:



     (a) of the occurrence of any Default;



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



     (c) of the occurrence of any ERISA Event; and



     (d) of any material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary, including any determination by the Borrower referred to in Section
2.10(b).



     Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and
stating what action the Borrower has taken and proposes to take with respect thereto. Each notice
pursuant to Section 6.03(a) shall describe with particularity any and all provisions of
this Agreement and any other Loan Document that have been breached.



     6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all
its obligations and liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Borrower or such Subsidiary; (b) all lawful



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claims which, if unpaid,
would by law become a Lien upon its property unless the same are being contested in good faith by
appropriate proceedings diligently prosecuted which stay the imposition or enforcement of any Lien
and for which adequate reserves in accordance with GAAP are being maintained by such Person; and
(c) all Indebtedness as and when due and
payable, but subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness, and except where the failure to so pay or perform would not
reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.




     6.05 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 a transaction permitted by Section 7.04 or 7.05; (b) take all reasonable
action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable
in the normal conduct of its business, except to the extent that failure to do so could 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 could
reasonably be expected to have a Material Adverse Effect.



     6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation
and maintenance of its facilities.



     6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of the Borrower, 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 providing for not less than 30 days’ prior notice to the
Administrative Agent of termination, lapse or cancellation of such insurance.



     6.08 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 could not reasonably be expected to have a Material Adverse Effect.



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



     6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender (provided that if there is more than one Lender, any such
visits or inspections are coordinated through the Administrative Agent) to visit and inspect any



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of its properties, to examine its corporate, financial and operating records, and make copies thereof
or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors,
officers, and independent public accountants, at such reasonable times during normal business
hours , upon reasonable advance notice to the Borrower; provided, however, that (a)
except during the occurrence and continuance of an Event of Default, there shall not occur, and the
Borrower shall not be required to reimburse the Administrative Agent or any Lender for the charges,
costs and expenses in connection with, more than one such visit or inspection in any calendar year
and (b) after the occurrence and during the continuance of an Event of Default, the Administrative
Agent and the Lenders (or any of their representatives or independent contractors) may do any of
the foregoing at the expense of the Borrower at any time during normal business hours and without
advance notice.




     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for general corporate
purposes not in contravention of any Law or of any Loan Document, including, without limitation,
Investments and share repurchases and other Restricted Payments permitted hereunder.



     6.12 Additional Guarantors. Notify the Administrative Agent at the time that any Person
becomes a Domestic Subsidiary (other than an Excluded Subsidiary), and promptly thereafter (and in
any event within 30 days), cause such Person (except solely to the extent such Person is prohibited
under applicable Law from Guaranteeing the Obligations pursuant to the Guaranty) to (a) become a
Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty or
such other document as the Administrative Agent shall deem appropriate for such purpose, and (b)
deliver to the Administrative Agent documents of the types referred to in clauses (iii) and
(iv) of Section 4.01(a) and favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause (a)), all in form, content and scope reasonably
satisfactory to the Administrative Agent.



ARTICLE VII. NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied (other than unasserted contingent indemnity
Obligations), or any Letter of Credit shall remain outstanding, the Borrower shall not, nor shall
it permit any Subsidiary to, directly or indirectly:



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



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the
amount secured or benefited thereby is not increased except as contemplated by Section
7.03(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and
(iv) any renewal or extension of the obligations secured or benefited thereby is permitted by
Section 7.03(b);



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



     (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 30 days
or which are being contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the applicable Person;



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



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



     (g) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which 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;



     (h) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 8.01(h);



     (i) Liens securing Indebtedness permitted under Section 7.03(e); provided that
(i) such Liens do not at any time encumber any property other than the property financed by such
Indebtedness, (ii) the Indebtedness secured thereby does not exceed the cost or fair market value,
whichever is lower, of the property being acquired on the date of acquisition and (iii) the
principal amount of Indebtedness secured by Liens permitted under (x) this Section 7.01(i)
plus (y) Section 7.01(j) plus (z) Section 7.01(k) shall not exceed
$40,000,000 in the aggregate at any one time outstanding; and



     (j) Liens securing Indebtedness permitted under Section 7.03(h); provided that
the principal amount of Indebtedness secured by Liens permitted under (x) this Section
7.01(j) plus (y) Section 7.01(i) plus (z) Section 7.01(k) shall
not exceed $40,000,000 in the aggregate at any one time outstanding;



     (k) Liens on property of a Person existing at the time such Person becomes a Subsidiary
pursuant to a purchase or acquisition permitted by Section 7.02(i); provided that
(i) such Liens were not created in contemplation of such Investment and do not extend to any assets
other than those of the Person so purchased or acquired (including proceeds and products of the
assets of such Person), (ii) subject to Section 7.03(i), the principal amount of
Indebtedness secured by such Liens shall not exceed $30,000,000 in the aggregate at any one time
outstanding
and (iii) the principal amount of Indebtedness secured by Liens permitted under (x) this
Section 7.01(k) plus (y) Section 7.01(i) plus (z) Section
7.01(j) shall not exceed $40,000,000 in the aggregate at any one time outstanding; and



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     (l) Liens on cash collateral furnished on account of any Swap Contract permitted by
Section 7.03(d); provided that the aggregate amount of cash collateral subject to any such
Lien under this clause (l) shall not exceed $5,000,000 in the aggregate at any time outstanding.



     7.02 Investments. Make any Investments, except:



     (a) (x) Investments held by the Borrower or such Subsidiary in the form of cash equivalents
and (y) other Investments (with maturities of not more than three (3) years from the date of
acquisition thereof) made in accordance with the Borrower’s investment policies as disclosed to the
Administrative Agent, as the same may be duly amended and modified from time to time;



     (b) advances to officers, directors and employees of the Borrower and Subsidiaries in an
aggregate amount not to exceed $5,000,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes;



     (c) (i) Investments of the Borrower and its Subsidiaries in any Subsidiaries that are
Guarantors, (ii) Investments of any Subsidiaries of the Borrower that are not Guarantors in other
Subsidiaries that are not Guarantors and (iii) Investments of the Borrower and its Subsidiaries in
athenahealth Security Corporation made in the ordinary course of business and consistent with past
practice;



     (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 to the extent reasonably necessary in order to prevent or limit loss;



     (e) Guarantees permitted by Section 7.03;



     (f) Investments consisting of Swap Contracts permitted under Section 7.03(d);



     (g) Investments received in satisfaction of judgments or in settlements of Indebtedness or
compromises of obligations incurred in the ordinary course of business;



     (h) any Investment consisting of prepaid expenses, negotiable instruments held for collection
and lease, endorsements for deposit or collection in the ordinary course of business, utility or
workers compensation, performance and similar deposits entered into as a result of the operations
of the business in the ordinary course of business;



     (i) the purchase or other acquisition of (x) all of the Equity Interests in, or substantially
all of the property of, any Person that, upon the consummation thereof, will be
wholly owned directly by the Borrower or one of more of its wholly-owned Domestic Subsidiaries
(other than an Excluded Subsidiary) (including as a result of a merger or consolidation) or (y)
Equity Interests in any Person, not constituting all of the Equity Interests of such Person;
provided that, with respect to each purchase or other acquisition made pursuant to this
Section 7.02(i) (any such purchase or acquisition meeting the following criteria, a
“Permitted Acquisition”):



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     (i) any such newly-created or acquired Domestic Subsidiary shall comply with the
requirements of Section 6.12;




     (ii) the lines of business of the Person to be (or the property of which is to be) so
purchased or otherwise acquired or the equity of which is to be acquired shall be
substantially the same or substantially related or complementary lines of business as one or
more of the principal businesses of the Borrower and its Subsidiaries in the ordinary
course;




     (iii) (A) no Event of Default shall have occurred and be continuing immediately before
any such purchase or other acquisition, and no Default shall result therefrom, and (B)
immediately after giving effect to such purchase or other acquisition, the Borrower and its
Subsidiaries shall be in pro forma compliance with all of the covenants set forth in
Section 7.11, such compliance to be determined on the basis of the financial
information most recently delivered to the Administrative Agent pursuant to Section
6.01(a) or (b) (giving effect to any related Borrowing) as though such
purchase or other acquisition had been consummated as of the first day of the fiscal period
covered thereby, the calculations for which being reasonably satisfactory to the
Administrative Agent; and




     (iv) the Borrower shall have delivered to the Administrative Agent (for distribution to
each Lender):




     (A) in the case of any purchase or other acquisition for which the Total
Consideration paid by or on behalf of the Borrower and its Subsidiaries exceeds
$20,000,000, the Borrower shall have delivered to the Administrative Agent at least
ten (10) Business Days prior to the date on which such purchase or acquisition is to
be consummated (or such shorter period as may be agreed to by the Administrative
Agent), written notice of such proposed purchase or acquisition, which notice shall
(x) confirm the certification and calculation of the Borrower as to the satisfaction
of the conditions set forth in clauses (ii) and (iii) above, and (y)
be accompanied by historical financial statements relating to the business of the
Person to be acquired and financial projections relating to the Borrower and its
Subsidiaries after giving effect to such acquisition; and




     (B) such other information as the Administrative Agent may have reasonably
requested (to the extent such information is reasonably available to the Borrower or
a Subsidiary of the Borrower).



     (j) other Investments not exceeding $20,000,000 in the aggregate in any fiscal year of the
Borrower.



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



     (a) Indebtedness under the Loan Documents;



     (b) Indebtedness outstanding on the date hereof and listed on Schedule 7.03 and any
refinancings, refundings, renewals or extensions thereof; provided that (i) the amount of
such



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




     (c) Guarantees of the Borrower or any Guarantor in respect of Indebtedness otherwise permitted
hereunder of the Borrower or any other Guarantor;



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



     (e) Indebtedness in respect of capital leases, Synthetic Lease Obligations, purchase money
obligations and equipment lines of credit for fixed or capital assets within the limitations set
forth in Section 7.01(i); provided, however, that the aggregate amount of
all such Indebtedness at any one time outstanding shall not exceed $20,000,000; provided
that the aggregate amount of Indebtedness outstanding pursuant to (w) this Section 7.03(e)
plus (x) Section 7.03(g) plus (y) Section 7.03(h) plus (z)
Section 7.03(i) shall not exceed $65,000,000 at any one time;



     (f) subordinated Indebtedness (including, without limitation, convertible subordinated
Indebtedness) not included within clauses (a) through (e) above, provided
that:




     (i) prior to incurring such subordinated Indebtedness, the Borrower and its
Subsidiaries shall have demonstrated pro forma compliance with all of the covenants
contained in Section 7.11 after giving effect to the incurrence of such
Indebtedness,




     (ii) immediately before and immediately after giving pro forma effect to any the
incurrence of such Indebtedness, no Default shall have occurred and be continuing or would
result therefrom;




     (iii) the terms of such subordinated Indebtedness do not require any prepayment in cash
or scheduled cash repayment of such Indebtedness at any time prior to the Maturity Date;



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     (iv) the scheduled maturity of such subordinated Indebtedness shall be after the
Maturity Date;




     (v) the terms of such subordinated Indebtedness shall be no more restrictive than the
terms of this Agreement, provided that (A) such indebtedness shall not be
cross-defaulted to the terms of this Agreement or the other Loan Documents, but may be
cross-accelerated to the Loans and other Obligations and (B) any financial covenants set
forth in the documents governing such Indebtedness shall be identical (in substance) to the
financial covenants set forth in this Agreement, except that compliance thresholds with
respect thereto shall be more favorable to the Borrower and its Subsidiaries and shall
preserve, on a percentage basis, a customary “cushion” in relation to the compliance
thresholds set forth in this Agreement; and




     (vi) such subordinated Indebtedness shall otherwise contain (or be subject to) terms
and conditions that are generally consistent with the terms and conditions of subordination
set forth in Exhibit G (with any variation to such terms and conditions that is
adverse to the Lenders being subject to approval by the Administrative Agent); and



     (g) unsecured Indebtedness in an aggregate principal amount not to exceed $20,000,000 at any
time outstanding; provided that the aggregate amount of Indebtedness outstanding pursuant
to (w) this Section 7.03(g) plus (x) Section 7.03(e) plus (y)
Section 7.03(h) plus (z) Section 7.03(i) shall not exceed $65,000,000 at
any one time;



     (h) secured Indebtedness in an aggregate principal amount not to exceed $20,000,000 at any
time outstanding; provided that the aggregate amount of Indebtedness outstanding pursuant
to (w) this Section 7.03(h) plus (x) Section 7.03(e) plus (y)
Section 7.03(g) plus (z) Section 7.03(i) shall not exceed $65,000,000 at
any one time; and



     (i) Indebtedness of any Person that becomes a Subsidiary of the Borrower after the date hereof
in accordance with the terms of Section 7.02(i), which Indebtedness is existing at the time
such Person becomes a Subsidiary of the Borrower (other than Indebtedness incurred solely in
contemplation of such Person’s becoming a Subsidiary of the Borrower); provided that (A)
the aggregate principal amount of all such Indebtedness incurred pursuant to this Section
7.03(i)
shall not exceed $35,000,000 at any time outstanding, and (B) no Indebtedness may be incurred
pursuant to this Section 7.03(i) in excess of $20,000,000 unless (x) the terms of such
Indebtedness do not require any repayment or prepayment of such Indebtedness at any time prior to
the Maturity Date and (y) the terms of such Indebtedness shall be no more restrictive than the
terms of this Agreement; provided, further that the aggregate amount of
Indebtedness outstanding pursuant to (w) this Section 7.03(i) plus (x) Section
7.03(e) plus (y) Section 7.03(g) plus (z) Section 7.03(h) shall
not exceed $65,000,000 at any one time.



     7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Default exists or would result therefrom:



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     (a) any Subsidiary may merge with (i) the Borrower, provided that (A) the Borrower
shall be the continuing or surviving Person or (B) if the Person surviving any such merger is not
the Borrower (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall
be an entity organized or existing under the Laws of the United States, any state thereof or the
District of Columbia, (2) the Successor Borrower shall expressly assume all the obligations of the
Borrower under this Agreement and the other Loan Documents to which the Borrower is a party
pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative
Agent, (3) each Guarantor, unless it is the other party to such merger, shall have by a supplement
to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor
Borrower’s obligations under this Agreement, and (4) the Successor Borrower shall have delivered to
the Administrative Agent (x) an officer’s certificate stating that such merger, such supplement to
this Agreement and such supplement to the Guaranty comply with this Agreement, (y) such documents
of the type described in Section 4.01(a)(iii) and (a)(iv) and (z) customary
opinions relating to such merger, this Agreement and the other documents required hereby as
reasonably requested by the Administrative Agent; provided, further, that if the
foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the
Borrower under this Agreement, or (ii) any one or more other Subsidiaries, provided that
when any Guarantor is merging with another Subsidiary, a Guarantor shall be the continuing or
surviving Person;



     (b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or to another Subsidiary; provided that if the
transferor in such a transaction is a Guarantor, then the transferee must either be the Borrower or
a Guarantor;



     (c) any Subsidiary (other than a Loan Party) may dissolve or liquidate, provided that upon any
such dissolution or liquidation, all of the assets of such Subsidiary shall be Disposed to the
Borrower or another Subsidiary; and



     (d) in connection with any transaction permitted under Section 7.02(i) the Borrower
and any Guarantor may merge into or consolidate with any other Person or permit any other
Person to merge into or consolidate with it; provided, that, in each case, immediately
after giving effect thereto (i) in the case of any merger or consolidation to which the Borrower is
a party, the Borrower is the surviving Person and (ii) in the case of any such merger or
consolidation to which the Guarantor is a party, either (A) the Guarantor shall be the continuing
or surviving Person or (B) if the Person surviving any such merger is not the Guarantor (any such
Person, the “Successor Guarantor”), (1) the Successor Guarantor shall be a Domestic
Subsidiary, (2) the Successor Guarantor shall become a party to the Guaranty pursuant to
Section 6.12 and (3) the Successor Guarantor shall have delivered to the Administrative
Agent (x) an officer’s certificate stating that such merger and joinder to the Guaranty comply with
this Agreement, (y) such documents of the type described in Section 4.01(a)(iii) and
(a)(iv) and (y) customary opinions relating to such merger and the joinder to the Guaranty
as reasonably requested by the Administrative Agent.



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     7.05 Dispositions. Make any Disposition or enter into any agreement to make any Disposition,
except:



     (a) Dispositions of obsolete 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;



     (c) (i) Dispositions of equipment or real property to the extent that (A) such property is
exchanged for credit against the purchase price of similar replacement property, (B) the proceeds
of such Disposition are reasonably promptly applied to the purchase price of such replacement
property, or (C) such Disposition is made in the ordinary course of business for consideration at
least equal to the fair market value of such property and (ii) Dispositions consisting of leases of
real property to the extent that such Disposition is made in the ordinary course of business for
consideration at least equal to the fair rental value of such property;



     (d) Dispositions of property by any Subsidiary to the Borrower or to any other Subsidiary,
provided that if the transferor of such property is a Guarantor, the transferee thereof
must either be the Borrower or a Guarantor;



     (e) Dispositions permitted by Section 7.04;



     (f) non-exclusive licenses of IP Rights in the ordinary course of business and substantially
consistent with past practice for terms not exceeding five years; and



     (g) Dispositions of minority Equity Interests of any Person acquired pursuant to Section
7.02(i);



     (h) any other Disposition to the extent that:




     (i) if the property subject to such Disposition shall constitute more than 2% of the
consolidated tangible assets of the Borrower and its Subsidiaries (as measured at the
time of such Disposition at the end of the most recently ended fiscal quarter for which
financial statements have been furnished to the Administrative Agent under Section
6.01(a) or (b) (or, prior to the delivery of any such statements, for the fiscal
quarter ended June 30, 2011)), then the Borrower shall deliver to the Administrative Agent a
certificate of a Responsible Officer attaching calculations reasonably satisfactory to the
Administrative Agent, (x) demonstrating:




     (A) compliance with Section 7.11 on a pro forma basis as at the end of
and for the most recently ended period of four fiscal quarters for which financial
statements have been furnished to the Administrative Agent under Sections
6.01(a) or (b) (or, prior to the delivery of any such statements, for
the period of four fiscal quarters ended June 30, 2011) (such period, the
“Testing Period”) giving effect to such Disposition (as if such Disposition
had occurred on the first day of the Testing Period), and



74









 






     (B) that Consolidated EBITDA for the Testing Period, on a pro forma basis after
giving effect to such Disposition (as if such Disposition had occurred on the first
day of such Testing Period), is not more than 7.5% lower than Consolidated EBITDA
for such Testing Period without giving effect to such Disposition, and




(y) certifying that no Default then exists or would result after giving effect to such
Disposition; and




     (ii) such Dispositions shall not, in the aggregate for all such Dispositions made after
the Closing Date, exceed an amount equal to 10% of the Borrower’s consolidated tangible
assets as set forth on the Borrower’s most recently (at the time of such Disposition)
delivered audited financial statements referred to in Section 6.01(a);


provided, however, that any Disposition pursuant to clauses (a) through
(h) shall be for fair market value.




     7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests,
except that:



     (a) each Subsidiary may make Restricted Payments to the Borrower, the Guarantors and any other
Person that owns an Equity Interest in such Subsidiary, ratably according to their respective
holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;



     (b) the Borrower and each Subsidiary 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 and each Subsidiary may purchase, redeem or otherwise acquire Equity
Interests issued by it with the proceeds received from the substantially concurrent issue of new
shares of its common stock or other common Equity Interests;



     (d) so long as no Default shall have occurred and be continuing or would result therefrom, the
Borrower may purchase, redeem or otherwise acquire for cash Equity Interests issued by it if the
Borrower shall have delivered to the Administrative Agent, at least fifteen (15) days prior to the
making of such Restricted Payment, a certificate of a Responsible Officer (x) certifying that,
immediately before and immediately after giving pro forma effect to such purchase, redemption or
acquisition (including borrowings made to fund such purchase, redemption or acquisition), no
Default shall have occurred and be continuing, (y) demonstrating (in detail reasonably satisfactory
to the Administrative Agent) that the Consolidated Leverage Ratio as of the last day of the fiscal
quarter most recently then ended, calculated on a pro forma basis, giving effect to any Borrowings
made to fund such purchase, redemption or acquisition, is at least 0.25x less than the ratio
required by Section 7.11 as of such date;



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     (e) any Subsidiary may issue its Equity Interests to the Borrower or to any other Subsidiary,
provided that if the issuer of such Equity Interests is a Guarantor, the issuance thereof
must be either made to the Borrower or a Guarantor;



     (f) the Borrower may issue and sell its common Equity Interests;



     (g) so long as no Default shall have occurred and be continuing or would result therefrom, the
Borrower may declare and make cash dividend payments or other similar cash Restricted Payments to
the holders of its Equity Interests, ratably according to their respective holdings of the type of
Equity Interest in respect of which such Restricted Payment is being made, provided that
(i) such Restricted Payments made in any fiscal year shall not exceed 20% of the Consolidated Net
Income and (ii) the Borrower shall have delivered to the Administrative Agent, prior to the making
of such Restricted Payment, a certificate of a Responsible Officer (x) certifying that, immediately
before and immediately after giving pro forma effect to such Restricted Payment (including
borrowings made to fund such Restricted Payment), no Default shall have occurred and be continuing,
(y) demonstrating (in detail reasonably satisfactory to the Administrative Agent) compliance with
each of the financial covenants set forth in Section 7.11 as of the last day of the fiscal
quarter most recently then ended (giving pro forma effect to such Restricted Payment (including any
Borrowings made to fund such Restricted Payment), as if such Restricted Payment was made as of the
first day of the relevant testing period).



     7.07 Change in Nature of Business. Engage in any material line of business that is not
substantially the same as or substantially related to or complementary of those lines of business
conducted by the Borrower and its Subsidiaries on the date hereof.



     7.08 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 transactions between or among the Borrower and any Guarantor or
between and among any Guarantors.



     7.09 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement
or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted
Payments to the Borrower or any Guarantor or to otherwise transfer property to the Borrower or any
Guarantor, (ii) of any Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of the
Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such
Person; provided, however, that this clause (iii) shall not prohibit any
negative pledge incurred or provided in favor of any holder of Indebtedness permitted under
Section 7.03(e), Section 7.03(h) or Section 7.03(i) solely to the extent
any such negative pledge relates to the property financed by or securing such Indebtedness; or (b)
requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure
another obligation of such Person.



     7.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin



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stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose,
in each case so as to result in a violation of Regulation U.




     7.11 Financial Covenants.



     (a) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge Coverage
Ratio as of the end of any fiscal quarter of the Borrower to be less than 1.50 to 1.00.



     (b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end of any
fiscal quarter of the Borrower to be greater than 2.75 to 1.00, unless the Borrower and its
Subsidiaries shall have demonstrated that Consolidated EBITDA for the twelve (12) fiscal months
most recently ended is equal to or greater than $150,000,000, in which case the Borrower shall not,
nor shall it permit any Subsidiary to, directly or indirectly, permit the Consolidated Leverage
Ratio as of the end of any fiscal quarter of the Borrower to be greater than 3.00 to 1.00.



     7.12 athenahealth Security Corporation. Notwithstanding anything to the contrary contained
herein or in any other Loan Document, in the case of athenahealth Security Corporation, engage in
any business or activity other than (a) business activities of the type engaged by such Person on
the date hereof, (b) maintaining its corporate existence, (c) participating in tax, accounting and
other administrative activities of the consolidated group of companies, including the Loan Parties,
and (d) activities incidental to the businesses or activities described in clauses (a) through (d)
of this Section; provided, however, that athenahealth Security Corporation shall in
no event incur any Indebtedness of the type described in the definition of “Consolidated Funded
Indebtedness” (whether secured or unsecured).



ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:



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



     (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in any of Section 6.01, 6.02 (other than Section
6.02(c), (d), (e) and (f)) 6.03(a), 6.05(a) (with
respect to the Loan Parties), 6.10, 6.11 or 6.12 or Article VII, or
any Guarantor fails to perform or observe any term, covenant or agreement contained in Section 2 of
the Guaranty; or



     (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for 30 days after the
earlier to occur of (i) the date upon which a Responsible Officer of any Loan Party becomes aware
or should



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have become aware of such default and (ii) the date upon which written notice thereof is
given to the Borrower by the Administrative Agent or any Lender; 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 Loan Party
herein, in any other Loan Document, or in any document delivered in connection herewith or
therewith shall be incorrect or misleading in any material respects (except that such materiality
qualifier shall not be applicable to any representations and warranties that already are qualified
or modified by materiality in the text thereof) when made or deemed made; or



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



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



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



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all or any material part of the property of any such Person and is not released, vacated or
fully bonded within 45 days after its issue or levy; or




     (h) Judgments. There is entered against the Borrower or any Subsidiary (i) one or
more final judgments or orders for the payment of money in an aggregate amount (as to all such
judgments or orders) exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are
commenced by any creditor upon such judgment or order, or (B) there is a period of 20 consecutive
days during which a stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or



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



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



     (k) Change of Control. There occurs any Change of Control.



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



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



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



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



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


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




     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (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 8.02), any amounts received on account of the Obligations shall, subject to the
provisions of Sections 2.15 and 2.16, be applied by the Administrative Agent in the
following order:



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



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



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuer in proportion to the respective amounts described in this
clause Third payable to them;



     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause Fourth held by them;



     Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections
2.03 and 2.15; and



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



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Subject to Sections 2.03(c) and 2.15, amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth 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 IX. ADMINISTRATIVE AGENT




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



     9.02 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.



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




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




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




     (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is communicated to



81









 







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 10.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.



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



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



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



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     9.06 Resignation of Administrative Agent.



     (a) The Administrative Agent may at any time give notice of its resignation to the Lenders,
the L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which
shall be a bank with an office in the United States, or an Affiliate of any such bank with an
office in the United States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent may
on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting
the qualifications set forth above; provided that if the Administrative Agent shall notify
the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder and under the
other Loan Documents (except that in the case of any collateral security held by the Administrative
Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (2) all payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by or to each Lender
and the L/C Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already discharged therefrom as
provided above in this Section). The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.



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



     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the L/C Issuer
acknowledges that it has, independently and without reliance upon the



83









 




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




     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the
Arrangers, the Syndication Agent or the Co-Documentation Agents listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C
Issuer hereunder.



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




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders,
the L/C Issuer and the Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the L/C Issuer and the Administrative Agent under
Sections 2.03(i) and (j), 2.09 and 10.04) allowed in such
judicial proceeding; and




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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the 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 Issuer, 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 10.04.




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



84









 




any Lender or the
L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or
the L/C Issuer in any such proceeding.




     9.10 Guaranty Matters. The Lenders, the Swing Line Lender and the L/C Issuer irrevocably
authorize the Administrative Agent to release any Guarantor from its obligations
under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release any Guarantor from its obligations under
the Guaranty pursuant to this Section 9.10.



ARTICLE X. MISCELLANEOUS




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



     (a) waive any condition set forth in Section 4.01(a) without the written consent of
each Lender;



     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the written consent of such Lender;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment
(excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document, or change the manner
of computation of any financial ratio (including any change in any applicable defined term) used in
determining the Applicable Rate that would result in a reduction of any interest rate on any Loan
or any fee payable hereunder, without the written consent of each Lender directly affected thereby;
provided, however, that only the consent of the Required Lenders shall be necessary
to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay
interest or Letter of Credit Fees at the Default Rate;



     (e) change Section 8.03 in a manner that would alter the pro rata sharing of payments
required thereby without the written consent of each Lender;



     (f) change any provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend,



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waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; or



     (g) release all or substantially all of the value of the Guaranty without the written consent
of each Lender, except to the extent the release of any Guarantor is permitted pursuant to
Section 9.10 (in which case such release may be made by the Administrative Agent acting
alone);


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; and (iv) no Fee Letter may be amended, or rights or privileges thereunder waived, unless
in writing and signed by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder (and any amendment, waiver or consent which by its terms requires the consent of all
Lenders or each affected Lender may be effected with the consent of the applicable Lenders other
than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be
increased or extended without the consent of such Lender and (y) any waiver, amendment or
modification requiring the consent of all Lenders or each affected Lender that by its terms affects
any Defaulting Lender more adversely than other affected Lenders shall require the consent of such
Defaulting Lender. Notwithstanding anything to the contrary contained in this Section
10.01, the Borrower may amend Schedule 5.13 from time to time upon notice to the
Administrative Agent.




     10.02 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, the L/C Issuer or the Swing Line
Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire (including, as
appropriate, notices delivered solely to the Person designated by a Lender on its
Administrative Questionnaire then in effect for the delivery of notices that may contain
material non-public information relating to the Borrower).



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




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



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



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



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any Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or
any other Person for indirect, special, incidental, consequential or punitive damages (as opposed
to direct or actual damages).



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



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



     10.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, the L/C Issuer
or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder 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 Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained



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exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its
benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan
Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may
be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in
accordance with Section 10.08 (subject to the terms of Section 2.13), or (d) any
Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and
provided, further, that if at any time there is no Person acting as Administrative
Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the
rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the
preceding proviso and subject to Section 2.13, any Lender may, with the consent of the
Required Lenders, enforce any rights and remedies available to it and as authorized by the Required
Lenders.




     10.04 Expenses; Indemnity; Damage Waiver.



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



     (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), the Arrangers, each Lender and the 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 fees, charges and disbursements of any counsel for any
Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges,
including allocated costs, and disbursements for attorneys who may be employees of any Indemnitee,
incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower
or any other Loan Party arising out of, in connection with, or



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




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



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in subsection (b) above shall be liable for any damages arising
from the use by unintended recipients of any information or other materials distributed to such
unintended recipients by such Indemnitee through telecommunications,



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electronic or other
information transmission systems in connection with this Agreement or the other Loan Documents or
the transactions contemplated hereby or thereby other than for direct or actual damages resulting
from the gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.




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



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



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



     10.06 Successors and Assigns.



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



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




     (i) Minimum Amounts.




     (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 $10,000,000, unless each of the Administrative Agent and, so long as no Event
of Default has occurred and is continuing, the Borrower otherwise consents;
provided, however, that concurrent assignments to members of an
Assignee Group and concurrent assignments from members of an Assignee Group to a
single Eligible Assignee (or to an Eligible Assignee and members of
its Assignee Group) will be treated as a single assignment for purposes of
determining whether such minimum amount has been met.




     (ii) 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 Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not apply to rights in respect of the Swing Line Lender’s rights
and obligations in respect of Swing Line Loans;




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




     (A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund; provided that the Borrower shall
be deemed to have consented to any such assignment unless it shall object thereto by
written notice to the Administrative Agent within five (5) Business Days after
having received notice thereof;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required if such assignment is to a



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Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with
respect to such Lender;




     (C) the consent of the 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 Swing Line Lender and any Lender holding Fronting
Exposure (such consent not to be unreasonably withheld or delayed) shall be required
for any assignment.




     (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 Certain Persons. No such assignment shall be made (A) to
the Borrower or any of the Borrower’s Affiliates or Subsidiaries, or (B) to any Defaulting
Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender
hereunder, would constitute any of the foregoing Persons described in this clause
(B), or (C) to a natural person.




     (vi) Certain Additional Payments. In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties
to the assignment shall make such additional payments to the Administrative Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright
payment, purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the consent of the Borrower and the
Administrative Agent, the applicable pro rata share of Loans previously requested but not
funded by the Defaulting Lender, to each of which the applicable assignee and assignor
hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and
interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share
of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with
its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment
of rights and obligations of any Defaulting Lender hereunder shall become effective under
applicable Law without compliance with the provisions of this paragraph, then the assignee
of such interest shall be deemed to be a Defaulting Lender for all purposes of this
Agreement until such compliance occurs.


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




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




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower (and such agency being solely for tax purposes), 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 and any stated interest 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 demonstrable 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 Agreement, notwithstanding notice to
the contrary and no transfer of an interest in any Loan or L/C Obligation shall be effective unless
and until recorded in the Register. In addition, the Administrative Agent shall maintain on the
Register information regarding the designation, and revocation of designation, of any Lender as a
Defaulting Lender. The Register shall be available for inspection by the Borrower and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries)
(each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it) in an amount not
less than $10,000,000 (or, if such Lender’s total Commitment is less than $10,000,000, such lesser
amount); provided that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and
the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement.



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the




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Participant, agree to any amendment, waiver or other modification described in the first
proviso to Section 10.01 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
10.08 as though it were a Lender, provided such Participant agrees to be subject to
Section 2.13 as though it were a Lender.




     Each Lender that sells a participation shall, acting solely for this purpose as an agent of
the Borrower, maintain a register on which it enters the name and address of each Participant and
the principal amounts (and stated interest) of each Participant’s interest in the Loans or L/C
Obligations (the “Participant Register”); provided that no Lender shall have any obligation
to disclose all or any portion of the Participant Register (including the identity of any
Participant or any information relating to a Participant’s interest in any commitments, loans,
letters of credit or its other obligations under any Loan Document) to any Person except to the
extent that such disclosure is necessary to establish that such commitment, loan, letter of credit
or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register shall be conclusive absent demonstrable
error, and such Lender shall treat each Person whose name is recorded in the Participant Register
as the owner of such participation for all purposes of this Agreement notwithstanding any notice to
the contrary and no sale of a participation in any Loan or L/C Obligation shall be effective unless
and until recorded in the Participant Register. For the avoidance of doubt, the Administrative
Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a
Participant Register.



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



     (g) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30
days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice
to the Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the Borrower shall be entitled to appoint from



95









 




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




     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent,
the Lenders and the 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), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee
invited to be a Lender pursuant to Section 2.14(c), 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, the L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower. For purposes of this Section,
“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 the L/C Issuer on a nonconfidential
basis 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



96









 




considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.




     Each of the Administrative Agent, the Lenders and the L/C 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.



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized, at any time
and from time to time, to the fullest extent permitted by applicable law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final, in whatever currency)
at any time held and other obligations (in whatever currency) at any time owing by such Lender, the
L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower against any
and all of the obligations of the Borrower now or hereafter existing under this Agreement or any
other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or
the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and
although such obligations of the Borrower may be contingent or unmatured or are owed to a branch or
office of such Lender or the L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness; provided, that in the event that any Defaulting Lender shall
exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the
Administrative Agent for further application in accordance with the provisions of Section
2.16 and, pending such payment, shall be segregated by such Defaulting Lender from its other
funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y)
the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in
reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such
right of setoff. The rights of each Lender, the L/C Issuer and their respective Affiliates under
this Section are in addition to other rights and remedies (including other rights of setoff) that
such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C
Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff
and application, provided that the failure to give such notice shall not affect the
validity of such setoff and application. Notwithstanding the provisions of this Section
10.08, if at any time any Lender, the L/C Issuer or any of their respective Affiliates
maintains one or more deposit accounts for the Borrower or any other Loan Party into which Medicare
and/or Medicaid receivables are deposited, such Person shall waive the right of setoff set forth
herein.



     10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize



97









 




any payment that is not principal as an expense, fee, or premium rather than interest, (b)
exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the contemplated term of
the Obligations hereunder.




     10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging
means shall be effective as delivery of a manually executed counterpart of this Agreement.



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



     10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. Without limiting the foregoing provisions of this
Section 10.12, if and to the extent that the enforceability of any provisions in this
Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable,
then such provisions shall be deemed to be in effect only to the extent not so limited.



     10.13 Replacement of Lenders. If (w) any Lender requests compensation under Section
3.04, or (x) 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 (y) if
any Lender is a Defaulting Lender or (z) if any Lender does not consent to a proposed amendment,
waiver, consent or release with respect to any Loan Document that requires the consent of each



98









 




Lender and such amendment, waiver, consent or release has been approved by the Required
Lenders (so long as such amendment, waiver, consent or release can be effected as a result of the
assignment contemplated by this Section (together with all other such assignments required by the
Borrowers to be made pursuant to this Section)), then, in each case, 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 10.06), all of its interests, rights and obligations
under this Agreement and the related Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided
that:




     (a) the Borrower shall have paid to the Administrative Agent the assignment fee specified in
Section 10.06(b);



     (b) such Lender shall have received payment of an amount equal to 100% of the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including any amounts under
Section 3.05) from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts);



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



     (d) such assignment does not conflict with applicable Laws.



     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.



     10.14 Governing Law; Jurisdiction; Etc.



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



     (b) SUBMISSION TO JURISDICTION. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE
COMMONWEALTH OF MASSACHUSETTS SITTING IN THE CITY OF BOSTON AND OF THE UNITED STATES DISTRICT COURT
OF THE DISTRICT OF MASSACHUSETTS, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH MASSACHUSETTS STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY



99









 




APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY
LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.




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



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     10.15 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 AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower acknowledges and agrees that: (i)
(A) the arranging and other services regarding this Agreement provided by the Administrative Agent
and the Arrangers are arm’s-length commercial transactions between the Borrower and its Affiliates,
on the one hand, and the Administrative Agent and the Arrangers, on



100









 




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




     10.17 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.



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



[Remainder of page intentionally left blank]




101









 





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



	 	 	 	 	 	 	 

	 	 	ATHENAHEALTH, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jonathan Bush	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	Jonathan Bush	 	 
	 

	 	Title:	 	Chief Executive Officer, President and Chairman	 	 






S - 1









 





	 	 	 	 	 	 	 

	 	 	BANK OF AMERICA, N.A., as

Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Fani Davidson	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	Fani Davidson	 	 
	 

	 	Title:	 	Assistant Vice President	 	 






S - 2









 





	 	 	 	 	 	 	 

	 	 	BANK OF AMERICA, N.A., as a Lender, L/C Issuer and
Swing Line Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Linda E.C. Alto	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	Linda E.C. Alto	 	 
	 

	 	Title:	 	Senior Vice President	 	 











S - 3









 











	 	 	 	 	 	 	 

	 	 	TD BANK, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Eileen P. Murphy	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	Eileen P. Murphy	 	 
	 

	 	Title:	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Paul Souleyrette	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	Paul Souleyrette	 	 
	 

	 	Title:	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	FIFTH THIRD BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Joshua N. Livingston	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	Joshua N. Livingston	 	 
	 

	 	Title:	 	Assistant Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	SOVEREIGN BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Jay L. Massimo	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	Jay L. Massimo	 	 
	 

	 	Title:	 	Senior Vice President	 	 






S - 4









 





SCHEDULE 2.01




COMMITMENTS

AND APPLICABLE PERCENTAGES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable	 
	          Lender	 	Commitment	 	 	Percentage	 
	Bank of America, N.A.
	 	$	25,000,000	 	 	 	25.000000000	%
	TD Bank, N.A.
	 	$	25,000,000	 	 	 	25.000000000	%
	U.S. Bank National Association
	 	$	20,000,000	 	 	 	20.000000000	%
	Fifth Third Bank
	 	$	15,000,000	 	 	 	15.000000000	%
	Sovereign Bank
	 	$	15,000,000	 	 	 	15.000000000	%
	Total
	 	$	100,000,000	 	 	 	100.000000000	%






 









 





SCHEDULE 5.05




SUPPLEMENT TO INTERIM FINANCIAL STATEMENTS



See the Borrower’s 10-Q for the period ended June 30, 2011 filed with the Securities and Exchange
Commission on July 22, 2011.




 









 





SCHEDULE 5.06




LITIGATION



None.




 









 





SCHEDULE 5.09




ENVIRONMENTAL MATTERS



None.




 









 





SCHEDULE 5.12(d)




ERISA



None.




 









 





SCHEDULE 5.13




SUBSIDIARIES,

OTHER EQUITY INVESTMENTS

AND EQUITY INTERESTS IN THE BORROWER



Part (a). Subsidiaries.




	 	 	 	 	 
	Name	 	Jurisdiction	 	Ownership
	Anodyne Health Partners, Inc.

	 	DE
	 	1,000 shares of common stock (100%) owned by athenahealth, Inc.
	Proxsys LLC

	 	AL
	 	1,000 units (100%) owned by athenahealth, Inc.
	Athena Point Lookout, LLC

	 	ME
	 	100% owned by athenahealth, Inc.
	athenahealth MA, Inc.

	 	MA
	 	2,000 shares of common stock (100%) owned by athenahealth, Inc.
	athenahealth Technology Private
Limited

	 	India
	 	49,999 shares (99%) owned by athenahealth, Inc. 1 share (1%)
owned by athenahealth MA, Inc.
	athenahealth Security Corporation

	 	MA
	 	1,000 shares of common stock (100%) owned by athenahealth, Inc.





Part (b). Other Equity Investments.





	 	1.	 	athenahealth, Inc. owns 2 million shares of Series A Preferred Stock, 1 million shares
of Series A-1 Preferred Stock, and 495,495 shares of the Series B Preferred Stock of the
private company Castlight Health, Inc., a Delaware corporation.
	 
	 	2.	 	athenahealth, Inc. owns 4,084,967 shares of Series B Preferred Stock and 298,559 shares
of the Series B-1 Preferred Stock of the private company MDX Medical, Inc., a Delaware
corporation.
	 
	 	3.	 	athenahealth, Inc. owns equity investments per its Capital Advisors Group account, and
such investments are made in accordance with its investment policies as disclosed to the
Administrative Agent, as the same may be duly amended and modified from time to time.





 









 





SCHEDULE 5.18




INTELLECTUAL PROPERTY MATTERS



None.




 









 





SCHEDULE 7.01




EXISTING LIENS




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Initial Filing	 	 	 	 
	 	 	 	 	 	 	Date (and	 	 	 	 
	 	 	 	 	 	 	Continuation,	 	 	 	Filing
	Covered Person	 	Secured Party	 	File Number	 	if any)	 	Description	 	Office
	athenahealth, Inc.
	 	Canon Financial Services	 	2010 2263063	 	06/29/2010	 	Leased Equipment	 	Delaware SOS
	athenahealth, Inc.
	 	De Lage Landen Financial Services, Inc.	 	2011 0884398	 	03/09/2011	 	Equipment	 	Delaware SOS
	Proxsys LLC
	 	Dell Financial Services L.L.C.	 	09-7025881	 	02/19/2009	 	Leased Equipment	 	Alabama SOS
	Proxsys LLC
	 	US Bancorp	 	09-7195664	 	11/16/2009	 	Equipment	 	Alabama SOS
	Proxsys LLC
	 	Dell Financial Services L.L.C.	 	09-7213446	 	12/17/2009	 	Leased Equipment	 	Alabama SOS
	Proxsys LLC
	 	Dell Financial Services L.L.C.	 	10-7009211	 	01/20/2010	 	Leased Equipment	 	Alabama SOS
	Proxsys LLC
	 	Advantage Financial Services	 	10-7065159	 	04/19/2010	 	Leased Equipment	 	Alabama SOS





Lien in connection with the outstanding Standby Letter of Credit, issued by Silicon Valley
Bank, in a face amount of $856,478.56, for the benefit of the President and Fellows of Harvard
College




 









 





SCHEDULE 7.03




EXISTING INDEBTEDNESS



athenahealth, Inc.:



Outstanding Standby Letter of Credit, issued by Silicon Valley Bank, in a face amount of
$856,478.56, for the benefit of the President and Fellows of Harvard College



Master Agreement between Canon Financial Services, Inc. and athenahealth, Inc., dated as of
February 2, 2010 (Finance Lease); outstanding amount of $140,868.



Conditional Sale Agreement between De Lage Landen Financial Services, Inc. and athenahealth, Inc.,
dated as of March 9, 2011; outstanding amount of $320,583.00.



Proxsys LLC:



Master Lease Schedule Agreement numbers 001-6457418-501 through 508 and 510, 003-007146507-023 and
024, between Dell Financial Services, LLC, and Proxsys LLC, for computer equipment; outstanding
amount of $11,930.45.



Contract Nos. 456705, 581350, 598345, and 687289 between Advantage Financial Services, LLC and
Proxsys LLC, for copies and scanners; outstanding amount of $17,204.03.



Master Lease Schedule TSM03084 between DDI Leasing and Proxsys LLC, dated November 17, 2009, for
computer equipment; outstanding amount of $2,538.99.




 









 





SCHEDULE 10.02




ADMINISTRATIVE AGENT’S OFFICE;

CERTAIN ADDRESSES FOR NOTICES




BORROWER:

athenahealth, Inc.

311 Arsenal Street

Watertown, MA 02472

Attention: Timothy Adams, Chief Financial Officer

Telephone: 617-402-1990

Telecopier: 617-402-1099

Electronic Mail: tadams@athenahealth.com

Website Address: www.athenahealth.com

U.S. Taxpayer Identification Number: 04-3387530




With a copy to:

athenahealth, Inc.

311 Arsenal Street

Watertown, MA 02472

Attention: Dan Orenstein, General Counsel

Telephone: 617-402-1397

Telecopier: 617-402-1099

Electronic Mail: dorenstein@athenahealth.com




With a copy (which in itself shall not constitute notice) to:

Goodwin Procter LLP

53 State Street

Boston, MA 02109

Attention: Anna E. Dodson

Telephone: 617-570-1164

Telecopier: 617-523-1231

Electronic Mail: adodson@goodwinprocter.com

Website Address: www.goodwinprocter.com




 









 






ADMINISTRATIVE AGENT:




Daily Operations Contact and Swingline Lender Contact

Monique Haley

Bank of America, N.A.

101 North Tryon Street

NC1-001-04-39

Charlotte, NC 28255

Telephone: 980-388-1043

Facsimile #: 704-719-8510

Electronic Mail: monique.haley@baml.com




Mailing Address

Bank of America, N.A.

101 North Tryon Street

NC1-001-04-39

Charlotte, NC 28255




Loan Closer Contact

Wayne Richard

Telephone: 980-388-6484

Facsimile #: 704-208-3075

Electronic Mail: wayne.a.richard@baml.com




Mailing Address

Bank of America

101 North Tryon Street

NC1-001-04-39

Charlotte, NC 28255




Wiring Instructions

Bank of America, N.A.

New York, NY

ABA# 026009593

Account No.: 1366212250600

Account Name: Corporate Credit Services

Ref: ATHENAHEALTH, INC.





 









 








Notices as Administrative Agent

Bank of America, N.A.

Agency Management

135 South LaSalle Street, 5th Floor

Mail Code: IL4-135-05-41

Chicago, IL 60603

Attention: Fani Davidson

Telephone: 312-923-0604

Telecopier: 312-453-4217

Electronic Mail: fani.davidson@baml.com




L/C Issuer

Bank of America, N.A.

Trade Operations

1 Fleet Way

Mail Code: PA6-580-02-30

Scranton, PA 18507

Attention: Malave, Alfonso

Telephone: 570-330-4212

Telecopier: 570-330-4186

Electronic Mail: alfonso.malave@baml.com




 









 





EXHIBIT A




FORM OF REVOLVING LOAN NOTICE




Date: ___________, _____





	To: Bank of America, N.A., as Administrative Agent





Ladies and Gentlemen:




     Reference is made to that certain Credit Agreement, dated as of October 20, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among
athenahealth, Inc., a Delaware corporation (the “Borrower”), the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.



     The undersigned hereby requests (select one):



     o A Borrowing of Revolving Loans            o A conversion or continuation of Loans




	 	1.	 	On                                                              (a Business Day).
	 
	 	2.	 	In the amount of $                                        .
	 
	 	3.	 	Comprised of                                                             .
	 
	 	 	 	[Type of Revolving Loan requested]

	 
	 	4.	 	For Eurodollar Rate Loans: with an Interest Period of                      months.





     The Revolving Borrowing, if any, requested herein complies with the provisos to the first
sentence of Section 2.01 of the Agreement.



	 	 	 	 	 	 	 

	 	 	ATHENAHEALTH, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Form of Revolving Loan Notice





A - 1









 








EXHIBIT B




FORM OF SWING LINE LOAN NOTICE




Date: ___________, _____




	 	 	 

	To:

	 	Bank of America, N.A., as Swing Line Lender

Bank of America, N.A., as Administrative Agent







	Ladies and Gentlemen:





     Reference is made to that certain Credit Agreement, dated as of October 20, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among
athenahealth, Inc., a Delaware corporation (the “Borrower”), the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.



     The undersigned hereby requests a Swing Line Loan:




	 	1.	 	On                                                              (a Business Day).
	 
	 	2.	 	In the amount of $                                        .





     The Swing Line Borrowing requested herein complies with the requirements of the provisos to
the first sentence of Section 2.04(a) of the Agreement.



	 	 	 	 	 	 	 

	 	 	ATHENAHEALTH, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Form of Swing Line Loan Notice




B - 1









 





EXHIBIT C




FORM OF NOTE




                                        




     FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
_____________________ or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time
to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of October
20, 2011 (as amended, restated, extended, supplemented or otherwise modified in writing from time
to time, the “Agreement;” the terms defined therein being used herein as therein defined),
among the Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender.



     The Borrower promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement. Except as otherwise provided in Section 2.04(f) of the
Agreement with respect to Swing Line Loans, 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 Agreement.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. This Note is also entitled to the benefits of the Guaranty. Upon the occurrence and
continuation of one or more of the Events of Default specified in the Agreement, all amounts then
remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable
all as provided in the Agreement. Loans made by the Lender shall be evidenced by one or more loan
accounts or records maintained by the Lender in the ordinary course of business. The Lender may
also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans
and payments with respect thereto.



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



Form of Note




C - 1









 





     THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS.



	 	 	 	 	 	 	 

	 	 	ATHENAHEALTH, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Form of Note




C - 2









 





LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Amount of	 	 	 	 
	 	 	 	 	 	 	 	 	Principal or	 	Outstanding	 	 
	 	 	 	 	 	 	End of	 	Interest	 	Principal	 	 
	 	 	Type of	 	Amount of	 	Interest	 	Paid This	 	Balance	 	Notation
	Date	 	Loan Made	 	Loan Made	 	Period	 	Date	 	This Date	 	Made By
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 





Form of Note




C - 3









 





EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                     ,




To: Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:



     Reference is made to that certain Credit Agreement, dated as of October 20, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among
athenahealth, Inc., a Delaware corporation (the “Borrower”), the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.



     The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the
of the Borrower, and that, as such, 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. The Borrower has delivered the year-end audited financial statements required by
Section 6.01(a) of the 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 required
by such section.



[Use following paragraph 1 for fiscal quarter-end financial statements]




     1. The Borrower has delivered the unaudited financial statements required by Section
6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the above date.
Such financial statements fairly present the financial condition, results of operations and cash
flows of the Borrower and its Subsidiaries in accordance with GAAP as at such date and for such
period, 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 Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Borrower during the accounting period covered by such
financial statements.



Form of Compliance Certificate




D - 1









 





     3. A review of the activities of the Borrower during such fiscal period has been made under
the supervision of the undersigned with a view to determining whether during such fiscal period the
Borrower performed and observed all its Obligations under the Loan Documents, and



[select one:]




     [to the best knowledge of the undersigned, during such fiscal period the Borrower performed
and observed each covenant and condition of the Loan Documents applicable to it, and no Default has
occurred and is continuing.]



—or—




     [to the best knowledge of the undersigned, during such fiscal period the following covenants
or conditions have not been performed or observed and the following is a list of each such Default
and its nature and status:]



     4. The representations and warranties of the Borrower contained in Article V of the
Agreement, and any representations and warranties of any Loan Party that are contained in any
document furnished at any time under or in connection with the Loan Documents, are true and correct
on and as of the date hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct as of such earlier
date, and except that (i) for purposes of this Compliance Certificate, the representations and
warranties contained in subsections (a) and (b) of Section 5.05 of the Agreement shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01 of the Agreement, including the statements in connection with which this Compliance
Certificate is delivered and (ii) for purposes of this Compliance Certificate, the representations
and warranties contained in Section 5.13 shall be deemed to refer to the most recent, updated
Schedule 5.13 delivered to the Administrative Agent pursuant to Sections 6.02(a) and 10.01 of the
Agreement, including the updates attached hereto as Schedule 3.



     5. The financial covenant analyses and information set forth on Schedules 1 and
2 attached hereto are true and accurate on and as of the date of this Certificate.



     6. Changes to Schedule 5.13, if any, which have arisen since the date of the last Compliance
Certificate are set forth on Schedule 3 hereto, which Schedule shall be deemed to be a
supplement to Schedule 5.13 of the Agreement.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
                    ,                     .



Form of Compliance Certificate





D - 2









 








	 	 	 	 	 	 	 

	 	 	ATHENAHEALTH, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Form of Compliance Certificate




D - 3









 





For the Quarter/Year ended __________________(“Statement Date”)




SCHEDULE 11

to the Compliance Certificate

($ in 000’s)




	 	 	 	 	 

	I. Section 7.11 (a) — Consolidated Fixed Charge Coverage Ratio.
	 	 	 	 
	A. Consolidated EBITDA for four consecutive fiscal quarters ending on above date (“Subject Period”):
	 	 	 	 
	1. Consolidated Net Income for Subject Period:
	 	$	                    	 
	2. Consolidated Interest Charges for Subject Period:
	 	$	                    	 
	3. Provision for income taxes for Subject Period:
	 	$	                    	 
	4. Depreciation expenses for Subject Period:
	 	$	                    	 
	5. Amortization expenses for Subject Period:
	 	$	                    	 
	6. Non-cash stock based compensation expenses for Subject Period
	 	$	                    	 
	7. Non-recurring non-cash reductions of Consolidated Net Income for Subject Period (including without limitation non-cash expenses related to any permitted Disposition):
	 	$	                    	 
	8. Non-cash expenses relating to any employee stock purchase plan
	 	 	 	 
	9. Non-cash additions to Consolidated Net Income for Subject Period:
	 	$	                    	 
	10. Consolidated EBITDA (Lines I.A1 + 2 + 3 + 4 + 5 + 6 + 7 + 8 — 9):
	 	$	                    	 
	B. Capital Expenditures (including purchased software) during Subject Period:
	 	$	                    	 
	C. Income taxes paid in cash during Subject Period:
	 	$	                    	 
	X. Numerator total (Lines I.A10 — I.B — I.C):
	 	$	                    	 








 




			
	1	 	The descriptions below are summary. Please refer
to the definitions of “Consolidated EBITDA,” “Consolidated Fixed Charge
Coverage Ratio,” and “Consolidated Leverage Ratio,” in the Agreement.





Form of Compliance Certificate




D - 4









 





	 	 	 	 	 

	D. Consolidated Interest Charges for Subject Period:
	 	$	                    	 
	E. Scheduled principal payments or redemptions during Subject Period:
	 	$	                    	 
	F. Restricted Payments other than permitted purchases, acquisitions or redemptions of Equity Interests, during Subject Period:
	 	$	                    	 
	Y. Denominator total (Lines I.D + I.E + I.F):
	 	$	                    	 
	G. Consolidated Fixed Charge Coverage Ratio (Line I.X  ̧ Line I.Y):
	 	                to 1
	Minimum required: 1.50 to 1.0
	 	 	 	 
	 
	 	 	 	 
	II. Section 7.11 (b) — Consolidated Leverage Ratio.
	 	 	 	 
	A. Consolidated Funded Indebtedness at Statement Date:
	 	$	                    	 
	B. Consolidated EBITDA for Subject Period (Line I.A.10 above):
	 	$	                    	 
	C. Consolidated Leverage Ratio (Line II.A  ̧ Line II.B):
	 	                to 1
	Maximum permitted:
	 	 	 	 






	 	 	 
	 	 	Maximum
	Trailing twelve month	 	Consolidated
	Consolidated EBITDA	 	Leverage Ratio
	Less than $150,000,000

	 	2.75 to 1.00
	Greater than or equal to $150,000,000
	 	3.00 to 1.00






Form of Compliance Certificate




D - 5









 






For the Quarter/Year ended __________________(“Statement Date”)




SCHEDULE 22

to the Compliance Certificate

($ in 000’s)




Consolidated EBITDA

(in accordance with the definition of Consolidated EBITDA

as set forth in the Agreement)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Twelve	 
	Consolidated	 	Quarter	 	 	Quarter	 	 	Quarter	 	 	Quarter	 	 	Months	 
	EBITDA	 	Ended	 	 	Ended	 	 	Ended	 	 	Ended	 	 	Ended	 
	Consolidated
Net Income
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ Consolidated
Interest Charges
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ income taxes
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ depreciation
expense
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ amortization
expense
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+non-cash stock
based compensation
expenses
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ non-recurring
non-cash expenses
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+non-cash expenses
relating to employee
stock purchase plan
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	- non-cash income
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	= Consolidated EBITDA
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 








 




			
	2	 	The descriptions below are summary. Please refer
to the definition of “Consolidated EBITDA” in the Agreement.





Form of Compliance Certificate




D - 6









 





For the Quarter/Year ended __________________(“Statement Date”)




SCHEDULE 3

to the Compliance Certificate




[Update to Schedule 5.13]




Form of Compliance Certificate




D - 7









 





EXHIBIT E-1




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]3 Assignor
identified in item 1 below ([the][each, an] “Assignor”) and [the][each]4
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]5 hereunder are
several and not joint.]6 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 Swing Line Loans
included in such facilities7) 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





 




			
	3	 	For bracketed language here and elsewhere in
this form relating to the Assignor(s), if the assignment is from a single
Assignor, choose the first bracketed language. If the assignment is from
multiple Assignors, choose the second bracketed language.
	 
	4	 	For bracketed language here and elsewhere in
this form relating to the Assignee(s), if the assignment is to a single
Assignee, choose the first bracketed language. If the assignment is to
multiple Assignees, choose the second bracketed language.
	 
	5	 	Select as appropriate.
	 
	6	 	Include bracketed language if there are
either multiple Assignors or multiple Assignees.
	 
	7	 	Include all applicable subfacilities.





Form of Assignment and Assumption




E-1 - 1









 




[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(s): ____________________
	 
	4.	 	Administrative Agent: Bank of America, N.A., as the administrative agent under the
Credit Agreement
	 
	5.	 	Credit Agreement: Credit Agreement, dated as of October 20, 2011, among athenahealth,
Inc., the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, L/C Issuer, and Swing Line Lender
	 
	6.	 	Assigned Interest[s]:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate	 	 	Amount	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount of	 	 	of	 	 	Percentage	 	 	 	 
	 	 	 	 	 	 	Commitment	 	 	Commitment	 	 	Assigned of	 	 	CUSIP	 
	Assignor[s]8	 	Assignee[s]9	 	 	for all Lenders10	 	 	Assigned	 	 	Commitment11	 	 	Number	 
	 
	 	 	 	 	 	$	                    	 	 	$	                    	 	 	 	                    	%	 	 	 	 
	 
	 	 	 	 	 	$	                    	 	 	$	                    	 	 	 	                    	%	 	 	 	 
	 
	 	 	 	 	 	$	                    	 	 	$	                    	 	 	 	                    	%	 	 	 	 







	 	 	[7. Trade Date: __________________]12







 




			
	8	 	List each Assignor, as appropriate.
	 
	9	 	List each Assignee, as appropriate.
	 
	10	 	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.
	 
	11	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.
	 
	12	 	To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.





Form of Assignment and Assumption




E-1 - 2









 




Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]




     The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 	 	 

	 	 	ASSIGNOR

[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Title:
	 	 
	 
	 	 	 	 	 	 
	 	 	ASSIGNEE

[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Title:
	 	 






	 	 	 	 	 

	[Consented to and]13 Accepted:


BANK OF AMERICA, N.A., as

  Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 
	 
	 	 	 	 
	[Consented to:


BANK OF AMERICA, N.A., as

  L/C Issuer	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:]14
	 	 
	 
	 	 	 	 
	Consented to:


BANK OF AMERICA, N.A., as

  Swingline Lender	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 
	 
	 	 	 	 
	[Consented to:	 	 








 




			
	13	 	To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
	 
	14	 	To be added only if the consent of the L/C
Issuer is required by the terms of the Credit Agreement.





Form of Assignment and Assumption




E-1 - 3









 





	 	 	 	 	 

	[____________], as

  a Lender holding Fronting Exposure	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:]15
	 	 
	 
	 	 	 	 
	[Consented to:

ATHENAHEALTH, INC.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:]
	 	 








 




			
	15	 	To be added only if any Lender currently
holds Fronting Exposure.





Form of Assignment and Assumption




E-1 - 4









 





ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




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 Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan 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 Loan 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 Loan 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
10.06(b)(iii) and (v) of the Credit Agreement (subject to such consents, if any, as may
be required under Section 10.06(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 6.01 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 Loan Documents, and (ii) it will perform in accordance with their terms




Form of Assignment and Assumption




E-1 - 5









 




all of the obligations which by the terms of the Loan 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 Commonwealth of Massachusetts (without giving
effect to any choice of law or conflict of law provision or rule that would cause the application
of the domestic substantive law of any other state).



Form of Assignment and Assumption




E-1 - 6









 







			
	Exhibit E-2 — FORM OF 

ADMINISTRATIVE DETAILS REPLY FORM — (US DOLLAR ONLY)
	 	






CONFIDENTIAL





	1.	 	Borrower athenahealth Inc                                                                                                                                             


E-mail this document with your commitment letter to:                                                                                                     




E-mail address of recipient:



                                                                                                                                                                



2. Legal Name of Lender of Record for Signature Page:



                                                                                                    




     Markit Entity Identifier (MEI) #                                         

     Fund Manager Name (if applicable)




                                                                     
                               




     Legal Address from Tax Document of Lender of Record:

     Country





      




     Address



 




City                                                              State/Province
                                         Country                     



      





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	3. Domestic Funding Address:	 	 	 	4. Eurodollar Funding Address:
	Street Address

	 	 	 	 	 	 	 	 	 	Street Address	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	Suite/ Mail Code

	 	 	 	 	 	 	 	 	 	Suite/ Mail Code	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	City

	 	 	 	State
	 	 	 	 	 	City
	 	 	 	State	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 
	Postal Code

	 	 	 	Country
	 	 	 	 	 	Postal Code
	 	 	 	Country	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 




      





5. Credit Contact Information:



Syndicate level information (which may contain material non-public information about the Borrower
and its related parties or their respective securities will be made available to the Credit
Contact(s). The Credit Contacts identified must be able to receive such information in accordance
with his/her institution’s compliance procedures and applicable laws, including Federal and State
securities laws.




	 	 	 

	Primary Credit Contact:
	 	 
	First Name
	 	 
	 

	 	 
	Middle Name
	 	 
	 

	 	 
	Last Name
	 	 
	 

	 	 
	Title
	 	 
	 

	 	 





E-2 - 1









 





			
	ADMINISTRATIVE DETAILS REPLY FORM — (US DOLLAR ONLY)
	 	






CONFIDENTIAL





	 	 	 

	Street Address
	 	 
	 

	 	 
	Suite/Mail Code
	 	 
	 

	 	 
	City
	 	 
	 

	 	 
	State
	 	 
	 

	 	 
	Postal Code
	 	 
	 

	 	 
	Country
	 	 
	 

	 	 
	Office Telephone #
	 	 
	 

	 	 
	Office Facsimile #
	 	 
	 

	 	 
	Work E-Mail Address
	 	 
	 

	 	 
	IntraLinks/SyndTrak
	 	 
	 

	 	 
	E-Mail Address
	 	 
	 

	 	 
	 
	 	 
	Secondary Credit Contact:
	 	 
	First Name
	 	 
	 

	 	 
	Middle Name
	 	 
	 

	 	 
	Last Name
	 	 
	 

	 	 
	Title
	 	 
	 

	 	 
	Street Address
	 	 
	 

	 	 





E-2 - 2









 






			
	ADMINISTRATIVE DETAILS REPLY FORM — (US DOLLAR ONLY)
	 	






CONFIDENTIAL





	 	 	 

	Suite/Mail Code
	 	 
	 

	 	 
	City
	 	 
	 

	 	 
	State
	 	 
	 

	 	 
	Postal Code
	 	 
	 

	 	 
	Country
	 	 
	 

	 	 
	Office Telephone #
	 	 
	 

	 	 
	Office Facsimile #
	 	 
	 

	 	 
	Work E-Mail Address
	 	 
	 

	 	 
	IntraLinks/SyndTrak
	 	 
	 

	 	 
	E-Mail Address
	 	 
	 

	 	 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	Primary Operations Contact:	 	 	 	Secondary Operations Contact:
	First

	 	 	 	MI       Last
	 	 	 	 	 	First
	 	 	 	MI       Last	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 
	Title

	 	 	 	 	 	 	 	 	 	Title	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	Street Address

	 	 	 	 	 	 	 	 	 	Street Address	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	Suite/ Mail Code

	 	 	 	 	 	 	 	 	 	Suite/ Mail Code	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	City

	 	 	 	State
	 	 	 	 	 	City
	 	 	 	State	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 
	Postal Code

	 	 	 	Country
	 	 	 	 	 	Postal Code
	 	 	 	Country	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 
	Telephone

	 	 	 	Facsimile
	 	 	 	 	 	Telephone
	 	 	 	Facsimile	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 
	E-Mail Address

	 	 	 	 	 	 	 	 	 	E-Mail Address	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	IntraLinks/SyndTrak E-Mail

	 	 	 	 	 	 	 	 	 	IntraLinks/SyndTrak E-Mail	 	 	 	 	 	 
	Address

	 	 	 	 	 	 	 	 	 	Address	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 





E-2 - 3









 





			
	ADMINISTRATIVE DETAILS REPLY FORM — (US DOLLAR ONLY)
	 	






CONFIDENTIAL




Does Secondary Operations Contact need copy of notices? ___YES ___ NO




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	Letter of Credit Contact:	 	 	 	Draft Documentation Contact or Legal Counsel:
	First

	 	 	 	MI       Last
	 	 	 	 	 	First
	 	 	 	MI       Last	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 
	Title

	 	 	 	 	 	 	 	 	 	Title	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	Street Address

	 	 	 	 	 	 	 	 	 	Street Address	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	Suite/ Mail Code

	 	 	 	 	 	 	 	 	 	Suite/ Mail Code	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	City

	 	 	 	State
	 	 	 	 	 	City
	 	 	 	State	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 
	Postal Code

	 	 	 	Country
	 	 	 	 	 	Postal Code
	 	 	 	Country	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 
	Telephone

	 	 	 	Facsimile
	 	 	 	 	 	Telephone
	 	 	 	Facsimile	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 
	E-Mail Address

	 	 	 	 	 	 	 	 	 	E-Mail Address	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 




6. Lender’s Fed Wire Payment Instructions:




Pay to:




	 	 	 	 	 
	 	 	 	 	 
	Bank Name
	 	 	 	 
	 

	 	 	 	 
	ABA #
	 	 	 	 
	 

	 	 	 	 
	City 
	 	 	 	State
	 

	 	 	 	 
	Account #
	 	 	 	 
	 

	 	 	 	 
	Account Name
	 	 	 	 
	 

	 	 	 	 
	Attention
	 	 	 	 
	 

	 	 	 	 




7. Lender’s Standby Letter of Credit, Commercial Letter of Credit, and Bankers’ Acceptance Fed
Wire Payment Instructions (if applicable):




Pay to:




	 	 	 	 	 
	 	 	 	 	 
	Bank Name
	 	 	 	 
	 

	 	 	 	 
	ABA #
	 	 	 	 
	 

	 	 	 	 
	City 
	 	 	 	State
	 

	 	 	 	 
	Account #
	 	 	 	 
	 

	 	 	 	 
	Account Name
	 	 	 	 
	 

	 	 	 	 
	Attention
	 	 	 	 
	 

	 	 	 	 





Can the Lender’s Fed Wire Payment Instructions in Section 6 be used? ___YES ___ NO











E-2 - 4









 








			
	ADMINISTRATIVE DETAILS REPLY FORM — (US DOLLAR ONLY)
	 	






CONFIDENTIAL



8. Lender’s Organizational Structure and Tax Status



Please refer to the enclosed withholding tax instructions below and then complete this section
accordingly:



Lender Taxpayer Identification Number (TIN):
                    -
                     
                     
          
          



Tax Withholding Form Delivered to Bank of America (check applicable one):




___
W-9          ___
W-8BEN            ___
W-8ECI           ___
W-8EXP            ___ W-8IMY




Tax Contact:




First                                          MI                      Last                                         

Title                                                             

Street Address                                                             

Suite/ Mail Code                                                             

City                                          State                     

Postal Code                                          Country                     

Telephone                      Facsimile                     

E-Mail Address                                                                                 




NON—U.S. LENDER INSTITUTIONS



1. Corporations:



If your institution is incorporated outside of the United States for U.S. federal income tax
purposes, and is the beneficial owner of the interest and other income it receives, you must
complete one of the following three tax forms, as applicable to your institution: a.) Form W-8BEN
(Certificate of Foreign Status of Beneficial Owner), b.) Form W-8ECI (Income Effectively Connected
to a U.S. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign Government or Governmental
Agency).



A U.S. taxpayer identification number is required for any institution submitting a Form W-8 ECI.
It is also required on Form W-8BEN for certain institutions claiming the benefits of a tax treaty
with the U.S. Please refer to the instructions when completing the form applicable to your
institution. In addition, please be advised that U.S. tax regulations do not permit the acceptance
of faxed forms. An original tax form must be submitted.



2. Flow-Through Entities



If your institution is organized outside the U.S., and is classified for U.S. federal income tax
purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S.
flow-through entity, an original Form W-8IMY (Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. branches
for United States Tax Withholding) must be completed by the intermediary together with a
withholding statement. Flow-through entities other than Qualified Intermediaries are required to
include tax forms for each of the underlying beneficial owners.







E-2 - 5









 








			
	ADMINISTRATIVE DETAILS REPLY FORM — (US DOLLAR ONLY)
	 	






CONFIDENTIAL



Please refer to the instructions when completing this form. In addition, please be advised that
U.S. tax regulations do not permit the acceptance of faxed forms. Original tax form(s) must be
submitted.




U.S. LENDER INSTITUTIONS:



If your institution is incorporated or organized within the United States, you must complete and
return Form W-9 (Request for Taxpayer Identification Number and Certification). Please be advised
that we require an original form W-9.



Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax
form for your institution must be completed and returned on or prior to the date on which your
institution becomes a lender under this Credit Agreement. Failure to provide the proper tax form
when requested will subject your institution to U.S. tax withholding.



 



*Additional guidance and instructions as to where to submit this documentation can be found at this
link:



9. Bank of America’s Payment Instructions:



Pay to: [Intentionally Omitted]




E-2 - 6









 





EXHIBIT F




FORM OF GUARANTY




Form of Guaranty





F - 1









 








EXHIBIT G




TERMS AND CONDITIONS OF SUBORDINATED INDEBTEDNESS




     Section [__]. Subordination Provisions




     (a) General. This [_________], including all principal, interest, fees, costs,
enforcement expense (including legal fees and disbursements), and any other reimbursement
and indemnity obligations created or evidenced by this [__________], or any prior,
concurrent or subsequent notes, instruments, or agreements of indebtedness, liabilities or
obligations of any type or form whatsoever relating thereto in favor of [the Payee]
(“Subordinated Debt”) and any and all documents or instruments evidencing,
guaranteeing or securing directly or indirectly any of the foregoing, whether now existing
or hereafter created (“Subordinated Documents”), shall be and hereby are
subordinated and the payment thereof is deferred until the full and final payment in cash of
the Senior Debt, whether now or hereafter incurred or owed by the Maker. Notwithstanding
the immediately preceding sentence, the Maker shall be permitted to pay, and [the Payee]
shall be permitted to receive, any regularly scheduled payment of interest on this
[_______], so long as at the time of such payment, such payment is permitted and no default
or event of default has occurred and is continuing, in each case under the terms and
provisions of any Senior Debt or would occur after giving effect thereto.




     (b) Enforcement. [The Payee] will not take or omit to take any action or
assert any claim with respect to the Subordinated Debt or otherwise which is inconsistent
with the provisions of this Section [___]. Without limiting the foregoing, [the
Payee] will not assert, collect or enforce the Subordinated Debt or any part thereof or take
any action to foreclose or realize upon the Subordinated Debt or any part thereof or enforce
any of the Subordinated Documents except (i) in each such case as necessary, so long as no
default or event of default has occurred and is then continuing under the terms and
provisions of any Senior Debt or would occur after giving effect thereto, to collect any
sums expressly permitted to be paid by the Maker pursuant to Section [__](a) above
or (ii) to the extent (but only to such extent) that the commencement of a legal action may
be required to toll the running of any applicable statute of limitations. Until the Senior
Debt has been finally paid in full in cash, [the Payee] shall not have any right of
subrogation, reimbursement, restitution, contribution or indemnity whatsoever from any
assets of the Maker or any guarantor of or provider of collateral security for any Senior
Debt. [The Payee] further waives any and all rights with respect to marshalling.




     (c) Payments Held in Trust. [The Payee] will hold in trust and immediately pay
over to the holders of Senior Debt, in the same form of payment received, with appropriate
endorsements, for application to the Senior Debt, any cash (or cash equivalent) amount that
the Maker pays to [the Payee] with respect to the Subordinated Debt, or as collateral for
the Senior Debt any other assets of the Maker that [the Payee] may receive with respect to
Subordinated Debt, in each case except with respect to payments expressly permitted pursuant
to Section [__](a) above.



Form of Subordination Terms




G - 1









 






     (d) Defense to Enforcement. If [the Payee], in contravention of the terms of
this [______], shall commence, prosecute or participate in any suit, action or proceeding
against the Maker, then the Maker may interpose as a defense or plea the agreements in this
[_____], and any holder of Senior Debt may intervene and interpose such defense or plea in
its name or in the name of the Maker. If [the Payee], in contravention of the terms of this
[________], shall attempt to collect any of the Subordinated Debt or enforce any of the
Subordinated Documents, then any holder of Senior Debt or the Maker may, by virtue of this
Agreement, restrain the enforcement thereof in the name of any holder of Senior Debt or in
the name of the Maker. If [the Payee], in contravention of the terms of this Agreement,
obtains any cash or other assets of the Maker as a result of any administrative, legal or
equitable actions, or otherwise, [the Payee] agrees forthwith to pay, deliver and assign to
the holders of Senior Debt, with appropriate endorsements, any such cash (or cash
equivalent) for application to the Senior Debt and any such other assets as collateral for
the Senior Debt.




     (e) Bankruptcy, Etc.



     (i) At any meeting of creditors of the Maker or in the event of any case or proceeding,
voluntary or involuntary, for the distribution, division or application of all or part of the
assets of the Maker or the proceeds thereof, whether such case or proceeding be for the
liquidation, dissolution or winding up of the Maker or its business, a receivership, insolvency
or bankruptcy case or proceeding, an assignment for the benefit of creditors or a proceeding by
or against the Maker for relief under the federal Bankruptcy Code or any other bankruptcy,
reorganization or insolvency law or any other law relating to the relief of debtors,
readjustment of indebtedness, reorganization, arrangement, composition or extension or
marshalling of assets or otherwise, the holders of Senior Debt are hereby irrevocably authorized
at any such meeting or in any such proceeding to receive or collect any cash or other assets of
the Maker distributed, divided or applied by way of dividend or payment, or any securities
issued on account of any Subordinated Debt, and apply such cash to or hold such other assets or
securities as collateral for the Senior Debt, and to apply to the Senior Debt any cash proceeds
of any realization upon such other assets or securities that the holders of Senior Debt elect to
effect, until all of the Senior Debt shall have been paid in full in cash.



     (ii) Notwithstanding the foregoing provisions of Section[___](e)(i) above, [the
Payee] shall be entitled to receive and retain any securities of the Maker or any other
corporation or other entity provided for by a plan of reorganization or readjustment provided
that: (x) the payment of such securities is subordinate, at least to the extent provided in this
[__________] with respect to Subordinated Debt, to the payment of all Senior Debt under any such
plan of reorganization or readjustment, (y) the rights of the holders of the Senior Debt are
not, without the consent of such holders, altered or impaired by such arrangement,
reorganization or readjustment, and (z) all other terms of such arrangement, reorganization or
readjustment are acceptable to the holders of Senior Debt.



     (iii) [The Payee] undertakes and agrees for the benefit of each holder of Senior Debt to
execute, verify, deliver and file any proof of claim, consent, assignment or other instrument



Form of Subordination Terms




G - 2









 




which any holder of Senior Debt may at any time require in order to prove and realize upon
any right or claim pertaining to the Subordinated Debt and to effectuate the full benefit of the
subordination contained herein; and upon failure of [the Payee] so to do prior to 30 days before
the expiration any such holder of Senior Debt shall be deemed irrevocably appointed the agent
and attorney-in-fact of [the Payee] to execute, verify, deliver and file any such proof of
claim, consent, assignment or other instrument.




     (iv) At any such meeting of creditors or in the event of any such case or proceeding, [the
Payee] shall not vote with respect to any plan of partial or complete liquidation,
reorganization, arrangement, composition or extension, or take any other action in any way so as
to contest (i) the validity of any Senior Debt or any collateral therefor or guaranties thereof,
(ii) the relative rights and duties of any holders of any Senior Debt established in any
instruments or agreements creating or evidencing any of the Senior Debt with respect to any of
such collateral or guaranties or (iii) [the Payee]‘s obligations and agreements set forth in
this [___________].




     (f) Freedom of Dealing. [The Payee] agrees that the Maker may, from time to
time and at any time, incur additional Senior Debt as it deems necessary, appropriate or
desirable in its sole discretion. [The Payee] agrees, with respect to any and all Senior
Debt and any and all collateral therefor or guaranties thereof, that the Maker and the
holders of Senior Debt may agree to increase the amount of any Senior Debt or otherwise
modify the terms of any Senior Debt, and the holders of Senior Debt may grant extensions of
the time of payment or performance to and make compromises, including releases of collateral
or guaranties, and settlements with the Maker and all other persons, in each case without
the consent of [the Payee] and without affecting the agreements of [the Payee] contained in
this [_______]; provided, however, that nothing contained in this
Section [___](f) shall constitute a waiver of the right of the Maker itself to agree
to or consent to a settlement or compromise of a claim which any holder of Senior Debt may
have against the Maker.




     (g) Sale of Subordinated Debt. [The Payee] will not sell, transfer, pledge,
assign, hypothecate or otherwise dispose of any Subordinated Debt to any person other than a
person who agrees in a writing, satisfactory in form and substance to the Maker and the
holders of a majority of the then outstanding principal amount of Senior Debt, to be bound
by all of the obligations of [the Payee] hereunder. In the case of any such disposition by
[the Payee], [the Payee] will use its best efforts to notify each holder of Senior Debt at
least 10 days prior to the date of any of such intended disposition.




     (h) Continuation of Subordination. To the extent that the Maker or any
guarantor of or provider of collateral for the Senior Debt makes any payment on the Senior
Debt that is subsequently invalidated, declared to be fraudulent or preferential or set
aside or is required to be repaid to a trustee, receiver or any other party under any
bankruptcy, insolvency or reorganization act, state or federal law, common law or equitable
cause (such payment being hereinafter referred to as a “Voided Payment”), then to
the extent of such Voided Payment, that portion of the Senior Debt that had been previously
satisfied



Form of Subordination Terms




G - 3









 






by such Voided Payment shall be revived and continue in full force and effect (and
continue to have the benefit of the subordination provisions hereof) as if such Voided
Payment had never been made. To the extent that [the Payee] has received any payments with
respect to Subordinated Debt subsequent to the date of the initial receipt of such Voided
Payment by a holder of Senior Debt and such payments have not been invalidated, declared to
be fraudulent or preferential or set aside or required to be repaid to a trustee, receiver,
or any other party under any bankruptcy act, state or federal law, common law or equitable
cause, [the Payee] shall be obligated and hereby agrees that any such payment so made or
received shall be deemed to have been received in trust for the benefit of the recipient of
the Voided Payment, and [the Payee] hereby agrees to pay to the recipient of the Voided
Payment, upon demand, the full amount so received by [the Payee] during such period of time
to the extent necessary fully to restore to the recipient of the Voided Payment the amount
of such Voided Payment.




     (i) Continuing Agreement; No modifications. The provisions of this Section
[__] constitute a continuing agreement and shall be binding upon the Maker and [the
Payee] and their successors and assigns. The Maker and [the Payee] hereby agree that the
holders of the Senior Debt are express third party beneficiaries of the provisions of this
Section [__] and enforceable by each such holder of Senior Debt and their
successors, transferees and assigns. The provisions of this Section [__] shall not
be amended, restated, supplemented or otherwise modified without the prior written consent
of the holders of Senior Debt.


For purposes of these subordination provisions, Senior Debt would be defined as follows:



“Senior Debt” means (i) all “Obligations” under and as defined in that certain
[INSERT REFERENCE TO CREDIT AGREEMENT] (as amended, restated, supplemented, replaced or
otherwise modified from time to time, the “Senior Credit Agreement”) and (ii) all
principal, interest, fees, costs, enforcement expenses (including legal fees and
disbursements), collateral protection expenses and other reimbursement or indemnity
obligations created or evidenced by the Senior Credit Agreement or any of the other “Loan
Documents” under and as defined in the Senior Credit Agreement or any prior, concurrent, or
subsequent notes, instruments or agreements of indebtedness, liabilities or obligations of
any type or form whatsoever relating thereto. Senior Debt shall expressly include any and
all interest accruing or out of pocket costs or expenses incurred after the date of any
filing by or against the maker of any petition under the federal bankruptcy code or any
other bankruptcy, insolvency or reorganization act regardless of whether the bank’s claim
therefor is allowed or allowable in the case or proceeding relating thereto.





G - 4